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A Secret Keeper

Gabriel Schoenfeld

President Obama has nominated Solomon B. Watson IV to be general counsel of the Army. Mr. Watson would be coming to this slot after spending 32 years at the New York Times, including a stint as its senior vice president and chief legal officer.

Near the end of Mr. Watson’s tenure, the paper published a series of stories compromising two highly classified counterterrorism programs. One, in December 2005, offered crucial details of the National Security Agency’s Terrorist Surveillance Program, designed to track al Qaeda communications into and out of the United States. Another, in June 2006, disclosed a secret program designed to track the movement of terrorist funds through the Belgian financial clearinghouse known as SWIFT. Top officials in the government, and leading Republicans and Democrats in Congress, bemoaned the serious damage to national security that the paper had inflicted. (A comprehensive discussion of the episode can be found in my forthcoming book, Necessary Secrets: National Security, the Media, and the Rule of Law.)

As chief legal officer of the Times, what was Mr. Watson’s role and responsibility in these controversial decisions? In confirmation hearings before the Senate Armed Services Committee on Tuesday, he was pressed hard by Senators Jeff Sessions and John McCain about whether publication of the stories violated the law. Grasping with visible unease for a response, Mr. Watson offered five variations on a pudding:

The first was a dodge: “I was not involved.”

The second—Mr. Watson is a Vietnam veteran—was a boast: “I’m a patriot. I do not, as a professional, abide people leaking classified information. I certainly wouldn’t be a leaker, if that’s the question for me.”

The third was a pretzel, of logic that is: “my opinion is that the decision was justified,” but “were it my decision to make, I would not have made that decision.”

The fourth was a hedge: it is “an arguable position and a defensible position that the statute was not violated.”

The fifth was a concession and a confession: the question of whether the New York Times broke the law was, in the “final analysis, . . . a  judgment for a judge and or a jury.”

This last response is ultra-rich. For, of course, no judge or jury ever considered the matter. Indeed, when the idea of a prosecution of the paper was broached at the time by Attorney General Alberto Gonzales, the New York Times denounced the suggestion as “bizarre.” Now we are being told by the Times‘s top lawyer that a courtroom was indeed an appropriate forum for deciding the matter.

What can one conclude from all this? If artful dodging of responsibility is a prerequisite for the slot, Mr. Watson will be one of the greatest Army general counsels of all time.

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