PBS News Hour

AMNA NAWAZ

The State Department issued a legal opinion yesterday that said Saudi Arabia's crown prince and prime minister, Mohammed bin Salman, known as MBS, has immunity from U.S. courts. The crown prince has been sued in the U.S. by the fiance of journalist Jamal Khashoggi. He was murdered in Saudi's Istanbul consulate in 2018. And U.S. intelligence believes MBS ordered the killing. Meantime, for months, the Biden administration has been pushing Saudi Arabia to increase oil production amid high gas prices. So, should the U.S. have been tougher with Saudi Arabia? For that, we get two views. John Bellinger was the legal adviser to the State Department during the George W. Bush administration. And Gregory Stanton is a former State Department lawyer and founder and president of Genocide Watch, a nonprofit that seeks to stop genocide and its perpetrators. 4 Welcome to you both. Thank you for being here. GREGORY STANTON,

Genocide Watch

Thank

you. AMNA NAWAZ

Let's jump right in. Greg, what do you make of this call by the U.S.? Was this the right decision?

GREGORY STANTON

I think the State Department got this wrong. The fact is that the law here is the Foreign Sovereign Immunities Act of the United States. And in the opinion they gave, they only cited customary international law. In fact, the Foreign Sovereign Immunities Act has a number of exceptions that have been actually passed by Congress and signed into law. The 2008 Defense Act was accompanied with an exception to allow people to sue certain governments that were declared to be terrorist states. But then, in 2016, there was another act passed, the Justice for Victims of Terrorists Act, that specifically takes away the need for the State Department to designate a country as a terrorist country. And it makes it possible to actually sue anybody involved in murder, in torture, in hijacking, and in hostage-taking.

AMNA NAWAZ

You think this should have fit under that exception?

GREGORY STANTON

I think that it's very clear that MBS was responsible for the murder and for the terror - - the torture of Jamal Khashoggi.

AMNA NAWAZ

Let me bring in John on that point, then. I mean, President Biden has said -- and he did agree with the CIA assessment that MBS did order the operation that led to Khashoggi's killing. So why issue immunity in a murder case? JOHN BELLINGER III,

Former Legal Adviser of the Department of State

Well, I think, for the reasons you just mentioned, this was a very uncomfortable, if not unpalatable decision for the Biden administration to have to make, given the really awful circumstances of the killing of -- for Jamal Khashoggi. But the administration was simply complying with its obligations under international law. International law recognizes that heads of state in government, like now Prime Minister bin Salman, enjoy immunity from civil suits or, in fact, from criminal prosecutions in the courts of other countries. So, under international law, he had immunity here. And, for that reason, going back decades, every administration has asserted immunity on behalf of any foreign head of state who was sued here in the United States, often for really horrific actions. When I was legal adviser at the State Department, I had to sign an immunity determination for Pope Benedict, who was sued with respect to the clergy scandal. So this was not a favor to Saudi Arabia. This was simply compelled by international law.

AMNA NAWAZ

Greg, what do you say to that, decades of precedent here?

GREGORY STANTON

I think the reason that that doesn't hold here is that MBS is not the head of state in Saudi Arabia.

AMNA NAWAZ

He is prime minister, right?

GREGORY STANTON

Well, they just made him prime minister. So he might be able to argue this point. But the fact is, the head of state in Saudi Arabia is the king. This is just a prince. So, the only one who would have this right under the international law would be the king.

AMNA NAWAZ

What would be the U.S. options in this case? What would you have liked to seen happen?

GREGORY STANTON

What I would have liked to see is that he could be sued, and that is specifically allowed under the Foreign Sovereign Immunities Act and its exceptions. He's not being tried criminally here. This is a lawsuit to get compensation for the murder of a man, a very great man, in fact. So, for me, this is not a case where it was governed by international law at all. It was governed by the Foreign Sovereign Immunities Act.

AMNA NAWAZ

John, what about the concerns that there could be political considerations here? We know about the tensions. We know about the Biden administration asking them to increase oil production. Could that have influenced the decision?

JOHN BELLINGER III

Candidly, I think the political considerations would have gone the other way. I think the Biden administration was probably so angry with Saudi Arabia right now and really upset about this particular killing that their policy view would have been not to find immunity. But international law provides that a head of government like this, as well as a head of state, as well as foreign ministers, enjoy immunity. And, unfortunately, with respect to what Mr. Stanton said, the Foreign Sovereign Immunities Act does not apply in circumstances like this. The Supreme Court held a few years ago that the immunity of heads of state or government is governed by international law. So, I think the Biden administration here, perhaps, in fact, looking back at things that happened during the Trump administration, said, we want to comply with international law, do what the United States regularly does, even though it's unpalatable in these circumstances.

AMNA NAWAZ

Could the U.S. have not done anything? Could they not have put their... (CROSSTALK)

GREGORY STANTON

Exactly.

AMNA NAWAZ

OK.

GREGORY STANTON

There is no requirement, under the Foreign Sovereign Immunities Act, does the State Department have to give an opinion to the Justice Department.

AMNA NAWAZ

And that would mean that he could then still be sued; is that correct?

GREGORY STANTON

That's correct. He could be. It's really up to the judge. In other words, this is a judicial decision. It didn't have to be an opinion from the State Department. And I, as I have already said, think the State Department got this wrong. And not only that. There was a Supreme Court case in 2010 in which Justice Stevens held and the court decided unanimously that foreign officials do not qualify for sovereign immunity. And that is why this is, I think, a misapplication of law.

AMNA NAWAZ

John, at the end of the day, what does this mean, then? If he is now shielded from any kind of suit, what does this mean for any accountability for the murder of Jamal Khashoggi?

JOHN BELLINGER III

Well, this is really the concern. When someone can't be sued, then the argument is, the person has impunity or there's not accountability. It doesn't mean that at all. And, in fact, the Biden administration went to great pains to state in their legal brief that we condemn the killing, it was wrong, it was heinous, but simply observing international law here, Mohammed bin Salman had immunity in these courts, but there would be other ways to hold him accountable, just not in the courts of the United States, if the U.S. is going to comply with our longstanding obligations under international law, and act the way we always have, which is to recognize the immunity of foreign heads of state, as we expect, candidly, other states to treat our head of state in their courts.

AMNA NAWAZ

It's certainly another layer on a very complicated relationship between the U.S. and Saudi Arabia. Gregory Stanton, John Bellinger, thank you both so much for being here.

Thank you. GREGORY STANTON

Nice to be with you.