The Supreme Court on Tuesday appeared poised to further narrow the extent to which U.S. courts can be used as a forum to consider alleged violations of international law. After roughly two hours of oral argument in Cisco Systems v. Doe, a majority of the justices seemed to side with the California-based technology company, Cisco Systems, and two of its top executives, who argued that they could not be sued for their role in allegedly aiding and abetting the creation by the Chinese government and the Chinese Communist Party of a powerful surveillance system used to target, detain, and torture the plaintiffs, who are practitioners of the Falun Gong religion. What was less clear, however, was precisely how narrow the court’s rule might be.
The Falun Gong religion began in China in the 1990s. By the time the Chinese government designated groups associated with Falun Gong as illegal in 1999, the religion had as many as 100 million practitioners in China. In an effort to find Falun Gong practitioners, the Chinese Communist Party and Chinese security officials sought to develop a massive online surveillance system, known as the “Golden Shield.”
The lawsuit before the court on Tuesday began when a group of Chinese nationals and one U.S. citizen, Charles Lee, went to federal court in California and contended that the Chinese government used the Golden Shield technology to identify them or their family members as Falun Gong practitioners, leading to their arrest and serious human rights abuses such as torture, forced labor, beatings, and forced conversions. The defendants in their lawsuit were Cisco and two of its top officials: John Chambers, the company’s CEO, and Fredy Cheung, the vice-president of Cisco’s China subsidiary. In particular, the plaintiffs said, 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.
The plaintiffs relied on two federal laws: the Alien Tort Statute, a 1789 law that allows foreigners to bring lawsuits in U.S. courts for serious violations of international law, and 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 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, the en banc 9th Circuit – which, because that court is so large, consists of only a subset of all of the judges on the court – declined to rehear the case. Cisco then came to the Supreme Court, which agreed in January to weigh in.
Representing Cisco and its executives, lawyer Kannon Shanmugam emphasized that Cisco “vigorously” denied the plaintiffs’ allegations. And in any event, he continued, Congress, rather than the Supreme Court, should provide for aiding-and-abetting liability. Shanmugam urged the justices to limit the ATS to the three original causes of action that the court recognized in its 2004 decision in Sosa v. Alvarez-Machain.
In Sosa, the majority held that in 1789, the ATS would have allowed lawsuits alleging a “narrow set of violations of the law of nations” – specifically, for 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. The court in Sosa left open the possibility that other claims brought under the ATS could go forward if they are widely accepted as a violation of international norms and can be defined as specifically as those three 18th-century wrongs. But the Supreme Court, Shanmugam suggested, should “draw a line around” the three offenses singled out in Sosa and hold that claims for aiding-and-abetting liability can never be brought under the ATS.
Justice Brett Kavanaugh appeared to agree. He wondered whether, by leaving open the possibility that the Supreme Court could recognize additional causes of action under the ATS but not actually doing so, the court had “misled Congress into thinking” it doesn’t need to act. Kavanaugh seemed to indicate that if the court closed the door to additional claims under Sosa, it might spur Congress to expand what could be brought via the ATS.
Deputy U.S. Solicitor General Curtis Gannon, who argued on behalf of the Trump administration in support of Cisco, responded (agreeing with Shanmugam) that whether additional causes of action are available under the ATS “is a legislative decision that [Congress] should make.”
Justice Neil Gorsuch expressed a similar sentiment in questioning Paul Hoffman, who argued on behalf of the plaintiffs in the case. Gorsuch described the court as having created a “mousetrap” with its treatment of ATS claims – theoretically they are available, but the plaintiffs always lose. Wouldn’t the efforts that go into the plaintiffs’ lawsuits, Gorsuch suggested, be better directed at getting relief from Congress?
Justice Elena Kagan questioned whether the court should draw a categorical line that either always barred or always permitted aiding-and-abetting claims under the ATS. For example, concerning the three core offenses identified in Sosa, she observed that there is more evidence to support the idea that, when the ATS was enacted, someone could be held liable for aiding and abetting piracy than there was for the other two offenses.
Justice Amy Coney Barrett also expressed reservations about limiting the ATS to the three offenses identified in Sosa. There has been research, she told Shanmugam, indicating that when the ATS was enacted, international law allowed claims by foreign nationals for violence committed by U.S. citizens. Could the Supreme Court hold instead, she asked Shanmugam, that the ATS is not limited to those three offenses, and leave open the possibility that aiding-and-abetting claims could be (but are not always) available, but at the same time say that such claims cannot go forward against Cisco?
Chief Justice John Roberts had similar concerns. He described a “serious conceptual challenge” created by the position adopted by Cisco and the government in this case. The court had held in Sosa, he emphasized, that “the First Congress wanted courts to” find causes of action under the ATS. If the court were to close the door on new causes of action, Roberts said, it would therefore not be “faithful to the First Congress’s intent.”
Justice Ketanji Brown Jackson approached the question from a slightly different angle. In her view, whether an aiding-and-abetting claim should be available under the ATS would hinge on whether a claim could be brought under the ATS for the underlying conduct itself.
Shanmugam emphasized that even under this approach, courts would still have to consider the foreign policy and separation-of-powers concerns that might be implicated by allowing such a claim to go forward.
Gannon echoed Shanmugam’s caution about foreign policy concerns. He told the justices that the “mine-run” of cases brought under the ATS and TVPA had been “cases like this,” which depended on “having to prove that foreign government officials engaged in serious human rights violations in their own countries.”
Perhaps to illustrate the perils of a less-than-categorical rule, Justice Samuel Alito asked Hoffman about the potential impact of a statement of interest from the federal government, in which the federal government indicated that a particular lawsuit was “not in the best interests of the United States’ foreign policy.” Should the court hearing the lawsuit then dismiss the case, Alito inquired? Hoffman acknowledged that courts should give “great weight” to such statements, but added that courts also have “discretion” in their treatment of the statements. In response, Alito asked if Hoffman was saying that a federal judge should effectively second-guess the government’s conclusions about foreign policy and whether allowing the case to go forward would be in the U.S.’s best interests.
Jackson was more sympathetic to the plaintiffs. Is it the “position” of the United States, she asked Gannon, “that this particular claim” will cause “a foreign policy problem?” Gannon stressed that the federal government had not taken a position on the case but ultimately answered, “potentially, yes.” But Jackson seemed unpersuaded. Why, she queried, should Cisco be “absolved,” and the plaintiffs in this case “not get a remedy,” based on “speculation” by the United States about possible foreign policy concerns?
Justice Sonia Sotomayor appeared to side with Jackson. She pressed Shanmugam on Cisco’s assertions that allowing the plaintiffs’ claims to go forward would lead to a flood of lawsuits and have a harmful effect on U.S. businesses. She noted that only about 300 cases had been filed under the ATS, and that the number of cases had dropped “precipitously” in the wake of the court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co., holding that claims under the ATS must be based on conduct that occurs in the United States. There has been no “rush” of new cases in the courts of appeals that allow aiding-and-abetting liability claims under the ATS, Sotomayor observed. Moreover, she added, the United States is a party to the Convention Against Torture, which requires it to hold people complicit in torture responsible.
Shanmugam countered that despite the many lawsuits brought under the ATS, he was only aware of six cases in which the plaintiffs had actually “prevailed with a monetary recovery” – suggesting that such lawsuits have little utility for victims while consuming large amounts of resources.
The case should be decided by late June or early July.