Feds Ask Judge to Allow Bergdahl Subpoena

     (CN) — The Justice Department filed a memo opposing a filmmaker’s assertion of reporter’s privilege over his uncut interviews with Sgt. Bowe Bergdahl for the podcast “Serial.”
     Mark Boal, who wrote the screenplays for “The Hurt Locker” and “Zero Dark Thirty,” spoke to Bergdahl for more than 25 hours to learn why the sergeant left his combat outpost in Afghanistan’s Paktika province and explore his life under Taliban captivity.
     Their conversation filled 11 episodes of the second season of “Serial,” a Peabody-award winning show that had recently made a splash by poking holes in the murder trial of Baltimore resident Adnan Syed.
     Boal’s exclusive chat with Bergdahl was an undeniable coup.
     The 30-year-old sergeant, who had never spoken to the press before, broke his silence at great risk.
     Four days after the first episode aired in December, an Army investigating officer referred Bergdahl’s case for court-martial on counts of desertion and misbehavior before the enemy, allegations that could put the young sergeant away for life.
     Military prosecutors and their commander-in-chief took notice of the podcast.
     In March, Bergdahl’s prosecutor, Maj. Justin Oshana, subpoenaed Boal’s production company Page 1 for the “complete unedited audio recordings” of the filmmaker’s conversations with the sergeant, on behalf of President Barack Obama.
     With a February trial looming, the Hollywood filmmaker and longtime war correspondent told a Central California federal judge last month that quashing his subpoena is a matter of freedom of the press.
     “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protection, plaintiffs — and specifically Boal — will be forced to provide a military prosecutor in North Carolina with unpublished materials and confidential information or face contempt charges in this court under [federal law],” the 11-page complaint states.
     On Friday, the U.S. Justice Department answered with its own court filing, urging the judge to reject Boal’s bid to quash the government’s subpoena.
     “The relief that plaintiffs seek in this case is not just extraordinary; to the defendants’ knowledge, it is also unprecedented. 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,” Prosecutor Julia Berman wrote for the government. “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.”
     Berman also argued that sovereign immunity bars Boal’s claims.
     “Although it is black letter law that the government is not subject to suit without its consent, plaintiffs have identified no applicable waiver of sovereign immunity,” the government’s filing states. “Without an applicable waiver, the court lacks subject matter jurisdiction to address the plaintiffs’ claims.
     However, in a friend-of-the-court brief, the Reporters Committee for Freedom of the Press and 36 other media organizations said they support Boal’s request to quash the “Serial” subpoena.
     “The compelled disclosure of a journalist’s unpublished work product or confidential materials has a destructive effect upon the news media’s ability to gather news and report on matters of public concerns,” the brief states. “This is important not just to establish that Boal, specifically, is entitled to protection, but because as the definition of what constitutes journalism and what form it takes continues to advance at a rapid pace, established protections for journalists must continue to evolve to encompass a wide variety of forms and formats.”

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