« Courts - Results are in on: "Chief judge Timothy Evans in battle to keep job" | Main | Ind. Courts - "What Is Notre Dame’s Police Force Hiding From ESPN?" »

Friday, September 16, 2016

Ind. Courts - "Breaking the code on a Chicago mystery from WWII"

Yesterday, in Elliot Carlson v. USA, a fascinating 2-1, 34-page opinion authored by Chief Judge Wood, with Judge Sykes in dissent, the ruling begins:

During World War II, the U.S. Office of War Information warned the populace that “loose lips sink ships.” See The Phrase Finder, http://www.phrases.org.uk/ meanings/237250.html (last visited Sept. 15, 2016). But what if the ships sailed some 70 years before the tongues wag? That is the problem we face in the present case, in which Elliot Carlson, along with a number of scholarly, journalistic, and historic organizations, seeks access to grand-jury materials sealed decades ago. The materials concern an investigation into the Chicago Tribune in 1942 for a story it published revealing that the U.S. military had cracked Japanese codes. The government concedes that there are no interests favoring continued secrecy. It nonetheless resists turning over the materials, on the sweeping ground that Rule 6(e) of the Federal Rules of Criminal Procedure entirely eliminates the district court’s common-law supervisory authority over the grand jury. It takes the position that no one (as far as we can tell) has the power to release these documents except for one of the reasons enumerated in Rule 6(e)(3)(E). If that is so, then Carlson and his allies must fail, because his request is outside the scope of Rule 6(e).

We find nothing in the text of Rule 6(e) (or the criminal rules as a whole) that supports the government’s exclusivity theory, and we find much to indicate that it is wrong. In fact, the Rules and their history imply the opposite, which is why every federal court to consider the issue has adopted Carlson’s view that a district court’s limited inherent power to supervise a grand jury includes the power to unseal grand-jury materials when appropriate. Because the parties agree that this is an appropriate instance (if, in fact, the district court has this power) we affirm the order of the district court. * * *

[Judges Sykes dissent begins on p. 25] Rule 6 of the Federal Rules of Criminal Procedure comprehensively governs the conduct of grand-jury proceedings, and subpart (e) of the rule requires that all matters occurring before the grand jury must be kept secret, subject to certain narrow exceptions. See FED. R. CRIM. P. 6(e)(2)(B), (e)(3)(E). The petitioners here—a group of historians and journalists—asked the district court to unseal grand-jury records from a World War II–era espionage investigation described in fascinating detail in Chief Judge Wood’s opinion. The documents have historical significance, but none of the rule’s exceptions to secrecy even arguably applies. To get around this impediment, the petitioners argued that the exceptions are permissive, not exclusive, and the district court has inherent authority to unseal grand-jury materials for reasons not covered by the rule—here, historical interest.

ILB: This Nov. 21, 2014 editorial in the Chicago Tribune presents some of the backstory. Some quotes:
[A] coalition of American and naval history groups and the national Reporters Committee for Freedom of the Press petitioned the U.S. District Court in Chicago to unseal the transcripts, evidently stored at a National Archives repository in College Park, Md.

We customarily don't tell judges how to rule. But the 50-page filing makes a strong case for breaching grand jury secrecy in what the petitioners call "the first and, to date, only attempt by the U.S. government to prosecute a member of the mainstream press for alleged violations of the Espionage Act of 1917."

Grand jury testimony is secret but, especially as the need for confidentiality recedes, not sacrosanct: Courts have unsealed proceedings in such historically significant cases as those of Richard M. Nixon's Watergate debacle, accused Soviet spy Alger Hiss, executed "atomic spies" Julius and Ethel Rosenberg, and Teamsters boss Jimmy Hoffa. Disclosures typically occur when the principals are dead, privacy issues are moot, and so are such concerns as national security.

This case appears to meet all the criteria for unsealing that other courts have used. The last witness whose identity is known died 17 years ago, and a current judge could order minimal redaction of any lingering threat to privacy.

Opening this testimony could explain how Johnston learned one of this nation's most valuable secrets, how perilous the Navy thought the leak was, and why the investigation halted; the filing alludes to the possibility that the Navy didn't want to tell grand jurors about its codebreaking coup. Another question: Did Roosevelt's administration seek an indictment to punish the Tribune for editorials or articles that had cast doubt on U.S. defense policy?

Posted by Marcia Oddi on September 16, 2016 09:31 AM
Posted to Ind. (7th Cir.) Decisions