WASHINGTON (LN) — A D.C. Circuit panel on Friday granted an emergency stay allowing the Pentagon to require escorts for journalists holding facility credentials, reversing a district court order that had mandated unescorted access under the First and Fifth Amendments.
The stay halts enforcement of a district court ruling that held the Department of Defense violated its prior injunction by imposing strict physical security restrictions on Pentagon Facility Alternate Credentials, or PFACs.
The dispute began last fall when the Pentagon announced a new policy allowing it to revoke journalist credentials if holders were deemed a “security or safety risk to Department personnel or property.” The New York Times and reporter Julian E. Barnes sued, arguing the policy was unconstitutionally vague and designed to target disfavored journalists.
A D.D.C. judge agreed, granting summary judgment for the plaintiffs and ordering the Department to restore access commensurate with what PFAC holders had before the policy changes.
The next business day, the Pentagon issued an interim policy that required PFAC holders to be escorted “at all times” and closed the Correspondents’ Corridor, moving press workspace to an annex facility. The district court ruled this was noncompliant with its order and compelled the Department to reinstate unescorted access.
The D.C. Circuit, in a per curiam order, held that the Department was likely to succeed on the merits of its argument that the escort requirement was a new, generally applicable rule not addressed in the district court’s summary judgment opinion.
“The escort requirement was not contemplated by the challenged 2025 policy,” the panel wrote. “So the district court’s March 20 summary judgment opinion and order did not address that provision or a similar one.”
The court noted the Department sought only limited relief, asking to require escorts while leaving other aspects of the district court’s order in place. The Pentagon argued that unescorted access allowed reporters to observe activity patterns and identify sources of sensitive information, posing a national security risk.
Circuit Judge Gregory Katsas Childs dissented, arguing the Department attempted to circumvent the injunction through “creative policymaking.”
“An injunction is not an invitation to circumvention,” Childs wrote. “Once a court has spoken, the party bound by its order may not evade it through creative policymaking.”
Childs argued the district court correctly interpreted its own order, which was designed to restore meaningful access for journalists to cover defense policy and military operations. He noted that reporters historically engaged in informal conversations with officials that were crucial for accurate reporting, interactions he said are difficult to conduct with an escort present.
The panel included Circuit Judges Neomi Rao Walker, Gregory Katsas Childs, and Justin R. Garcia.