Friday, June 27, 2008

NYT reports CBS will pursue appeal of NMCCA's Wuterich opinion

Here's a link to a New York Times report that CBS will pursue an appeal of NMCCA's ruling reversing a military judge's order quashing a subpoena issued to CBS News for outtakes from an interview with SSgt Wuterich for 60 Minutes.


Cloudesley Shovell said...

So . . .

To which court will CBS News appeal?

Per Art. 67, only a JAG or an accused can go to CAAF. CBS is neither.

CAAF Rule 4(b) says that CAAF can entertain original writs for extraordinary relief. But CAAF must already have jurisdiction--the writ itself cannot create it. Where lies the already-existing jurisdiction? Or does the idea that CBS is the real party in interest somehow transform CBS into an "accused"?

I suppose the easiest way is for SSgt Wuterich to open the door to CAAF for CBS. But what if he has no standing, as NMCCA claims? Does he lose the right to petition CAAF? And if so, does that strip CAAF of jurisdiction?

Who knew the weaving of the tangled webs of jurisdiction could be so fun to watch. Will the resultant tapestry be pleasing to the eye, or will it look like something the dog barfed up on the basement rug?

CAAFlog said...

Sir Cloudesley,

Military appellate courts have in the past entertained writs by news organizations. See, e.g., ABC v. Powell, 47 M.J. 363 (C.A.A.F. 1997); San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F.C.C.A. 1996). Please note that I am not taking any position over whether CAAF would have jurisdiction if CBS were to file a writ -- I'm simply noting that in the past, military appellate courts have found they do have jurisdiction in such cases.

Also, there is no question that NMCCA can't bar SSgt Wuterich from filing a petition with CAAF or bar CAAF from hearing the case upon petition. Some of the very things that SSgt Wuterich would appeal are NMCCA's ruling that he didn't have standing, NMCCA's refusal to even consider his submissions, and NMCCA's treatment of him as a "nominal appellee." And, of course, a court always has jurisdiction to consider its own jurisdiction. If SSgt Wuterich files a petition, CAAF should certainly grant review to consider NMCCA's troubling decision.

Cloudesley Shovell said...

CAAFlog, excellent points. I think we are in fairly violent agreement at least as far as this case goes.

At the end of the day, I think CBS will appeal to that court where they think they'll have the greatest likelihood of success. I don't think CBS will be so concerned with whether CAAF ought to have jurisdiction. It will be interesting to see what transpires. If, for example, CBS goes to an Art. III court, will the gov't object and say CAAF has jurisdiction?

CAAF never addressed its jurisdiction in ABC v. Powell. AFCCA at least addressed it in San Antonio Express-News v. Morrow, but relied upon the exercise of general supervisory authority. That theory got shot down in Clinton v. Goldsmith. Also, both those cases were for public access to Art. 32 hearings. Looks like jurisdiction is a fairly open question in this particular context of a motion to quash a subpoena.

Just another example demonstrating the need for some statutory remedies, I think.

Anonymous said...

Based on its opinion in Denedo, CAAF has universal and unlimited jurisdiction. In any event, do you think CAAF would turn down CBS News and its accompanying press coverage (maybe CSpan would broadcast the oral argument) for as minor an issue as jurisdiction! LOL.

Anonymous said...

i believe it is a generally accepted principle, not only in a military jurisdiction, that for interlocutory matters involving right to a public trial the press has the same standing as the defendant.

Anonymous said...

Quashing a subpoena is the issue, not a public trial. CBS is only hiding the truth. Shades of Dan Rather.

CAAFlog said...

1700 Anon,

I hope you appreciate the irony of using an anonymous post as the vehicle to accuse someone else of "hiding."

May I safely assume that this was simply a snarky comment and not an invitation to rebut it with a discussion of the important point of principle concerning the possibility of a news-gatherer privilege at stake in this instance? (Even NMCCA's disappointing opinion in this case noted the possibility of such a privilege.)