A federal appeals court ruled yesterday that there's just too much risk of top-secret government information being released to let the current Saudi government try to wrest control of eight condos in One Dalton Place, the Mandarin Oriental and Millennium Place from a former Saudi anti-terrorism official who backed the wrong prince in a succession battle.
In 2021, a judge in US District Court in Boston dismissed a lawsuit brought by a Saudi government corporation to, at a minimum, seize the condos owned by Saad Khalid Aljabri and his two sons pending the outcome of a separate suit in Ontario over the $3.5 billion the family allegedly pilfered from the Saudi government before Aljabri was booted from his government anti-terrorism post by the government of Mohammed bin Salman because he had backed bin Salman's main rival, Crown Prince Muhammad bin Nayef.
The suit was brought by the Sakab Saudi Holding Co., which despite its anodyne name, was a Saudi government agency with the goal of "funding and undertaking clandestine and sensitive operations in partnership with the United States Government," according to Aljabri, who helped set up and run before bin Salman cemented his control in 2017 and 2018 by rounded up other princelings who opposed him (after which he ordered a American newspaper columnist killed and dismembered and turned a civil war in Yemen into a genocidal war).
In response to the suit, originally filed in Suffolk Superior Court, Aljabri argued that he legitimately bought the condos - including two neighboring units on the 52nd floor of One Dalton currently assessed at a total of $13.3 million - as part of his anti-terrorism work, along with everything else he did with the billions the Saudis want back, which meant he would have to produce evidence of his work with American intelligence officials to make his case.
But the federal government then stepped in, urging Judge Nathaniel Gorton to block any such evidence or pre-trial "discovery" based on national-security grounds, or in legal terms, the government's "state-secrets privilege" to intervene in cases. Gorton agreed, in a ruling in which he said he could not even disclose how he reached his conclusion for fear of inadvertently releasing some bit of information that could harm national security.
The Saudis appealed, but in its ruling yesterday, the US Court of Appeals for the First Circuit said Gorton was right - not only was the evidence that the government did show Gorton in private too sensitive to release, it was too intertwined with the Aljabris's purchase to risk it getting out.
[I]t is apparent to us that the privileged information is so central to this case that any attempt to proceed with litigation of the suit would unduly risk
disclosure and thereby compromise our national security.
The court added that because of Aljabri's formerly prominent position:
[T]he privilege assertion here covered "information concerning sources, methods, capabilities, activities, or interests of the [U.S. Intelligence Community],"
plus "information that might tend to reveal or disclose the identities of U.S. Government employees, affiliates, or offices with whom one or more of the parties or the [KSA] may have had certain interactions and the disclosure of which would be damaging to U.S. national security interests." This is not a narrow interposition of privilege.
[The Aljabris] say the allegedly fraudulent transactions were actually legitimate, directed by the then-leadership of the KSA and made in connection with Aljabri's work on sensitive operations with, or at least alongside, the U.S. Intelligence Community. So, if the case were to proceed, the facts critical to its litigation and adjudication would center on getting to the bottom of those transactions and their nature. To that end, the parties would be seeking, inter alia, evidence about Aljabri's role and relationships with U.S. agencies, the degree of Aljabri's authority, how he participated in the programs and operations, who else was involved, the existence and execution of the operations themselves, who authorized and paid for them, and who then directed payment to or through Aljabri -- not to mention the whens, wheres, whys, and inverses of any of these things.
In addition to refusing to revive the case, the court also rejected a Saudi attempt to legally freeze the units so they could not be sold and to file a notification in the Suffolk County Registry of Deeds that ownership of the condos had a legal cloud over them because of the pending case in Ontario.
The court said that the Ontario lawsuit is now mired in a Canadian version of the same argument over national security, and such "lis pendens" registry notices under Massachusetts law are supposed to be for some set period of time, not to cover a case that has no definable end point. And, the court continued, it was going to make its decision based on American law, not Canadian law, so no registry notices.