The case of former Guantanamo chief prosecutor Morris D. Davis and his firing from the Congressional Research Service has garnered some new publicity lately that is sure to rekindle the issue of whether federal government employees are allowed to discuss issues of national security in their off-duty hours.
The Los Angeles Times, in an article and subsequent editorial, delved into the issue of whether Davis was unjustly dismissed, as he claims, for writing twoopinion articles on military commissions at Guantanamo Bay.
The CRS, part of the Library of Congress, provides independent information to members of Congress to aid them in the drafting of legislation and making policy. Davis was the assistant director of the service’s Foreign Affairs, Defense and Trade Division. According to The Times, a directive put out by the agency says that employees should “think carefully before taking a public position on subject matters for which they are responsible at CRS.”
But Davis, now with the Crimes of War P roject, contends in his lawsuit seeking reinstatement that his division did not deal with questions connected to Guantanamo or military commissions. Those are handled by the American Law Division, he says.
But he was fired after publishing two opinion articles in major newspapers concerning the Obama administration’s decision to try some accused terrorists in civilian courts and some in military commissions.
“The words `arbitrary’ and `capricious’ are too kind to describe the Congressional
Research Service’s decision to fire [Davis], a retired Air Force colonel and former
chief prosecutor at Guantanamo Bay, Cuba,’’ The Times said in its January 8 editorial.
“Davis’ offense was to speak and write on his own time about a subject on which he is an expert: flaws in the military commission system and the appropriate way to bring accused terrorists to justice,’’ the paper’s editorial said. “His dismissal reflects a decision by his employers to take a legitimate principle — the importance of not politicizing a nonpartisan agency — to unjust extremes.’’
For its part, the CRS — through a lawyer — has argued that staff members must avoid conduct that would undermine the appearance of objectivity and non-partisanship.
“But neither that language nor a series of directives by the Library of Congress and the service explicitly prohibits outside speaking of the sort engaged in by Davis, which focused in restrained and nonpartisan language on a subject within his area of expertise,’’ The Times wrote.
As the newspaper noted, Davis’ story is only partly about mixed signals from his employer. It also involves the broader question of free speech for federal employees, especially about touchy national security issues such as Guantanamo.
“In our view, Davis clearly falls into that category,’’ the paper said. “He should be reinstated.’’
Note: The Crimes of War project is housed at the Medill Washington program’s offices.
