Published February 22, 2008
CAMP PENDLETON, Calif. – CBS asked a judge Friday to throw out a subpoena for unaired news footage that the military says includes admissions of crimes in an attack that killed 24 Iraqi civilians in Haditha.
"It's incredibly important that we have an interview with the accused about the very event of which he is accused," Capt. Nicholas Gannon, a military prosecutor, said at a pretrial hearing for the suspect, Staff Sgt. Frank D. Wuterich.
The case is the biggest U.S. criminal prosecution involving civilian deaths to come out of the Iraq war.
But CBS attorneys told the judge, Lt. Col. Jeffrey Meeks, that it was in the public's interest for the subpoena to be quashed, or else potential sources could become more reluctant to talk to the media.
"It is not easy for journalists to have witnesses, who are central witnesses in cases such as these, to sit down and share their story with the general public," attorney Seth D. Berlin said. "If we become viewed as an arm of the government, nobody is going to do that."
The subpoena stems from an interview aired in a March 15, 2007, report on the "60 Minutes" news magazine on the November 2005 deaths in Haditha, Iraq.
Wuterich, 27, is scheduled to be court-martialed March 3. He faces voluntary manslaughter and other charges in the deaths, which happened after a roadside bomb hit a Marine convoy, killing a Humvee driver and wounding two other Marines.
Wuterich and a squad member allegedly shot five men at the scene, and Wuterich then allegedly ordered his squad into several houses, where they cleared rooms with grenades and gunfire, killing unarmed civilians.
In the interview, Wuterich recounted to CBS Correspondent Scott Pelley his recollection of the events that led to the deaths.
Gannon contended in court papers that in an unaired segment, Wuterich apparently admitted "that he did in fact order his men to `shoot first and ask questions later."'
But in its motion, CBS said the subpoena would be "unreasonable and oppressive," and turn a news organization into an investigative arm of the government.
"This fishing expedition is particularly inappropriate given the numerous other sources of information concerning the events underlying this court-martial," according to the motion.
California has one of the nation's most protective statutes shielding journalists from prosecutors' inquiries. The law generally allows journalists to decline to divulge unpublished material to state authorities, but the protection does not extend to federal courts, which include military courts.
CBS says testimony is available from witnesses, including members of Wuterich's squad who are not being prosecuted.
But prosecutors, who have previously said squad members are "far from cooperative," say it is apparent to them from Pelley's narration that Wuterich made admissions in unaired footage.