National Intelligence Service is among the key institutions of the security apparatus. This agency was the focus of numerous debates before and after the coup attempt of July 15, and after the referendum on the transition to the presidential system, it was subordinated directly to the President with the Executive Decree no 694, without even waiting for the elections of 2019. The important amendments concerning this institution and the intelligence community amount to a veritable restructuring. The agency’s relations with the army were also revisited. Several amendments were made and additional clauses and provisional clauses were added to Law no. 2937 on State Intelligence Services and National Intelligence Organization.
The powers which belonged to the Prime Minister have been transferred to the President. In the law, most occurrences of the expression Prime Minister have been replaced with the President. National Intelligence Service has been subordinated to the President. The National Intelligence Coordination Board has been established as a committee to coordinate all the intelligence activities of the state, whose secretarial activities will be performed by the Undersecretariat of National Intelligence Service, and it was stated that the modus operandi and membership structure of this board will be set forth by a separate regulation (Executive Decree 694 Article 60-66). We understand that this regulation has already been issued, from the following phrase on the National Intelligence Service’s web site: “The board convenes every three months with the participation of the National Security Council Secretary or his Deputy, General Staff Intelligence Service President or his Deputy, undersecretaries of the ministries, authorized officials from the agencies and institutions, National Intelligence Service’s relevant department heads, and other public officials invited by the Undersecretary of the National Intelligence Service. Undersecretary of the National Intelligence Service can convene the Board to an extraordinary meeting”. Thus, the regulation has indeed been issued, but not published on the Official Gazette. But in a key area such as intelligence, the immediate entering into force of such amendments before the initiation of the presidential system in 2019 brings along significant problems.
The article on the military personnel was rephrased as the article on military and other personnel. Accordingly, the Undersecretariat of National Intelligence Service and related agencies will jointly decide on the number, ranks and titles of the commissioned and noncommissioned officers, civil servants, specialist sergeants and privates to be assigned to the Undersecretariat of National Intelligence Service each year. Before, this used to be decided on by the General Staff and the Undersecretariat of National Intelligence Service. The names of the commissioned and noncommissioned officers, civil servants, specialist sergeants and privates to be assigned in this framework will be submitted to the Ministry of Interior, Ministry of National Defense or General Staff, and they will be assigned by the Undersecretariat of National Intelligence Service. As regards those to be assigned to the Undersecretariat of National Intelligence Service, the permits, approvals, and other requirements stipulated by the Law no. 926 on Turkish Armed Forces Personnel will not be required. Previously the text used to read “a resolution of the the Council of Ministers is not required”. A provision was passed on the payments to the staff who work in other institutions but are assigned to the Undersecretariat of National Intelligence Service, and the funding thereof. Undersecretary of National Intelligence has been authorized to determine the equivalent staffing positions and duty titles of the said personnel at the National Intelligence Service (Executive Decree 694 Article 67).
The following paragraph was added to the law’s special provision on the staff: “It is essential for the identities of the National Intelligence Service personnel to be kept secret. The records of the Undersecretariat of National Intelligence Service are to be used in determining their basic and social security rights. Relevant procedures and principles are determined by the regulation to be drafted jointly by the Social Security Institution and the Undersecretariat, and approved by the President” (Executive Decree 694 Article 68).
From now on, the Undersecretary of National Intelligence Service will be appointed by the President directly; previously, she / he was appointed by the President upon the suggestion of the National Security Council and the proposal of the Prime Minister. Another amendment stipulates that the undersecretary’s deputies and the department heads can be appointed by the President upon the suggestion of the undersecretary (Executive Decree 694 Article 69).
According to a new provision, the names of those National Intelligence Service personnel who failed to adapt to the organization according to their superiors shall be communicated to the State Personnel Department, upon the suggestion of the undersecretary and the approval of the President, and they will be duly transferred to another state institution (Executive Decree 694 Article 70).
In order to meet the expenditures of the National Intelligence Service, it has been decided that a special fund will be created under the budget of the President’s Office; this used to be under the Prime Minister’s Office (Executive Decree 694 Article 71).
It has also been stipulated that the undersecretary will be responsible to the President as regards the correct allocation of the service expenditures. The undersecretary used to be responsible to the Prime Minister (Executive Decree 694 Article 72).
The models, numbers and provenance of foreign or domestic vehicles to be purchased for the National Intelligence Service will be decided on upon the approval of the President; previously the approval of the Prime Minister was required (Executive Decree 694 Article 73).
Any investigation about the Undersecretary of National Intelligence Service has to be allowed by the President (Executive Decree 694 Article 74). Before, this authority belonged to the Prime Minister. As known, the requirement for the Prime Minister to approve any investigation about the National Intelligence Service Undersecretary was introduced with a highly controversial amendment in 2012, after the Undersecretary of National Intelligence Service Hakan Fidan had been summoned to court.
Another important addition to this law reads as follow: “Non-Turkish citizen detainees and convicts can be returned to another country or exchanged for detainees or convicts in another country in cases necessitated by national security and national interest, upon the demand of the Foreign Minister, the suggestion of the Minister of Justice and the approval of the President, if it is guaranteed that the individuals in question will not be subjected to punishment for their race, ethnicity, religion or nationality, sanctioned with derogatory punishment or treatment, or subjected to torture or maltreatment” (Executive Decree 694 Article 74).
The first result of this amendment was the liberation of two Russian agents imprisoned for organizing assassinations against Chechen opposition figures. The press reported that these Russian agents were swapped for two Crimean Tatar politicians imprisoned in Russia: Habertürk, November 29, 2017.
Another new provision stipulates that exposing the identity of National Intelligence Service personnel is punishable (Executive Decree 694 Article 75).
The testimony at court of National Intelligence Service’s current or previous personnel requires approval from the Undersecretary of National Intelligence Service, and the testimony at court of the Undersecretary of National Intelligence requires the approval of the President (Executive Decree 694 Article 76).
It has also been stipulated that the regulations to be issued as per the law will enter into force upon the approval of the President and shall not be published on the Official Gazette (Executive Decree 694 Article 77).
A temporary article states that any previous legislation referred to by these articles will apply until a new amendment is made, and that in all other related legislation, the expression ‘Prime Minister’s Office’ will be replaced by ‘the President’ (Executive Decree 694 Article 78).
The funds for the direct procurement of various intelligence and security related materials for the National Intelligence Service will be transferred from the Defense Industry Support Fund to the National Intelligence Service’s accounts, upon the suggestion of the Undersecretary of National Intelligence Service, the opinion of appropriateness of the Minister of National Defense and the approval of the President. Previously, the approval of the Prime Minister was required (Executive Decree 694 Article 84).
Most recently, an amendment was made to the law, making it even harder for the National Intelligence Service personnel to resign: Those who resign before the completion of their fifth year in the National Intelligence Service cannot be employed as civil servant in the five years starting from the date of their dismissal. Furthermore, legal sanctions apply to those who abandon their post before the finalization of the resignation procedures. (Executive Decree Article 51-52).
In various other articles of the Law no. 657 on Civil Servants that designate the position authorized to decide upon certain issues regarding the National Intelligence Service and its staff, the expression “Prime Minister” was replaced by “President”. These articles concern the appointment, degree promotion and rank advancement of the National Intelligence Service personnel, determination of the additional indicators for National Intelligence Service personnel, overseas training of National Intelligence Service personnel, various payment rises and compensations for National Intelligence Service personnel, overtime premium for National Intelligence Service personnel, and the employment of contracted personnel at the National Intelligence Service (Executive Decree 694 Article 24-26, 28-30).
Executive Decree 703 revised Law no. 2937 on State Intelligence Services and National Intelligence Organization, whereby the phrase ‘Undersecretariat of the National Intelligence Organization’ was replaced by ‘National Intelligence Organization’ and the title ‘undersecretary’ was replaced by ‘President of Organization’.