US Suit Against Saudi Prince for Attempted Killing of Ex-Insider Faces Hurdles

The Crown Prince of Saudi Arabia, Mohammed bin Salman al Saud (“MBS” as he is known, not always with affection), faces a lawsuit in D.C. District Court by former Saudi intelligence official Dr. Saad Aljabri for dispatching a hit squad of “personal mercenaries” to try to kill him. Aljabri alleges that Saudi agents, members of the so-called Firqat el-Nemr (“Tiger Squad”), attempted to assassinate him in Canada in 2018, two weeks after the Saudi Washington Post journalist Jamal Khashoggi was killed and dismembered in the Saudi consulate in Turkey (see Just Security’s coverage here). The lawsuit is a bold move, but it faces a host of hurdles to succeed.

The complaint alleges numerous efforts by MBS, his “charitable” foundation (which many believe is a front for espionage), and other Saudi official defendants, named and unnamed, to track and threaten Aljabri, to lure him out of the United States and Canada (where he is in exile), and – ultimately – to assassinate him. Many of the defendants are alleged to have been involved in Khashoggi’s murder and are already subject to U.S. sanctions under the Global Magnitsky Act. The plot was foiled when Tiger Squad members, carrying a bag of forensic tools, were blocked at the Canadian border. Khashoggi might still be alive had the Turkish border guards been as diligent.

The assassination attempt came after Saudi authorities disappeared two of Aljabri’s children and his brother, presumably as leverage (“a crude form of human bait,” per the complaint) to lure him back to the Kingdom; had a fatwa issued against him; and then fraudulently tried to get Interpol to issue an international arrest warrant against him for corruption. Interpol rejected this latter move as politically motivated in light of the Kingdom’s use of mass corruption charges to consolidate power and endemic due process deficits (including the widespread use of torture) in the Saudi judicial sector.

Aljabri is a linguist and computer scientist who worked in the Interior Ministry for decades. He fell out of favor in 2017, when MBS replaced Mohammed bin Nayef with MBS as heir apparent. Aljabri also has been identified as a trusted counter-terrorism partner to the U.S. and U.K. intelligence communities. Indeed, in early July, Senators Patrick Leahy, Marco Rubio, Tim Kaine, and Chris Van Hollen wrote a letter to President Donald Trump in Aljabri’s defense, crediting him with providing crucial assistance to U.S. intelligence services and of preventing potentially deadly terrorist plots. Aljabri’s previous position no doubt gave him access to sensitive information on the Kingdom, the members of the royal court, and where the proverbial, and likely real, bodies are buried. He can also speak to how genuine an ally Saudi Arabia really is in counter-terrorism efforts. It is obvious why he’d be perceived now as a threat to MBS.

The civil suit, which has been brought by Jenner & Block LLP, is premised on the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA). These two statutes provide for federal jurisdiction over violations of international law in U.S. courts. The ATS, enacted in 1789 as Congress was establishing the federal court system, supports jurisdiction over a range of potential claims, so long as the international prohibition in question is universal, obligatory, and defined with specificity. By contrast, the 1992 TVPA creates a federal cause of action over claims of torture and extrajudicial killing. “Extrajudicial killing” is defined as:

a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Recent precedent establishes that the TVPA also allows claims for attempted extrajudicial killings, the core cause of action at issue in Aljabri’s suit. He also alleges the state law tort of intentional infliction of emotional distress via supplemental jurisdiction.

Legal Obstacles

To be sure, there are any number of hurdles that Aljabri will have to overcome in this suit. One is the so-called presumption against extraterritoriality, which dictates that U.S. legislation applies to conduct within the United States unless Congress indicates otherwise. According to 2013 Supreme Court precedent, ATS claims must “touch and concern” the United States “with sufficient force” to overcome this presumption. Although much of the conduct alleged in Aljabri’s suit occurred in Saudi Arabia or Canada, there are a number of concrete links the United States, including the fact that he owns property, was surveilled, and was subjected to acts of intimidation in the United States, including through U.S. social media platforms such as WhatsApp.

The defendants also allegedly tracked and interrogated many of Aljabri’s contacts and family members (some of whom live in Boston) in an attempt to extract information from them, and sought to freeze U.S. bank accounts. Indeed, the complaint specifically alleges that the plot to “hunt” Aljabri was conceived and executed “primarily in the United States.”

Additionally, Aljabri and the defendants (some of whom live in the United States) have had regular contacts with high-level U.S. officials and lobbyists, hosted events, and entered into contracts in the United States. Although this presumption encumbers suits under the ATS, it is not relevant for claims under the TVPA, which clearly applies to extraterritorial conduct as enacted by Congress.

In addition, plaintiff’s counsel will have ensure proper service of process on MBS and the other defendants. The Federal Rules of Civil Procedure (FRCP) provide a number of routes for serving foreign individuals with process. Separately, Aljabri will have to establish personal jurisdiction over the defendants under Washington’s D.C.’s long-arm statute and the FRCP. Specifically, Rule 4(k)(2), the federal long-arm statute, allows for the assertion of personal jurisdiction over individuals with sufficient contacts with the United States as a whole who stand accused of violating federal law. This was the authority invoked to find personal jurisdiction over Osama Bin Laden, even though he never set foot in the United States. Defendants have 21 days to answer the complaint after being served.

Questions of Head-of-State Immunity

MBS will no doubt argue that he is entitled to some form of head-of-state immunity, one of the strongest forms of personal immunity – immunity ratione personae – under U.S. common and international law. Following a literal palace coup, MBS became Crown Prince and Deputy Prime Minister. He also holds a number of political positions, including Minister of Defense. That said, he is widely considered to be de facto head of state and the power behind the throne of his father, King Salman bin Abdulaziz Al Saud. Heads of state, heads of government (e.g., prime ministers), and Ministers of Foreign Affairs – the so-called troika – enjoy this form of personal immunity (but not necessarily Ministers of Defense, I should note). This doctrine offers powerful protection before domestic courts around the world. (Heads of state etc. enjoy no such immunity before international courts, however).

The criminal case against Manual Noriega, the former dictator of Panama, in the United States offers an interesting exception to the apparent impenetrability of head-of-state immunity. That said, the U.S. government took the position that Noriega was not, in fact, the legitimate head of state because he had been replaced by Guillermo Endara in an election that Noriega annulled in order to stay in power. Given MBS’s ambiguous authority, and the lack of precedent involving monarchical dynasties, it is unclear whether U.S. courts would consider him entitled to head-of-state immunity.

The Kingdom’s apparently global campaign of targeting political dissidents, reformers, and insiders who would challenge the leadership’s hegemony through the use of kidnapping, violence, and trumped up legal charges is legion. The targets of this repression include moderate clerics, intellectuals, poets, activists, members of MBS’s own family, and women who challenge the harsh restrictions placed on their autonomy and ability to participate in public life. The Kingdom’s counter-terrorism court has been re-purposed to suppress dissent rather than tackle the genuine terrorism threats emanating from the country.

In addition, there is the scandal involving two former Twitter employees, revealed to be Saudi agents, who were collecting information about the individuals behind the accounts of prominent critics of the Kingdom, many of whom were tweeting anonymously or under pseudonyms for their own protection. And we know that MBS arranged to have the phone of Amazon CEO and Washington Post owner Jeff Bezos hacked and tapped – as confirmed by a report by the U.N. Special Rapporteurs on Extrajudicial, Summary or Arbitrary Executions and on the Promotion and Protection of the Right to Freedom of Opinion and Expression. The Aljabri complaint indicates that MBS and other defendants named in the suit orchestrated that scheme, which is the subject of a criminal investigation in San Francisco.

Many of the victims of MBS’s campaign to suppress and eliminate dissent are U.S. citizens, or the loved ones of U.S. citizens, who have desperately sought assistance from the U.S. State Department. One is Areej al-Sadhan, whose brother Abdulrahman al-Sadhan, a humanitarian worker with the Red Crescent Society in Saudi Arabia, used an anonymous Twitter account to critique the Kingdom’s endemic corruption and human rights violations. In March 2018, he was forcibly disappeared. Areej was left wondering whether the Twitter infiltration is how Saudi Arabia’s secret police identified him, because he was otherwise not visibly active in politics or the resistance. After the family enlisted the help of members of Congress, they received a phone call in February 2020 from Abdulrahman, confirmation at least that he is alive. They have not heard from him since.

Indeed, Aljabri’s suit is not the only one by former Saudi insiders alleging a global campaign to eliminate critics; a similar suit was filed in Switzerland on behalf of Prince Sultan bin Turki, who in 2003 was drugged and secretly flown out of Switzerland to Saudi Arabia, where he was detained for almost a decade. He was later disappeared in 2016, abducted when a flight that was supposed to be going to Cairo was re-routed to Riyadh. These events are portrayed in the film, “Kidnapped!, The Lost Princes.” Aljabri is no doubt deeply concerned that he may meet the same fate.

IMAGE: Saudi Crown Prince Mohammed bin Salman (C) arrives to attend a session during the Future Investment Initiative (FII) conference in the capital Riyadh on October 24, 2018.  (Photo by FAYEZ NURELDINE/AFP via Getty Images)

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Member of the editorial board of Just Security. Follow her on Twitter (@BethVanSchaack).