Government Agency Wrongly Fires Former Guantánamo Prosecutor For Speaking Out About Military Commissions
ACLU Says Congressional Research Service Violated First Amendment When It Fired Col. Morris Davis
NEW YORK - The
American Civil Liberties Union today sent a letter to the Library of
Congress and the Congressional Research Service (CRS) on behalf of Col.
Morris Davis, the former chief prosecutor for the Guantánamo military
commissions, who was terminated from his job at CRS because of opinion
pieces he wrote about the Guantánamo military commissions system that
ran in the Wall Street Journal and the Washington Post on November 11,
2009. The ACLU's letter argues 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 that CRS must reinstate
Davis to his position in order to avoid 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."
In October 2007, Davis resigned from
his position in the military commissions because of his belief that the
system was fundamentally flawed. He became a vocal critic of the
commissions, writing articles, giving speeches and testifying before
Congress. In December 2008, Davis began working as the Assistant
Director of the Foreign Affairs, Defense and Trade Division at CRS, a
department within the Library of Congress that provides experts to
assist members of Congress and committee staff in the legislative
process. Davis's work at CRS is not related to, and his division has no
responsibilities for, anything having to do with the military
"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
On November 11, the Wall Street
Journal published an opinion piece written by Davis expressing views
abut the military commissions similar to those he had expressed
publicly prior to working at CRS. The Washington Post also published a
letter to the editor that day written by Davis on the same subject.
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. He wrote the
pieces on his home computer during non-work hours.
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 previous positive
feedback about his work from the same supervisor. In meetings that
followed, Davis's supervisor informed him that as a result of the
pieces his employment would be terminated.
According to the ACLU's letter, the
"decision to terminate Col. Davis for writing the op-ed and letter to
the editor is a clear violation of Col. Davis's First Amendment and due
process rights. The Supreme Court has long made clear that public
employees such as Col. Davis are protected by the First Amendment when
they engage in speech about matters of public concern…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."
"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,"
said Fine. "There is no reason his employment at CRS should prevent the
public from hearing those views."
The full text of the ACLU's letter is available online at: www.aclu.org/free-speech/
The American Civil Liberties Union (ACLU) conserves America's original civic values working in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to every person in the United States by the Constitution and the Bill of Rights.