In a response to a July invitation by U.S. District Judge John Bates to submit a statement of interest in the case, the administration said in a court submission late Thursday that because Mohammed is Saudi Arabia’s “sitting head of government,” he is “immune from this suit” under international law.
In a letter accompanying the submission, State Department acting legal adviser Richard C. Visek said the department “takes no view on the merits of the present suit and reiterates its unequivocal condemnation of the heinous murder of Jamal Khashoggi.”
Relations between the administration and the kingdom, already frayed over U.S. criticism of Saudi human rights violations, worsened in recent months when President Biden failed to persuade Riyadh not to cut its oil production as energy prices rose sharply in the United States and around the world.
U.S. officials sought to depict the determination as a legal conclusion bearing no relation to the administration’s stance on Khashoggi’s murder.
White House communications official John Kirby said Biden had raised the gruesome incident with Mohammed and his father, King Salman, during a recent visit to the kingdom. He pointed to punitive steps the administration had taken in response to the murder, including visa bans for some officials believed to have been involved.
“The president has been very, very clear, and very vocally so, about the brutal, barbaric murder of Mr. Khashoggi,” Kirby told reporters Friday.
The administration suggested its hands were tied by international law prohibiting courts in one country from taking action against another country’s head of state while in office. Mohammed’s father named him prime minister in September.
The filing, and Visek’s letter instructing the Justice Department to submit State’s conclusions to the court, also stated that the U.S. Constitution gives the executive branch sole power to make decisions related to foreign policy.
Khashoggi’s fiancee, Hatice Cengiz — who waited outside the Saudi Consulate in Istanbul while Khashoggi went in to obtain documents needed for their marriage — and Democracy for the Arab World Now (DAWN) sought unspecified punitive and compensatory damages under the 1991 Torture Victim Protection Act. Khashoggi was killed inside the diplomatic mission by Saudi agents, who dismembered his body. His remains have never been found.
DAWN Executive Director Sarah Leah Whitson said the administration’s decision “not only undermines the only effort at judicial accountability for Khashoggi’s murder; it signals that our government will ensure impunity for a tyrant like MBS … no matter how heinous his crimes and embolden him further.” Mohammed is widely known by his initials, MBS.
The Biden administration’s determination sparked criticism from some Democratic allies, including Sen. Robert Menendez (D-N.J.), chairman of the Senate Foreign Relations Committee, who called it a “great disappointment.”
“Autocrats can’t be led to believe they can get away with attacking & murdering journalists & dissidents,” he said on Twitter.
Sen. Tim Kaine (D-Va.) said the administration could have refrained from issuing a determination. “Instead, it has chosen to take the side of the party that our own intelligence agencies have concluded is responsible for the murder, and is standing against family members seeking recompense for this gross injustice,” he said in a statement.
Saudi Arabia convicted a number of its officials for the murder, while denying Mohammed had any knowledge of their activities.
But the CIA, in a classified assessment just months after the murder, concluded that Mohammed “approved an operation in Istanbul to capture or kill” the Saudi journalist because he was perceived as a dissident whose activities undermined the monarchy.
Khashoggi wrote columns for The EuroJournal and other outlets that criticized the crown prince, who, as de facto ruler even before his father made him prime minister, carried out harsh crackdowns against rivals and dissidents.
President Donald Trump refused to declassify the U.S. intelligence report at the time, although its contents were widely leaked. Biden ordered its declassification and release weeks after taking office last year.
The judge’s invitation to the administration came less than two weeks before Biden traveled to Saudi Arabia for the first time in his presidency in July. That trip prompted accusations that the president was flip-flopping on his campaign promise to make Saudi Arabia a “pariah” over Khashoggi’s murder.
Before the visit, the Saudis touted it as one that would “enhance the historic and strategic partnership between the Kingdom of Saudi Arabia and the United States of America … and lay the foundations for the future.”
Biden returned with what he believed was an agreement that OPEC Plus, the energy cartel the Saudis co-chair, would continue to increase oil production to make up for international shortages caused largely by Ukraine-related sanctions against Russian exports. When the cartel later announced production cuts, Biden said there would be “consequences” for Riyadh.
Since then, however, the administration has been looking for signs that the tight, decades-long security relationship between the United States and Saudi Arabia can be salvaged. One indication could be a Saudi decision to stop the cuts, or increase production, next month, when oil sanctions against Russia, an OPEC Plus member, are due to increase.
Deputy State Department spokesperson Vedant Patel said officials were consulting with Congress as part of the examination of U.S. ties with the kingdom.
“Following the OPEC Plus decision, the president was very clear that a review reevaluating the relationship is required,” he told reporters at the State Department.
John B. Bellinger III, who served as legal counsel to both the State Department and the National Security Council under President George W. Bush, said the administration had little choice in the court matter. The immunity finding was signed off on by the State Department’s chief lawyer.
“I’m sure this was a difficult decision for the administration, but international law recognizes that heads of state have immunity from civil suits in the courts of other nations,” he said.
The U.S. government “has always asserted” this, even when the accused “have been sued for heinous offensives,” Bellinger said.
Customary international law — doctrine that is considered binding even if not written down — holds that immunity from prosecution in foreign jurisdictions applies to serving heads of state and government, as well as foreign ministers. The administration’s decision would probably have been far more difficult before Mohammed was named prime minister, as he was not immune in his previous post as defense minister.
The granted immunity does not cover some 20 other Saudi defendants named in the lawsuit. Courts have regularly followed such executive branch findings, officials said.
Brian Finucane, a former State Department lawyer who is now a senior adviser at the International Crisis Group, said there had been instances when the U.S. government had declined to submit such a finding regarding a foreign official, included in cases involving Taiwan, Ghana and Angola. But even if the State Department hadn’t weighed in on this case, the court may have well concluded that Mohammed was immune, he said.
Finucane said a chief concern of successive administrations was the potential for American leaders to be subject to prosecution in foreign courts.
“Reciprocity concerns lie at the core of this rule,” he said. “Coming to a different conclusion would have been a major departure.”
Spencer S. Hsu and Kareem Fahim contributed to this report.
