While the brutal and barbaric assassination of Jamal Khashoggi on October 2, 2018 by a Saudi special hit squad in the Saudi consulate in Istanbul, appears to have been largely forgotten by the international community (except for Turkey), several journalism justice organizations are not letting sleeping dogs lie.
While Turkey is taking the lead in prosecuting the Saudi perpetrators, the Committee for the Protection of Journalists (CPJ) and the Knight Institute — an organization protecting First Amendment press freedom — are appealing a case they filed against the US government.
Knight/CPJ Lawsuit Seeks CIA Records
In late 2018, the CPJ and Knight filed a lawsuit in the US District Court for the District of Columbia seeking accountability not from the Saudis, but from the US government which had refused to respond to their Freedom of Information Act (FOIA) requests. They had sought records showing whether US intelligence agencies had fulfilled their “duty to warn” Khashoggi, a resident of the state of Virginia and op-ed contributor to the Washington Post, of threats to his life and liberty.
Intelligence Community Directive 191 provides that when a US intelligence agency learns of an impending threat to an individual’s life or liberty, the agency must “warn the intended victim.”
Knight and CPJ sought documents and information in the court case pertaining to whether the CIA knew and failed to warn Khashoggi of the danger he faced.
Knight and CPJ sought documents and information in the court case pertaining to whether the CIA knew and failed to warn Khashoggi of the danger he faced from Saudi Crown Prince Mohammed bin Salman (MbS), the de facto ruler of Saudi Arabia since 2017.
The US District Court denied discovery of the intelligence information based upon the so-called Glomar defense. The CPJ subsequently appealed the decision.
Amici Decry Glomar Defense, Tout Transparency
On July 23, 2020, nearly three dozen media and press freedom organizations, as well as ten major human rights organizations—including Human Rights Watch—and experts filed amicus (“friend of the court”) briefs in support of the appeal.
The Glomar defense, named after the Hughes Glomar Explorer—a ship that was part of a government operation to recover a Soviet nuclear submarine that had sunk in the Pacific Ocean in 1968—goes back to the Cold War era of the last century, when Rolling Stone magazine sought agency records related to covert actions of the US government.
The court of appeals in that case implicitly accepted the government’s rationale for refusing to acknowledge or deny the existence of records because that “would disclose the nature and purpose of” a CIA classified program and because it could “severely damage the foreign relations and the national defense” of the US.
From a purely legal standpoint, a win by Knight/CPJ in their case could have major ramifications and mark a significant shift in American law as it has developed over the years.
As the amici curiae brief alleges, such defenses have been made in “droves” in recent years, establishing a very low bar for denial of information that flies in the face of FOIA’s statutory purpose of ensuring government openness and transparency.
The amici in their brief strongly decry “the unbridled growth of Glomar responses across federal agencies.”
The amici in their brief strongly decry “the unbridled growth of Glomar responses across federal agencies, the pernicious way in which over classification of documents interacts with the Glomar doctrine, and the press freedoms implicated by the records at issue.”
If the Glomar defense is overturned and/or an exception is created in this case with respect to information regarding the murder of a journalist, this could uproot decades of judicial deference to the intelligence community in the name of national security.
And that may not be a bad thing. Not only will journalists be less safe if the Glomar defense is upheld, but another check on abuse of power—transparency under FOIA—will be undermined.
Turkey Tries Assassins in Absentia
Meanwhile, Turkey is going forward with its trial in absentia of 20 Saudi officials and the operatives who are accused of actually carrying out the shocking crime. The trial began on July 3, 2020.
Among Turkey’s indictments are Ahmed al-Asiri, the former deputy head of Saudi general intelligence (who has not been sanctioned by the United States); and Saud al-Qahtani, a former adviser to the Crown Prince. They are being tried for incitement to murder with monstrous intent and inflicting grave torment.
MbS, who is considered by the CIA and UN Special Rapporteur Agnes Callamard to be the mastermind behind the pre-planned assassination, is not named, however.
The Saudi Kingdom held its own “trial” in December 2019 entirely in secret. A Saudi court found that the 15-member Saudi hit squad sent to Istanbul was simply a “rogue operation.” It convicted eight low-level operatives, sentencing five to death and three to prison terms. Callamard then characterized the trial as “the antithesis of justice.”
In May, Khashoggi’s son “pardoned” his father’s killers in a tweet, opening the door for their death sentences to be modified.
On September 7, the Saudi Court issued “final verdicts” against eight of the defendants, sentencing five to 20 years in prison, two to seven years in prison, and one to ten years—sparking condemnation by the UN Human Rights office for the lack of transparency in the court’s judicial process.
Callamard called the proceeding a “parody of justice.”
“[T]he high-level officials who organized and embraced the execution of Jamal Khashoggi have walked free from the start—barely touched by the investigation and trial,” she tweeted.
Saudi Arabia refused Turkey’s request to extradite the 20 men accused in Turkey of the murder.
Earlier this year, Saudi Arabia refused Turkey’s request to extradite the 20 men accused in Turkey of the murder. So all of the defendants are being tried in absentia.
Despite Turkey’s own abysmal human rights record with respect to locking up journalists and others, Callamard in July said she views the Turkish trial as the “closest chance for justice available in the Khashoggi killing.”
The next session of the Turkish trial is scheduled for November 24.
American Laissez-Faire Skews the Balance
The US administration has been reluctant to take on MbS over the Khashoggi atrocity, due to the special relationship Trump has forged with the Crown Prince as a result of billion dollar arms deals and millions of revenues spent by the Crown Prince’s royal entourage for luxury stays at Trump properties.
Although the United States and other countries have sanctioned some of the officials named in Turkey’s lawsuit, that certainly does not rise to the level of full accountability or the “justice for Jamal” that so many, including his fiancée Hatice Cengiz, continue to call for nearly two years after his murder.
“When they killed Jamal, they hurt something very big,” Cengiz said in testimony to the Turkish court. “They hurt the image of Islam and justice.”
The administration’s inaction and refusal to comply with Congress’ demands for records has certainly so far skewed the balance against accountability.
Open Society Justice Lawsuit Seeks Intelligence Records
The most recent attempt in the US at holding someone accountable for being complicit in Khashoggi’s murder comes from The Open Society Justice (OSJ), a legal branch of the philanthropic Open Society Foundations. On August 19, 2020, OSJ filed a lawsuit in US District Court for the Southern District Court of New York against the US Director of National Intelligence.
Congress directed the Office of the Director of National Intelligence to provide an unclassified report on Khashoggi’s killing.
The suit alleges that the national intelligence director failed to meet the 30-day deadline for producing records previously requested by Congress in a December 2019 bipartisan resolution. There, Congress directed the Office of the Director of National Intelligence to provide an unclassified report on Khashoggi’s killing, including an account of who was responsible and any individuals who had advance knowledge. Given the practice of the Trump administration in a variety of contexts (including the impeachment proceedings) to ignore subpoenas, not surprisingly, Congress did not follow up with its subpoena power.
OSJ asserted in its court filing that the records requested by Congress are “imperative for the public to properly and timely evaluate the US government’s response to Mr. Khashoggi’s murder.”
The US government has until September 18 to file its response to the lawsuit.