The American Civil Liberties Union (ACLU) has filed a lawsuit against the Library of Congress on behalf of Col. Morris Davis, the former top prosecutor at Guantanamo and an outspoken critic of the military commissions system, alleging he was unfairly terminated from his position with the Library’s Congressional Research Service (CRS).
The lawsuit charged CRS with violating Davis’ free speech and due process rights by removing him from his positions with CRS, following the publication of a series of articles he wrote for The Wall Street Journal and The Washington Post about issues that were related to his former role with the military commissions, but not with his responsibilities at CRS.
“Col. Davis has a constitutional right to speak about issues of which he has expert knowledge, and the public has a right to hear from him,” said Aden Fine, a staff attorney with the ACLU First Amendment Working Group. “Col. Davis’s firsthand experience is invaluable to the ongoing debate over military commissions, and the public should not be denied the chance to hear from him just because he is a public employee.”
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Davis resigned from his role as a chief prosecutor in the Guantanamo military commissions in October 2007, citing his conviction that the system was fundamentally flawed. Drawing on his time with the military commissions and his 25 years in the United States Air Force, Davis became an outspoken critic of the commissions. He wrote articles, gave speeches and testified before Congress.
Then, in December 2008, he took up a position as the assistant director of the Foreign Affairs, Defense and Trade Division at the CRS.
“My status as the former chief prosecutor for the military commissions at Guantanamo Bay and my opinions on that subject are completely unrelated to my position at CRS and totally separate from my duties there, and they don’t interfere with my ability to do my job,” said Davis. “The work that CRS does is incredibly valuable and I am proud of the opportunity to continue serving my country after a career in the military. I hope to be reinstated to my original position so I can continue to support Congress at this critical time in our nation’s history.”
In response to the ACLU’s call for Davis to be returned to his former position with CRS, the Library of Congress said that it would not return Davis to his job.
As Truthout previously reported, the articles written by Davis appeared in The Wall Street Journal and The Washington Post on November 11, 2009. In them, Davis argued against using both military commissions and federal courts to try detainees.
The Wall Street Journal articles identify Davis as the former chief prosecutor for the military commissions. He retired from the military in 2008.
In the ACLU’s lawsuit, it said that Davis said he wrote the pieces in his personal capacity, made no mention of CRS, wrote the pieces outside of his work hours and did not receive payment for the articles.
Shortly after the publication of these articles, Davis received a number of phone calls, emails and requests for meetings from his supervisor at CRS, Daniel Mulhollan. On November 20, Davis received a final phone call saying that his employment would be terminated, and he was transferred to a temporary 30-day position, which will expire on January 20.
The ACLU lawsuit said that Davis had previously attended a conference concerning the military commissions and submitted a law review article expressing his views in connection with the conference … Mr. Mulhollan approved his participation, with the only condition being that Col. Davis had to participate on his personal time by using a vacation day, because of the subject of the conference. Guantanamo and the military commissions system had nothing to do with his CRS job responsibilities or duties.
The lawsuit also highlighted the lack of an official policy regarding CRS employees and whether personal writings must be subject to prior review or that supervisors must be notified about the intention to publish.
It goes on to say, “The decision to terminate Col. Davis for his speech has intimidated and chilled other CRS employees from speaking and writing in public. CRS employees are confused, uncertain, and fearful about what outside speaking and writing is permissible.”
The ACLU is suing James Billington, the Librarian of Congress and Mulhollan in the US District Court for the District of Columbia.