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Getting Past Gülen: Comments on Nicholas Danforth’s “The Extradition Distraction”

By Kevin Snapp*, a retired lawyer

Nicholas Danforth, Senior Policy Analyst at the Bipartisan Policy Center, recently commented on the difficulty of extraditing Turkish cleric Fethullah Gülen and Turkish-American relations. “The Extradition Distraction” and curated version is here: Gulen extradition off table – analyst. 

I agree with much of what he wrote, but his perspective strikes me as less than helpful.  His apparent belief that not only Gülenist officers but Gülen himself was criminally involved in the July 15, 2016 coup attempt– a belief that may be justified — seems to have outweighed his concern for the role of the rule of law in U.S.-Turkey relations. Danforth’s thesis is that

In the immediate aftermath of Turkey’s July 15 coup attempt, the debate in Washington over Fetullah Gulen’s role in it became inextricably linked with the debate over Turkey’s demand for his extradition. In different ways, this ongoing conflation serves the rhetorical interests of both sides, but in retrospect it would have been better for U.S.-Turkish relations if the two conversations had remained separate.

This seems unexceptionable.  (Living in Chicago I can’t confirm the “debate in Washington” but I’ll take his word for it.)  But if conflation was “inextricable,” what is the point in arguing the two should have remained separate?  Or arguing, as Danforth does at the end of the article, that they should now be separated?

The inability of Turkey to provide — and the appropriate refusal of the United States to accept anything less than — persuasive evidence of Gulen’s personal legal guilt should not preclude the recognition of the dangerous role he and his movement have played in attempting to shape Turkey’s politics by non-democratic means. The challenge for Washington is to find a way to acknowledge and respond to this reality that can help restore U.S. credibility in Turkey without rewarding Erdogan’s aggressive post-coup measures.

These questions became “inextricably linked” only because the Obama administration allowed itself to be seduced by Turkey into fudging America’s commitment to the rule of law, an obfuscation that cannot be maintained without damage to what remains of the ideals and integrity of the U.S.

There are two unavoidable facts.  First, Fethullah Gülen is a legal permanent resident of the United States. With some exceptions, such as voting and holding political office, he has the rights of a citizen.  He cannot be extradited on the order of any U.S. official, including the President, without a court order signed by a federal judge determining that Turkey’s application for his extradition satisfies the requirements of the U.S.-Turkey extradition treaty and U.S. law.

Second, federal judges are immune from political influence.  If the President or Attorney General directed a federal judge how he or she should rule, it would be a major scandal.  The U.S. Constitution provides that federal judges are appointed for life, their salaries cannot be reduced, and they can only be removed by impeachment for misconduct.  Subordinate magistrate judges, to whom extradition cases are routinely delegated, are chosen by the federal district judges in each federal judicial district, serve 8-year terms, and can only be removed for misconduct.  Consequently, the President simply cannot order Gülen (or anyone else) extradited, although Turkey’s demands falsely imply that he can.

This “misunderstanding,” and Turkey’s attacks on the U.S. for “harboring” Gülen, predate the July 15, 2016 attempted coup. Turkey has been demanding Gülen’s extradition since 2014, long before the attempted coup and long before filing the formal extradition request required by the extradition treaty.  See, “Does Erdogan really want Gulen in Turkey?”

In making these demands, the Turkish government has displayed contemptuous disregard for American law that cannot be ascribed to ignorance.  It would be absurd to suppose that no one in Turkey’s Foreign Ministry understands U.S. extradition law, and President Obama even personally informed President Erdoğan that Gülen’s extradition was not within his discretion.  Baskan Oran, “Notes from Erdogan-Obama meeting revealed.”  (“In the meeting with the President, Erdogan asked for extradition of F. Gulen, who has been living in Pennsylvania, but since the US not been supplied with any evidence or a file, the President said the matter will have to dealt with through routine bureaucratic procedures.”)  

In simple terms, between mid-2014 and October 1, 2017, (when, according to the Turkish Justice Ministry, Turkey’s extradition application was complete, President Erdoğan, his ministers and syncophantic media repeatedly declared, in effect, that President Obama can and should ignore U.S. law and turn over Gülen at Turkey’s request.  The clear implication is that America is a de facto dictatorship in which the President can order a lawful resident deprived of his freedom.

The failure of President Obama to denounce this slander publicly may be understandable, given the need for Turkish cooperation in the war against ISIS, but it was nevertheless a grave error.  It made “inextricable” the coupling of a matter within the jurisdiction of American courts with a matter of foreign policy within the discretion of the President.  By implication, it legitimized the “hostage diplomacy” Turkey is now employing against the U.S., Germany and others, and it has corrupted the  discourse in the international media concerning Gülen’s potential extradition.

I am not an expert with respect to Turkey or international relations, but I have more than twenty years’ experience reading legal materials.  Apparently neither journalists nor experts bothered to read the Turkey-U.S. extradition treaty, because they consistently and misleadingly stated that the U.S. had “refused” to extradite Gülen when Turkey had not even begun the extradition process.  The law is clear that the President, via the State Department, has discretion to deny extradition, but cannot grant extradition until a formal extradition request has been received and approved by a federal court. 

[On a different point, Mr. Danforth is rightly dubious concerning the contents of the supposed 84 boxes of materials Turkey claims to have submitted in support of Gülen’s extradition, but he is apparently unaware that the treaty requires that exhibits be accompanied by certified English translations.  Either Turkey dumped 84 boxes of untranslated documents on the U.S. State Department, or, assuming roughly half of the 84 boxes contained translations of materials in the other half, Turkey’s Foreign Ministry translated over 100,000 pages.  Neither is credible.]

To return to Mr. Danforth’s points, the conflation was not inextricable.  President Obama should have declared in 2014 that American law gives Fethullah Gülen certain rights, and until Turkey complied with the requirements of the Turkey-U.S. extradition treaty he could not be extradited.  Nor should Obama have indulged the Turkish government in arranging high-level meetings to discuss the matter, when in reality there was nothing to discuss until American courts had declared Gülen extraditable.

There was nothing wrong in President Obama’s directing Justice Department staff to assist the Turkish Justice Ministry in preparing its extradition request, and Turkey could expect such cooperation.  But involving Vice-President Biden and Attorney General Loretta Lynch not only lent credibility to an extradition request not yet filed whose allegations and supporting evidence had not yet been disclosed.  It also lent credibility to the Turkish government’s ongoing public attacks on Gülen as the leader of a “terrorist organization” based on allegations never proven in a Turkish court.  Turkey did not receive these expressions of American high-level concern as signs of good faith, but exploited them as signs of weakness, making it appear that the U.S. was less dedicated to the rule of law than it claimed to be.

Mr. Danforth states that the apparent lack of sufficient evidence for extradition “enables Washington to perpetually put off any real discussion of Gülen’s guilt.” True, but until a federal judge has ruled that Gülen is extraditable, which transfers the case to the discretion of the President and State Department, the U.S. governlment’s discussion of a U.S. legal resident’s supposed guilt would be improper in the first place.  Imagine Mr. Danforth were accused by the Turkish government of being a covert Gülenist complicit in the attempted coup — something far from impossible.  What sort of “real discussion” of his guilt by “Washington” could there be?

Perhaps I misunderstood, but I found Mr. Danforth’s next paragraph bizarre:

Moving past the extradition debate would allow for a more candid, focused and fruitful discussion over what, if anything, the United States could do to address Gulen’s role in the coup absent meaningful cooperation from the Turkish government.

Mr. Danforth is convinced of Gülen’s guilt, and I assume he has good reasons. But he seems also to be convinced that Gulen can be punished in some way by the U.S. without due process of law– what else could “address Gulen’s role in the coup” mean?

The U.S. has repeatedly, if timidly, reproved Turkey for disregarding due process of law, for destroying people’s lives by official denunciations before trial, often before they have been legally charged. Regardless of his guilt or innocence, Fethullah Gülen was and is under the protection of U.S. law, and the U.S. should not have allowed the appearance of complicity with Turkish top-down “justice.”

Mr. Danforth suggests that the U.S. should now acknowledge Gülen’s probable guilt in connection with the coup attempt, despite the lack of evidence establishing probable cause to believe that claim.  That might be a good move from the standpoint of U.S.-Turkey relations, although I doubt it, but it would amount to derogation of American law, violation of American norms, and pandering to an increasingly unfriendly foreign government.  At least until the Trump administration, it would be unimaginable for the President or Justice Department to declare that someone is probably guilty of a crime, while acknowledging there isn’t enough evidence to charge him.  Mr. Danforth may have meant that American diplomats should state this as a confidential position, but the Turkish government, which has a clear interest in using this misapprehension of Gülen’s rights and the President’s powers against the U.S., would probably make it public.  The good faith of the Turkish government should not be presumed.

Pragmatically, if the U.S. were to say, in effect, “we believe Gülen is guilty, but you haven’t given us sufficient evidence to extradite him,” can Turkey be expected to respond, “we believe Pastor Brunson is guilty of terrorist activity, but we will let him go because after holding him for a year we can’t prove it”?  I doubt Turkey would impugn its own justice system, and the analogy between Gülen and Brunson, proposed by President Erdoğan, impugns America’s.  Assume for the sake of argument that both Gülen and Brunson are probably guilty, but in both cases sufficient evidence of guilt is lacking.  Is preventing the extradition, trial and punishment of Gülen for lack of evidence equivalent to punishing Brunson with indefinite detention for lack of evidence?  Not unless we ignore the fundamental principle of presumption of innocence.

I agree the U.S. and Turkey need to put the impasse over Gülen’s extradition behind them.  But the impasse was caused by Turkey’s contempt for American law and the rule of law generally, and America’s failure to persuade Turkey that it takes both seriously.  Only Turkey can reverse that.  President Erdoğan won’t acknowledge that Turkey has no real evidence to connect Gülen with the coup, but he has shown on many occasions that he controls Turkey’s agenda.  So far, the extradition impasse has served as a tool to bash the United States for his political purposes.  If he perceives this tool is doing more harm than good, he will let it drop. All America can do is figure out what incentives will push him in that direction.

Kevin Snapp is a retired lawyer and federal law clerk living in Chicago.  He graduated from the University of Chicago Law School in 1982.

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