Gregory Chandler on Review of Military Court-Martials

I reviewed an interesting case recently. The case is Loving v. Department of Defense, 550 F. 3d 32 (D. C. Cir. 2008): A soldier convicted of capital murder by a court-martial sued under the Freedom of Information Act (FOIA) seeking disclosure of memoranda prepared for the President in connection with his statutory review of the death sentence.

Affirming summary judgment for the defendants, the Court held that the disputed documents came within FOIA Exemption 5 for documents protected by privilege. Memorandum from the Army and Defense Secretaries to the President advising him on his review fell squarely within the presidential communications privilege because they directly involved the President and their confidentiality "ensures[s] that presidential decision-making is of the highest caliber, informed by honest advice and full knowledge."

The Judge Advocate General's recommendation, which was forwarded by the Army Secretary to the President, likewise fell withing the presidential communication privilege, because the President solicited and received it in a manner sufficient to bring it within the privilege.

The Court held that a memorandum from the Department of Defense Office of General Counsel to the Counsel for the President came within the deliberative process privilege. The plaintiff's interest did not constitute a public interest in disclosure surmounting the privilege, and there was no abuse of discretion in the Judge's decision not to conduct in camera review to determine whether the document contained segregable factual portions that might be disclosed.

GREGORY CHANDLER, Attorney at Law