FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOE I; DOE II; IVY HE; DOE III; No. 15-16909
DOE IV; DOE V; DOE VI;
CHARLES LEE; ROE VII; ROE VIII; D.C. No. 5:11-cv-
LIU GUIFU; DOE IX; WEIYU 02449-EJD
WANG, and those individuals
similarly situated,
OPINION
Plaintiffs-Appellants,
v.
CISCO SYSTEMS, INC.; JOHN
CHAMBERS; FREDY CHEUNG,
AKA Zhang Sihua; DOES, 1-100,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted October 20, 2021
Pasadena, California
Filed July 7, 2023
2 DOE I V. CISCO SYSTEMS, INC.
Before: A. Wallace Tashima, Marsha S. Berzon, and
Morgan Christen, Circuit Judges.
Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Christen
SUMMARY *
Alien Tort Statute / Torture Victim Protection Act
In an action brought by practitioners of Falun Gong who
alleged that they or family members were victims of human
rights abuses committed by the Chinese Communist Party
and Chinese government officials and that these abuses were
enabled by technological assistance of U.S. corporation
Cisco Systems, Inc., and two Cisco executives, the panel
affirmed the district court’s dismissal of plaintiffs’ claims
under the Alien Tort Statute against the Cisco executives;
reversed the dismissal of plaintiffs’ Alien Tort Statute claims
against corporate defendant Cisco; reversed the dismissal of
one plaintiff’s claims under the Torture Victim Protection
Act against the Cisco executives; and remanded for further
proceedings.
The district court dismissed plaintiffs’ claims under the
Alien Tort Statute (“ATS”) on the ground that plaintiffs did
not allege conduct sufficient to meet the standard for aiding
and abetting liability under international customary law or to
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOE I V. CISCO SYSTEMS, INC. 3
overcome the presumption against the extraterritorial
application of the ATS. The district court also dismissed
plaintiff Charles Lee’s Torture Victim Protection Act
(“TVPA”) claim against the Cisco executives on the ground
that the statute does not provide for accomplice liability.
The panel held that under Nestle USA, Inc. v. Doe, 141
S. Ct. 1931 (2021), corporations may be held liable under the
ATS. Agreeing with other circuits, the panel further held
that, under the test set forth in Sosa v. Alvarez-Machain, 542
U.S. 692 (2004), aiding and abetting liability is a norm of
customary international law with sufficient definition and
universality to establish liability under the ATS. In addition,
because aiding and abetting liability did not raise separation-
of-powers or foreign policy concerns, such liability is
cognizable for the purposes of the ATS.
The panel held that plaintiffs’ allegations against Cisco
were sufficient to meet the applicable aiding and abetting
standard. Joining other circuits, the panel held that the actus
reus of aiding and abetting liability requires assistance to the
principal with substantial effect on an international law
violation. Joining the Eleventh Circuit, the panel held that
the mens rea for aiding and abetting liability under
customary international law is knowing
assistance. Applying this standard, the panel concluded that
plaintiffs plausibly alleged that corporate defendant Cisco
provided assistance to the Party and to Chinese Public
Security that had substantial effects on those entities’
violations of international law. Plaintiffs also plausibly
alleged that Cisco knowingly provided such assistance.
Recognizing that the ATS does not apply
extraterritorially, the panel held that this case involved a
permissible domestic application of the ATS against Cisco
4 DOE I V. CISCO SYSTEMS, INC.
because much of the corporation’s alleged conduct
constituting aiding and abetting occurred in the United
States. By contrast, plaintiffs did not sufficiently connect
the alleged actions taken by the Cisco executives to the
United States.
Reversing the district court’s dismissal of the claim
under the TVPA against the Cisco executives, the panel held,
as a matter of first impression in the Ninth Circuit, that based
on the text and the Convention Against Torture background
of the TVPA, the TVPA provides a private right of action
against those who aid and abet torture or extrajudicial
killing. The panel held that the allegations against the
executives were sufficient to meet the aiding and abetting
standard, as determined under international law.
Concurring in part and dissenting in part, Judge Christen
wrote that she joined Part II of the majority’s opinion,
addressing the TVPA claim. Judge Christen wrote that the
majority’s careful and cogent analysis of aiding and abetting
liability under the ATS in Part I of its opinion was consistent
with the views of other circuits, and in an appropriate case,
Judge Christen would join it. She, however, did not do so
here because she concluded that recognizing liability for
aiding and abetting alleged human rights violations,
committed in China and against Chinese nationals by the
Chinese Communist Part and the Chinese government’s
Ministry of Public Security, was inconsistent with the
purpose of the ATS. Judge Christen wrote that she would
affirm the dismissal of plaintiffs’ ATS claims on this basis,
and go no further.
DOE I V. CISCO SYSTEMS, INC. 5
COUNSEL
Paul L. Hoffman (argued), Catherine Sweetser, and John C.
Washington, Schonbrun Seplow Harris & Hoffman LLP,
Hermosa Beach, California; Terri E. Marsh, Human Rights
Law Foundation, Washington, D.C.; for Plaintiffs-
Appellants.
Kathleen M. Sullivan (argued), Isaac Nesser, and Todd S.
Anten, Quinn Emanuel Urquhart & Sullivan LLP, New
York, New York, for Defendants-Appellees.
William J. Aceves, California Western School of Law, San
Diego, California; David J. Scheffer, Northwestern
University School of Law Bluhm Legal Clinic, Chicago,
Illinois; for Amicus Curiae David J. Scheffer, former United
States Ambassador-at-Large for War Crimes Issues.
Sophia S. Cope and Cindy Cohn, Electronic Frontier
Foundation, San Francisco, California, for Amici Curiae
Electronic Frontier Foundation, Article 19, and Privacy
International.
Marco B. Simons, Richard L. Herz, Maryum Jordan,
Marissa Vahlsing, and Michelle Harrison, EarthRights
International, Washington, D.C., for Amici Curiae Human
Rights Organizations EarthRights International and the
Center for Constitutional Rights.
6 DOE I V. CISCO SYSTEMS, INC.
OPINION
BERZON, Circuit Judge:
INTRODUCTION ...............................................................7
BACKGROUND .................................................................9
I. Factual Background ...............................................9
A. Crackdown Against Falun Gong .......................9
B. Cisco’s Contributions to the Golden Shield ....11
C. Consequences for Falun Gong Adherents .......14
II. Procedural History ...............................................16
DISCUSSION ....................................................................17
I. The Alien Tort Statute .........................................18
A. Background .....................................................18
B. Application ......................................................22
1. Aiding and Abetting Liability under the ATS
....................................................................23
a. Sosa’s First Step.....................................25
b. Sosa’s Second Step ................................28
2. Aiding and Abetting Standard and Pleadings
....................................................................39
a. Actus reus ...............................................40
(i) Standard .............................................40
(ii) Application to Corporate Defendant
Cisco ..........................................................45
b. Mens rea.................................................49
(i) Standard .............................................49
DOE I V. CISCO SYSTEMS, INC. 7
(ii) Application to Corporate Defendant
Cisco ..........................................................59
3. Extraterritoriality ........................................63
a. Background ............................................64
b. Application.............................................66
(i) Corporate Defendant Cisco ................66
(ii) Defendants Chambers and Cheung ...70
4. State Action ................................................71
II. The Torture Victim Protection Act of 1991 .........74
A. Aiding and Abetting Liability .........................74
B. Application ......................................................80
1. Actus Reus...................................................81
2. Mens Rea ....................................................82
CONCLUSION ..................................................................83
INTRODUCTION
Plaintiff-Appellants are practitioners of Falun Gong, a
religion originating in China in the 1990s. They allege that
they or family members are victims of human rights abuses
committed by the Chinese Communist Party and Chinese
government officials. The alleged abuses, Plaintiffs contend,
were enabled by the technological assistance of Defendants,
U.S. corporation Cisco Systems, Inc., and two Cisco
executives, John Chambers and Fredy Cheung (collectively,
“Cisco,” except where otherwise noted).
Plaintiffs initiated this lawsuit more than a decade ago,
alleging that Cisco aided and abetted or conspired with
Chinese officials in violation of the Alien Tort Statute
8 DOE I V. CISCO SYSTEMS, INC.
(“ATS”), 28 U.S.C. § 1350, the Torture Victim Protection
Act of 1991 (“TVPA”), 28 U.S.C. § 1350 note, and other
federal and state laws. Specifically, Plaintiffs contend that
Cisco, operating largely from its corporate headquarters in
California, “designed, implemented and helped to maintain
a surveillance and internal security network” for Chinese
officials, greatly enhancing their capacity to identify Falun
Gong practitioners and ensnare them in a system of physical
and mental torture, forced labor, and prolonged and arbitrary
detention.
The district court dismissed Plaintiffs’ claims under the
ATS, ruling that Plaintiffs did not allege conduct sufficient
to satisfy the standard for aiding and abetting liability under
international customary law or to overcome the presumption
against the extraterritorial application of the ATS. The
district court also dismissed Plaintiff Charles Lee’s TVPA
claim against Chambers and Cheung on the ground the
statute does not provide for accomplice liability.
We once again recognize aiding and abetting liability
under the ATS, see, e.g., Doe I v. Nestle USA, Inc. (“Nestle
I”), 766 F.3d 1013, 1023 (9th Cir. 2014), and hold Plaintiffs’
allegations against corporate defendant Cisco sufficient to
meet the applicable aiding and abetting standard. We also
conclude that this case involves a permissible domestic
application of the ATS against corporate defendant Cisco,
because much of the corporation’s alleged conduct
constituting aiding and abetting occurred in the United
States. Finally, we reverse the district court’s dismissal of
the claim under the TVPA against Chambers and Cheung, as
the TVPA does provide a private right of action against those
who aid and abet torture, and the allegations against
Chambers and Cheung are sufficient to meet the aiding and
abetting standard.
DOE I V. CISCO SYSTEMS, INC. 9
BACKGROUND
I. Factual Background
For the purposes of this appeal from the granting of a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), we accept as true the allegations of Plaintiffs’
Second Amended Complaint. Ashcroft v. Al-Kidd, 563 U.S.
731, 734 (2011).
As alleged in the complaint:
A. Crackdown Against Falun Gong
The Chinese Communist Party (“the Party”) was
founded in 1921, well before the People’s Republic of China
was established in 1949 at the end of the Chinese Civil War.
Within a decade of its founding, the Party began periodically
to launch violent political crackdowns, known as douzheng
campaigns, against groups designated by the Party as
enemies. 1 Groups that have been targeted by douzheng
campaigns include Tibetan Buddhist Dalai Lama supporters,
pro-democracy advocates, and reformist intellectuals.
During douzheng campaigns, targets are subjected to
numerous human rights abuses, including forced ideological
conversion, beatings, and other forms of torture, detention in
non-state facilities, and assignment to “re-education through
labor” camps. Although the Chinese government does not
officially sanction these campaigns and the Party is distinct
organizationally and operationally from the Chinese state,
state officials are involved in the douzheng campaigns.
In the early 1990s, the Falun Gong religious movement
began in China. The religion is based on the tenets of
1
Plaintiffs translate douzheng as “violent struggle.”
10 DOE I V. CISCO SYSTEMS, INC.
truthfulness, compassion, and tolerance, and espouses
absolute nonviolence. The Falun Gong movement grew
quickly in popularity. By 1999, an estimated 70 to 100
million people in all regions of China practiced Falun Gong.
As the number of Falun Gong practitioners grew, the
Party became concerned about their activities. Party
Chairman and Chinese President Jiang Zemin ordered
Chinese state law enforcement—called “Public Security”—
to investigate and find grounds for a ban against the practice
of Falun Gong. 2 In 1999, the Party officially called for a
douzheng campaign against Falun Gong, with the goal of
convincing adherents to renounce their beliefs or otherwise
suppressing the practice. To facilitate the douzheng, the
Party created Office 610, a subdivision specifically devoted
to persecuting Falun Gong practitioners. The Chinese state
designated Falun Gong organizations as illegal in 1999.
To monitor Falun Gong internet activity and identify
individual practitioners based on that activity, the Party and
Public Security envisioned an online tool that became known
as the “Golden Shield.” The Golden Shield was to comprise
a “vast and multi-tiered surveillance system of a scale and
capacity that could surveil the entire country’s Internet use
2
The complaint does not define “Public Security.” We understand the
term to refer to law enforcement officers managed by the Chinese
Ministry of Public Security, “an organization under the State Council in
charge of the country’s public security.” The State Council, The People’s
Republic of China, Ministry of Public Security,
http://english.www.gov.cn/state_council/2014/09/09/content_28147498
6284154.htm (last visited Nov. 28, 2022); see also Suzanne E. Scoggins,
Policing Modern China, 3 China L. & Soc’y Rev. 79, 82 (2018)
(describing “China’s Public Security Bureau” as “the institution that
encompasses the heterogeneous forces and missions of the Chinese
police”).
DOE I V. CISCO SYSTEMS, INC. 11
for all Falun Gong believers.” To develop such a system,
capable of obtaining and organizing all the information
about Falun Gong activities and adherents Chinese
authorities desired—for example, the “home and work
addresses, purchases, financial information, contact with
other Falun Gong members, past Falun Gong activities, IP
addresses, and family information” of Falun Gong
adherents—the Party and Public Security required
technology not available in China at the time. As a result, the
Party and Chinese security officials together “sought the
assistance of Western technology companies, including
Cisco.”
B. Cisco’s Contributions to the Golden Shield
Cisco is a multinational corporation based in San Jose,
California, with branch offices throughout the world,
including in the Asia-Pacific region. Cisco conducted an
extensive “marketing campaign,” “directed from Cisco’s
headquarters in San Jose, California, in communication with
Cisco subsidiaries in China,” with the goal of obtaining
contracts for the design and development of the Golden
Shield. Defendant John Chambers, Cisco chief executive
officer at all times relevant to the allegations, met with
President and Party Chair Jiang Zemin and other Party
officials repeatedly, beginning as early as 1998, to discuss
the “objectives of the Golden Shield apparatus” and to
explain “how Cisco could help Jiang control the Internet
through advanced information security networks and
technology.” Cisco also participated in trade shows in
Beijing in the early 2000s, at which it offered brochures
marketing its services as useful to the “douzheng” of Falun
Gong.
12 DOE I V. CISCO SYSTEMS, INC.
In 2001, Public Security selected Cisco to “submit the
high-level design” for a national public security network.
Cisco ultimately won several contracts “to design and
implement many Golden Shield components,” several of
which were “first-of-their-kind features . . . developed
specifically to aid Chinese security officers in the detection,
apprehension and interrogation of Falun Gong”
practitioners. Cisco’s technological assistance had several
facets, including “high-level [network] design”; customized
“software product[s]”; the provision of “integrated hardware
and software systems, i.e., ‘solutions,’ designed for specific
purposes”; and ongoing maintenance, testing, and training.
Cisco “manufactured key components of the Golden Shield
in the United States, such as Integrated circuit chips that
function in the same manner as the Central Processing Unit
of a computer.”
More specifically, “Cisco’s design and implementation
of the Golden Shield, under the direction and control of
Defendants in San Jose, occurred in at least two phases.” In
the first phase, “Cisco provided high-level design for and
implementation of the Golden Shield database-driven
surveillance system that could be accessed digitally by
national, provincial and major municipal security across
China.” This system included a “library of ‘signatures,’ i.e.,
carefully analyzed patterns of Falun Gong Internet activity
to enable the intelligent identification of individual Falun
Gong Internet users,” “real time monitoring” of “Falun Gong
Internet traffic patterns and behaviors,” and widespread
integration of Falun Gong databases “with Cisco security
software systems not only to enable the identification and
tracking of Falun Gong, but also and specifically to give
Chinese security [officers] access to the sensitive
DOE I V. CISCO SYSTEMS, INC. 13
information to facilitate the zhuanhua (forced conversion
through torture) of Falun Gong believers.”
In phase two, “Cisco engineers in San Jose” “carefully
analyzed” the Golden Shield system with the goal of making
it “more efficient” and increasing its “scope.” One upgrade
was the addition of “Ironport,” which included a tool
“marketed by Cisco as able to identify Falun Gong online
email communication . . . to facilitate the identification and
apprehension of Falun Gong believers who typically sent
and forwarded pictorial Falun Gong images to others in
China.” Cisco “actively help[ed] Chinese security forces
build a nationwide, networked video surveillance system.”
This system “has been a primary means” of identifying
Falun Gong practitioners through non-internet activities,
such as protests or religious practice.
The resulting surveillance system contains nationally
accessible databases of information on the families,
locations, contacts, and other sensitive personal data of
suspected and known Falun Gong practitioners. The system
includes “constantly updated ‘lifetime’ information
profile[s]” of practitioners, combining data from their
“initial identification” and subsequent “interrogation[s]” and
“treatment[s],” all logged into centralized and accessible
databases. Cisco employees in San Jose “approved,”
“enacted,” and “orchestrated” the “construction, testing,
verification, optimization, and servicing” of Cisco’s “design
solutions and security features” for the Golden Shield.
In addition to the provision of technology, Cisco
engineers, “operational specialists,” and “high-level
executives” in San Jose provided “long-term customer
support,” including “network maintenance,” testing, and
training. For example, “Cisco intentionally incorporated the
14 DOE I V. CISCO SYSTEMS, INC.
Falun Gong-specific signatures into security software
upgrades at regular intervals to ensure Falun Gong activities
and individuals were identified, blocked, tracked and
suppressed.” Cisco also “provided ‘skill training’ and
‘technical training’ to Public Security officers” and “Office
610 security agents” “to enable them to use the customized
technologies to suppress Falun Gong.” 3
C. Consequences for Falun Gong Adherents
Plaintiffs allege that the douzheng of Falun Gong, which
has largely depended on Golden Shield technology and
Cisco’s specific contributions to it, has devastated Falun
Gong throughout China. Since the 1990s, the torture
routinely used against such practitioners in forced
conversion sessions and interrogations has been well
documented by the United States Government, international
human rights organizations, media outlets in the United
States, and the UN Special Rapporteur. The U.S. Department
of State estimates that hundreds of thousands of Falun Gong
adherents have been persecuted, including through torture
and detention in psychiatric facilities and labor camps. The
Department has estimated that a significant percentage, and
3
Some of the marketing and implementation of Cisco’s technical
assistance to the Party and Chinese security was carried out by Cisco
China. Cisco created Cisco China in 1998 in part to comply with the
requirements of the Party and Chinese Government for international
corporations operating within China. Plaintiffs allege that Cisco China is
an alter ego or a “mere proxy” of the parent corporation with no “clear
corporate demarcation.” During the marketing, design, and
implementation of Cisco’s projects with the Party and Chinese security,
Plaintiffs allege, Cisco in San Jose oversaw all operations of Cisco
China, and the two entities shared a management structure and chain of
command, which required Cisco China to report to executives in San
Jose and left major decisions to be made by those executives.
DOE I V. CISCO SYSTEMS, INC. 15
in many cases the majority, of those confined to labor camps
are Falun Gong practitioners. The New York Times estimated
in 2009 that at least two thousand Falun Gong practitioners
had been tortured to death.
Plaintiffs are thirteen Chinese nationals and a U.S.
citizen, all identified through Golden Shield technology as
participants in Falun Gong-related online activities and all
apprehended, detained, and subjected in China to forced
conversion, among other abuses. Two plaintiffs represent
family members, Doe VII and Doe VIII, after Doe VII’s
disappearance and suspected death following the forced
administration of medicine and Doe VIII’s confirmed death
by beating while detained. Some of the plaintiffs allege that
they were detained several times, for years or months at a
time, and were subjected to surveillance between detentions.
The physical torture the plaintiffs endured in detention and
while imprisoned in forced labor camps included beatings
with steel rods and shocking with electric batons, sleep
deprivation, being forced to sit or stand for prolonged
periods of time in painful positions, and violent force-
feeding. Plaintiffs report lasting emotional and physical
injury caused by this abusive treatment.
Many plaintiffs allege that information collected and
stored by Golden Shield technology was used during the
forced conversion sessions to which they were subjected.
One plaintiff, for example, alleges that during his detention
and torture, Chinese authorities used information about his
family and wife to attempt to coerce him to renounce his
beliefs. Another alleges authorities used private emails and
text messages, information about and threats against his
brother, and threats to his brother’s employment, all based
on information obtained through Golden Shield surveillance,
in torture sessions. Plaintiff Wang Weiyu, detained on
16 DOE I V. CISCO SYSTEMS, INC.
several occasions and subjected to prolonged isolation and
physical torture, alleges that information about his wife and
threats against her safety were used against him by Chinese
authorities during forced conversion sessions, and that the
information used was obtained through Golden Shield
surveillance.
II. Procedural History
Plaintiffs filed this putative class action in 2011. The
Second Amended Complaint names as defendants Cisco;
two individual defendants, John Chambers and Fredy
Cheung; and 100 unnamed Does whose capacity and identity
were unknown at the time of filing. Chambers was Cisco’s
chief executive officer and Cheung was the vice president of
Cisco China when the alleged violations occurred.
Chinese national plaintiffs brought suit under the ATS
against Cisco for aiding and abetting or, alternatively,
entering into a conspiracy with Party officials and the
Chinese government to commit violations of seven aspects
of international law. The alleged violations include torture;
cruel, inhuman, or degrading treatment; forced labor;
prolonged and arbitrary detention; crimes against humanity;
extrajudicial killing; and forced disappearance.
Additionally, U.S. citizen plaintiff Charles Lee alleged
torture in violation of the TVPA against Chambers and
Cheung.
The district court stayed the action while Kiobel v. Dutch
Petroleum Co., 569 U.S. 108 (2013), was pending before the
Supreme Court. Kiobel held that the ATS does not apply
extraterritorially. Id. at 124. After Kiobel was decided, Cisco
moved to dismiss the complaint. In 2014, the district court
granted the motion to dismiss. The court held that Plaintiffs
failed to plead a sufficient connection between the alleged
DOE I V. CISCO SYSTEMS, INC. 17
violations and the territory of the United States to permit the
domestic application of the ATS. The court also held that the
complaint did not adequately allege a claim for aiding and
abetting liability under international law. Specifically, the
complaint, according to the district court, did not show a
“substantial effect on the perpetration of alleged violations
against Plaintiffs” or demonstrate that Cisco knew its actions
would contribute to violations of international law.
After we concluded in Nestle I, 766 F.3d 1013, that the
allegations in that case—which concerned U.S.
corporations’ involvement in violations of international law
that occurred abroad—were sufficient to satisfy the mens rea
of an aiding and abetting claim under the ATS, id. at 1026,
Plaintiffs in this case filed a motion for reconsideration,
which the district court denied. This appeal followed. We
stayed this case pending the Supreme Court’s decisions in
Jesner v. Arab Bank, PLC, 138 S. Ct 1386 (2018), and Nestle
USA, Inc. v. Doe (“Nestle II”), 141 S. Ct. 1931 (2021), cases
whose relevance we explain later in this opinion.
DISCUSSION
Plaintiffs appeal the district court’s dismissal of seven
claims under the ATS and its dismissal of Plaintiff Charles
Lee’s TVPA claim against Chambers and Cheung. This
court reviews de novo a district court’s dismissal pursuant to
Federal Rule of Civil Procedure 12(b)(6). See, e.g., Edwards
v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004). To
survive a motion to dismiss, a plaintiff must allege “enough
facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although a reviewing court must accept a complaint’s
factual allegations as true, the same is not true of legal
conclusions, and “[t]hreadbare recitals of the elements of a
18 DOE I V. CISCO SYSTEMS, INC.
cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
I. The Alien Tort Statute
A. Background
The ATS provides in full: “The district courts shall have
original jurisdiction of 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.” 28 U.S.C. § 1350. Before the
ratification of the Constitution and the passage of the
Judiciary Act of 1789 to implement its provisions, several
international scandals had resulted from the “inability to
provide judicial relief to foreign officials injured in the
United States.” Kiobel, 569 U.S. at 123; see also Jesner, 138
S. Ct. at 1396–97 (majority op.). 4 Noting the problems
caused by the lack of a forum in which aggrieved
foreigners—in particular, ambassadors—could find an
appropriate remedy, the Supreme Court in Jesner concluded
that the First Congress of the United States enacted the ATS
as part of the Judiciary Act of 1789 to “promote harmony in
international relations by ensuring foreign plaintiffs a
remedy for international-law violations in circumstances
where the absence of such a remedy might provoke foreign
nations to hold the United States accountable.” 138 S. Ct. at
1396–97, 1406 (majority op.); see also Kiobel, 569 U.S. at
123.
The precise contours of the ATS remained largely
undefined for nearly two hundred years. See Kiobel, 569
4
Some sections of the main opinion in Jesner represent the opinion of
the Court, and others are signed only by three justices. 138 S. Ct. at 1393.
We refer to the opinion of the Court as the “majority opinion” and to the
other sections as the “plurality opinion.”
DOE I V. CISCO SYSTEMS, INC. 19
U.S. at 114. Beginning with the seminal case of Filartiga v.
Pena-Irala, 630 F.2d 876 (2d Cir. 1980), the ATS gained
new relevance and, more recently, definition. See Sosa v.
Alvarez-Machain, 542 U.S. 692, 725 (2004). Two
developments in the fleshing out of the ATS are of particular
relevance to this case.
First, in Sosa, the Supreme Court delineated a “high bar”
for recognition of new causes of action under the ATS. Id. at
728; see also Jesner, 138 S. Ct. at 1398, 1402 (majority op.).
Noting that the ATS is “only jurisdictional” and does not
itself provide a cause of action, the Court held that the ATS
“enable[s] federal courts to hear claims in a very limited
category defined by the law of nations and recognized at
common law.” Sosa, 542 U.S. at 712. At the time the ATS
was enacted, the common law recognized only three such
causes of action: “violation of safe conducts, infringement
of the rights of ambassadors, and piracy.” Id. at 715 (citing
4 William Blackstone, Commentaries *68). Sosa concluded
that under the ATS only claims that “rest on a norm of
international character accepted by the civilized world and
defined with a specificity comparable to” those causes of
action may be recognized today. Id. at 725. Sosa additionally
instructed that courts are to consider foreign policy
consequences and separation-of-power concerns before
recognizing a cause of action or allowing a particular case to
proceed. Id. at 728, 732–33; see also Jesner, 138 S. Ct. at
1399 (plurality op.). These requirements have been
interpreted as prescribing a two-part test for determining
20 DOE I V. CISCO SYSTEMS, INC.
whether a new cause of action may be recognized under the
ATS. See Jesner, 138 S. Ct. at 1399 (plurality op.). 5
We note that the Supreme Court has divided several
times as to whether any new international law causes of
action should be recognized under the ATS, beyond the three
that existed in 1789. Most recently, in Nestle II, three
Justices opined that federal courts should not recognize new
causes of action “beyond the three historical torts identified
in Sosa.” 141 S. Ct. at 1939 (plurality op.); 6 see also Jesner,
138 S. Ct. at 1408 (Alito, J., concurring in part and
concurring in the judgment), 1408 (Thomas, J., concurring),
1412–14 (Gorsuch, J., concurring in part and concurring in
the judgment); Sosa, 542 U.S. at 739 (Scalia, J., with
Rehnquist and Thomas, JJ., concurring in part and
concurring in the judgment). But the view that no new causes
of action may be judicially recognized has never gained the
support of a majority of the Court. As a result, the standard
for recognizing new ATS causes of action remains the two-
part test recognized in Sosa, which is strict but not
insuperable.
5
Jesner’s distillation of the Sosa two-part test appears in a section of the
Jesner plurality opinion, but six justices have since cited that plurality
opinion as describing the Sosa test. See Nestle II, 141 S. Ct. at 1938
(opinion of Thomas, J., with Gorsuch and Kavanaugh, JJ.); id. at 1945
(Sotomayor, J., with Breyer and Kagan, JJ., concurring in part and
concurring in the judgment). We therefore rely on the Jesner plurality’s
description of the Sosa requirements.
6
Two parts of the main opinion in Nestle II represent the opinion of the
Court, and a third part is signed only by three justices. 141 S. Ct. at 1934.
We refer to the opinion of the Court as the “majority opinion” and to the
other part as the “plurality opinion.”
DOE I V. CISCO SYSTEMS, INC. 21
Second, Kiobel applied the general presumption against
the extraterritorial application of U.S. statutes to the ATS
and concluded that nothing in the ATS rebutted the
presumption. 569 U.S. at 124. Accordingly, the ATS
“applies only domestically,” and plaintiffs bringing an ATS
claim “must establish that ‘the conduct relevant to the
statute’s focus occurred in the United States.’” Nestle II, 141
S. Ct. at 1936 (majority op.) (quoting RJR Nabisco, Inc. v.
Eur. Cmty., 579 U.S. 325, 337 (2016)).
After Sosa, Jesner, and Kiobel, then, a foreign plaintiff
may bring suit in federal court under the ATS for a tort
committed in violation of the law of nations only if (1) the
tort passes Sosa’s two-part test regarding the definition and
specificity of the action and the practical and foreign policy
implications of its recognition and (2) the conduct relevant
to the statute’s focus occurred in the United States.
Here, the ATS Plaintiffs are Chinese nationals suing for
international human rights violations including torture;
forced labor; prolonged arbitrary detention; extrajudicial
killing; disappearance; cruel, inhuman, or degrading
treatment; and crimes against humanity. Plaintiffs do not
contend that Cisco directly committed any of the alleged
violations, but rather that it aided and abetted or entered into
a conspiracy or joint criminal enterprise with the Chinese
Communist Party and Public Security officers to perpetrate
the torts. Thus, the suit may proceed under the ATS only so
long as the international law violations Plaintiffs allege,
including aiding and abetting, meet Sosa’s two-part test, and
conduct with regard to the violations that meet that test
occurred in the United States.
22 DOE I V. CISCO SYSTEMS, INC.
B. Application
With that background, we turn to the particular
arguments Cisco makes as to why it has no ATS liability.
Corporate defendant Cisco initially argued for a generic
limitation on ATS liability—that corporations may not be
held liable under the ATS. Any such broad limitation,
however, was laid to rest by the Supreme Court in Nestle II.
Although there was no majority opinion so holding, five
Justices in Nestle II concluded that domestic corporations are
appropriate defendants under the statute. 141 S. Ct. at 1941–
42 (Gorsuch, J., concurring, joined by Alito, J.), 1947 n.4
(Sotomayor, J., concurring in part and concurring in the
judgment, joined by Breyer & Kagan, JJ.). Given that
majority holding, we conclude that U.S. corporations may be
sued for claims brought under the ATS.
Cisco’s additional arguments as to why the ATS is
inapplicable here require more extensive discussion.
First, Cisco maintains that the ATS does not recognize
aiding and abetting, conspiracy, or joint criminal enterprise
liability at all, and that even if such liability exists, Plaintiffs
have not alleged conduct meeting the aiding and abetting
actus reus or mens rea. Second, Cisco argues that the acts
alleged here do not sufficiently touch and concern the United
States, as required by Kiobel and Nestle II, to permit
domestic application of the ATS. Third, Cisco posits that
Plaintiffs have failed to allege state action as required under
customary international law. We will consider each
argument in turn.
One note before proceeding: The district court dismissed
the case because, it concluded, Plaintiffs did not meet the
aiding and abetting liability standard and Cisco’s alleged
actions did not sufficiently touch and concern the United
DOE I V. CISCO SYSTEMS, INC. 23
States. The district court did not consider whether the ATS
provides an underlying cause of action for the violations of
international law that Cisco is alleged to have aided and
abetted, namely, (1) torture, (2) prolonged arbitrary
detention, (3) disappearance, (4) extrajudicial killing, (5)
forced labor, (6) cruel, indecent, or degrading treatment, and
(7) crimes against humanity. Cisco has not in this court
contested the availability of a cause of action as to the first
four violations, if committed directly. 7 Given that at least the
accomplice liability for the uncontested causes of action
survives the motion to dismiss if the other challenges raised
on appeal fail, we proceed as if the additional causes of
action also may lie and leave it to the district court on remand
to consider in the first instance the viability of the
substantive claims under the ATS to the degree that viability
is contested.
1. Aiding and Abetting Liability under the ATS
Our Circuit has acknowledged several times the
availability of aiding and abetting liability under the ATS. 8
7
We have previously recognized that the prohibition against state torture
has attained jus cogens status—the highest and most universal norm of
international law. See Siderman de Blake v. Republic of Argentina, 965
F.2d 699, 715–17 (9th Cir. 1992), cert. denied, 507 U.S. 1017 (1993);
U.S. v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995). Before
Sosa, we recognized the availability of state torture claims under the
ATS. See Hilao v. Est. of Marcos, 103 F.3d 767, 771 (9th Cir. 1996); In
re Est. of Ferdinand E. Marcos Hum. Rts. Litig., 978 F.2d 493, 499 (9th
Cir. 1992).
8
A Ninth Circuit panel first held aiding and abetting claims actionable
under the ATS in Doe v. Unocal Corp. 395 F.3d 932, 947–51 (9th Cir.
2002). The Ninth Circuit ordered the case to be reheard by the en banc
court, see 395 F.3d 978 (9th Cir. 2003), but later granted the parties’
24 DOE I V. CISCO SYSTEMS, INC.
See Nestle I, 766 F.3d at 1023; 9 Sarei v. Rio Tinto, 671 F.3d
736, 749, 765 (9th Cir. 2011) (en banc), vacated, Rio Tinto
PLC v. Sarei, 569 U.S. 945 (2013). 10 We now revisit the
question and conclude again, in agreement with every circuit
to have considered the issue, that aiding and abetting liability
is a norm of customary international law with sufficient
definition and universality to establish liability under the
ATS. Because recognizing aiding and abetting liability does
not raise separation-of-powers or foreign policy concerns
under Sosa step two, we further decide, such liability is
cognizable for the purposes of the ATS.
As noted, Sosa and Jesner caution federal courts to adopt
a “restrained conception” of our discretion to recognize new
causes of action under the ATS. Sosa, 542 U.S. at 725; see
Jesner, 138 S. Ct. at 1402 (majority op.). Although “the door
is still ajar” to such actions, the ATS is “subject to vigilant
doorkeeping, and thus open to a narrow class of international
stipulated motion to vacate the district court opinion and dismiss the
case, see 403 F.3d 708 (9th Cir. 2005).
9
A later iteration of Nestle I was reversed by the Supreme Court on the
ground that the plaintiffs failed to allege sufficient domestic action to
overcome the presumption against extraterritoriality. Nestle II, 141 S. Ct.
at 1937. The Supreme Court did not decide whether aiding and abetting
liability was available under the ATS, id. at 1936, so Nestle I’s holding
on that point arguably remains intact, see KDM ex rel. WJM v. Reedsport
Sch. Dist., 196 F.3d 1046, 1052 n.4 (9th Cir. 1999). In light of
intervening Supreme Court precedent interpreting the ATS, however, we
do not stand on Nestle I but instead conduct a new analysis as to the
availability of aiding and abetting liability under the ATS.
10
The Supreme Court vacated Sarei and remanded for further
consideration in light of Kiobel. See 569 U.S. 945 (2013). “Vacated
opinions remain persuasive, although not binding, authority.” Spears v.
Stewart, 283 F.3d 992, 1017 n.16 (9th Cir. 2002).
DOE I V. CISCO SYSTEMS, INC. 25
norms today.” Sosa, 542 U.S. at 729. Again, any new cause
of action must meet the two-part test elaborated by Sosa and
reiterated in Jesner: First, the international norms must be
“specific, universal, and obligatory.” Jesner, 138 S. Ct. at
1399 (plurality op.) (quoting Sosa, 542 U.S. at 732). Second,
a court must determine “whether allowing [a] case to
proceed under the ATS is a proper exercise of judicial
discretion.” Id. (plurality op.). The two prongs of the Sosa
test are interrelated and “not altogether discrete.” Id.
(plurality op.).
Questions as to the scope of liability under the ATS,
including accomplice liability, are determined under
international law and so are subject to Sosa’s two-part test.
Sosa directed courts to international law to determine “the
scope of liability for a violation of a given norm.” 542 U.S.
at 732 n.20; see also Khulumani v. Barclay Nat. Bank Ltd.,
504 F.3d 254, 268–69 (2d Cir. 2007) (Katzmann, J.,
concurring) (looking to the law of nations to determine the
standard for aiding and abetting claims under the ATS). We
thus analyze whether, and what form of, accomplice liability
is available under the ATS by considering whether
international law specifically and universally provides for
aiding and abetting liability. We then look to whether any
practical or foreign policy considerations caution against
recognizing this form of liability, generally or in this case in
particular.
a. Sosa’s First Step
To evaluate the contours of an international law norm,
Sosa instructs courts to look to “those sources we have long,
albeit cautiously, recognized,” which include “the customs
and usages of civilized nations; and, as evidence of these, . . .
the works of [qualified] jurists and commentators.” 542 U.S.
26 DOE I V. CISCO SYSTEMS, INC.
at 733–34 (quoting The Paquete Habana, 175 U.S. 677, 700
(1900)). Article 38(I) of the Statute of the International Court
of Justice (“ICJ”), annexed to the Charter of the United
Nations, similarly outlines the following authoritative
sources of international law: “international conventions,
whether general or particular, establishing rules expressly
recognized by the contesting states,” “international custom,
as evidence of a general practice accepted as law,” “the
general principles of law recognized by civilized nations,”
and “judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.” Statute of the
International Court of Justice, art. 38, ¶ 1; see also
Restatement (Third) of Foreign Relations Law § 102 (Am.
L. Inst. 1987). We accordingly proceed to survey the types
of international law sources identified by Sosa and Article
38(I), as applicable to aiding and abetting liability. The
available sources establish that customary international law
recognizes aiding and abetting liability as a specific and
universal form of liability, satisfying the first prong of the
Sosa two-part test.
In Khulumani, the Second Circuit determined that aiding
and abetting liability is cognizable under the ATS, but the
judges differed as to their reasoning. 504 F.3d at 260 (per
curiam). Judge Katzmann, concurring, comprehensively
reviewed criminal trials in the seminal tribunals of
Nuremberg and the U.S. occupation zone after World War
II, a plethora of treaties and conventions, actions of the U.N.
Security Council, the decisions of two modern international
tribunals—the International Criminal Tribunal for
Yugoslavia (“the Yugoslavia Tribunal”) and the
International Criminal Tribunal for Rwanda (“the Rwanda
Tribunal”)—and the Rome Statute of the International
DOE I V. CISCO SYSTEMS, INC. 27
Criminal Court (“Rome Statute”), July 17, 1998, 37 I.L.M.
999 (1998), all of which recognize some form of accomplice
liability for violations of international law. Id. at 270–77.
Based on those sources, Judge Katzmann concluded that
aiding and abetting liability was sufficiently well defined
and universally recognized to be cognizable under the ATS.
Id. at 277. The Second Circuit later adopted Judge
Katzmann’s reasoning, in Presbyterian Church of Sudan v.
Talisman Energy, Inc., 582 F.3d 244, 258 (2d Cir. 2009).
Since Khulumani, the Second, Fourth, and Eleventh
Circuits have all held that aiding and abetting liability claims
may proceed under the ATS. See Talisman, 582 F.3d at 258;
Aziz v. Alcolac, Inc., 658 F.3d 388, 396 (4th Cir. 2011);
Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir.
2008) (citing Cabello v. Fernandez-Larios, 402 F.3d 1148,
1157–58 (11th Cir. 2005)); cf. Doe v. Exxon Mobil Corp.
(“Doe v. Exxon”), 654 F.3d 11, 32 (D.C. Cir. 2011), vacated
on other grounds, 527 Fed. Appx. 7 (D.C. Cir. 2013). 11 No
circuit to consider the issue has held otherwise.
In light of this domestic consensus, our Court’s prior
holdings, and the universality of aiding and abetting liability
under international law as demonstrated by Judge
Katzmann’s analysis in Khulumani, we again conclude that
11
The D.C. Circuit recognized aiding and abetting liability under the
ATS and adopted the substantial assistance actus reus and knowledge
mens rea in Doe v. Exxon, 654 F.3d at 39. The judgment was later
vacated and the ATS claims were remanded to the district court for
additional consideration after the Supreme Court decided Kiobel, 569
U.S. 108, and after the International Criminal Tribunal for Yugoslavia
(“the Yugoslavia Tribunal”) decided Prosecutor v. Perisic, Case No. IT-
04-81-A, Judgment (Yugoslavia Tribunal Feb. 28, 2013). Doe v. Exxon
Mobil Corp., 527 Fed. App’x 7 (D.C. Cir. 2013). The D.C. Circuit has
not since revisited accomplice liability under the ATS.
28 DOE I V. CISCO SYSTEMS, INC.
aiding and abetting liability is sufficiently definite and
universal to be a viable form of liability under the ATS.
b. Sosa’s Second Step
Even where a norm of international law is sufficiently
definite and universal to meet Sosa’s first requirement, “it
must be determined further whether allowing [a] case to
proceed under the ATS is a proper exercise of judicial
discretion, or instead whether caution requires the political
branches to grant specific authority before [a new form of
liability] can be imposed.” Jesner, 138 S. Ct. at 1399
(plurality op.). Sosa and Jesner together describe the
contours of the second step of this analysis, which includes
two broad categories of inquiry: foreign policy
consequences and deference to Congress.
First, federal courts must consider the foreign policy
implications and general “practical consequences of making
[a] cause available to litigants in federal courts.” Sosa, 542
U.S. at 732–33. Of gravest concern in Sosa was the risk of
U.S. courts interfering with the sovereign actions of another
government:
It is one thing for American courts to enforce
constitutional limits on our own State and
Federal Governments’ power, but quite
another to consider suits under rules that
would go so far as to claim a limit on the
power of foreign governments over their own
citizens, and to hold that a foreign
DOE I V. CISCO SYSTEMS, INC. 29
government or its agent has transgressed
those limits.
Id. at 727 (citing Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398, 431–32 (1964)) (concerning the act of state
doctrine). To address that concern, a federal court must
consider whether recognizing a cause of action under the
ATS serves the original purposes of the Act, to “promote
harmony in international relations by ensuring foreign
plaintiffs a remedy for international-law violations in
circumstances where the absence of such a remedy might
provoke foreign nations to hold the United States
accountable.” Jesner, 138 S. Ct. at 1397, 1406 (majority
op.).
Additionally, because of the international comity and
foreign policy concerns inherent in enforcing international
law norms in U.S. courts, Sosa suggests that in certain “case-
specific” instances, federal courts have good reason to defer
to the views of the Executive Branch as to whether a given
case should proceed, although Sosa itself did not present
such concerns. 542 U.S. at 733 n.21. Discussing In re South
African Apartheid Litigation, 238 F. Supp. 2d 1379 (JPML
2002), in which the U.S. State Department submitted written
objections to the suit, Sosa noted that an objection by the
State Department to a particular claim under the ATS would
present a “strong argument” to defer to “the Executive
Branch’s view of the case’s impact on foreign policy.” 542
U.S. at 733 n.21.
Jesner held that practical consequences precluded
recognition of a cause of action in that case. Pointing to
“significant diplomatic tensions” caused by the suit, the
Court determined that foreign corporations cannot be liable
under the ATS and that diplomatic tensions counseled
30 DOE I V. CISCO SYSTEMS, INC.
against allowing the particular case to proceed. 138 S. Ct. at
1406–07 (majority op.). The Court in Jesner noted, first, that
the Hashemite Kingdom of Jordan had filed an amicus brief
objecting that the litigation against Arab Bank was “a ‘grave
affront’ to its sovereignty” and that the suit would
“threaten[] to destabilize Jordan’s economy.” Id. at 1407
(majority op.). The Court also referenced the U.S. State
Department’s amicus brief describing Jordan as “a key
counterterrorism partner, especially in the global campaign
to defeat the Islamic State in Iraq and Syria,” and discussing
the “significant diplomatic tension” the lawsuit had caused
in its initial thirteen years. Id. at 1406 (majority op.).
Ultimately, the foreign relations tensions the case
engendered—“the very foreign relations tensions the First
Congress sought to avoid”—cautioned against holding that
foreign corporations could be defendants in suits brought
under the ATS. Id. at 1406–07 (majority op.). After Sosa and
Jesner, then, courts must carefully consider whether
allowing a cause of action to proceed will cause or has
already caused diplomatic tension, as indicated by the
statements of foreign countries and the U.S. government.
Second, federal courts must consider whether “there are
sound reasons to think Congress might doubt the efficacy or
necessity of a . . . remedy” before recognizing a new cause
of action. Jesner, 138 S. Ct. at 1402 (majority op.) (quoting
Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)). Sosa
instructed federal courts to use restraint in recognizing new
causes of actions in part for this separation-of-powers
reason. 542 U.S. at 728. The Court in Sosa recognized that
the absence of a congressional mandate to allow new causes
of action under the ATS and the lack of legislation “to
promote such suits”—with the exception of the TVPA—
provide strong reason to be “wary of impinging on the
DOE I V. CISCO SYSTEMS, INC. 31
discretion of the Legislative and Executive Branches in
managing foreign affairs.” Id. at 727–28. Exercising this
caution, Jesner concluded that “absent further action from
Congress it would be inappropriate for courts to extend ATS
liability to foreign corporations.” 138 S. Ct. at 1403
(majority op.).
Considering the potential impact of this case in these two
arenas—identifiable foreign relations concerns and
deference to Congress—we see no prudential reason to
decline to recognize aiding or abetting liability or to bar this
particular action from proceeding.
First, recognizing aiding and abetting liability does not
trigger Sosa’s principal foreign policy concern—that ATS
claims could impose liability on sovereign nations for
behavior with respect to their own citizens. 542 U.S. at 727.
Rather, accomplice liability, historically and as shown here,
is much more likely to be used to address the transgressions
of nongovernmental actors than the actions of foreign
governments themselves. See, e.g., Nestle II, 141 S. Ct. at
1935 (majority op.); Kiobel, 569 U.S. at 111–12; Balintulo
v. Ford Motor Co., 796 F.3d 160, 163 (2d Cir. 2015). Dating
back to the military tribunals after World War II, aiding and
abetting liability has been alleged frequently in proceedings
against private individuals and corporations. See, e.g., The
Zyklon B Case, 1 Trials of War Criminals (“T.W.C.”) 93,
93–95 (1946); The Flick Case, 6 T.W.C. 1, 11, 13 (1947);
United States v. Krauch (“The I.G. Farben Case”), 8 T.W.C.
14, 1081, 1084–95, 1107 (1948). Suits against
nongovernmental actors do not raise the same international
comity and sovereignty issues inherent in “claim[ing] a limit
on the power of foreign governments over their own
citizens” that animated Sosa’s concerns regarding the
broader foreign policy effects of ATS litigation. 542 U.S. at
32 DOE I V. CISCO SYSTEMS, INC.
727. Particularly after Jesner, which forecloses suit under
the ATS against foreign corporations, 138 S. Ct. at 1407
(majority op.), and Kiobel, which requires a close
relationship between the alleged violation and the territory
of the United States, 569 U.S. at 124, aiding and abetting
liability is most likely to be alleged, as here, in suits against
U.S. citizens and corporations, not foreign governments.
Further, recognizing aiding and abetting liability,
particularly for U.S. defendants, well serves the original
goals of the ATS: to provide a forum for violations of
international law that, if lacking, could cause foreign
relations strife or “embarrass[ment]” to the United States. Id.
at 123. In this instance, of course, China is unlikely to take
issue with a federal court’s discretionary refusal to recognize
imposing accomplice liability on Cisco. But international
concern with violations of human rights or the failure to
provide an adequate forum for their vindication may also be
of some relevance—in this instance, potential scrutiny by the
international community generally for a failure to provide a
forum in which U.S. citizens and corporations can be held
accountable for violating well-defined and universal
international norms, including aiding and abetting liability.
Additionally, the current record does not reflect any
case-specific foreign policy considerations that present a
reason to bar this action. Unlike cases in which both U.S.
and foreign government actors raise objections to the
litigation, no foreign government or Executive Branch
agency has submitted an amicus brief, declaration, or letter
objecting to this lawsuit. See, e.g., Jesner, 138 S. Ct. at
1406–07 (majority op.); In re S. Afr. Apartheid Litig., 238 F.
Supp. 2d 1379 (JPML 2002). There has been no lack of time
to do so: Plaintiffs first filed suit in May 2011. In sharp
contrast, the Chinese government and the U.S. State
DOE I V. CISCO SYSTEMS, INC. 33
Department have become involved in other cases relating to
the Chinese government’s persecution of Falun Gong
practitioners. Both China and the U.S. State Department, for
example, submitted statements of interest in Doe v. Qi, a
case involving ATS and TVPA claims brought by Falun
Gong adherents against Chinese government officials
directly. 349 F. Supp. 2d 1258, 1264, 1296–1301 (N.D. Cal.
2004). That neither the government of China nor the U.S.
Executive Branch has taken action regarding this case
indicates that the foreign affairs implications here are not
comparable to cases in which the Chinese government or
Chinese government officials are parties. In Jesner, in
contrast to this case, the Court was presented with forceful
and strategic warnings by the U.S. State Department as well
as an amicus brief by a foreign government. 138 S. Ct. at
1406–07 (majority op.). No similar case-specific, articulated
foreign policy concerns have been raised in this case. See
Sosa, 542 U.S. at 733 n.21.
The dissent notes that district courts (and on occasion
appellate courts) have sometimes requested the State
Department submit analysis regarding the foreign policy
implications of an ATS suit. See Dissent at 7-8 (citing, e.g.,
Doe v. Exxon Mobil Corp., 473 F.3d 345, 347 (D.C. Cir.
2007); Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995)).
The district court here did not ask the State Department to
submit its views on the case. For several reasons, we do not
consider the lack of affirmative solicitation of the State
Department’s views to be a barrier to our analysis of case-
specific foreign policy concerns on the current record.
First, neither Sosa nor Jesner states that affirmatively
soliciting the government’s view is required. See Sosa, 542
U.S. at 733 n.21; Jesner, 138 S. Ct. at 1406–07. And,
although district courts have at times sua sponte requested
34 DOE I V. CISCO SYSTEMS, INC.
the views of the State Department, see, e.g., Exxon Mobil
Corp., 473 F.3d at 347, others have done so only after a
party’s request, see Mujica v. Occidental Petroleum Corp.,
381 F. Supp. 2d. 1164, 1169 (D.C. Cal. 2005); after allowing
the parties to be heard on the necessity of requesting the
government’s views, see, e.g., Nat’l Coal. Gov’t of Union of
Burma v. Unocal, Inc., 176 F.R.D. 329, 335 (C.D. Cal.
1997); or when a foreign government has filed an ex parte
declaration urging the court to dismiss the suit, see
Khulumani, 504 F.3d at 259. Here, Cisco did not request that
the district court solicit the views of the State Department.
And, as we have discussed, the Chinese Government has not
submitted any declarations objecting to the suit.
Second, we disagree with the dissent that we may not
infer a lack of concern from the government’s silence. The
dissent notes that the State Department, in an area of
litigation similarly rife with foreign policy ramifications—
the Foreign Sovereign Immunities Act —“intervenes only
selectively” where suit is brought against a high-ranking
foreign government official. Dissent at 11. The State
Department’s passive approach in cases such as the one
before us, in which no foreign government actor or head of
state is directly party to the suit, offers support for the
conclusion that the State Department views such cases as
less likely to harm foreign relations.
We also decline to request the State Department’s
analysis ourselves. The foreign policy implications of a
lawsuit, where contested, would constitute a factual dispute
that we would be required to remand to the district court. See
DeMarco v. United States, 415 U.S. 449, 450 (1974);
Spokane County v. Air Base Housing, Inc., 304 F.2d 494,
499 (9th Cir. 1962). Our decision on the current record does
DOE I V. CISCO SYSTEMS, INC. 35
not foreclose the district court from considering on remand
whether to request the views of the State Department.
Second, we consider whether “there are sound reasons to
think Congress might doubt the efficacy or necessity” of
recognizing aiding and abetting liability under the ATS.
Jesner, 138 S. Ct. at 1402 (majority op.). Cisco puts forward
two such arguments against the recognition of aiding and
abetting liability here. 12
First, Cisco argues that Central Bank of Denver N.A. v.
First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994),
established a presumption that Congress has not provided for
aiding and abetting liability in a civil statute unless it has
done so expressly. We reject this reading of Central Bank of
Denver, as explained in our analysis of the TVPA claim. See
infra Discussion, Part II.A.
For present purposes, it is enough to observe that Central
Bank of Denver does not govern whether aiding and abetting
liability is available under the ATS, as the Second Circuit
has recognized. See Khulumani, 504 F.3d at 282 (Katzmann,
J., concurring), cited with approval in Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 130 (2d Cir. 2010); see also
Khulumani, 504 F.3d at 288 n.5 (Hall, J., concurring); cf.
Doe v. Exxon, 654 F.3d at 28–29. The ATS is a jurisdictional
statute. Decisions as to the appropriate scope of liability, as
we have discussed, depend on international law, not on
statutory text delineating the scope of liability or the
12
Cisco raises some of these points in arguing that this case is a
nonjusticiable political question and barred by the act of state and
international comity doctrines. In the context of the ATS, these
arguments are more appropriately considered in the second step of the
Sosa test, so we address them here.
36 DOE I V. CISCO SYSTEMS, INC.
elements of the permissible causes of action. See supra
Discussion, Part I.B.1. Because ATS liability is generally
determined under international law, Central Bank of
Denver’s rejection of a presumption of aiding and abetting
liability for federal civil statutes delineating new causes of
action is not apposite to the question whether the ATS
provides accomplice liability.
To be sure, under Sosa’s step two, caution from
Congress against recognizing a particular form of
international law liability under the ATS would be relevant.
Jesner, 138 S. Ct. at 1402 (majority op.). But, again, there is
no ATS-specific caution pertinent here.
Cisco next argues with respect to the congressional doubt
consideration that this case would improperly interfere with
the system of U.S. trade regulation of export sales to China,
regulation that takes into account human rights concerns.
Specifically, Cisco cites U.S. Commerce Department
regulations concerning the export of crime control
equipment, 15 C.F.R. § 742.7 (2010), and part of the Foreign
Relations Authorization Act for Fiscal Years 1990 and 1991,
Pub. L. No. 101-246, §§ 901–902, 104 Stat. 15, 80–85
(1990) (“Tiananmen Act”).
The Commerce Department regulations implement a
licensing regime for the export of crime control equipment,
including police batons, whips, helmets, and shields, to most
countries, including China. 15 C.F.R. § 742.7(a); see 50
U.S.C. §§ 4801–4852. The regulations do not cover the
export of computer networking software or hardware. Cisco
argues that this omission is intentional and represents a
decision not to ban exports to China of such software or
hardware.
DOE I V. CISCO SYSTEMS, INC. 37
The Tiananmen Act was passed in response to the
“unprovoked, brutal, and indiscriminate assault on
thousands of peaceful and unarmed demonstrators and
onlookers in and around Tiananmen Square by units of the
People’s Liberation Army.” Pub. L. No. 101-246, §
901(a)(1). Among other sanctions, the Act suspended the
granting of the requisite licenses for exports of crime control
equipment to China until the President of the United States
issued a report meeting enumerated statutory requirements.
Id. § 902(a)(4). This suspension did not affect exports of
computer networking software or hardware, for which no
license is required, as just discussed.
The Commerce Department regulations and the
Tiananmen Act, Cisco maintains, were “carefully designed
to strike a balance between the Nation’s policy of economic
and political engagement with China and concerns about
China’s respect for civil and human rights.” As a
consequence, Cisco asserts, it was entitled to rely on the fact
that U.S. trade regulations do not restrict the sale of internet
infrastructure components to Chinese law enforcement
officials.
This argument, premised on what is not in the Commerce
Department regulations or the Tiananmen Act, calls to mind
one made in Jesner and adopted by three Justices but not by
the majority of the Court. See 138 S. Ct. at 1405 (plurality
op.). Those Justices—Chief Justice Roberts and Justices
Kennedy and Thomas—would have declined to recognize
the liability of foreign corporate banks in light of the Anti-
Terrorism Act, “part of a comprehensive statutory and
38 DOE I V. CISCO SYSTEMS, INC.
regulatory regime that prohibits terrorism and terrorism
financing.” Id. (plurality op.). Justice Kennedy explained:
The detailed regulatory structures prescribed
by Congress and the federal agencies charged
with oversight of financial institutions reflect
the careful deliberation of the political
branches on when, and how, banks should be
held liable for the financing of terrorism. It
would be inappropriate for courts to displace
this considered statutory and regulatory
structure by holding banks subject to
common-law liability in actions filed under
the ATS.
Id. (plurality op.).
Putting aside the absence of a majority ruling on the
Anti-Terrorism Act argument in Jesner, the circumstances
in Jesner are not parallel to those here. The regulations and
congressional actions Cisco cites lack the comprehensive
and direct regulation of the subject matter present in Jesner.
Unlike the Anti-Terrorism Act’s treatment of banks, which
the Supreme Court described as “part of a comprehensive
statutory and regulatory regime that prohibits terrorism and
terrorism financing,” id., neither the Commerce Department
regulations nor the Tiananmen Act specifically address or
attempt to regulate the export of computer networking
software or hardware. So recognizing an aiding and abetting
claim involving the sale of such software and hardware
under the ATS does not displace, or even affect, an existing,
comprehensive regulatory scheme.
Ultimately, Congress and the Executive’s decision not to
regulate or prohibit generally the export of computer
DOE I V. CISCO SYSTEMS, INC. 39
networking software does not conflict with the recognition
that U.S. corporations may be liable, in designing and selling
certain software under certain circumstances, for aiding and
abetting violations of international law. Put another way, the
Commerce Department regulations and the Tiananmen Act
do not regulate the sale of computer networking software or
hardware at all, for crime control or any other purpose, and
so do not insulate such sales from otherwise applicable legal
regimes, domestic or international.
We conclude that no general or case-specific foreign
policy considerations caution against recognizing
accomplice liability under the ATS. Nor is there any
indication that Congress “might doubt the efficacy or
necessity” of recognizing aiding and abetting liability under
the ATS generally or as to the design and sale of computer
networking software and hardware to China. Jesner, 138 S.
Ct. at 1402 (majority op.).
2. Aiding and Abetting Standard
The standard for accomplice liability is determined by
customary international law. See Khulumani, 504 F.3d at
268–69 (Katzmann, J., concurring); see also Sosa, 542 U.S.
at 732 n.20. We join the Second, Fourth, and Eleventh
Circuits in holding that the global consensus is that the actus
reus of aiding and abetting liability requires assistance to the
principal with substantial effect on an international law
violation. See Talisman, 582 F.3d at 253; Aziz, 658 F.3d at
401; Cabello, 402 F.3d at 1158; cf. Doe v. Exxon, 654 F.3d
at 39. Like the Eleventh Circuit, we additionally hold the
mens rea for aiding and abetting liability under customary
international law is knowing assistance. See Cabello, 402
F.3d at 1158; cf. Doe v. Exxon, 654 F.3d at 39. Applying this
standard, we conclude that Plaintiffs plausibly alleged that
40 DOE I V. CISCO SYSTEMS, INC.
corporate defendant Cisco provided assistance to the Party
and to Chinese Public Security that had substantial effects
on those entities’ violations of international law. We further
hold that Plaintiffs plausibly alleged that corporate
defendant Cisco knowingly provided such assistance. See
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.
a. Actus reus
(i) Standard
The actus reus of aiding and abetting liability is well
established under customary international law. During and
since the military tribunals following World War II,
international tribunals have concluded that under
international customary law, a defendant is liable for aiding
and abetting a violation of international law when the
accused provides assistance, encouragement, or moral
support that has a substantial effect on the crimes. See e.g.,
Prosecutor v. Taylor, Case No. SCSL-03-01-A, Judgment,
¶¶ 368, 371, 377 n.1193 (Special Court for Sierra Leone
(“Sierra Leone Tribunal”) Sept. 26, 2013) (collecting cases);
Prosecutor v. Furundzija, Case No. IT-95-17/1-T,
Judgment, ¶ 245 (Yugoslavia Tribunal Dec. 10, 1998);
Prosecutor v. Tadic, Opinion and Judgment Case No. IT-94-
1-T, ¶ 689 (Yugoslavia Tribunal May 7, 1997). 13 Every
circuit and numerous trial courts recognizing aiding and
abetting liability under the ATS have adopted this actus reus
standard. See Khulumani, 504 F.3d at 277 (Katzmann, J.,
13
International treaties and agreements, including the Rome Statute, do
not specify what a defendant must be proven to have done for aiding and
abetting liability to attach. See Rome Statute of the International
Criminal Court art. 25(3)(c), July 17, 1998, 2187 U.N.T.S. 90. We
therefore rely principally on the decisions of international tribunals to
discern the appropriate actus reus standard.
DOE I V. CISCO SYSTEMS, INC. 41
concurring); Talisman, 582 F.3d at 247, 253; Aziz, 658 F.3d
at 401; Cabello, 402 F.3d at 1158; cf. Doe v. Exxon, 654 F.3d
at 39. The parties do not dispute that assistance with
substantial effect on the perpetration of an international law
violation is the correct standard. We agree, and hold the
actus reus of aiding and abetting liability under the ATS is
established if the plaintiff demonstrates that the defendant
provided assistance that had a substantial effect on the
commission of a violation of the law of nations.
The parties here do disagree concerning the meaning of
“assistance with substantial effect.” Citing Prosecutor v.
Perisic, Case No. IT-04-81-A, Judgment, ¶¶ 27–28, 38
(Yugoslavia Tribunal Feb. 28, 2013), Cisco argues that
customary international law requires plaintiffs to allege that
a defendant’s conduct was “specifically directed” toward the
commission of a crime. 14
Perisic held that “assistance must be ‘specifically’—
rather than ‘in some way’—directed towards the relevant
crimes.” Perisic, ¶ 27; see also id. ¶ 37. In Prosecutor v.
Sainovic, however, the Yugoslavia Tribunal Appeals
Chamber “unequivocally reject[ed]” Perisic and concluded
that “‘specific direction’ is not an element of aiding and
abetting liability under customary international law.” Case
No. IT-05-87-A, Judgment, ¶¶ 1649–50 (Yugoslavia
Tribunal Jan. 23, 2014). The Yugoslavia Tribunal reaffirmed
that decision in Prosecutor v. Popovic, Case No. IT-05-88-
A, Judgment, ¶ 1758 (Yugoslavia Tribunal Jan. 30, 2015).
14
Whether a “specifically directed” factor is included in the actus reus
standard for aiding and abetting liability under international law is a
question we noted but left unanswered in Nestle I. 766 F.3d at 1026–27.
42 DOE I V. CISCO SYSTEMS, INC.
Perisic was thus an outlier at the Yugoslavia Tribunal,
repudiated in later cases. And it was an outlier among the
decisions of other international tribunals when it was
decided. See Taylor, ¶¶ 474–75 (Sierra Leone Tribunal
2013) (reviewing international tribunal judgments, which
did not require specific direction, and subsequent case law at
the Yugoslavia and Sierra Leone Tribunals, and rejecting the
Perisic specific direction standard). The current consensus
of international law tribunals is that aiding and abetting
liability requires only that a defendant provide assistance, of
any kind, with substantial effect on the perpetration of an
international law violation. We therefore adopt that actus
reus standard.
Assistance with substantial effect may be established “in
an infinite variety of ways.” Taylor, ¶ 369. The inquiry is
case specific and fact intensive. Id. ¶ 370 (citing Prosecutor
v. Sesay, SCSL-04-15-T, Judgment, ¶ 769 (Sierra Leone
Tribunal Mar. 2, 2009) (collecting cases)). In assessing the
effect of a defendant’s action, courts consider the
“cumulative[]” contribution a defendant makes to the
alleged violation—not whether each individual act had
substantial effect. Id. ¶ 362 n.1128.
International tribunals have held, for example, that a
defendant’s assistance had a substantial effect on the
commission of international law violations when the
defendant furnished “weapons and ammunition, vehicles
and fuel or personnel,” or other resources relied on in the
commission of the crimes. Id. ¶ 369 (collecting cases). Some
courts have interpreted this form of assistance as providing
the “means” by which a principal commits the crime. See,
e.g., In Re South African Apartheid Litigation, 617 F. Supp.
2d 228, 259 (S.D.N.Y. 2009). The canonical Second World
War–era example is The Zyklon B Case, in which the owner
DOE I V. CISCO SYSTEMS, INC. 43
of a chemical company and his second-in-command were
convicted of aiding and abetting war crimes after selling
large quantities of poison gas, used to effectuate mass
killings, to the German security forces. 1 T.W.C. at 93–95,
102.
More recently, courts have recognized that an actor may
have a substantial effect on the perpetration of international
law violations by supplying computer hardware, software, or
technological support that enhances the capacity of the
principal to coordinate and facilitate operations in which
crimes are committed. For example, in In re South African
Apartheid Litigation, victims of the South African apartheid
regime brought suit under the ATS in the Southern District
of New York alleging that IBM “aided and abetted the South
African Government’s denationalization of black South
Africans [the crime of apartheid] through the provision of
computers, software, training, and technical support.” 617 F.
Supp. 2d at 242, 265. Specifically, the plaintiffs alleged that
IBM sold computers used in denationalization campaigns
and developed “indispensable” computer software and
support “specifically designed to produce identity
documents and effectuate denationalization.” Id. at 265. In
holding these allegations sufficient to satisfy the actus reus
requirement of aiding and abetting liability at the pleadings
stage, the district court noted that “the records necessary to
deliberately denationalize a large proportion of black South
Africans were generated using equipment allegedly
provided by IBM.” Id.
Similarly, the Sierra Leone Tribunal recently upheld the
conviction of former President of Liberia Charles Ghankay
Taylor for aiding and abetting numerous crimes during the
conflict in Sierra Leone and Liberia in the late 1990s and
early 2000s. Taylor, ¶¶ 4-9. The trial court found, and the
44 DOE I V. CISCO SYSTEMS, INC.
Sierra Leone Tribunal Appeals Chamber affirmed, that
Taylor’s provision of arms and ammunition, personnel, and
“operational support and advice,” which the armed forces
used in committing atrocities, constituted assistance with a
substantial effect on the crimes. Id. ¶ 395. The operational
assistance Taylor provided to the Revolutionary United
Front/Armed Forces Revolutionary Council (“RUF/AFRC”)
included a communications system, satellite phones, a long-
range radio, and radio operators, used to report on the
location of international and other opposition forces and to
coordinate diamond mining and sales and the shipment of
arms used in the conflict. Id. ¶¶ 323, 326, 332, 342. The
appeals chamber held that the “communications and
logistics support Taylor provided was sustained and
significant” and “enhanced the capability of the RUF/AFRC
leadership to plan, facilitate or order RUF/AFRC military
operations during which crimes were committed.” Id. ¶ 520.
Other cases establish that a defendant’s assistance in
locating or identifying victims, through technology or
otherwise, can have substantial effect on the commission of
international law violations. In Trial of Otto Ohlendorf and
Others (“Einsatzgruppen”), a Nuremberg tribunal found
Waldemar Klingelhoefer guilty as a principal and accessory
to the killing of thousands of people by specialized German
military (“Einsatz”) units. 4 T.W.C. 1, 568–70 (1948). The
tribunal concluded that Klingelhoefer’s “locating,
evaluating and turning over lists of Communist party
functionaries to the executive of his organization” made him
an accessory to the subsequent unlawful killing of the
individuals whose identity he revealed. Id. at 569–70.
Similarly, the Rwanda Tribunal Appeals Chamber held that
Emmanuel Rukundo, a military chaplain in the Rwandan
army, substantially assisted the Rwandan army, and so
DOE I V. CISCO SYSTEMS, INC. 45
fulfilled the actus reus of aiding and abetting abductions and
killings during the Rwandan genocide, when he “on at least
four occasions . . . was present . . . and identified Tutsi
refugees to soldiers . . . who subsequently removed and then
killed them.” Prosecutor v. Rukundo, Case No. ICTR-2001-
70-A, Judgment, ¶¶ 2, 176 (Rwanda Tribunal Oct. 20, 2010).
These cases represent some of the “variety of ways” that
assistance with substantial effect may be established. Taylor,
¶ 369. We now turn to applying the substantial effect
standard, as illuminated by this case law from various
international tribunals and domestic courts, to corporate
defendant Cisco. 15
(ii) Application to Corporate Defendant Cisco
Plaintiffs allege that Cisco’s contributions to the Golden
Shield improved the capacity of Chinese government
officials and Party security agents across China to work
together, share information about, and identify specific
Falun Gong practitioners, and so constituted assistance with
substantial effect. Specifically, Plaintiffs point to the
integration of Falun Gong “profile” databases into a national
surveillance system accessible by every level of security—
national, provincial, and municipal. According to the
complaint, the centralization of information and integration
of security systems not only helped Chinese security
officials with the tracking and identification of individual
practitioners, but also provided a system through which
15
We do not here apply the actus reus or mens rea standards to the
individual defendants, Chambers and Cheung, as we conclude below that
the complaint does not allege actions taken by Chambers and Cheung
that sufficiently touch and concern the United States to overcome the
presumption against extraterritorial application of the ATS. See infra
Discussion, Part I.B.3.b(ii).
46 DOE I V. CISCO SYSTEMS, INC.
officials could track the progression of a given Falun Gong
practitioner from detection to forced conversion to post-
detention and post-conversion surveillance.
The allegations in the complaint are specific, not
conclusory. See Twombly, 550 U.S. at 555. Each of the
thirteen plaintiffs alleges having been tracked and identified
through Chinese authorities’ use of Golden Shield
technology, without which their detection would not have
been possible. Nearly all plaintiffs allege the use of
information collected via Golden Shield technology during
the forced conversion, or torture, to which they were
subjected. Plaintiffs also point to reports and statements by
Chinese officials describing Golden Shield software as
necessary to the repression of Falun Gong. According to one
former Office 610 security agent, for example, Golden
Shield technology was the “essential means to manage,
analyze and categorize information about [three of the
plaintiffs] and [then] instruct public security officers to
apprehend, detain and forcibly convert them.”
These allegations, accepted as true, are sufficient to state
a plausible claim that Cisco provided assistance with
substantial effect on cognizable violations of international
law. Similarly to In Re South African Apartheid Litigation,
in which the technology IBM provided played an
“indispensable” role in the mechanism of the apartheid
regime, here Golden Shield technology was described by
Chinese authorities as “essential” in locating and
apprehending Falun Gong members. 617 F. Supp. 2d at 265.
Like the satellite phones and technical assistance that
enabled improved coordination among the military groups in
Taylor, ¶¶ 323, 326, 332, 342, here Cisco’s technological
products and assistance greatly enhanced the capacity of
Party and Chinese security officers to coordinate their
DOE I V. CISCO SYSTEMS, INC. 47
monitoring and forced conversion—torture—of Falun Gong
practitioners, and so substantially assisted the perpetration of
alleged human rights abuses. Moreover, although Cisco’s
alleged contributions to the efforts of Chinese authorities to
identify and track Falun Gong practitioners differ somewhat
from those in Einsatzgruppen and Rukundo, in which the
defendants aided and abetted the principal by directly
identifying targets of persecution, Einsatzgruppen, 4 T.W.C.
at 569; Rukundo, ¶ 176, the difference in the type of
connection to identification does not detract from the
essential role Cisco’s technology played, according to the
complaint, in identifying and tracking Falun Gong
practitioners.
Finally, as in Taylor, in which the tribunal found it
significant that the defendant provided assistance during an
international embargo that otherwise restricted the flow of
resources to the armed forces, Taylor, ¶¶ 323, 514, 517, the
timing of Cisco’s assistance increased its overall impact.
Plaintiffs allege that China did not at that time have the
technological prowess itself to create a database with the
sophistication of the Golden Shield, including the ability to
track Falun Gong activities online with sufficient accuracy
to collect the desired level of information about suspected
Falun Gong practitioners. So, as in Taylor, the timing of
Cisco’s assistance to Chinese authorities increased its
significance.
In sum, given Cisco’s significant technological
assistance; the use of such technology to identify, detain, and
torture Falun Gong practitioners; and the timing of that
assistance during a period in which Chinese authorities did
not have equivalent technological tools, we conclude that
Plaintiffs have plausibly alleged that Cisco provided
48 DOE I V. CISCO SYSTEMS, INC.
assistance with substantial effect on Chinese authorities’
violations of international law.
Cisco further insists that the tools it provided could have
been used lawfully, so Cisco’s assistance cannot be
considered to have a substantial effect on the commission of
illegal activity. That argument is misplaced. Actions that are
not themselves criminal can lead to aiding and abetting
liability, depending on the circumstances. Again, the
canonical example of an act satisfying the actus reus of
aiding and abetting liability under international law is The
Zyklon B Case, in which the defendants were convicted of
selling large quantities of a chemical delousing agent, an act
that in another context would violate no law. 1 T.W.C. at 93–
96. More recently, the Sierra Leone Tribunal in Taylor
explicitly affirmed that:
perfectly innocuous items, such as satellite
phones, could be used to assist the
commission of crimes, while instruments of
violence could be used lawfully. The
distinction between criminal and non-
criminal acts of assistance is not drawn on the
basis of the act in the abstract, but on its effect
in fact.
Taylor, ¶ 395.
Nor does assistance need to be used for exclusively
criminal purposes to be actionable. In Taylor, the Sierra
Leone Tribunal Appeals Chamber noted that one of Taylor’s
acts of substantial assistance—the provision of a
guesthouse—was used both for matters related to the
ongoing peace negotiations and “to facilitate the transfer of
arms, ammunition, and funds directly from Taylor to the
DOE I V. CISCO SYSTEMS, INC. 49
RUF/AFRC.” Id. ¶ 342. In Flick, another canonical post-
World War II tribunal case in which the defendant was
convicted of contributing money to a criminal organization,
the tribunal noted that “[i]t seems to be immaterial whether
[the money] was spent on salaries or for lethal gas.” 6
T.W.C. at 1221. Here, although Golden Shield technology
could be and was used for some legitimate law enforcement
activities, a multipurpose use and the general legality of
providing crime control software does not render the
assistance Cisco provided any less substantial in its
facilitation and enhancement of Chinese authorities’
persecution of Falun Gong in violation of customary
international law.
b. Mens rea
(i) Standard
No domestic consensus exists as to the mens rea
requirement of aiding and abetting liability under
international law. The Second and Fourth Circuits have held,
drawing heavily from Judge Katzmann’s analysis in
Khulumani and the language of the Rome Statute, that
customary international law requires a defendant to act with
the purpose of facilitating the crime. Talisman, 582 F.3d at
259; Aziz, 658 F.3d at 390. The Eleventh Circuit disagrees,
concluding that aiding and abetting liability requires only
knowledge that a defendant’s actions will assist in the
commission of an international law violation. Cabello, 402
F.3d at 1158; cf. Doe v. Exxon, 654 F.3d at 39. We left this
question unresolved in Nestle I because we concluded that
the plaintiffs’ allegations in that case satisfied the “more
stringent purpose standard.” 766 F.3d at 1024. We noted that
“[a]ll international authorities agree that ‘at least purposive
action . . . constitutes aiding and abetting.’” Id. (quoting
50 DOE I V. CISCO SYSTEMS, INC.
Sarei, 671 F.3d at 765–66); accord Khulumani, 504 F.3d at
277.
A growing body of relevant material supports the
universality and specificity of the knowledge standard for
aiding and abetting liability under customary international
law. The knowledge standard “dates back to the Nuremberg
tribunals,” Nestle I, 766 F.3d at 1023, and other post–World
War II tribunals and has been followed by international
criminal courts with few exceptions in the many decades
since.
All major international tribunals to try individuals for
aiding and abetting liability for war crimes after World War
II used the knowledge standard. 16 In the Zyklon B Case, the
British Tribunal at Nuremberg convicted the owner and
administrative assistant of a chemical company for aiding
and abetting war crimes by supplying poisonous gas to the
S.S. knowing that the gas would be used to kill human
beings. 1 T.W.C. at 93–96. The International Military
16
We disagree with the conclusion of the Second Circuit in Talisman
that “international law at the time of the Nuremberg trials recognized
aiding and abetting liability only for purposeful conduct.” Talisman, 582
F.3d at 259. Talisman cited just one case, United States v. von
Weizsaecker (“The Ministries Case”), 14 T.W.C. 622 (1949). Id. As we
noted in Nestle I, the Ministries Case acquitted one defendant, Karl
Rasche, because his actions did not meet the actus reus of aiding and
abetting liability, not because he failed to act purposefully. 766 F.3d at
1023. And the same Nuremberg Military Tribunal convicted another
defendant, Emil Puhl, because he knowingly received and disposed of
stolen property taken from people imprisoned in concentration camps,
supporting the use of the knowledge standard. 14 T.W.C. at 620.
Additionally, the Second Circuit’s reliance on the Ministries Case does
not acknowledge the many Second World War tribunal cases that
employed the knowledge standard. See Doe v. Exxon, 654 F.3d at 38.
DOE I V. CISCO SYSTEMS, INC. 51
Tribunal, acting under the authority of Control Council Law
10, convicted individuals for aiding and abetting war crimes
by knowingly assisting organized units to carry out mass
executions. See, e.g., Einsatzgruppen Case, 4 T.W.C. at 15,
456, 569 (convicting a defendant under both principal and
accessory liability theories). Conversely, Krauch acquitted
defendants of war crimes arising from the sale of poisonous
gas to German security forces because the evidence did not
show “knowledge of the criminal purposes to which this
substance was being put.” 8 T.W.C. at 1168; see also Flick,
6 T.W.C. at 1216–17, 1220–21. French military tribunals
also applied the knowledge standard, requiring only that a
defendant be “aware of the significance of [the defendant’s]
own role” in international law violations. See, e.g., The
Roechling Case, Judgment on Appeal, 14 T.W.C. 1097,
1119 (Super. Mil. Gov’t Ct. of the French Occupation Zone
in Germany 1949) (applying Control Council Law. No.
10). 17
More recently, international criminal tribunals
interpreting and applying customary international law have
continued to use and refine the knowledge standard in aiding
and abetting liability cases, confirming that knowledge is the
standard required by customary international law. The
Yugoslavia Tribunal, for example, adopted the knowledge
standard in Tadic, ¶¶ 661–77, after conducting “a detailed
investigation of the parameters of individual responsibility
17
One case suggests that post–World War II military tribunals used the
knowledge standard not only in Europe but in the Far East as well. In
The Jaluit Atoll Case, a U.S. tribunal in the Marshall Islands convicted
one defendant, Tasaki, for his participation in the killing of three
American prisoners of war “knowing that they were to be killed.” 1
T.W.C. 71, 73, 76 (1945).
52 DOE I V. CISCO SYSTEMS, INC.
under customary international law.” Prosecutor v. Delalic,
Case No. IT-96-21-A, Judgement, ¶ 325 (Yugoslavia
Tribunal Nov. 16, 1998). The Yugoslavia Tribunal
reaffirmed Tadic’s analysis in Delalic. Id. ¶¶ 325–29. Since
Tadic, the Yugoslavia Tribunal has tried numerous
defendants for their alleged knowing assistance in the
commission of international crimes. 18 The Appeals Chamber
of the Sierra Leone Tribunal has also adopted the “knowing
participation” standard, again “after conducting an extensive
review of customary international law.” Nestle I, 766 F.3d at
1023 (quoting Taylor, ¶ 417, 483). These tribunals’ adoption
of knowledge as the mens rea for aiding and abetting liability
is of particular importance, as the Restatement of Foreign
Relations accords the decisions of international tribunals
“substantial weight” in determining the contours of
customary international law. Restatement (Third) of Foreign
Relations Law § 103(2) (Am. L. Inst. 1987).
Despite the volume and near consensus of international
criminal tribunal judgments applying the knowledge mens
rea standard, the Second and Fourth Circuits have held the
purpose standard the more appropriate mens rea for aiding
and abetting liability claims brought under the ATS.
Talisman, 582 F.3d at 259; Aziz, 658 F.3d at 390. The
principal disagreement between those Circuits and the D.C.
Circuit in Doe v. Exxon, now vacated, which concluded that
knowledge is the correct standard, is the weight each accords
18
See, e.g., Prosecutor v. Stanisic and Simatovic, Case No. IT-03-69-A,
Judgment, ¶ 104 (Yugoslavia Tribunal Dec. 9, 2015); Popovic, ¶¶ 1732,
1758; Sainovic, ¶ 1772; Prosecutor v. Blagojevic and Jokic, Case No.
IT-02-60-A, Judgment, ¶ 127 (Yugoslavia Tribunal May 9, 2007);
Prosecutor v. Kvocka, Case No. IT-98-30/I-T, Judgment, ¶ 251
(Yugoslavia Tribunal Nov. 2, 2001); Prosecutor v. Aleksovki, Case No.
IT-95-14/1-T, Judgment ¶ 61 (Yugoslavia Tribunal Jun. 25, 1999).
DOE I V. CISCO SYSTEMS, INC. 53
the Rome Statute. Compare Talisman, 582 F.3d at 259, and
Aziz, 658 F.3d at 396–98, with Doe v. Exxon, 654 F.3d at 17–
19.
The Rome Statute is the international treaty, adopted in
1998 and signed by 123 countries, 19 that created the first
permanent international criminal tribunal, the International
Criminal Court. Aziz, 658 F.3d at 396. Article 25(3)(c) of the
Rome Statute provides for individual criminal responsibility
when an individual, “[f]or the purpose of facilitating the
commission of such a crime, aids, abets, or otherwise assists
in its commission or its attempted commission.” Rome
Statute, art. 25(3)(c) (emphasis added). We agree with the
Fourth Circuit that the Rome Statute, as a treaty, could be an
authoritative source of international law. Aziz, 658 F.3d at
399–400; see also Statute of the International Court of
Justice, art. 38. Several considerations nonetheless caution
against applying the Rome Statute’s purpose standard for the
aiding and abetting mens rea under international law to the
ATS.
First, the Rome Statute was not intended to codify
customary international law nor to inhibit or otherwise affect
its development. The text of the Statute expressly warns
against conflating its provisions with customary
international law. Article 10 provides that “[n]othing in this
Part shall be interpreted as limiting or prejudicing in any way
existing or developing rule of international law for purposes
other than this Statute.” Rome Statute, art. 10; see also Doe
v. Exxon, 654 F.3d at 35–37. Article 22(3) similarly warns
that the standard that article adopts is limited to cases before
19
See International Criminal Court, The States Parties to the Rome
Statute, https://asp.icc-cpi.int/states-parties (last visited Nov. 29, 2022).
54 DOE I V. CISCO SYSTEMS, INC.
the International Criminal Court. Id., art. 22(3) (“This article
shall not affect the characterization of any conduct as
criminal under international law independently of this
Statute.”). Further accentuating the distinction between the
provisions adopted in the Rome Statute and customary
international law at the time of its drafting and in general,
Article 21 permits the Court to apply customary international
law “where appropriate.” Id., art. 21(1)(b).
The negotiation history of the Rome Statute underscores
the importance of these provisions and the particularity of
the Statute’s elaboration of the elements of the international
crimes within its limited jurisdiction. One scholar present
during the negotiations of the Rome Statute has explained
that although the statute was originally viewed as an
opportunity to codify international law developed from the
war tribunals of the 1940s and 50s, during negotiations “it
began to seem that there might be a fundamental
incompatibility between the political agendas of States and
the process of codifying, in a progressive manner, the
customary international law of war and crimes against
humanity.” Leila Nadya Sadat, Custom, Codification and
Some Thoughts about the Relationship Between the Two:
Article 10 of the ICC Statute, 49 DePaul L. Rev. 909, 910–
11 (2000). In light of those conflicts and compromises, the
goal of codification gave way to a more cautious approach.
Id. at 910.
The treaty-making process culminating in the Rome
Statute ultimately produced “definitions of crimes that,”
instead of codifying existing customary international law,
represented “‘lowest common denominator’ definitions far
more restrictive than those generally believed to be part of
customary international law.” Id. at 916. Professor Sadat
explains that Professor M. Cherif Bassiouni proposed
DOE I V. CISCO SYSTEMS, INC. 55
language that would become Article 10, cautioning against
expansive application of the Rome Statute’s standards, to
limit the potential negative impact on international law
generally of adopting restrictive definitions. Id. at 910–11,
916–17. 20 Former Ambassador David Scheffer, who served
as the lead negotiator of the Rome Statute for the United
States, and his co-author Caroline Kaeb corroborate this
understanding of the reason for including Article 10. See
David Scheffer & Caroline Kaeb, The Five Levels of CSR
Compliance: The Resiliency of Corporate Liability Under
the Alien Tort Statute and the Case for a Counterattack
Strategy in Compliance Theory, 29 Berkeley J. Int’l Law
334, 348–57 (2011). They note that the aiding and abetting
“purpose” mens rea standard articulated in Article 25(3)(c),
in particular, reflects a compromise position, striking a
balance between the specific intent standard some countries
advocated and the knowledge standard theretofore
established under customary international law. Id. The
concern that the Rome Statute not chill the development or
interpretation of customary international law, as evidenced
in the Rome Statute’s text and drafting history, caution
against according the Statute’s definition of criminal
elements countervailing weight when compared to other
authoritative sources of law.
20
Other scholars support this account. See, e.g., Beth Van Schaak,
Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and
Morals, 97 Geo. L.J. 119, 177 n.298 (2008); Keitner, Conceptualizing
Complicity, at 88; Otto Triffterer, Article 10, in Commentary on the
Rome Statute of the International Criminal Court 317 (Otto Triffterer
ed., 1999).
56 DOE I V. CISCO SYSTEMS, INC.
Second, the Rome Statute, because it is the product of a
political negotiation that arrived at an aiding and abetting
mens rea standard different from that used in customary
international law before or after the treaty was negotiated,
lacks the universality and specificity that Sosa requires. See
542 U.S. at 725. In Khulumani, Judge Katzmann essentially
advocated adopting the Rome Statute’s least common
denominator approach. He reasoned that he had found “no
source of international law that recognizes liability for aiding
and abetting a violation of international law but would not
authorize the imposition of such liability on a party who acts
with the purpose of facilitating that violation.” 504 F.3d at
277 (Katzmann, J., concurring). The Fourth Circuit agreed,
holding that such a least-common-denominator approach
“hew[ed] as closely as possible to the Sosa limits of
‘requir[ing] any claim based on the present-day law of
nations to rest on a norm of international character accepted
by the civilized world and defined with a specificity
comparable to the features of 18th-century paradigms.’”
Aziz, 658 F.3d at 400–01 (quoting Sosa, 542 U.S. at 725).
We are inclined to disagree. Adopting the Rome
Statute’s outlier mens rea standard appears to contradict
Sosa’s command to look to customary international law for
the articulation of new causes of action and to recognize only
norms established with the highest levels of universality and
definition. Again, the Rome Statute, as other circuits have
acknowledged, see, e.g., Aziz, 658 F.3d at 399; cf. Doe v.
Exxon, 654 F.3d at 39, and as its own text makes clear, see
Rome Statute, art. 10, is not customary international law.
Treaties comprise only one source for norms of customary
international law. Int’l Court of Justice Statute, art. 38; Sosa,
542 U.S. at 733–34. Discerning international law through a
broad range of sources may prove challenging, as several
DOE I V. CISCO SYSTEMS, INC. 57
circuits have highlighted. See, e.g., Aziz, 658 F.3d at 400
(quoting Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d
1013, 1015 (7th Cir. 2011)). Nonetheless, a comprehensive,
“fulsome and nuanced inquiry” of customary international
law, and all its diverse sources, is what Sosa requires.
Abdullahi v. Pfizer, Inc., 562 F.3d 163, 176 (2d Cir. 2009).
A treaty may appear to be a helpful shortcut, but adopting a
single provision at odds with nearly every other authority
subverts the international law inquiry required by Sosa. 542
U.S. at 725, 733–34. The fallacy of relying on a single treaty
to discern customary international law is evident with
respect to determining the mens rea of aiding and abetting
liability. That approach has caused some Circuits to adopt an
idiosyncratic standard rarely applied before the Rome
Statute’s ratification and not followed by international
tribunals since. See, e.g., Taylor, ¶¶ 435–36.
In sum, the Article 25(3)(c) purpose standard in all
probability fails the universality requirement of the ATS.
The purpose standard also lacks the very specificity for
which the Fourth Circuit turned to the Rome Statute. Aziz,
658 F.3d at 400 (describing the “elusive character” of
customary international law). Article 25(3)(c) does not
define “purpose.” Thus, it “remains unclear whether
‘purpose’ [in the Rome Statute] means sole purpose, primary
purpose, . . . simply purpose as inferred from knowledge of
likely consequences,” or something else. Keitner,
Conceptualizing Complicity, 60 Hastings L.J. at 88.
Compared with the knowledge standard applied by tribunals
in cases dating to Nuremberg and numbering at least in the
dozens, the Rome Statute’s purpose standard is inchoate and
indefinite. See id. at 88–89 (contrasting the ambiguity of the
Rome Statute mens rea standard with “the greater weight of
58 DOE I V. CISCO SYSTEMS, INC.
existing international criminal jurisprudence on this
question”).
Reflecting this lack of definition, courts and
commentators have interpreted the Rome Statute’s purpose
standard in a variety of ways. The Second and Fourth
Circuits, for example, have interpreted the “purpose” mens
rea to require specific intent—that is, to demand that the
defendant acted with the purpose of advancing the alleged
international law violations. Talisman, 582 F.3d at 262–63;
Aziz, 658 F.3d at 400–01. In contrast, former Ambassador
Scheffer and some scholars have interpreted “purpose” in
keeping with the Rome Statute’s own definition of “intent,”
which is considerably less stringent. See Brief for Former
U.S. Ambassador-at-Large for War Crimes Issues David J.
Scheffer as Amicus Curiae Supporting Appellants at 11-13,
Doe v. Cisco Systems, Inc., No. 15-16909 (9th Cir. June 29,
2023); e.g., James G. Stewart, An Important New Orthodoxy
on Complicity in the ICC Statute? (Jan. 21, 2015),
http://jamesgstewart.com/the-important-new-orthodoxy-on-
complicity-in-the-icc-statute/ (last visited Feb. 6, 2023).
The Rome Statute provides that “intent” for a crime is
satisfied when a person “means to engage in the conduct”
and “[i]n relation to a consequence, that person means to
cause that consequence or is aware that it will occur in the
ordinary course of events.” Rome Statute, art. 30(b)
(emphasis added). There is little or no light between this
version of the “purpose” test and the knowledge standard
generally applied under customary international law. And
the diversity of interpretations of “purpose” in the Rome
Statute illustrates that the treaty’s purpose standard lacks the
specificity that Sosa and Jesner require. Jesner, 138 S. Ct. at
1399 (plurality op.).
DOE I V. CISCO SYSTEMS, INC. 59
In sum, we agree with the D.C. Circuit’s conclusion in
Doe v. Exxon, 654 F.3d at 35-38, that the arguments against
adopting the Rome Statute’s “purpose” test as the definitive
mens rea standard for aiding and abetting liability under the
ATS are persuasive. We accordingly conclude that
customary international law imposes aiding and abetting
liability for knowing assistance.
(ii) Application to Corporate Defendant Cisco
The knowledge mens rea standard is satisfied when a
defendant acts with knowledge that the defendant’s actions
will assist in the commission of a crime or with awareness
of a “substantial likelihood that [the defendant’s] acts would
assist the commission of a crime.” Sesay, ¶ 546. “It is not
necessary that the aider or abettor know the precise crime
that was intended and was in fact committed—if [the
accused] is aware that one of a number of crimes will
probably be committed, and one of those crimes is
committed,” the standard is satisfied. Popovic, ¶¶ 1732; see
also id., ¶ 1751. An accused’s statements regarding the
purposes and goals of the project for which they are
providing assistance can establish awareness that crimes are
likely to be committed. See, e.g., Zyklon B, 1 T.W.C. at 95.
And when ongoing abuses are common knowledge,
knowing action may be imputed to the defendant. See Flick,
6 T.W.C. at 1217. 21
Plaintiffs allege Cisco acted with actual and constructive
knowledge of the intended uses of the Golden Shield project,
particularly its use in the douzheng of Falun Gong, which
21
In Nestle I, for example, we held that knowledge of the likelihood of
international law violations may be imputed from widespread reporting
by domestic and international organizations. 766 F.3d at 1017.
60 DOE I V. CISCO SYSTEMS, INC.
involved a substantial likelihood of human rights abuses.
The complaint alleges that during the bidding process,
Chinese authorities communicated to Cisco and other
corporations that they “were primarily concerned with
whether the technology could eliminate Falun Gong
adherents and activity.” Cisco’s marketing materials and
internal reports reflect this goal, repeatedly mentioning the
connection between Cisco’s technological assistance and the
crackdown on, or “douzheng” of, Falun Gong adherents.
Plaintiffs refer to douzheng “the term of art used to describe
persecutory campaigns comprising persecution and torture.”
They allege that Cisco understood the meaning of douzheng
and used it intentionally: “[i]nvoking the Party’s use of
douzheng and similar rhetoric has been central to Cisco’s
intent to curry favor with Communist Party leaders by
displaying the ideological orthodoxy needed to maintain
insider status in Party dealings.” One Cisco PowerPoint
presentation noted that the key purpose of the Golden Shield
project included douzheng, and other Cisco reports referred
to “Strike Hard” campaigns against “evil cults.” A Cisco
software engineer allegedly described douzheng as a “major
purpose” of the software. And Cisco’s website discusses the
ability of Cisco’s network design features to enhance “social
stability,” a term Plaintiffs allege Cisco knew was a code
word for the elimination of dissident groups, including the
“douzheng of Falun Gong.” A Cisco training session
available online in 2012 described Falun Gong practitioners
as “viruses” and “pestilence,” mirroring Party propaganda.
Plaintiffs also allege that Cisco internal files contain
references to the Chinese authorities’ douzheng goals in
building and improving the Golden Shield, including
mention of Office 610 (an entity focused specifically on the
targeting of Falun Gong practitioners) and of detention
DOE I V. CISCO SYSTEMS, INC. 61
centers, hospitals, psychiatric facilities, and re-education
through labor camps. Other Cisco internal reports allegedly
“confirm that local security officers stationed outside of big
cities used the Golden Shield as the means to identify,
capture and forcibly convert Falun Gong adherents between
2001 and 2012.”
Additionally, both shareholders and contracted
consulting groups allegedly brought to Cisco’s attention that
human rights abuses were rampant in Chinese authorities’
targeting of Falun Gong. Shareholder resolutions offered in
2002, 2003, 2005, 2006, 2007, 2008, and 2010 documented
concerns regarding abuses arising from the provision of
technology abroad, “including and especially [in] China,”
and called for internal investigation. One shareholder
publicly divested from Cisco in 2011 because of those
human rights concerns. Plaintiffs also allege that Cisco
“hired consulting agencies to provide regular updates and
compilations of news articles, among other sources of
information that describe the persecutory goals of the
[Golden Shield] apparatus,” and that the information the
consultants provided “made clear that those goals included
torture and other human rights abuses.”
In the United States and Europe, both independent news
media and government entities reported on the widespread
abuses taking place in China against the Falun Gong
movement. The U.S. State Department issued reports on the
situation, documenting the use of detention and torture as
early as 1999 and every year since. For example, the “State
Department Country Report on Human Rights Practices for
2011 describes widespread accounts of Falun Gong
adherents being committed to mental health facilities and
involuntarily subjected to psychiatric treatment (including
forcible medication and electric-shock treatment) for
62 DOE I V. CISCO SYSTEMS, INC.
political reasons.” Other groups also published concerns
with the violations of international law committed during
China’s crackdown on Falun Gong, including the U.S.
Commission on International Religious Freedom (2012
Report), the United Nations Human Rights Council’s
Special Rapporteur, and the European Parliament. Finally,
the New York Times, Associated Press, Wall Street Journal,
and other news outlets widely reported on the torture,
including torture resulting in death, and detention of Falun
Gong adherents in China.
In sum, the complaint alleges facts demonstrating that
Cisco was aware of the Party and Chinese authorities’ goal
to use Golden Shield technology to target Falun Gong
adherents and that it was widely known that the authorities’
efforts involved significant and ongoing violations of
international law, especially torture and arbitrary detention.
We conclude that Plaintiffs’ allegations, accepted as true, are
sufficient to state a plausible claim that Cisco provided
essential technical assistance to the douzheng of Falun Gong
with awareness that the international law violations of
torture, arbitrary detention, disappearance, and extrajudicial
killing were substantially likely to take place. See Sesay, ¶
546. 22
22
We note that we would likely reach the same conclusion were we to
apply the purpose mens rea; these same allegations, accepted as true, are
likely sufficient to state a plausible claim that Cisco acted with the
purpose of facilitating the violations of international law. The purpose
mens rea standard under international law is, as we have discussed, ill
defined. We have held that where a defendant “supported” and
“benefitted” from the commission of a violation, the purpose mens rea
standard is satisfied. Nestle I, 766 F.3d at 1024–25.
DOE I V. CISCO SYSTEMS, INC. 63
3. Extraterritoriality
Cisco maintains that Plaintiffs have failed to plead facts
sufficient to overcome the presumption against
extraterritoriality articulated in Kiobel, 569 U.S. at 124–25,
and Nestle II, 141 S. Ct. at 1936. Specifically, Cisco
contends that the complaint fails to connect the illegal acts
of Chinese security on Chinese soil to Cisco’s corporate
conduct in San Jose, California. According to Cisco,
Plaintiffs have pleaded only domestic conduct amounting to
general corporate activity, which is not actionable under the
ATS.
We disagree as to corporate defendant Cisco. Plaintiffs’
allegations, taken as true, state a plausible claim that the
In Nestle I, the “defendants allegedly supported the use of child
slavery” to “reduce costs.” Id. at 1024. Here, Plaintiffs allege that Cisco
“acknowledged” in “internal files . . . that the purpose of the Golden
Shield was to douzheng Falun Gong and described this goal as a lucrative
business opportunity for the company.” If true, then Cisco supported the
douzheng and benefitted from specifically tailoring its assistance,
including software, training, and messaging, to the illegal goals of the
Party and Public Security. Had Cisco not tailored its assistance in this
way, it would not have obtained the lucrative contracts.
Alternatively, adopting the intent standard from Article 30 of the
Rome Statute, an accused must “mean to engage in the conduct” and do
so with “aware[ness] that [a consequence] will occur in the ordinary
course of events.” Rome Statute, art. 30(2). Cisco indisputably meant to
market and develop technology and provide years of technological
assistance, maintenance, and training to the Party and Chinese
authorities. And, as above, Plaintiffs’ allegations, accepted as true, are
sufficient to state a plausible claim that Cisco provided that assistance
with awareness that violations of international law would occur in the
ordinary course of events taking place in China relating to the
persecution of Falun Gong.
64 DOE I V. CISCO SYSTEMS, INC.
corporation took substantial actions domestically that aided
and abetted violations of international law.
a. Background
Kiobel held that the ATS does not apply
extraterritorially. 569 U.S. at 124. When plaintiffs seek to
apply a statute that “does not apply extraterritorially, [they]
must establish that ‘the conduct relevant to the statute’s
focus occurred in the United States.’” Nestle II, 141 S. Ct. at
1936 (majority op.) (quoting RJR Nabisco, 579 U.S. at 337);
see Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 266
(2010). If so, “the case involves a permissible domestic
application even if other conduct occurred abroad.” Id.
(quoting RJR Nabisco, 579 U.S. at 337).
Kiobel and Nestle II held that “mere corporate presence,”
Kiobel, 569 U.S. at 125, and “allegations of general
corporate activity,” including corporate decision-making,
are insufficient to show domestic conduct warranting
application of the ATS, Nestle II, 141 S. Ct. at 1937
(majority op.). In both cases, the plaintiffs also alleged that
the defendants took specific actions that aided and abetted
violations of international law, but those alleged actions by
defendants took place entirely (or nearly entirely) abroad.
Kiobel, 569 U.S. at 124; Nestle II, 141 S. Ct. at 1936–37
(majority op.).
In Kiobel, petitioners sued several foreign oil companies
under the ATS for aiding and abetting the Nigerian
government in committing violations of international law.
569 U.S. at 111–12. The petitioners alleged the companies
provided Nigerian forces with food, transportation, and
money and allowed the forces to make use of company land
in Nigeria. Id. at 113. “[A]ll the relevant conduct took place
outside the United States,” and the only alleged conduct
DOE I V. CISCO SYSTEMS, INC. 65
within the United States was “mere corporate presence.” Id.
at 124–25. The Court concluded that the defendants’ actions
did not “touch and concern the territory of the United States
. . . with sufficient force to displace the presumption against
extraterritorial application.” Id.
Likewise, in Nestle II, the Court held that “the conduct
relevant to the statute’s focus” did not occur in the United
States. 141 S. Ct. at 1936 (majority op.) (quoting RJR
Nabisco, 579 U.S. at 337). The parties disputed what
conduct was relevant to the focus of the ATS. Id. The
plaintiffs contended that “the ‘focus’ of the ATS is conduct
that violates international law, that aiding and abetting
forced labor is a violation of international law, and that
domestic conduct can aid and abet an injury that occurs
overseas.” Id. Assuming but not deciding that the plaintiffs
were correct in these respects, the Court held that the
complaint impermissibly sought extraterritorial application
of the ATS. Id. at 1936–37. “Nearly all the conduct” alleged
to constitute aiding and abetting child slavery, including
“providing training, fertilizer, tools, and cash to overseas
farms,” “occurred in Ivory Coast,” the Court noted. Id. at
1937. And the Court reiterated that “allegations of general
corporate activity—like decisionmaking—cannot alone
establish domestic application of the ATS.” Id.
The analysis in Nestle II treated the specific actions the
defendants were alleged to have taken to assist the
principal—that is, the actus reus of the alleged aiding and
abetting—as the “conduct relevant to the statute’s focus.”
141 S. Ct. at 1936–37 (majority op.). The Second Circuit has
applied a similar approach, explaining that the “relevant
conduct” in assessing whether plaintiffs seek to apply the
ATS extraterritorially is “the conduct constituting the
alleged offenses under the law of nations”—in cases such as
66 DOE I V. CISCO SYSTEMS, INC.
this one, “conduct that constitutes aiding and abetting
another’s violation of the law of nations.” Mastafa v.
Chevron Corp., 770 F.3d 170, 184–85 (2d Cir. 2014).
For purposes of assessing the “focus” of the ATS to
apply the extraterritoriality limitation, conduct that occurs
within the United States and violates customary international
law is most relevant to the ATS’s aim of providing a forum
to address violations of international norms that take place
in U.S. territory. See Jesner, 138 S. Ct. at 1396–97 (majority
op.). As discussed, supra Discussion, Part I.B.1, aiding and
abetting a violation of international law establishes
individual or corporate liability for a violation of the law of
nations. Under the assumption the Supreme Court applied in
Nestle II, in accord with the Second Circuit’s approach in
Mastafa, conduct within the United States that constitutes
aiding and abetting a violation of international law, “even if
other conduct [i.e., the principal’s acts] occurred abroad,” is
a violation of the law of nations that falls within the “focus”
of the ATS. See Nestle II, 141 S. Ct. at 1936 (majority op.)
(quotation omitted).
As we have established, Plaintiffs have plausibly alleged
that Cisco took actions that satisfied the actus reus and mens
rea of aiding and abetting liability. See supra Discussion,
Part I.B.2. We now consider whether those alleged actions
took place in the United States.
b. Application
(i) Corporate Defendant Cisco
As discussed, supra Discussion, Part I.B.2.a(ii), Cisco is
alleged to have supplied significant software, hardware, and
ongoing support to the Party and Chinese authorities,
thereby providing assistance with substantial effect on the
DOE I V. CISCO SYSTEMS, INC. 67
commission of international law violations. Specifically, the
complaint alleges that the Golden Shield apparatus was
“designed and developed by Defendants in San Jose,” and
that “[a]ll of the high level designs provided by Cisco to its
Chinese customers were developed by engineers with
corporate management in San Jose, the sole location where
Cisco cutting edge integrated systems and components were
researched and developed.”
The complaint also alleges corporate decision-making
and oversight in San Jose of actions taken in China to build
and integrate Golden Shield technology provided by Cisco.
But the complaint further notes that “[i]n addition [to
general decision-making], the Defendants, from their San
Jose headquarters, handled all aspects of the high-level
design phases including those enabling the douzheng of
Falun Gong.” During the request for proposal and design
phases, for example, “the Defendants in San Jose described
sophisticated technical specification linked to the . . .
functions of the Golden Shield, including . . . who can access
information, how the information is transmitted,
transmission speeds, [and] data storage location and
capacity.”
The complaint additionally alleges “[f]or technologically
advanced important overseas projects like the Golden
Shield, [Cisco] operating out of San Jose routinely assigns
its own engineering resources to design and implement the
project in its entirety and in particular through its Advanced
Services Team[,] . . . a specialized service offered by San
Jose Defendants that employs experts and engineers in
network technology for large-scale overseas projects or
important clients.” For the Golden Shield technology,
specifically, the “operation and optimization phases” were
“orchestrated” from San Jose, and system practices were
68 DOE I V. CISCO SYSTEMS, INC.
“carefully analyzed and made more efficient as well as
increased in scope by Cisco engineers in San Jose.”
Additionally, the “post-product maintenance, testing and
verification, [and] training and support” that “Cisco
provided to Public Security” “required intensive and
ongoing involvement by Cisco employees in San Jose.”
Finally, “San Jose manufactured key components of the
Golden Shield in the United States, such as Integrated circuit
chips that function in the same manner as the Central
Processing Unit of a computer.”
Additionally, Plaintiffs have plausibly alleged that
Cisco’s domestic activities satisfied the mens rea for aiding
and abetting liability. For example, the “anti-Falun Gong
objectives communicated to Cisco were . . . outlined in
Cisco internal reports and files . . . kept in San Jose.” Cisco
materials using the term douzheng to describe the purpose of
the Golden Shield, and referring to “Strike Hard” campaigns
against “evil cults,” “were identified as emanating from
Cisco San Jose.” And, as discussed above, U.S. government
entities and news media widely reported on the torture and
detention of Falun Gong adherents in China.
In sum, Plaintiffs allege that Cisco designed, developed,
and optimized important aspects of the Golden Shield
surveillance system in California; that Cisco manufactured
hardware for the Golden Shield in California; that Cisco
employees in California provided ongoing maintenance and
support; and that Cisco in California acted with knowledge
of the likelihood of the alleged violations of international
law and with the purpose of facilitating them.
Contrary to Cisco’s arguments, the corporation’s
domestic actions, as plausibly alleged in the complaint, well
exceeded “mere corporate presence” or simple corporate
DOE I V. CISCO SYSTEMS, INC. 69
oversight and direction. Kiobel, 569 U.S. at 125. Rather, the
design and optimization of integrated databases and other
software, the manufacture of specialized hardware, and
ongoing technological support all took place in California.
Unlike in Kiobel and Nestle, in which all or nearly all the
actions that constituted assistance to the principal occurred
abroad, the domestic activities alleged here constituted
essential, direct, and substantial assistance for which aiding
and abetting liability can attach. So, with regard to corporate
defendant Cisco, Plaintiffs’ allegations support application
of the ATS. 23
The Second Circuit’s holding in Balintulo v. Ford
supports our conclusion. The plaintiffs in Balintulo alleged
that IBM aided and abetted violations of international law
through the design and provision of technology to the
apartheid regime of South Africa. 796 F.3d at 165.
Specifically, the Balintulo plaintiffs alleged that IBM in the
United States “developed both the hardware and the
software—both a machine and a program—to create” a
particular identity document in an apartheid regime in which
identity documents “were an essential component.” Id. at
169. The Second Circuit concluded that “designing
particular technologies in the United States that would
facilitate South African racial separation” would be
sufficient to overcome the presumption against
23
We do not address as to extraterritoriality the corporate relationship
between Cisco China and Cisco. The Second Circuit has held that the
actions of subsidiaries do not overcome the presumption against
extraterritoriality in suits against the U.S. parent corporation. Balintulo
v. Ford, 796 F.3d at 168–69. Here, we conclude Plaintiffs have plausibly
alleged that Cisco in San Jose, California, provided substantial assistance
to the Party and Chinese authorities. Whether Cisco China’s actions may
be appropriately imputed to Cisco does not matter to this conclusion.
70 DOE I V. CISCO SYSTEMS, INC.
extraterritoriality if that activity, considered separately,
satisfied the actus reus and mens rea of aiding and abetting
liability. Id. at 169–70. 24 The design and provision of
hardware and software in Balintulo closely resembles what
Plaintiffs here allege to have occurred in San Jose.
We conclude that Plaintiffs’ case against Cisco “involves
a permissible domestic application [of the ATS] even if other
conduct occurred abroad.” Nestle II, 141 S. Ct. at 1936
(majority op.) (quotation omitted).
(ii) Defendants Chambers and Cheung
By contrast, Plaintiffs do not sufficiently connect the
alleged actions taken by Chambers or Cheung to the United
States.
Chambers is alleged to have directly participated in the
Cisco Golden Shield project by ratifying key decisions while
in San Jose and by meeting with Chinese authorities in
China. Chambers’s ratification of key decisions is equivalent
to general corporate presence and oversight and so does not
ground the claim against him in any domestic actus reus. See
Nestle II, 141 S. Ct. at 1937 (majority op.). Chambers’s
meetings with Chinese authorities took place in China and
so cannot support the domestic application of the ATS. As
to Cheung, Plaintiffs allege no conduct linking Cheung, who
was the Vice President of Cisco China during the pertinent
time period, to the territory of the United States.
In short, the complaint does not allege actions taken by
Chambers and Cheung that sufficiently touch and concern
24
The Second Circuit ultimately concluded that the allegations of the
complaint failed to meet the mens rea requirement for aiding and
abetting liability. Balintulo v. Ford, 796 F.3d at 170.
DOE I V. CISCO SYSTEMS, INC. 71
the United States to overcome the presumption against
extraterritorial application of the ATS.
4. State Action
Cisco argues that Plaintiffs’ ATS claims require a
showing of state action, and that the pleadings do not
sufficiently allege conduct demonstrating that Cisco acted
under color of state law. Specifically, Cisco contends that
Plaintiffs have not adequately pleaded that Cisco’s “acts can
fairly be characterized as being taken jointly with the”
Chinese government.
Cisco is correct that “‘certain forms of conduct’ violate
the law of nations only when undertaken by state actors or
those acting under color of law.” Khulumani, 504 F.3d at 281
(Katzmann, J., concurring) (quoting Kadic, 70 F.3d at 239).
We note that not all violations of international law require
state action. Courts have recognized several that do not,
including the prohibitions against piracy, the slave trade, and
certain war crimes. See, e.g., Kadic, 70 F.3d at 239;
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1263 (11th
Cir. 2009), abrogated on other grounds by Mohamad v.
Palestinian Auth., 566 U.S. 449, 453 n.2 (2012). But we
assume for purposes of this analysis that at least some of the
substantive international law violations that Plaintiffs have
alleged require a showing of state action.
Cisco misunderstands how this state action requirement
operates in the context of an aiding and abetting claim.
Plaintiffs do not allege that Cisco committed any of the
alleged international law violations directly. To the contrary,
Plaintiffs’ allegations of aiding and abetting require “‘a
predicate offence committed by someone other than
[Cisco],’ in this case, a state actor or someone acting under
color of law.” Khulumani, 504 F.3d at 281 (Katzmann, J.,
72 DOE I V. CISCO SYSTEMS, INC.
concurring) (quoting Prosecutor v. Akayesu, Case No.
ICTR–96–4–T, Trial Chamber Judgment, ¶ 529 (Rwanda
Tribunal Sept. 2, 1998)).
“International law,” like domestic law, “recognizes that
criminality is assessed by reference to the actions of the
principal, not the aider and abettor.” Id. at 282 (Katzmann,
J., concurring) (citing Akayesu, ¶ 528). Plaintiffs need not
show that Cisco satisfied the elements of the substantive
crime, only that Cisco satisfied the actus reus and mens rea
of aiding and abetting liability. Thus, we agree that Cisco
“could be held liable as an aider and abettor of the violation
of a norm requiring state action” when Cisco, as a private
actor, “could not be held liable as a principal.” Id. at 281
(Katzmann, J., concurring). We recognize the same rule, that
an aider and abettor need not share a requisite status or
capacity with the principal, in our domestic law. For
example, a defendant who is not “an officer, agent, or
employee of” a federally insured financial institution, and
therefore could not be charged personally with a substantive
offense “which could only be committed by” such “an
officer, agent, or employee,” may still be found guilty of
aiding and abetting such a violation. United States v. Smith,
891 F.2d 703, 710 (9th Cir. 1989), amended, 906 F.2d 385
(9th Cir. 1990).
Although Plaintiffs need not establish that Cisco itself
acted under color of state law, they must show, for at least
some of the alleged international law violations, that Cisco
aided and abetted the offenses of a state actor. Many of the
allegations in the complaint involve the Chinese Communist
Party, which is alleged to be “organizationally and
operationally distinct from the Chinese State.” But Plaintiffs
have also plausibly alleged that Cisco provided assistance to
Chinese state law enforcement, known as “Public Security,”
DOE I V. CISCO SYSTEMS, INC. 73
see supra n.2, that had substantial effects on that entity’s
violations of international law.
According to the complaint, Public Security participated
extensively in the development and use of the Golden Shield
surveillance system to persecute Falun Gong practitioners.
Plaintiffs allege that both the Party and “Chinese security”
proposed the creation of the Golden Shield network and “in
concert” sought the assistance of Western technology
companies. 25 “Public Security” issued the request for
proposals that led to Cisco’s selection as the entity that
would submit the “high-level design” as early as August
2001. That system’s design was specifically keyed to
“interface with the larger Public Security confidential
security systems.” Regional Chinese authorities announced
the need for such a system, and described the system as an
“essential” tool for the identification, detention, and forced
conversion (torture) of Falun Gong adherents. Plaintiffs
further allege that Cisco cultivated relationships both with
Party members and Public Security officials to determine the
aims and needs of the Golden Shield technology and
improve design and implementation. Finally, Plaintiffs
allege that Cisco trained and provided ongoing technological
assistance and “customer services” to “Chinese security
officers” generally and to “Public Security officers . . . to
enable them to use the customized technologies to suppress
Falun Gong.”
These allegations plausibly show that the Chinese state
participated in the commissioning, design, long-term
development, and use of the Golden Shield technology to
25
The complaint defines “Chinese security” to include “[Office] 610
officers, other Party agents and Public Security officers.”
74 DOE I V. CISCO SYSTEMS, INC.
identify, detain, and torture Falun Gong adherents. The
allegations also show that corporate defendant Cisco
provided assistance with substantial effect on the Chinese
state’s alleged violations of international law, with
knowledge of the likelihood of the violations and with the
purpose of facilitating them. See supra Discussion, Part
I.B.2. The state action requirement is therefore satisfied.
II. The Torture Victim Protection Act of 1991
Plaintiff Charles Lee—not the other plaintiffs—alleges
that Chambers and Cheung violated the TVPA by aiding and
abetting torture. The district court dismissed the claim on the
ground that Bowoto v. Chevron Corporation, 621 F.3d 1116,
1128 (9th Cir. 2010), forecloses aiding and abetting claims
under the TVPA. We disagree that Bowoto decided this
question. After analyzing the TVPA’s statutory language,
structure, and background independently of Bowoto, we hold
that aiding and abetting torture is actionable under the
TVPA. We then review the complaint to determine whether
the allegations are sufficient to state a claim against
Chambers and Cheung for aiding and abetting torture under
the TVPA, and we hold that they are.
A. Aiding and Abetting Liability
Congress enacted the TVPA in 1992 to “establish[] a
civil action for recovery of damages from an individual who
engages in torture or extrajudicial killing.” Pub. L. No. 102-
256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note).
The statute provides that “[a]n individual who, under actual
or apparent authority, or color of law, of any foreign nation
. . . subjects an individual to torture shall, in a civil action,
be liable for damages to that individual.” 28 U.S.C. § 1350
note § 2(a).
DOE I V. CISCO SYSTEMS, INC. 75
Bowoto did not decide whether aiding and abetting
liability is available under the TVPA, the district court’s
understanding to the contrary notwithstanding. The primary
question decided in Bowoto was whether, because the
prohibitions in the TVPA apply to “individual[s],”
corporations cannot be liable under the statute. 621 F.3d at
1126–28; see 28 U.S.C. § 1350 note § 2(a). Bowoto decided
that corporations are not “individual[s]” for purposes of the
TVPA’s liability provision. 621 F.3d at 1126–28.
The Bowoto plaintiffs had argued, alternatively, that
even if corporations are not generally covered by the TVPA,
they can nonetheless be liable when they direct individuals
to commit torture. Bowoto rejected this possibility, holding
that the “TVPA . . . does not contemplate such liability.” Id.
at 1128. Rather, Bowoto explained, as the statute “limits
liability to ‘[a]n individual’ who subjects another to torture,”
“[e]ven assuming the TVPA permits some form of vicarious
liability, the text limits such liability to individuals, meaning
in this statute, natural persons.” Id. In other words, Bowoto
foreclosed all corporate liability under the TVPA, including
corporate accomplice liability, but did not decide whether
individuals can be liable under the statute vicariously or as
accomplices. Here, Lee sues only two individuals, Chambers
and Cheung, under the TVPA, so Bowoto’s preclusion of
corporate accomplice liability is not pertinent.
Addressing the question of aiding and abetting liability
under the TVPA as a matter of first impression in our Court,
we begin with the language of the statute. See, e.g., United
States v. Nishiie, 996 F.3d 1013, 1020 (9th Cir. 2021). The
statute provides liability for an individual who “subjects an
individual to torture.” 28 U.S.C. § 1350 note § 2(a). It does
not specify that an individual must directly “torture” another.
The statute defines “torture” as the “intentional[]
76 DOE I V. CISCO SYSTEMS, INC.
inflict[ion]” of any act causing “severe pain or suffering.” 28
U.S.C. § 1350 note § 3(b). If Congress had intended to
restrict TVPA liability to those who themselves intentionally
commit acts causing severe pain or suffering, it could have
used the term “tortures” or “inflicts torture” in section 2(a),
the liability provision.
Instead, the term used was “subjects an individual to
torture.” The dictionary definition of the verb “subject”
includes “to cause or force to undergo or endure (something
unpleasant, inconvenient, or trying).” Subject, Merriam-
Webster, https://www.merriam-
webster.com/dictionary/subject (last visited Feb. 24, 2023);
see also Subject, American Heritage Dictionary,
https://www.ahdictionary.com/word/search.html?q=subject
(last visited Feb. 24, 2023) (defining the verb “subject” as
“[t]o cause to experience, undergo, or be acted upon”).
“Subjects . . . to torture” thus encompasses not only
individuals who directly torture another but also those who
in some respect cause another to undergo torture.
“Congress’s explicit decision to use one [term] over
another in drafting a statute,” where the two have different
meanings, “is material.” SEC v. McCarthy, 322 F.3d 650,
656 (9th Cir. 2003). Here, the more comprehensive term,
“subjects . . . to torture,” indicates that the statute
contemplates liability for actions that helped bring about the
torture but did not directly inflict it. The use of the term
“subjects . . . to torture,” instead of simply “tortures,” is thus
“imbued with legal significance and should not be presumed
to be random or devoid of meaning.” Id.
Consistent with this understanding of the “subjects to”
locution as imposing liability on individuals who help bring
about torture but do not themselves inflict it, both the
DOE I V. CISCO SYSTEMS, INC. 77
Supreme Court and several circuits, including ours, have
held that TVPA liability is not limited to those who directly
torture others. The Supreme Court has recognized that “the
TVPA contemplates liability against officers who do not
personally execute the torture or extrajudicial killing.”
Mohamad v. Palestinian Authority, 566 U.S. 449, 458
(2012) (citing Chavez v. Carranza, 559 F.3d 486 (6th Cir.
2009)). Similarly, our circuit and others have determined
that the TVPA provides for “command responsibility”
liability—that is, the vicarious liability of superior officers
for the actions of subordinates if the superior knew of the
unlawful actions a subordinate planned to take and did not
act to stop them. See, e.g., Hilao v. Est. of Marcos, 103 F.3d
767, 777, 779 (9th Cir. 1996); Chavez, 559 F.3d at 499;
Cabello, 402 F.3d at 1157. The Second Circuit has
additionally recognized agency theories of liability under the
TVPA. Chowdhury v. WorldTel Bangladesh Holding, Ltd.,
746 F.3d 42, 53 (2d Cir. 2014).
“In addition to exploring the text of the statute itself, we
examine the relevant statutory context” and “history.”
Nishiie, 996 F.3d at 1024 (quoting County of Amador v. U.S.
Dep’t of the Interior, 872 F.3d 1012, 1022 (9th Cir. 2017)).
Besides command responsibility and other vicarious theories
of liability, the history of the TVPA strongly “indicates that
the [statute] was intended to reach . . . those . . . abetting[] or
assisting in the violation.” Cabello, 402 F.3d at 1157–58. We
review this background as a supplement to our primary focus
on the statutory text because it “can help to elucidate . . . the
meaning of statutory terms and phrases,” County of Amador,
872 F.3d at 1022, here, the broad statutory term “subjects
to.”
The TVPA secured a cause of action for victims of
torture as torture is defined by international law. The Senate
78 DOE I V. CISCO SYSTEMS, INC.
Report on the TVPA explained that after Filartiga, “[a]t least
one Federal judge . . . questioned whether [the ATS] can be
used by victims of torture committed in foreign nations
absent an explicit grant of a cause of action by Congress.” S.
Rep. No. 102-249, at 4–5 (1991). The TVPA “provide[d]
such a grant,” and “enhance[d] the remedy already
available” under the ATS by providing a remedy for U.S.
citizens tortured abroad. Id. at 5.
Toward that end, the TVPA adopted its definition of
torture directly from the Convention Against Torture,
confirming that the TVPA “carr[ied] out the intent of the
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment,” as the Senate Report
stated. Id. at 3, 6; see Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
(“Convention Against Torture”) art. 1(1), Dec. 10, 1984, S.
Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. 26 As we
have discussed, supra Discussion, Part I.B.1, aiding and
abetting liability is universally recognized under
international customary law, including for torture.
Moreover, the Convention Against Torture, from which the
TVPA adopted its “torture” definition, contemplates
accomplice liability. Article 4 of the Convention Against
Torture requires that each state party to the convention enact
domestic criminal laws prohibiting torture, and that such
prohibitions extend “to an act by any person which
constitutes complicity or participation in torture.”
Convention Against Torture, art. 4. The genesis of the
TVPA’s torture concept in the Convention Against Torture
26
The Senate Report repeatedly invokes cases applying international
law, evidencing that international law determines the scope of liability
for torture under the TVPA. Id. at 9 & nn.17–18.
DOE I V. CISCO SYSTEMS, INC. 79
thus supports interpreting the term “subjects . . . to” in
section 2(a) of the TVPA to cover accomplice liability.
Reflecting the statute’s background in the Convention
Against Torture, the Senate Report on the TVPA explicitly
notes that the statute provides a cause of action “against
persons who ordered, abetted, or assisted in the torture.” S.
Rep. No. 102-249, at 8 (emphasis added).
In sum, based on the text and Convention Against
Torture background of the TVPA, we conclude that the
TVPA encompasses claims against those who aid and abet
torture or extrajudicial killing.
Chambers and Cheung’s principal contention to the
contrary—that Central Bank of Denver prohibits
interpreting the TVPA to allow for aiding and abetting
liability—is unpersuasive. Central Bank of Denver held that
the text of section 10(b) of the Securities Exchange Act of
1934 does not prohibit aiding and abetting fraud. 511 U.S. at
175–77. Noting that “aiding and abetting liability reaches
persons who do not engage in the proscribed activities at
all,” Central Bank of Denver concluded the statute’s
prohibition of “directly or indirectly” engaging in specified
activity does not apply to people who aid and abet the
activity. Id. at 176. The Court in Central Bank of Denver also
found no indication in the legislative history to suggest
Congress meant the section to extend to aiders and abettors.
Id. at 183. Finally, Central Bank of Denver rejected an
argument that the Court should adopt a “broad-based notion
of congressional intent” presuming the inclusion of aiding
and abetting liability in civil statutes. Id. at 180–81. The
Court “decline[d] to recognize such a comprehensive rule
with no expression of congressional direction to do so.” Id.
at 183.
80 DOE I V. CISCO SYSTEMS, INC.
Chambers and Cheung read this last ruling expansively,
maintaining that Central Bank of Denver established a
presumption that Congress has not provided for aiding and
abetting liability in a civil statute where it has not done so
expressly. That is not what Central Bank of Denver said. The
opinion declined to create a presumption favoring the
inclusion of aiding and abetting liability in a civil statute, but
it did not adopt the opposite presumption.
Moreover, Chambers and Cheung’s reliance on Central
Bank of Denver’s other rationales for rejecting aiding and
abetting liability does not account for key distinctions
between the text and background of the Securities Exchange
Act of 1934 and the TVPA. Unlike the “directly or
indirectly” language of the Securities Exchange Act, the
TVPA employs the term “subjects to,” and, as we have
explained, has been interpreted to permit liability for those
who did “not engage in the proscribed activities”—here,
torture—“at all.” Cent. Bank of Denver, 511 U.S. at 175; see
Mohamad, 566 U.S. at 458. Also, unlike the history of the
Exchange Act, which the Court concluded evidenced no
intent to proscribe aiding and abetting of fraud, Central Bank
of Denver, 511 U.S. at 183, the TVPA’s background, as we
have discussed, confirms that liability under the TVPA
extends to those who abetted, participated in, or were
complicit in torturing others, even if those individuals did
not themselves engage in the torturous acts.
B. Application
As discussed in the preceding section, international law
determines the scope of liability for torture under the TVPA.
We therefore apply the same standards for aiding and
abetting liability that we applied under the ATS. See supra
Discussion, Part I.B.2.
DOE I V. CISCO SYSTEMS, INC. 81
1. Actus Reus
Plaintiffs allege Chambers and Cheung directly
participated in the marketing, design, and implementation of
Cisco’s work on the Golden Shield, and that both were
sufficiently high-ranking within Cisco to have the ability to
influence Cisco’s work in China. To support these
allegations, Plaintiffs cite general workflow charts of Cisco
that describe Chambers as overseeing and directing all
projects. Plaintiffs also recount Chambers’s frequent visits
to China to oversee Cisco’s work on the Golden Shield
project, during which Chambers cultivated a personal
relationship with Chairman Jiang Zemin and other Party
officials. 27 Chambers is alleged to have personally initiated
or ratified the Golden Shield project, while Cheung is
alleged to have directly overseen all security projects in
China. Finally, Chambers and Cheung served on Cisco’s
China Strategy Board, which, Plaintiffs allege, controls
Cisco’s China operations.
Accepting the alleged facts in the complaint as true, we
conclude that Plaintiffs have plausibly pleaded that
Chambers and Cheung’s direct participation in the
marketing and oversight of Cisco’s projects with the Party
and Chinese security, and their respective high rank and
influence within the corporation, constituted assistance to
Chinese authorities with substantial effect on the
commission of violations of international law, including
torture. Cf. The Zyklon B Case, 1 T.W.C. at 102 (discussing
the liability of a corporate officer for aiding and abetting war
27
Chambers and Cheung do not dispute that the TVPA applies
extraterritorially. See Doe v. Drummond Co., 782 F.3d 576, 601 (11th
Cir. 2015); Chowdhury, 746 F.3d at 51.
82 DOE I V. CISCO SYSTEMS, INC.
crimes in light of his inability “either to influence . . . or to
prevent” the acts constituting the crimes).
2. Mens Rea
Plaintiffs allege that shareholders presented their
concerns about human rights abuses facilitated by Cisco
technology directly to Chambers and other members of the
Board of Directors. Chambers allegedly attended meetings
with Chinese authorities in which douzheng was discussed,
and Chambers expressed his “support of the Golden Shield’s
douzheng objectives and goals.” Plaintiffs further allege that
Cheung used the term “social stability” when describing the
selling points of Cisco technology. Both Chambers and
Cheung allegedly received reports and PowerPoint
presentations from sales engineers containing references to
douzheng, making clear that repression of Falun Gong was
the purpose of Golden Shield technology.
Given the internal communications from shareholders
and widespread external reporting about the human rights
abuses ongoing in Chinese authorities’ targeting of Falun
Gong adherents, see supra Discussion, Part I.B.2.b(ii), as
well as the direct statements by Chambers and Cheung
alleged in the complaint, Plaintiffs have adequately pleaded
that Chambers and Cheung provided their assistance with
awareness that international law violations, including
torture, were substantially likely. These allegations, taken as
true, also state a plausible claim that Chambers and Cheung
“supported” and “benefitted” from the use of the Golden
Shield to suppress Falun Gong, and so acted with the
purpose of facilitating the violations. Nestle I, 766 F.3d at
1024–25.
We conclude that the District Court erred in dismissing
the TVPA claim on the ground that the statute does not
DOE I V. CISCO SYSTEMS, INC. 83
contemplate accomplice liability for individuals, and that
Plaintiff Lee has plausibly alleged that Chambers and
Cheung aided and abetted torture under the TVPA. We
reverse the dismissal and remand Plaintiff Lee’s claim for
further proceedings.
CONCLUSION
To summarize:
With respect to the ATS, we first reaffirm that aiding and
abetting liability is a norm of customary international law
with sufficient definition and universality to establish
liability under the ATS. Because recognizing aiding and
abetting liability does not raise separation-of-powers or
foreign policy concerns under Sosa step two, such liability is
cognizable under the ATS.
Second, Plaintiffs have plausibly alleged that corporate
defendant Cisco took actions constituting the actus reus and
satisfied the mens rea for aiding and abetting liability.
Third, Plaintiffs’ allegations state a plausible claim that
corporate defendant Cisco took actions domestically that
aided and abetted violations of international law. Plaintiffs’
allegations against Chambers and Cheung, however,
impermissibly seek extraterritorial application of the ATS,
and so we affirm the dismissal of the ATS claims against
those two individuals.
Fourth, Plaintiffs have plausibly alleged that corporate
defendant Cisco aided and abetted the international law
violations of the Chinese state, satisfying the state action
requirement.
We remand the ATS claims for further proceedings
consistent with this opinion, including consideration of
84 DOE I V. CISCO SYSTEMS, INC.
whether the underlying alleged violations of international
law meet Sosa’s two-step test.
We reverse the district court’s dismissal of Plaintiff
Lee’s TVPA claim against Chambers and Cheung. We hold
that the TVPA encompasses claims against those who aid
and abet torture, and that the complaint adequately alleges
that Chambers and Cheung did so. We remand the TVPA
claim for further proceedings.
For these reasons, we affirm the dismissal of Plaintiffs’
ATS claims against Chambers and Cheung; reverse the
district court’s dismissal of the Plaintiffs’ ATS claims
against corporate defendant Cisco and of Plaintiff Lee’s
TVPA claims against Chambers and Cheung; and remand
for further proceedings. Costs on appeal are awarded to
Plaintiffs. Fed. R. App. P. 39(a)(4).
AFFIRMED in part; REVERSED in part; and
REMANDED.
CHRISTEN, Circuit Judge, concurring in part and dissenting
in part.
I join Part II of the majority’s opinion because I agree
with my colleagues that Plaintiffs’ complaint states a claim
under the Torture Victim Protection Act. See Slip Op. at 74–
83. The majority’s careful and cogent analysis of aiding and
abetting liability under the Alien Tort Statute in Part I is
consistent with the views of our sister circuits, and in an
appropriate case, I would likely join it. I do not do so here
because I conclude that recognizing liability for aiding and
abetting alleged human rights violations, committed in
China and against Chinese nationals by the Chinese
Communist Party and the Chinese government’s Ministry of
DOE I V. CISCO SYSTEMS, INC. 85
Public Security, is inconsistent with the purpose of the Alien
Tort Statute. 1 I would affirm the dismissal of Plaintiffs’
Alien Tort Statute claims on this basis, and go no further.
The First Congress enacted the Alien Tort Statute (ATS)
in 1789 “to furnish jurisdiction for a relatively modest set of
actions alleging violations of the law of nations.” Sosa v.
Alvarez-Machain, 542 U.S. 692, 713, 720 (2004). “[T]here
is no indication that the ATS was passed to make the United
States a uniquely hospitable forum for the enforcement of
international norms.” Kiobel v. Royal Dutch Petroleum Co.,
569 U.S. 108, 123 (2013). The ATS’s primary objective was
“to promote harmony in international relations” and “avoid
foreign entanglements by ensuring the availability of a
federal forum where the failure to provide one might cause
another nation to hold the United States responsible for an
injury to a foreign citizen.” Jesner v. Arab Bank, PLC, 138
S. Ct. 1386, 1397, 1406 (2018). Three torts were actionable
under the ATS in 1789: “violation of safe conducts,
infringement of the rights of ambassadors, and piracy.” Id.
at 1397 (quoting Sosa, 542 U.S. at 715).
When Congress enacted the Torture Victim Protection
Act (TVPA) in 1991, it explicitly created a new cause of
action against individuals who commit torture or
extrajudicial killing in violation of international law under
actual or apparent authority, or color of law, of any foreign
nation. See 28 U.S.C. § 1350 note (Torture Victim
Protection); Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1937–
38 (2021) (opinion of Thomas, J.) (explaining that the TVPA
1
Like my colleagues, I understand the term “Public Security” in the
complaint to refer to the Chinese government’s Ministry of Public
Security. See Slip Op. at 10 n.2.
86 DOE I V. CISCO SYSTEMS, INC.
represents the first and only independent cause of action for
violations of international law that Congress has established
since the ATS was enacted). It is unclear why the complaint
in this case alleges a TVPA claim only on behalf of Plaintiff
Charles Lee, a United States citizen, and “class members
similarly situated,” but not on behalf of the Chinese national
plaintiffs. 2
The ATS’s goals are an awkward fit for Plaintiffs’
claims. Plaintiffs allege that Cisco, operating primarily from
California, violated the ATS by designing, implementing,
and helping to maintain a surveillance and internal security
network in collaboration with the Chinese Communist Party
and Ministry of Public Security. Plaintiffs allege this
network enabled the Party and the Ministry to identify
members of Falun Gong, a disfavored religious group in
China, and to systematically subject Falun Gong adherents
and their families to torture and other crimes against
humanity. Defendants contend that Chinese law designates
Falun Gong as an “illegal organization” and criminalizes
Plaintiffs’ activities. But at this stage, we accept the
Plaintiffs’ allegations as true and draw all reasonable
2
We have implicitly held that the TVPA applies to suits by foreign
nationals as well as those brought by United States citizens. See Hilao
v. Est. of Marcos, 103 F.3d 767, 771 (9th Cir. 1996) (allowing a TVPA
claim by Philippine citizens); see also Chowdhury v. Worldtel
Bangladesh Holding, Ltd., 746 F.3d 42, 51 n.8 (2d Cir. 2014) (“[W]e
note that our affirmance of plaintiff’s TVPA claim here necessarily
recognizes that aliens—not just American citizens—may bring suit
under the TVPA . . . .”); Arce v. Garcia, 434 F.3d 1254, 1256–58 (11th
Cir. 2006) (allowing a TVPA claim by Salvadoran citizens); H.R. Rep.
No. 102–367(I), at 4 (1991) (“While the [ATS] provides a remedy to
aliens only, the TVPA would extend a civil remedy also to U.S. citizens
who may have been tortured abroad.” (emphasis added)); S. Rep. No.
102–249, at 5 (1991) (same).
DOE I V. CISCO SYSTEMS, INC. 87
inferences in their favor. Koala v. Khosla, 931 F.3d 887, 894
(9th Cir. 2019).
Plaintiffs allege that the Party and the Ministry are
“organizationally and operationally distinct,” but Plaintiffs’
allegations also suggest that the Communist Party’s
ideological control permeates the Chinese government’s
Public Security apparatus such that the two are effectively
inseparable, at least where Plaintiffs’ allegations of torture
and extrajudicial killing are concerned. Most saliently for
purposes of the question presented to our court, to prove that
Cisco aided and abetted the human rights violations alleged
in Plaintiffs’ complaint, Plaintiffs will have to prove that the
Chinese Communist Party and the Ministry of Public
Security committed human rights violations against Chinese
nationals.
In my view, Plaintiffs have not met the second step of
the Supreme Court’s test for recognizing a claim under the
ATS. Sosa’s second step requires Plaintiffs to show that we
should exercise our judicial discretion before recognizing
aiding and abetting as a viable cause of action for purposes
of this jurisdictional statute. Sosa, 542 U.S. at 726, 736 n.27.
Because Plaintiffs fail to clear the high bar at Sosa’s second
step, I would affirm the district court’s dismissal of
Plaintiffs’ ATS claims on that basis and not reach the other
issues the majority discusses in Part I.
In Sosa, the Court specified that the prudential concerns
we should consider in exercising our discretion include “the
practical consequences of making th[e] cause available to
litigants in the federal courts” as well as foreign policy
considerations. Id. at 732–33, 733 n.21. The Supreme Court
reiterated Sosa’s two-step framework in Jesner, where it
held that foreign corporations cannot be held liable under the
88 DOE I V. CISCO SYSTEMS, INC.
ATS. 138 S. Ct. at 1405. Jesner explained that “judicial
caution under Sosa ‘guards against our courts triggering . . .
serious foreign policy consequences, and instead defers such
decisions, quite appropriately, to the political branches.’” Id.
at 1407 (quoting Kiobel, 569 U.S. at 124). The Supreme
Court’s most recent decision on point was divided, but a
majority of the Court agreed that the second step of the Sosa
inquiry—whether prudential concerns militate against
recognizing aiding and abetting liability under the ATS—
demands that we exercise judicial discretion to avoid
creating foreign policy controversies. Nestlé, 141 S. Ct. at
1938 (opinion of Thomas, J.); id. at 1945 (Sotomayor, J.,
concurring in part and concurring in the judgment)).
I see several sound reasons to decline to recognize a
cause of action for aiding and abetting the acts alleged in
Plaintiffs’ complaint, and I am deeply concerned about the
practical consequences of allowing Plaintiffs’ claims to go
forward without input from the political branches. The
Supreme Court has explained that “[t]he political branches,
not the Judiciary, have the responsibility and institutional
capacity to weigh foreign-policy concerns.” Jesner, 138 S.
Ct. at 1403. Under the Constitution, “matters relating ‘to the
conduct of foreign relations . . . are so exclusively entrusted
to the political branches of government as to be largely
immune from judicial inquiry or interference.’” Haig v.
Agee, 453 U.S. 280, 292 (1981) (quoting Harisiades v.
Shaughnessy, 342 U.S. 580, 589 (1952)); see also Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803) (including the
Secretary of State’s discretionary foreign affairs functions as
beyond the power of the Judiciary to review). We are ill-
equipped to serve as instruments of foreign policy, an arena
in which it is particularly important for the United States to
DOE I V. CISCO SYSTEMS, INC. 89
speak “with one voice.” United States v. Pink, 315 U.S. 203,
242 (1942) (Frankfurter, J., concurring).
Federal courts were not designed to play a leading role
in our nation’s international affairs. Holding Cisco liable in
this case would not directly impose liability on the Chinese
government for its conduct with respect to its own nationals,
but a finding of liability in this case would necessarily
require a showing that the Chinese Communist Party and
Ministry of Public Security violated international law with
respect to the Chinese-national Plaintiffs. Such a finding
could have serious ramifications for Sino-American
relations, fraught as they already are. See Robert Knowles,
A Realist Defense of the Alien Tort Statute, 88 Wash. U.L.
Rev. 1117, 1151–52 (2011) (“China has the most important
and perhaps the most volatile bilateral relationship with the
United States. . . . [and] ATS litigation is arguably more
likely to impose substantial foreign policy costs in this
context than in any other.”); Daniel Abebe, Not Just
Doctrine: The True Motivation for Federal Incorporation
and International Human Rights Litigation, 29 Mich. J. Int’l
L. 1, 38 (2007) (“The need for confidence in national self[-
]image and China’s international status creates a particular
sensitivity to intentional or perceived insults by the United
States.”). The concerns the Court expressed in Jesner about
holding a foreign corporation liable apply tenfold to a case
that hinges on whether a foreign government’s treatment of
its own nationals violated international law. I see no way to
reconcile the majority’s decision to allow Plaintiffs’ claims
to proceed with the ATS’s aim “to promote harmony in
international relations by ensuring foreign plaintiffs a
remedy for international-law violations in circumstances
where the absence of such a remedy might provoke foreign
nations to hold the United States accountable.” Jesner, 138
90 DOE I V. CISCO SYSTEMS, INC.
S. Ct. at 1406. Plaintiffs’ claims and the ATS are at cross-
purposes: the availability of the remedy Plaintiffs seek is far
more likely to provoke a foreign nation than the absence of
such a remedy.
To be sure, Sosa contemplated that courts could
appropriately recognize a new cause of action under the ATS
on rare occasions. See Sosa, 542 U.S. at 729 (“[T]he judicial
power should be exercised on the understanding that the
door is still ajar subject to vigilant doorkeeping, and thus
open to a narrow class of international norms today.”). This
is not one of those rare occasions.
Even considering a hypothetical ATS case in which the
sovereign’s interest is less squarely in the crosshairs than the
one Plaintiffs present, we would surely be better prepared if
the views of the political branches were before us. For
instance, when it considered the South African Apartheid
litigation, the Second Circuit noted that the district court had
sua sponte solicited the State Department’s views.
Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 259
(2d Cir. 2007), aff’d for lack of quorum sub nom. Am. Isuzu
Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008) (mem.).
Similarly, the D.C. Circuit in Doe v. Exxon Mobil Corp.
observed that the district court had requested the State
Department’s input about “whether adjudication of the
plaintiffs’ claims would interfere with U.S. foreign policy
interests.” 473 F.3d 345, 347 (D.C. Cir. 2007). In
Presbyterian Church of Sudan v. Talisman Energy, Inc.,
after the district court initially declined Talisman’s
suggestion to solicit the State Department’s views, the U.S.
Attorney submitted a three-page statement that included as
attachments a letter from the Department of State and a
diplomatic note from the Embassy of Canada. No. 01-CV-
9882-DLC-HBP, 2005 WL 2082846, at *1 (S.D.N.Y. Aug.
DOE I V. CISCO SYSTEMS, INC. 91
30, 2005), aff’d, 582 F.3d 244 (2d Cir. 2009). In Sarei v. Rio
Tinto PLC., Judge Paez cited a cavalcade of cases in which
federal courts “solicited the opinion of the Department of
State as to whether adjudication of an action would
negatively impact the nation’s foreign policy.” 221 F. Supp.
2d 1116, 1179–80 (C.D. Cal. 2002), aff’d in part, rev’d in
part on other grounds, 671 F.3d 736 (9th Cir. 2011) (en
banc). Citing many of these cases, my colleagues correctly
note that “every circuit to have considered the issue” has
recognized aiding and abetting liability under the ATS. Slip
Op. at 24, 27. But as a closer look at those cases
demonstrates, many of those courts had the benefit of State
Department statements of interest that courts solicited or the
parties requested.
Plaintiffs allege that Cisco aided and abetted human
rights violations by creating a vast program that swept in
thousands of China’s own nationals and subjected them to
arbitrary arrest, prolonged detention, forced labor, torture,
extrajudicial killing, and other crimes against humanity.
Considering the views of our coordinate branches is
particularly important in a case like this one because our
relationship with China is both delicate and complex, and the
Constitution delegates foreign relations primarily “to the
political departments of the government, Executive and
Legislative,” not to the judiciary. Chi. & S. Air Lines, Inc.
v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948). Here,
the district court did not ask for the Executive’s position
because it dismissed Plaintiffs’ ATS suit on other grounds.
Our court had an opportunity to solicit the State
Department’s position. My view is that we should have done
so, especially before ruling that policy considerations do not
bar this action because “no foreign government or Executive
Branch agency has submitted an amicus brief, declaration,
92 DOE I V. CISCO SYSTEMS, INC.
or letter objecting to this lawsuit.” Slip Op. at 32. The
majority analogizes this case to Doe v. Qi, 349 F. Supp. 2d
1258 (N.D. Cal. 2004), arguing that Qi demonstrates that
both China and the State Department have opted to express
their views on a case involving similar allegations. Slip Op.
at 33. My colleagues seem to infer that, because neither
government has weighed in here, neither will object to this
action. For two reasons, Qi does not support that inference.
First, though Qi involved claims against the former mayor of
Beijing and the then-serving Deputy Provincial Governor of
Liaoning Province—both high-level Chinese government
officials—the State Department submitted a statement of
interest in Qi only after the district court solicited the
Department’s views. 349 F. Supp. 2d at 1264, 1267–68,
1270. Second, Qi was decided almost two decades ago. I
see no basis for concluding that because the State
Department indicated no objection to allowing the Qi action
to proceed in 2004, the Department would not object to this
action today. It is no secret that the current status of our
nation’s relationship with China is both volatile and tense.
The majority also notes that the State Department and the
Jordanian government proactively offered their views in
Jesner. Slip Op. at 33 (citing 138 S. Ct. at 1406–07). Fair
enough. But Jesner was a Supreme Court case. Considering
the salience of the Court’s decision to grant certiorari and the
limited number of cases on its docket, one might expect that
any interested entity would weigh in. It is less realistic to
expect the Department and foreign governments to monitor
all 94 federal district courts for any ATS litigation raising
foreign policy concerns. Even in cases implicating the
Foreign Sovereign Immunities Act (FSIA), where sensitive
foreign affairs issues are comparatively easier to identify
because the cases usually involve defendants who are
DOE I V. CISCO SYSTEMS, INC. 93
officers or employees of a foreign sovereign, the State
Department proactively intervenes only selectively. The
Department’s well-documented practice is to affirmatively
file suggestions of foreign sovereign immunity only when it
becomes aware of lawsuits against sitting heads of state and
foreign ministers; otherwise, it generally has not filed
suggestions of immunity for other foreign government
officials unless a court solicits the Department’s views. See
John B. Bellinger III, The Dog That Caught the Car:
Observations on the Past, Present, and Future Approaches
of the Office of the Legal Adviser to Official Acts Immunities,
44 Vand. J. Transnat’l L. 819, 823 (2011); Republic of
Austria v. Altmann, 541 U.S. 677, 701 & n.21 (2004); see
also Sosa, 542 U.S. at 733 n.21 (drawing an analogy between
the ATS and the FSIA). There is no evidence that the
Department maintains a practice of affirmatively filing
statements of interest in ATS cases. Thus, I am not
persuaded that we should draw conclusions from the absence
of comments by the State Department or others.
The foreign policy consequences that will result from
this suit could be very significant. I do not downplay the
seriousness of the Plaintiffs’ allegations or the gravity of the
harms their complaint describes, but proving that Cisco
aided and abetted the terrible human rights violations alleged
in the complaint requires proving that the Chinese
Communist Party and the Chinese Ministry of Public
Security committed those violations in the first place. As
such, allowing this case to move forward is inconsistent with
our obligation to exercise “great caution in adapting the law
of nations to private rights.” Sosa, 542 U.S. at 728. Because
I would not reach the merits, I respectfully dissent from the
majority’s decision to allow plaintiffs’ ATS claims to
proceed.