Retired Air Force Col. Morris Davis figured he was eminently qualified to write about the Obama administration’s struggles over how to try terrorism suspects.
After all, Davis served from 2005 to 2007 as the U.S. military’s chief prosecutor at the U.S. prison at Guantanamo Bay, Cuba, home to some detainees whose prosecution is a subject of heated national debate.
But after Davis wrote two opinion pieces harshly criticizing the administration’s detainee policies last year, he was abruptly fired by the Library of Congress. He lost his post as a senior specialist for the Congressional Research Service, a library agency that provides policy analysis for the House and Senate.
A year later, Davis is fighting to get his job back. In a lawsuit against the library filed in January, he claims he was wrongly fired for exercising his right to free speech. Supporters as diverse as the left-leaning New York Times editorial page and conservative Sen. Lindsey Graham (R-S.C.) have backed him.
The case raises the issue of free speech by government employees and, specifically, to what extent the Library of Congress may curb the speech of employees who provide analysis to members of Congress.
The library contends that because Congress relies on research service employees to produce objective assessments, partisan public comments by employees undermine their credibility.
Noting that the library is housed in the James Madison Memorial Building, Davis said, “The right of free speech was expressly written by James Madison, and I think he’d be shocked to find it doesn’t apply in his building.”
A spokesman for the agency declined to comment because the case is in litigation. The library has said it fired Davis because he “showed poor judgment and discretion” in violating a policy that governs outside speaking and writing by Congressional Research Service employees.
“CRS staff members must avoid conduct that would undermine the appearance of objectivity and nonpartisanship,” an agency lawyer wrote to the American Civil Liberties Union.
But Davis says the policy applies only to comments about an employee’s assigned area of expertise. The American Civil Liberties Union, which represents Davis, argues that employees have the right to speak freely on any topic.
Davis was an assistant director in the Foreign Affairs, Defense and Trade Division of the research service. He said the job had nothing to do with the subject of his articles: whether to try detainees before military commissions or in federal court.
“The public should not be denied a chance to hear from him just because he is a public employee,” said Aden Fine, an ACLU attorney.
Davis said he wrote the commentaries on his home computer and on his own time in November 2009. The pieces — an op-ed in the Wall Street Journal and a letter to the Washington Post — did not mention his job at the research service.
Davis, who is now director of the Crimes of War Project in Washington, resigned as the military’s chief prosecutor at Guantanamo Bay in 2007, saying prosecutors’ decisions were poisoned by politics.
At least twice before he wrote the pieces, Davis said, he received the research service’s permission to give speeches in which he delivered the same scathing critiques as in his writings. One speech, in Kansas City, was made two days before his articles were published, he said.
The day before the articles appeared, Davis said, his boss, research service Director Daniel Mulhollan, told him he was pleased with his job performance. The next day, Davis received what the ACLU called a “threatening and hostile” e-mail from Mulhollan, who was furious over the articles.
Eight days later, Davis said, Mulhollan called him and told him he was fired.
In a memo admonishing Davis, Mulhollan pointed out that Davis had reprimanded a research service employee for violating policy on media contacts. He cited a memo Davis wrote in which “you helped craft language that told this individual that while he did not ‘forfeit 1st Amendment rights as a CRS employee,’ ” he could not undermine CRS’ “high professional standards for objectivity.”
Davis said his memo referred to comments an employee had made about his assigned area of expertise.
Mulhollan wrote that the standards for “objectivity, nonpartisanship and non-advocacy” apply to all outside writings and comments, regardless of topic.
“I seriously question whether Congress understands that the assistant director for Foreign Affairs, Defense and Trade has little to do with military commissions,” Mulhollan wrote.
Davis pointed out that James H. Billington, the librarian of Congress and a Russia scholar, was paid to host a PBS series, “The Face of Russia,” in which he expressed his views on Russia, his area of expertise.
In a letter to Billington in December, Graham cited Davis’ “experienced and valuable perspective” on military commissions and said his articles were “worthy of publication.” Graham served in the Air Force with Davis, a 25-year veteran who retired in 2008.
The same week, a New York Times editorial urged the agency to reinstate Davis, saying, “Government employees do not forfeit their right to comment on public interest.”
The service’s hiring practices also came under scrutiny in 2008, when a federal judge ruled that it had violated sex discrimination laws. The agency had withdrawn a job offer to Col. David J. Schroer, a retired special operations officer, after he said he intended to have a sex change operation and become Diane Schroer.
Davis’ lawsuit is working its way through the federal courts.