"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, 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."
After 25 years in the United States Air Force, Davis resigned from his position as chief prosecutor in the military commissions in October 2007 because of his belief that the system was fundamentally flawed. He then became a vocal critic of the commissions, writing articles, giving speeches and testifying before Congress. In December 2008, Davis began working as the assistant director of the Foreign Affairs, Defense and Trade Division at CRS, a position that is not related to the military commissions.
On November 11, 2009, the Wall Street Journal published an opinion piece and the Washington Post published a letter to the editor in which Davis argued against having a two-tiered system of justice in which some Guantánamo detainees are tried in military commissions and others in federal courts. Both pieces were written by Davis in his personal capacity, made clear that he was writing as a private individual and former chief prosecutor of the military commissions and made no mention of CRS. Davis wrote the pieces on his home computer during non-work hours. In meetings that followed, Davis' supervisor at CRS, Daniel Mulhollan, informed Davis that as a result of the pieces his employment would be terminated. Davis was transferred to a temporary 30-day position at CRS, which will expire on January 20.
"My status as the former chief prosecutor for the military commissions at Guantanamo Bay and my opinions on that subject are completely unrelated to my position at CRS and totally separate from my duties there, and they don't interfere with my ability to do my job," said Davis. "The work that CRS does is incredibly valuable and I am proud of the opportunity to continue serving my country after a career in the military. I hope to be reinstated to my original position so I can continue to support Congress at this critical time in our nation's history."
In response to a letter from the ACLU in December, the Library of Congress stated that it would not reinstate Davis to his job at CRS. Today's lawsuit seeks to reinstate Davis to his position and to reaffirm that governmental employees, including employees of the Library of Congress, may not be terminated for speaking in their private capacities on matters of great public concern.
The ACLU filed the lawsuit against James Billington, the Librarian of Congress, and Mulhollan in the U.S. District Court for the District of Columbia. Attorneys on the case are Fine, Alexander Abdo and Jameel Jaffer of the national ACLU and Arthur Spitzer and Frederick Mulhauser of the ACLU of the National Capital Area.
The ACLU's complaint is available online here.