The Supreme Court on Tuesday made it far more difficult for foreigners to bring lawsuits in U.S. courts alleging serious violations of international law. In an opinion by Justice Amy Coney Barrett, the justices ruled that a 1789 law, the Alien Tort Statute, on which plaintiffs have relied to bring such cases, only allows lawsuits based on the very small group of claims that Congress likely had in mind when it passed the law. The court also ruled that the Torture Victim Protection Act, a 1991 law that allows suits against individuals who subject others to torture while acting on behalf of a foreign government, does not allow lawsuits for aiding and abetting torture.
Barrett acknowledged “that ATS and TVPA cases frequently involve heinous and inhumane acts” for which “[t]he political branches or other international actors may well provide redress. But,” she wrote, “we decline to distort the statutory text or the Constitution’s allocation of powers to enlist U.S. courts in that project.”
In a dissent joined in part by Justices Ketanji Brown Jackson and Elena Kagan, Justice Sonia Sotomayor contended that Tuesday’s ruling “closes the courthouse doors not just to” the plaintiffs in this case, but also “to virtually every future litigant seeking redress for a violation of international law under the ATS.”
Cisco Systems v. Doe was one of a series of cases over the last 46 years seeking to rely on the ATS. The first such case was filed in 1980 in New York, by a Paraguayan doctor, Joel Filartiga, and his daughter, Dolly. They contended that a former Paraguayan police official now living in New York, Americo Pena-Irala, had kidnapped their family member and tortured him to death in retaliation for Joel’s political activities and opposition to the Paraguayan government. The U.S. Court of Appeals for the 2nd Circuit allowed the family’s lawsuit to go forward, reasoning that torture violates the law of nations.
Since then, other plaintiffs have also sought to rely on the ATS to bring lawsuits in U.S. courts seeking compensation for human-rights abuses that occurred overseas. These plaintiffs sought to sue both foreign government officials for the violations themselves and corporations for their role in aiding and abetting those alleged violations.
When the issue has come to the Supreme Court in the past, plaintiffs have not found a receptive audience. Instead, the court has repeatedly limited the scope of the ATS. In 2004, 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. When the ATS was enacted, the court reasoned, Congress would have expected it to apply only to 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. In the modern era, the court warned, claims under the ATS 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 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, in 2018, the court ruled that foreign corporations cannot be sued under the ATS.
The plaintiffs in Cisco Systems are practitioners of the Falun Gong religion, which began in China in the 1990s. In 1999, the Chinese government designated groups associated with the religion as illegal. The Chinese Communist Party and Chinese security officials sought to develop a massive online surveillance system, known as the “Golden Shield,” to find Falun Gong practitioners.
The plaintiffs allege that using the Golden Shield technology, the Chinese government identified them as Falun Gong practitioners. That, they say, led to their detention and human rights abuses in China that included torture, forced labor, beatings, and forced conversions. They contend that Cisco and two of its top officials aided and abetted those abuses by helping the Chinese government to create and maintain the Golden Shield. The Chinese plaintiffs relied on the ATS to bring their lawsuit in the U.S., while a U.S. plaintiff relied on the Torture Victim Protection Act.
Cisco has denied 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.”
The U.S. Court of Appeals for the 9th Circuit allowed the plaintiffs’ aiding-and-abetting claims to 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 reconsider the case.
On Tuesday, the Supreme Court reversed. The Supreme Court’s decision in Sosa, Barrett said, indicated both that the ATS is “strictly jurisdictional” and that “courts have narrow authority to create causes of action under it” – stances that “are in obvious tension with one another.” Moreover, she added, “asserting such authority would intrude on both Congress’s” power to create rights to sue “and the power of the political branches to direct the Nation’s foreign policy.”
Given these limitations, Barrett wrote, the Supreme Court has never actually created a right to sue under the ATS, and it now holds both “that courts may not create new causes of action for violations of international norms” and that the TVPA “does not provide for aiding-and-abetting liability.” Although foreign plaintiffs can still bring claims for the original three violations of international law recognized in Sosa, she emphasized, there are no others.
In her 27-page dissent, Sotomayor contended that the majority’s opinion “overrules Sosa, without even acknowledging that it is doing so. Today’s decision,” she wrote, therefore “marks yet another low point in this Court’s esteem for its precedents.”
Jackson wrote separately, in a brief opinion joined by Kagan, to note that she agreed with the majority that aiding-and-abetting claims cannot go forward under the TVPA, even if she did not agree with the reasoning on which the majority relied to reach that conclusion.
