Unsurprisingly, the report into the killing of Saudi journalist and U.S. resident Jamal Khashoggi, which the U.S. government released last week, concluded that Crown Prince Mohammed bin Salman personally approved the killing. Unfortunately, the United States also declined to place sanctions on the Crown Prince. The lack of sanctions for bin Salman is disappointing and frustrating, not only because it fails to hold the crown prince accountable for Khashoggi’s murder, but also for the message it sends to other perpetrators around the world.
Accompanying the release of the report on Friday, the State Department also announced what it called the “Khashoggi Ban,” a new visa restriction policy to ban people from entering the United States who engaged in “serious, extraterritorial counter-dissident activities” on behalf of a foreign government. Secretary of State Antony Blinken also announced that 76 Saudi individuals would face visa restrictions under the new ban, although he did not name them. The State Department told POLITICO that it would not be identifying who is included under the ban because “individual visa records are confidential.” The announcement did hold out the possibility that other perpetrators banned from entering the United States would be named, however, using other authorities.
So, what is the new Khashoggi Ban, and what is expected to be done with it? How does the Khashoggi Ban relate to the U.S. government’s refusal to impose targeted sanctions on bin Salman himself?
Last month, Freedom House put out a major new report on “transnational repression,” or the targeting of exiles and diasporas by the countries they have fled—exactly the kind of thing that the State Department is talking about in its announcement. Our report found 31 “origin countries” targeting exiles in 79 “host countries.” In other words, stepping back from Saudi Arabia, there is a huge global problem that will fall within the ambit of the new Khashoggi Ban. Among those dozens of origin countries, there are hundreds of officials who are responsible for targeting dissidents and journalists abroad, and thus should be eligible for sanction under the policy.
The positive elements of the State Department’s announcement are that it takes seriously transnational repression, creates a “branded” mechanism for applying sanctions against those who engage in it, and provides a wide definition of what transnational repression is. The announcement continues progress made with the addition last year of a new section on extraterritorial targeting to the State Department country reports on human rights practices. U.S. foreign policy is starting to address the problem of governments that go after dissidents abroad. The fact that the secretary of state announced the new ban adds to its weight.
The “branding” of the Khashoggi Ban also means that civil society actors from around the world will have a concrete way to direct information about these attacks to the State Department. Putting a name on this measure can be more than PR: It should galvanize civil society to work with the State Department and the U.S. government on this problem. Civil society groups that collect information about extraterritorial persecution will now have a heading under which they can direct their advocacy when they meet with officials or raise their cases. Simply being able to point to a high-profile announcement by the secretary of state will help civil society groups get attention for their cases with other State Department and U.S. government officials. It can also help the United States to coordinate activities with allies around the world who face similar threats and can adopt similar policies.
Finally, the capacious definition used in the statement, which covers “those that suppress, harass, surveil, threaten, or harm journalists, activists, or other persons perceived to be dissidents for their work,” offers an opportunity for sanctions to be applied to those who not only physically harm exiles, but those who take other measures short of physical attacks. Research by Freedom House and others shows that such “everyday” tactics of transnational repression — like spyware, digital threats, or the imprisonment of exiles’ family members back home — can have a severe chilling effect. Beyond the 31 states engaging in physical transnational repression, even more use these nonphysical means to suppress dissidents abroad, again expanding the pool of actors who could be held responsible under the Khashoggi Ban. It is important and welcome that the State Department is using this broad definition, and activists should encourage its implementation in practice by raising cases where the United States can apply the ban. Activists and others should also ensure that facilitators of transnational repression—like private surveillance companies that provide such technology—are also eligible for sanction and face the consequences of a ban.
The less positive parts of the new policy are that, first of all, the State Department’s announcement is undermined by the failure to sanction bin Salman himself. It is good but not enough that the Rapid Intervention Force, the team that murdered Khashoggi, was itself designated under the Global Magnitsky Act, as were its members. Khashoggi’s murder matters to his family, his fiancée Hatice Cengiz, his colleagues, and to other Saudis who live in fear of the government abroad. But it also matters globally because of the symbolism of Khashoggi’s killing. President Joe Biden himself vowed to hold the crown prince accountable while on the campaign trail. By backing down from sanctioning bin Salman himself, the new administration is showing that leaders can, in fact, get away with murder.
The second less positive part is that despite the boldness of the announcement, the measures envisioned under the Khashoggi Ban are relatively mild, consisting of merely visa bans and possible naming and shaming. There was nothing stopping the State Department from doing either of these before—as the announcement states, this ban is under existing authorities of the Immigration and Nationality Act for the visa bans, and public identification under the SFOPS Appropriations Act of 2020. Moreover, a visa ban is on the lower end of the spectrum for what the United States is capable of doing to hold perpetrators accountable through targeted sanctions and other means. If measures to prevent transnational repression stop here, it will not be enough.
As we recommended in our report, a true U.S. strategy to take on transnational repression should start with consistently imposing Global Magnitsky sanctions, which can include asset freezes as well as visa bans. Asset freezes are a heavier price to pay for perpetrators who like to shield their assets in U.S. and Western financial institutions, because not only do they lock perpetrators out of U.S. banks, but also out of much of the international financial system. It is crucial that these sanctions be consistently applied whenever there are clear violations of rights, even when those violations are committed by individuals from ally or partner countries, as in the case with Saudi Arabia. If sanctions are only applied on U.S. adversaries, the United States’ stated commitment to the protections of rights appears hypocritical, and the sanctions appear as just another politicized tool. The White House should also work with Congress to ensure that Congress reauthorizes Global Magnitsky–which will sunset on December 23, 2022 absent reauthorization–and robustly fund its implementation across the relevant agencies of State, Treasury, and Justice.
Second, the strategy should include examining measures for accountability within the United States to address types of harassment and abuse that fall within legal gray areas for which the U.S. criminal code is not well equipped. The problem of “refugee espionage,” or spying on refugees, is one for which the United States is not necessarily prepared in its statutes. Recent cases brought by the Justice Department have relied on statutes like wire fraud, stalking, obstruction of justice, or failure to register as a foreign agent under 18 USC 951. DOJ and Congress should work together, in consultation with civil society, to examine whether law enforcement has the right tools for the problem. This may also include updating or replacing 18 USC 951, which was last updated in 1983, and the more famous Foreign Agents Registration act (FARA), which dates to 1938 and is badly in need of a refresh. Updates or replacements of these statutes are needed in order to better distinguish illegal from legal activity on behalf of a foreign actor, and to provide proper transparency for legal foreign activities on U.S. soil.
Finally, the strategy should include working with Congress to update section 502B of the Foreign Assistance Act of 1961, as amended, to allow for restrictions on security assistance for countries engaging in a consistent pattern of transnational repression. Language could be added to include crimes of transnational repression in the section’s definition of gross violations of human rights, or, preferably, crimes of transnational repression could be added as a new standalone category. The goal should be to ensure that U.S. security assistance is not going to States that target exiles abroad.
The Khashoggi Ban is a positive step for accountability for transnational repression, but it is undermined by the administration’s reluctance to act against bin Salman himself. If this measure is to live up to its namesake, it should be coupled with serious sanctions against perpetrators, no matter who they are, and with a comprehensive approach to transnational repression that goes beyond visa bans and public naming and shaming.