Flynn, Alptekin, and Gülen’s extradition
The recent decision by the U.S. Attorney General (AG) to reverse course on the prosecution of retired Lieutenant General and former National Security Advisor Michael Flynn for lying to the Federal Bureau of Investigation has brought a break in the U.S. media’s blanket coverage of the COVID-19 pandemic.
Many reports, however, have glossed over Flynn’s actions which led the prosecutors to target him. The retired general worked with the Turkish government-linked businessman Ekim Alptekin to enhance Turkey’s request for the extradition of Fethullah Gülen, an Islamist preacher whose international religious movement the Turkish government blames for the July 2016 coup attempt.
Predictably, U.S. conservatives, whether supporters of Trump or not, expressed support for AG William Barr’s action, seeing it as reining in FBI and state prosecutors from abusing the legal rights of citizens. Just as predictably, liberals and progressives decried Barr’s action, claiming he was again doing his master Trump’s bidding contrary to all legal precedents. Even former President Obama weighed in. But the competing allegations of lying to the FBI or of entrapment by the FBI do not concern us here, because months before the FBI’s White House interview of January 2017 which led to those allegations, Flynn’s work for Alptekin against Gülen had established a predicate for investigating and prosecuting him.
Like many former high-ranking government officials, in the United States, Turkey, or elsewhere, Flynn had established an advisory group, Flynn Intelligence Group (FIG), to profit from his long government experience and the connections made during that public service. Flynn and his business partner, Bijan Rafiekian, signed a contract in 2016 with Alptekin to help shape public and policy-maker opinion on Gülen.
Court filings by the U.S. Department of Justice alleged that Alptekin was working on behalf of the Turkish Presidency, though he claimed that his efforts were motivated by loyalty to Turkey and concerns for good US-Turkey relations, and that any conversations with members of Turkish government were not to receive instructions but simply to share opinions.
U.S. persons may legally work on behalf of a foreign state, as long as they register as a foreign agent. There are many lobbyists and law firms in Washington, D.C. that do so. FIG initially portrayed their contract with Alptekin as a contract with a private foreign individual, not as serving the interests of the Turkish state. Following the publication of an opinion piece in the Hill on 8 November 2016, in which Flynn advocated for the extradition of Gulen, questions were raised about FIG’s failure to have properly registered as a Foreign Agent for Turkey. More than an op-ed, the piece as if it had ben substantially copied from Turkish Presidency press releases.
Typically, such violations of the Foreign Agents Registration Act (FARA) resulted in a “wrist slap” - paying a fine, correcting the registration documents, and possibly pleading guilty to a misdemeanour violation. In this case, however, Flynn and Rafiekian were threatened with prosecution on felony charges, as was Alptekin. Eventually, the prosecutors charged Rafiekian and Alptekin, but Flynn was not charged with violating FARA as part of a plea deal negotiated with Special Prosecutor Robert Mueller.
As part of that plea deal, Flynn agreed to plead guilty to a charge of lying to the FBI and to fully cooperate with the Mueller Investigation into Russian interference in the 2016 U.S. election. Months later, as his sentencing date approached and with a new defence team, Flynn attempted to withdraw his guilty plea. His new defence team argued that the FBI had entrapped Flynn. While not agreeing with all the aspects of the defence team’s allegations, AG Barr, on the recommendation of a U.S. District Attorney not previously involved with the case, most recently filed a motion to dismiss the charges. At the time of writing, the judge in the case has yet to act on the motion, but it is rare for a judge to continue a case when the defence and prosecution agree it should be dismissed, though it is also rare for a judge to set aside a guilty plea.
What of Alptekin and Rafiekian? The latter was convicted of FARA violations by a jury in July 2019, but the judge in the case set aside that conviction in September 2019. While the Department of Justice could attempt to prosecute Rafiekian again without testimony from Flynn, a conviction would be difficult. And, without the protection of a plea deal, Flynn is unlikely to testify against his former business partner.
Alptekin remains outside the United States, most likely in Turkey under the protective yet watchful eye of friends and political allies in the Turkish Presidency. He remains under indictment and will likely face arrest if he comes to the United States. He could also face extradition if he travels to a country with an active extradition treaty with the United States. Ironically, the US could seek his extradition under the same U.S.-Turkey extradition treaty by which Turkey has sought Gülen’s extradition – most likely with the same prospects for success.
We can assume he will continue residing in Turkey while maintaining a low profile. One might imagine he has little concern that he could eventually be part of a swap for his compatriot living in exile in Pennsylvania, for the possibility of extraditing Gülen is shrinking as time passes.
And, it was never much of a possibility, anyway. A revealing comment in the press release accompanying the charges filed against Rafiekian and Alptekin is worth quoting in full: “The indictment charges that the purpose of the conspiracy was to use Company A (FIG) to delegitimize the Turkish citizen (Gülen) in the eyes of the American public and United States politicians, with the goal of obtaining his extradition, which was meeting resistance at the U.S. Department of Justice” (author’s emphasis).
More importantly, the political value for Erdoğan of bringing Gülen to Turkey to face charges of masterminding the failed coup attempt in July 2016 is minimal at this point, even as a distraction from the economic crisis Turkey faces due to the measures undertaken to stop the spread of the pandemic.