Chapter 26: 26. Safeguarding Military Information

By March 1945 the Allies were making progress on all fronts. The Germans, besieged from the east by the Russians and from the west by Allied forces, were pulling back. The Japanese were in retreat in the Pacific and southeast Asia. After leapfrogging from one Pacific island to another, the U.S. Army under MacArthur had advanced as far as the Philippines. However, more fighting lay ahead.

The procedure established to make sure that our enemies did not learn that we were reading their codes seemed to be effective.^[1] When the Pearl Harbor investigations started, Army and Navy officers were prohibited from mentioning the intercepts.^[2] There had been one leak in the spring of 1941, eventually attributed to the State Department, which had received from the Army but had not returned a Japanese MAGIC translation.^[3] Then in June 1942the Chicago Tribune’s publication of the names of the Japanese ships at Midway indicated that we had access to secret Japanese messages.^[4] As noted, during the 1944 campaign, Marshall had succeeded in preventing Republican presidential candidate Thomas E. Dewey from speaking out on the subject of the secret Japanese intercepts.^[5] Rumors persisted, however. But there had as yet been no public disclosure that we had broken the Japanese “Purple” code. For all practical purposes, information about MAGIC had been limited to the few officials privy to the intercepts before and during the war and those involved in the investigations. And the authorities were anxious to keep it that way.^[6]

Senate Bill S.805

On March 30, 1945, Democratic Utah Senator Elbert Thomas, chairman of the Senate Committee on Military Affairs, introduced S.805 “to insure the further military security of the United States by preventing disclosures of information secured through official sources.” This bill provided heavy penalties for disclosing, without proper authorization, information about U.S. or foreign codes acquired when serving in U.S. or foreign armed forces or when employed or performing services for the United States or a foreign government. Authorization to release such information acquired while working for the United States “shall be granted only in accordance with regulations prescribed by the president.” Information acquired as a result of performing services for a foreign government could not be released “without joint authorization by the Secretary of State, the Secretary of War, and the Secretary of the Navy.”^[7]

Admiral Kimmel read a brief five-line notice about this bill in the New York Herald-Tribune, March 31, and immediately wrote his chief counsel, Charles Rugg, to investigate. Several days later Rugg finally obtained a copy of the bill and notified Kimmel and Senator Homer Ferguson of Michigan. Rugg said that “its passage would close the door to any investigation of Pearl Harbor.”^[8] Senator Thomas stated that this bill “provides for filling a gap in regard to the punishment of persons who may divulge military secrets. . . . The bill is sponsored by both the Army and the Navy. It is a measure which is necessary in peacetime, but at the present time it is extremely necessary.” Without any further discussion or debate, the bill was passed by voice vote; no roll call was taken. Kimmel was “desperate because if the House passed the bill, that was the end of all disclosures about Pearl Harbor.”^[9]

Senator Ferguson had been out of the country when the bill came before the Senate on April 9. On his return to Washington he entered “a motion to reconsider the votes” by which the bill had been passed. He said it was “very important that the Senate should give further consideration to the measure, and that it should be amended.”^[10] Ferguson’s motion was agreed to on April 11, and S.805 was temporarily set aside.

Peacetime Censorship?

Kimmel was in Washington on April 12. He went to the Washington Post with the facts and his views about the bill. He also called several members of Congress.^[11]

The next morning, an editorial sparked by Kimmel’s revelations, “Wraps on History,” appeared in the Post. It stated the issue clearly: “It is regrettable to note that we can no longer depend upon the Senate to protect the Nation against executive deprivations of our liberties. The latest illustration is S.805, which would take away from the American people that very freedom of information which we are seeking to promote in other countries. The bill was passed on Monday without exciting a ripple, either inside or outside the Senate. Only one hearing was held, and that in camera.” It was reported that Army and Navy spokesmen had told the Senate Military Affairs Committee that the bill “was merely intended to protect official information” and the Committee had accepted the bill “on that absurd justification. . . .”

The Washington Post editorialized:

On Monday no dissentient could be found in a body sworn to uphold the Constitution. Either from inertia or somnolence, either from lack of interest or just plain complaisance, the Senators approved the sayso of Chairman Thomas. . . . Yet this bill would gag anybody who would publish any information which originally took the form of a coded message. . . . And you may be sure, if this bill is enacted, almost everything that it is sought to keep from the prying eyes of the public will first be put in code. . . .

To our way of thinking, the need for scrutiny of requests from the armed services has always been present, and it has never been pointed up as it is today. With the approach of the end of the fight for liberty, we are beginning to reproselytize for it. Freedom of information, specifically, is our immediate crusade. . . . That the Senate on Monday blacked it out in the United States was the worst blackout that the Senate has sustained in our memory.^[12]

Another Analysis of S.805

On April 13 the New York Times reported on S.805:

Fearing that a bill intended to protect military secrets, passed unanimously by the Senate Monday, might interfere with Congressional investigation of government departments and suppress legitimate public information, Senators have taken steps to halt the measure and perhaps to re-examine the War and Navy officers who sponsored the proposal.

Senator Homer Ferguson, Republican, of Michigan, has moved for reconsideration of the bill. Although he sees no sinister design in the measure, he believes that through misuse the legislation could impose a censorship on newspapers and deprive Congressional committees of many facts. . . . Disclaiming any desire to interfere with proper protection of military secrets, Senator Ferguson considers the bill so broadly drawn as possibly to suppress many political questions with which the public has a right to be informed. . . .

High War and Navy officers stood back of the bill, which it was understood today was submitted by the military authorities “in perfect good faith.” In its report to the Senate the Military Affairs Committee said the bill had approval of the joint Chiefs of Staff and was deemed essential “in the interests of national defense and security.”^[13]

---

The Times of April 13 also reported the death of President Roosevelt, which occurred the day before, April 12. He had been at his retreat in Warm Springs, Georgia. FDR’s personal physician wrote later that the president had fainted at 1:20 p.m., and died shortly thereafter, at 3:35 p.m.^[14]

Later when S.805 came before the House committee, action was delayed sufficiently to allow for a thorough investigation. When the bill was finally brought to the floor a couple of months later, it was defeated.^[15]