Gutting the Alien Tort Statute

The Supreme Court’s decision in Cisco Systems, Inc. v. Doe I, decided in June, is a lethal blow to suits under the federal Alien Tort Statute. Such litigation often is the only remedy available to victims of human rights abuses. Through Cisco, the court has effectively nullified a vital law that could check corporate abuses and provide an essential remedy to those whose rights have been violated. The Alien Tort Statute was part of the Judiciary Act of 1789 and gives federal district courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In Filartiga v. Pena-Irala, in 1980, the U.S. Court of Appeals for the 2nd Circuit allowed the Alien Tort Statute to be applied to hold individuals accountable for human rights abuses committed outside of the United States. The case involved a Paraguayan family seeking justice for the torture and murder of their son by a former Paraguayan police chief living in the United States. In Sosa v. Alvarez-Machain, in 2004, the Supreme Court held that the ATS allows foreign nationals to bring civil lawsuits in U.S. courts for violations of international law committed outside the United States. (I should disclose that I was co-counsel for the plaintiff in that case.) The case involved whether a Mexican national could sue in United States courts those who were involved in his abduction and torture in Mexico. The Supreme Court, in an opinion by Justice David Souter, held that there is an implied cause of action under the ATS, allowing suits for violations of international human rights norms. He wrote: “Although we agree the statute is in terms only jurisdictional, we think that at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.” The court further explained: There is too much in the historical record to believe that Congress would have enacted the ATS only to leave it lying fallow indefinitely. The second inference to be drawn from the history is that Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations. The court concluded that jurisdiction under the ATS is not limited to the three 18th-century torts – piracy, offenses against ambassadors, violation of safe conducts – that were clearly envisioned when it was passed. Rather, the court said that the ATS extends to claims based on violations of the present-day law of nations resting on norms of international character widely accepted and defined with a specificity comparable to those 18th-century torts. Nevertheless, in subsequent cases, the Supreme Court restricted the availability of suits under the ATS. In 2013’s Kiobel v. Royal Dutch Petroleum (I also was co-counsel in that case), the court said that the ATS could not be used for human rights violations by a company in a foreign country because of the strong presumption against extraterritorial applications of federal laws. Then, in Jesner v. Arab Bank, PLC, in 2018, the court held that foreign companies could not be sued under the ATS. Three years later, in Nestlé USA v. Doe (2021) (I also was co-counsel), the court said that claims against United States corporations must be based on more than mere corporate presence in this country. The court, in a 5-4 decision, held that an American company could not be sued under the ATS for their alleged role in aiding and abetting the use of child slaves in Africa. But the court’s decision in Cisco Systems, Inc. v. Doe I goes much further than the earlier rulings in denying the ability of federal courts to hear cases under the ATS. It also precludes “aiding and abetting” liability under 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. In Cisco, the plaintiffs were practitioners of Falun Gong, a religious movement that originated in China in the 1990s. They sued, contending that the Chinese Government persecuted them because of their religious beliefs, and specifically that Cisco Systems, Inc. enabled that persecution by developing surveillance technology that allowed China to identify and apprehend them. The plaintiffs alleged that Cisco and its executives aided and abetted violations of international law: torture; cruel, inhuman, or degrading treatment; forced labor; prolonged and arbitrary detention; crimes against humanity; extrajudicial killing; and forced disappearance. The plaintiffs sued under both the ATS and the Torture Victims Protection Act. The court ruled against the plaintiffs in a 6-3 decision along ideological lines. Justice Amy Coney Barrett wrote for the majority and declared: Today, we close the door that Sosa cracked and hold that courts may not create new causes of action for violations of international norms. We also hold that the Torture Victim Protection Act of 1991, which contains an express cause of action, does not provide for aiding-and-abetting liability. As for limiting the ability to seek redress under the ATS, Barrett gave two reasons for this: “ATS cases by their nature implicate foreign policy,” which is primarily left to the other two branches of government, and “the power to create causes of action belongs to Congress.” Justice Sonia Sotomayor vehemently dissented, lamenting: The Court … closes the courthouse doors not just to respondents, but to virtually every future litigant seeking redress for a violation of international law under the ATS. It thus overrules Sosa, without even acknowledging that it is doing so. Today’s decision marks yet another low point in this Court’s esteem for its precedents. Sotomayor disagreed that allowing liability under the ATS was inconsistent with congressional intent or that it would interfere with foreign policy. Congress, in 1789, created jurisdiction for tort suits for violation of the law of nations; this obviously assumed that there would be such claims. As for the Torture Victim Protection Act, the court said that there is not aiding and abetting liability because the statute does not expressly provide for it.The court stated: “The TVPA nowhere mentions aiding-and-abetting liability, and that silence is enough to settle the issue.” Sotomayor also strongly disagreed with this conclusion and argued that the text of the law authorizes aiding and abetting liability. She wrote: The majority also errs by holding that the TVPA does not allow plaintiffs to sue for the aiding and abetting of torture. The TVPA states that “[a]n individual who ... subjects an individual to torture shall, in a civil action, be liable for damages to that individual.” . . . Putting the terms “subjects” and “aiding and abetting” together yields a simple answer. In ordinary meaning, a person “subjects” another to torture if he “consciously and culpably ‘participate[s]’ in the torture “so as to help ‘make it succeed.’”” By closing the door on ATS suits and barring aiding and abetting liability under the TVPA, this case is a devastating blow to the ability to bring suits in federal courts for human rights violations. It effectively invalidates a statute that was enacted in 1789, with, as the court said in Sosa, the clear expectation that suits could be brought under it. It also demonstrates the conservative majority of the court again giving no weight to precedent. Cisco is thus a huge victory for corporations who long have wanted to end the possibility for liability for their wrongdoing in foreign countries. And worst of all, it will leave victims of even egregious infringements of basic rights with no forum and no remedy. Recommended Citation: Erwin Chemerinsky, Gutting the Alien Tort Statute, SCOTUSblog (Aug. 25, 2026, 9:30 AM), https://www.scotusblog.com/2026/08/gutting-the-alien-tort-statute/