Legal Commentary

May CRS Analysts Criticize the President?s Policies?

By Jonathan H. Adler

Earlier this month, the Congressional Research Service (CRS) informed Col. Morris Davis he would be dismissed from his position as assistant director of the Foreign Affairs, Defense and Trade Division.  His job ends on December 21, at the end of a one-year probationary period.  CRS won?t comment publicly on the matter, by it has been widely reported (here, here, and here) that he was fired for criticizing the Obama Administration?s decision to try some detainees in federal court and others in military commissions in a WSJ op-ed and [criticizing former Attorney General Michael Mukasey in a]  letter to the editor in the Washington Post.  Both items mentioned he was the former chief prosecutor for military commissions, and neither mentioned his position at CRS.   Nonetheless, CRS maintained in a letter to Co. Davis? attorneys that he was properly dismissed for his failure ?to adhere to the CRS policy on Outside Speaking and Writing.?   Apparently some at CRS believe Col. Davis? public statements were potentially controversial and could undermine CRS? reputation as an ?objective and non-partisan research and analysis to Congress.?  The ACLU is representing Col. Davis and is threatening to sue.  From the Washington Post?s account:

Davis said he was writing in his personal capacity, and neither the op-ed nor the letter identified him as an employee of the CRS, where he is an assistant director in the Foreign Affairs, Defense and Trade Division. Davis also said he had previously spoken at events on Guantanamo with permission and without incident.

?Military commissions are not my area of responsibility,? Davis said. ?Library of Congress policy says people are encouraged to write, teach and speak on areas that are outside their official responsibilities. The ultimate irony is we are in the James Madison Building but the First Amendment doesn?t apply for those who work in the building named for the guy who wrote it.?

Full post as published by The Volokh Conspiracy on December 15, 2009 (boomark / email).