Legal process may keep Turkey President Erdogan's foe Gulen in US for years

A handout picture shows Turkish President Recep Tayyip Erdogan waving during his rally in Istanbul, Turkey, at midnight on July 18.
A handout picture shows Turkish President Recep Tayyip Erdogan waving during his rally in Istanbul, Turkey, at midnight on July 18.PHOTO: EPA

NEW YORK (REUTERS) - A US-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 to make such a request for Mr 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.

Mr Erdogan's government has accused the 75-year-old of being the mastermind of last Friday's failed military takeover in which at least 232 people were killed.

Mr Gulen, a former ally-turned critic of Mr Erdogan, has denied any role in the putsch and condemned it.

"I urge the US government to reject any effort to abuse the extradition process to carry out political vendettas," he said on Tuesday (July 19) ( 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 Mr Gulen with the US government, White House spokesman Josh Earnest said.

Mr Erdogan and US President Barack Obama discussed the status of Mr 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 that Mr Gulen be sent there, lawyers not involved in the matter said in interviews.

The US-Turkey extradition treaty went into force in 1981 and covers offences punishable in both countries by more than a year in prison. It does not cover offences "of a political character," although it does cover "any offense committed or attempted against a head of state," the treaty says.

For an alleged offence by Mr 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 Mr Ronald Hedges, a former US magistrate judge who presided at extradition hearings.

Clauses about "political offences" 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," US Circuit Judge Karen Williams wrote in a 2007 ruling about an extradition to Peru.

Most US courts use a two-part test of whether an alleged offence was political, Judge 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 US State and Justice departments would review the request to determine whether the alleged offence 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 US 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 US Supreme Court can take years.

After appeals are exhausted, an extradition request would still need to get the approval of the US 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 Mr Douglas McNabb, a lawyer who specialises in extradition proceedings.