Overview
On behalf of members of Congress, Cohen Milstein and the Human Rights Litigation and Advocacy Clinic of the University of Minnesota Law School submitted an amicus brief to the Supreme Court in the hope that a brief history of Congress’s actions to draft and enact the Torture Victim Protection Act (TVPA), including its relationship to the Alien Tort Statute (ATS), is useful to the Court in its deliberations in Cisco Systems, Inc., et al. v. Doe I, et al. (No. 24-86).
A landmark human rights lawsuit, Doe I, et al. v. Cisco Systems, Inc., et al. centers on allegations that Cisco Systems and its executives facilitated serious human rights abuses, including torture and arbitrary detention, in China by providing tailored technological assistance to the Chinese government. Specifically, class members are practitioners of Falun Gong, a religious group persecuted in China. They allege that Cisco helped design, build, and maintain the “Golden Shield”—a comprehensive surveillance system used by the Chinese Communist Party to identify, track, and arrest them.
Amici are senior members of the House Foreign Affairs Committee, the Energy and Commerce Committee, and the Financial Services Committee.
Summary of Argument
A bipartisan, nearly unanimous Congress passed the Torture Victim Protection Act.
While the bill was under consideration, Congress consistently described torture as a violation of the law of nations that had been condemned by virtually every country — a universal crime akin to piracy, one of the three offenses against the law of nations referenced by Blackstone. Congress concluded that extrajudicial killing had also reached the same level of universal condemnation.
Congress understood the foreign policy implications of the TVPA, passing the act despite warnings from the State Department. Congress understood that enacting a civil remedy for torture committed under the color of foreign law might have foreign policy impacts but deliberately decided to proceed because Congress believed that stamping out torture was a worthwhile goal and that providing a civil remedy for its victims was a concrete step towards that goal. The TVPA is a deliberate, eyesopen choice by the political branches. In the words of Representative James Leach (R-IA), a member of the House Foreign Affairs Committee and original cosponsor of the legislation, during the floor debate on passage of the TVPA:
Now and again in recent years critics of American foreign policy have alleged that we sometimes act as policemen of the world. Sometimes we do that for good cause. Sometimes we do it effectively; sometimes counterproductively. But in this particular approach what we are saying is that we are going to be and represent, and the first country so to do, although certainly consistent with the U.N. Convention Against Torture, we are going to provide a court to police the world.
My own sense is that through courts, through the rule of law, through the western tradition, we have a greater chance to set a model for the world and to have an effect than we sometimes do through the exercise of force.
134 Cong. Rec. 28612 (Oct. 5, 1988).
Congress had heard testimony about a recent decision, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), that provided a civil remedy pursuant to the Alien Tort Statute, 28 U.S.C. § 1350, to the family of a young man tortured to death in Paraguay. Congress repeatedly expressed its intent to provide a similar remedy to U.S. citizens and, at the same time, to preserve and clarify that the ATS remained available to provide redress for violations of international law.
The remedy chosen by Congress for the TVPA, like the ATS, was a tort claim for damages, a claim that encompasses aiding and abetting liability.
Members of Congress have consistently spoken out, including by passing resolutions and other measures, to condemn aiding and abetting religious persecution, particularly when it leads to torture and extrajudicial killing. Indeed, in 2000, Congress established the Congressional-Executive Commission on China (CECC) to monitor human rights and the rule of law in China. U.S.-China Relations Act of 2000, Pub. L. No. 106-286, § 301, 114 Stat. 880 (2000). The CECC has addressed political repression and persecution of religious minorities in China, including Falun Gong practitioners, Uyghur Muslims, and Christians. The legislative record establishes clearly and consistently that this litigation is neither inconsistent with U.S. law nor contrary to U.S. foreign policy. Plaintiffs should have the opportunity to prove their claims in a court of law, as Congress intended.