CIVILIAN COURT JURISDICTION OVER THE MILITARY

C O N F I D E N T I A L SECTION 01 OF 02 ANKARA 000107

SIPDIS

E.O. 12958: DECL: 01/21/2015
TAGS: PGOV PINS PHUM MARR TU
SUBJECT: CIVILIAN COURT JURISDICTION OVER THE MILITARY
OVERTURNED

REF: ANKARA 66

Classified By: Acting POL Counselor Jeremiah Howard, for reasons 1.4(b,
d)


1. (C) SUMMARY: Acting on a petition filed by the staunchly
secularist opposition Republican People's Party (CHP),
Turkey's Constitutional Court January 21 overturned the June
26,2009 law that sought to establish civilian courts'
jurisdiction over military personnel accused of crimes
against state security, national defense or the
constitutional order. The court's decision left in place the
provision of the law that prohibits civilians from being
tried in military courts, which had not been a subject of the
CHP petition. Although details of the court's decision
remain unclear, it may impact ongoing civilian legal efforts
to hold military members accountable for their alleged past
inclination to subvert the ruling Islamist Justice and
Development Party (AKP) government. Ahmet Iyimaya (PROTECT),
an AKP MP and Chairman of the Constitutional Reform
Committee, told us privately he believes the Constitutional
Court had been under extreme pressure from the military to
make the ruling. He implied military officers want to
protect themselves because of emerging media reports about an
aborted coup plot code-named "Sledgehammer". Even so, the
Turkish General Staff (TGS) opposed the law since its
inception, long before the most recent coup plot reports.
The long-running and increasingly muddy rugby match between
the military and their secularist allies, and the Islamist
civilian government, is straining the court system and other
national institutions, distracting the attention of the
country's political and military leadership and contributing
to the unease and polarization of the Turkish population.
END SUMMARY.


2. (U) The Constitutional Court January 21 overturned the
June 26, 2009 law that sought to establish civilian courts'
jurisdiction over military personnel accused of crimes
against state security, national defense or the
constitutional order. The unanimous decision resulted from a
challenge to the law by the staunchly secularist opposition
CHP, which argued the law violated Article 145 of the Turkish
Constitution. (Note: Article 145 establishes military court
jurisdiction over military personnel regarding offenses
connected to execution of their military duties.)


3. (SBU) The ruling comes amidst increasingly emotional media
reports about an aborted coup plot codenamed "Sledgehammer,"
which allegedly would have sought to establish a pretext for
martial law by fomenting war with Greece and terrorizing the
Turkish population through bombings of public venues, notably
mosques. The reports connect Sledgehammer to the developing
Ergenekon case. The reports have been vehemently rejected by
the TGS as fabrications. Nevertheless, the repeated
allegations of senior flag officers' inclination to subvert
the Islamist AKP government are eroding popular respect for
the military. Recently, a group of lawyers and human rights
activists staged a protest to oppose "military coups". On
January 21, another activist group filed a criminal complaint
against the military for an alleged attempted coup against
the government.


4. (C) Rear Admiral Yildirim, the Deputy Chief of
Intelligence of the Turkish General Staff, told us January 21
(before the verdict was released),that he expected the law
to be overturned by the court on legal grounds. Like most
senior military officers and many of the secularist opponents
of Erdogan's AK Party, Yildirim argued the law was an
inappropriate and unconstitutional attack on one of the
military's prerogatives. In a media briefing on January 22,
TGS Legal Counselor General Hifzi Cubukcu said, based on the
decision, the military personnel files currently at civilian
courts would be returned to military courts. Sadi Cayci, a
retired military judge, told us that, from a legal
perspective, the court had no choice but to overturn the law
as it clearly contravened the constitution. He expects the

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AKP to push for a constitutional amendment to circumvent the
court's decision.


5. (C) AKP MP and Chairman of the parliament's Constitutional
Reform Committee Ahmet Iyimaya (PROTECT),a close confidante
of both Prime Minister Erdogan and President Gul, appeared
uncharacteristically shaken by the court's decision during a
private meeting with us January 22. While repeatedly
insisting that our meeting be "off the record," Iyimaya
stressed his belief that the court had acted "under the
barrel of a gun." Iyimaya contends senior TGS officers
pressured the court to invalidate the law because of the
rising popular distrust of the military and the Sledgehammer
coup allegations. He found the court's unanimity
particularly suspect, claiming several justices disagreed
with the decision. He said the dissenters had been
intimidated because their names would be known to the
military and their lives could be in danger. (Comment: The
TGS staunchly opposed the law since its inception, long
before the sensationalist Sledgehammer allegations surfaced.)


6. (C) Iyimaya said ongoing civilian court cases against
military defendants, such as Ergenekon, would continue since
they were opened before the law was changed. He worries the
cases will be overturned on appeal based on the
Constitutional Court's decision.


7. (C) Iyimaya said the only way forward for the AKP -- if it
wants to proceed with its democratic reform program -- is to
amend the constitution immediately. The AKP is developing a
package of amendments to present to the parliament. The most
important two amendments would be to Article 145, a renewed
effort to assert civilian court jurisdiction over the
military; and to Article 69, to make it impossible to close
political parties without parliamentary approval. He worried
the AKP's attempts to expedite the referendum process and
other reforms would also be overturned by the Constitutional
Court. He also fears the opening of another closure case
against the AKP. Iyimaya solicited public USG support for
the AKP's democratization projects.


8. (C) COMMENT. The long-running and increasingly muddy
rugby match between the military and its secularist allies on
one side, and the Islamist civilian government on the other,
is straining the court system and other national
institutions, while distracting the attention of the
country's political and military leadership, and contributing
to the unease and polarization of the Turkish population.
The court's decision undermines one of the strongest concrete
steps the government had taken in 2009 to improve its human
rights record, align itself with EU standards and hold
military officials acountable for civilian crimes.
Jeffrey

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