Jack Greiner

Jack Greiner is a lawyer with Graydon in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

Jamal Khashoggi’s brutal murder at the Saudi consulate in Turkey has been in the news almost non-stop from the time it happened. Now it’s in court. But not a criminal one.



The case was filed November 20 by the Knight First Amendment Institute at Columbia University. Defendants include the CIA, the NSA , the State Department, and the Department of Justice. The lawsuit seeks the immediate release of records maintained by either agency concerning the agencies’ compliance or non-compliance with Intelligence Community Directive 191.



According to the complaint, “Directive 191 provides that, when an Intelligence Community (“IC”) element acquires information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person," the element must warn the intended victim or those responsible for protecting the intended victim, as appropriate. Directive 191 further obligates IC elements to “document and maintain records” on any actions taken pursuant to that duty.”



The complaint further notes that: “[b]efore the killing, U.S. intelligence agencies apparently intercepted communications in which Saudi officials discussed a plan to capture Khashoggi. It is not publicly known precisely what the agencies learned from these communications, or what steps the agencies took to warn Khashoggi of the threat to him.”



Shortly after the news of the murder broke, the Knight Institute made a request under the Federal Freedom of Information Act for:



(1) All procedures or guidance for determining whether to warn, or for delivering a warning to, an intended victim or those responsible for protecting the intended victim, pursuant to Directive 191;

(2) All records concerning the duty to warn under Directive 191 as it relates to Jamal Khashoggi, including any records relating to duty to warn actions taken with respect to him; (

3) All records concerning any “issue aris[ing] among IC elements” regarding a determination to warn Jamal Khashoggi or waive the duty to warn requirement, or regarding the method for communicating threat information to him;

(4) All records relating to any dispute referred to the DNI regarding a determination to warn Jamal Khashoggi or waive the duty to warn requirement, or regarding the method for communicating threat information to him.



The request also asked that the agencies expedite the processing of the request. In each case, the agencies acknowledged receipt of the requests but denied the request for expedited processing.



The Freedom of Information Act is also known by the acronym “FOIA.” And sometimes I think the “F” stands for “foot dragging.” In my experience, “sense of urgency” is not a job requirement for federal employees charged with handling FOIA requests.



It’s hard to say what will happen with the case, but I suspect it will still be a while before we see a decision. I do believe, though, that this case illustrates the need for a robust FOIA statute. If our intelligence agencies had information about Saudi plans to assassinate a journalist and failed to follow its own procedures to warn him, the public has a right to know. And to be outraged. I’m rooting for the Knight Institute in this one.