Friday, August 05, 2016

Why Turkey's Demanding Extradition Of Fethullah Gülen Is Frivolous Grandstanding

Kevin Snapp is a former federal court staff attorney and have worked on extradition cases. (JD 1982, University of Chicago) Snapp worked for the US District Court in Chicago between 1989 and 2005, assisting judges with, among other things, extradition cases. The following is his expert opinion over the Fethullah Gulen extradition case being posted as guest article on WashingtonPoint.

Why Turkey's Demanding Extradition Of Fethullah Gülen Is Frivolous Grandstanding 

By Kevin Snapp

On Tuesday, August 2, Turkish President Recep Tayyip Erdoğan asserted in an interview on Italian television that Italy should be investigating the Mafia, not his son Bilal, and that the  investigation “could put Turkish-Italian relations in a difficult position.”  Italian Prime Minister Matteo Renzi promptly tweeted his riposte:  “In this country, judges follow the law and the Italian constitution, not the Turkish president. It's called 'the rule of law.'”

Although ordinarily I respect his cool-headedness and self-control, in hindsight I wish President Obama had been equally blunt in responding to President Erdoğan's demands that the US extradite Fethullah Gülen.  All of his demands, beginning in 2014 and vigorously renewed in the wake of the July 15 attempted coup, have been completely illegitimate and unfair.  Plainly stated, President Obama does not have the authority to order the deportation of Mr. Gülen, a lawful permanent resident, unless either his permanent residency is revoked for a lawful reason, such as being convicted of a serious crime, or a request for his extradition has been granted based on a showing that he has committed a serious crime in Turkey.  In either case, judicial and administrative procedures must be followed, Mr. Gülen's rights must be respected, and President Obama cannot determine the outcome.  

This is quite clear from the extradition treaty and American statutes.  It is surely known to the relevant staff in Turkey's Foreign Ministry, and given its importance, it is hard to believe it is not known to Foreign Minister Mevlüt Çavuşoğlu, if not to President Erdoğan himself.  They certainly know that more than two years after then-Prime Minister Erdoğan declared Mr. Gülen to be the leader of a terrorist organization, Turkey has never submitted a request for his extradition.  American spokespersons have said diplomatically that no “formal request” for extradition has been received; according to a July 26 story in the Washington Post, Turkey will formally request his extradition after it has finished investigating the defeated coup plotters.  What neither Turkish officials nor the media seem to understand is that extradition is governed by treaty, and a “formal” request for extradition is the only kind of request there is.  Blustering demands by heads of state don't count.  

From an American legal perspective, Turkey's brazenness is mind-boggling.  In the last two weeks the President, Prime Minister and Foreign Minister of Turkey have repeatedly and publicly castigated the US for “harboring” Gülen, demanded his immediate extradition, insinuated that Gülen's continued presence in the US suggests complicity in the attempted coup, and warning that Turkish-American relations will depend on Gülen's extradition -- notwithstanding the fact that President Obama would violate his oath of office if he promised to extradite Gülen, and Turkey had not even taken the necessary first step to begin the extradition process!

The 1979 extradition treaty between the US and Turkey requires an extradition request to be made in writing through diplomatic channels.  For Mr. Gülen, who has not yet been convicted, the request must be accompanied by an arrest warrant, a statement of the facts of the case, the text of applicable Turkish laws defining the offense, prescribing the punishment, and the applicable statute of limitations.  All documents must be accompanied by certified English translations.

Critically, the request must also include evidence that, under US law, would justify Mr. Gülen's arrest and committal for trial if he had committed the offense in the US.  An arrest in the US requires “probable cause,” a phrase from the US Constitution understood to mean sufficient evidence to lead a reasonable person to believe the accused person committed the crime charged.  

When an extradition request is received, the State Department reviews it to identify potential foreign policy problems, ensure that there is an extradition treaty in force, that the crime or crimes are extraditable offenses, and that supporting documents are properly certified.  The request is then passed to the Justice Department's Office of International Affairs, which determines whether the attached documents will establish probable cause.  If not, the treaty provides that further evidence and information should be requested.  When the request is considered complete, it is forwarded to the US Attorney (federal prosecutor) in the judicial district where the suspect lives.

The US Attorney files the request with the federal district court and obtains a warrant for the suspect's arrest.  A hearing is held before a federal district judge or magistrate judge to determine whether the evidence is sufficient to extradite the suspect.  The US Attorney represents the country requesting extradition, and the suspect may have an attorney present and challenge the evidence offered.  If the judge determines the suspect is extraditable, he or she certifies that finding and returns the request, the associated documents, and any evidence received at the hearing to the Secretary of State, who makes the final extradition decision.  

As a consequence of this procedure, the President, through his executive authority over the State and Justice Departments, can prevent the extradition of a suspect, but lacking power over the judicial branch, he cannot compel a judge to permit extradition.  The President can offer the assistance of government attorneys to help Turkey prepare its case, but a judge will decide. 

Turkey and the US have a very serious misunderstanding concerning the process.  Turkey's government apparently believes that high Turkish officials talking with high US officials should settle matters.  According to HDN, quoting “Turkish media,” Turkish Chief of Staff General Hulusi Akar told visiting US General Joseph Dunford, “I am the evidence!”  According to Akar, while he was held captive one of the coupists, Brig. Gen. Hakan Evrim, offered to put him in touch with Gülen.  That satisfied Akar that Gülen was behind the coup, and the word of Turkey's top military man should justify extraditing Gülen to Turkey. 

America doesn't work that way.  The conciliatory tone of American officials and spokespersons may have done both parties a disservice by allowing Turkish officials to think it does.  Turkey has to accept that Gülen's extradition will depend on a federal prosecutor putting Turkey's evidence before a low-level, but independent, federal judge in Pennsylvania, with no shortcuts and no guarantees.  Turkey must also accept that if the judge finds him extraditable, Gülen will still have the right to file a petition for habeas corpus, and appeal the denial if it is denied. If he does, although he will remain in custody, he will remain in the US until the decision is final, and yes, it could take more than a year.  Foreign Minister Çavuşoğlu is simply wrong in saying that the US can extradite Gülen quickly if it wants to.  That is arrogant ignorance from someone who should know better -- and Turkey is hardly known for its speedy processing of criminal cases -- or he is deliberately maligning the US for popular effect.  Neither should be acceptable.  

Turkey wants the US to understand the trauma it has just gone through, and that in a state of emergency ordinary limitations on governmental power may be disregarded.  But Turkey must understand that the US is not living in a state of emergency, and will not suspend its laws because Turks very badly want to punish the man they are convinced caused a part of its military to commit mutiny and murder.  

It's called the rule of law, Mr. Erdoğan.

Thursday, August 04, 2016

US says it's "watching closely.. the scope of (Turkish) government’s crackdown"

Office of the Spokesperson

For Immediate Release
For your reference, please find attached an indexed DPB, which will be available here.  
DPB #137
Briefer: Mark Toner, Deputy Spokesperson

QUESTION:  Turkish media reporting the Secretary will go to Turkey later this month.  Is that true?
MR TONER:  Nothing to announce in that regard.

US is assessing whether received extradition request
QUESTION:  Could you tell us exactly where the U.S. is in the issue of the extradition process of Mr. Gulen?  As you may have seen, a Turkish court has issued what they call an international warrant against Mr. Gulen.  Do you see this as the former – formal, sorry, extradition request?
MR TONER:  So my understanding of where we are with the extradition request is that we’ve been – or that the Turkish authorities have delivered – I think made several deliveries of documents to us and that we’re in the process of going through those documents.  As you know, we don’t – and we’ve said this previously – we don’t speak publicly about the details of the extradition request process.  It’s not something that is necessarily an overnight process.  It takes time to evaluate the evidence that’s presented.
I think at this point – my understanding at least, having talked to my colleagues at the Department of Justice, is that they’re still trying to make a determination of whether the documents that were delivered to them do constitute what they believe is a formal extradition request.  And I realize there’s some – the rhetoric coming from Turkey is that they have made a formal request.  I think and I believe, in fact, that we’re still trying to assess that.

US: First extradition request was not qualified, looking into second
QUESTION:  So your position has not changed in two weeks?  You still don’t know if or you don’t say – you cannot say if it’s a formal --
MR TONER:  Right.  We’ve received – as I said, we’ve received documents.  We’re studying those documents.  And we talked about an initial tranche that we had received from them that did not, we believe, constitute a formal extradition request.  But we subsequently received more documents.  We’re looking through them, and I think they’re trying to figure out whether this is the full request.  And I don’t think they have reached that determination yet.

US: Unsure if any coup evidence tying to Gulen presented
QUESTION:  The second tranche of documents, does that involve evidence related to the coup itself?  Because the first one I think was based on investigations from before the coup.
MR TONER:  You are correct, I think, on the first thing.  In terms of the second tranche, I don’t know.  I think they’re still trying to assess whether that’s the case.  I don’t have a specific readout on what – whether those documents pertained specifically to Mr. Gulen’s involvement in or alleged --

QUESTION:  Well, I mean, is there any – have they supplied any evidence directly related to the coup?
MR TONER:  Yeah, I don’t know, honestly.

US: Not sure if we necessary share our assessment re Gulen's involvement
QUESTION:  After three weeks, do you have more of a understanding how the coup happened in Turkey, whether your own assessment, whether the documents from Turkey?  But your own assessment; do you think this Gulen movement or Fethullah Gulen have anything to do with the coup?
MR TONER:  I mean, it’s a fair question.  I’m not sure that we would necessarily share our assessment.  I think that – well, a couple things.  One is, as we’ve done from the very beginning, we condemn the failed coup in Turkey, and we also have rejected and continue to reject any attempt to overthrow the democratically elected government in Turkey.  We support that government wholeheartedly as a strong ally and partner in the region.
In terms of assessing who was behind the coup, I know the – we all know that Turkish authorities are looking at that very closely and investigating it.  That’s a matter for them to reach a conclusion about.  I don’t have any specific conclusions to draw at this point.

US: Emphasized the importance of upholding the democratic institutions
QUESTION:  While Turkish authorities are investigating this, shut down – Turkish authorities shut down hundreds of media organizations; about 66,000 people are sacked and about 20,000 people are arrested.  These numbers can be a little different. And President Erdogan today said this is only the tip of the iceberg; they just starting to – do you – how are you assessing so far Turkish Government’s action, whether you see them excessive actions, as was questioned here?
MR TONER:   So – and we’ve conveyed this publicly as well as privately in our conversations with our Turkish counterparts.  Indeed, as you said, the President spoke with President Erdogan shortly after the coup attempt, and Secretary Kerry has spoken with his counterpart, Foreign Minister Cavusoglu, several times as well.  And we made very clear we understand the need for them to go after the alleged perpetrators of this coup; but at the same time, we’ve emphasized the importance of upholding the democratic institutions and the rule of law that exists in Turkey and the importance of that to the Turkish people and to the integrity of Turkey’s democracy.

QUESTION:  But you see these moves as signs that a major purge is underway, maybe a major purge that cuts across all institutions and aspects of Turkish society?
MR TONER:  I mean, I think what I’ll – I’ll leave it at this.  I would say we’re watching developments there very closely, and we’re making very clear that the Turkish Government – again, while we understand the basis for its actions – that it also bears in mind that it must hold true to its democratic standards.

US involvement claims just absurd
QUESTION:  No, I just wanted to say that all – almost everybody in Turkey agrees or thinks that the United States had something to do with the coup.
MR TONER:  Well, and I – when he asked me about our conclusions, I didn’t want to offer that up there, but that’s completely absurd.  And I’m – we’re conscious of the fact that after an event like this there’s lots of conspiracy theories, lots of allegations tossed about, but the suggestion that the United States was in any way involved in the attempted overthrow of the government – the democratically elected government of a NATO ally, a major NATO ally, is just absurd.

US: Ask Henri Barkey if he is involved
QUESTION:  Today, New York Times ran an editorial and it was then – there is a question that it’s asking what to do with a vital ally that is veering far from democratic norms.  This is the one question.  And in same editorial, also it talks about the former State Department official, Henri Barkey.  And it says that evidence against Barkey – when the coup erupted in Turkey, he was on the Istanbul island holding a workshop for academics and made some phone calls.
My question is whether former official Henri Barkey has anything to do with the coup as far as --
MR TONER:  I’d have to ask you to contact him directly.  He’s a former official.  I don't know that he plays any official role.  I have no idea what his involvement may or may not have been.  I just don’t have any details on that.

US says it's "watching closely.. the scope of (Turkish) government’s crackdown"
QUESTION:  The first question, the question about the vital ally that’s veering far from democratic norms – what to do with such ally?
MR TONER:  Well, again, I think that there has been concern expressed by many organizations, by many leaders around the world about the scope of the Turkish Government’s efforts to go after the alleged perpetrators of this coup attempt.  We’re obviously watching it closely.  We’ve been consulting closely with our Turkish counterparts at every level, and indeed, General Dunford was just there this past week and met with his counterparts.
We want to continue, obviously, to cooperate closely with Turkey as a NATO ally and as a major counter-Daesh coalition partner.  We don’t want to see a disruption to those efforts, because frankly, ISIL/Daesh is as much a threat to Turkey as it is to Europe, as it is to the United States, as it is to the region.  So we all need to focus on the immediate goal of going after and maintaining the pressure on Daesh.  We’ve made tremendous progress, but we want to keep that pressure on.
But as to the extent or the scope of the government’s crackdown, if you will, after the coup, we’re watching it closely.  We’ve expressed our thoughts about it to our Turkish counterparts and we’re going to maintain that dialogue with them going forward.

Tuesday, August 02, 2016

US: We urged and encouraged our friend Turkey to observe the rule of law

DPB #135
Briefer: John Kirby, Spokesperson

Observe to rule of law
QUESTION: Turkey President Erdogan is now saying that Turkey’s friends are standing with terrorists and coup plotters. His government has now, it says, submitted a second document to the United States explaining why Gulen needs to be immediately arrested. And there’s a delegation of Turkish lawmakers in town visiting Justice, DHS, and over here. I’m wondering if you’ve got anything to respond to these comments, especially about that – if – essentially, they’re saying if the United States doesn’t hand over Gulen, then the United States is supporting terrorists and coup plotters and it could endanger the strategic alliance.
MR KIRBY: Well, look, I think, again, we very strongly condemn the failed coup. We’ve strongly rejected any attempt to overthrow democracy in Turkey. And we support, as we’ve said from the very beginning, the democratically elected government there. Turkey remains a NATO ally. They remain a key partner in the coalition to defeat Daesh. I think you saw that General Dunford, the Joint Chiefs chairman, was just recently there and had good, constructive meetings and came out of those meetings and publicly commented about the positive tone of those discussions. Incirlik remains open to U.S. aircraft to conduct strikes against Daesh in Syria and we look for that cooperation to continue.
We’re mindful that this was a serious coup attempt and that Turkey has put in place measures to investigate and to try to bring those responsible to account. All along, from the very beginning,
we’ve also urged and encouraged our friend Turkey, as they do this, to observe rule of law and to preserve confidence in their own democratic institutions. And we’re going to stay committed to that partnership going forward.
So I’ve seen lots of comments out there, and again, just like before, I’m not going to respond to every bit of rhetoric. But again, I can assure you that Turkey has no better friend than the United States. We want to see Turkey emerge from this strong and democratic and surefooted.

Erdogan slamming US
QUESTION: But you mentioned General Dunford’s visit and his comments and his message to the Turkish officials that he spoke with. you talked about how he spoke of a positive tone of these discussions, and yet less than a day afterwards, the president of the country not the joint not the Turkish joint chiefs chairman, not the Turkish prime minister, but the president of the country, the commander-in-chief makes these comments. Does that not dishearten you at all? I mean, is this message – this message that you guys are trying to send doesn’t seem to be getting through. Isn’t that a problem?
MR KIRBY: I can’t speak for President Erdogan or his comments. I can only speak for us and - -
QUESTION: I know. Aren’t you – and my so my question is: What are you not does this not dishearten you? Does it not make you annoy you or bother you that your good friend, ally, democratically elected President Erdogan that your send your Joint Chiefs of chairman of your Joint Chiefs of Staff over there to make nice with his people and to explain your position, and yet the next day, he comes out and trashes you again?
MR KIRBY: Well, look --
QUESTION: That’s not a problem?
MR KIRBY: Matt, what matters is the partnership that we have with Turkey going forward, and certainly in the practical, tangible ways that partnership can be realized such as going after Daesh in Syria and the support that we continue to get from Turkey in that regard.
President Erdogan, as the sovereign head of state of the Government of Turkey, is certainly free to express his views and his frustrations as he sees fit. We respect his right to do that. We’ve also been open and honest that even before the coup, we didn’t agree with Turkey on everything. So we’re going to stay committed to having the dialogue going forward, and that dialogue is happening. I mean, our ambassador, John Bass, is still working hard every day in Ankara to reach out to his counterparts and to talk about these developments as they go forward.

2nd Documents for Extradition
QUESTION: Do you know anything about the second document that was mentioned that the Turks have talked --
MR KIRBY: No, I have not heard about a second document. And again, I’d refer you to Justice Department on all questions about extradition.

QUESTION: But President Erdogan is going to Moscow in one week. Do you read anything in this visit?
MR KIRBY: You’d have to talk to President Erdogan about his travel habits and his plans. I don’t know. I mean, again, sovereign heads of state are – have every right and responsibility to conduct bilateral relations as they see fit.

QUESTION: President Erdogan is quoted, at least in our story, as saying, “I’m calling on the United States: what kind of strategic partners are we that you can still host someone whose extradition I have asked for?” Do you regard the – what you are aware of as so far having been transmitted by the Turks – I’m not asking about the second batch, if there was a second document. Do you regard that as an extradition request?
MR KIRBY: As I understand it – and now I’m getting into an area really that it’s not for the State Department to comment on. So I’m going to obviously refer you to Justice. But as I understand it, they are in receipt of documents. I do not know how many; I do not know in what number of batches they’ve come in, nor do I know the content. And as I understand it, they are still analyzing those documents, and I don’t believe that a judgment is made one way or the other yet in terms of whether it’s formal extradition. I do want to make two points -- 

QUESTION: Formal extradition request. 
MR KIRBY: Right.
MR KIRBY: Yes. A couple of points. It can be, as I said before, a lengthy legal process, the task of extradition. And as you know, we don’t typically make it a habit of speaking to specific cases. Now, this one was obviously unique, given the circumstances. It was unavoidable that we would have to address it, given the very public calls for it by the Government of Turkey. So we have had to do that. But I don’t want to set an expectation up that we’re going to be able to give you a blow-by-blow of the process as it works its way through.

QUESTION: Well, except that they keep yelling about it and talking about it in public, and if that forced you to talk about it the first time, I think it – you’re going to have to – you’re going to keep getting the question, whether you’re prepared to answer it or not.
MR KIRBY: No, I’m -- 

QUESTION: Anyone else has --
MR KIRBY: -- fully prepared – look, I know I’m going to get – continue to get the question. But again, it’s a process, and we’re going to try to preserve the sanctity of it. And while I understand that it’s going to keep coming up here, I just want to set the expectations as low as possible that I’m going to be able to provide a very detailed rundown every single day of the progress of it.
QUESTION: You succeeded.
QUESTION: Two very quick questions.
MR KIRBY: Yeah, you’re going to have to be real quick, because I got to get going.

QUESTION: Very quick. Today also President Erdogan said there has not been a single Western officials visited me after General Dunford. I was wondering if you have any visitors going to Turkey from U.S. Government any time soon.
MR KIRBY: I don’t have any other travel to speak to, other than the chairman’s trip --

QUESTION: And second very quick question is that it has almost been three weeks since the coup attempt, and you said that you want Turkey to observe the rule of law. Do you think so far Turkey’s action not --
MR KIRBY: I’ve also said I’m not going to characterize every action that they take. I’m not going to start doing that today. We our ambassador, John Bass, is working very closely with his counterparts in Ankara, talking through what the developments are and the decisions that the government is making. And I’m going to leave it there for today.