Everybody's Watching CBS: Military Court Refuses To Recognize Reporter's Privilege In Haditha Massacre Appeal

All but two states have some type of reporter's privilege. Similarly, most federal courts have recognized some type of reporter's privilege as well. But what about military courts? Well, to this point, they haven't recognized a reporter's privilege, and that did not change with the recent opinion of the United States Navy-Marine Corps of Criminal Appeals in United States v. Wuterich, 2009 WL 2730890 (N.M.Ct.Crim.App. 2009). Reading between the lines of that opinion, however, I think that it is inevitable that military courts will eventually recognize some type of reporter's privilege.

In Wuterich, U.S. Marine Corps. Staff Sergeant Frank Wuterich was charged with dereliction of duty, voluntary manslaughter, aggravated assault, reckless endangerment, and obstruction of justice based upon his alleged actions during combat operations at or near Haditha, Iraq, on November 19, 2005, following an improvised explosive device attack on his miliray convoy. Those alleged actions included killing or participating in the killing of 24 civilian men, women, and children. 

Wuterich and others were interviewed for a 60 Minutes story regarding the incident, and the government later issued a subpoena to CBS seeking all of the recorded material from the 60 Minutes interview, including the "outtakes." CBS produced the broadcast segment of the 60 Minutes story but moved to quash the subpoena to the extent that it included the background interview “outtakes” which had not been broadcast.

After a lot of legal wrangling, the military judge eventually held

that a qualified reporter's privilege applied to military courts-martial, and that this privilege protected the outtakes from Government subpoenas....The military judge went on to articulate that, in order to overcome this privilege, the Government must demonstrate the material sought by the subpoena is highly material and relevant, necessary or critical to the Government's case, and not obtainable from other sources...Applying this test..., the military judge concluded that, although highly material and relevant, the DVDs [containing outtakes] were not critical to the Government's case, because they contain information already represented in statements possessed by the Government.

This ruling prompted the Government's appeal to the United States Navy-Marine Corps of Criminal Appeals. That court began by noting that under Military Rule of Evidence 501(a)(1), "[a] person may not claim a privilege with respect to any matter except as required by or provided for in ... [t]he Constitution of the United States as applied to members of the armed forces," And, according to the court, bcause the Supreme Court refused to recognize a broad, constitutionally based reporter's privilege in Branzburg v. Hayes, 408 U.S. 665 (1972), there could be no reporter's privilege under Military Rule of Evidence 501(a)(1).

This left the court with Military Rul of Evidence 501(a)(4), which allows military courts to recognize privileges "commonly recognized in the federal criminal courts." And, as noted, most federal courts have recognized some version of the reporter's privilege. The problem for CBS, however, was that not enough federal courts have recognized the right version of the privilege for its purposes.

According to the court,

Recognition of a reporter's privilege in the criminal context, however, has most often been in cases of confidential sources or material....Such a privilege is much less often found to apply as against the subpoena of non-confidential sources or material. Indeed, only four Circuit Courts of Appeal have recognized a “reporter's privilege” in criminal cases involving non-confidential material: the First, Second, Third, and Eleventh Circuits....

While the Ninth Circuit and the District of Columbia Circuit have also applied the reporter's privilege in the criminal context, it has been limited to cases involving confidential material....Meanwhile, the Fourth, Fifth, Sixth, and Seventh Circuits have all rejected application of the reporter's privilege in criminal cases when non-confidential material is at stake....Lastly, the existence and applicability of the reporter's privilege in criminal cases involving non-confidential material remains unresolved in the Eighth and Tenth Circuit.

Therefore, based upon the "'substantial controversy,' over the legitimacy and parameters of the reporter's privilege in the federal courts," the court refused to recognize a reporter's privilege for military courts, leading to reversal of the military judge's order. Reading between the lines of the opinion, though, it seems clear that the identified controversy is not over whether a reporter's privilege exists but over whether it applies to non-confidential sources, such as the sources in Wuterich. Thus, given a case with a confidential source, I would expect the military courts to recognize a reporter's privilege.

-CM