You can’t hide from war crimes by calling them ‘fake news’

Since September, the United States military has been blowing up boats allegedly trafficking drugs in the Caribbean.

Whether these attacks are legal is hotly debated. Congress hasn’t declared war or even authorized the use of force. The Trump administration has simply designated various — alleged — drug traffickers as “terrorists” or members of “terrorist organizations,” and then waged war upon them. The legal finding supporting all of this has not been released to the public. But whatever the administration’s case in private is, it was sufficiently weak that the British government announced in early November it no longer would share intelligence with the U.S. relevant to the Caribbean operation over concerns about its lawfulness.

On Friday, the Washington Post dropped a bombshell report about the first of these operations. During the strike, the Navy not only took out a suspected drug-trafficking boat — as had been reported previously — but when survivors were spotted clinging to the wreckage, the special operations commander overseeing the operation also ordered a second strike on the survivors, in order to comply with Defense Secretary Pete Hegseth’s order to kill everyone involved.

“Hegseth gave a spoken directive, according to two people with direct knowledge of the operation,” the Post reported. “‘The order was to kill everybody,’ one of them said.”

Whatever you think about the broader Caribbean operation, it is a simple fact that shooting survivors at sea is war crime, under American and international law.

Later Friday, in a lengthy social media post, Hegseth attacked the Washington Post’s report as an instance of the “fake news … delivering more fabricated, inflammatory, and derogatory reporting.”

What Hegseth didn’t do was directly deny the report. Instead, he insisted that “we’ve said from the beginning, and in every statement, these highly effective strikes are specifically intended to be ‘lethal, kinetic strikes.’”

The intent to kill everybody on the first try isn’t a legal excuse to murder survivors clinging to burning wreckage.

Indeed, a much shorter follow-up post was even more of a non-denial denial: “We have only just begun to kill narco-terrorists.”

With even Republican members of Congress expressing grave concerns, the official story changed from “fake news” to a more forceful denial over the weekend. President Trump said that Hegseth denied giving any such illegal order, “and I believe him, 100%,” adding that he “wouldn’t have wanted that. Not a second strike.”

So it now appears the White House has confirmed there was a second strike on the survivors, and conceded that it would at least be against the president’s policy. Whether the White House will concede the strike was unlawful remains to be seen. But what we do know is that someone gave an order for a second strike. And if it wasn’t Hegseth, whoever that person was could be looking at a court-martial — or given who the commander-in-chief is, a pardon.

But I don’t want to get ahead of the news.

Instead, I’ll make a few points.

First, a minor gripe: This administration and its defenders need to be more selective in their use of the term “fake news.” I have no problem calling a false story “fake news.” But if you know that a story isn’t false, calling it “fake news” just sets you up to look like even more of a liar and hypocrite down the road when you end up admitting the truth and defending actions you once pretended were slanderous.

More importantly, the whole Caribbean strategy is constitutionally and legally dubious. As a matter of foreign policy, it looks more and more like a pretext for some kind of regime change gambit in Venezuela. If the administration has evidence that justifies its actions, it should reveal it. I understand arguments for secrecy, but if they couldn’t convince the British, through classified channels, of the operation’s legality, it’s probably because the case is unconvincing.

Even more important: Illegal orders, particularly orders to in effect murder people, cannot be justified. When a half-dozen Democratic members of Congress released a video saying that the military shouldn’t follow “illegal orders,” the president and many of his defenders became hysterical. Trump lamented that America has become so “soft” that such “seditious behavior” isn’t punished by death anymore.

More sober critics of the Democrats complained that the video sowed confusion in the ranks and hurt morale. I’m actually sympathetic to that argument.

But you know what else sows confusion and hurts morale? Actual illegal orders.

X: @JonahDispatch