That myth died in May 2005 when Vanity Fair revealed that Deep Throat was Mark Felt, a former acting deputy director of the FBI, who, it turns out, was quite comfortable with the abuse of power. After the Watergate saga, he was convicted of authorizing illegal break-ins. Now, Max Holland’s ingenious new book, “Leak: Why Mark Felt Became Deep Throat,” reconstructs how Felt used Woodward and the Post to advance his true agenda, which Holland argues convincingly was not doing justice but becoming director of the FBI.

At its best, this “dandy” book (critic Jack Shafer’s word) illuminates an underappreciated reality of Washington: journalism’s role in the clash of factions within the U.S. government. Holland sets the Watergate story in the context of what historian Stanley Kutler calls “the war of FBI succession.” This was the power struggle that erupted after the death of longtime FBI director J. Edgar Hoover in May 1972. When the Watergate burglars were arrested six weeks later, Felt started slipping tidbits of information to Woodward, a 30-year-old reporter in the Post Metro section who, by his own admission, had been sucking up to Felt for close to two years.

Felt, says Holland, aimed to discredit acting director L. Patrick Gray, and enhance his own prospects of eventually getting the top job. In other words, Felt wasn’t talking to Woodward to see justice done. He was trying to screw his rivals for the sake of getting a promotion.

Portraying Felt/Deep Throat as a factional power player, not a high-minded voice of truth, is a public service. But Holland goes too far in deprecating the accomplishments of Woodward and Carl Bernstein. He develops the argument first made by Edward Jay Epstein that the Post got too much credit for exposing the criminal conspiracy emanating from Nixon’s White House.

“Contrary to widely held perception that the Post uncovered Watergate,” Holland writes, “the newspaper essentially tracked the progress  of the FBI’s investigation with a time delay ranging from weeks to days, and published elements of the prosecutor’s case well in advance of the trial.” From the leisurely perspective of a historian that may be convincing. For  working journalists, the publication of a story days or weeks in advance of the government is the whole point.

Nevertheless, “All the President’s Men” embellished Woodward’s and Bernstein’s fine job to an act of moral heroism. The film reassured viewers that the good guys could win with the help of a wise man on the inside. Any young person who is inspired to do journalism by “All the President’s Men” should also read “Leak.” The romantic myth of journalism is dead and that’s a good thing.

But the need for good journalism is still dire, and the lessons of Holland’s book are as relevant as ever. Consider the ongoing struggle over U.S. policy toward Iran’s nuclear program and how its factions see the press as tools for power. One faction, centered in the White House and the Pentagon, favors diplomacy and sanctions. The other faction, strongest on Capitol Hill, favors the Israeli point of view that the time for military action is coming.

Both sides leak classified information — a National Intelligence Estimate here, a report from Iranian dissidents there — to justify and fortify the policy they favor. The leakers of this information seek to advance their favorite policy, while reporters seek to educate the public — or so they say.

The possibilities for corruption in this relationship of mutual exploitation are obvious. Conservatives and radicals note, with some justice, that liberal reporters who claim to stand independent of the power struggles they cover may merely be  serving the faction of their choice. Liberals note, with some justice, that conservative reporters are prone to that very same problem.

During the run-up to the Iraq war, the pro-war faction in the White House and Pentagon leaked closely held (and completely unfounded) information to New York Times reporter Judith Miller. Their purpose was not rhetorical but practical. Miller’s scoops were not only intended to influence public opinion; they were also intended to discredit the go-slow faction in the State Department and CIA and justify their case for war in the administration’s war councils. Some say Miller “fell in love” with her sources, though her subsequent move to the conservative think tank suggests that she may have aided the pro-war faction out of conviction.

Woodward faced similar criticism for his post-9/11 books “Bush at War” and “Plan of Attack.” While not as credulous about sources as Miller, Woodward did portray the Bush team in ways that now seem generous, if not misguided. A third book on the Bush administration, 2006′s “State of Denial,” was tougher, but the limitations of Washington journalism keyed to the thoughts of high-level sources never seemed more evident.

Not coincidentally, the spread of digital media has also undermined the romantic self-conception of journalism. It was no coincidence that the myth of Deep Throat was dying at the same time that WikiLeaks emerged as a journalistic force. For those interested in truth-telling, Julian Assange offered a whole different perspective on the clash of factions in Washington: a pox on all their houses. Journalists should not shuttle between policymakers talking sotte voce in pursuit of leaks, Assange said. They should oppose all factions within the secretive national security state and seek to disrupt their policies.

As the reach of the national security agencies grows so does the need for vigilance about their activities. WikiLeaks now describes itself as a news organization, a hub for hackers/reporters with new information about the inner workings of the government. And yet Julian Assange is now running for Senate in Australia. Journalism may change but the clash of factions is eternal.

Meanwhile, the court martial process has begun for Pfc. Bradley Manning, a former U.S. Army intelligence analyst accused of leaking hundreds of thousands classified or otherwise restricted documents WikiLeaks published.  Assange’s London-based lawyer, Geoffrey Robertson, told a law and media seminar in Houston that he believes the humiliations and the nine months of solitary imposed on Manning were an effort to make him “falsely confess to being groomed by Assange.” (Robertson said Assange offered to answer the Swedish prosecutor’s questions by phone from the U.K., but she refused without further explanation.)

A U.S. prosecution of Assange, an Australian citizen, might involve charges of conspiring with Manning, perhaps under the 1917 Espionage Act. The law targets anyone who (or any conspiracy to) “communicates, delivers, transmits or causes to be communicated” to a “foreign” government, faction or person information “relating to the national defense which … could be used to the injury of the United States,” without proper authorization. It’s punishable by any number of years imprisonment or by death. The U.S. used the broadly written law to convict and execute the Rosenbergs for passing atomic secrets to the Soviets and to prosecute Daniel Ellsberg for leaking the Pentagon Papers. At Manning’s preliminary hearing, the prosecution argued Assange and Manning collaborated electronically to steal sensitive government information.

The prosecution has linked raw material its experts found on assorted equipment owned or used by Manning to several WikiLeaks publications. The Collateral Murder video shows a U.S. helicopter firing on several Iraqis, killing, among others, two Reuters journalists and a van driver who tried to rescue one of the pair. The classified reports of the Afghan War Diary and the Iraq War Logs detail several years of military action. Cablegate, with over a quarter-million secret State Department cables, showed U.S. Sens. John McCain, Joe Lieberman and others promising Libyan dictator Moammar Gadhafi military hardware. They captured Hillary Clinton instructing diplomats to swipe biometric data, passwords and credit card numbers from foreign dignitaries at the United Nations. They documented Canada’s covert promise of aid for the U.S.-led invasion of Iraq. The Gitmo Files are memoranda describing prisoners held by the U.S. Joint Task Force at Guantanamo.

Possible criminal prosecution over this material is just one battlefront before Assange. Since December 2010, Bank of America, Visa, MasterCard, PayPal and Western Union have blockaded donations to WikiLeaks, destroying, the organization says, 95 percent of its revenue. Kristinn Hrafnsson, an official WikiLeaks representative, said average monthly donations in the year before the blockade exceeded €100,000 (about $130,000) and then dropped to under €10,000 (about $13,000) afterward. In small ways, supporters have managed to maneuver past the blockade as just another pay wall, tipping WikiLeaks through the social micropayment service Flattr, purchasing official WikiLeaks T-shirts and coffee mugs, and using other creative tactics. But costs for WikiLeaks and Assange — legal fees, server upkeep and more — continue to mount.

Fighting back, DataCell, an Icelandic company that handled credit card donations destined for WikiLeaks, lodged an antitrust complaint against Visa and MasterCard in cooperation with WikiLeaks in July 2011. Visa and MasterCard, Hrafnsson said, control 97 percent of the European cardholder market. Sveinn Andri Sveinsson, a lawyer for DataCell, told me the European Commission has yet to reply, and that the Commission said in January that it needed more time. Assange has said donations bound for WikiLeaks and those for his legal defense are separate, and the organization’s website reflects this.

The separation reinforces the picture of WikiLeaks as a media organization and Assange as just one of its journalists, albeit the famous one. If the U.S. can break that picture and cast Assange as an electronic thief or as someone who solicited Manning for classified material, the nascent U.S. prosecution against him likely would have more strength. Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said at the seminar that the “U.S. government has shown the more you are acting like a journalist, the more they leave you alone. Assange putting himself in the position of a journalist puts him in a better position if he were to be charged in the United States.” (The First Amendment allows the press to publish leaks, though acts of leaking classified material may still be illegal.)

Robertson, in what seemed a forecast of Assange’s possible legal strategy, described three positions between journalists and sources. “First is that the journalist receives the information unknowingly such as through the traditional brown paper envelope or through the Internet. It seems no one would suggest the publisher should be liable.” A second involves intermediary contact between journalists and sources. “The source might say, ‘I’ve got information of importance; how can I get it to you?’” and “the journalist says, ‘Drop it in a certain place at midnight.’” This “arranging to receive information,” Robertson continued, “should not be criminal.” But a third position, where a “journalist contacts the source and persuades him or her to breach confidentiality of government or bribes him, then that is soliciting and that should fall under the scope of the Espionage Act.”

Assange’s electronic methods keep sources anonymous, Robertson said. “You could waterboard him for weeks, and he couldn’t name his source, because he wouldn’t know.”

Eric Schmitt, a New York Times reporter who worked with the Afghan War Diary and Iraq War Logs material alongside Assange, stated at the seminar the Times’ position that Assange was but a source for the paper. “It was impossible to know just what he’d done,” Schmitt said, and added that the Times “was not part of a crusade or the Musketeers or anything like that.”

Reporters from Der Spiegel, the Guardian and Le Monde worked with Assange and Schmitt to publish stories based on the documents. Assange considers these and other news outlets media partners, arguing that an attack on WikiLeaks becomes an attack on all free press.

In January, Assange announced a move into a more traditional medium. He’ll host a TV show titled “The World Tomorrow,” 10 weekly episodes of half-hour conversations with “key political players, thinkers, and revolutionaries from around the world,” according to a WikiLeaks press release. He’s filming the show from house arrest in England with Quick Roll Productions, whose origins are unclear. (Quick Roll Productions hasn’t replied to my request for information.)

Russia Today, rebranded to the more neutral-sounding RT in 2009, licensed the show, giving Assange an audience of over 430 million worldwide. Since the Kremlin funds RT, the licensing has drawn loud criticism. Julia Ioffe in the Columbia Journalism Review describes RT as the Kremlin’s “soft-power tool to improve Russia’s image abroad” and as often just a way for Russia “to stick it to the U.S. from behind the facade of legitimate newsgathering.” Legitimate or not, RT’s Alyona Minkovski certainly criticizes the U.S. and takes a pro-WikiLeaks position. The young hostess has given sympathetic airtime to hackers hitting American companies over the WikiLeaks banking blockade, for example. WikiLeaks says its show “is independently produced and Assange has control” and that WikiLeaks offers a “Broadcasters license, only”; RT’s chief editor said Assange is “not an empolyee [sic]. We bought the show.” The RT deal, then, may just be a profitable way for him to get a gigantic retweet.

Though the sale might help Assange fight the banking blockade, it also fuels the narrative that he’s a glutton for personal attention. But his background is that of an intellectual activist for whom public relations is just another war zone. Victory for Assange consists in advancing “scientific journalism“ — an emphasis on primary sources — and making conspiracies distrust their internal communications due to leaks. He reasoned toward these aims while steeped in the cypherpunk scene — discussions with other brainy, computer-programming subversives who advocated social change through the cryptographic protection of individual privacy.

As a cypherpunk, Assange wrote a deniable encryption file system that’s indicative of his mind-set. It’s named Marutukku after an Akkadian protective spirit. Imagine a “Rubberhose squad”: accusers wielding rubber hoses demand a defendant hand over his incriminating files. In his password-protected files, the defendant is hiding incriminating information along with unimportant data. If he’s using Marutukku, he can’t prove he’s surrendered all his passwords. Therefore, Assange reasons, the defendant shouldn’t reveal any of them or, depending on the squad’s psychology, just a few of the unimportant ones. Surrendering anything incriminating would encourage the squad only to beat more passwords out of him, so he has no incentive to cooperate or to sell out confederates. Once the squad understands this, they can decide between giving up or beating him just to see him suffer.

Similar logic underpins WikiLeaks: If Robertson is right, Assange can’t prove who his sources are. If Assange winds up on the witness stand, the world likely will watch him deploy with steely calm algorithms he developed years in advance for an end game just like this.

It wouldn’t delay his extradition, but Assange can make an application to the European Court of Human Rights if the U.K. Supreme Court decides against him. A U.K. Supreme Court win would leave him at risk of U.S. extradition from England. Regardless, he still might have an ace up his sleeve. In 2010 WikiLeaks released a file named insurance.aes256 and on Wednesday released another “insurance” file with an “aes” name.  AES-256, a currently unbreakable encryption scheme, appears to keep the files scrambled until a password is published. Assange has said little about them, but he did say “insurance files” would be released in a certain scenario: “if something happens to me or to WikiLeaks.”

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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As the last of the audience settled into their seats, the woman in front of me turned and took photos of people behind me. It was subtle, but others looked their way and smiled, nodding in acknowledgment. Not subtle enough. I turned too. I noticed a smiling, handsome African-American couple two rows back. On many occasions, I’ve been asked in interviews to respond to Holder’s public statements about the U.S. government’s criminal investigation into Assange and WikiLeaks. But there he was, in person, just steps away. I could not pass up this opportunity.

In November 2010, Holder announced a full criminal investigation into WikiLeaks, aimed at prosecuting Assange over the release of thousands of cables that embarrassed the U.S. government by revealing candid discussions among diplomats and corruption and human rights abuse around the world. Since that time, we learned of a secret grand jury investigation in Virginia. WikiLeaks supporters’ Twitter accounts have been subpoenaed. Media reports have long speculated about Assange’s imminent indictment in the U.S., possibly under the Espionage Act. (Assange is currently under house arrest in the U.K. pending his appeal of a decision that he be extradited to Sweden to face sexual assault charges.) A key concern is the threat of onward extradition from Sweden to the U.S. where Assange – based on Holder’s earlier announcements – risks being prosecuted for his work as editor and publisher of WikiLeaks, activity that we believe is protected by the First Amendment.

Holder has refrained from making public comments about WikiLeaks of late, leading many to believe the U.S. might not prosecute Assange. But it was apparent during the Manning hearing that concerns about the U.S. seeking Assange’s extradition are justified. Repeated references were made to the relationship between the Manning proceedings and the Justice Department’s ongoing criminal investigation into Assange and WikiLeaks. Manning’s defense counsel stated explicitly that the Justice Department had an interest in plea-bargaining with Manning in order to get him to implicate Assange, and argued that the number of charges against Manning (particularly those carrying life imprisonment) was designed to pressure him into making a deal. Government officials seated behind the prosecution were suspected of involvement in the grand jury process, but refused to identify themselves to us or to journalists. One was later identified as the Justice Department lawyer responsible for the WikiLeaks-related Twitter subpoenas.

The grand jury is secret. Government lawyers at the Manning proceedings – a public hearing – refused to identify themselves or state their interest. Our appeals to military courts for full access to the Manning proceedings, the court documents and the evidence have been denied.  The Australian government claims to have no information from the U.S. as to whether they will prosecute Assange and seek his extradition, but it does not appear to have asked for that information or sought any diplomatic assurances from the U.K., Sweden or the U.S. that Assange be able to travel home to Australia after the Sweden case is resolved.

WikiLeaks, the world’s most famous/infamous source of information, and its lawyers are, ironically, short on necessary information. Who better to ask for that information than the attorney general himself?

As the lights dimmed and the film began, I wondered: How could I speak to Eric Holder?

Soon, however, I was overwhelmed by Pollard’s compelling film. Casting a light on the murky period between the end of the Civil War and the beginning of the modern civil rights movement, the film documents how the practices of convict labor rendered the 13th Amendment’s protections meaningless for millions of African-Americans living in the South.

These facts come alive through Pollard’s interviews with the ancestors of African-Americans who suffered during this period, emphasizing how these practices are part of living memory. Among them is Dr. Sharon Malone, the attorney general’s wife. She speaks eloquently about her uncle, who was born nearly 30 years after slavery ostensibly ended, but was one of the thousands pulled back into the forced labor system. Her testimony is powerful, and makes clear that every Southerner’s life is touched by this history, whether black or white.

What struck me most watching the film was the shameful inaction of the federal government and, specifically, the Justice Department, in failing to prosecute those responsible or taking action to end these practices, which continued for more than 80 years after the supposed abolition of slavery. While considering the historical legacy of that shameful inaction, I began to think about Eric Holder’s legacy — and the irony of his support for a film about the need to look back in order to look forward. After all, the film laments government inaction on slavery at the turn of the century. Today we lament Holder’s inaction on torture.

Holder insists on looking “forward, not back” when it comes to accountability for torture, dropping all cases of alleged illegal treatment of post-9/11 detainees by the CIA and its contractors. (Interesting that Holder, the same man advocating a forward-looking approach, said in 2010 that if the Justice Department could not identify a law under which to prosecute Assange, they would create one.)

While CIA torturers receive immunity from prosecution, Holder just announced that the Justice Department has charged a former CIA agent, John Kiriakou, for allegedly disclosing information to journalists about a CIA agent who engaged in waterboarding during interrogations.

Holder does not prosecute U.S. torturers; he prosecutes those who speak out about U.S. torture. Will Julian Assange be next?

“Slavery by Another Name” received a standing ovation from the Sundance audience, and deservedly so. As the crowd filed out, I made my way over to Eric Holder. A young woman requested a photo with him, and I was asked by one of his Secret Service detail to take it. I did as requested.

Then I took the opportunity to ask the attorney general a few questions.

“Mr. Holder, I just wanted to say how powerful I thought your wife’s contribution was to the film and how great it is to see you here, as attorney general, supporting it.” My praise was genuine.

“Thank you, I am a very lucky man,” he responded, warmly and sincerely. I agreed.

I then explained that what struck me about the movie was the government’s unwillingness to take action. “What came through most for me was this sense of historical legacy.” I said. “As attorney general, do you ever think about how your time in office will be remembered?”

“Of course,” he replied, adding he is very conscious of the historical legacy he’s creating.

“That’s interesting,” I responded, “because I am a lawyer for WikiLeaks and Julian Assange.” Slightly taken aback, a flicker of recognition crossed his face. “How do you think history will reflect upon your treatment of WikiLeaks and Assange?”

The young woman who requested the photo gasped audibly, whispering, “Whoa, this is major,” to the person next to her. Others gathered closer to listen.

“Eric” instantly becomes Holder, and responds in the professional manner of a politician. “The release of confidential information is a very serious matter, and we have to draw the line somewhere.” As he spoke, I recalled a conversation at the Manning hearing in December with a senior national security reporter who admitted he felt the news media would be at risk if Assange were prosecuted. One wonders where Holder’s line will be drawn — and what it will mean for journalism globally.

Holder continued to emphasize the grave harm he believes the leaked cables caused to U.S. national interests and “even to countries that [Assange] would likely support,” but that he “cannot get into the detail of the harm caused.” These blanket but unspecified allegations about harm allegedly caused by WikiLeaks’ publications (and those by the New York Times, the Guardian, Der Spiegel, Le Monde, El Pais and numerous other newspapers worldwide) have been common in U.S. government statements.

“Then will the Department of Justice state publicly whether or not you intend to prosecute Julian?” I asked.

Holder’s answer was short as he walked away: “We will see.”

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.