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CIA Cannot Stonewall Whether the Jamal Khashoggi Tape Acknowledged by Trump Exists

Hatice Cengiz, slain Washington Post columnist Jamal Khashoggi’s fiancee, stands alongside US Senator Ron Wyden, Democrat of Oregon, during a press conference calling for the Trump administration to release details about his killing, on Capitol Hill in Washington, DC, March 3, 2020.

The CIA and Office of the Director of National Intelligence cannot refuse to disclose whether they have a tape of slain Washington Post journalist Jamal Khashoggi’s murder. The tape’s existence was publicly acknowledged by lame-duck President Donald Trump and his outgoing Vice President Michael Pence.

“President Trump’s statement literally admitted that U.S. ‘intelligence agencies’ had reviewed the tape and that the government possesses it,” U.S. District Judge Paul Engelmayer wrote in a 29-page opinion, directing the government to provide a so-called Vaughan index acknowledging that possession.

“And, although not necessary to this conclusion, to the extent that the CIA might disclaim its own possession of the tape as a fact not publicly known, the Vice President’s official statement realistically acknowledged at least the historical possession of it by the CIA at the time of its investigation,” the ruling continued. “These official statements by the top two officials in the executive branch sufficiently acknowledge the tape to preclude the government from claiming that its identification on a Vaughn index would reveal undisclosed classified information.”

The opinion marked a limited victory for the Open Society Justice Initiative, which has been fighting for transparency over of U.S. government investigation into Khashoggi’s killing since January 2019.

“Today’s court order is a crucial victory in addressing the Trump administration’s shameful cover-up of Jamal Khashoggi’s murder,” the group’s lead lawyer Amrit Singh told Law&Crime in an email. “For more than two years, the administration has shielded the Saudi Crown Prince and other officials from accountability and withheld information from the public about who is responsible for the murder. The court’s judgement is a vital step towards ending impunity for the murder.”

The group’s evidence-hunt so far put a spotlight on a number of documents, but the latest round yielded less than what it wanted: the tape itself along with the CIA report that reportedly implicated Saudi Arabia’s Crown Prince Mohammed bin Salman. Open Society noted that more information may be forthcoming because the judge’s ruling puts the onus on the Trump administration to explain why it is withholding these records from the public.

Judge Engelmayer also ruled that the CIA and ODNI could not play coy about the existence of that document, either.

Trump’s CIA director Gina Haspel acknowledged it under questioning by Senator Ron Wyden, an Oregon Democrat on the Senate Select Committee on Intelligence.

“Senator, we can go into a little bit more detail this afternoon, but as you know, during the fall months we spent a significant amount of time briefing and providing written products on our assessment of what happened to Mr. Jamal Khashoggi,” Haspel testified.

Shooting down the CIA’s arguments that this did not disclose the report’s existence, Engelmayer wrote: “The CIA Director’s explicit statement that the agency, along with ‘briefing,’ ‘provid[ed] written products on [its] assessment of what happened to Mr. Jamal Khashoggi,’ effectively admits the CIA’s creation of written assessments as to the murder.”

“While the President does not state whether this product took the form of a report or some other prepared assessment, the President’s statements also reveal the existence of a CIA-prepared work product as to Khashoggi’s death and the potential involvement of the Saudi Crown Prince therein,” the judge added.

What the report found has been hotly disputed—and spun by the White House.

In a presidential teleconference with U.S. military members broadcast on C-SPAN, Trump denied that the CIA report inculpated the Crown Prince.

“They said he might have done it,” Trump said.

For Judge Engelmayer, that did not give away the agency’s findings.

“The statement reflects an acknowledgment that the agency identified strands of evidence pointing in both directions,” his ruling states. “But, beyond revealing that the report did not reach an ironclad conclusion in either direction as to the Prince’s culpability, the President’s halting and indistinct characterizations fall short of revealing the report’s actual findings. The President’s remarks can be read consistently with a range of non-polar outcomes as the agency’s ultimate view.”

More than two years have passed since a 59-year-old Khashoggi walked into the Saudi Consulate in Istanbul, Turkey, where he was assassinated and dismembered while seeking paperwork to marry this fiancée Hatice Cengiz.

The month after his disappearance, Trump appeared to play defense for Saudi Arabia’s Crown Prince rather than a U.S. permanent resident and dissident at every opportunity.

On Nov. 18, 2018, Trump affirmed in an interview that “we” have possession of a tape of Khashoggi’s murder, and that he had “been fully briefed on it.”

Four days later, the U.S. president distanced the Crown Prince by claiming the the CIA “did not come to a conclusion” about his involvement on Nov. 22.

Senator Jack Reed, a Rhode Island Democrat, asserted the opposite was true a day later on Nov. 23, that the CIA had concluded that the Crown Prince of Saudi Arabia had been directly involved in Khashoggi’s assassination.

The Southern District of New York, which argued for the CIA and ODNI, did not immediately respond to an email requesting comment.

Read the 29-page opinion below:

(Photo by SAUL LOEB/AFP via Getty Images)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on MSNBC, BBC, NPR, PBS, Sky News, and other networks.