ACLU sues Library of Congress over firing employee who criticized Gitmo

The American Civil Liberties Union has sued the Library of Congress for firing a former chief prosecutor for the Guantánamo military commissions.

Col. Morris Davis was fired for criticizing the system in which detainees at Guantánamo are tried. Davis was employed by the nonpartisan Congressional Research Service, where he worked as an assistant director in the Foreign Affairs, Defense and Trade division.

The Library of Congress, which oversees CRS, said Davis had shown poor judgment and that his criticism “could do serious harm to the trust and confidence Congress reposes in CRS,” according to a letter sent to Davis in November by Daniel Mulhollan, the director of the CRS.

The Library of Congress cited rules that require employees to explicitly disassociate themselves from the LOC when writing or speaking about controversial topics.

The letter singled out criticism Davis expressed in two op-eds written in November.

Lawyers with the ACLU filed the suit on behalf of Davis, whose work for CRS involved preparing special reports for members of Congress. Paperwork on the case was filed last week.

The ACLU argues Davis was expressing his personal opinions in criticizing the Guantánamo military and civilian court system, and was not acting in his capacity as a CRS employee. In 2007, Davis resigned from his position as chief prosecutor in the military commission trials because he thought they were “fundamentally flawed,” according to a statement released by the ACLU.

Between the time Davis resigned as prosecutor and was hired by the CRS in 2008, he testified before Congress about the military commissions, and was known for speaking and writing critically about the system.

“Col. Davis has a constitutional right to speak about issues of which he has expert knowledge, and the public has a right to hear from him,” said Aden Fine, a staff attorney with the ACLU First Amendment Working Group.

“Col. Davis’s firsthand experience is invaluable to the ongoing debate over military commissions, and the public should not be denied the chance to hear from him just because he is a public employee.”

The CRS contends that it has every right to fire an employee who it says violated two sections of Library of Congress regulations that Davis fell under.

Mulhollan said Davis was notified of the CRS’s concern about his personal activities and yet declined to do anything to remedy that concern.

Davis was officially terminated as a CRS employee in December, but was offered a 30-day extension that ends Jan. 20.

“During a meeting on November 12, 2009, in which your conduct leading to the admonishment was discussed, you neither expressed remorse for your actions nor awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS,” said Mulhollan in his letter to Davis.

“In addition, you failed to adhere to the CRS policy on Outside Speaking and Writing.

“Among other things, the policy calls for staff members to explicitly disassociate themselves from the Library and from their official positions when speaking or writing on controversial matters. You failed to effectively do so. Furthermore, you have impaired your ability to lead the analysts and managers in [the Foreign Affairs, Defense and Trade division] ... as a result of your conduct.”

A spokesman for the Library of Congress said it has no further statement to issue on Davis’s situation, citing litigation. The Department of Justice is expected to provide the LOC with a defense counsel through the Assistant U.S. Attorney’s office, though the spokesman had not confirmed that representation.