1957 Forgotten Trial

The Forgotten 1957 Trial That Explains Our Country’s Bizarre Whistleblower Laws

In John Nickerson’s trial, we see the early rumblings of tensions that plague leak prosecutions today.

By Sam Lebovic

1957 began abruptly for Colonel John C. Nickerson Jr. On January 2, military police burst into his home in Huntsville, Alabama. They found unsecured classified documents, and promptly arrested Nickerson. Within a month, he was relieved of his duties supervising a missile program at the nearby Redstone Artillery Range. Within two months, the decorated World War II veteran was charged with perjury, violating the Espionage Act, and 15 counts of security violations. Nickerson had been in line for promotion to brigadier general. Now, he was facing a $10,000 fine and 46 years in prison.

Criminal prosecutions for leaking have never been common. Most contemporary commentators think there have been 11 such prosecutions in American history, including eight since 2005 in what some have dubbed Obama’s “War on Whistleblowers” (think Thomas Drake, Chelsea Manning and Edward Snowden). Two earlier cases are also well-known: in 1971, Daniel Ellsberg and Anthony Russo were charged with leaking the Pentagon Papers (the case was ultimately dismissed because of misconduct by the Nixon administration); and in 1985, naval analyst Samuel Loring Morison went to jail for leaking satellite photographs to Jane’s Defence Weekly.

Invariably left off this list is John Nickerson. Though less well known than Ellsberg, Snowden, or Manning, Nickerson was actually the first American to be prosecuted for leaking top-secret national security information to the press, and his prosecution established the template for the more familiar cases of the 21st century. Was Nickerson a brave whistleblower, unjustly martyred for calling out inefficiencies and incompetence in defense policy? Or was he a self-interested player, risking security information for personal and professional advancement? Nickerson seems to have seen himself as both. At times, he emphasized his service to the public. But he also boasted that he was "one of a new-breed of missile-men politicians, engaged in a lone-wolf operation to sell new weapons projects to the government."

In the ambiguities of Nickerson’s 59-year-old case — all but forgotten, and retold here compiled from contemporary news accounts and other research — we can see the early rumblings of tensions that have continued to plague leak prosecutions: the seeming arbitrariness, the power that the Espionage Act hands to prosecutors, and the difficulty of weighing national security against the public’s right to know.

In 1957, the executive order establishing the modern security-classification system was only 6 years old, and the whole idea of leaking national security secrets was something of a novelty (newspaper headlines, for instance, were still placing “leak” in scare quotes). Nickerson’s case gained attention mainly because it provided a glimpse into the controversies roiling American missile development. Since World War II, the Army, Navy and Air Force had been rivals for the control of weapons systems — prestige, operational capacity and budget lines were at stake. A particular point of contention came over the development of intermediate-range ballistic missiles. The Navy saw missiles as pilotless planes, and had developed its Thor missile as such. The Army, on the other hand, viewed missiles as long-range artillery, and was at work on its own ICBM, the Jupiter (weapons were plainly the deities of the age).

In 1956, Defense Secretary Charlie Wilson decided to resolve the interservice rivalry. Just before Thanksgiving, he announced a decision: the Army would lead the development and deployment of short-range missiles, while the Navy would take sole control over intermediate and long-range missiles. His decision seemed to mark the end of the Jupiter program.

Wilson’s order angered missile developers in the Army — especially Nickerson, who had managed the Jupiter program at Redstone Arsenal. On Thanksgiving evening, Nickerson went to Washington to plead with government officials to rethink the decision. When that failed, Nickerson decided to “short-cut channels in order to help change the secretary’s mind,” anonymously writing a 12-page response to Wilson, and distributing it to Congress, industrialists and Army generals.

In the memo, Nickerson made an array of accusations and arguments. He claimed that Admiral Arthur Radford, a confidant of Secretary Wilson, had poisoned the Defense Department against the Army. He insinuated that the bias against the Jupiter program stemmed from corporate corruption (the Thor missile relied on parts produced by General Motors). He suggested that the Army needed operational control of intermediate-range ballistic missiles to protect its forces and reduce casualties, citing a need to “destroy enemy forces with atomic ballistic missiles at long ranges before these enemy forces can close with our own troops.” And in passages that would later prove crucial in Nickerson’s prosecution, he revealed the classified results of early Thor and Jupiter missile tests: The Jupiter had doubled its estimated range when it flew 3,000 miles, while the Thor had soared all of three feet.

Nickerson’s document made its way to journalist Drew Pearson, whose syndicated column “Washington Merry-Go-Round” was famous for publishing off-the-record rumors about D.C. politics. Pearson, abiding by the journalistic conventions of the Cold War, took the memo to the Defense Department to see whether the information in it could be published without harming national security. It could not. The document was seized, and shortly thereafter traced to Nickerson, who was quickly arrested. When the military police raided his house, they found two classified documents in an unlocked desk drawer, among other fairly innocuous violations of security policy. Colonel Nickerson was charged with violating the Espionage Act, along with lesser counts of holding unsecured defense information.

It promised to be a colorful and sensational trial. “There are more angles to this case,” the Boston Globe declared, “than there are sides to the Pentagon.” Many commentators thought Nickerson was a modern-day version of Billy Mitchell, who had been court-martialed and driven from the Army for advocating the development of an air force in the 1920s (he was later honored as a martyred prophet of American air power). Others hoped the trial would disclose the secrets of futuristic warfare; “the time of the airplane as a weapon may be drawing to a close,” the Globe speculated, and perhaps even the “first authoritative glimpse of the wonderland of space travel.”

Seventy-five journalists traveled to Huntsville to cover the proceedings, drawn in part by the intriguing cast of characters. Ernst Stuhlinger and Wernher von Braun — two scientists who had helped build the V-2 rocket for Nazi Germany and were later brought to the U.S. to play central roles in the nation’s missile and space programs — were on the witness docket. Nickerson was defended by Ray Jenkins, who had played a conspicuous role in the recent Army-McCarthy hearings. Nickerson himself proved so popular in the military city that he was being treated in all the stores. “It is kind of embarrassing,” Nickerson confessed to one journalist. “The merchants just don’t want to take my money.”

In the end, the trial itself was anti-climactic. By lunch on the first day, the Army had dropped the Espionage Act and perjury charges in exchange for a guilty plea to 15 minor counts of mishandling defense information. In what remained of the trial, the defense argued for leniency in sentencing, presenting Nickerson as a patriot — which wasn’t difficult, as Nickerson was saying things like, “I can’t believe all this is happening to a man whose only crime is loving the Army too much.” Gathered journalists were frustrated as most of the trial moved behind closed doors (in one example, Ernst Stuhlinger offered 111 minutes of open testimony in support of Nickerson, then testified for another five hours in a secret session). After five days of hearings and only 43 minutes of deliberation, Nickerson’s sentence was handed down: he was fined $1,500, reprimanded and forbidden from exercising command for a year. The defense lawyers rushed to call this an acquittal, and it was clearly preferable to decades of jail time.

But Nickerson “visibly blanched” at the sentence. He had been advised to avoid antagonizing the judge and jury by mounting a strong defense of his actions. Instead, he thought it “would be best for [his] career to rely on the mercy of the court.” But in retrospect, he “worried about the wisdom” of this strategy. His career had been irrevocably damaged. He had lost his security clearance and fallen out of favor with his superiors. Soon, he was exiled to an Army base in Panama, where he was assigned the lowly task of inspecting construction work. By December 1957, six months after his court-martial, the Boston Globe was already describing Nickerson as a “forgotten man.” A few years later, he died in a car crash in New Mexico.

Leaks and overclassification are ubiquitous in American government. As early as 1948, journalist Bruce Catton declared that “our particular form of government wouldn’t work” without leaks. By the 1980s, according to a study by the Harvard Kennedy School’s Institute of Politics, some 42 percent of federal policymakers had leaked information to journalists. By now, it’s more or less assumed that leaks will happen; as legal scholar David Pozen wrote in a 2013 edition of the Harvard Law Review, “the United States government leaks like a sieve.” In leaking information to pursue a policy goal, Nickerson was simply practicing American politics as usual.

During Nickerson’s court-martial, Von Braun testified that much of the leaked material should never have been classified in the first place — some 90 percent of what the Army thought should be kept secret, he declared, wouldn’t have been classified by the Air Force. Since Truman established the modern classification system in 1951, there have been habitual complaints about the overclassification of government information. In 2004, for instance, Thomas Kean, chairman of the 9/11 Commission, testified that 75 percent of the classified information his panel reviewed should have been open to the public. Today, 77 million documents are classified each year, and some 4.2 million Americans require a security clearance to do their jobs. When so much information is classified, it is inevitable that some of it will be leaked.

Under these conditions, the Espionage Act’s broad provisions against disclosing national security information take on sweeping implications. A great deal of routine leaking is potentially illegal, which means federal prosecutors have to exercise discretion about which leaks to investigate and prosecute. With such discretion, the decision to prosecute, when it is made, can seem motivated more by political considerations than by the desire to protect important secrets of state. Nickerson himself felt that the severity of the charges against him was an effort to punish him for whistleblowing, and the prosecution’s decision to drop the charges in exchange for a lesser plea shows how much power the Espionage Act gives to government officials who want to regulate the flow of information to the public (in this regard, his case foreshadowed the experience of Thomas Drake, who faced similarly serious charges for whistleblowing on the National Security Agency).

At the same time, the regularity of security leaks means that government prosecutors must let many breaches of security slide. If one views Nickerson less as a whistleblower, and more as an ambitious “missile-man politician,” then the dropping of the Espionage Act charges makes him look less like Drake, and more like General David Petraeus. In 2011, we now know, Petraeus made eight black notebooks available to his biographer. “They are highly classified, some of them,” Petraeus told the writer before he gave her the documents. “I mean, there’s code-word stuff in there.” The notebooks contained classified information relating to covert officers, war strategy, code words and other matters. But as the Washington Post recently reported, the plans to prosecute Petraeus for violating the Espionage Act were quickly dropped. Like Nickerson six decades earlier, Petraeus pleaded guilty to a misdemeanor charge of mishandling classified documents.

Nickerson’s leak, in short, was of a kind common in American politics. But the crude power of the Espionage Act — the harshness of its penalties, and its sprawling reach — handles such ambiguity poorly. It gives the state the power to severely punish politically undesirable leakers, like Snowden, and to pardon friendlier figures. The system does a poor job of protecting national security secrets, but an excellent job of politically managing the flow of information to the public.

Nickerson was caught in this system when it was very much a novelty. In the midst of Nickerson’s trial, Willard Bascom wrote to the Washington Post to argue that despite the interest in missile politics, the affair was “more important as a symptom of fundamental difficulties,” and revealed a “rather erratic system that condones the release of information by one source while equivalent information is kept classified by another.” “Whether or not there is a 'leak,’” Bascom concluded, “depends more on who leaks it than on the character of the information — and most often, I suspect, the largest leaks are at the top.” Six decades later, little has changed.