Jail for Journalists Publishing Leaks, Immunity for Intelligence Personnel
April 29, 2014
The new MİT law gives the agency carte blanche while punishing those who seek to expose its wrongdoing. Punishing journalists for leaks, immunizing intelligence personnel from prosecution, and allowing data collection without limit are measures that should be repealed.
Emma Sinclair-Webb, senior Turkey researcher

(Istanbul) – A new law on Turkey’s National Intelligence Agency greatly increases its surveillance powers while threatening journalists who expose its abuses with prison terms, Human Rights Watch said today. The law would decrease state accountability, media freedom, and the right to privacy. Several of its key provisions should be amended without delay because they violate Turkey’s obligations under international human rights law and domestic laws.

Under the law, journalists and editors who publish leaked intelligence material are liable to jail terms of up to nine years. The agency, known by its Turkish acronym MİT (Milli İstihbarat Teşkilatı), can exempt from prosecution personnel who violate human rights in the course of their duties. The law also gives the intelligence agency unfettered access to private data without a court order.

“The new MİT law gives the agency carte blanche while punishing those who seek to expose its wrongdoing,” said Emma Sinclair-Webb, senior Turkey researcher at Human Rights Watch. “Punishing journalists for leaks, immunizing intelligence personnel from prosecution, and allowing data collection without limit are measures that should be repealed.”

The “Law Amending the Law on State Intelligence Services and the National Intelligence Agency” (Devlet İstihbarat Hizmetleri ve Milli İstihbarat Teşkilatı Kanununda Değişiklik Yapılmasına Dair Kanunu, no. 6532) was approved by parliament on April 17, 2014, and entered into force on April 26 after the president approved it. The opposition Republican People’s Party (CHP) has said it will apply to the Constitutional Court to seek annulment of the law.

The new law amends a 1983 law (no. 2937) defining the activities of MİT. It is the latest in a series of laws the Turkish government has introduced this year that increase the reaches of state power without due safeguards against abuse and that erode the rule of law, Human Rights Watch said.

The Turkish government has publicly justified the new law as a move to put the negotiations between the Turkish intelligence services and Abdullah Öcalan, the leader of the armed Kurdistan Workers’ Party (PKK), on a secure legal footing. The talks are continuing in the context of a peace process to end the decades-long conflict between the Turkish state and the PKK, and to further the human rights of Kurds. The government says the new MİT law authorizes the intelligence agencies to negotiate with armed groups without the risk of prosecution under Turkey’s existing terrorism and other laws.

After MİT talks with senior PKK leaders in Oslo became public knowledge in 2011, a prosecutor tried to prosecute the MİT chief, Hakan Fidan, for conducting the negotiations. In response, in February 2012 the government passed a law to make prosecution of the head of the agency dependent on the prime minister’s permission. The government claims that attempts to criminalize such talks by means of prosecution were an effort to sabotage the peace process. 

“The new MİT law goes much beyond the legitimate aim of furthering the peace process,” Sinclair-Webb said. “The answer to the misuse of Turkey’s overly broad terrorism laws is to reform those laws, not to grant immunity to intelligence personnel.”

The measures Human Rights Watch identifies as most problematic from a human rights perspective lie in three main areas:

The law undermines media freedom, freedom of expression, and the right to access information pertaining to the public interest.
The law increases maximum sentences for whistleblowers convicted of leaking information about intelligence activities and MİT personnel. For the first time, it also sets prison sentences ranging from three to nine years for journalists and editors who publish or broadcast leaked information or documents “by radio, television, Internet, social media, newspapers, publications, books or all other media and by means of all forms of written, visual, audio and electronic mass communication tools.” 

By penalizing the broadcasting of information on subjects about which there is a legitimate public interest, the law directly challenges the right of the public to hold the government and its institutions accountable by means of a free media.

The law gives MİT personnel effective immunity from prosecution.
Under the law, if a complaint is filed that would involve intelligence personnel, the prosecutor would have to notify the head of the intelligence agency. If the intelligence agency “states or documents” that the allegations of wrongdoing were “connected to [MİT] duties and activities,” the investigation would be blocked and the agency employees involved would have immunity. The public prosecutor thus has no authority to initiate direct criminal investigations or subject the agency’s activities to judicial scrutiny in the event of allegations of wrongdoing.

The risk is that intelligence personnel who commit serious human rights violations – for example, torture – in the course of their duties can be granted immunity from prosecution. The law also effectively places the intelligence agency above the law since the agency decides if its own activities should be prosecuted.

Another provision states that anyone who carries out “every kind of demand” in the context of duties and powers given to the MİT will not be held legally or criminally responsible for fulfilling the request and that the MİT law overrides all other laws in this respect. This sends a further signal that MİT is above the law and could also immunize abuse.

Under the new law, the head of the intelligence agency and agency personnel would not be allowed to testify on matters relating to MİT duties and activities, and would only be allowed to appear as witnesses in trials “in cases that make it obligatory in the state’s interests” with the permission of the head of the agency in the case of MİT personnel, and of the prime minister in the case of the MİT head.

This further limits the possibility of criminal investigation into wrongdoing since the agency itself or the prime minister can reject a prosecutor’s summons to witnesses on the vague grounds that it is not “obligatory in the state’s interests.” This tightens an existing provision in the previous law.

Wide data collection would violate privacy.
The new law gives the intelligence agency sweeping powers to amass private data, documents, and information about individuals in all forms without the need for a court order from public bodies, banks, archives, companies, and other legal entities, as well as from organizations without legal status. The law makes provision of all such information to MİT obligatory and overrides provisions in any other laws or bylaws limiting the provision of such data.

Another provision of the new law makes it a criminal offense punishable with prison sentences ranging from two to five years to prevent the MİT from carrying out its duties and exercising its authority. So failure to supply private data requested by the agency could be interpreted as obstructing the agency from carrying out its work and could be punishable with a prison sentence.

Turkey’s laws in general fail to enshrine any clear limitations on the scope of retention and access to private data. The new MİT law fundamentally undermines the right to privacy by permitting the agency unfettered access to data without judicial oversight or review.

Furthermore, the new law permits the agency to “collect data relating to external intelligence, national defense, terrorism, international crimes and cyber security passing via telecommunication channels” without specifying the need for a court order. Beyond this measure, with the authorization of the head of agency or deputy heads, the law gives the intelligence agency the authority to intercept calls overseas, and calls by foreigners and pay phones, and analyze and store the data.

Provisions in Turkey’s new MİT law contradict recommendations made by the United Nations special rapporteur on freedom of opinion and expression, Frank La Rue. In his 2013 report to the UN Human Rights Council, La Rue stated, “Use of an amorphous concept of national security to justify invasive limitations on the enjoyment of human rights is of serious concern.”

“Surveillance of communications must only occur under the most exceptional circumstances and exclusively under the supervision of an independent judicial authority,” La Rue wrote. “Legal safeguards must ensure that surveillance is necessary and proportionate,” limit the “nature, scope and duration” of surveillance, and provide remedy for unjustified intrusions into privacy.