Americans Have Right to Know if US Failed to Warn Khashoggi—A New Lawsuit May Get Answers

Now that the CIA and other parts of the US government have reportedly reached an “overwhelming consensus” that Saudi Arabia’s senior leadership authorized an operation to kill Washington Post journalist Jamal Khashoggi, and now that it has become clearer that President Donald Trump and the State Department appear willing to cover up the Saudi Crown Prince’s direct role in the assassination plot, it is vital to return to questions that arose at the start of this horrific episode. What did U.S. officials know about the threat to Mr. Khashoggi’s life and liberty in advance of the operation, and did the administration fail its duty to warn Khashoggi as required by an existing Intelligence Community Directive?

Americans have a right to know the answers to those questions. On that basis, the Knight First Amendment Institute at Columbia University filed a lawsuit under the Freedom of Information Act seeking immediate release of records concerning U.S. intelligence agencies’ compliance or non-compliance with the Intelligence Community Directive.

The lawsuit followed requests by the Knight Institute to the agencies themselves to release the records on an expedited basis, requests that have so far proven unsuccessful in obtaining the information. Hence the walk over to the federal courthouse.

When news reports first emerged that U.S. intelligence agencies had known in advance of Saudi plans at least to lure Khashoggi to Saudi Arabia and detain him there, the State Department was exceedingly quick to deny it and to do so categorically. On Oct. 10, 2018, State Department Deputy spokesman Robert Palladino said, “Although I cannot comment on intelligence matters, I can say definitively the United States had no advance knowledge of Jamal Khashoggi’s disappearance.”

The speed of this denial of any knowledge on any part of the United States was so quick that it raised serious questions whether the Department had time to engage in due diligence before making such a definitive statement. As Andy Wright explained, “Categorical false statements on questions of life and death, like this one may well turn out to be, don’t help anyone. If anything, such statements generally drag out public inquiries rather than truncate them.” Within hours after Palladino’s statement, a Washington Post report indicated that the intelligence was not simply collected before Khashoggi’s disappearance and assessed afterwards. Instead, “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.”

The weeks since then have been followed by a pattern of disinformation and false statements by the President and the State Department concerning the circumstances of Khashoggi’s death. Just this past weekend, President Trump denied news reports (by the Washington Post and confirmed by the Wall Street Journal, New York Times, CNN, and NBC) that the CIA had concluded with high confidence that the Saudi Crown Prince had ordered the assassination. “They haven’t accessed anything yet,” the President told a gaggle of reporters.

The State Department issued a highly misleading statement as well in support of the president. “Recent reports indicating that the U.S. government has made a final conclusion are inaccurate,” State Department Heather Nauert’s statement read. It was another case of “misdirection,” as Washington Post report Shane Harris observed. The news reports had not said “the U.S. government” reached a conclusion, but that the C.I.A. did.

On Tuesday, the President issued his instantly-infamous statement on the Khashoggi affair. One of the lines stands out for our purposes here: “Our intelligence agencies continue to assess all information, but it could very well be that the Crown Prince had knowledge of this tragic event – maybe he did and maybe he didn’t!” That appears to be, from essentially all accounts (even Fox News), another bald faced falsehood. That same day a State Department official who had seen a version of the CIA assessment told ABC News it is “blindingly obvious” that the Crown Prince, ordered Khashoggi’s death. “There’s overwhelming consensus that the leadership is involved — no one is debating it within the government,” the official said.

Lying to the American people is not illegal, but failing to provide truthful information under court order is. That’s why a lawsuit to obtain as full a picture as possible is now required. It is quite obvious to close observers that the Saudi Crown Prince ordered the killing, and that President Trump is covering for him. What’s unknown is the state of information in the U.S. intelligence community’s possession about the threat to Khashoggi’s life or liberty beforehand. It is important for journalists around the world and for those whose legal and political advocacy raises the specter of similar Saudi actions to understand what exactly the U.S. government knew about threats to Khashoggi before his murder and what, if anything, the administration did to warn him.

 

Photo credit: Protesters hold paper masks of Saudi dissident and Washington Post columnist Jamal Khashoggi while demonstrating against U.S. involvement in the Saudi-led war in Yemen in the offices of Sen. Jack Reed (D-RI) in the Hart Senate Office Building, Oct. 22, 2018 (Photo by Chip Somodevilla/Getty Images) 

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.