Boal, the screenwriter of “Zero Dark Thirty” and “The Hurt Locker,” was planning to make a movie about the U.S. Army sergeant with director Kathryn Bigelow. Bergdahl spent five years as a prisoner of war of the Taliban until his release in May, 2014, in exchange for five Taliban prisoners at the U.S. military facility in Guantanamo Bay, Cuba.
Boal filed the suit in Los Angeles federal court on Thursday, naming as defendants President Barack Obama, Department of Defense Secretary Ashton B. Carter, Secretary of the Army Eric Fanning, Army court-martial convening authority General Robert Abrams and U.S Army Prosecutor Major Justin Oshana.
Boal said he filed the action to prevent the “nearly unprecedented” move by the military prosecutor in the Bergdahl case to force a private citizen into military court to relinquish legally protected materials for an ongoing military trial.
Boal has been a journalist for 20 years and won Academy Awards for best picture and original screenplay for “The Hurt Locker,” which drew upon his experiences as an embedded reporter in Iraq in 2003.
“The threatened subpoena from the North Carolina-based military prosecutor against a civilian is unlawful and inconsistent with the First Amendment, the common law, Department of Justice guidelines for the issuance of subpoenas to reporters and state protections for reporters,” the suit said.
“Mark Boal fully supports the military justice system and believes that Bergdahl has to face the music in a fair judicial process,” said Boal’s attorney Jean-Paul Jassy. “But Boal is a civilian and a journalist, and under the First Amendment, he should not be hauled into a military court to divulge his unpublished and confidential materials. We are asking the federal court in Los Angeles to protect Mark Boal’s constitutional rights.”
The suit asserts that Boal’s taped confidential interviews with Bergdahl are protected under the First Amendment, and notes that many of Bergdahl’s revelations made during his 25 hours of interviews were made public — with his express and legal consent — by way of the multi-part “Serial” podcast.
“I support the Army, but this particular military prosecutor’s tactics contradict and undermine the stated principles and policies of the Commander and Chief and the Attorney General to protect First Amendment rights,” Boal said in a statement. “It’s Orwellian, and bizarre.”
Boal’s litigation is supported by the Reporters Committee for Freedom of the Press.
“We firmly stand with Mr. Boal in his effort to protect these tapes,” says the organization’s executive director Bruce Brown. “Well-established law recognizes that journalists cannot do their jobs to keep the public informed if they cannot work free from government interference.”
Bergdahl faces one count of “desertion with intent to shirk important or hazardous duty” and one count of “misbehavior before the enemy by endangering the safety of a command, unit or place.” The trial is set for February.