Mark Boal's Efforts to Shield Berghdal Tapes Troubled By Recent Appellate Decision?

A federal judge wants Boal's lawyers on Monday to discuss what happened to the alleged mastermind of the 2000 U.S.S. Cole bombing.
Ramona Rosales

On Monday, U.S. District Court judge George H. King will be presiding over what is shaping up to be one of the most important First Amendment battles this year. He'll be hearing from an attorney for Oscar-winning screenwriter Mark Boal (The Hurt Locker, Zero Dark Thirty), who wants to enjoin a military court from issuing or enforcing a subpoena on 25 hours of recorded interviews conducted with U.S. Army Sgt. Bowe Bergdahl, facing a military court martial over his desertion from an Afghanistan post in 2009. Boal's lawsuit against the government has picked up the support of 36 media organizations including ABC, CNN, Fox News, NBCUniversal and the Washington Post, urging King to recognize that journalists' source materials are privileged and not subject to compelled disclosure.

Unfortunately for Boal, in advance of the hearing, King has maybe tipped his hand in how he's leaning by directing the parties on Thursday to be prepared to discuss with him the applicability of an Aug. 30 decision from the DC Circuit Court of Appeals.

That case involved Abd Al-Rahim Hussein Muhammed Al-Nashiri, the alleged mastermind of the 2000 bombing of the U.S.S. Cole, which killed 17 American sailors. He was charged by the government with war crimes, and a military commission was convened to try him. The appeal took up the issue of whether a district court should have preliminarily enjoined the trial upon Al-Nashiri's argument that his offenses were outside the boundaries of a military commission.

Boal is certainly no terrorist, but King appears to be interested in the DC Circuit's analysis on the appropriateness of intervention in ongoing proceedings of a military court. The reason why the decision could be a bad sign for Boal is the appellate court's conclusions about the appropriateness of abstention.

The decision regarding Al-Nashiri is contextualized by a 2006 Supreme Court decision on the legality of military commissions (Hamdan v. Rumsfeld), Congress' subsequent passage of the Military Commissions Act, and about 40 years of legal precedent stemming from another Supreme Court case (Schlesinger v. Councilman) directing federal courts to generally refrain from enjoining ongoing court-martials.

Under the latter case, there must be "equally compelling" factors for abstention, and the DC Circuit concluded "that to abstain we must be assured of both the adequacy of the alternative system in protecting the rights of defendants and the importance of the interests served by allowing that system to proceed uninterrupted by federal courts."

At first blush, that might sound like good news for Boal, who argues it would be "especially unfair" for him to have to make constitutional arguments before a military court that "almost certainly has zero experience with the issue" of reporter's privilege, but then, the DC Circuit appears to give military courts the benefit of the doubt.

Al-Nashiri, for instance, argued that the military commission set up to try him suffered deficiencies and that a pretrial intervention was warranted to examine the performance of the system that Congress had established.

The DC Circuit, though, retorted in its opinion (read here) that it must be assumed that the military court will vindicate constitutional rights and that "in the absence of any claim that the shortcomings to which Al-Nashiri points render the congressional scheme unlawful or will prevent Al-Nashiri from fully defending himself, the district court did not err in deeming that scheme adequate."

This could mean that the onus is on Boal to fully articulate why a military court won't do a good job in considering his arguments on why a military prosecutor shouldn't be able to obtain complete unedited audio recordings of interviews with Bergdahl first aired on the acclaimed podcast Serial. The government has argued in its written brief that Boal shouldn't get "unprecedented" relief and should have to first take his objections to a military court.

The recent decision by the DC Circuit also addressed the importance of abstention, finding that while federal courts have jurisdiction to take up challenges, they should use such powers with discretion, especially on matters of national security. The controversial case of Bergdahl can be seen through many prisms, as Serial fans learned, and it will be interesting to see how the government frames the dispute on Monday if the Justice Department is asked to talk about the "important countervailing interest" in letting the case proceed without interference on the issuance of a subpoena. The DC Circuit wrote, "In the realm of national security, the expertise of the political branches is at its apogee."

The stakes are high. Besides the First Amendment implications for reporters and their sources, Boal himself suggests he risks the possibility of a contempt charge for not complying with a subpoena. That could potentially put him in jail.