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Former Guantanamo prosecutor settles free speech case for $100,000

By LISA REIN | The Washington Post | Published: June 1, 2016

WASHINGTON — The Library of Congress will pay the former chief military prosecutor at Guantanamo Bay $100,000 and correct his personnel file to settle his claim that he was wrongly fired for criticizing military commissions for detainees.

The deal announced Tuesday by the American Civil Liberties Union, which represented retired Air Force Col. Morris Davis, marks the end of a nearly seven-year free-speech case that tested the rights of federal employees to speak out as private citizens.

Davis, now 57, led military prosecutions at the U.S. military prison in Cuba from 2005 to 2007, and became a fierce critic of the military commission process when he resigned from the Air Force soon afterward.

When he was working as an assistant director at the Congressional Research Service two years later, Davis wrote an op-ed for the Wall Street Journal and a letter published in The Washington Post that criticized the Obama administration's use of both federal court and military commissions to try terrorism suspects detained at Guantanamo as a "mistake."

He said the decision by former Attorney General Eric H. Holder, Jr. would establish a "dangerous double-standard" that gave some terrorism suspects rights and protections and relegated others to the "inferior rights and protections" of military commissions.

But soon after the critical opinions were published, Davis' boss at the CRS, which does research and analysis of legislative issues for members of Congress, told Davis he was fired — even though he did not identify himself as an employee of the service or of the Library of Congress, CRS' parent agency.

His boss said Davis' criticism of the Obama administration compromised his job as a researcher specializing in foreign affairs, defense and trade policy — but not national security.

In a letter telling him he was fired, then-CRS Director Daniel Mulhollan wrote that Davis lacked an "awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS."

Davis sued, claiming that the library violated his First Amendment right to express an opinion as a private citizen.

"The record said Col. Davis was terminated for cause, and he was given a scarlet letter for engaging in protected speech," said Lee Rowland, a senior staff attorney for the ACLU.

"He is emerging with some compensation and his record intact," she said of Davis, who now works as an administrative law judge at the Labor Department.

"It's our hope that this settlement serves as a warning to other federal agencies that will think twice before punishing an employee who is engaging in protected speech," Rowland said.

The settlement gives Davis $100,000, and requires the Library of Congress to remove his termination from his personnel records. The library did not admit liability. Davis was not eligible for back pay under a law that exempts most legislative branch employees for retroactive salary in legal cases.

Library of Congress spokeswoman Gayle Osterberg declined to comment.

Davis called the settlement "a deal that I don't think either side is totally happy with or totally upset with." He said that after his firing, he was rejected for about 200 jobs over several years, many of them in the federal government.

He finally landed an assistant professorship teaching legal writing and national security law at Howard University Law School until the Labor Department hired him last year.

"They would say, 'You're eminently qualified and they really like you, but you're too toxic for them to hire you,'" he recalled.

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