Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
Jennifer Rubin: It’s great to be here, Greg.
Rubin: Well, two things. First of all, Pete Hegseth had previously made an assertion that we were to give no quarter, which is generally considered to be take no prisoners, kill everyone. That is in and of itself a blatantly illegal act. The second issue is it’s not clear we’re even in a war, and you need a war in order to have a war crime. The reason we’re arguably not in a war is, number one, Congress has not declared a war. And number two, there is no evidence whatsoever that these people on boats are armed or in an armed conflict with the United States or presenting any kind of imminent threat. What that means is, if we’re not even at war, then the unjustified killing of another human being is murder. And that can be punished both under military law and civilian law. If we are at war, as you said, this violates a very fundamental precept called hors de combat—meaning if someone is injured on the battlefield or shipwrecked, you can’t then go kill them. And that is, if the reporting is accurate, what appears to have been the case.
Reporter (voicever): Does the administration deny that that second strike happened? Or did it happen and the administration denies that Secretary Hegseth gave the order?
Sargent: Jen, so there Leavitt confirms Hegseth’s denial that he said the precise words kill them all and yet Leavitt also confirms that the strike did happen while claiming it was entirely within the laws of war. What do you make of that?
Sargent: Yeah, I want to throw this in here, Jen. You got at this in your piece. But Jack Goldsmith—who is not exactly a liberal; he was the head of the Office of Legal Counsel under Republicans—he actually made the same point in a very careful analysis. He said that if the Post’s facts are right, then Admiral Bradley was under an obligation to not carry out the order to kill them all, right? I just want to make one other point about this real quick, Jen, and get your reaction to it. What Leavitt is essentially saying is the strike did happen, and then she’s sort of fudging on whether it was the result of Hegseth’s order or not—the second strike, I mean—and then saying that second strike is legal. Right? I don’t see how the argument is tenable at all.
Sargent: Well, to that point, I want to parse Leavitt’s quotes a little more. What’s critical is that she distances Hegseth from delivering any order directing the final strike against the two men. As you point out, it’s true that she doesn’t really mention or deal with the fact that he’s, you know, made the no quarter claim, but she does seem to be saying that Hegseth didn’t actually say kill them all, right? So she only acknowledges that Hegseth ordered the destruction of the boat, which leaves Admiral Bradley holding the bag. Now, as we reported at TNR.com—you can check that out—Representative Adam Smith, ranking Democrat on the Armed Services Committee, now says Bradley is in talks about briefing the committee. Now, I don’t know if this is going to end up happening or not, but if it does, there are going to be some pretty important questions for Bradley now, right? What would you ask him?
Sargent: Well, Jen, I want to ask you about that because as far as I can tell, even if you accept what the White House has said thus far about this—what Karoline Leavitt has said thus far—it still appears that the second strike happened. Leavitt admits that. And as far as I can tell from the reporting and the totality of the public comments on this, there is video of the two men getting blown apart in the water, right? That exists. So at some point, the fact that that happened needs to face some kind of accountability, and the White House is sort of skirting their way around it. I don’t understand where this ends up, right? This happened. Isn’t that the essence of this? The two men were blown apart in the water.
Sargent: Well, I certainly think that’s very possible. I want to highlight one other nugget in the Post’s report and see what you think of it and where it might have come from. You’ve been around a long time; you know how these leaks work. So the Post says Bradley ordered the second strike because the survivors were “legitimate targets” as they could “theoretically call other traffickers to retrieve them and their cargo.” But Jack Goldsmith, the former OLC head, says that wouldn’t be an adequate rationale on the face of the laws of war, which the Defense Department is supposed to be bound to. And so it wouldn’t be kosher to say that. It wouldn’t be kosher to carry out this killing on that basis. And so somebody is leaking this. Who’s leaking this fact that this is what Bradley said?
Sargent: Apparently they do, right? And I want to highlight one other line from the Post which is absolutely wrenching. It says, “If the video of the blast that killed the two survivors on September 2 were made public, people would be horrified,” said one person who watched the live feed. So there you have it: There’s a video of this. And look, let’s face it: Something really horrible happened here—real executions in international waters, people were blown into pieces—two people who are utterly defenseless.
Sargent: Absolutely. Let’s listen to one more exchange between a reporter and Karoline Leavitt.
Karoline Leavitt (voiceover): The strike conducted on September 2nd was conducted in self-defense to protect Americans and vital United States interests. The strike was conducted in international waters and in accordance with the law of armed conflict.
Rubin: No, and that’s why I come back to the position that Trump would be smart—and so far he’s proved to be a not very smart autocrat—to throw these guys all under the bus and get out of this. But of course, that puts into doubt his entire military escapade. And we are still left with that, which is that this entire thing is unjustified and illegal, that we do not have the right under international law to go blowing up boats that are not a threat to us, that pose no threat to us on some theory that if they reach their destination, they have products on board that could potentially harm Americans.
Rubin: Well, thanks to the Supreme Court, he doesn’t have criminal liability. And conceivably, before leaving office, he could pardon everyone. Now, question whether that’s going to protect individuals from the international arm of justice and whether these people will ever be able to travel internationally without risking arrest and prosecution elsewhere. But really, the penalty for all of this—and we keep coming back to this in whatever context we’re in, Greg—is there has to be a political context. Ultimately, Congress and the American people have to decide: Is this the kind of government we want? And if we get any Democratic Congress, whether it’s the House and the Senate or just the House, they can certainly begin impeachment proceedings if Hegseth is still there, if Trump is still there and has committed impeachable acts. They can certainly, in a Democratic administration that would follow if they haven’t been pardoned, pursue criminal prosecution.
Sargent: Jen Rubin, I really, really hope so. At the very least though, you’ve laid out a very powerful case here for why these guys are really basically a regime of criminals. So good to talk to you as always.
Rubin: You too, Greg.
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