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The Defense Department can require journalists to be escorted on Pentagon grounds while the Trump administration appeals a judge’s decision to block its enforcement of a new press access policy, an appeals court ruled Monday.
The ruling by a divided three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit isn’t the final decision in The New York Times’ lawsuit against the Pentagon. But the panel’s majority opinion said the Trump administration is likely to succeed in showing that the policy’s escort requirement is legally valid.
The panel granted the government’s request to suspend an April 9 decision by U.S. District Judge Paul Friedman, who ruled that the Defense Department was violating an earlier order to restore access to the Pentagon for reporters.
Last fall, the Pentagon required reporters who cover the military to sign on to a host of restrictions in order to maintain daily access to the building. Many media organizations — including CBS News, News, NBC News, CNN and Fox News — declined to sign on to the new rules.
The Times sued, and Friedman sided with the newspaper and struck down parts of the policy last month. He found that many of the restrictions were unconstitutional, including one that suggested reporters who “solicit” sensitive information from military personnel could be deemed a security risk and expelled from the building.
Then, earlier this month, Friedman ruled that the Pentagon violated his order by issuing a revised press policy that barred reporters from the building altogether unless they were accompanied by government escorts.
In Monday’s ruling, Circuit Judges Justin Walker and Bradley Garcia — Trump and Biden nominees, respectively — wrote that “an agency may respond to an adverse ruling by adopting a revised policy.”
Biden-appointed Circuit Judge J. Michelle Childs dissented from the 2-1 majority. “Reporters can hardly verify sources, gather information, or speak candidly with Department personnel with an escort looming over their shoulders,” she wrote.
Defense Department spokesperson Sean Parnell said it welcomes the panel’s decision and looks forward to arguing the merits of its “full case” before the same panel. In a statement posted on social media, Parnell said unescorted access to the Pentagon has led to the “regular unauthorized disclosure of sensitive and classified national defense information.”
“Since implementing the current access policy, the Department has seen a meaningful reduction in these unauthorized disclosures, which when they occur can endanger the lives of service members, intelligence personnel, and our allies,” he wrote.
Theodore Boutrous, an attorney for The Times, said the panel’s ruling is “a narrow, preliminary one” and “casts no doubt” on the strength of the newspaper’s constitutional arguments.
“We look forward to defending the full scope of the district court’s rulings in The Times’s favor in this appeal,” Boutrous said in a statement to The Associated Press.
