Posted on 08/03/2008 8:41:40 AM PDT by RedRover
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.
It seems the enemedia has found themselves in a position where they have to support the rights of the accused instead of violate them.
The presumption of innocence meant nothing to them when the despicable Murtha called the Haditha Marines guilty in May of 2006.
Spot on, jaz. Hard to believe I’m siding with the media and against the Marine Corps on this one. The Corps should drop this and give SSgt Wuterich his day in court.
I distinctly remember hearing this from a drill sergeant in the 1960's. The saying was couched in the context, "whenever in doubt."
The media doesn’t give a damn about the rights of Wuterich. They’re only concerned with their rights and what they see as an opening of a Pandora’s box if they have to give up these outtakes.
Exactly right, but it’s ironic because of the way they reported this from the start.
I believe that was a very good drill sergeant, he had a lot of common sense.
Nah, not this time!
The prosecution wants the outtakes because, they claim, SSgt Wuterich may have made an admission of guilt that CBS never aired.
In reality, CBS never would have held something like that back. And the Marine Corps will never win a court case against CBS. So it just seems like a stalling tactic for a case that's all but lost.
So this isn't a case of the Marine Corps wanting to set the record straight about a false story. If that was their interest, there are thousands to choose from--starting with the original story by "Taliban" Tim McGirk.
BUMP
There has to be a difference in the type of statements made. Or in the way they are made. Like I can say to you at any time “I like ice cream” or I can tell Pelley this, and it is just hearsay. But if I put my hand on a bible, look the judge square in the eye and say “I swear to God I like ice cream” that one might stick with/to me.
Anything Wuterich said to CBS is just hearsay as far as I can see. Don’t/shouldn’t/can’t mean a fig in court.
You have spelled out what's going on here with this entire post quite well. I would add that I would put the emphasis on Marine Corps prosecutors and not the Corps in general although I am certain that is your intent. Many in the Corps have acted quite nobly throughout all of this.
Good point, I was thinking the same thing when I read that. It is the Marine Corps prosecutors that are hell bent for a conviction.
Seems to me, if there had been anything said like that, 60 minutes would have shown it and not edited it out. I can’t see them passing on an opportunity to make soldiers look bad.
Exactly! CBS would NEVER suppress an admission of wrong-doing by anyone in uniform.
“Shoot first and ask questions later.”
And SSgt Wuterich’s message was clearly couched in the realization that hesitation would get someone killed.
Incidentally, is there anyplace where the words “shoot first and ask questions later” are specifically ruled illegal to be spoken? If they are simply synonymous with saying “don’t hesitate and get yourself killed,” then what is wrong with them?
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