What does the US owe Jamal Khashoggi?

The US names names.
The US names names.
Image: Middle East Monitor/Handout via Reuters
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This article has been updated.

Donald Trump has said that the US has little obligation to investigate and punish the perpetrators behind the disappearance of journalist Jamal Khashoggi because it took place in Turkey, and he is not an “American citizen.

Khashoggi, a US resident, disappeared after entering a Saudi embassy in Istanbul two weeks ago. On Oct. 19, Saudi state media reported that he died in a fight inside its Turkish consulate. It is the first time the Gulf kingdom has acknowledged the regime critic’s death.

The world was first alerted to Khashoggi’s absence after Turkish authorities alleged that he had been tortured and beheaded by men close to ruling Saudi crown prince Mohammed bin Salman, sparking international outcry. “We don’t like it even a little bit,” said US president Donald Trump. “But as to whether or not we should stop $110 billion from being spent in this country, knowing they have four or five alternatives, two very good alternatives, that would not be acceptable to me.”

Khashoggi was living in the United States on an “O” visa, according to his employer the Washington Post. Also known as the “genius” visa, the O offers individuals of “extraordinary ability and achievement” temporary residence for up to three years. Three of Khashoggi’s children are US citizens, and he is believed to have been applying for a legal permanent residence in the US, also known as a green card.

Trump has also argued that the billions in arms sales to the Saudi are ultimately more important than Khashoggi’s life. This position is publicly backed by just a handful of US politicians and evangelical leader Pat Robertson. In contrast, a growing, bipartisan group of senators and representatives are calling to investigate the disappearance and sanction any high-ranking Saudis involved.

So what kind of justice does the US owe Khashoggi? Yes, temporary residents’ protections are limited under US law. But international law, the US constitution and historic precedent suggest the Trump administration does, in fact, have a responsibility to the missing journalist.

Protection under US domestic law

The US constitution protects any person on US soil—no matter what their status—and US citizens overseas. In 1896, the US Supreme Court ruled that “even an immigrant who had broken immigration law still had the right to make his case to a judge before being ‘deprived of life, liberty, or property.’ “

US citizens who live or travel overseas can expect aid from the US State Department, as part of the Vienna Convention on Consular Relations, a 1963 treaty. Lawful permanent residents (LPR), or green card holders “generally are not entitled to emergency and protective services provided by the U.S. Government,” the US statue says, except “when an LPR applicant has exceptionally close and strong ties to the United States, and overriding humanitarian and compassionate grounds exist.”

What exactly constitutes exceptional close and strong ties, or humanitarian grounds is decided on a “case by case basis,” a State Department official told Quartz.

But someone holding a temporary worker’s visa, like an O-Visa, isn’t technically entitled to US consular protection. If they were traveling abroad and needed assistance, they would be directed to the embassy of their own citizenship. In cases when the US is, for example, evacuating US citizens from a disaster overseas, however, it would likely also evacuate their non-citizen relatives.

US intelligence agencies “duty to warn”

However, US intelligence agencies do have a clear “duty to warn” any individual, US citizen or not, of any known violent threats against them. A 2015 directive to the National Security Act, issued by Director of National Intelligence James Clapper, requires the US to give “non-US persons” notice of “impending threats of intentional killing, serious bodily injury, or kidnapping.”

An IC element that collects or acquires credible and specific information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person or group of people (hereafter referred to as intended victim) shall have a duty to warn the intended victim or those responsible for protecting the intended victim, as appropriate. This includes threats where the target is an institution, place of business, structure, or location. The term intended victim includes both U.S. persons, as defined in EO 12333, Section 3.5(k), and non-U.S. persons.

The US knew that Khashoggi was a target. US intelligence agents intercepted a plan to lure Khashoggi back to to the US, the Washington Post reported Oct. 10. An unnamed National Security Agency official also  told the Observer’s John Schindler that US intelligence had learned that Riyadh “had something unpleasant in store for Khashoggi,” at least a day before Khashoggi went to the embassy in Istanbul. The “threat warning was communicated to the White House through official intelligence channels,” Schindler writes, but it’s not clear whether Khashoggi ever received the warning.

The Office of the Director of National Intelligence has refused to comment on why Khashoggi was not warned.

FBI assistance

The FBI often investigates the murders of US citizens overseas, or deaths in cases of terrorism that occur on US or foreign soil. While reporters have been asking Trump if he plans to “send the FBI” to investigate, that’s not exactly how it works.

The FBI investigates terrorism overseas when it is “perpetrated by individuals and/or groups inspired by or associated with designated foreign terrorist organizations or nations.” In other words, Khashoggi’s alleged killers need to be designated a terrorist group by US authorities before the FBI got involved. Given the US’s close ties to the main suspect, the Saudi government, that’s very unlikely.

The FBI also needs a “request for assistance” from the Turkish authorities to travel to Turkey, and then from the Saudi authorities to enter the consulate where Khashoggi disappeared, as George Piro, the assistant director for international operations, explained in July:

in these types of incidents where the FBI or the United States may not necessarily have jurisdiction, we are prepared to support our foreign partners if they ask for our assistance and support. And that is – that’s what kind of triggers or initiates the mechanism for the FBI to provide – whether it’s a technical support expertise, subject matter expertise, or things like that, it would require the foreign partner to ask for our assistance, and we will provide that.

Moral obligation and the Magnitsky Act

What the US should be doing in any situation where an outspoken critic of an authoritarian regime goes missing is another question. In the past, US authorities have sometimes intervened overseas under the flag of democratic American principles, (sometimes while pursuing other goals of their own).

Ronald Reagan believed “the words in the Constitution and the declaration of Independence were a covenant to the people of the country, and the world,” noted Frank Wolf, a long-time Republican Congressman from Virginia, who spent years questioning US ties with Saudi Arabia and China, because of both governments’ awful human rights records. (Wolf was not speaking specifically about Khashoggi, and said he’d hold off judgment until more information emerges.)

Under the Trump administration, the US has sanctioned and punished governments that break international laws and norms. The Global Magnitsky Act asks the president to consider sanctions when a foreign power is “responsible for extrajudicial killings, torture, or other gross violations of human rights.” It gives the US the power to freeze the assets of officials working for that foreign power, and bar them from the US.

After Russia poisoned two with a nerve agent in Britain, the US announced tough sanctions on Russia, citing a US law that requires sanctions on any foreign power using chemical or biological weapons. Dozens of Congressmen asked Trump to do the same on Saudi Arabia, citing the Magnitsky Act. Even Russian president Vladimir Putin is complaining about the US administration’s failure to act. ”Here, they say a murder happened in Istanbul, but no steps are taken,” Putin complained recently.“People need to figure out a single approach to these kinds of problems,” he said.

But the White House, under Trump or his predecessors, has not consistently acted to defend US principles of free speech and due process abroad. Even as the Chinese Communist Party cracked down on outspoken critics, and journalists, and locked up human rights lawyers in recent years, the Barack Obama administration pushed for closer ties, to get Beijing onboard with the landmark Paris Climate Change agreement. Reagan maybe have spoken eloquently about the US’s responsibility to spread democracy overseas, but his administration covertly sold arms to Iran.

Nonetheless, Khashoggi’s case—and Trump’s inaction so far—is inciting Republican congressmen and Trump-supporting media alike to openly break with Trump. As radio host John Fredericks recently said about Khashoggi, “he’s a human being.”

Right now, Trump could be putting sanctions on the Saudi royal family, freezing their assets in the US and restricting their travel, said Sarah Margon, the Washington, DC head of Human Rights Watch. Furthermore, the US should “make it very clear there will be no arms sale until there is a plan of accountability,” she said. For the moment, the Trump administration has leverage, she said, but it’s squandering it.