ABDULLAH BOZKURT

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ABDULLAH BOZKURT
November 25, 2013, Monday

Turkey’s unrestrained spy agency

If it was not for Turkey's Official Gazette, we probably would not know that our beloved, reporters-tapping spy agency, the National Intelligence Organization (MİT), recently found a new “skunkworks” or “black budget” to tap into in order to finance its secret dealings away from public scrutiny and parliamentary oversight.

On Nov. 20, 2013, the gazette published a Cabinet decision dated Nov. 12 that gives the spy agency authority to obtain funds directly from the Turkish Defense Industry Support Fund (SSDF), an extra-budgetary resource for defense that is managed by the Undersecretariat for the Defense Industry (SSM). Whether this questionable decision would pass a judicial review if it is ever challenged in court despite the fact that it violates both the letter and the spirit of the law even with a very broad interpretation does not seem to be an issue of concern in a country that, by all accounts, is drifting quickly to an authoritarian form of government.

This decision of Prime Minister Recep Tayyip Erdoğan's government allows MİT to obtain cash from the SSDF at will for equipment purchases, as opposed to the past practice under which MİT had to contract with the SSM to procure equipment. Because of the secret nature of intelligence procurement, open and competitive public bidding rules have never applied to MİT, a tradition that makes sense. However, the SSM rules and procedures had to be followed for equipment requested by MİT. The SSM, an agency that manages multi-billion dollar defense and military hardware contracts, is highly specialized in this field. By cancelling that procedure with a one paragraph revision in government regulations, MİT is now effectively taking over defense funds. Instead of asking for the equipment, the spy agency will simply fill in a request for a cash transfer from the defense fund to a designated account specially set up for MİT. What is further troubling is that regulations determining how the funds may be spent are replaced with the spy agency's own rules that are more lax and more secretive.

In terms of nominal figures, this means that the spy agency will be able to draw from SSDF funds that were estimated to be well over TL 6 billion (almost $3 billion) in 2012, with pending transfer entitlements from the Treasury. The main sources for the fund are income and corporate tax revenue, national lottery earnings, horse race betting profits, light firearms import net proceeds, the fuel consumption tax and alcohol and tobacco fees and levies. Therefore, the fund is well capitalized and will continue to grow with sustainable revenue. If needed, the SSM can also obtain funding from the budget of the Ministry of Defense, which was earmarked at TL 21.8 billion (almost $11 billion) for the year 2014. MİT began to benefit from SSDF funds beginning in October 2011, when the government issued a decree with the force of law to allow the practice, bypassing Parliament. But the procurement process was still managed by the SSM. Now, with the Nov.12 Cabinet decision, MİT will be able to bypass the SSM and use the cash as it sees fit. All these extra funds give more financial firepower to MİT, which was already allocated a 2014 budget of TL 1.1 billion ($550 million), a whopping 70 percent jump from the 2006 budget.

Added to that, MİT can also tap into the prime minister's discretionary fund, which is top secret and mostly used for intelligence and secret government operations. The government spent TL 1.2 billion ($600 million) in 2012 from this discretionary fund, and the expenditure is expected to reach to TL 1.5 billion ($750 million) by the end of 2013. Using the 2005 budget for the discretionary fund that was TL 156 million as a base, the Prime Ministry's secret cash trove has increased by 862 percent in 2013. There are other funds available for MİT in agencies like the Turkish Cooperation and Development Agency (TİKA), the Overseas Turks' Agency (YTB) and others whose budget the agency can tweak with its discretionary powers to indirectly fund its operations. As a result, no one knows exactly how big a budget Turkey's spy agency can tap into, but it is estimated to be billions of dollars. The worst part is that the oversight and auditing of intelligence-related expenditures is not held up to a thorough accounting review, as opposition deputies in the Planning and Budget Commission admitted earlier this month.

As if this confusing and ambiguous process to track expenditures for intelligence activity were not a major problem, Erdoğan's government makes it even worse by frequently changing government regulations and complicating the legal framework further. There are no adequate safeguards preventing the abuse and waste of these funds. For one, Turkey does not have a special commission in Parliament to oversee intelligence activities. Secondly, the budget of the spy agency, including the other discretionary funds available, is not thoroughly audited during budget deliberations in Parliament because deputies do not have access to the information required to perform such monitoring. Even if scandalous incidents get reported in the media, commissions in Parliament are powerless to pursue allegations because they lack subpoena power to conduct investigations. The government dominates Parliament with the power of the majority, and motions to set up special investigative commissions will never pass unless the government agrees to them.

Judicial oversight of the intelligence organization was dealt a significant blow in February 2012 when all prosecutorial investigations and court cases probing the agency and its employees for violations of the law and the Constitution were made subject to explicit permission from the prime minister, who has declined to allow most cases to move forward. Another major judicial problem with regard to the spy agency was unearthed when MİT obtained warrants from judges to tap the telephones of journalists using falsified code names in what would seem to be a major deceit. That triggered an investigation by Turkey's judicial council last week as to whether MİT deliberately misled judges and the courts. If the allegations turn out to be true, MİT abused its exceptional powers and circumvented the courts that are tasked with ensuring that any wiretapping is legally justified and does not infringe upon human rights. If the domestic courts can't adequately address this problem, it is a perfect case to bring to the European Court of Human Rights (ECtHR) based on Article 13 of the European Convention on Human Rights (ECHR), which stipulates that everyone whose rights and freedoms are violated should have an effective remedy through judicial or non-judicial bodies.

Unfortunately, Turkey does not have such an independent body that is a non-judicial organ to exercise oversight over intelligence activity. The Ombudsman's Office, which became operational early this year, may look into these matters, but it has not yet been tested with a single case. Since the chief ombudsman was elected by the majority support of the governing party, whether he will be able to go after the most powerful government agency begs further questions. That leaves the media as possibly the only actor to watch for abuses committed by the security and intelligence organizations in Turkey. Considering the widespread allegations that MİT has been putting journalists on its payroll in Turkey, financing reporters through clandestine activities to promote the agency and to clutter the information space through unscrupulous reporting fed to them by the agency, the media's public interest advocacy role is very much diluted. Substantial rumors have it that the intelligence organization runs smear campaigns, especially online, to discredit and harass investigative reporters that are looking into any dirty work in the intelligence community.

As a result, the spy agency has been given practically free rein. That is not what the voters in this country were promised in an “advanced democracy” campaign pledge by Erdoğan and his ruling Justice and Development Party (AK Party). It is not acceptable by any standards of democracy in a European Union candidate country. The AK Party has to live up to its election manifesto of 2011 that promised limited government, curbing special privileges and immunities, enhanced transparency and better accountability.

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