The Power of Law vs. the Power of Arms: The Turkish Judiciary's Test with the Coup.

• Author: Aydin, Huseyin
• Position: COMMENTARY

The Road to the Coup

The Fetullah Terror Organization (FETO), (1) which used to be seen as a civilian religious formation for many years before being recognized as a terrorist organization by the judicial verdict, had taken an overt position in the Turkish political struggle in the period leading up to the coup attempt. Having openly supported the opposition bloc in the June 7, 2015 general elections, the organization hoped that the pressure on it would diminish with the election results. However, the political picture which emerged with the AK Party's (Justice and Development Party) landslide victory in the following early elections on November 1, 2015 produced a shock effect on the Gulenist organization. The fact that the AK Party would govern the country for another four years was a total nightmare for the Gulenists. The strengthening of the political will which had already been conducting the struggle against the organization-particularly for the preceding two years- signaled that a stronger push would continue for another four years. That could lead to an irreversible weakening of the organization and eventually its elimination.

With a renewed and far-reaching vigor, the AK Party, led by President Recep Tayyip Erdogan, seemed determined to strike one final blow to the organization. The focus of the struggle has changed from the companies owned by the organization and its civilian-facade structures to discharging its cadres from the state, especially the Turkish Armed Forces (TAF). Preparations for the Supreme Military Council (2) in 2016 began in January, and were conducted meticulously based on information from diverse intelligence sources and the participation of many public institutions.

The government's targeting of Gulenists nested in the TAF was a big threat for the organization, because those members formed the backbone of the organization's overall structure. All of its other structures were positioned around the organization's network in the TAF, and the elimination of this backbone could lead to the dissolution of the organization. The organization's network within the TAF was secret; any threat to it constituted a red line for the organization. No intervention into this confidential zone was to be allowed, and overstepping this red line was not to be allowed by any means. The organization lacked any legitimate means to remove this threat; thus, the organization's nested TAF members became determined to use any means to eliminate the threat that targeted the organization's very existence. Therefore, the organization organized a coup d'etat, as there was no other way out.

Meanwhile, within the international context, Turkey's diverging foreign policy preferences had led to discontent among the Western bloc regarding Turkey's foreign policy orientation. Considering that this could provide a convenient ground for acquiring international support, the Gulenists decided to abolish the democratically-elected government and to overthrow President Erdogan.

The State of the Turkish Judiciary during the Coup Attempt

FETO had infiltrated not only in the TAF but also within Turkey's judicial institutions. In fact, its presence in the judiciary was so strong that it was surpassed only by that in the security bureaucracy. When the organization believed itself to have sufficient power, it did not hesitate to exploit all the institutions at its disposal to reach its political, economic and social objectives. Accordingly, the organization prioritized using the judiciary as a means to reach its ultimate goals. The operation planned and conducted through the judiciary against Hakan Fidan, the Chief of the National Intelligence Organization (MiT), on February 7, 2012 was unprecedented in terms of its method and possible outcomes. Similarly, one of the most striking examples of instrumentalizing the judiciary was the unauthorized investigations on the then Prime Minister Erdogan, his family and certain government officials on December 17-25, 2013. The plan seemed pretty simple: in appearance, the investigations would be implemented by judges and prosecutors under the guise of high legitimacy, but in fact, the organization would reach its goals through its members nested in the judiciary.

The October 12, 2014 elections of the Supreme Council of Judges and Prosecutors (SCJP) set the most critical threshold in the struggle against the organization. If it were to win the SCJP elections, the organization would lead in the power struggle and, under judicial guise and with high legitimacy, it would eliminate the threats posed by the executive and judicial branches. At the same time, for the authorities fighting against the organization, losing the elections would eventually mean the failure of the struggle.

The power of the organization within the judiciary was no secret. However, there was no consensus on the number of Gulenist members in the judiciary. Estimates varied from 2,000 judges and prosecutors to 3,500-4,000, out of a total of approximately 14.000 judges and prosecutors. Some did not hide their affiliation with the organization, but most chose to practice of taqiyyah, (3) namely the concealing of their affiliation in order to blend in. For this reason, it was impossible to know the exact number of FETO members. Under these circumstances, in order to eliminate the risks regarding the SCJP election results, judicial officers who were not affiliated with the organization and who opposed it acted in concert to enter the SCJP elections with a joint list of candidates. Thus judicial members with various worldviews disregarded their differences of opinion and past problems...