Biden administration tells court Turkey not immune for assaults during White House visit

The administration of U.S. President Joe Biden has sided with anti-Erdoğan protesters and sent a strongly worded brief asking a federal appeals court to uphold a ruling that Turkey can be held liable for assaulting protesters on the day of President Recep Tayyip Erdoğan’s White House meeting with former President Donald Trump nearly four years ago.

Thursday March 11 2021 02:52 pm

Duvar English

Signaling a shift in U.S.-Turkish relations, the State Department sent a strongly worded brief asking a federal appeals court to uphold a ruling that Turkey can be held liable for assaulting protesters on the day of President Recep Tayyip Erdoğan’s White House meeting with former President Donald Trump nearly four years ago.

“Both the Turkish agents [along with supporters of President Erdoğan] and U.S. law enforcement separated the protesters from the Ambassador’s Residence at which President Erdoğan had arrived,” counsel for the Justice Department and the State Department wrote in an 18-page legal brief on March 9, Adam Klasfeld reported.

“Yet the Turkish agents ‘crossed [the] police line’ separating them from the protesters in order ‘to attack the protesters’ ‘violently,’ and they took that aggressive action without any indication […] ‘that an attack by the protesters was imminent,’ […] and without any finding by the district court of some other reasonable basis for perceiving a threat to President Erdoğan,” the friend-of-the-court brief continues, summarizing a federal judge’s findings of fact. “There is no basis in the district court’s account of the facts to regard the ‘attack’ by Turkish agents as protective in nature.”

In a phone interview, an attorney for the anti-Erdoğan protesters described the State Department’s support as the Biden administration reasserting U.S. advocacy for human rights.

“It seems to me that this administration may be signaling politically that we are reinforcing the notions of democracy in this country, after a long time of maybe democracy being beaten up a little bit,” attorney Andreas Akaras, from the firm Bregman, Berbert, Schwartz & Gilday, LLC, told Law&Crime.

White House remained silent at the time

On the day Erdoğan first visited the Trump White House on May 16, 2017, protesters gathered outside of the Turkish Ambassador’s Residence and were besieged by the Turkish leader’s security detail. Voice of America broadcasts and other viral videos captured grisly scenes of guards punching, beating and kicking demonstrators.

The melee injured 11 people and put a cloud over Erdoğan’s first visit with the Trump White House, which remained silent on the assault of peaceful protesters.

“A few of them are still sort of intellectually in shock that this occurred in the United States,” Akaras continued. “It’s beyond anything they could imagine.”

In the ensuing criminal and civil fallout, prosecutors brought charges against 15 Turkish security officials, and 11 of those cases were dropped days before former Secretary of State Rex Tillerson’s scheduled huddle about a year later with Erdoğan and his foreign minister, Mevlüt Çavuşoğlu, an associate of Paul Manafort.

But civil claims endured—and survived a motion to dismiss in February 2020, when a federal judge found that the Foreign Sovereign Immunities Act (FSIA) did not shield alleged assaults on a peaceful protest on U.S. soil.

“The Turkish security forces had the discretion to protect their president,” Judge Colleen Kollar-Kotelly, a Clinton appointee, wrote on Feb. 6, 2020. “They even had the discretion to err, to some degree, in their determination as to the nature of force required to protect President Erdoğan. However, the Turkish security forces did not have the discretion to violently physically attack the protesters, with the degree and nature of the force which was used, when the protesters were standing, protesting on a public sidewalk.”

The Turkish government appealed the ruling later that month, and the U.S. Court of Appeals for the D.C. Circuit heard oral arguments on Jan. 25 this year.

On the same day, some five days after Biden’s inauguration, the three-judge panel solicited the new administration’s views on the case, setting a March 9 deadline.

'Outside their proper protective function'

The Biden administration’s brief, signed by high-ranking attorneys with the Justice Department and State Department, was emphatic: The lower court’s ruling should be upheld, and the FSIA’s shield of immunity only extends so far.

“The actions the Turkish agents took after the initial attack leave little doubt that they were using force for a purpose outside their proper protective function,” the brief states.

Throughout his one-term tenure, Trump was harshly criticized for enabling Turkey’s anti-democratic impulses. Turkey was the world’s leading jailer of journalists for three years during Trump’s tenure, and the former U.S. president repeatedly made headlines for interfering with the Justice Department’s case against Turkey’s state-run Halkbank, a multibillion-dollar money laundering prosecution that Erdoğan wanted dismissed. Trump’s former National Security Advisor John Bolton wrote in his memoir about Trump’s cozy relationship with Erdoğan as part of the 45th president’s pattern of doing favors for “dictators he likes.”

Even congressional Republicans sought a tougher line on Turkey, pushing for the prosecution of Erdoğan’s bodyguards and joining Democrats recently in a bipartisan letter from the Senate Foreign Relations Committee and House Committee on Foreign Affairs urging Biden’s Secretary of State Antony J. Blinken to support the protesters.

“We urge you to make clear the principle that foreign security personnel should not enjoy immunity under the FSIA for engaging in unprovoked assaults on peaceful protestors lawfully exercising their First Amendment rights in the United States,” both Committees told Blinken, in a letter signed by their top Democrats and Republicans.

The signatories are Sen. Robert Menendez (D-N.J.), Sen. James E. Risch (R-Idaho), Rep. Gregory W. Meeks (D-N.Y.), and Rep. Michael T. McCaul (R-Texas).

For Akaras, the bipartisan backing for his clients shows that their case transcends politics and goes to a question of values.

“So that the short of this case begs the question of drawing the boundary of saying: ‘Look, Turkey, this is a step too far. You know, you get away with this crap in your country. It’s not going to work here,'” Akaras said.

The attorney added that this image of the United States is acutely felt by his immigrant clients.

“There’s something special sometimes about people who immigrate because they really feel the liberties we have because they have a comparative point, right?” Akaras added. “So if you come from Turkey, and you know that you’re going to get beat up on the street, you don’t so easily go out and protest. Whereas here, though, you cherish that. You’re able to see: ‘My God!’ So my clients constantly remind me of this notion of freedom because they, in a sense, are able to breathe more freely in the U.S.”