Boston College Subpoenas Will Set Precedent For U.S. Army Court-Martial

When the US Department of Justice (DoJ) served subpoenas on Boston College seeking multiple IRA oral history interviews on behalf of the Police Service of Northern Ireland, we – that is campaigners against the subpoenas – warned that failure to defeat the government action, or to resist it as strenuously as possible, would open the way for other, similar actions and that the consequence of failure would be disastrous for oral historians – or for anyone wishing to report complex situations honestly.

That would especially be the case, we said, when the history being collected dealt with conflict situations. We had in mind, for an American audience, the difficulties that would surround the collection of candid interviews from American fighters – or their enemies – in Iraq, Afghanistan of other post-911 conflicts.

Five years later The Washington Post is today reporting on precisely such a scenario.

US Army Sergeant Bowe Bergdahl went missing from his base in Afghanistan in June 2009, and was captured shortly afterwards by the Taliban who held him captive until May 2014 when he was returned to the US as part of an exchange deal with the insurgents.

Bergdahl’s story was that he left the base to report ‘misconduct in his unit’ but that is disputed by the military. Following his disappearance the US Army mounted several searches for him with no success; but in the course of this effort six American soldiers were killed by the Taliban.

After he was released by the Taliban, Bergdahl gave a series of interviews to a public radio journalist called Mark Boal. He was interviewed on tape for 25 hours in all, mostly about his experience in the hands of the Taliban. Not dissimilar to the sort of in-depth interviews carried out by Boston College researchers, Anthony McIntyre and Wilson McArthur.

Some of the Bergdahl interview was used by public radio in a podcast; again somewhat similar to using Brendan Hughes’ and David Ervine’s interviews for the book and documentary film, ‘Voices From The Grave’.

Eighteen months after Bergdahl was safely returned to his family and unit, the US Army decided to refer his case to a ‘general court-martial’; if found guilty he could be sentenced to a life term in jail.

The US military’s prosecuting lawyer has served a subpoena on Boal and his partner Sarah Koenig demanding that the 25 hours of taped interview be handed over to be used, if necessary, against Bergdahl at his trial. Again, just as happened to ourselves.

Boal and his legal team are resisting the subpoena on grounds similar to those initially argued by Boston College, that the request offends a journalist’s First Amendment rights. That argument was rejected at the Federal District Court level in our case but was not appealed by Boston College, which effectively retired from the substantive case at that point, handing victory over to the government.

Mark Boal has an impressive list of media supporters backing his case, and that is an important difference from our situation. Boston College discouraged any sort of public campaign against the PSNI/DoJ subpoenas with the result that very few academics expressed support. We did however get good backing from the media, including the Reporters Committee for the Freedom of the Press who are also backing Boal.

We wish them the best of luck and apologise that in our case Boston College put up such a weak fight. Had the college fought as hard as they should have perhaps Mark Boal and Sarah Koenig would not now be facing this ordeal. And believe me, it is an ordeal.

Here is The Washington Post piece:

Why Bowe Bergdahl’s ‘Serial’ interviews should be off limits in his court martial

Media Columnist August 14 at 3:52 PM

When Mark Boal spent 25 hours interviewing accused U.S. Army deserter Bowe Bergdahl, he didn’t plan on those hours of recorded interviews becoming part of a hugely popular podcast. He was just reporting, as he had many times before — whether for his magazine articles or his filmmaking.

But in collaboration with the producers of “Serial,” he and journalist Sarah Koenig teamed up. As a result, the story of the Army sergeant, who left his Afghanistan base in 2009 and was held captive by the Taliban for five years, became the basis of Season 2 of the spinoff of public radio’s “This American Life.”

Nor did Boal plan on his interviews becoming part of the prosecution’s case in Bergdahl’s court-martial at Fort Bragg in North Carolina next February.

That’s what a military prosecutor has in mind, according to court papers. The former soldier faces life in prison if he is found guilty of the charges of desertion and misbehavior before the enemy. Bergdahl was freed in 2014 in exchange for five Taliban fighters being held at Guantanamo Bay.

Boal is trying to prevent the subpoena by asking a civilian federal court in Los Angeles to intervene on First Amendment grounds. After all, unaired recordings are not unlike a reporter’s notes, which news organizations have long objected to being used in court. The prosecutor, Army Maj. Justin Oshana, in a court filing, called Boal’s interviews “relevant and necessary” to the case; he said he shared a draft subpoena with Boal’s attorney. (The Justice Department, which is objecting to Boal’s request and backing the military prosecutor, would not comment for this column.)

The good news for journalists and citizens is that Boal has his own army behind him: a long list of news organizations, including National Public Radio, the Associated Press, The Washington Post, Fox and the other major network news companies.

“This is a dream team of media — from across the political spectrum,” Boal said when the friend-of-the-court brief was filed late last month. Boal’s films include “The Hurt Locker” (for which he won the screenwriting Oscar) and “Zero Dark Thirty” (which he also wrote).

It wasn’t hard to find supporters, according to Katie Townsend, the litigation director for the Reporters Committee for Freedom of the Press, who wrote the brief.

“People were eager to jump to Boal’s aid,” Townsend told me. The reason is clear: News organizations don’t want their newsgathering efforts to be drawn into legal battles. And in a new era, in which a podcast can be every bit as much of a news outlet as a TV broadcast, it’s important to make sure that the newer breed of journalists gets the same protection as more traditional media.

The news organizations fear the effect on other journalists if Boal’s material is successfully brought into the case.

This should all sound familiar for those aware of New York Times reporter James Risen’s fight against testifying in a government leak prosecution in the past few years. For a time, it looked as though Risen’s fierce resistance to giving up his confidential source would land him in jail.

After many years of Risen’s battling the Justice Department, then-Attorney General Eric H. Holder Jr. said clearly that newsgathering needs to be protected and that no journalist should face jail for doing his or her job. President Obama has echoed that, as has Attorney General Loretta E. Lynch.

If courts — military or civilian — are able to subpoena reporters’ testimony and materials, and use them to prosecute crimes, interview subjects (also known as sources) will be much less likely to agree to speak.

“Journalists conducting newsgathering need protection from being dragged into prosecutions,” said Michael Oreskes, the news chief at NPR. The real protection isn’t for journalists themselves, he said, but for the public and its right to know what journalists turn up.

After all, according to Boal’s lawyer, Jean-Paul Jassy, the prosecution already has more than 300 pages of sworn testimony from Bergdahl himself and 1.5 million pages of material from 28 different agencies.

Oreskes termed the military prosecutor’s plans “just a fishing expedition.” And it would be a harmful one.

After his “dream team” of supporters came together last month, Boal asked a rhetorical question: “When was the last time Fox and NPR agreed on an issue?” That they have done so is a clear signal that the stakes are high, not only for journalists but also for those they are intended to represent: U.S. citizens.

Whatever happens to Bergdahl at Fort Bragg, the recorded interviews shouldn’t be part of the equation. The incremental value they might add to the prosecution’s case wouldn’t come close to being worth the eventual cost to newsgathering and to the public’s right to know.

For more by Margaret Sullivan visit wapo.st/sullivan

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