The Library of Congress has agreed to pay a former military prosecutor $100,000 and change his personnel records to resolve his complaint that he was fired improperly for criticizing the military commission process for terrorism suspects at Guantánamo Bay, Cuba.
Retired Air Force Col. Morris Davis served as the chief military prosecutor at Guantánamo from 2005 to 2007 and became a vocal critic of the process there after he left the military in 2008. He was fired from his job as an assistant director at the Library of Congress’ Congressional Research Service in 2009 after his criticism of the military commissions was published in The Wall Street Journal and The Washington Post.
At the time, Davis’ supervisor said his positions on Guantánamo compromised his ability to carry out his job at the Congressional Research Service, which provides expertise and research to members of Congress on news developments and legislative issues.
Davis sued, saying his dismissal violated his First Amendment rights to free speech. In a filing on his behalf, the American Civil Liberties Union argued that Davis’ role at the research service was unrelated to his opinions on Guantánamo and he had the right to express his opinion as a private individual.
On Tuesday, Davis announced that he had reached an agreement, and the ACLU said it was requesting that Davis’ lawsuit be dismissed.
Under the terms of the agreement, Davis will receive $100,000 and his employment record will be corrected to show that he was not terminated for cause, a statement from the ACLU said.
“I spent 25 years in the military defending the Constitution, only to be told by the library that it didn’t apply to my personal speech,” the statement quoted Davis as saying. “I had always assumed the federal government respected the First Amendment, but instead I had to rely on the ACLU to ensure the free speech rights I defended were not rendered meaningless.”
Davis added that he remains critical of the military commission system at Guantánamo. “Guantánamo remains too important a conversation about who we are as Americans to let the federal government try and silence the debate,” the statement quoted him as saying.
Lee Rowland, a senior staff attorney for the ACLU, said the settlement reinforced the concept that public employees had the right to comment on public events. “Today’s settlement should send a message to all government employers that the Constitution prevents them from firing people who participate in public debate about government policy,” Rowland was quoted as saying.
In a Nov. 10, 2009, opinion column in The Wall Street Journal, Davis was critical of the Obama administration’s decision to use both civilian courts and the military commissions at Guantánamo to prosecute terrorism suspects.
“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,” Davis wrote.
In a letter published in The Washington Post the next day, Davis took exception to a column by former Attorney General Michael Mukasey that had appeared in the paper urging military trials for terrorism suspects and suggesting that civilian trials risked the public’s safety. Davis accused Mukasey of “fear mongering” and noted that the U.S. government had successfully prosecuted many terrorists without any threat to nearby populations.
In a letter to Davis a week later, the then director of the Congressional Research Service, Daniel P. Mulhollan, said Davis had not shown “awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS.”
At the time, Congress was sharply divided over the future of Guantánamo, which Obama had ordered closed shortly after he took office in January 2009. The next year, Congress passed legislation barring the closure of the facility. Mulhollan retired in 2011.