Following the attack upon the United States by al-Qaeda on September 11, 2001, the United States of America essentially declared war on al Qaeda, who carried out the attack, and the Taliban, who shielded them in Afghanistan.
Three constitutional issues have arisen in connection with the conduct of American military and intelligence forces against the "enemy combatants" in this war: detention of prisoners, treatment of prisoners, and targeted killing of combatants in the field.
The detention issues have been addressed in the courts. The Supreme Court has issued four decisions in which it ruled that prisoners must be held and tried in accordance with the Geneva Convention. Hearings that comply with habeas corpus must be held to determine whether or not prisoners are indeed enemy combatants, and war crimes trials must comply with the standards of the Uniform Code of Military Justice.
Issues relating to torture and targeted killing, however, have not been resolved in the courts. Government attorneys issued conflicting memoranda regarding the use of "enhanced interrogation techniques" that many considered to be "cruel, degrading, or inhumane" or even "torture." Memoranda, statutes, and treaties regarding this issue are set forth below.
Moreover, the courts have not resolved whether or not the military under the command of the President may target individual leaders of al Qaeda and the Taliban for death. A speech by Attorney General Eric Holder relating to this issue is also set forth below.
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