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 Şemdinli 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 Elkatmış, 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. Elkatmış 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 ‘Yeşil’; 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 İstanbul 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 Öz, 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. Elkatmış recalled a similar case in Susurluk: Teoman Koman, then chief commander of the gendarmerie forces and former undersecretary of the National Intelligence Organization (MİT), 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. Elkatmış 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.
Elkatmış 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.
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