- The Washington Times - Saturday, February 23, 2008

CAMP PENDLETON, Calif. (AP) — A judge yesterday tossed a subpoena for unaired “60 Minutes” footage that the military says is vital in its effort to prosecute a Marine sergeant in an attack that killed 24 Iraqi civilians.

Military judge Lt. Col. Jeffrey Meeks said prosecutors had other avenues to get the evidence needed in the case against Staff Sgt. Frank D. Wuterich. Prosecutors say the interview contained admissions of crimes in the attack.

CBS attorneys had told the judge 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 on a March 15, 2007, report on “60 Minutes” about the November 2005 deaths in Haditha, Iraq.

Sgt. Wuterich, 27, of Meriden, Conn., 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.

Sgt. Wuterich and a squad member are accused of shooting five men at the scene, and then storming several houses, where they cleared rooms with grenades and gunfire, killing unarmed civilians.

In the interview, Sgt. Wuterich recounted to CBS correspondent Scott Pelley his recollection of the events that led to the deaths.

Capt. Nicholas Gannon, a military prosecutor, had contended in court papers that in an unaired segment, Sgt. Wuterich apparently admitted “that he did in fact order his men to ‘shoot first and ask questions later.’ ”

But in its motion, CBS had 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 The law generally allows journalists to decline to divulge unpublished material to state authorities, but the protection does not extend to federal courts, which include military courts.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 Sgt. 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 Mr. Pelley’s narration that Sgt. Wuterich made admissions in unaired footage.


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