Journalist and Oscar-winning screenwriter Mark Boal has told a federal judge that he would suffer “irreparable injury” to his career and reputation if he is forced to turn over confidential information he obtained during 25 hours of taped interviews with accused Army deserter Sgt. Bowe Bergdahl.
On Wednesday, under the threat of a subpoena, Boal filed a suit against President Obama, Defense Secretary Ashton Carter and the Army major who is prosecuting Bergdahl, seeking an injunction to stay the subpoena, which the Army said would be issued today. It’s a case that puts military justice on a collision course with a journalist’s First Amendment rights.
In a separate declaration filed Wednesday, Boal said: “During the course of my interviews of Bergdahl, confidential sources were revealed. I believe that those sources would suffer serious adverse action, including devastating adverse employment action, if their identities were revealed.”
Shield laws that allow reporters to protect their sources vary from state to state, and the military has found, in some cases, that they do not apply to military courts-martial. That was the case in 2009, when a military judge ruled that CBS did not have to hand over the unaired footage of a 60 Minutes interview with a Marine who was being investigated for alleged crimes committed in Iraq. That ruling, however, later was overturned by a military appeals court, which found that military courts did not have to recognize a reporter’s confidentiality privilege.
In his declaration, Boal said that he began researching Bergdahl’s case in summer 2014, shortly after Bergdahl had been released by the Taliban after five years of captivity. “When I interviewed Sergeant Bergdahl, I made promises of confidentiality in connection with portions of the interviews,” Boal said in his declaration. “From late 2015 through 2016, I used excerpts of some of the recorded interviews with Sergeant Bergdahl in the popular podcast Serial. Before I shared any of the excerpts with the Serial hosts, I sought and gained Sergeant Bergdahl’s permission to broadcast interview portions regarding specific subjects. Sergeant Bergdahl deemed other topics to be off-limits, and therefore I did not share such material with Serial or the public.”
The military, however, now wants to look at all of the taped material.
“Investigative reporting often – as in the case of my interviews of Bergdahl – requires building piece upon piece to understand a story and then effectively convey that story to the public,” Boal said in his declaration. “Some of those pieces are available for public consumption while others must be maintained in confidence as background or ‘off the record’ in order to obtain and ascertain what can be told on the record.
“As a journalist, it is of paramount importance to my job and my reputation to be able to interview witnesses and maintain information in confidence. If I cannot be trusted by my sources and my interviewees to keep information told ‘off the record’ or in confidence confidential then interview subjects and sources will be reluctant to speak with me, and my ability to report the news and other matters of public concern will suffer irreparably. That will harm society because the news will be stymied and the public will be uninformed or misinformed on critically important subjects.
“Likewise, if I am seen as an arm of a prosecutor – i.e., as someone who will get statements and information in the course of newsgathering that can then be used against an interview subject or to otherwise aid the government – then my ability to get newsworthy information and then report on newsworthy events will suffer irreparably because sources and subjects will be afraid to talk to me for fear that everything they say will end up on a prosecutor’s desk.
“The very issuance, let alone the enforcement, of the threatened subpoena in this case puts me in an impossible position,” the filing adds. “I, as a civilian, must either face contempt proceedings stemming from my refusal to divulge unpublished and confidential information in a military court thousands of miles from my home; or I must sacrifice my reputation, my sources, the integrity of my work and my constitutional rights. Even being put to that choice will cause me irreparable injury because it will signal to my contacts, interviewees and subjects that my work is ripe for the picking by a military prosecutor. Moreover, the prospect of a sweeping subpoena actually being enforced against me only heightens my concern that my injuries will be realized.”
Boal, who won the screenwriting Oscar for The Hurt Locker and was nominated for Zero Dark Thirty, asked the court to “protect my well-recognized, constitutionally-based rights as a journalist. I am a civilian from Los Angeles. I am not in the military, and my rights should not be subjugated as if I were. My right to gather and disseminate newsworthy material should not be sacrificed to a military prosecutor on a fishing expedition.”