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NATION MAGAZINE v. U.S. DEPT. OF DEFENSE

April 16, 1991

THE NATION MAGAZINE (A/K/A THE NATION COMPANY, INC.), HARPER'S MAGAZINE, IN THESE TIMES (A/K/A THE INSTITUTE FOR PUBLIC AFFAIRS, INC.), PACIFIC NEWS SERVICE (A/K/A BAY AREA INSTITUTE, INC.), THE GUARDIAN (A/K/A INSTITUTE FOR INDEPENDENT SOCIAL JOURNALISM, INC.), THE PROGRESSIVE MAGAZINE (A/K/A THE PROGRESSIVE, INC.), MOTHER JONES MAGAZINE (A/K/A FOUNDATION FOR NATIONAL PROGRESS, INC.), THE L.A. WEEKLY (A/K/A LOS ANGELES WEEKLY, INC.), THE VILLAGE VOICE (A/K/A VV PUBLISHING CORPORATION), THE TEXAS OBSERVER (A/K/A THE TEXAS OBSERVER PUBLISHING COMPANY), PACIFICA RADIO NEWS (A/K/A THE PACIFICA FOUNDATION, INC.) AND SYDNEY H. SCHANBERG, E.L. DOCTOROW, WILLIAM STYRON, MICHAEL KLARE, AND SCOTT ARMSTRONG, PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF DEFENSE, RICHARD CHENEY, SECRETARY OF DEFENSE, PETER WILLIAMS, ASSISTANT SECRETARY OF DEFENSE FOR PUBLIC AFFAIRS, GENERAL COLIN POWELL, CHAIRMAN OF THE JOINT CHIEFS OF STAFF, GEORGE H. BUSH, PRESIDENT OF THE UNITED STATES AND COMMANDER-IN-CHIEF OF THE ARMED FORCES OF THE UNITED STATES OF AMERICA, DEFENDANTS. AGENCE FRANCE-PRESSE AND MICHAEL SARGENT, PLAINTIFFS, V. UNITED STATES DEPARTMENT OF DEFENSE, RICHARD CHENEY, PETE WILLIAMS, ASSISTANT SECRETARY OF DEFENSE FOR PUBLIC AFFAIRS, GENERAL COLIN POWELL, CHAIRMAN OF THE JOINT CHIEFS OF STAFF, AND GEORGE H. BUSH, PRESIDENT OF THE UNITED STATES AND COMMANDER-IN-CHIEF OF THE ARMED FORCES OF THE UNITED STATES, DEFENDANTS.



The opinion of the court was delivered by: Sand, District Judge.

  OPINION

I. INTRODUCTION AND SUMMARY

This is an action by various members of the press challenging regulations promulgated by the United States Department of Defense ("DOD") to govern coverage of military activities of American armed forces overseas during periods of open hostilities. These regulations, adopted after the Vietnam War, were in effect in some form during the Grenada and Panama military operations. In revised form, they were in effect during American military operations Desert Shield (American military presence in the Persian Gulf) and Desert Storm (open hostilities). They were lifted on March 4, 1991, upon the informal cessation of hostilities in the Persian Gulf.

DOD argues that the First Amendment does not bar the government from restricting access to combat activities and that the regulations are narrowly tailored and necessitated by compelling national security concerns. No party or amicus questions the applicability of the First Amendment to regulations imposed on American press representatives by the DOD governing actions overseas.

The issues raised by this challenge present profound and novel questions as to the existence and scope of a First Amendment right of access in the context of military operations and national security concerns. Those few precedents which have discussed First Amendment issues in the context of national security have been "prior restraint" cases. See Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931) (prior restraint presumed unconstitutional, though "no one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops"); New York Times Co. v. United States, 403 U.S. 713, 726, 91 S.Ct. 2140, 2147, 29 L.Ed.2d 822 (1971) (the Pentagon Papers case). Cases addressing a right of access have arisen in the context of such fora as a courtroom, a prison, and a campaign headquarters. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980) (criminal proceedings in a courtroom); Pell v. Procunier, 417 U.S. 817, 819-21, 94 S.Ct. 2800, 2802-04, 41 L.Ed.2d 495 (1974) (interviewing prisoners); American Broadcasting Companies v. Cuomo, 570 F.2d 1080, 1083 (2d Cir. 1977) (campaign activities). No previous cases deal on the merits with a right of access to a battlefield. The closest, but hardly controlling analogies, are those cases which have upheld the exclusion of the press and public from military bases. See, e.g., Greer v. Spock, 424 U.S. 828, 838-40, 96 S.Ct. 1211, 1217-18, 47 L.Ed.2d 505 (1976).

The basic question of access to the battlefield raised in this case is a significant matter of first impression. However, before a federal court may adjudicate an issue on the merits, various threshold questions must be resolved in plaintiffs' favor. Indeed, DOD asserts that for several reasons this Court should dismiss the complaint without reaching the merits. DOD's first contention is that plaintiffs have no standing to raise these issues since there has been no showing that they were in fact excluded from admission to any media pool. The Court finds this argument to be without merit. Whatever validity this claim may have had at the outset of this litigation was dissipated when, as discussed below, Agence France-Presse ("AFP") was in fact excluded from a pool and joined this suit.

The second ground on which DOD suggests this Court should decline to hear the merits of the controversy is the political question doctrine. DOD urges that the questions presented are non-justiciable because the United States Constitution designates the President as the Commander-in-Chief of the Armed Forces. For this reason, DOD claims that a federal court may not review determinations made by the Executive Branch in a military context, even when First Amendment rights are implicated. The Court rejects this contention for the reasons stated below.

Third, and most strenuously, DOD urges that once the regulations were lifted this controversy became moot and therefore non-justiciable. In resolving the question of mootness, a court must answer two discrete questions. First, is there in fact an ongoing controversy? This may be found to exist if the challenged conduct is either continuing or is "capable of repetition, yet evading review." Southern Pacific Terminal v. Interstate Commerce Com., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). To meet the "capable of repetition, yet evading review" requirements, the court must find that the challenged action was too short in its duration to be fully litigated and that there is a "reasonable expectation" that the party bringing the suit will "be subjected to the same actions again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975). For the reasons discussed below, we conclude that this controversy survives a challenge of mootness on these grounds. However, this conclusion resolves only the first of the two mootness issues present in this case — namely, that the Court has jurisdiction and the power to determine the questions presented.

The second, more delicate and troublesome mootness inquiry is whether, in an action such as this, where plaintiffs seek both declarative and injunctive relief, the court should in its discretion exercise such power to adjudicate the merits of the dispute. For a number of reasons more fully stated below, we conclude that such power should not be exercised in this case. We base this conclusion primarily on the abstract nature of the important issues now before the Court. We conclude that this Court cannot now determine that some limitation on the number of journalists granted access to a battlefield in the next overseas military operation may not be a reasonable time, place, and manner restriction, valid under the First and Fifth Amendments. Since we find the issues as here presented to be too abstract and conjectural for judicial resolution the Court, on this ground, grants DOD's motion to dismiss the complaint.

II. PROCEDURAL HISTORY

As noted, the plaintiffs other than AFP (the "NATION plaintiffs"), commenced this action by the filing of a complaint on January 10, 1991 seeking declaratory and injunctive relief. No motion for preliminary injunctive relief accompanied that filing. On January 16, 1991, the NATION plaintiffs moved for expedited discovery seeking to depose Pete Williams, Assistant Secretary of Defense and the chief press spokesperson for the DOD. This motion was granted and a time was scheduled for the Williams deposition. On January 25, 1991, the NATION plaintiffs filed an amended complaint, still unaccompanied by any motion. Defendant moved to dismiss on February 1, 1991, on the grounds that the NATION plaintiffs lacked standing and the case was non-justiciable. Later in the week defendant sought a protective order with respect to the Williams deposition. The application for a protective order was withdrawn after the parties agreed to the use of interrogatories as a substitute for the requested deposition.*fn1

On February 6, 1991, AFP, a wire service with reporters and photographers in the Persian Gulf, filed an action related to this case, seeking a temporary restraining order. AFP asserted that the DOD regulations, which excluded them from certain media pools, violated the First Amendment on their face and as applied. AFP asserted three claims. First, that the DOD requirement that priority be given for entry into the American pools to press representatives who "principally serve the American public" is constitutionally infirm. In the alternative, AFP argued that by serving 24 million readers in the United States, it satisfied the "principally serve the American public" requirement. See transcript, February 14, 1991, at p. 5. Second, AFP claimed that the DOD practice of permitting the selection process for admission to pools to be coordinated by AFP's principal competitor, Reuters Information Services Inc., was unfair and illegal. Finally, AFP asserted that it was the only major wire news service excluded from the pool, in violation of its rights under the Fifth Amendment.

On February 14, 1991, oral argument was heard on AFP's application for a temporary restraining order and on DOD's motion to dismiss the AFP action. At oral argument, AFP supplemented the motion with an oral application for interim relief, requesting that the photos produced by pool members be made available to AFP until the Court ruled on its application for a temporary restraining order and DOD's motion to dismiss. Decision was reserved pending further submissions on this and other questions. In a supplemental submission by DOD new issues were raised, including the alleged exclusion by the French government of foreign press representatives from the military sectors in the Persian Gulf controlled by the French.

On February 20, 1991, the plaintiffs in the NATION action filed a motion requesting a preliminary injunction. On February 25, 1991, prior to any decision in the AFP case and prior to oral argument on the motions in the NATION action, DOD moved to join the cases. The parties, by stipulation, agreed to consolidate under Fed.R.Civ.P. 42 those claims in the actions which were identical. The "separate and distinct issues [which] relate to the application and constitutionality of Department of Defense policies and guidelines as applied to Agence France-Presse" were to be resolved by the Court independently. DOD withdrew its motion for joinder and the plaintiffs withdrew their opposition.

Oral argument was heard on the consolidated NATION-AFP case on March 7, 1991.*fn2 At oral argument, AFP withdrew its request for interim relief and a temporary restraining order on the ground that these requests were moot as a result of the lifting of the press regulations, which occurred on March 4, 1991. The case is presently before the Court on the AFP and the NATION motions for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a), both plaintiffs' request for declaratory relief, and the government's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).

III. BACKGROUND OF REGULATIONS

During the Vietnam War the press was granted virtually unlimited access to the areas surrounding military operations. Access to observe events in actual battles was at the discretion of the field commanders, though only in rare instances was it denied. This unwritten policy of access to military activities enabled American audiences to observe events daily, including casualties and deaths in vivid and often painful detail. The only official restrictions by DOD during the Vietnam War were guidelines that limited dissemination of specific kinds of combat information that military officials concluded compromised the national security of this country. In contrast, when the United States invaded Panama and Grenada, DOD placed significant restraints on media coverage, particularly in terms of access for newsgathering purposes.*fn3

When the United States sent troops to the Middle East in the fall of 1990, DOD issued regulations to restrict press access and coverage of events occurring in the Persian Gulf before and during Operation Desert Storm. The regulations subsequently were revised a number of times.*fn4 The latest DOD directive, dated January 30, 1991, for use "during the initial stages of U.S. military activity in the Arabian Gulf area," is entitled CENTCOM POOL MEMBERSHIP AND OPERATING PROCEDURES ("CENTCOM").*fn5 The CENTCOM rules, among other things, created press "pools" to provide coverage of the war. DOD claims that the primary purpose of press pools in a military operation is to develop "a cooperative arrangement designed to balance the media's desire for unilateral coverage*fn6 with . . . CENTCOM's responsibility to maintain operational security, protect the safety of the troops, and prevent interference with military operations." CENTCOM at 1. According to DOD, the pools in this instance, and any imposed in the future, are temporary, with the aim being "to permit unilateral media coverage of combat and combat-related activity as soon as possible." Id.

Competition for admission into CENTCOM pools was intense. DOD set criteria for participation in the pools since the number of media representatives allegedly had to be limited "[d]ue to logistics and space." Id. Under the CENTCOM operating procedures, preference was given to "media that principally serve the American public and that have a long-term presence covering Department of Defense military operations." Id. For press representatives that did not meet this criteria, DOD created pool positions designated as "Saudi" and "International." Competition to gain access to these pools was less severe. The pools were divided into media categories, including television, radio, wire service, news magazine, newspaper, pencil, and photo. The "International" and "Saudi" pools did not make distinctions on the basis of media category.

Membership in the various pools was by organization rather than by individual press representative. Each of the pools was required to appoint a pool coordinator who "serve[d] as the spokesperson and single point of contact for that medium." Id. In the event of conflicts, according to the CENTCOM regulations, "any disputes about membership in or operation of the pool shall be resolved by the pool coordinator." Id. Participants were required to share all media products within their medium to pool members, but were not required by the regulations to distribute information to non-pool media representatives.

The news gathered in the field by pool participants was subject to review by a DOD public affairs officer before release. According to the "Operation Desert Shield Ground Rules," dated January 14, 1991 ("Ground Rules"), the security reviews were "to determine if [news reports] contain information that would jeopardize an operation or the security of U.S. or coalition troops." Ground Rules at 1. The types of information that the military considers sensitive are outlined in the Ground Rules. Id. The Guidelines state that "[m]aterials will be examined solely for . . . conformance to the . . . [G]round Rules, not for their potential to express criticism or cause embarrassment."

In the event there was a lack of agreement between the media representative and the public affairs officer about the sensitive nature of particular news gathered, the disputed information was sent to the Joint Information Bureau ("JIB") in Dhahran. If consensus was not reached after a meeting with the JIB Director, the issue was forwarded to the Office of the Assistant Secretary of Defense (Public Affairs) for review with the appropriate bureau chief. See Guidelines at 1. According to the Guidelines, the "ultimate decision on publication will be made by the originating reporter's news organization." Id.

In Defendant's Second Supplemental Memorandum, DOD reported that as of March 4, 1991, CENTCOM had announced that open, unilateral media coverage of Operation Desert Storm was in place in all theatres of operation. At oral argument on March 7, 1991, DOD clarified that the CENTCOM rules and regulations were no longer being enforced and that the pools had been deactivated. On the other hand, when asked, the government reported that the rules had not been abrogated. Defendant suggested that in this case, as in all recent past military operations, i.e., Panama and Grenada, DOD reviews procedures involving the press and aims to make recommendations for future revisions and improvements.

IV. DISCUSSION

As briefly summarized above, plaintiffs must satisfy a number of threshold justiciability requirements. The first issue is whether plaintiffs have standing to ask the Court to address the violations they allege. If plaintiffs prevail on the standing question, the next inquiry is whether the nature of the alleged violations are political questions and beyond the competence of this Court. If there is no bar from either of these doctrines, the question remains whether this controversy is moot due to the lifting of the CENTCOM pools and regulations. In the event the Court determines that at least some of the issues are not moot and that there is jurisdiction to hear the claims, a question remains whether the Court should exercise its power to address the controversy.

A. Standing

The doctrine of standing is rooted in Article III of the United States Constitution, which limits federal courts to adjudicating actual "cases and controversies." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). If a plaintiff fails to establish that an action presents an actual case or controversy capable of judicial resolution, a court lacks subject matter jurisdiction. See Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 476, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (1982). For a plaintiff to have standing to raise constitutional claims, he must show he has suffered an actual or threatened injury which is fairly traceable to the defendant's conduct and which is likely to be redressed by a favorable decision. See id. at 472, 102 S.Ct. at 758. In deciding questions of standing in constitutional cases, courts should also consider whether there are any prudential concerns that militate against granting standing to the plaintiff. See id. at 474, 102 S.Ct. at 759.

This Court has no difficulty in concluding that the harms alleged by plaintiffs in this case are "distinct and palpable." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Plaintiffs have alleged, in both their access and discrimination claims, injury to interests which lie at the core of the First and Fifth Amendments. In the event there is any question as to whether the NATION plaintiffs have standing, the consolidation of the case with the AFP plaintiffs definitively resolves the dispute.*fn8 There is no question of fact that AFP was denied access to CENTCOM pools and that the two complaints contain the same constitutional challenges to the pooling regulations. Therefore, it is clear that the issues raised in both the complaints are brought before the Court by parties who have allegedly suffered immediate injury resulting from the challenged regulations. Moreover, the prudential limitations on the granting of standing — such as the prohibition against raising generalized grievances or the raising of third party rights — are not implicated in this case. Accordingly, this Court concludes that plaintiffs have standing to raise their First and Fifth Amendment claims.

B. Political Question Doctrine

A second theory of non-justiciability raised by the defendant and expanded upon by one amicus*fn9 is the political question doctrine. The political question doctrine is based on separation of powers concerns and may arise in a variety of contexts. See Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962). As summarized by Justice Powell, the doctrine essentially encompasses three inquiries:

  (i) Does the issue involve resolution of questions
  committed by the text of the Constitution to a
  coordinate branch of government? (ii) Would
  resolution of the question demand that a court
  move beyond areas of judicial expertise? (iii) Do
  prudential considerations counsel against judicial
  intervention?

Goldwater v. Carter, 444 U.S. 996, 998, 100 S.Ct. 533, 534, 62 L.Ed.2d 428 (1979) (Powell, J., concurring). In pursuing these inquiries, the Supreme Court has warned that courts must not reject as "no lawsuit" a bona fide controversy as to whether a concededly "political" action exceeds constitutional authority. See Japan Whaling Assoc. v. American Cetacean Soc., 478 U.S. 221, 229, 106 S.Ct. 2860, 2865, 92 L.Ed.2d 166 (1986). If a litigant invokes a constitutional provision that can be successfully translated into judicially enforceable rights, the case cannot be held non-justiciable on political question grounds. See Baker, 369 U.S. at 211, 82 S.Ct. at 706.

In this case, the question is whether any constitutional right asserted by the plaintiffs involves the activities of the United States military, and if so, whether this Court's review of the claim on the merits would conflict with separation of powers principles, which assign this country's military matters to the legislative and executive branches of government. There is a long line of cases addressing the role of the judiciary in reviewing military decisions made by the Executive Branch pursuant to its Article II powers under the Constitution. The message is clear. Civilian courts should "hesitate long before entertaining a suit which asks the court to tamper with the . . . necessarily unique structure of the Military Establishment." Chappell v. Wallace, 462 U.S. 296, 300, 103 S.Ct. 2362, 2366, 76 L.Ed.2d 586 (1983).

In cases evaluating whether the political question doctrine bars review of military decisions, the Supreme Court has almost always declined to reach the merits of these cases. Yet, each of the cases involved direct challenges to the institutional functioning of the military in such areas as the relationship between personnel, discipline, and training. See id. at 300, 103 S.Ct. at 2365 (political question doctrine barred Article III courts from entertaining a suit to recover damages by enlisted military personnel against a superior officer for alleged constitutional violations since the special nature of the military requires two systems of justice); Parker v. Levy, 417 U.S. 733, 749-56, 94 S.Ct. 2547, 2558-61, 41 L.Ed.2d 439 (1974) (political question doctrine barred court consideration of legality of more encompassing regulations defining criminal conduct and restricting First Amendment rights in the military); Gilligan v. Morgan, 413 U.S. 1, 5-12, 93 S.Ct. 2440, 2443-47, 37 L.Ed.2d 407 (1973) (political question doctrine barred review where granting remedy would require review and continuing surveillance of training of National Guard); Orloff v. Willoughby, 345 U.S. 83, 90, 73 S.Ct. 534, 538, 97 L.Ed. 842 (1953) (commissioning of officers in Army is matter of discretion within the province of the President over which the courts have no control). None of these cases, however, are dispositive of the questions presented in the instant action.

In this case, there is no challenge to this country's military establishment, its goals, directives or tactics. As such, the President's Article II powers as Commander-in-Chief are not implicated because resolution of the question does not impact upon the internal functioning and operation of the military. Certainly this court would have neither the power nor the inclination to review a military determination that the presence of a large cadre of press representatives at a particular time and place would jeopardize the covert nature of a military operation. This might occur, for example, if all of the press corps suddenly left one area where amphibious landings were being practiced to deceive the enemy and moved to another area where a flanking ground action was poised to take the enemy by surprise. But here the press is not challenging exclusion from covert operations. Rather, it claims that the regulations do not represent a fact-specific tactical or strategic decision, but rather are "blanket" regulations which apply with equal force to access to battlefields where overt actions are in progress.

Accordingly, this Court concludes that the question of what restrictions may be placed on press access to combat zones is not "committed by the text of the Constitution to a coordinate branch of government." Goldwater, 444 U.S. at 998, 100 S.Ct. at 534. Nor does the question impact upon the foreign relations power by interfering with United States relations with a foreign sovereign, such as Saudi Arabia. The two central issues in this case — press access and inequality of treatment of different press organizations — relate primarily to CENTCOM management of the United States press covering United States military operations and have only an incidental relationship to American policy towards Saudi Arabia or other nations.

Furthermore, it cannot be said that plaintiffs have failed to allege a judicially enforceable right, or that enforcement of the rights raised by plaintiffs would require this Court to move beyond areas of traditional judicial expertise. The historic competence of the federal judiciary to address questions of First Amendment freedoms and equal protection is clear. See Baker, 369 U.S. at 226, 82 S.Ct. at 714. What is alleged by members of the press is the violation by the United States government of a judicially enforceable right under the First and Fifth Amendments. Plaintiffs seek to be freed from government interference in gathering and reporting news involving events that occur during an overt military operation, such as that in the Persian Gulf.

The Court concludes that plaintiffs' complaint alleges claims that are judicially enforceable under the First and Fifth Amendments. We find unpersuasive DOD's primary argument that the political question doctrine bars an Article III court from adjudicating any claims that involve the United States military. Under this theory of separation of powers, a court would lack jurisdiction to hear any controversy that involved DOD, including any government actions that violated the rights of non-military personnel. This reasoning is inconsistent with large bodies of constitutional law. For example, there could be little argument that a court would have the power to invalidate a constitutionally infirm regulation which explicitly made admission to a press pool dependent on the political content of a journalist's prior writings or which imposed racial or religious criteria for admission. The Court concludes that the mere fact that the regulations were promulgated by DOD to deal with press restrictions during military operations does not render the controversy non-justiciable.

C. Mootness

The most difficult of the justiciability questions raised in this action is whether the case may survive a mootness challenge. Defendant has the burden of proving that a case has become moot by virtue of events subsequent to the filing of the complaint. DOD urges that this has occurred. DOD, furthermore, claims that none of the well recognized exceptions to the mootness doctrine are applicable in this case. Finally, defendant suggests that even if the Court determines that the case is not moot, plaintiffs' request for equitable relief in the form of a declaratory judgment, which is at all times a matter within the Court's discretion, should be denied since the claims are not presented in a concrete and focused manner. For reasons that require some exposition, we conclude, based on all the circumstances of the case, that this controversy is not now sufficiently concrete and focused to permit adjudication on the merits.

Generally, a case becomes moot when the issues "presented are no longer live or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982). In other words, a case fails to meet Article III case and controversy requirements and to satisfy related prudential concerns when the passage of time has caused it to lose "its character as a . . . controversy of the kind that must exist if [the Court is] to avoid advisory opinions on abstract propositions of law." Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201-02, 24 L.Ed.2d 214 (1969) (per curiam); see also S.E.C. v. Medical Comm. for Human Rights, 404 U.S. 403, 407, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972); Monaghan, "Constitutional Adjudication: The Who and When," 82 Yale L.J. 1363, 1384 (1973). To determine whether mootness exists, a court must examine each issue in the case separately. Even when "one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy." Powell v. McCormack, 395 U.S. 486, 497, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969).

A number of exceptions to the mootness doctrine have developed. In this case, the exception most likely to be applicable is that originally articulated in Southern Pacific Terminal Co., 219 U.S. at 515, 31 S.Ct. at 283, where the Supreme Court held that an issue is not moot if it is "capable of repetition, yet evading review." Id. The capable of repetition, yet evading review doctrine applies where two elements are present. First, the challenged action must have been too short in duration to be fully litigated prior to its cessation or expiration. Second, there must be a "reasonable expectation" that the party bringing the action would be "subjected to the same action again." Weinstein, 423 U.S. at 149, 96 S.Ct. at 349 (1975); see also Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 126, 94 S.Ct. 1694, 1700, 40 L.Ed.2d 1 (1974).*fn10

The question for this Court is whether any of plaintiffs' outstanding claims survive under the capable of repetition, yet evading review test. The war in the Persian Gulf, like many recent military conflicts involving the United States, was short and swift. Even with efforts by all parties, the judicial process often will not be able to resolve legal controversies such as this before hostilities have ceased. See Flynt, 762 F.2d at 135. As such, this Court concludes that the controversy engendered by the CENTCOM regulations did not "last long enough for complete judicial review." Super Tire, 416 U.S. at 126, 94 S.Ct. at 1700. Because of the speed with which recent wars have terminated, as is clearly documented by the sequence of events in Panama and Grenada, the evading review test outlined in Weinstein, 423 U.S. at 149, 96 S.Ct. at 348, is satisfied.

The more difficult question is whether there is a reasonable expectation that the "same parties" will be "litigating the same issues" when the United States next engages in a military operation overseas. DOD has admitted that the CENTCOM regulations have been "lifted" but remain in place and may be reactivated. In fact, during the last three military efforts of the United States abroad, various types of pooling arrangements were utilized and the government concedes it is likely to follow this format in the future. See Defendant's Reply Memorandum, p. 7. Given these facts, it is not unreasonable to suppose that in future military activities DOD will behave in a manner that is susceptible to the same challenges as those raised in this complaint. Furthermore, it takes little imagination to assume that the NATION and AFP, both of which have a long history of covering wartime stories, will be seeking to report the news during the next conflict.

There is, however, a caveat. No two sets of pooling regulations will be identical nor will their application be the same since the nature of modern warfare is such that each conflict is different. DOD has asserted that its press regulations are under review now, as they were after Panama and Grenada, and that revisions will reflect, to the extent DOD deems appropriate, suggestions made by the press. Thus, the possibility exists that precise repetition may not occur. But in mootness cases where the doctrine that a challenged practice is capable of repetition is involved, some repetition may always be avoided by revision of the challenged conduct. This should not be deemed to defeat the application of the doctrine where there is no assurance as to when, if, and how the challenged practice will in fact be revised. Furthermore, while the exact language of the regulations may change, the nature of the conflict will most likely remain the same in a future action until the issues are definitively decided by the parties or the judiciary.

Although the Court concludes that as a general matter the capable of repetition test is applicable to this action and the Court has the power to hear the case on the merits, the question remains which, if any, of plaintiffs' claims are eligible for the relief sought. We proceed now to examine the specific claims.

1. Claims for Injunctive Relief

Plaintiffs seek to enjoin DOD from using pools that exclude some members of the press and from applying unfairly the regulations in effect when the complaint was filed. To obtain an injunction, plaintiffs must show a threat of imminent, specific and irreparable harm. See Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974). As one Court wrote in addressing the relationship between mootness and injunctive relief, "past injury alone is not sufficient to merit the award of relief against future conduct." Halkin v. Helms, 690 F.2d 977, 1005 (D.C. Cir. 1982); see also Super Tire, 416 U.S. at 121, 94 S.Ct. at 1697.

Plaintiffs' claims for injunctive relief cannot survive a motion to dismiss on the ground of mootness. AFP's request for interim relief, as well as for a temporary restraining order, and the NATION plaintiffs' motion for a preliminary injunction, are without doubt moot. Since the regulations have been lifted and the press is no longer constrained from travelling throughout the Middle East, there is no longer any presently operative practice for this Court to enjoin. Furthermore, there is no threat of irreparable harm since AFP and the NATION plaintiffs are able to gather and report news freely. Since injunctive relief is not appropriate for past injuries, this Court holds that all of plaintiffs' claims requesting injunctive relief are moot.

2. Claims for Declaratory Relief

Even though the case for injunctive relief dissolved with the end of the war and the lifting of the CENTCOM regulations, plaintiffs may still retain sufficient interests and injury to justify declaratory relief on their general right of access and equal access claims.*fn11 The request, however, must not be for an advisory opinion since a federal court lacks the power to "decide questions that cannot affect the rights of the litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). In the context of mootness, the question is "whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); see also Super Tire, 416 U.S. at 122, 94 S.Ct. at 1698 (action not mooted by short labor strike and declaratory relief appropriate when plaintiffs are "adversely affected by the government without a chance of redress."); Penguin Books USA Inc. v. Walsh, 929 F.2d 69 (2d Cir. 1991).

There is some precedent for determining the appropriateness of declaratory judgments in the context of military operations that have terminated. In a case involving press coverage of the United States military activities in Grenada, the D.C. Circuit held that, at the time of judicial review, the action was moot "because appellants' complaint seeks a declaratory judgment solely with respect to the constitutionality of the press ban in Grenada." Flynt, 762 F.2d at 135 (emphasis added). The court's reasoning suggested, however, that declaratory relief might have been appropriate if the complaint had alleged constitutional violations more broadly and had otherwise met the capable of repetition yet evading review requirements. Id.

Within the boundaries of these principles and the mootness doctrine, this Court must determine whether it has the power to address plaintiffs' request for a declaratory judgment on the issues remaining in the case. The complaint alleges that the unconstitutional practices of the DOD have been in place since 1983 and have continued through the operations in the Persian Gulf. Plaintiffs specifically challenge DOD's use of media pools as an unconstitutional means of denying the press access to military activities. Further, plaintiffs suggest that the pool regulations provide preferential access and disparate treatment to reporters. Since the claims are broad and since DOD has lifted but not abrogated the regulations, this Court holds that the action is capable of repetition and eligible for declaratory relief.

The question of the court's power to hear a case is, however, only the beginning of the inquiry. A separate and more difficult inquiry is whether it is appropriate for a Court to exercise that power. See Kremens v. Bartley, 431 U.S. 119, 134 n. 15, 97 S.Ct. 1709, 1717 n. 15, 52 L.Ed.2d 184 (1977). The availability of thoroughly prepared briefs arguing both sides of a constitutional question and of numerous amici curiae offering to assist in the decisional process is not determinative, even though all of them "stand like greyhounds in the slips, straining upon the start." Id. As the Supreme Court wrote on the question of exercising discretion, "jurisdiction . . . should be exerted only when the jurisdictional question presented by the proceeding . . . tenders the underlying constitutional issues in clean-cut and concrete form . . ." Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 584, 67 S.Ct. 1409, 1427, 91 L.Ed. 1666 (1947).

At issue in this action are important First Amendment principles and the countervailing national security interests of this country. This case presents a novel question since the right of the American public to be informed about the functioning of government and the need to limit information availability for reasons of national security both have a secure place in this country's constitutional history. In short, this case involves the adjudication of important constitutional principles. The question, however, is not only which principles apply and the weighing of the principles, but also when and in what circumstances it is best to consider the questions. In determining whether to exercise its power to hear plaintiffs' claims for declaratory relief, the Court must evaluate each of the underlying ...


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