JURIST - Paper Chase: Federal appeals court rules against former Guantanamo prosecutor

[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] Friday that Col. Morris Davis [JURIST news archive], the former chief prosecutor at Guantanamo Bay [JURIST backgrounder] may not seek money damages from his former supervisor at the Library of Congress (LOC) [official website] for termination of his employment due to op-ed articles he wrote. In 2009, Davis was fired by the LOC for writing articles in the Washington Post and Wall Street Journal criticizing the Obama administration for trying some terrorist suspects in military courts and some in civilian courts. Davis alleged that his termination violated his rights under the First and Fifth Amendments [text] of the US Constitution. The appeals court ruled that Davis failed to state a claim on which relief could be granted under Bivens liability, a form of employer liability that applies to government officials:

Because we hold that Davis has failed to state a Bivens claim for which relief may be granted, there is no reason to reach the merits of his claims or to consider whether Director Mulhollan is entitled to qualified immunity. We vacate the order of the district court denying Mulhollan's motion to dismiss and remand with instructions to dismiss Davis's Bivens claims.

Although Davis may not seek money damages from the LOC, the appeals court allowed Davis's claim for reinstatement to proceed.

Davis has been a longtime critic of the national security policies of Presidents Obama and George W. Bush. In October, Davis wrote an opinion piece [JURIST op-ed] claiming that the CIA's killing of Anwar al-Awlaki violated the law of war. Davis drew attention to the alleged iniquities of the military commissions system in 2007, when he penned a noted op-ed [text] for the New York Times about his experience as chief prosecutor. Later that year, Davis publicly said that he was pressured to use classified evidence [JURIST report] against defendants while heading serving as chief prosecutor at Guantanamo. He further claimed that the push to use classified evidence stemmed from certain military officials' desire to keep the trials closed and complained that Brig. Gen. Thomas Hartmann [official profile], legal adviser to the Convening Authority [official backgrounder] for the trials, should not have been supervising his work. The issue played a role in his resignation [JURIST report].