Cisco v. Doe tests the limits of U.S. Courts

For those who cherish human rights and access to justice, recent years at the Supreme Court have been disappointing. Don’t expect that to change soon. On April 28, the Supreme Court heard arguments in a case called Cisco v. Doe. The case involves no Armenian parties and raises knotty legal questions that could dizzy even the most experienced attorneys. And yet, for Armenian onlookers, this is probably the case of the year. It is so important that two Armenian archbishops, Anoushavan Tanielian and Vicken Aykazian, saw fit to file a special brief explaining their views on the matter directly to the nine Supreme Court justices — a rare instance of an appeal from a higher power to a lower one. The case has attracted this attention because it touches on a human rights question dear to the hearts of Armenian American activists: Can people persecuted overseas seek and obtain justice in American courts? Armenians have long pushed for that question to be answered yes. They have recognized that while international courts are often too weak to deliver justice, American courts — with their power, reach and independence — might plug the gap. Cisco v. Doe will test those hopes. In the case, members of Falun Gong, a Chinese religious minority, are suing Cisco, an American company, for its alleged complicity in a campaign to destroy them. They allege that they were detained and tortured, and that some of their family members were killed or disappeared — all part of a state-sanctioned douzheng (“struggle” or “fight”) to erase them from Chinese society. But the Chinese Government cannot usually be haled into an American court. So the plaintiffs have sued Cisco, the American tech giant, for developing the spying technology the Chinese Communist Party used for the campaign. As the plaintiffs allege, Cisco knowingly worked at the behest of the Chinese Government to develop technology that would detect Falun Gong activity online, identify the offending user and alert Chinese authorities. Some plaintiffs say Chinese officials used Cisco-derived material — such as their spouses’ private messages — to torture them. The Armenian angle is less about whether Cisco is liable for the acts it is accused of aiding and more about whether the lawsuit can go ahead at all. The plaintiffs pin their case on the Alien Tort Statute, a 240-year-old jurisdictional law that, over the decades, has been construed to grant foreigners a narrow class of international law claims in U.S. courts. This is the statute that, advocates hope, could support Armenian claims for relief against American people or businesses that assist in Armenian persecution abroad. But the ATS doesn’t specify which international law violations may support a private lawsuit. So far, the Supreme Court has acknowledged only three examples — violations of safe-conduct guarantees, violations of an ambassador’s rights and piracy. Those claims would have been allowed when the ATS was enacted in 1789. So, what about torture? Genocide? Or, as Cisco is accused of doing, aiding and abetting these sorts of offenses? This is where the law gets knotty. There is a separate statute, the Torture Victim Protection Act, that creates a civil cause of action against individuals who, acting for a foreign government, “subject” someone to torture or extrajudicial killing. That statute is also at issue in Cisco v. Doe. But it says nothing explicit about aiding and abetting, and the Supreme Court may be unlikely to rule that it reaches aiding and abetting. This would shrink its reach dramatically. And, of course, the statute is focused on torture and extrajudicial killings — grave wrongs, but narrower in scope than the range of offenses theoretically within reach of the ATS, such as slavery, forced displacement or arbitrary arrest and punishment. But it’s not clear those claims could be heard under the ATS either. Precedent suggests that they could because they are concrete, widely recognized violations of international law. But in recent years, more and more justices have signed on to the idea, pioneered by the late Justice Antonin Scalia, that even these atrocities can’t be heard. They say that while the ATS in theory allows foreigners to bring private claims for international law violations, it is up to Congress to specify which international law violations can give rise to such claims. These justices — most notably Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — say that if ATS claims for genocide, crimes against humanity or similar atrocities are to proceed in U.S. courts, Congress must say so explicitly. The danger in Cisco v. Doe — at least from the Armenian activist’s perspective — is that the Supreme Court will adopt this hardline position. Both Cisco and the Trump administration have asked it to do so. If the Supreme Court accepts the invitation, it will close the door on one of the most ambitious vehicles for human rights litigation in the United States. Granted, foreigners will still be able to sue for the age-old wrongs of piracy, violations of ambassadors’ rights and breaches of safe-conduct guarantees. But the injuries that have time and again befallen Armenians would remain out of reach. That is unless Congress acts. Congress could resolve this issue simply by creating a cause of action for aiding and abetting torture, genocide or any other atrocity. It could make Armenian activists’ dreams come true by creating causes of action for all manner of international law violations. Nothing forbids this. As long as Congress stays within constitutional limits, little stands in its way. This, I think, will prove to be the lesson of this case. The Falun Gong plaintiffs in Cisco v. Doe will likely lose. They may even lose badly. The archbishops’ brief, however powerful as a moral statement, will probably not move the needle. Good people will lament the loss, and the Supreme Court may take heat for it. That would be a fair reaction. But the justices’ job is not to make us happy. It is to apply the law as they, in good faith, see it. The branch that is supposed to win our approval, by contrast, is Congress. So if the Supreme Court disappoints, think twice about whom to blame.

Cisco v. Doe tests the limits of U.S. Courts

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Drew Musto

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Drew Musto

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