Did the U.S. Fail Its “Duty to Warn” Jamal Khashoggi? How U.S. Directive 191 Applies to Kidnapping Threats

The question of whether the United States is failing to respond adequately to foreign governments’ attempted kidnapping or assassination of political opponents, dissidents and journalists—even when it takes place on the soil of NATO allies—is raising concerns for many.

How President Donald Trump and the U.S. government as a whole have responded to such actions is further complicated by whether the U.S. and its intelligence community have advance knowledge of such an attack. That’s because there is an internal government order in place requiring U.S. intelligence agencies to warn an intended victim if the agency acquires information that a threat of kidnapping, murder, or serious bodily injury is imminent.

This question is already being raised with respect to the fate of Saudi journalist and U.S. resident Jamal Khashoggi, who disappeared a little over a week ago after he entered the Saudi consulate in Istanbul.  Turkish authorities have said they believe Khashoggi was murdered inside the consulate and have provided what they believe is evidence of the plan to reporters. The Saudi government has denied all allegations.

“Although I cannot comment on intelligence matters, I can say definitively the United States had no advance knowledge of Jamal Khashoggi’s disappearance,” State Department Deputy spokesman Robert Palladino said Wednesday afternoon. He repeated almost those exact same words again later in the press briefing. Asked whether the United States had “any advance knowledge that there might be some kind of threat to him should he go into the consulate in Istanbul,” Palladino replied. “We had no advanced knowledge.”

But on Tuesday night, the Washington Post reported that U.S. intelligence agencies intercepted communications that indicated a Saudi plan to capture Khashoggi may have been in the works:

“Before Khashoggi’s disappearance, U.S. intelligence intercepted communications of Saudi officials discussing a plan to capture him, according to a person familiar with the information. The Saudis wanted to lure Khashoggi back to Saudi Arabia and lay hands on him there, this person said. It was not clear whether the Saudis intended to arrest and interrogate Khashoggi or to kill him, or if the United States warned Khashoggi that he was a target, this person said.”

(The Post then updated its report to refer to two unnamed sources rather than one.) ABC’s Conor Finnegan noted a potential difference in what the Post reported (information about a plan to capture Khashoggi) and what the Palladino denied (information about a plan to disappear Khashoggi).

If any U.S. agencies did have foreknowledge of a potential Saudi plan to kidnap, kill, or maim Khashoggi, they had an obligation to warn him.

Intelligence Community Directive 191—titled “Duty to Warn”—obligates U.S. intelligence agencies to inform the victim of a potential kidnapping or murder if the U.S. agency becomes aware of such a threat in the course of collecting or acquiring intelligence. The directive allows for a waiver in very limited circumstances. If no waiver applies, the directive stipulates that close cases “should be resolved in favor of informing the intended victim.”  

On Wednesday night, the Washington Post reported new information about the Saudi plans that were intercepted by U.S. intelligence. The plan appeared to involve luring Khashoggi and then detaining him in Saudi Arabia. The Post is careful to note that Palladino’s statement does not address this plan. “Administration officials have not commented on the intelligence reports that showed a Saudi plan to lure Khashoggi,” the Post states.

What is further interesting is that the Post quotes an unnamed former senior intelligence official who suggests this plan might not have triggered the Directive 191 obligations. “Capturing him, which could have been interpreted as arresting him, would not have triggered a duty-to-warn obligation,” the former official said. “If something in the reported intercept indicated that violence was planned, then, yes, he should have been warned.” That’s not completely accurate in my opinion. Kidnapping alone, without any anticipated serious bodily harm, triggers the Directive’s duty to warn. A plan to lure and render Khashoggi against his will (i.e., forcibly transfer him) to Saudi Arabia looks like a case of kidnapping. If US intelligence agencies knew about it in advance, they had a duty to warn him.

Some have speculated about the possibility that the U.S. intercepted the information before Khashoggi entered the Saudi consulate on Oct. 2, but only assessed that information afterwards, for example, once it became clear that something nefarious may have occurred. In other words, perhaps the U.S. government uncovered information about Saudi plans to kidnap Khashoggi but only following a post-incident query of prior signals intelligence. But that is not how Washington Post reporters appear to be describing the situation. And the latest Washington Post report on Wednesday evening strongly suggests the information was known well in advance: “The intelligence had been disseminated throughout the U.S. government and contained in reports that are routinely available to people working on U.S. policy toward Saudi Arabia or related issues, one U.S. official said.”

If the U.S. had known of a threat to kidnap, kill, or maim Khashoggi beforehand, the one waiver provision that might apply is if “any attempt” to warn him would “unduly endanger” sources, methods, or intelligence operations. But “any” attempt sounds limited in scope, and the directive explicitly encourages U.S. agencies to think innovatively of ways to warn an intended victim and minimize such concerns. The directive states, for example, “Communication of threat information to the intended victim may be delivered anonymously if that is the only method available to ensure protection of U.S. government personnel, sources, methods, intelligence operations, or defense operations.” 

There is one other waiver provision that provides an exemption to the duty to warn if “the intended victim, or those responsible for ensuring the intended victim’s safety, is already aware of the specific threat.” There’s some indication that Khashoggi had knowledge of other attempts by the Saudis. But that does not appear to be anything close to knowledge of the specific threat envisioned by the waiver. Otherwise Khashoggi would not have entered the consulate as he did.

The less than forceful signals sent by President Trump in response to Khashoggi’s disappearance is accentuating a climate of fear among those who could also be targeted by the Saudis or other regimes willing to engage in similar methods. Khashoggi is a rare individual who became a U.S. resident and connected in his professional network to powerful institutions such as the Washington Post. If this could happen to someone like him, what does it mean for others?

“My family used to feel that I am safe when I am outside Yemen, but after the alleged kidnapping and murder of Khashoggi, they said to me that they now worried that the whole world has become unsafe for me,” said Radhya Almutawakel, director of the Mwatana Organization for Human Rights in Yemen, where she has led work investigating and advocating against Saudi abuses. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.