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Opinion Biden rewards Saudi leader’s impunity with legal immunity

President Biden gives Saudi Crown Prince Mohammed bin Salman a fist bump as he arrives in Jiddah, Saudi Arabia, on July 15. (Bandar Aljaloud/Saudi Royal Palace/AP)

The Biden administration has granted legal immunity to Saudi Crown Prince Mohammed bin Salman, a protection that even President Donald Trump’s administration didn’t offer.

For critics of MBS, as the Saudi leader is known, the immunity decision is a slap in the face. It will likely rouse new protests in Congress and among human rights activists that the Biden administration is accommodating Mohammed for reasons of realpolitik — and compromising its values in the process.

The decision was triggered by a lawsuit in federal district court in Washington against MBS and some 20 other defendants by the fiancee of Jamal Khashoggi, a Post contributing columnist who was murdered by Saudi operatives in Istanbul on Oct. 2, 2018. The suit alleges that the crown prince and his co-defendants were responsible for the murder.

Read this column in Arabic.

The action is the latest in a cascade of controversies that followed the murder, which the CIA concluded resulted from an operation authorized by MBS. The Trump administration shielded the Saudi leader, but President Biden initially claimed he would hold him accountable, describing him as a “pariah.” But over time, Biden has sadly capitulated to what he viewed as a need to mend relations with the man who might be Saudi Arabia’s king for decades.

A State Department official said the decision to grant immunity was a “purely legal decision,” triggered by MBS’s recent elevation to prime minister. But the State Department and the White House could have intervened on policy grounds to prevent granting the legal exemption, which MBS has sought for more than two years.

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U.S. District Judge John Bates, who is hearing the Khashoggi case, asked the Justice Department in July for a ruling on whether MBS should be granted sovereign immunity, as his lawyers requested. On Sept. 27, three days before the deadline for the Justice Department’s response, Saudi King Salman declared his son prime minister. This triggered Thursday’s decision that MBS was entitled to sovereign immunity as a “head of government.” Bates could conceivably reject the State Department filing, but such a rejection of a government opinion he had requested would be unlikely.

The State Department’s decision was filed late Thursday. “The United States respectfully informs the Court that Defendant Mohammed bin Salman, the Prime Minister of the Kingdom of Saudi Arabia, is the sitting head of government and accordingly, is immune from this suit,” the filing said.

“The Biden administration’s suggestion of immunity for MBS isn’t just a mistake as a matter of law, it’s a mistake as a matter of policy,” argued Sarah Leah Whitson, who heads a group called Democracy for the Arab World Now, or DAWN, which filed the suit with Khashoggi’s fiancee, Hatice Cengiz. Whitson argued that the immunity grant was “an undeserved concession” to the Saudi leader that “will no doubt embolden him to continue his ruthless abuses.”

MBS began seeking immunity in U.S. courts after he was named in a lawsuit filed in federal district court in Washington in August 2020 by Saad Aljabri, a former top Saudi counterterrorism official. Mohammed’s lawyers asked that the suit be dismissed because of what they claimed was sovereign immunity and other issues. The Trump administration did not grant that request.

Aljabri, in his 2021 amended complaint, accused the Saudi leader of sending a hit team to kill him in 2018 in Canada, where he fled after MBS fired him in 2015 and after MBS in 2017 toppled Crown Prince Mohammed bin Nayef, with whom Aljabri had worked closely at the Saudi interior ministry.

The Biden State Department deliberated whether the immunity issue was a policy question, involving significant human rights issues, rather than simply a legal matter, an administration official told me. But there was a strong legal argument that prime ministers routinely receive immunity. And in the end, as has so often been the case with MBS, the Biden administration acceded to the Saudi leader’s desires.

The immunity decision doesn’t simply derail the lawsuit by Khashoggi’s fiancee. It will shield the crown prince from legal action on issues involving travel bans and other alleged human rights abuses. According to media reports, at least two U.S. citizens, Saad Almadi and Mohammed Salem, have been banned from leaving Saudi Arabia since Biden’s visit to the kingdom in July.

The president’s fist bump during that trip has become a symbol of political accommodation to the Saudi leader and his demands. The grant of immunity will give him not just a friendly welcome, but a legal shield that will be hard to break.

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