Fri. Dec 2nd, 2022

The Biden administration has told a US court that Mohammed bin Salman should be granted sovereign immunity in a civil case involving the killing of journalist Jamal Khashoggi, effectively ending the latest attempt to hold the Saudi crown prince legally responsible for the 2018 murder.

In a filing released late Thursday, the Biden administration said the crown prince’s recent promotion to the role of prime minister meant he was “the sitting head of government and, therefore, immune” from suit.

“The United States government has expressed grave concern about the horrific killing of Jamal Khashoggi and has expressed those concerns publicly and at the highest levels of the Saudi government,” the Justice Department filing said, adding that the US had also imposed financial sanctions. and visa restrictions related to murder.

“However, the doctrine of head of state immunity is well established in customary international law and has been consistently recognized in long-standing executive practice as a status-based decision that does not reflect a judgment about the conduct at issue in the underlying litigation,” it said.

The government’s filing included an attached letter from Richard Visek, the US State Department’s acting legal adviser, instructing the Justice Department to submit an “immunity motion” to the court.

Legal experts say the US government’s position, which was filed in US District Court, is likely to lead Judge John Bates to dismiss a civil suit brought against Prince Mohammed and his alleged accomplices by Hatice Cengiz, Khashoggi’s outspoken fiancee.

Dawn, a pro-democracy advocacy group founded by a slain Washington Post columnist, was a co-plaintiff in the case, which alleged that Prince Mohammed and other Saudi officials acted in “conspiracy and premeditation” when Saudi agents kidnapped, bound, drugged, tortured and killed Khashoggi in the Saudi consulate in Istanbul in 2018.

Sarah Leah Whitson, Dawn’s executive director, issued a scathing rebuke to the administration following its decision, calling it “an unnecessary, elective action that will only serve to undermine the most important action to hold Khashoggi accountable for his heinous murder.”

“It is more ironic that President Biden personally convinced [Mohammed bin Salman] can avoid accountability when it was President Biden who promised the American people that he would do everything to hold him accountable. Not even the Trump administration did that,” she said.

In June, Bates called on the Biden administration to weigh whether it believed Prince Mohammed should be granted sovereign immunity in the case, and agreed to give the US government two extensions before demanding it submit its views by November 17.

A legal observer close to the matter said it had always been understood that while the US government was not a party to the civil suit, its views would be decisive and that the judge in the case would likely proceed with the case or dismiss it depending on the US government’s position.

The Biden administration’s decision — which will effectively snuff out Cengiz’s last hope for justice — is likely to draw fierce criticism from Democratic lawmakers on Capitol Hill, who have pressured the administration to take a tougher stance toward its Middle Eastern partner. One lawyer close to the issue said the decision was “catastrophic for accountability, for human rights, for impunity.”

The legal decision also makes it clear that US President Joe Biden has completely abandoned his campaign promise to hold Prince Mohammed responsible for Khashoggi’s murder.

It raises questions about Biden’s public statements last month, in which he said Saudi Arabia would face “consequences” for the Opec+ decision to cut oil production, a move the US administration saw as siding with Russia over the interests of US allies. .

People familiar with the matter said the decision came after “a great deal of discussion” at the highest levels of the White House, with some senior US officials saying it would be difficult to defend the Biden administration’s claim that human rights is at the center of its foreign policy while simultaneously allowing “MBS”, as the crown prince is known, to avoid responsibility for his alleged role in the murder.

Cengiza’s lawyers argued that she turned to US courts for help because no other forum – including her native Turkey – had an independent enough judiciary to fairly rule on her complaint. Prince Mohammed denied that he was personally involved in the murder of Khashoggi.

Since June, it has been clear that the future of the case hinges on whether in the eyes of the US government Prince Mohammed – widely regarded as Saudi’s de facto ruler – is considered a sovereign, like a president or a king, since in most cases sovereigns are considered immune from US lawsuits.

When Biden first entered the White House, he refused to speak directly to Prince Mohammed. His press secretary at the time repeatedly claimed that the prince – although he is considered the de facto leader of Saudi Arabia – was not Biden’s counterpart.

At the same time, US intelligence agencies released an unclassified report saying Prince Mohammed likely ordered Khashoggi’s murder. The president’s attitude changed last summer, when he visited Jeddah and met with the crown prince, punching the crown prince.

The question of whether the prince is truly sovereign became more complicated in September when King Salman announced that Prince Mohammed would be elevated to the position of prime minister. The decision, which was announced just days before the US government was due to issue an opinion on the Cengiz case, was seen by human rights defenders as a ploy to avoid responsibility for Khashoggi’s murder.

If the civil action is allowed – which is unlikely – it would allow Cengiz and Dawn to seek the ouster of the crown prince. If Prince Mohammed loses the case, he could be liable for damages.

“This would mean that every time he comes to the US – if he is found guilty – they could hand out a warning and impose a fine. It would be humiliating and would actually mean he would no longer be able to travel to the US,” said Bruce Riedel, a former CIA analyst and fellow at Brookings.

It is unlikely that any of this will come true now.

“The pariah is now above the law,” Riedel said.