Thoughts on Turkey's request to extradite Gulen
The purge in Turkey is in full swing as tens of thousands people are being prosecuted for their real or imagined involvement with the coup attempt:
EurActiv -- Erdogan targets more than 50,000 in purge after failed coup (Jul 20, 2016)
An estimated 50,000 soldiers, police, judges, civil servants and teachers have been suspended or detained since the coup attempt, stirring tensions across the country of 80 million which borders Syria’s chaos, and is a Western ally against Islamic State.
It's a bit difficult to reconcile the massive scope of the purge with comments by Erdogan immediately after the coup that the coup was the responsibility of a "minority group within the armed forces":
“A minority group within the armed forces targeted the integrity of our country,” Erdogan told reporters at a news conference broadcast live on state television. “This latest action is an action of treason, and they will have to pay heavily for that. This is a government that has been elected by the people.”
Accepting the explanation that the coup attempt was plotted by a small minority within the military, the prosecution of 6,000 people on very short notice (by now this number seems to have grown to over 9,000) is surprising:
Die Welt -- Die EU-Staaten haben einen üblen Verdacht (Jul 18, 2016)
EU-Erweiterungskommissar Johannes Hahn geht nicht so weit, der türkischen Regierung zu unterstellen, dass sie den Putsch arrangiert habe. Doch die Listen für die Säuberungswelle, bei der 6000 Türken verhaftet wurden, dürften schon vor dem versuchten Militärcoup geschrieben worden sein, sagt er. "Dass Listen direkt nach den Vorkommnissen vorhanden waren, deutet darauf hin, dass sie vorbereitet waren und zu einem bestimmtem Moment genutzt werden sollten", sagte Hahn am Montag vor einem Treffen der EU-Außenminister. Er war mit der Beobachtung nicht allein.
The answer seems to be that the authorities are prosecuting everyone connected with the Gulen movement. The list of names was already prepared -- after all, Erdogan and Gulen used to be friends.
Nothing so sad as a friendship gone bad. Blaming Gulen for the coup attempt, Erdogan demanded his extradition by the US. When the US responded that they would look into it when provided with evidence of Gulen's involvement, Justice Minister Bekir Bozdag responded that there is "no need to prove" -- which honestly is a little weird for a minister of justice:
Reuters -- Erdogan targets more than 50,000 in purge after failed Turkish coup (Jul 19, 2016)
"We have more than enough evidence, more than you could ask for, on Gulen," Justice Minister Bekir Bozdag told reporters outside parliament. "There is no need to prove the coup attempt, all evidence shows that the coup attempt was organised on his will and orders."
Prime Minister Yildirim seemed outright hurt by the US' preoccupation with this silly notion of 'evidence':
FT -- Turkey demands extradition of US-based cleric Fethullah Gulen (Jul 19, 2016)
The US stance — that any request for extradition should go through a judicial review — has angered Turkish politicians, including Prime Minister Binali Yildirim, who told reporters on Monday that “we will be a little bit disappointed if our friends say ‘show us the evidence’ while there are members of this organisation which is trying to destroy a state and a person who instructs it”.
“Even questioning our friendship may be brought to the agenda here,” he added.
Amazingly Yildirim does have a point. Bush II appealed to a similar logic when he proclaimed "You are either with us or against us". This shows how the US response to 9/11 still poisons the well today:
CS Monitor -- Why Erdoğan, despite bluster, may actually not want Gulen extradition (Jul 19, 2016)
Turkish Prime Minister Binali Yildirim said no one asked the US to prove that Osama bin Laden was behind the 9/11 terrorist attacks. Addressing the US on Tuesday, he said, “Do not protect this traitor any more.”
Extradition proceedings
So what is the process that might lead to Gulen's extradition? Here's an except of the extradition treaty between US and Turkey:
ARTICLE 3 CONDITIONS OF REFUSAL (1) Extradition shall not be granted: (a) If the offense for which extradition is requested is regarded by the Requested Party to be of a political character or an offense connected with such an offense; or if the Requested Party concludes that the request for extradition has, in fact, been made to prosecute or punish the person sought for an offense of a political character or on account of his political opinions
[...]
ARTICLE 6 CHANNELS AND LANGUAGE OF COMMUNICATION (1) The request for extradition shall be made in writing through diplomatic channels
By Article 6(1) the request must come through "diplomatic channels". The DOJ Criminal Resource Manual outlines the process in more detail:
US Department of Justice -- Criminal Resource Manual
612: Role of the Department of State in Foreign Extradition Requests
[...] All extradition treaties currently in force require foreign requests for extradition to be submitted through diplomatic channels, usually from the country's embassy in Washington to the Department of State [...]
The Department of State reviews foreign extradition demands to identify any potential foreign policy problems and to ensure that there is a treaty in force between the United States and the country making the request, that the crime or crimes are extraditable offenses, and that the supporting documents are properly certified in accordance with 18 U.S.C. § 3190. If the request is in proper order, an attorney in the State Department's Office of the Legal Adviser prepares a certificate attesting to the existence of the treaty, etc., and forwards it with the original request to the Office of International Affairs [OIA, Department of Justice].
So what happens when the request is forwarded by the State Department to the Justice Department?
US Department of Justice -- U.S. Attorneys' Manual
A hearing under 18 U.S.C. § 3184 is scheduled to determine whether the fugitive is extraditable. If the court finds the fugitive to be extraditable, it enters an order of extraditability and certifies the record to the Secretary of State, who decides whether to surrender the fugitive to the requesting government. In some cases a fugitive may waive the hearing process.
OIA notifies the foreign government and arranges for the transfer of the fugitive to the agents appointed by the requesting country to receive him or her. Although the order following the extradition hearing is not appealable (by either the fugitive or the government), the fugitive may petition for a writ of habeas corpus as soon as the order is issued. The district court's decision on the writ is subject to appeal, and the extradition may be stayed if the court so orders.
The court's judgment regarding extraditability yields an "order of extraditability". This order then goes back to the Secretary of State with the State Department:
US Department of Justice -- Criminal Resource Manual
620: Certification to the Secretary of State
[...]
The final decision to surrender the fugitive is made by the Secretary of State. Neither the extradition judge's determination of extraditability nor the Secretary's decision is appealable.
All told it seems that the US State Department has large discretion in extradition cases. First because the State Department has discretion not to forward an extradition request to the Justice Department for reasons of "foreign policy" and second because the Secretary of State has discretion in surrendering the person after having been judgded extraditable by the court.
As far as the legal process is concerned, the court has considerable discretion in qualifying the "political character" of Article 3(1)(a).
In other words, the extradition process is bookended on both sides by political considerations and even the nominally legal questions at the center of the request cannot be considered without speaking to the politics of the matter. Therefore John Kerry's claim that the Justice Department has jurisdiction over the issue seems an exercise in diplomatic deflection: the decision whether or not to extradite Gulen is inherently political.
Extraditing Gulen will strengthen the US-Turkey relationship at a time when both the US and the EU need Turkey. Moreover if it is true that Gulen conceived the coup attempt, then it must be acknowledged that this was a deeply irresponsible and dangerous act for which Gulen must face justice -- if for no other reason than that the region cannot afford further destabilization.
But extradition will also be seen to justify the draconian purges taking place at the moment and the increasingly repressive, authoritarian leadership style of President Erdogan.
In the long run, is it in the best interests of the Turkish nation to have a Turkey that is all AKP, all Erdogan, all the time?
The most meaningful facts that might emerge from these proceedings should come from the judicial vetting of the evidence against Gulen in a US court -- politicized as they may be, they stand at least at some remove from the power politics of Ankara.
Fehtullah Gulen
Gulen is a controversial Islamic cleric who has in recent years styled himself as the progressive, liberal face of Islam.
A lot of people feel this transformation into "Turkish Yoda" masks a darker, more insidious force:
In one of his sermons, he called upon his students to establish a new Muslim age. He advised his supporters to undermine the Turkish state and act conspiratorially until the time was ripe to assume power. "You must move in the arteries of the system without anyone noticing your existence until you reach all the power centers … until the conditions are ripe, they (the followers) must continue like this. If they do something prematurely, the world will crush our heads, and Muslims will suffer everywhere. (…) You must wait until such time as you have gotten all the state power (…) Until that time, any step taken would be too early -- like breaking an egg without waiting the full 40 days for it to hatch. It would be like killing the chick inside."
City Journal -- Who Is Fethullah Gülen? (Autumn 2012)
In 2008, the Dutch government investigated the movement’s activities in the Netherlands. Ella Vogelaar, the country’s minister for housing, communities, and integration, warned that “in general terms, when an organization calls for turning away from society, this is at odds with the objectives of integration.” It was, she noted, incumbent upon the government to “keep sharp watch over people and organizations that systematically incite anti-integrative behavior, for this can also be a breeding ground for radicalization.” Testifying about one of the schools in the investigation, a former member of the movement called it a “sect with a groupthink outside of which these students cannot [reason]”
Erdogan pursued extradition of Gulen before in 2014:
Reuters -- Turkey's Erdogan to seek Gulen extradition in Obama talks: media (Sep 5, 2014)
"Deport him or give him to us," the pro-government Yeni Safak and other newspapers quoted Erdogan as saying of Gulen. "Let him come and live in his own country if he says he hasn't committed a crime." [...]