• Biden administration seeks immunity for Saudi Arabia’s Crown Prince Mohammed bin Salman.
• Suit brought by fiancée of Jamal Khashoggi, who was murdered at the prince’s order.
• The State Department argues that he is eligible for immunity as a foreign head of state.

In a case brought against him by the fiancée of Washington Post journalist Jamal Khashoggi, who the administration has claimed was murdered at the prince’s order, the Biden administration has decided that Saudi Arabia’s Crown Prince, Mohammed bin Salman, should be given protection.

Attorneys from the Justice Department filed a court document at the State Department’s request because bin Salman recently became the prime minister of Saudi Arabia and is now eligible for immunity as a foreign head of state, according to the request.

It was submitted late Thursday night, just before the Justice Department was required by the court to weigh in on the prince’s claims of immunity and other defenses for the dismissal of the complaint.

“Mohammed bin Salman, the Prime Minister of the Kingdom of Saudi Arabia, is the sitting head of government and, accordingly, is immune from this suit,” the filing reads, while calling the murder “heinous.”

The choice is likely to elicit a hostile response. The fragile US-Saudi relationship was supposed to be put back on track by President Joe Biden’s visit to Saudi Arabia in July, but things have only gotten worse since then.

In the wake of an oil output cut by Saudi-led OPEC+, which the administration perceived as a direct affront to the US, the relationship is being reevaluated, according to the White House.

If the prince is granted amnesty, members of Congress who are already enraged by the oil cut and clamoring for a reevaluation would undoubtedly become even more enraged.

The original complaint against bin Salman and 28 other people was filed in October 2020 in the Washington, DC, Federal District Court by Hatice Cengiz, Khashoggi’s fiancée, and DAWN, the human rights group based in Washington that the late writer created.

At the Saudi consulate in Istanbul, they allegedly “kidnapped, tied, drugged, tortured, and killed” Jamal Khashoggi before dismembering his body. His remains were never discovered.

“Biden himself betrayed his word, betrayed Jamal,” Cengiz told media. “History will not forget this wrong decision.”

Cengiz also tweeted, “Biden saved the murderer by granting immunity. He saved the criminal and got involved in the crime himself. Let’s see who will save you in the hereafter?”

The executive director of DAWN, Sarah Leah Whitson, called the immunity request a “shocking outcome” and a “massive concession” to Saudi Arabia.

“It’s really beyond ironic that President Biden has basically delivered an assurance of impunity for Mohammed bin Salman, which is the exact opposite of what he promised to do to hold the killers of Jamal Khashoggi accountable,” Whitson told media.

In a report on Khashoggi’s murder released in February 2021, just as Biden started office, the US intelligence agency claimed that bin Salman had given the go-ahead for the operation that resulted in the journalist’s murder and dismemberment.

Bin Salman denied the charges and asked for protection from prosecution, arguing that his many official and royal roles had granted him immunity and exempted him from US legal authority.

However, because he was the Crown Prince rather than a head of state, head of government, or foreign minister, bin Salman was not eligible for sovereign immunity.

After that, bin Salman was elevated to prime minister by his father, King Salman, who would typically hold that post, just a few days before the Biden administration was scheduled to comment on the subject of immunity last month.

According to DAWN’s Whitson, that was a “ploy” to get purported head of state immunity, and the Justice Department then requested a postponement.

Now that bin Salman is prime minister, “the government ought to recommend that he’s entitled to immunity” said law professor William Dodge at the University of California Davis Law School, who had previously written that the prince wasn’t entitled to immunity.

“It’s almost automatic,” Dodge said, “I think that’s why he was appointed prime minister is to get out of this.”

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The court extended an invitation to the State Department to determine whether it had immunity, but it was not obligated to do so. A spokeswoman stated that rather than reflecting present diplomatic ties or efforts, their plea for exemption for bin Salman is based on long-standing common and international law.

“This Suggestion of Immunity does not reflect an assessment on the merits of the case. It speaks to nothing on broader policy or the state of relations,” a department spokesperson told media. “This was purely a legal determination.”

A request for comment from the Saudi embassy in Washington, DC, did not receive a prompt response.

In a case brought against him by former Saudi counterterrorism official Saad Aljabri, who claimed the prince sent a hit squad to kill him in Canada just days after Khashoggi’s death, Bin Salman had also asserted his immunity. The same judge dismissed that case for additional reasons.

“After breaking its pledge to punish MBS for Khashoggi’s assassination, the Biden administration has not only shielded MBS from accountability in US courts, but effectively issued him license to kill more detractors and declared that he would never be held accountable,” Aljabri’s son, Khalid, told media on Thursday.

Biden’s trip to Saudi Arabia in July, during which the president uncomfortably fist-bumped the crown prince he claimed to still hold accountable for Khashoggi’s murder, drew heavy criticism for the White House.

Biden claimed that when he brought up the murder at the beginning of their discussion, the prince continued to deny guilt.

“I was straightforward and direct in discussing it. I made my view crystal clear,” said Biden.

The 15-person Saudi team that arrived in Istanbul in October 2018 at the time Khashoggi was killed included members of the Saudi Center for Studies and Media Affairs (CSMARC) at the Royal Court, led by a close adviser of bin Salman, as well as “seven members of Muhammad bin Salman’s elite personal protective detail, known as the Rapid Intervention Force,” according to a four-page report from the US intelligence community published in 2021.

According to the report, bin Salman believed Khashoggi posed a threat to the Kingdom and was “generally in favour of employing harsh means, if necessary, to quiet him.”

The intelligence report said that they did not have visibility on when the Saudis had decided to harm the father of five.

“Although Saudi officials had pre-planned an unspecified operation against Khashoggi we do not know how far in advance Saudi officials decided to harm him,” it said.

According to Khashoggi’s fiancee Cengiz, officials “created a chance to murder him” as Khashoggi tried to obtain the documents he needed to get married at the embassy in Washington, DC.

They informed him that the Istanbul consulate was the only location where he could obtain the paperwork they required, she added.

Khashoggi and Cengiz were married in a traditional Islamic ceremony two weeks before his scheduled appointment on October 2, 2018, the day he was slain, according to the lawsuit.

“The Administration’s decision to encourage courts to uphold MBS’ sovereign immunity is yet another disappointing chapter in a series of failures to hold Saudi leadership accountable for brutally murdering Jamal Khashoggi,” a senior congressional Democratic aide said.

“Actions such as this contradict the Administration’s hollow assurances of accountability and fly in the face of our own intelligence assessments of MBS’ involvement.”

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