A military appeals court has found that military courts should not recognize a reporter’s privilege, based on either the constitution or common law.
The decision overturns a decision by a military judge to quash a subpoena served on CBS for outtakes from a Sixty Minutes interview with Staff Sergeant Frank Wuterich, who has been accused of involvement in the killings of 24 civilians near Haditha, Iraq in 2005.
The court rejected CBS’s argument that the First Amendment creates a reporter’s privilege that applies in military courts, finding that such a privilege is not "required by or provided for" in the U.S. Constitution, as military rules of evidence require. The court found that the U.S. Supreme Court has rejected a First Amendment-based privilege.
The court also rejected a common law privilege, finding that there is no clear majority of federal courts that have recognized the privilege, particularly as it would apply to non-confidential-source cases, such as a subpoena for outtakes. Instead, there is "substantial controversy" over the nature of such a privilege, the court held.
Because the military judge had found that much of the material in three of eight segments of the interview were relevant to the case, the appellate court found that quashing the subpoena was inappropriate related to those segments.
This is the second appeal of the CBS subpoena in the Wuterich case. The military’s highest court ruled last November that the military judge would have to review the outtakes in chambers before deciding if they were relevant. After doing so, the judge quashed the subpoena, and military prosecutors appealed that decision.