Ferhat is a broken man. Short and squat, with jet black hair and a bushy mustache, he looks healthy and strong as a bull, yet the life has gone out of his dark eyes.

This man in his thirties cannot sleep at night because he is afraid of the dark. He loses his temper when his four young children play loudly, because their screams remind him of the nightly cries he heard from his cell. He speaks in a monotone voice, his rasping accent revealing his Kurdish origins. At times overcome by emotion, he just stops, stares at his shoes, and shakes his head to push back the images that still haunt him, years after he was tortured in an interrogation center in Istanbul.

Like many others from Turkey’s mainly Kurdish southeast, Ferhat (not his real name) was caught up in the conflict that tore his region between 1984 and 1999. Over thirty-five thousand people died and hundreds of thousands of villagers, Ferhat and his family among them, were forced to leave their homes when they were burned down by the army in an attempt to deny supplies and logistical support to the guerrillas living in remote mountainous areas.

Ferhat was not a fighter, but he was a member of a legal pro-Kurdish party that was viewed with great suspicion by the Turkish authorities and was later closed down by the courts. Arrested on two occasions in 1993 and in 1994, Ferhat was charged with “aiding and abetting an illegal organization,” but refused to confess to a crime he says he did not commit, despite extensive physical and mental pressure. At the end of his first trial, he was acquitted. There was no evidence against him other than a denunciation obtained from another prisoner under similar circumstances.

Ferhat’s case took place in the context of what was considered an internal conflict, even if the Turkish Army often crossed the border into northern Iraq in pursuit of Kurdistan Workers Party (PKK) militants. While a State is entitled to suppress an insurrection as well as detain and prosecute rebels, torture is universally prohibited. “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture,” states the 1984 Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

The Convention, to which Turkey is a party, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” when the agent responsible is “a public official or other person acting in an official capacity.” The treaty lists reasons for inflicting pain or suffering that are associated with torture: obtaining from the detainee or a third person information or a confession; punishing him for an act that he or a third person has committed; intimidating or coercing him or someone else; or for reasons based on discrimination. Pain and suffering arising only from “lawful sanctions” is not prohibited under the Convention.

In addition, torture during armed conflict is specifically prohibited by international humanitarian law, whether the conflict is international or internal, and no matter whether the victims are soldiers who have laid down their arms, civilians, or rebels. The prohibition exists in customary law and in treaties. The Geneva Conventions of 1949 include torture of protected persons (sick or wounded members of the armed forces, prisoners of war, or civilians in the hands of the enemy) among the grave breaches which States are obliged to enforce through criminal prosecution. The first Additional Protocol prohibits torture as well as humiliating and degrading treatment of any detainee, as does Common Article 3 of the Geneva Conventions in non-international conflicts.

The International Committee of the Red Cross study of customary international humanitarian law says that the use of “torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment” against any person is forbidden in all armed conflicts.

In all these cases, the law makes a distinction between torture, which is often used to force information out of a suspect, and inhumane treatment, which attacks a person’s dignity, but the line between the two is often blurred. Indeed, revenge and hatred, as much as the need to obtain a confession, often drive the torturers to inflict the suffering. Torture is used not just to hurt physically, but also to humiliate the victim, which is why prisoners are often left naked during torture sessions, and rape or pain inflicted on the genitals are among the most commonly used forms of torture.

Since the arrest in 1999 of PKK leader Abdullah Öcalan, the conflict has abated and armed clashes are rarer in Turkey’s southeast. The Turkish government, determined to join the European Union, has introduced democratic reforms and improved its human rights record. Despite a government pledge to adopt a “zero tolerance” policy on torture, human rights groups say violations still occur but they are no longer systematic and appear to be on the decrease.

However, abuse of prisoners remains widespread in many countries. Moreover, there are disturbing signs that after September 11, 2001, torture, once considered abhorrent by Western public opinion and governments, is viewed by some as a necessary evil in the fight against terrorism.

Graphic photographs of detainees at Abu Ghraib prison in Iraq being humiliated, threatened with dogs and forced to pose naked in sexually explicit positions, caused a scandal in early 2004, and led to further revelations of ill treatment of prisoners elsewhere in U.S. custody. According to press reports, some detainees held by the CIA have been subjected to waterboarding, in which the victim is strapped down and water is poured over his face to induce the feeling of drowning—a practice that the United States has condemned as torture in the past when it was used by other countries.

In September 2006, the U.S. Defense Department issued a new interrogation field manual prohibiting the use of torture or cruel, inhuman or degrading treatment against any detainee held by the American armed forces. “Use of torture is not only illegal but also it is a poor technique that yields unreliable results,” the manual states.

The days and nights Ferhat spent in total darkness behind a blindfold, the guards’ taunts and insults, the death threats and the click of a pistol while he was waiting for an execution that never came were, according to him, even worse than the physical pain caused by the arm clamps that kept him hanging painfully for hours while electric cables were attached to his toes and genitals, and cigarettes burnt round scars in his forearms.

The Abu Ghraib prisoners piled up naked in human pyramids may not have physical scars to display but, as was the case for Ferhat, the abuse they suffered is likely to leave indelible marks on their psyche.

Since September 11, 2001, terrorism has emerged as the biggest security concern across much of the world. It has also become a kind of talisman whose invocation seems to absolve those fighting against it from previously unchallengeable legal and moral restraints. The use of terrorist tactics of unprecedented destructiveness by al-Qaeda and a network of associated groups is a frontal assault on the values of humanitarian law, and has at the same time created a crisis within the law, undermining acceptance of its core principles by the world’s pre-eminent military power.

Al-Qaeda declared war on America long before 9/11. It was in August 1996 that Osama bin Laden first proclaimed a jihad against “the Americans occupying the land of the two holy places.” “I’m declaring war on the United States,” he confirmed to an interviewer from ABC News two years later. In one respect there was nothing surprising in this choice of language. Armed groups labeled as terrorists by the States against which they fight have regularly aspired to the status of warriors engaged in a legitimate contest and sought to dignify their campaigns of violence with military trappings. However in this case al-Qaeda was able to muster the resources and organizational skill to bring off an attack whose impact was on a scale similar to interstate conflict, half a world away from the group’s base.

The suicide hijack-bombings of September 11 killed close to 3,000 people, brought down the tallest buildings in New York and inflicted serious damage on the Pentagon. The United Nations Security Council implicitly, and NATO explicitly, characterized them as an armed attack that gave the United States a right of self-defense under the UN Charter. Within a day, President Bush had announced a “war on terrorism” that he later said would be fought “wherever terrorists hide, or run, or plan.” This conflict, according to a subsequent White House directive, ushered in a new paradigm that required new thinking in the law of war.

Terrorism is a concept that does not have a recognized and agreed legal meaning. Because the word is not merely descriptive but normative, it tends to become a place-holder for those forms of political violence that the speaker regards as most illegitimate. The most authoritative recent definition is in the 2004 Report of the UN High-Level Panel on Threats, Challenges and Change, which refers to terrorism as “any action… that is intended to cause death or serious bodily harm to civilians or noncombatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.” This statement dismisses the idea that attacks on civilians may be raised above the level of terrorism if they take place as part of a campaign of resistance to occupation. However it also excludes attacks against military targets by non-State groups (such as al-Qaeda’s attack on the American destroyer Cole in Yemen in 2000) from the sphere of terrorism and so would be regarded as incomplete by some people.

The UN Panel proposed its definition as the basis for a comprehensive international convention banning terrorism—something that has long been under discussion at the United Nations—but the idea was not endorsed by the 2005 UN World Summit, as some developing countries insisted on preserving an exclusion clause for national liberation movements. Nevertheless, the actions associated with terrorism are already prohibited under a wide variety of international and domestic laws. Acts of terror when committed by non-State groups are generally crimes under the law of the country where they take place, and are most often prosecuted as such. For instance, Ramzi Yousef, who masterminded the 1993 bombing of the World Trade Center, was convicted in a New York court and sentenced to life imprisonment without parole. In addition, in recent decades, there have been 13 international conventions directed at specific acts identified with terrorism, including the 1979 Convention on the Taking of Hostages and the 1997 Convention against Terrorist Bombings.

Terrorist actions committed in the context of armed conflict are violations of international humanitarian law. One rule—stated in Article 51 of the first Additional Protocol of 1977 and Article 13 of the second Additional Protocol—specifically addresses the psychological effects that terrorism aims at, by prohibiting “acts or threats of violence the primary purpose of which is to spread terror among the civilian population.” This provision is a reminder that—for all the debate about whether terrorism as a concept is necessarily limited to non-State groups—national authorities and regular armed forces can also carry out acts of terror.

In addition, treaty and customary law contains rules against the deliberate targeting of civilians, the launching of indiscriminate attacks, and the taking of hostages that are binding on all participants in both international and non-international armed conflicts. The prohibition on perfidy would ban attacks that rely on the attacker using the appearance of a civilian to avoid suspicion (as with most suicide bombs). In addition, wholesale acts of violence or systematic campaigns directed against a civilian population as an organizational policy might qualify as a crime against humanity.

As a method of fighting, terrorism represents the ultimate form of asymmetrical warfare, in which an armed group tries to neutralize the greater strength of its opponent by avoiding conventional battles in open terrain. Like guerrillas, terrorists fight with stealth; indeed there is some overlap between the two categories, and groups like the FLN (Front de Libération Nationale) during the Algerian war of independence against the French in the 1950s or the Tamil Tigers today in Sri Lanka combine elements of both approaches. But terrorism, as generally understood, does not involve an attempt to capture and hold territory, or to attack military targets for anything other than symbolic purposes. For these reasons campaigns of terror that are divorced from any broader military struggle have traditionally been seen as a form of crime, not warfare.

The uniqueness of the Bush administration’s response to September 11 lay in invoking the notion of war to claim sweeping powers against al-Qaeda suspects, while at the same time denying the protection of the laws of war to America’s supposed enemies. U.S. officials argued that the traditional prerogatives of war—the right to detain hostile fighters without trial or target them without warning—were necessary and appropriate, but that the restraints embodied in the Geneva Conventions, the Additional Protocols and customary law were not applicable against such an unconventional and dishonorable foe. By their actions, al-Qaeda’s fighters had placed themselves outside the law and could be treated as military necessity required: this was the moral and legal intuition to which American policies appealed for justification.

But the administration’s position—based on arguments developed largely by civilian officials, often in the face of strong opposition from senior uniformed lawyers and State Department experts—relies on an extraordinarily narrow and anachronistic picture of international law. It may have been true in earlier centuries that irregular fighters were entirely at the mercy of their enemies, but since World War II a complex set of international rules has been developed that builds on a vision of essential human dignity to offer some fundamental protections to individuals in all circumstances. These rules are found in Common Article 3 of the 1949 Geneva Conventions, in Article 75 of the first Additional Protocol, in human rights instruments like the Convention against Torture, and in customary law. They enshrine principles of humanity and due process and are not in any way dependent on a reciprocal commitment from the individual protected by them to respect similar values himself. The decision of the U.S. Supreme Court in the Hamdan case in June 2006, ruling that Common Article 3 applied at a minimum to American military operations against al-Qaeda, recognized this point.

Whether or not the fight against them is characterized as an armed conflict, suspected terrorists are entitled to baseline protections (for instance against cruel and degrading treatment or improper trials) in all situations. What about the Bush administration’s claim that the existence of a “war against terrorism” allows the United States to target enemy combatants or detain them indefinitely? As stated, the phrase is legally meaningless, since the notion of war has historically been restricted to conflicts between States and there cannot be a war against a method of fighting. More cautious and lawyerly administration officials speak instead of an armed conflict against al-Qaeda and affiliated groups.

Even this claim is open to question. For an armed conflict to exist there must be protracted armed violence between two or more organized groups, and it is by no means clear that those conditions hold in the case of the United States and al-Qaeda (as distinct from the geographically limited conflict against the Taliban in Afghanistan that the U.S. launched in October 2001). More importantly, it is also not clear that the traditional prerogatives of warring parties—to target or detain enemy combatants—would automatically carry over into such an unconventional conflict, if it existed. Fundamental human rights principles forbidding arbitrary killing and prolonged arbitrary detention are now generally agreed to apply in time of war as well as peace. As armed conflict moves ever further from the traditional model of uniformed troops confronting each other on the field of battle, these human rights principles are likely to assume increasing importance in our understanding of what is permissible. In a conflict that may have no definite end, and where there is enormous uncertainty about who is taking part in hostilities on the other side, it does not seem compatible with these norms to seize or target anyone you assert to be an enemy combatant without independent oversight.

The Bush administration’s reluctance to acknowledge these principles has obscured the continuing relevance of international law and threatens its authority. In the long run, however, concern over the excesses of the “war on terror” may force a new awareness that the overlapping legal regimes that apply to the use of armed violence contain no gaps and operate across more of a continuous spectrum than has previously been recognized.

In the first weeks after the fall of Baghdad in April 2003, Iraqis would stop Americans on the street and ask who was in charge of the country. No one seemed to know. The Iraqi leadership had vanished, and the institutions of the state had collapsed.

The Iraqi exile politicians returning to Baghdad imagined that power would be handed quickly to them, but they were a contentious group with dubious backing inside the country. The American military, which had led the drive to overthrow the regime of Saddam Hussein, was now standing back, unwilling to intervene to stop the rampant looting and impose civil order. The civilian reconstruction group, under retired Army Lieutenant General Jay Garner, had no practical or legal authority and few assets to run the state. They saw themselves as liberators and were hesitant to assert themselves as rulers of Iraq. At a meeting in late April at the Baghdad convention center between coalition administrators and Iraqi notables, a tribal sheikh stood up and asked, “Who’s in charge of our politics?”

“You’re in charge,” Garner replied. There was a collective intake of breath among the Iraqis in the room. An American official at the meeting later told me, “They were losing faith in us by the second.”

By the middle of May, Garner had been replaced by L. Paul Bremer III, who had the status of presidential envoy and the legal backing of United Nations Security Council Resolution 1483, which acknowledged that the United States, the United Kingdom, and their coalition allies were the de facto occupying powers of Iraq. Thus began the troubled, year-long life of the Coalition Provisional Authority. Where Garner had tried in his laid-back way to ease a rapid transfer of power to the Iraqis, Bremer acted as if he was in charge. In the words of one C.P.A. official, the “arrogance phase” of the chaotic early days, with its rosy assumptions, had given way to the “hubris phase” of a heavy-handed occupation. The C.P.A. eventually issued dozens of legal orders, with the goal of remaking Iraq into a free-market democracy.

At least some of those orders were of doubtful validity under international law. The 1907 Hague Regulations and the fourth Geneva Convention of 1949 define the position of an occupying power in carefully delimited terms, as place-holder and caretaker rather than as a normally functioning government. Occupation brings with it a balanced set of responsibilities and prerogatives. According to Article 43 of the Hague Regulations, it is the duty of an occupying power to “take all the measures in his power to restore and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” To promote public order, or to ensure its own security, an occupying power can repeal or suspend local laws, and introduce its own regulations (for instance by regulating the press or limiting the right of assembly). If it is necessary for imperative reasons of security, it can intern people without trial, though this must be done according to a regular procedure with a right of appeal and regular (ideally six-monthly) reviews. Domestic courts must be allowed to function wherever feasible, enforcing those local laws that have not been suspended, and the occupying power can also establish its own tribunals to enforce its penal regulations, so long as no one is sentenced without a fair trial.

Occupiers are also obliged to look after the welfare of the civilian population, ensuring as far as possible that it has adequate food, water and medical treatment. The Red Cross and other humanitarian relief groups must be allowed to operate and distribute supplies if the occupying power cannot meet the needs of civilians itself. It is forbidden for an occupying power to transfer civilians out of occupied territory, or to transfer its own civilian population in.

All these rules apply from the moment an occupying power actually controls a body of territory, even if it does not acknowledge the title of occupier.

The laws of armed conflict allow some scope for occupying forces to alter the legal systems of the countries they control, but envisage that such measures be limited to those with short-term consequences. However at least since World War II there has been a contrasting strain of thought, arguing that transformation of the political system in place before occupation may in some cases be not only permitted but desirable. Even as the fourth Geneva Convention was being negotiated, the United States and its coalition partners were engaged in the complete remaking of Germany and Japan. In practice, the international community has been willing to accept such “transformative occupation” through endorsement by the United Nations Security Council, where it is aimed at promoting fundamental human rights or the principle of self-determination. The occupation of Iraq has tested the limits of this emerging consensus.

The military occupation of Iraq allowed public order to collapse and was never able to restore it, while the C.P.A.’s ambitions went far beyond merely administering Iraq until sovereignty could be returned. Order Number 39, which opened the Iraqi economy to foreign investment and allowed for foreign ownership of Iraqi assets, imposed just one of many far-reaching changes in Iraqi law. C.P.A. officials pointed to language in Security Council Resolution 1483 that instructed the authority to “promote the welfare of the Iraqi people” and provide “economic reconstruction and the conditions for sustainable development.”

But the C.P.A.’s project was ideological, not just administrative: the radical transformation of Iraq. If it had paid more attention to “the welfare of the Iraqi people,” and less to the vision of the Republican administration in Washington, the C.P.A. would not have tried to privatize state-owned industries in a country where employment ran well over fifty percent. And if they had taken their responsibilities under the Geneva Conventions more seriously, American commanders would have resisted the pressure from their civilian bosses to use coercive interrogations in the effort to snuff out the insurgency. The result of this failure was the scandal of torture at Abu Ghraib, the single worst mark against the Coalition Provisional Authority. The laws of occupation don’t merely serve to protect the rights of the occupied—they also protect the perception of the occupier.

Pushing the envelope of international law was not the occupation’s core problem. Whether or not its authority was legal, it was increasingly perceived by Iraqis as illegitimate. This perception had at least as much to do with the chaos and incompetence of the C.P.A.’s rule as it did with the original invasion. When I met Bremer at his office at the Republican Palace in the secure Green Zone, he told me that the closest historical precedent for his job was that of the allied military occupiers of Germany and Japan after World War II. This was a misleading analogy, and it helped to explain the C.P.A.’s many mistakes. Those postwar occupations were legitimate, in the eyes of the world and of the defeated nations. General Douglas MacArthur could write the constitution of Japan in a way that even Bremer couldn’t force an American draft constitution down Iraqi throats. Whatever his legal authority, MacArthur had the power of the moral victor. The measure of the C.P.A.’s illegitimacy in the eyes of Iraqis lay in the rising number of attacks against foreign soldiers and civilians during the year of the formal occupation. Some Iraqis voted with roadside bombs and Kalashnikovs; others stood aside and refused either to join in the reconstruction or to resist it. By June of 2004, when Bremer was signing a flurry of last-minute legal orders before the transfer of sovereignty, Iraqis had definitively rejected the occupation, and very little of the C.P.A.’s efforts survived the restoration of self-government. Bremer and his aides flew home, and Iraq returned to itself.

In his memoir “My Year in Iraq,” Bremer describes a dark moment in which he concluded that the Americans in Iraq had become the worst of all things, “an incompetent occupier.” The only justification for a prolonged occupation by a foreign power, such as the world hadn’t seen since 1945, was a practical one: that post-Saddam Iraq was too shattered and divided to govern itself. Only an occupation that was able to reconstruct the country and usher in genuine self-rule could have overcome all the counts against America in Iraq. From the beginning, the occupiers had to navigate between two imperatives: to exercise enough control that Iraq stood a chance of succeeding, and to yield enough control that Iraqis cooperated with the project. In the end, the C.P.A. accomplished neither.

In late July 1995, after pounding the town of Zepa for days with artillery, rockets, and machine guns, Gen. Ratko Mladic, commander of the attacking Bosnian Serb forces, accepted the town’s surrender. Mladic had earlier demanded that the town surrender all men of fighting age as prisoners of war, and promised to escort all women, children, and elderly to government lines and safety. Despite the pleas of Zepa’s mayor, Mehmed Hajric, NATO and UN forces refused to intervene. Finally, Mayor Hajric took a white flag in hand and went to Mladic to negotiate the surrender of Zepa. He and three companions were seized by the Serbs and imprisoned in the neighboring town of Rogatica. Shortly thereafter the Bosnian forces took Zepa.

After fifteen days of imprisonment, Hajric managed to escape. However, according to the Hague Conventions on Land Warfare of 1899 and 1907, which remain in force and are considered part of conventional international humanitarian law, Hajric enjoyed a special protection. He had the status of parlementaire and could not, without reason, be arrested and detained.

A parlementaire is a person who is authorized by one party to a conflict to speak with another party to the conflict, and who travels under a white flag. Hajric met both requirements—he had the authority to appoint himself as negotiator, and did, in fact, carry a white flag.

Although the rules on parlementaires evolved during earlier centuries and were codified in the Hague Conventions, they apply today. A parlementaire may be accompanied by a flag bearer, an interpreter, and a trumpeter or drummer. The commanding officer to whom a parlementaire is sent is not required to meet him and may take measures to prevent the parlementaire from spying.

Significantly for Hajric’s case, a parlementaire may not be directly attacked, and almost always has the right not to be arrested, detained, or executed. A parlementaire loses these rights if he abuses his mission—by spying or committing a hostile act. Even if accused of such abuses, he retains the right to a fair trial and humane treatment.

Hajric, however, had done nothing amiss. His detention was unlawful.

Shortly after the first CIA paramilitary teams were spirited into Afghanistan’s Panjshir Valley in late September 2001 to help topple the Taliban regime, a secretive group of lawyers at CIA and the Justice Department’s Office of Legal Counsel began an insurrection of their own. Their aim was to reinterpret long-standing international agreements on the detention and interrogation of prisoners in order to sanction an off-shore CIA prison system beyond the reach of any court, and give the agency’s interrogators freedom to extract information from terrorist suspects in nearly any manner they deemed necessary.

The system the CIA put in place was part of what has become the largest covert action program since the height of the Cold War—known at the agency by the initials GST. Its overall purpose is to kill, capture or otherwise neutralize al-Qaeda terrorists. It is wholly separate from the military’s counter- terrorism programs and has its own distinct rules and legal authorities.

A secret for nearly five years, the CIA’s program was acknowledged by President Bush in September 2006, when he announced that fourteen “high-value” terrorist suspects—including the alleged mastermind of 9/11, Khalid Sheikh Mohammed—were being transferred from CIA custody in secret prisons overseas to Guantanamo Bay. President Bush said the people who had been held in the program were “dangerous men with unparalleled knowledge about terrorist networks and their plans for new attacks” and that “the security of our nation and the lives of our citizens depend on our ability to learn what these terrorists know.” Having a CIA program for questioning terrorists would “continue to be crucial to getting life-saving information” from any suspects captured in the future, the President added.

Although little beyond the existence of the program has been officially revealed, its broad outlines and the legal arguments used to justify it have become known. The program has its source in two official decisions. First, three days after the attacks of September 11, Congress passed a war resolution authorizing the president to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Congress, in effect, was declaring war against al-Qaeda.

Three days later, on September 17, President Bush signed a classified presidential finding—as required by the National Security Act of 1947—to authorize a covert action program against al-Qaeda. According to the rules governing intelligence operations, covert actions may not violate the U.S. Constitution or U.S. law, including treaties the United States has signed. But they are allowed to violate the laws of the foreign countries in which they take place, according to intelligence experts.

The initial focus of the CIA’s counterterrorist program, in the months after September 11, was to kill al-Qaeda leaders and question suspects in order to gain information about a possible imminent second attack on the United States. As years passed without another attack on U.S. soil, the aim of preventing an incipient terrorist operation was overtaken by the desire to acquire knowledge about al-Qaeda’s strategic plans, about functioning terrorist cells, about illicit financing and logistics networks, and about the underground flow of potential suicide bombers into Europe, Iraq and elsewhere.

The CIA had no trained interrogators and no facilities to detain suspects when al-Qaeda struck. In the first few months after the attack, as CIA operatives took custody of suspects during the war in Afghanistan, the agency scrambled to find secure and covert locations where they could be held. Initially, prisoners were detained in Afghanistan. Later, prisons were established in several Eastern European democracies, in Thailand, and within the U.S. military’s Guantanamo Bay compound in Cuba, according to current and former intelligence officials and other sources. The CIA detention centers in Guantanamo and Thailand were closed down some time ago, and detainees held in the Eastern European prisons were relocated shortly after the Washington Post disclosed the existence of prisons there in November 2004.

Intelligence officials argue that in order to gather information from recalcitrant al-Qaeda operatives, the agency needs to be able to hold and interrogate suspects for as long as necessary, without the restrictions imposed by the American legal system or even by the review tribunals established for Guantanamo Bay. About 100 prisoners have gone through these CIA-only “black sites” with approximately 30 prisoners being held at any one time.

It would be illegal for the government to hold prisoners in such isolation in the United States, which is why the CIA placed them overseas, according to former and current intelligence officials and other government sources. These experts said the CIA’s internment practices also would be considered illegal under the laws of several host countries, such as those in Eastern Europe, where detainees have the right of access to a lawyer and the right to defend themselves against allegations of wrongdoing. The president’s covert action finding, however, allows the CIA to break the laws of foreign countries and to deny the actions if disclosed.

The legality of the secret prisons under international law is highly questionable, according to international law experts and human rights lawyers. The United States claims that its campaign against al-Qaeda is an armed conflict, in which case it would be bound by the customary law of armed conflict; this arguably includes a prohibition on enforced disappearance. If carried out in a widespread or systematic way, either during armed conflict or peace, enforced disappearances are a crime against humanity. Finally, the United States is bound at all times by fundamental norms of human rights, including the right against prolonged arbitrary detention, legal experts say.

The interrogation of suspects held in this secret system proceeded in an improvised way. Teams of polygraphers and psychologists were put together to question alleged terrorists picked up around the world. After the CIA captured the al-Qaeda operations chief Abu Zubaida in March 2002, officials pushed for explicit guidelines that would allow them to use highly coercive methods against so-called “high value detainees.” In response to CIA and White House requests, the Justice Department’s Office of Legal Counsel issued authorization for a series of “enhanced interrogation techniques.”

The EITs include “waterboarding,” meant to simulate drowning, “water dousing,” soaking detainees with water in cold rooms, prolonged stress and duress positions, liquid diets, sleep and light deprivation, noise and light bombardment, extreme isolation and other measures which are often used in combination with one another.

In his September 2006 speech, President Bush said the procedures used by the CIA were “tough, and they were safe, and lawful, and necessary.” However they went far beyond anything that the United States has previously claimed the right to use against captives during war or at any other time. At least some of the practices used would clearly violate the Geneva Conventions, but the administration argued that the Geneva Conventions did not protect al-Qaeda fighters picked up in Afghanistan or outside it. In February 2002, President Bush had directed members of the U.S. military to treat detainees humanely—but this directive was deliberately crafted in such a way that civilian intelligence agents were not bound by it.

As a party to the Convention against Torture, the United States is prohibited from using torture at any time. However in a series of internal memos the Bush administration redefined torture in an extremely narrow way. It said to constitute torture, the treatment “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” For an interrogation technique to rise to the level of mental torture, the Justice Department argued, the psychological harm must last “months or even years.”

Although the memo was withdrawn after it became public, a replacement text said that none of the Justice Department’s initial conclusions regarding the legality of specific techniques would be different under the revised standards.

The Torture Convention also bans States from practicing cruel, inhuman or degrading treatment, often referred to as “torture lite.” But the administration declared that this provision of the Convention did not apply to the treatment of foreign persons outside the United States. This was an unprecedented interpretation of the law that won little support outside the administration and was disavowed by the former State Department lawyer who had submitted the Torture Convention to Congress in 1989.

To close this loophole, Republican Senator John McCain—a former Vietnam prisoner of war—introduced legislation in 2005 that banned all cruel and inhuman treatment of detainees without any geographical limit. After initially campaigning against the measure, the White House eventually signed it into law in December 2005. However President Bush issued a signing statement that said he would construe the law in accordance with his authority as Commander-in-Chief. Bush and his lawyers claim that the President has the authority to override statutes if he deems it necessary to national security.

In June 2006, the administration received a further setback when the U.S. Supreme Court issued its decision in the Hamdan case. The Court declared that the conflict with al-Qaeda was covered by Common Article 3 of the Geneva Conventions, which forbids cruel, humiliating and degrading treatment of captives. This rule would place greater restrictions on the treatment of prisoners than the McCain Amendment. Following the Court’s decision, Congress passed a statute at the administration’s request that would limit the enforceability of this part of the Geneva Conventions in American courts.

Beyond the CIA’s undisclosed sites, a second tier of prisons exists which are run by foreign security services in their own countries. Experts believe there are at least 70 suspects being housed in them who are thought to have limited intelligence value. For the most part, prisoners were transported by the CIA to these prisons through the process of “rendition.” Egypt, Jordan, Morocco and Afghanistan are among the countries known to hold and interrogate such prisoners, but there are others.

The legal justification for renditions has never been well established or disclosed. Before 9/11, the practice was used to “render” fugitives abroad to justice, meaning into a U.S. or foreign court. These days, however, “extraordinary” renditions are used to transfer subjects into either CIA-run or foreign-run prisons, usually without any legal proceedings. All renditions are done with the consent of the foreign intelligence service involved. There is doubt among some CIA lawyers that this type of rendition is legal.

Under U.S. law and the Torture Convention, the government may not send anyone to a country where he or she is more likely than not to face torture or cruel treatment. The CIA has repeatedly transported prisoners to countries that the State Department has criticized for abusing prisoners in detention.

To comply—at least on paper—with anti-torture laws, the CIA’s Office of General Counsel requires a verbal assurance from the foreign intelligence service that the detainee will be treated humanely, according to several recently retired CIA officials familiar with such transfers. Some of these officials say the assurances are ineffective and impossible to monitor. One CIA officer involved with renditions called the assurances from other countries “a farce.”

The U.S. war against Iraq stands apart from the rest of America’s counter-terrorist operations because the administration never denied that the Geneva Conventions applied to all captured Iraqi fighters and civilians. However, either by deliberate military policy or by accident, this distinction was often forgotten in the field. Interrogation tactics approved for use on terrorist suspects in Guantanamo appear to have migrated to Iraq, as did the practice of “ghosting” certain detainees for long periods of time. These tactics were allowed to take hold admist the general chaos and breakdown of discipline within military units that followed the seizure of Baghdad by U.S. and coalition forces.

At the request of the CIA, a number of prisoners were taken out of Iraq in contravention of Article 49 of the Fourth Geneva Convention, which forbids the transfer of protected civilians from occupied territory. One case involved an Iraqi citizen named Hiwa Abul Rahman Rashul, who was captured by Kurdish forces in the summer of 2003 and turned over to the CIA, which whisked him to Afghanistan for interrogation. The Justice Department, however, ruled he was indeed a “protected person” under Geneva. The CIA promptly brought him back to Iraq. But then CIA director George Tenet asked Defense Secretary Donald Rumsfeld not to give Rashul a number and to hide him from the ICRC. Rumsfeld agreed to the request, he said at a news conference a year later. Rashul was then lost in the system for seven months.

Asked to explain the authority under which he complied with Tenet’s request or under what authority he could keep Rashul hidden for so long, Rumsfeld responded: “We know from our knowledge that [Tenet] has the authority to do it.” In this case, as throughout its counter-terror operations, the administration was purposefully evasive in explaining the legal rationale for the unusual activities it has undertaken. Officials have repeatedly threatened legal action against government professionals and reporters who have brought these activities to the public’s attention.