Nearly 240 years ago, Congress enacted the Alien Tort Statute, which allows foreigners to bring lawsuits in U.S. courts for serious violations of international law. On Tuesday, the Supreme Court will hear oral argument in the latest attempt to define the scope of the ATS. The case, Cisco Systems v. Doe, pits the California-based technology company against a group of Chinese and U.S. citizens seeking to rely on the ATS to hold the company responsible for what they say is its role in helping the Chinese government and Chinese Communist Party develop a powerful surveillance system used to target, detain, and torture practitioners of the Falun Gong religion.
One of the first efforts in the modern era to rely on the ATS came in 1980, when a Paraguayan doctor and his daughter filed a lawsuit in the United States against Americo Pena-Irala, a former Paraguayan police official living in New York. The plaintiffs, Joel and Dolly Filartiga, alleged that Pena-Irala had kidnapped Joel’s son and Dolly’s brother, Joelito, and tortured him to death in retaliation for Joel’s opposition to the Paraguayan government. The Filartigas argued that the ATS gave U.S. courts jurisdiction over their lawsuit; the U.S. Court of Appeals for the 2nd Circuit agreed, observing that torture violates the law of nations.
In the 46 years since the Filartiga decision, plaintiffs increasingly have relied on the ATS to bring lawsuits filed in U.S. courts seeking compensation for human-rights violations that occurred overseas. These lawsuits were brought not only against foreign government officials, but also against corporations for their role in aiding and abetting – that is, facilitating – human-rights violations by foreign governments.
The defendants in these lawsuits resisted what they regarded as efforts to make the United States, as Roberts once put it, the world’s “moral custodian.” In 2004, the Supreme Court indicated that the kinds of claims that could be brought under the ATS are relatively limited. In Sosa v. Alvarez-Machain, the court ruled that the ATS itself only gives courts the power to hear cases; it does not, standing alone, provide a cause of action. The court ruled that, at the time the ATS was enacted, it would have allowed lawsuits alleging a “narrow set of violations of the law of nations” – violations of safe-passage guarantees, violations of an ambassador’s rights, and piracy – that could have had serious effects on the United States’ relations with other countries. Claims brought under the ATS now, the court cautioned, should go forward only if they both are widely accepted as a violation of international norms and can be defined as specifically as those three 18th-century wrongs.
In the years since its decision in Sosa, the court has further limited the scope of the ATS. In 2013, in Kiobel v. Royal Dutch Petroleum Co., the court held that claims under the ATS must be based on conduct that occurs in the United States. And in Jesner v. Arab Bank, the court ruled that foreign corporations cannot be sued under the ATS.
The dispute before the court on Tuesday has its roots in efforts by the Chinese Communist Party and Chinese security officials to develop a massive online surveillance system known as the “Golden Shield” to find practitioners of Falun Gong, a religion that began in China in the early 1990s. By 1999, when the Chinese government designated Falun Gong organizations as illegal, it had as many as 100 million practitioners in China.
The plaintiffs in the case now before the Supreme Court are Chinese nationals and one U.S. citizen, Charles Lee, who contend that the Chinese government used the Golden Shield technology to identify them as Falun Gong practitioners. And as a result, they say, they were detained and subjected to human rights abuses in China that included torture, forced labor, beatings, and forced conversions. Two of the plaintiffs represent family members who, they claim, disappeared or were killed while in the government’s custody.
In 2011, the plaintiffs filed a lawsuit in federal court in California against Cisco and two of its top officials: John Chambers, the company’s CEO, and Fredy Cheung, the vice-president of Cisco’s China subsidiary. The Chinese plaintiffs brought their claims under the ATS, while Lee relied on the Torture Victim Protection Act, a 1992 law that allows suits against individuals who subject others to torture while acting on behalf of a foreign government. In both cases, the plaintiffs did not contend that Cisco and its officials actually committed the abuses themselves. Instead, they say, Cisco, Chambers, and Cheung aided and abetted those abuses – specifically, they “designed, implemented and helped to maintain a surveillance and internal security network” that made it easier for Chinese officials to identify Falun Gong practitioners.
Cisco denies the allegations. It says that it complied fully with U.S. export control regulations and that it only sold the Chinese government “off-the-shelf networking equipment” “that it did not customize.”
After a long and complicated path through the lower courts, in 2023, the U.S. Court of Appeals for the 9th Circuit ruled that the plaintiffs’ aiding-and-abetting claims could go forward. Over a dissent by seven judges, a fuller court of appeals declined to rehear the case. Cisco then came to the Supreme Court, which agreed in January to weigh in.
In its brief on the merits, Cisco tells the court that “[t]he time has now come for this Court to close the door it left ajar in Sosa.” First, it argues, only Congress can create causes of action; courts cannot read any additional rights to bring lawsuits into the ATS beyond the three that Congress likely originally had in mind when it enacted the law nearly 240 years ago.
Even if the Supreme Court decides to leave open the prospect that there may be some “narrow class” of additional claims that may be brought under the ATS, Cisco contends, plaintiffs cannot rely on the ATS to bring claims for aiding and abetting violations of international law. In 1994, in Central Bank of Denver v. First Interstate Bank of Denver, it writes, the Supreme Court made “clear that aiding and abetting liability is not available unless Congress has expressly provided for it” – which it has not done in the ATS.
At the very least, these plaintiffs’ aiding-and-abetting claims cannot go forward, Cisco alleges, because doing so would create precisely the kind of foreign-relations problems that Congress sought to guard against when it enacted the ATS. Allowing aiding-and-abetting claims here would effectively put the actions of the Chinese government with regard to its own citizens on trial, which would be particularly inappropriate when Cisco’s sales complied with U.S. export controls and policies.
Cisco tells the justices that the claim by Lee, the U.S.-citizen plaintiff, under the TVPA “reflects the same fundamental flaw that pervades the other” plaintiffs’ “ATS claims: it seeks to create through implication what Congress declined to enact through legislation.”
Finally, Cisco warns about the practical implications of a ruling for the plaintiffs in this case. “Despite this Court’s efforts to police the scope of actionable conduct and the universe of potential defendants under the ATS, plaintiffs and their lawyers have continued to pursue ambitious ATS litigation” that can last “for a decade or more,” it writes. And although such litigation has ultimately “had little benefit for plaintiffs” – with only six cases out of 300 leading to money judgments for the plaintiffs – it still creates a danger that U.S. corporations will not want to invest overseas as a result, the company cautions.
The Trump administration filed a “friend of the court” brief supporting Cisco in which it emphasizes the foreign-relations problems that would result from allowing aiding-and-abetting claims under the ATS. “Congress,” it tells the justices, “intended the statute to ‘promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable’ for ‘refus[ing] to provide redress to their citizens’ for” wrongs committed in the United States.
Moreover, the government continues, the TVPA itself supports the argument that the ATS also does not allow such liability. The TVPA, the federal government writes, is the only law that Congress has passed to specifically create a cause of action under the ATS. But because the TVPA does not provide for aiding-and-abetting liability, the government suggests, “[i]t therefore strongly indicates that this Court should not extend the ATS in that way for claims outside the TVPA’s ambit.”
The plaintiffs urge the justices to refrain from adopting “a categorical bar on aiding-and-abetting claims” under the ATS. “Systematic abuse requires significant resources and infrastructure,” they say, so that “[p]reventing future abuses requires holding all culpable actors accountable, as the Allies did when they prosecuted the corporate actors who provided poison gas to Nazi death camps during the Holocaust.”
First, the plaintiffs contend, when Congress enacted the ATS in 1789, aiding and abetting the violations of the international norms that the law was intended to address was itself considered a violation of international law. And it continues to be so today, they emphasize, as shown by the fact that “[a]ll modern tribunals established to prosecute international crimes,” including the Nuremberg tribunals and the international criminal tribunal convened to prosecute war crimes in Rwanda and the former Yugoslavia, “impose aiding-and-abetting liability.” Moreover, they continued, “Cisco has never contested that torture, extrajudicial killings, disappearances, or prolonged arbitrary detention” are precisely the kinds of violations of international norms for which plaintiffs can seek relief under the ATS, which means that claims for aiding and abetting such conduct can also be brought under the ATS.
Indeed, the plaintiffs argue, allowing claims like theirs to go forward would be more consistent with Congress’ purpose in enacting the ATS: “to ensure foreign victims of a law-of-nations violation could obtain civil remedies from responsible parties, in part to avoid the use of governmental funds.” “Categorically barring” such claims, the plaintiffs say, “undermines this goal of requiring those responsible to provide compensation.”
Lee’s TVPA claim is equally viable, the plaintiffs insist. The Supreme Court has acknowledged that “the TVPA extends liability beyond the direct perpetrators of” torture. That interpretation is reinforced by the text of the TVPA, they say, which creates liability for anyone who “subject[s]” someone else to torture. “The ordinary meaning of the verb ‘subjects’ is to expose or render liable another to an effect or condition. Aiding and abetting fits squarely within this meaning, as those who aid and abet take concrete actions that have a substantial effect on causing a victim to experience torture or extrajudicial killing at the hands of the direct perpetrators.”
More broadly, the plaintiffs write, the TVPA was intended to fulfill the U.S.’s obligations under the Convention Against Torture, which “requires states to ensure victims have access to remedies against those who aided and abetted their torture.”
The plaintiffs also push back against Cisco’s predictions that allowing the claims against it to go forward will have negative long-term effects, either in terms of foreign-relations implications or for U.S. corporations. The Supreme Court’s earlier decisions limiting the scope of the ATS “have, as a practical matter,” they say, already “sharply reduced the number of ATS cases, undermining Cisco’s prophecy of dire consequences if this Court affirms.” Moreover, they posit, a case like this one actually “advances U.S. foreign policy” because “it seeks to deter complicity in China’s brutal persecution of a religious minority.” Indeed, they note, since this case was first filed 15 years ago, the Chinese government “has not communicated any objections to any court about” it.