The first time a structure, that defines itself as the “deep state”, was brought to court was in 2008, with the Ergenekon Trial. Run after all those years, and believed to have connections with many murders by unknown assailants, the deep state appeared before us as an organization allegedly founded by a group of detained retired soldiers and journalists. Its most important mission was claimed to be to overthrow the AKP government. As it was understood from the indictment of the lawsuit, some of those detainees called themselves “Ergenekon” and “Deep State”, but still considered the lack of an organization as a shortcoming. (3) What appeared to be an incredibly strong deep state was a group of former soldiers, retired due to disability or separated from the army, and an 84-year-old concession holder of a newspaper. The detainees also included General Veli Küçük, who has connections with the Gendarmerie Intelligence and Counter Terrorism Organization (JITEM) and the “Susurluk Incident”, an event that made the deep state visible, along with Colonel Arif Doğan and some mafia members.
The Susurluk crash in 1996 was one of the few cases leading to the surfacing of the deep state. In those days, what was meant by the “deep state” concept, which became a legendary structure and a known fact andwas described by columnists with references to the secret missions in James Bond films, was the adoption of illegal methods and association with criminals by state officials for a struggle that was thought to be difficult to embrace within legal limits. (4) Years after the Susurluk Affair, in 2009, some of the defendants in the Ergenekon case were speaking of themselves as members of the deep state; however, until then the Turkish state still could not investigate the legendary organization JITEM. (5)
Since 2009, our daily lives were suddenly occupied with the TV news about police raids and court-house images related to the Ergenekon, Oda TV, Sledgehammer (Balyoz), Internet Memorandum (İnternet Andıcı), Revolutionist Headquarters (Devrimci Karargah), KCK (Union of Communities in Kurdistan) cases initiated by specially authorized courts and prosecutors established by a decision of the High Council of Judges and Prosecutors (HCJP). Some of these cases were linked to the Ergenekon case. The idea that “Turkey was cleared of the deep state” started to circulate. The questions of whether the deep state has been liquidated by the new order established by AKP and whether this structure is the most urgent problem of the state or not still remain.
Ergenekon and the Gladio
The subject of the lawsuit process, Ergenekon is claimed to be an organization established during the Cold War period. We know that it is linked with the anticommunist stay behind an organization that appeared in Europe in different forms after the Cold War known as the Gladio. (6) After many years, a former head of military counter-intelligence accused the right-wing militants and the CIA of bombing the Bank of Milan, which killed 16 people in 1969. (7) According to the claims, this secret paramilitary network against the “threat of communism” was planned in 1949 by the USA, UK and Belgium. (8) Despite many claims and clues, it was never proved that a stay behind paramilitary unit was established in Turkey; however, some books on the deep state have claimed that the name of the organization in Turkey was Ergenekon. (9) Counter-insurgency discussions during the 1970’s, attacks on 1 May 1977 by armed men who were never captured, “commandos”, the perpetrators of many violent events before 1970, political assassinations of many intellectuals and the Kahramanmarafl massacre… all these events meant that Turkey was, in a way, going through a hot war during the climate of the Cold War. The fact that this conflict environment was created to lay the ground for a coup was among the widely accepted ideas.
The 1980 military coup has been analyzed in many different ways. The general understanding is that the military coup was a kind of shock that prepared Turkey for the new right wing policies; the social and political organization was shaken by direct military force and the state of emergency regime under the supervision of the USA and the labor force was tamed in accordance with the demands of the bourgeoisie. The coup government suspending the minimum requirements of the rule of law and the integrity of political life should not be, of course, confused with the “deep state”. The “depth” of the deep state simply originates from a lack of “openness” and the execution of “covert operations” by using the power and authority of the state. The military coup, on the other hand, is the use of physical power by the army to regulate the political sphere. Although triggered by the raison d’état, it is not a deep state operation, but a materialization of the army’s power over the political system.
From the early 1990’s until 1996, a large number of bombings and unsolved murders of members of the Kurdish movement once again raised the debate over the deep state and counter-insurgency. One of the victims of the Susurluk crash, Abdullah Çatlı, was the youth leader of the pre-1980 anticommunist movement. This was not a coincidence. His companions in the anticommunist movement were with him in the events that took place after 1990. The fact that this team murdered 7 young members of the Worker’s Party of Turkey (TİP) in their homes before 1980 had come about by chance. Staff utilized in the struggle against communism in the 1970’s was the same staff used in the fight against the Kurdish movement in the early 1990’s. Various events have shown that neither the collapse of the Eastern Bloc nor the anticommunist organization becoming meaningless ended the deep state operations in Turkey or in other parts of the world. Yet, any government wanting to use force outside the legal limits would probably be in need of covert operations. This is the very reason why the deep state is a privilege unique to the state holding the monopoly on violence; it occurs when the state or a group within the state wants to use force beyond the existing legal system.
Cases of criminals employed by the state or state operations outside the legal system usually become uncovered when an accident happens or different groups struggle for power. In Spain, 10 people, including the Minister of the Interior and the State Secretary of Security were tried and convicted of attempting to murder, and in some cases murdering, 28 members of ETA by hiring assassins of an organization called the “Antiterrorist Liberation Groups” (Grupos Antiterroristas de Liberación, GAL). (10) Policies pursued by Britain against the IRA were often expressed as illegal actions of the state, covered with great care. (11) It was a plane crash that brought light to the sale of arms by the USA to Iran, the subject of a US-led arms embargo. The USA then diverted the money to provide arms to the Contras fighting the socialist government in Nicaragua, although the funding of the Contras by the government had been prohibited by Congress. During the court process, these people stood trial as offenders of crimes against the state. The reason why the offenders broke the law was surely beyond gaining personal interest. They were motivated by the raison d’état.
Deep State results from concerns of legitimacy
It seems extraordinary that the AKP government is investigating the deep state and even bringing it to court; however, we know that the “deep state” metaphor is used to describe the executive power that clandestinely operates as a part of the state to do illegal actions. If this secret operation somehow comes out in the open, no one assumes responsibility for it. In this sense, the deep states usually have a legitimacy problem; and the problem is solved by remaining secret. The reason is that the illegal actions of the deep state or the modern constitutional state taking its roots from raison d’état are, by necessity, unique to the state of being within a liberal democracy paradigm.
What legitimizes the raison d’état as the concern of the state for self-protection usually appears when law cannot become a direct instrument of political power. If the principles of the liberal parliamentary paradigm that can be summarized as the elements of a democratic rule of law (12), i.e. separation of powers, independence of the judiciary, immunity of the legislature, democratic legislative process fed by the public sphere, legal scrutiny of the executive power, etc., have, to a certain extent, limited the powers of the executive, the ruling power may still try to secretly exert force and become a deeper executive, carrying out some of the actions clandestinely. In that sense, although it may seem ironic, the deep state is a part of the modern constitutional state and the liberal democracy paradigm.
The concerns of being deep came down to a minimum level during the military coup period as the legislative power was taken by force by those who seized power, judiciary oversight disappeared, extraordinary security and judicial measures were taken against social opposition and freedoms of press and political organization were suppressed in order not to leave room for political opposition. During this period, the relationship between law and the struggle of the social powers was disconnected. Law was no longer a framework limiting the ruling power that should be passed over; it was controlled, almost entirely, by the political power. Nevertheless, the social base may not leave the government free to do whatever they want, and may be ready to struggle; in that case, many people can be killed, though not out in the open by a firing squad, but in a rather discrete way, like in Argentina, by way of disappearances. If force is applied rather arbitrarily, without having to justify it, the state does not have to become deep at all, as it can still exert its power without applying to the deep state.
In the case of GAL, the social democrat government of Spain, instead of using assassins, it had its own staff to kill members of the opposition and kept those people in prison for many years without reason. So, how meaningful is the deepening of the state in this case? Today, if there is a supra-governmental detention center like Guantanamo, where people can be kept without any charges for years before they see a court and if the USA can hold the right of killing whomever they want because he/she is a terrorist (13), is it necessary to operate secretly and without assuming any responsibility? On the contrary, in most of the cases, the fundamental method of establishing law is first to use force and make this new type of law de facto applicable. (14)
Holding the majority of seats in Parliament for 10 years, and having managed to establish a new period and stability in Turkey, the steps taken by the AKP government related to the power of the legislature, judiciary independence, judiciary oversight over the executive, freedom of press and political freedoms may give us an idea as to why the AKP government will need discrete operations, in other words the deep state, in terms of what was explained above. “A strong government as a guarantor of stability”, can suppress all opposition powers by using methods that are legal in appearance but questionable when it comes to being lawful. With the restructuring of the judicial system after the referendum, the state turns law-enforcement and the judiciary into instruments, without any embarrassment at all. So, the system seems to be operating legally, but it is far from being lawful. The state may not seem to be “deep” but it does not need to be deep anyway. It looks like the nomos of this relatively “surfaced” state will be worse to deal with than that of the deeper one.
The state where the concern of legitimacy has disappeared
Though it seems odd, not only the periods of coup, but authoritarian parliamentary systems also have a functioning legal regime. South Africa during the Apartheid period and Germany during the Nazi period had laws, courts, judges and law-enforcement bodies. Nazi Germany did not use the deep state to kill thousands in concentration camps in a planned and systemic way. Under such circumstances, a strong state that is not deep can be more restrictive than the deep state in terms of rights and freedoms. In “A Dry White Season”, a film based upon Andre Brink’s novel of the same name, we hear the following lines from Marlon Brando: “legal struggle does not mean anything as whenever I win in court, they change the laws so that I cannot win”. This line from the movie summarizes the basic characteristic of the system that we perceive as “law”. Examples from different periods in different countries show that states already operate around certain procedures, certain nomos.
This situation takes its roots from the arbitrariness of being able to define what crime is and what it is not, in the field of implementation of laws that seems to be endless. As the structure of the state possesses extraordinary powers to define crime and the criminal, the conditions based on which an action will be deemed a crime are worthy of further study. For instance, in 1960, in the USA, a group of white college students on a school trip to Alabama with their lunch had dinner at a restaurant where black people also had lunch. This led to their detention, on the charges of distorting public order. Later, they were found guilty by the judge and were arrested. (15) The legal methods developed by the law enforcement bodies against social opposition are also very interesting. On the other hand, creating fake evidence and treating actions that do not constitute crime as if they are requires effective law-enforcement and a judicial system that co-operates with the government, in other words, a weakened principle of separation of powers, which is a necessity of liberal democracy.
Over the past few years, the illusion that “the deep state is being tried in Turkey” has been gaining ground. Here, what is meant by the “deep state” is usually the alleged coup attempts and social movements against the AKP government. It is hard to know whether such coup plans were made or not. Needless to say, this period has allowed AKP to take over power, to set up a new hegemony and to make others accept its political leadership. However, in the post 9/11 period, marked everywhere in the world by the return of the authoritarian states and extraordinary jurisdiction procedures motivated by security paradigms, which also became ordinary topics for everyone in Turkey, it is ironic, to say the least, to run after the deep state.
These days, a writer can be kept in prison for months because the book he is about to publish is found on somebody else’s computer. Destruction of the book by deleting it from the computer must be one of the creative practices of law enforcement officials, who are polices that operate under the prosecutor. The quality of the evidence is challenged by expertise reports. Specially authorized prosecutors and courts established by the HCJP are facing objections as they are stepping outside their mandates (16) and functioning almost similar to the arms of a “deep judiciary” against any person or group in opposition. This new judiciary order is not only limited to the issues related to the security of the state, but also interested in investigating the municipalities of the opposition parties. There is no doubt about the Kafkaesque characteristic and the extraordinary legal order of the environment created by the specially authorized prosecutors and courts. If you have the authority to fill the prisons with all the opposition groups, the need for clandestine operations and deep state will surely lessen.
As it was already pointed out by Selçuk Kozağaçlı, the Chairman of the Progressive Lawyers Association, the case files are crammed with documents that cannot be qualified as evidence. (17) The files are so thick that it is almost impossible to have an idea of their content. The remains of the deep state of a certain period are being tried together with today’s opposition groups. It is surprising how often claims are raised about actions to overthrow the AKP government recently. While “deep state” is liaised with the Ergenekon, Sledgehammer and Oda TV cases, minds are still confused about the connection of the murder of Hrant Dink with the deep state. About the latter, the court decided that there was no connection with a secret organization, and even if there were an organization, its aim was to overthrow AKP and that was the reason why they murdered Hrant Dink. The claims can even go as far as to say that the massacre in Uludere was a deep state operation against AKP. (18)
The irony in such a legal order lies in the fact that we are still dealing with a deep state image that, according to some, is related with the Committee of Union and Progress of the Ottoman. It seems that the state that has already reached the surface, has created and normalized an incredible judicial system, and it is trying to cover the gaps in its legitimacy with the deep state image and by playing the victim. Meanwhile, the government completes its own institutionalization over this antagonism. When the specially authorized prosecutor started to investigate the undersecretary of the National Intelligence Organization, a law was passed, within only a few days, obliging the specially authorized prosecutor to receive the permission of the Prime Minister before investigating the operations of persons appointed by the Prime Minister.
Now, the power to control possible deep state operations is directly held by the Prime Minister, which creates a limitless area of immunity. When the Susurluk scandal broke out, Carl Schmitt was the name referred to, to define the operations of the deep state. He is more suitable to days like these when the state implements the laws as arbitrarily as it wishes without hesitation. Democracy as the other pillar of the government is, in the mildest sense of the word, based on a Schmittian understanding of democracy. So, what is authoritarian and following the Schmitt tradition is not the deep state of Turkey, but the visible state, which we describe with the metaphor of the tip of the iceberg.
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Ayflegül Sabuktay is a researcher and writer from Turkey. Her PhD thesis on the Susurluk Incident, analyzed from the perspective of law-politics theory was published by Metis Books in 2010. She published an article on the same subject in 2009 in the Crime, Law and Social Change Journal.
This article was published in the first issue of Perspectives –Political analysis and commentary from Turkey
All footnotes can be found in the pdf version.