A sentencing memo sent from the Department of Defense to President Bush in a capital murder case involving a former Army private should be a public record under the Freedom of Information Act, a Steptoe & Johnson lawyer argued today in the U.S. Court of Appeals for the D.C. Circuit.
The lawyer, Seth Watkins, of counsel with Steptoe & Johnson, argued convicted killer Dwight Loving—a former Army private who fatally shot two cab drivers in Texas in 1988—is entitled to review the accuracy of the 31-page memo and correct any errors. “I’m not saying there is a waiver of privilege. There is no privilege,” Watkins said today before Circuit Judges David Tatel, Judith Rogers, and Stephen Williams.
Justice Department lawyer Michael Raab said the documents Loving has requested are privileged under the authority of the executive branch. President Bush has not decided whether to support the death sentence for Loving, who is one of nine former servicemen on death row stemming from convictions in military court.
Rogers raised the issue of context and public interest, saying that “it’s a request to get documents that affects a person’s life.” But Raab argued the context of the records request is irrelevant to rebutting the privilege asserted in keeping the documents confidential. Memos sent to the president are not routinely available, Tatel noted. The appellate judges did not immediately rule.
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