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Conflict Heats Up Over Government’s Firing of Former Military Commission Prosecutor

The New York Times editorial board weighs in today in defense of Col. Morris Davis, the Air Force officer fired from the Congressional Research Service after he publicly criticized the government’s handling of Guantanamo detainee cases. That’s sure to ratchet up the pressure on CRS to reinstate Davis.

Davis is the former chief military prosecutor for the Bush administration’s military commissions who resigned in October 2007 rather than use evidence acquired through torture in commission cases. For months afterward, he publicly criticized the commissions — in articles, speeches and testimony to Congress, becoming something of a hero to civil rights advocates and others who believed the commissions were fundamentally flawed.

In December 2008 he went to work for the Congressional Research Service. But when he spoke out in November of this year against the continued use of the commissions in an editorial in The Wall Street Journal and a letter to The Washington Post, Davis was promptly fired. His writing violated CRS policy, he was told, and interfered with the agency’s duty to remain nonpartisan. Davis had expressed the criticisms as his own, however, rather than on behalf of the agency. The American Civil Liberties Union has threatened to sue on Morris’s behalf.

So when does a government agency’s requirement that its employees not speak publicly on political issues violate the First Amendment?

The government does have the right to restrict what its employees say when they’re speaking in their official capacity, as part of their job. But when they’re speaking as private citizens, public employees have more room to maneuver, particularly when they’re speaking about things unrelated to their jobs duties.

CRS, however, prides itself on both objectivity and secrecy, and apparently claimed that Morris’s public statements compromised both. Still, those values may well run up against the right to free speech in this conflict.

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