The Folly of Comparing Al-Awlaki to Admiral Yamamoto (Updated)

It appears the right-wing has settled on a shiny new historical comparison to justify the targeted killing of Anwar al-Awlaki.  Here is Jack Goldsmith in the New York Times:

An attack on an enemy soldier during war is not an assassination. During World War II, the United States targeted and killed Adm. Isoroku Yamamoto, the architect of the Japanese attack on Pearl Harbor.

And here is John Tobin in the American Spectator:

Anwar al-Awlaki was actively recruiting terrorists to attack the U.S. He was, in effect, a battlefield commander, and the operation to kill him was in that sense well-grounded in the laws of war — little different from Operation Vengeance, in which the US military targeted and killed Admiral Isoroku Yamamoto during World War II. If Yamamoto had been an American-born traitor, Operation Vengeance would have been no less legitimate.

It genuinely amazes me that anyone could compare Al-Awlaki to Yamamoto with a straight face.  World War II was an international armed conflict (IAC), while the U.S. war on al-Qaeda is at most a non-international armed conflict (NIAC).  (The correct position is that it is not an armed conflict at all.)  That is a critical distinction, because the targeting rules in IAC and NIAC are completely different.  Admiral Yamamoto was the Commander in Chief of Japan’s Combined Fleet, the prototypical combatant who was targetable at any time by the U.S.  Al-Awlaki was a radical cleric whose targetability depended on whether he assumed a “continuous combat function” in AQAP (in which case he was, like Yamamoto, targetable at any time), or whether he was a civilian who directly participated in hostilities on various occasions (in which case he was targetable only for the duration of his direct participation).  Which is it?  I frankly don’t know — but I do know that determining Al-Awlaki’s targetability is vastly more legally and factually complicated than determining whether it was legal to kill an enemy Admiral in a formally-declared war.

Not so, of course, for Goldsmith and Tobin.  For them, that pesky international-law distinction between international and non-international armed conflict is irrelevant.  (Except, of course, when it comes to things like combatant’s privilege and POW status; the rules of IAC and NIAC are interchangeable only when interchangeability works in the United States’ favor.)  The U.S. once killed a bad guy during World War II, so of course it can kill a bad guy during the war on terror.  What could be more obvious?

UPDATE: Goldsmith responds to my post here, although he doesn’t bother to address the substance of what I wrote — concerning his elision of the distinction between IAC and NIAC and his failure to grapple with the distinction (critical for purposes of targeting in NIAC) between members of organized armed groups and civilians who directly participate in hostilities.  Instead, he simply cites other Americans who believe the analogy is justified (why that’s relevant he never explains) and claims that I somehow admit that the analogy is justified, because I say that Al-Awlaki could be targeted in much the same way as Yamamoto if he had assumed a continuous combat function in AQAP.  Of course, the entire thrust of the post was to point out that Al-Awlaki might also have been a civilian who directly participated in hostilities, in which case he could not be targeted in the same way as Yamamoto, making the analogy between the two deeply misleading.

Notice, also, how Goldsmith selectively quotes my post, ending the block quote with “I frankly don’t know.”  The entire sentence reads, of course, “I frankly don’t know — but I do know that determining Al-Awlaki’s targetability is vastly more legally and factually complicated than determining whether it was legal to kill an enemy Admiral in a formally-declared war.”  Goldsmith thus conveniently cuts off the thesis of my post in order to claim that I somehow agree with the Yamamoto analogy.  As is obvious from the omitted clause, I acknowledged my uncertainty concerning Al-Awlaki’s status precisely to make the point that determining targetability in NIAC is far more difficult than determining targetability in IAC — the primary reason why the Yamamoto analogy is so flawed.  Goldsmith ignores that aspect of my post; I guess, for him, the targeting rules in NIAC are so self-evident and straightforward, and the facts of Al-Awlaki’s case so obvious, that the only possible conclusion is that Al-Awlaki is no different than Yamamoto.  I envy his certainty.