The Biden administration has told a US court that Mohammed bin Salman should be granted sovereign immunity in a civil case involving the murder of journalist Jamal Khashoggi, effectively ending a last ditch attempt to hold the Saudi crown prince legally accountable for the 2018 killing.
In a filing released on late on Thursday night, the Biden administration said the crown prince’s recent promotion to the role of prime minister meant that he was “the sitting head of government and, accordingly, immune” from the lawsuit.
“The United States government has expressed grave concerns regarding Jamal Khashoggi’s horrific killing and has raised these concerns publicly and with the most senior levels of the Saudi government,” the Department of Justice said in its filing, adding that the US had also imposed financial sanctions and visa restrictions related to the murder.
“However, the doctrine of head of state immunity is well established in customary international law and has been consistently recognized in longstanding executive branch practice as a status-based determination that does not reflect a judgment on the underlying conduct at issue in the litigation,” it said.
The government’s filing included an attached letter from Richard Visek, acting legal adviser to the US state department, instructing the Department of Justice to submit a “suggestion of immunity” to the court.
Legal experts say the US government’s position, which was filed to a US district court, will likely lead judge John Bates to dismiss a civil case brought against Prince Mohammed and his alleged accomplices by Hatice Cengiz, the outspoken fiancee of Khashoggi.
Dawn, a pro-democracy advocacy group that was founded by the murdered Washington Post columnist, was a co-plaintiff in the case, which alleged that Prince Mohammed and other Saudi officials acted in a “conspiracy and with premeditation” when Saudi agents kidnapped, bound, drugged, tortured and killed Khashoggi inside the Saudi consulate in Istanbul in 2018.
Sarah Leah Whitson, Dawn’s executive director, issued a scathing rebuke of the administration in the wake of its decision, calling it an “unnecessary, elective action that will serve only to undermine the most important action for accountability for Khashoggi’s heinous murder”.
“It’s beyond ironic that President Biden has single-handedly assured [Mohammed bin Salman] can escape accountability when it was President Biden who promised the American people he would do everything to hold him accountable. Not even the Trump administration did this,” she said.
In June, Bates invited the Biden administration to weigh in on whether it believed Prince Mohammed should be granted sovereign immunity in the matter, and agreed to give the US government two extensions before demanding that it file its views by 17 November.
A legal observer close to the matter said it has always been understood that, even though the US government is not a party to the civil claim, its views would be decisive, and that the judge in the matter would very likely proceed with the case or dismiss it depending on the US government’s position.
The Biden administration’s decision – which in effect will extinguish Cengiz’s last hope for justice – will likely be met with intense criticism by Democratic lawmakers on Capitol Hill, who have pressed the administration to take a tougher stance against its Middle East partner. One lawyer close to the matter said the decision was “disastrous for accountability, for human rights, for impunity”.
The legal decision also makes clear that US president Joe Biden has fully abandoned a campaign promise to hold Prince Mohammed accountable for Khashoggi’s murder.
It raises questions about Biden’s public remarks last month, in which he said Saudi Arabia would face “consequences” for leading an Opec+ decision to cut oil production, a move that was seen by the US administration as siding with Russia over the interests of American allies.
People familiar with the matter said the decision was reached after a “big debate” at the top levels of the White House, with some senior US officials arguing that it would be difficult to defend the Biden administration’s claim that human rights are at the centre of its foreign policy while simultaneously allowing “MBS”, as the crown prince is known, to skirt accountability for his alleged role in the murder.
Cengiz’s lawyers have argued that she turned to the US courts for help because no other forum – including her native Turkey – had an independent enough judiciary to fairly adjudicate her complaint. Prince Mohammed has denied he had personal involvement in the Khashoggi murder.
It has been clear since June that the future of the case hinged on the question of whether in the eyes of the US government Prince Mohammed – widely seen as Saudi’s de facto ruler – was considered a sovereign, like a president or king, since in most cases sovereigns are considered immune from US lawsuits.
When Biden first entered the White House, he declined to engage with Prince Mohammed directly. His press secretary argued repeatedly at the time that the prince – though seen as Saudi’s de facto leader – was not Biden’s counterpart.
At the same time, US intelligence agencies released an unclassified report that said Prince Mohammed had likely ordered Khashoggi’s murder. The president’s stance changed last summer, when he visited Jeddah and met with the crown prince, giving the heir to the throne a fist bump.
The question over whether the prince was indeed a sovereign got more complicated in September when King Salman declared that Prince Mohammed would be elevated to the position of prime minister. The decision, which was made public just days before the US government was due to weigh in on the Cengiz case, was seen by human rights defenders as a ploy to avoid accountability for the Khashoggi killing.
If the civil case is allowed to proceed – which is unlikely – it would allow Cengiz and Dawn to seek a deposition of the crown prince. If Prince Mohammed lost the case, he could be liable for damages.
“It would mean that any time he comes to the US – if he were to be found guilty – they would be able to serve notice and issue a fine. It would be humiliating and would effectively mean he could not travel to the US again,” said Bruce Riedel, a former CIA analyst and fellow at Brookings.
It is unlikely any of this will now come to pass.
“The pariah is now above the law,” Riedel said.
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