Government worker fired for criticism unrelated to his job of Guantanamo military commissions

The ACLU sent a letter to the Library of Congress and the Congressional Research Service (CRS) December 4 on behalf of Col. Morris Davis, former chief prosecutor for the Guantánamo military commissions, who was terminated from his job at CRS because of opinion pieces he wrote about the commissions system that ran in the Wall Street Journal and the Washington Post.

Davis resigned from his position in the military commissions in October 2007 because he believed that the system was fundamentally flawed. He then became a vocal critic of the commissions, writing articles, giving speeches and testifying before Congress.

The following year, Davis began working as the Assistant Director of the Foreign Affairs, Defense and Trade Division at CRS, a department within the library that provides experts to assist members of Congress and committee staff in the legislative process. His work for CRS has nothing to do with Guantánamo or the military commissions. CRS was fully aware of his previous public criticism of the military commissions when he was hired, and since he has been at CRS, Col. Davis has received approval for other public speaking engagements on this very subject.

On November 11, the Wall Street Journal published an op-ed and the Washington Post published a letter to the editor written by Davis expressing his views about the military commissions. Both pieces were written by Davis in his personal capacity, made clear that he was writing as a private individual and former chief prosecutor of the military commissions, and made no mention of CRS.

Immediately after the op-ed and the letter were published, Davis received a threatening email from his supervisor regarding the pieces and questioning Davis’s ability to continue serving as Assistant Director – despite the fact that the same supervisor had given him positive feedback about his work there as recently as the day before. In meetings that followed, Davis was informed that his employment would be terminated because of the pieces.

In the letter we sent today, we argue that CRS violated the First Amendment when it fired Davis for speaking as a private citizen about matters having nothing to do with his job there, and state that “if the Library is not willing to reinstate Col. Davis, we will be forced to bring an appropriate lawsuit on his behalf.”

According to ACLU staff attorney Aden Fine:
The First Amendment protects Col. Davis’s right to speak and write as a private citizen about issues on which he has personal knowledge. Col. Davis didn’t give up his right to express his opinions and first-hand knowledge about a matter of such public importance when he left the military commissions system and went to work somewhere else.

The public has a great interest in hearing from Col. Davis about Guantánamo and the military commissions because of his unique expertise as the former chief prosecutor there. There is no evidence that Col. Davis’s writing caused any disruption to the internal operations of his employer, and even if it had, the purported disruption could not come close to outweighing the benefit to the public of hearing from such an important expert on Guantánamo and the military commissions.