A FREE PRESS is the guarantee of everybody’s freedom; the confidentiality of its information is the condition of a free press, and of its ability to report the real world. This has been the basic principle of Times journalism for 220 years, and it is the basis of free journalism throughout the world. I cannot recall a single case in which The Times or any member of its staff has been accused of breaking the principle of confidentiality. Our first proprietor, the first John Walter, edited the paper from the Fleet Prison in the reign of King George III rather than reveal his sources. It has been so ever since.

Since 1791, only six years after the foundation of The Times, the principle of press freedom, which did not exist in English law before the passage of Human Rights Act of 1998, has been supported by the First Amendment to the Constitution of the United States.

“Congress will make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, of the right of the people peaceably to assemble and to petition the Government for a redress of grievances.” The present US Administration has adopted a policy of seeking to spread democracy throughout the world; the First Amendment is an essential principle of American democracy.

Journalists everywhere, and democrats everywhere, must therefore be horrified at any sign that American law has abandoned the principle of a free press, and of the confidentiality that is its necessary basis. Yet that has now happened in the CIA leak case in Washington.

The special counsel in the case, Patrick J. Fitzgerald, almost admits as much. In his press conference he said in his own defence: “Let me just say this: no one wanted a dispute with The New York Times or anyone else . . . I was not looking for a First Amendment showdown.” If he was not looking for a showdown one can reasonably ask why he chose to have one.

Mr Fitzgerald issued subpoenas to a number of journalists, including one to Judith Miller, a journalist on The New York Times. He required her to give evidence to a grand jury disclosing information given her in confidence by Lewis Libby, the Vice-President’s chief of staff. Mr Libby, and other officials, gave a waiver releasing journalists from their confidentiality obligations, and on that basis several of them, probably wrongly, agreed to give evidence. Ms Miller courageously refused.

In the words of The New York Times: “Ms Miller says she believes the waiver was coerced and she went to jail until Mr Libby assured her directly that he was freeing her from her promise.” The New York Times supported Ms Miller editorially and as her employer. Subsequently, executives on The New York Times have somewhat weakened that effect by making less supportive comments. Ms Miller was imprisoned for 85 days, a thoroughly unpleasant experience; after that she did testify.

In at least two articles of the indictment, Mr Fitzgerald is relying on evidence extracted from journalists that contradicts the evidence given by Mr Libby, who has been indicted on five counts. He is alleged to be committing perjury because his memory of confidential conversations with journalists differs from that of the correspondents. Their evidence was obtained by subpoena, by the threat of imprisonment and by the pressure put on government officials to release the journalists from their obligations.

Mr Fitzgerald was naturally anxious to justify himself; he needs to. He argues that he took these subpoenas to the courts. He took them to the chief district court judge; he took them to the District of Columbia court of appeal; finally he took them to the Supreme Court of the United States, the final authority on the Constitution; they all approved them. After all this sweat and money, the Supreme Court of the United States cut the throat of the First Amendment.

This is a real disaster, but it is not a great surprise. The Supreme Court had long since departed from any strict interpretation of the Constitution. And its decision to hand the Presidency to George W. Bush in 2000 was contrary to Article II of the Constitution, which clearly places the form of the election of the president in the hands of the individual states.

The Supreme Court of the US had no right to overrule the Supreme Court of Florida. Disgracefully, it did so for political reason and divided five to four on straight party lines. The Constitution has ceased to be a guarantee of the rights of the citizen, and is now only what the Supreme Court thinks it is.

There has also been an historical perversion of US methods of prosecution; Mr Fitzgerald is a formidable prosecutor. In order to defeat organised crime, American prosecutors have increasingly resorted to the use of threats, either to force people to give evidence or to turn co-conspirators by promises of leniency. The principle is “he who is first to grass will get the lightest sentence”. There is a word that appropriately describes this methodology: blackmail. It is not a method of justice, but of force majeure, explained by the belief that the accused are always guilty.

Mr Fitzgerald has not even established that there ever was a crime to investigate; certainly no one has been charged with one. The indictments against Lewis Libby refer only to the answers he gave to Mr Fitzgerald’s grand jury; like the Iran-Contra defendants, he might well have escaped by pleading the Fifth Amendment, which protects self-incrimination.

The whole inquiry has been vitiated by the use of blackmailing courtroom tactics, which were developed to intimidate organised crime, against a group of journalists and politicians engaged in political controversy and, perhaps, in a Washington turf war. The collateral damage to the Government of the US is serious enough; the damage to the freedom of the press is a tragedy. Confidential press conversations are not criminal, but they are necessary.

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