The New York Times told a federal judge Monday that the Pentagon has flouted the court’s ruling blocking it from enforcing its policy limiting journalists’ access to the Defense Department headquarters. The Times urged the court to compel the government to comply with the order to reinstate press credentials
U.S. District Judge Paul Friedman did not rule from the bench after he heard a second round of arguments from lawyers for the Times and the Trump administration. The Times said that Pentagon officials have implemented a revised press policy that circumvents the judge’s March 20 ruling.
Friedman sided with The Times earlier this month, ruling that the Pentagon’s new credential policy violated journalists’ constitutional rights to free speech and due process. He ordered defense officials to reinstate the press credentials of seven Times reporters and said his decision applied to “all regulated parties.”
Times attorney Theodore Boutrous said the Pentagon responded to Friedman’s order by imposing a new, revised policy that imposes “radical new restrictions” on journalists.
“They’ve only made things worse,” Boutrous said.
Government attorney Sarah Welch said the Defense Department’s revised policy on media access to the Pentagon includes several “safe harbors” protecting reporters engaging in routine forms of newsgathering. “The department has fully complied in good faith with that (March 20) order,” Welch told the judge.
In a court filing Sunday, Times national security reporter Julian Barnes said Pentagon staff also explained to him and his colleagues last week that their new credentials would give them access to a new press area located in the Pentagon library. But the only way for the reporters to access the library is through a corridor or on a shuttle bus that they didn’t initially have permission to use, Barnes noted — prompting Judge Friedman to respond, “How weird is that? Is it Catch-22? Is it Kafka? What’s going on here?”
In October, reporters from mainstream news outlets walked out of the building rather than comply with the new rules. The Times sued the Pentagon and Defense Secretary Pete Hegseth in December to challenge the policy.
Times attorneys accused the Pentagon of violating the judge’s March 20 order, “both in letter and spirit,” by issuing a revised “interim” policy that bars credentialed reporters from entering the building without an escort. Plaintiffs’ lawyers say the latest policy also imposes unprecedented rules dictating when reporters can offer anonymity to sources.
Barnes said in his filing that Pentagon Press Office staff also told Times reporters that journalists “would no longer be allowed into the Pentagon without an escort from the Department, and that an escort would be provided only for pre-arranged interviews, press conferences, or other specified types of events.” He said they were told they’d need to submit a request at least a day in advance to attend these events, and requests would be approved by the Pentagon Office of Public Affairs. That, he pointed out, rendered the Pentagon Facility Alternate Credentials, or PFACs, “worthless,” because all reporters, even without a credential, may access the Pentagon if they are pre-approved by the press office.
He said that in his 20 years of covering the Pentagon “this is the first time that the Department has ever barred reporters with [Pentagon press credentials] from entering the Pentagon without an escort, a reservation, or an invitation to a specific press conference or event.”
“The intent is obvious: The Interim Policy is an attempted end-run around this Court’s ruling,” newspaper attorneys wrote.
Government lawyers argued the Pentagon’s revised policy fully complies with the judge’s directives.
“In effect, Plaintiffs ask this Court to expand the Order to prohibit the Department from ever addressing the security of the Pentagon through a press credentialing policy with conditions that may address similar topics or concerns as the enjoined conditions. The Order does not say that, and this Court should not read it to say that,” Justice Department attorneys wrote.
The Justice Department also argued that the court’s order did not say the Pentagon couldn’t revise its press credential policy or issue new press access policies.
Pentagon spokesperson Sean Parnell has said the administration would appeal Friedman’s March 20 decision.
The Pentagon Press Association, which includes CBS News and Associated Press reporters, said the Pentagon’s interim policy preserves provisions that Friedman deemed to be unconstitutional while also adding new restrictions on credential holders.
“The Interim Policy moves reporters’ workspace to an annex facility outside the Pentagon and prohibits any reporter from moving within the Pentagon itself without an escort, further limiting their ability to actually do journalism in the forum designated specifically for that purpose,” an association attorney wrote.
The current Pentagon press corps is composed of mostly conservative outlets that agreed to the policy. Journalists from outlets that refused to consent to the new rules, including CBS News and the AP, have continued reporting on the military.
Friedman, who was nominated to the bench by President Bill Clinton, said in his order that recent U.S. military operations in Venezuela and Iran highlight the need for public access to information about government activities.
