President Trump’s assumption of power stands to affect the current extradition proceedings of Turkish Cleric Fethullah Gulen. The executive and the judicial branches share power in extraditions, although the executive wields an outsized influence in the process. This blog post explores the legal issues surrounding Gulen’s case now that President Trump has assumed office.
Little has happened in Turkey in the past year without President Recip Teyep Erdogan’s regime drawing some spurious connection to Gulen. From this past July’s coup attempt to the recent assassination of Russian ambassador Andrey Karlov, Gulen’s fingerprints, as Erdogan would have it, are all over the country’s recent political unrest. Gulen, a one-time political ally of Erdogan, has clashed with the president’s regime in recent years over accusations of corruption in Erodgan’s government by Gulen’s Turkish supporters. Gulen now stands accused of orchestrating this summer’s coup, along with offenses that seemingly predate that incident.
Unsurprisingly, the Erdogan regime is doing everything in its power to pry Gulen away from the Pennsylvania compound where he has spent much of the last two decades. After a prolonged immigration battle with the U.S. Attorney’s Office for the Eastern District of Pennsylvania (which Gulen won), the seventy-seven-year-old cleric is now set for a face off with an empowered Erdogan, fresh off his successful counter coup and seemingly bolder than ever.
The Obama administration’s policy towards Turkey and Ergodan has led it to take a cautious, patient approach with regards to Gulen. The incoming Trump administration’s greater support for Ergodan, however, might mean a more forceful push toward extraditing Gulen. While the Obama administration carefully cultivated its relationship with Erdogan—who swept into office originally as a moderate and reformer—that relationship soured following Erdogan’s authoritarian turn after Turkey’s civil unrest of 2013. Disagreements over Syria, in particular the arming of Kurdish rebels, only widened the rift between the two leaders, once considered trusted partners. And even though he stood steadfastly by Erodgan during the recent coup, Obama’s reservations toward the Turkish president’s increasingly hardliner politics have surely offered Gulen some comfort given the executive’s unilateral power to shield Gulen from extradition.
That power emerges from the structure of Article 3 of the United States’ bilateral extradition treaty with Turkey. Under that provision, the executive can refuse an extradition request—even one that has been granted by a magistrate judge—if it determines that the request has “been made to prosecute or punish the person sought for an offense of a political character or on account of his political opinions.” The executive may also simply refuse an extradition request for failure to meet the necessary evidentiary bar. On that score, the Obama administration has been scrupulously careful, following the usual course for politically charged extradition requests by hewing to procedure and asking for patience.
A new administration, then, might reverse course with regards to Gulen and Turkey. Any sort of policy shift toward placating Turkey could hypothetically speed up Gulen’s extradition timeline and remove the extra protection that a principled post-judicial refusal of Turkey’s request might afford Gulen. Already in Turkey, the hopes for such a reversal are high, as General Michael Flynn, one of President-elect Trump’s closest advisors, has explicitly expressed his support for Gulen’s extradition and for the Erdogan regime in general. While Flynn’s dubious connections to an Erdogan-aligned Turkish lobbying firm raise doubts about his independence in the matter, and the incoming Trump administration has yet to take an official stance on Gulen, Erdogan himself has not been shy about hoping aloud for exactly the kind of shift that Flynn has advocated.
Fortunately for Gulen, however, the executive does will not technically have the final say in any extradition case brought against him. Should the incoming administration decide to move forward with Turkey’s extradition request, they will still need to submit that request to an extradition hearing. At this hearing, the requested offender may push his own political defense, even if the executive does not. This defense, known as the political offense exception, is also codified in article 3(1)(a) of the US-Turkey extradition treaty, which states 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.”
The political offense exception has shielded those, like Gulen, whom foreign states have deemed terrorists in the past. In 1981, for example, after a US court refused to extradite a Provisional Irish Republican Army (PIRA) member who stood accused of murdering a British serviceman, the Reagan administration was powerless to extradite. This, along with other PIRA and PLO cases, led to the 1985 adoption of a supplemental treaty with the United Kingdom which hollowed out the political offense exception for offenders charged with certain crimes of violence—crimes of which, among others, Gulen stands accused.
Assuming, arguendo, then that the incoming administration will be unwilling—or simply less willing—to reverse a judicial grant of extradition, the political offense exception likely stands as Gulen’s best protection against extradition. This is, in part, because of the low bar the government must clear to grant an extradition request: the government needs only establish probable cause and the Federal Rules of Evidence do not apply in extradition proceedings. So while the Turkish government’s extradition request, and thus the evidence to be used against him, is not publicly available, there will not need to be much of it. That the political offense exception is Gulen’s best protection, however, does not mean that it is a bulletproof one. The political branches are not the only ones which have sought to weaken the exception’s application to violent or terroristic offenders; the courts have gotten involved, too. In particular, the relatively recent Fourth Circuit opinion in Ordinola v. Hackman appears to remove violent attacks on civilians from the purview of the political offense exception. This opinion brought the Fourth Circuit into line with a similar 1988 case from the Second Circuit, Ahmad v. Wigen, and both opinions are part of a broader trend of limiting the political offense exception’s extension to terrorists. That said, the political offense exception is, to say the least, rarely litigated, and Gulen’s case presents a novel fact pattern—people rarely plot coups from the Poconos. The Turkish cleric has not set foot in Turkey since his self-imposed exile nearly seventeen years ago, meaning any request would be based on extraterritorial conduct.
Gulen’s case, then, may on a surface level appear well-suited to a political offense exception defense. However, the Ordinola court hewed closely to what may prove a worrying precedent for Gulen: deference to the State Department’s classification of political offenders.Thus, while the incoming administration will not be able to act unilaterally to extradite Gulen, it will likely enter any extradition hearing against Gulen with a strong upper hand.
Brett G. Mead is current second-year at Columbia Law School and staff member of the Journal of Transnational Law. He is a graduate of Washington University in St. Louis and