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August 2nd,
2008 - Marine Corps Battles CBS in Brewing First Amendment Case |
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Marine Corps Battles CBS in Brewing
First Amendment Case September hearing in skirmish over outtakes of Haditha squad leader
interview By Mark Walker North County Times August 2, 2008 Camp Pendleton - The Marine
Corps is going to battle with CBS in what could become a prominent First
Amendment case stemming from one of the highest-profile incidents arising out
of the Iraq war. At issue is whether
government prosecutors should have access to outtakes from a "60
Minutes" interview of a Marine who in 2005 led his squad in the killing
of 24 Iraqi civilians, including several women and children. Legal experts and media
advocates say the chances of the Marine Corps prevailing over the revered
media giant are slim. Several news organizations
have joined CBS in its fight to keep prosecutors from seeing the outtakes of
the interview with the squad leader, Staff Sgt. Frank Wuterich. Those groups include CNN,
The Associated Press, the National Association of Broadcasters, NBC, National
Public Radio, The Washington Post, several newspaper chains and the Reporters
Committee for Freedom of the Press. In a brief filed with the
Court of Appeals for the Armed Forces in Washington, the groups say a lower
court ruling that compels the network to hand over unaired material from its
interview with Wuterich raises substantial First Amendment issues. The brief
was filed in advance of a September hearing "It is difficult enough
for journalists to convince reluctant sources to submit to rigorous
interviews," the media groups say in their brief filed July 21. "It
is even more challenging when the sources ... suspect that journalists may be
investigative arms of the government." The interview was conducted
by CBS reporter Scott Pelley before the Marine Corps filed charges in
December 2006 against Wuterich and seven other Camp Pendleton Marines tied to
the Haditha killings. In a declaration he filed
with the court, Pelley wrote that compelling reporters to hand over material
that wasn't broadcast or published could lead to decisions to stop pursuing
controversial stories. "The press might well
decide to avoid certain controversial subjects or subjects likely to lead to
criminal prosecutions," wrote Pelley, a veteran journalist who has
covered the White House, the Middle East and been a "60 Minutes"
correspondent since 1999. "Protection ... is essential to the effective
functioning of the press." ‘Fishing expedition’ There are apparently hours
of videotape shot but not used during the March 2007 "60 Minutes"
broadcast of its interview with Wuterich, who led his squad in a search for
insurgents that attacked his men with a roadside bomb and small-arms fire in
Haditha on Nov. 19, 2005. When Marine prosecutor Capt.
Nicholas Gannon argued for access to the interview in February, he said
Wuterich "apparently admits in an unaired segment that he did in fact
order his men to 'shoot first and ask questions later.' " In February, a military
judge at Camp Pendleton ruled that prosecutors' attempts to get the outtakes
amounted to a "fishing expedition." The judge, Lt. Col. Jeffrey
Meeks, said then that he did not believe the unaired material would shed any
new light on the allegations against Wuterich, who faces nine counts of
voluntary manslaughter and related offenses. Prosecutors appealed Meeks'
ruling, arguing that they suspected the outtakes contained material that
might implicate Wuterich and further strengthen their evidence against him. In June, the Navy-Marine
Corps Court of Criminal Appeals sided with the Marine Corps, directing Meeks
to view the outtakes in private to determine if there was any relevant
material and then rule on whether it should be shown to prosecutors. CBS promptly appealed the
finding to the higher military court. Lucy Dalglish, executive director
of the Reporters Committee for Freedom of the Press, said the Marine Corps is
misguided in its attempts to get the outtakes. "The judge said he
thought it was a fishing expedition and he was right," she said during a
telephone interview from her office in Washington. "This was a 26-minute
interview and if they had anything particularly outrageous it would have been
aired. If word went out that '60 Minutes' would turn over its outtakes no one
would ever talk to them and the public would lose because information would
start to dry up." A House version of a bill
now in Congress that would grant a shield to reporters from subpoenas in
similar cases would render the Marine Corps' effort moot. The Senate version
of the legislation, however, would not grant protection in the Wuterich case
outtakes. The bill was stalled in the Senate as of last week. Much of the argument coming
from CBS in advance of the scheduled Sept. 17 hearing before the Court of
Appeals for the Armed Forces is rooted in procedural issues. But a network
attorney said that even letting the judge see the outtakes could set a
dangerous precedent. "From the perspective
of the press, it is intrusive," attorney Lee Levine said during a
telephone interview last week. "That's why we feel the (lower) court has
lost its way." In its brief, CBS argues
that Meeks relied on existing military case law and its civilian equivalent
that generally limits the government from forcing reporters to disclose
material not published or broadcast. "Civilian courts ...
have had no difficulty applying these principles to quash subpoenas to
journalists, particularly where the subpoenaing party is merely speculating
about the value of the materials it seeks," the network says. The Navy-Marine Corps Court
of Appeals also exceeded its authority, CBS argues, in directing Meeks to
review the unaired material without first directing he consider reporter
privilege. Scott Silliman, a Duke
University law professor and director of the Center on Law, Ethics and
National Security, said there is at least one military justice case involving
the Air Force outtakes which were eventually ordered non-releasable. "It would appear that
CBS has a pretty strong argument," he said. ‘Shoot first’ Wuterich's attorneys have
said they agreed to the interview to "humanize" their client, who
had been portrayed in some media reports as leading his men in a wanton
rampage following the bombing that occurred during a resupply convoy,
destroying a Humvee and killing a lance corporal. Immediately after the
explosion, five men who emerged from a car that drove up to the convoy were
shot and killed. No weapons were found on any of those men or in their car
during a later search. Over the next few hours,
Wuterich and his squad from Camp Pendleton's 3rd Battalion, 1st Marine
Regiment stormed a series of nearby homes, resulting in the deaths of 19
others including several women and children. One of four officers charged
with failing to investigate the shootings was acquitted during a jury trial
at Camp Pendleton earlier this year. Charges against three other
officers were eventually withdrawn or dismissed, although the Marine Corps is
appealing the dismissal of charges against the battalion commander at
Haditha, Lt. Col. Jeffrey Chessani. He is charged with
dereliction of duty for failing to order a full-scale probe of the civilian
deaths. Of the four enlisted men
originally charged with murder in the shootings, charges have been withdrawn
or dismissed against all but Wuterich. The murder charges against him were
eventually amended to manslaughter. Wuterich's court-martial was
supposed to start in June but has been delayed indefinitely by the "60
Minutes" issue. He and Chessani remain on duty at Camp Pendleton pending
resolution of their cases. External link: http://www.nctimes.com/articles/2008/08/02/military/ze33f786e5e8b0735882574950061647b.txt |