In a response to a July invitation by U.S. District Court 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.
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, King Salman, 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 constitution gives the executive branch sole power to make decisions related to foreign policy.
Khashoggi’s fiance, Hatice Cengiz — who waited outside the Saudi consulate in Istanbul while Khashoggi went inside 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.
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, Turkey to capture or kill” the Saudi journalist because he was perceived as a dissident whose activities undermined the monarchy.
Khashoggi wrote columns for The Washington Post 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 report at the time, although its contents were widely leaked. Biden ordered its declassification and release weeks after taking office last year.
Judge Bates’ 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” because of 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 believe 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 could 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.
But the administration had little choice in the court matter, according to John B. Bellinger III, who served as legal counsel to both the State Department and the National Security Council under President George W. Bush.
“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.
Both Republican and Democratic administrations have consistently asserted immunity on behalf of dozens of foreign heads of state who have been sued in the United States for alleged torture, extrajudicial killings, and other serious offenses, he said, adding that as legal adviser at the State Department: “I asserted immunity on behalf of Pope Benedict, who had been sued for failing to investigate sex abuses by the clergy.”
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 Saudi Arabia’s prime minister less than two months ago, 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.
Judicial deference to what is officially known as an administration’s “Suggestion of Immunity” has been absolute in the past. “In no case has a court subjected a person to suit after the Executive Branch has determined that the head of state or head of government is immune,” the filing said.
A State Department spokesperson said the Biden administration has repeatedly expressed its “grave concerns regarding Saudi agents’ responsibility for Jamal Khashoggi’s murder.”
It has “raised them publicly and with the most senior levels of the Saudi government,” while imposing “financial sanctions and visa restrictions,” related to the killing, the spokesperson said.
“This Suggestion of Immunity … speaks to nothing on broader policy or the state of relations” between the two countries, the spokesperson said. “This was purely a legal determination.”
Missy Ryan, Spencer S. Hsu and Kareem Fahim contributed to this report.
