The burden now falls on the Trump administration to explain why its withholding records that appear to implicate Mohammed bin Salman in the murder of one of the Kingdom’s most prominent critics.
A New York judge on Tuesday ordered US intelligence agencies to turn over descriptions of a tape recording of the gruesome murder of exiled Saudi Arabian journalist and Washington Post columnist Jamal Khashoggi.
Paul Engelmayer, a federal district court judge in the Southern District of New York, instructed the Central Intelligence Agency (CIA) and Office of the Director of National Intelligence (ODNI) to explain why they are withholding the tape and a CIA report on Khashoggi’s assassination.
The decision comes following the Open Society Justice Initiative’s (OSJI) lawsuit under the Freedom of Information Act (FOIA) to gain access to records tied to the US investigation.
The court ruled that the government has two weeks to produce a “Vaughn index” that “enumerates and describes each withheld record,” rejecting the government’s claim that it could acknowledge only that it possesses “some documents” in response to the FOIA request while withholding descriptions.
A Vaughn index is a government declaration that identifies the records being withheld and the basis under FOIA for withholding them.
The ruling does not require that the tape and the report be made public.
Both the ODNI and CIA have previously indicated Saudi Crown Prince Mohammed Bin Salman (MBS) was responsible for the Khashoggi murder but maintain that “the Intelligence Community has a legal and moral obligation to protect classified information.”
A ‘crucial victory’ to address a ‘cover-up’
Tuesday’s judgement is the outcome of a lawsuit filed by OSJI in August and currently pending in New York federal court against the CIA, ODNI, and the US Departments of State and Defense, challenging the agencies’ failure to disclose records related to Khashoggi’s murder.
“Today’s court order is a crucial victory in addressing the Trump administration’s shameful cover-up of Jamal Khashoggi’s murder,” said Amrit Singh, OSJI’s lead lawyer in the case.
“For more than two years, the administration has shielded the Saudi Crown Prince and other officials from accountability and withheld information from the public about who is responsible for the murder. The Court’s judgement is a vital step towards ending impunity for the murder.”
In its claim, the advocacy group argued that disclosure of the records is essential “for a public evaluation of the federal government’s efforts to investigate and hold accountable those responsible for Khashoggi’s killing.”
It also asserts “the American public has a right to know what its government is doing to uphold human rights and the rule of law” in the context of the murder.
When previously requested to release a Congressionally-mandated report on the murder, the ODNI argued that doing so would harm national security and it was entitled to withhold the report under FOIA.
Following further briefing in the case, which is expected to be wrapped up by January 6, 2021, the court may schedule oral argument or issue a judgement on whether ODNI may lawfully withhold the report under FOIA.
A prominent critic of the Saudi government and MBS, Khashoggi was strangled and dismembered by a 15-man Saudi squad inside the kingdom’s Istanbul consulate according to Turkish officials, after going to gather documents for his marriage to his Turkish fiancé on October 2, 2018.
His remains have not been found.
Riyadh maintains that the murder was a “rogue” operation. Apart from the CIA, a United Nations special envoy has also directly linked MBS to the killing, a charge the kingdom denies.
In 2018, the US issued sanctions on 17 Saudi individuals it alleged were involved, though neither MBS nor a top Saudi official implicated in the murder by Saudi Arabia’s top prosecutor was on that list.
Secretary of State Mike Pompeo has said several times that the US would hold individuals responsible for the killing accountable.
However those claims have clashed with US President Donald Trump, who has resisted blaming MBS for any part of the plot and has called the Kingdom a “spectacular ally” while vetoing three resolutions passed last year by Congress to stop arms sales to Riyadh.
On the second anniversary of Khashoggi’s disappearance, now President-elect Joe Biden’s campaign signaled support for new relations with Saudi Arabia in a public statement saying that “Jamal and his loved ones deserve accountability” and his death “will not be in vain”.