The US Director of National Intelligence has made an extraordinary intervention in a federal court case brought against a top former Saudi intelligence official, invoking the rarely used state secrets privilege to stop classified information from coming out that could cause “exceptionally grave” harm to US national security.
The declaration by Director Avril Haines was submitted on Friday to the Massachusetts District Court and says it is “based upon my own knowledge” of what could be revealed in the civil case brought by a state-owned Saudi holding company against former Saudi counterterrorism official Saad Aljabri, who claims Saudi Arabia’s Crown Prince has tried to kill him and whose children are being held in the Kingdom.
Last month, the Department of Justice said it would intervene in the case against Aljabri – and two of his sons – because allowing it to proceed unchecked could lead to “the disclosure of information that could reasonably be expected to damage the national security of the United States.”
The intervention by Haines is “very rare,” according to Bob Litt, a former general counsel for the Office of Director of National Intelligence. Particularly so, Litt added, because the litigation is between private parties.
“I don’t think that either Avril [Haines] or [Attorney General] Merrick Garland is going to assert the state secrets privilege simply because something is embarrassing,” said Litt. “You can assume that somebody has persuaded them there would be significant damage to our equities if whatever information it is came out.”
When the privilege is asserted, the attorney general has to sign off, which last Friday’s motion said Garland did. While its invocation is rare – Litt was only aware of one other instance - it is a well-established legal process.
“Assertion of state secrets privilege is a formal regimented process that is taken very seriously,” said Jason Klitenic, who followed Litt as general counsel for ODNI and left early last year. “The government does not take it lightly.”
The holding company that brought the case against Aljabri, called Sakab, is owned by a Saudi Public Investment Fund which is ultimately controlled by Crown Prince Mohammed bin Salman. Sakab, according to the Justice Department, was created for counterterrorism activities and is funded by the kingdom’s Ministry of Finance. To defend himself against Sakab, Aljabri’s team has said there would have to be examination of “covert counterterrorism operations in partnership with the United States Government.”
Sakab has argued that anything sensitive is irrelevant to the case. In a filing last month, before Haines’ intervention, Sakab said that Aljabri’s “intelligence background and cooperation with the United States have no relevance to Sakab’s fraud claims.”
Simply put, in invoking the state secrets privilege, the most senior US intelligence official is trying to prevent the revelation of classified information in legal proceedings triggered not by an adversary, but by one of US’s closest intelligence sharing partners. A partner who is expected to one day be king of Saudi Arabia and has both encouraged the west with progressive moves in Saudi society while complicating those relationships with brutal actions like ordering the murder of journalist Jamal Khashoggi. Saudi Arabia called the US intelligence community’s assessment that MBS approved Khashoggi’s killing “negative, false and unacceptable.”
ODNI and the Justice Department declined to comment. A spokesman for the Saudi embassy in Washington, DC, didn’t immediately respond to a request for comment.
Aljabri and his former boss, Prince Mohammed bin Nayef, were key partners of US intelligence in the fight against al Qaeda. They were close to former CIA directors George Tenet and John Brennan (under whom Haines was a deputy director) and former intelligence officials credit Aljabri and MBN, as the prince is known, with saving hundreds of American lives.
“You could literally make a movie or two out of some of the operations we worked together that prevented tragedy,” said Doug London, a former senior CIA operations officer who served extensively in the Middle East.
In elbowing his way to becoming crown prince, bin Salman, known as MBS, pushed aside MBN who is now under house arrest. Aljabri fled the country in 2017 but his two children, Omar and Sarah, were barred from leaving and arrested. Their family says they were kept in the dark on where the children, both in their early twenties, were being held before they were moved to the Al-Hayer maximum security prison in January. In a letter to President Joe Biden in July, a bipartisan group of senators called on him to help secure their release after a secret trial on “spurious charges” that resulted in a 15-year prison sentence and travel ban.
“The Saudi government is believed to be using the children as leverage to blackmail their father and force his return to the kingdom,” said the letter signed by Senators Marco Rubio, Patrick Leahy, Tim Kaine and Ben Cardin.
MBS tried to lure him back to Saudi Arabia, Aljabri says, and was sent threatening WhatsApp messages by MBS saying they would use “all available means” and “take measures that would be harmful to you.”
While Aljabri brought a suit against MBS in Washington, Aljabri was accused of embezzling billions of dollars by Sakab, with claims of fraud made first in Canada and then in in the US.
“Aljabri was using non-official financial means to finance and facilitate operational activities that were in the interest of his and our government,” said London, who has authored a new book, “The Recruiter.”
“He wasn’t skimming funds off the top for himself,” London added. “MBS knows this, but he’s taking advantage of the lack of a paper trail.”
To support Haines’ argument about what could be revealed, classified declarations were submitted to the court detailing why the information could “cause serious, and in some cases exceptionally grave, damage to national security.”
The end result, Litt said, could be the case being thrown out if the judge determines Aljabri can’t defend himself – or Sakab can’t make their case against him – without using the sensitive information.
“This exceptional intervention by the US to preserve its state secrets is legally and politically significant,” says Aljabri’s son Khalid, also a defendant in the case. “However, without a swift amicable resolution to end this nasty political feud and secure the freedom of Sarah and Omar, MBS will continue to target Dr. Saad and further threaten US national security interests.”