Thursday, September 3, 2009

Military Court Marshals No Support for Reporter's Privilege

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In a case of first impression, a military appeals court rejected First Amendment and common law arguments, holding that military courts do not recognize reporter's privilege.

The decision by the U.S. Navy-Marine Corps Court of Criminal Appeals in U.S. v. Frank D. Wuterich (NMCCA 200800183) reversed a military judge's ruling concerning the defendant staff sergeant, whom the government alleges was involved in the 2005 killing  of 24 civilians in Haditha, Iraq. The judge had quashed a subpoena to CBS's 60 Minutes for outtakes from the program's interview with Sgt. Wuterich.

The appeals court concluded: "the facts presented in this case do not support the recognition of a reporter's privilege under the Military Rules of Evidence, and that the military judge, therefore, erred as a matter of law in quashing the Government's subpoena."

Reporter's privilege is the notion that journalists have at least a limited right to withhold information gathered from news sources promised confidentiality, if asked to reveal it by a court. In Branzburg v. Hayes, 408 U.S.665 (1972), a majority of the Supreme Court found a limited constitutional reporter's privilege exists in certain instances, though not if the information sought is relevant, essential to a case and unavailable from other sources.
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