When the ACLU sued the government two years ago for greater disclosure of Bagram prisoner names, citizenship, place of capture, and length of detention, DOD fought the suit and replied that even the criteria for detaining Afghans an "enduring security threat" is a state secret.
"We're not going to win this war by making enemies of the local population, and unfortunately sweeping people up and putting them in prison without a fair hearing makes enemies of the local population," Eviatar said. "And the problem with holding thousands of people, a large number of whom probably do not pose a danger, is that you create tremendous resentment among not only those people but their families, their extended families, their villages, the families they left behind who now don't have a bread winner."
The procedures for handling detainees at Guantanamo have evolved over a decade after extensive Supreme Court and Congressional review that has yet to be applied to Bagram.
The first, revamped "military commission" of an accused Al Qaeda terrorist began at Guantanamo this past week with the arraignment of Abd al-Rahim al-Nashiri, a Saudi accused of leading the October 2000 raft bomb attack on the U.S.S. Cole in Yemen, which killed 17 American sailors.
Al-Nashiri faces the death penalty when his commission resumes next November, with commissions for five Guantanamo prisoners accused of direct roles in the September 11th conspiracy to follow. Al-Nashiri's arraignment was open to the news media.
"The due process we are giving in Afghanistan is consistent with law of war due process," said U.S. Senator Lindsey Graham, a South Carolina Republican who sits on the Armed Services Committee.
Graham said in an interview he is satisfied with procedures that require every Bagram detainee to appear before a three officer panel every six months. An Air Force JAG and active reservist, Graham has sat on review boards during visits to Bagram.
"We're fighting people who are trying to topple the Afghan government and kill American forces. They're not common criminals; they're treated as an insurgent under the law of war," Graham said.
"The additional surge forces are taking the fight to the enemy, so captures are way up," Graham continued. "The more the Afghan people think we're winning and trust us, the more people we're going to capture. So the good news for our troops is that we got more people off the battlefield that were shooting at them last year."
A large number of detainees remain incarcerated simply because the war is not over, Graham said, adding that the goal is to transfer prisoners to Afghan control, eventually.
"Here's the dilemma for U.S. forces: you capture these people in the battlefield in a firefight. The local community tells you, 'this is the bad guy,' Graham said. "We're not going to turn him back over to an Afghan legal system that is full of corruption and doesn't have capacity."
Graham supports the Obama administration's plans to expand Bagram prison, which the military now prefers to call the prison the Detention Facility in Parwan (DFIP), referring to the Afghan province where it resides.
DOD is now reviewing bids from contractors to expand the facility to house up to 5,500 detainees. The project is expected to cost another $25 to $100 million when it is completed by the end of 2012.
Mohammed said he does not doubt there are true insurgents held at Bagram/DFIP, but he believes many men are unjustly held. His once-positive view of the U.S. has changed.
"When I think of spending more than a year without any crime, that not only affected me personally, it affected my family, it affected my life, it affected my work," Mohammed said. "That makes us angry."Editor's note 11/15/11: An earlier version of this post misstated the title of Brigadier General Mark Martins as "the commanding officer at Bagram until this fall." It has been corrected to read, "who oversaw detainee affairs in Afghanistan as the first commander of Joint Task force 435."