Bagram: Who is Still Being Detained?

After a while I lost all hope that I would ever leave Bagram. I accepted that I would never be free.”

Jibran, ex-detainee from Bagram[1]                              

This statement reflects the longstanding problems with the indefinite detention at Bagram. In the immediate aftermath of the September 11th attacks, many individuals were captured by US forces to obtain information and restore the nation’s security. Today, there are over 50 people detained by the United States at Bagram with no release date in sight. The Obama administration plans for most US troops to withdraw from Afghanistan in 2014, a prospect that leaves many people wondering what will happen to those detained in Bagram.[2] However, there are equally important questions to be asked first because the basic facts and raw numbers are required to understand more deeply how the issue of detention has become so complicated throughout the years. This paper aims to discuss interrelating questions: (1) what statistics and data are available on the detainees held by the United States at Bagram, (2) what are the causes and effects of their capture and detention, and (3) why are they still being detained?

Statistics and Data

 How Many Are Detained at Bagram?

Although the number of people detained by the United States in Bagram has drastically declined, there are still over 50 individuals in detention. Between March 2012 and September 2012, the US “transferred 3,082 detainees to Afghan control.”[3] Many news reports have estimated that the US is still holding over 60 non-Afghan detainees at Bagram as of September 2013[4] but as of December 2013, that number has decreased to over 50.[5] The start of detention for these individuals has varied from as early as 2002[6] to as late as 2010.[7] It is reported that of these over 50 non-Afghans, over 40 are nationals of Pakistan,[8] two men are from Yemen, and one man is from Tunisia.[9] It has also been asserted that individuals from Kuwait and Saudi Arabia are among the TCNs.[10] For the remainder, there is little to no information available.

Though many sources give an estimate of the number of individuals at Bagram, there are four which have stated a precise figure. A September 2013 report by journalist Samira Shackle asserts the exact number is 67,[11] while the Justice Project Pakistan (JPP), “a nonprofit human rights law firm,”[12] states that it is 66 detainees.[13] Furthermore, a letter by President Obama dated June 2013 puts the number of detainees at 66.[14] As of December 17, 2013, Washington Post journalists Adam Goldman and Karen DeYoung cite the number of detainees at Bagram is 53.[15] One explanation of the fluctuation of the number of detainees at Bagram is that six Pakistani detainees have been repatriated; however, there is no explanation about what happened to the others.[16]

What accounts for the fluctuation?

The fluctuation of the exact number of detainees in Bagram may be due to two possible factors: repatriation and capture. As previously stated, six Pakistani detainees were recently released from Bagram by US authorities and handed over to Pakistan,[17] in addition to two Pakistani detainees (to be discussed further below) who were reportedly repatriated to Pakistan after US forces determined they were not threats. The repatriation process between the US and Pakistan has allegedly “dragged on” because of two issues: “humane treatment and security guarantees.”[18] The humane treatment guarantees are required as an obligation under international law, specifically the Convention Against Torture, and the security guarantees are required to quiet US fears of recidivism.[19] Conversely, the US captured Latif Mehsud, a Pakistan Taliban commander, who was transferred to Bagram.[20] The dichotomy between the long process of repatriation and the shorter process of capture has caused the exact number of detainees in Bagram to fluctuate.

Furthermore, this number can also be an indicator of whether the US is still active in pursuing suspected terrorists or whether the effort is dwindling. If the number of detainees remains static, it may indicate that the US is no longer in pursuit of suspected terrorists, and thus repatriation or release of detainees may become a higher priority. However, if the number begins to rise, it could mean that the US is still involved in active combat, suggesting that those detained will remain in detention along with newly captured individuals.

Causes and Effects of Capture and Detention

While statistics and data are important, perhaps the more important aspects are the causes and effects of capture and detention on these individuals. The detainees are more than statistics and numbers, they are people with families. It’s often easy to develop indifference towards these men when they are consistently referred to as detainees, a term that connotes a negative inference about them. However, upon closer inspection their individual stories elicit sympathy. Major themes in many of the cases described by the Justice Project Pakistan report include their families’ personal and financial struggles and possible false accusations leading to their capture.

In a recent report, the JPP identified 11 Pakistanis who were and still are detained at Bagram. While it could be said that the JPP only tells one side of the story, there seems to be little evidence to support the claim that these stories are false, especially those concerning the hardships of the detainees’ families. Even if the report is regarded as one sided, it still provides useful information relating to US review processes and detention policies. For confidentiality purposes, the JPP used fictitious names for ex-detainees and their family members.[21] Similarly, this article will use those fictitious names provided by the JPP.

The Personal Impact of Long Detention

Many of these Pakistani men have been detained for years and left behind their former lives and struggling families. One such story is that of Kaleem, who was only 14 years old when he was detained in 2008. He was captured when he attempted to collect belongings from his “ancestral home in South Waziristan.”[22]  His family has had some contact with him, and they have noticed a drastic change in Kaleem’s physical and mental health since he has been in detention.[23] As a consequence of seeing their son suffer, Kaleem’s parents’ health has declined as well.[24] Furthermore, his father mentions that Kaleem’s absence has caused their family to struggle financially. Not only does the detention prevent Kaleem from contributing to the household income, but also it deprives Kaleem’s father of income when he is forced to take off work to call or visit with Kaleem.[25] Kaleem’s situation is not any different from many others who have been detained at Bagram for years. Family grief and financial hardships are very common themes among other individuals who were interviewed by the JPP. More detailed accounts of these individuals stories can be found in the JPP’s report, “Closing Bagram.” [26]

How They Came to Get Captured

Other stories shared with the JPP reflect that some men were allegedly captured due to false accusations. According to his family, Muhammed, who traveled to Afghanistan to find work, has been detained since 2002 because he was falsely accused of being a terrorist by a co-worker.[27] Similarly, Abdul Jabbar’s brother states that Abdul, who has been held since 2005, was falsely accused of being a terrorist by a friend and captured by US forces.[28] Ayaz, who believes he was falsely accused of being a terrorist by a co-worker seeking a bounty, was captured in 2005. In 2011, after spending 6 years in detention, Ayaz was finally repatriated to Pakistan.[29]  The JPP asserts his repatriation occurred “because U.S. officials determined he was never actually a combatant.” [30] While the JPP does not report on how every individual was captured, it is still of concern that at least certain individuals’ capture occurred due to alleged false accusations by co-workers and friends.

This possibility raises serious concerns about the procedures and processes used at Bagram that seem to perpetuate the detention of these individuals. The JPP recognized in its report that the US has paid bounties to individuals in Pakistan, a practice that has led to the “wrongful detention” of some detainees.[31]  The bounty programs were an incentive for some Afghans seeking money or revenge to accuse individuals of being terrorists.[32] It appears that the US military relied on these accusations and circumstantial evidence to “justify capture and detention.”[33] Essentially, when a “story constitutes the sole basis for an individual’s detention there would be little ability for a detainee to refute such an allegation.”[34] Therefore, a false accusation made by someone seeking a bounty may be used as a basis for the indefinite detention of an individual. The US could defend this policy in that it may lead to useful information or the possibility of capturing high ranking terrorists; however, it appears that the disadvantages of this policy outweigh the benefits.[35]

Why They Are Still Detained

Some men recounted stories to their families about the ineffectiveness of Detention Review Boards and the inability of the US to release “individuals who have been erroneously detained [whom the US] no longer has any grounds to hold.”[36] A Pakistani national, Jibran, who was only 16 years old when he was captured in 2004, was finally repatriated to Pakistan in 2009.[37]  Apparently he was released because “U.S. authorities determined that he had never been involved in any militant activity and had been mistakenly detained.”[38] Repatriation of individuals to Pakistan is a rare occurrence, although certain individuals have been cleared as non-threats by the US government.

The JPP asserts that the Detention Review Board process is flawed in two ways: first, it “fails to provide detainees with fundamental due process guarantees”[39] required to accurately determine whether an individual is a threat and second, it fails to release or return those who are determined not to be threats. For example, a Pakistani man, Yasir, was captured in 2004 by UK forces in Iraq. The UK eventually handed him over to the United States, which transferred him to Bagram.[40] Yasir was recommended for repatriation and release in 2010, yet he still has remained in detention for almost ten years.[41] He is essentially stuck in a “legal limbo”[42] because of the inability of the Pakistani and US governments to come up with a workable policy to repatriate individuals.

This failure by the US and Pakistan has been a major reason why individuals, even those determined to no longer be threats, still remain in detention.  As previously stated, the US has two concerns relating to repatriation: humane treatment and security assurances. The need for humane treatment assurances stems from the non-refoulement principle, which prevents a state from transferring custody of an individual to another state if there is a real risk of torture. [43] Since Pakistan has a history of torture, the US must assess whether it can hand over detainees to the Pakistani government in accordance with the Convention Against Torture.[44] Furthermore, the US is seeking security assurances from Pakistan “to address fears that detainees might pose a security risk to the United States upon release.”[45] Since negotiations on these issues have yet to be concluded, the failure to come up with a workable policy effectively prolongs the length of detention for Pakistani detainees.

International politics and perhaps over-exaggerated claims of national security have delayed the release of more than 40 Pakistani nationals from indefinite detention in Bagram. As already noted, the US and Pakistan have failed to work together to create a policy which would facilitate the repatriation process for Pakistani individuals. Furthermore, the US may be overstating its fear of released detainees picking up arms again, especially if some of those detained have never been engaged in terrorism but were detained due to false accusations.[46] The plight of these individuals could ultimately be solved if the US and Pakistani governments came together to create a resolution to the longstanding problems of indefinite detention.

Furthermore, there needs to be more inquiry and information collected on those individuals who are not nationals of Pakistan since information on them is scarce. Until now, this paper has focused on Pakistani individuals detained at Bagram, but there are other third country nationals in detention as well. The Pakistani individuals are fortunate in one respect, that the JPP is dedicated to gathering information and making their cause known; however, for the remaining TCNs there is little information available on who they are, where they are from, and how long they have been detained. The identities of those who may come from Kuwait, Saudi Arabia or elsewhere, have not been reported, except for three detainees whose names became available through law suits. In al Maqaleh v. Gates,[47] the two men from Yemen and the man from Tunisia are identified as Amin Al-Bakri, Fadi al Maqaleh, and Redha al-Najar, respectively.[48] According to a Free Speech Radio News report, they are once again challenging their detention “saying they were illegally rendered into a war zone and are now being denied due process.”[49] Lacking information and data on the remaining TCNs may make it even more difficult to release or repatriate these individuals. If advocates are not aware of the details surrounding the capture and detention of the remaining TCNs, there will not be the same amount of attention or activism on their behalf, as is the case with the Afghan detainees. This lack of attention could translate to the non-Pakistani detainees enduring a possible longer detention because there is no outside pressure on the US to release them.

Conclusion

It is important to remember that the policies and negotiations affect real people, and they are not just faceless statistics. While the US and Pakistan governments let politics overshadow the real issues, over 50 individuals detained at Bagram continue to lose time and hope. We need to recognize that many of these men have spent years indefinitely detained, and it is time to consider their release more seriously. It is doubtful that the American people would turn a blind eye to indefinite detention within US borders; why should it be allowed abroad?


[1] Omran Belhadi, Justice Project Pakistan, Closing Bagram The Other Guatanamo 18 (Sept. 4, 2013), available at http://www.jpp.org.pk/bagram/closing-bagram-the-other-guantanamo/.

[2] Samira Shackle, The Other American Gulag: Bagram Prison’s Legal Black Hole Locks Detainees in Nightmarish Limbo, Alternet (Sept. 13, 2013), http://www.alternet.org/world/bagram-prisons-legal-black-hole-keeps-detainees-nightmarish-limbo?page=0%2C2.

[3] Amir Shah & Deb Riechmann, Bagram Prison Control Turned Over to AfghansSpokesman-Review (Sept. 11, 2012), http://www.spokesman.com/stories/2012/sep/11/bagram-prison-control-turned-over-to-afghans/.

[4] Fakhar ur Rehman  & Jamieson Lesko, Bagram Prison: Another Guantanamo in The Making?, NBC News (Sept. 4, 2013), http://worldnews.nbcnews.com/_news/2013/09/04/20327765-bagram-prison-another-guantanamo-in-the-making?lite; see ‘The Other Guantanamo’ – Indefinite Detention at Bagram Air Force Base, RT (Sept. 11, 2013), http://rt.com/usa/other-guantanamo-indefinite-detention-bagram-735/.

[5] Adam Goldman & Karen DeYoung, Military Trial in U.S. Being Considered For Russian Detained in Afghanistan,  Wash. Post (Dec. 17, 2013) http://www.washingtonpost.com/world/national-security/foreign-detainees-from-afghanistan-are-being-considered-for-military-trial-in-us/2013/12/17/d38f9254-6723-11e3-a0b9-249bbb34602c_story.html.

[6] Belhadi, supra note 1, at 28.

[7] Id. at 21.

[8] Id. at 11.

[9] Alice Ollstein, Bagram Prisoners Challenge Detention in US Federal Court, Free Speech Radio News (Sept. 17, 2013), http://fsrn.org/audio/bagram-prisoners-challenge-detention-us-federal-court/12550.

[10] Group Seeks Release of 60 Pakistanis from Afghan Jail, Dunya News Network (Oct. 2, 2013), http://dunyanews.tv/index.php/en/Pakistan/190825-Group-seeks-release-of-60-Pakistanis-from-Afghan-j.

[11] Shackle, supra note 2.

[12] Justice Project Pakistan, About Us, (2013), http://www.jpp.org.pk/about-us.html (last visited Oct. 30, 2013).

[13] Belhadi, supra note 1, at 4.

[14] Letter from Barack Obama, President, to Congressional Leaders Regarding the War Powers Resolutions, The White House (June 14, 2013), http://www.whitehouse.gov/the-press-office/2013/06/14/letter-president-regarding-war-powers-resolution.

[15] Goldman & DeYoung, supra note 5.

[16] Id.

[17] Release of 6 Pakistanis From Bagram Jail Confirmed, The Nation (Nov. 22, 2013),  http://www.nation.com.pk/lahore/22-Nov-2013/release-of-6-pakistanis-from-bagram-jail-confirmed.

[18] Belhadi, supra note 1, at 35.

[19] Id.

[20] Pakistan Taliban Commander ‘Seized in US Operation’, BBC News (Oct. 12, 2013), http://www.bbc.co.uk/news/world-asia-24500286.

[21] Belhadi, supra note 1, at 8.

[22] Id. at 25.

[23] Id.

[24] Id.

[25] Id. at 23.

[26] Id. at 18-23.

[27] Id. at 22.

[28] Id.

[29] Id. at 19.

[30] Id.

[31] Id. at 44.

[32] Id. at 45.

[33] Id.

[34] Mark Denbeaux & Joshua Denbeaux, “Report on Guantanomo Detainees: A Profile of 517 Detainees Through Analysis of Department of Justice Data,” Seton Hall University Law School 15 (last visited Nov. 28, 2013), available at http://law.shu.edu/publications/guantanamoReports/guantanamo_report_final_2_08_06.pdf.

[35] For further discussion on the US’s bounty program, see Michael Di Paolo, The Lucrative Bounty Program, Detained by U.S. (forthcoming).

[36] Belhadi, supra note 1, at 20.

[37] Id.

[38] Id.

[39] Id.

[40] Id. at 19.

[41] Id.

[42] Id. at 20.

[43] Id. at 35.

[44] For more information on the Convention Against Torture, see Jason Scott, Does the US Have a Legal Obligation to Insure Former Detainees Are Not Subjected to Torture by Other States? , Detained by U.S. (forthcoming).

[45] Belhadi, supra note 1, at 35.

[46] Id. at 22.

[47] Al Maqelah v. Gates, 605 F. 3d 84 (D.C.Cir. 2010), on remand, 899 F. Supp. 2d 10 (D.D.C. 2012).

[48] Bagram Inmates Challenge Detention, Al Jazeera  (January 8, 2010), http://www.aljazeera.com/news/americas/2010/01/201017182947994110.html.

[49] Ollstein, supra note 9.