Afghanistan Peace CampaignThe suit accuses the defendants of depicting the man in the 2022 film “for commercial gain while knowingly placing him in grave danger.” The suit also labels the filmmakers and distributors as “immoral, unethical, oppressive [and] unscrupulous.”
The dead man’s estate is represented by a prominent Florida law firm, Kelley Uustal, that won an $82 million jury award in a business-dispute case for hip-hop artist Flo Rida. The firm has also done legal work on behalf of a teenager who claims he is the rightful owner of the baseball that Los Angeles Dodgers star Shohei Ohtani knocked into the stands last year for his historic 50th home run, setting off a violent fan scramble. (The man who retrieved it from the fracas sold it at auction for more than $4 million.)Follow
In its court responses to the “Retrograde” lawsuit, attorneys representing Our Time Projects, Disney, National Geographic and Hulu have moved to strike the complaint under a law that allows for early termination of cases that threaten to punish speech protected by the First Amendment. National Geographic produces documentaries as part of a joint agreement with Disney; “Retrograde” was shown on Disney-owned Hulu.
“The First Amendment [does not] allow courts to hold producers and distributors liable for the actions of third parties, like the Taliban’s violent reprisals following their return to power,” a defense court filing states.
“The fact that numerous Afghan civilians who worked to better their country were targeted and tortured by the Taliban is horrible,” a court filing acknowledged. “But that doesn’t mean documentarians reporting on the Taliban’s resurgence are responsible for that conduct.”
Attorneys for the filmmakers and distributors also argue that the lawsuit seeks to “sidestep the First Amendment” by arguing they should have blurred faces. “That is a fully protected editorial decision,” the lawyers wrote. (The defense is represented by the national firm of Davis Wright Tremaine, whose media clients have included The Washington Post.)
Lawyers for the defense state that the documentarians obtained consent from their subjects to be filmed, including showing their faces, and that allegations in the lawsuit involve conduct that cannot be attributed to National Geographic, Disney and Hulu.
In an affidavit, Heineman says that he obtained consent to film the Afghans from the leaders of their unit and that the subjects were filmed “openly and obviously” without objection.
“The Supreme Court has made crystal clear that the First Amendment protects editorial judgments regarding matters of public concern,” Theodore J. Boutrous Jr., an attorney for Heineman and producer Caitlin McNally, said in an email to The Post. “This includes the use of footage from combat zones that the filmmakers presented in Retrograde, consistent with the well-established approach taken by numerous news organizations.” (Boutrous has also represented The Post on media issues.)
“Retrograde” was removed from all platforms, including the Hulu streaming service, in 2024 after The Post contacted National Geographic and Disney with questions about whether the film endangered Afghans hired by the U.S. military to clear mines. The Post’s article revealed that five former and current U.S. service members warned the filmmakers, including McNally and Heineman, that they should blur faces of the Afghan mine-clearers.
Charlie Crail, a U.S. military media officer assigned to the film project, told The Post last year that the Afghan mine-clearers consented to be filmed before the U.S. withdrawal. After the withdrawal, Crail said he warned the documentarians against showing the faces of workers who were still in the country, because of concerns about Taliban reprisals.
The U.S. military signed off on the film after a prerelease review, one of its conditions for assisting the project. The military’s reading of its contract with Heineman’s team was that it did not give them the right to demand changes related to Afghan contractors, according to a U.S. service member involved in the process.
In a statement to The Post for the 2024 article, Heineman and McNally said they had no recollection of receiving specific warnings about the bomb-clearing crew and emphasized that the film was released following sign-offs from the U.S. military and National Geographic/Disney.
“Any attempt to blame ‘Retrograde’ because the film showed faces of individuals in war zones — as has long been standard in ethical conflict reporting — would be deeply wrong,” their statement said.
If the California negligence lawsuit goes to trial, it’s possible that issues raised by both the plaintiffs and the defendants about the filmmaking process and the ethics of conflict reporting would be presented to jurors.
Since its original article, The Post has obtained previously unreported documents and emails that shed additional light on the making of “Retrograde” and its depiction of Afghan contractors.
The documents show that concerns about the dead man — whom U.S. Green Berets had nicknamed “Justin Bieber” because of his good looks and thick hair — were included in a minute-by-minute security review of the documentary conducted by “Retrograde” crew members in August 2022, shortly before the film was slated for its festival debut at Telluride, Colorado. (The Post is not using his name to protect his family from potential harm. He is referred to as “John Doe” in the lawsuit.)
The new documents show that not only did the “Retrograde” crew receive general warnings from current and former U.S. service members before its theatrical and streaming debuts about the risks of endangering Afghans shown in the movie, they also appear to have received a specific warning about the man who was later killed.
Multiple Afghans are shown in a scene in which Green Berets tell Afghan mine-clearers that the United States is withdrawing — the only scene in which the man who later died appears. The man is the only mine-clearer mentioned in the security review, which was conducted by McNally and another “Retrograde” crew member, Joe DeGrand.
In the security review, McNally flagged a section in the film, writing “we’re very concerned about the [National Mine Removal Group] guy because he is still in country from what we hear; blur all identifying info on uniform.” She repeats the request to blur identifying information for two other sections of the film. (McNally did not respond to a question about who had told her the man was still in Afghanistan.)
DeGrand emailed the security review to Heineman, including recommendations for dozens of sections of the film.
Later, another “Retrograde” crew member emailed McNally and DeGrand with Heineman’s suggestions for addressing some of the flagged concerns with “reframes, subtle blurs or VFX,” a reference to a visual-effects technique.
In an email, Boutrous said that the review resulted in the removal of “identifying information, including names on the uniforms” of several military personnel depicted in the documentary.
But since the man who later died had “no such identifying information on his uniform that was visible on-screen … no action was necessary,” and filmmakers made no changes to his appearance.
In The Post’s May 2024 article, a National Geographic spokesperson said Disney’s global intelligence and threat analysis manager conducted a review of the film before it was released but rebutted statements by two U.S. military service members, in interviews and text messages reviewed by The Post, who said they cautioned Disney about showing faces of the Afghan contractors and urged the company to blur faces or take other steps to protect them.
When the film debuted, the man was shown in a lingering close-up.
“It was just so needlessly unsafe to me,” DeGrand said in an interview with The Post. “They chose to put this guy into the spotlight when there were other shots and materials available to not do that. There are tons of different ways to do this scene that anonymize him or don’t feature him so prominently.”
Shortly after the film’s theatrical and streaming releases, a pirated clip of the scene showing the man circulated on social media. He was later captured by the Taliban and tortured, eventually dying from his injuries, according to The Post’s reporting. In his final days, the man said that his captors told him they identified him because of the clip showing him in “Retrograde,” according to one interpreter and text messages from another interpreter and a family friend.
“Retrograde” went on to receive positive reviews from critics and three Emmy Awards — for cinematography, editing and current affairs documentary. It was shortlisted for an Oscar and won an Edward R. Murrow Award for current affairs documentary. After The Post reported on the man’s death, the Radio Television Digital News Association, which oversees the Murrow Awards, conducted a review and rescinded “Retrograde’s” prize — the first time in the organization’s history that it had pulled back an award for issues related to journalism.
DeGrand did not learn of the man’s death until The Post published its 2024 article. Ever since, he said, he has agonized over his involvement on the film and lamented that the recommendation to shield the man’s identity was not followed.
“To knowingly put someone in danger for the benefit of your movie is selfish,” DeGrand said. “And I don’t think it makes it a better movie.”
The court has not yet ruled on the request by Our Time Projects, Disney and National Geographic to dismiss the lawsuit. The defendants have asked for a hearing on their request.
Hope Hodge Seck and Alice Crites contributed to this report.