Despite amendments, intel bill worrisome, identical to regime change

A parliamentary commission on Monday approved a proposal to make changes to 15 articles in a controversial bill on the National Intelligence Organization (MİT), but the draft is still worrisome for various reasons, according to legal experts and opposition politicians, who are concerned that Turkey is moving away from democracy and the rule of law.

According to the changes, MİT will receive the permission to wiretap phone conversations of individuals from a judge at a high criminal court, to be determined by the Supreme Board of Judges and Prosecutors (HSYK). In other words, the intelligence organization will no longer need a decision to be unanimously made by a board of judges to conduct phone hacking. The approval of a single judge at a high criminal court will be enough to authorize MİT to wiretap phone conversations.

Under the changes, MİT will be able to conduct operations against possible overseas threats designated by the Cabinet. MİT will not undertake any responsibility for such operations; the entire responsibility will fall on the political power in the country, namely the government.

Nationalist Movement Party (MHP) deputy Özcan Yeniçeri said the Justice and Development Party (AK Party) government has suspended all rights and freedoms and moved away from democracy, saying that “we are going through a serious regime change. We are moving toward monarchy.” According to Yeniçeri, the government is no longer able to rule the country so instead, it is engaged in efforts to change laws in order to sweep corruption claims and investigations under the carpet. “They are ignoring the constitution, laws, personal rights and freedoms; they are establishing a one-party state,” he claimed.

The changes in the MİT bill have received strong criticism both from the public and opposition parties. Critics complained the draft gives extraordinary powers to the intelligence organization, including more scope for wiretapping and legal immunity for MİT officials. Some critics said Turkey will move toward becoming a “mukhabarat [intelligence] state” if the draft is passed in Parliament.

Erdal Aksünger, a deputy from the Republican People’s Party (CHP), said the changes were cosmetic to make the draft look “agreeable. …The most striking change was a so-called decrease in the maximum penalty to be given to journalists for publishing MİT documents. Our constitution says the press is free. But with this [draft] law, the press will no longer be free,” the deputy stated.

Aksünger described a change in the draft law that mandates the approval of only one judge to allow MİT to wiretap phone conversations as a scandal. “MİT will not wait for a court to make a decision if they want to wiretap. The HSYK, which is already subordinated to the justice minister [with the newly adopted HSYK law], will cooperate with judges [to issue required permissions are given to MİT],” he stated.

The draft, which was passed by the Internal Affairs Commission on Sunday, will be sent to Parliament’s General Assembly later this week for discussion and voting. The government is expected to adopt the draft as soon as possible before Parliament closes to allow political parties to complete their preparations for the local elections, slated for March 30.

According to Aksünger, MİT will fall outside the jurisdiction of the judiciary if the MİT law is passed. The intelligence organization will transform into an institution belonging to the prime minister. The organization will do whatever the prime minister says,” he said.

The government has also amended an article in the intelligence bill which would have made the prime minister in charge of the National Intelligence Coordination Board (MİKK). Now, according to the change, the MİT undersecretary will preside over the board, which will convene once every three months to discuss intelligence-related issues. The participants will include the MİT secretary-general, the chief of intelligence of the General Staff, the undersecretaries of ministries and other participants invited by the MİT undersecretary, who can call an emergency meeting if need be. The decisions of the MİKK will be binding for all state institutions.

Retired public prosecutor Sacit Kayasu has challenged the legality of the draft MİT law. “With the broad authority to be vested in MİT, we will no longer need the law or courts. MİT will do everything on their behalf. We are moving away from democracy [with the newly passed laws]. The [draft] law is aimed at providing a legal guarantee for MİT,” he stated.

In addition to that change, the government has also decreased the maximum penalty for journalists who publish highly classified MİT documents from 12 to nine years. A correspondent, writer, editor or publisher will now face a prison sentence of three to nine years if he or she publishes a confidential MİT document. The three-year minimum penalty for the same crime remains unchanged. Critics say this article is designed to deter journalists from whistle-blowing.

Under the changes, courts and prosecutors will be able to request from MİT only documents related to state secrets and spying. They will not be able to request any other document from the intelligence organization. MİT will have unfettered access to the archives and databases of every ministry and it will be able to collect any and all data from citizens. The draft law also requires private companies to hand over consumer data and technical equipment when requested.

According to retired public prosecutor of the Supreme Court of Appeals Ahmet Gündel, the draft MİT law is aimed at providing legal immunity to MİT members. “MİT members may commit crimes. We saw many examples in the past. We found that the perpetrators of unsolved murders were MİT members who engaged in unlawful practices. The government should not make a law that will block the law from functioning. If you allow a certain group of people to be accountable for their wrongdoings, then you will allow them to engage in arbitrary practices,” he stated, adding that the draft law contains many problematic articles that may encourage MİT members to use their authority for wrongdoing.

In addition, persons who contribute to intelligence services and their family members will benefit from protective measures only with MİT agreement. The government also amended an article in the draft MİT law which stated that MİT officials can only be tried at one particular criminal court in Ankara. After the change, officials can be tried at other high criminal courts.

Government plans to amend the MİT law have come at a time when two pro-government Turkish newspapers raised claims that thousands of people, including Prime Minister Recep Tayyip Erdoğan and MİT head Hakan Fidan, had been wiretapped by the police as part of different legal investigations.

CHP parliamentary group deputy chairman Akif Hamzaçebi complained that the government briefed deputies of the ruling Justice and Development Party (AK Party) about details of the draft MİT law but did not inform deputies of other parties. He also criticized heavy sentences to be imposed on journalists for publishing classified MİT documents. “The coverage of the [draft] law is so vast that the owner of a website, publisher, correspondent, writer or editor will be punished [if they publish a MİT document]. It is not possible to approve of such heavy penalties,” he said.

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