Biden administration ‘drags its feet’ on Mohammed bin Salman’s immunity decision

When the Biden administration filed a legal brief last week to grant sovereign immunity to Saudi Crown Prince Mohammed bin Salman in a civil case involving the murder of journalist Jamal Khashoggi, it said it was strictly legal determination It did not reflect his views on the “heinous” murder.

“In every case, we just followed the law. And that’s what we did,” US Secretary of State Antony Blinken later said.

But a closer examination of the Biden administration’s actions, including interviews with legal experts and people closely following the case, suggest the controversial decision was anything but straightforward.

Early last summer, the administration’s decision to delay action and seek months of legal extension before presenting its views on the case to a US judge Saudi Arab An unprecedented opportunity to protect Prince Mohammed through a legal maneuver that placed him above the law and beyond the reach of the American legal system. Once that happened, the Biden administration really said its hands were tied.

“If you look at the sequence of events, it’s not hard to see that it was a fight between Biden and mohammed bin salman Playing,” said a close observer, who asked not to be named so that they can speak freely. “I would hate to imagine that our judicial system was being bargained for and integrity was taking over.”

US District Court Judge John Bates was the first to invite the US government to join the civil case against Prince Mohammed on 1 July. At the center of the request was a lawsuit filed in 2020 by Khashoggi’s fiancee Hatice Cengiz against the crown prince and his associates, accusing Prince Mohammed and his associates of conspiring to abduct, torture and murder Khashoggi at the Saudi consulate in Istanbul went. In 2018.

Bates’ request was straightforward. He gave the administration 30 days – until August 1 – to submit a “statement of interest” and weigh whether the heir to the Saudi throne should be granted sovereign immunity in the case, or tell the court that He didn’t want to make a statement. He also wanted the administration to look at how the court can reconcile the protections granted to foreign leaders and those who are victims of torture or extrajudicial killings by using US law to hold perpetrators accountable. allows.

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At the time, Prince Mohammed – clearly – was not sovereign. In Saudi Arabia, that distinction belonged only to his father, King Salman, at the time.

Harold Koh, a former legal adviser to the State Department during the Obama administration who is now a professor of international law at Yale Law School, said the US had competing interests at the time. On the one hand, the US insists on the principle of reciprocal immunity in order to offer protection from courts of law to its own head of state. But it had to be weighed against Biden’s statements about human rights at the center of his administration’s foreign policy and “the unflinching understanding that the president means what he says”.

Koh said, “All things considered, silence would be the better way to balance those competing national interests,” adding that there would have been “ample precedent” for the State Department to remain silent.

On July 15, Joe Biden met Prince Mohammed in Jeddah, a meeting that began with punching and “reset” his relationship with a leader he once called an untouchable. It later emerged that the meeting was also the start of a campaign by the administration to try to persuade Saudi Arabia not to cut oil production ahead of the US midterm elections.

Back in Washington, just days later on July 18, the US asked Judge Bates for an extension, saying it needed time to consult with multiple entities within the administration regarding “complex issues of international and domestic law”. is required. While agreeing, the court has given America time till October 3 to respond.

Weeks later, on 23 September, Brett McGurk, a Middle East policy coordinator for the US National Security Council (NSC), and Amos Hochstein, a US senior adviser for energy security, visited Jeddah again to discuss energy policies. .

Days later, on 27 September, the Saudi royal court announced that Prince Mohammed was prime minister nominated, a role that was and is generally held by the Saudi king. Observers noted that the apparent promotion did not confer any major new duties or rights on Mohammed bin Salman. Human rights defenders saw this as a ploy to influence the US recommendation on sovereign immunity, which was due about a week later.

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The US government, citing “changed circumstances”, requested a second extension to prepare its response and was granted until 17 November. Days after missing its October 3 deadline, OPEC+ announced it was cutting oil production by 2m barrels a day, criticized by Democrats for interfering in the US election and Russia’s interference in US interests. was seen as an attempt to seek sides.

Biden promised that Saudi Arabia would face “consequences” for the decision, but did not specify any specific actions he planned to take against the kingdom. On 17 November, hours before the midnight deadline, the administration filed a notice that it believed Prince Mohammed, as prime minister, was a sovereign as a standard matter of international law. deserve to be treated.

A spokesman for the NSC told the Guardian that the US President was briefed on the decision on the exemption, which was based on “well-established principles of common law”.

When the Guardian asked the spokesman whether any US official had ever suggested to Saudi Arabia that Prince Mohammed might be appointed prime minister before the matter became public, the spokesman said: “It is an attempt by Saudi Arabia to It was an independent decision.”

People familiar with the matter say legal questions about Prince Mohammed’s status have been hotly debated inside the State Department, where views differed about the best course of action.

In the debate within the administration, senior officials such as McGurk who have sought to promote the rehabilitation of Saudi-US relations have sidestepped policy objectives focused on human rights.

“This administration took this decision because Mohammed bin Salman is the prime minister. But he dragged his feet so much… It was clearly a policy decision that he waited and stayed,” said a person who has advocated for greater prominence of human rights in decisions around policy.

Leaders like Prince Mohammed were “legitimately concerned” when Biden first came to power and vowed to hold the Saudi heir accountable for human rights abuses.

“And when they came into the office, the execution wasn’t there,” the person said. Even when Biden decided to release a declassified intelligence report that found Prince Mohammed ordered the assassination, there were no sanctions against him.

The person said: “It set the stage and indicated that rhetoric does not match substance.”

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