The Biden administration is “slowing down” in ruling Mohammed bin Salman’s immunity | Mohammed bin Salman

When the Biden administration filed a legal memorandum last week requesting that the Saudi crown prince, Mohammed bin Salman, be granted sovereign immunity in a civil case related to the murder of journalist Jamal Khashoggi, it said it was a purely legal decision and did not do so. reflecting her views on “heinous” killing.

In each case, we are simply following the law. And that’s what we did,” the US Secretary of State, Antony Blinken, said later.

But a close examination of the Biden administration’s actions, including interviews with legal experts and people who have followed the matter closely, suggests that the controversial decision was never forthright.

Beginning last summer, the administration’s decision to delay proceedings and seek months of legal extensions before presenting its views on the matter before a US judge provided Saudi Arabia with an unprecedented opportunity to protect Prince Mohammed with a legal maneuver that placed him above and beyond the law. The reach of the American legal system. Once that happened, the Biden administration actually said it had its hands tied.

“If you look at the sequence of events, it’s hard not to see that it’s a fight between Biden and Mohammed bin Salman,” said one close observer, who asked not to be named so they can speak candidly. “I hate to think that there was a trade-off to our judicial system and that integrity was at hand.”

US District Judge John Bates has invited the US government to participate in the civil lawsuit filed against Prince Mohammed on July 1. At the heart of the request was the lawsuit filed in 2020 against the crown prince and his associates by Khashoggi’s fiancée, Hatice Cengiz, accusing Prince Mohammed and his associates of premeditated conspiring to kidnap, torture and kill Khashoggi in the Saudi consulate in Istanbul. in 2018.

Bates’ request was straightforward. He has given the administration 30 days – until August 1 – to submit a “statement of interests” and to consider whether the heir to the Saudi throne should be granted sovereign immunity in the case, or tell the court that it does not wish to do so. make a statement. He also wanted the administration to consider how the court could reconcile protections afforded to foreign leaders with those using a US law that allows victims of torture or extrajudicial killings to hold perpetrators accountable.

At the time, Prince Mohammed was – clearly – not a king. In Saudi Arabia, this distinction at that time belonged only to his father, King Salman.

The United States had competing interests at the time, said Harold Koh, a former legal advisor to the State Department during the Obama administration who is now a professor of international law at Yale Law School. On the other hand, the United States emphasizes the principles of reciprocal immunity so that its head of state is given protection from the courts of law. But that had to be balanced against Biden’s statements about human rights being at the center of his administration’s foreign policy and “autocrats’ understanding that the president means what he says.”

“All things considered, silence was the best way to balance those competing national interests,” Koh said, adding that there would have been “enough precedent” for the State Department to remain silent.

On July 15, Joe Biden met with Prince Mohammed in Jeddah, a meeting that began with his fists and was intended to “reset” his relationship with a leader he once described as an outcast. It later emerged that the meeting was also the beginning of a campaign by the administration to try to convince the Saudis not to cut oil production before the US midterm elections.

Back in Washington, just a few days later on July 18, the US asked Judge Bates for an extension, saying it needed time to consult with multiple entities within the administration regarding “complex issues of international and domestic law.” The court agreed, giving the US until October 3 to respond.

Weeks later, on Sept. 23, Brett McGurk, coordinator for Middle East policy at the US National Security Council (NSC), and Amos Hochstein, senior US adviser on energy security, visited Jeddah again, ostensibly to discuss energy policies.

Days later, on September 27, the Saudi royal court announced that Prince Muhammad had been appointed prime minister, a role that was and still is occupied by the Saudi king. Observers pointed out that the apparent promotion did not grant Mohammed bin Salman any new duties or major powers. It was seen by advocates as a ploy to influence the US sovereign immunity recommendation, which was due about a week later.

The US government, citing “changing circumstances”, requested and was granted a second extension to prepare its response until 17 November. A few days after it missed the Oct. 3 deadline, OPEC+ announced it would cut oil production by two million barrels per day, in what Democrats saw as an attempt by the kingdom to meddle in US elections and side with Russia over US interests.

Biden promised that Saudi Arabia would face “consequences” for this decision, but he did not clarify any specific measures he plans to take against the kingdom. On November 17, just hours before the midnight deadline, the administration gave notice that it believed Prince Mohammed, as prime minister, deserved to be treated as a sovereign as a normative matter of international law.

A spokesperson for the National Security Council told the Guardian that the US president had been briefed on the immunity decision, which was based on “established principles of common law”.

When the Guardian asked the spokesperson if any US official had suggested to Saudi Arabia that Prince Mohammed be appointed prime minister before the order was made public, the spokesperson said, “This was an independent decision made by Saudi Arabia.”

Legal questions about Prince Mohammed’s status have been the subject of heated debate within the State Department, people familiar with the matter say, with opinions differing on the best course of action.

In debates within the administration, senior officials like McGurk who have sought to promote the rehabilitation of the Saudi-American relationship have trumped policy goals centered on human rights.

This administration made the decision it made because Mohammed bin Salman is the prime minister. One person who advocated for human rights to have a prominent place in policy decisions said: “But they slowed down a lot… This was clearly a political decision in that they waited and faltered.”

Leaders like Prince Mohammed were “legitimately concerned” when Biden first took office vowing to hold the Saudi heir to account for human rights abuses.

“When they got into office, the execution didn’t exist,” the person said. Even when Biden made the decision to release a declassified intelligence report that found Prince Mohammed likely ordered the killing, there were no sanctions against him.

“It set the stage and indicated that the speech was not matched by substance,” the person added.

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