A former top legal adviser to Secretary of State Antony Blinken is criticizing the State Department’s controversial move to recommend that Saudi Crown Prince Mohammed bin Salman, otherwise known as MBS, be granted immunity as “head of state,” to shield him from a lawsuit for his role in the brutal 2018 assassination and dismemberment of the Saudi journalist Jamal Khashoggi.
Harold Koh, who served as State Department legal adviser under President Barack Obama and later as a senior adviser to Blinken during his first year as secretary of state, said in an interview Friday with Yahoo News that the department should have simply remained silent in the case, rather than stake out a legal position that effectively amounts to “carrying MBS’s water.”
The move could also set a precedent, protecting other world leaders who might be accused in lawsuits of serious crimes, such as Russian President Vladimir Putin, Koh added.
“It seems strange,” Koh said of the court filing Thursday night by current State Department acting legal adviser Richard C. Visek. “It was better not to say anything. You want the Saudis to think that Biden’s words about human rights mean what they say.”
Koh also dismissed the assertion made by the department in a letter to the federal judge overseeing the Khashoggi lawsuit that MBS is legitimately the Saudi “head of state,” noting that Saudi Arabia is a kingdom headed by his father. Moreover, MBS was only formally designated prime minister two months ago, after questions about his status had already become central in the lawsuit.
“If he’s the head of state, that means his father, the king, is not the head of state?” said Koh. As for MBS’s recent designation by the Saudis that he is prime minister, he added, “It was flagrantly done for the purpose of getting this immunity.”
The filing came in a lawsuit filed in U.S. district court in Washington, D.C., by Khashoggi’s fiancée, Hatice Cengiz, and DAWN (Democracy for the Arab World Now), the human rights group founded by Khashoggi. Citing two federal statutes that permit victims of gross human rights abuses to sue the perpetrators in U.S. courts, the suit accused MBS of ordering the grisly murder of Khashoggi and the carving up of his body with a bone saw inside the Saudi consulate in Istanbul.
The claims were bolstered by the Biden administration’s release last year of a U.S. intelligence summary concluding that MBS approved the operation that dispatched a team of Saudi operatives to Istanbul for the purpose either of killing Khashoggi or abducting him. But ever since the case was filed, there were questions whether MBS — who has been effectively exercising power in the country ever since his father, King Salman, designated him as heir apparent in 2017 — could be sued in a U.S. courtroom.
Lawyers for the Saudis argued that he could not be subject to a U.S. lawsuit, under a longstanding tradition of immunity afforded foreign sovereigns. U.S. Judge John Bates, who is overseeing the lawsuit, asked the State Department to weigh in on the issue. After several deadlines passed, the State Department finally sent a surprise letter to the court Thursday night. Technically, the department’s letter amounts to a recommendation, and Judge Bates still has the discretion to reject it. But given that the federal judiciary generally defers to the executive branch on foreign policy matters, the expectation is that Bates will accept it.
“The State Department recognizes and allows the immunity of Prime Minister Mohammed bin Salman as a sitting head of government of a foreign state,” the letter, signed by acting legal adviser Visek, stated. “Under common law principles of immunity articulated by the Executive Branch in the exercise of its Constitutional authority over foreign affairs and informed by customary international law, Prime Minister bin Salman as a sitting head of government is immune while in office from the jurisdiction of the United States District Court in this suit.”
Visek’s letter pointedly added: “In making this immunity determination, the Department of State takes no view on the merits of the present suit and reiterates its unequivocal condemnation of the heinous murder of Jamal Khashoggi.”
The letter comes at a delicate time in U.S.-Saudi relations, which have only grown more fraught since the Saudis joined with the Russians in cutting back oil production, a move that potentially could drive up gas prices for American consumers.
The Biden administration has already come in for heavy criticism over the president’s visit to Saudi Arabia last spring, during which he famously fist-bumped MBS. The White House later explained that this gesture was intended not as a show of support but to avoid the possible spread of COVID-19.
While campaigning for president, Biden specifically cited the Khashoggi murder when said he intended to make Saudi Arabia a “pariah” state, and Visek’s letter would appear to signal the effective end of that pledge.
“This is something that President Biden specifically promised to the American people to the entire world — that is, that he would hold Mohammad bin Salman accountable for the murder of Jamal Khashoggi,” said Sarah Leah Whitson, executive director of DAWN, the human rights group that filed the lawsuit, in an interview on the Yahoo News Skullduggery podcast. “So it's pretty remarkable that he's gone out of his way to intervene in a lawsuit that he didn't have to intervene in and suggest immunity for [MBS] on very shaky legal grounds.”