Today, the ACLU filed a brief in a case on behalf of Col. Morris Davis, who was fired from his job at the Congressional Research Service (CRS) for publicly criticizing the Obama administration’s decision to try some Guantánamo detainees in federal courts and some in the military commissions system.
Col. Davis is a decorated veteran of the United States Air Force. From 2005 to 2007, he served as the Chief Prosecutor for the Department of Defense’s Office of Military Commissions, which was created to prosecute suspected terrorists being held at Guantánamo. He resigned from that position in October 2007 because he came to believe that the military commission system had become fundamentally flawed, and has openly and publicly criticized the commissions ever since.
In 2008, Col. Davis began working as the Assistant Director of the Foreign Affairs, Defense and Trade Division at CRS. His work at CRS had nothing to do with Guantánamo or the military commissions, and in fact, CRS was fully aware of his previous public criticism of the military commissions when he was hired.
Despite this, CRS fired Col. Davis after the Wall Street Journal and Washington Post published opinions he authored expressing his views about the military commissions. Immediately after these opinions were published, Davis was informed that his employment would be terminated because of the pieces.
In December 2009, we sent CRS a letter informing it that by firing Col. Davis, it had violated his First Amendment right to speak, as a private citizen, about issues that have nothing to do with his job there. We informed CRS that if they did not reinstate Col. Davis, we would sue.
They refused to reinstate Col. Davis, so we sued. The defendants in the case, Librarian of Congress James H. Billington and former CRS Director Daniel P. Mulhollan, asked a district court to dismiss the case. That court refused. Mulhollan is currently appealing that decision to the D.C. Circuit Court of Appeals. The brief we filed today opposes that appeal.
This country's handling of detainees in the so-called "war on terror" is an issue of great public concern, and few have the experience and authority to speak on this issue as Col. Davis. Firing him for stating an opinion is unconstitutional and un-American. We hope the appeals court agrees.