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STRIPPED-DOWN INVESTIGATION LEADS NOWHERE
Abdullah Bozkurt
Today's Zaman
April 20 2008
Turkey
On a cold November night in 1996, in a little-known place called
Susurluk in southwestern Turkey, an armored Mercedes crashed into a
truck, killing three of its four passengers -- members of Parliament --
a senior police official and an ultra-nationalist fugitive.
It was the first clear evidence that revealed what Turks call the
"deep state," a network of clandestine connections between criminal
gangs that have infiltrated Parliament, the military, the bureaucracy
and the republic's security forces.
Since then, a number of other scandals, most notably Å~^emdinli and
Ergenekon, have been uncovered, confirming time and time again that
notorious gangs were allowed to prosper from illegal activities such as
drug trafficking, arms sale, bribery and extortion under the protective
wings of corrupt, high-ranking personnel in the state apparatus. The
investigative committees and commissions set up by Parliament, the
chief legislative body representing the people's will, to look into
allegations often stalled and hit roadblocks, usually rendering the
cases ineffective.
Scholars argue that there are structural problems in the Turkish
Constitution and legal system hindering parliamentary commissions from
fully exercising their investigative powers in the public's name. What
is more is the lack of a fully established democratic understanding in
practice as we see in Western democracies. Mehmet ElkatmıÅ~_, a former
deputy who headed the parliamentary commission on the infamous Susurluk
case, says, "I never fully understood why a commission acting under
the directive of Parliament, the highest authority representing the
people, couldn't follow its investigation wherever it leads." Speaking
to Sunday's Zaman, he also said, "I was often frustrated and aggravated
when the case didn't seem to be going anywhere."
Investigative power, one of the most important non-legislative
functions of the parliament in any democratic system, is somewhat
curtailed in the Turkish Constitution. Article 98 simply says,
"A parliamentary inquiry is an examination conducted to obtain
information on a specific subject." Article 105 of the Parliament
Internal Regulations specifies in detail the operating scope of such
commissions. Accordingly, commissions have no power to investigate
matters related to state or trade secrets. In contrast, the United
States Congress has great leverage in oversight and investigations,
even into secret and intelligence issues. "Generally speaking,
the congressional power to investigate is extremely broad," says
Frank Askin, a law professor and director of the Rutgers Law School
Constitutional Litigation Clinic.
Event though there is no express provision in the US Constitution to
its effect, broad legislative authority to issue informational demands
has been established unequivocally in Supreme Court rulings since it
was first borrowed from the British Parliament. In many cases brought
to the court, justices ruled that such powers were essential to the
legislature's function and thus implied in Congress' legislative
powers. Asked whether congressional committees can look into state
or trade secrets, Mark J. Rozell, professor of public policy at
George Mason University, responded, "Congress also has the power to
investigate matters of state secrets, although the so-called state
secrets privilege may and has been used to prevent the divulgence of
information to Congress and even to the courts."
In the Turkish case, however, there is an ambiguity as to what
constitutes a state or trade secret and who arbitrates when the
question arises. ElkatmıÅ~_ provides specific examples of cases where
witnesses called to testify categorically refused to comply, citing
secrecy concerns. "On one occasion the commission inquired about lost
guns and the state secrecy clause was immediately put into play. On
another occasion, we requested bank records belonging to notorious
killer Mahmut Yıldırım, known as 'YeÅ~_il'; they told us they
could not release the records due to trade secrets protection. We
could have proceeded with closed sessions for matters involving
state or trade secrets, just like in the West. But they just used the
loopholes as a pretext to shield criminals and circumvent the will of
Parliament." Closed hearings are common in the United States. Askin
states "the US Congress will often agree to hold closed hearings into
state secret issues."
The last prominent case highlighting the problems in the operation
of Turkish parliamentary commissions is that of the subcommittee
established to investigate the murder of ethnic Armenian journalist
Hrant Dink in Ä°stanbul last year. In light of strong evidence
that security forces were tipped off about the plot to kill Dink
before the murder but did not act, the committee called high-ranking
gendarmerie officers to testify, including former commander of the
Trabzon Gendarmerie Command Col. Ali Oz, who earlier testified to the
committee that he "received no intelligence about the plot." However
officers did not show up on the day they were scheduled to testify in
front of the committee, citing pending cases. ElkatmıÅ~_ recalled
a similar case in Susurluk: Teoman Koman, then chief commander of
the gendarmerie forces and former undersecretary of the National
Intelligence Organization (MÄ°T), refused to testify and did not even
bother to show up.
Under current rules, parliamentary commissions do not have the power
to compel witnesses to testify.
Does the US Congress have the authority to extend subpoenas to
civilian as well as military personnel? "Clearly yes," says Kevin
R. C. Gutzman, the author of "The Politically Incorrect Guide to the
Constitution." Speaking to Sunday's Zaman, Gutzman, also a history
professor at Western Connecticut State University, laid out a possible
scenario. "He [the witness] can assert his Fifth Amendment privilege
[protection from self-incrimination] and then if Congress wants to
make him testify anyway, it will have to first grant him some type
of immunity from prosecution. This was done in relation to several
of the Iran-Contra defendants." To "plead the Fifth" however,
you still need to attend the hearing and swear an oath before the
committee. Rozell also believes "Congress indeed has the right to
investigate military matters and it does so without hesitation,"
noting that "a committee also may call military people to testify
and they would have no special exemption from appearing."
The cases we see in Turkish parliamentary commissions are very
peculiar, as some witnesses literally ignore summons to testify at
the hearing. This is partly due to an absence of power on the part
of parliamentary commissions to bring the witness to stand, unlike
Congress's contempt power in the US. There is no penalty for a no-show
and a commission is powerless without government backing and pressure
on agencies. The US Congress issues contempt citations to witnesses who
refuse to appear before committees, respond to questions and produce
documents; continued refusal may lead to arrest warrants and jail.
No-shows by military officers in the Dink subcommittee hearings
sparked yet another controversy in Turkey. Does the pending case
prevent witnesses from appearing before the committee? Citing Article
138 of the Turkish Constitution, which prohibits the legislature among
others from giving orders or instructions to courts or judges relating
to the exercise of judicial power, the Turkish Gendarmerie General
Command asked the local court in Trabzon if there was a conflicting
issue with another ongoing case should the officers appear before the
committee. ElkatmıÅ~_ believes this charge was made up to stonewall
the investigation. He says: "Commissions do not judge people or issue
orders. So there is no interference with the court system here. They
simply collect information and compile a report and submit it to
Parliament." In the meantime, wires reported on Thursday that the
local court had allowed officers to appear before the committee.
Pending legal cases do not affect the power of investigation and
contempt in the US. Conflicts most often emerge when the president
invokes executive privilege to prevent government employees from
testifying. Askin points out: "Most of these confrontations get
negotiated. The courts have been reluctant to get involved -- although
the Supreme Court did order President [Richard] Nixon to turn over
White House tape recordings during the Watergate investigation,
which lead to the president's impeachment." Rozell stresses that "a
presidential claim of executive privilege does not affect a contempt
citation by Congress." Askin agrees, saying, "Congress actually has
an inherent power to arrest those officials and lock them up in the
capital basement until they testify -- but that is a power Congress
has not been willing to enforce in almost a hundred years," he adds.
ElkatmıÅ~_ wants concrete proposals to overhaul the procedure by
which commissions and committees work in Parliament. "Some vague
statements in the letter of the law need to be clarified and the
commission ought to be empowered to be able to collect information
effectively," he says. The former deputy's wish may come true as the
government starts rolling out new reform packages intended to bring
the Constitution and regulations in line with the EU legal system.
--Boundary_(ID_aUCF95hrtXGYwRSRhQYIAg)--
Abdullah Bozkurt
Today's Zaman
April 20 2008
Turkey
On a cold November night in 1996, in a little-known place called
Susurluk in southwestern Turkey, an armored Mercedes crashed into a
truck, killing three of its four passengers -- members of Parliament --
a senior police official and an ultra-nationalist fugitive.
It was the first clear evidence that revealed what Turks call the
"deep state," a network of clandestine connections between criminal
gangs that have infiltrated Parliament, the military, the bureaucracy
and the republic's security forces.
Since then, a number of other scandals, most notably Å~^emdinli and
Ergenekon, have been uncovered, confirming time and time again that
notorious gangs were allowed to prosper from illegal activities such as
drug trafficking, arms sale, bribery and extortion under the protective
wings of corrupt, high-ranking personnel in the state apparatus. The
investigative committees and commissions set up by Parliament, the
chief legislative body representing the people's will, to look into
allegations often stalled and hit roadblocks, usually rendering the
cases ineffective.
Scholars argue that there are structural problems in the Turkish
Constitution and legal system hindering parliamentary commissions from
fully exercising their investigative powers in the public's name. What
is more is the lack of a fully established democratic understanding in
practice as we see in Western democracies. Mehmet ElkatmıÅ~_, a former
deputy who headed the parliamentary commission on the infamous Susurluk
case, says, "I never fully understood why a commission acting under
the directive of Parliament, the highest authority representing the
people, couldn't follow its investigation wherever it leads." Speaking
to Sunday's Zaman, he also said, "I was often frustrated and aggravated
when the case didn't seem to be going anywhere."
Investigative power, one of the most important non-legislative
functions of the parliament in any democratic system, is somewhat
curtailed in the Turkish Constitution. Article 98 simply says,
"A parliamentary inquiry is an examination conducted to obtain
information on a specific subject." Article 105 of the Parliament
Internal Regulations specifies in detail the operating scope of such
commissions. Accordingly, commissions have no power to investigate
matters related to state or trade secrets. In contrast, the United
States Congress has great leverage in oversight and investigations,
even into secret and intelligence issues. "Generally speaking,
the congressional power to investigate is extremely broad," says
Frank Askin, a law professor and director of the Rutgers Law School
Constitutional Litigation Clinic.
Event though there is no express provision in the US Constitution to
its effect, broad legislative authority to issue informational demands
has been established unequivocally in Supreme Court rulings since it
was first borrowed from the British Parliament. In many cases brought
to the court, justices ruled that such powers were essential to the
legislature's function and thus implied in Congress' legislative
powers. Asked whether congressional committees can look into state
or trade secrets, Mark J. Rozell, professor of public policy at
George Mason University, responded, "Congress also has the power to
investigate matters of state secrets, although the so-called state
secrets privilege may and has been used to prevent the divulgence of
information to Congress and even to the courts."
In the Turkish case, however, there is an ambiguity as to what
constitutes a state or trade secret and who arbitrates when the
question arises. ElkatmıÅ~_ provides specific examples of cases where
witnesses called to testify categorically refused to comply, citing
secrecy concerns. "On one occasion the commission inquired about lost
guns and the state secrecy clause was immediately put into play. On
another occasion, we requested bank records belonging to notorious
killer Mahmut Yıldırım, known as 'YeÅ~_il'; they told us they
could not release the records due to trade secrets protection. We
could have proceeded with closed sessions for matters involving
state or trade secrets, just like in the West. But they just used the
loopholes as a pretext to shield criminals and circumvent the will of
Parliament." Closed hearings are common in the United States. Askin
states "the US Congress will often agree to hold closed hearings into
state secret issues."
The last prominent case highlighting the problems in the operation
of Turkish parliamentary commissions is that of the subcommittee
established to investigate the murder of ethnic Armenian journalist
Hrant Dink in Ä°stanbul last year. In light of strong evidence
that security forces were tipped off about the plot to kill Dink
before the murder but did not act, the committee called high-ranking
gendarmerie officers to testify, including former commander of the
Trabzon Gendarmerie Command Col. Ali Oz, who earlier testified to the
committee that he "received no intelligence about the plot." However
officers did not show up on the day they were scheduled to testify in
front of the committee, citing pending cases. ElkatmıÅ~_ recalled
a similar case in Susurluk: Teoman Koman, then chief commander of
the gendarmerie forces and former undersecretary of the National
Intelligence Organization (MÄ°T), refused to testify and did not even
bother to show up.
Under current rules, parliamentary commissions do not have the power
to compel witnesses to testify.
Does the US Congress have the authority to extend subpoenas to
civilian as well as military personnel? "Clearly yes," says Kevin
R. C. Gutzman, the author of "The Politically Incorrect Guide to the
Constitution." Speaking to Sunday's Zaman, Gutzman, also a history
professor at Western Connecticut State University, laid out a possible
scenario. "He [the witness] can assert his Fifth Amendment privilege
[protection from self-incrimination] and then if Congress wants to
make him testify anyway, it will have to first grant him some type
of immunity from prosecution. This was done in relation to several
of the Iran-Contra defendants." To "plead the Fifth" however,
you still need to attend the hearing and swear an oath before the
committee. Rozell also believes "Congress indeed has the right to
investigate military matters and it does so without hesitation,"
noting that "a committee also may call military people to testify
and they would have no special exemption from appearing."
The cases we see in Turkish parliamentary commissions are very
peculiar, as some witnesses literally ignore summons to testify at
the hearing. This is partly due to an absence of power on the part
of parliamentary commissions to bring the witness to stand, unlike
Congress's contempt power in the US. There is no penalty for a no-show
and a commission is powerless without government backing and pressure
on agencies. The US Congress issues contempt citations to witnesses who
refuse to appear before committees, respond to questions and produce
documents; continued refusal may lead to arrest warrants and jail.
No-shows by military officers in the Dink subcommittee hearings
sparked yet another controversy in Turkey. Does the pending case
prevent witnesses from appearing before the committee? Citing Article
138 of the Turkish Constitution, which prohibits the legislature among
others from giving orders or instructions to courts or judges relating
to the exercise of judicial power, the Turkish Gendarmerie General
Command asked the local court in Trabzon if there was a conflicting
issue with another ongoing case should the officers appear before the
committee. ElkatmıÅ~_ believes this charge was made up to stonewall
the investigation. He says: "Commissions do not judge people or issue
orders. So there is no interference with the court system here. They
simply collect information and compile a report and submit it to
Parliament." In the meantime, wires reported on Thursday that the
local court had allowed officers to appear before the committee.
Pending legal cases do not affect the power of investigation and
contempt in the US. Conflicts most often emerge when the president
invokes executive privilege to prevent government employees from
testifying. Askin points out: "Most of these confrontations get
negotiated. The courts have been reluctant to get involved -- although
the Supreme Court did order President [Richard] Nixon to turn over
White House tape recordings during the Watergate investigation,
which lead to the president's impeachment." Rozell stresses that "a
presidential claim of executive privilege does not affect a contempt
citation by Congress." Askin agrees, saying, "Congress actually has
an inherent power to arrest those officials and lock them up in the
capital basement until they testify -- but that is a power Congress
has not been willing to enforce in almost a hundred years," he adds.
ElkatmıÅ~_ wants concrete proposals to overhaul the procedure by
which commissions and committees work in Parliament. "Some vague
statements in the letter of the law need to be clarified and the
commission ought to be empowered to be able to collect information
effectively," he says. The former deputy's wish may come true as the
government starts rolling out new reform packages intended to bring
the Constitution and regulations in line with the EU legal system.
--Boundary_(ID_aUCF95hrtXGYwRSRhQYIAg)--