The Islamist government of President Recep Tayyip Erdogan has been attempting for some time to gather crucial data on its critics and opponents in the US by exploiting judicial mechanisms in US district courts and continues to harass dissidents with frivolous lawsuits for political purposes.
Having failed to secure the extradition of his critics or obtain information from the US despite repeated attempts filed with the US Justice Department under both Democratic and Republican administrations, Erdogan’s advisors devised a new method to circumvent the block by using US district courts to gather information for preliminary proceedings already ongoing in government-controlled Turkish courts.
Turkey attempted to use the Mutual Legal Assistance Treaty (MLAT) signed between the US and Turkey in 1979 to request the extradition of critics of the Erdogan government and to obtain information about their activities, including financial records. However, these requests were blocked by the US Justice Department, which concluded that the Turkish requests lacked credible evidence to warrant granting them.
As a result, Turkey’s politically motivated attempts were never brought before US courts, where a judge could have reviewed the Turkish requests, thus saving time and money that would otherwise be wasted in the political witch hunt pursued by the Erdogan government abroad against its opponents.
However, Turkey found a loophole to bypass the US Justice Department’s block. In the last couple of years, the Turkish government, through a US law firm, has been filing individual petitions with US district courts, seeking their assistance in pursuing Turkish criminal proceedings. These attempts have produced mixed results, with some US judges denying the Turkish government’s requests, while others have granted some of the demands made by Turkey.
Turkish Muslim scholar Fethullah Gülen met with Pope John Paul II in 1998 at the Vatican as part of an interfaith dialogue and outreach campaign. The meeting later became part of criminal evidence filed against Gülen in Turkey by the Islamist government of President Recep Tayyip Erdogan, which accused him of conspiring with the Vatican.
Turkey’s primary target in this endeavor is the Gülen movement, a group critical of the Erdogan government on a range of issues, from pervasive corruption in the Turkish administration to Erdogan’s support for armed jihadist groups in the Middle East and North Africa. The movement, inspired by US-based Turkish Muslim scholar Fethullah Gülen, had been an outspoken critic of President Erdogan for politicizing Islam for political and personal gain, as well as supporting radical Islamists.
Gülen, who passed away in a New Jersey hospital after suffering health complications last year, had been the subject of extradition demands from Turkey. However, the US Justice Department denied multiple attempts, citing a lack of solid evidence indicating any criminal activity. Likewise, many US nationals and residents, including journalists, academics and human rights defenders sympathetic to the Gülen movement, have faced politically motivated extradition demands, all of which have failed.
Having concluded that invoking MLAT, the bilateral extradition treaty with the US, would not yield any results, the Erdogan government turned to alternative methods within the US judicial system to harass its political opponents, obtain private information and map out their activities in the US.
This is where US federal statute 28 U.S.C. § 1782 came into play. The statute allows a party involved in a legal proceeding outside the US to request that US courts compel discovery — such as document production or witness testimony — from individuals or entities within the US. It is intended to assist foreign litigants in obtaining evidence that may not be accessible within their own jurisdictions.
Turkey files an application in a US district court, which then reviews the request to determine whether it is intrusive, whether the evidence is available in the foreign jurisdiction and whether it undermines US policies. If a judge grants the request, the US entity or individual must comply with the discovery order.
However, unlike experts in the US Justice Department, individual courts and district judges in various states may not be familiar with the Turkish government’s tactics and may fail to discern the political motive behind them. This is what the Erdogan government is betting on in these cases.
This statute has been abused by foreign powers such as Russia, China and some Middle Eastern countries or their proxies in the past to gather intelligence or sensitive information on dissidents, activists or opposition figures living in the US. Through these procedures, they sought to gain access to personal records, financial data or private communications under the guise of discovery.
First, they initiate frivolous and politically motivated lawsuits overseas, leveraging US courts to access documents from US entities and individuals.
There had been no record of such blatant attempts at abuse by Turkey until the last decade, during which President Erdogan launched a massive crackdown on legitimate opposition groups, primarily the Gülen movement, and expanded the fight overseas by manipulating judicial and political mechanisms available to state actors.
That relentless campaign against opponents was also supplemented by directives to Turkish intelligence services to aggressively spy on critics in Turkish diaspora groups abroad, especially in Europe and North America. The main intelligence agency, MIT, has been documented running surveillance operations on US soil, spying on Erdogan government critics on a large scale.
One of the leading cases that exemplifies Turkey’s outreach to the US judicial system in a bid to obtain critical information and harass individuals allegedly involved with the Gülen movement is the request for discovery concerning multiple entities and individuals associated with Concept Schools NFP, a successful charter school organization that manages 31 charter schools in the US.
First, the Turkish government launched frivolous criminal cases against entities and individuals associated with Concept Schools, leveling a wide range of charges, from terrorism to money laundering and securities and wire fraud. Then, using the US federal statute on discovery, it petitioned a judge in the US District Court for the Northern District of Illinois to issue subpoenas for sweeping requests on the finances of these entities and individuals as well as for US banks JP Morgan Chase Bank N.A. and PNC Bank N.A., which possessed financial documents concerning some of the respondents.
The demands included five years’ worth of documents reflecting payments to vendors exceeding $100,000 annually, identification of vendors receiving more than $25,000 in a year, all board meeting agendas and minutes and extensive information concerning H-1B visa requests.
Additionally, Turkey sought data on financial transactions exceeding $1,000 involving foreign entities or individuals over the past decade, details on municipal bonds, lease agreements, property purchases, employee information and contacts the schools had with contractors and builders.
The respondents contend that Turkey’s application is part of a campaign of political persecution against Gülen and his supporters, arguing that the application lacks evidence to show that the Turkish authorities are conducting a legitimate criminal investigation.
After reviewing the request, US Judge Matthew F. Kennelly found the breadth of Turkey’s requests to be excessively wide-ranging and potentially burdensome. He noted that the application lacked clear details about the alleged money laundering scheme and how the requested documents would aid the investigation. Moreover, the scope of the subpoenas suggested an effort to identify Turkish nationals associated with Concept Schools rather than uncovering financial misconduct.
The court highlighted that, even with modifications, the subpoenas would likely impose a significant burden on the targeted not-for-profit entities and individuals. The demand for comprehensive H-1B visa records, in particular, appeared intrusive and unrelated to legitimate criminal investigative needs.
In the end, on July 16, 2021, Judge Kennelly concluded that the application appeared to bypass established protocols for criminal evidence gathering, such as the MLAT procedure between Turkey and the US. He emphasized that the requests were not suitably tailored to meet the legitimate needs of a criminal investigation.
He issued an order concluding that granting the application would be inappropriate, even if Turkey met the statutory requirements of 28 U.S.C. § 1782.
Turkey also filed similar discovery requests with the courts in the Southern District of Ohio and the Northern District of Ohio.
On February 22, 2021 US Magistrate Judge Elizabeth A. Preston Deavers denied Turkey’s application for discovery under 28 U.S.C. § 1782, citing the overly broad scope and undue burden of the requests.
The judge noted that an overview of the proposed discovery revealed requests spanning five-year and in some instances, 10-year periods. Many of the requests were prefaced by terms such as “including” or “including but not limited to,” suggesting that they should be interpreted broadly. Other requests sought comprehensive records, prefaced by terms such as “all,” including “contracts, subcontracts, bids, requests for proposals, invoices, service agreements, emails, and payment records.”
The court further noted that much of the information sought by Turkey could be obtained through a public records request, and that the MLAT process remained available as a mechanism to aid in obtaining the information.
The judge also highlighted an apparent discrepancy in Turkey’s requests. Two significant documents, one from Turkish Ambassador Serdar Kilic and the other from Gökhan Karaköse, the deputy chief public prosecutor for Ankara, never mentioned any entity or individual named in the discovery filings made by the Turkish government’s representative, Nixon Peabody LLP.
The documents did not provide a basis for determining that a legitimate criminal investigation exists for several reasons. Respondents noted that the documents do not mention them or anyone affiliated with the schools. Secondly, the documents did not indicate against whom charges would be brought, what the charges would be or when the alleged conduct occurred. Third, respondents assert that the lack of specificity “reeks of subterfuge,” meaning that the Turkish government engaged in deception, manipulation or a secretive tactic to achieve a goal and sought to mislead the US court.
After failing in its petitions in two district courts, the Turkish government partially obtained favorable results in the Northern District of Ohio. On January 29, 2021 Judge Dan Aaron Polster issued an order partially granting the Republic of Turkey’s petition.
The Turkish petition, which involved different respondents, was similar to the applications filed in other courts. Judge Polster ordered the respondents to “produce any and all [sic] documents evidencing the flow of funds between the respondents’ schools in Ohio and Turkey or certify that no such documents exist.” He also stated that any other discovery sought by the petitioner must be accomplished through MLAT.
In another discovery filing made by the Turkish government on December 3, 2024, in the U.S. District Court for the Southern District of New York, several individuals were targeted, including Cevdet Türkyolu, a longtime chief aide to Gülen. The filing, done through the law firm Nixon Peabody LLP, requested permission to obtain financial records from two major American banks, Bank of America and Wells Fargo, as part of an ongoing criminal investigation.
Learning from mistakes in previous filings, the Turkish government trimmed down its request to avoid rejection on the grounds of the petition being unduly intrusive or burdensome. It also deliberately omitted the two major cases launched against Türkyolu in 2018, which involved dozens of absurd charges, ranging from terrorism and a coup to political and military espionage — charges often used by the Erdogan government to imprison its critics in Turkey.
Instead, the petition filed in New York referred only to a 2019 case launched in Ankara against Türkyolu for violating the Capital Markets Law. In other words, by using the charge of insider trading, the Erdogan government hoped to secure a more receptive ear from a US district court judge. Türkyolu allegedly sold his shares in Bank Asya, a bank owned by businesspeople close to the Gülen movement, in March 2014, reportedly earning $28,000 in today’s currency rate from insider trading.
Turkey claimed that Türkyolu and four other individuals committed crimes in Turkey and that the information from the US banks was crucial to the criminal prosecution and broader financial crimes investigation. The Erdogan government claimed it was conducting a legitimate criminal investigation and argued that the subpoenas did not impose an undue burden on the banks.
On December 17, 2024 Judge John P. Cronan of the Southern District of New York granted Turkey’s application, allowing Turkish authorities to subpoena the two banks for documentary evidence. It is unclear whether the banks complied with this order or filed a challenge to the subpoenas to quash them.
The review of all these separate cases filed in multiple districts by the Turkish government resulted in what Judge Deavers warned in her ruling: the risk of inconsistent rulings among various US courts. Deavers hinted at the fact that Turkey deliberately bypassed MLAT to secure favorable rulings from some districts.
“There are sound reasons for generally channeling such discovery applications through the MLAT process. Doing so promotes comity and consistent outcomes as to such requests, adds protection for the domestic entities from whom discovery is sought by foreign prosecutors and criminal investigators, and assures that the U.S. government’s expertise and analytic rigor is applied to the application, including to assure that the discovery is not sought for ulterior (non-prosecutive) ends,” she wrote.
It is clear that the main motivation behind such filings in multiple districts in the US is to gather intelligence on critics and dissidents living in the US, and to harass and intimidate them rather than pursuing legitimate criminal cases based on solid evidence. The Erdogan government has dismantled the independent judiciary in Turkey, suspended the rule of law and due process and weaponized the criminal justice system to imprison and harass critics. Now, using loopholes in the US justice system, it is attempting to export these tactics to US soil.
