Judicial Watch, Inc. v. DOD, No. 18-5017, 2019 WL 321027 (D.C. Cir. Jan. 24, 2019) (Rogers, J.)

Judicial Watch, Inc. v. DOD, No. 18-5017, 2019 WL 321027 (D.C. Cir. Jan. 24, 2019) (Rogers, J.)

Re:  Request for records concerning search, raid, capture, and killing of terrorist leader

Disposition:  Affirming district court's grant of government's motion for summary judgment

• Exemption 5, Presidential Communications Privilege:  The Court of Appeals for the District of Columbia Circuit holds that "because the presidential communications privilege applies to the totality of the five memoranda that [the requester] requests, and the question of segregability of non-exempt material is therefore not presented, [the court] affirm[s] the grant of summary judgment and the denial of the motion to alter or amend the judgment."  The court finds that, "[h]ere, the extraordinary decision confronting the President in considering whether to order a military strike on Osama bin Laden's compound in Pakistan cries out for confidentiality, and the district court's application of the presidential communications privilege rested on consideration of the appropriate factors[.]"  "The decision required the exercise of an informed judgment by the President as Commander in Chief, U.S. CONST. art. 2, § 2, on a highly sensitive subject with serious direct and collateral consequences for foreign relations that required a high degree of protection for 'the President's confidentiality and the candor of his immediate White House advisers[.]'"  "Declarations filed with the motion for summary judgment explained that the President and his immediate advisers solicited and received the advice of the top national security lawyers from the Department of Defense, CIA, and National Security Council relating to a potential military counterterrorism operation."  "The legal advice memorialized in each memorandum concerned that covert military operation and was shared only with the President and his closest advisers."  "The non-disclosure of that advice thereby protects 'the President's ability to obtain frank and informed opinions from his senior advis[e]rs,' an 'acute [concern] in the national security context, particularly in situations . . . where the President is formulating a decision on a sensitive operation with substantial foreign policy impacts.'"