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Mark Boal, the screenwriter and producer of The Hurt Locker and Zero Dark Thirty, contends in a federal lawsuit filed on Thursday that a potential subpoena from a military prosecutor demanding about 25 hours of recorded interviews conducted with U.S. Army Sgt. Bowe Bergdahl flouts his rights as a reporter. He’s holding up the First Amendment and seeking a declaration from a judge that would prevent the subpoena from issuing or being enforced.
“This case is brought to protect and defend Plaintiffs’ constitutional right to communicate important stories about matters of immense public concern,” his lawsuit states. “Without this Court’s protection, Plaintiffs — and specifically Boal — will be forced to provide a military prosecutor in North Carolina with unpublished materials and confidential information or face contempt charges … .”
In 2015, Boal interviewed Bergdahl, who deserted his post in Afghanistan amid mysterious circumstances and was later found to be with the Taliban. In the interviews, Bergdahl said he was concerned about poor conditions on the ground and was trying to purposely cause an alarming event that would command notice from higher ups in the military chain-of-command. Initially, many believed that Bergdahl was a traitor who joined forces with the Taliban, but Bergdahl asserts that he never intended to get captured. Boal’s interviews with Bergdahl also cover his controversial release where the soldier was exchanged for five Taliban prisoners held at Guantanamo Bay. The interviews were played in part on the acclaimed podcast Serial with Boal having plans to develop the story into a feature film.
Bergdahl is scheduled to go to trial on a court martial for desertion and misbehavior in February.
The United States of America, President Barack Obama, Defense Secretary Ashton Carter and several other members of the military including Major Justin Oshana — Bergdahl’s prosecutor — are named as defendants. According to the complaint (read in full here), Oshana has provided Boal’s lawyers with a draft of the subpoena, which demands complete unedited audio recordings.
Although there is no federal law protecting reporters’ sources (even if such a law is constantly being proposed by lawmakers including vice presidential nominee Mike Pence), Boal is holding up the First Amendment as well as common law and state statutory provisions as protecting a right to gather and publish newsworthy material free of government interference.
In a statement upon filing, Boal says, “I support the Army, but this particular military prosecutor’s tactics contradict and undermine the stated principles and policies of the Commander and Chief and the Attorney General to protect First Amendment rights. It’s Orwellian, and bizarre.”
He is being represented by Jean-Paul Jassy (who represented The Hollywood Reporter in a motion to open up court records pertaining to a Sumner Redstone healthcare battle).
This is not the first time that Boal’s research has provoked court battles and courted political controversy. For instance, after Zero Dark Thirty came out, there was an extensive Freedom of Information Act fight aimed at finding out how much the government cooperated with Boal and director Kathryn Bigelow about the hunting and killing of Osama Bin Laden.
This time, Boal is against cooperating with the government and is hoping to prevent disclosure.
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Writers Guild of America