US says MBS' 'legal immunity' was unavoidable, albeit not so sure
The US executive branch claims it was not aware of the State Department's decision to give MBS immunity, reflecting a deepening rift in the country.
The Biden administration recommended to a US judge in mid-November that Saudi Crown Prince Mohammed bin Salman be granted immunity over the murder of journalist Jamal Khashoggi. The White House quickly distanced itself from the decision, claiming that it was an administrative matter handled by the State Department, not the executive branch, according to The Intercept.
The State Department, for its part, maintains that the ruling was the result of legal precedent. It had nothing to do with the "merits of the case," according to State Department Spokesperson Vedant Patel, who stated the expression nearly a dozen times during a single press conference.
“This — again, not to sound like a broken record, but this has nothing to do with the merits of the case,” he said. “And this designation stems from the fact that [MBS] is a head of government, which is consistent, long-standing international law, and they have no bearings on the bilateral relationship, on our views of the relationship, and no bearings on the merits of the case as well.”
Read next: Amnesty: US immunity to MBS 'deep betrayal'
Given the deference that courts are supposed to show to the government in such cases, the ruling means that the judge is almost certain to dismiss the lawsuit, according to The Intercept, which seeks to hold Saudi Crown Prince Mohammed bin Salman responsible for Khashoggi's murder.
However, in the weeks leading up to the decision, the White House's National Security Council met privately with Democracy in the Arab World Now, or DAWN — an advocacy group founded by Khashoggi and a plaintiff in MBS' lawsuit — specifically to discuss immunity.
According to multiple DAWN staffers, the NSC even asked the group to write a memo arguing for denying immunity, implying that White House officials were weighing the merits of the case alongside the State Department.
Oil for immunity
Two sources close to the Saudi royal family and administration confirmed to The Intercept that Saudi Arabia had asked the Biden administration to grant MBS immunity, as first reported by the Wall Street Journal in March. At the same time, the US wanted that the Kingdom to increase its oil production.
Judge John Bates asked the Biden administration in July for a formal decision on whether to grant MBS the immunity typically reserved for heads of state in the lawsuit, bringing the issue to the forefront just as the Biden administration was planning another trip to the Gulf to request oil.
MBS was then named Saudi Arabia's Prime Minister in late September, a move that required a special exception to the Kingdom's basic law, which states that only the king can be prime minister.
DAWN requested a meeting with the NSC in October to discuss "a few time-sensitive [sic] updates for you about our lawsuit and Saudi Arabia," according to email correspondence between the NSC and DAWN.
The NSC agreed and indicated they “may be joined by colleagues from the NSC’s legal office and Middle East office.”
According to DAWN staffers who requested anonymity to speak about a private meeting, the October 17 meeting eventually included three senior NSC officials, one of whom is a high-level intelligence official in the administration, as well as a human rights official. The meeting ended with the NSC requesting a memo from DAWN, which was then emailed.
The request for sovereign immunity was a "ploy", according to DAWN, who made a simple case: Head of state immunity is typically reserved for a country's leader, which in Saudi Arabia is the country's king, Salman bin Abdulaziz Al Saud — MBS' father.
Even the Trump administration was unwilling to grant immunity to MBS. Despite the fact that former President Donald Trump was much friendlier with the Saudis, according to The Intercept, his administration refused to intervene in a lawsuit filed against MBS by a former top Saudi counterterrorism official, Saad Al-Jabri, who accused him of sending a hit team to assassinate him in 2018.
The Biden administration's insistence that it is simply following legal precedent obscures the fact that it has discretion over who it recognizes as a head of state, according to The Intercept.