Heller on the Yamamoto Precedent

In an editorial on Friday about the al-Awlaki killing, I stated:

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.

This was one of several arguments I made in support of the legality of the al-Awlaki killing under domestic law.  I later described the Obama administration's international law arguments and noted that they "are more controversial." “It appears the right-wing has settled on a shiny new historical comparison to justify the targeted killing of Anwar al-Awlaki,” says Kevin Jon Heller at Opinio Juris, in response to my invocation of the Yamamoto precedent, and a similar invocation by John Tabin.  “It genuinely amazes me that anyone could compare Al-Awlaki to Yamamoto with a straight face,” he adds. It is not just (some) conservatives who invoke the Yamamoto precedent.  Here is what State Department Legal Advisor Harold Koh said this in his 2010 ASIL speech justifying U.S. targeting practices against terrorists:

First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.

And as Ben’s recent post from a "senior [Obama] administration lawyer involved in national security” makes clear, the Obama administration thinks the Yamamoto analogy is relevant in the al-Awlaki case. In addition to the ad hominem statements, Keller misrepresents my arguments.  I don’t think and did not say, as Heller maintains, that the only factor in the legality of the al-Awlaki killing is whether it was legal to kill Yamamoto.  But I, and it appears, the Obama administration, do think the analogy is relevant to the legality of the killing.  So too does Heller.  A few sentences after he says that no one could with a straight face compare Al-Awlaki to Yamamoto, Heller compares Al-Awlaki to Yamamoto:

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.

All of which makes me wonder what the name-calling is about.