Library of Congress Must Answer to Gitmo Critic

(CN) - The former chief prosecutor of the Guantanamo military trials may have a speech case after he lost his next job when the Wall Street Journal published his op-ed critical of detainee trials, a federal judge ruled.

Col. Morris Davis is a 25-year veteran of the U.S. Air Force who was responsible for overseeing the military trials of suspected terrorists held at Guantanamo Bay, Cuba, until he resigned as chief prosecutor in 2007.

Davis then accepted a job as assistant director of the Foreign Affairs, Defense, and Trade section at the Library of Congress. In the meantime, Davis had also become a vocal critic of the military trials. One article Davis wrote for Salon accused the "reformed" commissions of trying to make "a silk purse our of a sow's ear of justice." Davis also criticized the detainee prosecutions in opinion pieces for the Wall Street Journal and Washington Post.

The November 2009 Wall Street Journal article said: "The administration must choose. Either federal courts or military commissions, but not both, for the detainees that deserve to be prosecuted and punished for their past conduct.

"Double standards don't play well in Peoria," he continued. "They won't play well in Peshawar or Palembang either. We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them."

He did not mention his work for the Library of Congress in any article but nevertheless faced discipline and termination by that office days after the Journal published his op-ed.

U.S. District Judge Reggie Walton advanced First Amendment claim against Librarian of Congress James Billington on Wednesday, finding that "there is a genuine issue of material fact as to whether the plaintiff was a high-level employee," which would require him to use extra care in his exercise of free speech.

The ruling notes statements by other employees of the library that they ended their relationship with Davis after he published the articles because they were disappointed in his decision to so publicly voice his opinions.

Davis insists, however, that there was no change in his professional relationship with anyone at the Library because of his newspaper articles.

"Accordingly, the court cannot conclude that the plaintiff's speech 'impair[ed] discipline by superiors or harmony among co-workers, [or] ha[d] a detrimental impact on close working relationships,'" Walton said.

Casting doubt on the government's claim that Davis' conduct damaged the Library's goal of objectivity, Davis also testified that he never worked on any project related to military commissions, even in his position as assistant director for defense.

Davis cannot, however, advance a due-process claim under the Fifth Amendment.

"While a property interest in employment might be protected under the Fifth Amendment, a liberty interest in free speech cannot be," Walton wrote (emphasis in original). "Rather, a particular Amendment - the First Amendment - explicitly provides for the protection of the plaintiff's liberty interest in free speech."

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