Appeals Court Ruling Means Morris Davis Free Speech Case Can Move Ahead

The DC Circuit Court of Appeals just issued its opinion in the ACLU’s First Amendment lawsuit on behalf of Col. Morris Davis, the former chief prosecutor at Guantánamo. He was fired from his job at the Congressional Research Service (part of the Library of Congress) in 2009 because of op-ed pieces he wrote in The Washington Post and The Wall Street Journal criticizing the Obama administration’s decision to try some Gitmo detainees in federal courts and others in the military commissions system.

The court ruled in favor of one of the defendants (Davis’s former supervisor), dismissing the claim for money damages against him – but the lawsuit against the Library of Congress, in which Davis is seeking his old job back, will continue.

In March 2011, the DC District Court denied motions to dismiss by the Library of Congress and CRS Director Daniel Mulhollan. Mulhollan appealed that decision, and today the court ruled in his favor, holding that non-executive branch employees like Davis do not have a right to bring constitutional claims for money damages against individuals like Mulhollan.

In a lengthy dissent, Judge Judith Rogers pointed out the importance public servants’ ability to comment on significant issues:

Davis’s two opinion pieces, relying on his professional experience prior to his employment with CRS, were not directed at Mulhollan, the Library, the CRS, or any member of Congress. In each he was identified as a former chief prosecutor for military commissions at Guantanamo; as such Davis was likely one of the more informed persons who could speak publically on the issue. The public interest in being exposed to his speech is high.

Aden Fine, the ACLU attorney who argued the appeal before the three-judge panel in November, said:

The important thing is that this decision means that Col. Davis’s claims against the Library of Congress can now go forward, although we are disappointed that the individual responsible for violating his constitutional rights cannot be held accountable. Davis should never have been fired for expressing his personal opinions about a subject having nothing to do with his job, and he deserves a chance to get his job back.

Now Davis will finally get that opportunity.

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