'60 Minutes,' Rolling Stone fight military subpoenas in Italy jet

crash trial

NORTH CAROLINA–In early January, Rolling Stone magazine and CBS’s ’60 Minutes’ filed motions to quash subpoenas issued from a military court in Camp Lejeune demanding unpublished and unbroadcast information obtained from interviews with U.S. Marines about an incident in the Italian Alps when a military jet severed a ski-gondola cable.

Both Rolling Stone and ’60 Minutes’ attacked the constitutionality of the military prosecutor’s demands for all materials, including outtakes and notes, from interviews with the Marines involved in the February 1998 accident that left 20 people dead. Both asserted the subpoenas were inconsistent with the First Amendment’s protection of a free press.

The military judge presiding over the court-martial proceedings said during a pre-trial hearing that he is not inclined to force Rolling Stone and 60 Minutes to produce the subpoenaed materials and does not intend ‘to give the government unfettered discovery,’ according to Reuters reports.

The subpoenas were issued in connection with court-martial proceedings against the plane’s pilot and its navigator on charges of involuntary manslaughter and obstruction of justice.

The targeted journalists are urging the military court to strike down the subpoenas because they demand disclosure of materials protected by a qualified privilege under the First Amendment and because disclosure would be ‘unreasonably oppressive’ under court- martial rules.

The media organizations argued that the subpoenas, which demanded all materials gathered by journalists who spoke with Marines about the incident, demanded materials whose relevance and evidentiary value have not been established.

They also argued that since the Marines interviewed have given written statements to military investigators, and because at least one of the Marines who was in the plane is cooperating with prosecutors under an immunity deal, the information subpoenaed is available from other sources, and is also arguably inadmissible as evidence due to its cumulative nature.

The journalists further objected to the subpoenas on the grounds that compliance would remove them from the role of ‘neutral observer’ and would discourage sources from speaking to them in the future.

Rolling Stone published an article in its Dec. 10, 1998 issue about the deadly flight, based on an interview with the pilot charged in the court-martial proceeding. Portions of that interview were off- the-record and subject to a promise of confidentiality.

The military also targeted ’60 Minutes’ because CBS reporter Mike Wallace interviewed the pilot for an upcoming program. The prosecution asserts that the videotapes of the interview might aid its prosecution efforts. The ’60 Minutes’ report is scheduled to air in late January.

Military courts are not bound by the same procedures as federal prosecutors in seeking journalists’ materials, and thus do not have to seek the approval of the U.S. attorney general before subpoenaing members of the media. In addition, failure to comply with the subpoenas, if not quashed, could be punished by a fine or imprisonment, or the subjects of the subpoenas could be taken into custody and brought before the military court under a warrant of attachment.

The trial stage of court-martial proceedings against the pilot and navigator is scheduled to begin the first week of February. (United States v. Ashby; Counsel for Rolling Stone: Laura Handman, Washington, D.C.; Counsel for 60 Minutes: Floyd Abrams, New York)