The battle continues between Mark Boal and the U.S. Army, which has threatened to subpoena the Oscar-winning screenwriter’s taped interviews with Sgt. Bowe Bergdahl, who is being court martialed for desertion. Boal’s attorney, Jean-Paul Jassy, said in a brief filed today that the defendants “cite no other case in American history where a military prosecutor has made such threats against an individual journalist.”
In a suit filed last month, Boal urged a federal judge in Los Angeles to quash the subpoena, saying it violated his First Amendment right to protect confidential information gleaned during 25 hours of taped interviews with Bergdahl, who was held captive by the Taliban for five years.
The Justice Department responded that Boal’s objections should be heard by a military court and not by a federal judge, saying that the relief he seeks “is not just extraordinary … it is also unprecedented.”
Jassy countered today that it’s the Army’s action that is “unprecedented.”
“We are before this court because a military prosecutor is threatening to subpoena a civilian, non-party journalist, to produce unpublished and confidential materials – or else face incarceration,” the brief states. It notes that the defendants in the case, which include President Obama, Secretary of Defense Ashton Carter and Secretary of the Army Erik Fanning, “cite no other case in American history where a military prosecutor has made such threats against an individual journalist.”
The brief states: “It is entirely within the Government’s power to make Mark Boal’s request for relief disappear by simply withdrawing the threat of subpoena. But because the military prosecutor insists on proceeding with his threats, Boal needs this court to protect his constitutional rights.
“Despite the DOJ’s effort to block Mr. Boal’s right to have the case heard in a Federal court,” Jassy said, “it has never denied his First Amendment rights, which plainly and unashamedly violates its own policy against subpoenas of this nature. This is an unprecedented effort by an individual military prosecutor to overreach and intrude into a civilian reporter’s life. There are ample precedents for federal courts protecting private citizens’ rights. We are assured that the weight of the law, as well as straightforward morality is on our side.”
Boal, who won the screenwriting Oscar – and shared the Best Picture Oscar – for 2008’s The Hurt Locker, said he would suffer “irreparable injury” to his career and reputation if he’s forced to turn over confidential information he obtained during his interviews with Bergdahl, parts of which aired on the Serial podcast, which is sponsored by WBEZ, the National Public Radio station in Chicago.
Boal’s position is supported by dozens of news organizations, including the Washington Post, the Associated Press and all the major network news outlets.