Reply Brief — Loving v. Department of Defense (No. 08-1476)

Supreme Court, U.S.

FILED

No. 08-1476 SEP 3 - 2009

|_OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

Dwicut J. LOVING,

Petitioner,

Uv.

UNITED STATES DEPARTMENT OF DEFENSE AND

Unitrep States DEPARTMENT OF THE ARMY,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO TILE

UNITED STATES Court OF APPEALS FOR THE

DisTRicT OF COLUMBIA CIRCUIT

REPLY BRIEF

Of Counsel: SETH A. WATKINS

Counsel of Record

CHARLES F! SCHILL

STEPTOE & JOHNSON LLP

1330 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 429-3000

TERESA L. NORRIS

BLUME WEYBLE & Norris, LLC

PO. Box 11744

Columbia, SC 29211

(S03) 765-1044

Attorneys for Petitioner

September 9, 2009

5107 g

TABLE OF CITED AUTHORITIES

ARGUMENT

1

TABLE OF CONTENTS

A. The Case at Bar Is a FOIA Action, Nota

B.

CONCLUSION

“Constitutional Challenge” Reserved for

Loving’s Criminal Case. ...............

The President’s Responsibilities Under

Article 71l(a) Transcend Clemency

Inasmuch as the President Serves as the

Ultimate Capital Sentencing Authority. ...

Petitioner Is Not “Waiving” Any

Executive Branch Privilege Over the Four

Withheld Documents Since No Privilege

Can Rightfully Be Asserted.

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12

TABLE OF CITED AUTHORITIES

Page

Cases:

FBI v. Abramson, 456 U.S. 615 (1982) ........ 6

Ford v. Wainwright, 477 U.S. 399 (1986) ...... 7

Garcia v. United States, 469 U.S. 70 (1984) .... &

Gardner v. Florida, 430 U.S. 349 (1977) ...1, 4, 5, 6, 12

Jackson v. Taylor, 353 U.S. 569 (1957) ........ 12

John Doe Agency v. John Doe Corp., 493 U.S.

146 (1968) . oc eee kk... 6

Lamie v. United States Trustee, 540 U.S. 526

(2004) .. ss 06 ew. 8

Loving v. United States, 517 U.S. 748 (1996)... 5, 11

State v. Bosworth, 360 So. 2d 173 (La. 1978) ... 6

U.S. Dep’t of Justice v. Julian, 486 U.S. 1 (1988)

SP 4

United States Dep’t of Justice v. Reporters

Committee for Freedom of the Press, 489 U.S.

749 (1988) ... ee ess. 6

Wooley v. United States, 1857 U.S. Ct. Cl. LEXIS

148 (Ct. Cl. Eigel ee a. ....... 1]

Ill

Cited Authorities

Pave

Statutes:

5 U.S.C. 3 ee? Ce) kincasuexse asec oe ]

1 UDA, F OTR Ce) ove ctckcesc acs biees passim

3? Tery. Admin. Code §§ 148.41-148.48 ......... 10

Kan. Stut. Ann. §§ 22-3701 — 22-8705 .......... 10

Other Authorities:

| C.M.RAA FO MISS) gobi ccces bdeee ree 3

Barbara Barrett, Bush OKs Soldier’s Execution,

The News & Observer, July 29, 2008 ........ 7

Paul H. Turney, New Developments in Military

Capital Litigation: Four Cases Highlight the

Kundamentals, 2000 Army Law. 108 ........ 1]

S. Hem. No. Bs-b (ioe) sc ..ccc ee eee eno g

]

ARGUMENT

It must be admitted that the question of compulsory

disclosure vel non of capital sentencing recommendations

tc the subject of those recommendations was answered

by this Court long ago in Gardner v. Florida, 430 U.S. 349

(1977). Respondents advance not a single line of reasoning

to elucidate why the military justice system should be

immune to the strict disclosure rule of Gardner as

predicated on the Due Process Clause. Now comes

Petitioner, a military death sentenced Army Private whose

life hangs in the balance as the President, the ultimate

sentencing authority in military capital cases, considers in

secret four sentencing recommendations made by the

prosecution. It is the withholding of these documents under

5 U.S.C. § 552(b)(5) (2006) that petitioner contests in this

FOIA case.

Petitioner concurs with non-profit amicus curiae

National Institute ci Military Justice (“NIMJ”) in urging

that “there is a pressing need for this Court to clarify

... the functioning of FOIA when court-martial capital

prisoners seek access to their own presidential

sentencing recommendations.” (NIMJ Br. 6.)

“The Court should grant certiorari to consider and

clarify the applicability of executive privileges ... where

the President is required to make an adjudicatory

decision about whether to approve of a death sentence.”

Ud. at 23.)

To be sure, this is not a run-of-the-mill FOIA. dispute;

the mere assertion vi presidential privilege belies any

specter of triviality. But it is obnoxious both to the plain

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

2

Justice (“UCMJ”) and to this Court’s death penalty

jurisprudence to argue that just because the

Commander: in-Chief hails from the Executive Branch,

his role in capital courts-martial is anything short of a

sentence approval authority. The inescapable conclusion

that the President’s statutory review of a military death

sentence extends well beyond clemency leads to the

inevitable corollary that capital sentencing

recommendations forwarded to him by the prosecutors

at the Department of Defense and the Army cannot be

eligible for privilege.

By arguing that (1) merely because the Commander-

in-Chief is the recipient of the four withheld documents,

they must be privileged (Opp. Br. 9) and (2) Loving’s

“countervailing need” is irrelevant (Opp. Br. 8), the

government dodges the point argued by Petitioner.

Specifically, the nature of the documents, as capital

sentencing recommendations, is such that they are

simply ineligible to be sheltered from Loving under cover

of privilege. As a first-party FOIA requester, having

sought these documents specifically under this

disclosure statute, Loving is the only holder of a

cognizable privilege (privacy) over these documents.

Withheld by respondents under FOIA Exemption 5

executive privileges—presidential communications and

deliberative process—the general character of the four

documents in this case has been admitted on the record

and thus is not at issue.’ The government already

' Respondents incorrectly state that “petitioner does not

dispute that the deliberative process privilege applies to

Document 87.” (Opp. Br. 5 n.2.) To the contrary, Loving has

(Cont'd)

3

described withheld record #408 as “[t]he final advice

and recommendation” from The Judge Advocate General

of the Army, forwarded to the President, regarding “the

approval or disapproval of PVT Loving’s death

sentence.” (C.A. App. 128, 126.) Withheld record #499,

similarly forwarded to the President, has been

described as the Secretary of the Army’s

“recommendation . .. whether to approve plaintiff

Private Dwight Loving’s death sentence.” (C.A. App.

126, 212, 300-301, 312-314.) Fina!ly, the government has

described withheld records #86 and #87 as relating to

“an actual recommendation regarding Loving’s death

sentence.” (C.A. App. 295, 297.) Indeed, as recognized

by the court of appeals, the government “denies neither

the advisory nature of these documents nor the role they

play in Article 71(a) actions.” (Pet. App. 8a.)

Concomitantly, the government does not dispute

that the issue before the Court is readily capable of

repetition, with a not insubstantial queue of

servicemembers currently on death row. Nor does the

government dispute that the very class of documents

now being withheld was previcisly treated as

unprivileged and that the military’s capital sentencing

recommendations sent to the President previously were

even published “for the information of all concerned.”

(Cont'd)

consistently maintained that no privilege applies to any of the

disputed documents. Loving also has argued that if the

presumptive deliberative process privilege applies to withheld

record #87, the privilege is overcome due to the nature of this

document.

2 1 C.M.R.(A.F) ii (1949).

In their 5% pages of “argument,” respondents

decline to address the implications of Gardner to the

legitimacy of any governmental privilege claim over the

four withheld records. By its silence, the government

has failed to show why the question presented does not

merit certiorari. Nor is the appropriateness of certiorari

in this case diminished by the respondents’ grumble that

Loving relies on “nineteenth century authorities.”

(Opp. Br. 10.) The previous conclusions of this Court and

an Attorney General, that in the military justice system

Presidential approval of a sentence is judicial in

character, have the same force of logic today as they did

then.

Petitioner’s arguments rest squarely on the

shoulders of Gardner’s prohibition against secret

capital sentencing recommendations and this Court’s

subsequent holding in U.S. Dep't of Justice v. Julian

that “there simply is no privilege preventing disclosure”

of sentencing reports to first-party FOIA requesters.

456 U.S. 1, 14 (1988).

A. The Case at Bar Is a FOIA Action, Not a

“Constitutional Challenge” Reserved for

Loving’s Criminal Case.

Respondents suggest that there is no need to assess

whether the four withheld documents, as capital

sentencing recommendations, are eligible subject

matter to which any privilege may attach preventing

disclosure to Loving. Portraying this FOIA action

instead as a “constitutional challenge” (Opp. Br. 10) and

arguing that “[pletitioner may seek judicial review of

his constitutional claims ...[bJut FOIA does not furnish

5

petitioner with a cause of action to litigate such claims”

(Opp. Br. 5), the federal respondents strain credulity.

Petitioner has made abundantly clear that this

dispute is about the government’s disclosure obligations

to a first-party requester under the FOIA statute. Yet,

the federal respondents seek to re-spin the present

dispute as an “[im]proper vehicle through which to

litigate petitioner’s due process claim.” (Opp. Br. 9.)°

It cannot seriously be argued that the most basic of

constitutional rights recognized by the Court in Gardner

are somehow inapplicable to a servicemember facing

possible execution.‘

The fundamental disagreement between the parties

to this action is not whether Loving’s due process rights

have been violated. The President has not yet acted on

Loving’s case, so from that perspective, no harm has

yet occurred as a result of the non-disclosure thereby

necessitating habeas proceedings. Rather, at the heart

of the question presented lies a basic disagreement

suggest that the President is constitutionally required to

disclose any documents that inform his exercise of such

discretion, let alone that the proper avenue for litigating such a

constitutional challenge is an action under FOIA.”),

*“(Wihen the punishment may be death, there are

particular reasons to ensure that the men and women of the

Armed Forces do not. by reason of serving their country receive

less protection than the Constitution provides for civilians.”

Loving v. United States, 517 U.S. 748, 774 (1996) (Stevens, J.,

with whom Souter, J., Ginsburg, J., and Breyer, J., joined,

concurring).

6

about the nature of each of the four withheld documents.

This Court has made clear that a FOIA exemption

analysis “turn[s] on the nature of the requested

document... .” United States Dep't of Justice v.

Reporters Committee for Freedom of the Press, 489 U.S.

749, 772 (1989).° Specifically, while the government

contends that “the documents at issue satisfy the

elements of privileges encompassed by Exemption 5”

(Opp. Br. 7), Petitioner contends that the documents in

question fit squarely within the constitutional rule,

flowing from Gardner, that capital sentencing

recommendations are per se unprivileged.” In other

words, as a precondition to undertaking any element-

by-element privilege analysis, a document must be of a

nature susceptible to the privilege sought to be applied.

That President Eisenhower parted ways with his

predecessors and decided to maintain military capital

sentencing recommendations in secret (Petitioner’s Br.

15-16) does not excuse this practice today. For we now

know from this Court’s 1977 holding in Gardner that

* See also FBI v. Abramson, 456 U.S. 615, 626 (1982) (“LI ]n

determining whether information in a requested record should

be released, the Act consistently focuses on the nature of the

information and the effects of disclosure.”); John Doe Agency

v. John Doe Corp., 493 U.S. 146, 157 (1989) (a FOIA analysis

requires “consideration of the nature of each particular

document”).

© See, e.g., State v. Bosworth, 360 So. 2d 173, 175-77 (La.

1978) (identifying “important due process and fairness values”

and citing Gardner when mandating disclosure of sentencing

reports even in the face of a state statute otherwise requiring

that such reports “shall be privileged and shall not be disclosed”

to the subject).

7

capital sentencing recommendations simply cannot be

maintained in secret in order for sentencing to pass

muster under the Due Process Clause. Their disclosure

is a matter ex necessitate legis. “Once a substantive

right or restriction is recognized in the Constitution,

therefore, its enforcement is in no way confined to the

rudimentary process deemed adequate in ages past.”

Ford v. Wainwright, 477 U.S. 399, 410 (1986). The

practice of not disclosing military capital sentencing

recommendations forwarded to the President has only

survived due to the inactivity of the military death

penalty over the last fifty years.’ It cannot still be lawful

under Gardner,

B. The President’s Responsibilities Under Article

71(a) Transcend Clemency Inasmuch as the

President Serves as the Ultimate Capital

Sentencing Authority.

Article 71(a) of the UCMJ is crystal clear when

Stating that “[i]f 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.” 10 U.S.C. § 871(a) (2006) (emphasis added).

Yet the government apparently finds ambiguity in these

words (without specifying where), turning to the

legislative history of the Military Justice Act of 1983 and

providing an out-of context quote to allege that the

Half a century passed between 1957 when President

Bisenhower approved execution of a military death sentence

and the only other such approval to date, by President Bush in

2008. See, e.g., Barbara Barrett, Bush OKs Soldier’s Execution,

The News & Observer, July 29, 2008.

8

President’s Article 71(a) powers merely concern

“clemency.” (Opp. Br. 10.) This cannot be correct.

As a threshold matter, the government’s resort to

legislative history is improper because the words of

Article 71(a) are plain. See, e.g., Garcia v. United States,

469 U.S. 70, 75 (1984). The statute means what it says—

a servicemember’s death sentence may only be carried

out if the President expressly approves it, and the option

to disapprove the sentence therefore remains available.

Article 71(a) goes on to state that “|iJn such a case” in

which the death sentence is approved “the President

may commute, remit, or suspend the sentence, or any

part thereof, as he sees fit.” Thus, optionally, Presidential

clemency can follow Presidential approval (e.g., the

President can “commute” the death sentence to life in

prison). The statute, on its face, does not support the

government’s conclusion that Presidential review under

Article 71(a) is confined to clemency.

“[OJnly the most extraordinary showing of contrary

intentions from [the legislative history] would justify a

limitation on the ‘plain meaning’ of the statutory

language.” Garcia, 469 U.S. at 75. When, as here, “the

terms of a statute [are] unambiguous, judicial inquiry is

complete, except in ‘rare and_ exceptional

circumstances.” Jhid. (citations omitted): see also Lamie

v. United States Trustee, 540 U.S. 526, 536 (2004) (“We

should prefer the plain meaning since that approach

respects the words of Congress. In this manner we avoid

the pitfalls that plague too quick a turn to the more

controversial realm of legislative history.”).

g

Yet even if the words of the statute were unclear,

nothing in the legislative history compels a reading of

Article 71(a) that limits the President’s role to one of

clemency. The government relies on a Senate committee

report concerning the Military Justice Act of 1983, which

states:

This legislation continues the present

requirement that death sentences receive

Presidential approval and that dismissal of an

officer be approved by the Secretary of the

Military Department concerned before such

sentences are executed under Article 71. Such

reviews are conducted after all legal reviews

are completed, and do not involve a review of

the legality of the proceedings; rather, they

are conducted as a matter of clemency.

S. Rep. No. 98-53, at 24 (1983).

Taken alone, that quotation is misleading. Taken in

combination with the immediately following text of the

report, that quotation is given necessary context:

In such cases, the remaining portion of the

sentence may be executed when approved by

the convening authority, but the President (in

death cases) and the Secretary (in dismissal

cases), as amatter of clemency, may remit any

previously executed portion of the sentence.

10

Article 71(a) is amended ....The term “remit”

is used in this section in the sense of the power

to pardon.

Id. at 24-25 (emphasis added).

As Article 71(a) provides, only “[iJn such a case” as

the President first approves of the death sentence may

he “commute, remit, or suspend the sentence.” And the

term “remit” is specifically implicated with respect to

the President’s pardon power. This is the optional

clemency to which the legislative history refers.

The government separately attempts to shore up

its flawed interpretation of the statute by analogizing

the President’s role to that of a state governor

considering ciemency. (Opp. Br. 10.) But, to reiterate,

only “[iJn such a case” as the mandatory Presidential

review has resulted in approval of the death sentence

does the President turn to consideration of mercy. It is

only after sentence “approval” has occurred that the

President, like a governor, may then consider clemency.

Otherwise, the President and a governor have powers

over death sentences that bear no resemblance to one

another. For example, in Texas (where Loving’s crimes

were committed) and Kansas (where Loving currently

is incarcerated), execution of a death sentence does not

require approval from the governor, and gubernatorial

clemency requests are entirely optional. See, e.g., 37 Tex.

Admin. Code §§ 143.41-143.43; Kan. Stat. Ann. §§ 22-

3701 — 22-3705.

While “the President possesses wholly discretionary

authority as to his decision-making process” (Opp. Br.

11

10), he has authority to disapprove a sentence and thus

not reach the issue of whether, in his discretion, clemency

should be granted. Of similar impertance is the

undeniable truth that springs from Article 71(a): without

Presidential action, a military execution cannot occur.

In sum, the President’s role in the military justice

system vis-a-vis the death penalty is multifaceted.

“Pursuant to Article 71, the President acts as the final

review, appeal and clemency authority for a soldier

sentenced to death.” Paul H. Turney, New Developments

in Military Capital Litigation: Four Cases Highlight

the Fundamentals, 2000 Army Law. 103, 104. The

President’s responsibilities first lie in determining

whether to approve the death sentence. When the

President acts in the military justice system, “if he

approves of the proceedings of the court, his approval,

like a judgment of a court of the last resort, is final and

conclusive, and there can be no appeal from it.” Wooley

v. United States, 1857 U.S. Ct. Cl. LEXIS 148, at *5

(Ct. Cl. Dee. 15, 1857).

In defining military law and discipline, the will of

Congress is entitled to “the highest deference.” Loving,

517 U.S. at 768. It is Congress that established the

Article 71(a) statutory duty requiring that a military

death sentence must be “approved” by the Commander-

in-Chief, and this act plainly is tantamount to

pronouncing the ultimate sentence on a servicemember.”

* Rule for Courts-Martiai 1207 only requires that “[n]o part

of a court-martial sentence extending to death may be executed

until approved by the President.” In contrast, Article 71(a) not

only requires approval before execution of the death sentence

but further permits the President to commute or remit the

sentence.

12

It is for these reasons that the President has distinct

and unmistakable death sentencing responsibility in the

military justice system. To deny that the scope of the

President’s statutory review includes deciding whether

to approve or disapprove a death sentence would be

“to shut one’s eyes to the realities of military law and

custom.” Jackson v. Taylor, 353 U.S. 569, 579 (1957).

In Article 71(a), as with any other statutory provision of

the UCMg, “liJt is not for us to question the judgment

of the Congress in selecting the process it chose.”

Id. at 580.

C. Petitioner Is Not “Waiving” Any Executive

Branch Privilege Over the Four Withheld

Doc» ments Since No Privilege Can Rightfully

Be Asserted.

It is a non sequitur to argue that the Exemption 5

executive privileges asserted by the government in this

FOIA case are invulnerable to attack on the basis of

the constitutional mandate recognized in Gardner. Yet

the government argues that “[t]hose privileges belong

to the President and the Executive Branch, not

petitioner, and petitioner has no right to ‘waive’ the

{uxecutive Branch privileges at issue.” (Opp. Br. 9.)

Waiver presumes that a legitimate privilege may acvually

attach. But the four withheld documents, as already

explained, are associated with a protected class and are

per se unprivileged with respect to first-party requester

Loving. Quite simply, he is the subject of those capital

sentencing recommendations.

13

Petitioners argue that “[clourts do not engage in

balancing or weighing of interests to determine whether

particular documents are covered by a litigation

privilege and therefore not subject to public disclosure

under Exemption 5.” (Opp. Br. 8.) This again misses the

point. There is nothing to weigh if the only party

protected by a cognizable privilege is the first-party

FOIA requester.

CONCLUSION

For the reasons given in Loving’s petition and this

reply, the petition for a writ of certiorari should be

granted.

Respectfully submitted,

Of Counsel: Seto A. WArKINS

TERESA L. NorrRIs Counsel of Record

Bisa Ween P & CHARLES F. SCHILL

Torrie LLC STEPTOE & JOHNSON LLP

N s, LLC

oe ae ‘7 1744 1330 Connecticut Ave., N.W.

‘alambia. SC: Washington, D.C. 20036

Columbia, SC 29211

(803) 765-1044 (202) 429-3000

Attorneys for Petitioner