'Way worse': Judge rips Pentagon's revised press policy

WASHINGTON (CN) — The New York Times urged a federal judge Monday to rebuke the Pentagon for quickly drafting a new press access policy that the newspaper argues revives a version he determined was clearly unconstitutional.

On March 20, U.S. District Judge Paul Friedman reinstated press credentials for reporters who walked out en masse last fall in protest of a Defense Department policy barring journalists from obtaining any information without official approval.

According to the Times, the Pentagon instituted an interim policy on March 23, which effectively maintained a wide bar on journalists reporting freely within the Pentagon, requiring escorts through the majority of the building.

Journalists’ credentials can still be revoked if they publish unauthorized nonpublic information by granting officials anonymity — albeit with knowledge and intent requirements — that would be reviewed by an “inquisition board,” which the Times argued could not be trusted to act objectively.

Theodore Boutrous, of Gibson Dunn and representing the Times, urged the Bill Clinton appointee to order the government’s compliance with his initial injunction and restore the level of press access that existed before the Pentagon implemented its new policy in October 2025.

“Time is of the essence, there’s a war going on and the American people are being shut out from information,” Boutrous said.

Boutrous said the government’s effort to simply restore its previous restrictions with new, shuffled around wording was akin to a court order returning a seized car, but the offending party had stolen its engine and bashed it with a sledgehammer while claiming it complied with the order.

Friedman highlighted a specific restriction barring the “intentional inducement of unauthorized disclosure” — the prior version used the term “solicitation” — as particularly onerous, calling it “way worse.”

He pressed Justice Department attorney Sarah Welch to explain the distinction and how the Pentagon justified punishing journalists for asking any employee to disclose unauthorized information when the employee could easily decline to comment.

Welch asserted the interim policy had “six safe harbors” that protect every form of routine news gathering, which includes receiving unsolicited information, developing source relationships through independent reporting, communicating with Department personnel through official channels and asking questions of an employee the journalist does not know is unauthorized.

If a journalist asks something outside those safe harbors, they must prove to a panel they had no knowledge the employee was unauthorized and they had no intent to obtain controlled unclassified information. But there’s no wiggle room if the information’s disclosure is statutorily barred.

Boutrous described that review panel as an “inquisition” and “police squad” that would be unable to objectively determine if a journalist violated its policy as it would have to review a published article that relies on an anonymous source. The panel would have no way of knowing the individual was unauthorized and thus would base its decision solely on the information and likely reject anything not “spoon-fed” by the Pentagon.

In a declaration filed Sunday, New York Times reporter Julian Barnes described the lack of clarity from the Pentagon as to where credentialed reporters could or could not report.

According to Barnes, he was informed by the Pentagon Press Office that reporters would be able to work out of the Pentagon Library, but when he noted the library is only accessible via a corridor or a shuttle closed to reporters, he received no clarification.

When Welch suggested Monday that reporters would soon have access to a new press room in an annex facility outside the Pentagon but could not provide a timeline, Friedman said the situation was a “catch-22” and Kafka-esque.

Welch also urged Friedman to reject the Times’ request for a compliance order and instead require an amended complaint challenging the interim policy.

She pointed to U.S. District Judge Jia Cobb’s ruling in Neguse v. U.S. Immigration and Customs Enforcement, in which the Joe Biden appointee denied a motion to show cause and instead ordered an amended complaint from the Democratic lawmakers.

Federal judges in Washington have seen an uptick in such motions — to show cause, to enforce an injunction and to compel compliance with a court order — in recent months, as the government has seemingly attempted to circumvent judicial injunctions.

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