The Legal Limits of Terrorism in Turkey

By Ahnaleza Wilseck

The past two years have been especially turbulent in Turkey. In 2016, a violent coup attempt led Turkey’s government to declare a three-month state of emergency.[1] That limited state of emergency, however, was renewed seven times.[2] During the extended state of emergency, Turkey removed around 130,000 people from positions in the government.[3] There were also arrests reported of “more than 75,000 people for alleged links to Fethullah Gulen, a US-based cleric [blamed] for the failed coup attempt,”[4] which included a dozen United States citizens.[5] Though the United States citizens arrested include a NASA scientist and a chemistry professor, the arrestee who has received the most attention from United States media and President Trump is pastor Andrew Brunson.[6]

            Andrew Brunson is a 50-year-old United States pastor from North Carolina who has lived in Turkey for over two decades.[7] He was detained without charges and later formally arrested on December 9, 2016.[8] He was charged with espionage and terrorism based on his connections to supposed coup leader Fethullah Gulen.[9] A translator who worked with Mr. Brunson brought his case to the attention of the United States, and President Trump discussed his case with Turkish President Recep Tayyip Erdogan at a NATO summit in July.[10] “Mr. Trump thought he and his Turkish counterpart had agreed [to] a deal to release the US pastor, according to two US sources,” but officials in Turkey denied any such agreement.[11]

            There were later attempts at binational agreement including Turkey’s proposal that Mr. Brunson be released in exchange for “forgiveness of billions of dollars in US fines on a Turkish bank,” but the two countries still have not been able to secure a release deal.[12] President Trump tweeted on August 10 that “relations with Turkey are not good at this time;” he also doubled United States tariffs on Turkish steel and aluminum and claimed that his actions were due to the continued detention of Mr. Brunson.[13] Despite the international political consequences, Turkey’s 2nd Penal Court in İzmir rejected Mr. Brunson’s appeal on August 15.[14] Mr. Brunson’s next hearing is scheduled for October 12, 2018.[15] Mr. Brunson’s case must be considered in the context of Turkey’s transition from an extended state of emergency to new anti-terror law which, according to critics, give the government nearly unchecked power to impose public order.[16] In order to gain international respect and protect freedom for people in the country, Turkey must reconsider its new anti-terror law.

            Turkey’s newest anti-terror law was ratified by parliament on July 25, 2018, only six days after the government allowed the prolonged state of emergency to lapse.[17] This lapse was part of a campaign promise by Turkey’s current President Erdogan that he would end the state of emergency and implement new law to protect Turkey from terrorism.[18] The new law “allows authorities to control who can enter and exit an area” and whether a person may be detained due to their potential to threaten the safety of others and the governmental structure.[19] According to the original bill, this law’s purpose is to “effectively combat existing terrorist organizations in ordinary times” while continuing to “protect fundamental rights and freedoms enshrined in the constitution.”[20] The law will be in force for three years.[21]

            Critics of the new law believe that it simply sanctions the same government actions that were permitted under the state of emergency. A German political analyst stated that “[w]hile the lifting of the state of emergency has been a signal to international partners, such as the German government, who responded favorably, the new anti-terror law aims at maintaining the status quo inside the country.”[22] The main concern among critics is that the government of Tukey is simply creating a legal cover to continue the actions taken during the state of emergency.[23] According to another critic, namely the deputy chair of Turkey’s Republican People’s Party, the new law “is not a democratic step forward but just a cover-up of the current situation and [aimed] to show that the state of emergency ended in Turkey to the world.”[24]

            In order to counter these concerns and ensure that the new anti-terror law meets its stated purpose, Turkey must amend it. The most successful way to amend the law would likely require a careful consideration of the points addressed by human rights groups.[25] First, the Turkish government must limit when public officials may be removed from office. Under the new anti-terror law, government authorities will be permitted to arbitrarily remove judges and other public officials.[26] To guarantee that the law protects “fundamental rights and freedoms,”[27] it must include a process by which all removals would be regulated and only happen when those rights and freedoms are jeopardized by corrupt public officials.

            Second, the Turkish government must limit the amount of time individuals may be held by the government before being formally charged. The current law “allow[s] police to hold some suspects for up to 12 days without charge and repeatedly detain them in the same investigation.”[28] Like Andrew Brunson, this would leave individuals, and their potential home countries, unsure of what crime they had were being held for and of the extent to which they may be punished.

            Third, the Turkish government must provide adequate oversight of authorities’ actions under this new law. Under the new anti-terror law, a judge must review pretrial detention every 30 days, but the detainee or his lawyer are only to be present at that review every 90 days.[29] If Turkey ensured that detained persons and their attorneys could be part of the process, the country would add a double check against abuse of power by governmental authorities and the judges they permit to reside in court.

            By ending its two-year state of emergency, Turkey took a first step in ensuring the freedoms of people such as United States pastor Andrew Brunson. However, as long as Turkey’s law mirrors the protectionist policies at play during the previous state of emergency, Mr. Brunson and others are likely to have little to no notice of whether their actions will lead to complete denial of their personal freedoms.

[1] Turkey Mulls New Terror Laws as Emergency Ends, Arab News (July 19, 2018), http://www.arabnews.com/node/1341391/middle-east.

[2] Id.

[3] Id.

[4] Id.

[5] Carlotta Gall, Americans Jailed After Failed Coup in Turkey Are Hostages to Politics, The New York Times (Oct. 7, 2017), https://www.nytimes.com/2017/10/07/world/europe/turkey-american-detainees.html.

[6] Id.

[7] Saphora Smith, Turkey’s Erdogan Imposes Sanctions on Two U.S. Officials in Retaliation, NBC News (Aug. 4, 2018), https://www.nbcnews.com/news/us-news/turkey-s-erdogan-blasts-u-s-disrespect-countries-exchange-sanctions-n897646.

[8] Ezgi Erkoyun, Andrew Brunson: Why Has Turkey Detained Christian Pastor at Centre of Diplomatic Crisis with US?, Independent (Aug. 19, 2018), https://www.independent.co.uk/news/world/americas/andrew-brunson-turkey-lira-crisis-donald-trump-erdogan-coup-a8498061.html.

[9] Id.

[10] Id.

[11] Id.

[12] Caroline Kelly, White House Rejects Turkey’s Offer for Pastor’s Release: Report, CNN Politics (Aug. 20, 2018), https://www.cnn.com/2018/08/19/politics/white-house-rejects-turkey-offer-andrew-brunson/index.html.

[13] Donald J. Trump (@realDonaldTrump), Twitter (Aug. 10, 2018, 8:47 PM), https://twitter.com/realDonaldTrump/status/1027899286586109955; Jennifer Jacobs, U.S. Warns Turkey Over Detained Pastor as Market Meltdown Drags On, Bloomberg (Aug. 13, 2018), https://www.bloomberg.com/news/articles/2018-08-13/trump-adviser-bolton-met-with-turkey-s-ambassador-to-u-s.

[14] Banu Sen, Turkish Court Rejects US Pastor Brunson’s Appeal for Release, Hürriyet Daily News (Aug. 15, 2018), http://www.hurriyetdailynews.com/turkish-court-rejects-us-pastor-brunsons-appeal-for-release-135813.

[15] Id.

[16] Turkey Mulls New Terror Laws as Emergency Ends, supra note 1.

[17] Turkey Parliament Approves New Anti-Terror Law, AlJazeera (July 25, 2018), https://www.aljazeera.com/news/2018/07/turkey-parliament-approves-anti-terror-law-180725152308059.html.

[18] Turkey Mulls New Terror Laws as Emergency Ends, supra note 1.

[19] Turkey Parliament Approves New Anti-Terror Law, supra note 17.

[20] Turkey: Normalizing the State of Emergency, Human Rights Watch (July 20, 2018), https://www.hrw.org/news/2018/07/20/turkey-normalizing-state-emergency.

[21] Id.

[22] Cristina Maza, Turkey Approves Strict Anti-Terror Law Restricting Freedom of Movement, Newsweek (July 26, 2018), https://www.newsweek.com/turkey-approves-strict-anti-terror-law-restricting-freedom-movement-1044354.

[23] New Anti-Terrorism Law ‘Cover-Up’ for State of Emergency in Turkey – CHP Party, Sputnik (July 27, 2018), https://sputniknews.com/middleeast/201807271066749208-law-turkey-emergency-state/.

[24] Id.

[25] See e.g., Turkey: Normalizing the State of Emergency, supra note 20; Turkey: Normalizing the State of Emergency, Human Rights Monitor (July 20, 2018), https://www.humanrightsmonitor.org/turkey-normalizing-the-state-of-emergency/.

[26] Turkey: Normalizing the State of Emergency, supra note 20.

[27] Id.

[28] Id.

[29] Id.