Mark Boal Focuses on Fact He's a Civilian in Fight to Shield Bowe Bergdahl Tapes

The screenwriter argues that it would be grossly unfair for him to rely upon a military court to recognize his asserted constitutional rights.
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Kathryn Bigelow and Mark Boal

A California federal judge will soon decide whether or not to restrain a military prosecutor from issuing a subpoena to Mark Boal, the screenwriter and producer of The Hurt Locker and Zero Dark Thirty, who is aiming to shield about 25 hours of recorded interviews conducted with U.S. Army Sgt. Bowe Bergdahl.

Boal has asserted reporter's privilege in a lawsuit filed last month. In response, the Justice Department has told U.S. District Court judge George H. King not to infringe on the independence of a military court that is set to preside over Bergdahl's court martial. The government asserts that Boal can take his arguments about the sacrosanctity of his journalism and constitutional rights there.

On Monday, Boal submitted his retort with heavy emphasis on his civilian status. He points out that the government has failed to cite any other case in American history where a military prosecutor has attempted to subpoena unpublished materials from a civilian journalist.

"Boal never joined the Armed Forces," states the court brief. "He did not submit to the narrowed rights attendant to military life. Although there is no dispute that Boal is a civilian and not a defendant in any court-martial, Defendants’ opposition brief relies heavily on cases where members of the Armed Forces asked federal courts to enjoin court-martial proceedings in which they were criminally accused. Boal is not asking this Court to stop the court-martial of Sgt. Bowe Bergdahl."

Dozens of media groups are supporting Boal's bid to shield his interviews, and Boal is looking to avoid the possibility of any contempt charge that could mean a jailing. He has filed in California federal court with hopes of taking advantage of precedent in the 9th Circuit regarding reporter's privilege. The outcome will likely turn on how King regards jurisdiction. 

In the latest court brief, Boal contends that "Consistent with their equitable powers, federal district courts may also enjoin the actions of federal officers in Article I courts," and that because Boal is a third-party civilian with constitutional claims, this case deserves "special attention" and that it would be "especially unfair" for him to have make constitutional arguments before a military court that "almost certainly has zero experience with the issue" of reporter's privilege.

"The Government’s suggestion that Boal litigate in a military court system that does not clearly recognize his constitutional rights or guarantee timely or meaningful civilian review is not acceptable," states the brief.

As for sovereign immunity, the principle that the federal government can't be sued without explicitly authorizing a lawsuit via statute or otherwise, Boal argues there's an exception to stop federal officers from ongoing and future infringements of constitutional rights. Here's the full brief.