Top board for state secrets to be established

Published in Zaman, 26.04.2008 (Article by Ercan Yavuz)

Former Democrat Party leader Mehmet Ağar refused to testify to any court or commission about the Susurluk case, citing the principle of “state secrets.”

Public officials will no longer be able to use the “state secret” defense to justify their actions when the state secrets bill is passed and establishes the Higher State Secret Board (DSK) — an ultimate authority for deciding what constitutes classified information and documents.

The state secrets bill, drafted by the Justice Ministry in 2005 but never enacted due to opposition, has finally been submitted to Parliament. It introduces new regulations concerning the concept of state secrets, in the past one of the greatest obstacles in the prosecution of high-ranking public servants.

Aiming to ensure easy access to information, transparency and an end to an unnecessary culture of secrecy in government operations, the bill envisions regulation of the identification, preservation and disclosure of classified information and documents, as well as related duties and liabilities. In addition to redefining the Turkish concept of a state secret, the bill would institute a time limit on the confidentiality of such secrets — a maximum of 75 years. If the bill passes, light may be shed upon a number of scandals that have fallen into obscurity, experts say.

Bekir Bozdağ, deputy chairman of the Justice and Development Party’s (AK Party) parliamentary group, told Today’s Zaman the bill would be passed soon. “Our party is eager to enact it. Recent developments show that such a law is particularly necessary. Due to Parliament’s busy agenda, we were unable to enact it in the previous parliamentary term — but we’re determined to do so this term. I think this will … [happen] soon,” he said.

The DSK will be chaired by the prime minister and charged with determining which documents and pieces of information are state secrets.

The confidentiality provisions of the bilateral and multilateral treaties to which the Turkish Republic is party will be preserved under the new legislation. Information and documents designated as confidential under such treaties will be considered, depending on their nature, to be state secrets or fall under another confidentiality classification.

In the past, debates over agreements between Turkey and other nations have also been affected by state secrets provisions. For example, debate over the price of natural gas sold by Russia to Turkey was stalemated when former Energy Minister Cumhur Ersümer, on trial by the Supreme State Council on corruption charges, said the agreement concluded with the Russians contained a special provision prohibiting disclosure of the pricing. Similarly, defense agreements concluded between Turkey and Israel in the past have been criticized for confidentiality provisions contained therein.

Easier prosecution of bureaucrats

The bill will make the trying of high-ranking bureaucrats easier. In connection with the Susurluk case, which uncovered dark secret relations among public officials, the police and the mafia, former Democrat Party (DP) leader Mehmet Ağar had refused to testify to any court or commission, citing the state secrets concept. Now, the DSK will evaluate Ağar’s definition of state secrets.

Those who violate provisions concerning the preservation of state secrets will be sentenced to from one to four years in prison under Article 258 of the Turkish Penal Code (TCK). Committing the crime through the press, media organizations or the Internet will be considered an aggravated circumstance.

State Secrecy Council & State Secrecy High Council

If enacted will introduce a State Secrecy Council as well as a State Secrecy High Council. The former which will be formed by the Permanent Undersecretary for the Prime Minister, and will include as its members the permanent undersecretaries for the Prime Ministry, Ministry of Justice, Ministry of Interior, Ministry of Defence and Ministry of Foreign Affairs, will make the secrecy decisions. On the other hand, the State Secrecy High Council will include as its members the Prime Minister, and the ministers for the Ministry of Justice, Ministry of Interior, Ministry of Defence and Ministry of Foreign Affairs. The Prime Minister will act as the president for the State Secrecy High Council. Therefore, there is no provision for an independent oversight body within the proposed system. The State Secrecy High Council would provide its opinion with regards to court action involving state secret classified documents.

Definition of state secrets and classified information

In terms of what constitutes a “state secret”, documents the disclosure of which would seriously undermine and damage national security, the territorial and constitutional integrity of Turkey, or its foreign relations, would be classified as state secrets by the State Secrecy Council. The draft law also provides that certain documents could be protected as “classified information” by the State Secrecy Council and these would be documents the disclosure of which would seriously undermine the economic well-being of the state, state intelligence, military service, documents pertaining the administrative and judicial investigations and prosecutions, as well as documents which were classified as “secret” or “classified” by relevant authorities. The Prime Minister, the Chief of General Staff, State Ministers, and the National Security Council can ask the State Secrecy Council to issue classify documents that relate to their business as state secrets. Other public authorities can only ask the Council to classify documents as state secrets through the Ministries that they are connected to. According to the proposed law, the President of Turkey himself decides the nature and classification of secrecy with regards to the documents he holds.

Duration

In terms of duration, the proposed law enables time limited classifications as well as indefinite classifications. A maximum period of 75 years is provided by law with regards to time based classifications. The State Secrecy Council can modify the time period on such classified documents, or can de-classify such documents. Indefinitely classified documents are subject to review every 10 years. Classified documents which are classified for more than 10 years are subject to review every 5 years. Indefinitely classified state secrets would automatically cease to be state secrets after 50 years unless the State Secrecy Council decides to the contrary. In terms of the duration of other “classified information” these are limited by half of the time period specified for state secrets.

Criminal Sanctions for disclosure

The proposed law refers to section 258 of the Turkish Criminal Code and reminds that those who publish state secrets would be committing a criminal offence punishable between one to 4 years of imprisonment. However, if the publication and dissemination takes place through the media, or through the Internet, such actions would be seen as an aggravating factor and the penalty would be increased by 50%.