The Alien Tort Statute (ATS) had a good summer. Two critical rulings—one from the Ninth Circuit, the other from the Eastern District of Virginia—plus a settlement in a third case signal that, despite years of chatter about its demise, the statute is far from dead.
Nearly twenty years ago, in Sosa v. Alvarez-Machain (2004), the Supreme Court recognized that the ATS provides a cause of action for violations of international law that are specific, universal, and obligatory. But over the past decade, the Court has narrowed the statute’s reach through decisions in three corporate cases. In Kiobel (2013), the Court created a presumption against extraterritorial application of the ATS. In Jesner (2018), the Court held that the ATS cause of action does not apply to foreign corporations. Most recently, in Nestle (2021) the Court said that to plead facts sufficient to support a domestic application of the ATS, “plaintiffs must allege more domestic conduct than general corporate activity,” although it left open what domestic conduct would suffice.
Against that backdrop, here’s an overview of this summer’s promising developments.
Doe I v. Cisco Systems
In July, the Ninth Circuit held that plaintiffs’ claims could proceed—the first ruling, post-Nestle, to recognize liability for acts that occurred in the United States and that facilitated abuses abroad. Plaintiffs are Chinese practitioners of Falun Gong who brought claims against Cisco for aiding and abetting human rights violations by designing and building the “Golden Shield,” a vast surveillance system used by the People’s Republic of China. Specifically, the plaintiffs allege arrest, detention, and torture, including that they were placed in forced labor camps, beaten with steel rods, shocked with electric batons, and made to endure sleep deprivation and force-feeding. The plaintiffs also allege that their emails, text messages, and other information were intercepted by the Golden Shield and shown to them as part of their torture.
The Cisco majority concluded that plaintiffs’ allegations of conduct in the United States were sufficient to satisfy the requirements articulated by the Supreme Court in Kiobel, Jenser, and Nestle. The Ninth Circuit explained that “conduct within the United States that constitutes aiding and abetting a violation of international law, even if other conduct [the principal’s acts] occurred abroad, is a violation of the law of nations that falls within the focus of the ATS.” Using this baseline, the Court determined that the plaintiffs’ allegations well exceeded mere corporate presence of simply corporate oversight and direction:
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. . . . [T]he domestic activities alleged here constituted essential, direct, and substantial assistance for which aiding and abetting liability can attach.1
In addition, Cisco helpfully clarified aspects of aiding and abetting liability which the Supreme Court left open in Nestle. The Ninth Circuit affirmed that aiding and abetting human rights abuse is a violation of international law which is actionable under the ATS. To determine whether a corporation provided the substantial assistance necessary for the actus reus, the Court looked at the cumulative contribution of many corporate actions to the underlying violation, and said it need not find one action that alone constitutes sufficient assistance. The Court adopted a mens rea standard of knowledge, rather than purpose, for aiding and abetting, finding that threshold is met:
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. . . . 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. And when ongoing abuses are common knowledge, knowing action may be imputed to the defendant.
The Court also found, as a matter of first impression, that the Torture Victim Protection Act permits claims against corporate officers for aiding and abetting torture.
The Cisco decision is a critical warning for American companies that build tools that facilitate human rights violations by foreign governments—they can be held accountable in U.S. courts. It also affirms that even if a product has multiple uses, some of which are legitimate, that does not immunize a company from liability for uses that lead to human rights abuse. As the Court concluded: “[A]lthough 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.”
To be sure, ATS plaintiffs must still clear a high bar. For a case to proceed, they must show that a U.S. corporation engaged in substantial conduct in the United States with knowledge that it was facilitating human rights violations abroad. That may not be easy, but Cisco shows that it is possible.
Al Shimari v. CACI
In August, the District Court for the Eastern District of Virginia denied CACI’s motion to dismiss. Plaintiffs, three Iraqi men who endured torture at Abu Ghraib prison during the U.S. occupation of Iraq, brought suit against CACI, a Virginia-based company hired by the U.S. government to provide interrogation services at the prison. Specifically, the plaintiffs allege that CACI employees conspired with and aided and abetted U.S. military personnel in subjecting them to cruel, inhuman, or degrading treatment (CIDT), torture, and war crimes, including beatings, sleep and sensory deprivation, forced nudity, sexual assault, exposure to extreme temperatures, electric shocks, and threats from dogs and firearms. CACI argued that under Nestle’s “focus” test, the Plaintiffs’ claims should be dismissed as an impermissible extraterritorial application of the ATS. In rejecting that argument, the Court conducted an instructive analysis of the types of conduct that are relevant to the focus of the ATS.
First, it described the statute’s historical purpose: to promote harmony in international relations by ensuring foreign nationals had a remedy for torts committed in violation of the law of nations. As a result, the Court concluded that the focus of the ATS is broader than simply regulating conduct, and that the identity of an ATS defendant and the claims’ overall connection to the United States can be considered. In this case, the Court noted, foreign policy concerns stemming from a failure to provide redress for international law violations are heightened because the harms that CACI facilitated involved U.S. military personnel and U.S. citizens who were CACI employees, and arose from a contract executed in the United States between CACI (a U.S. corporation) and the U.S. government. Moreover, the abuse occurred in territory that was effectively under U.S. military control and governed by the Coalition Provisional Authority, whose leadership was appointed by and answered to the U.S. President and Defense Secretary.
Second, with respect to the conduct relevant for the international law violations, the Court rejected CACI’s argument that only direct tortious acts—meaning the plaintiffs’ abuse, which occurred in Iraq—are relevant to the focus of the ATS. The Court adopted the approach of the Second, Fourth, Ninth, and Eleventh Circuits and looked to the location of all conduct that constitutes secondary liability for the international law violation, not just the location of the conduct that inflicts harm. It emphasized that the purpose of the ATS would be frustrated if a U.S. defendant could avoid liability for injuries merely because those harms occurred abroad.
Finally, the Court found that Plaintiffs had produced sufficient evidence of significant domestic conduct directly related to their claims, which went well beyond the “general corporate activity” referenced in Nestle. It rejected as “incorrect and overly broad” CACI’s assertion that general corporate activity includes all of a company’s authorized business conduct. And it cataloged plaintiffs’ evidence of significant domestic conduct related to their claims, including: the torture, CIDT, and war crimes which CACI’s employees allegedly facilitated arose from an agreement to provide interrogation services to the U.S. military as part of a contract with the U.S. Department of the Interior which was executed and paid for in the United States; CACI hired and trained employees in the United States before sending them to Abu Gharib; CACI supervised its employees in Iraq within a reporting structure monitored by personnel in the United States; and CACI managers in the United States were aware of detainee abuse and of the fact that their Abu Gharib employees might be asked to engage in or abet unlawful conduct, but took no action in response. The Court found this evidence far exceeded the domestic conduct at issue in Kiobel, Jesner, and Nestle, was directly related to plaintiffs’ claims against CACI, and was more than sufficient to establish subject matter jurisdiction. Although the fact pattern in CACI may be somewhat singular, the analysis should prove instructive in others cases.
Doe I v. ExxonMobil
After twenty years of litigation, Indonesian villagers secured a settlement against ExxonMobil. The plaintiffs alleged that they or their loved ones endured human rights abuses at the hands of Indonesian soldiers contracted by ExxonMobil to guard its operations in Aceh province. The plaintiffs described how soldiers abused their power for years, inflicting horrific abuses including murder, torture, sexual violence, and kidnapping. The atrocities are alleged to have been committed at or near ExxonMobil’s operations in the Arun field, one of the largest natural gas fields in the world.
In August 2022, the U.S. District Court for the District of Columbia handed down its opinion denying ExxonMobil’s motion for summary judgment. The settlement in May 2023 came on the eve of trial. Although its terms are confidential, it serves as a powerful reminder that U.S. courts can play a central role in helping survivors of human rights abuse obtain justice.
1 The parallels between this language and the Second Circuit’s analysis in our Apartheid case back in 2015 are striking. We alleged that IBM aided and abetted South Africa’s apartheid government by creating and customizing a computerized national identity card system that facilitated the denationalization of the black population—stripping them of their South African citizenship and replacing it with the nationality of fictious “homelands”. The Second Circuit held that designing and customizing a technology product in the United States, which is then used to facilitate human rights abuse abroad, is sufficient to displace the presumption against extraterritorial application of the ATS: “Identity documents . . . were an essential component of the system of racial separation of South Africa. And so, designing particular technologies in the United States that would facilitate South African racial separation would appear to be both ‘specific and domestic’ conduct that would satisfy the first of the two steps of our jurisdictional analysis.”