In a final blow to the decision by the Library of Congress to fire the former Guantanamo prosecutor Col. Morris Davis, the 20th Federal Court has ruled Wednesday that the termination of Davis’ employment following opinion articles he published in two national newspapers likely violated his rights.
Though the court declined to reinstate Davis to his former position, as called for in a lawsuit filed by the American Civil Liberties Union (ACLU) on Davis’ behalf, it recognized his right to write about the Guantanamo military commissions without trespassing on his position with the Congressional Research Service (CRS), a division under the Library of Congress.
“While I’m disappointed that the Court didn’t immediately take the necessary steps to right this wrong and stop the Library from firing me, I am hopeful the ultimate outcome of this case will recognize my right to free expression,” said Davis. “I will continue the fight to get my job at CRS back, although it’s a fight I never should have had to undertake.”
The decision of Judge Reggie B. Walton, of the US District Court for the District of Columbia, not to compel the Library to reinstate Davis was based on Davis’ failure to demonstrate that he would in the future be unable to recover the monetary damage he suffered after he was fired.
Davis spent 25 years in the Air Force before beginning his position with the Guantanamo military commissions, from which he resigned in October 2007, citing his conviction that the system was fundamentally flawed. He then became an outspoken critic of the commissions, writing articles, giving speeches and testifying before Congress.
He continued to do so when, in December 2008, he took up a position as the assistant director of the Foreign Affairs, Defense and Trade Division at the CRS under the Library of Congress. The articles for which Davis alleged he was fired 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, and identified himself only as the former chief prosecutor for the military commissions.
In the ACLU’s lawsuit, it said that Davis 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 expired January 20, the day of Judge Walton’s decision.
Judge Walton’s opinion concurred with the ACLU’s allegation that despite recent positive feedback from Mulhollan about his work, Davis was fired from his job for articles unrelated to his position with the CRS.
“Essentially, the record before the court suggests that the plaintiff was terminated immediately after two specific opinion editorials he authored were published in national newspapers,” Walton wrote. “This conclusion is supported by the fact that the opinion articles were specifically referenced in the plaintiff’s termination letter, and also the timing of the letter, which was issued only several days after his writings were published.”
The lawsuit also claimed that it was Davis’ First Amendment rights specifically which had been trampled, to which the judge’s opinion said: “And as to the public interest prong, it cannot be questioned that government employees retain First Amendment rights, even though the speech of higher level government employees can be curtailed without implicating a First Amendment violation.”
Aden Fine, a staff attorney with the ACLU’s First Amendment Working Group, said the decision of the court was regrettable.
“While we’re disappointed that the court missed a chance to immediately right this wrong, the court’s ruling makes clear that the facts presented to it show that the Library likely violated Col. Davis’s rights when it fired him for exercising free speech. We look forward to the day when Col. Davis’s rights are restored,” said Fine. “Col. Davis didn’t give up his right to express himself about the military commissions when he went to work for the Library of Congress.”