Cisco Systems v. Doe: The Alien Tort Statute and Limiting Liability for International Law Violations

On June 23, 2026, the Supreme Court announced its decision in Cisco Systems v. Doe, undercutting a key statute that previously offered hope to foreign nationals seeking to hold U.S. actors liable for international law violations in U.S. federal court. As Justice Sotomayor described in her dissent, the Court’s majority wielded the principle of separation of powers as justification for once again overturning precedent and severely curbing, if not extinguishing, any meaningful opportunity for torts against U.S. actors’ complicity in crimes as devastating as torture, forced labor, and genocide.

The question in Cisco is whether tort claims for aiding-and-abetting liability may be pursued under the Alien Tort Statute (ATS) of 1789 and the Torture Victim Protection Act (TVPA) of 1991. The thirteen Doe plaintiffs alleged that the U.S. company Cisco Systems had energetically supported the Chinese Communist Party’s objectives of cracking down on the Falun Gong spiritual movement, designing a high-tech surveillance system known as the “Golden Shield” that became instrumental in enabling the Chinese government to identify and persecute Falun Gong members. The plaintiffs, all victims or family members of victims, brought a claim against Cisco Systems in federal court seeking to hold them accountable for allegedly aiding and abetting seven international law violations by the Chinese government – namely, torture; cruel, inhuman, or degrading treatment; forced labor; prolonged and arbitrary detention; crimes against humanity; extrajudicial killing; and forced disappearance – under the ATS, which grants federal district courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” One of the plaintiffs, a U.S. citizen, sought additional relief against two Cisco executives for aiding and abetting torture under the TVPA, which provides a cause of action against someone who “subjects” another to torture.

While the ATS was first codified by the First Congress in the Judiciary Act of 1789, it remained relatively untouched until around 1980, when cases began to arise in the lower courts seeking private rights of action for alleged human rights abuses. Prior to Cisco, the Supreme Court grappled with the ATS most notably in Sosa v. Alvarez-Machain (2004), which held that the ATS did not permit a court to create a cause of action for arbitrary detention in violation of international law. However, while the Cisco plaintiffs sought only to extend ATS jurisdiction to include liability for aiding and abetting the seven aforementioned norms of international law, the Court took a step further, adopting the stronger position that the ATS forecloses the judiciary’s creation of any new causes of action – which, according to Justice Sotomayor, functionally overrules Sosa “without even acknowledging that it is doing so.”

Writing for the Court’s conservative supermajority, Justice Barrett described the need to clarify the previous ambiguities that Sosa had left unanswered, including the tension between Sosa’s simultaneous claims that the ATS is “strictly jurisdictional” and that it grants courts the narrow authority to create causes of action to enforce norms of international law. Sosa cited Blackstone’s legal treatise for these propositions, finding that certain law-of-nations offenses were understood to be within the common law of the era of the First Congress. Blackstone explicitly identified three such offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy. However, where Sosa emphasized “vigilant doorkeeping” to judicial recognition of actionable international norms, the Court ultimately pursued this path to its extreme in Cisco, choosing to – in the majority’s own words – close that door entirely, limiting the ATS solely to the “Blackstone three” and any other causes explicitly authorized by Congress.

Under Sosa, a plaintiff bringing a claim under ATS had a two-part burden of proof: first, that the international norm had a “definite content and acceptance among civilized nations,” and second, that it would be prudent for the court to create the proposed cause of action where the political branches had not acted. Justice Barrett concluded that the two-step framework delineated in Sosa for recognizing such causes of action was simply too difficult to satisfy “under our modern separation-of-powers precedent” for two reasons. For one, Sosa instructed “great caution in adapting the law of nations to private rights” and for particular attention to be paid to “practical consequences.” According to the majority, “ATS cases by their nature implicate foreign policy,” and “[i]t is thus difficult to think of a case in which a court ‘might safely conclude’ that a new ATS cause of action would not have detrimental foreign policy consequences.” Secondly, the majority underscored that the judicial creation of causes of action would risk infringing on Congress’s delegated power to do so. In Justice Barrett’s words, Sosa “consciously designed a test that would be extremely difficult to meet,” and the Court’s growing commitment to the view that “judicially created causes of action offend the separation of powers in almost every circumstance” has rendered the standard “impossible.”

The majority held that the TVPA similarly precluded liability for aiding and abetting torture. Justice Barrett’s analysis drew a parallel to Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A. (1994), which held that Section 10(b) of the Securities Exchange Act of 1934 did not create civil aiding-and-abetting liability because Congress had omitted an express provision to that effect. Furthermore, the majority refuted the plaintiffs’ argument that the TVPA’s use of the term “subjects” implies aiding-and-abetting liability, citing definitions of “subject” as signaling “a causal connection between torturer and victim.”

The portion of the Court’s judgment rejecting aiding-and-abetting liability under the TVPA was joined by Justices Jackson and Kagan. However, Justice Jackson authored a separate opinion, joined by Justice Kagan, noting her disagreement with the majority’s application of Central Bank as implying a sweeping “magic words” test for determining whether a statute encompasses aiding-and-abetting liability. While Central Bank did instruct that Congress must provide for aiding-and-abetting liability within a statute, Justice Jackson argued, the determination of whether Congress had intended to do so did not rest solely on the statute’s inclusion of the words “aid” and “abet.” Otherwise, Justices Jackson and Kagan agreed with the majority that Congress’s use of the word “subjects” in the TVPA was instructive and that its textual interpretation did not support aiding-and-abetting liability.

The three liberal justices dissented from the Court’s ATS decision. Justice Sotomayor authored the opinion, expressing repeatedly that the decision “marks yet another low point in this Court’s esteem for its precedents” by overruling Sosa. Justice Sotomayor described that, applying Sosa, the facts alleged by plaintiffs in Cisco did meet the threshold for creating a cause of action. Specifically, under Sosa’s first prong, the plaintiffs’ seven alleged international law norms were specific, universal, and obligatory, and international law recognized aiding-and-abetting liability both in general and as a substantive part of each of these seven norms. For Sosa’s second prong, the dissent rejected Justice Barrett’s framing that aiding-and-abetting liability would impair U.S. foreign policy interests in every instance, arguing instead for a case-by-case basis. Indeed, Justice Sotomayor asserted that the facts of Cisco disproved that point precisely because “[t]he political branches have already consistently condemned China’s treatment of Falun Gong members,” and ensuring legal accountability through a private suit against an American company would have negligible effect on U.S.-China relations.

The dissent also noted the inconsistency of the majority’s willingness to preserve the “Blackstone three” as actionable while rejecting “similarly well-established norms of international law.” Citing Sosa’s analysis and additional historical evidence, Justice Sotomayor advanced a view that the initial passage of the ATS reflected an understanding that the statute permitted civil suits for violations of international law “even without any express causes of action.” Justice Sotomayor added that early legal sources discussing applications of the ATS beyond the “Blackstone three,” along with evidence that the ATS was partly intended to address foreign policy concerns about a lack of accountability, corroborated the conclusion that the ATS was never understood to be so limited.

According to the dissent, even if Sosa was wrongly decided, the principle of stare decisis warrants adherence to precedent – especially with regard to statutory decisions – unless subsequent legal developments have removed the basis for the decision. Justice Sotomayor noted that the majority’s proposition that judicially created causes of action almost always violated separation of powers was contextually misplaced because it drew from distinct case law regarding Bivens torts, which implicate causes of action under the Constitution and not the ATS. In the absence of Congressional action to either amend the ATS or pass legislation undercutting Sosa, there were no subsequent legal developments justifying breaking from Sosa. Similarly, Justice Sotomayor found that the other possible reason for overturning precedent – if it had proven unworkable – was inapplicable, as Sosa’s standard had not proven vague or difficult to apply, and the federal courts had exercised restraint in recognizing new causes of action in the limited ATS suits filed since Sosa.

Justice Sotomayor also challenged the rest of the Court’s finding that the TVPA did not authorize aiding-and-abetting liability. According to Justice Sotomayor, the causal connection implied by the term “subjects” should not exclude actors who participated in torture and were instrumental to its success. Moreover, the majority’s reading of Central Bank to create a “magic-words test” was sharply contrary to case law establishing that Congress’s choice of language in a statute was not uniquely restrictive on the statute’s purpose.

The dissent thus concluded that the Court both disregarded stare decisis and stepped beyond the current case in casting aside Sosa’s binding framework. As Justice Sotomayor wrote, the majority ultimately turned down a road “paved not with the opinions of the Court, which are the law, but with the opinions of individual Justices, which are not.” However, although the Court’s decision effectively hollows out the ATS, the Court’s decision preserves future torts for international law violations to the extent that Congress is willing to step in to expressly recognize these causes of action. Although the current climate of politicization may create uncertainty, it is still worth hoping that pressure, both from home and abroad, might spur legislative action to establish accountability for U.S. actors who commit or facilitate universally recognized atrocities, and to ensure that our nation lives up to its promise of serving as a global symbol of liberty and justice.