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U.S. Backs Immunity for Saudi Leader in Lawsuit Over Khashoggi Murder

ISTANBUL — The Biden administration has declared that Crown Prince Mohammed bin Salman of Saudi Arabia should be granted immunity in a U.S. legal case over his role in the murder of the Saudi dissident Jamal Khashoggi, effectively blocking yet another effort to hold the kingdom’s leader accountable for the grisly crime.

Mr. Khashoggi was a well-known Saudi journalist who fled Saudi Arabia for the United States and published columns in The Washington Post criticizing Prince Mohammed’s policies. In October 2018, he was killed and dismembered by a team of Saudi agents inside the kingdom’s consulate in Istanbul, where he had gone to obtain papers he needed to marry his Turkish fiancée. U.S. intelligence concluded that Prince Mohammed had ordered the operation.

Prince Mohammed, 37, became prime minister in September, formalizing the power he had wielded for years as Saudi Arabia’s de facto ruler, although his elderly father, King Salman, remains the official head of state.

In a letter to the Justice Department on Thursday, the State Department said Prince Mohammed should be “immune while in office” as the head of the Saudi government, referring to his role as prime minister.

Prince Mohammed has said repeatedly that he had no prior knowledge of the plot against Mr. Khashoggi, but that he accepted symbolic responsibility for it as the nation’s de facto ruler.

The letter said that the State Department did not take a position on the suit itself and reiterated “its unequivocal condemnation of the heinous murder” of Mr. Khashoggi. But it asked the Justice Department to formally request that the federal court in Washington, where the case was filed, grant Prince Mohammed legal immunity. The letter said the department was responding to a request by the judge, John D. Bates, for the U.S. government to weigh in on any issues related to the case, including “the applicability of head-of-state immunity.”

The final decision will rest with the judge.

The action by the Biden administration angered human rights activists, who say that failing to punish Prince Mohammed, widely known as M.B.S., for the killing of a high-profile journalist could encourage other autocrats to do the same.

A makeshift memorial for Mr. Khashoggi outside the consulate of Saudi Arabia in Istanbul, where he was killed, in 2018.Credit…Yasin Akgul/Agence France-Presse — Getty Images

“Caving into M.B.S.’ immunity ploy — when silence was an option for the administration — not only rewards M.B.S. for his intransigence, including continued attacks on activists in the U.S., but signals GO to tyrants around the world,” Sarah Leah Whitson, the executive director of DAWN, a human rights group co-founded by Mr. Khashoggi, wrote on Twitter.

If autocratic leaders have oil and money, Ms. Whitson wrote, “You’re safe, whatever your crimes.”

Senator Tim Kaine, Democrat of Virginia, where Mr. Khashoggi was a resident, and a member of the Senate Foreign Relations Committee, said he was “deeply disappointed in the State Department’s decision to intervene” in the lawsuit.

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“The administration had no duty to take a proactive position and could have simply refrained from doing so,” he added.

There was no immediate comment from the Saudi government.

The State Department spokesperson’s office released an unusually long statement on Friday that said the agency’s recommendation to the court was purely a legal determination and did not reflect any broader policy considerations.

“The U.S. government’s suggestion of immunity in this case is based on longstanding and well-established principles of common law, including customary international law, which the United States has consistently and across administrations applied to heads of state, heads of government and foreign ministers while they are in office,” the statement said.

“Across administrations, there is an unbroken practice of the United States recognizing immunity for heads of government while they are in office — and we expect other governments to do the same for the United States,” the statement continued.

The department went on to stress that the Biden administration has consistently “expressed its grave concerns regarding Saudi agents’ responsibility” for the murder of Mr. Khashoggi and imposed sanctions and visa bans as punishment.

A former U.S. official familiar with legal matters said that it is customary for the court to ask the State Department for a recommendation in a case like this and that specialists on diplomatic law in the legal adviser’s office would have taken the lead on the issue. The letter filed Thursday was signed by Richard C. Visek, the acting legal adviser.

Some U.S. officials say they believe Prince Mohammed took the prime minister title now simply in an attempt to get immunity from the lawsuit.

The new State Department legal request comes at a tense time in U.S.-Saudi relations. After entering the White House, Mr. Biden kept his distance from Prince Mohammed, refusing to meet with him and criticizing the kingdom’s human rights record. But in July, Mr. Biden visited Saudi Arabia, exchanging a fist bump with the crown prince that was seen at the time as a sign of a thaw between the two leaders.

Then last month, Saudi Arabia and its partners in the OPEC Plus oil cartel agreed to sharply cut output, angering the administration, which feared high gas prices and said the move would benefit Russia, a member of the cartel. Senior administration officials thought they had struck a secret deal in May with Prince Mohammed and other Saudi officials to have the kingdom lead OPEC Plus in announcing gradual increases to oil production until the end of this year.

After the October announcement went in the opposite direction, Mr. Biden vowed to impose “consequences” on the kingdom, without specifying what they were, and said he would work with Congress on re-evaluating relations between the two nations. Some Biden aides suspected that Prince Mohammed had acted to harm the Democrats ahead of the November midterm elections since the prince preferred to deal with President Donald J. Trump and his Republican allies. But the Saudis insisted the production cut was based on their fears that the market price of oil would plummet because of slowing global demand for energy.

John Kirby, a White House spokesman, said Friday that Mr. Biden’s opinion that “a review is warranted and necessary” had not changed.

Antony J. Blinken, the U.S. secretary of state, said late last month that the decision by the Saudis in October was “wrong” and that the administration was still reviewing ties “to make sure that the relationship better reflects our own interests.”

Some administration officials argue that the United States has to maintain a partnership with Saudi Arabia because of a wide range of mutual interests.

Those officials say they still hope Saudi Arabia will increase oil production if Russia refuses to sell oil to nations that abide by a proposed price cap that would go into effect in early December. The price cap is aimed at blunting potential market destabilization from a European partial embargo on Russian oil that would take place in early December.

Following Mr. Khashoggi’s murder, Saudi officials denied for weeks that they knew where he was but eventually acknowledged that their agents had killed him.

Hatice Cengiz, Mr. Khashoggi’s fiancée, at a trial about his killing in Istanbul in April.Credit…Murad Sezer/Reuters

While campaigning in the U.S. presidential election, Mr. Biden vowed to treat Saudi Arabia as a “pariah.” Once in the White House, he approved the release of a C.I.A. assessment that concluded that Prince Mohammed had ordered the operation that led to Mr. Khashoggi’s killing.

Frustrated by the lack of action against Prince Mohammed, Mr. Khashoggi’s Turkish fiancée, Hatice Cengiz, and DAWN sued him and his top aides in a Washington federal court.

Prince Mohammed’s lawyers argued that he enjoyed what is known as “sovereign immunity” as the head of government. The judge asked the United States government to respond, which it did in the letter sent on Thursday.

Responding to the letter, Ms. Cengiz wrote on Twitter: “Jamal died again today.”

Prince Mohammed has faced other lawsuits in U.S. courts. A suit filed by a former Saudi intelligence official who is now in exile accused the crown prince of sending a hit squad to Canada in a failed attempt to kill him. A judge dismissed that case last month because of jurisdiction issues.

While the actual legal threat of such cases remained unclear, they may have dissuaded Prince Mohammed from visiting the United States. His last trip to the country was in the spring of 2018, before the Khashoggi killing. Before that, he had been a frequent visitor, during both the Obama and Trump administrations.

Prince Mohammed’s appointment in September as prime minister, made by his father, the king, was unusual. It required an exception to the kingdom’s basic law, which states that the king is the prime minister.

Prince Mohammed’s opponents pointed out that his appointment brought little practical change, since he already had oversight of the kingdom’s key portfolios, including oil policy, investment, domestic security and defense.

But being officially named prime minister, they noted, could offer a clearer path to legal immunity abroad than his position as crown prince.

Ben Hubbard reported from Istanbul and Edward Wong from Washington. Vivian Nereim contributed reporting from Doha, Qatar, and Alan Rappeport from Washington.

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