Amicus Curiae Brief — Cisco Systems, Inc., et al., Petitioners v. Doe I, et al.

Supreme Court briefMar 27, 2026

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No. 24-856

IN THE

Supreme Court of the United States

CISCO SYSTEMS, INC., ET AL.,

Petitioners,

DOE I, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF RESPONDENTS

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

HARITH KHAWAJA

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1730 Rhode Island Ave. NW

Suite 1200

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 27, 2026

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

ARGUMENT .........................................................

One Who Aids and Abets Torture

“Subjects an Individual to Torture”

Under the TVPA. .....................................

This Court Has Never Imposed a

“Magic Words” Requirement for Civil

Aiding-and-Abetting Liability, and It

Should Not Tread on Congress’s

Authority by Doing So Here. .................

CONCLUSION .....................................................

II.

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Bd. of Trs. of Univ. of Ala. v. Garrett,

531 U.S. 356 (2001) .....................................

Biden v. Nebraska,

600 U.S. 477 (2023) ................................... 6, 21, 22

Blue Chip Stamps v. Manor Drug Stores,

421 U.S. 723 (1975) .....................................

Boechler v. Comm’r,

596 U.S. 199 (2022) .....................................

4, 21

Bostock v. Clayton County,

590 U.S. 644 (2020) .....................................

Central Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A.,

511 U.S. 164 (1994) .....................

4, 5, 17, 18, 19

Chavez v. Carranza,

559 F.3d 486 (6th Cir. 2009) .......................

County of Maui v. Haw. Wildlife Fund,

590 U.S. 165 (2020) .....................................

Czerwienski v. Harvard Univ.,

666 F. Supp. 3d 49 (D. Mass. 2023) ............

Davis ex rel. LaShonda D. v. Monroe Cnty. Bd.

of Educ.,

526 U.S. 629 (1999) ..................................... 2, 9, 10

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Dep’t of Agric. Rural Dev. Rural Hous. Serv. v.

Kirtz,

601 U.S. 42 (2024) ....................................... 19-21

FAA v. Cooper,

566 U.S. 284 (2012) .....................................

Farmer v. Kan. State Univ.,

918 F.3d 1094 (10th Cir. 2019) ...................

Fitzgerald v. Barnstable Sch. Comm.,

504 F.3d 165 (1st Cir. 2007) ........................

Gregory v. Ashcroft,

501 U.S. 452 (1991) .....................................

20-22

Health & Hosp. Corp. of Marion Cnty. v.

Talevski,

599 U.S. 166 (2023) .....................................

5, 20

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) .......................................

3, 12

Hernandez v. Baylor Univ.,

274 F. Supp. 3d 602 (W.D. Tex. 2017) ........

Hernandez v. Mesa,

589 U.S. 93 (2020) .......................................

Kousisis v. United States,

605 U.S. 114 (2025) .....................................

Massachusetts v. Mellon,

262 U.S. 447 (1923) .....................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Nye & Nissen v. United States,

336 U.S. 613 (1949) .....................................

Pa. Dep’t of Corr. v. Yeskey,

524 U.S. 206 (1998) .....................................

Patchak v. Zinke,

583 U.S. 244 (2018) .....................................

Pinter v. Dahl,

486 U.S. 622 (1988) .....................................

Rosemond v. United States,

572 U.S. 65 (2014) ....................................... 14, 15

Schrag v. Schrag,

32 Wash. App. 2d 1063 (Wash. Ct. App.

2024).............................................................

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) .......................................

State v. Bernhardt,

376 P.3d 316 (Or. Ct. App. 2016) ................

State v. Campbell,

306 N.W.2d 272 (Wis. Ct. App. 1981) .........

State v. Severy,

8 A.3d 715 (Me. 2010) ..................................

Stoneridge Inv. Partners, LLC v. Sci.-Atlanta,

552 U.S. 148 (2008) .....................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) ................. 1, 3, 6, 7, 12, 14, 15

U.S. Postal Serv. v. Konan,

No. 24-351, slip op. (U.S. Feb. 24, 2026).....

Wis. Cent. Ltd. v. United States,

585 U.S. 274 (2018) .....................................

Statutes

Securities Exchange Act of 1934, Pub. L. No.

73-291, 48 Stat. 881.....................................

4, 17

Torture Victim Protection Act, Pub. L. No.

102-256, 106 Stat. 73 (1992) .......... 1, 3-5, 7, 15-17

7 U.S.C. § 192(g).............................................

18 U.S.C. § 2 ...................................................

18 U.S.C. § 2340A(a) ......................................

3, 12

18 U.S.C. § 2441(a).........................................

3, 12

28 U.S.C. § 1350 note .....................................

42 U.S.C. § 12182(b)(1)(A)(i) ..........................

Regulation

28 C.F.R. § 36.202(a) ......................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Books, Articles, and Other Materials

American Heritage Dictionary of the English

Language (5th ed. 2022),

https://www.ahdictionary.com/word/search

.html?q=subject ...........................................

5, 21

Amy C. Barrett, Substantive Canons and

Faithful Agency,

90 B.U. L. Rev. 109 (2010) ..........................

5, 21

Cambridge International Dictionary of

English (1995)..............................................

The Concise Oxford Dictionary of Current

English (8th ed. 1990) .................................

Dan B. Dobbs, Paul T. Hayden & Ellen M.

Bublick, The Law of Torts (2d ed. 2025) .....

Christof Heyns, End of Visit Statement of the

Special Rapporteur on Extrajudicial,

Summary or Arbitrary Executions (Sept. 18,

2015), https://www.ohchr.org/en/statementsand-speeches/2015/09/end-visit-statementspecial-rapporteur-extrajudicialsummary-or ................................................

Michael J. Kelly, Prosecuting Corporations for

Genocide Under International Law,

6 Harv. L. & Pol. Rev. 339 (2012) ............... 13, 14

Matthew Lippman, The Evolution and Scope

of Command Responsibility,

13 Leiden J. Int’l L. 139 (2000) ................... 13, 14

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Longman Dictionary of the English Language

(1984) ...........................................................

John Manning, Clear Statement Rules and the

Constitution,

110 Colum. L. Rev. 399 (2010) ....................

Merriam-Webster’s Collegiate Dictionary (10th

ed. 1993) .......................................................

Merriam-Webster’s Dictionary (11th ed. 2026),

https://www.merriam

-webster.com/dictionary/subjects ................

The New Oxford Dictionary of English

(1998) ...........................................................

The Oxford English Dictionary (2d ed.

1989).............................................................

8, 14

Random House Dictionary of the English

Language (1966) ..........................................

2, 9

Random House Webster’s College Dictionary

(1991) ...........................................................

Random House Webster’s Dictionary (1993) .

Report of the United Nations High

Commissioner for Human Rights on the

Situation of Human Rights in Ukraine, U.N.

Doc. A/HRC/27/75 (Sept. 19, 2014),

https://ukraine.ohchr.

org/sites/default/files/2024-03/A-HRC-2775_en.pdf ......................................................

viii

TABLE OF AUTHORITIES – cont’d

Page(s)

Restatement (Second) of Torts (Am. L. Inst.)

(1979) ...........................................................

Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts

(2012) ...........................................................

Sex and the City: The Big Time (HBO,

released 2000) ..............................................

Paula Span, The Spent Rage of the

Playwright, Wash. Post (Oct. 19, 1992),

https://perma.cc/5KDK-SHKR ....................

2, 11

Webster’s Third New International Dictionary

(1961) ...........................................................

2, 9

Webster’s Third New International Dictionary

of the English Language Unabridged

(1993) ........................................................... 2, 4, 7

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC has a strong interest in protecting meaningful access to the courts, in accordance with

the text and history of the Constitution and important

federal statutes, and therefore has an interest in this

case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Enacted in 1992, the Torture Victim Protection

Act (TVPA) imposes liability on any person who “subjects an individual to torture.” Pub. L. No. 102-256,

§ 2(a)(1), 106 Stat. 73, 73 (28 U.S.C. § 1350 note). As

the court below unanimously concluded, that provision

does not just apply to those individuals who personally

inflict torture or who are responsible for their subordinates’ acts of torture. Rather, the ordinary public

meaning of § 2(a)(1) establishes that it also covers individuals who knowingly provide substantial assistance to those who inflict torture—in other words,

those who “aid and abet” torture. See Pet. App. 82a;

see also Twitter, Inc. v. Taamneh, 598 U.S. 471, 493

(2023). Accordingly, the court below held that executives of Cisco, Inc., who designed, presented, and sold

a custom-built software system to the Chinese Communist Party, enabling it to track down and torture

Falun Gong adherents, could be liable under the

TVPA. See Pet. App. 11a-15a.

1 No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund its preparation or submission. No person other than amicus or its counsel made a monetary contribution to its preparation

or submission.

That conclusion is unsurprising given the statute’s

ordinary meaning. Dictionaries published at the time

the TVPA was enacted confirm that the verb “subjects”

means “to cause to undergo” or “to expose” to something, Webster’s Third New International Dictionary of

the English Language Unabridged 2275 (1993), especially something “unpleasant, inconvenient, or trying,”

Merriam-Webster’s Collegiate Dictionary 1168 (10th

ed. 1993).

Likewise, contemporaneous usages of “subjects” in

judicial opinions, newspaper articles, and media

sources demonstrate that one can subject someone to

something without directly performing or ordering the

underlying act. For example, a Washington Post article published the same year the TVPA was enacted described an organization as “subject[ing]” its employees

to “continuing invective” simply by inviting a speaker

critical of their work to an event. Paula Span, The

Spent Rage of the Playwright, Wash. Post (Oct. 19,

1992), https://perma.cc/5KDK-SHKR. And just a few

years later, this Court said that a school receiving Title

IX funds “‘subject[s]’ its students to harassment” when

it “cause[s]” them “to undergo harassment,” “expose[s]” them to it, or “make[s] them liable or vulnerable to it.” Davis ex rel. LaShonda D. v. Monroe Cnty.

Bd. of Educ., 526 U.S. 629, 644-45 (1999) (first quoting

Random House Dictionary of the English Language

1415 (1966) (definition of “subject”), and then quoting

Webster’s Third New International Dictionary 2275

(1961) (same)). Because those who aid and abet torture cause victims to undergo such torture, they “subject” them to torture within the meaning of the TVPA.

Congress, too, has used the verb “subjects” to

mean “causes to undergo” or “exposes” elsewhere in

the U.S. Code. In the Americans with Disabilities Act,

passed just two years before the TVPA, it specified

that a public accommodation could “subject” a disabled

individual to discrimination not just directly, but also

through downstream “contractual, licensing, or other

arrangements.” 42 U.S.C. § 12182(b)(1)(A)(i). Congress could have used the words “commit” or “inflict

torture” in § 2(a)(1) of the TVPA to limit the class of

defendants; indeed, it used those exact words elsewhere in the TVPA, see § 3(b)(1), and elsewhere in the

U.S. Code, see 18 U.S.C. § 2340A(a); id. § 2441(a). But

it did not; it chose “subjects.” That “difference[] in language” means something. Henson v. Santander Consumer USA Inc., 582 U.S. 79, 86 (2017).

Petitioners’ arguments to the contrary are unpersuasive. They proffer two hypotheticals—a neighbor

who complains about a child’s behavior to a parent who

then punishes the child, and a vendor who sells compliance tools to the government which then uses them

in enforcement actions—which they claim demonstrate that “subjects” does not cover aiding and abetting. To be sure, no one would say that the neighbor

subjected the child to punishment, or that the vendor

subjected a regulated party to fines. But neither the

neighbor nor the vendor would be liable for aiding and

abetting either—neither provided “knowing and substantial assistance to the primary tortfeasor,” Twitter,

598 U.S. at 491, at least under the facts provided by

Petitioners. These hypotheticals therefore tell us

nothing about the scope of the term “subjects” with respect to the specific question of whether it encompasses aiding-and-abetting liability. They tell us only

that “subjects” does not encompass some acts that

would also not constitute aiding and abetting—an observation wholly irrelevant to the question presented.

Petitioners concede—as they must—that “subjects” covers more than just directly inflicting torture.

See Pet. Br. 40-41. But they offer no reason why it

would include “command responsibility”—under

which superiors may be held liable for failing to prevent their subordinates from engaging in torture—but

not aiding-and-abetting liability. Nor can they: because negligent commanders and aiders and abettors

both “expose” a victim to torture and thus “subject”

him to it, Webster’s Third New International Dictionary, supra, at 2275 (1993), both fall within the TVPA’s

purview.

Petitioners also ask this Court to read a “custody

or physical control” requirement into the TVPA’s liability provision that plainly does not appear there in

order to foreclose a claim for aiding-and-abetting liability. But Congress used that language in a different

provision of the TVPA defining “torture” itself, see

TVPA § 3(b)(1), not specifying who is liable for “subject[ing] an individual to torture,” id. § 2(a)(1) (emphasis added). Again, when it comes to the ordinary

meaning of the text of the actual provision governing

liability under the TVPA, Petitioners come up short.

Unable to argue convincingly from the TVPA’s text

or structure, Petitioners insist that Central Bank of

Denver, N.A. v. First Interstate Bank of Denver, N.A.,

511 U.S. 164 (1994), a case interpreting the Securities

Exchange Act of 1934 (SEA), Pub. L. No. 73-291, 48

Stat. 881, requires Congress to “incant [the] magic

words” “aid” and “abet” whenever it wishes to impose

civil aiding-and-abetting liability, Boechler v. Comm’r,

596 U.S. 199, 203 (2022) (quotations omitted). But

Central Bank did no such thing.

That case interpreted statutory text materially

different from that of the TVPA: the relevant provision

there prohibited manipulative or deceptive acts in securities transactions, whether committed “directly or

indirectly.” SEA § 10(b). By contrast, the TVPA does

not require liable individuals to “engage, even

indirectly, in” torture, Central Bank, 511 U.S. at 176.

Rather, it imposes liability on individuals who merely

“subject[]” another to torture. TVPA § 2(a)(1). That

language is materially broader and includes aiding

and abetting.

Petitioners cherry-pick Central Bank for language

creating a purported magic-words rule, but their selective quotations miss the full context of the opinion and,

in any event, are dicta. If anything, Central Bank reaffirmed this Court’s typical approach to statutory interpretation: it analyzed the text and structure of the

Securities Exchange Act to discern its ordinary meaning and explained that Congress had taken a “statuteby-statute approach to civil aiding-and-abetting liability.” 511 U.S. at 182. That approach requires giving

full effect to the words Congress chose, not crafting a

generic magic-words rule applicable at once to the entire federal civil code.

And for good reason. The magic-words rule that

Petitioners concoct would raise separation-of-powers

concerns by elevating judge-made “nit-picking technicalities” over the ordinary meaning of a statute’s text,

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 285 (2012), thereby empowering judges to effectively rewrite the words that

Congress passed. That surely “violates the baseline

rule of legislative supremacy” in our constitutional

system, Amy C. Barrett, Substantive Canons and

Faithful Agency, 90 B.U. L. Rev. 109, 167 (2010), which

gives judges the power only to “implement Congress’s

choices rather than remake them,” Health & Hosp.

Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 178

(2023).

Even if Petitioners’ argument could be construed

as requesting a more modest clear-statement rule of

the sort this Court has adopted in other contexts (and

it cannot), they provide no valid justification for adopting such a rule for civil aiding-and-abetting liability.

They speculate about the “open-ended expansion” of liability that might materialize were this Court to hold

that the TVPA covers aiding and abetting, Pet. Br. 44,

but that rationale is entirely self-serving and does not

advance any “value[] external to” the TVPA worthy of

protection through a clear-statement rule, Biden v. Nebraska, 600 U.S. 477, 508 (2023) (Barrett, J., concurring). Nor is their invocation of possible foreign policy

consequences any more persuasive, as Petitioners

themselves concede that Congress has imposed primary liability under the TVPA “for conduct against

foreign nationals on foreign soil.” Pet. Br. 44.

Accordingly, this Court should simply give effect

to the ordinary meaning of the TVPA’s language and

affirm.

ARGUMENT

One Who Aids and Abets Torture “Subjects

an Individual to Torture” Under the TVPA.

As the court below held, under customary international law, someone who aids and abets an international law violation provides “knowing assistance” to

the principal “that ha[s] a substantial effect on the

commission of a violation of the law of nations.” Pet.

App. 39a-40a. At common law, the “conceptual core

that has animated aiding-and-abetting liability for

centuries” requires “that the defendant consciously

and culpably ‘participate[d]’ in a wrongful act so as to

help ‘make it succeed.’” Twitter, 598 U.S. at 493 (quoting Nye & Nissen v. United States, 336 U.S. 613, 619

(1949)); see also Dan B. Dobbs, Paul T. Hayden & Ellen

M. Bublick, The Law of Torts § 435 (2d ed. 2025) (one

who “knowingly provides substantial aid or

encouragement to another’s commission of a tort is

jointly and severally liable for it”).

Thus, a person who aids and abets torture knowingly provides substantial assistance to the principal

who directly engages in torture. All parties appear to

agree on this point. See Pet. Br. 42 (an aider and abettor gives “knowing and substantial assistance to the

primary tortfeasor” (quoting Twitter, 598 U.S. at 491));

Resp. Br. 42 (“aiding-and-abetting liability attaches

based on a person’s conscious and culpable participation ‘in a wrongful act so as to help make it succeed’”

(quoting Twitter, 598 U.S. at 493)).

The TVPA makes “liable for damages” “[a]n individual who, under actual or apparent authority, or

color of law, of any foreign nation . . . subjects an individual to torture.” TVPA § 2(a)(1) (emphasis added).

The question in this case is therefore whether one

“subjects” a person to torture within the meaning of

the TVPA when one knowingly provides substantial

assistance to a person who directly tortures another.

The answer is surely yes. This Court typically “interpret[s] statutory terms according to the ordinary

meanings they had when they were enacted.” U.S.

Postal Serv. v. Konan, No. 24-351, slip op. at 6 (U.S.

Feb. 24, 2026) (citing Wis. Cent. Ltd. v. United States,

585 U.S. 274, 277 (2018)). And here, the ordinary

meaning of the verb “subjects” in 1992 (as today)

plainly covers aiding and abetting.

A. Dictionaries published around the time the

TVPA was passed establish as much. For example,

Webster’s defined “subject” as “to cause to undergo or

submit to,” or “to expose.” Webster’s Third New International Dictionary, supra, at 2275 (1993). Likewise,

the Random House Dictionary defined “subject” as “to

cause to undergo the action of something specified;

expose” and “to make liable or vulnerable; expose.”

Random House Webster’s College Dictionary 1330

(1991); Random House Webster’s Dictionary 658 (1993)

(similar). Because one who aids and abets another in

committing torture has “caus[ed]” the victim “to undergo” torture, they have “subject[ed]” them to it.

Other dictionaries confirm that understanding.

According to Merriam-Webster, one who “causes” an

individual “to undergo or endure” something “unpleasant, inconvenient, or trying” “subjects” them to that

experience. Merriam-Webster’s Collegiate Dictionary,

supra, at 1168. So, too, according to the Cambridge

Dictionary, which defined “subject[s]” to mean “to

cause (someone or something) to experience something, esp. something unpleasant.” Cambridge International Dictionary of English 1451 (1995). Other contemporaneous dictionaries reflect the same understanding. See Longman Dictionary of the English Language 1493 (1984) (“to cause to undergo something”);

17 The Oxford English Dictionary 31 (2d ed. 1989)

(“[t]o lay open or expose to the incidence, occurrence,

or infliction of, render liable to, something”); The Concise Oxford Dictionary of Current English 1214 (8th ed.

1990) (“make liable; expose”); The New Oxford Dictionary of English 1849 (1998) (“cause or force to undergo

(a particular experience of [sic] form of treatment)”).2

2 Modern dictionaries indicate that the ordinary meaning of

“subjects” has not changed since 1992. See, e.g., Merriam-Webster’s Dictionary (11th ed. 2026), https://www.merriam-webster.com/dictionary/subjects (“to make liable”; “to cause or force to

undergo or endure (something unpleasant, inconvenient, or trying)”); American Heritage Dictionary of the English Language

(5th ed. 2022), https://www.ahdictionary.com/word/search.html?

q=subject (to “cause to experience, undergo, or be acted upon”).

B. What dictionary definitions establish, the ordinary usage of “subjects to” confirms: those who provide

substantial assistance with the knowledge that such

assistance will help bring about a particular result

have “subjected” an individual “to” that result. A biased school administrator, for example, subjects a libertarian speaker to censorship when she grants permission to known disruptors to protest an event. A

disgruntled employee subjects a company to criticism

by secretly leaking information about discriminatory

hiring practices to the press, which then publishes an

exposé. An ex-boyfriend subjects a woman to harassment by forwarding intimate photos to known online

trolls who widely post about them.

Consistent with these examples, this Court has

also used the term “subjects” in the sense that one may

“subject” another “to” something without directly inflicting or ordering it. For example, this Court has

stated that “Congress may subject nonconsenting

States to suit in federal court when it does so pursuant

to a valid exercise of its § 5 power,” even though Congress was plainly not suing or commanding a plaintiff

to do so. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.

356, 364 (2001). Elsewhere, this Court has said that a

recipient of Title IX funds can impermissibly “‘subject’

its students to harassment” through “deliberate indifference,” as that “‘cause[s] students to undergo’ harassment,” “expose[s]” them to it, or “make[s] them liable or vulnerable to it.” Davis, 526 U.S. at 644-45 (alteration and quotations omitted) (first quoting Random House Dictionary, supra, at 1415 (1966) (definition of “subject”), and then quoting Webster’s Third

New International Dictionary, supra, at 2275 (1961)

(same)).

Following Davis, other courts have explained that

“[t]o ‘subject’ a student to harassment,” an institution

need only “have caused the student to undergo harassment, made her more vulnerable to it, or made her

more likely to experience it.” Fitzgerald v. Barnstable

Sch. Comm., 504 F.3d 165, 171 (1st Cir. 2007), rev’d on

other grounds, 555 U.S. 246 (2009); Czerwienski v.

Harvard Univ., 666 F. Supp. 3d 49, 84-85 (D. Mass.

2023) (same); Farmer v. Kan. State Univ., 918 F.3d

1094, 1103 (10th Cir. 2019) (similar); Hernandez v.

Baylor Univ., 274 F. Supp. 3d 602, 613 (W.D. Tex.

2017) (“[T]o ‘subject’ a student to harassment a school

need only make the student vulnerable to that harassment.” (citing Davis, 526 U.S. at 645)). Of course, in

each of these cases, the school itself did not directly

inflict the harassment or order someone to perform it.

Rather, the school knowingly exposed the victim to

harassment by creating the conditions necessary for it

to occur.

Similarly, it is natural to say that one may subject

an individual to something even if she does not exercise any control over the person that directly commits

the act, as with aiding and abetting. This is true of the

cases above involving peer-on-peer sexual harassment

in educational institutions—the school does not exercise any direct authority over the harasser (like that of

an employer over an employee) when the harasser is a

student and not a teacher, yet the school may still

“subject” the victim to harassment through “actual

knowledge of the harassment” and “deliberate indifference” to it. Fitzgerald, 504 F.3d at 171; see Farmer,

918 F.3d at 1102 (school “subjected” student to heightened risk of sexual assault by a peer); Hernandez, 274

F. Supp. 3d at 613 (same).

This usage of “subjects” appears in other contexts

as well. For example, in State v. Bernhardt, 376 P.3d

316 (Or. Ct. App. 2016), the Oregon Court of Appeals

quoted Webster’s definition of “subject” to explain that

“an adult ‘subjects’ a minor to” prohibited “devia[nt]

sexual intercourse if the adult causes the minor to be

exposed to that sexual conduct”—“actual control or dominion” is not required. Id. at 321. Likewise, the Supreme Judicial Court of Maine has recognized that an

adult “intentionally subject[s] another person” to sexual contact by “caus[ing]” them “to have [such] contact.” State v. Severy, 8 A.3d 715, 718 (Me. 2010); see

Schrag v. Schrag, 32 Wash. App. 2d 1063, at *1-*2

(Wash. Ct. App. 2024) (holding that an individual can

“subject[]” another “to” sexual abuse by enabling a

third person to commit the deplorable act). So, too, a

parent “subject[s] a child to cruel maltreatment” by

“expos[ing]” the child “to maltreatment.” See State v.

Campbell, 306 N.W.2d 272, 278 (Wis. Ct. App. 1981)

(Gartzke, J., concurring).

And that makes sense. “Subjects to” connotes an

attenuated causal connection with the underlying act.

That is why an organization “subject[s]” its employees

to “continuing invective” by inviting a critic of their

work to lecture at them. Span, supra. Or the host of

a karaoke party subjects guests to misery when she invites someone known to shrill at the mic. Or a character in a famous television show kindling a new romantic relationship chooses not to invite her partner to a

magazine party: she does not wish to “subject him to”

the scrutiny of “slimy media leeches.” Sex and the

City: The Big Time (HBO, released 2000).

Congress, too, has used “subjects to” elsewhere in

the U.S. Code to refer to an attenuated causal link

with the underlying conduct. In the Americans with

Disabilities Act, enacted just two years before the

TVPA, Congress prohibited public accommodations

from “subject[ing] an individual . . . on the basis of a

disability . . . to

denial

the

opportunity . . . to . . . benefit from” its “goods, services,

facilities, privileges, advantages, or accommodations,”

indicating that such denial could also occur through

downstream “contractual, licensing, or other arrangements.” 42 U.S.C. § 12182(b)(1)(A)(i); see 28 C.F.R.

§ 36.202(a) (same). By contrast, when Congress

wished to refer to a more direct causal connection, it

knew how to do so. In § 3(b)(1) of the TVPA, for example, it defined “torture” as “intentionally inflicted” severe pain and suffering, and in other statutes, it punished individuals who “commit[]” torture, 18 U.S.C.

§ 2340A(a), or “commit[] a war crime,” id. § 2441(a).

This “difference[] in [§ 2(a)(1)’s] language” conveys a

“difference[] in meaning.” Henson, 582 U.S. at 86.

C. Resisting the ordinary meaning of “subjects,”

Petitioners proffer two hypotheticals which they claim

demonstrate that “subjects” does not cover aiding and

abetting.

In the first, a neighbor complains about a child’s

behavior, and the parent then punishes the child for

the behavior by grounding him. Pet. Br. 42. True, the

neighbor has not “subjected” the child to the punishment within the ordinary meaning of that word—but

no one would say that he aided or abetted the punishment either: he did not “conscious[ly], voluntar[ily],

and culpabl[y] participat[e]” in the punishment. Twitter, 598 U.S. at 493 (defining aiding and abetting). It

is unclear if he even knew the parent would punish the

child.

In the second, a software vendor sells “compliance

tools” to a government agency that then imposes a fine

on a regulated company. Pet. Br. 42-43. Again, Petitioners are correct that the vendor has not “subjected”

the company to the fine under these bare facts. But

again, the vendor has not aided or abetted the fines either. In Petitioners’ hypothetical, the vendor possesses only generic knowledge at the point of sale that

its software may be “used in” unspecified “enforcement

actions” against unnamed companies. Id. at 42. By

contrast, it would be perfectly natural to say that the

vendor subjected the company to a fine if the vendor,

in close partnership with the government, developed a

highly specialized proprietary program to be deployed

in an action against that specific company, with

awareness that fines against that company “were substantially likely” and “with the purpose of facilitating

[the fines].” Pet. App. 82a (describing the allegations

in the instant case).

D. As they must, Petitioners recognize that “subjects” covers more than just directly committing torture. Thus, they concede that the TVPA also covers

“command responsibility.” See Pet. Br. 41. According

to the sources Petitioners cite, that doctrine imposes

liability upon a commander who turns a blind eye to

the abuses of his subordinates. See id. (first citing Michael J. Kelly, Prosecuting Corporations for Genocide

Under International Law, 6 Harv. L. & Pol. Rev. 339,

349 (2012), and then citing Matthew Lippman, The

Evolution and Scope of Command Responsibility, 13

Leiden J. Int’l L. 139, 141-42 (2000)); see also Chavez

v. Carranza, 559 F.3d 486, 494 (6th Cir. 2009) (same).

Petitioners contend that the TVPA covers this theory

of liability but not aiding-and-abetting liability because the latter “does not require any causal connection between the defendant and the injury.” Pet. Br.

41.

That makes no sense. As Respondents explain,

causation is indisputably an element of aiding-andabetting liability under both international law principles and the common law. See Resp. Br. 43 (citing Restatement (Second) of Torts § 876 cmt. d (Am. L. Inst.)

(1979)).

What is more, aiding-and-abetting liability at

least arguably requires a closer causal link to torture

than “command responsibility” does. For command responsibility to lie, three elements must be present:

“authority, knowledge—either actual or constructive—and inaction.” Kelly, supra, at 349; see Lippman,

supra, at 141-42 (similar). In contrast, mere inaction

that facilitates the primary tort is insufficient for aiding-and-abetting liability, which requires “some ‘affirmative act’” that “facilitate[s] the offense’s commission.” Twitter, 598 U.S. at 490 (quoting Rosemond v.

United States, 572 U.S. 65, 71 (2014)).

At bottom, Petitioners cannot explain why command responsibility fits their theory of causation but

aiding and abetting does not. One who aids and abets

has surely “caused” an underlying injury just as much

as a negligent commander has “caused” the torture his

subordinates commit. Indeed, the very dictionaries

that Petitioners cite define the noun “cause” broadly,

as something “that brings about an effect” or “produces” a “state.” Webster’s Third New International

Dictionary, supra, at 356 (1993); see 2 Oxford English

Dictionary, supra, at 1000 (2d ed. 1989) (“That which

produces an effect; that which gives rise to any action,

phenomenon, or condition.”). Those definitions cover

both command responsibility and aiding and abetting.

Here, for instance, it is clear that Cisco’s tailor-made

software “brought about” the torture of Falun Gong adherents at the hands of the Chinese Communist Party.

E. Finally, unable to establish that the text of the

TVPA’s liability provision precludes aiding-and-abetting liability, Petitioners assert for the first time before this Court that a different section of the TVPA

demonstrates that liability under the statute requires

“custody or physical control of the victim.” Pet. Br. 43

(citing § 3(b)(1)). Reprising an argument raised by the

government’s certiorari-stage briefing, see U.S. Cert.

Br. 21, Petitioners point to § 3(b)(1)’s definition of “torture” as an intentionally harmful act “directed against

an individual in the offender’s custody or physical control,” see Pet. Br. 43 (emphasis added). Splicing that

provision with § 2(a)(1), they argue that “the offender”

under § 3(b)(1) is “the individual who is liable for subjecting a victim to torture” under § 2(a)(1). Id. (quotations omitted). And because “those who aid and abet

generally will not have either direct or indirect custody

or control of the victims,” Petitioners conclude that the

TVPA does not cover aiding-and-abetting liability. Id.

That argument holds no water. Section 3(b)(1)

does not tell us who is liable for torture; rather it tells

us what torture is. And for “torture” to occur within

the meaning of the TVPA, the “offender”—meaning

the torturer—must have “custody or physical control”

over the victim. TVPA § 3(b)(1). In other words, a condition precedent to “torture” is the existence of a direct

torturer with “custody or physical control” over the victim.

To be sure, the presence of a direct torturer (with

“custody or physical control” of the victim) is a condition precedent to aiding-and-abetting liability under

the TVPA too. After all, an individual cannot aid and

abet a tort unless a primary tortfeasor “complete[s] its

commission.” Twitter, 598 U.S. at 494 (quoting Rosemond, 572 U.S. at 70).

But just because there must be a direct torturer

with certain characteristics (“custody or physical control” of the victim) for “torture” to occur within the

meaning of the TVPA does not mean that only that person may be held liable under the TVPA. Congress

made that abundantly clear by including a separate

provision of the TVPA entitled “Liability.” TVPA

§ 2(a). And that provision does not just hold liable any

person who commits the act of torture; rather, it makes

liable anyone who “subjects” an individual to torture,

as that act is defined in § 3(b)(1), thus extending liability to secondary tortfeasors who aid and abet the

primary “offender.”

The bottom line is that if Congress wished to narrow the class of individuals liable under the TVPA, the

obvious place to do so would have been in the subsection called “Liability.” The “separate provision[]” upon

which Petitioners fixate would “be a surprisingly indirect route to convey [that] important and easily expressed message.” County of Maui v. Haw. Wildlife

Fund, 590 U.S. 165, 180 (2020) (quotations omitted).

No such hidden message exists in the TVPA.

The structure of the TVPA confirms that conclusion. In addition to imposing liability upon “[a]n individual” who “subjects” another “to torture,” TVPA

§ 2(a)(1), Section 2(a) also makes that “individual” liable if he “subjects” another person “to extrajudicial

killing,” id. § 2(a)(2). Under Petitioners’ theory, an individual liable for “extrajudicial killing” under the

TVPA necessarily must also have “custody or physical

control” over the victim. That is because Petitioners’

theory borrows the “custody or physical control” requirement from § 3(b)(1)’s definition of “torture” and

imposes it upon the “individual” whom the TVPA

makes liable for both torture and extrajudicial killing.

See id. § 2(a).

In many cases, however, individuals who subject

victims to extrajudicial killing will not have custody or

physical control over them—they may target them at

a distance, for example, or leave the sordid work to

someone for hire. See, e.g., Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Ukraine, U.N. Doc.

A/HRC/27/75 (Sept. 19, 2014), https://ukraine.ohchr.

org/sites/default/files/2024-03/A-HRC-27-75_en.pdf

(describing the notorious extrajudicial killing of protestors in 2014 in Independence Square in Kyiv, conducted in part by snipers); Christof Heyns, End of Visit

Statement of the Special Rapporteur on Extrajudicial,

Summary or Arbitrary Executions (Sept. 18, 2015),

https://www.ohchr.org/en/statements-and-speeches/

2015/09/end-visit-statement-special-rapporteur-extrajudicial-summary-or (same). On Petitioners’ theory,

such killings necessarily fall outside the TVPA—a

truly implausible result. Indeed, likely for that very

reason, Congress did not include a “custody or physical

control” requirement in the TVPA’s express definition

of “extrajudicial killing.” See TVPA § 2(a)(2).

II. This Court Has Never Imposed a “Magic

Words” Requirement for Civil Aiding-andAbetting Liability, and It Should Not Tread

on Congress’s Authority by Doing So Here.

Failing to show that the ordinary meaning of the

TVPA precludes aiding-and-abetting liability, Petitioners assert that this Court’s decision in Central

Bank of Denver created a “magic words” rule that requires Congress to use the words “aid” and “abet” before such liability can exist under any civil statute. See

Pet. Br. 40 (quoting Central Bank, 511 U.S. at 177).

Central Bank did no such thing.

A. To start, that case interpreted a different statute enacted nearly sixty years before the TVPA was

passed concerning a wholly unrelated area of law: the

Securities Exchange Act of 1934 (SEA). What is more,

the relevant provision there contained materially different text from § 2(a)(1) of the TVPA: it prohibited

manipulative or deceptive acts in the purchase or sale

of securities, whether committed “directly or indirectly.” SEA § 10(b). As the Court there explained,

§ 10(b)’s text only reached “persons who engage, even

indirectly, in a proscribed activity,” and thus did not

cover those who merely aided and abetted others. Central Bank, 511 U.S. at 176. Unlike § 10(b), however,

§ 2(a)(1) of the TVPA does not prohibit “directly or indirectly” committing torture; it imposes liability upon

anyone who “subjects an individual to” torture. That

language is meaningfully broader and, as explained

above, includes aiding and abetting. See supra Part I.

To be sure, in rejecting the argument that the

“[i]nclusion of those who act ‘indirectly’ suggests a legislative purpose fully consistent with the prohibition of

aiding and abetting” in § 10(b), Central Bank, 511 U.S.

at 175-76 (quotations omitted), this Court also stated

that “Congress knew how to impose aiding and abetting liability when it chose to do so,” id. at 176-77 (first

citing 18 U.S.C. § 2, and then citing 7 U.S.C. § 192(g)),

and that if “Congress intended to impose aiding and

abetting liability, we presume it would have used the

words ‘aid’ and ‘abet’ in the statutory text,” id. at 177

(citations omitted). But it is clear from the context of

that remark that it was limited to the arena of securities law, as this Court cited only securities cases for

the proposition, see id. (first citing Pinter v. Dahl, 486

U.S. 622, 650 (1988) (interpreting Securities Act of

1933), and then citing Blue Chip Stamps v. Manor

Drug Stores, 421 U.S. 723, 734 (1975) (interpreting Securities Exchange Act of 1934)), and Congress had indeed used the words “aid and abet” elsewhere in the

securities statutes but conspicuously omitted them in

§ 10(b), see id. at 183 (collecting provisions of securities

statutes).

In any event, that passage from Central Bank was

not “necessary to th[e] result,” Seminole Tribe of Fla.

v. Florida, 517 U.S. 44, 67 (1996), which turned on the

text of § 10(b) and the fact that “numerous [other] provisions” of the Securities Exchange Act employed the

phrase “directly or indirectly” in ways that did “not impose aiding and abetting liability,” Central Bank, 511

U.S. at 176; see Stoneridge Inv. Partners, LLC v. Sci.Atlanta, 552 U.S. 148, 157 (2008) (confirming that

Central Bank was decided on these grounds). It would

be especially anomalous to transform Central Bank’s

dicta into a magic-words rule for the entire federal civil

code when the successful party in that case did not

even attempt such an ambitious argument. Cf. Pet.

Reply Br. 7, Central Bank, No. 92-854. Notably, this

Court has not relied upon any purported magic-words

rule created by Central Bank in any subsequent case.

If anything, Central Bank recognized that Congress has taken a “statute-by-statute approach to civil

aiding and abetting liability.” 511 U.S. at 182. That

approach requires examining the specific text of a statute to determine whether its ordinary meaning covers

aiding and abetting: “the fact that Congress chose to

use certain language [elsewhere] . . . hardly means it

was ‘foreclosed from using different language to accomplish the same goal.’” Dep’t of Agric. Rural Dev.

Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 52 (2024) (alteration omitted); see Bostock v. Clayton County, 590

U.S. 644, 656-60 (2020) (concluding that discrimination “because of . . . sex” covers discrimination on the

basis of gender identity and sexual orientation even

though Congress had used those more specific terms

elsewhere in the U.S. Code). The statute-by-statute

approach thus counsels against any generic rule applicable at once to every single federal civil statute.

B. A magic-words rule for civil aiding-and-abetting liability would also be inappropriate because it

would raise separation-of-powers concerns. The Constitution vests Congress with the power “of making

laws” and empowers the judiciary only to “interpret[]

and apply[]” the law. Patchak v. Zinke, 583 U.S. 244,

249 (2018) (quoting Massachusetts v. Mellon, 262 U.S.

447, 488 (1923)). That means courts “implement Congress’s choices rather than remake them,” Talevski,

599 U.S. at 178, typically by giving effect to the ordinary public meaning of the text at the time Congress

passed it. But a magic-words requirement distorts the

ordinary meaning of a given statute. It forces judges

to elevate judge-made “nit-picking technicalities” over

the ordinary meaning of a statute’s text. Scalia & Garner, supra, at 285. That rewrites the text of the statute, leading judges to “arrogat[e] legislative power”

and undermine “the Constitution’s separation of legislative and judicial power.” Hernandez v. Mesa, 589

U.S. 93, 100 (2020).

To be sure, this Court has sometimes applied

clear-statement rules when interpreting statutes, for

example when it assesses waivers of sovereign immunity, see FAA v. Cooper, 566 U.S. 284, 291 (2012), or considers an interpretation of a federal statute that

threatens to alter the usual constitutional balance between the states and federal government, see Gregory

v. Ashcroft, 501 U.S. 452, 460-61 (1991). But even

then, this Court has emphasized that clear-statement

rules do not require Congress to use magic words. For

example, it has explained that Congress “need not use

magic words” to effectuate a waiver of sovereign immunity even though it must use “unmistakably clear”

language. Kirtz, 601 U.S. at 48-49 (quotations omitted). Similarly, it has clarified that Congress must use

“unmistakably clear” language when it wishes to alter

the usual balance of federal and state power, but need

not be “explicit.” Gregory, 501 U.S. at 467 (quotations

omitted); see Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206

(1998) (applying that rule).3

Petitioners’ proposed magic-words rule for civil

aiding-and-abetting liability is thus more extreme

than even the strictest clear-statement rules this

Court has applied. It would require Congress to “incant [the] magic words” “aid” and “abet” even if the

“traditional tools of statutory construction . . . plainly

show that Congress” imposed aiding-and-abetting liability. Boechler, 596 U.S. at 203 (quotations omitted).

This Court should decline “such an aggressive” request

by Petitioners, one that surely “violates the baseline

rule of legislative supremacy.” Barrett, supra, at 16667.

Even if Petitioners’ argument could be characterized as a more modest clear-statement rule—and it

cannot—Petitioners fail to provide any appropriate

justification for such a rule. In adopting clear-statement rules in other contexts, this Court has identified

substantive “values external to a statute” that justify

the rule’s application. Nebraska, 600 U.S. at 508 (Barrett, J., concurring). In the sovereign immunity context, for example, it has explained that “the power to

waive the federal government’s immunity” and expose

the government to monetary liability “is Congress’s

prerogative” alone, and courts must carefully confirm

Congress indeed did waive such immunity. Kirtz, 601

3 Even these clear-statement rules have not been immune from

critique. See, e.g., Nebraska, 600 U.S. at 508-09 (Barrett, J., concurring) (citation omitted) (clear-statement rules are “in significant tension with textualism” because they “counsel[] a court to

strain statutory text” and “mean[] that the better interpretation

of a statute will not necessarily prevail”); John Manning, Clear

Statement Rules and the Constitution, 110 Colum. L. Rev. 399,

403 (2010) (clear-statement rules impose a “clarity tax” on Congress).

U.S. at 48. Similarly, in the federalism clear-statement context, it has explained that “Congress does

not” “lightly” tread onto “areas traditionally regulated

by the States” given the importance of federalism principles under our constitutional structure. Gregory, 501

U.S. at 460.

But Petitioners offer no such persuasive justification here. They raise the specter of the potentially

“open-ended expansion” of liability that would materialize if the TVPA were to cover aiding and abetting.

Pet. Br. 44. Even if that were plausible, such a selfserving rationale is not the kind of “value[] external to

a statute” that could justify a clear-statement rule.

Nebraska, 600 U.S. at 508 (Barrett, J., concurring).

Nor can Petitioners’ invocation of foreign policy consequences perform the required heavy lifting, see Pet. Br.

44, given that—as all parties agree—Congress has imposed primary liability through the TVPA “for conduct

against foreign nationals on foreign soil,” id.; contra id.

at 33-36.

***

At bottom, Petitioners protest the breadth of the

verb “subjects” in § 2(a)(1). “But Congress enacted” it,

“and it is up to Congress—if it so chooses—to change

it.” Kousisis v. United States, 605 U.S. 114, 135 (2025).

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

HARITH KHAWAJA

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1730 Rhode Island Ave. NW

Suite 1200

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 27, 2026

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.