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ACLU in Court Defending the Freedom of Speech for Ex-Gitmo Prosecutor

Fence at Guantanamo
Fence at Guantanamo
Josh Bell,
Former Senior Communications Strategist, Center for Democracy,
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November 10, 2011

Today the ACLU was in court arguing that the Library of Congress violated Col. Morris Davis’s First Amendment rights when it fired him from his job at the Congressional Research Service (CRS) because of opinion pieces he wrote criticizing the Obama administration’s decision to try some Guantánamo detainees in federal courts and others in the military commissions system.

Col. Davis served as Guantánamo’s chief prosecutor until October 2007, when he resigned because he came to believe that the military commission system had become fundamentally flawed. He has openly and publicly criticized the commissions ever since.

Col. Davis’s lawsuit charges that CRS violated Col. Davis’s right to free speech and due process when it fired him for speaking as a private citizen about matters having nothing to do with his job. In March 2011, the D.C. District Court denied motions to dismiss by the defendants, former CRS Director Daniel Mulhollan and Librarian of Congress James Billington. Mulhollan appealed from that decision, and today the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in the matter.

ACLU attorney Aden Fine told the three-judge panel that the lawsuit should be allowed to continue. The AP reports:

Fine noted that Davis had spoken out repeatedly against the use of the system by the Bush and Obama administrations before his was hired by the library in December 2008 and during his 11 months there overseeing research on foreign affairs, defense and trade policy issues…

[Fine] faced skeptical questioning from the three-judge panel hearing the appeal.

David Sentelle, chief judge of the court, pointed out that federal employees don’t have unlimited free speech rights.

“The three of us on this bench can’t go out making political statements,” said Sentelle, who was nominated to the federal bench by President Ronald Reagan. He said Davis was criticizing attorneys general of two parties while overseeing foreign affairs.

“He did, your honor,” Fine responded, “but the First Amendment protects his right to do that.”

“We haven’t decided that,” Sentelle interjected…

The Library of Congress encourages its officials to speak and write publicly. But Judge Judith Rogers, appointed to the appeals court by President Bill Clinton, said it’s one thing to speak at a law school or association, but “it’s quite a different thing to be in The Washington Post.”

Fine responded that may be true, but it’s not the library’s policy to differentiate.

The First Amendment protects the right of public employees to discuss matters of great public concern, and federal officials who violate that right should be held accountable. We hope the Court agrees. A decision on the appeal is expected in the coming months.

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