New intelligence law 'may put Turkey’s security at risk'

Global and regional developments necessitated a transformation of the national intelligence agency, yet these changes need to be in line with democratic standards, Cevat Öneş warns.

The area of responsibility of Turkey’s National Intelligence Agency (MİT) has been widened, with the agency taking on a central role in the country’s defense and security objectives, according to former MİT Deputy Undersecretary Cevat Öneş. However, the agency is not yet ready to carry this extra weight based on its current structure, Öneş told the Hürriyet Daily News. “There will be challenges in trying to carry this type of weight with the MİT’s current structure,” he said.

Why has the government felt the need to amend the MİT law?

The law was enacted in 1983 by the military regime of that time. But Turkey has since changed; it started reforms to make the country more democratic starting in the 2000s. Turkey’s strategic position also gained a different dimension with developments in the Middle East, as well as the opening to the Balkans, Africa, and the Far East. Debates then started about the structure of the MİT. It had been focused on internal security, but with the debates about Turkey becoming a global actor and a regional power, the MİT needed a new mentality for its mission and authority.

The attempt to summon the MİT’s undersecretary for questioning over talks with the outlawed Kurdish Workers’ Party [PKK] also brought about the issue of the protection of the MİT’s members. Also, incidents such as the searching of the trucks in Hatay-Adana and the debates about developments in Syria made a legal change in the MİT urgent. In addition, the claims about the existence of the Gülen movement within the security apparatus and the judiciary, and the allegations about a plot against the government, created the right environment to change the law to facilitate the MİT’s activities, as well as to protect its head and its members.

Does a more proactive foreign policy necessitate a new structuring of the spy agency?

In parallel to its increasing importance, the area that Turkey could become influential and play a role in has grown. The rise in risks due to regional developments has directly influenced the MİT, necessitating changes in the agency.

Are we to think that because Turkey got so involved in Syrian crisis, this necessitated an amendment to the law that would facilitate the MİT taking action abroad?

First of all, a need to provide protection to the MİT’s head and its members emerged. In the past, this protection was provided secret bylaws. But there appeared the need to strengthen the legal guarantees by endorsing the powers given to the MİT through a law, which in the past was provided through bylaws. The chaotic situation that had come about through claims of separate structures within the security department created the need to enable the MİT to be more efficient and to have stronger legal bases.

In several countries internal intelligence and external intelligence are separate; in Turkey they are now united in one institution, the MİT. In the past, the MİT focused on internal intelligence. However, external developments necessitated a change. The problem is that this change needs to be in parallel with Turkey’s democratization process, and the democratic credentials of the new law are debatable.

Can you elaborate?

The limits of the authority of the MİT are open ended. The delimitation of authority is open to interpretation of what is said and this creates a hesitation about transparency. Let’s take the provision where it says the MİT fulfills the tasks given by the Cabinet on issues pertaining to external security, the fight against terrorism and national security. The fact that there is talk about external security, a very wide concept; talk about the fight against terrorism, which implicates the use of operational authorities; and talk about national defense, again a very large concept, shows that the MİT’s sphere of mission has been enlarged. This means that the MİT can be given tasks that would require operational authority, especially on an issue such as the fight against terror. But there is no clear cut provision about such authority. So we are faced with a situation where the MİT is provided with an open-ended authority and an open-ended mission.

There is no transparency regarding the limits to the MİT’s authority and mission. At this stage, we can say that a more detailed definition will be made through secret bylaws. But it is also very important to remember that that framework should stay within democratic standards. It is very important that the limits to the MİT’s operational powers are defined in a very transparent way. The delimitation should be known to the public; this is very important in a democracy.

So do you think that the MİT’s operational capabilities have been increased?

In developed democracies, the operational authority of intelligence agencies is very restricted. Uniting administrative and operational authority creates risks as far as human rights are concerned. We are talking about the ability of the MİT to make a decision and to execute an operation with its own members.

What are the other areas that could be problematic?

In addition to external security, the fight against terror and national defense, issues such as international crime and cyber security also come within the sphere of responsibility of the MİT. All this increases the weight on its shoulders. It will take time for the MİT to be able to properly carry this weight and requires long term plans.  There will be challenges in trying to carry this type of weight with the MİT’s current structure. The MİT has become a central point in Turkey’s general defense and intelligence conception. There is a wide structure that has come under the control of the MİT. In view of the responsibilities taken, I believe there will be challenges to successfully implementing these new missions.

So you argue that although the MİT’s weight has been increased in the general defense and security conception, this could create risks?

We are now facing a MİT-centered security conception. Risks could emerge if a structure that is not ready undertakes such a huge mission. The fact that there are no definitive limits to its operational authority means that if the authority is used with a loose interpretation, the situation could lead to risk factors against the country. In addition, the bond between the monitoring mechanism and the transparency on limiting powers needs to be stronger. There are gray areas in that bond. There are shortcomings regarding efficient monitoring mechanisms. The fact that a monitoring mechanism has been established in Parliament is very important and historic, as it opens such a course for the first time. However, when you read the mandate of the monitoring commission you do not find the word “monitoring” even once.

So this means parliamentary monitoring will remain only on paper.

There is no clarity in the parliamentary monitoring mechanism. In fact, state secrets will not be included in the reports. If this is too narrowly interpreted it may mean that there will be no monitoring, especially as far as the budget and operational works are concerned. Another issue is that unlimited power is given to the MİT in the checking of communication. Providing absolute authority to request information without a court order from individuals and institutions, and from the private sector and corporate bodies, is very problematic as far as fundamental freedoms are concerned. The use of an intelligence agency’s powers cannot be left down to the good intentions of individuals or governments.

So you say that the new law opens the way for abuses?

We may come across a situation where the law is restrictive as far as individuals’ security and fundamental freedoms like freedom of communication are concerned. All institutions are required to provide the information and they have no right to debate whether that request is legal or not. But those providing the information do not bear any legal responsibility for providing the requested information. It is very important for the MİT to acquire information in a speedy way, but it is also important whether this effort is within its legal mission or not. For that we need efficient executive and judicial mechanisms.

The law also seems to bring total immunity to MİT members.

Legally, they don’t hold responsibility, so prosecution is prevented. This creates a situation of absolute irresponsibility and this needs to be debated within the framework of a country seeking democratic change. The law makes it very difficult for judicial monitoring, in fact it totally closes the door on it.

Are we creating a monster?

We should not call it a monster, but the process that started with the Dec. 17 investigations led to a chaotic situation, and the claims of illegal structures within the state really had an impact on politics. The need to create a structure that the political authority could trust, with the cadres it could trust, led to this new law. But in this new structure it is very important to see to what degree the requests to the MİT from politicians, and the activities of the MİT within the framework of those requests, abide by legal and democratic principles.

At this point there are some concerns. If those concerns are not alleviated by the secret bylaws that will be enacted by the Cabinet, if activities are not defined in a cleat cut way, this creates not only risky situations as far as MİT members are concerned, but it is also possible to see problems that will affect Turkish politics. We have to question all the works that could be done through political relations in a structure where the monitoring mechanism is weak.

Do you argue that MİT could become open to politics?

This type of structure and lack of responsibility could lead to a structure that is open to politics. A structure open to politics is not compatible with democratic intelligence agencies. In all developed countries, intelligence is always under the influence of politics, but there are degrees to it. Weak monitoring mechanisms and open-ended authority leaves the door open to those acting for ideological or political aims. This means risks, and this could harm the MİT’s institutional structure.