AFTER THE EVENTS OF SEPTEMBER 11, 2001 AND THE invasion of Afghanistan, it became necessary for the United States to identify the international legal rules related to the detention, treatment, interrogation, and prosecution of suspected terrorists. Accordingly, the Bush Administration turned to its lawyers to identify this legal framework and to assess its binding character. The following review of the post-9/11 actions of the U.S. Government is intended to provide additional insight into the black box of whether and how international law operates to frame and in some instances constrain the development of U.S. policy on core matters relating to national security.

There are a number of legal issues that arose from the war on terror, including the legal basis for the invasion of Afghanistan, targeted killings, extraordinary rendition, surveillance of U.S. citizens, the use of the Guantanamo naval base as a detention center, the operation of CIA detention facilities, and the operation of military tribunals. This chapter will in particular focus on questions relating to the treatment and interrogation of detainees because the release of the so-called Torture Memos and subsequent publications by key insiders detail the legal back and forth between the Department of State, Department of Defense, Department of Justice, and the White House over the legality of certain coercive measures applied to detainees and provide a rich text for further illuminating the role of international law.