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1 JEAN-PAUL JASSY, Cal. Bar No. 205513 [email protected] 2 KEVIN L. VICK, Cal. Bar No. 220738 [email protected] 3 DUFFY CAROLAN, Cal Bar No. 154988 [email protected] 4 SUNNY K. LU, Cal. Bar No. 247667 [email protected] 5 JASSY VICK CAROLAN LLP 6605 Hollywood Boulevard, Suite 100 6 Los Angeles, California 90028 Telephone: 310-870-7048 7 Facsimile: 310-870-7010
8 Colby C. Vokey (pro hac vice forthcoming) LtCol USMC (Ret.) 9 [email protected] Law Firm of Colby Vokey PC 10 6924 Spanky Branch Court Dallas, Texas 75248 11 Telephone: 214-697-0274 Facsimile: 214-594-9034 12 Attorneys for Plaintiffs 13 MARK BOAL and FLAKJACKET LLC d/b/a PAGE 1 14 UNITED STATES DISTRICT COURT 15 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 16 MARK BOAL, an individual; and 17 FLAKJACKET LLC d/b/a PAGE 1, a California Limited Liability Company, Case No.: 2:16-CV-05407-GHK-GJS 18 Plaintiffs, 19 v. DECLARATION OF MARK BOAL IN 20 UNITED STATES OF AMERICA; SUPPORT OF EX PARTE BARACK OBAMA, in his official APPLICATION FOR TEMPORARY 21 capacity as President of the United RESTRAINING ORDER AND FOR States of America; ASHTON B. ORDER TO SHOW CAUSE 22 CARTER, in his official capacity as Secretary of Defense; ERIC [Filed concurrently herewith: Plaintiffs’ Ex 23 FANNING, in his official capacity as Parte Application for Temporary Secretary of the Army; ROBERT B. Restraining Order and for Order to Show 24 ABRAMS, in his official capacity as Cause, Memorandum of Points & General Court-Martial Convening Authorities, [Proposed] Temporary 25 Authority; JUSTIN OSHANA, in his Restraining Order and Order to Show official capacity as Major, Judge Cause, Declaration of Jean-Paul Jassy] 26 Advocate, US Army Trial Counsel, and DOES 1 THROUGH 10, 27 inclusive,
28 Defendants.
BOAL DECL. ISO EX PARTE TRO AND OSC
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1 I, Mark Boal, declare as follows: 2 1. I am a Plaintiff in this action. I am a resident of Los Angeles County. I 3 am over the age of eighteen and I have personal knowledge of the facts stated herein. 4 If called upon, I could and would testify thereto. 5 Summary Of My Work 6 2. I am an award-winning journalist, filmmaker and producer, covering 7 stories of national interest since 1998 and the military and national security since 8 2011. My Playboy Magazine article “Death and Dishonor” – the true story of a father 9 who searches for his missing Iraq war veteran son – was adopted by Oscar-winner 10 Paul Haggis into the film, In the Valley of Elah. Drawing from my experiences as a 11 reporter during the war in Iraq, I wrote The Hurt Locker, the multi-Oscar-winning 12 film directed by Kathryn Bigelow. As writer and producer of the film, I won two 13 Oscars, for Best Picture and Best Original Screenplay. 14 3. I most recently wrote and produced the critically acclaimed Zero Dark 15 Thirty, which went on to receive five Oscar nominations, and earned me my second 16 WGA Award for Best Original Screenplay. 17 4. My 2011 investigative report for Rolling Stone entitled the “Kill Team” 18 exposed Afghanistan war crimes, which were eventually punished in the military 19 justice system. Earlier pieces in Playboy were the first to focus national attention on 20 the Veteran Administration’s failures to diagnose PTSD among returning veterans. 21 My 2008 investigative story for Rolling Stone entitled “Everyone Will Remember Me 22 as Some Sort of Monster” was selected for the Best American Crime Writing 23 anthology edited by Otto Penzler. 24 My Company: Page 1 25 5. Flakjacket LLC d/b/a Page 1 (“Page 1”) is a California limited liability 26 company founded by me to explore the intersection of reporting and entertainment. 27 In addition to its work earlier this year co-producing the journalistic podcast Serial 28 (which is an off-shoot of National Public Radio’s This American Life and has more -1- BOAL DECL. ISO EX PARTE TRO AND OSC
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1 than 50 million listeners world-wide) my company and I recently commissioned a 2 wide range of works of public-interest non-fiction from prominent writers and 3 Pulitzer prize-winning journalists on subjects such as policing and race relations in 4 Detroit circa 1967, Second-Wave feminism and the constitutional issues important to 5 that movement, as well as the ATF’s role in the raid in Waco, Texas in 1993, and 6 many more. Additionally, Page 1 is executive producing a forthcoming, prize- 7 winning documentary about the psycho-dynamics of terrorist attacks, which won best 8 documentary at the Tel Aviv Film Festival. 9 My Interviews Of Bowe Bergdahl 10 6. In the Summer of 2014, I began my research into Sgt. Robert Bowdrie 11 (“Bowe”) Bergdahl’s disappearance from an Army outpost in Afghanistan with the 12 intention of researching and developing a story that could be told in multiple 13 mediums, as a documentary, a feature film, news articles, and possibly, a non-fiction 14 book. I conducted extensive interviews with individuals familiar with the case, and 15 in May 2015, teamed up with reporters at the Peabody award-winning Serial podcast. 16 Together we co-produced a 10-hour podcast exploring the meaning of the Bergdahl 17 saga against the backdrop of the war in Afghanistan and Operation Enduring 18 Freedom. 19 7. When I interviewed Sergeant Bergdahl, I made promises of 20 confidentiality in connection with portions of the interviews. 21 8. From late 2015 through 2016, I used excerpts of some of the recorded 22 interviews with Sergeant Bergdahl in the popular podcast Serial. Before I shared any 23 of the excerpts with the Serial hosts, I sought and gained Sergeant Bergdahl’s 24 permission to broadcast interview portions regarding specific subjects. Sergeant 25 Bergdahl deemed other topics to be off-limits, and therefore I did not share such 26 material with Serial or the public. 27 9. I am informed and believe that Defendant Major Justin Oshana, trial 28 counsel in the court-martial case of United States v. Sergeant Robert Bowdrie (Bowe) -2- BOAL DECL. ISO EX PARTE TRO AND OSC
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1 Bergdahl, has made clear in communications with my counsel that Defendants intend 2 to issue a subpoena on July 22, 2016 seeking all of my recorded interviews with 3 Sergeant Bergdahl. 4 Irreparable Injury 5 10. During the course of my interviews of Bergdahl, confidential sources 6 were revealed. I believe that those sources would suffer serious adverse action, 7 including devastating adverse employment action, if their identities were revealed. 8 11. Investigative reporting often – as in the case of my interviews of 9 Bergdahl – requires building piece upon piece to understand a story and then 10 effectively convey that story to the public. Some of those pieces are available for 11 public consumption while others must be maintained in confidence as background or 12 “off the record” in order to obtain and ascertain what can be told on the record. 13 12. As a journalist, it is of paramount importance to my job and my 14 reputation to be able to interview witnesses and maintain information in confidence. 15 If I cannot be trusted by my sources and my interviewees to keep information told 16 “off the record” or in confidence confidential then interview subjects and sources will 17 be reluctant to speak with me, and my ability to report the news and other matters of 18 public concern will suffer irreparably. That will harm society because the news will 19 be stymied and the public will be uninformed or misinformed on critically important 20 subjects. 21 13. Likewise, if I am seen as an arm of a prosecutor – i.e., as someone who 22 will get statements and information in the course of newsgathering that can then be 23 used against an interview subject or to otherwise aid the government – then my 24 ability to get newsworthy information and then report on newsworthy events will 25 suffer irreparably because sources and subjects will be afraid to talk to me for fear 26 that everything they say will end up on a prosecutor’s desk. 27 14. The very issuance, let alone the enforcement, of the threatened subpoena 28 in this case puts me in an impossible position. I, as a civilian, must either face -3- BOAL DECL. ISO EX PARTE TRO AND OSC
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1 contempt proceedings stemming from my refusal to divulge unpublished and 2 confidential information in a military court thousands of miles from my home; or I 3 must sacrifice my reputation, my sources, the integrity of my work and my 4 constitutional rights. Even being put to that choice will cause me irreparable injury 5 because it will signal to my contacts, interviewees and subjects that my work is ripe 6 for the picking by a military prosecutor. Moreover, the prospect of a sweeping 7 subpoena actually being enforced against me only heightens my concern that my 8 injuries will be realized. 9 15. I am before this Court to respectfully request that the Court protect my 10 well-recognized, constitutionally-based rights as a journalist. I am a civilian from 11 Los Angeles. I am not in the military and my rights should not be subjugated as if I 12 were. My right to gather and disseminate newsworthy material should not be 13 sacrificed to a military prosecutor on a fishing expedition. The issuance alone of a 14 subpoena would irreparably harm my reputation and my ability to function as a 15 journalist. The enforcement of the subpoena would compound those harms, and, 16 additionally, would subject me to contempt proceedings and attendant punishment 17 including fines and incarceration. 18 16. Finally, in addition to being concerned about maintaining the integrity of 19 my work and reputation and in addition to being deeply worried about having to 20 either comply with the subpoena or face contempt proceedings, I am spending 21 substantial sums of money in an effort to protect my constitutional rights and to 22 protect the confidences of others. I have consulted with and felt the need to hire 23 counsel from around the country. Their fees are a significant and continuing drain on 24 my financial resources. 25 /// 26 27 28 -4- BOAL DECL. ISO EX PARTE TRO AND OSC
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