Alien Tort Statute

Let me add before John jumps into this, there's a case called Cisco Systems versus Dell One.

This is about the alien port statutes application to US corporations that sell surveillance equipment and networks to foreign countries that use it to surveil protesters and others dissidents in their country um the question really is going to be about whether the alien tort statute really has much to do with that and whether or not u.s courts can entertain that case i think it's a likely case for the court to take um very difficult to predict where they will end up

and i i will start off by noting um Donald, that when you asked us to think about cert petitions, I also was focusing on the Cisco case.

So on so many things, we're thinking along the same lines.

Well, let me make one comment about the Cisco case for our students in the audience.

30 years ago, when I was trying to come up with my student note, many of these students are now trying to figure out what they're going to write about, what comment or note.

I decided to write about the Alien Tort Statute.

And there were, at the time, in 1996, there were less than a handful of law review articles that even mentioned the Alien Tort Statute.

So the respondents challenged the metering policy with a class action lawsuit.

According to Cornell, the respondents, quote, alleged that the policy violated the INA, the Alien Tort Statute, the Fifth Amendment's Due Process Clause, and Sections 706.1 and 706.2 of the Administrative Procedure Act, or APA, unquote.

Now, while the case was pending, the Department of Homeland Security instituted the Asylum Transit Rule.

This rule said that if non-citizens had traveled through a third country without trying to get protection there, they were not eligible for asylum in the United States anymore.

Summary judgment would be a court order that would resolve the lawsuit without requiring a full trial.

This occurs when, quote, there is no genuine issue of material fact and the movement is entitled to judgment as a matter of law, unquote, according to Cornell.

The court then, quote, ruled in favor of petitioners with respect to the INA and alien tort statute claims and in favor of the respondents with respect to the due process and APA Section 706-1 claim.

The district court did not reach the APA Section 706-2 claim and permanently enjoined petitioners from enforcing the asylum transit rule, unquote.

The Bivens has been destroyed.

There are other statutory hooks that may have existed, the Alien Tort Statute in particular, that have been chipped away at probably for the last time with a recent decision.

The Supreme Court, Cisco.

And so to the extent anyone was hoping to find due process light, I suppose, in the form of giving individuals who were denied due process some sort of remedy, that is also out the window.

The plaintiffs in this case contend that the Chinese government persecuted them because of their religious beliefs, and that Cisco Systems enabled that persecution by developing surveillance technology that allowed China to identify and apprehend them.

They sued Cisco and its executives under the Alien Tort Statute for aiding and abetting violations of international law, and one plaintiff also sued two Cisco executives under the Torture Victim Protection Act of 1991 for aiding and abetting torture.

The District Court dismissed the complaint, but the Ninth Circuit reversed in relevant part, holding that aiding and abetting liability is available under both statutes.

The questions presented were, first, whether the Alien Tort Statute allows a judicially implied private right of action for aiding and abetting.

Second, whether the Torture Victim Protection Act allows a judicially implied private right of action for aiding and abetting.

The court held, courts may not create new causes of action for violations of international norms under the Alien Tort Statute.

The court's decision in Sosove Alvarez McCain left courts only narrow authority to do so, because these suits by their nature implicate foreign policy and the power to create causes of action belongs to Congress, and later legal developments have made that authority non-existent.

Because courts cannot create new rights of action to remedy violations of international law, there is necessarily no liability for aiding and abetting such violations.