People injured in the violent clashes that unfolded during the Turkish president’s official visit to Washington, DC in 2017 have sued Turkey for the attacks by members of president Recep Tayyip Erdoğan’s security detail. Turkey has fought that lawsuit, claiming it is immune to it per the provisions of the Foreign Sovereign Immunity Act. That defense has been rejected repeatedly, most recently in an ‘en banc’ decision of the Washington, DC Court of Appeals.
The National Herald spoke to Andreas Akaras, one of the lawyers representing the plaintiffs, about the events – and the intricacies of suing a country.
The National Herald: Walk us through the incidents at the center of this lawsuit, which refer to President Erdogan’s official visit to D.C. on May 16, 2017.
Andreas Akaras: Most people have seen the video from that incident; it speaks for itself. You see a group of people protesting opposite the Turkish ambassador’s residence, which is located at Sheridan Circle. It’s a customary thing to have protests in Washington, DC, and this was a customary protest, in the sense that people had gathered to express their dissatisfaction or opposition to some political issue. In this case it happened to be the politics of Turkey, and, specifically, the policies of president Erdogan. As you can see from the video, there comes a point in time where Turkish security agents attack the peaceful protesters, and they do that, it seems, upon an order that comes from president Erdogan. Certainly there’s an order that comes from some senior security official. Looking at the videotapes you can see that the senior security officials are conferring with president Erdogan at the time that a coordinated attack of the Turkish security guards unleashes against the protesters. As for protesters, were about 20 people – nothing grand.
TNH: So is it your case’s account of the facts that the actions of the Turkish enforcement officers were ordered by president Erdogan?
AA: That is part of the factual consideration, that an order came down from above. And there are accounts that the order was from the president himself. We seek through the discovery process for the evidence to demonstrate that what took place that day reaches all the way to the top. We are prepared to challenge this in a court of law, as we have, and bring everyone to account for their actions and deeds on that day, including the president of the Republic of Turkey, who has been alleged to have given the order.
TNH: In videos of the events, people can be seen clashing in a broad area. Was that area part of the Turkish ambassador’s residence, or was it American soil?
AA: It was not the Turkish ambassador’s residence; it was across the street. There’s a sidewalk that envelops a public space which is a public monument park, it’s right in the heart of Washington’s Embassy Row. If you’re going through Massachusetts Avenue, you come to this roundabout. And inside the roundabout there is a green space, park space. In the center of that is a statue of Sheridan, and a couple embassies are around the circumference of that park. From the Turkish ambassador’s residence you have the setback, the sidewalk, the street, the sidewalk which takes you on to Sheridan Circle. The attack took place from the sidewalk – meaning after leaving the Turkish ambassador’s residence, crossing that sidewalk, crossing the street then on to the sidewalk, abutting Sheridan Circle. That’s where they were attacking the protesters. You can see protesters splayed on the sidewalk abutting Sheridan Circle being kicked by Turkish security agents.
TNH: Was there something specific that those assembled in front of the Turkish ambassador’s residence were protesting?
AA: There were different people protesting different aspects. But they were all protesting the politics and policies of the Turkish government. Obviously, it was around the time when we had incidents in Syria, with Turkey going into northern Syria and attacking Kurds there, but it was broader than that, because there were a spectrum of people that had been protesting the Turkish president’s presence all day. There were protests in Lafayette Park, which is adjacent to the White House, and this was just a continuum of that.
TNH: How did the violence start? The Turkish embassy had claimed Turkish-Americans were waiting to greet president Erdogan. Was it a conflict between these groups, was it the Turkish enforcement officers that attacked the protesters?
AA: Assembled on the Turkish ambassador’s residence were certainly pro-Turkish government individuals that spanned the spectrum, meaning assembled there were indeed Turkish security agents in various forms. They even had a special sort of commando unit. Along with that were assembled Turkish-Americans; purportedly, Turkish-Americans. In other words, individuals who had immigrated to the United States, or in Canada, and they had assembled there to show their pro-Turkish government support. They were assembled along and mixed in with the Turkish security agents. When the Turkish security agents unleashed their attack, a few of these individuals also decide to make their way across the street and into Sheridan Circle and attack the protesters. And two individuals indeed pled guilty and spent a year in jail.
TNH: On that point, many people can be seen in the videos attacking. Aside from the two you mentioned, were any other individuals ever arrested or charged for these incidents?
AA: If my memory serves me correctly, there were, I believe, 15 security agents that were charged. These 15 individuals are security agents of the Turkish national police force who serve on the security detail of president Erdogan. Those individuals were indeed charged with a different series of crimes. Charges have been dropped against a total of 11, I think. That happened, somehow, in the interplay between the Trump administration and the Erdogan administration. And some of these charges were dropped on the eve of Secretary Tillerson’s visit to Turkey. Note that when you say ‘charged’, or ‘arrested’, that is the public prosecution of a criminal activity. Prosecutors of the District of Columbia would prosecute criminally these individuals. Our case is a civil case, so that is why our case is brought against the Republic of Turkey, because we have to go through the confines of the foreign sovereign immunity act.
TNH: You mentioned that those who have faced charges, or who were arrested, include U.S., Canadian, and Turkish nationals. What about those injured? Are they American nationals?
AA: Some of them are.
TNH: What does it mean to be suing a country, rather than individuals?
AA: To put the civil proceedings in place you have to overcome something known as foreign sovereign immunity. Foreign countries are afforded sovereign immunity. Turkey is asserting sovereign immunity as its defense, and thus far has failed. Suing someone individually for an act that they’re executing while in government is going to be entangled in these immunity considerations. The way in which you sue for the acts of a president, an officer, an agent, a representative of a country is to actually sue the country itself, which is represented by the conduct of its agents – in this case the president and, then, derivatively, the entire presidential security staff. By naming, as we must, a sovereign – then, the only gate you are permitted to go through and have jurisdiction in the American courts attached is through the sort of legal architecture, specifically known as the Foreign Sovereign Immunity Act. You must find an exception that is applicable to the incident so that the foreign sovereign immunity does not prohibit the attachment of jurisdiction. In this case, all the decisions so far acknowledge that there is no exception to jurisdiction for the sort of conduct exercised by Turkey’s agents on that day, to essentially attack peaceful protesters.
TNH: For your case to get to court, it needs to move beyond Turkey’s appeals. The DC Court of Appeal court’s conclusive rejection means there is only one step left in Turkey’s appeals process. Do you expect Turkey to now try and argue this before the Supreme Court?
AA: When the court went beyond the pleadings and reviewed the facts, as Turkey even requested, to consider whether jurisdiction should attach, it made an unequivocal and clear determination that Turkey did not exercise any activity or even security discretion in the scope of what would offer it the defensive legality of immunity. Then Turkey appealed to a three-judge panel on the DC Court of Appeals.
Ten judges occupy positions in the appellate court, but only three are assembled per panel to review a decision. When Turkey appealed, the three judges accepted the briefing, heard oral argument, and then requested from the Department of Justice a brief detailing its position in consultation with the Secretary of State and in consultation with the Secret Service, asking for an amicus brief from the U.S. government, which by that time was the Biden administration.
The Biden administration filed a brief in which they made it clear that it did not appear to them that there should be any immunity from prosecution in this civil action. That was all reviewed by the three judge panel, which then upheld the district court’s finding that Turkey was not entitled to the defense of sovereign immunity. Turkey’s next move was to request a review of the three judge panel’s opinion by the entirety of the court, requesting all ten judges to hear the appeal and then to decide.
To decide, they would have needed six judges to side with Turkey to overturn the three-judge panel’s finding. No judge even voted to consider Turkey’s position, let alone support it. I say all of this to say to you I don’t know for sure how Turkey will continue its defense. But I will not put it past them to avail themselves of every incremental defense possible to simply slow, delay, and torture the process. But, as you can see, those opportunities are becoming fewer.
TNH: This is a very different country and a very different Supreme Court since 2017. President Trump is not in office, and three Trump-appointed justices sit on a decidedly more conservative court that might be asked to hear a case pitting the Foreign Sovereign Immunity Act against the First Amendment. How do you see things playing out in this context?
AA: I don’t believe that the Supreme Court would look to this case as a Trump-Biden type of political expression. I don’t think the nature of the controversy is one that lends itself to that sort of politicization. I think the nature of the controversy is one in which the court will give tremendous consideration. I would be very much surprised to see the patina and the color of domestic politics – that we have come to give a lot of voice to – being part what occurs in this case. Whether you’re a member of the political right or the political left, you see Americans being attacked on American soil while exercising freedom of speech. Who doesn’t support that freedom?
TNH: What does an end to this case look like for you?
AA: Accountability. Holding the malefactor accountable, based on the truth, for everyone to know it. This isn’t the first time that Erdogan and his security detail have attacked people while traveling. They’ve done it many times. They’ve done it at the UN, they did it at the Brookings Institution a year before, they’ve done it in Belgium… I think they did it many times in South Africa. They broke a legislator’s nose – I think it was Ecuador.
TNH: But how does ‘accountable’ translate?
AA: First is having a judgment that finds, as the facts show, that the Turkish president’s security detail attacked individuals expressing their freedom of speech. Two, that our clients are vindicated, that our clients know that in America they can walk onto the sidewalk and express their political views and speak freely. That they know this is not a country in which power can subjugate the freedom of speech, that this is a country in which no one is above the law. Just making that determination is tremendous. And then it’s a civil proceeding; an injury is met with compensation.