Trump Administration Withholds Khashoggi Records, Biden Must End Cover-up and Commit to Transparency

NEW YORK—In response to an Open Society Justice Initiative lawsuit, attorneys for the Office of the Director of National Intelligence (ODNI) have argued that releasing a Congressionally-mandated report on the murder of U.S. resident and Washington Post columnist, Jamal Khashoggi, would harm national security.  

The lawsuit, filed in August this year and currently pending before federal court Judge Paul Engelmayer in the Southern District of New York (SDNY), sought disclosure of the ODNI report under the Freedom of Information Act (FOIA). In its brief before the court, ODNI disclosed for the first time that the report is two pages long, and argued that it is entitled to withhold the report under FOIA.

Amrit Singh, lead lawyer for the Justice Initiative, said of the government’s response:

“To date, the Trump administration has covered up the truth and not released a single meaningful record on Jamal Khashoggi’s case and who is responsible for his murder. President-elect Joe Biden can demonstrate his administration’s commitment to democratic values and human rights by quickly releasing ODNI’s Khashoggi report. This would be a vital step towards ensuring that those responsible for the murder are held accountable and brought to justice.” 

On the second anniversary of Jamal Khashoggi’s disappearance, Joe Biden’s campaign signaled support for new relations with Saudi Arabia in a public statement saying, “Jamal and his loved ones deserve accountability […] I will defend the right of activists, political dissidents, and journalists around the world to speak their minds freely without fear of persecution and violence. Jamal’s death will not be in vain, and we owe it to his memory to fight for a more just and free world.”

Under the National Defense Authorization Act (NDAA) for Fiscal Year 2020, ODNI was mandated to turn over the report in unclassified form to Congressional committees. However, ODNI submitted the report in classified form, in violation of the Act. The NDAA required that the unclassified report include information on the advance knowledge and any role of current or former Saudi Arabian official or political figure who directed, ordered, or tampered with evidence in the killing of Khashoggi.

The law also mandates that the report include a list of foreign persons that the Director of National Intelligence has high confidence were either responsible for, assisted in, or sponsored Khashoggi’s murder, or impeded in the investigation of the killing of Khashoggi.

In February 2020, House Intelligence Committee Chairman Adam Schiff urged then Acting Director Richard Grenell to declassify the report. In a letter, he stated that he did not “foresee that any harm to U.S. national security would result from immediately declassifying the findings contained in DNI’s classified annex with redactions as necessary” and that “[f]ailure to declassify the annex and produce an unclassified report could give rise to concerns that ODNI is using the classification process impermissibly in order to shield information of intense public interest from public release.” Later in March, Senator Richard Burr (R-NC) and Senator Mark Warner (D-VA), the chairman and vice-chairman of the Senate Intelligence Committee, also urged ODNI to reconsider the agency’s decision not to declassify the report.

Following further briefing in the case by both parties, expected to be complete by January 6, 2021, the court may schedule oral argument or issue a judgement on whether ODNI may lawfully withhold the report under FOIA. In related litigation also pending before Judge Engelmayer, OSJI is also seeking disclosure of the CIA’s report on the Khashoggi murder. According to news reports, both the ODNI and the CIA report indicate that Saudi Crown Prince Mohammed Bin Salman was responsible for the Khashoggi murder.

The Open Society Justice Initiative is represented before the court by Amrit Singh and James A. Goldston, together with Debevoise & Plimpton, a leading international law firm, with offices in the United States, Europe, and Asia. The Debevoise team is led by Catherine Amirfar and Ashika Singh.

Documents released in litigation thus far can be found on the Open Society Foundations’ Document Cloud.