Military judge won’t make CBS hand over unaired footage

Friday, March 13, 2009

CAMP PENDLETON, Calif. — CBS News won a battle yesterday against Marine Corps prosecutors who wanted unaired outtakes of a “60 Minutes” interview with the key defendant in the killing of 24 Iraqis in 2005.

A military judge at Camp Pendleton denied a subpoena seeking all unaired footage from an interview with Staff Sgt. Frank Wuterich.

The judge, Lt. Col. Jeffrey Meeks, ruled that forcing the network to hand over that material would place the network in the role of being a government tool.

After seeing the footage, Meeks said the material did not contain anything that wasn't already available to prosecutors in documents produced by multiple investigations of the killings, the North County Times reported.

Wuterich, 28, of Meriden, Conn., is charged with nine counts of voluntary manslaughter and other allegations. They stem from his role leading a squad of Marines in an assault after a bombing in the Iraqi city of Haditha that killed one of his men on Nov. 19, 2005.

Military prosecutors say they believe the “60 Minutes” interview in late 2006 contains admission of crimes and argued that there is no case law extending First Amendment protections to journalists in military court matters.

“What's newsworthy to CBS and what is important to the government are not necessarily the same thing,” prosecutor Capt. Nick Gannon said. “It is a not a fishing expedition.”

A CBS spokeswoman did not respond to a request for comment in time for this story.

Prosecutors told the judge that they had not yet decided whether to appeal his ruling.

“There is a qualified newsgatherer’s privilege and it is applicable here based on concerns about a chilling effect on the press,” the North County Times quoted Meeks as saying. “The press has an interest in being able to prepare and preserve stories without being an investigative arm of the government.”

Meeks viewed the unaired material privately after an appellate court ruled that he incorrectly decided to reject the subpoena last year without first seeing what the tapes contained. CBS did not oppose that ruling.

Four Camp Pendleton officers and four enlisted men were charged with crimes at Haditha. All but Wuterich and the battalion commander at Haditha, Lt. Col. Jeffrey Chessani, have been exonerated.

The charges were dismissed in July 2008 after the court found that a four-star general overseeing the case was improperly influenced by an investigator.

Mark Zaid, an attorney for Wuterich, said he would ask the court to dismiss the charges against his client on the same grounds, but anticipated some delays because Meeks is retiring and a new judge will have to study up on the case.

No trial date has been set.

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