The words "arbitrary" and "capricious" are too kind to describe the Congressional Research Service's decision to fire Morris D. Davis, a retired Air Force colonel and former chief prosecutor at Guantanamo Bay, Cuba.
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. His dismissal reflects a decision by his employers to take a legitimate principle — the importance of not politicizing a nonpartisan agency — to unjust extremes.
The Congressional Research Service, part of the Library of Congress, provides information to members of Congress to aid them in the drafting of legislation. Davis was the assistant director of the service's Foreign Affairs, Defense and Trade Division. 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."
As Davis notes in his lawsuit seeking reinstatement, his division did not deal with questions connected to Guantanamo or military commissions. Questions from Congress about such matters were handled by a different section, the American Law Division. Nevertheless, he was fired after publishing two opinion articles — one in the Wall Street Journal, the other in the Washington Post — concerning the Obama administration's decision to try some accused terrorists in civilian courts and some in military commissions.
In a letter to the American Civil Liberties Union, which is representing Davis, a Congressional Research Service lawyer argued that "staff members must avoid conduct that would undermine the appearance of objectivity and nonpartisanship." 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 directives' main concern is that employees make it clear that they're speaking for themselves and not their employer.
Moreover, according to Davis' complaint, his superiors didn't tell him when he was hired that he was barred from public speaking or writing about military commissions. Indeed, on previous occasions, the director of the Congressional Research Service either approved or failed to object to public speeches or interviews in which Davis discussed the subject. The exceptions were the two opinion articles that got Davis fired.
Davis' story is only partly about mixed signals from his employer. It also involves the broader question of free speech for federal employees. In certain circumstances, working for the government requires surrendering some 1st Amendment rights. At the same time, the Supreme Court has held that government employees may speak out as private citizens provided their speech doesn't have the potential to affect their agency's operations. In our view, Davis clearly falls into that category. He should be reinstated.