Decision to Grant Immunity Undermines Only Action for Accountability for Murder of Jamal Khashoggi
(Washington D.C., November 17): The Biden administration's recognition of Crown Prince Mohamed bin Salman's (MBS) status as head of government in Saudi Arabia suggesting his immunity from prosecution in the lawsuit against him for the murder of Jamal Khashoggi is a mistake as a matter of law and policy, said Democracy for the Arab World Now (DAWN).
The organization's lawsuit in federal district court, together with Hatice Cengiz, Khashoggi's widow, seeks to hold MBS and 20 co-defendants liable for the murder under federal and state laws.
"The Biden administration's decision to suggest immunity for MBS in our lawsuit was an unnecessary, elective action that will serve only to undermine the most important action for accountability for Khashoggi's heinous murder," said Sarah Leah Whitson. "It's beyond ironic that President Biden has single-handedly assured MBS 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."
The Biden administration filed its suggestion of immunity with the court today, which is traditionally determinative on the court. Until this time, both the Trump and Biden administrations had stayed out of the the civil lawsuit for Khashoggi's murder. DAWN's lawsuit alleges that MBS and his co-conspirators ordered the abduction, torture, murder, dismemberment, and disappearance of Khashoggi for the purpose of silencing and preventing him from continuing his efforts in the United States as a voice for democratization in the Middle East, principally as DAWN's executive director, the role he held until his murder.
Neither the Trump nor Biden administrations previously had agreed to Saudi government demands to suggest immunity for MBS in multiple lawsuits pending against him in the United States. In March, MBS reportedly refused a meeting with President Biden and Biden's request to increase Saudi oil output unless the Biden administration granted him immunity from the lawsuits. On July 1, district court judge John Bates, who is hearing the case, issued a deadline of August 1 for the Biden administration to submit a statement of interest on whether MBS should be granted sovereign immunity. Prior to President Biden's scheduled trip to meet with MBS in Riyadh, the administration asked Judge Bates for an extension of the deadline; the court granted a first delay to October 3.
On September 27, just days before the October 3rd deadline for the Biden administration to weigh in on immunity, King Salman issued an unprecedented royal decree providing an exception to Article 56 of the Basic Law of Governance, which states that the King serves as prime minister. The decree appoints MBS to act as prime minister, in an apparent effort to secure "head of government" immunity. On September 30, the Justice Department asked for a 45-day delay to respond to the immunity question, citing the "new circumstances" of MBS' appointment as prime minister. On October 5, the Saudi government announced it would slash oil output at its meeting with OPEC member states, widely seen as a snub of U.S. requests for increased output to quell rising oil prices.
"It's impossible to read the Biden administration's move today as anything more than a capitulation to Saudi pressure tactics, including slashing oil output to twist our arms to recognize MBS's fake immunity ploy," said Whitson. "Rather than rewarding MBS with impunity for his merciless crimes, Biden should have stood up for American values and legal principles."
While immunity typically extends to sitting heads of state, heads of government, and foreign ministers, Saudi Arabia is an absolute monarchy where all power resides ultimately in the King. The decree appointing MBS as prime minister was an unprecedented, exceptional and temporary modification of the Basic Law that designates the King to serve as the prime minister, and it has effect only so long as MBS is crown prince. The designation of immunity is a transparent and bad-faith ploy, designed not to add a substantive role to MBS' responsibilities, but exclusively to gain MBS immunity from lawsuits.
DAWN's lawsuit includes as defendants senior advisers to MBS who played a leading role in organizing Khashoggi's murder, Saud Al-Qahtani and General Ahmed Assiri. They have joined MBS in filing a motion to dismiss the lawsuit against them. DAWN's lawsuit against MBS's co-conspirators will proceed regardless of whether or not MBS succeeds in evading jurisdiction.
"Whether or not MBS succeeds in worming out of this lawsuit, we will extract in discovery against his co-defendants every last bit of evidence about his role in this murders," said Whitson. "Try as he might, he will not succeed in burying his crime."
