MILITARY: Marine Corps battles CBS in brewing First Amendment case

September hearing in skirmish over outtakes of Haditha squad leader interview

By MARK WALKER - Staff Writer | Saturday, August 2, 2008 6:05 PM PDT ∞

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.

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

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