In the coming months it is all but certain that more reporters will once again be called by Justice Department investigators to give up their anonymous sources. This time, instead of the case of secret agent turned cause celebre Valerie Plame, the new investigation will focus on who told the New York Times about a top-secret program to eavesdrop on calls between America and terrorists abroad.

Conservatives in particular would do themselves a favor by resisting the urge to champion this all but inevitable prosecution. It is true that the disclosure of electronic surveillance meant to detect potential sleeper cells is a graver matter than the outing of a CIA officer turned analyst whose identity was confirmed by the CIA to the reporter who broke the story. But a greater principle is at stake. If the Bush administration succeeds in making journalists a party to anti-leaking cases, then the necessary emergency conditions enacted after September 11 will become permanent and almost impossible to dismantle. Worse still, the public will not get a second and third opinion on the vital questions of whether the government still needs the extraordinary powers it now uses to defend us.

So far the law behind the anti-leak cases is the section of the espionage statute that prohibits the disclosure of defense information to those not authorized to receive it. That’s what the Justice Department says Lawrence Franklin did when as a Pentagon analyst he discussed Iran policy with two former lobbyists of the American Israel Public Affairs Committee, who in turn talked about it with a Washington Post reporter. It appears that this act’s violation was what was behind Patrick Fitzgerald’s decision to indict I. Lewis Libby for perjury in the Plame case. And it is almost certainly going to be invoked against the unnamed sources for the Times story.

The zeal to prosecute these cases came in 2002 after then attorney general John Ashcroft promised the chairman of the Senate’s intelligence committee that he would make the execution of the current law against leakers a priority as a response to Senator Shelby of Alabama’s request to rewrite that law to make it more punitive and broader in scope.

While nearly everyone can agree that it’s important that some things remain secret for the proper operation of statecraft – the nuclear launch codes, for example – the question starts to get interesting when we ask how many secrets are really necessary? Last year, the federal government made more than 15 million separate decisions to classify material. The effect of all of this secret information is to create a new class of people with proper clearances empowered by that fact alone to make more informed decisions on national security. The over-classification of information neuters not only the public’s right to know about its government’s foreign policy and war strategy, but its ability to even fully participate in that discussion. To support the anti-leaking prosecutions of this administration is to essentially support the notion that the government alone should be the sole arbiter of what classified information the public can know.

And in this respect, the New York Times should be praised for its reporting, if not its analysis. Instead, the bloggers at Powerline who were so sharp in knocking down the phony and self righteous howls of liberals claiming the president committed crimes against the constitution, are greeting each new story with more calls to find the leakers and put them on trial.

From what we know now, key details of the surveillance program were withheld from the story when government officials persuaded the Times not to print them. In the meantime, it seems a stretch to argue that Al Qaeda did not think America was trying to listen to its phone calls. Furthermore, it looks as if the Justice Department’s 2004 audit of the program was likely spawned by the fact that the Times was on the story.

The worry of the NSA program is not that it represents an unconstitutional power grab or that it will lead inevitably to excesses of J. Edgar Hoover’s domestic spying of the last century. Rather, if left unchecked by the public, the NSA and other agencies will never voluntarily relinquish its new powers and declare America to be free of sleeper cells. The incentive to warn of lurking threats is ingrained in every budget justification the intelligence community submits.

Since September 11, 2001, the president has rewarded an intelligence bureaucracy that failed America before September 11 with unprecedented authorities, and also by allotting another $14 billion to the community’s $30 billion annual budget. The funding and powers of the secret bureaucracies are necessary for the prosecution of the war. But we cannot expect those prosecuting the war today to let us know when we no longer need them. For that we need a press unfettered by the threats of federal prosecutors.