An American judge asked The Biden administration to consider whether Mohammed bin Salman, the crown prince of Saudi Arabia, should be granted sovereign immunity in a civil suit brought against him in the United States by Hatice Cengiz, the fiancee of Jamal Khashoggi, the journalist who was killed by Saudi agents in 2018.
District Court Judge John Bates gave the US government until August 1 to declare its interest in the civil case or notify the court that it has no opinion on the matter.
The administration’s decision could have a profound effect on the civil case and comes as Joe Biden faces criticism for abandoning his campaign promise to turn Saudi Arabia in “pariah”.
The US president is due to meet the heir apparent to the Saudi throne later this month, when he will make his first trip to Riyadh since entering the White House.
The civil complaint against Prince Mohammed, which was filed by Cengiz in federal district court in Washington in October 2020, alleges that he and other Saudi officials acted in “conspiracy and premeditation” when Saudi agents kidnapped, bound, drugged , tortured and killed Khashoggi at the Saudi consulate in Istanbul in 2018.
Khashoggi, a former Saudi insider who fled the kingdom and was a resident of Virginia, was a vocal critic of the young crown prince and was actively trying to counter Saudi online propaganda at the time he was killed.
After years of inaction against Prince Mohammed by Donald Trump, who was president when Khashoggi was killed, the Biden administration moved to release an unclassified U.S. intelligence report in 2021, shortly after Biden entered the White House, that concluded , that Prince Mohammed was probably ordered the murder of Khashoggi.
At the time of the report’s release, Saudi Arabia’s foreign ministry said the kingdom’s government “strongly rejects what is stated in the report submitted to Congress.”
While Saudi Arabia said it had held a trial against the strike team responsible for the grisly killing, the proceedings were widely condemned as a fraud and some of the team’s most senior members were spotted at a state security compound in Riyadh.
Other possible avenues for justice were blocked for political reasons. In March, Turkish prosecutors ended a long-running trial absent trial against Khashoggi’s killers, in a move seen as part of Turkish President Recep Tayyip Erdogan’s attempts to improve relations with Prince Mohammed.
The Saudi prince claimed responsibility for the assassination on behalf of the Saudi government, but denied any personal involvement in planning the assassination.
For supporters of Cengiz, who has been an outspoken advocate for justice in Khashoggi’s murder, any move by the US government to call on the crown prince to receive sovereign immunity in the case would be a betrayal of Biden’s pledge to hold Saudi Arabia accountable.
“It would be absurd and unprecedented for the administration to defend him. This will be the final nail in the coffin of trying to bring Khashoggi’s killers to justice,” said Abdullah Alaoud, research director of Dawn, a nonprofit that promotes democracy in the Middle East founded by Khashoggi and a co-plaintiff in the case against the heir to the throne.
Judge Bates said in an order issued on Friday that he would hold a hearing on August 31 following requests to drop the civil case by Prince Mohammed and others.
The requests to drop the civil case are based on claims by Prince Mohammed’s lawyers that the District of Columbia court lacks jurisdiction over the crown prince.
“In the opinion of the court, some of the grounds of dismissal advanced by the defendants may affect the interests of the United States; moreover, the court’s decision on the defendants’ motions may be aided by knowledge of the views of the United States,” Bates said.
The judge said he specifically invited the U.S. government to submit a declaration of interest regarding the applicability of the so-called state act doctrine, which states that the U.S. must refrain from reviewing the actions of another foreign government in its courts; the interaction of this doctrine with a 1991 law that gave Americans and non-citizens the right to bring legal claims in the US for torture and extrajudicial killings committed in foreign countries; the applicability of head of state immunity in this case; and the US view on whether Saudi Arabia’s sovereign interests could be harmed if the case proceeds.
Agnes Callamard, head of Amnesty International, which investigated Khashoggi’s killing in her previous role as UN special rapporteur on extrajudicial killings, said it was “ridiculous” that Prince Mohammed, whom she called “almost sovereign”, could take advantage by the head of state immunity after the US itself concluded publicly that he most likely approved the operation to kill Khashoggi.
Noting that Prince Mohammed is not a king, she added: “MBS [as the crown prince is known] is not the ruler of Saudi Arabia and the US should not recognize him as head of state. It will give him authority and legitimacy that he certainly does not deserve and hopefully will never get.”
Cengiz could not immediately be reached for comment. The Saudi embassy in Washington was not immediately available for comment.