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FYI

Every Friday on GovExec.com, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.


Quashed Testimony

The Justice Department succeeded this week in temporarily preventing an FBI whistleblower from testifying in a class action lawsuit over the Sept. 11 terrorist attacks.

A federal court on Monday granted Justice an emergency motion to prevent former FBI translator Sibel Edmonds from giving testimony to a group of Sept. 11 relatives and survivors who have filed a civil suit against international banks and two members of the Saudi royal family for allegedly aiding al Qaeda. Edmonds has been under a Justice Department gag order since October 2002.

The government argued that information provided by Edmonds "would cause serious damage to the national security and foreign policy interests of the United States." Justice officials asserted that, because all the testimony the plaintiffs seek from Edmonds was obtained through her official FBI duties, the information remains bureau property.

Edmonds worked for the FBI from Sept. 20, 2001, to March 2002 as a contract linguist. She was hired to retranslate material that was collected prior to Sept. 11 to determine if anything was missed in the translations relating to the plot. Edmonds concluded that documents clearly showed that the Sept. 11 hijackers were in the country and plotting to use airplanes as missiles. She said documents also included information relating to their financial activities.

On Oct. 18, 2002, Attorney General John Ashcroft asserted "state secrets privilege" over Edmonds, preventing her from discussing what she did or information she obtained. Edmonds has since filed a lawsuit against the Justice Department and FBI to lift the gag order.

The law firm of Motley Rice, which represents about 500 Sept. 11 family members and survivors, subpoenaed Edmonds. She was to testify Tuesday, prompting the emergency motion from the Justice Department.

On Monday, the U.S. District Court for the District of Columbia quashed the subpoena pending a review filed by the government in Edmonds' lawsuit, said her lawyer, Mark Zaid. He said the government must provide the court copies of documents by May 10, and return to court on June 14.

"Anyone interested in the truth behind 9/11 should be distressed at the lengths to which the executive branch is proceeding to ensure Sibel Edmonds is silenced," Zaid said.

The government argued that federal law provides that a court must quash a subpoena if it "requires disclosure of privileged or other protected matter and no exception or waiver applies."

Read Him His Rights

The U.S. Court of Appeals for the Armed Services Wednesday overturned the sentence of a soldier who pleaded guilty to a sex crime, ruling that a military judge failed to adequately inform him of his constitutional rights.

Marine Corps Pfc. Jamie Hansen was convicted in March 2000 of having carnal knowledge and sodomy with a child under the age of 16 by a court martial composed of a military judge alone. Hansen was sentenced to a bad-conduct discharge, confinement for 16 months, and reduction to the lowest enlisted grade.

The court of appeals, however, ruled it could not reasonably conclude that Hansen understood all his constitutional rights, and knowingly and intelligently waived them when he entered a guilty plea.

"The military judge is required to ensure that the accused personally understands the rights he is about to waive. We cannot be certain that this was the case here," the court wrote on Wednesday. "Based on this record, we believe appellant was advised of, understood, and knowingly waived his right to a trial of the facts. However, we are not prepared to conclude the same with respect to appellant's right against self-incrimination or his right to be confronted by and cross-examine witnesses."

The court returned the record of the trial to the Judge Advocate General of the Navy. A rehearing may be ordered.

Chief Judge Susan Crawford dissented from the court's decision, saying she believed the record showed that Hansen was adequately advised of his rights.

Hansen's plea "was informed and voluntary," Crawford wrote. "This court should no longer invite appellants and counsel to negotiate a bargain, plead guilty, gain the benefit of the bargain, and then have the conviction set aside with no demonstration of prejudice and every indication of waiver."

U.S. vs. Hansen, U.S. Court of Appeals for the Armed Forces, No. 03-0363.