Starting Points: judges

Apr 2, 2010

In Turkey, Proposed Changes Aim at Old Guard - NYTimes.com

By SABRINA TAVERNISE and SEBNEM ARSU

Turkey’s governing party moved this week to further reduce the power of the country’s staunchly secular old guard, submitting a series of amendments to Turkey’s military coup-era 1982 constitution, but passage is far from assured.

A number of the 26 amendments, if passed, would strike at a center of power for the old elite, the judiciary, by opening up its appointment process and expanding its membership.

For generations, Turkey’s judiciary has been controlled by a small class of hard-line secularists with a nationalist ideology, and the European Union, which Turkey hopes to join, has long urged that it be changed. The amendments require 367 votes out of 550 to become law, more than the governing party has. At the same time, the secular opposition party is having trouble gathering the 110 votes needed to kill the package in the Constitutional Court.

Some liberals criticized the measures for falling short of what is needed for deeper democracy in Turkey, while opponents of the party, Justice and Development, say the amendments are an effort by its leader, Prime Minister Recep Tayyip Erdogan, to consolidate his power. But supporters say the changes would start to bring Turkey in line with European countries.

“When you actually look at what the amendments propose, you see that all changes are copied from examples that function quite well in E.U. member states,” said Joost Lagendijk, senior adviser at the Istanbul Policy Center at Sabanci University and a former European Parliament member.

The current constitution, which enshrines Turkey’s secular mandate, has been amended several times since it was put in place, and most Turkish intellectuals argue that it should be scrapped entirely.

But Mr. Erdogan’s past efforts to change it have met with ferocious criticism. His party commissioned a new draft in 2008, which was written largely by a group of intellectuals, but was forced to scrap it after the secular opposition party filed suit against Justice and Development, which is Islamic-inspired, and a high court threatened to ban the party.

The government argues that the changes as necessary to break away from a troubled past of military coups and strong control of the state by a small coterie of unelected officials in the bureaucracy and the judiciary. Critics of the newly proposed amendments fear that the key changes — the way appointments are made to the constitutional court, the main watchdog of secularism in Turkey, and to the Senior Council of Judges and Prosecutors, responsible for judicial appointments and monitoring court officials — would damage Turkey’s founding principles. They do not trust Mr. Erdogan, whose party arose from a class of Muslim entrepreneurs that upper class secular Turks long looked down upon.

“The secular democratic state in Turkey is in danger,” said Sabih Kanadoglu, the chief prosecutor of the Court of Appeals, another powerful court.

Other changes include trying military officers in civilian courts and making it harder to ban political parties.

If Mr. Erdogan fails to pass the changes in Parliament, he has said he would bring them to a nationwide referendum, though some have criticized that approach as too black-and-white for the complexity of the amendments.

The disagreement follows a long-running divide in Turkish society between the broad sector of society that supports Justice and Development and secular Turks, who believe Mr. Erdogan is dismantling the old system to establish a new one that empowers him.

At the same time, liberals who were hoping for bolder change expressed disappointment. One of the principle authors of the 2008 draft, Ergun Ozbudun, a professor of law at Bilkent University in Ankara, Turkey’s capital, noted that the amendments offered no concessions to ethnic or religious groups, for example, whose rights in Turkey have been routinely abused.

“The desire deep in their hearts was probably to go more courageously,” he said by telephone, “but they are maybe afraid of the opposition and constitutional court.”

Nor do the amendments lower the steep 10 percent threshold that political parties must meet to claim seats in Parliament, which keeps out smaller political parties, including those that represent ethnic groups such as Kurds, out of Parliament one of the liberals’ central demands.

Ibrahim Kaboglu, a professor of constitutional law at Istanbul’s Marmara University, said the changes would expand the president’s powers, for example by allowing him to choose more members of the constitutional court, and he said he worried that the court, a bastion of secular resistance, would soon be packed with Mr. Erdogan’s allies.

“They seem to be in a rush to fill both institutions with judges and members who are closer to their political line to secure their future,” he said, referring to the Constitutional Court and the Senior Council.

Aug 16, 2009

Blogger's Case May Test Limits of Political Speech

By Peter Slevin
Washington Post Staff Writer
Sunday, August 16, 2009

CHICAGO -- Internet radio host Hal Turner disliked how three federal judges rejected the National Rifle Association's attempt to overturn a pair of handgun bans.

"Let me be the first to say this plainly: These Judges deserve to be killed," Turner wrote on his blog on June 2, according to the FBI. "Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions."

The next day, Turner posted photographs of the appellate judges and a map showing the Chicago courthouse where they work, noting the placement of "anti-truck bomb barriers." When an FBI agent appeared at the door of his New Jersey home, Turner said he meant no harm.

He is now behind bars awaiting trial, accused of threatening the judges and deemed by a U.S. magistrate as too dangerous to be free.

Turner's case is likely to test the limits of political speech at a time when incendiary talk is proliferating on broadcast outlets and the Internet, from the microphones of well-known commentators to the keyboards of anonymous netizens. President Obama has been depicted as a Nazi and slain Kansas abortion doctor George Tiller as "Tiller the killer." On guns and abortion, war and torture, taxes and now health care, the commentary feeds off pools of anger that ebb and flow with the zeitgeist.

Mark Potok, an editor at the Southern Poverty Law Center who tracks extremists and hate speech, says he thinks "political speech has gotten rougher in the last six months."

While federal authorities moved swiftly to stop Turner, scholars note that the line between free speech and criminality is a fine one.

Turner's attorney said the prosecutors overreacted.

"He gave an opinion. He did not say go out and kill," defense attorney Michael Orozco said last week after unsuccessfully seeking bail. "This is political hyperbole, nothing more. He's a shock jock."

That is not how U.S. Attorney Patrick J. Fitzgerald and his prosecutors see the case. They charged Turner, a blogger admired by white supremacists, with threatening the lives of three judges on the U.S. Court of Appeals for the 7th Circuit: Frank Easterbrook, Richard Posner and William Bauer.

Threats against federal judges are taken particularly seriously here: The husband and mother of U.S. District Judge Joan H. Lefkow were slain in February 2005 by a disgruntled plaintiff. He hid in a closet in Lefkow's home, waiting for the judge to return home, but her husband found him first.

Turner, 47, was first charged in June by Connecticut's Capitol Police with inciting injury after he urged residents to "take up arms" against two state legislators and an ethics official when the lawmakers introduced a bill to give lay members of Roman Catholic churches more control over their parishes' finances.

Later that month, federal authorities filed charges in the Chicago case.

Writing on his blog, which has since been taken down, Turner disputed a June 2 ruling by the three judges, who said a federal district judge had properly dismissed the NRA's lawsuit to overturn handgun bans in Chicago and Oak Park, Ill. It was a Supreme Court matter, the judges said.

Turner called the judges -- including Posner and Easterbrook, two of the nation's most prominent conservative jurists -- "unpatriotic, deceitful scum." He said the only thing standing in the way of the judges and "the government" achieving ultimate power "is the fact that We The People have guns. Now, that is very much in jeopardy."

Quoting Thomas Jefferson, Turner said, "The tree of liberty must be replenished from time to time with the blood of tyrants and patriots." He added his own words: "It is time to replenish the tree!"

Timothy McVeigh, who detonated the Oklahoma City bomb that killed 168 people in 1995, was wearing a T-shirt with Jefferson's words when he was arrested. Last week, a pistol-carrying protester outside an Obama town hall meeting in New Hampshire carried a sign that said, "It is time to water the tree of liberty."

On his blog, Turner cited another 7th Circuit ruling against white supremacist Matthew Hale, who once called for Lefkow's assassination. Turner also mentioned the Lefkow murders, although they were unrelated to the Hale case.

"Apparently, the 7th U.S. Circuit court didn't get the hint after those killings. It appears another lesson is needed," Turner wrote. "These judges deserve to be made such an example of as to send a message to the entire judiciary: Obey the Constitution or die."

Turner, who authorities said had three semiautomatic handguns, a shotgun and 350 rounds of ammunition in his North Bergen, N.J., home when the FBI arrested him, worked at times as an FBI informant. Although Fitzgerald's office says he provided occasional information on right-wing extremists, Orozco said he was recruited as an "agent provocateur" to get leftists to act in public against him and reveal themselves to the FBI.

First Amendment scholar Martin H. Redish said much of what Turner wrote is protected by the Constitution, including his declarations that the judges should be eliminated. But he said Turner probably crossed a line when he printed information about the judges, their office locations and the courthouse.

"I would give very strong odds on a thousand bucks that once he said that stuff, it takes it out of any kind of hyperbole range," said Redish, a professor at Northwestern University Law School. "I just don't see him being protected."

Michael Harrison, a former talk radio host and publisher of Talkers magazine, says examples of incitement to violence are rare. He termed them "random." As he surveys the landscape, he said, "It's easy to take a look at this and say, 'Is this some kind of trend?' No, it isn't.

"I remember plenty of people comparing George W. Bush to a Nazi, to a fascist. Of course there are suggestible people and there are mentally ill people who can react to anything. But what are you going to do -- stop political discussion, stop criticism, stop free speech?"

James W. von Brunn, who killed a guard at the U.S. Holocaust Memorial Museum in June, had a history of hateful writings about religious and ethnic minorities and a felony conviction for attacking the Federal Reserve headquarters. But he was not the subject of a criminal investigation before the shooting.

"Law enforcement's challenge every day is to balance the civil liberties of the United States citizen against the need to investigate activities that might lead to criminal conduct," Joseph Persichini Jr., chief of the FBI's Washington field office, told reporters. "No matter how offensive to some, we are keenly aware expressing views is not a crime and the protection afforded under the Constitution cannot be compromised."

Yet all speech is not alike, Potok said. Just as the disruptions directed at Democratic town hall meetings on health care are spawning a debate about the contours of civil discourse, the sometimes bitter skirmishes on the airwaves and the Web raise questions about where such talk can lead.

Some conservative commentators "really are provocateurs," Potok maintained. "They have specialized for years now in pushing the First Amendment to its limits, and they've gotten very good at it."