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State secrets privilege will quash suit with Saudi spymaster

Accused of defrauding $3.5 billion, Saudi Arabia’s former spymaster persuaded a U.S. court that counterterrorism activities between America and his country would be critical to his defense.

(CN) — A federal judge signed off Wednesday on letting the U.S. government protect what it claims are state secrets in a case where the former spymaster of Saudi Arabia said, as part of his defense, he needs to describe how the two nations collaborated on counterterrorism operations.

After considering the documents that the U.S. Office of the Director of National Security filed into the case — including documents submitted in camera, or privately to the judge — U.S. District Judge Nathaniel Gorton found the invocation of the state secrets privilege a valid one.

“Because of the breadth of the claim and the highly sensitive nature of the privileged material, the Court will not further elaborate upon its reasoning which would necessarily result in disclosure of privileged information,” Gorton wrote in his 19-page memorandum and order.

The state secrets privilege, Gorton noted, is absolute and prevents the Saudi spymaster from mounting a defense against the lawsuit, though it may cause the judge to toss out the case altogether.

Before the case arrived on Gorton's docket, a court in Ontario, Canada, had handed the Sakab Saudi Holding Company a prejudgment order called a Mareva injunction that is designed to save assets. Sakab claims the ex-Saudi spymaster Saad Al Jabri defrauded it of about $3.5 billion and used some of the funds to buy eight condominiums in Boston.

With the Mareva injunction in hand, Sakab filed suit in Massachusetts to freeze the Boston properties. Al Jabri was a senior intelligence official in Saudi Arabia and asserted federal jurisdiction over the matter initially filed in state court. In his court filings, he alleges that Sakab's ventures in private security, general contracting and aerospace were merely a cover for its true purpose: to carry out counterterrorism operations for the Kingdom of Saudi Arabia, often in collaboration with the U.S.

The funds that the company now says were defrauded? According to Al Jabri, they are legitimate compensation for advising former Saudi Crown Prince Muhammad bin Nayef and carrying out counterterrorism operations.

It was work, Al Jabri said, that saved hundreds if not thousands of lives. He said he helped foil a plot to attack synagogues in Chicago in 2010.  

But bin Nayef was removed as next in line to the throne in 2017. And the current Crown Prince Mohammed Bin Salman tried to assassinate Al Jabri in 2018 by sending a hit squad to Canada shortly after the assassination and dismemberment of Washington Post columnist Jamal Khashoggi, according a separate lawsuit Al Jabri filed in Washington.

The lawsuit in Massachusetts is just another round of retaliation from bin Salman, Al Jabri said.

“Sakab and bin Salman also are attempting to cut off Dr. Saad’s access to his assets, so that he will be unable to pursue the D.C. action, to defend against Sakab’s pretextual lawsuits, to attempt to secure the return of his children from the Kingdom, and to pursue business opportunities or otherwise provide for himself and his family,” Al Jabri wrote in a counterclaim.

After the case was transferred to federal court, the U.S. government sought to invoke the state secrets privilege.

National Intelligence Director Avril Haines said in an August affidavit that there is a potential for the case to unearth information that “reasonably could be expected to cause serious, in some cases exceptionally grave, damage to the national security of the United States.”

Some of that information, Haines continued, could lay bare the identity of government employees. Al Jabri’s defense could publicly showcase sources, capabilities and methods of the U.S. government.

Al Jabri’s backed the U.S. government’s invocation of the state secrets privilege, saying the U.S. government’s fears are justified.

Sakab Saudi Holding Company meanwhile opposed the motion for U.S. government intervention, saying the question over the state secrets privilege merely muddied the point of their lawsuit: to carry out an order issued by a Canadian court over some luxury condos in Boston.

“Rather, Defendants are creating a problem where none exists by threatening to put purportedly sensitive—and irrelevant—national security matters at issue,” the company’s brief states.

But Judge Gorton said Al Jabri’s rebuttal of the company’s allegations required him to disclose what the countries did in secret and only the U.S. government could protect its secrets.

“The government’s interest in preventing the disclosure of state secrets is obvious and uncontested. … Equally apparent is that the disposition of this matter threatens that interest,” wrote Gorton, an appointee of President George H.W. Bush who also served on the Foreign Intelligence Surveillance Court from 2001 to 2008.

Because Gorton accepted the state’s claim of state secrets and because Al Jabri’s defense hinged on those secrets, he said dismissal of the case could be warranted.

Sakab faces a Nov. 9 deadline to file a short brief explaining why it believes the case should continue.

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