The press reports make for sobering reading. A week after Khashoggi was killed, the Washington Post described intercepted communications discussing a plan to lure the U.S.-based journalist back to Saudi Arabia—information that an unnamed U.S. official said “had been disseminated throughout the U.S. government and was contained in reports that are routinely available to people working on U.S. policy toward Saudi Arabia.” A December Wall Street Journal report described messages intercepted in August of 2017 suggesting that if the plot to lure Khashoggi to Saudi Arabia did not succeed, “we could possibly lure him outside Saudi Arabia and make arrangements,” and a February New York Times story described a conversation the NSA intercepted in September 2017 between Crown Prince Mohammed bin Salman and a close aide of his in which the Crown Prince vowed, if efforts to lure Khashoggi back to Saudi Arabia or to repatriate him by force failed, to go after him “with a bullet.” A March New York Times report revealed that U.S. intelligence had collected information that showed the same “Rapid Intervention Group” that murdered Khashoggi had been involved in the kidnapping and forcible repatriation for detention and torture of several other Saudi dissidents over the previous three years. (At least three of these operations, involving members of the Saudi royal family, had been described by the BBC before Khashoggi’s murder.)

These stories rely on a combination of leaks by anonymous sources and information compiled in the classified November 2018 CIA assessment of the Khashoggi murder, which was quoted or summarized by sources or by reporters who were shown sections of the report. The intelligence described in these reports has not been officially confirmed, and the articles generally include pushback from the White House and intelligence community suggesting the information was less conclusive than the articles imply, or that the information existed as raw intelligence that had only been reviewed and processed in the wake of the murder. Missing from any of the pushback, however, is any assertion that U.S. intelligence agencies do not engage in this kind of surveillance, or that they did not routinely deploy these tools against Mohammed bin Salman both before and after he was named Crown Prince in June of 2017.

Few would believe such claims, in any case. The breathtaking scope of U.S. signals intelligence is no secret in the post-Snowden era. No laws restrain the use of these powers to spy on foreign leaders, and such surveillance, in pre-digital forms, has been the essence of espionage since the formation of states. It is, therefore, far from improbable that the United States would be using its powers to monitor the conversations of a contender for the throne of a country of enormous strategic value, a country whose monarchy lacks a clear order of succession and is infamous for its palace intrigue.

But with great spy powers come grim responsibilities. One of the main aims of state surveillance is foreknowledge. One of its inevitable byproducts, when the surveillance is targeted toward repressive regimes, is information about threats and plots against the regime’s perceived enemies. The women and men who sift through the mountains of conversations our machines are constantly vacuuming from key players in these regimes will, from time to time, find they are holding information on plans to kill, seriously injure or disappear dissidents. It is hard to imagine a more wrenching dilemma for an intelligence officer than the question: What am I supposed to do with this information?

We now know, thanks to Freedom of Information Act (FOIA) requests and litigation filed by the Knight First Amendment Institute and the Committee to Protect Journalists (CPJ) in the days after Jamal Khashoggi’s murder, exactly what an NSA employee who finds herself in this situation is supposed to do. This is the first time these documents have been publicly released.

A July 2017 “Duty to Warn Standard Operating Procedures (SOP),” and a May 20, 2018 NSA and Central Security Service (CSS) Policy Instruction on the Duty to Warn, lay out a specific roadmap for what intelligence officers must do to comply with Intelligence Community Directive 191, which is the 2015 order that recognized and codified the responsibility to warn someone who is known to be in danger. A legal obligation first defined for health professionals who learn in the course of caring for a patient that the patient may pose a risk to himself or to others, the “Duty to Warn” as defined for NSA and CSS officers is described in the SOP this way:

Any NSA/CSS 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….The term “intended victim” includes both U.S. persons…and non-U.S. persons.

The directive is clear: Anyone who fields credible and specific threat information must act. The NSA guidelines then lay out the process by which threats are evaluated and warnings delivered, and describe at least five specific points in the process that must be documented—including the justifications for any decision to waive the duty to warn requirement and opt out of the obligation to issue a warning. The guidelines even reproduce the template an NSA employee must complete to forward the warning to either the FBI or CIA for delivery to the intended victim.

The Knight Institute and CPJ specifically sought documents like the ones required in these NSA procedures in their FOIA requests to the Office of the Director of National Intelligence (ODNI), the NSA, CIA, FBI, and the State Department. In addition to the guidelines each of these agencies uses in determining whether and how to deliver warnings, we also requested records relating to any Duty to Warn decisions and actions the agencies may have taken in connection with threats to Khashoggi, and any records they may have concerning debates or discussions between agencies related to those threats.

Four of the five agencies issued “Glomar” responses to the requests for materials relating to the duty to warn Khashoggi, neither confirming nor denying that they have any such documents. They are the agencies most likely to handle the threats directly and to have these documents in their files: the NSA itself, the largest gatherer of signals intelligence; the CIA, the agency responsible for delivering warnings to intended victims outside of the United States; the FBI, which delivers the warnings to those living in the U.S.; and the ODNI, which referees disputes over duty to warn responsibilities. In invoking the Glomar denial, the agencies are claiming that simply admitting that they possess any such documents would endanger national security.

This seems farfetched. Information that Khashoggi was in danger could have come from signals intelligence, from human intelligence, or from another country’s intelligence services. Acknowledging that there is duty to warn-related information in U.S. intelligence files reveals next to nothing about our spy agencies’ sources and methods. But the question of whether or not these documents exist is essential to knowing whether and how the system failed in Khashoggi’s case. By declining to say if they even have such documents, the agencies are able to a sidestep any public examination of how well they executed their duty to warn the journalist that his life and liberty were in jeopardy.

The one agency that did address the request for documents on threats to Khashoggi was the State Department, which declared that its search had turned up no such records. That response is very different from the State Department’s response to a parallel FOIA lawsuit filed by the Open Society Institute’s Justice Initiative in January. That suit seeks documents relating to the classified CIA assessment of Khashoggi’s murder, including the documents on which the assessment based its widely reported conclusion, with a “medium to high degree of certainty,” that the Crown Prince personally ordered the operation in the Saudi consulate in Istanbul. Far from asserting it had no records relevant to that request, the State Department responded that it will require additional time to process the documents because of the volume of potentially relevant records it will need to search and prepare them for release. Do any of these records include information on plans to harm Khashoggi? And if so, how did they not trigger Duty to Warn conversations and actions?

There is another curious aspect to the State Department’s response to the Duty to Warn FOIA. The NSA, CIA and FBI all produced one or more versions of their agencies’ documents spelling out their duty to warn obligations and procedures (though true to form, and likely indefensibly, the CIA has redacted all but a smidgen of introductory text). The State Department, however, released just one single-page document that a cover email describes as “new guidance” on the duty to warn. The document it forwards was apparently the subject of a classification dispute that delayed the department’s response; originally unclassified, the document as released was re-designated as Classified just prior to release, and a significant portion of the one-page document is redacted. The covering email reads, “Please see updated information on DTW….While I am still waiting for clearance from the FO, the basics of what actions we should take still apply.” The email is dated August 23, 2018. Was there some reason the subject of Duty to Warn procedures was in the air just over five weeks before Khashoggi’s murder?

These are just a few of the questions that the government’s response to the Duty to Warn FOIA raises. The thoroughness of the searches, the content of the material that has been redacted, the extent to which the agencies may be hiding behind Glomar denials to escape scrutiny of whether they fulfilled their legal requirement to convey to a prominent dissident that he was being targeted for kidnapping and potential murder—these matter far beyond the simple but essential question of whether we failed Jamal Khashoggi. We need to understand whether the many intercepted threats to harm a journalist who was living and working in the United States triggered the right alarms, and whether and how the intelligence community responded to those alarms. Many more lives depend on ensuring that the Duty to Warn system is working.

We need to know these things, too, to make sure that our collective moral compass remains intact. The women and men who sift through the mountains of intelligence our country gathers, and who come to discover that some of those we are surveilling are plotting grave human rights abuses, bear the day-to-day burden of the Duty to Warn. But that duty is derived from a system of values that the United States has long claimed to promote and represent. The judgment of how closely we actually hold those values is one that falls, in the end, on all of us.

“The Biden administration must hold the Saudi regime accountable for this brutal crime, and it should begin by banning the Crown Prince from the United States,” said Jameel Jaffer, the Knight Institute’s executive director. “It’s important that U.S. intelligence agencies examine their own actions as well. They should disclose what they knew about the Saudis’ plans for Khashoggi, when they learned it, and whether and how they carried out their ‘duty to warn’ the journalist that his life was in danger. They should also disclose what reforms have been put in place to ensure that they fulfill their ‘duty to warn’ other journalists and advocates who may face similar threats in the future.”

In late 2018, the Knight Institute and the Committee to Protect Journalists (CPJ) filed FOIA requests for records showing whether U.S. intelligence agencies fulfilled their "duty to warn" Khashoggi of threats to his life and liberty. After the intelligence agencies failed to release documents in response to the organizations’ FOIA requests, the Knight Institute and CPJ filed a lawsuit. CPJ appeared before the D.C. Circuit in the case earlier this year. (The Knight Institute is not involved in the appeal.) Read more here.

Earlier this week, the Knight Institute, Columbia Global Freedom of Expression, and CPJ sponsored a panel discussion and a screening of The Dissident, a new documentary that explores the human rights, press freedom, and surveillance issues raised by Khashoggi’s murder. The event featured Agnès S. Callamard, Director of Columbia Global Freedom of Expression and U.N. Special Rapporteur on Extra-Judicial Executions, and Ron Deibert, Director of the Citizen Lab at the University of Toronto. A video recording is available here.

For more information, contact: Lorraine Kenny, communications director, lorraine.kenny@knightcolumbia.org. 

The following response can be attributed to Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University.

“The Special Rapporteur’s report underscores the heinousness of this crime and the stakes for both Saudi Arabia and the international community in bringing those responsible for Khashoggi’s murder to justice. The United States should be doing everything it can to support the report’s recommendations and the quest for justice. Instead, the administration’s refusal to comply with the reporting requirements of the Magnitsky Act and the reluctance of its agencies to produce documents relating to what the U.S. government knew and knows about the murder have left a huge cloud of doubt about the United States’ own commitment to press freedom and the most basic human rights.”

Earlier this year, the Knight Institute and the Committee to Protect Journalists filed a lawsuit asking a court to force five federal agencies to disclose documents showing whether they fulfilled their “duty to warn” reporter Jamal Khashoggi that he was in danger before he was lured to his death in the Saudi consulate in Istanbul last October. While the agencies have produced policy documents in response to the lawsuit, four of the five agencies have issued “Glomar” responses to the request for materials relating to Khashoggi himself, refusing to confirm or deny that they have any such documents. The one agency that did address the request for documents about Khashoggi himself was the State Department, which declared that its search had turned up no such records.

For more information, contact: Lorraine Kenny, Communications Director, Knight Institute, 646-745-8510, lorraine.kenny@knightcolumbia.org.

About the Knight First Amendment Institute at Columbia University
The Knight First Amendment Institute defends the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.

Today’s filing follows news reports detailing a transcript of an audio recording of Khashoggi’s murder, a New York Times report describing contacts between senior White House official Jared Kushner and Saudi Crown Prince Mohammed bin Salman after the killing, and a unanimous Senate vote condemning the crown prince for Khashoggi’s death. Citing the urgency of the public debate surrounding the U.S. government’s response to the murder, the lawsuit seeks to compel the Central Intelligence Agency, the National Security Agency, the Department of Justice, the State Department, and the Office of the Director of National Intelligence to release documents under the Freedom of Information Act about whether and how they responded to intelligence reports that the Saudi government was planning to capture Khashoggi, a U.S. resident.

“One of the core purposes of the Freedom of Information Act is to ensure that government agencies carry out their duties under the law, and one of the most consequential is the U.S. intelligence agencies’ duty to warn a person if they gather intelligence that his or her life or safety is threatened,” said Jameel Jaffer, Director of the Knight First Amendment Institute at Columbia University. “As Congress continues to debate how the U.S. will respond to Jamal Khashoggi’s brutal murder, the public needs to know what the U.S. knew about threats to his life and whether that foreknowledge was acted upon as required.”

Intelligence Community Directive 191 provides that, when a U.S. intelligence agency acquires information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person, the agency must “warn the intended victim or those responsible for protecting the intended victim, as appropriate.” The directive further obligates the agencies to “document and maintain records” on any actions taken pursuant to that duty. After the initial reports of Khashoggi’s death, the Knight Institute and the Committee to Protect Journalists each filed Freedom of Information Act requests seeking these documents on an expedited basis. Agencies have failed to produce documents in response to these requests. In November 2018, the Knight Institute sued to enforce its requests, and today’s filing seeks to add the Committee to Protect Journalists to the lawsuit.

“The United States government has a duty to inform individuals when it learns of threats to their life or liberty. We need to know if the U.S. government fulfilled its obligation in this case," said Joel Simon, the Executive Director of the Committee to Protect Journalists. “With the Saudi government engaged in a campaign of lies and deceit, the U.S. can advance the cause of justice for Jamal Khashoggi by making these crucial documents public."

Download the motion here.

Download the amended complaint here.

For more information, contact: Lorraine Kenny, Communications Director, lorraine.kenny@knightcolumbia.org, 646-745-8510.

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.

About the Committee to Protect Journalists

The Committee to Protect Journalists is an independent nonprofit organization that promotes press freedom worldwide and defends the right of journalists to report the news safely and without fear of reprisal.   

The Knight First Amendment Institute at Columbia University today filed a lawsuit seeking immediate release of records concerning U.S. intelligence agencies’ compliance or non-compliance with their “duty to warn” reporter Jamal Khashoggi of threats to his life or liberty.

U.S. intelligence agencies are obligated to inform a potential victim of a kidnapping or murder if the agencies become aware of such a threat in the course of collecting or acquiring intelligence. Prior to Khashoggi’s murder, U.S. intelligence reportedly intercepted communications in which Saudi agents discussed plans to kidnap him and forcibly return him to Saudi Arabia. On October 2, 2018, a team dispatched by the Saudi government killed Khashoggi at the Saudi consulate in Istanbul. The CIA has reportedly concluded that the killers acted at the behest of Saudi Crown Prince Mohammed bin Salman.

“Our request for information about agencies’ compliance with the ‘duty to warn’ was urgent when we filed it, but it has become even more so in light of the White House’s shameful efforts to minimize the gravity and significance of this reporter’s murder, and to shield from responsibility the people who authorized it,” said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. “The government must explain what it knew of the threat to Khashoggi before his killing, and what, if anything, it did to warn him of that threat.”

Under Intelligence Community Directive 191, when an intelligence agency acquires information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person, it must “warn the intended victim or those responsible for protecting the intended victim, as appropriate.” Furthermore, it must document and maintain records of any actions taken pursuant to that duty.

Last month, the Knight Institute filed a Freedom of Information Act request seeking records related to the murder of Khashoggi with the Central Intelligence Agency, the Federal Bureau of Investigation, the National Security Agency, the Office of the Director of National Intelligence, and the Department of State. While the Department of State indicated it would process the request on an expedited basis, none of the agencies has disclosed any documents. The Knight Institute filed today’s lawsuit in order to compel compliance with its request. Also today, the Committee to Protect Journalists filed its own FOIA request calling for the release of the same records sought by the Knight Institute. 

“It’s absolutely essential that the U.S. government makes public what it knew about threats to Jamal Khashoggi before his murder,” Joel Simon, the executive director of CPJ said. “We fully support the Knight Institute’s lawsuit to pry that information loose—and we’ve filed our own parallel records requests to support that effort.”

The Knight Institute’s lawsuit was filed in the U.S. District Court for the District of Columbia.

“It is hard to imagine a more brazen assault on press freedom than the murder of Jamal Khashoggi, or an instance in which the duty to warn would have been more urgent,” said Ramya Krishnan, a staff attorney for the Knight First Amendment Institute. “For the sake of journalists carrying out their work at great personal risk, we are asking the U.S. government to make clear that it stood with Khashoggi, and that it stands today with journalists around the world.”

Download the complaint.

Download the Freedom of Information Act request.

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.

Many of the details of the plot against Khashoggi came to light in the days immediately after the murder. Khashoggi had once been close to the Saudi ruling family but had fallen out of favor after writing articles criticizing the regime for, among other things, its refusal to tolerate dissent. After he went into exile in 2017, the regime monitored his activities closely—including with surveillance software installed clandestinely on other Saudi dissidents’ phones. In late 2018, senior Saudi officials—including the ambassador to the United States, the brother to the crown prince—lured Khashoggi to the Saudi consulate in Istanbul, telling him they would provide him with a certificate he needed to marry his fiancée, a Turkish citizen. When he arrived, he was met by a fifteen-member special operations team that included a forensic doctor equipped with a bone saw. He was drugged, strangled to death, and dismembered—all of this captured on audio tape by Turkish intelligence.

After first claiming that Khashoggi had left the embassy safely and of his own volition, Saudi officials—aided by President Donald Trump—then laid the blame for the killing on rogue agents. But this story was totally implausible. The operation was meticulously planned and relied on resources that only the senior-most Saudi officials would have been able to supply. The crown prince’s covert-operations advisor, Saud al-Qahtani, met with the special operations team in advance of their mission. Many of the members of the team had previously worked closely with the crown prince. The CIA reportedly concluded just weeks after the killing that the crown prince could not have been unaware of the plot, and that he may well have authorized it personally. After an exhaustive investigation, Agnès Callamard, the United Nations special rapporteur for extrajudicial killing, reached essentially the same conclusion. Every expert she consulted found it “inconceivable that an operation of this scale could be implemented without the crown prince” being aware of it.

Now we can read in black and white how the U.S. intelligence community—not just the CIA—reached this conclusion, too. The unclassified report does not add significant new facts to the public record. But by putting the U.S. intelligence community firmly behind the conclusion that the crown prince likely authorized the plot, it should force a reckoning. It is a reckoning in which the Biden administration, Congress, and American business and civic leaders all have a role to play.

First, the Biden administration should disclose other key documents relating to Khashoggi’s murder. It should publish other intelligence reports about the case, including a report that was written by the CIA just a few weeks after the killing was carried out. (The Open Society Justice Initiative has sued for release of these documents.) It should also disclose whether U.S. intelligence agencies knew that the Saudi regime was planning to abduct or kill Khashoggi, and, if so, whether they made any effort to warn him of the threat, as U.S. law would have required them to do. (Our organizations sued for the release of these documents, and the Committee to Protect Journalists argued the case before the D.C. Circuit earlier this year.) If necessary, the documents could be redacted to protect sources and methods, but the intelligence agencies should not be permitted to rely on vague allusions to national security interests to withhold these documents categorically, given the singular brutality of this crime and its implications for press freedom. This is an instance in which the public interest in disclosure should be given decisive weight.

Second, the administration should ban the crown prince from the United States under laws including the Global Magnitsky Act, which authorizes the president to deny entry to, and block the assets of, foreign nationals determined to be “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights.” (The Treasury Department has already sanctioned 17 Saudi nationals under the Act in connection with Khashoggi’s murder, and the State Department sanctioned most of these people, too, but the crown prince was conspicuously omitted from the lists.) Targeted sanctions would ensure that the Crown prince pays a personal price—which is important not simply as a matter of accountability but as a deterrent to other authoritarian leaders who might be tempted to try to eliminate their critics in the same way. [Update, Feb. 26, 2021: Just after this article was published, the State Department announced that it would impose visa restrictions on 76 Saudi nationals “believed to have been engaged in threatening dissidents overseas, including but not limited to the Khashoggi killing,” but it declined to sanction the Crown Prince.]

Third, given the personal responsibility of the crown prince for the crime, the administration should extend and expand the freeze it has already instituted on arms sales to Saudi Arabia. It must send an unequivocal message that the United States will not supply weapons to military and security services whose leadership persecutes journalists and activists.

Fourth, Congress should hold hearings to consider what legal reforms are necessary to ensure that American courts can hold accountable those who persecute U.S.-based journalists and human rights activists. It should also consider what reforms are necessary to ensure that American courts can hold accountable the companies that supply persecutors with surveillance technology. A day before Khashoggi’s fateful visit to the Saudi consulate in Istanbul, Citizen Lab at the University of Toronto reported “with a high degree of confidence” that Saudi agents had used spyware supplied by an Israeli company, NSO Group, to infect the phone of Omar Abdulaziz, a Saudi dissident based in Canada who had been in regular contact with Khashoggi. The effect was to allow Saudi agents to control the phone’s cameras and microphones. Spyware manufacturers should be held responsible when their products are designed to be used, or foreseeably used, in these ways.

Unfortunately, the NSA and CIA also issued what’s called a “Glomar response,” in which the agencies refused to confirm or deny the existence of records concerning the duty to warn as it relates to Khashoggi. For reasons we’ve already articulated, the assertion of a Glomar here is indefensible.

In coming weeks, we expect to receive responses from the FBI and State Department. We remain hopeful that these agencies will be more forthcoming.

Under an Intelligence Community Directive known as the “Duty to Warn,” when a U.S. intelligence agency acquires information indicating an impending threat to kill, kidnap, or seriously harm someone, the agency must “warn the intended victim or those responsible for protecting the intended victim.” In January, the Knight Institute and the Committee to Protect Journalists filed a Freedom of Information Act lawsuit to find out what, if anything, the U.S. government knew about threats to kill or harm Khashoggi and what it did with that knowledge. After negotiations, all five of the defendant federal agencies have agreed to produce responsive records by the end of this month.

Recently, however, the Office of the Director of National Intelligence sent us a one-page letter that includes this passage:

This sort of neither-confirm-nor-deny reply, known as a Glomar response, was first used by the CIA in a 1976 case seeking records about a submarine-retrieval ship called the Glomar Explorer. In court, the government successfully argued that the CIA shouldn’t be required to confirm or deny the existence of responsive records about the ship, because doing so could reveal sensitive information that itself was exempt from FOIA. (To learn the full history, listen to the Radiolab episode, “Neither Confirm Nor Deny.”)

While there may be cases in which a Glomar response is legitimate, this isn’t one of them. It’s difficult to see how merely acknowledging that the ODNI has documents relating to Khashoggi and the duty to warn would reveal legitimate state secrets. On the other hand, acknowledging that it had documents relating to threats aimed at Khashoggi would indeed throw into sharp relief the question of whether and how the ODNI and other intelligence agencies carried out their duty to act on this information. That is the key question in this lawsuit, and the government shouldn’t be able to Glomar its way around it.