Jonah Goldberg: You can't duck war crimes by calling them 'fake news'

About the writer: Conservative D.C.-based commentator Jonah Goldberg serves as editor-in-chief of The Dispatch, hosts The Remnant podcast, authors a weekly Los Angeles Times column, holds a chair with the American Enterprise Institute and serves as a commentator with NPR and CNN. Previously, he spent 21 years as an editor at The National Review and 10 as a commentator at Fox News. He’s the author of three New York Times best sellers.

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 against “narco-terrorists,” nor Venezuela, the apparent real target of a massive U.S. military build-up off Venezuela’s coast.

The Trump administration has simply unilaterally branded various alleged drug traffickers as “terrorists” or members of “terrorist organizations,” then waged war on them.

The administration’s internal legal finding on this hasn’t been publicly released. But whatever their case is in private, it was sufficiently weak that the British government announced in early November it would no longer share intelligence with the U.S. on the Caribbean operation, citing concerns about the lawfulness.

Late last month, The Washington Post dropped a bombshell report about the first of these operations back in September.

During the strike, the Navy not only took out a suspected drug-trafficking boat — as had been reported previously — but left survivors clinging to the wreckage. And the special operations commander overseeing the operation ordered a second strike on them, 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’s a simple fact that shooting survivors at sea is a war crime, under both American and international law. Of course, as some suggest, since this operation is not a legal war, maybe it’s not a war crime, just a crime-crime.

Shortly after the story was published, Hegseth attacked the Post’s report in a lengthy social media post, terming it another 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, “We’ve said from the beginning, and in every statement, these highly effective strikes are specifically intended to be ‘lethal, kinetic strikes.’ “

Declaring your intent was to kill everybody on the first try isn’t a legal excuse to finish off unarmed survivors. Hegseth offered follow-up posts that were boastful or childish, but did not ever actually deny the charge.

With even Republican members of Congress expressing grave concerns, the official story evolved from “fake news” to actual denial. Trump said Hegseth told him there was no such order given, “and I believe him, 100%,” adding that Hegseth “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 it would be against the president’s policy. Whether the White House will concede the strike was also unlawful remains to be seen.

Exactly what happened remains murky, but it surely seems like someone gave an order for a second strike. If it wasn’t Hegseth, whoever it was could be looking at a court-martial — or, given the current commander-in-chief, a pardon.

But I don’t want to get ahead of the news. Instead, I’ll just 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 it isn’t false, calling it “fake news” just sets you up to look like even more of a liar or 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 share that evidence with Congress and seek permission to wage war.

Even more importantly, illegal orders 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 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? Issuing illegal orders — or even appearing to do so.