Military prosecutor: Unaired Bergdahl ‘Serial’ interviews relevant to case

Unaired interviews between a filmmaker and Sgt. Bowe Bergdahl contain information relevant to Bergdahl’s legal case, a military prosecutor has argued as the government seeks to get a lawsuit against it dropped.

In a court filing, the Justice Department argued civilian court doesn’t have the authority to intervene in a military court-martial, but the military prosecutor made his case for why he needs the recordings.

{mosads}“While preparing for the court-martial, I determined that unaired audio recordings of interviews between Mr. [Mark] Boal and Sergeant Bergdahl contained information relevant and necessary to prosecution of Sergeant Bergdahl’s court-martial,” Maj. Justin Oshana wrote in a statement in support of the Justice Department’s filing.

Boal, who’s known for award-winning films “The Hurt Locker” and “Zero Dark Thirty,” filed a lawsuit last month in federal court in Los Angeles against the government in hopes of preventing it from subpoenaing his interviews with Bergdahl.

Boal interviewed Bergdahl for 25 hours for his own project and later allowed portions to be used for the second season of the popular NPR podcast “Serial.” The aired interviews covered topics such as Bergdahl’s motivations for walking off his base, failed attempts to escape his captors and his mental illness, among other insights.

Bergdahl is set to face court-martial in February for walking off his post in Afghanistan in June 2009, before being captured by the Taliban and held until a May 2014 prisoner swap.

Bergdahl has been charged with desertion and misbehavior before the enemy. The latter charge carries the potential for a life sentence in prison.

In his lawsuit, Boal argued that forcing him to turn over the unaired interviews would violate his First Amendment rights.

“It was clear that portions of the Bergdahl interviews were to remain confidential, and portions of the Bergdahl interviews reference confidential sources,” the lawsuit says.

The First Amendment argument prompted 36 media outlets to rally behind Boal and file a legal brief last month in support of his case.

In his statement, filed late Friday, Oshana said he negotiated with Boal’s lawyers from March 31 to July 20 to try to reach an agreement on releasing unaired portions of the interviews and twice agreed to delay issuing a subpoena.

“The prosecution remains amendable to working with the plaintiffs regarding the scope of the contemplated subpoena to reach an accommodation that is acceptable to all parties,” he wrote.

Meanwhile, the Justice Department argued that the case should be dropped since the issue should be decided in the court martial system, not civilian court.

“The relief that plaintiffs seek in this case is not just extraordinary; to the defendants’ knowledge, it is also unprecedented,” wrote the Justice Department attorneys. “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. 

“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.”