STATISTICS (by Luna Droubi & Claire Thomas):[i]
Update 11/10/11 by Carl Zander
While it is difficult to get an exact number of the detainees in U.S. custody at the Bagram facility, on October 10th the Washington Post reported the number to be “more than 2,500 prisoners.”Joshua Partlow and Sayed Salahuddin, Afghan detainees tortured in prison, U.N. says, The Washington Post (October 10, 2011), http://www.washingtonpost.com/world/war-zones/afghan-detainees-tortured-in-prison-un-says/2011/10/10/gIQAr3K6ZL_story_1.html.
In early September, Human Rights First’s Daphne Eviatar put the number of detainees at more than 2,600 men. Daphne Eviatar, The post-9/11 U.S. Military Prison Complex, Human Rights First (Sept. 8, 2011)http://www.humanrightsfirst.org/2011/09/08/the-post-911-u-s-military-prison-complex/.
These numbers show a sharp increase in detainee level in the spring of 2011, and they continue the trend since the detainment facility opened. All indications appear to be that the rise in detainee population will continue, particularly with the request for bids for a new detention unit going out.
Update January 2012 by Carl Zander
A CBS report dated Nov. 13, 2011 says that “there are more than 3,000 detainees at Bagram, or five times the number (600) when President Barack Obama took office in January 2009.” Seth Doane and Phil Hirschkorn, Bagram: The Other Guantanamo?, CBS News, Nov. 13, 2011, http://www.cbsnews.com/8301-18563_162-57323856/bagram-the-other-guantanamo/.
This number is a 400-500 person increase in the detainee population since the last report of numbers from early October. This appears to be the largest jump in detainee population since Detained by US began tracking detainee population numbers.
Over the period of four days, however, a new number emerged in a posting to the Washington Post’s Checkpoint Washington blog. According to the Post, Senator Lindsey Graham said, in a Senate Armed Services Committee hearing, that the detainee population in U.S. custody is 2,800. Walter Pincus, Senators Call out Karzai on Night Raid Demands, The Washington Post, Nov. 17, 2011, http://www.washingtonpost.com/blogs/checkpoint-washington/post/senators-challenge-karzais-assumptions/2011/11/17/gIQAJsLZVN_blog.html.
It is unclear whether Sen. Graham’s number of detainees is from outdated information or if there has been a reduction in the detainee population at Bagram, but this figure is a 200 person reduction from previous detainee population numbers above. This reduction may be indicative of population fluctuation in the detention facility as prisoners are brought in and released daily. The change may also be due to transfers of detainees to Afghan custody. The discrepancy in numbers may reflect as well the difficulty of keeping and disseminating continually updated statistics on detainees as the war in Afghanistan is being fought. Even if the change is more than just a temporary event, it appears that overall the upward trend in detainee population continues.
[i] Unless otherwise noted, all data in this table and the corresponding chart come from Jeff A. Bovarnick, Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy, 2010 Army Law. 9, app. A at 47, with the exception of the September 2010 data, which came from Julian E. Barnes, U.S. Seeks Role in Afghan Jail, Wall Street J., at A13, available at http://online.wsj.com/article/SB20001424052748703399404575505864255940020.html.
[ii] E-mail from Daphne Eviatar, Senior Associate, Law & Security Program, Human Rights First, to Luna Droubi, Student, New York Law School (Mar. 24, 2011, 11:20 AM ET) (on file with author).
[iii] Alissa J. Rubin, Murky Identities and Ties Hinder NATO’s Hunt for Afghan Insurgents, Report Says, N.Y. Times, May 10, 2011, http://www.nytimes.com/2011/05/11/world/asia/11afghanistan.html
Update: 2012-2013 US to Afghanistan Detainee Handover – Statistics and Prospects. By Mike Yang Zhang
According to an Associated Press report, the US transferred exactly 3,082 detainees to Afghan custody between March 2012 and September 12, 2012. The March 2012 date reflects the March 9, 2012 signing of the Memorandum of Understanding (MoU), between the US and Afghanistan, dealing with the fate of current and future detainees. The figure of 3,082 is consistent with an Afghanistan Analysts Network article dated September 10, 2012, which states that “[t]he original 3100 detainees have now almost all been transferred” from US to Afghan custody. However, the detainees transferred then only included detainees under US control before the MoU signing, and did not include 50 non-Afghan detainees, or the “last 38 or so Afghans who had been held for a long time because they were deemed particularly dangerous.”
In fact, since the MoU’s signing in March 2012, “the US has detained a further 684 Afghans and they remain on the American side of Bagram [as of September, 2012].” According to a report in early March 2013, the number of detainees who remained under US control at Bagram ranged from 800 to 900, as “American forces continue to capture an average of 100 people suspected of being insurgents every month.” It appears the US has transferred some of the post-March 2012 detainees, since there has been only a 100-200 detainee increase from September 2012 to March 2013, whereas an average of 100 new detainees per month, if none of them had been released, would have added approximately 600 detainees over this period.
According to a New York Times article dated March 9, 2013, the total number of detainees that the US has handed over to Afghan custody is “nearly 4,000.” But the actual number of detainees currently in Afghan custody is difficult to ascertain due to multiple factors. One factor is the rapid release of prisoners; as of early January 2013, “[i]n the last year, 570 detainees [had] been released after acquittal in Afghan courts,” and a total of 485 other prisoners were scheduled to be released in 2013, or had already been freed. According to an article dated March 25, 2013, an unnamed senior Afghan official at Bagram indicates, “[s]ince March 2012, the Americans have handed over to us 4,000 prisoners. We have freed 1,350 of them.” This comment would suggest that the total number of remaining detainees in Afghan custody is approximately 2,650. That figure, however, doesn’t take into account the number of detainees who may have been captured by the Afghans without US involvement.
On March 25, 2013, a new MoU was signed between General Joseph Dunford and Afghan Defense Minister Bismullah Khan Mohammadi. This new MoU, whose text has not been made public, evidently supersedes the one signed in March, 2012. The earlier MoU was never completely implemented; “the negotiations [to do so] soured because of the concern of the U.S. that prisoners would be released by the government of Afghanistan, which could present a potential danger to the country.” Thus, on one hand, Afghanistan previously held the position that detention without trial violates their Constitution. On the other, the US countered with two points: first, detention without trial is allowed under international law, and second, it would avoid the risk of having certain dangerous detainees released.
Even though this new MoU has not been made public, details have been leaked. According to an Afghanistan Analysts Network article dated March 4, 2013, this new MoU “will not authorise detention without trial,” will not provide the “US a veto on the release of any detainee,” and obliges the US “to hand over detainees within 96 hours of arrest.” This obligation implies that the US will continue to seize and detain people, but only for up to four days. Another key detail is an agreement by the US to hand over to Afghan officials the previously mentioned 38 “particularly dangerous detainees against whom it only had classified evidence and whom it feared might subsequently be released.”
Lastly, while the new MoU does not allow detention without trial, it appears the “highest Afghan legal authorities” have been looking for methods to extend detention within “existing Afghan law.” For example, “existing court powers” can “order extensions of the period a detainee is held at various stages of the investigation and trial periods … for a maximum of about ten months.” Consequently, it appears that the US and Afghanistan may have agreed to essentially maintain a prolonged detention policy for detainees, but without the divisive constitutionality question previously mentioned. Thus, while the legal debate may be settled, detention isn’t over in Afghanistan.
 Amir Shah & Deb Riechmann (Associated Press), Bagram Prison Control Turned Over to Afghans, The Spokesman-Review (Sept. 11, 2012), http://www.spokesman.com/stories/2012/sep/11/bagram-prison-control-turned-over-to-afghans.
 Kate Clark, The Other Guantanamo: Bagram and the Struggle for Sovereignty, Afg. Analysts Network (Sept. 10, 2012), http://www.aan-afghanistan.org/index.asp?id=2980; see Rod Nordland, Issues Linger As Afghans Take Control of a Prison, N.Y. Times (Sept. 10, 2012), http://www.nytimes.com/2012/09/11/world/asia/parwan-prison-at-bagram-transferred-to-afghans-at-least-formally.html.
 The Memorandum of Understanding (MoU) to transfer control of the Bagram detention facility from the US to Afghanistan was signed on March 9, 2012. It contained a six-month timetable for the handover, and numerous procedural clauses affecting the detainees; Memorandum of Understanding Between the Islamic Republic of Afghanistan and the United States of America on Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan, Afg.-U.S., Mar. 9, 2012, available at https://nylssites.wpengine.com/detainedbyus/wp-content/uploads/sites/11/2012/11/2012-03-09-Signed-MOU-on-Detentions-Transfer-2.pdf.
 Clark, supra note 2. For a more detailed look at the fate of non-Afghan detainees, see Byron Zinonos, When Are Afghan Detainees Captured After March 9, 2012 Being Transferred?, Detained by U.S. (Dec. 31, 2012 – Jan. 2, 2013), and Michael Villacres, Boumediene and Al Maqaleh: The Application of Habeas to Foreigners Outside the U.S., Detained by U.S. (Dec. 9 – 26, 2012).
 Clark, supra note 2.
 Rod Nordland & Charlie Savage, U.S. Again Delays Transfer of Bagram Prison to Afghan Forces, N.Y. Times (Mar. 9, 2013), http://www.nytimes.com/2013/03/10/world/asia/us-delays-transfer-of-bagram-prison-to-afghan-forces.html?ref=asia.
 Azam Ahmed & Habib Zahori, Afghanistan Frees Detainees in Show of Sovereignty Before Karzai Visits U.S., N.Y. Times (Jan. 4, 2013), http://www.nytimes.com/2013/01/05/world/asia/afghanistan-releases-detainees-ahead-of-trip-by-karzai-to-washington.html?ref=asia&_r=0.
 Id. For a more detailed look at Afghan detainees being released in 2013, see Mike Yang Zhang, Hundreds of Detainees Released in January, 2013, Before President Karzai’s Visit to the U.S., Detained by U.S. (forthcoming).
 Richard Sisk, Afghan Detainees Status Unclear After Prison Deal, Military (Mar. 25, 2013), http://www.military.com/daily-news/2013/03/25/afghan-detainees-status-unclear-after-prison-deal.html.
 Bernadine Racoma, Afghans Finally Handed Control of Parwan Detention Facility, Day News (Mar. 26, 2013), http://www.daynews.com/latest-news/2013/03/afghans-finally-handed-control-of-parwan-detention-facility-17299.
 Racoma, supra note 11.
 See id.
 Clark, supra note 12.