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…
Read More: Former State Dept. official raps Biden administration move to protect Saudi Crown Prince