Controversial MİT law litmus test for President Gul

The much-contested law on the National Intelligence Organization (MİT), which was approved in Parliament last week and sent to President Abdullah Gul for approval, will be an important litmus test on the president’s declared respect for the rule of law and personal rights and freedoms.

The MİT law has been harshly criticized as a serious blow to the rule of law as well as rights and freedoms.

The president has less than two weeks to approve or veto the law.

People are curious to see whether the president will give the go-ahead to the law in light of recent signs of tension between him and Prime Minister Recep Tayyip Erdogan over who will be the country’s next president. The prime minister has designs on the presidency, and there are rumors that his attempts to dissuade Gul from running for re-election have put the two at odds.

In an unexpected turn on April 18, Gul publicly announced that he has no future political plans, signaling an earlier-than-expected departure from politics when his term ends in August.

Engin Altay, parliamentary group deputy chairman of the Republication People’s Party (CHP), told Today’s Zaman that Gul’s commitment to the law and the Constitution face a serious test with the MİT law. “We expect the president to veto the law and send it to Parliament for revision,” he said, adding that if the president approves the law, the CHP will challenge it at the Constitutional Court.

Critics say the law will damage Turkey’s democratic credentials and turn the country into an “intelligence state.”

The law allows MİT to conduct operations against possible overseas threats as designated by the Cabinet. MİT will not be accountable for such operations; all responsibility will lie with the civilian government. Under the bill, MİT agents operating under an assumed identity will not be accountable for their activities and MİT agents who infiltrate terrorist organizations will have no criminal liability for crimes committed while undercover.

The bill also authorizes MİT to conduct wiretaps without a court order. MİT will be authorized to wiretap phone conversations overseas on the orders of the undersecretary, who heads the agency, or his aide.

Altay said individual privacy will vanish with the MİT law. “The law authorizes MİT to violate all fundamental rights and freedoms mentioned in the Constitution. The intelligence agency will carry out operations. And its officials will not be punished for losses caused to individuals due to the operations. Prosecutors will not be able to initiate investigations into MİT officials. The law will be ignored,” he said.

MİT will have unfettered access to the archives and databases of every government ministry and will be able to collect massive amounts of data on citizens if the law is enacted. What’s more, the law requires private companies to hand over consumer data and technical equipment upon the agency’s request.

Courts and prosecutors will be able to request from MİT only documents related to state secrets and espionage. They will not be able to request any other documents from the intelligence organization.

Critics of the bill say it will make it easier for MİT to profile citizens.

President Gul has recently drawn criticism for approving controversial laws that were passed in Parliament thanks to the Justice and Development Party’s (AK Party) majority and despite the protests of the opposition. Many said the president was unable to take actions that would harm the AK Party and Erdogan’s interests as Gul might have been planning to return to active politics as an AK Party member after his term in the presidency ends. Now that the president declared that he has no political plans for the future, the opposition is hopeful that Gul will veto the MİT law.

According to Grand Unity Party (BBP) Chairman Mustafa Destici, the MİT law contains many articles that are in violation of the Constitution. “All opposition parties are opposed to the law. And so are civil society groups. The passage of the law in Parliament has raised concerns among people. We expect the president to take into consideration the reactions of the people and send the law back to Parliament for revision,” he said.

In February, Gul signed a law on the Supreme Board of Judges and Prosecutors (HSYK) that gave the government tighter control over the judiciary. Also in February, he approved a law increasing government control over the Internet. And in March, the president approved a law to ban privately owned prep schools, also known as dershanes.

Destici believes strong criticism by the AK Party and the prime minister after the Constitutional Court’s partial annulment of the HSYK law earlier this month were indeed part of an intimidation campaign to prevent the court from canceling the MİT law if it is approved by the president and later challenged in the court.

The BBP leader said the president will be doing a good thing if he vetoes the MİT law.

Gul co-founded the ruling AK Party with Erdogan and has remained a close ally. But he is viewed as a more conciliatory figure than the combative prime minister and their relations have at times appeared strained.

The law also introduces severe penalties for obtaining and publishing MİT documents. Anyone caught obtaining, leaking or forging a confidential MİT document faces a prison sentence of between four and 10 years. If a person obtains and publishes a document concerning MİT officials, he faces between three and seven years in prison. If such documents make their way into the print or visual media, the maximum sentence is 12 years.

In addition, the law provides retroactive legal grounds for the Oslo talks, a series of meetings held secretly between senior operatives of the terrorist Kurdistan Workers’ Party (PKK) and MİT officials in Oslo in 2010 in an attempt to find a peaceful solution to the country’s Kurdish problem.

The talks drew the ire of opposition parties in Turkey, who accused the AK Party of contributing to terrorism. The opposition argued that the “peace talks” were a form of bargaining with the terrorist group.

‘MİT must be accountable’

Nationalist Movement Party (MHP) Deputy Chairwoman Ruhsar Demirel is also of the opinion that Gul is on the verge of a vital test. “He now undergoes a serious test in justice, democracy, law and transparency,” she said, adding that people expect the president to veto the MİT law, since the country needs an accountable and transparent intelligence agency.

“The law makes MİT unaccountable. It is accountable to just one person [the prime minister]. This is unacceptable in a democracy,” she said.

The MHP deputy chairwoman also shared her thoughts on the president with Today’s Zaman. “As far as I can see, the president has reached the end of his patience due to the AK Party’s defiance of the rule of law. He should not approve the MİT law. He may pass the democracy test by vetoing the law,” she added.

Security analyst Mete Yarar told Today’s Zaman that it will not be a surprise if the MİT law is vetoed by the president or canceled by the Constitutional Court, arguing that there were fundamental problems in the process of passing the law.

Yarar said that measures in the law will affect international trade and arbitration. It is not possible, he pointed out, for Turkey to suspend obligations enshrined in international agreements with the new MİT law.

“First of all, the law should not have been introduced as a draft law but as a Cabinet decree. It should have been discussed not only in the Internal Affairs Commission but the Foreign Affairs and Justice commissions [in Parliament]. If they had followed this path, we wouldn’t be talking about unconstitutionalities [in the law]. The initial draft was very strict and with the objections it has been changed but the change was not sufficient,” Yarar said.

Yarar emphasized that there are two ways to solve the new MİT law’s constitutionality problems; one, for President Gul to send the law back to Parliament or to approve it and send it to the Constitutional Court. Two, Yarar said, the opposition parties could take the law to the Constitutional Court, which could annul any unconstitutional articles.