Appeals court says intelligence agencies not required to confirm existence of Khashoggi records

A federal appeals court on Friday ruled that the CIA and other intelligence agencies could not be required to confirm or deny the existence of records indicating U.S. awareness of threats to U.S.-based journalist and Saudi critic Jamal Khashoggi ahead of his 2018 murder. 

The U.S. Court of Appeals for the Washington, D.C., circuit wrote in its opinion that revealing whether such documents existed would “reasonably be expected to result in at least serious damage to national security.” 

The decision stemmed from a 2018 Freedom of Information Act (FOIA) request filed by the Knight First Amendment Institute and the Committee to Protect Journalists (CPJ) over whether U.S. intelligence agencies reasonably carried out their “duty to warn” Khashoggi of any threats to his life or work. 

The organizations filed a lawsuit against the CIA, State Department, FBI and other U.S. intelligence agencies after documents were not released in response to the FOIA request. 

The U.S. District Court for the District of Columbia stated in a January 2020 opinion granting the defendants’ motion for a summary judgment that the CIA and other federal agencies demonstrated “the untoward consequences that could ensue were [they] required either to confirm or deny statements made by another agency.”

The federal appeals court upheld this reasoning Friday, noting that revealing “the existence of responsive records would show that the United States had an intelligence interest in, and the ability to gather information about, a particular person (Khashoggi) at a particular time (shortly before his murder), which could tend to reveal against whom and how surveillance might have been conducted.” 

The court went on to state that disclosing the non-existence of the records “would show a ‘blind spot’ in United States intelligence.” 

“Either response ‘would be of great interest to adversaries,’ who ‘continually gather details regarding the [intelligence community’s] specific intelligence capabilities, authorities, and interests’ and ‘attempt to use this information to their advantage,’” the court added. 

CPJ Executive Director Joel Simon said in a statement shared with The Hill that the organization was “deeply disappointed” by the ruling. 

“We continue to believe the public deserves the truth in this case and will consider appropriate next steps,” he added. “Justice for Jamal matters. Journalists cannot be killed with impunity.” 

The Hill has reached out to the Knight Institute for comment. 

Questions over U.S. knowledge of threats to Khashoggi and efforts to notify him have grown especially in the months following the Biden administration’s release of a previously classified report indicating that Saudi Crown Prince Mohammed bin Salman approved Khashoggi’s killing. 

While President Biden following the report announced sanctions against a former deputy Saudi intelligence leader and visa restrictions on dozens of other Saudi citizens, the president declined to give in to calls from U.S. lawmakers to impose penalties on the crown prince himself. 

White House press secretary Jen Psaki said at the time that the U.S. does not typically sanction leaders of countries with whom the U.S. conducts diplomatic relations, adding that Biden’s national security team believed “going after the network responsible for these actions is the best way to prevent a crime like this from ever happening again.”

Updated at 1:29 p.m.