United States v. Wuterich ( 2008 )


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  •                UNITED STATES, Appellee
    v.
    Frank D. WUTERICH, Staff Sergeant
    U.S. Marine Corps, Appellant
    No. 08-6006
    Crim. App. No. 200800183
    AND
    CBS BROADCASTING INC., Petitioner
    v.
    NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS,
    THE UNITED STATES OF AMERICA, and
    Frank D. WUTERICH, Staff Sergeant, U.S. Marine Corps,
    Respondents
    No. 08-8020/MC
    AND
    In re Frank D. WUTERICH
    No. 08-8021/MC
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    United States Court of Appeals for the Armed Forces
    Argued September 17, 2008
    Decided November 17, 2008
    EFFRON, C.J., delivered the opinion of the Court, in which BAKER
    and STUCKY, JJ., joined. RYAN, J., filed a separate dissenting
    opinion, in which ERDMANN, J., joined.
    Counsel
    For Appellant/Petitioner Wuterich: Lieutenant Kathleen L.
    Kadlec, JAGC, USN (argued); Colonel Dwight H. Sullivan, USMCR,
    and Major Christian J. Broadston, USMC (on brief).
    For Petitioner CBS Broadcasting Inc.: Lee Levine, Esq.
    (argued); Seth D. Berlin, Esq. (on brief).
    For Appellee/Respondent United States:                     Lieutenant Timothy H.
    Delgado, JAGC, USN (argued).
    For Amicus Curiae in Support of Petitioner CBS Broadcasting
    Inc.: Clifford M. Sloan, Esq., Amy R. Sabin, Esq., and David W.
    Foster, Esq. (on brief), Skadden, Arps, Slate, Meagher & Flom
    LLP.
    Military Judge:          Jeffrey G. Meeks
    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    Chief Judge EFFRON delivered the opinion of the Court.
    The present case concerns three filings arising out of
    United States v. Wuterich, a pending court-martial convened at
    Camp Pendleton, California.                United States v. Wuterich, No. 08-
    6006, is a petition for grant of review under Article 67(a)(3),
    Uniform Code of Military Justice (UCMJ), 
    10 U.S.C. § 867
    (a)(3)
    (2000), filed by Staff Sergeant (SSgt) Frank D. Wuterich
    (Appellant), the accused in the pending court-martial.                             In re
    Wuterich, No. 08-8021, is a petition for extraordinary relief
    filed by SSgt Wuterich under the All Writs Act, 
    28 U.S.C. § 1651
    (a) (2000).          CBS Broadcasting Inc. v. United States, No. 08-
    0820, is a petition for extraordinary relief filed by CBS
    Broadcasting Inc., the recipient of a subpoena in the pending
    court-martial.         On September 17, 2008, we held a consolidated
    hearing on these three filings.
    The consolidated cases involve a ruling by the military
    judge in the pending court-martial.                    See infra Part I.
    Appellant faces charges of voluntary manslaughter and other
    offenses related to the deaths of civilians in Haditha, Iraq.
    During the period in which the civilian deaths were under
    investigation, Appellant provided an interview to CBS
    Broadcasting Inc. regarding the events on the date of and in the
    place of the charged offenses.                 CBS subsequently broadcast a
    portion of the interview as part of the 60 Minutes television
    3
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    program.      The Government issued a subpoena to CBS that included
    a request for the outtakes -- the portions of the interview
    given by Appellant that were not included in the broadcast.                                CBS
    declined to provide the outtakes and filed a motion to quash the
    subpoena.       The military judge, without reviewing the content of
    the outtakes, granted the motion to quash the subpoena.                              The
    Government appealed under Article 62, UCMJ, 
    10 U.S.C. § 862
    (2000), which provides authority for interlocutory government
    appeals similar to the authority available in federal civilian
    criminal prosecutions under 
    18 U.S.C. § 3731
     (2000).
    The present appeal primarily involves two issues.                           First,
    whether the military judge’s ruling is subject to appeal under
    Article 62.        Second, whether the military judge erred by
    granting the motion to quash the subpoena without first
    conducting an in camera review of the contents of the requested
    material.
    This Court consistently has looked to the decisions of the
    federal courts under section 3731 for guidance in interpreting
    the parallel provisions of Article 62.                     See infra Part III.B.1.
    Under those decisions, which provide important guidance limiting
    such review, a ruling that quashes a subpoena is subject to
    interlocutory appellate review.                  See infra Part III.B.2.
    Likewise, those decisions provide guidance as to the
    circumstances in which it is appropriate for the trial court to
    4
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    conduct an in camera review.                See infra Part III.D.              For the
    reasons set forth below, we conclude that the ruling of the
    military judge was subject to appeal under Article 62.                             We
    further conclude that it was an abuse of discretion for the
    military judge to quash the subpoena without first conducting an
    in camera review of the requested materials.                        In our decretal
    paragraph, we order the military judge to review the requested
    material prior to ruling on the motion to quash the subpoena.
    Part I summarizes the circumstances leading up to the
    current appeal.          Part II describes the issues set forth in each
    of the filings.          Part III discusses the procedural and
    substantive issues raised by the filings.                       Part IV sets forth
    our decision.
    I.    BACKGROUND
    A.      THE CHARGES AT THE PENDING COURT-MARTIAL
    The trial of SSgt Wuterich concerns the alleged unlawful
    killing of civilians during military operations in Haditha,
    Iraq, on November 19, 2005.                During an investigation into the
    events in Haditha, Appellant provided a statement on February
    21, 2006, concerning this incident and his role.
    Following further investigation, charges against Appellant
    were referred for trial by court-martial on December 27, 2007.
    The pending charges allege dereliction of duty, voluntary
    5
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    manslaughter, aggravated assault, reckless endangerment, and
    obstruction of justice, offenses under Articles 92, 119, 128,
    and 134, UCMJ, 
    10 U.S.C. §§ 892
    , 919, 928, 934 (2000).
    B.      STATEMENTS PROVIDED BY APPELLANT TO CBS REGARDING THE
    CHARGED OFFENSES
    On March 18, 2007, the CBS television program 60 Minutes
    broadcast a segment entitled “The Killings in Haditha; Staff
    Sergeant Frank Wuterich discusses what the Marines did the day
    24 Iraqi civilians were killed.”                    At the outset of the
    broadcast, the CBS correspondent offered the following
    introduction:
    On November 19th, 2005, a squad of United
    States Marines killed 24 apparently innocent
    civilians in an Iraqi town called Haditha.
    The dead included men, women and children as
    young as two. Iraqi witnesses say the
    Marines were on a rampage, slaughtering
    people in the street and in their homes.
    And in December, four Marines were charged
    with murder. Was it murder? Was Haditha a
    massacre? A military jury will decide, but
    there’s no question that Haditha is symbolic
    of a war that leaves American troops with
    terrible choices. The Marine making those
    choices in Haditha was a 25-year-old
    sergeant named Frank Wuterich. He’s charged
    with 18 murders, the most by far, and he’s
    accused of lying on the day that it
    happened. Wuterich faces life in prison.
    None of the Marines charged with murder has
    spoken publicly about this, but tonight
    Staff Sergeant Wuterich says he wants to
    tell the truth about the day he decided who
    would live and who would die in Haditha.
    6
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    The segment included questions to Appellant by CBS correspondent
    Scott Pelley, statements by Appellant, observations by Mr.
    Pelley regarding Appellant’s statements, other commentary by Mr.
    Pelley, and statements by other individuals.                        The segment
    consisted of about one-half hour of broadcast time.
    The statements broadcast by CBS were made during an on-
    camera interview with Appellant conducted by Mr. Pelley in
    October 2006.         According to Mr. Pelley, “During our interview,
    Staff Sergeant Wuterich recounted the events of the incident at
    Haditha.”       The precise length of Appellant’s interview with CBS
    is not set forth in the record.                  Defense counsel indicated on
    the record that the interview lasted for “hours,” and the
    military judge referred to representations that there were
    “several hours” of outtakes.                These statements have not been
    challenged on appeal.             Subsequent to Appellant’s meeting with
    Mr. Pelley, CBS selected portions of the interview for
    presentation during the broadcast.
    C.     THE SUBPOENA FOR APPELLANT’S STATEMENTS TO CBS
    The prosecution issued a subpoena to CBS, dated January 16,
    2008.     See Rule for Courts-Martial (R.C.M.) 703.                        In pertinent
    part, the subpoena required CBS “to deliver any and all video
    and/or audio tape(s), to include out-takes and raw footage, of
    any and all interviews and/or statements, oral comments, and/or
    oral communications or nonverbal acts, actions, and/or
    7
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    acknowledgements made by Staff Sergeant Frank D. Wuterich,
    United States Marine Corps, recorded by or for, or in the
    possession of, CBS News.”               The subpoena also noted that “SSgt
    Frank D. Wuterich is a criminal defendant and any/all statements
    made by him or his defense counsel concerning his actions could
    be deemed to be admissions and admissible at the trial of the
    facts . . . .”
    CBS moved to quash the portion of the subpoena that sought
    production of the unaired footage.                   In support of the motion,
    CBS cited R.C.M. 703(f)(4)(C), which authorizes the military
    judge to require that a subpoena be withdrawn or modified if it
    is “unreasonable or oppressive.”                    CBS also contended that the
    subpoena should be quashed because the Government could not meet
    its burden of showing that production of the unaired footage was
    required under “a qualified reporter’s privilege that is rooted
    in both the First Amendment . . . and the common law.”                             As an
    alternative to the motion to quash the subpoena, CBS moved that
    the military judge issue “a protective order, pursuant to R.C.M.
    701(g)(2), precluding the Government from obtaining the
    materials sought by the subpoena.”                   CBS agreed to provide and
    authenticate a copy of the segment broadcast on 60 Minutes.
    Responding to the CBS motion, the prosecution asserted that
    the subpoena reflected a good faith determination that the
    outtakes contained admissions from Appellant that were relevant,
    8
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    material, and necessary.              The prosecution contended that the
    existence of a reporter’s privilege represented a minority view
    among the federal courts and that, even under the rulings of
    those courts that had found a qualified privilege, the subpoena
    should not be quashed.
    The prosecution and CBS submitted detailed briefs to the
    military judge, including appendices directed to the question of
    whether the information sought in the outtakes was cumulative of
    evidence otherwise in the Government’s possession.                           The military
    judge reviewed the 60 Minutes broadcast, but he did not obtain
    and review the unaired outtakes that were the subject of the
    motion to quash.
    The defense did not submit a brief on the CBS motion to
    quash.     When the military judge asked whether the defense had a
    position on the motion to quash, defense counsel responded:
    “No, Your Honor.”
    During a subsequent colloquy with trial counsel, the
    military judge commented to trial counsel that after viewing
    the 60 Minutes broadcast, “I’m having a hard time seeing what it
    is you think that’s there that’s not already there.”                            Trial
    counsel responded that the outtakes could provide the
    prosecution with the following information about Appellant’s
    broadcast statements:
    9
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    The background to those comments. The
    backdrop for his rational[e]. The in-
    context expressions of the accused in the
    context of the interview. Not the snippets.
    Not the sound bites. Not the portion that
    has been edited for broadcast. But the
    context. The totality of his expressions of
    his conduct, and his rational[e] for his
    conduct and the conduct on the part of his
    Marines.
    The military judge then asked defense counsel what position
    the defense would take at trial if the prosecution offered into
    evidence Appellant’s statements from the 60 Minutes broadcast.
    Defense counsel responded that he would object if the
    prosecution sought to admit only the broadcast portions of the
    interview:       “I would assert the doctrine of completeness [under]
    M.R.E. 106 and ask that it all be there for context.”                             At that
    point, the military judge asked counsel for CBS what position
    CBS would take if the defense asked for the complete interview.
    Counsel for CBS responded that “we would, I suspect, file a
    similar motion to quash,” depending on the state of the record
    at the time, among other factors.                   He further noted that the
    burden to overcome the privilege asserted by CBS would rest with
    the defense, although the balance might be different in the
    context of a defense request.
    Defense counsel requested permission to address the issue,
    noting that the defense was not “requesting that these outtakes
    be admitted [at] trial.”              Defense counsel further emphasized
    10
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    that “we are not a party to the dispute that’s going on today.
    And we are also not required to assist the government in
    acquiring its evidence or the evidence it thinks it needs.
    That’s never our duty . . . .”
    The military judge did not indicate how he might rule if
    the defense were to offer a motion to compel introduction of the
    interview outtakes under Military Rule of Evidence (M.R.E.) 106.
    Instead, he indicated that he would provide both the prosecution
    and counsel for CBS with the opportunity to brief that issue
    should it arise in the future.
    At the conclusion of arguments on the motion, the military
    judge granted the motion to quash the subpoena on the grounds
    that “the requirement of necessity has not been met.”                             See
    R.C.M. 703(f)(1) (“Each party is entitled to the production of
    evidence which is relevant and necessary.”).                        The military judge
    took note of “the representation that there are several hours of
    outtakes in the possession of CBS which contain information
    concerning the accused’s view of the events that occurred on the
    19th of November of 2005.”               He also observed that the outtakes
    “could be admissible into the evidence as statements of the
    accused under Military Rule of Evidence 801(d) [admissibility of
    statements by a party-opponent].”                   The military judge concluded,
    however, that “with respect to the outtakes, the contents of the
    accused’s comments are speculative at this point and the court
    11
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    is concerned that the subpoena in this case likely qualifies as
    a fishing expedition.”
    The military judge determined that production of the
    requested information was not necessary because “the information
    desired here by the government from CBS would be cumulative with
    what is already in the hands of the government.”                          See R.C.M.
    703(f)(1) Discussion (noting, in the nonbinding commentary
    accompanying the rule, that “[r]elevant evidence is necessary
    when it is not cumulative and when it would contribute to a
    party’s presentation of the case in some positive way on a
    matter in issue”).           In the course of reaching his conclusion on
    cumulativeness, the military judge considered the availability
    to the prosecution of statements by Appellant broadcast in the
    60 Minutes segment; other statements made by Appellant prior to
    trial; statements made by members of his unit; and the forensic
    evidence, photographs, and other physical evidence obtained from
    the scene of the charged offenses.
    The military judge also addressed the question of whether
    CBS could rely on a newsgathering privilege, stating that he was
    persuaded that such a privilege existed “under federal common
    law.”     He added, however, that it was not necessary to base his
    decision on such a privilege because any motion to quash that
    met the “lower standard” of R.C.M. 703 would necessarily meet
    12
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    “the greater standard required for disclosure” under a qualified
    reporter’s privilege.
    The prosecution asked the military judge to reconsider his
    ruling “and order an in camera inspection to determine whether
    or not the material in question is in fact cumulative . . .
    given the fact that the military judge had not had an
    opportunity to review” the material.                    See R.C.M. 703(f)(4)(C)
    (providing that when the recipient of a subpoena requests
    relief, “the military judge may direct that the evidence be
    submitted to the military judge for an in camera inspection to
    determine whether such relief should be granted”).                           The military
    judge denied the motion without explanation.                        The Government
    appealed the ruling to the Court of Criminal Appeals under
    Article 62, UCMJ, 
    10 U.S.C. § 862
     (2000).                       The United States
    Navy-Marine Corps Court of Criminal Appeals vacated the ruling
    of the military judge and remanded the case for further
    proceedings.        United States v. Wuterich, 
    66 M.J. 685
    , 691-92 (N-
    M. Ct. Crim. App. 2008).
    II.     THE PENDING PROCEEDINGS
    The present consolidated case addresses three pending
    filings that seek review of the decision by the Court of
    Criminal Appeals.           In United States v. Wuterich, No. 08-6006,
    Appellant has filed a petition for grant of review under Article
    13
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    67(a)(3), UCMJ.          On Appellant’s petition, we have granted review
    of the following issues:
    I.     Whether the lower court erred in
    holding that it has jurisdiction to
    entertain the Government’s challenge of
    a discovery ruling pursuant to Article
    62, UCMJ.
    II.    Whether the lower court erred in
    holding that the Appellant did not have
    standing as petitioner/appellee and
    thereby violated Appellant’s statutory
    and constitutional right to counsel.
    In a related case, In re Wuterich, No. 08-8021, Appellant
    filed a petition for extraordinary relief under 
    28 U.S.C. § 1651
    (a), as an alternative, in the event that we determined
    Appellant lacks standing to appeal under Article 67(a)(3), UCMJ.
    In view of our determination, infra Part III.A., that Appellant
    has standing to appeal under Article 67(a)(3), UCMJ, we deny the
    writ petition as moot.
    The third filing, CBS Broadcasting Inc. v. United States,
    No. 08-0820, is a petition for extraordinary relief to obtain
    review of the decision by the Court of Criminal Appeals.                              CBS
    filed this writ as an alternative to reliance on Appellant’s
    petition for grant of review under Article 67(a)(3), UCMJ, as
    the vehicle for reviewing the decision of the court below.                               In
    the writ petition, CBS suggested that the merits of the decision
    by the lower court could be addressed properly during
    consideration of Appellant’s petition for review under Article
    14
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    67(a)(3), UCMJ.          We agree, and deny the CBS writ petition as
    moot.
    The Government appeal under Article 62 automatically stayed
    the proceedings before the court-martial pending disposition by
    the Court of Criminal Appeals.                 See R.C.M. 908(b)(4).              The Court
    of Criminal Appeals subsequently returned the case for further
    proceedings before the court-martial.                     66 M.J. at 691-92.            Our
    Court has not ordered a stay of the pending court-martial
    proceedings.        See R.C.M. 908(c)(3).              Neither party has asked us
    to issue a stay or otherwise take action with respect to the
    status of the court-martial.
    III.     DISCUSSION
    In the present case, Appellant -– knowing of the
    investigation into the events in Haditha -- granted an interview
    to CBS Broadcasting Inc.              CBS, which was aware of the ongoing
    investigation, focused the interview on the events occurring on
    the date and in the place of the matters under investigation.
    CBS broadcast some, but not all, of the statements made by
    Appellant during the interview.                  In the nationally televised 60
    Minutes program, CBS stated that Appellant wanted “to tell the
    truth about the day he decided who would live and who would die
    in Haditha.”
    15
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    At this stage in the appellate proceedings, Appellant
    neither contests the voluntariness of the statements made during
    his CBS interview about the events in Haditha nor claims any
    privilege that would preclude use of his statements to CBS in
    the pending court-martial.               The majority of the statements made
    by Appellant during the CBS interview, however, are not now
    available for introduction into evidence at the court-martial.
    In response to a Government subpoena for tapes of Appellant’s
    entire interview, CBS produced only the broadcast portion.                               It
    declined to provide the court-martial with the outtakes, which
    contained the majority of Appellant’s interview statements.
    On the record before us, only CBS has access to Appellant’s
    full interview regarding the events in Haditha.                          Only CBS -- an
    entity that is not a party to the pending court-martial -- is in
    a position to assess whether the statements in the outtakes are
    exculpatory, inculpatory, or otherwise necessary to enhance the
    significance of other statements made by Appellant.
    The military judge ruled that the Government could not have
    access to the majority of statements made by the accused in his
    interview because the military judge concluded that those
    statements -- which he had not reviewed -- were cumulative in
    relationship to other evidence available to the Government.                                The
    military judge did not explain on the record how he was able to
    16
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    assess the content and quality of statements contained in the
    outtakes that he had not reviewed.
    Appellant and Petitioner-CBS each contend that the military
    judge’s ruling was not appealable under Article 62, UCMJ, the
    statute governing prosecution appeals.                     Further, each contends
    that the ruling by the military judge, even if subject to
    appeal, did not constitute an abuse of discretion.                           In addition,
    Appellant contends that the lower court erred in ruling that he
    did not have standing to participate in the appellate
    proceedings.        Section A of this discussion addresses standing.
    Section B discusses government appeals in criminal cases.
    Section C considers the Government appeal in the present case.
    Section D discusses the military judge’s decision that
    production of the outtakes was not necessary because the
    evidence therein was cumulative.                    Section E addresses further
    proceedings.
    A.    STANDING
    After the military judge quashed the Government’s subpoena,
    the Government filed an appeal under Article 62, UCMJ.
    Appellant filed a motion to dismiss on the grounds that the
    military judge’s ruling was not appealable under Article 62,
    UMCJ.
    The Court of Criminal Appeals declined to consider
    Appellant’s filings on the grounds that Appellant had no
    17
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    standing to participate in the Government’s appeal under Article
    62, UCMJ.       Wuterich, 66 M.J. at 688-89.                 The Court of Criminal
    Appeals noted that defense counsel had asserted at trial that
    SSgt Wuterich was not a party to the dispute between CBS and the
    Government.        Id. at 688.         The court primarily relied on cases
    involving the concept of standing under the Fourth Amendment, as
    well as cases involving privileges and third-party subpoenas.
    See id. at 688-89.
    The jurisdictional concept of standing normally concerns
    the limitation of the judicial power of the United States to
    “[c]ases” and “[c]ontroversies.”                    U.S. Const. art. III, § 2.
    See, e.g., Sprint Communc’ns Co. v. APCC Servs., Inc., 
    128 S. Ct. 2531
    , 2535 (2008) (summarizing the requirements for a
    plaintiff in civil litigation to establish standing -- an injury
    in fact, causation, and redressability).                      This Court, which was
    established under Article I of the Constitution, has applied the
    principles from the “cases” and “controversies” limitation as a
    prudential matter.           See United States v. Chisholm, 
    59 M.J. 151
    ,
    152 (C.A.A.F. 2003).
    The evidentiary concept of standing in criminal cases
    concerns the issue of whether a defendant has a sufficient
    interest in the object of a search, a claim of privilege, or
    other evidentiary matter to prevail on the merits of the
    objection.       See, e.g., Rakas v. Illinois, 
    439 U.S. 128
    , 134-40
    18
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    (1978); United States v. Johnson, 
    53 M.J. 459
    , 461-62 (C.A.A.F.
    2000); United States v. Jones, 
    52 M.J. 60
    , 63-64 (C.A.A.F.
    1999).     These cases involve the criteria used to assess the
    merits of a criminal defendant’s evidentiary claims, not the
    right of a defendant to participate as a litigant in the
    assessment of those claims.
    Appellant did not initiate the present litigation.                            He is a
    defendant in a criminal case brought by the United States.
    Trial defense counsel’s comment regarding the dispute between
    the Government and CBS was offered in the context of counsel’s
    position that the defense had no obligation to assist the
    Government in obtaining the evidence from CBS.                         Defense counsel
    expressly addressed the interest of Appellant in the requested
    material under the rule of completeness of M.R.E. 106.                             See
    supra Part I.C.          The position articulated by trial defense
    counsel before the military judge underscores the direct
    interest of Appellant in the scope of any ruling at trial or on
    appeal regarding the evidence that would be available for
    consideration at this trial.
    Appellant sought to persuade the Court of Criminal Appeals
    that the military judge’s order was not subject to appeal under
    Article 62, and that the case should proceed with a trial on the
    merits.      In so doing, Appellant invoked his direct interest in
    prompt disposition of the charges, a matter expressly addressed
    19
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    in Article 62, UCMJ.            Although it would have been appropriate
    for the Court of Criminal Appeals to consider the relationship
    of Appellant to the requested material for purposes of assessing
    how much weight, if any, to accord Appellant’s views on the
    motion to quash the subpoena, it was not appropriate to deprive
    him altogether of the opportunity to participate in appellate
    litigation having direct consequences on the prompt disposition
    of criminal proceedings brought against him by the United
    States.
    As a result of the lower court’s erroneous view of
    standing, Appellant did not have the opportunity to participate
    in the appellate proceedings before that court.                          Under these
    circumstances, we vacate the decision of the court below in our
    decretal paragraph.            In view of the pending court-martial
    proceedings, and because this case involves an issue of law that
    does not pertain to the unique factfinding powers of the Court
    of Criminal Appeals, we shall review directly the decision of
    the military judge without remanding the case to the lower
    court.     See United States v. Shelton, 
    64 M.J. 32
    , 37 (C.A.A.F.
    2006) (“When reviewing a decision of a Court of Criminal Appeals
    on a military judge’s ruling, we typically have pierced through
    that intermediate level and examined the military judge’s
    ruling, then decided whether the Court of Criminal Appeals was
    20
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    right or wrong in its examination of the military
    judge’s ruling.”) (citations and quotation marks omitted).
    B.    GOVERNMENT APPEALS IN CRIMINAL CASES
    Federal courts, including courts in the military justice
    system established under Article I of the Constitution, are
    courts of limited jurisdiction.                  See United States v. Lopez de
    Victoria, 
    66 M.J. 67
    , 69 (C.A.A.F. 2008) (noting that such
    jurisdiction “is conferred ultimately by the Constitution, and
    immediately by statute”).               In criminal cases, prosecution
    appeals are not favored and are available only upon specific
    statutory authorization.              See 7 Wayne R. LaFave et al., Criminal
    Procedure § 27.3(a)-(b) (3d. ed. 2007); United States v. Watson,
    
    386 F.3d 304
    , 307 (1st Cir. 2004).                   The constitutional
    prohibition on double jeopardy and related statutory
    considerations severely limit post-trial appeals by the
    prosecution in contrast to the broad appellate rights of the
    defense following the conclusion of trial.                       See 7 LaFave, supra,
    § 27.3(a).       In view of these limitations, the prosecution as a
    general matter has a somewhat broader opportunity than the
    defense to file appeals during the trial.                       See id. § 27.3(c).
    Congress has authorized interlocutory government appeals in
    federal civilian criminal cases under 
    18 U.S.C. § 3731
     (2000).1
    1
    The current version of 
    18 U.S.C. § 3731
     provides:
    21
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    Congress also has authorized interlocutory prosecution appeals
    in cases tried by courts-martial under Article 62, UCMJ, 
    10 U.S.C. § 862.2
    In a criminal case an appeal by the United States shall lie to a court
    of appeals from a decision, judgment, or order of a district court
    dismissing an indictment or information or granting a new trial after
    verdict or judgment, as to any one or more counts, or any part thereof,
    except that no appeal shall lie where the double jeopardy clause of the
    United States Constitution prohibits further prosecution.
    An appeal by the United States shall lie to a court of appeals from a
    decision or order of a district court suppressing or excluding evidence
    or requiring the return of seized property in a criminal proceeding,
    not made after the defendant has been put in jeopardy and before the
    verdict or finding on an indictment or information, if the United
    States attorney certifies to the district court that the appeal is not
    taken for purpose of delay and that the evidence is a substantial proof
    of a fact material in the proceeding.
    An appeal by the United States shall lie to a court of appeals from a
    decision or order, entered by a district court of the United States,
    granting the release of a person charged with or convicted of an
    offense, or denying a motion for revocation of, or modification of the
    conditions of, a decision or order granting release.
    The appeal in all such cases shall be taken within thirty days after
    the decision, judgment or order has been rendered and shall be
    diligently prosecuted.
    The provisions of this section shall be liberally construed to
    effectuate its purposes.
    2
    The current version of Article 62, UCMJ, provides:
    (a)(1) In a trial by court-martial in which a military judge presides
    and in which a punitive discharge may be adjudged, the United States
    may appeal the following (other than an order or ruling that is, or
    that amounts to, a finding of not guilty with respect to the charge or
    specification):
    (A) An order or ruling of the military judge which terminates the
    proceedings with respect to a charge or specification.
    (B) An order or ruling which excludes evidence that is substantial
    proof of a fact material in the proceeding.
    (C) An order or ruling which directs the disclosure of classified
    information.
    (D) An order or ruling which imposes sanctions for nondisclosure of
    classified information.
    (E) A refusal of the military judge to issue a protective order
    sought by the United States to prevent the disclosure of classified
    information.
    22
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    1.     The relationship between Article 62, UCMJ, and 
    18 U.S.C. § 3731
    Congress provided authority for interlocutory government
    appeals under Article 62, UCMJ, in the Military Justice Act of
    1983, Pub. L. No. 98-209, § 10, 
    97 Stat. 1393
     (1983).                             Congress
    based the legislation on 
    18 U.S.C. § 3731
    , the statute
    applicable to the trial of criminal cases in the federal
    district courts.          See S. Rep. No. 98-53, at 6 (1983) (stating
    that Article 62 “allows appeal by the government under
    procedures similar to an appeal by the United States in a
    federal civilian prosecution”); 
    id. at 23
     (stating that “[t]o
    the extent practicable, the proposal parallels 
    18 U.S.C. § 3731
    ,
    (F) A refusal by the military judge to enforce an order described in
    subparagraph (E) that has previously been issued by appropriate
    authority.
    (2) An appeal of an order or ruling may not be taken unless the trial
    counsel provides the military judge with written notice of appeal from
    the order or ruling within 72 hours of the order or ruling. Such
    notice shall include a certification by the trial counsel that the
    appeal is not taken for the purpose of delay and (if the order or
    ruling appealed is one which excludes evidence) that the evidence
    excluded is substantial proof of a fact material in the proceeding.
    (3) An appeal under this section shall be diligently prosecuted by
    appellate Government counsel.
    (b) An appeal under this section shall be forwarded by a means
    prescribed under regulations of the President directly to the Court of
    Criminal Appeals and shall, whenever practicable, have priority over
    all other proceedings before that court. In ruling on an appeal under
    this section, the Court of Criminal Appeals may act only with respect
    to matters of law, notwithstanding section 866(c) of this title [
    10 U.S.C. § 866
    (c)] (article 66(c)).
    (c) Any period of delay resulting from an appeal under this section
    shall be excluded in deciding any issue regarding denial of a speedy
    trial unless an appropriate authority determines that the appeal was
    filed solely for the purpose of delay with the knowledge that it was
    totally frivolous and without merit.
    23
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    which permits appeals by the United States in federal
    prosecutions”).
    As Chief Judge Everett noted in United States v. Browers:
    Because the legislative history makes clear
    that Congress intended for Article 62
    appeals to be conducted “under procedures
    similar to [those governing] an appeal by
    the United States in a federal civilian
    prosecution,” we look to federal precedent
    for guidance on this question.
    
    20 M.J. 356
    , 359 (C.M.A. 1985) (alteration in original) (quoting
    S. Rep. No. 98-53, at 6); accord Lopez de Victoria, 66 M.J. at
    70-71; United States v. Brooks, 
    42 M.J. 484
    , 486 (C.A.A.F.
    1995); United States v. Lincoln, 
    42 M.J. 315
    , 320 (C.A.A.F.
    1995); United States v. True, 
    28 M.J. 1
    , 3 (C.M.A. 1989).
    Federal court decisions interpreting 
    18 U.S.C. § 3731
    constitute guidance, not binding precedent, in the
    interpretation of Article 62, UCMJ.                    When considering the import
    of cases arising under 
    18 U.S.C. § 3731
    , we bear in mind that
    “Congress, in enacting the revised Article 62, UCMJ, in 1983,
    clearly intended to afford the government a right to appeal
    which, ‘to the extent practicable . . . parallels 
    18 U.S.C. § 3731
     . . . .’”         Lopez de Victoria, 66 M.J. at 70 (first ellipsis
    in original) (quoting S. Rep. No. 98-53, at 23).                          In that
    regard, we take into account the structural differences between
    courts-martial and trials in federal district court, as well as
    24
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    the textual similarities and differences with respect to Article
    62, UCMJ, and 
    18 U.S.C. § 3731
    .
    Section 3731, for example, states:                    “The provisions of this
    section shall be liberally construed to effectuate its
    purposes.”       The First Circuit, in United States v. Watson,
    described the legislative background of this provision.                              The
    court noted that the initial statute authorizing government
    appeals in federal criminal cases referred only to “motion[s] to
    suppress.”       
    386 F.3d at 308-10
    .             Following a series of judicial
    decisions narrowly construing this provision, Congress expanded
    the statute to cover all orders suppressing or excluding
    evidence and added the language on liberal construction to
    “‘reverse[] the practice of narrowly interpreting’” the statute.
    See 
    id. at 309
     (quoting S. Rep. No. 91-1296, at 37 (1970), and
    citing Omnibus Crime Control Act of 1970, Pub. L. No. 91-642, §
    14, 
    84 Stat. 1880
    , 1890 (1971)).                    With respect to the guidance
    drawn from cases interpreting 
    18 U.S.C. § 3731
    , we note that
    those cases routinely cite the liberal construction admonition
    in the course of addressing the scope of section 3731.                             E.g.,
    Watson, 
    386 F.3d at 310
    ; In re Grand Jury Empanelled (Colucci),
    
    597 F.2d 851
    , 855-56 (3d Cir. 1979).
    Article 62, UCMJ, on the other hand, contains no language
    on statutory construction, and its legislative history does not
    demonstrate a rationale for the omission of this language.
    25
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    Therefore, it would be inappropriate to apply the liberal
    construction mandate of section 3731 when interpreting Article
    62, UCMJ.       This is consistent with our past practice.                        We have
    not previously applied an explicit liberal construction when
    interpreting Article 62, UCMJ.                 We treat cases interpreting
    parallel provisions of 
    18 U.S.C. § 3731
     as guidance, not as
    mandates; and we apply that guidance only to the extent
    consistent with an interpretation of Article 62 that is not
    dependent upon the liberal construction admonition.
    2.     Appeals under 
    18 U.S.C. § 3731
    The issues in the present appeal concern the meaning of the
    term “excludes evidence” in Article 62.                      The statute permits the
    government to appeal an “order or ruling which excludes evidence
    that is substantial proof of a fact material in the proceeding.”
    Article 62(a)(1)(B), UCMJ.               Under this provision, trial counsel
    must file a certification with the military judge “that the
    appeal is not taken for the purpose of delay and (if the order
    or ruling appealed is one which excludes evidence) that the
    evidence excluded is substantial proof of a fact material in the
    proceeding.”        Article 62(a)(2), UCMJ.
    The related provision governing federal civilian criminal
    trials, 
    18 U.S.C. § 3731
    , permits the government to appeal an
    order by the trial court “suppressing or excluding evidence.”
    The United States Attorney must certify “that the appeal is not
    26
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    taken for purpose of delay and that the evidence is a
    substantial proof of a fact material in the proceeding.”                              
    Id.
    The courts of appeals have addressed the meaning of the
    term “excluding evidence” under 
    18 U.S.C. § 3731
     and have
    concluded that the term includes an order quashing a subpoena.
    See 25 James Wm. Moore et al., Moore’s Federal Practice
    ¶ 617.08[4] (3d. ed. 2008); 7 LaFave, supra, § 27.3(c).                              The
    case law in this area, permitting appeal of an order quashing a
    subpoena, predates the enactment of Article 62, UCMJ.                             See,
    e.g., Colucci, 
    597 F.2d at 856
    .
    In Watson, the First Circuit discussed the scope of the
    term “excluding evidence” under 
    18 U.S.C. § 3731
    .                           
    386 F.3d at 307
    .    The appeal involved a trial court ruling that denied a
    government motion for a continuance.                    Prior to trial, the
    prosecution asked immigration officials to keep the prosecution
    informed of the status of a potential witness.                         The immigration
    officials neglected to do so, and deported the witness.                              The
    government moved for a continuance to conduct an overseas
    deposition.        The trial court denied the motion, noting that the
    case was more than three years old, there were speedy trial
    issues, the problem was a result of government negligence, and
    it could take six to twelve months to obtain the testimony by
    deposition.        The government renewed its motion, and the trial
    27
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    court denied the renewed motion for the same reasons.                             
    Id. at 306-07
    .
    The court of appeals concluded that the orders denying the
    motions were not appealable under 
    18 U.S.C. § 3731
     because they
    were case-management orders, entered with the purpose of
    preventing delay:
    Although the orders appealed from will
    certainly hamper (and may effectively
    prevent) the obtaining and subsequent use of
    [the witness’s] testimony, those orders did
    not, either in substance or in form, limit
    the pool of potential evidence that would be
    admissible at the forthcoming trial. Rather,
    they were premised on, and accomplished, a
    more prosaic goal: the lower court’s
    determination to forestall further delay.
    That was why the court denied the requested
    continuance -- and the practical effect of
    that denial was to clear the way for the
    trial to proceed. That the orders had an
    incidental effect on the government’s
    evidence-gathering is too remote a
    consequence to support appellate
    jurisdiction under the second paragraph of
    section 3731.
    
    Id. at 313
    .
    In the course of its opinion, the court of appeals reviewed
    the development of 
    18 U.S.C. § 3731
     as well as cases applying
    the provision to permit appeals of decisions “excluding
    evidence.”       The court concluded that an interlocutory
    prosecution appeal under section 3731 is permitted when “the
    order itself is the practical equivalent of a suppression or
    exclusion order; that is, when the order has the direct effect
    28
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    of denying the government the right to use evidence.                            If such an
    effect is only incidental, then there can be no appeal.”                              
    Id. at 311
    .    The cases discussed in Watson in support of this test
    reflect a highly case-specific approach to the determination of
    whether the effect on the exclusion of evidence is direct or
    incidental.        See 
    id. at 310-12
    .            Watson did not call into
    question any of the cases permitting government appeal of an
    order quashing a subpoena.
    Under Watson, the pertinent inquiry is not whether the
    court has issued a ruling on admissibility, but instead whether
    the ruling at issue “in substance or in form” has limited “the
    pool of potential evidence that would be admissible.”                             
    Id. at 313
    .    The distinction drawn by Watson between direct and
    incidental effects underscores that the inquiry concerns the
    impact of the ruling on the pool of potential evidence, not
    whether there has been a formal ruling on admissibility.                              See
    
    id. at 311-12
    .
    3.     Limitations on appeals under Article 62, UCMJ
    Appellant and Petitioner-CBS contend that the prosecution
    may not appeal an order quashing a subpoena under Article 62,
    UCMJ, irrespective of the authority for the prosecution to
    appeal such orders under 
    18 U.S.C. § 3731
    .                       According to
    Appellant, Chief Judge Everett’s opinion in Browers, 20 M.J. at
    356, “stands for the proposition that Article 62 authorizes
    29
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    prosecution appeals of orders excluding evidence only where a
    military judge rules that certain evidence ‘is inadmissible.’”
    Contrary to Appellant’s assertion, Chief Judge Everett did
    not state that such an Article 62 appeal could take place “only”
    if the military judge rules that evidence “is inadmissible.”
    Browers, like Watson, involved an appeal of a case-management
    ruling by the trial judge.               The prosecution at trial moved for a
    continuance due to the absence of two witnesses.                          The military
    judge denied the motion, noting that the charges were old, one
    witness was not likely to be available in the near future, and
    the government had failed to keep track of the other witness.
    In Browers, Chief Judge Everett concluded that the order was not
    appealable because it involved the question of trial scheduling,
    not the exclusion of evidence.                 20 M.J. at 356-60.
    In the course of discussing this issue, Chief Judge Everett
    stated:
    Most lawyers think of exclusion of evidence
    as a ruling made at or before trial that
    certain testimony, documentary evidence, or
    real evidence is inadmissible. In short,
    “excludes” usually is a term of art; and we
    see no reason to believe that Congress had
    any different intention in drafting Article
    62(a)(1).
    Id. at 360.
    Chief Judge Everett referred generally to what “[m]ost
    lawyers think” and described “excludes” as a word that “usually
    30
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    is a term of art.”           Id.     The nonexclusive nature of these
    observations underscores that the opinion did not provide either
    a formal definition or a comprehensive description of the
    meaning of “excludes.”             In context, Chief Judge Everett’s
    observations set the stage for his conclusion on the critical
    issue in the case:           denial of a continuance, in a case that had
    languished, involved a scheduling matter that did not amount to
    an exclusion of evidence.               Highlighting the case-management
    nature of an order denying a continuance, he stated:                            “Indeed,
    we suspect Congress believed that the scheduling of trials
    should be left primarily to trial judges and reliance should be
    placed on their judgment.”                Id. at 360.        His opinion did not
    establish a bright-line rule or a comprehensive definition of
    “excludes,” nor did it otherwise hold that an order is
    appealable under Article 62(a)(1)(B) “only” if there is a formal
    ruling that evidence is inadmissible.
    Appellant’s argument suggests that the phrase “excludes
    evidence” means something different in military law than the
    term “excluding evidence” means in civilian criminal
    proceedings.        In that regard, we note that in Browers, Chief
    Judge Everett did not state that we should disregard decisions
    under 
    18 U.S.C. § 3731
     permitting appeal even without a formal
    ruling on admissibility.              On the contrary, as noted above in
    Part III.B.1., he expressly stated that we “look to federal
    31
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    precedent for guidance” in the interpretation of Article 62.                                20
    M.J. at 359.        He specifically noted that the government had not
    identified any cases arising under 
    18 U.S.C. § 3731
     in which
    denial of a continuance had been treated as an appealable order.
    
    Id. at 360
    .
    In a subsequent dissent, Chief Judge Everett took the
    position that the Court in Browers “adopted a narrow
    construction of the statutory language.”                      United States v. True,
    
    28 M.J. 1
    , 5 (C.M.A. 1989) (Everett, C.J., dissenting).                              His
    view, however, was not joined by the other members of the Court.
    In that regard, we note that Browers was decided with the
    participation of only two Judges, Chief Judge Everett and Judge
    Cox.    20 M.J. at 360.           Judge Cox -- who concurred separately in
    Browers -- did not endorse Chief Judge Everett’s suggestion in
    True that the Court in Browers had adopted a “narrow
    construction” of Article 62.                Instead, he joined the majority
    opinion in True.           28 M.J. at 4.         The majority in True rejected a
    narrow construction of the statute, noting:                        “Prudent advice
    concerning the use of [Article 62] should not be confused with
    an unjustified narrowing of the scope of this statute or
    deliberate frustration of the will of Congress.”                          28 M.J. at 3.
    In short, this Court’s decision in Browers does not support
    the proposition that the term “excludes” in Article 62 refers
    only to a ruling that evidence is inadmissible.                          Likewise,
    32
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    Browers does not support the proposition that the term
    “excludes” under Article 62 should be construed more narrowly
    than the term “excluding” under section 3731.                         On the contrary,
    Browers expressly identified case law under section 3731 as an
    important source of guidance in interpreting Article 62.                              The
    text of Article 62 does not reflect that Congress used the word
    “exclude” as a term of art limited to formal rulings on
    admissibility.         Cf. Articles 43(d), 57(b), 120(s), UCMJ, 
    10 U.S.C. §§ 843
    (d), 57(b), 120(s) (2000) (using the terms
    “excluded” and “excluding” in various legal contexts to convey
    descriptive meanings different from the concept of
    admissibility).          Compare Watson, 
    386 F.3d at 313
     (describing a
    ruling “excluding evidence” under section 3731 as one “that
    would, either in substance or in form, limit the pool of
    potential evidence that would be admissible”).                         We agree with
    the approach taken in Watson, which focused on the pool of
    potential evidence, not a formal ruling on admissibility.                               See
    supra Part III.B.2.
    The legislative history of Article 62, UCMJ, also does not
    reflect that Congress intended the word “exclude” to be a term
    of art limited to rulings on admissibility.                        Congress, in
    drafting Article 62, UCMJ, did not focus on the word “excludes”
    or “excluding.”          To the extent that the state of the law at the
    time of enactment illuminates congressional intent, we note that
    33
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    the Colucci case applying 
    18 U.S.C. § 3731
     to an order quashing
    a subpoena predated enactment of Article 62, UCMJ, by several
    years.     See Colucci, 
    597 F.2d at 855-56
    .                    We need not rely on
    that point, however, but instead focus on the meaning of the
    word “exclude” in the context of the similar wording in section
    3731 (“excluding”) and Article 62 (“excludes”).                          We also focus
    on the purpose of Article 62, UCMJ, reflected in its structure
    and legislative history, to provide the government in military
    cases with the same interlocutory appeal authority as in
    civilian criminal cases, “to the extent practicable.”                             See S.
    Rep. No. 98-53, at 23 (1983); cf. Article 36, UCMJ, 
    10 U.S.C. § 836
     (2000) (authorizing the President to prescribe pretrial,
    trial, and post-trial procedural and evidentiary rules that
    follow the rules for trials in federal district courts insofar
    as the President deems practicable).
    We conclude that application of guidance from the federal
    court decisions under 
    18 U.S.C. § 3731
     is both practicable and
    appropriate.        Under that guidance, a ruling quashing a subpoena
    is appealable under Article 62, UCMJ.                     We have specifically
    taken into account, and apply, the guidance from cases under 
    18 U.S.C. § 3731
     restricting interlocutory government appeals to
    those rulings that have a direct rather than incidental effect
    on the exclusion of evidence.                 See supra Part III.B.2.               In
    reaching this conclusion, we have considered the differences
    34
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    between courts-martial and civilian trials, particularly the
    emphasis in military law on prompt disposition of trials and
    appeals, and the accelerated time frames in Article 62.
    Compare, e.g., Article 62(a)(2), UCMJ, with 
    18 U.S.C. § 3731
    .
    See, e.g., Manual for Courts-Martial, United States, pt. I,
    para. 3 (2008 ed.); R.C.M. 908.                  Appellate courts in the
    military justice system are required to give priority to cases
    arising under Article 62 whenever practicable.                         See Article
    62(b); C.A.A.F. R. 19(a)(7)(A).                  In the present case, we note
    that this Court has not issued a stay of the court-martial
    proceedings.        See R.C.M. 908(c)(3).              Neither party has asked us
    to issue a stay or otherwise take action with respect to the
    status of the court-martial.                See supra Part II.
    The experience in federal civilian courts underscores the
    infrequency of government appeals from orders quashing subpoenas
    and the effectiveness of judicial interpretations of 
    18 U.S.C. § 3731
     in that regard.            In a section 3731 appeal, as in an appeal
    under Article 62, the prosecution must certify that the appeal
    is not taken for purposes of delay and that the evidence is a
    substantial proof of a fact material in the proceedings.
    Section 3731 has been interpreted to apply only to rulings that
    have a direct rather than an incidental effect of excluding
    evidence.       See, e.g., Watson, 
    386 F.3d at 311-13
    .                      The
    interpretation set forth in Watson, which we apply in the
    35
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    context of Article 62, provides a significant limitation on the
    availability of government appeals.                    We have no reason to
    anticipate that application of that interpretation in the
    military justice system should differ with respect to the
    relative infrequency of government appeals.                        Application of that
    interpretation to review of the specific ruling at issue here --
    the military judge’s decision to quash a subpoena requesting
    statements by the accused to the news media regarding events on
    the date of and in the place of the incident under investigation
    -- is not likely to have an appreciable effect on the volume of
    prosecution appeals under Article 62.                     In light of the text, the
    legislative history, the decisions and experiences of courts
    applying the parallel provisions of 
    18 U.S.C. § 3731
    , and
    considerations of practicability, we conclude that the term
    “excludes evidence” in military law is not different from the
    term “excluding evidence” in federal civilian proceedings with
    respect to an interlocutory appeal of a decision to quash a
    subpoena for the production of evidence.
    C.    THE APPEAL IN THE PRESENT CASE
    The question before us is not simply the generic question
    of whether Article 62, UCMJ, permits appeal of a motion quashing
    a subpoena, but whether the ruling at issue in this case had the
    direct effect of excluding evidence.                    In resolving that issue,
    we consider whether the military judge’s ruling directly limited
    36
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    the pool of potential evidence that would be admissible at the
    court-martial.         See Watson, 
    386 F.3d at 313
    .                  Appellant contends
    that the prosecution cannot appeal because the prosecution has
    not demonstrated that the outtakes contain any relevant,
    admissible evidence, contending that “the Government’s
    assertions as to what might be contained in the CBS outtakes
    were mere speculation.”              The record before us, however,
    demonstrates that the outtakes contain statements by Appellant
    about the charged crimes, focusing on the events that transpired
    on the day and in the place of the alleged offenses.                            See supra
    Part I.B.       Appellant also contends that the ruling is not
    appealable because “the ‘admissions’ that the Government
    speculates are in the outtakes are available from a number of
    other sources.”          However, the question of whether the material
    in the outtakes is cumulative goes to the merits of the ruling
    by the military judge, not whether that ruling is appealable.
    See infra Part III.D.
    According to Appellant, the military judge’s ruling did not
    exclude evidence from the court-martial:                      “If the government
    ultimately obtains these outtakes through negotiation with CBS
    News or alternative means, it [sic] may well be admissible.”                                On
    the record before us, CBS has sole possession and control of the
    outtakes.       The record does not establish the existence of any
    37
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    negotiations or “alternative means” through which the Government
    could obtain the outtakes.
    The record reflects that CBS does not believe that it is
    appropriate to provide the outtakes to the prosecution.                              CBS has
    litigated vigorously a motion to quash the subpoena as well as
    the present appeal.            As part of that litigation, CBS has
    submitted a declaration from its correspondent, Mr. Pelley,
    asserting a variety of negative consequences to the
    newsgathering function that would follow “if reporters were to
    become known as willing or unwilling investigative agents for
    the Government.”          Under these circumstances, the record
    establishes that the military judge’s decision had the direct
    effect of excluding the outtakes from the pool of potential
    evidence that would be admissible at the court-martial.
    In a related argument, Appellant and Petitioner-CBS suggest
    that the military judge’s decision to quash the subpoena is not
    appealable in this case because the military judge did not
    foreclose future consideration of the admissibility of the
    outtakes.       The military judge, however, discussed that
    possibility in the context of a contingency under the control of
    the defense.        During litigation of the motion to quash the
    subpoena at trial, the military judge asked trial defense
    counsel if he would object to introduction into evidence of the
    broadcast statements made by the accused.                       Defense counsel
    38
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    reserved the right to object under M.R.E. 106, the rule of
    completeness, which provides, “When a writing or recorded
    statement or part thereof is introduced by a party, an adverse
    party may require that party at that time to introduce any other
    part or any other writing or recorded statement which ought in
    fairness to be considered contemporaneously with it.”                             See also
    M.R.E. 304(h)(2) (providing a rule of completeness in connection
    with an alleged admission or confession).
    The rule of completeness is a rule that benefits the party
    opposing admission of evidence, not the party offering the
    evidence.       Assuming that the prosecution moves to admit the
    broadcast statements, the defense would not be obligated to
    object under the rule of completeness.                     Defense counsel
    emphasized during discussion of the motion to quash the subpoena
    that the defense was “not required to assist the government in
    acquiring its evidence or the evidence it thinks it needs,” and
    that defense counsel was not “required to anticipate what the
    government might try to do and announce all of my objections.”
    Likewise, it is not possible to know at this stage whether the
    interests of Appellant in presenting the most effective defense
    in his trial by court-martial and the interests of CBS as a
    newsgathering entity will be similar or different during trial
    on the merits.
    39
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    At this stage in the proceedings, the possibility of a
    future ruling on admissibility of the outtakes under the rule of
    completeness rests with the defense.                    Moreover, without having
    the content of the outtakes in the record, there is no way of
    knowing which parts, if any, of the outtakes would be covered by
    the rule of completeness.               Under these circumstances, the
    contingent possibility that an opposing party might raise an
    objection that could resurrect the need for a subpoena, which is
    dependent on multiple variables, does not diminish the direct
    effect of the ruling excluding the outtakes.
    In the present case, the military judge ruled that the
    evidence requested in the subpoena was cumulative with the
    evidence otherwise available to the prosecution.                          See supra Part
    I.C.    In so doing, he focused specifically on the pool of
    potential evidence that would be admissible at the court-
    martial.      As such, his decision to quash the subpoena was
    appealable under Article 62, UCMJ, because it had a direct
    effect on whether the outtakes would be excluded from
    consideration at the court-martial.
    D.    THE MILITARY JUDGE’S DECISION TO QUASH THE SUBPOENA
    The question before us is whether the military judge in
    this case erred when he granted the motion to quash the subpoena
    on the grounds that it was unnecessary without reviewing in
    camera the evidence requested.                 See supra Part I.C.; R.C.M.
    40
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    703(f)(1).       We review the military judge’s decision under an
    abuse of discretion standard.                 See United States v. Reece, 
    25 M.J. 93
    , 95 (C.M.A. 1987).
    In trials by courts-martial, “[t]he trial counsel, the
    defense counsel, and the court-martial shall have equal
    opportunity to obtain witnesses and other evidence in accordance
    with such regulations as the President may prescribe.”                             Article
    46, UCMJ, 
    10 U.S.C. § 846
     (2000).                   The President has provided
    that the parties and the court-martial “shall have equal
    opportunity to obtain witnesses and evidence, including the
    benefit of compulsory process.”                  R.C.M. 703(a).          Under R.C.M.
    703(f)(1), “Each party is entitled to the production of evidence
    which is relevant and necessary.”                   M.R.E. 401 establishes “a low
    threshold of relevance.”              Reece, 25 M.J. at 95 (quoting United
    States v. Tomlinson, 
    20 M.J. 897
    , 900 (A.C.M.R. 1985)).                              As
    noted in the nonbinding Discussion accompanying R.C.M.
    703(f)(1):       “Relevant evidence is necessary when it is not
    cumulative and when it would contribute to a party’s
    presentation of the case in some positive way on a matter in
    issue.”      See Reece, 25 M.J. at 95.
    R.C.M. 703(f)(4)(C) provides:                  “If the person having
    custody of evidence requests relief on grounds that compliance
    with the subpoena or order of production is unreasonable or
    oppressive . . . the military judge may direct that the subpoena
    41
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    or order of production be withdrawn or modified.”                           Under the
    rule, “the military judge may direct that the evidence be
    submitted to the military judge for an in camera inspection in
    order to determine whether such relief should be granted.”
    Reece considered these provisions on direct review of a
    case in which the military judge had declined to review in
    camera the social service and counseling records of two
    witnesses.       25 M.J. at 94-95.            The defense at trial had asserted
    that records of drug and alcohol abuse, as well as behavioral
    problems, were relevant to the credibility of the witnesses.                                On
    appeal, this Court observed that the credibility of the two
    witnesses was a key issue at trial and that the appellant had
    “made as specific a showing of relevance as possible, given that
    he was denied all access to the documents.”                        Id. at 95.        Under
    the circumstances of the case, Reece held that the military
    judge erred in not conducting an in camera review of the
    requested materials, and remanded the case for in camera
    inspection by a military judge under United States v. DuBay, 
    17 C.M.A. 147
    , 
    37 C.M.R. 411
     (1967).                   25 M.J. at 95; cf. United
    States v. Cuthbertson, 
    630 F.2d 139
    , 145-46, 148-49 (3d Cir.
    1980) (holding that the trial judge did not err in requiring an
    in camera review of trial witness statements when there was a
    showing of relevancy, necessity, and specificity, but erred in
    42
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    requiring an in camera review of non-witness statements without
    such a showing).
    In the present case, Appellant argues that the military
    judge did not err in quashing the subpoena because “[t]here is
    no reason to believe that there are material statements in
    excess of what CBS aired on March 17, 2007, as Petitioner’s
    [Appellant’s] statements are relatively uniform and indicative
    of his subjective intent.”               Appellant further contends that --
    the government also has a wealth of
    additional evidence that can be used to
    demonstrate [Appellant’s] specific intent,
    including forensic evidence, the testimony
    of all of [Appellant’s] squad members, and
    secondary evidence. The testimony of
    Appellant’s squad members is indicative of
    his specific intent, as he trained his squad
    on the rules of engagement and their
    understanding of the rules of engagement
    mirrors his. Appellant’s subjective intent
    is clear from his multiple statements -- he
    declared the buildings and anyone within
    hostile and authorized the use of force. He
    repeatedly admitted to telling them to
    “shoot first and ask questions later.”
    (citations omitted).            In similar fashion, Petitioner-CBS notes
    that the record is replete with other evidence available to the
    Government on the contested issues in the court-martial.
    Petitioner-CBS further suggests that an in camera review of the
    outtakes is unnecessary because “it is typically the case that
    the most relevant and important information is included in the
    publicly disseminated news report.”
    43
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    As we have noted earlier, Appellant granted an interview
    with CBS in which he specifically described events at the time
    and in the place of the charged offenses.                       CBS conducted the
    interview knowing that it involved matters then under
    investigation.         The interview lasted for several hours, but only
    a portion of the interview was aired by CBS.                        The outtakes
    contain a majority of Appellant’s discussion of the charged
    offenses with CBS, and only CBS possesses those outtakes.                               See
    supra Part I.B-C.
    At this stage in the proceedings, Appellant has pled not
    guilty.      Therefore, the issues of his specific intent and other
    key elements of the offenses remain in dispute.                          On the record
    before us, the case involves both direct and circumstantial
    evidence, including statements by Appellant.                        Both the
    prosecution and the defense will have the opportunity to
    demonstrate the inculpatory or exculpatory value of evidence
    that is introduced with respect to the charged offenses.                              Under
    those circumstances, the level of detail, the context, and the
    credibility of the evidence is likely to be at issue.
    In that setting, the decisions made by CBS as to what was
    relevant and important to include in a nationally broadcast news
    story are not the same as the judgment by the parties to the
    court-martial of what might be relevant and necessary in the
    trial of the pending case, which includes both general crimes
    44
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    and unique military offenses.                 Likewise, Appellant’s assessment
    that his statements in the record reflect a consistent
    expression of intent is a matter that, at this stage in the
    proceedings, is likely to be subject to evaluation by the
    factfinder at trial.            Moreover, Appellant’s assessment does not
    describe the content of the statements in the outtakes.
    In Cuthbertson, the Third Circuit addressed similar
    considerations in a case where a news organization sought to
    resist a subpoena that requested, in part, material containing
    “verbatim and substantially verbatim statements . . . of
    witnesses that the government intends to call at trial.”                              
    630 F.2d at 148
    .        In sustaining the decision of the trial judge to
    order production of that material for in camera inspection, the
    court observed:
    By their very nature, these statements are
    not obtainable from any other source. They
    are unique bits of evidence that are frozen
    at a particular place and time. Even if the
    defendants attempted to interview all of the
    government witnesses and the witnesses
    cooperated with them, the defendants would
    not obtain the particular statements that
    may be useful for impeachment purposes at
    trial.
    Id.; accord United States v. LaRouche, 
    841 F.2d 1176
    , 1180 (1st
    Cir. 1988) (sustaining the trial judge’s decision to order
    production of outtakes of a news media interview with a key
    trial witness).
    45
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    The outtakes of the CBS interview of Appellant about the
    events in Haditha on the date of the charged offenses, like the
    material at issue in Cuthbertson and LaRouche, constitute a
    potentially unique source of evidence that is not necessarily
    duplicated by any other material.                   Under the circumstances of
    the present case, consideration of whether the outtakes are
    cumulative requires review of the requested material by the
    military judge.          The military judge’s decision to quash the
    subpoena without conducting an in camera review of the requested
    material constituted an abuse of discretion.
    E.    FURTHER PROCEEDINGS
    Petitioner-CBS based the motion to quash the subpoena in
    part on the grounds that the outtakes were protected by a
    qualified newsgathering privilege.                   Petitioner-CBS relied on
    principles related to the newsgathering process and did not
    claim that Appellant’s statements were made under conditions of
    confidentiality.          Although the military judge indicated
    agreement with the concept of a qualified newsgathering
    privilege, he found it unnecessary to base his decision on the
    privilege because he determined that the outtakes were
    cumulative.
    Under M.R.E. 501(a)(4), a privilege may be claimed under
    “[t]he principles of common law generally recognized in the
    trial of criminal cases in the United States district courts
    46
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    pursuant to Rule 501 of the Federal Rules of Evidence insofar as
    the application of such principles in trials by courts-martial
    is practicable and not contrary to or inconsistent with the
    code, these rules, or this Manual.”                    In the past, this Court has
    considered but has not resolved the question of whether a
    newsgathering privilege applies in the military justice system.
    See United States v. Rodriguez, 
    50 M.J. 38
    , 38 (C.A.A.F. 1998)
    (summary disposition).             On appeal, the parties have referred to
    the question of whether a newsgathering privilege should be
    recognized in the military justice system, but they have not
    asked this Court to resolve whether the subpoena in this case
    should have been quashed on a qualified newsgathering privilege.
    Under these circumstances, we do not decide here whether such a
    privilege should be recognized in the military justice system.
    The issue of an in camera review is a separate matter.
    Even to the extent that a qualified privilege has been
    recognized by some courts in the trial of federal civilian
    cases, the application of such a privilege to an in camera
    review has been highly case specific.                     See, e.g., United States
    v. Burke, 
    700 F.2d 70
    , 76-78 (2d Cir. 1983); Cuthbertson, 
    630 F.2d at 146-49
    .          In that context, even if a qualified privilege
    applied to cases in the military justice system -- a matter that
    we do not decide here -- such a privilege would not preclude an
    in camera review pursuant to R.C.M. 703(f)(4)(C) under the
    47
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    circumstances of the present case.                   The description of the
    material at issue in the present case -- video outtakes from a
    specific interview in which Appellant discussed the events
    occurring on the date of and in the place of the charged
    offenses -- is sufficient to meet a threshold showing of
    necessity for an in camera review.                   The military judge could not
    make an evaluation of necessity under the specific circumstances
    of this case without reviewing the outtakes for content and
    context.      See supra Part III.D.              Accordingly, we conclude that
    the military judge in the present case must conduct an in camera
    review of the requested materials prior to ruling on the motion
    to quash the subpoena.
    In any further hearing before the military judge on a
    motion to quash the subpoena, the military judge alone will
    inspect the requested materials in camera.                       Such a hearing,
    accompanied by inspection of the requested material in camera by
    the military judge alone, will provide the appropriate forum for
    consideration of issues pertinent to a motion to quash the
    subpoena, such as the existence, if any, of a qualified
    newsgathering privilege under M.R.E. 501(a)(4), the scope of any
    such privilege, and the application, if any, of such a privilege
    to the requested materials.
    Our decision to order inspection in camera by the military
    judge alone pertains to the present case.                       We do not decide here
    48
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    whether, under other circumstances, inspection by the parties
    under an appropriate protective order would be warranted.                               See
    Reece, 25 M.J. at 95 n.6.
    IV.    DECISION
    We vacate the decision of the United States Navy-Marine
    Corps Court of Criminal Appeals and the order of the military
    judge quashing the Government’s subpoena.                       We remand the record
    of trial to the Judge Advocate General of the Navy for return to
    the military judge for further consideration of whether relief
    should be granted to Petitioner-CBS under R.C.M. 703.                             Prior to
    ruling, the military judge shall order production of the
    requested material for in camera inspection by the military
    judge alone.
    49
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    RYAN, Judge, with whom ERDMANN, Judge, joins (dissenting):
    I agree that Appellant has standing to litigate the
    Government’s appeal of the military judge’s ruling quashing a
    third-party subpoena.             United States v. Wuterich, __ M.J. __
    (19-21) (C.A.A.F. 2008).              However, because the Government’s
    appeal in this case is an appeal of the military judge’s ruling
    on a discovery motion -- a ruling that expressly noted that the
    object of the discovery could be admissible1 -- and not “[a]n
    order or ruling which excludes evidence,” I disagree that the
    United States Navy-Marine Corps Court of Criminal Appeals (CCA)
    had jurisdiction under Article 62 of the Uniform Code of
    Military Justice (UCMJ), 
    10 U.S.C. § 862
     (2000), to hear the
    Government’s appeal.            That the CCA had no jurisdiction under the
    facts of this case is supported both by the precedent of this
    Court and the precedent of the United States Court of Appeals
    for the First Circuit.             See United States v. Browers, 
    20 M.J. 356
    , 360 (C.M.A. 1985) (defining “exclusion” as used in Article
    62(a)(1)(B), UCMJ, as a ruling involving inadmissibility);
    United States v. Watson, 
    386 F.3d 304
    , 310 (1st Cir. 2004)
    (“[The Criminal Appeals Act] unarguably restricts government
    appeals to specific categories of district court orders.                              If an
    1
    Transcript of Record at 87, United States v. Wuterich (Feb. 22,
    2005) (Article 39(a), UCMJ, session) (“[T]he court clearly finds
    that this could be admissible into the evidence as statements of
    the accused under Military Rule of Evidence 801(d).”).
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    order falls outside those categories, the government’s attempted
    appeal must be dismissed.”) (citation omitted).
    A.    Statutory authorization for a government appeal
    In criminal cases, prosecution appeals are not favored and
    are available only upon specific statutory authorization.                               See
    United States v. Wilson, 
    420 U.S. 332
    , 336 (1975); 7 Wayne R.
    LaFave et al., Criminal Procedure §27.3(a)-(b) (3d. ed. 2007).
    Specifically relevant to this case, Article 62(a)(1)(B), UCMJ,
    grants the Government the authority to appeal “[a]n order or
    ruling which excludes evidence that is substantial proof of a
    fact material in the proceeding.”                   Article 62(b), UCMJ, grants
    the CCA the jurisdiction to hear those appeals.
    B.    “Order or ruling which excludes evidence”
    This Court previously adopted a narrow construction of the
    language in Article 62, UCMJ, permitting the government to
    appeal from an order or ruling “which excludes evidence that is
    substantial proof of a fact material in the proceeding.”
    Browers, 20 M.J. at 359-60.                In Browers, the Court
    differentiated appealable decisions from unappealable ones by
    asking whether the military judge made a ruling involving the
    admissibility of the evidence.                    Writing for the Court, former
    Chief Judge Everett defined “excludes evidence” to mean “a
    ruling made at or before trial that certain testimony,
    documentary evidence, or real evidence is inadmissible.”                               Id. at
    2
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    360 (emphasis added).             The Court acknowledged that this
    interpretation might result in a party being deprived of
    critical evidence, but expressed confidence in the “ability of
    military judges to make these delicate determinations.”                              Id.
    Inexplicably, the majority dismisses former Chief Judge
    Everett’s definition in Browers, a decision of this Court, as
    mere “observations.”            Wuterich, __ M.J. at __ (31).                  If the
    current majority has a different take on what the definition of
    “excludes” should be, as it is entitled to have, it should say
    so and explicitly overrule Browers rather than mischaracterize a
    holding of this Court.2
    The majority suggests that Browers “concluded that the
    order was not appealable because it involved the question of
    trial scheduling, not the exclusion of evidence.”                           Wuterich, __
    M.J. at __ (30).          Browers made no such conclusion, as the
    Court’s language plainly demonstrates.                     Browers explicitly
    states that “the issue is whether denial of a continuance
    requested so that the Government may produce a material witness
    constitutes the exclusion of evidence.”                      Browers, 20 M.J. at 360
    (emphasis in original).              The Browers Court concluded that the
    2
    Any relevance of the Court’s composition during Browers, which
    the majority appears to suggest weighs against the precedential
    value of the opinion, Wuterich, __ M.J. at __ (32), is unclear
    at best. Chief Judge Everett delivered the opinion of the
    Court; Judge Cox, while writing separately to concur in Browers,
    did not disagree with Judge Everett’s opinion in general or his
    definition of “excludes” in particular.
    3
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    denial of a continuance was not an appealable ruling because it
    was not an order that “excludes evidence” despite the fact that
    the ruling prevented the government from presenting two material
    witnesses.       The scheduling ruling in Browers, like the discovery
    ruling in this case, deprived the government of evidence, but
    did not “exclude” evidence for purposes of Article 62, UCMJ.
    If any doubt remained as to the Court’s intentions in
    Browers, former Chief Judge Everett later repeated the
    definition of “excludes evidence” as a ruling that “evidence is
    inadmissible,” and stated that, in Browers, this Court “adopted
    a narrow construction of the statutory language.”                           United States
    v. True, 
    28 M.J. 1
    , 5 (C.M.A. 1989) (Everett, C.J., dissenting)
    (citing Browers, 20 M.J. at 360).3
    3
    The Court in True considered whether the ruling of the military
    judge, which abated the court-martial, was one “which terminates
    the proceedings,” not whether it was one “which excludes
    evidence.” 28 M.J. at 2. On that point Chief Judge Everett
    agreed. Id. at 5 (Everett, C.J., dissenting). While all
    federal circuits to have considered the issue agree that the
    analogous language in the first paragraph of 
    18 U.S.C. § 3731
    (“a decision, judgment, or order of a district court dismissing
    an indictment or information or granting a new trial after
    verdict or judgment”) should be construed broadly, see, e.g.,
    Watson, 
    386 F.3d at 308
     (crediting “Congress’s intent that all
    such orders would be appealable unless the Double Jeopardy
    Clause forbade that course of action”), only the Fifth Circuit
    reads “suppresses or excludes evidence” as broadly. See United
    States v. Smith, 
    135 F.3d 963
    , 967 (5th Cir. 1998) (holding that
    § 3731 provides the government with as broad a right to appeal
    an order suppressing or excluding evidence as the Constitution
    will permit). Consequently the breadth of the language in True,
    applicable to statutory language regarding “terminates the
    proceedings,” is of doubtful weight when considering the
    4
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    One would think that Browers ends the inquiry as to the
    meaning of Article 62(a)(1)(B), UCMJ.                     This Court concluded that
    “excludes” was a term of art relating to admissibility of
    evidence and saw “no reason to believe that Congress had any
    different intention in drafting Article 62(a)(1).”                           Browers, 20
    M.J. at 360.        This narrow view is consistent with the Supreme
    Court’s instruction that the government could only take an
    appeal in a criminal case if it had express statutory authority,
    Wilson, 
    420 U.S. at 336
    , and its policy against piecemeal
    appeals in criminal cases, “where the defendant is entitled to a
    speedy resolution of the charges against him.”                         Will v. United
    States, 
    389 U.S. 90
    , 96 (1967); see also U.S. Const. amend. VI
    (“In all criminal prosecutions, the accused shall enjoy the
    right to a speedy and public trial . . . .”).
    But despite Browers, the majority looks to the parallel
    federal statute, 
    18 U.S.C. § 3731
    , in search of a different
    definition of “an order or ruling which excludes evidence” as
    specified by Article 62, UCMJ.                    The majority states that it
    agrees with the First Circuit’s approach that defines rulings
    excluding evidence under § 3731 as ones that “‘either in
    substance or in form, limit the pool of potential evidence that
    would be admissible.’”             Wuterich, __ M.J. at __ (33) (quoting
    different language “excludes evidence.” While the former
    directly implicates the Double Jeopardy Clause, Wilson, 
    420 U.S. at 336-37
     (1975), the latter does not.
    5
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    Watson, 
    386 F.3d at 313
    ).               I do not believe, however, that the
    precedent of the First Circuit supports the Court’s holding
    today.
    The First Circuit, noting Congress’s instruction that §
    3731 should be construed liberally, concludes only that “the
    second paragraph of section 3731, in its present form, covers
    all pretrial orders that deny admissibility to virtually any
    evidence on virtually any ground.”                   Watson, 
    386 F.3d at 309
    (emphasis added).           In Watson, a case with a fact pattern similar
    to that of Browers, the government attempted to appeal from a
    trial judge’s denial of a government motion requesting a
    continuance.        Without the continuance, the government could not
    depose a key witness and would be forced to prosecute Watson
    without the benefit of the witness’s testimony.                          
    Id. at 307
    .
    The First Circuit held that it had no jurisdiction under § 3731
    to hear the government’s appeal because the trial court was not
    engaged in making an evidentiary ruling.                       Id. at 311.        The court
    rejected the government’s argument that the trial court’s
    rulings were a but-for cause of the government’s inability to
    gather or present evidence at trial.                    Id.     The court explicitly
    distinguished between available and admissible evidence, stating
    that “[a]lthough the orders appealed from will certainly hamper
    (and may effectively prevent) the obtaining and subsequent use
    of [the witness’s] testimony, those orders did not, either in
    6
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    substance or in form, limit the pool of potential evidence that
    would be admissible at the forthcoming trial.”                          Id. at 313
    (emphasis added).           For the First Circuit, admissibility, rather
    than availability, is the critical factor in determining when
    the government may appeal an order under § 3731.                          As in Browers,
    even though the trial court’s ruling would “certainly hamper
    (and may effectively prevent) the obtaining and subsequent use”
    of a witness’s testimony, the First Circuit still held that the
    ruling did not exclude evidence.                  Id.     The First Circuit’s
    approach is consistent with this Court’s position in Browers,
    and different than today’s decision, which implies that any
    decision that limits the pool of available evidence would be
    appealable under Article 62, UCMJ.
    The majority’s decision is also contrary to the approach
    favored by the other federal courts of appeals, which reject the
    argument that any trial court order or ruling that hampers or
    effectively prevents the obtaining or use of evidence is
    appealable by the government under § 3731.                       See, e.g., United
    States v. Hickey, 
    185 F.3d 1064
    , 1066-67 (9th Cir. 1999)
    (finding no jurisdiction to hear appeal from order denying
    government’s request to unseal defendant’s financial
    affidavits); United States v. Camisa, 
    969 F.2d 1428
    , 1429 (2d
    Cir. 1992) (finding no jurisdiction to hear appeal from order
    denying government’s request to disqualify defendant’s counsel
    7
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    which possibly rendered a witness’s testimony inadmissible).                                As
    the First Circuit stated, “[w]hatever incidental effect those
    orders may have on evidentiary matters, they are simply not the
    proximate cause of the exclusion of any evidence.”                           Watson, 
    386 F.3d at 312
    .
    C.    The majority’s rule is not supported by the decisions
    of the federal courts of appeals
    The majority suggests that its approach, in the context of
    the facts of this case, is consistent with the approach of other
    federal circuits.           See Wuterich, __ M.J. at __ (27-29) (“The
    courts of appeals have addressed the meaning of the term
    ‘excluding evidence’ under 
    18 U.S.C. § 3731
     and have concluded
    that the term includes an order quashing a subpoena.”).                              I
    disagree.       In fairness, the federal courts of appeals have at
    times permitted appeals under 
    18 U.S.C. § 3731
     in cases
    involving the quashing of subpoenas in the context of grand jury
    investigations.          See, e.g., In re Grand Jury Subpoenas
    (Kiefaber), 
    774 F.2d 969
    , 972-73 (9th Cir. 1985), vacated on
    other grounds, 
    823 F.2d 383
     (9th Cir. 1987); In re Grand Jury
    Empanelled (Colucci), 
    597 F.2d 851
    , 856 (3d Cir. 1979).                              But
    each of those cases relied on the precise language -- “[t]he
    provisions of this section shall be liberally construed to
    effectuate its purposes” -- in § 3731 that is not present in
    Article 62, UCMJ.           See Kiefaber, 
    774 F.2d at 972-73
     (“Therefore,
    8
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    in light of the legislative direction to construe broadly the
    phrase ‘suppressing or excluding evidence,’ we conclude that the
    district court’s order quashing the grand jury subpoenas
    constitutes an order suppressing or excluding evidence.”)
    (footnote omitted); Colucci, 
    597 F.2d at 856
     (“In light of this
    legislative direction to construe broadly the government’s right
    of appeal, this Court has held that orders which do not,
    ‘strictly speaking,’ suppress evidence but which have the
    ‘practical effect’ of excluding evidence from a proceeding, are
    within the ambit of [section] 3731.”).                     Yet this is the very
    language upon which the majority claims not to rely in
    construing Article 62, UCMJ.                 Wuterich, __ M.J. at __ (26)
    (“[I]t would be inappropriate to apply the liberal construction
    mandate of section 3731 when interpreting Article 62, UCMJ.”).
    And, of course, at the pre-indictment grand jury stage an
    individual is a target, not a defendant, so there is not yet any
    Sixth Amendment speedy trial concern.                     See United States v.
    Marion, 
    404 U.S. 307
    , 313 (1971) (“[The Sixth Amendment] would
    seem to afford no protection to those not yet accused, nor would
    [it] seem to require the Government to discover, investigate,
    and accuse any person within any particular period of time.”).
    D.    The majority’s holding is overly broad
    The problems with the majority’s new position are twofold.
    First, it highlights that Browers is being overruled sub
    9
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    silentio.       The military judge’s ruling at issue in Browers
    clearly limited the pool of evidence that was available to the
    government to proffer at trial by preventing the government from
    presenting two material witnesses, yet this Court held that the
    ruling did not exclude evidence for the purposes of Article 62,
    UCMJ.     One cannot reconcile today’s holding with the precedent
    of this Court in Browers.
    This highlights the second problem with the majority’s
    position.       Although the majority expressly states that a liberal
    construction of Article 62, UCMJ, is not warranted, its holding
    is extraordinarily broad.               See Wuterich, __ M.J. at __ (25-26)
    (stating that because Article 62, UCMJ, contains no language on
    statutory interpretation, it would be inappropriate to apply
    § 3731’s liberal construction mandate when interpreting Article
    62).    If one accepts that any order or ruling that limits the
    pool of evidence that is available to the government is
    appealable under Article 62(a)(2)(B), then any ruling by a
    military judge that impacts the availability, as opposed to the
    admissibility, of evidence would be a proper subject of a
    government appeal.           Under the majority’s new rule there is no
    principled way to distinguish among:                    garden-variety scheduling
    orders, such as those at issue in Browers, which hindered the
    government’s ability to offer a witness’s testimony; discovery
    10
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    rulings of any sort that go against the government; and actual
    rulings on the admissibility of evidence.
    The majority relies heavily on the fact that Browers and
    Watson considered what it characterizes as case-management
    orders to distinguish the holdings in those cases from the
    majority’s broad interpretation of § 3731 and Article 62, UCMJ.
    See Wuterich, __ M.J. at __ (28-31).                     Presumably, the majority
    believes that trial scheduling orders may “limit the pool of
    potential evidence” without qualifying under Article 62, UCMJ,
    solely because trial scheduling falls within the sound
    discretion of the trial judge.                 Of course, neither case rested
    on that fact.         Moreover, discovery rulings, as the one in the
    instant case undoubtedly is, may “limit the pool of potential
    evidence” and are also within the sound discretion of the trial
    court.     See, e.g., Diamond Ventures, LLC v. Barreto, 
    452 F.3d 892
    , 898 (D.C. Cir. 2006) (“[T]he district court has wide
    discretion in managing discovery.”); Faigin v. Kelly, 
    184 F.3d 67
    , 84 (1st Cir. 1999) (“A district court’s case-management
    powers apply with particular force to the regulation of
    discovery and the reconciliation of discovery disputes.”);
    Trepel v. Roadway Express, Inc., 
    194 F.3d 708
    , 716 (6th Cir.
    1999) (“Matters of discovery are in the sound discretion of the
    district court.”).           Both types of decisions being within the
    discretion of a trial court and potentially or actually limiting
    11
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    the pool of potential evidence, the only distinction available
    appears based on ad hoc decisions by this Court.                          This is a
    less-than-workable legal standard.
    E.    Admissibility is the touchstone
    A military judge’s ruling quashing a subpoena duces tecum
    is a discovery ruling, which may impact the availability of
    evidence, but it neither denies the admissibility of the
    evidence nor excludes it.               This distinction is an important one
    that should make a difference based on the explicit language of
    Article 62(a)(1)(B), UCMJ.               Courts faced with a motion to quash
    a subpoena duces tecum in a criminal case consider more than
    admissibility -– they balance the general public’s duty to
    testify, Branzburg v. Hayes, 
    408 U.S. 665
    , 688 (1972), against
    other interests, such as the burden placed on the recipient of
    the subpoena, see United States v. Nixon, 
    418 U.S. 683
    , 698
    (1974), and the explicitly stated goal of expediting the
    defendant’s trial.           See 
    id.
           The balancing is contextual and
    uses a four-factor test articulated by Judge Weinfeld of the
    United States District Court for the Southern District of New
    York and adopted by the Supreme Court in Nixon, 
    418 U.S. at
    699-
    700 (citing United States v. Iozia, 
    13 F.R.D. 335
    , 338 (S.D.N.Y.
    1952)).4      The Weinfeld factors are important because they
    4
    The Drafters’ Analysis for Rule for Courts-Martial (R.C.M.)
    703(e) also cites Nixon in its discussion of the purpose of a
    12
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    illustrate the difference between discovery rulings and
    evidentiary orders, a difference the majority ignores.
    Under the Weinfeld test, the moving party cannot require
    production of documents prior to trial unless that party shows:
    (1) that the documents are evidentiary and relevant;
    (2) that they are not otherwise procurable reasonably
    in advance of trial by exercise of due diligence; (3)
    that the party cannot properly prepare for trial
    without such production and inspection in advance of
    trial and that the failure to obtain such inspection
    may tend unreasonably to delay the trial; and (4) that
    the application is made in good faith and is not
    intended as a general “fishing expedition.”
    
    Id.
    It may be that a court quashes a subpoena based on the
    first Weinfeld factor –- lack of relevancy.                        If so, this would
    be a ruling on the admissibility of evidence and fall within
    Browers and Watson, even if styled a discovery order by the
    trial judge.        In contrast, the other three Weinfeld factors do
    not weigh or consider whether the evidence is admissible.
    Rather, the second factor considers the burden placed on the
    party receiving the subpoena, the third factor considers the
    potential impact on the defendant’s right to a speedy trial, and
    the fourth factor protects parties from unwarranted requests.
    These factors address equitable considerations that protect the
    subpoena duces tecum. Manual for Courts-Martial, United States,
    Analysis of the Rules for Courts-Martial app. 21 at A21-37 (2008
    ed.).
    13
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    rights of third parties and the defendant, not evidentiary
    concerns.
    As the United States Court of Appeals for the District of
    Columbia Circuit stated in a case involving a government appeal,
    an order regarding a subpoena in no way finally decides that any
    of the subpoenaed material must be denied to the jury and
    “cannot be deemed an order ‘suppressing or excluding evidence,’
    or otherwise within the contemplation of the Criminal Appeal
    Act, 
    18 U.S.C. § 3731
    .”              Nixon v. Sirica, 
    487 F.2d 700
    , 707 n.23
    (D.C. Cir. 1973).           Denials of discovery requests may ultimately
    make evidence unavailable, but not all such denials are –- or
    should be -- appealable under Article 62, UCMJ, because they
    usually do not address the admissibility of the evidence.
    F.    No ruling that evidence is inadmissible in this case
    In this case the ruling of the military judge did not
    exclude evidence in any evidentiary sense, although the ruling
    may have, or even will have, the effect of making the evidence
    unavailable.        The military judge not only refrained from ruling
    that the subpoenaed tapes were inadmissible, he opined that they
    likely were.        Transcript of Record at 87, Wuterich (Article
    39(a), UCMJ, session) (“[T]he court clearly finds that this
    could be admissible into the evidence as statements of the
    accused under Military Rule of Evidence 801(d).”).                           In his
    words, the order was a “discovery denial.”                       Transcript of Record
    14
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    at 93, Wuterich (Article 39(a), UCMJ, session).                          Although the
    military judge’s ruling “will certainly hamper (and may
    effectively prevent) the obtaining and use” of the outtakes by
    the Government, the ruling “did not, either in substance or in
    form, limit the pool of potential evidence that would be
    admissible at the forthcoming trial.”                     Watson, 
    386 F.3d at 3131
    (emphasis added).
    As CBS acknowledged at oral argument, if the Government
    obtains possession of the outtakes, nothing in the military
    judge’s order would prevent the Government from proffering the
    outtakes as evidence.             Transcript of Oral Argument at 00:35:25,
    Wuterich, Nos. 08-6006, 08-8020, 08-8021.                       This is because it
    was not an order “which excludes evidence.”                        The majority
    ignores this salient fact, and focuses instead on a straw man –-
    the possibility that the Government could obtain the outtakes
    through negotiation or other means, a possibility it then
    dismisses.       Wuterich, __ M.J. at __ (37-38).
    Of course this goes to availability, not admissibility, and
    is not relevant for purposes of Article 62(b), UCMJ.                            Further, I
    note that CBS attempted to work with the Government by providing
    the 60 Minutes broadcast, offering to authenticate it, and
    requesting materials from the Government to help determine
    whether the outtakes were indeed cumulative.                        In response, the
    Government refused either to accept the broadcast or to provide
    15
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    CBS with the requested materials.                   CBS Broadcasting Inc.’s
    Petition for a Writ of Prohibition and/or Mandamus at 3-4, 5
    n.3, United States v. Wuterich, No. 08-8020 (C.A.A.F. July 10,
    2008); Transcript of Oral Argument at 00:27:54, Wuterich, Nos.
    08-6006, 08-8020, 08-8021.               Given the fluid nature of third-
    party discovery in practice, there is no basis for concluding
    that absence of progress in light of the Government’s lack of
    cooperation is evidence of the futility of negotiations.
    G.    Appellant’s trial
    The previous construction of Article 62, UCMJ, by this
    Court in Browers was narrow, consistent with the precept that
    government appeals are disfavored and only permitted where
    expressly authorized by statute, and consonant with the policy
    against piecemeal appeals in criminal cases, “where the
    defendant is entitled to a speedy resolution of the charges
    against him.”         Will, 
    389 U.S. at 96
    ; see also U.S. Const. amend.
    VI (“In all criminal prosecutions, the accused shall enjoy the
    right to a speedy and public trial . . . .”); Watson, 
    386 F.3d at 310
     (“Section 3731 was ‘carefully circumscribed by Congress
    out of a desire (among other reasons) to safeguard individuals
    from the special hazards inherent in prolonged litigation with
    the sovereign.’”) (quoting United States v. McVeigh, 
    106 F.3d 325
    , 330 (10th Cir. 1997)); United States v. Kane, 
    646 F.2d 4
    , 7
    (1st Cir. 1981) (cautioning that if interlocutory orders related
    16
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    to discovery and other preliminary matters were appealable under
    the second paragraph of section 3731, “defendants’ rights to a
    speedy trial could be subverted”).
    As this case demonstrates, these principles, and the impact
    of expansive jurisdiction under Article 62, UCMJ, are of more
    than academic concern.             This is especially true in the military
    justice system, where defendants’ detailed military counsels are
    subject to reassignment and retirement.                      Appellant’s trial was
    automatically stayed under R.C.M. 908 in February 2008 by the
    Government’s interlocutory appeal of the military judge’s
    granting of a motion to quash a third-party subpoena.                             See
    R.C.M. 908(b)(4) (providing an automatic stay of a court-martial
    pending disposition by the CCA of an interlocutory government
    appeal).5       During that period Appellant lost the representation
    of both of his detailed military counsel due to retirement.
    Appellant’s Reply at 1, United States v. Wuterich, No. 08-6006
    5
    The majority implies that the Government’s appeal to this Court
    has not delayed this case -- as if Appellant’s court-martial
    might somehow proceed in parallel to the appellate proceedings
    currently before this Court -- because this Court has not
    granted a stay. Of course the court-martial has not proceeded,
    and it seems strange to suggest that it would while the Court
    entertained this appeal. In any event, the dearth of statutory
    procedures relating to whether a proceeding after the appeal to
    the CCA is stayed illustrates the concerns I previously raised
    regarding this Court’s assumption of jurisdiction to hear
    Article 62, UCMJ, appeals –- the statute does not countenance
    the involvement of this Court. See United States v. Lopez de
    Victoria, 
    66 M.J. 67
    , 74-77 (C.A.A.F. 2008) (Ryan, J., joined by
    Erdmann, J., dissenting).
    17
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    (C.A.A.F. Sept. 2, 2008); Transcript of Oral Argument at
    00:46:41, Wuterich, Nos. 08-6006, 08-8020, 08-8021.                            The
    Government concedes that these losses may prejudice Appellant’s
    defense.      Transcript of Oral Argument at 00:47:26, Wuterich,
    Nos. 08-6006, 08-8020, 08-8021.
    And to what end?           Common sense suggests that CBS endeavored
    to make the 60 Minutes segment at issue as newsworthy as
    possible, which at least recommends the idea that to the extent
    Appellant made incriminating, shocking, or newsworthy
    statements, they are almost certainly in the broadcast, which
    CBS provided to the Government.                   Despite the absence of any
    support for the suggestion that the contested outtakes contain
    anything new, and despite the fact the Government conceded at
    argument that it has evidence on every element of every offense,6
    the majority’s ruling allows the Government to continue to
    litigate this issue and further prejudice Appellant’s defense.
    Under the Browers construction, the CCA’s opinion would be
    vacated for lack of jurisdiction and Appellant’s trial would
    proceed apace.
    Conclusion
    Appellant challenges the jurisdiction of the CCA to hear
    the Government’s appeal of a military judge’s ruling quashing a
    6
    Transcript of Oral Argument at 00:45:44, Wuterich, Nos. 08-
    6006, 08-8020, 08-8021.
    18
    United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
    subpoena.       This Court has previously stated that the
    “jurisdiction of courts is neither granted nor assumed by
    implication” and that “[t]hat maxim is particularly apt in the
    case of an Article I court whose jurisdiction must be strictly
    construed.”        Loving v. United States, 
    62 M.J. 235
    , 244 n.60
    (C.A.A.F. 2005) (citations and quotation marks omitted).                              The
    majority concludes that the CCA has jurisdiction over a military
    judge’s order quashing a third-party subpoena, an order that did
    not rule that any evidence was inadmissible.                        I believe that
    this is an unwarranted expansion of the CCA’s jurisdiction that
    cannot be justified by the language of Article 62(a)(1)(B),
    UCMJ.     Because the majority’s holding mischaracterizes this
    Court’s prior ruling in Browers, threatens defendants’ Sixth
    Amendment right to a speedy trial, and opens the door to
    interlocutory appeals from discovery rulings, I respectfully
    dissent.
    19