There's a meme I've noticed among defenders of the Bush Administration decision to subpoena the media for violations of the Espionage Act for leaks regarding NSA wiretapping and CIA prisons.  For example, this by Byron York:

Keller's own newspaper led the fight for the Valerie Wilson CIA leak investigation, cheering the appointment of a special prosecutor with powers that exceeded even the old independent counsels.

... 

Too late, the Times and its allies realized that a terrible precedent had been set. Now some of them try to argue that the Wilson leak was an act of retribution, while the NSA and secret prisons leaks were the work of good-government whistleblowers, so one should be vigorously prosecuted while the others are ignored. It won't work. Leaks are leaks, and the NSA and secret prisons leaks were, by any estimation, far more damaging to national security than the Wilson leak. 

I guess by "any estimation" he means any estimation that imagines terrorists would pick up a copy of the New York Times and suddenly discover that the NSA would like to listen to their phone calls.  But that's not the point.  

He's wrong to say "leaks are leaks"--not all leaks are created equal.  Special Prosecutor Pat Fitzgerald, being a rather insightful fellow, put it this way on October 28, 2005:

And all I'll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act.

That is a difficult statute to interpret. It's a statute you ought to carefully apply.

I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information, because they think that would convert that statute into what is in England the Official Secrets Act.

Let me back up. The average American may not appreciate that there's no law that's specifically just says, "If you give classified information to somebody else, it is a crime."

There may be an Official Secrets Act in England. There are some narrow statutes, and there is this one statute that has some flexibility in it.

So there are people who should argue that you should never use that statute because it would become like the Official Secrets Act.

I don't buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute.

That actually feeds into the other question. When you decide whether or not to charge someone with a crime, you want to know as many facts as possible. You want to know what their motive is, you want to know their state of knowledge, you want to know their intent, you want to know the facts.

Conservatives who see media hypocrisy in reactions to leaks regarding Valerie Wilson versus NSA leaks and CIA prison leaks are mistaken when they allege that the only way to oppose these Espionage act subpoenas and prosecutions is to argue for a special journalist privilege, as Glenn Reynolds has. 

There's not even a right of journalists to protect leakers under the U.S. Constitution, despite journalists' representations, and doing so has hardly been a slogan on the war on terror. The tendency of the press to conflate its own desire for guild-like special privileges with the protections of the First Amendment is one of the reasons for its decline in trust and popularity.

No, it isn't about journalist privilege, it's about prosecutor responsibility.  Whether classified information is leaked by a blog or a more mainstream media source is utterly irrelevant--and the claims of some blogs (and admittedly some journalists) that this is what's at stake is misleading in the extreme.   A prosecutor has discretion in deciding whether or not to prosecute a violation of Espionage Act.  And it is the job of the public to decide whether that discretion is being exercised in support of national security, the First Amendment, or partisan vengeance.  Any leaking of classified information that reveals criminal wrongdoing on the part of the government--like the CIA prisons or NSA wiretaps--should not be prosecuted.  And if they are prosecuted, we, the public, will know that it is because the government is trying to silence embarrassing information, and we should vote against any elected official who does not condemn this abuse of the Espionage Act.  Bush obviously isn't running again, but the media should be asking every representative, every senator, and every possible presidential candidate where they stand on this.  It's too late to kick Bush out, but at least have history and public opinion reflect the fact that his approval rating matters more to him than national security, free speech, or the honesty and legality of our government.

Fitzgerald is brilliant, in case anyone failed to notice.