Biden administration says Saudi crown prince immune from lawsuits in murder of Khashoggi Transcript

The State Department issued a legal opinion yesterday that said Saudi Arabia’s Crown Prince and Prime Minister Mohammed bin Salman, known as MBS has immunity from US Courts. The Crown Prince has been sued in the US by the fiance of journalist Jamal Khashoggi. He was murdered in Saudi’s Istanbul Consulate in 2018, and US intelligence believes MBS ordered the killing. Meantime for months, the Biden administration has been pushing Saudi Arabia to increase oil production amid high gas prices. So should the US have been tougher with Saudi Arabia. For that, we get two views. John Bellinger was the legal advisor to the State Department during the George W. Bush administration, and Gregory Stanton is a former State Department lawyer and founder and president of Genocide Watch a non-profit that seeks to stop genocide and its perpetrators. Welcome to you both. Thank you for being here. Let’s jump right in. Greg, what do you make of this call by the US? Was this the right decision?

I think the State Department got this wrong. The fact is that the law here is the Foreign Sovereign Immunities Act of the United States, and in the opinion they gave, they only cited customary international law. In fact, the Foreign Sovereign Immunities Act has a number of exceptions that have been actually passed by Congress and signed into law. The 2008 Defense Act was accompanied with an exception to allow people to sue certain governments that were declared to be terrorist states. But then in 2016, there was another act passed, the Justice for Victims of Terrorist Act that specifically takes away the need for the State Department to designate a country as a terrorist country, and it makes it possible to actually sue anybody involved in murder, in torture, in hijacking and in hostage taking.

You Think this should have fit under that exception?

I think that it’s very clear that MBS was responsible for the murder and for the torture of Jamal Khashoggi.

Let me bring in John on that point then. I mean President Biden has said, and he did agree with the CIA assessment that MBS did order the operation that led to Khashoggi killing. So why issue immunity in a murder case?

Well, I think for the reasons you just mentioned, this was a very uncomfortable, if not unpalatable decision for the Biden administration to have to make given the really awful circumstances of the killing of for Jamal Khashoggi. But the administration was simply complying with its obligations under international law. International law recognizes that heads of state and government, like now Prime Minister bin Salman, enjoy immunity from civil suits or in fact from criminal prosecutions in the courts of other countries. So under international law, he had immunity here and for that reason, going back decades, every administration has asserted immunity on behalf of any foreign head of state who is sued here in the United States often for really horrific actions. When I was legal advisor of the State Department, I had to sign a immunity determination for Pope Benedict who was sued with respect to the clergy scandal. So this was not a favor to Saudi Arabia. This was simply compelled by international law.

Greg, what do you say to that? Decades of precedent here.

I think the reason that that doesn’t hold here is that MBS is not the head of state in Saudi Arabia.

He’s Prime Minister, right?

Well, they just made him Prime Minister, so he might be able to argue this point, but the fact is the head of state in Saudi Arabia is the king. This is just a prince. So the only one who would have this right under the international law would be the king.

What would be the US options in this case? What would you have liked to seen happen?

What I would’ve liked to see is that he could be sued, and that is specifically allowed under the Foreign Sovereign Immunity Act and its exceptions. He’s not being tried criminally here. This is a lawsuit to get a compensation for the murder of a man, a very great man in fact. So for me, this is not a case where it was governed by international law at all. It was governed by the Foreign Sovereign Immunities Act.

John, what about the concerns that there could be political considerations here? We know about the tensions, we know about the Biden administration asking them to increase oil production. Could that have influenced the decision?

Candidly, I think the political considerations would’ve gone the other way. I think the Biden administration was probably so angry with Saudi Arabia right now and really upset about this particular killing that their policy view would’ve been not to find immunity. But international law provides that a head of government like this as well as a head of state as well as foreign ministers enjoy immunity. And unfortunately, with respect to what Mr. Stanton said, the Foreign Sovereign Immunities Act does not apply in circumstances like this. The Supreme Court held a few years ago that the immunity of heads of state or government is governed by international law. So I think the Biden administration here, perhaps in fact looking back at things that happened during the Trump administration said, we want to comply with international law, do what the United States regularly does, even though it’s unpalatable in these circumstances.

Could the US have not done anything? Could they not have put their-

Exactly. There is no requirement under the Foreign Sovereign Immunities Act that the State Department have to give an opinion to the Justice Department.

And that would mean that he could then still be sued. Is that correct?

That’s correct. He could be. It’s really up to the judge. In other words, this is a judicial decision. It didn’t have to be an opinion from the State Department. And as I have already said, I think the State Department got this wrong. And not only that, there was Supreme Court case in 2010 in which Justice Stevens held and the court decided unanimously that foreign officials do not qualify for sovereign immunity. And that is why this is, I think, a misapplication of law.

John, at the end of the day, what does this mean then, if he is now shielded from any kind of suit? What does this mean for any accountability for the murder of Jamal Khashoggi?

Well, this is really the concern. When someone can’t be sued, then the argument is the person has impunity or there’s not accountability. It doesn’t mean that at all. And in fact, the Biden administration went to great pains to state in their legal brief that we condemn the killing, it was wrong, it was heinous, but simply observing international law here, Mohammed bin Salman had immunity in these courts, but there would be other ways to hold him accountable, just not in the courts of the United States. If the US is going to comply with our longstanding obligations under international law and act the way we always have, which is to recognize the immunity of foreign heads of state, as we expect candidly other states to treat our head of state in their courts.

It is certainly another layer on a very complicated relationship between the US and Saudi Arabia. Gregory Stanton, John Bellinger, thank you both so much for being here.

Nice to be with you.