• Due to an extremely complicated and lengthy legal process, the odds of Enes Kanter, a permanent U.S. resident, being extradited to Turkey are very low.
By Michael McCann
January 16, 2019

To NBA fans, Enes Kanter is a solid, occasionally even spectacular, center for the New York Knicks. To the government of Turkish President Recep Tayyip Erdoğan, Kanter is a wanted fugitive.

In the latest twist in the acrimonious political battle between Kanter and Erdoğan, Turkey will seek to extradite Kanter from the United States. If the extradition is successful, Kanter would face criminal charges in Turkey for alleged involvement in an “armed terrorist organization.” Kanter is accused of using ByLock, an encrypted messaging app, to assist cleric Fethullah Gülen. A political rival to Erdoğan, Gülen lives in exile in Pennsylvania. He has been accused of trying to topple Erdoğan’s regime. Kanter has repeatedly denounced Erdoğan, labeling him a “maniac” and “the Hitler of our century.”

The 26-year-old center, who is averaging 14 points and 11 rebounds per game this season, will miss the Knicks’s Thursday game against the Washington Wizards in London. As I explored in a recent The Crossover legal column, Kanter says he fears that he would be assassinated if he traveled to London. The Knicks, in contrast, explain his absence as an immigration matter related to his lack of citizenship.

The many hurdles Turkey would need to climb in order to extradite Kanter

The odds of Kanter, a permanent U.S. resident, being extradited to Turkey are very low. Extradition is multi-step process that can take years to complete. At various points, federal agencies and federal courts can terminate the extradition request and thereby deny the requesting country custody of the person it seeks. Only after multiple points of favorable review would the U.S. State Department approve an extradition request and turn a detained person over to U.S. Marshall Service for international transfer.

The first step in assessing the possibility of Kanter’s extradition is to apply the extradition treaty between the United States and Turkey to Kanter’s situation. Signed in 1979 by President Jimmy Carter and legally enforceable as of 1981, this extradition treaty lists 33 “extraditable offenses”—meaning offenses that are eligible for extradition between the two nations. If an alleged offense is not one of the 33 listed, it is not extraditable. Placement on the list of 33 also doesn’t automatically ensure that an offense is extraditable. As the treaty stipulates, regardless of whether an offense is listed, the offense must be “punishable under both the federal laws of the United States and the laws of Turkey by deprivation of liberty at least for a period exceeding one year or by a more severe penalty.” To that point, the list of 33 includes “libel.” Such an offense is usually remedied through civil law in the U.S. Likewise, many state criminal statutes in the U.S. for libel have held unconstitutional or repeatedly challenged.

MCCANN: Taking Stock of Enes Kanter's Citzenship With Impending London Game Absence

The list of 33 offenses covers a wide-range of offenses that are indisputably crimes in both the U.S. and Turkey. Murder, rape and kidnapping are among them. None of those, however, is plausibly applicable to accusations levied against Kanter. Yet the list also includes non-violent offenses which Turkey might contend apply to Kanter. Turkey has depicted Kanter’s alleged crimes along the lines of treason, sedition, terrorism planning and fraud. With that in mind, the list of 33 offenses includes the following:

  • Offenses against the laws relating to civil disorders.
  • Offenses against the laws relating to organized criminal enterprises or associations.
  • Fraud, including breach of trust and offenses against the laws relating to the unlawful obtaining of money, property or securities.
  • Offenses against the laws relating to forgery, including the making of forged documents or records, whether official or private, or the uttering or fraudulent use of documents or records.

Whether Turkey possesses sufficient evidence of Kanter committing any applicable wrongdoing is unknown. If it sincerely hopes to extradite Kanter, Turkey would need to reveal its evidence—whether it is in the form of texts, emails, app messaging or sworn witness statements. Indeed, before the U.S. would permit an extradition, the requesting country (in this case Turkey) must show probable cause of a crime. The Fourth Amendment to the U.S. Constitution conditions a lawful arrest on a finding of probable cause, which requires that a reasonable person would conclude, based available facts and circumstances, that a crime has been committed or is about to be committed by an alleged assailant. If probable cause is not shown, the U.S. wouldn’t arrest the person sought by the requesting country. This is true even if the person could be lawfully arrested in the requesting country due to that country employing a less scrutinizing standard of arrest.

The U.S-Turkey extradition treaty also makes clear that even if evidence of wrongdoing exists, extradition would be impermissible if it is intended for political, rather than legal, purposes. To that end, here is a crucial clause in the treaty:

Extradition shall not be granted If the offense for which extradition is requested is regarded by the Requested Party to be of a political character or an offense connected with such an offense; or if the Requested Party concludes that the request for extradition has, in fact, been made to prosecute or punish the person sought for an offense of a political character or on account of his political opinions.

Using this language, Kanter (and his attorneys) would presumably argue that none of his supposed crimes are based on actual facts or evidence. Similarly, he’s poised to insist that Turkey’s allegations are intended to exact political revenge on him, a well-known critic of Erdoğan. Likewise, Kanter would highlight how Turkey’s attempts may be geared to defame him in front of his Americans fans and the U.S. media.

Kanter would also stress that while he is an unabashed critic of Erdoğan, political criticism is not a crime in the U.S. As seen continuously on Twitter and on other social media platforms, the First Amendment protects free speech—including direct and confrontational criticisms of political leaders.

Turkey would also need to satisfy a number of procedural steps before any extradition could occur.

As a starting point, Turkey would need to file an extradition request with the U.S. State Department. Such a request could be transmitted by Turkey's Ambassador to the U.S., Serdar Kilic, to U.S. Secretary of State Mike Pompeo or could be made in Turkey by Turkish officials to the U.S. Chargé d’Affaires in Turkey, Jeffrey Hovenier (there is currently no U.S. Ambassador to Turkey). The State Department, in turn, would notify Kanter about the request. If he hadn’t already, Kanter would retain legal counsel to contest the request’s progression.

After receiving the extradition request, the State Department, and its Legal Advisor, Jennifer Gillian Newstead, would assess its merits. This assessment would include examination of any documentation that Turkey provides and also publicly available materials. Those publicly available materials would quickly inform the State Department that Turkey’s interest in Kanter might be motivated more by political differences than the pursuit of legal justice.

If the request passes this first stage, the U.S. Department of Justice’s Office of International Affairs would then conduct its own review. The importance of a showing of probable cause (as explained above) would be paramount in the Justice Department’s analysis. If a finding of probable cause is made, the U.S. Attorney for the Southern District of New York would seek to arrest Kanter. Kanter would then appear in a probable cause hearing before a federal magistrate judge in New York.

Kanter’s attorneys would, of course, argue at every point that any detainment of their client is unlawful. They would portray Turkey’s extradition request as politically motivated and as intended to undermine Kanter’s human rights. The attorneys would also assert that extradition of Kanter would betray basic American principles of justice. Likewise, they would portray the potential extradition as one that would disturb all Americans and possibly have a chilling effect on free speech.

Even if the magistrate judge agrees with the Justice Department concerning probable cause, the State Department would not be obligated to approve the extradition. Kanter and his attorneys would reiterate their arguments. They would also include testimony and statements by third parties in favor of Kanter, such as Kanter’s teammates or coaches who would advocate for Kanter’s character and values. Only after yet another round of favorable extradition review would the Statement Department order Kanter’s extradition.

Interpol unlikely to cause any interruption in Kanter’s life

In addition to Turkey seeking to extradite Kanter from the U.S., the Turkish state news agency Anadolu reports that the country will file a “red notice” with the International Criminal Police Organization, which is better known as Interpol.

As a starting point, Interpol is not—as is sometimes depicted or suggested—an international police force. It is an affiliated network of law enforcement agencies from 194 countries, including the U.S. and Turkey. Member agencies use Interpol to more effectively share information about the whereabouts of fugitives and potential unlawful activities. Interpol, then, can’t “arrest” anyone. There are no global or world police officers. An arrest can only be made in a nation’s sovereign territory by a law enforcement official who has jurisdiction to make such an arrest. In the U.S., an arrest can only be made by an authorized U.S. law enforcement official, who must have probable cause to make such an arrest.

As to a “red notice”, it is simply an alert about a wanted fugitive. Through it, a member Interpol nation requests that other countries share information about a known fugitive and ideally arrests him or her.

For Kanter, his whereabouts are already well-known—he is an NBA player who appears in NBA arenas according to a well-publicized NBA schedule. Wherever he goes, the 6’11 center is instantly recognizable. He’s also an active participant on social media. It’s safe to say Kanter is hardly hiding. Also, I previously detailed on The Crossover, Kanter is unlikely to travel anywhere other than the U.S. and Canada as a consequence of his immigration status.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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