Duty to Warn: Has the Trump Administration Learned from the Khashoggi Failure?

In August 2017, more than a year before Washington Post journalist Jamal Khashoggi was killed in the Saudi consulate in Istanbul, New York Times reporter Declan Walsh was spirited out of Cairo with the help of Ireland’s embassy, after a tip to the newspaper from a U.S. official that the Egyptian government was planning to arrest him. But the tip wasn’t an official notice – to the contrary. New York Times publisher A. G. Sulzberger, who revealed the incident in September, said the official contacted the newspaper out of concern that “the Trump administration intended to sit on the information and let the arrest be carried out. The official feared being punished for even alerting us to the danger,” Sulzberger wrote.

By contrast, at least six months after the Khashoggi killing and the furor at the Trump administration’s handling of the case, three journalists were warned of threats against them. Iyad El-Baghdadi, who lives in Norway, Omar Abdulaziz, a resident of Canada, and an individual in the United States who requested anonymity were colleagues of Khashoggi’s and equally outspoken critics of the Saudi government. El-Baghdadi was approached by police at his home in Oslo, Norway on April 25, 2019. They informed him that he was under threat from some element of the Saudi government and took him to a secure location. This time, according to The Guardian, the CIA passed information on the threat to the Norwegian Police Security Service. Abdulaziz and the U.S.-based individual were reportedly approached by local authorities in Canada and the U.S. at the same time.

Despite the apparent similarity of the risks in the Walsh and Saudi dissident journalist cases, why did the U.S. government apparently provide an official warning in the latter cases but not the former? Has the Khashoggi case, in which the Trump administration was excoriated after reports that U.S. intelligence had previously “intercepted communications of Saudi officials discussing a plan to capture him,” affected the way the administration handles its duty to warn journalists who are under threat?

President Trump, many of his top officials, and his supporters have made no secret of their disdain for press freedom. They have engaged in consistent attacks on many major media outlets, especially those that publish journalists who scrutinize the administration’s policies and conduct. These views may have influenced the administration’s initially equivocal response to Khashoggi’s murder on Oct. 2, 2018, an act for which U.N. Special Rapporteur on extrajudicial, summary or arbitrary killings Agnes Callamard concluded the Saudi state was responsible. Callamard also concluded that certain international human rights obligations applied to the United States. The Special Rapporteur’s report states:

“If the United States (or any other party to the ICCPR [International Covenant on Civil and Political Rights]) knew, or should have known, of a foreseeable threat to Khashoggi’s life and failed to warn him, while he was in Turkey (or elsewhere), and under circumstances with respect to which it could be argued that he was under their functional jurisdiction, then the United States or any other State would have violated their obligations to protect Mr. Khashoggi’s life.”

As Just Security explored in October 2018, shortly after Khashoggi’s killing, and in May 2019, after more evidence emerged, it seems clear that the U.S. government should have warned Khashoggi of the threat against him under Intelligence Community Directive 191. The directive requires U.S. intelligence agencies to warn U.S. and non-U.S. persons under threat of intentional killing, serious bodily injury or kidnapping. 

Applying the Directive to the Walsh and Saudi Dissident Cases

In order for the duty to warn to apply under the directive, there must be a “specific, credible and impending” threat of “intentional killing, serious bodily injury, or kidnapping.”

The directive is clear that in the majority of cases the warning should be delivered: only in very specific circumstances can this duty be waived. And in borderline cases, agencies are required to lean toward delivering the warning.

Some key terms of the directive are defined with greater clarity by the NSA Standard Operating Procedures (SOP) that apply the directive. As the May 2019 article on Just Security discusses, these were revealed through a combination of FOIA requests and litigation by press freedom pressure groups. It is difficult to know whether the provisions of the NSA SOP are replicated across other U.S. intelligence agencies, but they are instructive nonetheless.

A “specific” threat, according to the NSA SOP is one that “identifies or suggests a potential target, period or area to be attacked.” The threat was presumably specific in both cases – the targets were Walsh on the one hand, and El-Baghdadi and his colleagues on the other.

A “credible” threat is defined as one that is “accurate in general terms.” The threat against the Saudi dissident journalists appear to meet this fairly soft standard. El-Baghdadi was reportedly told that the Saudis “had crosshairs on [his] back.” Abdulaziz was given similar advice, and their U.S.-based colleague was warned not to travel. The threat against Walsh was likely credible as well, since a U.S. government official clearly believed the threat to be so accurate that they risked their career to inform the New York Times about it.

The NSA SOP defines the term “impending” fairly expansively: something is “impending” if it “will likely happen at some point in the future… hours, days, weeks, months.”

It is difficult to know precisely how developed the threats were in these cases, since the publicly available information is limited. Nevertheless, the NSA SOP’s definition of impending implies that, generally, warnings ought to be delivered well before a threat is about to materialize.

Clearly, since the CIA and local authorities acted to brief El-Baghdadi, Abdulaziz and their U.S.-based colleague of threats against them, they had determined that those threats were significant and immediate enough to warrant taking action. The same might be said of the New York Times’ assessment, and perhaps the assessment of the U.S. government official who informed the publication of the threat posed to Walsh. Indeed, the immediacy of the threat to Walsh may have been exacerbated by the Trump administration’s apparent willingness to “sit on the information and let the arrest be carried out.” Thus, it is clear that the threats against all of the journalists in question fell under the definition of “impending.”

Type of Harm

The directive also requires that the type of harm that is threatened be one of “intentional killing, serious bodily injury or kidnapping.” The three Saudi dissident journalists were not told of the exact nature of the threat against them. But, in light of a renewed Saudi campaign of arrests and possible torture of its critics inside the country, it seems likely that the type of harm those three journalists may have been threatened with was sufficiently serious to engage the duty to warn.

In Walsh’s case, the type of potential harm that appears to be most relevant is kidnapping. The directive defines kidnapping as “the intentional taking of an individual or group through force or threat of force.” After Khashoggi’s murder, the Washington Post quoted a former senior intelligence official who was of the view that “capturing him, which could have been interpreted as arresting him, would not have triggered a duty-to-warn obligation,” but that “if something in the reported intercept indicated that violence was planned, then, yes, he should have been warned.” Therefore, according to this former official, an arrest or capture without the threat of violence would not amount to a severe enough threat to trigger the duty to warn. But, as Just Security’s Ryan Goodman concluded in the October 2018 article on the Khashoggi case, this interpretation is arguably too narrow, especially for a directive that errs on the side of delivering the warning.

Let’s assume that the United States learned that Walsh was to be rendered against his will by the Egyptian authorities under the auspices of an arrest, without due process protections and especially on grounds likely unjustifiable under a recognizable and discoverable legal process. Any attempt to resist presumably would have been met with some level of force, and the communication of this fact, whether explicit or implicit (for instance, the mere presence of armed officers), would likely be threatening to anyone in Walsh’s position. The physical abduction of a journalist by a security state with a threat of force dissuading any resistance would be present. Thus, Walsh’s case would have amounted to something akin to a kidnapping as defined under the directive. 

Lastly, publicly available information does not point to any circumstances that would have allowed a waiver of the duty to warn. These include circumstances that range from where the warning would compromise Intelligence Community sources and methods to where there is no reasonable way to warn the individual. It is difficult to see why the warning should not have been delivered to Walsh as happened with the three Saudi dissident journalists.

The Saudi Factor?

It is hard to state with any certainty what might have prompted a different response from the Trump administration’s intelligence officials in these four cases before and after the Khashoggi killing. It is possible that the Khashoggi case, and the outcry that followed it, might have forced the administration to pay more attention to its duty to warn journalists under threat more generally, and journalists under threat by the Saudi government in particular. Indeed, press freedom advocacy groups have been pushing to secure the release of information revealing what the Intelligence Community knew about the threat to Khashoggi. A desire to avoid renewed criticism and embarrassment if these efforts successfully demonstrate that the U.S. government was derelict in its duty to warn Khashoggi may also have led to a shift in attitude. 

This attitude shift alone, if it has indeed taken place, is unlikely to change the administration’s rightfully earned reputation for hostility to the press. It also should not relieve the administration from significant scrutiny of what happened in the Walsh case.

The fact that the United States took concrete steps to warn three of Khashoggi’s colleagues roughly at the same time against threats from Saudi Arabia may indicate that the Trump administration is at least beginning to take the duty to warn more seriously than it did in August 2017, when Walsh was threatened, and in October 2018, when Khashoggi was murdered. This attitude shift alone, if it has indeed taken place, is unlikely to change the administration’s rightfully earned reputation for hostility to the press. It also should not relieve the administration from significant scrutiny of what happened in the Walsh case. But such a turn toward compliance with the directive would at least be a step in the right direction. 

About the Author(s)

Edwin Djabatey

Legal Fellow at Just Security