The Biden administration says Mohammed bin Salman should be granted sovereign immunity in the Khashoggi civil case

The court filing says the Saudi crown prince's promotion to the role of prime minister means that he is the 'seated head of government and, therefore, immune'

The Biden administration has told US courts that Mohammed bin Salman should be granted sovereign immunity in a civil case involving the killing of journalist Jamal Khashoggi, effectively ending last-ditch efforts to hold the Saudi crown prince legally accountable for the 2018 killing.

In filings released late Thursday, the Biden administration said the crown prince's recent promotion to the role of prime minister meant that he was the "sitting head of government and, therefore, immune" from the lawsuit.

"The United States government has expressed serious concern about the gruesome murder of Jamal Khashoggi and has raised these concerns publicly and with the most senior levels of the Saudi government," the Justice Department said in its filing, adding that the US had also imposed financial sanctions. and visa restrictions related to the murder.

“However, the doctrine of immunity for the head of state is well established in customary international law and has been recognized consistently in long-standing executive branch practice as a status-based determination that does not reflect a judgment on the conduct underlying the issue in litigation,” it said.

The government filing includes an attached letter from Richard Visek, acting counsel for the US state department, instructing the Department of Justice to submit a "advice of immunity" to the court.

Legal experts say the US government's position, submitted to US district court, is likely to get judge John Bates to drop a civil case brought against Prince Mohammed and his accomplices by Hatice Cengiz, Khashoggi's outspoken fiancé.

Dawn, a pro-democracy advocacy group founded by the slain Washington Post columnist, is a co-plaintiff in the case, which alleges that Prince Mohammed and other Saudi officials acted in "conspiracy and premeditation" when Saudi agents kidnapped, tied up, drugged , tortured, and killed Khashoggi inside the Saudi consulate in Istanbul in 2018.

Sarah Leah Whitson, Dawn's executive director, issued a scathing rebuke from the government after the decision, calling it an "unnecessary elective act that will only undermine the most important action for accountability for the heinous murder of Khashoggi".

“It is ironic that President Biden singlehandedly convinced [Mohammed bin Salman] to escape accountability when it was President Biden who promised the American people that he would do everything to hold him accountable. Not even the Trump administration is doing this,” he said.

In June, Bates invited the Biden administration to consider whether it believes Prince Mohammed should be granted sovereign immunity in the matter, and agreed to give the US government two extensions before demanding that he present his views by November 17.

Legal observers close to the matter say it was always understood that, even if the US government was not a party to the civil lawsuit, its view would be decisive, and that the judge in the matter would likely either pursue the case or dismiss it depending on the US government's position.

The Biden administration's decision – which would essentially extinguish Cengiz's last hope for justice – is likely to come under heavy criticism from Democratic lawmakers on Capitol Hill, who have been urging the administration to take a tougher stance on its Middle East counterparts. A lawyer close to the matter said the decision "undermines accountability, human rights, impunity".

The legal ruling also makes it clear that US president Joe Biden has completely abandoned his campaign promises to hold Prince Mohammed accountable for Khashoggi's killing.

This raises questions about Biden's public remarks last month, in which he said Saudi Arabia would face "consequences" for leading the OPEC+ decision to cut oil production, a move seen by the US administration as siding with Russia over the interests of America's allies. .

People familiar with the matter said the decision came after a "huge debate" at the top levels of the White House, with some senior US officials arguing it would be difficult to defend the Biden administration's claim that human rights were central. his foreign policy while simultaneously allowing "MBS," as the crown prince is known, to avoid accountability for his alleged role in the assassination.

Cengiz's lawyers argue that he sought the assistance of US courts because no other forum - including his native Turkey - has a judiciary independent enough to try his complaint fairly. Prince Mohammed has denied he was personally involved in Khashoggi's killing.

It has been clear since June that the future of the case hinged on the question of whether in the eyes of the US government Prince Mohammed – widely seen as the de facto Saudi ruler – is deemed sovereign, like a president or a king, since in most cases the ruler is considered immune from US prosecution. .

When Biden first entered the White House, he refused to engage directly with Prince Mohammed. His press secretary has repeatedly argued that the prince – although seen as the de facto Saudi leader – is not a Biden partner.

At the same time, US intelligence agencies released a classified report saying that Prince Mohammed may have ordered Khashoggi's killing. The president's attitude changed last summer, when he visited Jeddah and met with the crown prince, punching the heir to the throne.

The question of whether the prince is indeed sovereign became more complicated in September when King Salman announced that Prince Mohammed would be appointed to the position of prime minister. The decision, which was announced just days before the US government was considering the Cengiz case, was seen by human rights defenders as a ploy to avoid accountability for Khashoggi's killing.

If the civil case is allowed to proceed – which is unlikely – it will allow Cengiz and Dawn to request the crown prince's deposition. If Prince Mohammed loses the case, he can be held liable for damages.

“That means that whenever he comes to the US – if he is found guilty – they will be able to give a notice and issue a fine. It would be embarrassing and effectively mean he would not be able to travel to the US again,” said Bruce Riedel, a former CIA analyst and researcher at Brookings.

It is unlikely that all this will now happen.

“Untouchables are now above the law,” said Riedel. 

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