Journalist Cannot Sue Over Lost Embed Status

(CN) - A freelance journalist has no standing to contest the military's decision to revoke his embed status after he published a video of wounded soldiers on the Washington Times website, the D.C. Circuit ruled.

In January 2010, Wayne Anderson, applied for "military embed-journalist accommodation status" in Afghanistan, and as part of the process, signed a set of rules governing media personnel.

His application was accepted, and Anderson joined the Minnesota Army National Guard in Kabul.

Six months later, he filmed an ambulance offloading American servicemen who had been attacked in what his pro se complaint described as a "controversial shooting." His story and video footage were published on the Washington Times website.

The next day, Anderson's embed status was revoked because his video allegedly showed the identifiable faces of wounded soldiers, in violation of the media ground rules.

Anderson denied that the soldiers were identifiable, and challenged the military's decision in Federal Court.

But U.S. District Judge John Bates dismissed the complaint in its entirety, both for lack of jurisdiction and for failure to state a claim.

In doing so, Judge Bates rejected Anderson's contention the defendants violated his First Amendment rights to free speech and freedom of press, and his Fifth Amendment due process rights, when they terminated his status as an embed reporter.

"Both of Anderson's claims rely on the validity of his assertion that he has a constitutionally protected right to be an embed journalist," Bates wrote. "This Circuit's clear statement that such a right does not exist is therefore fatal to his claims."

The D.C. Circuit affirmed Bates' ruling on Friday.

"Briefly put, this action is barred by the sovereign immunity of the United States," U.S. Circuit Judge David Sentelle said, writing for the three-judge panel.

The Administrative Procedures Act, which permits certain tort actions against the government, expressly states that the U.S. does not waive sovereign immunity for "military authority exercised in the field in time of war."

"The facts relied upon by appellant, including the wounding of the soldiers whose photographs were at issue between Anderson and the military, make it clear that the Afghans in the present case are enemies of the United States, and the military authority against which Anderson seeks to litigate was being exercised in the field and time of war. In short, the APA does not provide a waiver of the sovereign immunity defense creating jurisdiction over Anderson's cause," Sentelle said.

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