Biden administration says Mohammed bin Salman should be granted sovereign immunity in Khashoggi civil case | Jamal Khashoggi

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 a last-ditch effort to hold the Saudi crown prince legally responsible for the 2018 killing.

In a filing released late Thursday night, 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 the lawsuit.

“The US government has expressed serious concerns regarding the horrific killing of Jamal Khashoggi and has raised those concerns publicly and with the highest levels of the Saudi government,” the Justice Department said in its filing, adding that the US had also imposed economic sanctions. and visa restrictions in connection with the 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 on the underlying conduct at issue in the litigation.” it said.

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

Legal experts say the US government’s position, filed in US District Court, is likely to prompt 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 the slain Washington Post columnist, was a co-plaintiff in the case, which alleged that Prince Mohammed and other Saudi officials acted in a “conspiracy and premeditation” when Saudi agents kidnapped, bound, drugged , tortured and killed Khashoggi at 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, optional action that will only serve to undermine the most important act of accountability for Khashoggi’s heinous murder”.

“It is more than ironic that President Biden has single-handedly assured [Mohammed bin Salman] can escape accountability since it was President Biden who promised the American people that 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 consider whether it believed Prince Mohammed should be granted sovereign immunity in the case, agreeing to give the US government two extensions before requiring it to submit its views by November 17 .

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

The Biden administration’s decision — which will effectively snuff out Cengiz’s last hope for justice — is likely to be met with intense criticism from Democratic lawmakers on Capitol Hill, who have pushed the administration to take a tougher stance toward its Middle Eastern partner. A lawyer close to the case 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 a campaign promise to hold Prince Mohammed accountable for Khashoggi’s murder.

That 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 seen by the US administration siding with Russia over the interests of American allies. .

People familiar with the matter said the decision came after a “huge debate” at the highest 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 in the center of its foreign policy, while “MBS”, as the crown prince is known, can escape responsibility 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 decide her complaint. Prince Mohammed has denied that he was personally involved in the murder of Khashoggi.

It has been clear since June that the future of the case hinged on the question of whether Prince Mohammed – widely seen as Saudi’s de facto ruler – was regarded in the eyes of the US government as a sovereign, as a president or king, as in most cases sovereigns to be immune from US lawsuits.

When Biden first entered the White House, he declined to engage directly with Prince Mohammed. His press secretary repeatedly asserted at the time that the prince — though seen as Saudi Arabia’s de facto leader — 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 stance changed last summer when he visited Jeddah and met with the crown prince, giving the heir apparent a fist bump.

The question of whether the prince was actually a sovereign became more complicated in September when King Salman declared that Prince Mohammed would be elevated to the position of prime minister. The decision, which was announced just days before the US government was to decide on the Cengiz case, was seen by human rights activists as a ploy to avoid responsibility for the Khashoggi murder.

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

“It would mean that every time he comes to the US – if he was found guilty – they would be able to serve a warning and issue a fine. It would be humiliating and would effectively mean he could not travel to the US again,” Bruce said Riedel, a former CIA analyst and fellow at Brookings.

It is unlikely that any of this will now happen.

“Pariah is now above the law,” Riedel said.

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