Judge Considers Whether Pentagon Is Defying His Order on Press Access

WASHINGTON—The New York Times asked a federal judge on March 30 to compel the Pentagon to restore full access for journalists, in line with a court order issued earlier this month.

The newspaper alleges that the Pentagon’s new policy—which bars all reporters without an escort—is meant as a workaround to the court’s order restoring press credentials to some of its reporters. 

In September, the Department of War ordered journalists to sign a pledge agreeing not to solicit unauthorized information from Pentagon employees. Those who refused lost their press credentials; a reporter from The Epoch Times agreed to the government’s policy.

The New York Times sued, saying the requirement violated its First Amendment rights, and on March 20, U.S. District Judge Paul Friedman sided with the newspaper, ordering the government to set aside that policy. He also ordered press credentials to be reinstated for several reporters at the newspaper.

The government agreed to do so, but later announced that journalists would be moved to an off-site location, and could no longer roam the Pentagon without an escort. The Correspondent’s Corridor, where journalists previously worked, was shut down. The policy also places limits on when journalists can offer anonymity to sources.

The newspaper argued that the new policy is a way to evade the court’s order, and is asking the judge to restore the press’s access as it was before the Pentagon imposed its limitations.

“Your honor, we’ve seen this movie time and time again,” the newspaper’s attorney Theodore Boutrous told Friedman during a hearing on Monday. He said the government’s new policy regarding members of the press was just a way to avoid “judgment day” by skirting the court’s previous instructions.

The government’s attorney argued that the Pentagon has not violated the court’s order and that it has implemented a new “interim” policy while the government appeals the court’s previous ruling.

The Department of War submitted, as evidence, an email exchange between Boutrous and the Pentagon’s attorney Commander Timothy Parlatore. Parlatore repeatedly asked Boutrous to identify which part of the new policy violated the court’s order, but Boutrous did not do so.

The government’s attorney, Sarah Welch, also pointed out that the Pentagon policy applied to all media outlets, not just The New York Times, and that many journalist had regained their credentials since the new policy was implemented.

Julian Barnes, reporter for The New York Times and a plaintiff in the case, had filed a declaration saying the Pentagon was “unprepared” to implement the judge’s order. For example, Barnes said, he and other reporters were told they would be able to access the Pentagon Library as a workspace, but it turned out the corridor leading there—which used to be the press workspace—was off-limits.

Barnes said the reporters were then told they could reach the library through shuttle bus, but their new passes didn’t initially allow access to those buses.

“In my view, the new rules and restrictions imposed by the Interim Policy make the reinstated [press credentials] that were issued to me and my colleagues this week essentially worthless,” Barnes said.

“How weird is that,” the judge commented, after reading parts of Barnes’s declaration to the court.

Judge Friedman referred to literature by Franz Kafka, where characters are put into impossible, no-win situations. After the government’s attorney said those issues and others had been dealt with in a new, revised policy, the judge ordered the government to submit a declaration clarifying the situation.