Chapter 4 Fethullah Gülen's Extradition from the United States
4.3 July 15 Military Coup and Gülen's Extradition Request
On July 15, 2016, a faction of Turkey’s military took the streets of some major cities including Ankara and Istanbul, resulting in the death of nearly 300 people with the purpose of overthrowing the democratically elected AKP government. The failed coup was immediately blamed on Fethullah Gülen199 who has been previously accused of infiltrating members of his
196 James C. Harrington, “Turkey Democracy in Peril- A Human Rights Report”, (May 2015):17-25.
197 Fuller, Turkey and the Arab Spring, 187.
198 Gulsen Solaker, Turkey's Erdoğan calls on US to extradite rival Gülen, Reuters April 29, 2014.
199 Danny Cevallos, “After failed Turkey coup, must US extradite cleric?,” CNN, July18, 2016.
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movement in the military. The failed coup started a crisis between the United States and Turkey because Gülen lives there and the suspicions that Washington was behind the coup.
After the night of the coup, Turkey’s suspicions of Washington’s involvement were spurred by the lack of a strong condemnation from the Obama administration. That night, then Secretary of State, John Kerry, when asked about the situation in Turkey only stated that he hopes “Turkey remains in peace” while refraining from commenting on the coup.200 The suspicions were also based on the relationship between US personnel in Turkish military bases with members of the Turkish Armed Forces, some of whom were detained. James Clapper, the US Director of National Intelligence, expressed that “many of our interlocutors have been purged or arrested… there’s no question this is going to set back and make more difficult cooperation with the Turks.”201 This increased Ankara’s suspicions that Washington either supported or had knowledge of the coup since its personnel were present at the bases from where the military took the plans that flew over Turkey that night.
Turkey spared no time to start the extradition request of Gülen. However, in a press release by the US Department of State on July 19, deputy spokesperson Mark Toner admitted that they have received documents from Turkey, but did not articulate as to whether they constituted a formal extradition request.202 It was later confirmed that Turkey formally requested his extradition. Toner, nonetheless, told reports that he would not characterize the request as
200“Kerry hopes for continuity in Turkey amid coup reports,” Associated Press, July 15, 2016.
201“Turkey military purge harming fight against Islamic State: Clapper,” Reuters, July 28, 2016.
202 US Department of State. Bureau of Public Affairs. Daily Press Briefing, July 19, 2016 [Press release]. http://www.state.gov/r/pa/prs/dpb/2016/07/260261.htm
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relating to the coup attempt.203 Unfortunately, the US has a policy of not commenting or releasing documents or information regarding ongoing extradition requests.
In such tense relations, the Obama administration was in a difficult situation to try to convince Turkey it was not involved in the coup as a way to keep Turkey as an ally. Former vice-President Biden visited Ankara shortly after and addressed the Turkish parliament asking for patience for the legal process, reaffirming Washington’s commitment to Turkey, and at the same time stressed the importance of meeting the necessary legal standards of the extradition request. Biden commented that the US “has no interest whatsoever in protecting anyone who has done harm to an ally.”204
Biden’s comments were music to the ears of the AKP government. The failed coup was directed against the Turkish government and President Recep Tayyip Erdoğan. It was an attempt at destabilizing Turkey’s constitutional order for which the international community paid close attention. Support from the international community poured after the world realized what happened on that night. Undeniably, Turkey has become a major player in the world of politics and security. If the coup had been successful, the ramifications could have posed a major threat to the stability of the region, and perhaps of NATO itself, taking for example the Arab Spring.
Despite the existing extradition treaty between the two countries, the only way the United States engages in extradition, the odds of extraditing Mr. Gülen are very high. In the past, Gülen was a supporter of Erdoğan, but the two are now rivals. His movement has been designated as a terrorist organization (Fethullah Gülen Terrorist Organization -FETÖ) and accused of operating
203 US Department of State, Bureau of Public Affairs. Daily Press Briefing, August 23, 2016, [Press release]. http://www.state.gov/r/pa/prs/dpb/2016/08/261220.htm#TURKEY3
204“Biden calls on Turkey to be patient in Gülen case” US News, August 24, 2016.
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a parallel state within the Turkish bureaucracy. As a well-known political opponent of the current regime, the United States can deny the extradition request based on the political offense exception (Article 3) which is an integral part of the existing extradition treaty between the two countries.
The AKP government under Erdoğan is trying to do everything it can to get Fethullah Gülen extradited from his home in Pennsylvania. President Erdoğan authoritarian government and his animosity with Gülen shown in his actions against him and his movement after the corruption scandals and the coup provide Gülen with his strongest arguments to get protection against the current extradition process. His protection can be found in the extradition treaty between Turkey and the United States under the provision of Article 3 (1) (a) which clearly specify that extradition shall not be granted “ 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.”205
By not relating Gülen’s extradition request to the attempted coup, Turkey is well aware of the reasons for refusal and wants to avoid it at all cost. The problem occurs because if the United States deems the request as a way to punish a political dissent it has legal grounds to deny it, as it is in this case. The crimes he has been charged with have not been made public, but if accused of treason or sedition, for example, such charges have never been extraditable in the past.
If charged with murder, it can be claimed that they were incidental to the political struggle and
205Treaty on Extradition and Mutual Assistance in Criminal Matters between the United States of America and the Republic of Turkey, January 1, 1981, 32 U.S.T. 311.
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the change they want in government. For this, Gülen will have to recognize its participation or his movement will have to claim responsibility for the coup.
Turkey’s actions are not only based on the whim of a country that is seeking vengeance but also on the reputation of the requested state, the United States of America, in refusing extradition requests and granting asylum to foreign political leaders it has supported and influential political dissents of regimes it despises. The political offense exception has been used to protect political dissidents in the past. As shown in the cases of the Irish insurgency, the United States has refused to extradite even people who have committed violent crimes against an important ally such as the United Kingdom. Likewise, the case of Iranian Shah is an important precedent that shows that even in the presence of threats and coercion with the hostage crisis, the United States did not extradite, apprehended, or prosecuted a political dissident as a way to favor the claims of the requesting state, Iran.
Most concerns have been centered on the US-Turkey security relations. According to NATO report on July 4, 2016, Turkey is the second most important member of the organization in terms of military personnel, which totals more than that of Germany and the United Kingdom combined.206 Its border with Syria has also made Turkey a key ally in the fight against ISIS from where the United States launches some of its airstrikes missions. Both situations make Turkey an important partner for the US fight against terrorism and the stability of NATO.
206Defense Expenditures of NATO Countries (2009-2016), July 4, 2016, NATO.
http://www.nato.int/nato_static_fl2014/assets/pdf/pdf_2016_07/20160704_160704-pr2016-116.pdf
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Country 2010 2011 2012 2013 2014 2015 2016
France 234 227 219 213 207 207 -
Germany 235 205 192 184 179 180 180
Italy 193 192 189 189 183 182 182
Spain 131 127 125 122 122 121 121
Turkey 495 495 495 427 423 426 411
United Kingdom 198 191 184 179 169 163 161
United States 1,427 1,425 1,400 1,382 1,338 1,311 1,305
Figure 3 NATO Members’ Military Personnel in Thousands
Source: Defense Expenditures of NATO Countries (2009-2016), July 4, 2016, NATO.
Erdoğan knows the importance of Turkey for the US in security matters. He is using the state’s influence and bargaining power to persuade Washington into accepting Gülen’s extradition request. Speaking in Ankara during a high-level meeting with international investors,
“What kind of partners are we if you request documents when we ask for a terrorist?” Erdoğan asked the US administration who has been asking for evidence to extradite Gülen.207Erdoğan was probably making a case here since Turkey was an important ally for the United States in Afghanistan when it intervened after the reluctance of the Taliban government to hand over Osama Bin Laden in 2001.
207“How is U.S. a partner if it continues to harbor Gülen? Erdoğan asks,” Daily Sabah, August 2, 2016,
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In the aftermath of the coup, Turkey started a purge not only in the military but also in the judiciary, government ministries, schools, and universities. Anyone suspected of being involved in the Gülen movement was subject to interrogations. Former US government officials – one-time ambassador to Ankara, W. Robert Pearson, and Larry Korb, former Assistant Secretary of Defense – said that Turkey’s military purge is straining a key military relationship.208 These comments also resonated in Clapper’s remarks.
A report from the Institute for the Study of War argues that the anti-American sentiments Erdoğan is creating during his purge may indicate that he was setting conditions for a pivot in Turkish foreign policy away from the US due to its reluctance to extradite Gülen and its lack of genuine support. Consequently, Turkey started pursuing closer ties with Russia, raising the question of whether it is considering leaving NATO to strengthen its relationship with Vladimir Putin, the report said.209 They are now cooperating closer in finding a solution to the crisis in Syria as part of the Astana talks of which the United States is not a part of.
Since the Obama administration is out of power, the burden of the extradition of Gülen is now in the hands of the Trump administration. The Trump administration has yet to take a clear position on the matter, but his close relation with Erdoğan and the comments of General Michael Flynn, who was one of the closest advisors to the new administration, could perhaps be against Gülen. There were concerns about Flynn lobbying in the name of Turkey in order for the Trump administration to bypass or expedite some of the long extradition proceedings.210 However, in favor of Gülen, the executive cannot by itself decide whether to grant the request. It has to
208 James Reinl, “US-Turkey military fissures could damage anti-Islamic State efforts,” Middle East Eye, August 1, 2016,
209Jennifer Cafarella, Elizabeth Sercombe, and Charles Vallee, “Partial Assessment of Turkey’s Post-Coup Attempt Military Purge,” Institute for the Study of War, (July30, 2016).
210Jeremy Diamond, Jessica Schneider, and Joe Johns, “Trump transition knew of Flynn's pro-Turkey lobbying before White House appointment”, CNN, March 11, 2017.
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submit the request for an extradition hearing.211 This was the position of the Obama administration to let the process take place in the judiciary and it will certainly continue under the new administration. At this moment in the process, Gülen would most likely move forward his defense based on the political offense exception, claiming that the Turkish government is, in fact, trying to prosecute him for his political opinions and that the government will not afford him a fair trial. His previous trials, all of which he has been acquitted of, are good evidence he can use in his favor.
As extradition is the only available way for the AKP government to secure the return of Gülen, the Turkish government seems to be trying to manipulate the judicial process using the security relations. His extradition in the US is certainly a matter of law and not a political one as the Turkish government considers it. Turkish Justice Minister Bekir Bozdağ, for example, said on August 29, 2016 “We all have to respect the process. But the key to this process is political will…the political will determines the outcome of the legal process.” The Trump administration cannot bypass the judicial process, but in the parts assigned to the executive and not the judiciary, it can certainly help to move forward the extradition. It can only do it in the first phase of the process when it is received by the Department of State to confirm that the request is in compliance with the extradition treaty, and the last phase when after being granted by the judiciary (which has to confirm the existence of probable cause) then it can decide whether or not it will render to the foreign state the alleged fugitive.212
211 619. Extradition Hearing, United State Department of Justice- Offices of the United States Attorneys, https://www.justice.gov/usam/criminal-resource-manual-619-extradition-hearing
212Michael Werz and Max Hoffman , “The Process Behind Turkey’s Proposed Extradition of Fethullah Gülen,” Center for American Progress,( September 7, 2016).
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Moreover, despite the difficulties and challenges of the extradition request of Fethullah Gülen, the United States can still prosecute Gülen if he is found guilty of crimes that are punishable in both countries, but still considers him not extraditable based on the political offense exception. This is based on the obligation to extradite or prosecute -aut dedere aut judicare. This action can perhaps show to the Turkish government that the US takes the issue
seriously. Likewise, such action will be in line with the objective of extradition to prevent putative wrongdoers from escaping justice by taking advantage of the limitations and challenges of this process. In that sense, the United States will also have to bring under more scrutiny the Hizmet movement’s network and activities in the country. These actions make sense if the United States expects future interactions with Turkey in security and extradition matters. In the case of the Irish insurgency, the United States denied visas for members of the violent groups in Northern Ireland. Scrutiny to the movement and support for Turkey can also take form by not allowing members of the movement to enter the United States and thus, avoiding more conflicts with Turkey. The prosecution of Hissène Habré, former President of the Republic of Chad, provides a good example in which there is a conflict of interests in extradition, but through cooperation, bringing political criminals to justice, in one way or another, is possible. The main difference here is that the Chadian government did not pressure Senegal and that the international community is not supporting Turkey. The Turkish government seems to have a real interest in punishing Gülen and they stand firm in their belief that he was, in fact, the mastermind of the attempted coup. However, the international community is unlikely to pressure the United States as it pressured Senegal in the case of Hissène Habré. Germany, for example, believes that
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the Gülen was not behind the coup and that the coup is just a welcome pretext for Erdoğan to crackdown on dissidents of his movement.213