Season 2 of the popular NPR podcast Serial was about the Bergdahl case, and the source material for the podcast included recordings of post-recovery interviews between Bergdahl and filmmaker Mark Boal. Specifically, there are roughly 25 hours of recorded conversations (according to the podcast – link to episode transcript) discussing Bergdahl’s life, the reasons he left his unit, and his capture and captivity. Some of those recordings were played during the Serial podcast, and they included numerous damaging admissions by Bergdahl (some discussed here).

It’s unsurprising that Army prosecutors would seek to obtain those recordings are review them for additional evidence. Boal, however, is trying to prevent that.

In a case filed in the U.S. District Court for the Central District of California on July 20, 2016, Boal seeks to enjoin issuance or enforcement of a subpoena for the recordings. The case is Mark Boal et al. v. United States of America et al., docket # 2:16-cv-05407-GHK-GJS.

A copy of the complaint is available here. It argues, in part, that:

Issuance and enforcement of the Subpoena will irreparably harm Plaintiffs. Either Plaintiffs will be forced to reveal unpublished and unbroadcast segments of interviews gathered for news and public affairs reporting purposes, which include confidential information, or Plaintiffs will be subjected to contempt proceedings for their failure to do so. Disclosure will irreparably damage Plaintiffs’ ability to gather news and give sources and subjects confidence in their ability to keep materials confidential. Contempt proceedings will cause loss of liberty or property that is unwarranted and unconstitutional. In either event, Plaintiffs – third parties to the Bergdahl court martial – will be unduly burdened by the Subpoena and forced to expend substantial sums on counsel.

Complaint at 6-7.

Various media outlets have coverage of the suit, including the Wall Street Journal (blog), the New York Timesthe Los Angeles Times, and The Hill.

25 Responses to “Journalist seeks protection from Government subpoena in Bergdahl case”

  1. Joseph Wilkinson says:

    I was interested to see what the legal basis was….but these three “claims” seem to spend all their time establishing jurisdiction (“we have a case or controversy…we will suffer irreparable harm…”), followed by a vague handwave at “constitutional and statutory rights.”    The prayer for relief slightly-less-vaguely mentions “constitutionally protected rights under the First Amendment…and common law.”     But the best I could read from that is an assertion of a “First Amendment journalist-source privilege”…about which Wilford Brimley was so eloquent in Absence of Malice. 
     
    It looks like quick-dismissal material.   Am I missing something here?

  2. Lone Bear says:

    I think the issue is straight forward, and the court order will stand.  Then what if the journalist fails to produce? Will the Army really throw him in jail? Can they? I think the Government will prevail, but I don’t think there are any real teeth for enforcement.  Does anyone know of a civilian being punished for failure to produce evidence in a military court?

  3. Zachary D Spilman says:

    The failure to produce evidence at a court-martial, Lone Bear, is a refusal to appear or testify. That’s addressed in Article 47:

    (a) Any person not subject to this chapter who—

    (1) has been duly subpoenaed to appear as a witness before a court-martial, military commission, court of inquiry, or any other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission, or board, or has been duly issued a subpoena duces tecum for a preliminary hearing pursuant to section 832 of this title (article 32);

    (2) has been provided a means for reimbursement from the Government for fees and mileage at the rates allowed to witnesses attending the courts of the United States or, in the case of extraordinary hardship, is advanced such fees and mileage; and

    (3) willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce;

    is guilty of an offense against the United States.

    The case is prosecuted in district court. See Article 47(b). The U.S. Attorney is obligated to bring the prosecution upon certification of the predicate facts. See Article 47(c).

    A military judge might also try to punish a refusal to appear or testify as a contempt in violation of Article 48. However, the separate enumeration of refusal as a federal offense under Article 47 shows clear congressional intent to preclude punishing such refusal as contempt under Article 48. The discussion to R.C.M. 809(a) further supports that contempt is not appropriate in such a case. Furthermore, the refusal to appear or testify is not necessarily contemptuous. Accordingly, I believe it would be a clear abuse of authority for a military judge to punish the refusal to appear or testify as contempt. 

  4. stewie says:

    So they could throw him into court but for how long? Are they going to delay the trial indefinitely until he complies? I don’t think so. So one assumes the civilian reporter could calculate that at most he might spend a few months in prison.

  5. Lieber says:

    Ah military folks, so insular.  You don’t understand the optics.  The recordings aren’t going to be turned over and Boal isn’t going to jail.

  6. RY says:

    IMHO, whatever the technical possibilities, I wager TC proceeds without this evidence.  The journalists have a strong need to preserve confidentiality and fight disclosure at all costs.  I suspect they would refuse even if threatened with jail.  Meanwhile, TC already has a host of evidence from what aired; is it really in Army’s interest to delay trial even longer?  Realistically, what more do they think they will get given what has already aired and what they already have?  And how much of a difference would it really make?  The case isn’t overly complex.  People seem to fall in one side or the other on this.  Assemble your court and get on with it already. 

  7. afjagcapt says:

    Never worked an issue like this so maybe there is a reason this wouldn’t work, but could a USDC not just issue a warrant for the recordings and LE seize them directly rather then having the reporter lengthen his 15 minutes by “bravely” going to jail? I would submit that what has aired publicly has more than established PC that they contain evidence. Obviously, he’d try to quash warrant, but that would happen after its issuance and seizure of the devices/equipment likely to contain the information. Would that not be workable? Trying to learn here :)

  8. Lieber says:

    sigh.  If the Army takes on the press, the press wins.  

  9. Philip Cave says:

    How did Wuterich turn out on these issues–any similarity?

  10. Peanut Gallery says:

    What Lieber said. 

  11. Concerned Defender says:

    As I understand it the reporter wants to conceal the identities of some anonymous individuals not germane to the action?  Seems the easy solution is to simply redact those named individuals.  
    As been pointed out, failure to comply with subpoena is grounds for contempt.  Perhaps if it’s not complied with the government could use this concealment of information tactically as an implied statements against interest and let the panel’s imagination of this concealment prevail.  Doesn’t look good when an accused appears to conceal information.  
    Or perhaps simply go straight to the source and demand a copy from the accused, who certainly has access to a copy.  While he may not be intending to introduce any of that at trial, it in intertwined with his defense and therefore perhaps fair game for a discovery request, since it’s out in public.  The MJ certainly has power over the defense counsel and the accused.  Let the accused counsel squirm and try to pretend they don’t have a copy. 
     
     

  12. Michael Lowrey says:

    Concerned Defender, care to explain why you are so certain Bergdahl has a copy of the recordings? If you’re presuming that journalists just automatically make extra copies of interviews for their subjects you are quite mistaken.

  13. Concerned Defender says:

    Michael Lowrey says:
    July 25, 2016 at 11:29 PM  
     

    Concerned Defender, care to explain why you are so certain Bergdahl has a copy of the recordings? If you’re presuming that journalists just automatically make extra copies of interviews for their subjects you are quite mistaken.

    I assume – perhaps wrongly – that his defense counsel would be competent enough to require that be a stipulation of any interview.  It is nearly inconceivable that the accused would have done the interview sans his defense team’s knowledge, advice, and even consent.  Almost certainly they were present, and/or received a copy to approve.  with such a high profile case it might even be malpractice to not have some hand in the preparation or final review of such a thing – Perhaps even final say over editing or airing anything in particular.   Seems pretty elementary.   I would not believe that the Accused just went off and did this without his lawyers knowledge and some participation and possession of the interview in raw form.  Might even be malpractice, unless the Accused just went rogue and did this on his own.  Dollars to donuts they have a copy. 
    Easiest way to find out, file the motion to compel reciprocal discovery for the interview, and let the defense team respond under oath.  If they are willing to claim potentially perjure themselves or violate UCMJ Article 107, and deny possession, fine.  

  14. DCGoneGalt says:

    Quite the contrary, I assume his defense counsel wouldn’t want him, and would advise against him, incriminating himself on camera and would sure as hell not want to keep tapes of it in his possession.

  15. QB says:

    This is a simple First Amendment calculus, right? The journalist is entitled to certain protections and is not entitled to others. A USFD judge should be able to handle this with ease.
    I haven’t studied this area of law in quite some time, but I sense that a compelling issue, in relation to confidentiality, is that the 25 hours of recording were created with the understanding that they could be used for the podcast. If Bergdahl had already released the information to the journalist for public broadcast, then nondisclosure of some of the recordings was purely journalistic discretion. I don’t find that to be a convincing basis for quashing the subpoena.
    I agree that the names of other sources unrelated to Bergdahl’s recordings have no business being disclosed, but why would they even be at play here? If Bergdahl mentioned them, then they’re relevant. And if this journalist wants to hide evidence he created, he should have thought of that before pushing “record.”
    I haven’t listened to the podcast, so I don’t know which side of the ideological aisle the podcast attempts to side with, but part of me wonders whether recordings not included in the podcast damage the message the podcast attempts to send.

  16. Lieber says:

    CD: what are the rules for reciprocal discovery?  I’d suggest learning something about the UCMJ before pontificating on it.

  17. Vulture says:

    As I recall the reason that Paula Broadwell did not get prosecuted was because of her journalistic credentials.  If in that set of circumstances, with classified material at issue, First Amendment issues prevailed, how is the Government going to prevail on this one?

  18. Concerned Defender says:

    Lieber says:
    July 26, 2016 at 11:49 AM  
     

    CD: what are the rules for reciprocal discovery?  I’d suggest learning something about the UCMJ before pontificating on it.

    This isn’t really my issue to resolve, I haven’t seen the soap opera, and not aware if discovery has been filed.  However just thinking off the cuff ART 46 and RCM 701 in summary/pertinent part – and plenty of ways to get to it provided there was a discovery request.  Mental culpability, any other witnesses testifying (not sure, not following the case) regarding info in the soap opera, etc.  Depending on what is in play.  The rule spells it out clearly. 
    Along with arguments regarding rule of completeness (MRE 106 and 304), requirement to disclose prior statements/inconsistent statements, and a variety of other avenues of attack.  Clever counsel can likely draft the appropriate motion and/or use excerpts from the video based on the facts and application of the rules.  I’ll refrain from other tactical thoughts, but from an outsider’s view it seems quite do-able. 
     

  19. Vulture says:

    Concerned Defender.
    There is no guarantee that BB is going to get a DD and less that he is going to get  year confinement.  Suppose he loses and this journalist’s evidence is in the record.  It’s his interests then that are at stake, correct?  So you’ve invited review in a civilian court of a military case.  I like it.

  20. Alfonso Decimo says:

    It would be more interesting if the material had been requested by the Defense. My recommendation to the Government is to back-off and maybe quote General Oliver P. Smith, who said, “we’re not retreating, just advancing in another direction” (or words to that effect).

  21. Tami a/k/a Princess Leia says:

    This should be a fairly easy motion to deny.  There is no “reporter-reportee” privilege, and no intent for the conversation to be confidential.  Even if such a privilege exists (which he suggests the “privilege” had been recognized in this jurisdiction before, but naturally fails to support that assertion with any citations to any cases where this “privilege” was in fact recognized), the rules on privileges are that they are to be narrowly construed.  We don’t just go around making up new privileges, we have to identify a public good that outweighs the public’s right to the evidence.  I don’t see anyone saying they won’t talk to him because of tbe risk he could be forced to disclose their conversations.  To the contrary, I see people willing to talk to him because he WILL disclose their conversations in a way that generates support for them, and he gets to win an “award.”

  22. Saul says:

    This might just be an academic question following CD’s comment, and I’m jumping a few steps,  but if the defense counsel were present for the recordings and Boal does not turn them over or comply with the judge’s order, can the defense counsel become witnesses in a proceeding, even if only for a motion?

  23. rob klant says:

    I like it.  And, to continue the game of “what if,” the interview of the accused and the presence of the defense counsel was actually a cleverly-constructed strategy, such that the reporter (willingly or not, but upon official “assignment” by the reporter’s editor) became a member of the defense team and, thus, subject to the privilege under MRE 502?

  24. Vulture says:

    I am guessing that there would have been a whole lot of public good if the Russians that went to Afghanistan had some free press.  That would have saved us all a whole lot of trouble.

  25. Joseph Wilkinson says:

    If the Soviets had had a free press, they would not have been Soviets, and that would indeed have saved us and our grandparents a whole hell of a lot of trouble.  Some argue that freedom in Russia died with the Mongol Yoke and the rebellion against it.