As discussed in a prior post and two comments thereto, the United States and Turkey continue to be involved in discussions regarding Turkey’s request for the U.S. to extradite to Turkey a Muslim cleric, Fethullah Gulen, who now is living in the U.S.
The subject also came up with respect to U.S. Vice President Joe Biden’s August 24 visit to Turkey: first in the White House Press Secretary’s August 22 press briefing; second in Biden’s August 24 joint press conference with Turkey’s Premier Binali Yildirim; third in Biden’s August 24 joint press conference with Turkey’s President Recep Tayyip Erdogan; fourth at the White House Press Secretary’s August 24 press briefing; and fifth at the State Department’s August 24 Daily Press Briefing.
White House Press Briefing
On August 22 White House Press Secretary Josh Ernest addressed Biden’s then upcoming visit to Turkey. He said that Biden will “indicate our continued, ongoing support for our allies in Turkey. It’s a country that obviously is going through a lot. This is a country that was subject to a failed coup attempt earlier this summer. That is a coup attempt that was roundly and publicly condemned by the United States government. And we continue to strongly support the democratic government of our allies in Turkey” and “the steps that Turkey has taken to make contributions to our counter-ISIL effort.”
As it relates to Mr. Gülen, the Press Secretary stated, Biden “will say what President Obama [already] has communicated directly to President Erdogan, which is that there is a treaty, an extradition treaty, that’s been on the books between the United States and Turkey for more than 30 years. And the United States is committed to following the procedure and guidelines that are outlined in that treaty.” This includes “extensive coordination between officials at the Department of Justice and their Turkish counterparts.” But extradition is “not a presidential decision. There is a process that is codified in that treaty and in U.S. law. . . . But . . . [the decision] will be guided by the evidence and . . . by the rules and procedures that are codified in the extradition treaty and in United States law.”
Biden and Yildirim Press Conference
Upon his arrival in Ankara, Biden and Turkey’s Premier Yildirim held a joint press conference. To the right is a photograph of them.
Biden emphasized, “President Obama asked me to come to Turkey today in order to remind the world of the paramount importance that we place on the relationship between our nations as allies, as partners, and as friends. It is as an ally and a long-term friend of the Turkish people, that I’m here today to express in no uncertain terms the continuing, unwavering support of the United States for Turkey in the wake of last month’s attempted coup.”
“So on behalf of President Obama and the people of the United States, I want to once again, Mr. Prime Minister, extend to all the people of Turkey our condolences to the families and loved ones who were injured, but particularly those who lost a loved one. We pay tribute to not only their bravery but their incredible resolve, their incredible commitment to their democracy, to ensuring that their country remains strong, vibrant and resilient, and democratic.”
“The . . . people of the United States of America abhor what happened, and under no circumstances would support anything remotely approaching the cowardly act of the treasonous members of your military who engaged in this behavior. We did not have prior knowledge. We did not support. We immediately condemned. And we continue, as we did before the coup, to stand shoulder to shoulder with not only the government of Turkey, but with the people of Turkey.”
“I understand the intense feeling your government and the people of Turkey have about [Mr. Gulen] . . . . We are cooperating with Turkish authorities. Our legal experts are working right now with their Turkish counterparts on the production of and the evaluation of material and evidence that needs to be supplied to an American court to meet the requirements under our law and the extradition treaty to extradite Gulen. And we’re going to continue to do so as you continue to bring forward additional information. We have . . . no interest whatsoever in protecting anyone who has done harm to an ally. None. But we need to meet the legal standard requirement under our law.”
“[U]nder American law: No President of the United States has authority to extradite anyone on his own power. That only an American court can do that. Were a President to attempt to do that, it would be an impeachable offense. But we have no reason to do anything other than cooperate with you and take every substantiating fact and make it available to the extent it exists to an American court.”
Premier Yildirim in his remarks welcomed the Vice President and recognized that “the relationship between Turkey and the United States has a very long history, a very deep-rooted history. Therefore, from time to time, there might be incidents that tend to damage this relationship. But on both sides, of course, we should never allow this to happen.”
“[T]his heinous coup attempt was, in our opinion, orchestrated and instructed by Fethullah Gulen. And as per the treaties that we have between our two countries, the necessary steps should be taken with a view to his extradition to our country. And we have taken the initial step in that process. And you have had very frank remarks for the Turkish people and also for our government . . . of vital importance for a sound functioning of this process, and we are grateful to you for those remarks.”
“So having a [U.S.] technical team . . . here in Turkey, and talking to our judges and prosecutors here on the ground, is a clear sign from your side that you’re taking this very seriously, that you’re attaching great importance to this. Therefore, I would like to once again thank you for being sensitive about the matter.”
“The process of extraditing the head of the terrorist organization that was behind the attempted coup, if it can be expedited and accelerated, and if we can have more cooperation in the process, I think the grief and grievances of the Turkish people, of the Turkish nation, will be remedied to a certain degree, and their overall sentiments about the issue will go back to being more positive.”
The Premier repeated this last thought in later responding to a journalist’s question: “I am sure that the healthy and sound functioning of the processes with regard to the extradition of the head of the terrorist organization will also, in a short amount of time, return or rectify the people’s perception back to their normal, positive situation.”
Biden and Erdogan Press Conference
At the joint press conference after their private meeting, Biden opened by expressing his “personal condolences and the condolences of my country for the brutal, unconscionable attack in Turkey. . . .The attempted coup went to the heart of who your people are — principled, courageous and committed. And for a people who have struggled so long to establish a true democracy, this was, from my perspective and the President’s perspective, the ultimate affront. So my heart goes out to not just the government, but to the Turkish people.” He added, “the United States stands with our ally, Turkey. We support the people of Turkey. And our support is absolute and it is unwavering.” (Above is a photograph of the two men.)
“That’s why the United States.” Biden said, “is committed to doing everything we can to help [Turkey] through your justice [system] hold all those responsible for this coup attempt while adhering to the rule of law. . . . [O]ur American experts are on the ground, here in Ankara, meeting with your people, closely coordinating with our Turkish counterparts to evaluate and gather the material with regard to Turkish requests to extradite Gulen, in accordance with our bilateral extradition treaty.”
As “powerful as my country is, as powerful as Barack Obama is as President, he has no authority under our Constitution to extradite anyone. Only a federal court can do that. . . . If the President were to take this into his own hands, . . . he would be impeached for violating the separation of powers.”
The U.S. has no “reason to protect Gulen or anyone else who, in fact, may have done something wrong. . . . [T]his case, like all others, is going to have to be assessed by an independent federal court along with evidence backing it up. That’s what we’re working on together now. And it takes time to work an extradition request, but there should be no doubt that we’ll continue to work closely with the Turkish government as this process unfolds.”
In response to a journalist’s question at the end of the press conference, Biden repeated these thoughts about extradition. “We are a nation of laws. We are bound by a constitution. . . . The constitution and our laws require for someone to be extradited, that the court in the United States has to conclude with probable cause to be extradited. Not only do we apply that standard as it relates to extradition; we apply that standard every day we do our country.”
Biden continued, “we have a team of our lawyers and experts who were here in Ankara yesterday, sitting down with your experts on the judiciary and your prosecutors, saying, give us the data we need in order to be able to bring these to a court of law that will say, yes, we must extradite [Mr. Gulen]. . . . What possible interest could the United States have in wanting to protect someone who, in fact, met the standard under our law of being deported?”
Until yesterday, the Vice President added, “[T]here has been no evidence presented about the coup. When you go to an American court, you can’t go into a court and say, this is a bad guy, generally. You have to say this is a guy or a woman who committed the following explicit crime. That’s what we’re working with President [Erdogan] right now to gather the evidence that will establish in a court of law probable cause to believe he may have done this. We are determined — we are determined to listen to every scrap of evidence that Turkey can provide or that we can find out about.”
“We will continue to abide by [our] system. And God willing, there will be enough data and evidence to be able to meet the criteria that you all believe exists. We have no reason to shelter someone who would attack an ally and try to overthrow a democracy.” (Emphasis added.)
President Erdogan thanked the Vice President for coming and saluted him with “all my most heartfelt emotions.”
Erdogan then stressed that the “leader of the FETO terrorist organization [Gulen] needs to be extradited to Turkey as soon as possible. That is the first measure that needs to be taken. There are references made to the verdicts to be issued by courts, and we have previously submitted all of the folders regarding the actions engaged in by these terrorists before July the 15th. And right now, we are amassing certain documents pointing out to their involvement in this failed coup that took place on July the 15th.”
Under the U.S.-Turkey extradition treaty, Erdogan said, “those individuals should be taken into pretrial detention, they should be arrested, and throughout the trial they need to remain in custody. This person [Gulen], however, is currently managing and directing the terrorist organization where he lives. They are present in more than 170 countries around the world, and they are present through school associations and other sorts of educational institutions. . . . [He] is still providing interviews to media outlets in the United States. Some journalists are being taken into the Pennsylvania residence, and he is still continuing his actions around the world, and he’s shaping his actions for the future using these outlets. That’s why it is very important for him to be contained through pretrial detention, which is actually part of the bilateral extradition treaty that was signed between our two countries, which we should not ignore. And that is something I especially feel that I need to remind you of. And I’m confident that the United States will take the necessary measures to cater to our expectations in that regard.”
Another White House Press Briefing
Biden’s “God willing” comment came up in a question at the Wednesday afternoon, August 24, White House press briefing. Josh Earnest responded that the “point that the Vice President was making is that this is not going to be a decision that is made by the executive branch. The decision about the evidence that Turkey has compiled is one that will follow the guidelines of the extradition treaty, and will ultimately involve a federal judge who will have to render [his or her] . . . own judgment, [his or her] . . . own assessment of the situation consistent with U.S. law and consistent with the terms of the extradition treaty.”
The White House Press Secretary also said that the U.S. has “concerns about the Turkish government’s activity since the coup have been a reflection of our longstanding concerns about protection of human rights inside of Turkey. Turkey is a valuable NATO ally, and we’re able to work effectively with them on a variety of issues in a way that advances the interests of both our countries. But even in the midst of our progress in pursuit of those shared priorities, the President has periodically raised concerns directly with President Erdogan, particularly on issues like freedom of the press inside of Turkey.” Nevertheless, “since the coup, we’ve understood the significant concerns that have been raised in Turkey and the need for a thorough investigation to get to the bottom of what exactly happened.”
With respect to Mr. Gülen, “there is a well-established process, and both the United States and Turkey are engaged in that process. That process is governed by an extradition treaty between the United States and Turkey that’s been on the books for 35 years or so. . . . [T]here is a rather high bar, a high evidentiary standard that’s required. So considering that the coup took place — what was it — six or eight weeks ago, I think it’s understandable that Turkey wouldn’t be able to build such a robust case, if there is one to be presented, against Mr. Gülen in such a short period of time.”
In addition, “Turkey has longstanding concerns with Mr. Gülen’s activity and they have presented significant evidence to the United States, and Department of Justice officials are carefully reviewing that evidence. In fact, Justice officials are in Turkey this week, meeting with their counterparts to discuss and review that evidence. What we have said all along is that the terms of the treaty and the law on the books here will ultimately determine how this is resolved.”
State Department Daily Briefing
The Department’s spokesman said “our legal experts are working right now with their Turkish counterparts to evaluate the material, the evidence that needs to be supplied to meet the standards for extradition under our treaty. . . . As we’ve said, Turkey has provided materials relating to Mr. Gulen. We continue to analyze those materials. Under our laws, extradition requests must be assessed by an independent federal court along with the evidence backing it up. . . . It always takes time to work through an extradition request. However, there should be no doubt that we will continue to work through this working with our Turkish counterparts.”
Vice President Biden, President Obama and other U.S. officials consistently and rightly have emphasized that Turkey’s requested extradition of Gulen will be handled in accordance with the U.S.-Turkey extradition treaty and U.S. law, which were explained in a prior post and which were illustrated in February 6 and August 22 posts about the ongoing proceedings for extradition of a former Salvadoran military officer to Spain for the criminal case regarding the 1989 murder of the Jesuit priests.
Turkey’s refusal to make a public acknowledgement of this reality cannot be based on ignorance of its extradition treaty or U.S. law. Instead it has to be based in part on Erdogan’s wanting to appear to the Turkish people as a strong leader and fomenting Turkish public pressure for the extradition. Perhaps too it is based upon Erdogan’s apparently increasing belief in his own power to control everything.
In any event, at least one Turkish journal had a very negative reaction to Biden’s remarks in their country. An editorial in Istanbul’s Daily Sabah stated, Biden “came all the way from the U.S. just to mention the importance of rule of law of his own definition.” He “parroted the same stale remarks Turkey has heard since July 15. . . . Unfortunately, Biden came and went without leaving a trace. His sly smile, insincere apology about not having come sooner and feeble remarks of friendship between the people will deservedly fall on deaf ears.”
The Daily Sabah editorial even claimed the U.S. was not abiding by Article 9 of the bilateral extradition by not detaining Gulen. That Article states, “The Contracting Parties shall take all necessary measures after the information and documents related to the request for extradition have been received, including a search for the person sought. When located the person sought shall be detained until the competent authorities of the Requested Party reach their decision. If the request for extradition is granted, the detention shall be continued until surrender.”
Yes, the editorial accurately quotes Article 9, but that Article states the obligation to detain arises only “after the information and documents related to the request for extradition have been received” (here, by the U.S.). The published reports indicate that some information and documents regarding Gulen have been provided to the U.S. by Turkey, but it is unclear if Turkey has completed that process. Moreover, as indicated above, the U.S. is meeting with Turkish officials to aid them in providing the necessary materials for the application.
The editorial also fails to examine Article 10(1) of the treaty, which provides, “In cases of urgency, either Contracting Party may apply for the provisional arrest or detention of the person sought before the request for extradition has been submitted to the Requested Party through diplomatic channels. The request for provisional arrest or detention may be made either through diplomatic channels or directly between the Department of Justice of the United States and the Ministry of Justice of Turkey.” Article 10(2) then goes on to list what needs to be in such an application. Public information has not indicated that Turkey has availed itself of this remedy.
Relevant here, but unacknowledged by the Daily Sabah, is the U.S. Attorneys’ Manual that covers the procedures for detention or arrests of persons potentially subject to extradition in these situations.
Therefore, the Daily Sabah editorial, in this blogger’s judgment, is not well founded.
 Press Briefing by Press Secretary Josh Earnest, 8/22/16.
 White House, Remarks by Vice President Joe Biden and Turkish Prime Minister Binali Yildirim at a Press Availability (Aug. 25, 2016); Reuters, Biden Says U.S. Cooperating With Turkey on Evidence Against Gulen, N.Y. Times (Aug. 24, 2016); Assoc. Press, Biden Calls on Turkey to Be Patient in Gulen Case, N.Y. Times (Aug. 24, 2016); Kraychik, Biden Apologizes To Turkey For US Constitution, Daily Wire (Aug. 24, 2016).
 White House, Remarks by Vice President Biden and President Erdogan of Turkey in Pool Spray (Aug. 25, 2016); Reuters, Biden Tells Turkey’s Erdogan: Only a Federal Court Can Extradite Gulen, N.Y. Times (Aug. 24, 2016); Reuters, Turkey Must Control Its Own Border, U.S. Vice President Biden Says, N.Y. Times (Aug. 24, 2016); Reuters, Turkey’s Erdogan Says U.S. Agreements Require Coup Suspect Arrest, N.Y. Times (Aug. 24, 2016); Wayne & Sink, Biden Met by Snubs as He Seeks to Mollify Turkey’s Angry Erdogan, Bloomberg News (Aug. 24, 2016).
 Press Briefing by Press Secretary Josh Earnest, 8/24/16; Reuters, U.S. Reviewing Turkey’s Evidence on Coup Suspect Gulen: White House, N.Y. Times (Aug. 24, 2016).
 U.S. State Dep’t, Daily Press Briefing (Aug. 24, 2016).
 See also Assoc. Press, U.S., Turkey at an Impasse Over Extraditing Muslim Cleric, N.Y. Times (Aug. 25, 2016).
 Editorial, Biden wasted a trip, Turkey wasted time, Daily Sabah (Aug. 25, 2016). Daily Sabah also published two articles about the alleged Gülinist involvement in the recent attempted coup. One is a special report on the subject. The other asserts that a prosecutor who has been arrested for membership in the alleged Gülenist terror group says that it first started plans to topple President Erdoğan in 2011, instigated two coup attempts in 2013 and an attempted assassination of Erdoğan in the recent attempted coup. (Turkey coup attempt of Gülinist explained in special report, Daily Sabah (Aug. 24, 2016); Karaman, Güllenist prosecutor says group has sought to topple Erdoğan since 2011, Daily Sabah (Aug. 24, 2016).)
 U.S.-Turkey Extradition Treaty, 32 U.S.T. 3111.
 U.S. Attorneys’ Manual § 9-15.700.
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New York Times’ Editorial Highlights the Challenges to the U.S.-Turkey Alliance
A New York Times editorial dated August 25 highlights the many challenges for the U.S.-Turkey alliance.
It starts with Turkey’s mixed motives in its military incursion into Syria with U.S. air support. The action seeks to punish ISIL militants while also keeping Syrian Kurds away from the Turkish border.
The U.S. and other Western countries are uneasy with the “growing authoritarianism of President Erdogan” and “his far-reaching crackdown on political foes after the [recent] failed coup.” The U.S. “slow response to Turkey’s demand for the extradition of Fethullah Gulen . . . has only heightened anti-American feelings in Turkey.”
Vice President Biden’s remarks this week in Turkey sought to dampen those anti-American feelings, but most U.S. officials believe “that Mr. Erdogan’s roundup of coup plotters looks like an attempt to silence any opposition, that Turkey has behaved outrageously in failing to stop conspiracy theories depicting the United States as a co-conspirator in the coup attempt, that Turkey has produced little evidence to warrant Mr. Gulen’s extradition and that Mr. Erdogan’s autocratic behavior is making him an unreliable ally.”
Editorial, A Complicated Alliance With Turkey, N.Y. Times (Aug. 25, 2016), http://www.nytimes.com/2016/08/26/opinion/a-complicated-alliance-with-turkey.html?ref=opinion