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Transcript of court proceedings for CNN v. Michael Brown



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Federal Emergency Management Agency (FEMA)
Cable News Network (CNN)
Department of Justice (DOJ)

(CNN) -- CNN filed suit against Federal Emergency Management Agency director Michael Brown on Friday, arguing that the federal government could not keep news organizations from reporting on the recovery of the dead in New Orleans, Louisiana.

On Saturday, an attorney for the United States told U.S. District Court Judge Keith Ellison that it would not enforce the "zero access" policy. Charles Babcock, an attorney for CNN, said that he saw no more need for legal action, unless the government's new policy was more strict than it appeared to be. What follows is a court transcript of the proceeding:

UNITED STATES DISTRICT JUDGE KEITH P. ELLISON: Thank you. Please be seated. Is anybody going to need the flip chart?

CHARLES BABCOCK, attorney for CNN: No, Your Honor.

ELLISON: That's left over from a Fourth Amendment hearing. All right. OK. Thank you all for being here. A particular thanks, Mr. Wyatt. I know this was very short notice. Tell me if we've made any progress toward an agreement or other resolution.

KEITH WYATT: Your Honor, my name is Keith Wyatt. I am with the U.S. attorney's office. This morning about five minutes ago I handed to counsel for the plaintiffs a statement from the assistant chief of staff who reports directly to Gen. Honore in which the statement says the following: "This memorandum is to confirm that Joint Task Force Katrina, commanded by Lt. Gen. Russel L. Honore, has no plans to bar, impede, or prevent news media from their news gathering and reporting activities in connection with the deceased Hurricane Katrina victim recovery efforts, including access to the sites, photographing or reporting." Signed by lieutenant -- signed by Col. Christian E. DeGraff, assistant chief of staff, J-3.

ELLISON: Thank you. Do you have a copy of that so the court reporter can get the spelling? Well, I will say when I was driving in here this morning, I heard on NPR that there was still -- not still -- it was reference made there being limitations on coverage. And that press organizations, without naming any, were complaining about this. So, tell me what you think the state of play is, Mr. Babcock.

BABCOCK: Your Honor, Charles Babcock for the plaintiffs in this case. We think this is helpful for starters. And would like, just for the purposes of the record, to submit to the court what we've marked as Plaintiff's Exhibit 1 and 2 and Exhibits 1-A and 2-A. One and Two are transcripts of recorded statements from yesterday from Col. Terry Ebbert (director of homeland security in New Orleans) and Gen. Honore himself. And they said in pertinent part that the search for the living has been concluded. But that a recovering -- a recovery operation -- street by street, grid by grid -- for any remaining individuals who passed away, this exercise will be with dignity, meaning there will be no press allowed. That was Col. Ebbert yesterday.

And then when asked by a member of the press, Gen. Honore' said there will be no -- zero access to the operation.

If this is a change in policy, 180-degree change, we think that's appropriate and proper and perhaps in recognition of what occurred yesterday afternoon. But we would like to tender these exhibits to the court.

ELLISON: Very well. Hand them to Mrs. Foster.

BABCOCK: I have provided him a copy.

ELLISON: Have you provided a copy to Mrs. Foster?

BABCOCK: I haven't. I will do that right away.

ELLISON: Well, do you know what happened? Did people at FEMA change their minds?

WYATT: I can tell you this: Late into the night and early this morning, I have had several conference calls. Those conference calls were with various FEMA and DOJ officials. The FEMA officials who were involved was David Trissell, whose the general counsel at FEMA.

ELLISON: Why don't you spell these proper names as you go through.

WYATT: I will do that, Your Honor. David Trissell, T-R-I-S-S-E-L-L; he's the general counsel of FEMA. Jordan, J-O-R-D-A-N; Fries, F-R-I-E-S; he's the head of litigation of FEMA. And a Lynda, L-Y-N-D-A; Pilgrim, P-I-L-G-R-I-M; she's a staff attorney with FEMA. They all participated in a conference call along with four Department of Justice officials with the Federal Programs Branch in Washington. Their names are Jody Hunt; J-O-D-Y, Hunt. Vince Garvey, G-A-R-V-E-Y. Betsy Shapiro, S-H-A-P-I-R-O. And John Griffins, G-R-I-F-F-I-N-S. As well as a JAG attorney representing the military was also present. His name is Stuart, S-T-U-A R-T; Baker, B-A-K-E-R.

And during the course of the proceedings, we discussed some of the statements that apparently Gen. Honore has made during press conferences. And ultimately, we contacted the Katrina Joint Task Force, which resulted in a statement. And the policy now is that there will be no impediment to press access.

The only limitation that there would be is that the Department of Defense of FEMA does not believe the press has a right to be embedded with the recovery vehicles, recovery boats. But to the extent, the press can go out to the locations. They're free to do that. They're free to take whatever pictures they can take.

But I have a district -- a circuit court decision, Flynt versus Rumsfeld, in which the Circuit Court in 2004 said the First Amendment does not guarantee to the press the right to be embedded with military units.

Now, the case itself is different than what we're dealing with here. It's dealing with military units. But it stands for the proposition that the press doesn't have the right to be embedded with the units. We think that applies here. And the cite of that case is 355 F .3d 697.

ELLISON: Is that from this circuit?

WYATT: It's the District of Columbia circuit.

ELLISON: Okay. Well, I didn't understand your papers to be asking for the right to be embedded.

BABCOCK: No, Your Honor. It was the total ban on press access that was the subject of our lawsuit.

ELLISON: Right. Do we now have the matter resolved? Is there a case or controversy left?

BABCOCK: Your Honor, I think in terms of an emergency hearing on the emergency temporary retraining order is probably resolved. As Judge Prado once said to me, "The devil is in the details."

ELLISON: Yeah. That's always true.

BABCOCK: If Monday or tomorrow the exception about, "We're not going to allow you to be embedded," turns out in practice to mean something greater than what we all have an understanding of here, we may want to come back to Your Honor to talk further. But in light of counsel's representation that the policy now is not to impede access to the press, I think we're in a good spot. We're thankful to the court and counsel for his quick work.

ELLISON: I'm happy to do it. I do want to congratulate on the record Ms. Carlisle and Mrs. Foster and Ms. Sulkowski for giving up a portion of their weekend. I do thank you very much.

I had -- my weekend plans were not gala ones. I was going to see my parents who are not in good health in Austin. I had told them that I was not going to go when I learned about this. But in light of Mr. Wyatt's representations, I think I will go.

This is what we'll do -- I'm not running away from this. I don't want you to go find another judge. I will give you my parents' number and my home number. And I'll be at one number or the other all weekend.

So, if we have to do a hearing by telephone, we'll do that.

BABCOCK: Thank you, Your Honor.

ELLISON: But I really don't want to be perceived as ducking a hard case. I'm not doing that. All right. I do thank both counsel for trying to work this matter through. I hope we have resolved it now. Thank you for what sounds like a very late night, Mr. Wyatt. Thank you, Mr. Babcock. We will be in recess.

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