By David Ingram
NEW YORK, July 20 – A U.S.-based cleric accused of orchestrating Turkey’s abortive coup may be able to remain in the United States for years even if Turkey asks for his extradition, lawyers with experience in extradition proceedings said.
Turkey was preparing on Tuesday to make such a request for Fethullah Gulen, who lives in self-imposed exile in Pennsylvania but has a large following in Turkey, a spokesman for Turkish President Tayyip Erdogan said.
Erdogan’s government has accused the 75-year-old Gulen of being the mastermind of Friday’s failed military takeover in which at least 232 people were killed.
Gulen, a former ally-turned critic of Erdogan, has denied any role in the putsch and condemned it.
“I urge the U.S. government to reject any effort to abuse the extradition process to carry out political vendettas,” Gulen said on Tuesday in a statement issued by an affiliated group, the Alliance for Shared Values.
No formal request for his extradition had been filed, and it was not known what charges Turkish authorities would present if they did file one.
Turkey has filed a dossier in electronic form of material about Gulen with the U.S. government, White House spokesman Josh Earnest said. Erdogan and U.S. President Barack Obama discussed the status of Gulen during a call on Tuesday, the White House said.
Whether a crime was “political” is often in dispute in extradition proceedings, and it is likely to be an issue if Turkey demands Gulen be sent there, lawyers not involved in the matter said in interviews.
The U.S.-Turkey extradition treaty went into force in 1981 and covers offenses punishable in both countries by more than a year in prison. It does not cover offenses “of a political character,” although it does cover “any offense committed or attempted against a head of state,” the treaty says.
For an alleged offense by Gulen to qualify as political, “he has to say, essentially, ‘I’m not being accused of a crime but I’m being accused because I’m an enemy of the government,'” said Ronald Hedges, a former U.S. magistrate judge who presided at extradition hearings.
Clauses about “political offenses” are widespread in extradition treaties, and the idea behind them was to protect people “who justly fought back against their government oppressors to secure political change,” U.S. Circuit Judge Karen Williams wrote in a 2007 ruling about an extradition to Peru.
Most U.S. courts use a two-part test of whether an alleged offense was political, Williams wrote: Whether there was a political uprising at the time, and if so, whether the alleged offense furthered the uprising.
Turkey would face other significant hurdles if it requests extradition.
Lawyers at the U.S. State and Justice departments would review the request to determine whether the alleged offense falls within the scope of the countries’ extradition treaty and is a crime in both countries.
If yes, the request would go before a judge in the United States who would rule on whether probable cause existed that a crime was committed and that the accused person did it.
Technically, that judge’s ruling cannot be appealed, but like anyone being held by U.S. authorities, a jailed person facing extradition can file what is known as a petition for a writ of habeas corpus, saying their detention is unlawful and that they should be freed. Although such requests are rarely granted, appeals up to the U.S. Supreme Court can take years.
After appeals are exhausted, an extradition request would still need to get the approval of the U.S. secretary of state, who can consider humanitarian arguments and other non-legal factors.
“When it comes down to it, the decision’s going to be made within the political arena with the secretary of state,” said Douglas McNabb, a lawyer who specializes in extradition proceedings.