The former chief military prosecutor at Guantanamo Bay is suing the Library of Congress for firing him after he wrote opinion columns in two leading newspapers criticizing the Obama administration's decision to try some suspected terrorists before military tribunals.
Attorneys from the American Civil Liberties Union argued Thursday in federal appeals court in Washington that retired Air Force Col. Morris Davis should be allowed to continue the lawsuit against the ex-supervisor who fired him.
The government argues that Davis violated his responsibility as a high-level official at the Congressional Research Service, a division of the library that's responsible for producing objective nonpartisan reports to lawmakers, when he spoke out publicly against the administration's policy using a "provocative tone."
ACLU lawyer Aden Fine said Davis was not speaking as a library employee but as a private citizen with a constitutional right to free speech.
Davis left the military in 2007 after 25 years of service. In the final two years, he oversaw the prosecution of suspected terrorists at Guantanamo Bay, and that led him to believe the system was flawed by a lack of defendant's rights and by political interference.
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.
But it was the columns in The Wall Street Journal and The Washington Post in November 2009 that led to his firing. He was responding to the Obama administration's decision to try some Guantanamo detainees in federal courts and others in the military commissions system. He argued there should be one equal system for all.
"We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law," Davis wrote in the Wall Street Journal. "Formally establishing a legal double standard will only reinforce them."
As a new library employee, Davis was on one year's probation at the time. His former boss, ex-CRS Director Daniel Mulhollan, told Davis the day after his writings were published that he would not be made a permanent employee as had been planned. Davis was later fired. Davis sued Mulhollan and Librarian of Congress James Billington.
A lower court judge rejected motions by Mulhollan and Billington to throw out the case; Mulhollan appealed that ruling.
Justice Department lawyer Sharon Swingle told the appeals court that Davis' writings cast doubt on his discretion and judgment and ability to serve as a high-level official at the service that prides itself on objectivity. While Davis did not oversee research on Guantanamo Bay policy at the CRS, Swingle said he dealt with officials who did.
Davis' lawyer 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.
He later called Davis' writings "a personal attack on both administrations" while he's working in an office to provide nonpartisan advice. "It's not supposed to be bipartisan, it's supposed to be nonpartisan," Sentelle said.
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.
Judge Karen LeCraft Henderson pointed out that the same three judges hearing Davis' case ruled against Joe Wilson, who sued Vice President Dick Cheney and other former Bush administration officials based on Wilson's claim that they retaliated when he wrote a column in The New York Times criticizing their Iraq war intelligence.
Henderson said Wilson, who was not a federal employee, had even greater rights to free speech than Davis. "Are we going to give him more than we gave Joe Wilson?" Henderson asked skeptically. She was nominated to the court by President George H.W. Bush.
Rogers said she wondered why Davis was ever hired by the library in the first place, given his outspoken criticism of the Guantanamo policy.
Swingle responded that the CRS recruits experts who are likely to have spoken out in their subject matter area before, but they are expected to comply with the library policy once they are hired. She argued that Davis' writings in the two newspapers used especially "intemperate language."