A federal judge has given the Biden administration an August 1 deadline to render an opinion on whether Saudi Crown Prince Mohammed bin Salman should be granted sovereign immunity in a civil suit filed by Hatice Cengiz, the widow of journalist Jamal Khashoggi.
Mohammed bin Salman, commonly referred to as MBS, stands accused of ordering Khashoggi’s October 2018 murder at the Saudi consulate in Istanbul. A Washington, DC resident and writer for the Washington Post, Khashoggi was an outspoken critic of the crown prince and was launching an organization called Democracy for the Arab World Now (DAWN).
“In the Court’s view, some of the grounds for dismissal advanced by defendants might implicate the interests of the United States; moreover, the Court’s resolution of defendants’ motions might be aided by knowledge of the United States’ views,” wrote Judge John Bates, according to Middle East Eye.
The judge’s deadline will arrive just two weeks after Biden’s mid-July trip to Saudi Arabia. Human rights activists have condemned Biden for a visit that will betray his campaign promise—animated by Khashoggi’s murder—to turn the kingdom into an international “pariah.”
Biden’s pledge came at a 2019 Democratic debate. When asked if he would “punish” senior Saudi leaders for Khashoggi’s murder, Biden replied:
“Yes….Khashoggi was in fact murdered and dismembered, and I believe on the order of the crown prince. And I would make it very clear we were not going to in fact sell more weapons to them. We were going to in fact make them pay the price, and make them in fact the pariah that they are. There’s very little social redeeming value…in the present government in Saudi Arabia.”
The Biden administration leveled sanctions against 76 Saudis associated with the murder, but spared MBS.
The backlash over Biden’s Saudi Arabia trip would grow exponentially if it’s quickly followed by a recommendation of sovereign immunity that shields MBS from Khashoggi’s fiancee, who paced outside the Saudi consulate deep into the night, waiting for him to come back outside.
The White House has the option to simply give the court notice that it has no view on the sovereign immunity question.
However, even if the Biden administration is content to see MBS face civil suit scrutiny, the U.S. government may have its own reasons to help kill the lawsuit: If the case proceeds to discovery, plaintiff attorneys will be pressing the U.S. government to release its own sensitive files on the murder.
Indeed, when the suit was filed, DAWN executive director Sarah Leah Whitson said, “We look forward to seeing MBS in court and finally obtaining discovery of all of the evidence—including who knew what, when, in our own government—implicating MBS and his co-conspirators in this vicious crime.” DAWN is a plaintiff alongside Cengiz.
MBS has acknowledged the Saudi government’s responsibility for the murder, but denies any personal involvement in it. A CIA assessment concluded with “medium to high confidence” that MBS “personally targeted Khashoggi.” Noting the killers were from MBS’ top security units, the CIA said, “We assess it is highly unlikely this team of operators…carried out the operation without Muhammed bin Salman’s authorization.”
The application of the U.S. Foreign Sovereign Immunities Act—a 1972 law that supports a longstanding international principle that rulers and governments shouldn’t be subject to other country’s laws—is complex. In making a determination on a claim of sovereign immunity, courts grant considerable deference to the executive branch.
“Courts’ deference to executive suggestions of immunity stems from a recognition of the executive’s exclusive control over and superior expertise in the implementation of foreign policy,” explains Eleanor Runde at Lawfare. “But whether executive branch suggestions of immunity are absolutely binding or merely weighty is an open question.”
The suit by Cengiz and DAWN also targets some 30 other Saudis accused of participating in the plot to lure Khashoggi to the Saudi consulate under the pretext of giving him a certificate of marriage eligibility, murder him and dismember his body, which has never been recovered.
Drawing on media accounts citing intelligence and other sources, the complaint filed in the civil suit covers the grisly details of a highly-organized plot (start on page 34) that even included a Khashoggi body double walking around Instanbul in the dead man’s clothes. The New York Times video embedded below provides a more cinematic overview that incorporates security camera footage.