A former Guantanamo prosecutor was wrongfully fired by a government agency for writing critical op-eds about military commissions, according to the ACLU. The civil rights organization alleges that the firing violated the ex-prosecutor’s First Amendment and due process rights.
Col. Morris Davis, the former chief prosecutor for the Guantanamo military commissions, was dismissed from his position at the Congressional Research Service (CRS) for opinion articles he wrote about the commissions in The Washington Post and Wall Street Journal.
The American Civil Liberties Union (ACLU), which is representing Davis, said the firing violated the First Amendment because Davis was writing in the capacity of a private citizen about matters not relating to his position at the CRS. The ACLU is calling for Davis to be returned to his position to avoid the possibility of litigation.
“The First Amendment protects Col. Davis’s right to speak and write as a private citizen about issues on which he has personal knowledge,” said Aden Fine, staff attorney with the ACLU First Amendment Working Group. “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 at CRS.”
Davis, who resigned from his position in the Guantanamo military commissions in October 2007, citing his belief that the system was defective, became an outspoken critic of the commissions. In December 2008, he joined the CRS as the assistant director of the Foreign Affairs, Defense and Trade Division, where his work consisted of assisting members of Congress and committee staff in the legislative process.
“CRS does very important work and I’m proud of what I contribute to that,” said Davis. “But my service there does not preclude me from speaking about matters of great public importance about which I have personal expertise that is extremely valuable to the ongoing debate over how to prosecute terrorism suspects.”
In the first of his articles which caused the furor, published in The Wall Street Journal on November 10, 2009, Davis wrote about the decision to try Guantanamo detainees in both federal and military courts.
“A decision to use both legal settings is a mistake. It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantanamo and justice are mutually exclusive,” he wrote.
“Double standards don’t play well in Peoria. They won’t play well in Peshawar or Palembang either. We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them.”
The sources used in his Wall Street Journal article, as well as in an opinion piece published by The Washington Post on November 11, 2009, were based on either publicly available documents, such as a reporting submitted to President Obama by the Detention Policy Task Force, or his own previous experience. All pieces were written outside of his work hours.
The ACLU letter argued, “There can be no dispute that the subject matter of Col. Davis’s speech – the military commissions and the prosecution of suspected terrorists – is a matter of immense public concern. These issues are the subject of a nationwide, highly contentious, and very public debate that has been dominating the news and our government’s attention … There is no reason his employment at CRS should prevent the public from hearing those views.”
It also stated that Davis had expressed his views in public prior to his appointment to the position he held with the Congressional Research Service, and that in the articles he wrote he was identified as “chief prosecutor for the military commissions from 2005 to 2007,” making clear he was writing in the capacity of his former position.
Davis, who had previously been positively reviewed by his supervisors as recently as November 10th, 2009, received, as stated in the ACLU letter, “a highly threatening and hostile email” from Daniel Mulhollan, director of the CRS, directly after the publication of the articles.
This was followed by a meeting on November 12, the day after the publication of The Washington Post article. In this meeting, Davis’s suitability to continue in his currently role was questioned by Mulhollan and Richard Elkhe, the acting deputy director of the CRS. Following an additional meeting on November 13, Davis received a phone call on November 20, in which Mulhollan informed Davis that his position at CRS was terminated as of November 21, 2009.
“Even a cursory analysis makes clear that the Library’s actions here were unconstitutional,” the letter said, saying these actions also violated Davis’s right to due process. Citing Garcetti v. Ceballos, it stated that “public employees still retain their first amendment rights even when speaking about issues directly related to their employment, as long as they are speaking as private citizens.”
A spokeswoman for the Congressional Research Service said, “As a matter of professional courtesy and out of respect to the confidentiality of individuals, CRS will not comment on personnel related matters.”
The CRS has taken flack before for its lack of transparency – Open CRS.org, a project of the Center for Democracy and Technology, calls for easier access to the tax-funded political reports.
Critics see this trend inherent in the wrongful firing of Davis.
“Given the enormous public interest in receiving speech on this subject and Col. Davis’s unique experience as a prosecutor,” ACLU’s letter stated, “it is highly unlikely that the Library would be able to sustain its burden of demonstrating that its interests outweigh Col. Davis’s and the public’s First Amendment rights.”