Military Court May Decide Filmmaker’s Subpoena Fight

     LOS ANGELES (CN) — A federal judge on Monday considered whether he should let a military court decide whether prosecutors can subpoena Oscar-winning filmmaker Mark Boal for hours of unedited interviews with “Serial” podcast subject Army Sgt. Bowe Bergdahl.
     Earlier this year, Boal sued the United States government and President Barack Obama in Federal Court after a military prosecutor asked him to hand over 25 hours of unedited recorded interviews with Bergdahl, who is facing desertion charges at a military court in Ft. Bragg, North Carolina.
     At a White House Rose Garden ceremony in 2014, Obama announced with Bergdahl’s mother and father that their son was returning home in exchange for Guantanamo Bay detention camp prisoners. The move proved highly controversial after it was revealed that Bergdahl had left his post in eastern Afghanistan before his capture by Taliban fighters.
     Boal — a former Rolling Stone reporter who later wrote and produced “The Hurt Locker” and “Zero Dark Thirty” — contributed to the podcast by providing producers with the hours of his taped interviews with Bergdahl.
     In July, Boal filed a lawsuit in Los Angeles claiming that military prosecutor Maj. Justin Oshana had threatened to subpoena him as the army makes its case against Bergdahl. Boal says that his unedited recordings cited confidential sources and asked the court to prevent military prosecutors from issuing a subpoena.
     After a morning hearing at the Edward Roybal Courthouse in downtown LA, Boal described how the specter of a subpoena has impacted his work.
     “I think any reporter knows that promises of confidentiality and being able to keep those promises are a central part of the job,” Boal told Courthouse News. “This is a real issue. If it wasn’t, I wouldn’t be fighting it, and I think it’s important to me and I think to the press more broadly.
     “I would just reiterate that the Department of Justice should be following their very clear guidelines and the fact that they’re even arguing this case is, I think, ill-advised,” Boal added.
     The filmmaker was present in the gallery of the sixth-floor courtroom as U.S. District Judge George King heard the arguments from government attorney Julia Berman, who said the judge should allow the military court to review Boal’s objection to the subpoena before weighing in.
     “Defendants are not aware of a court that has so intruded into court-martial proceedings subpoena before, and plaintiffs identify no reason why this court should be the first to do so now,” Berman wrote in court papers filed on Aug. 5.
     King appeared receptive to the argument. He told Boal’s attorney Jean-Paul Jassy that allowing the military court to review the case would not prevent Boal from returning to the court at a later date if he lost.
     “He doesn’t have to bet the farm,” King told the attorney, adding that the reporter’s privilege under the First Amendment is not “absolute.”
     Jassy said, however, that King’s courtroom was the best place for his client to argue his constitutional claims.
     “We’d be walking into a void,” Jassy said of the suggestion that Boal take his chances in military court.
     The attorney said that Boal had already established “irreparable harm” because his sources were refusing to talk to him and his reputation had been harmed.
     “Never before in American history as far as we’re aware has an army prosecutor tried to subpoena a civilian reporter,” Jassy said after the hearing. “This is not something that happens every day, so that by itself is unique.”
     The Jassy Vick attorney noted that the Justice Department is defending a subpoena that it would never try to enforce itself.
     “Under its own guidelines, it needs to go through a very vigorous process in order to issue a subpoena and yet it’s here in court defending a subpoena being issued from an army prosecutor across the country,” he said.
     King took the case under submission.

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