Democratic control over intelligence organizations

The ongoing row between the judiciary and the intelligence service has been under discussion with its reflections of politics and law in Turkey.

The row has another dimension which very few people have focused on so far and actually it has relevance regarding the enhancement of the quality of democracy. That is the question of maintaining democratic control over intelligence organizations, without causing damage to their operations which could be covert due to their nature.

Because of the covert nature of at least some of their operations in both the human intelligence (humint) and electronic intelligence (elint) areas, the transparency of the working of intelligence organizations might not be maintained as easily as other government institutions. But what could be observed in the recent example is that not only the transparency but also the accountability of the intelligence organizations in Turkey is far from perfection.

It’s not only Turkey’s National Intelligence Organization (MİT); there are problems regarding the control over the actions of police and gendarmerie intelligence too. During the 1980s and ‘90s there were scores of murder and kidnapping cases associated with them which could only be investigated now following the adoption of the new penal code in the framework of European Union legislative harmonization efforts.

The much debated articles 250 and 251 of the Turkish Penal Code (TCK) enabled prosecutors to open investigations and question public servants without the need to ask permission from their superiors. Yet Ankara was caught unprepared when an Istanbul prosecutor, Sadrettin Sarıkaya, wanted to question Hakan Fidan, the Undersecretary (the highest position) of MİT and four of his colleagues. The prosecutor wanted to question the intelligence officers because of the contact they established with the outlawed Kurdistan Workers’ Party (PKK) which has been waging a bloody campaign for the last three decades against Turkey.

But the MİT people had received orders directly from Prime Minister Erdoğan, with the aim of looking for ways to end the armed conflict.

Instead of amending the TCK in order to bring limitations to prosecutors and judges to make them less “arrest-easy,” the government decided to amend the MİT law and brought back the necessity of asking for PM permission to question MİT officers, thus further narrowing the possibilities of accountability.

The cure might be a Parliamentary Commission on Intelligence. But then one might ask whether the Foreign Affairs Commission brings more legislative control over foreign policy, the National Defense Commission over the Armed Forces, or the Interior Affairs Commission over the police and gendarmerie corps. The answer is not always positive.

The cure might be a parliamentary control over the intelligence organizations, with the condition that the election law could be changed to secure a fairer representation in Parliament (such as decreasing the 10 percent threshold, etc.) and the political parties law could be changed to free the wills of the members of Parliament from the absolute rule of the party chairmen over their parties.

More democratic control over the intelligence organizations could be possible by improving the quality of the democracy by upgrading the legal grounds of it.