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ACLU: Van Buren’s Firing From State Dept “Unconstitutional”

The American Civil Liberties Union has weighed in on the case of Peter Van Buren, saying his firing from the State Department this year is unconstitutional, as it violates his First Amendment right to free speech  “and creates the appearance of impermissible retaliation for Mr. Van Buren’s criticism of the State Department.”

The aid of the free speech heavyweight couldn’t have come at a better time: Van Buren, the embattled foreign service officer whom the Department moved to fire this year for writing a book and a personal weblog that criticized the reconstruction in Iraq, is fighting to keep his job until at least September, when he was planning to retire anyway. Van Buren has been with the department for almost 24 years.

Signed by Ben Wizner and Kate Wood of the ACLU’s speech, privacy and technology shop, the letter dated May 15 asserts that Van Buren’s book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, and his blog of the same name, are protected speech that has been upheld by the Supreme Court.

The Supreme Court has long made clear that public employees are protected by the First Amendment when they engage in speech about matters of public concern. A public employee’s First Amendment rights can be overcome only if the employee’s interest in the speech is outweighed by the government’s interest, as employer, in the orderly operation of the public workplace and the efficient delivery of public services by public employees. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). The government bears an even greater burden of justification when it prospectively restricts employees’ expression through a generally applicable statute or regulation. United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”). By those standards, the State Department’s actions here appear to be unconstitutional.

There can be no dispute that the subject matter of Mr. Van Buren’s book, blog posts, and news articles – the reconstruction effort in Iraq – is a matter of immense public concern. This issue has been the subject of a nationwide, highly contentious, and very public debate. …

The public’s interest in hearing speech about these issues from Mr. Van Buren is also plain. See, e.g., Waters v. Churchill, 511 U.S. 661, 674 (1994) (“Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions.”) … It is precisely for that reason that Metropolitan Books decided to publish Mr. Van Buren’s book and that so many choose to read his book and blog. Indeed, Mr. Van Buren’s speech about the reconstruction effort in Iraq implicates the very core of the First Amendment. (emphasis mine)

So what is it about Van Buren’s writings that the U.S government fears so much? In plain language and with honesty, Van Buren was able to open a window into the Iraq War policy that very few, if any, had been able to do before. As an FSO he was required to do a year-long stint in 2009 in Iraq as a civilian rep on a Provincial Reconstruction Team (PRT), which is a small unit of military and civilian experts who live on bases and travel with the military to serve as conduits to the local population.

PRTs were supposed to help resource the reconstruction and advance “population centric” counterinsurgency (COIN), but what Van Buren describes is a debacle, one plagued by mismanagement, greed, hubris and a blatant cultural insensitivity toward the Iraqis we were supposed to be helping.

“I never wanted the story to be all about me. The things that were happening all around me and what I was seeing [in Iraq] were just smaller versions of a larger picture,” he told me in an interview last year.

“The corruption, we could see that on our level. Our ignorance, our stupidity. … It was so obvious to me that on a local level, when you view it all the way up to a national level, why it didn’t work.”

Most of America has no idea about what PRT’s are and whether they “worked” or not because the vast majority of people who worked (and are still working) for the government in Iraq have a vested interest in keeping the dirty laundry out of sight. Van Buren is one of the rare voices who called out about the emperor having no clothes, and is bitterly paying for it. In the last year, they revoked his security clearance and diplomatic passport and made him a “hall walker” — a State employee with no position. Now he sits at home, writing his blog, doing media interviews and working with whistleblower advocates like the Government Accountability Project (GAP), which has filed a strong appeal with the Office of Special Counsel on his behalf, and has helped him maintain health benefits for his family, which includes his wife and two college-age daughters.

“It is a tough fight, losing your career and clearance and friends because you stood up, but I am glad I did it and would do it again, the classic harder right over the easier wrong,” Van Buren told me last night.

“I’ll be gone one way or the other soon enough, but there will be another blogger and another author and another employee unafraid to speak out coming up behind me…The government thinks they can bully us, but not when we stick together and fight back. That’s a good thing about America.”

To be continued.

about the author

Kelley Beaucar Vlahos is a contributing editor at TAC and co-host on the Empire Has No Clothes podcast. Follow her on Twitter @VlahosAtQuincy.

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