III. Background a) Overview In response to the 11 September, 2001 attacks, the United States launched a military offensive in Afghanistan to target al-Qaeda and remove the Taliban from power. As part of its military operations, the United States established several detention centers in Afghanistan, the largest of which was adjacent to Bagram Air Base, approximately 60 kilometers north of Kabul. Detention of suspected militants and terrorists at this facility, initially called the Bagram Theater Internment Facility (BTIF), began shortly after the offensive in Afghanistan. 11 In 2004, because of difficulties detaining additional individuals at Guantanamo Bay, BTIF became the primary detention site for suspected militants and terrorists—including Afghans and non-Afghans captured as part of the United States’ “global war on terror.” 12 By 2008 the facility held approximately 630 detainees, more than double the number of detainees at Guantanamo. 13 With space and resources under strain, and concerns regarding confinement conditions and treatment rising, BTIF was shut down and replaced by a permanent detention facility called the DFIP, in operation since September 2009. 14 As the conflict in Afghanistan intensified, the number of detainees held at the DFIP rose to over 3,000 by September 2012. 15 In addition to thousands of Afghan nationals, the U.S. military has also held TCNs at the DFIP. Currently, the United States holds over 60 TCNs, around 40 of whom are from Pakistan. 16 Unlike Afghan detainees, TCNs have never been eligible for outright release or prosecution by Afghan authorities. Their only options are transfer to their home country for release, rehabilitation or prosecution—or continued internment at the DFIP. 17 b) DFIP Handover and the Fate of TCNs For years, U.S. detention operations have been a major point of contention between the U.S. and Afghan governments. The DFIP, or “Bagram” as it has often been referred to popularly in Afghanistan, became a potent symbol of the U.S. and international military presence in Afghanistan. 11 Tim Golden, “U.S. prison grows beyond capacity in Afghanistan”, The New York Times, 7 January, 2008, http://www.nytimes.com/2008/01/07/world/asia/07iht-07bagram.9047054.html. 12 Transfers from BTIF to Guantanamo Bay ceased in 2004, largely due to the extension of habeas corpus rights to Guantanamo Bay detainees. 13 Tim Golden, “Foiling U.S. plan, prison expands in Afghanistan”, The New York Times, 7 January, 2008, http://www.nytimes.com/2008/01/07/world/asia/07bagram.html?ref=asia&pagewanted=all; “Bagram detention centre now twice the size of Guantanamo” The Independent, 8 January, 2008, http://www.independent.co.uk/news/world/asia/bagram-detention-centre-now-twice-the-size-ofguantanamo-768803.html. 14 Golden, “U.S. prison grows beyond capacity in Afghanistan”, 7 January, 2008. 15 “Issues linger”, The New York Times, September 10, 2012. 16 “US Army hands over Bagram Prison to Afghanistan”, BBC News, 25 March, 2013, http://www.bbc.co.uk/news/world-asia-21922047; Letter from the President – Regarding the War Powers Resolution, 14 June, 2013. 17 Department of Defense internal memorandums released through ACLU FOIA request, http://www.aclu.org/files/pdfs/natsec/bagram20100514/07bagrampolicy_30-92.pdf. 11