United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2008 Decided December 23, 2008 

No. 07-5318 

DWIGHT LOVING, 

APPELLANT

v. 

DEPARTMENT OF DEFENSE AND DEPARTMENT OF THE ARMY, 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 06cv01655) 

Seth A. Watkins argued the cause for appellant. With him 

on the briefs was Charles F. Schill. 

Michael S. Raab, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the brief were 

Jeffrey S. Bucholtz, Acting Assistant Attorney General, 

Jeffrey A. Taylor, U.S. Attorney, and Mark B. Stern, Attorney. 

R. Craig Lawrence, Assistant U.S. Attorney, entered an 

appearance. 

Before: ROGERS and TATEL, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 
2 

 Opinion for the Court filed by Circuit Judge TATEL. 

TATEL, Circuit Judge: Convicted of capital murder by a 

military court-martial, appellant filed suit under the Freedom 

of Information Act seeking disclosure of Department of 

Defense and Army memoranda prepared for the President in 

connection with his statutory review of appellant’s death 

sentence. The district court found the requested documents 

exempt from disclosure under FOIA Exemption 5 and granted 

the government’s motion for summary judgment. For the 

reasons set forth in this opinion, we affirm. 

I. 

Under Article 71(a) of the Uniform Code of Military 

Justice, the President must “approve[]” all court-martial death 

sentences before they are carried out. 10 U.S.C. § 871(a) (“If 

the sentence of the court-martial extends to death, that part of 

the sentence providing for death may not be executed until 

approved by the President.”). The Rules for Courts-Martial 

specify procedures for transmitting military death penalty 

cases to the President, requiring the Judge Advocate General 

to provide all court records and his or her recommendation to 

the Secretary of the Army “for the action of the President.” 

MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 

1204(c)(2) (2005 ed.), available at http://www.loc.gov/rr/ 

frd/Military_Law/pdf/manual-2005.pdf. 

A general court-martial sentenced appellant, Army 

Private Dwight Loving, to death after finding him guilty of 

felony murder, premeditated murder, attempted murder, and 

robbery. The United States Supreme Court affirmed the 

capital sentence. See Loving v. United States, 517 U.S. 748, 

774 (1996). Proceeding under the Freedom of Information 

Act, 5 U.S.C. § 552, Loving asked the Department of Defense 

and the Army to disclose all records concerning the general 
3 

procedures for transmitting military death penalty cases to the 

President, as well as all records concerning Loving’s death 

sentence in particular. While these requests were pending, the 

Secretary of the Army forwarded Loving’s case to the 

President for action under Article 71(a). Learning of the 

Secretary’s action and having received no response to his 

FOIA requests, Loving initiated administrative appeals with 

both the Department of Defense and the Army. The Army 

never responded. The Defense Department did respond, 

releasing 133 pages and informing Loving that it was 

withholding an additional 104 pages under, among other 

things, FOIA Exemption 5, § 552(b)(5), which allows 

agencies to withhold documents protected by traditional 

discovery privileges, see Baker & Hostetler LLP v. U.S. Dep’t 

of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006). Loving 

then filed a second administrative appeal with the Department 

of Defense. When the Department failed to respond, Loving 

filed suit under FOIA, leading the two agencies to release 

hundreds of documents and withhold many others. The 

agencies also filed Vaughn indexes describing the withheld 

documents, see Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. 

Cir. 1973), and moved for summary judgment. Loving 

narrowed his request to ten documents and cross-moved for 

summary judgment to compel disclosure. After the two 

agencies identified six of these ten documents as “drafts,” 

Loving narrowed his request to the four remaining 

documents. The disclosure of these four documents was the 

only matter disputed in the district court and is the only issue 

before us. 

As described in the Vaughn indexes, two of the disputed 

documents reflect the sequential transmission of Loving’s 

case—and recommendations on it—to the President from the 

Army Judge Advocate General and the Secretary of the Army. 

The first step in this sequence, Document 408, is a 
4 

memorandum from the Army Judge Advocate General to the 

Secretary of the Army, offering “advice outlining the PVT 

Loving case in detail and providing a recommendation 

whether the [Secretary of the Army] should recommend 

approval of the death penalty to the President.” Col. Flora D. 

Darpino Decl. Attach., Mar. 30, 2007. Document 499, in 

turn, is a one-page memorandum from the Army Secretary 

forwarding Document 408 to the President, see Darpino Decl. 

¶ 33, and providing its own “recommendation regarding 

whether or not PVT Loving’s death sentence should be 

approved,” Darpino Decl. Attach. The third disputed record, 

Document 86, is a memorandum from the Defense Secretary 

to the President concerning “Military Court-Martial Capital 

Case Forwarded for Action, United States v. Dwight J. 

Loving.” Robert E. Reed Decl. Ex. A, Mar. 27, 2007. 

Finally, Document 87 is a one-page memorandum from the 

Department of Defense Office of General Counsel to the 

White House Counsel concerning “The President’s Action in 

Two Military Capital Cases.” Reed Decl. Ex. A. 

Finding Documents 408, 499, and 86 protected by the 

presidential communications privilege and Document 87 

protected by the deliberative process privilege, the district 

court concluded that FOIA Exemption 5 shielded each of the 

disputed documents from disclosure. See Loving v. Dep’t 

of Def., 496 F. Supp. 2d 101, 107–09 (D.D.C. 2007). It 

therefore granted the government’s motion for summary 

judgment and denied Loving’s. Id. at 110.

Loving now appeals. We review the district court’s 

summary judgment ruling de novo, remaining “mindful that 

the ‘burden is on the agency’ to show that requested material 

falls within a FOIA exemption,” and affirming only if we 

detect no genuine issue of material fact. Petroleum Info. 
5 

Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. 

Cir. 1992) (quoting § 552(a)(4)(B)). 

II. 

FOIA directs that “each agency, upon any request for 

records . . . shall make the records promptly available to any 

person” unless the requested records fall within one of the 

statute’s nine exemptions. § 552(a)(3)(a). Exemption 5, the 

only exemption at issue here, allows the government to 

withhold “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.” § 552(b)(5). 

As we have explained, Exemption 5 “incorporates the 

traditional privileges that the Government could assert in civil 

litigation against a private litigant”—including the 

presidential communications privilege, the attorney-client 

privilege, the work product privilege, and the deliberative 

process privilege—and excludes these privileged documents 

from FOIA’s reach. Baker & Hostetler LLP, 473 F.3d at 321. 

Because Exemption 5 covers “those documents, and only 

those documents, normally privileged in the civil discovery 

context,” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 

(1975), it does not protect documents that are “‘routinely’ or 

‘normally’ disclosed” in civil discovery, Dep’t of Justice v. 

Julian, 486 U.S. 1, 12 (1988) (quoting FTC v. Grolier Inc., 

462 U.S. 19, 26 (1983)). 

Exemption 5 incorporates two executive privileges that 

are relevant here: the presidential communications privilege 

and the deliberative process privilege. See Baker & Hostetler 

LLP, 473 F.3d at 321. The presidential communications 

privilege, a “presumptive privilege for [p]residential 

communications,” United States v. Nixon, 418 U.S. 683, 708 

(1974), preserves the President’s ability to obtain candid and 

informed opinions from his advisors and to make decisions 
6 

confidentially, see Judicial Watch, Inc. v. Dep’t of Justice, 

365 F.3d 1108, 1112 (D.C. Cir. 2004). As such, the privilege 

protects “communications directly involving and documents 

actually viewed by the President,” as well as documents 

“solicited and received” by the President or his “immediate 

White House advisers [with] . . . broad and significant 

responsibility for investigating and formulating the advice to 

be given the President.” Id. at 1114. The privilege covers 

documents reflecting “presidential decisionmaking and 

deliberations,” regardless of whether the documents are 

predecisional or not, and it covers the documents in their 

entirety. In re Sealed Case, 121 F.3d 729, 744–45 (D.C. Cir. 

1997). 

The deliberative process privilege protects “documents 

reflecting advisory opinions, recommendations and 

deliberations comprising part of a process by which 

governmental decisions and policies are formulated.” Dep’t 

of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 

1, 8 (2001) (internal quotation marks omitted). For the 

deliberative process privilege to apply, the material must be 

“predecisional” and “deliberative.” In re Sealed Case, 121 

F.3d at 737. Unlike the presidential communications 

privilege, the deliberative process privilege does not protect 

documents in their entirety; if the government can segregate 

and disclose non-privileged factual information within a 

document, it must. Army Times Publ’g Co. v. Dep’t of Air 

Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993). 

In support of his claim to the requested documents, 

Loving relies on Department of Justice v. Julian, 486 U.S. 1 

(1988), in which the Supreme Court held that Exemption 5 

does not protect presentence investigation reports from 

disclosure to prisoners who are the subjects of the reports. 

Insisting that the President’s action under Article 71(a) 
7 

represents the “ultimate sentencing” in a military capital case, 

Appellant’s Opening Br. 11, Loving argues that the 

documents he seeks are akin to the presentence investigation 

reports at issue in Julian. If we accept Loving’s premise, his 

rationale is simple enough: these documents, like the 

presentence investigation reports at issue in Julian, contain 

sentencing recommendations. Indeed, although the 

government disputes Loving’s characterization of the 

President’s Article 71(a) authority, it denies neither the 

advisory nature of these documents nor the role they play in 

Article 71(a) actions. 

But the analogy to Julian requires a second step. In 

Julian the Court relied on the fact that the government had 

previously shared the presentence investigation reports at 

issue with the requesters—two prisoners seeking access to 

their own reports—and that Federal Rule of Criminal 

Procedure 32(c), as well as the Parole Act, 18 U.S.C. § 

4208(b) (1982), required as much. 486 U.S. at 11–14. 

Because of this, the Court concluded, the documents were 

“routinely available” to the prisoners, if not the public at 

large. Julian, 486 U.S. at 13 (internal quotation marks 

omitted). Thus, although the Court assumed that the 

documents would be privileged and exempt from disclosure if 

third parties were to request them, see 486 U.S. at 12–14, it 

concluded that there “simply [was] no privilege preventing 

disclosure” to the prisoners themselves. Id. at 13–14; see also 

id. at 13 (“Congress has strongly intimated, if it has not 

actually provided, that no such privilege should exist.”). 

Loving argues that the same is true here, though the law 

otherwise compelling disclosure, he contends, comes not from 

statute or rule of criminal procedure (as in Julian) but from 

the Constitution itself. Specifically, Loving relies on Gardner 

v. Florida for the proposition that a defendant is “denied due 
8 

process of law when the death sentence [i]s imposed . . . on 

the basis of information which [the defendant] ha[s] no 

opportunity to deny or explain.” 430 U.S. 349, 362 (1977). 

Because the requested documents contain the precise kind of 

“capital sentencing recommendation[s]” that “would routinely 

or normally be available to [him] in order for the capital 

sentencing process to satisfy due process of law,” Loving 

contends that the documents he requests are “routinely 

available” to him within the meaning of Julian and therefore 

subject to disclosure under FOIA. Appellant’s Opening Br. 

23. 

We need not decide whether Gardner gives Loving the 

right he claims, for Loving’s constitutional rights as a capital 

prisoner affect the merits of his FOIA request only if Julian in 

fact applies to this case. It does not. Although the Court 

suggested in Julian that FOIA sometimes compels the 

government to comply with one person’s request for 

disclosure even though it could properly refuse an identical 

request from anyone else, the Court has since emphasized that 

FOIA rarely permits such distinctions. In Department of 

Justice v. Reporters Committee for the Freedom of the Press, 

the Court clarified that the requester’s identity matters only 

where, as in Julian, “the objection to disclosure is based on a 

claim of privilege and the person requesting disclosure is the 

party protected by the privilege.” 489 U.S. 749, 771 (1989); 

see also United Techs. Corp. v. FAA, 102 F.3d 688, 692 (2d 

Cir. 1996) (“Julian applies only where the Government’s 

‘objection to disclosure is based on a claim of a privilege and 

the person requesting disclosure is the party protected by the 

privilege. . . .’” (quoting Reporters Comm., 489 U.S. at 771)). 

Otherwise, “[t]he identity of the requesting party has no 

bearing on the merits” of a FOIA request at all. Reporters 

Comm., 489 U.S. at 771. 
9 

Here the “party protected by the privilege,” id., is not 

Loving but rather the President of the United States. Loving’s 

identity as a capital prisoner subject to Article 71(a) 

proceedings therefore “has no bearing on the merits” of his 

FOIA request, id., nor do any constitutional rights that 

Gardner may afford him. Simply put, for the purposes of his 

FOIA request, Loving is no different than any other requester. 

In sum, when executive privileges are at stake, Julian 

does nothing to alter standard Exemption 5 analysis, which 

asks only whether a document is “normally privileged,” FTC 

v. Grolier, 462 U.S. at 28 (internal quotation marks omitted), 

regardless of the requester’s identity or particular need for the 

document, Sears, Roebuck & Co., 421 U.S. at 149 & n.16. 

Thus, the sole question we face is whether the requested 

documents would normally fall within the presidential 

communications privilege or the deliberative process 

privilege. We turn to that inquiry now. 

III. 

Having rejected Loving’s primary argument, we can 

easily affirm the district court’s ruling that Documents 408, 

499, and 86 are exempt from disclosure based on the 

presidential communications privilege. Documents 499 and 

86 are memoranda from the Army and Defense Secretaries 

directly to the President advising him on his Article 71(a) 

review of Loving’s capital sentence. Such memoranda fall 

squarely within the presidential communications privilege 

because they “directly involve” the President, Judicial Watch, 

365 F.3d at 1114, and their confidentiality “ensure[s] that 

presidential decision-making is of the highest caliber, 

informed by honest advice and full knowledge,” In re Sealed 

Case, 121 F.3d at 750. 
10 

Loving challenges the privilege’s applicability to these 

two documents, quoting Judicial Watch for the proposition 

that “documents that are not ‘solicited and received’ by the 

President or his Office are instead protected against 

disclosure, if at all, by the deliberative process privilege,” 365 

F.3d at 1112, and claiming that no evidence demonstrates that 

the President “solicited and received” these two memoranda. 

But this requirement applies only to “internal agency 

documents,” that is, “agency documents that are not submitted 

for Presidential consideration.” Id. (emphasis added). 

Nothing in Judicial Watch disturbs the established principle 

that communications “directly involving” the President, id. at 

1114—like Documents 499 and 86—are entitled to the 

privilege, regardless of whether the President solicited them. 

See In re Sealed Case, 121 F.3d at 751–52 (taking as 

indisputable that the presidential communications privilege 

includes “communications that directly involve the 

President”). 

 Although not addressed directly to the President, 

Document 408 also falls within the presidential 

communications privilege. That document, which contains 

the Judge Advocate General’s recommendation on Loving’s 

capital sentence, was forwarded by the Army Secretary to the 

President. We agree with the district court that the President 

solicited and received Document 408 in a manner sufficient to 

bring it within the presidential communications privilege. 

Rule 1204(c)(2) of the Rules for Courts-Martial directs the 

Judge Advocate General to submit his recommendation so the 

President may act upon it, see MANUAL FOR COURTSMARTIAL, R.C.M. 1204(c)(2) (“[T]he Judge Advocate 

General shall transmit . . . the recommendation of the Judge 

Advocate General to the Secretary concerned for the action of 

the President.”), and it is the President who promulgates the 

Rules for Courts-Martial, see Loving, 517 U.S. at 770; 10 
11 

U.S.C. § 836(a). Furthermore, contrary to Loving’s 

argument, Document 408 does not lose its privileged status 

simply because it traveled up the chain of command before 

the President received it. To be sure, Judicial Watch does 

suggest that documents subject to “various stages of 

intermediate review before . . . submi[ssion]” to the President 

might implicate the “confidentiality and candor concerns” 

animating the presidential communications privilege less so 

than direct communications with the President. 365 F.3d at 

1115. But it announced this principle with respect to 

“documents and recommendations . . . that are not submitted 

[to] the President”—rather than those, like Document 408, 

that ultimately are. Id. at 1117; see also id. (“[A]ny . . . 

documents, reports, or recommendations that the [agency] 

submits to the Office of the President . . . remain protected.”). 

Loving argues that even if Documents 408, 499, and 86 

qualify for the presidential communications privilege, that 

privilege is “‘presumptive’ and ‘can be overcome by a 

sufficient showing of need.’” Id. Appellant’s Opening Br. 26-

27 (quoting Judicial Watch, 365 F.3d at 1113–14). The 

district court concluded, and the government now argues, that 

this principle is “inapplicable to FOIA, where the particular 

need of the applicant is not relevant.” Loving, 496 F. Supp. 

2d at 108. Although we have yet to address this question with 

respect to the presidential communications privilege, we have 

said with respect to the deliberative process privilege that “the 

particular purpose for which a FOIA plaintiff seeks 

information is not relevant in determining whether FOIA 

requires disclosure.” In re Sealed Case, 121 F.3d at 737 n.5. 

Because the presidential communications privilege “is more 

difficult to surmount” than the deliberative process privilege, 

id. at 746, we conclude that it, too, is insurmountable here. 
12 

This brings us finally to Document 87—a one-page 

memorandum from the Department of Defense Office of 

General Counsel to the Counsel to the President, which the 

district court found exempt from disclosure under the 

deliberative process privilege. Although not disputing that 

the document qualifies for the deliberative process privilege, 

Loving argues that the public interest in the document 

overcomes the privilege. He also argues that even if the 

privilege applies, the district court erred by failing to inspect 

the document to determine whether it contains segregable 

factual portions that may be disclosed. 

In re Sealed Case forecloses the first argument for the 

reasons described above. 121 F.3d at 737 & n.5. The second 

claim fails as well. Although Loving is correct that the 

government has the “burden of demonstrating that no 

reasonably segregable information exists within . . . 

documents withheld” under the deliberative process privilege, 

Army Times, 998 F.2d at 1068, district courts have “broad 

discretion” to decide whether in camera review is necessary 

to determine whether the government has met its burden, 

Armstrong v. Executive Office of the President, 97 F.3d 575, 

577–78 (D.C. Cir. 1996). Here the district court relied on the 

very factors that we have previously deemed sufficient for 

this determination, i.e., the description of the document set 

forth in the Vaughn index and the agency’s declaration that it 

released all segregable material. See Johnson v. Executive 

Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002) 

(“The combination of the Vaughn index and the affidavits . . . 

are sufficient to fulfill the agency’s obligation to show with 

‘reasonable specificity’ why a document cannot be further 

segregated.”). The district court thus acted well within its 

discretion when, without inspecting the document itself, it 

ruled that the government had demonstrated that Document 

87 contained no segregable portions. 
13 

IV.

Because FOIA Exemption 5 covers the four documents 

Loving seeks, and because Loving sued under FOIA alone, 

we affirm. 

So ordered.