Judge Urges Mark Boal and U.S. Government to "Informally" Resolve Bergdahl Tapes Dispute

"The reporter's privilege is not absolute," says federal judge George H. King.
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Mark Boal

Screenwriter Mark Boal and the U.S. government could be headed to what is effectively a settlement conference after a federal judge on Monday urged the parties to resolve their dispute over interview tapes of U.S. Army Sgt. Bowe Bergdahl informally.

Boal asked the court to enjoin military prosecutors from issuing a subpoena for 25 hours of interviews of Bergdahl, who is facing trial for desertion.

U.S. District Court Judge George H. King says he doesn't want his ruling on the matter to "short-circuit" any progress the parties have made toward resolving the matter outside of court.

Last week, King asked attorneys to come to court prepared to discuss if a recent DC Circuit decision involving the appropriateness of the civilian court interfering in military proceedings affects this case. However, much of the Monday hearing was spent discussing the various reasons Boal's case is uncharted territory.  

"This is an unusual case," said Boal's attorney Jean-Paul Jassy. "Never before in American history has an Army prosecutor subpoenaed an individual reporter." Jassy says he can't point to case law to show whether the court-martial acknowledges the reporter's privilege because it hasn't ever been considered — which he says puts his client at a disadvantage in an "alien" court. 

Meanwhile, the government's attorney Julia Berman argues the novelty of the issue shouldn't be held against the military courts. Further, she reminded the court that Boal chose to approach and interview a service member while he was under investigation.

Jassy also argues that the government has not articulated why it even needs the interview tapes, when it already has full access to Bergdahl himself and millions of pages of files from various government agencies.

King told Jassy he's putting the cart before the horse, and the heart of the dispute is not whether Boal can argue that the reporter's privilege shields him from turning over confidential recordings but where and when it is most appropriate for him to do so.

"The reporter's privilege is not absolute," King says. "The reporter's privilege is not an immunity to subpoena. It would be absurd to think that."

King says the biggest challenge in relying on case law is that none of the cases cited by attorneys "contemplate a return to the court that is abstaining" — which seems to be what King has in mind.

While King told attorneys during the hearing that he hasn't yet decided if he'll punt the decision to the court-martial, his in-court comments suggest otherwise.

During his questioning of Berman, King posed a hypothetical. If Boal fought the subpoena before the court-martial and was denied, he could then take his case to the Army Courts of Criminal Appeals for intermediate review. If still denied, he could try again before the Court of Appeals for the Armed Forces. Then, after exhausting the military court, he could request an injunction in federal court before the date he's due to turn over the files under the subpoena.

In order for federal prosecutors to indict Boal, they'd have to prove he "willfully" broke the law — which theoretically wouldn't be possible until after the military courts denied his efforts to quash the subpoena, according to King.

That process, King says, seems to be the best shot at "minimizing the friction" between the military and civilian courts. So unless King dramatically deviates in his ruling — or the parties reach an agreement — it appears Boal is headed to military court to fight the subpoena.