The judge is asking the Biden administration whether to protect Saudi Crown Prince MBS from a civil lawsuit

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The Biden administration has until August 1 to say whether it thinks Saudi Crown Prince Mohammed bin Salman should be immune from a civil lawsuit filed against him in the United States by Hatice Cengiz, the fiancé of journalist Jamal Khashoggi who was murdered in 2018.

Cengiz and Democracy for the Arab World Now (DAWN), a human rights organization that Khashoggi founded before his death, filed a lawsuit in 2020 against the crown prince and two dozen co-defendants. The lawsuit alleges that Khashoggi was tortured, murdered and dismembered under the orders of the Crown Prince, often referred to by his initials MBS.

The Crown Prince and two of the co-defendants have moved to have Cengiz’s case dismissed, arguing that the court lacks both subject and personal jurisdiction. The crown prince has previously denied ordering Khashoggi’s killing and Saudi officials have blamed “rogue agents” for the journalist’s death.

The CIA concluded in 2018 that Mohammed had ordered the assassination of Khashoggi, contradicting Saudi Arabia’s claim that the crown prince had no prior knowledge of the plot.

US District Court Judge John Bates said in an order Friday that the US government could submit an expression of interest on, among other things, “the applicability of heads of state immunity to this case.” The Biden administration can also state that it will not make such a statement. If the US declares its interests, Mohammed and the other defendants have until August 16 to respond, Bates ruled.

Mohammed’s lawyers have argued that the crown prince enjoys sovereign immunity from civil lawsuits in the US. Muhammad’s father, King Salman, is Saudi Arabia’s sovereign, although the crown prince is widely regarded as the kingdom’s day-to-day ruler.

The crown prince “has immunity not only from his immediate family relationship with the king but also from his own ‘high office,'” argued Mohammed’s lawyers in a motion to dismiss the lawsuit filed last year. Lawyers for Cengiz and DAWN have countered that courts have previously dismissed claims that the “de facto” leadership conferred immunity on the basis of being crown prince.

The State Department typically consults other U.S. government agencies before issuing an immunity recommendation to the Justice Department, whose formal request typically binds a federal court. A decision can come quickly, such as for a head of state, or it can take months or years, depending on the circumstances and the complexity of a case, legal analysts say.

“It would be a mistake, both legally and politically, for the court to grant MBS immunity, effectively guaranteeing impunity for this grotesque crime,” Sarah Leah Whitson, executive director of DAWN, said in a text message.

The federal judge’s order comes just before President Biden is scheduled to travel to Saudi Arabia for the first time in his presidency later this month, a trip that has worried even some Democrats and has led to accusations that Biden has reversed his promise to make Saudi Arabia becoming a “pariah” after Khashoggi’s assassination.

On October 2, 2018, Saudi agents killed Washington Post columnist Jamal Khashoggi at the Saudi consulate in Istanbul. What was done as a result? (Video: Joyce Lee, Thomas LeGro, Dalton Bennett, John Parks/Washington Post)

The Saudi Embassy announced the upcoming visit as one that would “strengthen the historical and strategic partnership between the Kingdom of Saudi Arabia and the United States of America, as both countries aim to deepen and strengthen existing areas of cooperation and.” laying the foundations for the future of this strategic partnership.”

Khashoggi was killed on October 2, 2018 after visiting the Saudi Arabian consulate in Istanbul to obtain documents that would allow him to marry Cengiz. In the months leading up to that visit, he had written columns for the Washington Post scathingly criticizing the crown prince for effectively ruling Saudi Arabia and cracking down on rivals and dissidents.

The journalist’s death and mutilation were first exposed by the Turkish government. The killing sparked a wave of international revulsion and calls to ostracize the Saudi leadership.

A separate attempt to prosecute the murder of Khashoggi recently ended in Turkey after the government of Turkish President Recep Tayyip Erdogan ended its trial of suspected members of the Saudi team that killed the journalist at the kingdom’s Istanbul consulate. The suspects, all of whom were in Saudi Arabia, were tried in absentia.

Turkey’s suspension of the trial in April coincided with Erdogan’s government’s efforts to restore ties with the kingdom that had been shattered after Khashoggi’s assassination.

“We will seek justice in the United States,” Cengiz said at the time, referring to Turkey’s decision and its US lawsuit.

Spencer S. Hsu and Nick Miroff contributed to this report.