Here and elsewhere, it looks like we can expect the Obama administration to continue to barrel down the path that has already taken us far from the country we used to be. And by next year, if a different president is in the Oval Office, expect him to lead us even further astray. With that in mind, here are five categories in the sphere of national security where 2012 is likely to prove even grimmer than 2011.

1. Ever More Punitive (Ever Less Fair-minded).

Those who imagine the era of overreach in the name of national security coming to an end any time soon would do well to remember that some spectacular national security trials are on the horizon — and that we may be entering a new age of governmental vindictiveness. Among the most newsworthy of those trials: the military commissions at Guantanamo that will bring to the docket Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attack, and his co-conspirators, as well as Abd al-Rahim al-Nashiri, the alleged point person in the 2000 suicide attack on the U.S.S. Cole in the port of Aden. These will likely include capital charges and be prosecuted in a spirit of vengeance.

But that spirit won’t stop with al-Qaida ringleaders and operatives.  A series of cases not involving attacks on or the killing of Americans will also be argued in the name of national security and in a similar spirit of vengeance. To begin with, there is the upcoming court martial of Pfc. Bradley Manning, accused of downloading classified U.S. government documents and leaking them to the website WikiLeaks. And then, of course, there is the potential prosecution of WikiLeaks founder Julian Assange in federal court — a federal grand jury is now considering his indictment — for his alleged collaboration with Manning.

Both cases have been hailed with a righteous anger that might strike an outsider as akin to frothing at the mouth. Top officials have insisted that the WikiLeaks materials threatened American lives and left “blood” on the hands of both Assange and Manning (though no one has yet pointed to a single individual physically harmed by the release of those documents).

At the more bloodthirsty end of the American political spectrum, former Arkansas governor and presidential candidate Mike Huckabee and Congressman Mike Rogers (R-Mich.), among others, have called for Manning’s execution. As Rogers explained, “I argue the death penalty clearly should be considered here… [Manning] clearly aided the enemy to what may result in the death of U.S. soldiers or those cooperating. If that is not a capital offense, I don’t know what is.”

A similar, if less lethal, desire for punishment lies behind the Obama administration’s determination to aggressively pursue and crack down on leaks to the media from inside the government, even when they don’t involve the actual theft of government documents. Obama, of course, entered the Oval Office proclaiming a “sunshine” policy when it came to the workings of the government, only to move beyond George W. Bush in attempts to clamp down on whistleblowers.

The pending trials of two former CIA officers exemplify this pattern. Jeffrey Sterling is charged with leaking classified documents to the New York Times’ James Risen about plans to release flawed information to Iran in a potentially counterproductive effort to subvert its nuclear program; John Kiriakou just pled not guilty to releasing information to the media about Bush-era torture policies. All told, the administration has gone after six suspected leakers — more than all previous administrations combined — using the draconian Espionage Act.

In the matter of leakers, the message couldn’t be clearer or more vengeful. The government’s position has been this: expose us and we will turn on you with a fury you can’t imagine. As terrorists have been warned that new laws and legal systems can be built to deal with them, those accused of leaks to the press are being told that even the full extent of the law may not be the limit when it comes to punishment.

Witness the treatment of Bradley Manning in his first year of punitive captivity before he was charged with any crime: he was kept in a Marine brig in total isolation and forced to sleep naked. Or consider the attempt not just to prosecute but to destroy the life of former National Security Agency official Thomas Drake. He was accused of leaking classified information on what he considered to be a wildly wasteful NSA program. In the end, though charged under the Espionage Act, he pled guilty to the misdemeanor of essentially borrowing a government computer — but not before his life had been turned upside down and his job lost.

2. Ever More Legal Limbo (Ever Less Confidence in the Constitution).  

By now, it’s old hat to acknowledge that the indefinite detention of those once deemed “enemy combatants,” now termed “unprivileged enemy belligerents,” has become as American as apple pie. Like the Bush administration before it, the Obama administration insists on its commitment to holding nearly 50 Guantanamo detainees in indefinite detention without charge or trial.

In May 2009, in a speech at the National Archives, the president couldn’t have been clearer: indefinite detention, he stated, would remain an option in the national security toolbox under his administration.  In this way, he guaranteed that an American version of offshore (in)justice and the essential character of Guantanamo, which he once claimed he would shut down, would continue intact.

In 2012, however, there is a worrisome new indefinite detainee category to worry about: U.S. citizens. Previously, Americans were exempt from incarceration at Guantanamo and so from its policy of detention without trial. In 2002, Yaser Hamdi, a Saudi-American citizen, when discovered at Guantanamo Bay, was hurried to a plane in the wee hours of the morning and whisked away, a sign of the rights still accorded American citizens. Similarly, the “American Taliban,” John Walker Lindh, apprehended on the Afghanistan battlefield, was brought into the federal court system.

Lately, however, Congress has shown less respect for the distinction between rights accorded to citizens and non-citizens. Last month, Congress passed the 2012 National Defense Authorization Act (NDAA). The debates over its passage reflected a concerted effort to make American citizens as well as foreigners subject to indefinite military detention.

Ultimately, citizens supposedly remain exempt from the new law, but even so, it was a close call and a signal about where we may be headed. As a recent Congressional Research Service report on the NDAA explained, it is “not intended to affect any existing authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States.”

Still, there remain many fears and much confusion about what protections are retained by U.S. citizens under the Act. Nor did President Obama’s signing statement, asserting that he would “not authorize the indefinite military detention without trial of American citizens,” assuage those fears and confusions. If American citizens were indeed protected from indefinite detention under the new legislation, why was such a signing statement necessary?

There is yet another place where the law seems to have plunged into legal limbo without in any way abridging U.S. actions: the high seas. Earlier this year, the Obama administration announced that it was detaining 15 pirates captured off the coast of Somalia — and that they were being held without reference to any legal status whatsoever. According to New York Times reporter C.J. Chivers, “where interdiction ends, an enduring problem begins: what to do with the pirates that foreign ships detain?”

According to the State Department, the pirates will be tried. But where? In the words of Vice-Admiral Mark I. Fox, “We lack a practical and reliable legal finish.” In other words, the U.S. has not yet found a country under whose law it can try them. In the meantime, according to the latest reports, the U.S. Navy continues to confine them. Think of this, conceptually speaking, as a floating Guantanamo intended to hold for-profit enemies.

3. Ever More Secrecy (Ever Less Transparency)

“Necessary” secrecy has been the fallback explanation for much of the information that has been withheld from public scrutiny since 9/11. The military commissions at Guantanamo will proceed, for instance, in part on the claim that, if the accused, many of whom have already been held for a decade, were to be tried in federal court, too much would be revealed that could somehow compromise the country’s security.

To counter civil libertarian claims that secrecy is only an attempt to hide embarrassing or wrongful behavior, the current administration has promised “transparency” in the military commissions scheduled to begin later this year. Efforts at transparency, announced last fall, included a website where documents — filled with redactions (blacked-out sections) — could be accessed by the public, and a closed-circuit viewing, albeit with a 40-second delay, for the media and members of the victims’ families.

It has taken next to no time, though, for the government to contradict those vows of transparency, ensuring that, in the polite words of Spencer Ackerman of Wired’s Danger Room blog, Guantanamo will remain “not a place of openness.” Meanwhile, all mail between the detainees and their military defense counsels is being screened, a practice that understandably has those lawyers in an uproar.

In the category of non-transparency and the growth of secrecy as a first principle of government, there is the administration’s elaborate dance of nondisclosure over a memo produced by the Justice Department’s Office of Legal Counsel (OLC).  It was evidently written to justify the assassination by drone in Yemen last September of American citizen Anwar al-Awlaki, alleged to have been the “bin Laden of the Internet.”

Until recently, the administration has ducked questions about al-Awlaki’s killing and that of another American citizen, Samir Khan, the editor of the al-Qaida magazine Inspire. In January, the government announced that Attorney General Eric Holder would soon make public the OLC memo that legalized the killing, but delayed the Attorney General’s explanation until early March. Meanwhile, the New York Times and the ACLU filed a Freedom of Information Act (FOIA) request for its release. On March 5th, Holder finally gave a detailed explanation of the tortured reasoning behind the targeted killing of al-Awlaki, but still, no memo seems to be forthcoming.

During the past year, the imposition of secrecy on government activities of all sorts has only become more pronounced. To offer just one egregious example among many, consider the government’s behavior in the case of former CIA agent Jeffrey Sterling.  At its request, a federal judge has now agreed to allow it to invoke the “silent witness rule.” In other words, she will let government documents be shown to the jury without being made public, on the grounds, according to prosecutors, of “national security.”

After a decade in which the customary practice in matters of “security” has been to sweep all too many government documents of significance into the shadows under that rubric of national security, this should hardly be surprising. Americans now know ever less about what the government they elected does.  If it were not for the FOIA lawsuits of the ACLU and others, very little of what we do know about torture, warrantless surveillance and other instances of government malfeasance would ever have seen the light of day. Consider the increasing number of whistleblower prosecutions as one more way to try to shut government activities off from the eyes of the citizenry.

4. Ever More Distrust (Ever Less Privacy)

For years, the prospect of warrantless wiretapping in the name of national security has had a chilling effect on Americans who have opposed government policies in the war on terror. In 2008, President Bush signed a new FISA Amendments Act (FAA), which authorized the government to snoop on citizens with minimal oversight from the already secretive Foreign Intelligence Surveillance Courts.  (They were set up in 1978 to oversee the granting of surveillance warrants against potential foreign intelligence agents.) The Obama administration has continually opted to uphold this power and the government’s freedom to warrantlessly tap electronic communications between people outside the United States and people inside the country in the name of national security.

Meanwhile, the latest revelations in the ever-more-distrust, ever-less-privacy sweepstakes are led by news that the New York City Police Department (NYPD) has implemented surveillance programs that violate the civil liberties of that city’s Muslim-American citizens.  The NYPD infiltrated mosques and universities, collecting information on individuals suspected of no crimes, in conjunction with a CIA officer (now withdrawn) using methods traditionally reserved for that agency.

This surely represents, however informally, an abrogation of the CIA’s mandate to conduct its surveillance only abroad, and it’s likely that no one involved will pay a penalty for it. In addition, in a striking combination of security overreach and police profiling, the NYPD has been investigating and surveilling Muslim-American citizens well outside the city limits — from New Haven, Connecticut, to Newark, New Jersey.

To make matters worse, the government just approved the use of surveillance drones as part of a growing law enforcement arsenal for gathering information in the United States. On February 14th, President Obama signed a bill allowing for the use of such drones in a broad array of arenas, ranging from business activities to law enforcement.

The message is clear enough: this year (next year and the year after) will be the year of more snooping.  For law enforcement, your life is apparently an open book.

5. Ever More Killing (Ever Less Peace)

Scarcely a day goes by without news of the use of Predator and Reaper drones to kill individuals in foreign countries, including in recent years Afghanistan, Pakistan, Iraq, Yemen, Somalia, Libya and the Philippines. It’s as if the CIA and the military have been handed a new toy that they just can’t refrain from using, or teaching others to use. According to the Atlantic, “Conservative estimates suggest hundreds of noncombatant civilians have been killed in Pakistan alone.”

Meanwhile, the drumbeat for war with Iran continues to build. Faced with the prospect of an Israeli attack on the Islamic Republic, the Obama administration has refused to definitively back away from the prospect of becoming part of that war.

“Iran’s leaders should understand that I do not have a policy of containment,” the president said.  “I have a policy to prevent Iran from obtaining a nuclear weapon. And as I have made clear time and again during the course of my presidency, I will not hesitate to use force when it is necessary to defend the United States and its interests.”

In fact, the urge to stop a potentially disastrous confrontation, which could seriously affect the price of oil and the global economy, has sent high military and civilian officials winging from Washington to Israel with warnings against an attack on Iran.  Still, war continues to be treated by diplomats and others almost as a fait accompli.

The news then is certainly grim, and moving in one clear direction — the use of the law, or at least the Justice Department’s version of the law, to justify whatever acts the government feels are necessary against whomever they deem to be the enemy. Attorney General Holder summed the situation up tellingly in his defense of the al-Awlaki killing.

In significant detail, he explained that the killing of an American citizen (and terror suspect) was lawful, despite the fact that it brought into question the guarantee of due process under the Fifth Amendment, and despite the guarantees offered by the laws of war. “Due process,” he declared, “is not judicial process.” It was a startlingly honest admission of something new under the American sun: due process is now what the president and his closes advisors decide it is, a constitutional rethinking of the first order to justify the “targeted killing” of an American citizen.

To sum up, the legal gray zone Washington has, over the course of a decade, plunged us into — and everything that goes with it, including punitive measures, attempts to bypass constitutional guarantees, the spread of secrecy and surveillance, a growing distrust of American citizens, and straightforward killing — isn’t something we will soon put behind us. The move away from the rights and liberties enshrined in the Constitution and the law is very clearly the way of the American future in our new age of enemies.

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Punish the Whistleblowers

The Obama administration has already charged more people — six — under the Espionage Act for alleged mishandling of classified information than all past presidencies combined. (Prior to Obama, there were only three such cases in American history.)

Kiriakou, in particular, is accused of giving information about the CIA’s torture programs to reporters two years ago. Like the other five whistleblowers, he has been charged under the draconian World War I-era Espionage Act.

That Act has a sordid history, having once been used against the government’s political opponents. Targets included labor leaders and radicals like Eugene V. Debs, Bill Haywood, Philip Randolph, Victor Berger, John Reed, Max Eastman and Emma Goldman. Debs, a union leader and socialist candidate for the presidency, was, in fact, sentenced to 10 years in jail for a speech attacking the Espionage Act itself. The Nixon administration infamously (and unsuccessfully) invoked the Act to bar the New York Times from continuing to publish the classified Pentagon Papers.

Yet, extreme as use of the Espionage Act against government insiders and whistleblowers may be, it’s only one part of the Obama administration’s attempt to sideline, if not always put away, those it wants to silence. Increasingly, federal agencies or departments intent on punishing a whistleblower are also resorting to extra-legal means. They are, for instance, manipulating personnel rules that cannot be easily challenged and do not require the production of evidence. And sometimes, they are moving beyond traditional notions of “punishment” and simply seeking to destroy the lives of those who dissent.

The well-reported case of Thomas Drake is an example. As an employee, Drake revealed to the press that the National Security Agency (NSA) spent $1.2 billion on a contract for a data collection program called Trailblazer when the work could have been done in-house for $3 million. The NSA’s response? Drake’s home was raided at gunpoint and the agency forced him out of his job.

“The government convinced themselves I was a bad guy, an enemy of the state, and went after me with everything they had seeking to destroy my life, my livelihood and my person — the politics of personal destruction, while also engaging in abject, cutthroat character assassination and complete fabrication and frame up,” Drake told Antiwar.com. “Marriages are strained, and spouses’ professional lives suffer as much as their personal lives. Too often, whistleblowers end up broken, blacklisted and bankrupted,” said the attorney who represents Drake.

In Kiriakou’s case, the CIA found an excuse to fire his wife, also employed by the Agency, while she was on maternity leave. Whistleblower Bradley Manning, accused of leaking Army and State Department documents to the website WikiLeaks, spent more than a year in the worst of punitive conditions in a U.S. Marine prison and was denied the chance even to appear in court to defend himself until almost two years after his arrest. Former chief military prosecutor at Guantanamo Morris Davis lost his career as a researcher at the Library of Congress for writing a critical op-ed for the Wall Street Journal and a letter to the editor at the Washington Post on double standards at the infamous prison, as did Robert MacClean for blowing the whistle on the Transportation Security Administration.

Four employees of the Air Force Mortuary in Dover, Delaware, attempted to address shortcomings at the facility, which handles the remains of all American service members who die overseas. Retaliation against them included firings, the placing of employees on indefinite administrative leave, and the imposition of five-day suspensions. The story repeats itself in the context of whistleblowers now suing the Food and Drug Administration for electronically spying on them when they tried to alert Congress about misconduct at the agency. We are waiting to see the Army’s reaction to whistleblower Lieutenant Colonel Daniel Davis, who documented publicly this week that senior leaders of the Department of Defense intentionally and consistently misled the American people and Congress on the conduct and progress of the Afghan War.

And this remains the most partial of lists, when it comes to recent examples of non-judicial government retaliation against whistleblowers.

Government bureaucrats know that this sort of slow-drip intimidation keeps people in line. It may, in the end, be less about disciplining a troublemaker than offering visible warning to other employees. They are meant to see what’s happening and say, “Not me, not my mortgage, not my family!” — and remain silent. Of course, creative, thoughtful people also see this and simply avoid government service.

In this way, such a system can become a self-fulfilling mechanism in which ever more of the “right kind” of people chose government service, while future “troublemakers” self-select out — a system in which the punishment of leakers becomes the pre-censorship of potential leakers. At the moment, in fact, the Obama administration might as well translate the famed aphorism “all that is necessary for evil to triumph is for good people to remain silent” into Latin and carve it into the stone walls of the CIA’s headquarters in Langley, Virginia, or NSA headquarters at Fort Meade, or the main office of the State Department at Foggy Bottom where I still fight to keep my job.

Silent State

I am told that, in its 223 years of existence, I am the only Foreign Service Officer ever to have written a critical book about the State Department while still employed there. “We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People“ exposed what State did not want people to know: that they had wasted enormous amounts of money in Iraq, mostly due to ignorance and a desire for short-term successes that could be trumpeted back home. For the crime of writing this book and maintaining a blog that occasionally embarrasses, State Department officials destroyed my career, even as they confirm my thesis, and their own failure, by reducing the Baghdad Embassy to half its size in the face of Iraq’s unraveling.

“The State Department was aware of Mr. Van Buren’s book long prior to its release,” explains attorney Jesslyn Radack, who now represents me. “Yet instead of addressing the ample evidence of fraud, waste and abuse in the book, State targeted the whistleblower. The State Department’s retaliatory actions are a transparent attempt to intimidate and silence an employee whose critique of fraudulent, wasteful and mismanaged U.S. reconstruction efforts in Iraq embarrassed the agency.”

Without allowing any rebuttal or defense, State suspended my security clearance, claiming my blogging was an example of “poor judgment,” transferred me from a substantive job into a meaningless telework position, threatened felony conviction over alleged disclosure of classified information, illegally banned me from entering the building where I supposedly work, and continues to try to harass and intimidate me.

My travel vouchers from as far back as the law allows have come under “routine” re-examination. My Internet activity is the subject of daily reports. My credit reports have been examined for who knows what. Department friends who email me on topical issues have been questioned by agents of Diplomatic Security, the State Department’s internal police. My Freedom of Information Act request for documents to help defend myself and force State to explain its actions has been buried.

Without a security clearance, and with my Diplomatic Passport impounded, I will never serve overseas again, the lifeblood of being a Foreign Service Officer (FSO). A career that typically would extend another 10 years will be cut short in retaliation for my attempt to tell the truth about how taxpayer money was squandered in Iraq.

All of this has taken place in such a way that I cannot challenge it (except by writing and speaking about it in public — at additional risk). The State Department has standard disciplinary procedures that it could have invoked against me, but those leave room for public challenges and, in some cases, would allow me to force documents into the open that State would rather not share with you.

Hall Walkers: Ghosts in the Machine

Before “telework” existed as an option that allowed undesirable employees to be sent home and into a kind of benign house arrest, people like me at State were called “hall walkers.” They were the ones whom the Department no longer wanted as employees, but who could not be fired due to lack of evidence. So they would have their security clearances suspended without recourse, be removed from their assignments, and yet told that, to get paid, they needed to be physically present in the main State building eight hours a day.

Since they were not assigned to an office, State was wholly unconcerned about how they occupied themselves during those long empty days. And though as a “teleworker” I am not one, the hall walkers are still with us.

The main State building is enormous, with literally miles and miles of corridors, and the hall walker might wander them, kill time at the library, have a long lunch, stop in to chat with former colleagues still willing to be seen in his or her company. Even in the first FSO training course called A-100, young diplomats are advised that the most ignominious end to a career is not failing at your job, but being thrown into the purgatory of hall walking — still on the payroll but no longer a member of the tribe. Disowned, shunned, exiled in the ancient Greek tradition.

Hall walking is a far cry from being dragged through a trial or spending two years in solitary, but it exists on the same continuum. No one at State will say how many employees still exist in the shadow world of hall walking, but at least dozens is a reasonable guess.

I am told as well that State Department officials are increasingly moving to suspend security clearances for acts wholly outside the realm of security, like blogging they find offensive. One State Department Human Resources employee confided to me that this has, in fact, become the go-to strategy for winnowing out unwanted employees in the too-hard-to-fire category, a sad evolution, given the sorry history of the State Department in the McCarthy era.

Fighting Back

For a government employee being punished extra-legally by an agency ignoring its own rules, there is still one recourse: the Office of the Special Counsel. Created in 1979, it was to be an ombudsman meant to keep an eye on governmental nastiness and ensure the implementation of the Whistleblower Protection Act. Empowered, among other things, to investigate and “make right” instances of federal retaliation against legitimate whistleblowers, the office was sidelined through several administrations.

Under George W. Bush, it was embroiled in scandal when its head, Special Counsel Scott Bloch, instead purged its staff of lawyers who disagreed with him and announced that he would not follow up on cases of discrimination based on sexual orientation. Last summer, Bloch pleaded guilty to deleting evidence from his computer while under investigation for retaliating against his own staff.

At a moment when government extra-legal retaliation against whistleblowers and leakers is on the rise, call it ironic, but the Office of the Special Counsel has seen a rebirth under its current head, Obama appointee Carolyn Lerner. As the Washington Post recently described her, Lerner has “gone to the mat and tried to expand the boundaries of the law’s protections for whistleblowers. She has lifted long-sagging morale at an agency that, instead of behaving as an independent watchdog, has treaded water for much of its existence.”

Specifically, Lerner reassignedstaff members to review a backlog of cases against whistleblowers facing reprisals, including “veterans’ hospital staff members reporting poor lab procedures [and] air traffic controllers claiming flight-pattern dangers.” She has enforced a 60-day limit on responses from federal agencies. The Office seems to have re-embraced its mission. “She’s a pit bull,” saysTom Devine, legal director of the Government Accountability Project, which defends whistleblowers.

There are other signs of resistance in Washington to the urge to cloak the government in silence. For example, Senator Charles Grassley (R-IA) launchedan investigation into the Food and Drug Administration’s secret email monitoring of scientists warning that unsafe medical devices were being approved over their objections. Whistleblowers, said Grassley, often are treated “like skunks at a picnic.”

The Senator demanded that FDA Commissioner Margaret Hamburg disclose who authorized the monitoring, how many employees were targeted, and whether the agency obtained passwords to personal email accounts, allowing communications on private computers to be intercepted. He also wants to know whether the agency’s two-year surveillance campaign is still ongoing.

In another recent case, the Office of the Special Counsel formally asked the Air Force to take harsher disciplinary action against supervisors at the Dover mortuary who had tried to fire two whistleblowers who raised accusations about the mishandling of soldiers’ remains.

The Government Accountability Project has filed a complaint on my behalf with the Office of the Special Counsel demanding that the State Department cease its retaliatory personnel practices against me. The Department is particularly vulnerable, given its drumbeat of support for the rights of bloggers and other dissidents in the Middle East and China. State has already been forced to readmit me to the building and return my access badge.  I remain an optimist, believing that my complaint will succeed and that, someday, I will return to work at a State Department where employees can talk openly about the bad as well as the good.

It Matters

Americans, who elect and pay for their government in Washington, deserve to know exactly what it does there — and elsewhere around the world — with their dollars. As in my case in Iraq, such information often is only available if some insider, shocked or disturbed by what he or she has seen, decides to speak out, either directly, in front of Congress, or through a journalist.

The Obama administration, which arrived in Washington promoting “sunshine” in government, turned out to be committed to silence and the censoring of less-than-positive news about its workings. While it has pursued no prosecutions against CIA torturers, senior leaders responsible for Abu Ghraib or other war crimes, or anyone connected with the illegal surveillance of American citizens, it has gone after whistleblowers and leakers with ever increasing fierceness, both in court and inside the halls of various government agencies.

There is a barely visible but still significant war raging between a government obsessed with secrecy and whistleblowers seeking to expose waste, fraud and wrongdoing. Right now, it is a largely one-sided struggle and the jobs of those of us who are experiencing retaliation are the least of what’s at stake.

Think of those victims of retaliatory personnel practices and imprisoned whistleblowers as the canaries in the deep mineshaft of federal Washington, clear evidence of a government that serves its people poorly and has no interest in being held accountable for that fact. This administration fears the noise of democracy, preferring the silence of compliance.

[Disclaimer: The views expressed here are solely those of the author in his private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the U.S. government. The Department of State most certainly does not approve, endorse or authorize this article.]

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The recommendation this week was made to Maj. Gen. Michael Linnington, commander of the Military District of Washington, who is what is known as the convening authority in the case. The military justice system has important differences from the civilian system, so I spoke to Eugene R. Fidell, who teaches military justice at Yale Law School, to explain the basics.

We’ve now had the investigating officer as well as another officer this week recommend a court-martial to the Military District of Washington commander. What’s the next step?

A convening authority, which is a general officer, will decide whether to refer the case to a court-martial. There’s no designated time frame for this, but I think it will be in the next couple of weeks. A court-martial is a military criminal court that will have serious punishment powers. There will be a military judge presiding over it, who is a uniformed lawyer. There’s a prosecutor. There’s defense counsel. Unless Manning waives the jury, there will be a jury of at least five people.

Who makes up the jury?

The jury is selected by the convening authority. It’s not random selection. The general will select the members; it’s supposed to be a blue ribbon group. They are supposed to be the best qualified people with respect to education, experience, judicial temperament and so on. Because Manning is an enlisted man, he has a right to enlisted representation on the court. That means that at least one-third of the jury would have to be enlisted men or women.

In the civilian trial setting, there’s usually a lot of argument over who sits on the jury. How does that work in a court-martial?

The same thing happens. There’s an opportunity for the lawyers on both sides to question the jurors — who are actually called “members” in a court-martial — to determine whether they are capable of acting impartially. Each side has a right to challenge a member not only for cause, but also peremptorily, in other words for no reason.

To convict a defendant in a non-capital case requires only a two-thirds vote of the members. How the vote breaks down depends on how many members there are. The minimum is five, but there’s something called the numbers game that the lawyers on both sides are aware of. That is, that you want to use your right to challenge a member in order to manipulate the size of the court to maximize the chances of either conviction or acquittal, depending on your perspective. The number slightly tweaks the percentage. Two-thirds of five members is four, meaning the government would need 80 percent to convict. Two-thirds of six members is also four, which means the government would need only 66 percent to convict.

What about the judge — how is he or she different than a judge in a civilian case?

Once the case is referred to a court-martial, and a judge is assigned, the convening authority’s power becomes subject to review, and a judge sort of takes charge of the case. Until that happens — until the case is referred to trial — the convening authority really rules the roost.

The big difference as compared to a civilian federal judge is that a military judge doesn’t have life tenure. The judge in an Army court-martial is guaranteed tenure for only three years, which in my opinion is inadequate. Individually the judges may be perfectly independent, but in terms of the structural protections, the U.S. system is highly deficient in this area.

So the concern is that these judges might be worried about their later career and that affects how they hear cases?

Yeah, that’s the theory. Three years is shorter than any comparable criminal court in this country.

Turning to the trial itself, are the rules different than in a civilian court?

No, the rules are essentially the same as a federal district court. The rules of evidence are a virtual carbon copy, the rules of how people conduct themselves, and so on. Courts-martial are also open to the public, except to the extent that classified information is involved. Even then, only the bare minimum needed to protect the information is closed to the public.

If Manning is ultimately found guilty, how does the sentencing work? 

If there is a jury, the jury will do sentencing. Remember, he can waive the jury. But he can’t waive only on sentencing; he would have to waive it on guilt-or-innocence and sentencing together. If he waives the jury, the judge will decide both guilt or innocence and determine the sentence. If Manning goes with a jury, the sentence is determined by the jury. And anything in excess of 10 years has to be decided by a three-fourths vote. If it were a capital case — which it’s not — there would have to be 12 members of the jury and they would have to be unanimous.

What about appeals — can he appeal if he is found guilty?

The first level of review after a case is tried and there is a sentence is to the convening authority. He or she can disapprove the conviction, can cut the sentence and so forth. He or she can overturn the result of the trial. After the convening authority acts, it goes automatically to the Army Court of Criminal Appeals, which is made up of military officers who sit in northern Virginia. There are lawyers on both sides, and briefs are filed, and there may be oral argument. Then they will issue a decision. From there, assuming the case is affirmed, Manning would have the right to petition for discretionary review by the U.S. Court of Appeals for the Armed Forces. That’s a civilian court of five judges who sit in Washington, D.C., with proceedings open to the public. If they granted review, there would be an oral argument, and the case would result in a decision. If that court grants review, then the case becomes eligible for review by the Supreme Court. The Supreme Court can refuse to hear it, but at least Manning would have the right to ask the Supreme Court for review.

Club rules do, however, permit one loophole: Washington officials may bemoan the nightmare of civilian casualties — but only if they can be pinned on a 24-year-old Army private first class named Bradley Manning.

Pfc. Manning, you will remember, is the young soldier who is soon to be court-martialed for passing some 750,000 military and diplomatic documents, a large chunk of them classified, to the website WikiLeaks. Among those leaks, there was indeed some serious stuff about how Americans dealt with civilians in invaded countries. For instance, the documents revealed that the U.S. military, then the occupying force in Iraq, did little or nothing to prevent Iraqi authorities from torturing prisoners in a variety of gruesome ways, sometimes to death.

Then there was that gun-sight video — unclassified but buried in classified material — of an American Apache helicopter opening fire on a crowd on a Baghdad street, gunning down a dozen men, including two Reuters employees, and injuring more, including children. There were also those field reports about how jumpy American soldiers repeatedly shot down civilians at roadside checkpoints; about night raids gone wrong both in Iraq and Afghanistan; and a count of thousands of dead Iraqi civilians, a tally whose existence the U.S. military had previously denied possessing.

Together, these leaks and many others offered a composite portrait of military and political debacles in Iraq and Afghanistan whose grinding theme has been civilian casualties, a fact not much noted here in the U.S. A tiny number of low-ranking American soldiers have been held to account for rare instances of premeditated murder of civilians, but most of the troops who kill civilians in the midst of the chaos of war are not tried, much less convicted. We don’t talk about these cases a lot either. On the other hand, officials of all types make free with lusty condemnations of Bradley Manning, whose leaks are luridly credited with potential (though not actual) deaths.

Putting Lives in Danger

“[WikiLeaks] might already have on their hands the blood of some young soldier or that of an Afghan family,” said Admiral Mike Mullen, then Chairman of the Joint Chiefs of Staff, on the release of the Afghan War Logs in July 2010. This was, of course, the same Admiral Mullen who had endorsed a major escalation of the war in Afghanistan, which would lead to a tremendous “surge” in casualties among civilians and soldiers alike.  Here are counts — undoubtedly undercounts, in fact — of real Afghan corpses that, at least in part, resulted from the policy he supported: 2,412 in 2009, 2,777 in 2010, 1,462 in the first half 2011, according to the U.N. Assistance Mission to Afghanistan.  As far as anyone knows, here are the corpses that resulted from the release of those WikiLeaks documents: 0. (And don’t forget, the stalemate war with the Taliban has not budged in the period since that surge.)  Who, then, has blood on his hands, Pfc. Manning — or Admiral Mullen?

Of course the admiral is hardly alone. In fact, whole tabernacle choirs have joined in the condemnation of Manning and WikiLeaks for “causing” carnage, thanks to their disclosures.

Robert Gates, who served as secretary of defense under George W. Bush and then Barack Obama, also spoke sternly of Manning’s leaks, accusing him of “moral culpability.” He added, “And that’s where I think the verdict is ‘guilty’ on WikiLeaks. They have put this out without any regard whatsoever for the consequences.”

This was, of course, the same Robert Gates who pushed for escalation in Afghanistan in 2009 and, in March 2011, flew to the Kingdom of Bahrain to offer his own personal “reassurance of support” to a ruling monarchy already busy shooting and torturing nonviolent civilian protesters. So again, when it comes to blood and indifference to consequences, Bradley Manning — or Robert Gates?

Nor have such attitudes been confined to the military. Secretary of State Hillary Clinton accused Manning’s (alleged) leak of 250,000 diplomatic cables of being “an attack on the international community” that “puts people’s lives in danger, threatens our national security, and undermines our efforts to work with other countries to solve shared problems.”

As a senator, of course, she supported the invasion of Iraq in flagrant contravention of the U.N. Charter. She was subsequently a leading hawk when it came to escalating and expanding the Afghan War, and is now responsible for disbursing an annual $1.3 billion in military aid to Egypt’s ruling junta whose forces have repeatedly opened fire on nonviolent civilian protesters.  So who’s been attacking the international community and putting lives in danger, Bradley Manning — or Hillary Clinton?

Harold Koh, former Yale Law School dean, liberal lion and currently the State Department’s top legal adviser, has announced that the same leaked diplomatic cables “could place at risk the lives of countless innocent individuals — from journalists to human rights activists and bloggers to soldiers to individuals providing information to further peace and security.”

This is the same Harold Koh who, in March 2010, provided a tortured legal rationale for the Obama administration’s drone strikes in Pakistan, Yemenand Somalia, despite the inevitable and well-documented civilian casualties they cause.  So who is risking the lives of countless innocent individuals, Bradley Manning — or Harold Koh?

Much of the media have clambered aboard the bandwagon, blaming WikiLeaks and Manning for damage done by wars they once energetically cheered on.

In early 2011, to pick just one example from the ranks of journalism, New Yorker writer George Packer professed his horror that WikiLeaks had released a memo marked “secret/noforn” listing spots throughout the world of vital strategic or economic interest to the United States. Asked by radio host Brian Lehrer whether this disclosure had crossed a new line by making a gratuitous gift to terrorists, Packer replied with an appalled yes.

Now, among the “secrets” contained in this document are the facts that the Strait of Gibraltar is a vital shipping lane and that the Democratic Republic of the Congo is rich in minerals. Have we Americans become so infantilized that factoids of basic geography must be considered state secrets? (Maybe best not to answer that question.)  The “threat” of this document’s release has since been roundly debunked by various military intellectuals.

Nevertheless, Packer’s response was instructive.  Here was a typical liberal hawk, who had can-canned to the post-9/11 drumbeat of war as a therapeutic wake-up call from “the bland comforts of peace,” now affronted by WikiLeaks’ supposed recklessness.  Civilian casualties do not seem to have been on Packer’s mind when he supported the invasion of Iraq, nor has he written much about them since.

In an enthusiastic 2006 New Yorker essay on counterinsurgency warfare, for example, the very words “civilian casualties” never come up, despite their centrality to COIN theory, practice and history.  It is a fact that, as Operation Enduring Freedom shifted to counterinsurgency tactics in 2009, civilian casualties in Afghanistan skyrocketed.  So, for that matter, have American military casualties.  (More than half of U.S. military deaths in Afghanistan occurred in the past three years.)

Liberal hawks like Packer may consider WikiLeaks out of bounds, but really, who in these last years has been the most reckless, Bradley Manning — or George Packer and some of his pro-war colleagues at the New Yorker like Jeffrey Goldberg (who has since left for the Atlantic Monthly, where he’s been busily clearing a path for war with Iran) and editor David Remnick?

Centrist and liberal nonprofit think tanks have been no less selectively blind when it comes to civilian carnage. Liza Goitein, a lawyer at the liberal-minded Brennan Center at NYU Law School, has also taken out after Bradley Manning.  In the midst of an otherwise deft diagnosis of Washington’s compulsive urge to over-classify everything — the federal government classifies an amazing 77 million documents a year — she pauses just long enough to accuse Manning of “criminal recklessness” for putting civilians named in the Afghan War logs in peril — “a disclosure,” as she puts it, “that surely endangers their safety.”

It’s worth noting that, until the moment Goitein made this charge, not a single report or press release issued by the Brennan Center has ever so much as uttered a mention of civilian casualties caused by the U.S. military. The absence of civilian casualties is almost palpable in the work of the Brennan Center’s program in  “Liberty and National Security.” For example, this program’s 2011 report “Rethinking Radicalization,” which explored effective, lawful ways to prevent American Muslims from turning terrorist, makes not a single reference to the tens of thousands of well-documented civilian casualties caused by American military force in the Muslim world, which according to many scholars is the prime mover of terrorist blowback.  The report on how to combat the threat of Muslim terrorists, written by Pakistan-born Faiza Patel, does not, in fact, even contain the words “Iraq,” “Afghanistan,” “drone strike,” “Pakistan” or “civilian casualties.”

This is almost incredible, because terrorists themselves have freely confessed that what motivated their acts of wanton violence has been the damage done by foreign military occupation back home or simply in the Muslim world.  Asked by a federal judge why he tried to blow up Times Square with a car bomb in May 2010, Pakistani-American Faisal Shahzad answered that he was motivated by the civilian carnage the U.S. had caused in Iraq, Afghanistan and Pakistan. How could any report about “rethinking radicalization” fail to mention this?  Although the Brennan Center does much valuable work, Goitein’s selective finger-pointing on civilian casualties is emblematic of a blindness to war’s consequences widespread among American institutions.

American Military Whistleblowers

Knowledge may indeed have its risks, but how many civilian deaths can actually be traced to the WikiLeaks revelations?  How many military deaths?  To the best of anyone’s knowledge, not a single one.  After much huffing and puffing, the Pentagon has quietly denied — and then denied again — that there is any evidence at all of the Taliban targeting the Afghan civilians named in the leaked war logs.

In the end, the “grave risks” involved in the publication of the War Logs and of those State Department documents have been wildly exaggerated.  Embarrassment, yes. A look inside two grim wars and the workings of imperial diplomacy, yes. Blood, no.

On the other hand, the grave risks that were hidden in those leaked documents, as well as in all the other government distortions, cover-ups and lies of the past decade, have been graphically illustrated in aortal red. The civilian carnage caused by our rush to war in Iraq and by our deeply entrenched stalemate of a war in Afghanistan (and the Pakistani tribal borderlands) is not speculative or theoretical but all-too real.

And yet no one anywhere has been held to much account: not in the political class, not in the military, not in the think tanks, not among the scholars, nor the media.  Only one individual, it seems, will pay, even if he actually spilled none of the blood. Our foreign policy elites seem to think Bradley Manning is well-cast for the role of fall guy and scapegoat. This is an injustice.

Someday, it will be clearer to Americans that Pfc. Manning has joined the ranks of great American military whistleblowers like Dan Ellsberg (who was first in his class at Marine officer training school); Vietnam War infantryman Ron Ridenhour, who blew the whistle on the My Lai massacre; and the sailors and marines who, in 1777, reported the torture of British captives by their politically connected commanding officer. These servicemen, too, were vilified in their times. Today, we honor them, as someday Pfc. Manning will be honored.

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Here (.pdf), via Gerstein, is the Public Affairs Office media coverage summary that refers to “1,045 social media conversations about the hearing.” It also notes that “the VOCUS media site listed most of the coverage of Manning as negative, the majority of the coverage about the hearing remains balanced and factual.”

VOCUS, which is based in a Maryland suburb of Washington, offers its customers the ability to “monitor social conversations, mentions and trends,” and:

• Identify influencers. Rank top tweeters and bloggers by the number of followers, retweets, blog comments, and activity volume, so you can see who you need to be talking to.

• Cover more blog posts. Vocus monitors more than 20 million of the most influential blogs. Best of all, we filter out aggregator sites, so you don’t get false or duplicated results.

• Track sentiment and tone. Mentions are analyzed to gauge the feelings of bloggers, tweeters and readers – giving you insight far beyond the lead story.

• Monitor Twitter in near-real time. Find out what people are saying and analyze all the chatter so you can engage within minutes. Vocus makes it easy to track retweets and identify the originating tweet.

Here are a couple sample screenshots of VOCUS software centering on Twitter. I’ve asked the Army how exactly it uses VOCUS and I will update this post if I hear back.

UPDATE 1/11/12: The Army send along this statement in response to my inquiry, which does not shed much light on how it uses VOCUS:

The Army employs traditional and contemporary public relations methods with which to communicate with its varied publics. Our news-gathering and assessment tools are in keeping with modern practices, and are used to determine the level at which we engage with the public to inform our vast constituencies. The Politico report reflects the Army’s connection with the public, and our transparency in such matters.