WASHINGTON—Turkey says the United States is legally bound by a treaty to immediately hand over Fethullah Gulen, the US-based Muslim cleric it accuses of plotting to overthrow Turkey’s government.
The US government says it can’t comply until Turkey can convince a judge its allegations against Gulen are legitimate. Any solution lies in the murky world of extradition, where the US criminal justice system overlaps with diplomacy and international law.
Unable to agree about the process, Turkey and the US are feuding over Gulen, who denies involvement in the thwarted July 15 coup attempt. It’s become the biggest irritant between the two strategic partners just as they struggle to reconcile their approaches to fighting the Islamic State (IS) group across Turkey’s border in Syria.
During Vice President Joe Biden’s visit to Ankara this week, the disagreement played out in unusually sharp and open fashion. Both Turkey’s prime minister and president publicly badgered Biden and said the US was harboring a terrorist, while Biden tried simultaneously to show sympathy and defend US legal traditions.
“It’s never understood that the wheels of justice move deliberately and slowly,” Biden said.
A look at the case against Gulen and how extradition works:
Why does Turkey want Gulen extradited?
Once an ally of President Recep Tayyip Erdogan, Gulen now lives in self-imposed exile in Pennsylvania. He’s associated with Sufism, or Islamic mysticism, and a founder of a movement known as Hizmet—“Service” in Turkish—that first expanded outside Turkey in the early 1990s after the Soviet Union fell. Gulen’s followers have established a network of schools around the world, and Turkey accuses Gulen of surreptitiously grooming students to eventually overthrow Turkey’s government. But US officials say privately they’re skeptical about claims that Gulen was involved in the failed coup.
Has Turkey provided evidence that Gulen should be returned?
Yes and no. Turkey has submitted extradition requests for Gulen, but senior Obama administration officials say those requests were based on alleged crimes prior to the coup attempt. Turkey’s justice minister says more evidence relating specifically to the failed coup will be submitted next week.
How does extradition ordinarily work?
Foreign countries seeking to prosecute individuals located in the United States must submit a formal request to the US government laying out evidence. The requirements are spelled out in a treaty between the US and Turkey, signed in 1979, that allows for extradition for crimes recognized in both countries.
The State Department and the Justice Department both have a hand in processing requests. The US Attorneys’ Manual says after the State Department receives the requests, the Justice Department evaluates them. Those determined to be legally sufficient are forwarded to the court district where the person being sought lives, so he or she can be brought before a magistrate.
The process generally unfolds in secret, with countries inclined to avoid tipping off subjects of their extradition requests. By publicly broadcasting their intent to seize Gulen, Turkey is “playing to the public arena” rather than standard legal protocol, said former State Department legal adviser Ashley Deeks, who teaches national security law at the University of Virginia.
How does the US decide whether Turkey’s request moves forward?
This appears to be where the understanding between the US and Turkey has broken down.
The treaty doesn’t lay out in detail how much discretion the US has to evaluate the merits of the allegation before turning the request over to a judge. So Turkey, having submitted a request, says Gulen should be turned over immediately—or “at least be detained, arrested and kept under surveillance” while the process plays out, Erdogan said on Wednesday.
But aside from the treaty, the US government also has constitutional and domestic legal requirements to worry about. That includes making sure any arrest warrants issued in the US meet the standard of probable cause.
“They’re not going to just pick him up and put him on a plane to Istanbul. That’s crazy,” said Douglas McNabb, a Houston-based lawyer specializing in extradition. Added Andrew Levchuk, formerly an attorney in the Justice Department’s Office of International Affairs: “It’s entirely up to us what steps we take.”