White House owes Congress the answers about Jamal Khashoggi

White House owes Congress the answers about Jamal Khashoggi
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One week from today, President TrumpDonald John TrumpBooker hits Biden's defense of remarks about segregationist senators: 'He's better than this' Booker hits Biden's defense of remarks about segregationist senators: 'He's better than this' Trump says Democrats are handing out subpoenas 'like they're cookies' MORE must tell Congress whether he believes Saudi Crown Prince Mohammed Bin Salman is responsible for killing Washington Post columnist Jamal Khashoggi. However, this is assuming that Trump respects a requirement from Congress. Senate Foreign Relations Committee leaders, joined by a bipartisan group of 20 other senators, triggered the required determination due on February 8, as mandated by the Global Magnitsky Human Rights Accountability Act.

Whether the president responds will be an important test for how the White House interacts with the new Congress over Saudi policy, and whether the president will once again contradict the well founded views of the United States intelligence community. His action, or lack thereof, will in turn present Congress with a crucial challenge concerning the support shown by the administration for a reckless authoritarian ally.

The White House would be wise to adhere to the letter of federal law and the human rights policy objectives that the Global Magnitsky Act serves. Yet, there is good reason to think the president will run afoul of the law. He may either flout the reporting requirement altogether, or provide a bogus determination refuting the clear findings of the intelligence community.

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The administration has engaged in similar misbehavior in reporting to Congress on Saudi Arabia. Secretary of State Mike PompeoMichael (Mike) Richard PompeoIs America headed toward war? Is America headed toward war? Polar bear spotted hundreds of miles south of normal hunting grounds MORE in September submitted a certification audaciously claiming that the kingdom had taken appropriate steps to reduce civilian casualties in the war in Yemen. This defied what his own specialists told him. In response, a bipartisan group of seven senators sent Pompeo a letter stating that they found his determination “difficult to reconcile” with the “known facts.” The senators demanded a report from Pompeo answering a set of specific follow up questions. Three months later, the State Department has yet to comply.

There is ample reason to think Pompeo and Trump will act similarly when it comes to the Khashoggi murder. Several senators said they felt misled by the State Department briefing concerning the killing, and demanded that CIA Director Gina Haspel brief them instead. After she did, Pompeo went on national television to muddy the waters again. “Some of the reporting that you have seen on that has been inaccurate,” he said of the CIA findings in a rather unusually heated “Fox and Friends” interview.

Pompeo was clearly running interference for Trump, who had earlier issued a formal statement asserting that he believed the word of the crown prince over the assessment of the CIA. Just one day after Pompeo spoke on the issue on national television, the Senate unanimously passed a resolution stating that it “believes Crown Prince Mohammed Bin Salman is responsible for the murder of Jamal Khashoggi.” Congress is not likely to have much patience with a patently false presidential determination concerning the responsibility of Bin Salman for the killing of Khashoggi.

The White House might therefore think it best to do what Pompeo did with the follow up reporting requirement on the Yemen war, which is to simply ignore it. But would it orchestrate that move? Ironically, Trump might try to rely on President Obama, who asserted that he reserved the right to decline to act on the relevant provision of federal law “when appropriate” and consistent with the “separation of powers” which limit the ability of Congress to dictate how the executive branch implements legislation.

There is a strong argument that Congress is not attempting any such dictation, but is rather hewing closely to an accepted form of reporting and oversight. A legislative committee can issue a subpoena requiring information from the executive branch. In the case of Khashoggi, the administration has already taken actions under the Global Magnitsky Act against several lower level Saudi officials deemed responsible for the murder of Khashoggi. It would be anomalous and wrongheaded for the White House to suddenly declare that the administration cannot take actions with Bin Salman in particular due to constitutional concerns.

The proper and wise path for the White House then is to do what it has done in other contexts when it may have concerns about a requirement from Congress, which is to produce the required report while stating that the president is doing so “consistent with” the law. That legal language signals the executive branch is taking the action as a policy choice, but not necessarily out of agreement that doing so is indeed constitutional.

Given the easy way past constitutional questions, and that not reporting on the role of Bin Salman in the killing of Khashoggi will thus be correctly viewed as a gross failing by the White House, the choice for Trump and lawmakers should be clear. If the president stands by the crown prince, Congress should act immediately on bipartisan legislation introduced last year that would remove White House discretion in sanctioning the Saudi leader and all those responsible for such a brazen and gruesome murder.

Rob Berschinski is the senior vice president for policy with Human Rights First. He is a former deputy assistant secretary for democracy at the State Department. Ryan Goodman is a professor of law at New York University and the editor in chief of the Just Security blog of the Reiss Center. He is a former special counsel to the general counsel of the Defense Department.