Mark Boal's Bergdahl Tapes: U.S. Govt. Tells Federal Judge to Stand Down

Bowe Bergdahl - H - 2016

In what has quickly become one of the year's must-watch First Amendment fights, Justice Department lawyers for the U.S. Government are strongly urging a California federal judge to reject Mark Boal's attempt to shield 25 hours of recorded interviews conducted with U.S. Army Sgt. Bowe Bergdahl. In court papers filed late Friday, the government calls Boal's legal maneuver "unprecedented" and says it would represent an "intolerable burden by infringing on the independence and function" of a military court.

Bergdahl is facing a military court martial over his desertion from an Afghanistan post in 2009. When Bergdahl returned home after being exchanged for five Taliban prisoners held at Guantanamo Bay, he was interviewed in 2014 by Boal, the screenwriter and producer of The Hurt Locker and Zero Dark Thirty. Excerpts of the interviews were played on the podcast Serial.

Major Justin Oshana is the JAG who will be prosecuting Bergdahl at a trial expected to take place in early 2017. He's determined that unaired audio recordings are relevant to the case and was in discussions with Boal's camp about obtaining them. With the prospect of a subpoena looming, Boal filed a lawsuit to stop the government's pursuits. According to his complaint, "Without this Court’s protection … Boal will be forced to provide a military prosecutor in North Carolina with unpublished materials and confidential information or face contempt charges. …"

Boal's invocation of the First Amendment and "reporter’s privilege" has attracted 36 of the nation's largest media organizations to support him in a friend-of-the-court brief.

The U.S. government submitted its first detailed briefing in the case on Friday as U.S. District Judge George H. King entertains a motion for a temporary restraining order.

"The relief that Plaintiffs seek in this case is not just extraordinary; to the Defendants’ knowledge, it is also unprecedented," states the government. "Plaintiffs ask this Court to intercede in the process of an independent, coordinate court — a military court-martial — and to enjoin that court from issuing or enforcing a subpoena even before that court has had the opportunity to consider Plaintiffs’ objections to such process in the first instance. Defendants are not aware of a court that has so intruded into court-martial proceedings before, and Plaintiffs identify no reason why this Court should be the first to do so now."

According to the government, Boal may present his constitutional arguments before a military court, and if the outcome is not what he desires, may further push his case before the Army Court of Criminal Appeals as well as the U.S. Court of Appeals for the Armed Forces. Noncompliance with a subpoena would potentially mean criminal prosecution by the Justice Department in a civilian court.

In its court briefs, the U.S. government emphasizes that a federal court simply doesn't have the jurisdiction to intervene, and points to Schlesinger v. Councilman a 1975 Supreme Court opinion — for the proposition that coordinate courts like military proceedings get deference.

The big difference here is that the litigant is not a member of the Armed Services, but rather a civilian. Nevertheless, the government maintains, "The issuance of a subpoena to a civilian is squarely within the jurisdiction of the court-martial, as is the power to consider the civilian's motion to quash that subpoena, and Plaintiffs do not argue otherwise."

If this doesn't work, the federal government brings a second argument to the table — invocation of its sovereign immunity and the lack of any cited statutory waiver allowing the U.S. to be sued without its consent. 

Based on a reference in Boal's court papers, largely silent on the basis for bringing the lawsuit, the government addresses Section 702 of the Administrative Procedure Act, which allows legal actions in U.S. courts seeking non-monetary relief for claims that an "agency or an officer or employee" failed to act "under color of legal authority."

To this, the U.S. government responds "that 'an agency' does not include 'courts martial.'"

Here's the government's full brief: