Responsive Documents (1) - DHS: The Best Laid Plans: DHS Response To CREW Lawsuit: FEMA and Hurricane Katrina: 7/6/2006

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From: Trissell, David
Sent: Fridav. Se~tember09. 2005 9:08 PM
Subject: RE: Media TRO

I got it -just sent you the order - Just send info to Jordan, Lynda and myself, I'll let George know. Thnks.
This communication, along with any attachments, is covered by federal and state law governing electronic communications and may contain confidential and legally
privileged information. Ifthe reader of this message is not the intended recqient, you are hereby notlfied that any dissemination, distribution, use or copying of this
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To: Trissell, David

Subject: Media TRO
Please let me know if you get this. Does George have an email address? /wbeuyhould
To I send?
Stuart
SJA Desk
JTF-Katrina (First Army)
Democracy Now! I Is the Government Trying to Stem the Tide of Images From New Orleans by Threatening Journalists? Page 1 of 11
Fried, Jordan
From: Pilgrim, Lynda

Sent: Friday, September 09, 2005 10:19 PM
To: Fried, Jordan
Subject: Emailing: article.htm
Daily Digest sign- Friday, September 9th, 2005

The Exception
Is the Government Trying to Stem the Tide of Images
?-"---- From ~ e w ' o r l e a n by
s Threatening Journalists?
to the Rulers
Listen to Segment (1 Download Show mp3

Watch 128k stream _Watch 256k stream Read Transcript
Help, Printer-fnendly version Email to a friend
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1 . -"--
Journalists covering New Orleans in the aftermath of hurricane
Katrina report that militarization in and around the city has
hindered their work and threatened their physical safety. We
Browse archives by hear from two journalists who were reporting in New Orleans
-
date recently. [includes rush transcript]
SIGNED EDITIONS
The journalists who have been covering Hurricane Katrina have HardcoverDaperback
literally been risking their lives for the last week. Reporters SpanisldItalian
Find radio and TV have been stationed in and around New Orleans since the
stations in your local Hurricane hit and have tirelessly reported on the devastation to Read book excerpt
area that air the city. Some journalists have expressed enormous outrage at on "Hiroshima
Cover-up"
Uemocracy Now! I 1s the Government Trying to Stem the Tide of Images From New Orleans by Threatening Journalists? Page 2 of 11
Democracy Now! government officials for their slow response. A few television Watch video of the
Independent Media reporters openly broke down on air as they report the horrific N Y C book tow
is more important conditions and the desperation of victims. Reporters have 1aun.cl1
than ever witnessed the militarization of the city and are starting to feel
the effects of the government crack-down on information Amy Goodman's
gathering. FEMA is now rejecting requests by journalists to Speaking Events:
Hiroshima accompany rescue boats searching for storm victims. In 9/10: Baraboo, WI
Countdown, an addition, journalists are being asked not to photograph any dead 9112: South Hadley,
audio documentary bodies in the region. NBC News Anchor Brian Williams MA
by Andrew Phillips reported on his blog, that police officers had been seen aiming 911 2: Philadelphia,
Stream MP3 1 their weapons at members of the media. And a blogger named PA
Downloads and Bob Brigham wrote a widely read dispatch that the National 9/14: New York, NY
more formats Guard in Jefferson County are under orders to turn all 9/16: Huntsville, AL
journalists away. Brigham writes: "Bush is now censoring all 9117: Birmingham,
reporting from New Orleans, Louisiana. The First Amendment AL
sank with the city." More ...
A New
Documentary Earlier this week, Reporters Without Borders issued a warning
f e a t u r i n ~Amy about police violence against journalists working in New Baltimore Sun:
Orleans. They highlighted two cases - in one case police Hiroshima Cover-
detained a Times-Picayune photographer and smashed his u
equipment to the ground after he was seen covering a shoot-out
with police, In the second case, a photographer from the
Toronto Star was detained by police and his photos taken from
him when police realized that he had snapped photos of a clash
between them and citizens who the police claimed were looters.
Visit Democracy Headlines for
Tim Harper, reporter with the Toronto Star
Now!'s New Online September 9, 2005
Jacquie Soohen, Independent film maker with Big Noise
Store. films. Among her films - "Zapitista" and "Fourth World Los Titulares de
War," where she traversed the globe - from South Afnca Hoy: Democracy
Buy DN Videos, to South Korea, from Argentina to Iraq- documenting anti
CDs, T-shirts &, Now!'s daily news
corporate globalization struggles. summary translated
More.
- "
into Spanish
RUSH TRANSCRIPT
II Is the Government
Trying to Stem the
Democracy Now! / Is the Government Trying to Stem the Tide of Images From New Orleans by Threatening Journalists? Page 3 of 11
This transcript is available free of charge. However, donations Tide of Images From
help us provide closed captioning for the deaf and hard of New Orleans by
hearing on our TV broadcast. Thank you for your generous Threatening
contribution. Journalists?
Donate - $25, $50, $100, more...
%
! FEMA Promotes
AMY GOODMAN: White House Press Secretary Scott Pat Robertson
McClellan was asked about the crackdown yesterday. Charity
REPORTER: There are a couple of issues that are E! Crisis Profiteering:

developing that are of concerns to journalists down in Dick Cheney,
Louisiana and Mississippi. One of them is FEMA Halliburton and
refusing to take reporters and photographers when they're Hurricane Katrina
going to recover the bodies, ostensibly because they don't
want pictures of them on the news,'but this also is at the I@ Democracv Now!
same time as reporters are discovering that access is being Engineer Mike
barred to them to places -- by the military to places where DiFilippo Lends A
Call 1 (888) 999- they previously went. Brian Williams' own blog reports Hand in Alabama
3877 or enter the an instance of a police officer turning a gun on reporters. and hlississipi
-
store
SCOTT McCLELLAN: Sorry, I haven't blogged today,
so I haven't seen some of those reports.
REPORTER: Check it out. He has three instances in

there of the military being hostile to journalists.
Television
SCOTT McCLELLAN: I know that the military and I
. CNN think even Coast Guard has taken steps to try to make
07/19/05: Newsnieht with Aaron
Brown sure reporters can go along on some of the efforts that --
06/28/05: Newsnieht with ne on the humanitarian assistance efforts and search and rescue
-Brown
12/22/04: News with Wolf efforts. That was my understanding when we were there
r-
on Friday, visiting with a lot of the Coast Guard people
that had been working around the clock on search and
02/16/05: Hardball with Chris rescue operations.
Matthews
02/01/05: Hardball with Chris
Matthews Your first statement that you made, I think you need to
12/03/04: Hardball with Chris
look further into that, because I don't think that's an
--
Uemocracy Now! I Is the Government Trying to Stem the Tide of Images From New Orleans by Threatening Journalists? Page 4 of 11
Matthews
I 1/29/04: Scarborough County accurate characterization. I saw some reports to that
11/24/04: Hardball with Chris effect, and my understanding is it was not an accurate
Matthcws characterization. Certainly, I think we all want to keep in
mind the sensitivities that will arise when we begin more
. PBS or larger undertaking of recovering bodies that will be
11/12/04: Tucker Carlson's
Unf ltered found. As I said, it's going to be an ugly situation when
those floodwaters ultimately recede and we go in and start
Charlie Rose Show . recovering larger numbers of bodies of people who have
Amv Goodman on indeuendent
media & war lost their lives. Those are people who had families and
friends, and we hope everybody will show the dignity and
POV on PBS proper dignity and respect, but in terms of the
Ibce in America characterization that you made, I don't think that's
accurate.
- CNN debates
5/14/03: Amv Goodman on
Saudi terror bombines
Archived CNN Transcripts:
REPORTER: We have a quote from FEMA about it,
1/20/03 I! 1/24/03 saying "the recovery of victims is being treated with
dignity and the utmost respect, and we have requested that
Print no photographs of the deceased be made by the media."
And yet, the bodies themselves, tragically, are a very
Philadelphia Inquirer: large part of the story, and to bar any visual depiction of it
"She's takine the watchdov to
task"
--
Daily Camera: SCOTT McCLELLAN: I'm not sure that that's the full
"NYC's 'Democracy Now!' in
Boulder"
statement.
Newsweek Online: AMY GOODMAN: That was White House Press Secretary
"Access of Evil" Scott McClellan speaking on Thursday, being questioned by
reporters at the White House. Joining us in our D.C. studio is
* .Los Angeles Times: Tim Harper, a reporter with the Toronto Star. He was with his
"Left-winp radio's Amy
Goodman takes her views on lhe photographer, Lucas Oleniuk, the photographer from the
-
road."
Toronto Star whose photos were taken from him by police. And
here with us in New York is Jacquie Soohen. She just flew in
Tucson Weekly:
"Namcs Amv Goodman "Bcst last night, an independent filmmaker with Big Noise Films, And
Radio Talk Show Host" we'll talk with her about what happened to her in a minute, but
first we go to Tim Harper in Washington, Explain when you
Arizona Daily Star: were in New Orleans with your photographer and what
"'Democracv Now!' host br~nes
criticism of war coverage to happened.
Democracy Now! 1s the Government Trying to Stem the Tide of Images From New Orleans by Threatening Journalists? Page 5 of 11
Tucson stage"
TIM HARPER: Sure. It was a week ago Thursday. It was a day
that things were quite clearly out of control. It was before any
Guerrilla News
Network:
federal troops had come in to try to take control of the situation.
"Guerrilla of the Week"
New Orleans authorities were clearly way over their head at that
point, and looting had been breaking out over the past 24 hours
T& Hindu: everywhere.
"The Other Side Of The News"
We drove, Lucas Oleniuk and I drove into the city. We were a
Washington Post: couple of blocks away from the Convention Center, when he
"Peace Correspondent, DN!Host noticed on the left what looked to be perhaps the start of a
Amv Goodman making her voicc
heard on Iraq"
shootout. We noticed a New Orleans ETF, emergency task force
officer crouching behind his car with his gun drawn. Lucas
a Wall Street Journal: jumped out of the car. As soon as he did, we heard a quick pop,
"Pacifica Radio Network pop, pop, and gunfire was coming from an apartment block, and
Becomes Antiwar Voice"
being returned by the police.
I was told in no uncertain terms at gunpoint to get the hell out of

the area, and I complied as best I could. But Lucas was caught
essentially in the gunfire because New Orleans police pulled up
behind him and started shooting over his shoulder. So during the
15-minute or so standoff that ensued, he was taking pictures
alongside New Orleans officers as they were caught in the
standoff. Now, subsequently, they did get two suspects out of
the apartment block where this incident was happening, and
while Lucas was shooting, they administered a rather fierce
beating on these two guys. And I guess that was the problem.
As soon as they realized that the beating of the suspects was

being captured on film, one officer tried to rip the camera off his
shoulder. His press tag was ripped off. Eventually, they got one
camera and started messing with the camera trying to get the
pictures out. Fearful that they were going to ruin his camera, he
showed them how to get the images out. His second camera was
ripped from his shoulder at that time, and when he asked
whether he could get his images back, he was threatened with
having his neck broken, had guns pointed at him.
I came back to try to help him. I had guns pointed at me. I was
told to turn my car around, stop or I'll shoot. I had a shotgun
pointed at the windshield. So the bottom line is about 350
images that Lucas Oleniuk took will never be seen, and I
thought almost equally as important, ripping off his press tag at
that point and leaving him out any press accreditation driving
around in the city in that situation made him incredibly
vulnerable. It was a very dangerous situation.
JUAN GONZALEZ: So, in other words, they did not initially

try to stop his shooting of photographs of the shootout. It was
only when --
TIM HARPER: Not during the shootout, no.
AMY GOODMAN: -- they started to beat the prisoners that

they had grabbed that they became concerned?
TIM HARPER: Yeah. No, it's not clear at that point whether
they allowed him to keep taking the pictures, because obviously,
they were worried about sniper fire coming from the apartment,
and they didn't want to do anything to endanger themselves. But
there was -- nobody tried to intervene. He actually at one point
ran across the street from -- he had taken shelter behind a light
standard, and then while the shooting was going on, ran across
about a quarter block length to get behind a cruiser for better
protection, beside another officer shooting, so, no, there was no
move to stop him from taking pictures while they were involved
in the shootout.
AMY GOODMAN: Tim Harper is a reporter with the Toronto

Star. His photographer, Lucas Oleniuk with the Toronto Star
had his film taken. When we come back, we'll also be joined by
Jacquie Soohen to talk about her experience as she was filming,
as well.
[break]
AMY GOODMAN: Our guest, Tim Harper, of the Toronto

Star, telling us what happened when he was covering New
Orleans, and Jacquie Soohen of Big Noise films whose done a
number of films around the world, spent a good deal of time in
Iraq covering the invasion and occupation and the time before.
Jacquie, you just flew in late last night from New Orleans. Tell
us about your experience there.
JACQUIE SOOHEN: Well, the experience with the police was

two days ago. We were filming in the Ninth Ward, which is one
of the more dangerous areas, supposedly, but also one of the
hardest hit areas, and one of the areas where a lot of rescue
operations haven't gone into, especially the Lower Ninth Ward.
And we were just on the edge of that and we were filming with
another photographer and a journalist. Curfew was approaching,
but it wasn't quite there yet, and we had gone about the city at
the same time of night, other times. And all of a sudden, out of
nowhere, literally, there were four S W s and a Humvee pulled
up, and without any warning, D.E.A., Border Patrol, Louisiana
Police Department and National Guard forces came out with
their guns raised, pointed at our heads, and said, "Looters will
be shot!" And we just began yelling as fast as we could, "We're
press! We're press! We're press!" And I had my camera in my
hand while that was going on, And they kept yelling at us,
"Looters will be shot!" for -- this went on for a little while.
AMY GOODMAN: Were you with a resident of the Ninth

Ward?
JACQUIE SOOHEN: We were with a resident of the Ninth

Ward, who was also okay. We were all okay in the end. We
talked them down. We were able to tell them we would just
leave as quickly as possible, they also wanted to make sure that
the resident of the Ninth Ward left He was planning on staying,
but they wanted to make sure that he left with us.
And I think what we did was we experienced more than

Democracy Now! / Is the Government Trying to Stem the Tide of Images From New Orleans by Threatening Journalists? Page 8 of 11
anything, I mean, martial law as it was being enacted upon the

city and the fear that it was causing in all of the residents, and
the very next day, there were-I got two more phone calls from
residents who were inside, who had suddenly decided to leave
because they said they were being harassed and intimidated by
the police, being searched on street corners, having guns pointed
at them.
AMY GOODMAN; To say the least, you have been in a lot of

dangerous situations. How did this rate in-you know, how
afraid were you?
JACQUIE SOOHEN: I have to say that both me and the other

journalist who was with me, both of us who have covered the
Iraq war, this was one of the more frightening situations,
because they really-I really had the impression that they were
willing to shoot anybody and anything. They were incredibly
energized, incredibly amped up, and also that that whole area
was very lawless, as was said, but the police had a fear and they
were willing to -- really willing to intimidate anybody who was
there.
What was eerie was also, though, it looked a lot like Iraq. I
mean, the only times that we did see National Guard, they were
patrolling the streets in the same way in the Ninth Ward,
whereas in downtown area, they were perhaps more friendly,
talking to people, etc. In that area of the city, it very much
lookedlike an occupied city. They were walking in formation.
They had their guns out and pointed at the houses. So it was
kind of-it was very frightening to see that in our country.
JUAN GONZALEZ: Jacquie, and I'd like to ask Tim Harper

also, this whole issue of lawlessness and looting and attacks has
gotten a lot of attention in the past few days. Many African
American leaders claiming that it has been overblown; others
saying no; and even the officials in New Orleans not quite being
united. We've heard, on the one hand, that the allegations of
uemocracy NOW! I IS the tiovernment 'l'rying to Stem the Tide of Images From New Orleans by Threatening Journalists? Page 9 of 11
rapes and murders that occurred in the Superdome have been

discounted, and yet the Mayor of New Orleans yesterday said,
admitted that, yes, some had occurred. So, I mean, what did you
see on the ground in terms of this whole issue of the extent of
the looting and the lawlessness?
JACQUIE SOOHEN: I saw very little looting in the areas I

was in, to be honest. In the Ninth Ward, which I was surprised --
I had thought I would see-in fact, the resident we went with
expected to find his house looted, and he came back and
everything was perfectly intact in there, and his neighborhood
similarly hadn't been looted at all. It was very much the
community was staying there. So, I think perhaps it depends on
block to block. The things that seem to be looted were the
shopping centers downtown and that sort of a thing. More than
anything, talking to other residents, it seems like a lot of these
things are being used as scare tactics amongst the residents
themselves.
JUAN GONZALEZ: And Tim Harper, what did you see in

terms of actual looting or lawlessness, and credible reports that
you received?
TIM HARPER: Well, we witnessed looting on a number of

occasions, and in fact we witnessed widely divergent responses
to it. One morning, driving into the city in Kenner, which is the
district not far &om the airport, Lucas again, we witnessed and
we shot an armed takedown of a looter in a convenience store
who was handcuffed at gunpoint and laid face down on the
asphalt.
But then the next day, for example, driving along Magazine
getting into New Orleans, a giant Whole Foods had just been
looted. And people were just pushing grocery carts down the
street filled with water and non-perishables, and the police had
drove by, just moved over into the left lane so as not to impede
their progress and just let them head off wherever they were
UUIIVWL~Y IVU w : I 13 LUG U U V W ~ ~ I ~ G I ~ Llrylng ro arem me 1iae 01Images prom New Urleans by 'l'hreatening Journalists? Page 10 of 11
heading with it. I think at that point, the realization, of course,

had kicked in that people were looting in order to survive and to
help others survive, and the police didn't seem to be impeding
their progress.
AMY GOODMAN: I was wondering if what we're seeing in

New Orleans is what we rarely see in this modern age of
journalism, certainly when it comes to Iraq, and that is
unembedded reporting. There were no troops there to embed
with. Now, you have the President coming late to this saying
that bodies are not to be filmed. Of course, how they impose
that rule in Iraq, you are not supposed to see body bags or, yoa
know, flag-draped coffins. But right now, what the American
people have seen on their TV screens is reporters at the bull's
eye, which is what we rarely see, at the target end, because there
are no troops that they are with. They're there with the victims. -
They're crying. They're not in air-conditioned spaces. They're
subjected to the same horrendous conditions in New Orleans,
and they're experiencing the victims. Jacquie, or Tim, I'll start
with you, do you have any view on that, that idea of us seeing
the power of what it means to see these images and the
administration now very much trying to catch up and stop this
from coming out?
TIM HARPER: Well, I just wanted to make one point, Amy,

Somebody mentioned to me yesterday that just as the Pentagon
had embedded reporters with soldiers during the Iraq invasion,
so as inevitably your sentiments mesh with the soldiers' --
they're there to help you and protect you -- hundreds of reporters
in the last ten days or so have been embedded with the poverty-
stricken people of New Orleans. And I think there's a possibility
that this is changing some views, because when you're
embedded with people, and in fact when I say embedded, I
mean it doesn't matter how much money you have in your
pocket in New Orleans, everybody was the same. There was
nothing to buy. There was-the playing field was leveled.
- IIIIVwIUwJ I YY I 13 L U G ULJYCIILLIICIIL1 rying ro arem me I iae or lmages Prom New Urleans by 'l'hreatening Journalists? Page 11 of 1I
And when you are embedded with people suffering like that,
you tend to be sympathetic to their point of view. You tend to
wonder where is the help? You tend to wonder why these
people have been left behind, and you identifi with them. And
I'm wondering whether in this country and in the next little
while there might be a more-a closer look at how so many
people in New Orleans, for example, and Mississippi, where we
were, are living in abject poverty. How did they fall under the
radar? Maybe it's time to take a look at this again, and maybe
some views could be changed because of this.
AMY GOODMAN: Jacquie Soohen, your final comment?
JACQUIE SOOHEN: I definitely agree that from every --

from the victims to the people who were able to survive the
hurricane, people are very critical of how this is dealt with, and
that has to do a lot with the power of the stories that are getting
out.
AMY GOODMAN: Amazing to see across the political

spectrum, when you see these images, unfiltered, fiom
conservative Republicans to progressives, people denouncing
what has happened. You can only wonder if we had seen these
same images when it came to the invasion and occupation of
Iraq, if people would have the same response. I want to thank
you so much, Tim Harper, reporter with the Toronto Star, for
joining us in Washington, D.C., and Jacquie Soohen,
independent filmmaker with Big Noise Films here in New York.
Both just back from covering New Orleans.
To purchase an audio or video copy of this entire program,

here for our new online ordering or call 1 (888) 999-3877.
TRO Page 1 of 1
From:
Sent: Friday, September 09, 2005 9: 15 PM
To: 5-1
Trissell, David;
Cc: Fried, Jordan; ~iiLjim,Lynda; 1A JOC Staff Judge Advocate
Subject: RE: TRO
Got your message, working the issue. Glad to help
I'm sending via separate message the PA0 (Public Affairs Officer) agreement for your review. I'm still digesting
it. Still gathering info...
Stuart
SJA Desk
JTF-Katrina (First Army)
From: Trissell, David 1

- - - '

A
To: ':-
Cc: Fried, ~ordan;pilgrim, Lynda
!
2
Subject: TRO
Stuart - here are our contacts, and order is attached - thanks for helping us run this down -
David A. Trissell
FEMA General Counsel
<<090905CNN v.Brown.txt>>
This communication, along with any attachments, is covered byfederal and state law governing electronic communications
and may contain confidential and legally privileged information. g t h e reader of this message is not the intended recipient,
you are hereby notified that any dissemination, distribution, use or copying of this message is strictlyprohibited. Ijjrou have
received this in error, please reply immediately to the sender and delete this message. Thank you.
Pilgrim, Lynda
Sent:
To:
Cc:
Friday, September 09,2005 9:01 PM
rr~ed,Jordan; Pilgrim, Lynda

a
Subject: TRO
Attachments: 090905CNN v.Brown.txt
David A. Trissell
090905CNN
v ~ r o w n (16
. ~ KB)
This communication, along with any attachments, is covered byfederal and state law governing electronic communications and may contain
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UNITED STATES D I S T R I C T COURT
SOUTHERN D I S T R I C T OF TEXAS
HOUSTON D I V I S I O N
CABLE NEWS NETWORK, LP, . civil Action

LLP . NO. H - 0 5 - 3 1 7 0
AND
MICHAEL CARY
MICHAEL D. BROWN, i n h i s .
c a p a c i t y as under
S e c r e t a r y o f ~ 0 m e and
1
security f o r Emergency
P r e p a r e d n e s s and
R e s p o n s e , and ~i rector - 5 : 0 0 P.M.
o f t h e FEDERAL EMERGENCY s e p t e m b e r 9, 2 0 0 5
MANAGEMENT AGENCY HOUSTON, TEXAS
TRANSCRIPT o f HEARING PROCEEDINGS

BEFORE THE HONORABLE K E I T H P. E L L I S O N
UNITED STATES D I S T R I C T JUDGE
APPEARANCES:
FOR CABLE NEWS NETWORK

AND
MICHAEL CARY: MR. CHARLES L . BABCOCK
MS. NANCY W. HAMILTON
jackson wa1 k e r , L L P
1 4 0 1 M c K i n n e y , s u i t e 1900
H o u s t o n , T e x a s 77010
FOR MICHAEL D. BROWN: MR. K E I T H EDWARD W Y A n

~ s s i s t a n tu n i t e d S t a t e s
Attorney
21 910 T r a v i s , S u i t e 1 5 0 0
Houston, Texas 77208
~ r o c e e dngs
i recorded by mechani c a l stenography, t r a n s c r i p t
produced by c o m p u t e r - a i ded t r a n s c r i p t i on.
Page 1
,
3 O F F I C I A L COURT REPORTER: MS. STEPHANIE KAY CARLISLE
U. S . o i s t r i c t c o u r t h o u s e
4 515 ~ u s k
s u i t e 8016
H o u s t o n , Texas 77002
713.250.5157
Page 2
P R O C E E D I N G S
(September 9, 2005)
3 THE COURT: please be seated. Good afternoon
and
4 we1 come.
5 MR. BABCOCK: Thank you, Your Honor.
6 THE COURT: Mr. ~abcock.
7 we are here on H-05-3170, cable News
Network
8 and Michael Cary versus Michael D. Brown.
9 I w i l l take appearances o f counsel.
10 MR. BABCOCK: Thank you, Your Honor.
11 c h a r l e s Babcock and Nancy Hamilton, both o f
the
12 Jackson walker f i r m , representing t h e p l a i n t i f f s .
13 THE COURT: We1 come.
d l ~ . BABCOCK: Thank you.
05 :41: 2 4 1 ~5 ~ THE COURT: And t e l l me what e f f o r t s have been
made
t o g e t ahold o f somebody representing t h e defendant.

MR. BABCOCK: Yes, Your Honor. Mr. Scott who i s
colleague o f mine a t our o f f i c e arranged f o r t h e personal

19 s e r v i c e o f t h e papers a t approximately 4:30 t h i s
afternoon.
Maybe a few minutes on e i t h e r s i d e o f t h a t . Then he
21 personal 1y spoke w i t h a 1it i g a t i on para1egal special is t i n
the
22 united states ~ t t o r n e ~ o
' sf f i c e advising them t h a t t h e r e
was
23 an immediate hearing. That was probably about 25, 30
minutes
ago -- approximately 25, 30 minutes ago. And they
Page 3
05:41:58PM 25 acknowledged t h a t and s a i d thae they would see what they
could
do.
THE COURT: HOW do YOU suggest we proceed?
MR. BABCOCK: Your Honor, t h e r e a r e two avenues
4 approach. we c e r t a i n l y want t o g e t before t h e Court our

case
05:42:18~~ 5 today. we're n o t n e c e s s a r i l y - - i n f a c t , we'd p r e f e r i t
if
t h e Government was here. ~ h e y ' r etwo ways o f proceeding:
one, my experience has been when a Federal ~ u d g et e l l s t h e
U.S. Attorney t h a t they need t o see them --

9 THE COURT: I ' m happy t o place a phone c a l l . I
just
05:42:34PM 10 d o n ' t know t h a t I ' m going t o g e t anybody. ~ ' m
happy t o
call
them.
12 MR. BABCOCK: hey do know about t h i s . so, i n
the
absence o f t h a t , I would ask t h a t you hear us out. YOU do
have a u t h o r i t y under t h e ~ u l e st o e n t e r an ex p a r t e - -
THE COURT: I know I do. I j u s t d o n ' t l i k e ex
p a r t e --
17 THE CASE MANAGER: Your Honor, I t r i e d
contact; ng
18 t h e U.S. A t t o r n e y ' s o f f i c e ; and Ig e t t h e recording t h a t
thei r
19 o f f i c e hours are from 8:00 t o 5:OO. ~ n since
d I don't
know
Page 4
05:43:02PM 20 e x a c t l y what U.S. Attorney i s assigned t o t h i s case as o f
now,
Id o n ' t have a name where Ican t r y t o page t h i s person o r
22 have t h i s person hunted down by c o n t a c t i n g one o f t h e

other
U.S. attorneys.
24 THE COURT: okay. Well, Ms. C a r l i s l e , can you

stay
w i t h us f o r a while?
THE REPORTER: Yes, s i r .

THE COURT: Let me go back t o my chambers. Let
3 make a few more phone c a l l s . ~f n o t h i n g e l s e -- I

understand
t h e concern i s t h e coverage o f removal o f dead bodies. Is
05:43:30P~ 5 t h a t ongoing o r i s t h a t going t o s t a r t sometime i n t h e

future?
6 MR. BABCOCK: We understand . t h a t i t ' s going t o
start
7 immediately. And t h e FEMA r e p r e s e n t a t i v e s apparently
spoke --
one o f them spoke l a t e morning and t h e o t h e r one spoke
d e f i n i t i v e l y e a r l y t h i s afternoon.
05:43:42PM 10 THE COURT: Let me go back and see i f I can
rouse
11 some response. we may need do an ex p a r t e order t o n i g h t
and
come back tomorrow morning. s o r r y t o make people work
~ ' m
weekends, b u t we may need t o do t h a t .

MR. BABCOCK: We would be d e l i g h t e d t o do i t ,
Page 5
Honor.
16 THE COURT: Idoubt anybody w i l l be delighted,
but
w e ' l l do i t .
MR. BABCOCK: we1 1, maybe n o t del ighted.
THE COURT: W e ' l l do i t . ~ 1 r1i g h t .
( s h o r t recess taken.)
THE COURT: Mr. K e i t h Wyatt who heads t h e c i v i l
22 d i v i s i o n o f t h e U.S. Attorney's O f f i c e i s here a t my

request.
I d i d telephone M r . Wyatt -- telephoned a c t u a l l y Don
24 ~ e ~ a b r i e l and
l e received M r . w y a t t ' s response. ~ n Id
think I
O6:Oz: WPM 2 5 t r i e d t o describe very summarily what t h i s case was about,
but
otherwise we've had no communications. I s that fair?

MR. WYATT: That's Correct, Your Honor.
THE COURT: TO r e i t e r a t e , CNN i s asking t o
enjoin
Michael Brown as under secretary o f Homeland s e c u r i t y and
~i
r e c t o r o f FEMA from p r o h i b j t i ng coverage o f t h e removal
dead bodies as a consequence o f Hurricane K a t r i n a .

Now, i f what I heard on NPR i s c o r r e c t t h i s
8 afternoon, M r . Brown i s no longer head o f FEMA. I don't

know
9 when t h a t ' s e f f e c t i v e . ~ u he's
t been r e l i e v e d o r
something .
Page 6
090905CNN v Brown-txt
0 6 : 0 3 : 3 2 ~ 10
~ That doesn't change anything.
11 MR. BABCOCK: He's s t i l l D i r e c t o r ; b u t he's n o t
on
s i t e anymore, h e ' s back i n Washington.
THE COURT: That doesn't change anything.
MR. BABCOCK: The Coast Guard guy i s doing
something.
THE COURT: M r . Wyatt, Iknow i t ' s n o t f a i r f o r
17 t o respond on t h e m e r i t s . The issue i s : what would you

like
me t o do? I can reconvene t h i s hearing u n t i l tomorrow
morning, ift h a t ' s what makes sense.
06: 03 :5 6 20
~ ~ MR. WYATT: Your Honor, Iwould ask f o r a short
21 extension o r continuance of t h e hearing. The concern I
have
22 i s i t ' s now 6:00 o ' c l o c k .
23 THE COURT: I have t h e same concerns you have.

24 MR. WYArr': 1 ' m not sure. 1'11 do my best. But
06:04:08PM 25 what Ineed t o do i s contact t h e c l i e n t agency, FEMA. In
a11
1 honesty, I'W n o t sure Ican do t h a t t o n i g h t .

2 THE COURT: yeah. well, that's fine. I do
3 understand t h a t . The o n l y t h i n g I can do, though, i s t o
-- i s
4 t o accept t h e f a c t s as w e l l pleaded. And Ido need t o
enj o i n
06:04:36PM 5 u n t i l our continued hearing any p r o h i b i t i o n o f press
coverage.
Page 7
090905CNN v Brown.txt
6 Based on t h e f a c t s as pleaded, t h a t ' s a l l Ihave, i t looks
l i k e a p r i o r r e s t r a i n t t o me. I cannot a u t h o r i z e t h a t .
can I.be passive i n t h e face o f i t ' s a s s e r t i o n .

L e t me do t h i s : w e ' l l reconvene tomorrow
8:30. I ' m going -- I ' m n o t going t o say i t on t h e record.
w i l l g i v e you both my home phone number. You can c a l l me
12 t h i n g s change. ~ n idf you want t o reconvene t o n i g h t , I

can do
13 that.
14 I t may need - - we won't have a c o u r t
reporter
06:05:20PM 1 5 tonight.
16 Ms. C a r l i s l e , I d o n ' t know about your
17 a v a i l a b i l i t y tomorrow morning.
18 THE REPORTER: I ' m a v a i l a b l e , Your Honor.
19 THE COURT: You're sure?
06:05:32~~
20 THE REPORTER: Yes, s i r .
21 THE COURT: You've earned an e x t r a hundred years
in
22 heaven.
23 THE REPORTER: Thank you.

24 THE COURT: L e t ' s j u s t p l a n - - Iw i l l be here a t
the
06:05:38PM 25 back entrance o f t h e c o u r t where t h e judges park, and I'll
1e t
1 you i n . Because, otherwise, I ' m n o t sure you w i l l be able

Page 8
090905CNN v Brown.txt
to
2 get i n .
3 Can you get i n romorrow, Ms. C a r l i s l e ?
06:05:50P~ 5 THE COURT: okay.

6 1 ' 1 1 meet you there. T h a t ' s l i k e a t smith
and
7 c a p i t a l S t r e e t back t h e r e - - and make sure everybody can
get
8 in.
9 And I' m not going t o r e q u i r e bond r i g h t
now.
06:06:10PM 10 we w i l l take up t h e issue o f a bond tomorrow.
11 ~ u mty order i s unambiguous, Id o n ' t want
12 p r o h i b i t i o n o f press coverage u n t i l t h e r e ' s some

13 demonstration - - and a very strong demonstration -- by t h e
14 Government as t o why F i r s t Amendment r i g h t s need t o be
06:06:32P~ 1 5 interdicted l i k e this.
16 S
I t h e r e anything e l s e we can do today?
17 MR. BABCOCK: The o n l y t h i n g , Your Honor, i s I
have
18 a proposed order t h a t a n t i c i p a t e d t h e c o u r t ' s reaction.
And
19 p r o c e d u r a l l y as w e l l , I ' v e provided a copy t o M r . Wyatt.
06:06:50~~
20 THE COURT: provide i t t o Ms. Foster i f you
would .
21 MR. BABCOCK: I have taken t h e l i b e r t y o f
filling in
22 t h e date and time f o r tomorrow.
23 THE COURT: Ms. Foster can provide t h i s t o
counsel.
24 I d i d n ' t want t o p u t t h a t on t h e record.
06:07:12P~ 25 s a t i s f i e d w i t h what ~ ' v es a i d on t h e
~ ' m
Page 9
1 record. I ' m j u s t going t o leave i t a t t h a t .
2 w e ' l l see you a t t h e back parking l o t a t
8: 30
3 tomorrow.
4 ~ n y t hng
i further?
0 6 : 0 7 : 4 6 ~ ~5 MR. WYA-TT: NO, Your Honor.
6 MR. BABCOCK: Thank you, Judge.
7 (proceedings concluded a t 6:07 p.m.)
8 * 0 *
9 I c e r t i f y t h a t t h e foregoing i s a c o r r e c t t r a n s c r i p t from
the
record o f proceedings i n t h e above-entitled cause, t o t h e
best
10 o f my a b i l i t y .
11
stephanie Kay c a r l i s l e , CSR, RPR Date

13 O f f i c i a l c o u r t Reporter
Page 10
Page 11
3
CABLE NEWS NETWORK, LP, . civil Action
4 LLP . NO. H - 0 5 - 3 1 7 0
5 AND
6 MICHAEL CARY
MICHAEL D. BROWN, i n h i s .
S e c r e t a r y o f Home1and
R e s p o n s e , and D i r e c t o r . 8 : 3 0 A.M.
o f t h e FEDERAL EMERGENCY s e p t e m b e r 10, 2 0 0 5

APPEARANCES :

AND
MICHAEL CARY: MR. CHARLES L. BABCOCK
J a c k s o n walker, LLP
1 4 0 1 M c K i n n e y , s u i t e 1900
H o u s t o n , T e x a s 77010
FOR MICHAEL D. BROWN: MR. K E I T H EDWARD WYATT

~ s ss ti a n t U n i t e d S t a t e s
Attorney
910 T r a v i s , s u i t e 1 5 0 0
~ r o c e e dngs
i recorded by m e c h a n i c a l stenography, t r a n s c r i p t
produced by c o m p u t e r - a i ded t r a n s c r i p t i o n .
Page 1
1 APPEARANCES (CONTINUED):

U.S. o i s t r i c t c o u r t h o u s e
4 515 ~ u s k
- u i t e 8016
s -
H o u s t o n , T e x a s 77002
713.250.5157
Page 2
(September 10, 2005)

THE COURT: Thank you. Please be seated.
S
I anybody going t o need t h e f l i p chart?
MR. BABCOCK: NO, Your Honor.
6 THE COURT: That's l e f t over from a Fourth

Amendment
h e a r i ng .
~ 1 r1i g h t . okay. Thank y o u - a l l f o r being
9 here. A p a r t i c u l a r thanks, M r . Wyatt. Iknow t h i s was

very
short notice.
ell me i f we've made any progress toward
agreement o r other r e s o l u t i o n .
MR. WYAIT: Your H O ~ O ~m,y name i s ~ e i t hwyatt.
am w i t h t h e U.S. Attorney's o f f i c e .
This morning about f i v e minute ago 1 handed
counsel f o r t h e p l a i n t i f f s a statement from t h e ~ s s i s t a n t

c h i e f o f S t a f f who r e p o r t s d i r e c t l y t o General Honore' i n
which t h e statement says t h e f o l 1owing :
19 his memorandum i s t o confirm t h a t J o i n t
Task
~ o r c e - ~ a t r i n acommanded
, by Lieutenant General R U S S ~L.
~
21 ono ore', has no plans t o bar, impede, o r prevent news

medi a
from t h e i r newsgatheri ng and r e p o r t i n g a c t i v i t i e s i n
23 connection w i t h t h e deceased Hurricane K a t r i na v i c t i m

recovery
e f f o r t s , i n c l u d i n g access t o t h e s i t e s , photographing o r
Page 3
091005CNN v BrOWn.tXt
08:32:32AM 25 reporting."
1 signed by Lieutenant -- signed by colonel

2 C h r i s t i a n E. DeGraff, Assistant c h i e f o f s t a f f , 7-3.
3 THE COURT: Thank you. Do you have a copy o f
that
so t h e c o u r t r e p o r t e r can get t h e s p e l l i n g ?
we1 1 , I w i l l say when I was d r i v i n g i n here
t h i s morning, I heard on NPR t h a t t h e r e was s t i l l -- n o t
s t i l l -- i t was reference made t h e r e being l i m i t a t i o n s on
coverage. And t h a t press organizations, w i t h o u t naming
9 were complaining about t h i s . So, t e l l me what you t h i n k

the
state o f play i s , Mr. ~abcock.
11 MR. BABCOCK: Your Honor, c h a r l e s ~ a b c o c kf o r
the
p l a i n t i f f s i n t h i s case.
we t h i n k t h i s i s h e l p f u l f o r s t a r t e r s . And
would l i k e , j u s t f o r t h e purposes o f t h e record, t o submit
08:33:22AM 1 5 t h e Court what we've marked as p l a i n t i f f ' s ~ x h i b i t1 and 2

and
16 E x h i b i t s 1-Aand 2-A. One and TWO are t r a n s c r i p t s o f
recorded
statements from yesterday from colonel Ebbert and General
Honore' h i m s e l f . And they said i n p e r t i n e n t p a r t t h a t t h e

19 search f o r t h e l i v i n g has been concluded. 8ut t h a t a
08:33:52AM 20 recovering -- a recovery operation - - s t r e e t by s t r e e t ,

grid
Page 4
2 1 by g r i d -- f o r any remaining i n d i v i d u a l s who passed away,
this
22 exercise w i l l be w i t h d i g n i t y , meaning t h e r e w i 11 be no
press
23 allowed. That was colonel ~ b b e r tyesterday. And then
when
24 asked by a member o f t h e press, Gene.ra1 Honore' s a i d t h e r e
0 8 3 3 4 3 1 2 ~25
~ w i l l be no -- zero access t o t h e operation.
1 ~f t h i s i s a change i n p o l i c y , 180-degree
2 change, we t h i n k t h a t ' s appropriate and proper and perhaps.
3 r e c o g n i t i o n o f what occurred yesterday afternoon. ~ u we

t
would l i k e t o tender these e x h i b i t s t o t h e c o u r t .
THE COURT: very w e l l . Hand them t o Mrs.
MR. BABCOCK: I have provided him a copy.

.7 THE COURT: Have you provided a copy t o Mrs.
Foster?
MR. BABCOCK: I haven't. I w i 11 do t h a t r i g h t
THE COURT: w e l l , do you know what happened?
people a t FEMA change t h e i r minds?

11 MR. WYATT: I can t e l l you t h i s : Late i n t o the
12 n i g h t and e a r l y t h i s morning, I have had several
conference
13 calls. Those conference c a l l s were w i t h v a r i o u s FEMA and
DO7
14 o f f i c i a 1s . The FEMA o f f i c i a 1 s who were i n v o l v e d was David
08:35:04AM 1 5 ~ r i s s e l l ,whose t h e general counsel a t FEW.

Page 5
091005CNN V Br0Wn.tXt
16 THE COURT: why don't you s p e l l these proper
names
17 as you go through.
18 MR. WYATT: Iw i l l do t h a t , Your Honor.
19 David T r i s s e l l , T-R-I-S-S-E-L-L; he's t h e
0 8 : 3 5 : 1 2 ~ ~20 general counsel o f FEMA. Jordan, J-O-R-D-A-N; ~ries,

21 F-R-I-E-S; he's t h e head o f l i t i g a t i o n o f FEMA. ~ n ad
~ynda,
22 L-Y-N-D-A; P i l g r i m , P-I-L-G-R-I-M; she's a s t a f f attorney
with
23 FEW. They a l l p a r t i c i p a t e d i n a conference c a l l along
with
24 f o u r Department o f J u s t i c e o f f i c i a l s w i t h t h e ~ e d e r a l
Programs
08:35:38AM 25 Branch i n washington. T h e i r names a r e Jody Hunt; J-0-D-Y,
1 Hunt. Vince Garvey, G-A-R-V-E-Y. Betsy shapiro,

2 S-H-A-P-I-R-0. And John G r i f f i n s , G-R-I-F-F-I-N-S. AS
we11
3 as a JAG a t t o r n e y representing t h e m i l i t a r y was a l s o
present.
4 H i s name i s S t u a r t , S-T-U-A R-T; Baker, €3-A-K-E-R.
08:36:08~~ 5 And d u r i n g t h e course o f t h e proceedings,
we
6 discussed some of t h e statements t h a t apparently ~ e n e r a l
7 Honore' has made d u r i n g press conferences. ~ n d
u l t i m a t e l y , we
8 contacted t h e K a t r i n a J o i n t Task Force which r e s u l t e d i n a
9 statement. ~ n tdh e p o l i c y now i s t h a t t h e r e w i l l be no
08:36:28~~
10 impediment t o press access. The o n l y l i m i t a t i o n t h a t
there
Page 6
09100SCNN V Brown. t X t
11 would be i s t h a t t h e Department o f Defense o f FEMA does

not
12 b e l i e v e t h e press has a r i g h t t o be embedded w i t h t h e
recovery
13 vehicles, recovery boats. ~ u t to t h e e x t e n t , t h e press
can go
14 out t o the locations. They're f r e e t o do t h a t . They're
free
t o take whatever p i c t u r e s they can take.
But Ihave a d i s t r i c t -- a c i r c u i t c o u r t
17 decision, F l y n t versus Rumsfeld, i n which t h e C i r c u i t
court i n
18 2004 s a i d t h e F i r s t Amendment does n o t guarantee t o t h e
press
t h e r i g h t t o be embedded w i t h m i l i t a r y u n i t s .
NOW, t h e case i t s e l f i s d i f f e r e n t than what
2 1 we' r e d e a l i n g w i t h here. ~ t ' sdealing w i t h m i l i t a r y
units.
.22 ~ u i tt stands f o r t h e p r o p o s i t i o n t h a t t h e press doesn't
have
t h e r i g h t t o be embedded w i t h t h e u n i t s . we t h i n k t h a t
a p p l i e s here. ~ n tdh e c i t e o f t h a t case i s 355 F .3d 697.
THE COURT: I s t h a t from t h i s c i r c u i t ?
1 MR. WYATT: I t ' s t h e D i s t r i c t o f columbia .

circuit.
2 'THE COURT: okay. We1 1, I d i dn ' t understand
your
3 papers t o be asking f o r t h e r i g h t t o be embedded.
4 MR. BABCOCK: No, Your Honor. I t was t h e t o t a l
band
Page 7
0 9 1 0 0 5 C ~V~ Brown-tXt
on press access t h a t was the subject o f our l a w s u i t .
THE COURT: ~ i g h t . Do we now have t h e matter
resolved? S
I t h e r e a case o r controversy l e f t ?
MR. BABCOCK: Your Honor, I t h i n k i n terms o f an
9 emergency hearing on t h e emergency temporary r e t r a i n i n g
order
i s probably resolved. As ~ u d g e~ r a u d oonce s a i d t o me,
d e v i l i s i n the details."
THE COURT: Yeah. That's always t r u e .

13 MR. BABCOCK: I f Monday o r tomorrow t h e
exception
14 about, "we're n o t going t o a l l o w you t o be embedded,"
turns
o u t i n p r a c t i c e t o mean something g r e a t e r than what we a l l
have an understanding o f here, we may want t o come back t o
Your Honor t o t a l k f u r t h e r . ~ u i tn l i g h t o f counsel's
representation t h a t t h e p o l i c y now i s n o t t o impede access
t h e press, It h i n k we're i n a good spot. we're t h a n k f u l
t h e c o u r t and counsel f o r h i s q u i c k work.

THE COURT: I ' m happy t o do i t . I do want t o
22 congratulate on t h e record Ms. c a r l i s l e and Mrs. Foster
and
Ms. ~ ukowski
l f o r g i v i n g up a p o r t i o n o f t h e i r weekend. I
thank you very much.

08:39:00AM 25 I had -- my weekend plans were n o t g a l a
ones.
Page 8
091005CNN V Brown.txt
1 I was going t o see my parents who a r e n o t i n good h e a l t h
2 Austin. Ihad t o l d them t h a t I was n o t going t o go when I

3 learned about t h i s . But i n l i g h t o f M r . w y a t t ' s .
4 representations, I t h i n k I w i l l go. This i s what w e ' l l do
--
08:39:18A~ 5 I ' m n o t running away from t h i s . Id o n ' t want you t o go

find
another judge. I w i l l g i v e you my p a r e n t ' s number and my
7 number. And 1'11 be a t one number o r t h e o t h e r a l l

weekend.
8 SO, i f we have t o do a hearing by telephone, w e ' l l do
that.
MR. BABCOCK: hank YOU, Your Honor:
0 8 3 3 9 3 3 4 ~10
~ THE COURT: But I r e a l l y d o n ' t want t o be
perceived
as ducking a hard case. I ' m n o t doing t h a t .
12 ~ rli glh t . I do thank both counsel f o r

trying '%
13 t o work t h i s matter through. Ihope we have resolved i t

now.
14 hank you f o r what sounds l i k e a very l a t e
08:40:10~~
15 n i g h t , M r . Wyatt. Thank you, M r . Babcock.
16 we w i l l be i n recess.
17 ( ~ r o c e e dngs
i concl uded. )
19 Ic e r t i f y t h a t t h e foregoing i s a c o r r e c t t r a n s c r i p t from
the
record o f proceedings i n t h e a b o v e - e n t i t l e d cause, t o t h e
best-
20 o f my a b i 1it y .
stephanie Kay ~ a r l i s l e ,CSR, RPR Date

Page 9
From:
Sent:
To:
-
Wednesdav. Seotember 14.2005 1:39 PM
- -
Subject: CNN V. FEMA
Attachments: Court phone conference v. 6rown.txt
Court phone
-
:onference v. Brow..
Here is a transcript of the telephone conference call with the Judge that took
place on Monday afternoon.
Keith
Ass-iscant U.S. Attorney

Chief, civil Division
U.S. Attorney's Office
910 ~ r a v i s ,Suite 1500
P.O. Box 61129
Phone: 713-567-9713
Fax: 713-718-3303
m - -
E-mail:
C o u r t phone conference v Brown.txt

CABLE NEWS NETWORK, LP, . c i v i1Action

LLP . NO. H - 0 5 - 3 1 7 0
AND
- MICHAEL CARY
MICHAEL D. BROWN, i n h i s
c a p a c i t y as u n d e r
S e ~ r e t a r - yo f Home1and
s e c u r i t y f o r Emergency
R e s p o n s e , and D i r e c t o r . 3:58 P.M.
o f t h e FEDERAL EMERGENCY s e p t e m b e r 12, 2005
TRANSCRIPT OF TELEPHONE CONFERENCE PROCEEDINGS

BEFORE THE HONORABLE K E I T H P. ELLISON
APPEARANCES:

AND
MICHAEL CARY: MS. NANCY W. HAMILTON
J a c k s o n walker, L L P
1401 M c K i n n e y , s u i t e 1900
( v i a t e l ephone)

~ s s i s t a n tu n i t e d S t a t e s
Attorney
21 910 T r a v i s , S u i t e 1 5 0 0
( v i a t e 1e p h o n e )
~ r o c e e dnig s recorded by m e c h a n i c a l s t e n o g r a p h y , t r a n s c r i p t
produced by c o m p u t e r - a i d e d t r a n s c r i p t i o n .
I
Page 1
C o u r t phone c o n f e r e n c e v Brown-txt
2
3
4 ALSO PRESENT: MR. DAVID V I G I L A N T E
(via t e l e p h o n e )
5
6
7
O F F I C I A L COURT REPORTER: MS. STEPHANIE KAY CARLISLE
8 U . S . ~ i s t r j c tc o u r t h o u s e
515 RUS~-
9 S u i t e 8016
H o u s t o n , T e x a s 77002
10 713.250.5157
Page 2
Court phone conference v Brown.txt
1 P R O C E E D I N G S
2 (september 12, 2005)
3 ( ~ nchambers.)
4 THE COURT: s t a t e your appearances, please.
03:58:00PM 5 MS. HAMILTON: Nancy Hamilton o f Jackson walker

on
6 b e h a l f o f CNN.
7 MR. VIGILANTE: On t h e phone i s o a v i d V i g i l a n t e ,
8 in-house lawyer f o r CNN.
9 MR. WYATT: And, Your Honor, my name i s ~ e i t h
Wyatt.
03:58:12PM 10 Irepresent FEMA.
11 THE COURT: welcome t o each o f you. ~ e 1 1me

what
12 the problem i s .
13 MS. HAMILTON: Your Honor, Judge, you know, on
14 Saturday we had a hearing i n c o u r t a t 8:30. There was
03:58:30PM 1 5 representation by t h e Government t h a t they were n o t going

to
16 bar o r impede access f o r t h e media i n t o t h e recovery
efforts
17 o f t h e Hurricane ~ a t r i n adeceased v i c t i m s . Ig o t a c a l l
today
18 from my c l i e n t , CNN, saying t h a t they had been barred
access
19 from some o f t h e recovery e f f o r t s . And s p e c i f i c a l l y i t
had
03:58:56PM 20 conversations w i t h t h e captain o f t h e 82nd ~ i r b o r n ewho
said
2 1 t h a t he had no idea about t h i s order o r a c t u a l l y about t h e

22 l e t t e r t h a t was provided t o t h e c o u r t on Saturday.
23 THE COURT: Mr. Wyatt, can you speak t o t h a t ?

24 MR. WYATT: w e l l , I r e a l l y can't. ~ ' m
at a
Page 3
Court phone conference v Br0Wn.txt
0 3 : 5 9 : 1 2 ~ ~25 mediation. 1 w i l l have t o make some c a l l s . 1 can t e l l
you i t
1 was t h e i n t e n t i o n o f General Honore' t o i s s;ue an order t

2 ensure t h a t a l l t h e troops were aware o f what t h e p o l i c y
was.
3 Id o n ' t know ift h i s i n d i v i d u a l who counsel i s t a l k i n g
about
4 i s p a r t o f t h e Army o r e x a c t l y who he was o r what t h e
0 3 : 5 9 : 3 8 ~ ~5 circumstances were.
6 MR. VIGILANTE: He i d e n t i f i e d h i m s e l f as t h e
captain
7 o f t h e 82nd Airborne. That should answer t h a t question.
I
8 spoke t o him personally. He had no knowledge o f any such

9 order. u n t i l he heard o f i t , they weren't going t o stop
d o i ng
03:59:52PM 10 what they were doing. They pursued our crew --
MR. W A ~ : M r . v i g i l a n t e , l e t me i n t e r r u p t . DO
12 have a phone number o r a c e l l number f o r t h i s o f f i c e r ?

13 MR. VIGILANTE: No. I have t h e r e p o r t e r on t h e
1ine
14 i f you want t o b r i n g him i n t o t h e c a l l .
04:OO:lOPM 1 5 THE COURT: hat's f i n e . Let me see i f Ican do
it.
16 MR. VIGILANTE: ~ t ' seasier i f Ido i t from my

side.
17 MS. WALKER: avid?
18 MR. VIGILANTE: yeah.
19 MS. WALKER: YOU said, though, t h a t you d i d have
Page 4
04:00:48PM 20 name and t h a t i s Captain Tony - - i s i t a as sari"?

21 MR. VIGILANTE: Massari, M-A-S-S-A-R-I. He
would
22 n o t g i v e any contact information out.
MR. WYATT: I ' m sorry. what was h i s f i r s t name?
MR. VIGILANTE : Tony.
0 4 : 0 1 : 0 0 ~ 25
~ S
I Dan on t h e l i n e ? can It r y and patch
Dan
1 ~ o t h i a ni n one more time?

2 THE COURT: One more time. We can c a l l him
d i r e c t ly
3 i f you want. You can t r y one more time. I t ' s not
essential.
4 MR. VIGILANTE: Well, I can speak f o r him. I
spoke
04:01:16PM 5 w i t h him when Iwas on t h e c a l l --
6 THE COURT: M r . Wyatt, I ' m s o r r y t h a t y o u ' r e i n
7 mediation. But you're going t o have t o deputize somebody

back
8 a t your o f f i c e t o make t h e necessary phone c a l l s . I ' m not
9 happy about t h i s development. we thought we had l a i d t h i s
to
04:01:30PM 10 r e s t on Saturday. The Government had an o p p o r t u n i t y t o
11 present i t s case. ~t waived n o t o n l y t h e p r e s e n t a t i o n o f
12 evidence b u t waived any o b j e c t i o n t o t h e coverage. And

I'm
13 n o t happy about one p o l i c y being announced i n c o u r t and

14 another being e f f e c t u a t e d on the ground. please t e l l
whomever
Page 5
Court phone conference v Brown-txt
04:01:50PM 15 you speak w i t h t h a t i f t h i s continues, Imean, t h e r e w i l l
be
16 contempt c i t a t i o n s and there w i l l be f i n e s issued.
17 MR. VIGILANTE: Iwould add t h a t our r e p o r t e r
when
18 he presented the memo t o t h e c a p t a i n was accused o f it
being
19 forgery. And they made a w a l l o f people and humvees
around
04:02:06PM 20 t h e subject t r y i n g t o f i l m and refused t o move. Even when
I
2 1 spoke t o t h e c a p t a i n d i r e c t l y and advised him o f what

happened
22 i n court, he s t i l l refused t o do i t .
23 MR. WYATT: Could you g i v e me t h e name o f t h e
04:02:18~~
25 MR. VIGILANTE: The r e p o r t e r ' s name i s Dan
L o t h i an,
2 THE COURT: ~ ' v eseen h i m on T.V.

3 MR. WYATT: I ' m sorry. L-0-C-H-I --
4 THE COURT: No. T-H. T-H, Tom. Tom, H.
04:02:30pM 5 MR. W Y A n : I ' m sorry. The l i n e broke up.
6 THE COURT: L-0-T-H-I-A-N, ~othian.
7 MR. WYATT: okay. Thank you.
8 THE COURT: ~ u please
t communicate t o c a p t a i n
9 Honore' o r whomever t h a t t h i s i s a matter t h a t t h e c o u r t

takes
04:02:48PM 10 very s e r i o u s l y . I d o n ' t l i k e t h e p r a c t i c e o f making

Page 6
Court phone conference v 6rown.txt
11 representations i n c o u r t t h a t a r e n ' t f o l l o w e d through w i t h
12 t h e ground. And i f Captain h on or-e' i s serious about t h e

13 i n t e n t o f t h e communication t h a t was read t o t h e c o u r t
14 Saturday morning, he should by now, almost 60 hours l a t e r ,
04:03:14P~ 1 5 have had ample o p p o r t u n i t y t o n o t i f y everyone on t h e
ground as
16 t o what t h e p o l i c y i s .
17 MR. WYATT: I understand, Your Honor. And I
will
18 t a l k w i t h them immediately.
19 MR. VIGILANTE: S
I t h e r e anything Ican do f o r
-. 04:03:26PM 20 M r . Lothian whors i n t h e f i e l d r i g h t now and continues t o
get
2 1 harassed t h i s afternoon by various people?
22 THE COURT: Well, you're welcome t o g i v e him my
23 d i r e c t number a t t h e o f f i c e and my number a t home. And
I'll
24 i n t e r r u p t proceedings t o speak w i t h him o r w i t h whomever
04:03:46P~ 25 responsible f o r t h e harassment.
MR. VIGILANTE: okay.

THE COURT: Ms. Hami 1t o n --
MS. HAMILTON: I have those numbers.
MR. VIGILANTE: Great. h hank you, Your Honor.
MS. HAMILTON: h hank you, Your Honor.
6 THE COURT: I s there anything e l s e before we go
off
Page 7
7 t h e record?
8 MS. HAMILTON: I don't b e l i e v e so.
9 THE COURT: I do want you t o communicate t o
captain
04:04:06PM 10 Honore' my d i s q u i e t and my displeasure a t t h i s , M r . Wyatt.
11 MR. WATT: I w i l l do t h a t , Your Honor.
12 THE COURT: Thank you.
13 (proceedings concluded.)
15 1 c e r t i f y t h a t t h e foregoing i s a c o r r e c t t r a n s c r i p t from
the
record o f proceedings i n t h e above-entitled cause, t o t h e
best
stephanie Kay c a r l i s l e , CSR, RPR oate

19 o f f i c i a l c o u r t Reporter
Page 8
From: Pilgrim, Lynda
Sent: Wednesday, September 14,2005 3:39 PM
To: Fried, Jordan
Subject: RE: CNN v. FEMA
S o t h i s i s Wednesday - what e n d e d up h a p p e n i n g ?
-----O r i g i n a l Message-----
From: F r i e d , J o r d a n
S e n t : Wednesday, S e p t e m b e r 1 4 , 2005 3: 1 9 PM
To: P i l g r i m , Lynda
6
S u b j e c t : FW: CNN v . FEMA
2
-----O r i g i n a l Message-----
S u b j e c t : CNN v . FEW
Here is a t r a n s c r i p t o f t h e t e l e p h o n e c o n f e r e n c e c a l l w i t h t h e J u d g e t h a t t o o k p l a c e o n
Monday a f t e r n o o n .
Keith
- -
Assistant U.S. Attorney

Chief, C i v i l Division
U.S. A t t o r n e y ' s O f f i c e
910 T r a v i s , S u i t e 1500
P . O . Box 61129
H o u s t o n , T e x a s 77208
Phone: 713-567-9713
C o u r t phone conference v Brown-txt

CABLE NEWS NETWORK, LP, . C i v i1 Action

LLP . NO. H - 0 5 - 3 1 7 0
AND
MICHAEL CARY
MICHAEL D. _BROWN, i n his

preparedness and
R e s p o n s e , and o i r e c t o r . 3 : 5 8 P.M.
o f t h e FEDERAL EMERGENCY September 12, 2005

APPEARANCES:

AND
Jackson walker, LLP
1401 ~ ~ K i n n e ys,u i t e 1900
c
(via telephone)
20 FOR MICHAEL D. BROWN: MR. K E I T H EDWARD WYA-

A s s i s t a n t united states
2 1 910 T r a v i s , s u i t e 1 5 0 0
H o u s t o n , T e x a s 77208
22 (via t e l ephone)
23
25 ~ r o c e e dni s recorded by m e c h a n i c a l stenography, t r a n s c r i p t

!i
produced y c o m p u t e r - a i d e d t r a n s c r i p t i o n .
Page 1
C o u r t phone c o n f e r e n c e v Brown-txt
APPEARANCES (CONTINUED) :
ALSO PRESENT: MR. DAVID V I G I L A N T E

(via t e l ephone)
O F F I C I A L COURT REPORTER: MS. STEPH-ANIE KAY .CARLISLE

U. S. D i s t r i c t C o u r t h - o u s e
515 R u s k
s u i t e 8016
H o u s t o n , T e x a s 77002
713.250.5157
Page 2
c o u r t phone conference v Brown-txt
1 P R O C E E D I N G S
3 ( ~ nchambers.)
4 THE COURT: s t a t e your appearances, please.
03:58:00~~5 MS. HAMILTON: Nancy Hamilton o f lackson walker
on
7 MR. VIGILANTE: On t h e phone i s David v i g i l a n t e ,
9 MR. WYATT: ~ n d ,your Honor, my name i s K e i t h
Wyatt.
'I represent FEMA.
11 THE COURT: welcome t o each o f you. T e l l me
what
t h e problem i s .
MS. HAMILTON: Your Honor, ~ u d g e ,you know, on
Saturday we had a hearing i n c o u r t a t 8:30. There was
representation by t h e Government t h a t they were n o t going
16 bar o r impede access f o r t h e media i n t o t h e recovery

efforts
17 o f the Hurricane ~ a t r i n adeceased vi-ctims. ' I got a call
today
18 from my c l i e n t , CNN, saying t h a t they had been barred
access
had
0 3 : 5 8 : 5 6 ~ 20
~ conversations w i t h t h e captain o f t h e 82nd Airborne who
said
21 t h a t he had no idea about t h i s order o r a c t u a l l y about t h e
23 THE COURT: Mr. Wyatt, can you speak t o t h a t ?

24 MR. WATT: well, I r e a l l y can't. at a
~ ' m
Page 3
03:59:12P~ 25 mediation. 1 w i l l have t o make some c a l l s . Ican t e l l
you i t
1 was t h e i n t e n t i o n o f General Honore' t o issue an order t o

2 ensure t h a t a l l t h e troops were aware of what t h e p o l i c y
was.
3 I d o n ' t know i f t h i s i n d i v i d u a l who counsel i s t a l k i n g
about
4 i s p a r t o f t h e A r m y o r e x a c t l y who he was o r what t h e
03:59:38pM 5 circumstanpes were.

6 MR. VIGILANTE: He i d e n t i f i e d h i m s e l f as t h e
captai n
7 o f t h e 82nd Airborne. hat should answer t h a t question.
8 spoke t o him personally. He had no knowledge o f any such
9 order. u n t i l he heard o f i t , they weren't going t o s t o p

doi ng
03:59:52PM 10 ,what they were doing. They pursued our crew - -
11 MR. W Y A ~ T : M r . v i g i l a n t e , l e t me i n t e r r u p t . DO

1 ine
04 :00 :~ O P M 1 5 THE COURT: That's f i n e . ~ e mte see i f I can do
it.
16 MR. VIGILANTE: ~ t ' seasier i f Ido i t from my

side.
17 MS. WALKER: oavid?
19 MS. WALKER: You said, though, t h a t you d i d have

Page 4
c o u r t phone conference v 6rown.txt
04:00:48PM 20 name'and t h a t i s Captain Tony -- i s i t a as sari"?

would
22 n o t g i v e any contact i n f o r m a t i o n o u t .
23 MR. WYATT: I ' m sorry. what was h i s f i r s t name?
24 MR. VIGILANTE: Tony.
04:Ol:OOPM 25 I s Dan on t h e l i n e ? Can I t r y and patch
Dan
1 Lothian i n one more time?

2 THE COURT: One more time. We can c a l l him
d i r e c t ly
3 ifyou want. You can t r y one more time. I t ' s not
essenti a1 .
4 MR. VIGILANTE: Well, I can speak f o r him. I
spoke
04:01:16PM 5 w i t h him when 1 was on t h e c a l l --
6 THE COURT: M r . Wyatt, 1 ' m s o r r y t h a t you're i n
7 mediation. ~ u y to u ' r e going t o have t o deputize somebody

back
a t your o f f i c e t o make t h e necessary phone c a l l s . I ' m not
happy about thii s development. We thought we had l a i d t h i s
r e s t on saturday. he Government had an o p p o r t u n i t y t o

present i t s case. I t waived n o t o n l y t h e p r e s e n t a t i o n o f
12 evidence b u t waived any o b j e c t i o n t o t h e coverage. ~ n d

I'm
n o t happy about one p o l i c y being announced i n c o u r t and
14 another being effectuated on t h e ground. Please t e l l
whomever
Page 5
Court phone conference v 6rown.txt
you speak w i t h t h a t i f t h i s continues, I mean, t h e r e w i l l
contempt c i t a t i o n s and t h e r e w i 11 be f i n e s issued.

17 MR. VIGILANTE: . Iwould add t h a t our r e p o r t e r
when
18 he presented t h e memo t o t h e c a p t a i n was accused o f i t
b e i ng
~ 1 9 forgery. And they made a w a l l o f people and humvees
around
t h e s u b j e c t t r y i n g t o f i l m and refused t o move. Even when
21 spoke t o t h e captain d i r e c t l y and advised him o f what

happened
i n c o u r t , he s t i l l refused t o do i X .
MR. WYATT: c o u l d you g i v e me t h e name o f t h e
reporter?
04:02:18PM 25 MR. VIGILANTE: The r e p o r t e r ' s name i s Dan
L o t h i an,
1 L-O-T-H-I-A-N.
2 THE COURT: ~ ' v eseen him on T.v.
3 MR. WYATT: 1 ' m sorry. L-O-C-H-I --
4 THE COURT: No. T-H. T-H, Tom. Tom, H.
04:02:30PM 5 MR. WYATT: I ' m sorry. The l i n e broke up.

6 THE COURT: L-O-T-H-I-A-N, ~othian.
7 MR. W A I T : okay. Thank you.
8 THE COURT: ~ u please
t communicate t o c a p t a i n
9 on ore' o r whomever t h a t t h i s i s a matter t h a t t h e c o u r t
takes
04:02:48P~ 10 very s e r i o u s l y . Id o n ' t l i k e t h e p r a c t i c e o f making
Page 6
representations i n c o u r t t h a t a r e n ' t f o l l o w e d through w i t h
t h e ground. ~ n idf Captain Honore' i s serious about t h e

i n t e n t o f t h e communication t h a t was read t o t h e c o u r t
saturday morning, he should by now, almost 60 hours l a t e r ,
04:03 :14PM 15 have had ample o p p o r t u n i t y t o n o t i f y everyone on t h e
ground as
t o what che p o l i c y i s .
MR. WYATT: Iunderstand, Your Honor. And I
t a l k w i t h them immediately.
MR. VIGILANTE: I s t h e r e anything Ican do f o r
Mr. ~ o t h i a nwho's, i n t h e f i e l d r i g h t now and continues t o
harassed t h i s afternoon by various people?

THE COURT: Well, y o u ' r e welcome t o g i v e him my
d i r e c t number a t t h e o f f i c e and my number a t home. And
i n t e r r u p t proceedings t o speak w i t h him o r w i t h whomever
responsible f o r t h e harassment.

THE COURT: MS. Hamilton --
MS. HAMILTON: Ihave those numbers.
MR. VIGILANTE: Great. Thank you, Your Honor.

MS. HAMILTON: hank you, Your Honor.
6 THE COURT: I s t h e r e anything e l s e b e f o r e we go
off
Page 7
Court phone conference v BrOWn.txt
7 the record?
8 MS. HAMILTON: I d o n ' t b e l i e v e so.
captain
12 THE COURT: hank you.
13 ( ~ r o c e e dngs
i concluded .)
Q * Q
14
the
best
Stephanie Kay car]; s l e , CSR, RPR 'Date

page 8
From:
Sent:
To:
Subject: CNN V. FEMA

Attachments: de Graff statement.PDF; Defendant Report to Court 9-15-05.pdf; Frago 35 0rder.PDF;
Honore staternent.PDF 6
de Graff Defendant Repott Frago 35 Honore
rtementPDF (18 KB: to Court 9-15 ... 0rder.PDF (54 KB) atement.PDF (52 Kf
Within the last hour I filed the attached
status report with the court. The attachments are 'in pdf format.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
Cable News Network LP, LLP, 5
and Michael Cary, 0
§
Plaintiffs, 3
§
VS. 4 Civil Action No. H-05-3 170
§
Michael D. Brown, in his capacity as 9
Under Secretary of Homeland Security 9
for Emergency Preparedness and Response, 9
and Director of the Federal Emergency 9
Management Agency, 9
9
Defendant.
Defendant's R e ~ o r to
t the Court
The defendant, Michael D. Brown, in his capacity as Under Secretary of Homeland Security
for Emergency Preparedness and Response, and Director of the Federal Emergency Management
Agency ("FEMA)', files this report in response to the telephone court hearing that occurred on
September 12,2005
1. FEMA files this report subject to any jurisdictional or venue arguments that may
exist. FEMA specifically reserves, and does not waive, any arguments that it possesses with respect
to contesting service, jurisdiction, or venue.
2. The plaintiffs, Cable News Network LP, LLLP, and Michael Cary ("CNN") filed
their Complaint on September 9, 2005, against FEMA claiming that FEMA has violated its First
Amendment rights. CNN also filed an application for temporary restraining order and appiication
'R David Paulison has been designated Acting Under Secretary of Homeland Security for Emergency
Preparedness and Response and head of the Federal Emergency Management Agency.
for injunction relief.
3. In accordance with Rule 12(a)(3)(a) of the Federal Rules of Civil Procedure, FEMA
'is not required to serve an answer or other responsive pleading to CNN's complaint until 60 days
after the U.S. Attorney's Office has been served. In addition, service upon FEMA is not complete
until the U.S. Attorney's Office, FEMA, and the Attorney General of the United States have been
served. Fed.R. Civ.P. 4fi).
4. At a hearing held on the evening of Friday, September 9,2005, the court granted a
temporary restraining order which remained in effect until the following morning on September 10,
2005, at 8:30 a.m., when the court-held another hearing. At the Saturday morning hearing, FEMA
presented a statement, dated that same day, from Cot. Christian E. de Graff, GS, 5-3, which stated
the following:
"This memorandum is to confirm that Joint Task Force-Katrina, commanded

by Lieutenant General Russel L. Honore, has no plans to bar, impede, or
prevent news media from their newsgathering and reporting activities in
conniction with the deceased ~ u r r i c a i eKatrina victim recovery efforts,
including access to the sites, photographing or reporting." See Defendant's
Exhibit 1.
It should be noted that FEMA has tasked the Department of Defense, and through it the US. Army,
to assist in this national tragedy.
5. The presentation of Col. Christian E. de Graff s statement to CNN resolved the
matter and caused the court to withdraw the temporary restraining order. See Docket Entry 6.
6. On September 12,2005, the court held a telephone conference call hearing to discuss
allegations made by CNN that one of its news crews had been barred from some of the recovery
efforts by the US. Army. The undersigned attorney promised to look into the matter.
7. It has been determined that a Captain in the U.S. Army did deny CNN access to a
recovery effort. He did so because he was unaware of Col. Christian E. de Graff s statement. The
US. Army has acted in good faith and done its best to communicate Col. Christian E. de Graff s
statement to all of the troops. Attached as Defendant's Exhibit 2 is a statement from General Russel
L. Honore, Commanding Officer, dated September 15,2005, which describes the efforts that he and
the U.S. Army have made to disseminate the policy to all of the troops. The U S . Army has acted
in good faith and reasonably in attempting to disseminate the media policy to all of its troops.
General Honore commands more than 20,000 soldiers, sailors, airmen, and marines under difficult
circumstances with problematic communications. It is not an easy situation and they have done the
best that they can to disseminate the media policy to all of the troops.
8. On September 11,2005, General Honore issued an order to the Command that says,
in part, the following:
"...All personnel assigned, attached or under the operational or tactical

control of the JTF-Katrina Commander, are prohibited from bamng,
impeding, or preventing civilian news media from their news gathering and
reporting activities. This includes not impeding civilian news media access
to public sites, photographing, or reporting; nor seizing and confiscating
media products or media equipment under any circumstances..." See
Defendant's Exhibit 3.
9. The U.S. Army has done its best to communicate the media policy to all of its troops
in a timely manner. It will continue to act in good faith and adhere to its media policy as articulated
to the Court on September 10,2005, and in this pleading.
Respectfully submitted,
Chuck Rosenberg
United States Attorney
By: /s/ Keith Edward Wyatt
Keith Edward Wyatt
Assistant United States Attorney
Texas Bar No. 22092900
P. 0. Box 61 129
Telephone: 7 13-567-9713
Fax: 713-718-3303
Attorney for Defendant, FEMA
CERTIFICATE OF SERVICE
This will certify that the attached pleading was served on September 15,2005, by regular
first class mail and fax on the following:
Charles Babcock
Jackson Walker L.L.P.
1401 McKinney Street, Suite 1900
Houston, Texas 770 10-4008
Fax: 7 13-752-4221
Attorney for Plaintiffs
/s/ Keith Edward Wyatt

Keith Edward Wyatt
EXHIBIT
HEADQUARTERS
JOINT TASK FORCE - KATRINA
4705 N WHEELER DRIVE
FOREST PARK G A 30297-5000
MEMORANDUM FOR RECORD
SUBJECT: Media Access
This memorandum is to confi.mthat Joint Task Force-ICatriae, commanded by Lieutenatrt

General Russel L. Honor&,has no plans to bar, impede, or prevent news media from their
newsgathering and reporting activities in connectionwith the deceased Hurricaae Ka- victim
recovery efforts, including access to the sites, photograpbg ?porting.
EXHIBIT
JOINT TASK FORCE KATRINA
4705 N WHEELER DRIVE
FOREST PARK 6 A 302974000
AFKA-CG September 15,2005
MEMORANDUM FOR Mr. Kelth Wyatt, Assistant US Attorney, Offtce of the US Attorney
for the Southern Dibtrld af Texas, 910 Travls, Sulte 1500, P.O. Box 61129, Houston, TX
77208
-
SUBJECT; Order Issuedto Jolnt Task Force KATRlNA PermittingPhotography of
Remains of Amerlcan Vldims of Hurricane Katrlna
1. I am Lieutenant General Russel I.. Honod, and am Commander ofJolnt Task Force -
KATRINA (JTF-K]- Icommand the more than 20,000 Soldiers, Sailors, Alrmen, and
Matines who are provkflng Department of Defense support to US Government agency
efforts to save llves and provlde humanltadan relief in the Gulf Coast states In the wake
of Hurricane Katrlna.
2. On September 10,2005,l authorfied my operations officer, Colonel Chrlstlan E. de

Graff, to submit a statement to you that wrifii thrt we had no #plansto bar, impede. or
prevent news media from thelr newsgathedng and re~ortlng actlvlttes in connectionwith
the deceased Hurricane Katrina vfctim rocwary efforts, lndudlng access to the sltes.
photographing or reporting," We prPvlded this statement In order to assure the Federal
Dlstrlct Court Judge that we had no Intent to inferferewlth journdsts attemptingto
photographthe remains of Americans kllled Inthis traglc dlsaster.
3. 1learned of the results of the September 00,2005 hearing on the morning of

September 11,2005. 1 directad my #to Issue an order to tho commandto provide
guidance on thls Issue. After they prepawd a proposedorder, Iappmved a final version
that would clearly prohlbft any Department of Defense personnel fram intarfaringwlth
journalists photographing dead Americans.
4. On September 11,2005, shortly after 9O : O PM Central T h e , thls order was issued

officially as JTFX Fragmentary0rd.r (FRAQO) Number 36. You may note that the oader
reflect. a date and time that Is fn Greenwich Mean Time, thus it bears the date 12
September and the time of I1mlnutes past mldnight A copy of thls order Is aftached as
an enclosure.
5. On September 12.2005. the Commander of the 82" Airborne DMsion, Major General
Wlllam Caidwell Issued his own order at approximately 5O : O PM Central The. As I
u n d e d n d the sequence of events, the lncldent wlth the GUN camera crew took place on
September 12 and the officer Involvedwas a Captaln who would have been under the
direct command ofatr officer fwo levels below Major Cbneral Catdwell.
6. The commanden In thk JlF are or have d l c s m l n ~ e this
d poky t o th.tmops.
Cmrnunicatlons In the New Orleans, Loulslana area Is difficult, the pace of operations
by JTF-K personnel engaged In bringing mildto the people of tha -Ion to hectic, and
AFKA-CG
-
SUSJECT: Order Issued to Jolnt Task F m KATRINA Pennffb'ng Photography of
Remains of American VictSnu of Hurricane KatrIna
thus them are unavoidable delays In dissemlndflng#ese and other instructions that are
critlcai to savlng llves and bringlng relief to the people of the affected region.
Unfortunately, them was a delay In all 20,000 of our personnel belng Informed of my
policy. I d o bellevethat we are dolng our best to Inform ell personnel that journalists
should be free to photograph what they wish to publlclze.
Ueutermnt General, US Amy

Commanding Officer
-----Original Message-----
From: DOD, ARMY, ORGANIZATIONS, HQ FIRST ARMY, 1A G3(UC), 1A G3 EOC
OFF (UC)
[mailto:amhsdba@info-amhscentral.com]
Sent: Sunday, September 11, 2005 8:23 PM
To: Account Group
Subject: FRAGO 35 TO JTF-KATRINA (JTF-K) EXORD RESTRICTIONS ON MEDIA
ACCESS
AND PERSONAL PHOTOGRAPHY
Classification: UNCLASSIFIED FOR OFFICIAL USE ONLY
Precedence: P
DTG: 9/12/2005 00:11:00
From: DOD, ARMY, ORGANIZATIONS, HQ FIRST ARMY, 1A G3 (UC), 1A G3 EOC

OFF(UC)
Subject: FRAGO 35 TO JTF-KATRINA (JTF-K) EXORD RESTRICTIONS ON MEDIA
ACCESS AND PERSONAL PHOTOGRAPHY
UNCLASSIFIED//FOR OFFICIAL USE ONLY.

OPER/HURRICANE KATRINA//
MSGID/ORDER/CDRJTFKATRINA AFKA-OPC/05-225//
SUBJECT: FRAGO 35 TO JTF-KATRINA (JTF-K) EXORD.//
REF/A/JTF-CM (EAST)SOP/MAR 04//
REF/B/PLANORD FOR 2005 SEVERE WEATHER SUPPORT/FORSCOM/DTG:
012400ZAUG05//
REF/C/EXORD/CJCS/DTG: 192300ZAUG05//
REF/D/FIRST ARMY PLANORD KATRINA DTG: 251200RAUG05//
REF/E/NORTHCOM EXORD KATRINA DTG: 261930ZAUG05//
REF/F/FORSCOM EXORD KATRINA DTG: 270630ZAUG05//
REF/G/lA TF-CM-EAST EXORD/HURRICANE KATRINA DTG: 300101ZAUG05//
REF/H/JTF-KATRINA EXORD DTG: 012319ZSEP05//
REF/I/FORSCOM EXORD DTG: 031729Z~EP05//
ORDTYP/FRAGO/CDRJTFKATRINA//
REF/J/EXAGO 14 TO JTF-K EXORD DTG: 071915ZSEP05
REF/K/FRAGO 15 TO JTF-K EXORD DTG: 072227ZSEP05
REF/L/FRAGO 16 TO JTF-K EXORD DTG: 071054ZSEP05
REF/M/FRAGO 17 TO JTF-K EXORD DTG: 071532ZSEP06
REF/N/ERAGO 18 TO JTF-K EXORD DTG: 072128ZSEP05
REF/O/FRAGO 19 TO JTF-K EXORD DTG: TBP
REF/P/FRAGO 20 TO JTF-K EXORD DTG: 090057ZSEP05
REF/Q/FRAGO 21 TO JTF-K EXORD DTG: 080347ZSEP05
REF/R/FRAGO 22 TO JTF-K EXORD DTG: TBP//
REF/S/ERAGO 23 TO JTF-K EXORD DTG: 090048ZSEP05//
REF/T/FRAGO 24 TO JTF-K EXORD DTG: 090427ZSEP05//
REF/U/FRAGO 25 TO JTF-K EXORD DTG: 090430ZSEP05//
REF/V/FRAGO 26 TO JTF-K EXORD DTG: 091031ZSEP05//
REF/W/FRAGO 27 TO JTF-K EXORD DTG: 091536SEP052
REF/X/FRAGO 28 TO JTF-K EXORD DTG: 100633ZSEP05//
REF/Z/FRAGO 29 TO JTF-K EXORD DTG: 100637ZSEP05//
REF/AA/ERAGO 30 TO JTF-K EXORD DTG: 101547ZSEP05//
REF/BB/FRAGO 31 TO JTF-K EXORD DTG: TBP//
REF/CC/FRAGO 32 TO JTF-K EXORD DTG: TBP//
REF/DD/FRAGO 33 TO JTF-K EXORD DTG: TBP//
REF/EE/E'T(AGO 34 TO JTF-K EXORD DTG: TBP//
NARR/THIS FRAGO ESTABLISHES RESTRICTIONS ON MEDIA ACCESS IN THE JOA AND
PROVIDES GUIDANCE FOR PERSONAL PHOTOGRAPHY BY DOD PERSONNEL IN THE
JOA./ /
TIMEZONE/Z//
GENTEXT/SITUATION/
1. (U) SITUATION. NO CHANGE./
2. (U) MISSION. NO CHANGE. /
3. (u) EXECUTION. /
3.A. (U)- 3.C. (U) NO CHANGE.//
3.D (U) COORDINATING INSTRUCTIONS./ /
3.D.1-19 (U) NO CHANGE
3.D.20. (U) THERE WILL BE NO EMBEDDED MEDIA IN THE JOA FOR RECOVERY
OPERATIONS. ALSO WITH RESPECT TO RECOVERY OPERATIONS NO MEMBER OF THE
CIVILIAN NEWS MEDIA WILL ACCOMPANY ANY PERSONNEL ASSIGNED, ATTACHED, OR
UNDER THE OPERATIONAL OR TACTICAL CONTROL OF THE JTF-KATRINA COMMANDER
NOR
WILL ANY MEMBER OF THE CIVILIAN NEWS MEDIA BE ALLOWED ACCESS TO TITLE 10
MILITARY PLATFORMS WITHOUT AUTHORIZATION FROM THE JTF-KATRINA COMMANDER.
ALL PERSONNEL ASSIGNED, ATTACHED OR UNDER THE OPERATIONAL OR TACTICAL
CONTROL OF THE JTF-KATRINA COMMANDER, ARE PROHIBITED FROM BARRING,
IMPEDING, OR PREVENTING CIVILIAN NEWS MEDIA FROM THEIR NEWS GATHERING
AND
REPORTING ACTIVITIES. THIS INCLUDES NOT IMPEDING CIVILIAN NEWS MEDIA
ACCESS TO PUBLIC SITES, PHOTOGRAPHING, OR REPORTING; NOR SEIZING AND
.CONFISCATING MEDIA PRODU-mS OR MEDIA EQUIPMENT UNDER ANY CIRCUMSTANCES:
NO MILITARY PERSONNEL SUBJECT TO THE ORDERS OF THE JTF-KATRINA COMMANDER
MAY TAKE PERSONAL PHOTOGRAPHS OF HUMAN REMAINS. AT ALL TIMES, SUCH
PERSONNEL WILL TREAT HUMAN REMAINS WITH DIGNITY, HONOR, AND RESPECT.//
4. (U) ADMINISTRATION AND LOGISTICS. NO CHANGE./
5 . (U) COMMAND AND CONTROL. NO CHANGE./
OFFICIAL:/
DE GRAFF
COL
DCS, 6-3/5/7
JTF-KATRINA FORWARD, CAMP SHELBY
DISTRIBUTION:
TO :
ARFOR-K
JFMCC
MARFOR-K
JFACC
JTF-K (IWO JIMA)
JTF-K {FWD) (CAMP SHELBY)
JTF-K (WEST) (BATON ROUGE)
JTF-K (MAIN)
JTF-CS JPAC
TF AVIATION (4AVN / 1ST CAV)
13TH COSCOM (-)
40TH PAD
SJFHQ-N-K
INFO:
USNORTHCOM 53
USFORSCOM 53
FIFTH U.S. ARMY G-3
FORSCOM FT MCPHERSON CAT
GARRISON CDR, FT POLK, LA
JTF-CS -53
JTF-NCR -53
JFCOM 53/ 5
JDOMS J3/5 //
DA(G3 OPNS)
COMNAVRESFOR -0PS
AFNSEP -0PS
MARFORNORTH OPS
COMSECONDFLT
USCG LANT AREA
USCG 8TH DISTRICT
lAF/J3/JS/A3/A5
TRANSCOM 53/55
NGB-JOC
FLEET FORCES COMMAND
C O W F O R L A N T , NORFOLK, VA
XVIII ABN CORPS G3, FT BRAGG
111 CORPS G3, FT HOOD
DCO, LOUISIANA
DCO, MISSISSIPPI
SEPLO TEAM, LOUISIANA
SEPLO TEAM, MISSISSIPPI
REPLO TEAM IV
REPLO TEAM VI
SRAAG LOU1SIANA
SRAAG MISSISSIPPI
TAG, LOUISIANA
TAG, MISSISSIPPI
Details
--
TO Addressees
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CC/Info Addressees
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(OR6) /C=US/ADMD=DMS/O=GA2/OU=HHQL7/0U=lA JTF-CME
(DN6) /C=US/O=U.S.
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(OR9) /C=US/ADMD=DMS/O=GA2/0U=HHQL7/0U=G3 WATCH OFFICER
(DN9) /C=US/O=U.S.
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(OR20) /C=US/ADMD'-DMS/O=VAl/OU=ANRWl/OU=ALAGUC
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AL/OU=AL AG ( UC)
(OR21) /C=US/ADMD=DMS/O=VAl/OU=ANRWl/Ou=MSAGUC
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(OR22) /C=US/ADMD=DMS/O=IL~/OU=VEJX~S/OU=USTRANSCOMJ~
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(OR23) /C=US/ADMD=DMS/PRMD=GOV+DMS+DS/0=4INF151/OU=4INFDIVTMSlADMINMC
(DN23) /C=US/O=U.S. GOVERNMENT/OU=WD/OU=ARMY/OU=DEPLOYED/OU=4 INF
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Originator-OR: /C=US/ADMD=DMS/O=GA~/OU=HHQL~/~U=~A
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Originator-DN: /C=US/O=U.S.
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GA/OU=HQ
FIRST ARMY/OU=lA G3(UC)/CN=lA G3 EOC OFF(UC)
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--
From: Trissell. David
Sent:
To:
Subject: ' Fw: Court Hearing and Statement
Sent: Tue Sep 13 21:41:46 2005

Tjlb)-rrt: RE: Court Hearing and Statement . .
. .
%
Newspaper article, 'fyi . . .
Stuart
As bodles recovered, reporters are told 'no photos, no stories' </cgi-binjarticle-cgi?

'-/ - / ' " ? ; / ? 4 / l ~ / M N G ~ H Z M Q HDTL>
G~.
- C e c ~ l l a~ 1 . Vsga, Chronicle Staff Writer < mallto:cvega@sfchronicle.com> Tuesday,
September 13, 2005 New Orleans -- A long caravan of whlte vans led by an Army humvee
rolled Monday through New Orleans' Bywater district, a poor, mostly black neighborhood,
northeast of the French Quarter.
Recovery team members wearing white protective suits and black boots stopped at houses
with spray palnted markmgs on the doors designating there were dead bodles inslde.
Outside one house on Kentucky Street, a member of the Army 82nd Alrborne Dlvlslon summoned
a reporter and ohotographer standing nearby and told them that if they took pictures or
1: I s r : j 3 ~ u the r body recovery process, he would take away thelr press credentials
and blck them out oi the state.
"No photos. NO stories," sald the man, wearlng camouflage fatigues and a red beret.
On Saturday, after belng challenged in court by CNN, the Bush administration agreed not to
prevent the news medla from following the effort to recover the bodies of Hurricane
Katrlna vlctlms.
But on Monday, In the Bywater district, that assurance wasn't belng followed. The 82nd
Alrborne soldler told reporters the Army had a policy that r e q e r e s medla to be 300 meters
- - vlcre than three football fields in length -- away from the s e n e of body recoveries in
4 11 ( . Lean,. - € rg,3ctr'l.ers rote storles or took pictures of body recoveries, they would be
reported and face consequences, he sald, lncludmg a loss of access for up-close coverage
of certain military operations.
Dean Nugent, of the Louisiana State Coroner's Department, who accompanied the soldier,
added that lt wasn't safe to be in Bywater. "They'll kill you out here," he sald,
referr~ngto the few residents who have continued to defy mandatory evacuation orders and
remaln In thelr homes."
"The cockroaches come out at night," he said of the residents. "Thls 1s one of the worst
I 1 1 , - r 3 :,l,ntry Yoil should not be here. Especially you," he told a female reporter.
l i d c j t ~ ~ lwhd
, 1s d.llrmlit,acknowledged he wasn't personally famlllar wlth the poor, black
neighborhood, saying he only knew of ~t by reputation.
Later Monday, the recovery team collected a body from a green house on St. Anthony Street
in nearby Seventh Ward. The dead man, who was slipped Into a black body bag and carried
out to one of the whlte vans, had been lying alone on the living room floor for nearly two
weeks, neighbors said.
"I told them weeks ago he was in there," said Barry Dominguez, 39, who llves across the
street and has refused to leave the neighborhood he grew up in.
-7: I E ')~)iy team took away the St. Anthony Street body, two workers urlnated on the
slde of a nelghbcr's house.
The CNN suit was ln response to comments Frlday at a news conference in which officials
from the Federal Emergency Management Agency sald members of the news media would not be
1
- -
allowed to witness the recovery of hurricane victims' bodies.
Terry Ebbert, New Orleans' homeland security director, had said Friday that the recovery
effort would be done with dignity, "meaning that there would be no press allowed-." Army
Lt. Gen. Russell Honore later said there would be zero access to the recovery operation. :Y
During a hearing Saturday morning in U . S . District Court in Houston, a lawyer who
-3nrfrented the government said FEMA had revised its previous plans to limit coverage.
,,,I, ,merit ageqcles may still refuse requests from members of the media to ride along, or
be "embedded," on recovery boats as crews gather the dead. "But, to the extent the press
can go out to the locations, they're free to do that," sald Keith Wyatt, an assistant U.S.
attorney, according to a transcript of the hearing. "They're free to take whatever
pictures they can take."
Army Lt. Col. Richard Steele said the government's position as explained in court Saturday
didn't represent a change in policy. Reporters can watch recovery efforts they corn: upon,
but they won't be embedded with search teams. P
, , , t - not 20117 to bar, impede or prevent" the media from telling the story, he said.
I'7-,
"vle'le just not golng to give the media a ride."

Chronicle news services contributed to this report. E-mail Cecilia Vega at
cvega@sfchronicle.com < mailto:cvega@sfchronicle.com>.
Joint Task Force--K&rina (Main)
-----Original Message---
Sent: Tuesdav. Sewtenbe! 13. 2005 8:1 7 PM
a-
Subject: RE: Court Hearing and Statement

&
-%
To my knowledge there was no hearing held today. I am sure thekwould have called me. I am
not aware of any_.s?ch hearing. Things were eerily quiet today.
S e n t : Tuesdav, Sc-r,l.t:n~ber13, 2005 6:21 PM

2
our press affairs person asked if I was aware of a conf. today (5 pm EST) w/ the press ( ? I
where the Jdg. contemplated holding us in contempt? Have no clue on this other than above
- < < l . jqore? 1 ~ 1 . ~ 3 '
This communication, along with any attachments, is covered by federal and state law
governing electronic communications and may contain confidential and legally privileged
information. If the reader of this message is not the intended recipient, you are hereby
notified that any dissemination, distribution, use or copying of this message is strictly
prohibited. If you have received this in error, please reply immediately to the sender
1 2 4 clclete this message. Thank you.
2
From:
Sent:
To: 'Trissell, Davi -
Tuesday, September 13,2005 9:42 PM
S.!! j3cf. R E CO~ r Hearing

t
Newspaper article, fyi...
Stuart
and Statement
- -
2-
--'"
a
Page 1 of 7
..
. ..
i s bodics ~ecovel-ed,repo~lersare told 'no photos, no stories' <lcgi-binlarticle.cgi?file=/cla/2OO5/O9l13lMNG3HEMQHGl.DTL>

- -
Cecilia M. Vega, Chronicle-Staff Writer <mailto:cvee;a@sfchronicle.com>
hesday, September 13,2005
Jew Orleans -- A long caravan ofwhite vans led by an Army humvee rolled Monday through New Orleans' Bywater district, a poor, mostly black
eighborhood, northeast of the French Quarter.
.ecovery team members wearing white protective suits and black boots stopped at houses with spray painted markings on the doors designating
lere were dead bodies inside.
htside one horne on Kentucky Street, a member of tlie Army 82nd Airborne Division summoned a reporter and photographer standing nearby
ld ~ o li~cin ~ u ilia! I I' ,hey ~ o o kpictures or wrote a story about the body recovery process, he would take away their press credentials and kick them
ut of the state.
\lo photos. No stories," said the man, wearing camouflage fatigues and a red beret.
n Saturday, after being challenged in court by CNN, the Bush administration agreed not to prevent the news media from following the effort to
cover the bodies of Hurricane Katrina victims.
ut on Monday, in the Bywater district, that assurance wasn't being followed. The 82nd Airborne soldier told reporters the Army had a policy that
quires media to be 300 meters -- more than three football fields in length -- away from the scene of body recoveries in New ~rleans:'~f reporters
rote stories or took pictures of body recoveries, they would be reported and face consequences, he said, including a loss of access for up-close
IVC~
:,I CI ;.I!, I ~ i ~ : aop~*rafions.
i)
:an Nugent, oTthe Louisiana Slate Coroner's Department, who accompanied the soldier, added that it wasn't safe to be in Bywater. "They'll kill
u out here," he said, referring to the few residents who have continued to defy mandatory evacuation orders and remain in their homes."
'he cockroaches come out at night," he said of the residents. "This is one of the worst places in the country. You should not be here. Especially
u," he told a female reporter.
gent, who is white, acknowledged he wasn't personally familiar with the poor, black neighborhood, saying he only knew of it by reputation.
ter Monday, the recovery team collected a body from a green house on St. Anthony Street in nearby Seventh Ward The dead man, who was
3ped into a black body bag and carried out to one of the white vans, had been lying alone on the living room floor for nearly two weeks,
c'II-r , s t d
old tlmn weeks ago he was in there," said Barry Dominguez, 39, who lives across the street an&& refused to leave the neighborhood he grew
in. .L
er the recovery team took aw_ay the St. Anthony Street body, two workers urinated on the side of a neighbor's house.
-, CNN suit was in response to comments Friday at a news conference in which officials from the Federal Emergency Management Agency said
mbers of the news media would not be allowed to witness the recovery of hurricane victims' bodies.
ry Ebbert, New Orleans' homeland security director, had said Friday that the recovery effort would be done with dignity, "meaning that there
uld be no press allowed." A m y Lt. Gen. Russell Honore later said there would be zero access to the recovery operation.
-In" hearinc Satrlrday ~nomingin U.S. District Court in Houston, a lawyer who represented the government said FEMA had revised its
I Sl i l l l t co\icr,\ge.
V I O L I , [ I ~ ~ I10
lenunent agencres may still refuse requests from members of the media to r ~ d ealong, or be "embedded," on recovery boats as crews gather the
d. "But, to the extent the press can go out to the locations, they're free to do that," said Keith Wyatt, an assistant U.S. attorney, according to a
script of the hearing. "They're free to take whatever pictures they can take."
ly Lt. Col. Richard Steele said the government's position as explained in court Saturday didn't represent a change in policy. Reporters can
:h recovery efforts they come upon, but they won't be embedded with search teams.
:'re not going to bar, impede or prevent" the media from telling the story, he said. "We're just not going to give the media a ride."
micle news services contributed to this report. E-mail Cecilia Vega at c~ega@sfcChhyoiclecIom <ma'lto:_cve~a@_sfchronicIe,co_m>
Desk
t Task Force--Katrina (Main)
52111. Monday, September 12,2005 2:14 PM
To:
Subject:
t 6
FW: Hourly Transcript - 91910k - CNN V. BROWN
Attachments: 090905CNN v. Brown.txt
P
*- :
-- -
090905CNN
v.8rown.M (16 KB)
T r a n s c r i p t of o r i g . TRO e n t e r e d
'RO Page I of 2
Jress clip
"his communication, along with any attachments, is covered by federal and state law governing electronzc communlcatlons and may conta~n
onfidential and legally privileged ~nformation. Ifthe reader of this message is not the intended recipient, you are hereby not@edthat any
lissemination, d~stribut~on,use or copying of this message is strictly prohibited lfyou have received this in error, please reply immediately to the
ender and delete this message. Thank you.
- - - - A
bnt: Friday, Sepk

ro: Trissell, David: /fW
:c: Fried, Jordan; Pllgrlm, Lynda; 1A JOC Staff Judge Advocate
iubject: RE: TRO
dews story from my PAO. Still working...
1ttp:/lnews.vahoo.com1news?tmpl=sto~&u=/af/2005091
Oits-alt afplusweathermedia 050910005412
;Jc. ';sk
ITF-Katrma (First A m y )
-- -
--
-*Me
Vom: Trissell, David [mailto: 4

r~:
..
m
a '-
- &
"
-1
d
'
'.)
:c: Fried, Jordan; Pdgrim, Lynda

Subject: TRO
. -
1
lab,, /, T ;:,{I
'EMA General Counsel
:<090905CNN v.Brown.txt>>
"his communication, along with any attachments, is covered by federal and stare law governing electronic communications and may conlain
:o;$'.' .;;:id
: / i i ! I I c g d I v 17rivileged infornzation. Ifthe reader of this message is not the intended recipient, you are hereby notified that any
iissemi17atioi1,distribution, zrse or copying ofthis message is strictly prohibited lfyou have received this in error, please reply immediately to the
:ender and delete this message. Thank you.
'RO Page 2 of 2
From:
Sent:
To:
Subject:
Attachments:
-
Trissell, David
Monday, September 12,2005 10:04 AM
FW:Hourly Transcript - 9/9/05 - CNN V. BROWN

090905CNN v.Brown.txt
2
090905CNN
v.Brown.txt (16 KB)
Ct, transcript re TRO being entered.
This communication, along with any attachments, is covered by federarand state law
governing electronjc communications and may contain confidential and legally privileged
information. If the reader of this message is not the intended recipient, you are hereby
notified that any dissemination, distribution, use or copying o-f this message is strictly
prohibited. If you have received this in error, please reply--immediatelyto the sender
and delete this message. Thank you.
----- Original Message-----

From: Bees, Margaret
To: Fried, Jordan; Trissell, David
Subject: FW: Hourly Transcript - 9/9/05 - CNN V. BROWN
----- Orlsinal Messaqe-----

From: t
2005 8:16 PM
9/9/05-CNNV.BROWN 2
see attached
. . . <rigl,lal !Yessage-----
From: @zL13$~ 6 -V
-2%
Sent: Friday, September 09, 2005 7 : 1 4 PM

To: r a
SJ
-
-
Hello Margaret,
- h = \ e attsched c copy of the transcript from the hearing before Judge Ellison earlier
this evening.
0
6
Assistant U.S. Attorney
Chief, Civil Division
I 1 , 7 -t?ri?yfs Office
lj1O iravls, Sulte 1500
P . O . Box 61129
Houston Texas 77208
Phone:
Fax: 713-718-3303
E-mail: A
- - - - oil~i.lai&ssaqe-----
From: 4,
[mailto:;
t
b
G6 - A
Sent: Friday, September 09, 2005 7 : 0 8 PM I
To :
6
-
Subject: Hourly Transcript - 9/9/05 - CNN V. BROWN
> 3 qz r (. f i n d attached the transcript you requested in the above matter.

.
' i ~ ~ d ~ i i . ~
6
Z
Court Reporter
From:
Sent:
To:
Sdujecr:
- Trissell, David
Saturday, September 10, 2005 9 5 0 AM
Re: TRO
Great job. Thks again for your work on this. Where are you usually in dhs?
....
Sent: Sat Sep 10 09:13:31 2005 bR

Subject: Re: TRO
. .
-
Success--AUSA has m-emo
Stuart
..........................
.;;:IIL ..~o:ii :ny i3lack9erry Wireless Handheld
-----Original Message-----
To: 'Baker, Stuart <OGC>' 4 -
CC: Fried, Jordan - Pilgrim, Lynda

1 C r i Sep 09 21:00:54 2005
Stuart - here are our contacts, and order is attached - thanks for helping us run this
down -
David A. Trissell
<<090905CNN v.Brown.txt>>
This communication, along with any attachments, is covered by;(ederai and state law
governing electronic communications and may contain confidentis? and legally privileged
information. 1f"Yhe reader of this message is not the intended recipient, you are hereby
notified that any dissemination, distribution, use or copying of this message is strictly
prohibited. If you have received this in error, please reply immediately to the sender
a n d delete this message. Thank you.
-
--i
'-om- Trissell, David

Sent: Friday, September 09. 2005 11.06 PM
.
To:
Subject: -- 919105 - CNN V. B
Attachments: 090905CNN v.Brown.txt
F * *
-
z.4 2
09090SCNN
v.Brown.txt (16 KB)
here's the c t . order
+
T h i s comrnunication, a l o n g w i t h a n y a t t a c h m e n t s , i s c o v e r e d b y f e d e r a l a n d s t a t e l a w
g o v e r n i n g e 1 e c t r o n i . e c o m m u n i c a t i o n s a n d may c o n t a i n c o n f i d e n t i a l a n d l e g a l l y p r i v i l e g e d
L L I l t ~ 3 1 . I f t h e r e a d e r o f t h i s message i s n o t t h e i n t e n d e d - r e c i p i e n t , you a r e h e r e b y
n o t i l l e d t h a t a n y d i s s e m i n a t i o n , d i s t r i b u t i o n , use o r copying o f t h i s message i s s t r i c t l y
prohibited. I f you h a v e r e c e i v e d t h i s i n e r r o r , p l e a s e r e p l y i m m e d i a t e l y t o t h e s e n d e r
a n d d e l e t e t h i s message. Thank you.
-
From:
Sent:
To:
Subject:
0
Trissell, David
Fridav, September 09, 2005 10:22 PM
tro
Order appears first; press article is second

HOUSTON DIVISION
CABLE NEWS NETWORK, LP, . Civil Action. -

. -
LLP . NO.H-05-3170
- .
AND
MICHAEL CARY
MICHAEL D. BROWN, in his

capacity as Under
Secretary of Homeland .
Security for Emergency .
10 Preparedness and
Response, and Director . 5100 P.M.
,I I of the FEDERAL EMERGENCY September 9,2005
MANAGEMENTAGENCY HOUSTON, TEXAS
12
TRANSCRIPT of HEARING PROCEEDINGS
13 BEFORE THE HONORABLE KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
14
APPEARANCES:
I
I ,Ir
16 AND
MICHAEL W Y : MR. CHARLES L. BABCOCK
17 MS. NANCY W. HAMILTON
Jackson Walker, LLP
18 1401 McKinney, Suite 1900
..
19
20 FOR MICHAEL D. BROWN: MR. KEITH EDWARD WYATT

Assistant United States
Attorney
21 910 Travis, Suite 1500
22
3 OFFICIAL COURT REPORTER: MS. STEPHANIE KAY CARLISLE

U.S. District Courthouse
4 515 Rusk
Suite 8016
713.250.5157
1 PROCEEDINGS
2 (September 9, 2005)
3. THE COURT: Please be seated. Good afternoon and
4 welcome.
5 MR. BABCOCK: Thank you, Your ~ o n 6 r .
6 THE COURT: Mr. Babcock.
7 We are here on H-05-3170, Cable News

Network .
. .-
8 and Michael C3ry versus Michael D. Brown.

. .
9 I will take appearances of counsel.
10 MR. BABCOCK: Thank you, Your Honor
11 Charles Babcock and Nancy Hamilton, both of

'3
12 Jackson Walker firm, representing the plaintiffs.
13 THE COURT: Welcome.
14 M& BABCOCK: Thank you.
f5.11 '14PV 115 THE COURT: And tell me what efforts have been
made
16 to get ahold of somebody representing the defendant.
17 MR. BABCOCK: Yes, Your Honor. Mr. Scott who is

a
18 colleague of mine at our office arranged for the personal

---
19 service of the papers at approximately 4:30 this
afternoon.
05:41:40PM 20 ~ a y b e
a few minutes on either side of that. Then he
21 personally spoke with a litigation paralegal specialist in

' the
22 United States Attorney's Office advising them that there

was
- 23 an immediate hearing. That was probably about 25, 30
minutes
24 ago -- approximately 25, 30 minutes ago. And they
05:41:58PM 25 acknowledged that and said that they would see what they
could
4
2
1 do.
2 THE COURT: How do you suggest we proceed? --

..
-.
3 MR. BABCOCK: Your Honor, there are two avenues
of
4 approach. We certainly want to get before the Court our

case
05:42:18PM 5 today. We're not necessarily -- in fact, we'd prefer it

if
6 the Government was here. They're two ways of proceeding:
7 One, my experience has been when a Federal Judge tells the
8 U.S. Attorney that they need to see them --

. .
9 THE CWRT: I'm happy to place a phone call. I

just
(3.42 34PW 10 don't know that I'm going to get anybody. I'm happy to
call
11 them.
12 MR. BABCOCK: They do know about this. So, in

the
13 absence of that, I would ask that you hear us out. You do
14 have authority under the Rules to enter an ex parte --
05:42:48PM 15 THE COURT: I know I do. I just don't like ex
16 parte --
17 THE CASE MANAGER: Your Honor, I tr~ed

,) , , k c t,:
18 the U.S. Attorney's Office; and I get the recording that

their
19 office hoursare from 8:00 to 5:OO. And since I don't

know
05'13 WPM 20 exa-ctly what U.S. Attorney is assigned to this case as of

now,
21 1 don't have a name where I can try to page this person or
22 have this person hunted down by contacting one of the

other
23 U.S. attorneys.
24 THE COURT: Okay. Well, Ms. Carlisle, can you

stay
05:43: 1~ P 25
M with us for a while?
1 THE REPORTER: Yes, sir.
2 THE COURT: Let me go back to my chambers. Let

me
3 make a few more phone calls. If nothing else -- I

understand
-. --
4 the concern isJhe coverage of removal of dead bodies. Is
05:43:30PM 5 that ongoing or is that going to start sometime in the

future?
6 MR. BABCOCK: We understand that it's going to

start
7 ~nirnediately.And the FEMA representatives apparently

spoke --
8 one of them spoke late morning and the other one spoke
9 definitively early this afternoon.
05:43.42PM 10 THE COURT: Let me go back and see if I can

I wse
11 some response. We may need do an ex parte order tonight
and
12 come back tomorrow morning. I'm sorry to make people work
13 weekends, but we may need to do that. --4

b*
14 MRTiABCOCK: We would be delighted to do it,

Your
05:44:00PM 15 Honor.
16 THE COURT: I doubt anybody will be delighted,

but
17 we'll do ~ t .
18 MR. BABCOCK: Well, maybe not delighted.
19 THE COURT: We'll do it. All right.
05:44:04PM 20 (Short recess taken.)
21 Tt-IE COURT: Mr. Keith Wyatt who heads the civil
22 division of the U.S. Attorney's Office is here at my

request.
4
23 1 did telephone Mr. Wyatt -- telephoned actually Don -
24 DeGabrielle and received Mr. Wyatt's response. And I

think 1 . .
06:02:54PNl 25 tried to describe very summarily what this case was about,
but
1 otherwise we've had no communications. Is that fair?
2 MR. WYATT: That's correct, Your Honor.
3 THE COURT: To reiterate, CNN is asking to

zrljoi,l
4 Michael Brown as Under Secretary of Homeland Security and
06:03:12PM 5 ~irectorof FEMA from prohibiting coverage of the removal

of t
-. --
6 dead bodies as a consequence of Hurricane Katrina.
7 Now, if what I heard on NPR is correct this
8 afternoon, Mr. Brown is no longer head of FEMA. I don't

know
9 when that's effective. But he's been relieved or

something.
06:03:32PM 10 That doesn't change anything.
11 MR. BABCOCK: He's still Director; but he's not

on
12 site anymore, he's back in Washington.
13 THE COURT: That doesn't change anything
14 MR. BABCOCK: The Coast Guard guy is doing
06:03:42PM 15 something.
16 THECOURT: Mr. Wyatt, I know it's not fair for

YOU
17 to resporuj on the merits. The issue is: What would you

like
18 me to do? I can reconvene this hearing until tomorrow
19 morning, if that's what makes sense.
06:03:56PM 20 MR. WYATT: Your Honor, I would ask for a short
21 extenson or continuance of the hearing. The concern I

have
22 is it's now 6:00 o'clock.
23 THE COURT: I have the same concerns you have.
24 MR. WYATT: I'm not sure. 11' 1do my best. But

5
25 what I need to do IS contact the client agency, FEMA. In
b 3 . 2 1)813.2/1
--
all
1 honesty, I'm not sure I can do that tonight.
2 THE COURT: Yeah. Well, that's fine. I do
3 understand that. The only thing I can do, though, is to

-- is
4 to accept the facts as well pleaded. And I do need to

enjoin
06:04:36PM 5 until our continued hearing any prohibition of press

coverage.
6 Based on the facts as pleaded, that's all I have, it looks
7 iike a prior restraint to me. I cannot authorize that.

Nor --
8 can 1 be passive in the face of it's assertion.
9 Let me do this: We'll reconvene tomorrow

at
3; ,C 2Ul4V 10 8:30 I'm going -- I'm not going to say it on the record.
I
11 will give you both my home phone number. You can call me
if
12 things change. And if you want to reconvene tonight, I

can do
13 that
14 It may need -- we won't have a court

reporter
06:05:20PM 15 tonight.
16 Ms. Carlisle, I don't know about your
17 availability%morrow morning.
18 THE REPORTER: I'm available, Your Honor.
19 THE COURT: you're sure?
06:05:32PM 20 THE REPORTER: Yes, sir
21 THE COURT: You've earned an extra hundred years

in
22 heaven.
24 THE COURT: Let's just plan -- I will be here at

the
06:05:38PM 25 back entrance of the court where the judges park, and I'll
let
1 you in. Because, othewise, I'm not sure you will be able
to
2 yet in.
3 Can you get in tomorrow, Ms. Carlisle?
4 'THE REPORTER: Yes, sir.
06:05:50PM 5 THE COURT: Okay.
6 I'll meet you there. That's like at Smith

arid
7 Capital Street back there -- and make sure everybody can

get
8 in. -- --
9 ~ n Tm
d not going to require bond right
IIdW.
06:06:10PM 10 We will take up the issue of a bond tomorrow
II But my order is unambiguous, I don't want

any
12 prohibition of press coverage until there's some
13 demonstration -- and a very strong demonstration -- by the
14 Government as to why First Amendment rights need to be
06:06:32PM 15 interdicted like this.
16 Is there anything else we can do today?
17 MR. BABCOCK: The only thing, Your Honor, is I

have
18 a proposed order that anticipated the Court's reaction.

And
19 proceduratly as well, I've provided a copy to Mr. Wyatt.
0 6 , i ) ~ . S O i ~2N~~ ) THE COURT: Provide it to Ms. Foster if you

would.
21 MR. BABCOCK: 1 have taken the liberty of

filling in
22 the date and time for tomorrow.
23 TIHE COURT: Ms. Foster can provide this to

counsel.
24 1 didn't want to put that on the record.
06:07: 12PM 25 I'm satisfied with what I've said on the
1 record I'm just going to leave ii at that.
7
2 We'll see you at the back parking lot at
8:30
3 tomorrow.
4 Anything further?
c.e ?7 16rW 5 MR. WYATT: No, Your Honor.
6 MR. BABCOCK: Thank you, Judge.
7 (Proceedings concluded at 6:07 p.m.)
9 1 certify that the foregoing is a correct transcript from

the
record of proceedings in the above-entitled cause, to the
best
10 of my ability. _- .
. --
Stephanie Kay Carlisle, CSR, RPR Date

13 Official Court Reporter
Press article
BATON ROUGE, United States (AFP) - The military will bar journalists and photographers from documenting
the recovery of bodies left littering New Orleans by Hurricane Katrina, the army general in charge said. '
Lieutenant General Russel Honore, the commander of the relief operation on the US Gulf Coast, said that while
the military had allowed reporters covering the catastrophe free rein, it was now slamming the door shut out of
respect for the possibly thousands of victims and their families.
"We've had total access to everything we've done -- the good, the bad and the ugly -- but that operation (the
recovery of corpses) will be conducted with dignity and respect for the families," Honore said.
"'i'hcrz will be zero access to that operation. It would not be good to have pictuges of people, the deceased
shown on any media," Honore said calling for published pictures of corpses &Be removed from websites.
--
"You should hold yotikelves accountable for when someone sees and will be able to recognize the home or
location that their loved passed in," he told a press conference in the Louisiana capital of Baton Rouge.
Honore said journal&ts would be restricted from entering parts of the city that have been submerged as the water
is siowy ciraiixd by pun~ps,revealing a grisly harvest of corpses in the richest and most powerful country on
earth.
But he indicated that reporters crammed into a handful of hotels in the city center would not be kicked out of the
city.
"Not in the area you are in now," he said when asked if reporters movements would be restricted in New
GJi.lcL:.i; S o l ? i ~nwsmen have reported difficulties in gaining access to the city through military checkpoints.
Honore said his men were conducting house-to-house searches of stricken areas of the city of jazz, marking
sports where bodies have been found and alerting federal authorities to collect them.
Soldiers in the city on Friday prevented an AFP photographer from taking pictures of a newly-discovered corpse
under a sheet slumped against a wall on the Mississippi riverfront.
-
1 wl4icr 143s seen lifting the white sheet and examining the body for identification, wearing purple rubber ..-
gloves. ..
Emergency workers had daubed and orange "V" for victim on the wall above the corpse.
This communication.*alongwith any attachments, is covered byfederal and state law governin~electroniccommunications and may contain
confidential and legally privileged information. v t h e reader of this message is not the intended recipient, you are hereby notified that any
dissemination, distribution, use or copying of this message is strictly prohibited. Ifyou have received this in error, please reply immediately to the
i .~,lt:,. /Iti.~~~w.c.sagc.Thank you.
.l(~/;.~::
.I.:<!
1-
.?9
..
Page 1 of
-..------
Setit.
.. , , , , ,
r-riday, September 09, 2005 9:22 PM

, .. . , . ., -----...-...- . . ,-.
r
",
----------*
-t-
To: Trissell, David;- I J?
Cc: Fried, Jordan; Pilgrim, Lynda; 1A JOC Staff Judge Advocate

Subject: RE: TRO
?ws story from my PAO. Still working ... - e
Olts alt afw/usweathermedia 05091 0005412

tp:l/news.vahoo.com/news?tmpl=sto~&u=/afp/2005091
4J Stuart Baker
IA Desk
'F-Katrina (First Army)
- r
,om: Trissell, David [mailto Q
mt: Friday, September 09, 2005 9:01 PM
:: Fried, Jordan; Pilgrim, Lynda
lb,LLL
- 7
i )\L
.
a-
uart - here are our contacts, and order is attached - thanks for helping us run this down -
avid A. Trissell
IM,A General Counsel
:090905CNN v.Brown.txt>> =% A
#iscommunication, along with any attachments, is covered byfederal and state law governing eleQronic communications and may contain
nfidential and legally privileged information Ifthe reader of this message is not the intended recipient, you are hereby notzfied that any
:sernination, distribut~on,use or copying of this message is strictly prohrbited Ifyou have recerved this in error, please reply immediately lo the
I. , *I.L,' I , :/:I 11 cs~a::e Thank you
' I '
RO Page 1 of 1
From:
Sent: Friday, September 09. 2005 9:15 PM
To: Trissell, David;
c .. Fricd, Jordan; P~lgrim,Lynda; 1A JOC Staff Judge Advocate
Subject: RE: TRO
3t your message, working the issue. Glad to help.
n sending via separate message the PA0 (Public Affairs Officer) agreement for your review. I'm still digesting it. Still gathering
fo...
IA Desk
'F-Katrina (First Army)
14-469-4277
uart - here are our contacts, and order is attached - thanks for helping us run this down -
avid A. Trissell
:MA General Counsel
- Y
,090905CNN v. ~ r o w nkt>.:-
is communication, along with any attachments, is covered by federal and state law governing electronic communications and may contain
vfia'ential and legally privileged information. (fthe reader ofthis message is not the intended recipient, you are hereby notzJed that any
.semination, distribution, uscor copying of this message is strictly prohibited. lfyou have received this in error, please reply immediate& to the
zckr ond delete this message Thank you
.
A-
.
From: Bees, Margaret

"
Sent: Friday, September 09, 2005 8: 16 PM
To: Fried, Jordan; Trissell, David
Attachments: 090905CNN v.6rown.txt
090905CNN
v.8rown.M (16 KB)

. -.
From:
Sent: Frlday, September U9, 2UU5 8 : 1 6 PM
TO':-r ..
Subject: FW: Hourly Transcript - 9/9/05 - C
see zttached
From: Wyatt, Keith
To: 'Bees.Margaret@fema.govt
'I?' I c Margaret,
I have attached a copy of the transcript from the hearing before Judge Ellison earlier
this evening.
Assistant U.S. xc?orney

6
i - 7 : v ' l 3i.rision
(
U.S. Attorney's OfElce

910 Travis, Suite 1500
P.O. Box 61129
Phone: 713-567-9713
Fax: 713-718-3303
E-mail: J
-----Orlginal Message-----
From:
[rnailt r
Sent: Frlday, September 09, 2005 7:08 PM
To :
Subject: Hourly Transcript - 9/9/05 - CNN V. BROWN
i ~ n datzached the transcript you requested in the above matter.

Thanks.
t
Court Reporter
HOUSTON DIVISION
3
Cable News Network LP, LLP, 3
and Michael Cary, 3
3 5
Plaintiffs, 3
§
3
Michael D. Brown, in his capacity as §. -- -.
Under Secretary of Homeland Security 3
for Emergency Preparedness and Response, 3
Agency,
?,'ia,Gigc~nxt 6
§
Defendant. 3
Defendant's First Amended Answer to Plaintiffs' Complaint
The defendant, Michael D. Brown, in his capacity as Under Secretary ofHomeland Security
Agency ("FEMA")', in accordance with Rule 12(a) of the Federal Rules of Civil Procedure serves
this answer to the plaintiffs' complaint.
I. Admitted in part. Denied in part. The defendant admits that CNN is an international
news organization that covered the Katrina hurricane disaster in tlie%ulf Coast region. The
*
defendant ise%ithout knowledge or information sufficient to form a belief as to the truth of the
remaining allegations, therefore they are denied.
1
R. David Paulison has been designated Acting Under Secretary of Homeland Security for Emergency
2. The defendant is without knowledge or information {ufficient to form a belief as to
the truth of the allegations in this paragraph, therefore they are denied.
3. Denied. See footnote 1.
4. This paragraph contains conclusions of law to which no response is~equired,therefore:
they are denied.
5. Denied. The defendant specifically denies that any of the events which gave rise to
-- --
this cause of *tion occurred in this district. All of the relevant acts occurred in the state of
Louisiana.
6. Admitted in part. Denied in part. The defendant admits that CNN is a news
o~.ganlzationthat has covered hurricane Katrina in the Gulf Coast region. The defendant is without
knowledge or information sufficient to form a belief as to the truth of the remaining allegations,
therefore they are denied.
7. Denied. Lieutenant General Honore, who was the Joint Task Force - Katrina
Commander, requested that the media treat human remains with dignity, honor and respect. He
prohibited the media from accompanying his forces as media embeds during recovery of remains
hel~copters,,etc.)as a means to gain that access.

- -
operations. He did not prohibit the media access, just the use of militaryplatforms (boats, trucks,
8. Denied.
9. Denied.
10. Denied.
1 I. Denied.
The defendant denies all allegations that have not been specifically admitted.
Affirmative Defenses
In accordance with Rule 8(c) of the Federal Rules of Civil Procedure the defendant asserts
the following affirmative defenses. J
1. The defendant contends that there is improper venue in this court. 28 U.S.C. j
1391(e). . .
- --
.
-
2. s h e defendant contends that venue should be transferred to the Eastern District of
-. .
-
Lou~sianaunder 28 U.S.C. 3 1404(a).
2. The defendantcontends that this matter is moot.
3. The defendant contends that the plaintiff has failed to state a claim upon which relief
4. The defendant contends that this court lacks subject matter jurisdiction.
5. The defendant contends that it did not violate the plaintiffs' first amendment rights.
Therefore, the defendant respectfully requests that the plaintiffs' complaint be dismissed and
thal all of its requested relief be denied. The defendant requests all other relief, both at law and
equity, to which he is entitled.
---
"
Respectfully submitted,
Chuck Rosenberg
By: IS/ Keith Edward Wyatt

Keith Edward Wyatt
P. 0. B ~ X6 1129
Telephone: 7 13-567-97 13
Fax: -713-718-3303
This will certify that the attached pleading was served on November 10, 2005, by regular
-- -- L
/'
first class m a i l ~ nthe following:
Charles Babcock
1401 McIGnney Street, Suite 1900
IS/ Keith Edward Wyatt

Keith Edward Wyatt
.. -
UNITED STATES DISTRICT C O U ~ T
HOUSTON DIVISION
3
Cable News Network LP, LLP, §
and Michael Cary, 3
6
Plaintiffs, 3
6
3
Michael D. Brown, in his capacity as = 6 .
Under Secretay of Homeland Security tj
ljr EIIICIgency Preparedness and Response, 9
Management Agency,
Defendant.
Defendant's Report to the Court
The defendant, Michael D. Brown, in his capacity as Under Secretary of Homeland Security ,
Agency ("FEMA")', in accordance with Rule 12(a) of the Federal Rules of Civil Procedure serves
Lh~sanswcr to the plaintiffs' complaint.
1. Admitted in part. Denied in part. The defendant admits that CNN is an international
-3
news organization that covered the Katrina hurricane disaster in t h c Gulf Coast region. The
----
d c f w d a n t is without knowledge or information sufficient to form a belief as to the truth of the
remaining allegations, therefore they are denied.
1
R. David Paulison has been designated Acting Under Secretary of Homeland Security for Emergency
2. The defendant is without knowledge or information safficient to form a belief as to
the tn~thof the allegations in this paragraph, therefore they are denied.
3. Denied. See footnote 1.
4. This paragraph contains conclusions of law to which no response is kquired, therefore'
they are denied.
5. Denied. The defendant specifically denies that any of the events which gave rise to
. .
this cause of a t i o n occurred in this district. All of the relevant acts occurred in the state of
. .
. .
Louisiana.
6. Admitted in part. Denied in part. The defendant admits that CNN is a news
organization that has covered hurricane Katrina in the Gulf Coast region. The defendant is without
knowledge or information sufficient to form a belief as to the truth of the remaining allegations,
therefore they are denied.
7. Denied. Lieutenant General Honore, who was the Joint Task Force - Katrina
Commander, requested that the media treat human remains with dignity, honor and respect. He
prohibited the media from accompanying his forces as media embeds during recovery of remains
-
operations. He did not prohibit the media access, just the use of militaryglatforms (boats, trucks,
- -r
helicopters,atc.) as a means to gain that access.
8. Denied.
9. Denied.
10. Denied.
11. Denied.
The defendant denies all allegations that have not been specifically admitted.
Affirmative Defenses
In accordance with Rule 8(c) of the Federal Rules of Civil Procedure the defendant asserts
the following affirmative defenses. +

.
1. The defendant contends that there is improper venue in this court. 28 U.S.C. §
1391(e).
-. -- \
-.
2. -
-The defendant contends that venue should be transferred to the Eastern District of
Louisiana under 28 US.C. j 1404(a).
2. The defendant contends that this matter is moot.
3. The defendant contends that the plaintiff has failed to state a claim upon which relief
can be granted.
i)
4. The defendant contends that this court lacks subject matter jurisdiction.
5. The defendant contends that it did not violate the plaintiffs' first amendment rights.
'lherefore, the defendant respectfully requests that the plaintiffs' complaint be dismissed and
that all of its requested relief be denied. The defendant requests all other relief, both at law and
equity, to which he is entitled.
-
"" -
Respecthlly submitted,
Chuck Rosenberg
By: /s/ Keith Edward Wyatt

Keith Edward Wyatt
P. 0. B ~ X61 129
Telephone: 7 13-567-9713
Fax: '7 13-718-3303

C
This will certify that the attached pleading was served on November 10, 2005, by regular
.---
first class mailm the following:
Cha~les Babcock
1401 McKinney Street, Suite 1900
/s/ Keith Edward Wyatt

Keith Edward Wyatt
C o u r t phone c o n f e r e n c e v Brown

CABLE NEWS NETWORK, LP, civi1 ~cti0t-I

LLP NO. H - 0 5 - 3 1 7 0
AND
.
. .
-
MICHAEL CARY
capacity as under
S e c r e t a r y o f ome el and
S e c u r i t y f o r Emergency
R e s p o n s e , and D i r e c t o r 3 : 5 8 P.M.
of t h e FEDERAL EMERGENCY s e p t e m b e r 12, ZOOS

APPEARANCES:

AND
J a c k s o n w a l k e r , LLP
1 4 0 1 M c K i n n e y , s u i t e 1900
H o u s t o n , T e x a s 7.7010
--
(via t e l e p h y e )
- -
C
~ s ss ti a n t u n i t e d s t a t e s
A( carney
21 910 T r a v i s , s u i t e 1 5 0 0
H o u s t o n , T*exas 7 7 2 0 8
(via t e l ephone)
proceedin s recorded by m e c h a n i c a l stenography, transcript

produced 8y computer-aided t r a n s c r i p t i o n .
Page 1
C o u r t phone conference v Brown
-
4 ALSO PRESENT: MR. DAVID V I G I L A N T E

( v i a telephone)
- s -
L
.
7
O F F I C I A L COURT REPORTER: MS. STEPHANIE KAY CARLISLE
8 U. S. ~i s t r ic t courthouse
515 ~ u s k
9 S u i t e 8016
713.250.5157
Page 2
Court phone conference v Brown
.
(september 12, 2005)

*
( I n chambers.)
THE COURT: s t a t e your appearances, please.
MS. HAMILTON:
-- a-
Nancy Hamilton o f Jacksqn walker
7 MR. VIGILANTE: On t h e phone i s -David v i g i l a n t e ,
9 MR. WYAlT: And, Your Honor, my name i s K e i t h
,~!y;:tt.
03:58:12PM 10 Irepresent FEMA.
11 THE COURT: welcome t o each o f you. ~ e 1 1me

what
12 t h e problem i s .
13 MS. HAMILTON: Your Honor, Judge, you know, on
14 Saturday we had a hearing i n c o u r t a t 8:30. There was
0 3 : 5 8 : 3 0 ~ 1~ 5 r e p r e s e n t a t i o n by t h e Government t h a t t h e y were n o t going
to
16 bar o r impede access f o r t h e media i n t o t h z recovery
efforts -<
L
-U o f t h e Hurricane K a t r i n a deceased v i c t i m s . Ig o t a call
today
18 from my c l i e n t , CNN, saying t h a t t h e y had been barred
access .-

had
3 3 : 5 2 : 5 6 P ~ 20 conversations w i t h t h e c a p t a i n o f t h e 82nd ~ i r b o r n ewho
said
2 1 t h a t he had no i d e a about t h i s o r d e r o r a c t u a l l y about t h e
23 THE COURT: M r . Wyatt, can you speak t o t h a t ?
24 MR. WYATT: well, I really can't. I'm at a

Page 3
0 3 : Sg:l2PM 2 5 mediation. Iw i l l have t o make some c a l l s . I can t e l l
It was t h e i n t e n t i o n of General ~ o n o t - e ' t o i s s u e an o r d e r t o

2 ensure t h a t a l l t h e troops were aware o f what t h e p o l i c y
W:.S .
3 Id o n ' t know i f t h i s i n d i v i d u a l who counsel i s t a l k i n g

about
4 i s p a r t o f t h e Army o r e x a c t l y who he was o r what t h e
03 :5 9 : 3 8 ~ ~s c i rcumstances were.
6 MR. VIGILANTE: He ; d e n t i f i e d h i m s e l f as t h e
cap c a i n
7 o f t h e 82nd Airborne. That should answer t h a t question.

I
8 spoke t o him p e r s o n a l l y . He had no knowledge o f any such
9 order. u n t i l he heard o f i t , t h e y weren't going t o s t o p
doing
03:59:52PM 10 what they were doing. They pursued our crew --
11 MR. WYAIT: Mr. vigilante, let=& interrupt. DO
YOU
3 --
if;?

04:OO:lOPM 1 5 THE COURT: hat's f i n e . ~ e mte see i f I can do
it.
16 MR. VIGILANTE: I t ' s e a s i e r i f Ido i t from my

side.
17 MS. WALKER: avid?
19 MS. WALKER: You s a i d , though, t h a t you d i d have
Page 4
. .
.-
-
.
04:00:48PM 20 name and t h a t i s Captain Tony -- i s i t a as sari "?

would
22 not g i v e any contact i n f o r m a t i o n out.
23 MR. WYATT: I ' m sorry. what was h i s ' f i r s t name?
24 MR. VIGILANTE: Tony.
0 4 : 0 1 : 0 0 ~ 25
~ I s Dan on t h e l i n e ? Can It r y and patch
Dan
-. --
a
Lothian i n one more time?

2 THE COURT: one more time. we can c a l l him
d i r e c t ly
3 ifyou want. YOU can t r y one more time. ~ t ' sn o t
essential.
4 MR. VIGILANTE: Well, Ican speak f o r him. I
spoke
w i t h him when 1 was on t h e c a l l --
THE COURT: M r . Wyatt, s o r d t h a t you're i n
~ ' m
Z
4-7 mediation. ~ u yto u ' r e going t o have t o deputize somebody
, back
a t your o f f i c e t o make t h e necessary phone c a l l s . not
~ ' m
happy about t h i s development. we thought we had l a i d t h i s
r e s t on Saturday. The Government had an o p p o r t u n i t y t o

present i t s case. ~t waived n o t o n l y t h e p r e s e n t a t i o n o f
evidence b u t waived any o b j e c t i o n t o t h e coverage. ~ n d
n o t happy about one p o l i c y being announced i n c o u r t and

another being e f f e c t u a t e d on t h e ground. please t e l l
Page 5
-
c o u r t phone conference v Brown
01:01:50PM 1 5 you speak w i t h t h a t ift h i s continues, I mean, t h e r e w i l l
be
16 contempt c i t a t i o n s and t h e r e w i 11 be :fines issued.
17 MR. VIGILANTE: Iwould add t h a t our r e p o r t e r
when
18 he presented t h e memo t o t h e c a p t a i n was accusdd o f it
k c - ing
19 forgery. And they made a w a l l o f people and humvees
around
04:02:06PM 20 t h e subject t r y i n g t o .f i.l m and refused t o move. =Even when
I
*
21 spoke t o t h e c a p t a i n d i r e c t l y and advised him o f what
happened
22 i n c o u r t , he s t i l l refused t o ' do i t .
23 MR. WYATT: Could you g i v e me t h e name o f t h e
24 reporter?
0 4 : 0 2 : 1 8 ~ ~25 MR. VIGILANTE: The r e p o r t e r ' s name i s Dan
~ o t han,
i
---
-j
L-0-T-H-I-A-N. d
THE COURT: I ' v e seen him on T.V.

MR. WYATT: I ' m sorry. L-0-C-H-I --
THE COURT: NO. T-H. T-H, Tom. Tom, H.
MR. WYATT: 1 ' m sorry. he l i n e broke up.
THE COURT: L-0-T-H-I-A-N, Lothian.
MR. WYATT: Okay. Thank you.
THE COURT: ~ u please
t communicate t o Captain
9 Honore' o r whomever t h a t t h i s i s a matter t h a t t h e c o u r t
takes
very s e r i o u s l y . I d o n ' t l i k e t h e p r a c t i c e o f making
Page 6
--.-
11 representations i n c o u r t t h a t a r e n ' t f o l l o w e d through w i t h
12 t h e ground. And i f c a p t a i n ono ore' i,s s e r i o u s about t h e

13 i n t e n t o f t h e communication t h a t was read t o t h e Court
14 Saturday morning, he should by now, almost 60 hours
r' later, :
04:03:14PM 1 5 have had ample o p p o r t u n i t y t o n o t i f y everyone on t h e

ground as
16 t o what t h e p o l i c y ' i s .
17 MR. WYATT: . -1-understand,
- Your Honor. ,And I
will
C
18 t a l k w i t h them immediately. .. -.
19 MR. VIGILANTE: I s t h e r e anythihg Ican do f o r

04:03:26PM 20 Mr. ~ o t h i a nwho's i n t h e f i e l d r i g h t now and continues t o
. . get
2 1 harassed t h i s afternoon by various people?
22 THE COURT: We1 1 , you' r e we1 come t o g i v e him my
23 d i r e c t number a t t h e o f f i c e and my number a t home. And
1'11
24 i n t e r r u p t proceedings t o speak w i t h him o r w i t h whomever
I ..
04:03:46PM 25 responsible f o r t h e harassment.

THE COURT: Ms. Hamilton --
MS. HAMILTON: Ihave those numbers.
MR. VIGILANTE: Great. Thank you, Your Honor.

MS. HAMILTON: hank you, Your Honor.
THE COURT: Is t h e r e anything e l s e b e f o r e we go
Page 7
-
- ..
7 t h e record?
8 MS. HAMILTON: I d o n ' t b e l i e v e so.
captain
11 MR. WYATT: I w i l l do t h a t , Your ~ o n d r .
12 THE COURT: Thank you.
13 (Proceedi ngs concl uded .)
1% I c e r t i f y t h a t t h e foregoing i s a c o r r e c t t r a n s c r i p t from
record o f proceedi ngs in t h e above-enti t l e d cause, t o t h e
best
Stephanie Kay C a r l i s l e , CSR, RPR Date

Page 8
090905CNN V B r o w n

HOUSTON D I V I S I O N i
CABLE NEWS NETWORK, LP, . civil ~ c t i o n

LLP . NO. H - 0 5 - 3 1 7 0
AND
MICHAEL CARY
- --
. .
S e c u r i t y f o r Emergency
R e s p o n s e , and D i r e c t o r . 5 : 0 0 P.M.
o f t h e FEDERAL EMERGENCY S e p t e m b e r 9, 2 0 0 5

APPEARANCES:

AND
1 4 0 1 M c K i n n e y , s u i t e 1900
Houston,
T:Y 77010
Z
FOR MICHAEL D. BROWN: MR. K E I T H EDWARD WYAIT
A s s i s t a n t united states
910 T r a v i s , s u i t e 1 5 0 0
ousto on, Texas 7 7 2 0 8
Proceedin
produced 8ys recorded by m e c h a n i c a l stenography, t r a n s c r i p t
computer-aided transcription.
Page 1
U . S . ~i s t r i c t courthouse
4 515 ~ u s k
s u i t e 8016
.
. -- H o u s t o n , T e x a s 770Q2
713.250.5157
Page 2
.-
3 THE COURT: Please be seated. Good a f t e r n o o n
and
-. 4.. we1 come.

. -
5 MR. BABCOCK:. hank you, Your Honor.
C
6 THE COURT: Mr. ~abcock.

7 we are here on H-05-3170, c a b l e News
8 and Michael Cary versus ~ i c h a e lD. Brown.

9 I w i l l take appearances o f counsel.
MR. BABCOCK: Thank you, Your Honor.
11 Charles ~ a b c o c kand Nancy Hamilton, b o t h o f
the
Jackson walker f i r m , representing t h e p l a i n t i f f s .
THE COURT: Welcome.
MR. BABCOCK: Thank you.
THE COURT: ~ n tde l l me what e f f o r t s have been
Co g e t ahold o f somebody representing t h e

MR. BABCOCK: Yes,
-2 efendant.
Your Honor. f r . S c o t t who i s
colleague o f mine a t our o f f i c e arranged f o r t h e personal

-39 s e r v i c e o f t h e papers a t approximately 4 : 3 0 t h i s
afternoon.
Maybe a few minutes on e i t h e r s i d e o f t h a t . Then he
2 1 p e r s o n a l l y spoke w i t h a l i t i g a t i o n p a r a l e g a l s p e c i a l i s t i n
the
22 u n i t e d States A t t o r n e y ' s o f f i c e a d v i s i n g them t h a t t h e r e
w2s
23 an immediate hearing. That was probably about 25, 30

minutes
24 ago -- approximately 25, 30 minutes ago. ~ n they
d
page 3
05:41: 58PM 25 acknowledged t h a t and s a i d t h a t 'they would see what they
could
1, do.
2 THE COURT: How do you suggest we-proceed?
3 MR. BABCOCK: Your Honor, t h e r e a r e two avenues
of
4 approach. we c e r t a i n l y want t o get b e f o r e t h e c o u r t our
case
05:42:18PM 5 today. we're n o t necessarily -- i n f a c t , we'd p r e f e r i t
if
t h e Government was here. They're two ways o f proceeding:
One, my experience has been when a ~ e d e r a l~ u d g et e l l s t h e
U.S. Attorney t h a t they need t o see them --
9 THE COURT: 1 ' m happy t o place a phone c a l l . I
just
0 5 3 4 2 3 3 4 ~10
~ don't know t h a t I ' m going t o get anybody. I ' m happy t o
call
them. -4
-
Y
J2 MR. BABCOCK: hey do know about t h i s . So, i n

the
13 absence o f t h a t , I would ask t h a t you hear us o u t . You do
14 have a u t h o r i t y under t h e ~ u l e st o enter an ex p a r t e - -
05:42:48PM 15 THE COURT: Iknow I do. Ij u s t d o n ' t l i k e ex
16 p a r t e --
17 THE CASE MANAGER: Your Honor, I t r i e d
c o n t a c t i ng
18 t h e U.S. A t t o r n e y ' s o f f i c e ; and I g e t t h e recording t h a t
thei r
19 o f f i c e hours are from 8:00 t o 5:00. And s i n c e Id o n ' t
know
Page 4
d5:43:02P~ 20 e x a c t l y what U . S . Attorney i s assigned t o t h i s case as o f
now,
-
21 1 d o n ' t have a name where I can t r y zo page t h i s person o r
22 have t h i s person hunted down by c o n t a c t i n g one o f t h e
other
3
23 U.S. attorneys.
24 THE COURT: okay. w e l l , Ms. c a r l i s l e , can you
stay
05:43:18PM 25 w i t h us f o r a while?
-. - -

,'
THE COURT: Let me go back t o my chambers. Let
3 make a few more phone c a l l s . ~f n o t h i n g e l s e -- I

understand
t h e concern i s t h e coverage of removal o f dead bodies. Is
05:43:30PM 5 t h a t ongoing o r i s t h a t going t o s t a r t sometime i n t h e

future?
6 MR. BABCOCK: We understand tk&it ' s goi ng t o
start e*
-2-
7 immediately. And t h e FEMA representatives apparently

spoke --
one o f them spoke l a t e morning and t h e o t h e r one spoke
d e f i n i t i v e l y e a r l y t h i s afternoon.
05 :43 :42PM 10 THE COURT: L e t me go back and see i f Ican
rouse
some response. we may need do an ex p a r t e order t o n i g h t
come back tomorrow morning. ~ ' m

s o r r y t o make people work
weekends, b u t we may need t o do t h a t .
MR. BABCOCK: We would be d e l i g h t e d t o do i t ,
Page 5
Your
05 :44 :OOPM 1 5 Honor.
THE COURT: I doubt anybody w i l l be d e l i g h t e d ,
w e ' l l do i t .
MR. BABCOCK: Well, maybe n o t d e l i g h t e d .
THE COURT: w e ' l l do i t . A l l right.
( s h o r t recess taken.)
THE COURT: .Mr.
. . K e i t h Wyatt who heads xhe c i v i l
2% d i v i s i o n o f t h e U . S . ~ t t o r n e y ' so f f i c e i s here a t my
request. .
. .-
I d i d telephone M r . Wyatt -- telephoned a c t u a l l y Don
DeGabri e11e and received M r . Wyatt's response. ~ n Id
06:02: S ~ P M25 t r i e d t o describe very summarily what t h i s case was about,

but
1 otherw ise we've had no communications. that fair?

-- 3
S
I
f
2 MR. WYATT: T h a t ' s c o r r e c t , Youc Honor.
f .-
3 THE COURT: TO r e i t e r a t e , CNN i s a s k i n g t o
enjoin
= 4 Michael Brown as under Secretary o f Homeland s e c u r i t y and
06:03:12~M 5 D i r e c t o r o f FEMA from p r o h i b i t i n g coverage o f t h e removal
(, I
6 dead bodies as a consequence o f Hurricane K a t r i n a .

7 Now, i f what I heard on NPR i s c o r r e c t t h i s
8 afternoon, M r . Brown i s no l o n g e r head o f FEMA. I don't

know
9 when t h a t ' s e f f e c t i v e . ~ u he's
t been r e l i e v e d o r
something.
Page 6
-
.-.-
090905CNN V Brown
0 6 : 0 3 : 3 2 ~ 10
~ That doesn't change anything.
11 MR. BABCOCK: He's s t i l l D i r e c t o r ; b u t h e ' s n o t
12 s i t e anymore, h e ' s back i n washington.

13 THE COURT: That doesn't change anything.
14 MR. BABCOCK: The Coast Guard guy i s 'boi ng
06:03:42PM 1 5 something.
16 THE COURT: M r . Wyatt, Iknow i t ' s n o t f a i r f o r
17 t o respond on t h e m e r i t i . The i s s u e i s : what w&ld you

*
18 me t o do? Ican reconvene t h i s hearing uri-t-i1 tomorrow
19 morning, i f t h a t ' s what makes sense.

06:03:56P~ 20 MR. WYATT: Your Honor, Iwould ask f o r a s h o r t
2 1 extension o r continuance o f t h e hearing. The concern I
have
22 i s i t ' s now 6:00 o ' c l o c k .
23 THE COURT: Ihave t h e same concerns you have.
24 MR. WYATT: 1 ' m n o t sure. 1'11 do my best. But

06:04:08PM 25 what I need t o do i s contact t h e c l i e n t agency, FEMA. In
a1 1
1 honesty, ~ ' m
n o t sure I can do t h a t t o n i g h t .
2 THE COURT: yeah. Well, t h a t ' s f i n e . Ido
3 understand t h a t . The o n l y t h i n g Ican do, though, i s t o

- -- -1 s
4 t o accept t h e f a c t s as w e l l pleaded. ~ n Id do need t o
enjoin
06:04:36PM 5 u n t i l our continued hearing any p r o h i b i t i o n o f press
coverage.
Page 7
-
-
..
-.
09090sCNN v Brown
6 Based on t h e f a c t s as pleaded, t h a t ' s a1 1 Ihave, i t l o o k s
7 l i k e a p r i o r r e s t r a i n t t o me. Icannot a u t h o r i z e t h a t .
. 5 . .
8 can Ibe passive i n t h e face o f i t ' s a s s e r t i o n .
L e t me do t h i s : w e ' l l reconvene tomorrow
f
06:05:00PM 10 8:30. I ' m going -- ~ ' m

n o t going t o say i t on t h e record.
I
11 w i l l g i v e you b o t h my home phone number. You can c a l l me
if
can do
12
- t h i n g s change. And i f you want t o reconvene ton-fght,
.. --
I
13 that.
14 r t may need -- we won't have a c o u r t
reporter .
06:05:20PM 1 5 tonight.
16 MS. C a r l i s l e , Id o n ' t know about your
17 avai l a b i 1it y tomorrow morning.
THE REPORTER: I ' m avai 1able, Your Honor.
THE COURT: You're sure?
21 THE COURT: You've earned an e x t r a hundred years
in
22 heaven.
--4
the --
24 THE COURT: L e t ' s j u s t p l a n -- I * w i l l be here a t
06:05:38fJM 25 back entrance o f t h e c o u r t where t h e judges park, and I'll

1e t
1 you i n . Because, otherwise, I ' m n o t sure you w i l l be a b l e

Page 8
2 get i n .
3 Can you g e t i n tomorrow, MS. Carlisle?
06:05:50P~ 5 THE COURT: okay.
6 1'11 meet you there. T h a t ' s l i k e a t smith
and
7 c a p i t a l S t r e e t back t h e r e -- and make sure everybody can
get - -
8 in. - - .
~ n Id' m n o t going t o r e q u i r.-e bond r i g h t
now.
r
06:06:10PM 10 we w i l l take up t h e i s s u e o f a bond tomorrow.

~ u my
t order i s unambiguous, Id o n ' t want
12 p r o h i b i t i o n o f press coverage u n t i l t h e r e ' s some

13 demonstration -- and a very strong demonstration -- by t h e
14 Government as t o why F i r s t Amendment r i g h t s need t o be i
06: 06: 3 2 1 ~5 ~
interdicted l i k e this.
16 S
I t h e r e anything e l s e we can do today?
17 MR. BABCOCK: The o n l y t h i n g , Your Honor, i s I
have
18 a proposed order t h a t a n t i c i p a t e d t h e c o u r t ' s r e a c t i o n .
~ n d
19 p r o c e d u r a l l y as w e l l , I ' v e provided a c o p g t o M r . Wyatt.
t)S:OS:SOPM L O THE COURT: provide i t t o MS. Foster i f you
would.
2 1' MR. BABCOCK: Ihave taken t h e l i b e r t y o f
filling in -
22 t h e date and time f o r tomorrow.

23 THE COURT: MS. Foster can p r o v i d e t h i s t o
c,~::nsdl.
24 I d i d n ' t want t o put t h a t on t h e record.
06:07:12P~ 25 I ' m s a t i s f i e d w i t h what ~ ' v es a i d on t h e
Page- 9
1 record. I ' m j u s t going t o leave i t a t t h a t .
2 We'll see you a t t h e back p a r k i n g - l o t a t
3 tomorrow.
~ n y t hnig / f u r t h e r ?
MR. WYATT: NO, Your Honor.
6 MR. BABCOCK: hank you, ~ u d g e .
7 (Proceedings concluded a t 6 : 0 7 p.m.)
8 * * *
the
best ,,
Stephanie Kay c a r l i s l e, CSR, RPR Date

Page 10
Page 11
CABLE NEWS NETWORK, LP, . civil ~ c t i o n

LLP . NO. H - 0 5 - 3 1 7 0
AND
. -
. .-
MICHAEL CARY
S e c r e t a r y o f ome el and
s e c u r i t y f o r Emergency
R e s p o n s e , and D l r e c t o r . 8 : 3 0 A.M.
o f t h e FEDERAL EMERGENCY S e p t e m b e r 10, 2 0 0 5

APPEARANCES:

AND
MS. NANCY W . HAMILTON
1401 M c K i n n e y , s u i t e 1900
H o u s t o n , Texps 77010
--
---A -
**
FOR MICHAEL D. BROWN: MR. K E I T H EDWARD W Y A n
ASS^ s t a n t u n i t e d S t a t e s
Attorney
910 T r a v i s , s u i t e 1 5 0 0
P r o c e e d i n s recorded by mechani c a l stenography, t r a n s c r i p t

%
produced y c o m p u t e r - a i ded t r a n s c r i p t i o n .
Page 1
u. s. D i s t r i c t courthouse
4 515 ~ u s k
S u i t e 8016
- 5 - Houston, Texas 77002
713.250.5157
6,
page 2
(september 10, 2005) 7

.
3 THE COURT: Thank you. Please be seated.
4 S
I anybody going t o need t h e f l i p c h a r t ?
08:31:38AM- 5 MR. BABCOCK:
- - No, Your Honor. -
,6 THE COURT: T h a t ' s l e f t over from a Fourth
~niendrnent < -
7 hearing . -
8 A l l right. okay. Thank y o u - a l l f o r being

9 here. A p a r t i c u l a r thanks, M r . Wyatt. I know t h i s was
very
08:31:54~M 10 short notice.
me i f we've made any progress toward
~ e l 1
12 agreement o r o t h e r r e s o l u t i o n .
13 MR. WYATT: Your Honor, my name i s K e i t h Wyatt.
14 am w i t h t h e U.S. Attorney's o f f i c e .
This morning about f i v e minute ago I handed
16 counsel f o r t h e p l a i n t i f f s a statement f W t h e ~ s s i s t a n t
' . L
A7 chief o f S t a f f who r e p o r t s d i r e c t l y t o General on ore' i n

18 which t h e statement says t h e f o l l o w i n g :
-19 his memorandum i s t o c o n f i r m t h a t J o i n t
Task
08:32:14AM 20 Force-Katrina, commanded by Lieutenant General R U S S ~L.
~
21 Honore', has no plans t o bar, impede, o r prevent news

Ki'J l a
22 from t h e i r newsgatheri ng and r e p o r t i n g a c t i v i t i e s i n

23 connection w i t h t h e deceased ~ u r rcane
i ~ a t rnai v i c t i m
recovery
24 e f f o r t s , i n c l u d i n g access t o t h e s i t e s , photographing o r
Page 3
tr
091005CNN V Brown
08:32:32AM 25 reporting." .
- 1 signed -by- Lieutenant -- signed by-colonel

,2 C h r i s t i a n E. ~ e ~ r a f Af s, s i s t a n t c h i e f o f s t a f f , 7-3.
THE COURT: Thank you. Do you have a copy o f
4 so t h e c o u r t r e p o r t e r can get t h e s p e l l i n g ?
08:32:52AM 5 we1 1 , I w i 11 say when I was d r i v i n g i n here
6 t h i s morning, I heard on NPR t h a t t h e r e was s t i l l -- n o t
7 s t i l l -- i t was reference made t h e r e being l i m i t a t i o n s on
8 coverage. ~ n tdh a t press organizations, w i t h o u t naming
any,
9 were complaining about t h i s . so, t e l l me what you t h i n k
the
08:33:08AM 10 s t a t e o f p l a y i s , M r . Babcock.
11 MR. BABCOCK: Your Honor, c h a r l e s ~ a b c o c kf o r
t; ;
12 p l a i n t i f f s i n t h i s case.
Y
--zz
13 We t h i n k t h i s i s h e l p f u l f w s t a r t e r s . And
14 would l i k e , j u s t f o r t h e purposes o f t h e record, t o submit

to
0 8 : 3 3 : 2 2 ~ ~ - 1 5 t h e Court what we've marked as p l a i n t i f f ' s ~ x h i b i t1 and 2
and
16 E x h i b i t s 1-14 and 2-A. One and Two are t r a n s c r i p t s of
recorded
17 statements from yesterday from colonel Ebbert and General
18 Honore' h i m s e l f . ~ n they
d said i n p e r t i n e n t p a r t t h a t the
19 search f o r t h e l i v i n g has been concluded. 8ut t h a t a
08:33:52AM 20 recovering - - a recovery operation -- s t r e e t by s t r e e t ,
grid
Page 4
091005C~NV Brown
by g r i d -- f o r any remaining i n d i v i d u a l s who passed away,
this
_ <
: 22 exercise w i l l be w i t h -.dignity, meaning t h e r e w i l l be no
press
23 allowed. That was Colonel Ebbert yesterday. And then
when e
p
asked by a member o f t h e press, General Honore' s a i d t h e r e

w i l l be no -- zero access t o t h e operation.
I f t h i s i s a change i n p o l i c y , 180-degree
change, we t h i n k t h a t ' s appropriate and proper and perhaps
r e c o g n i t i o n o f what occurred yesterday afternoon. ~ u we

t
would l i k e t o tender these e x h i b i t s t o t h e c o u r t .
THE COURT: Very w e l l . Hand them t o Mrs.
MR. BABCOCK: I have provided him a copy.

7 THE COURT: Have you provided a Acopy t o Mrs.
Foster? -5
.
I
--8 MR. BABCOCK: I haven't. I w i l l do t h a t r i g h t
away.
THE COURT: w e l l , do you know what happened?
people a t FEMA change t h e i r minds?

MR. WYATT: I can t e l l you t h i s : Late i n t o t h e
12 n i g h t and e a r l y t h i s morning, I have had several
conference
calls. Those conference c a l l s were w i t h v a r i o u s FEMA and
officials. he FEMA o f f i c i a l s who were i n v o l v e d was avid

T r i s s e l l , whose t h e general counsel a t FEMA.
Page 5
1 Iwas going t o see my parents who a r e t&t i n good h e a l t h
in
2 Austin. Ihad t o l d them t h a t Iwas n o t going t o go when I
3 learned about t h i s . ~ u i tn l i g h t of M r . Wyatt's

4 representations, It h i n k Iw i l l go. his i s what w e ' l l do ,
%
08:39:18AM 5 , I ' m not running away from t h i s . Id o n ' t want you t o go

I ~iid
6 another judge. Iw i l l g i v e you my p a r e n t ' s number and my

home
,7 number. And 1'11 be a t one number o r t h e o t h e r a l l
weekend.
8 So, i f we have t o do a hearing by telephone, w e ' l l do
9 MR. BABCOCK: hank you, Your Honor.

0 8 3 3 9 3 3 4 ~10
~ THE COURT: But Ir e a l l y d o n ' t want t o be
perceived
11 as ducking a hard case. n o t doing t h a t .
~ ' m
A l l right. Ido thank both counsel f o r
t r'y
13 t o work t h i s matter through. I hope we have resolved i t
now
14 Thank you f o r what sounds l i k e a very l a t e
08:40:10AM 1 5 n i g h t , M r . Wyatt. Thank you, M r . ~ a b c o c k .
16 we w i l l be i n recess.
17 (Proceedings concl uded .) -- --
32
3
4.8 t t f:
19 Ic e r t i f y t h a t t h e foregoing i s a c o r r e c t t r a n s c r i p t from
the
bt.5 r
Stephanie Kay C a r l i s l e , CSR, RPR Date

Page 9
-
-
a*
, 091005CNN v Brown
08:37:48AM 5 on press access t h a t was the subject ot our l a w s u i t .
6 THE COURT: Right. Do we now have t h e matter
7 resolved? S
I t h e r e a case o r controversy l e f t ?
8 MR. BABCOCK: Your Honor, It h i n k i n terms o f an
order
9 emergency hearing on t h e emergency temporary r e t r a i n i n g
- -
08:38:06AM 10 i s probably resolved. AS Judge Praudo once s a i d t o me,
h he
11 d e v i l i s i n t h e d e t a i l s . "
12 THE COURT: yeah. hat's always t r u e . -
13- MR. BABCOCK: I f Monday o r tomorrow
. -.
the
exception
14 about, "We're n o t going t o a l l o w you t o be embedded,"
turns
08:38:22AM 1 5 o u t i n p r a c t i c e t o mean something g r e a t e r than what we a l l
have an understanding o f here, we may want t o come back t o
Your Honor t o t a l k f u r t h e r . ~ u i tn l i g h t o f counsel's
r e p r e s e n t a t i o n t h a t t h e p o l i c y now i s n o t t o impede access
t h e press, I t h i n k we're i n a good spot. we're t h a n k f u l
t h e Court and counsel f o r h i s quick work.

THE COURT: I ' m happy t o do i t . I do want t o
22 congratulate on t h e record Ms. C a r l i s l e and Mrs. Foster
and
- 3
Ms. Sulkowski f o r g i v i n g up a p o r t i o n o f t h e i r weekend. I
thank you very much.

0 8 : 3 9 : O O ~-25
~ Ihad -- my weekend plans were n o t g a l a
ones.
Page 8 '
11 would be i s t h a t t h e Department o f ~ e f & s e o f FEMA does
not
- 12 b e l i e v e t h e press has a r i g h t t o be embedded w i t h t h e
r wwpry
13 v e h i c l e s , recovery boats. ~ u t to t h e e x t e n t , t h e press

can go m
-
14 out t o the locations. ~ h e y ' r ef r e e t o do t h a t . ~hey're
free
08:36:50A~ 1 5 t o take whatever p i c t u r e s they can take.
.. 16 ~ uI
t have
- .- a district
. -
-- -
a c i r c u i t court
17- decision, F l y n t versus Rumsfeld, i n which t h e c i r c u i t
court i n
18 2004 s a i d t h e F i r s t Amendment does n o t guarantee t o t h e
press
19 t h e r i g h t t o be embedded w i t h m i l i t a r y u n i t s .
0 8 : 3 7 : 1 0 ~ 20
~ NOW, t h e case i t s e l f i s d i f f e r e n t than what
2 1 we're d e a l i n g w i t h here. ~ t ' sd e a l i n g w i t h m i l i t a r y
units.
22 But i t stands f o r t h e p r o p o s i t i o n t h a t t h e press doesn't
have
23 t h e r i g h t t o be embedded w i t h t h e u n i t s . we t h i n k t h a t
24 a p p l i e s here. And t h e c i t e of t h a t case i s 355 F .3d 697.
08:37:32AM 25 THE COURT: I s t h a t from t h i s c i r c u i t ?
1 MR. WYATT: 1 t ' s t h e o i s t r i c t o f Columbia

c i rcuit .
2 THE COURT: okay. w e l l , Id i d n ' t understand
your
3 papers t o be asking f o r t h e r i g h t t o be embedded.
4 MR. BABCOCK: NO, Your Honor. I t was t h e t o t a l
K,<:,I~
Page 7
16 THE COURT: Why d o n ' t you s p & l l these proper
names
17 as you go through.
19 oavid ~ r i s s e l l ,T-R-I-S-s-E-L-L; he's t h e
i
08:35:12AM 20 genera1 counsel o f FEW. Jordan, 3-0-R-D-A-N; Fries,
he's t h e head of l i t i g a t i o n o f FEMA.
2 1 F-R-1.-E-S; ~ n ad
~ynda,
- 2 2 L-Y-N-D-A; P i l g r i m , P-I-L-G-R-I-M;
- -
she's a s t a f f a t t o r n e y
with . -
23- FEW. They a l l p a r t i c i p a t e d i n a conference c a l l along

. .
with . -
24 f o u r ' ~ e ~ a r t m e no tf 3 u s t i ce o f f i c i a1s w i t h t h e Federal

Programs
08:35:38AM 2 5 Branch i n Washington. T h e i r names are Jody Hunt; 3 - 0 - 0 - Y ,
Hunt. v i n c e Garvey, G-A-R-V-E-Y. Betsy shapiro,

S-H-A-P-I-R-0. And John G r i f f i n s , G-R-I-F-F-I-N-S. As
---5z
**
-3
- ". as a JAG a t t o r n e y representing t h e m i l i t a r y was a l s o
present.
His name i s S t u a r t , S-I-U-A R-T; Baker, B-A-K-E-R.
~ n during
d t h e course o f t h e proceedings,
discussed some o f t h e statements t h a t apparently ~ e n e r a l

Honore' has made during press conferences. And
contacted t h e K a t r i n a J o i n t Task Force which r e s u l t e d i n a

statement. And t h e p o l i c y now i s t h a t t h e r e w i l l be no
08:36:28AM 10 impediment t o press access. The o n l y l i m i t a t i o n t h a t
there
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Responsive Documents (1) - DHS: The Best Laid Plans: DHS Response To CREW Lawsuit: FEMA and Hurricane Katrina: 7/6/2006

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Responsive Documents (1) - DHS: The Best Laid Plans: DHS Response To CREW Lawsuit: FEMA and Hurricane Katrina: 7/6/2006

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Page 1 of 1

Subject: RE: Media TRO

To: Trissell, David

From: Pilgrim, Lynda

Daily Digest sign- Friday, September 9th, 2005

Listen to Segment (1 Download Show mp3

REPORTER: There are a couple of issues that are E! Crisis Profiteering:

REPORTER: Check it out. He has three instances in

I was told in no uncertain terms at gunpoint to get the hell out of

As soon as they realized that the beating of the suspects was

JUAN GONZALEZ: So, in other words, they did not initially

TIM HARPER: Not during the shootout, no.

AMY GOODMAN: -- they started to beat the prisoners that

AMY GOODMAN: Tim Harper is a reporter with the Toronto

AMY GOODMAN: Our guest, Tim Harper, of the Toronto

JACQUIE SOOHEN: Well, the experience with the police was

AMY GOODMAN: Were you with a resident of the Ninth

JACQUIE SOOHEN: We were with a resident of the Ninth

And I think what we did was we experienced more than

anything, I mean, martial law as it was being enacted upon the

AMY GOODMAN; To say the least, you have been in a lot of

JACQUIE SOOHEN: I have to say that both me and the other

JUAN GONZALEZ: Jacquie, and I'd like to ask Tim Harper

rapes and murders that occurred in the Superdome have been

JACQUIE SOOHEN: I saw very little looting in the areas I

JUAN GONZALEZ: And Tim Harper, what did you see in

TIM HARPER: Well, we witnessed looting on a number of

heading with it. I think at that point, the realization, of course,

AMY GOODMAN: I was wondering if what we're seeing in

TIM HARPER: Well, I just wanted to make one point, Amy,

AMY GOODMAN: Jacquie Soohen, your final comment?

JACQUIE SOOHEN: I definitely agree that from every --

AMY GOODMAN: Amazing to see across the political

To purchase an audio or video copy of this entire program,

Got your message, working the issue. Glad to help

From: Trissell, David 1

Sent: Friday, September 09, 2005 9:01 PM

rr~ed,Jordan; Pilgrim, Lynda

Attachments: 090905CNN v.Brown.txt

CABLE NEWS NETWORK, LP, . civil Action

TRANSCRIPT o f HEARING PROCEEDINGS

FOR CABLE NEWS NETWORK

FOR MICHAEL D. BROWN: MR. K E I T H EDWARD W Y A n

t o g e t ahold o f somebody representing t h e defendant.

colleague o f mine a t our o f f i c e arranged f o r t h e personal

4 approach. we c e r t a i n l y want t o g e t before t h e Court our

U.S. Attorney t h a t they need t o see them --

22 have t h i s person hunted down by c o n t a c t i n g one o f t h e

24 THE COURT: okay. Well, Ms. C a r l i s l e , can you

THE REPORTER: Yes, s i r .

3 make a few more phone c a l l s . ~f n o t h i n g e l s e -- I

05:43:30P~ 5 t h a t ongoing o r i s t h a t going t o s t a r t sometime i n t h e

weekends, b u t we may need t o do t h a t .

22 d i v i s i o n o f t h e U.S. Attorney's O f f i c e i s here a t my

otherwise we've had no communications. I s that fair?

dead bodies as a consequence o f Hurricane K a t r i n a .

8 afternoon, M r . Brown i s no longer head o f FEMA. I don't

17 t o respond on t h e m e r i t s . The issue i s : what would you

23 THE COURT: I have t h e same concerns you have.

1 honesty, I'W n o t sure Ican do t h a t t o n i g h t .

can I.be passive i n t h e face o f i t ' s a s s e r t i o n .

8:30. I ' m going -- I ' m n o t going t o say i t on t h e record.

w i l l g i v e you both my home phone number. You can c a l l me