High military court orders judge to review CBS outtakes

Samantha Fredrickson | Reporter's Privilege | Feature | November 17, 2008

The saga continues over whether CBS has to turn over to the government footage of an interview with Marine Staff Sergeant Frank Wuterich discussing his role in the killing of a group of Iraqi citizens in Haditha, Iraq.

In a decision issued Monday, the U.S. Court of Appeals for the Armed Forces sent the case back to the military judge who had initially quashed the government’s subpoena, holding that the judge should have reviewed the tapes privately before making a decision.

Wuterich was leading a marine convoy near Haditha in November 2005 that killed 24 Iraqi citizens, including men, women and children as young as 2 years old, in the aftermath of a roadside bomb explosion. Wuterich was subsequently charged by the U.S. government with dereliction of duty and voluntary manslaughter.

In the course of the criminal investigation into Wuterich, the government sent a subpoena to CBS asking for the entire reel of footage from a 60 Minutes interview that aired last year.

In a 3-2 decision, the Court focused mainly on procedural issues. While the Court did not reach the question of whether the CBS tape is privileged, it did rule that because the tape might be important to the criminal investigation it should be reviewed privately by the judge before any questions of privilege are resolved.

“CBS conducted the interview knowing that it involved matters then under investigation. . . . The outtakes contain a majority of Appellant’s discussion of the charged offenses with CBS, and only CBS possesses those outtakes,” wrote Chief Judge Andrew Effron, who authored the majority opinion.

The court continued: “[The outtakes] constitute a potentially unique source of evidence that is not necessarily duplicated by any other material.”

CBS had argued that the account Wuterich gave the government was no different than the one he gave during the interview, and thus the outtakes were unnecessary to the investigation.