Courtroom 30 in Washington’s district court might seem an unlikely venue for a diplomatic showdown between Saudi Arabia and the US.
But for Hatice Cengiz it represents the last hope for justice following the brutal murder of her fiancee, the Washington Post columnist Jamal Khashoggi.
According to a US intelligence assessment, the 2018 killing inside the Saudi consulate in Istanbul was likely ordered by the kingdom’s crown prince, Mohammed bin Salman.
In the coming weeks, Judge John Bates will determine whether a civil case brought by Cengiz and Dawn, the organization founded by Khashoggi, against Prince Mohammed and his alleged co-conspirators can proceed. The litigation is seeking unspecified damages from the crown prince for Khashoggi’s murder.
That judge’s decision hinges on a complex legal question about whether the heir to the Saudi throne – widely seen as its de facto ruler – ought to be treated as a sovereign, and therefore granted immunity from US courts – or whether his status as a king-in-waiting means he is not yet a sovereign, and should be subjected to the full force of US law.
If the case was allowed to proceed it would allow for discovery in the case, as well as a potential deposition of Prince Mohammed or his brother, who was the Saudi ambassador to the US at the time of the killing. If the Saudi heir refused to cooperate, the court could make a summary judgment in Cengiz and Dawn’s favour, which might even lead to the seizure of the prince’s assets around the world – from a yacht to his chateau in France.
Most experts agree that Judge Bates’s decision would likely turn on whether the Biden administration, which has been asked to offer its own opinion on the matter, will tip the scales of justice in favour of Cengiz – further exacerbating a recent break with Saudi Arabia – or with Prince Mohammed, which one critic has said would give the crown prince “a licence to kill”.
Any move to side with the crown prince would also be condemned by human right advocates and would be seen as a betrayal by president Joe Biden, who had promised accountability for the Khashoggi murder.
Two recent developments could sway the Biden administration’s opinion, which is expected to be filed to the court no later than 17 November. First, King Salman’s announcement that is son has been named prime minister, contrary to Saudi law that holds that the king holds both titles. The change does not appear to have granted Prince Mohammed any new authority.
And second, that the Biden administration has warned that Saudi Arabia would face “consequences” for Opec+’s recent decision to cut 2m barrels of oil output per day, which was seen as aligning Saudi with Russia’s interests over the US just weeks ahead of November’s midterm elections.
A state department spokesperson said the department would not comment on pending litigation.
Leading the case against Prince Mohammed and his associates is Keith Harper, a former Obama administration official who served as the US ambassador to the UN’s human rights council, where – as a member of the Cherokee nation – he was the first Native American to ever serve as ambassador.
In a filing last week, Harper made the case that Bates should allow Cengiz and Dawn to bring their case under the US Torture Victims Protection Act, which imposes civil liability on anyone who subjects an individual to torture or extrajudicial killing, allowing individuals to bring their cases before US courts if other options and venues have been exhausted.
While Saudi Arabia’s lawyers have said that Cengiz could seek “adequate and available” remedies in her native Turkey, where Khashoggi was killed, Harper countered that it was not possible for Cengiz to receive a fair hearing there because of Turkish president Recep Tayyip Erdoğan’s “control of the Turkish judiciary” and his relationship with Prince Mohammed. A move earlier this year by Turkey’s court to transfer a prosecution of Khashoggi’s assassins to the kingdom was widely condemned by human rights groups.
Harper also criticised Saudi’s designation of Prince Mohammed as prime minister as “an attempt to manipulate the court’s jurisdiction”.
“MBS makes no arguments about what the Saudi office of “prime minister” entails. Instead, MBS simply assumes that the office of “prime minister” automatically constitutes a head of government. The assumption is wrong,” Harper said in a court filing.
Harper argued that, unlike a figurehead such as King Charles III, King Salman was the king and ruler of Saudi Arabia, which he said was made clear by the kingdom’s own version of a constitution. The king’s designation also made clear that Prince Mohammed may only chair meetings when the king is not in attendance, and that the king retains the power to approve and reject the actions of his council of ministers, thereby not enhancing Prince Mohammed’s responsibilities.
Prince Mohammed is being represented in the case by Michael Kellogg, who has represented the kingdom’s interests in US court cases since the September 11 attacks on the US, which was executed by 15 Saudi hijackers (of 19 total) and was planned by the Saudi leader of al-Qaida, Osama bin Laden.
Kellogg is best known for fighting litigation brought by the families of 9/11 victims, who have argued that Saudi gave material support to al-Qaida and should be held accountable. In representing Saudi, Kellogg has successfully argued to keep some records from public view that reporting by CBS News indicated shows ties between a man who is alleged to have connections to Saudi intelligence, and two of the hijackers.
Saudi has denied involvement in the 9/11 attack and Kellogg did not respond to requests for comment on the Cengiz case.
In arguing for dismissal of the case, Kellogg argued that the court did not have to determine whether Prince Mohammed’s denial of the core allegation that he ordered the murder was true or false. Instead, Kellogg argued in court filings, that other factors – like Cengiz’s standing in the court – were sufficient to dismiss the matter.
The decision will ultimately fall to Judge Bates, who has been described by one legal observer as “fair and a bit of an iconoclast who has demonstrated independence”. If the Biden administration decides not to take a position on the matter, some legal experts say it is possible that Bates would rule that Prince Mohammed is not immune.
