Assessing bin Salman’s potential legal immunity

A little more than four years ago - on October 2, 2018 - prominent Saudi Arabian journalist and dissident Jamal Khashoggi, 59, was murdered in the Saudi embassy in Istanbul, Turkey. Khashoggi had been living in the United States for a number of years and writing for prestigious publications, especially the Washington Post.

Both the American CIA and Turkish intelligence declared that Mohammed bin Salman (MBS), crown prince and de facto leader of Saudi Arabia, sanctioned the murder. Khashoggi was killed, ironically enough, for criticizing bin Salman’s record of harsh treatment of Saudi dissidents, like himself.

Khashoggi had traveled to the Saudi embassy in Istanbul because Saudi authorities had told him he needed to go there to obtain a Saudi marriage license for himself and his fiancée. A small group of Saudi agents, including some from bin Salman’s own security squad, lay in wait there and murdered him. With their bone saw they dismembered Khashoggi’s body and disposed of the remains, which have never been found.

Two years later, on the October 2, 2020, anniversary of Khashoggi’s murder, presidential candidate Joe Biden, said this:

“Jamal Khashoggi and his loved ones deserve accountability. Under a Biden-Harris administration, we will reassess our relationship with the Kingdom, end U.S. support for Saudi Arabia’s war in Yemen, and make sure America does not check its values at the door to sell arms or buy oil. America’s commitment to democratic values and human rights will be a priority, even with our closest security partners. I will defend the right of activists, political dissidents, and journalists around the world to speak their minds freely without fear of persecution and violence. Jamal’s death will not be in vain, . . .”

But maybe it was in vain after all.

After the murder, and after the assessment that bin Salman had ordered it, Khashoggi’s fiancée Hatice Cengiz filed a lawsuit in a United States court against the crown prince. The organization Democracy for the Arab World Now (DAWN) joined in the lawsuit.

This past July, U.S. District Court Judge John Bates, presiding over the case, asked the U.S. Justice Department for its recommendation on whether bin Salman should be granted “sovereign immunity.” International law generally excludes heads of state from personal liability.

Judge Bates set a deadline of Sept. 30, 2022, for the response from the Justice Department. On Sept. 27, three days before the deadline, elderly Saudi King Salman bin Abdulaziz conveyed his title as prime minister to his son Mohammed bin Salman. Mohammed added the title to his role as crown prince, formalizing him as head of state, the position he was already exercising de facto.

It’s widely assumed that the king took the action in order to immunize his son from formal liability in the court case.

On Thursday of last week the U.S. State Department issued its opinion on whether bin Salman could legally be sued in the United States. Its decision: as prime minister and, therefore, the sitting head of the Saudi government, Mohammed bin Salman has immunity from the lawsuit.

Judge Bates will make the final call on bin Salman’s immunity. He could reject the State Department’s opinion, but because he asked for it, he’s not likely to oppose it. 

 Bin Salman has not relaxed his repression of dissidents in the years since Khashoggi’s murder. Far from it. The FBI, civil rights groups, and individual Saudis living abroad all claim that the crown prince/prime minister has intensified his crackdown on opposition. And now the U.S. has given him a Get Out of Jail Free card to do as he pleases.

The U.S. government could simply have refrained from answering Judge Bates’s request for an opinion.

Why did the Biden Administration decide otherwise? First, to prevent similar legal retaliation by Saudi Arabia and possibly other nations against top American officials if the U.S. proceeded with the lawsuit. Next, to prevent a possible reduction of Saudi oil sales to America. Also, to avoid losing a key Middle East ally against an increasingly dangerous Iran. 

Biden may have hoped that Saudi Arabia would gratefully decide to maintain significant exports of oil at existing prices. But bin Salman’s government chose instead to join other oil-producing nations in the OPEC cartel in reducing oil output, thereby raising the commodity’s worldwide price. That’s particularly galling considering the high rate of inflation currently plaguing countries around the planet.

The Administration’s decision is already getting sharp pushback from several congressional Democrats, as well as human rights organizations here and elsewhere. 

And with good reason. What’s to prevent bin Salman—or any other head of state with similarly harsh proclivities, for that matter—from authorizing assassinations of other dissidents now?

It isn’t as though the U.S. has always refrained from retaliating in court against heads of state. For instance, in 1988 U.S. authorities in Miami and Tampa indicted Manuel Noriega, who had taken control of the government of Panama, on charges of narcotics trafficking and money laundering. President George H.W. Bush ordered an invasion of Panama, forced Noriega to surrender, and jailed him in Florida. A new civilian government then assumed power in Panama.

In the bin Salman lawsuit situation, the Biden Administration apparently opted for trying to maintain a working relationship with Saudi Arabia, despite the sharp criticism it knew would rain down upon it. The decision didn’t stop the oil cartel from cutting production, nor did it encourage bin Salman to ease his crackdown on dissidents.

The episode points up how dependence on oil holds America hostage. The situation probably demands two responses. First, an increase in America’s own oil production; that’s the short-term answer. Second, the conversion of vehicle power from gasoline to electricity—the long-term solution. 

Until then, no United States administration is likely to take the measures necessary to restrain the Saudi royal family.