WASHINGTON — A Pentagon policy limiting journalists’ access to the building is depriving Americans of vital information about U.S. military operations while the country is at war, a New York Times attorney argued Friday in urging a judge to block the new rules.
“It’s more important than ever for the public to know as much as they can,” Times attorney Theodore Boutrous told U.S. District Judge Paul Friedman during the first hearing for the newspaper’s lawsuit against the Defense Department.
Friedman didn’t immediately rule on whether to order the Pentagon to reinstate media credentials for reporters who walked out of the building in October rather than agree to the new rules. But the judge’s remarks suggested he was skeptical of key arguments in the government’s defense of the policy.
Judge cites need for ‘a variety of views’
Friedman, who was nominated to the bench by Democratic President Clinton, suggested it is “more important than ever” for Americans to hear “a variety of views” about the activities of the federal government and its elected leaders.
“A lot of things need to be held tightly and secure, but openness and transparency allows members of the public to know what their government is doing,” the judge said.
Justice Department attorney Michael Bruns said the credentialing policy reflects the government’s “compelling interest” and its “statutory obligation” to protect national security information.
“This is not a trivial exercise,” Bruns argued.
Friedman said he intends to issue “as prompt a decision as I can, because I know it’s important for lots of reasons.”
The Times sued the Pentagon and Defense Secretary Pete Hegseth in December, claiming the credentialing policy violates the journalists’ constitutional rights to free speech and due process.
Times spokesperson Charles Stadtlander said the U.S. attacks on Iran — and the resulting deaths of American troops — “illuminate the public’s right to access deep, impartial reporting on the details of the military actions happening as we speak.”
“Today was an important opportunity for The New York Times’s lawyers to make our case for the clear importance and public service of allowing journalists to report fully on the Pentagon,” Stadtlander said in a statement.
The current Pentagon press corps comprises mostly conservative outlets that agreed to the policy. Reporters from outlets that refused to consent to the new rules, including those from the Associated Press, have continued reporting on the military from outside the building.
The AP, meanwhile, is awaiting a decision by a three-judge panel of the U.S. District Court of Appeals on its separate lawsuit against President Trump’s administration. The AP contends that Trump’s team punished it by reducing its access to presidential events because the outlet hasn’t followed the president’s lead in renaming the Gulf of Mexico.
The Pentagon calls the policy ‘common sense’
The Pentagon has argued that the policy imposes “common sense” rules that protect the military from the disclosure of national security information.
“The goal of that process is to prevent those who pose a security risk from having broad access to American military headquarters,” government attorneys wrote.
Times attorneys claim the policy is designed to silence unfavorable media coverage of Trump’s administration.
“The First Amendment flatly prohibits the government from granting itself the unbridled power to restrict speech because the mere existence of such arbitrary authority can lead to self-censorship,” they wrote.
The Times argues that the Pentagon has applied its own rules inconsistently. The newspaper said Trump ally Laura Loomer, a right-wing personality who agreed to the Pentagon policy, appeared to violate its prohibition on soliciting unauthorized information by promoting her “tip line.”
The government didn’t object to Loomer’s “general tip line” but concluded that a Washington Post tip line does violate its policy because it purportedly “targets” military personnel and department employees.
“It’s mystifying,” Boutrous said. “It just doesn’t make any sense.”
The judge asked Bruns, the government attorney, what standards are used to decide if a reporter poses a security risk.
“Don’t there have to be some criteria that are applied in a uniform way?” Friedman asked.
Yes, Bruns answered. But he said the government has “far more leeway” to restrict speech in a secure forum like the Pentagon.
“The reason for the policy is the security of the Pentagon,” he added.
Yale Law School professor David Schulz, who represents the Pentagon Press Assn., said the challenged policy represents a “stark break from the past.”
“The press has been in the building since the day it opened,” Schulz told the judge. “It has always been there.”
Kunzelman writes for the Associated Press. AP writer David Bauder in New York contributed to this report.
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