State secrets and Turkish press

I am afraid it has become a rule rather than an exception for Turkey’s governing Justice and Development Party (AK Party) to unveil a series of reform laws, all aimed at strengthening the rule of law, democracy and fundamental human rights in Turkey, only to later drop them from the agenda. There are too many urgent laws that the country needs to pass in order to qualify for what Prime Minister Recep Tayyip Erdoğan touts as “advanced democracy.” Yet the AK Party government continues to fail to act upon these drafts, abandoning them to dusty shelves of commissions it has full control over.

One example of such laws is the Law on State Secrets, an important piece of legislation that Turkey needs for transparency and accountability. The Ministry of Justice had prepared the draft as early as 2004, and the government promised to pass it then. It did not. The government submitted the draft again to Parliament in April 2008, during its second term. It failed again to push the draft through commissions and the floor. Now, already in its third term in power, the AK Party government sent the draft to Parliament in October 2011. Out of the two commissions that were authorized to review the bill before sending it to the general floor for debate, the parliamentary EU Harmonization Commission approved the draft on Jan. 5, 2012. The Constitutional Commission has yet to review it.

Who knows? Maybe the third time could be the charm, and we can finally have a law that officially defines “state secrets,” a term that has been heavily exploited in the past to cover up the shady practices of officials. Is it not amazing that we never had a law in Turkey that shed light on what constitutes a state secret and who determines that? This bill regulates how confidential information and documents are identified, preserved and disclosed as well as relevant liabilities and responsibilities.

If enacted, the bill would introduce a board that will decide, on the basis of certain criteria, which documents or pieces of information should be regarded as a state secret and thus not revealed to the public. The draft is certainly an improvement but has some shortcomings as well. I hope Parliament will address these concerns before it approves it. According to the bill, a newly established State Secrets Board (DSK) will be composed of undersecretaries from the justice, interior, foreign and defense ministries and chaired by the Prime Ministry undersecretary. The DSK will define the concept of state secret and classify documents accordingly. If there is a legal challenge to the DSK’s decision, a higher board called the Supreme Board of State Secrets (DSÜK), composed of Cabinet members from the same ministries and chaired by the prime minister himself, will have the ultimate authority to decide.

First, the bill allows secrets to be kept confidential for a maximum of 75 years based on a DSK decision. If no date is indicated, the secret documents will be released to the public after 50 years. This timeframe seems to me a bit too long. Second, the definition of “state secret” in Article 2 of the bill is too vague and leaves a lot of discretion to the DSK. It states that disclosing or providing access to pieces of information or documents that might undermine foreign relations, defense or the security of the country or that may pose risks to the constitutional order or foreign relations will be regarded as state secrets. Hence, there is a risk that the DSK may apply this definition in a much broader sense to bring blanket secrecy to government dealings. After all, all DSK members are from the government bureaucracy or politicians in the higher DSÜK.

It is encouraging, however, to see that the bill envisages judicial review of DSK decisions in the courts. The DSK may deny state secrets to the requesting courts by providing justification for it, which may in turn lead to a challenge in the court. The DSÜK will be the final arbiter in deciding whether or not to release information deemed a state secret. Other confidential information that is not classified as a state secret must be released to the courts. The bill allows public organizations and institutions to deny even these documents or information requested by the courts. But they have to provide a justification for it. If the courts do not agree with their justification, then such organizations will have to send them to the courts. This will also apply to the information and documents requested by prosecutors.

In the past, courts were prevented from having access to confidential information when a public agency in question simply invoked the state secret clause. With the new bill, the authority now rests with the DSK, and courts have one address to inquire about the level of secrecy for documents and information. The prime minister, the chief of General Staff, the ministers, the National Security Council (MGK) and other state organizations and institutions will be able to propose which documents and pieces of information within their area of activity should be recognized as confidential by petitioning the DSK.

My main worry over the current version of the bill centers on the harsh punishments brought upon media professionals. Article 10 of the bill states that those who violate the provisions concerning the preservation of state secrets will be sentenced to one-to-four years in prison under Article 258 of the Turkish Penal Code (TCK). This same sentence will be imposed on those who commit the same crime after their term in office ends. Here comes the worst part: It says that committing the crime through the press, media organizations or the Internet will be an aggravating circumstance and carries a sentence of one-and-half to six years.

Let’s be crystal clear. The government has a duty to protect confidential information and documents, while the press has a duty to inform the public about what its government is up to. The press and the government have different interests and competing allegiances. Now the risk is that the government may come after the press using this provision in order to apply censorship over information potentially damaging to the government. Since the DSK will be under the control of the government by its structure and composition of its members, there is no telling how far possible negative repercussions for investigative journalists will reach. Even in the US, where the first amendment right was long celebrated, The New York Times had to fight with the Nixon administration to publish the Pentagon Papers. To the dislike of the Obama administration, the paper even published State Department cables revealed by WikiLeaks last year. In contrast to the US, the culture of secrecy is much more prevalent in Turkey and works in many cases against the pressing public interest to know.

Last but not least is the confidentiality provisions of bilateral or multilateral treaties to which the Turkish Republic is a party. Article 5 of the bill excludes these treaties from the time limit provisions currently being considered. Instead, it invokes the principle of “reciprocity” and points to the terms of the agreement in question. Here I sense another risk to freedom of the press. Let’s say we find confidential pricing terms in gas deals with Russia and Iran or discover secret terms in defense agreements signed with Israel. Should we refrain from publishing these terms simply because they are state secrets? I don’t think so.

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