In a small but significant victory for free speech, Col. Morris Davis, the former chief prosecutor at Guantánamo Bay, announced a $100,000 settlement Tuesday in his lawsuit against the Library of Congress’s Congressional Research Service.
Davis was fired from the CRS in 2009 for authoring two opinion pieces (one in the Wall Street Journal, the other in the Washington Post) that criticized President Obama for prosecuting some terror suspects in federal courts and others in military commissions — what Davis called a “dangerous legal double standard.”
Davis became an assistant director at CRS after retiring from a 25-year career as an Air Force lawyer in 2008.
The ACLU sent a letter to CRS in 2009 asking for Davis’s reinstatement, noting that his work at CRS had nothing to do with Guantánamo Bay. When CRS refused, the ACLU sued on Davis’s behalf.
The Supreme Court has previously ruled that government employees do not have First Amendment rights when speaking in an official capacity. But the taglines in Davis’s pieces made it clear that he was writing in a personal capacity and did not even mention the CRS.
Davis hailed the settlement as a vindication of his right to speak out about Guantánamo.
“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” he said in a statement. “Guantánamo remains too important a conversation about who we are as Americans to let the federal government try and silence the debate.”
Davis had already built a record of speaking out about injustice at Guantánamo by the time the CRS hired him. While still at Guantánamo, Davis tried to ban the use of evidence obtained under torture, but his superiors overruled him. After William Haynes — the Pentagon general counsel and a key player in the President Bush’s torture program — became his boss, Davis resigned. “The guy who said waterboarding is A-OK I was not going to take orders from,” he explained at the time.
During the 2008 presidential campaign, Obama called the military commissions at Guantánamo Bay a “flawed system.” But he endorsed them after deciding not to try Khalid Sheikh Mohammed — the self-described mastermind of the 9/11 attackers — in a federal court in Manhattan. Mohammed’s case is still held up in pretrial motions, and the military commissions system has yet to achieve a verdict for any of the 9/11 attackers.