The key point
According to Chief Prosecutor Hadi Salihoğlu, the number of people whose phones are wiretapped and who are monitored is 2,280. However, other prosecutors involved in the investigation, Adem Özcan and Adnan Çimen, object to such large figures. They are saying only “40 or 50 people” have been tapped for the “Selam” organization investigation by court order upon the demand of the office of the prosecutor.
Which one is right?
In terms of law, both of them seem correct. Those who say 40-50 people have been tapped are talking about “judicial tapping.” Those who say almost 3,000 people were tapped must be talking about “intelligence tapping.”
The key point is the difference between “judicial” and “intelligence” tapping.
According to the Code of Criminal Procedure (CMK), if there is a “strong suspicion” of a crime regarding organized crime and if the only evidence to be collected is wiretapping, then security applies to the prosecutor. Note that the initiative belongs to the prosecutor.
The prosecutor obtains a wiretapping permit from the court and the Directorate of Telecommunication (TİB) starts the eavesdropping. At the end of certain periods, if evidence is found, a case is opened. If there is no element of a crime intercepted, then an official letter is sent to the person involved saying, “We have monitored you; you are not involved in crime; we are sorry.” The recordings and transcripts are demolished by the prosecutor. To not demolish them is a crime. (CMK, Article 137)
As a matter of fact, Peace and Democracy Party deputy Sebahat Tuncel said she had received such a letter from the office of the prosecutor.
As you can see, “judicial” monitoring is supervised by the prosecutor. If there is evidence of crime found at the end, a case is opened. If not, the recordings are demolished and the individuals are informed.
Intelligence tapping is not done according to the CMK; the prosecutor has no role, as a matter of fact, most of the time, he does not even know about it. These interceptions are done according to the National Intelligence Organization (MİT) law and according to the Law of Police Powers. The General Directorate of Security and the MİT obtain their permits directly from the judge without informing the prosecutor. The monitoring is again done by the TİB. After a certain period, the recordings should also be demolished, but contrary to the judicial tapping, the relevant people are not informed.
Because the prosecutor is not involved and since the monitored person will not be informed at the end, there is no judicial control over “intelligence” tapping. I am assuming that while large figures are pronounced in the last wiretapping scandal, the total number of direct and indirect people involved in both of these two types of monitoring have been mentioned. But there is a serious problem there: How were two different types of wiretapping combined in the same file? It looks as if this is the critical aspect that needs to be investigated.
This is also extremely important: It is possible to exceed powers and abuse of authority is possible in “judicial” monitoring, and this is very dangerous, but judicial control is still possible. In “intelligence” wiretapping, though, because there is no judicial control, it is much more open to the abuse of authority. If management of the police and the MİT are very sensitive to the rule of law, then the intelligence scandals can be lowered to the level of those at liberal democracies. In the cases where care for the law is inadequate, intelligence and wiretapping cause widespread social unrest.
Turkey is experiencing the chaos of illegal wiretappings on the one hand, and on the other hand, roundabout monitoring. The final decision in all suspicions and claims should be ruled by the independent and impartial judiciary.
Note to the prime minister
The prime minister is reported to have said that I was the business follow-up person of the Doğan Group. I have never demanded anything or held a meeting with the prime minister, Cabinet ministers, general managers, mayors, or any office of the government regarding the Doğan Group’s commercial activities.
If the prime minister is referring to my academic criticisms about such topics as separation of powers and the rule of law, he should have replied at the same level. However, he has chosen defamation.
Let me say this before anything else: In my view, universal law is higher than all political ideas.
Just as I have defended liberal democracy and freedom of the press in all of my columns, meetings and speeches while Erdoğan was in jail, when he truly was a victim, when his party was about to be shut down and a coup sought to topple his government, I have been defending the same principles in all my pieces, meetings and speeches while he is in power. I wish there was no such need and we had a democracy at the level of developed democracies, so that we would be able to prioritize other subjects like our colleagues in those countries.
Taha Akyol is a columnist for daily Hürriyet in which this piece was published on Feb 26. It was translated into English by the Daily News staff.