We spoke with retired judge Col. Ümit Kardaş before the trial about situations likely to arise as the trial progresses. Kardaş is not very optimistic about the future of the Ergenekon trial. He thinks Turkish judges are greatly affected by public opinion, political developments and the words and actions of power. Kardaş also found the government's method to write a new Constitution to be flawed. "[The government] had a committee write a technical constitution whose articles were set earlier, and it started to debate the draft constitution in itself. This method was extremely wrong. This is how coup perpetrators wrote the current Constitution," he explained.
Kardaş emphasized that "no matter what its form, terrorism is not a war, but an internal security problem." Saying the responsibility falls on the elected political administration to protect the country by fighting against terrorism, he stated that the Interior Ministry should use the police and the gendarmerie to fulfill this duty. "If police units under the command of the Interior Ministry prove insufficient, assistance can be received from military forces upon a request from the civilian authority. While all these steps are being taken, the responsible bodies and authorities for domestic security issues are the interior minister and governors and district governors, who are his local representatives. Receiving temporary assistance from security forces when police units prove insufficient is not a desirable situation in democratic administrations, and it should be a final resort. However, even under these circumstances, domestic security issues do not become a military duty," he said.
What do you think awaits us in the hearings?
The attempts of some publications to sabotage the trial will continue. Outside of this, I worry that the government will not be able to stand behind its decision because we can see that the Justice and Development Party (AK Party) behaves rather pragmatically in many situations. Politically, the field has been narrowed, and some resort to bargaining when backed into corners. I think that within this framework it's possible for this trial to be watered down.
What would the government have to do to prove you're right?
For example, there were a slew of allegations regarding the prosecutors. This was one part of the dilution. The Justice Ministry was able to defend the prosecutors. But the day will come when it may not do so. We've seen the example of Şemdinli; the government crucified the Şemdinli prosecutor. The military bureaucracy there made enormous concessions. And now, I'm afraid that the prosecutor and judge of this [Ergenekon] case will be changed. And there's this. Tomorrow such events will occur that will lead to a change of power. Let's say that an alliance occurs between the Republican People's Party (CHP) and the Nationalist Movement Party (MHP). Is it possible to expect any result from the Ergenekon trial anymore? Ergenekon is an organization that has wrapped around everything like an octopus. There is no joint will available between the government and the opposition to save Turkey from this calamity without fear and making concessions.
Can you guess how the military will behave during the trial?
I don't think the military will say a thing about such a restricted trial because the [military officers on active duty] have not been touched. Yes, they took a few lieutenants, but those are always expendable. The military says take them, but don't touch that contingent up on the mountain. After all, Şener Eruygur went through some inconvenience. He was discharged. Tomorrow or the next day, Hurşit Pasha will also be inconveniently discharged.
How will the Ergenekon trial affect the fight against terror?
The extraordinary situation is actually continuing. Civilian rules have no weight there. The military is still in the pre-planning phase. The gendarmerie can still pursue the implementations it so chooses.
But they want more.
Because of the attacks on military outposts, there are some weaknesses, some failures. How can you cover these up? We have no authorization. Give us authorization, you're going to say. Outside of the negative effect on the people of the region, this also creates again an environment in Turkey that can affect the entire regime. And it will block all of the paths to democratization before the regime. The aftermath of this authoritarian environment will also affect the Ergenekon trial.
Can the judges be directly affected by this?
Our judges are greatly affected by public opinion, political developments and the words and actions of power. Turkey has experienced trauma. I was in Diyarbakır on Sept. 12, 1980. They detained a criminal court judge who was on his way to work in the morning and jailed him. They changed the posts of many judges. They ended the careers of some judges.
When some judges ruled for the release of some suspects, they were called and warned by the commander of martial law. There is already an experienced and learned trauma in the judiciary. Our judiciary protects the state. If some listen to the voice of conscience and stand up in an effort to do something, they'll be smothered anyways.
It has been decided that counterterrorism efforts will be coordinated by a security unit to be established within the body of the Interior Ministry, and if this new system turns out to be successful, the baton in the hands of the General Staff to combat terrorism will pass to the civilian authorities. What do you think about this?
This is doubtlessly a positive development. No matter what its form, terrorism is not a war, but an internal security problem. It is the duty of the elected political administration to ensure the country's public order and security by fighting against terror. The Interior Ministry fulfills this duty through the vehicle of the police and the gendarmerie that operate under its direction and supervision. In case police units under the command of the Interior Ministry prove insufficient, assistance can be received from military forces upon a request from the civilian authority. While all these steps are being taken, the responsible bodies and authorities for domestic security issues are the interior minister and governors and district governors, who are his local representatives. Receiving temporary assistance from security forces when police units prove to be insufficient is not a desirable situation in democratic administrations, and it should be a final resort. However, even under these circumstances, domestic security issues do not become a military duty. Granting the right to military forces to make an immediate intervention into the incidents is against law according to the Protocol on Cooperation for Security and Public Order (EMASYA), and it is an unacceptable situation.
It is said that the subordination of the gendarmerie to the Interior Ministry is only on paper and that the Turkish Armed Forces (TSK) holds the real authority. How will this problem be solved?
In Turkey the gendarmerie has a military infrastructure, and no civil supervision mechanism has been established on the regional or national level. Also, because of its uniform and status, the public perceives the gendarmerie as military. Today's most vital subject is making the security forces -- the TSK, police, gendarmerie, coast guard and intelligence agencies -- transparent by bringing them under civilian supervision and holding them accountable.
So what you're saying is that without first coming to this understanding there's no meaning in leaving the initiative to civil authorities either.
No, this isn't exactly what I wanted to say.
The fight against terror should be carried out by domestic security units who are supervised by civilian authorities even they fall short of being sufficient. This means that at the very least, military tutelage must be downgraded a measure. It is necessary to restructure the gendarmerie, which has a military infrastructure and is not supervised, to have the rural police identity again. Similarly, the police should be saved from a military institutional structure and a perceived similarity to military service, and it should be restructured in compliance with democratic standards, making it open to civilian inspection and participation.
Isn't one of the law's hands tied by the struggle with terror?
Above all, the struggle with terror must be conducted within the framework of principles like the rule of law and human rights. The principles that must be adhered to in the fight against terror within a democratic society are not preferences or luxuries -- there are necessities, and they are mandatory. Abiding by these principles must not be perceived as remaining weak in the fight against terror or making concessions in it. Just the opposite, abandoning these principles in the fight against terror is in a way supporting terrorism. The violation of laws by a state and its security forces for any reason will place the state in a troubled situation. The spread of law violations will not only harm the legitimacy of the state but will also allow the Kurdistan Workers' Party (PKK) to gain legitimacy and rightfulness.
For this reason the desire for the Emergency Rule Region (OHAL) and similar measures breed an end result which supports terrorism.
How do you evaluate Chief of General Staff Gen. İlker Başbuğ's stance?
Başbuğ speaks against the president and prime minister. He says to the political cadre, "Look here, a national state is this. Secularism is this. And these are the constitutional references for these." Most importantly, he determines the boundaries of freedom of expression. He says okay, there is freedom of expression, but things that put the state at risk are not contained within freedom of expression. He says that the Kurdish question is a topic that endangers the state and so cannot be discussed. You are the political administration. He says this to you. How can you sit there without reacting? How can you accept a general explaining concepts to you that must be examined from the perspectives of political science and law? The president and prime minister sit and clap. This kind of thing cannot be. Başbuğ went to Diyarbakır. He spoke with the accredited civil society organizations. They asked him about the subject of amnesty. He said there will be no such thing. It is a grave thing for the chief of staff to enter into the realm of Parliament's authority, to put forward a political decision on a completely political issue. And nobody made him answer for it.
Is it for that reason that Başbuğ was later able to gather the force commanders behind him and speak in such a threatening manner?
In a way that needs to be questioned legally, morally and consciously, the prime minister chose to perpetuate his power by coming to terms with the generals who are at the top of military bureaucracy. He did not show the courage to ask them to account for the youth who were killed in the Dağlıca and Aktütün attacks. He perpetuated the submissive and concessive attitude he had shown in the Şemdinli case for the sake of law and democracy. Acting in this way, the prime minister lost his power. From now on, the complaints he makes about antidemocratic moves against him and his party will have no validity. Başbuğ's latest speech can never be accepted in a democratic country. No matter what post a general occupies, he cannot threaten society and the media by taking force commanders behind him.
This is a grave situation. If the prime minister supports this, if the president, the media, universities, the judiciary and the public don't speak out, this means that they all deserve it.
If the documents published in Taraf hadn't pertained to Aktütün, would this situation have rightly incurred Başbuğ's anger?
There is no justification for Başbuğ surpassing the political administration and threatening society and the media in a manner reminiscent of Sept. 12. In fact the president should have responded to this. Is it Taraf's publication or the General Staff's explanation that can be trusted? We'll see this in time. Those establishments which do not desire to be transparent or clear may run into unfair criticism as well. The way to prevent this is not by threatening those who put forward the criticism or by constraining freedoms, but by being transparent and accountable. If not, democracy will not emerge from this picture. A lawful state will not emerge. The rule of law will not emerge. Freedom will not emerge. Freedom of expression will not emerge. A solution to the Kurdish problem will not emerge. Başbuğ is constantly stealing the president's role. For this reason we can't expect too much from the Ergenekon trial. Militarism has touched every layer of society. The Ergenekon trial doesn't look like it will purge this militarist system with its present scope.
Is it possible for the generals to stand trial for planning a coup?
As far as Şener Eruygur goes, if you attempt to do this, you'd have to open a trial against the other force commanders as well. According to the diaries, Eruygur didn't do the planning alone. There are three other force commanders. No action has been taken concerning them. In that regard, I wouldn't guess that there will be any trial opened into Sarıkız and Ayışığı. You're planning a coup. Four people do the planning. But beneath that, there's one person in charge. It can't be done with just four people coming together. There must certainly be extensions into the lower ranks. It's necessary to [pursue this] in that direction as well. This time, there are also persons on active duty and promoted, commissioned officers. The government knows this. When it found out, it did nothing. The prime minister, in his latest statement in which he stood behind Başbuğ, ended up saying that we will not do anything that the military doesn't want.
In that case, the possibility of a new constitution being created while the Ergenekon trial continues has also decreased.
Yes, it has decreased. The government revealed its bid to write a new Constitution. It made a committee write a technical Constitution whose articles were set earlier, and it started to debate the draft Constitution in itself. This method was extremely wrong. This is how coup perpetrators wrote the current Constitution. Actually, society should have debated it first, matured it and set its principles. Then, the government would carry them to the Parliament. It failed to do this. Around which principles will society live? A definition of citizenship over ethnicity does not necessarily have to exist in a Constitution. If you are going to do this, then do not make an emphasis on the Turkish identity. How are you going to empower local administrations? For instance, the Italian Constitution is very explicit. It says the state empowers the local administrations and grants them administrative autonomy. You know there are 20 administrative regions in Italy. Political unity of Italy was not maintained easily, either. Administrative autonomy strengthens political unity.
Surely the administrative sovereignty you refer to does not mean that a concrete region must be given to the Kurds!
I'll explain this. The issue of autonomy is not a mechanism that shakes the unitary nature of the state, but one that strengthens it. For example, in Spain there are 19 autonomous regions. They have administrative autonomy along with political autonomy. What I've referred to is just administrative authority. This must be detailed in the Constitution: An autonomous administration can exercise this, this and that authority. For example, the people of a region will decide upon an economic model for their region and vote on it. In case of the exploitation of an energy resource in their region, again, the people of the region will make the decision. The autonomous parliament will perform these duties. Of course things like external affairs, financial politics and judicial decisions will remain duties of the central government. You could also give administration of the police to the regions -- that's how the world works now. Local regional administrations employ the police. You can dictate these things in the constitution. These authorities belong to the central government, and this and that authority rests with the defined regions of administrative autonomy. The rights and responsibilities of the people that live in these regions will be determined with their administrations. And this will strengthen our political unity as well.