In a published opinion, Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia on Thursday rejected Army Private Dwight Loving’s FOIA suit seeking documentation concerning the Executive Branch’s consideration of whether to approve his death sentence. Loving v. Department of Defense, __ F. Supp. 2d ___, Civil Action No. 06-1655 (ESH), 2007 WL 2137759 (D.D.C. July 26, 2007). By the time of the court’s ruling, the litigation had boiled down to 4 documents:
[(1)] A 31-page memorandum from the Judge Advocate General of the Army to the Secretary of the Army (forwarded to the President pursuant to R.C.M. 1204(c)(2)) reflecting the Judge Advocate General’s analysis of plaintiff’s case and recommendation as to whether the Secretary should recommend that the President approve plaintiff’s death sentence, dated January 13, 2004;
[(2)] A one-page memorandum addressed from the Secretary of the Army to the President “containing the [Secretary’s] recommendation regarding whether or not PVT Loving’s death sentence should be approved,” dated November 8, 2004;
[(3)] A one-page memorandum from the Secretary of Defense to the President forwarding plaintiff’s military court-martial capital case to the President for action, dated January 8, 2006;
[(4)] An undated one-page memorandum from the DoD Office of the General Counsel to the Counsel to the President concerning “The President’s Action in Two Military Capital Cases.”
DOD argued that it didn’t have to disclose these documents because they fell within FOIA Exemption 5, which permits the withholding of “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The court agreed, concluding that the first three documents fall within the presidential communications privilege while the fourth falls within the deliberative process privilege.
We previously discussed the case here, on the sixth day of CAAFlog’s existence.