Refusal to Disclose Report Has No Valid Security Justification, Merely Offers Protection to Implicated Crown Prince, Mohamed bin Salman
(Washington D.C., January 14, 2021): Democracy for the Arab World Now (DAWN), represented by the law firm Jenner & Block, has filed an amicus brief in support of the Open Society Justice Initiative's complaint against the Office of the Director of National Intelligence (ODNI). The lawsuit relies on the Freedom of Information Act to compel the ODNI to make public the contents of a classified report it sent to Congress in February 2020 detailing the names and roles of Saudi officials involved in the murder of our founder, Jamal Khashoggi. DAWN's brief argues that the Director of National Intelligence's refusal to reveal this information constitutes bad faith, not valid security interests, and is contradicted by the Trump Administration's own public statements framing the protection of MBS as a way to maintain arms sales.
"Disclosure of the U.S. government's evidence about the culprits in the murder of Jamal Khashoggi is vital not just to our organization but to the American and global publics at large," said Sarah Leah Whitson, Executive Director of DAWN. "Uncovering the full details of the crime, and the Trump Administration's hasty cover-up, will provide a vital measure of public accountability for this heinous crime by Saudi Arabia's most senior government officials."
Section 1277 and Section 5714 of the National Defense Authorization Act (NDAA) for the Fiscal Year 2020 required the ODNI to submit unclassified reports to Congress that included information about the names and roles of Saudi officials involved in Khashoggi's murder. The ODNI rejected the NDAA mandate to submit an unclassified report, claiming that doing so would jeopardize intelligence sources and methods. Instead, it released only a classified version of the document to Congress on February 20, 2020. Open Society Justice Initiative filed a lawsuit on November 9, 2020 that aims to reveal the contents of this classified report by challenging the spurious ODNI arguments to exempt the report from release on grounds of national security.
Following the murder of Khashoggi, the Trump administration sought to cover up the responsibility of Saudi Crown Prince Mohamed bin Salman in the murder, notwithstanding overwhelming evidence linking him to the murder, including the report of United Nations Special Rapporteur on extrajudicial, summary or arbitrary killings, Agnès Callamard, which pointed to credible evidence of high-level Saudi involvement, including the Crown Prince. The Central Intelligence Agency's conclusion that MBS was responsible for the murder leaked to the press, leading to Congressional demands for a public report on their evidence.
"Continuing to serve as protector for Crown Prince Mohammed Bin Salman by failing to make public information about his role in Khashoggi's murder is bad policy for the United States," Whitson said. "It emboldens dictatorial thugs across the region and sends the message that the US government will protect them from accountability when they target human rights advocates, journalists and civilians."
DAWN's brief argues that the refusal of the Director of National Intelligence to reveal the identities of, and information about, the perpetrators constitutes bad faith with no valid national security interest or purpose, and is contradicted by the Trump Administration's own public statements, which has framed the US's protection of MBS as a way of maintaining arms sales.
The brief states,
"The Trump Administration has treated the case of Khashoggi's murder with marked bad faith. It has, on the record, offered competing and inconsistent justifications to release the information, in the face of pressure from Congress and the United Nations. The coziness of the relationships between bin Salman and both President Trump and Kushner, subject to criticism within the Administration, casts doubt on the fair-minded nature of deliberations on the release of the documents. And, President Trump himself has remarked that his treatment of the case stems not from any national security concerns, but instead from his own attempt to help bin Salman escape accountability and "save [bin Salman's] ass."
Amit Patel of Jenner & Block submitted the brief on behalf of DAWN. The firm also represents DAWN in its lawsuit against Mohammed Bin Salman and other Saudi officials, seeking civil and punitive damages for ordering the abduction, torture, murder, dismemberment, and disappearance of Mr. Khashoggi. The Saudi Crown Prince has requested a declaration of immunity from the State Department in another lawsuit where he is charged with the attempted murder of a Saudi exiled official, Dr. Saad al-Jabri, but it is unclear whether the Trump administration will be able to make such a recommendation before the expiry of its term.
"We will push the incoming administration to keep President-elect Biden's promise to hold Mohamed bin Salman accountable for the murder of Jamal Khashoggi, and that must include taking measures well in the administration's control: release of the DNI report and refusal to grant MBS immunity," said Whitson. "We hope the Biden administration will stay true to its word, but if it doesn't we will ensure our courts compel it."