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

No. 24-856

In the

Supreme Court of the United States

_____________________

CISCO SYSTEMS, INC., ET AL.,

Petitioners,

v.

DOE I, ET AL.,

Respondents.

_____________________

On Writ of Certiorari to

the United States Court of Appeals for

the Ninth Circuit

_____________________

BRIEF OF MEMBERS OF CONGRESS

REPRESENTATIVE CHRISTOPHER H.

SMITH, ET AL., AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

JENNIFER M. GREEN

HUMAN RIGHTS

LITIGATION AND

ADVOCACY CLINIC

UNIVERSITY OF

MINNESOTA LAW

SCHOOL

229-19th Ave. South

Minneapolis, MN

55455

AGNIESZKA M. FRYSZMAN

Counsel of Record

NICHOLAS J. JACQUES

COHEN MILSTEIN SELLERS

& TOLL PLLC

1100 New York Ave. NW

Eighth Floor

Washington, DC 20005

TEL: (202) 408-4600

afryszman@cohenmilstein.com

Counsel for Amici Curiae.

i

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 5

I.

A Bipartisan, Nearly Unanimous

Congress Passed the TVPA ................... 5

A.

Before drafting and

passing the TVPA,

Congress spent years

investigating the use of

torture by foreign

governments................................ 6

B.

Congress decided to enact

a tort remedy to provide

money damages to victims,

which it viewed as “clearly

the most effective

deterrent” to combat

continued human rights

abuses .......................................... 8

C.

Congress enacted and the

President signed the TVPA

despite the

Administration’s concerns

about the foreign policy

impact of the bill ....................... 13

D.

Congress intended to

include aiding and abetting

liability ...................................... 18

ii

II.

This Case is Consistent with

Federal Law and U.S. Foreign

Policy, Which Have Long Sought

to Address Serious Human Rights

Abuses in China .................................. 21

CONCLUSION.......................................................... 26

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Astoria Fed. Sav. & Loan Ass’n v.

Solimino,

501 U.S. 104 (1991) ............................................. 19

Biden v. Nebraska,

600 U.S. 477 (2023) ............................................. 20

Central Bank of Denver v. First

Interstate Bank of Denver,

511 U.S. 164 (1994) ....................................... 18, 20

Filartiga v. Pena-Irala,

630 F.2d 876 (2d Cir. 1980) ............................... 4, 7

Halberstam v. Welch,

705 F.2d 472 (D.C. Cir. 1983) ............................. 19

Meyer v. Holley,

537 U.S. 280 (2003) ............................................. 19

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984) ............................. 11

Statutes

18 U.S.C. § 2 ............................................................. 21

28 U.S.C. § 1350 ...................................................... 4, 7

28 U.S.C. § 1350 (note) ............................................. 18

Foreign Relations Authorization Act for

Fiscal Years 1990 and 1991, Pub. L.

No. 101-246, § 901(a),104 Stat. 80

(1990) ................................................................... 25

Joint Resolution, Pub. L. No. 98-447, 98

Stat 1721 (1984) .................................................... 8

U.S.-China Relations Act of 2000, Pub.

L. No. 106-286, § 301, 114 Stat. 880

(2000) .............................................................. 5, 24

Congressional Materials

132 Cong. Rec. 9710 (May 6, 1986) ............................ 9

iv

132 Cong. Rec. 12949 (Jun. 6, 1986) ......................... 9

133 Cong. Rec. 6670 (Mar. 24, 1987) ....................... 11

134 Cong. Rec. 28612 (Oct. 5, 1988) ........................... 4

134 Cong. Rec. 28614 (Oct. 5, 1988) ......................... 10

135 Cong. Rec. 22714 (Oct. 2, 1989) ................... 10, 11

135 Cong. Rec. 22715 (Oct. 2, 1989) ....9, 10, 14, 15, 16

135 Cong. Rec. 22716 (Oct. 2, 1989) ......................... 12

137 Cong. Rec. 34785 (Nov. 25, 1991) ................ 16, 21

137 Cong. Rec. 34786 (Nov. 25, 1991) ...................... 16

138 Cong. Rec. 4176 (Mar. 3, 1992).................... 16, 17

CECC at 20: Two Decades of Human

Rights Abuse and Defense in China:

Hearing Before the Cong.-Exec.

Comm’n on China, 117th Cong. (Dec.

13, 2022) ............................................................... 24

Global Internet Freedom: Corporate

Responsibility and the Rule of Law:

Hearing Before the Subcomm. on

Hum. Rts. & the L. of the S. Comm.

on the Judiciary, Hr’g 110-643,

110th Cong. (May 20, 2008) ................................ 22

H. Comm. on Foreign Affs., Torture

Victim Protection Act of 1988, H.R.

Rep. No. 100-693 (1988) .................9, 10, 11, 12, 13

H. Comm. on the Judiciary, Torture

Victim Protection Act of 1989, H.R.

Rep. No. 101-55 (1989) ............................ 11, 12, 13

H.R. Res. 343, 114th Cong. (2016) ........................... 23

H.R. Res. 605, 111th Cong. (2010) ........................... 23

H.R. Res. 608, 109th Cong. (2005) .......................... 23

v

The Malign Influence of the People’s

Republic of China at Home and

Abroad: Recommendations for Policy

Makers: Hearing Before the S.

Comm. on Foreign Rels., Hr’g 119-33,

119th Cong. (Jan. 30, 2025) .......................... 22, 23

Phenomenon of Torture: Hearings and

Markup on H.J. Res. 605 Before the

H. Comm. on Foreign Affs. and its

Subcomm. on Hum. Rts. and Int’l

Orgs., 98th Cong. (May 15, 16, and

Sept. 6, 1984). ................................................... 6, 7

Practice of Torture by Foreign

Governments and U.S. Efforts to

Oppose its Use: Hearing Before the S.

Comm. on Foreign Rels., Hr’g 98-953,

98th Cong. (Jun. 26, 1984) .................................... 6

Religious Freedom in China: Hearing

Before the Cong.-Exec Comm’n on

China, 108th Cong. (Nov. 18, 2004) .................... 24

S. Comm. on the Judiciary, Torture

Victim Protection Act of 1991, S. Rep.

No. 102-249 (1991) ........................11, 12, 13, 14, 18

Statement on Signing the Torture

Victim Protection Act of 1991, 1 Pub.

Papers 437 (Mar. 12, 1992) ........................... 17, 18

Surveillance, Suppression and Mass

Detention: Xinjiang’s Human Rights

Crisis: Hearing Before the Cong.Exec. Comm’n on China, 115th Cong.

(July 26, 2018) .................................................... 24

vi

Torture Victim Protection Act of 1989:

Hearing on S. 1629 and H.R. 1662

Before the Subcomm. on Immigr. and

Refugee Affs. Of the S. Comm. on the

Judiciary, Hr’g 101-1284, 101st

Cong. (Jun. 22, 1990) ...................... 7, 8, 12, 14, 19

Torture Victim Protection Act of 1988,

H.R. 1417, 110th Cong. (1988) .......................... 1, 5

Torture Victim Protection Act of 1989,

H.R. 1662, 101st Cong. (1989) .......................... 1, 5

Torture Victim Protection Act of 1991,

H.R. 2092, 102d Cong. (1991) ........................... 1, 5

Other Authorities

John F. Manning, Clear Statement

Rules and the Constitution, 110

Colum. L. Rev. 399 (2010) ............................. 20, 21

1

INTEREST OF AMICI CURIAE*

Members of Congress submit this brief amicus

curiae in the hope that a brief history of Congress’s

actions to draft and enact the Torture Victim

Protection Act (TVPA), including its relationship to

the Alien Tort Statute (ATS), is useful to the Court in

its deliberations.

Representative Christopher H. Smith (R-NJ)

is a senior member of the House Foreign Affairs

Committee. He served on the Committee during its

consideration of the TVPA and cosponsored the

Torture Victim Protection Act of 1988 (H.R. 1417),

1989 (H.R 1662), and 1991 (H.R. 2092). He also

authored the Torture Victims Relief Act of 1998,

which authorizes the President to provide assistance

to programs designed to treat victims of psychological

and physical torture. Mr. Smith has been appointed to

serve as Co-Chair of the Tom Lantos Human Rights

Commission,

Co-Chair

of

the

bipartisan

Congressional-Executive

Commission

on

China (CECC), and Chair of the House Foreign

Affairs Subcommittee on Africa. Because of his length

of tenure and leadership in foreign affairs, he is

familiar with the important role of Congress in

developing and supporting U.S. foreign policy. He is

* All parties have consented to this filing. No counsel for a

party authored any part of this brief. No individual or entity

except amici’s counsel contributed any funding toward the

preparation or submission of this brief.

2

deeply committed to protecting religious freedom and

democratic governance.

Representative Joe Wilson (R-SC) is a senior

member of the House Foreign Affairs Committee,

where he is a member of the Middle East and North

Africa Subcommittee as well as the Subcommittee on

Europe. He is also the most senior member of the

House Armed Services Committee where he is on the

Subcommittees on Readiness and also Strategic

Forces. Additionally, he serves as the Chairman of the

U.S. Helsinki Commission, also known as the

Commission on Security and Cooperation in Europe.

He has been appointed to the Republican Policy

Committee, where he serves as the Chairman of the

National Security Taskforce. He served as a member

of the United States Armed Forces for 31 years.

Representative Gus M. Bilirakis (R-FL) is a

Senior Member of the Energy and Commerce

Committee. He is the Chairman of the Innovation,

Data, and Commerce Subcommittee. He is also a

Senior Member of the Health Subcommittee and the

Communications and Technology Subcommittee.

Representative Stephen F. Lynch (D-MA) is a

member of the Financial Services Committee, where

he serves as Ranking Member of the Subcommittee on

Digital Assets, Financial Technology and Artificial

Intelligence and is a member of the Subcommittee on

Capital Markets and the Subcommittee on Financial

3

Institutions. He is also a member of the Tom Lantos

Human Rights Commission.

SUMMARY OF ARGUMENT

A bipartisan, nearly unanimous Congress passed

the Torture Victim Protection Act.

While the bill was under consideration, Congress

consistently described torture as a violation of the law

of nations that had been condemned by virtually every

country — a universal crime akin to piracy, one of the

three offenses against the law of nations referenced by

Blackstone. Congress concluded that extrajudicial

killing had also reached the same level of universal

condemnation.

Congress

understood

the

foreign

policy

implications of the TVPA, passing the act despite

warnings from the State Department. Congress

understood that enacting a civil remedy for torture

committed under the color of foreign law might have

foreign policy impacts but deliberately decided to

proceed because Congress believed that stamping out

torture was a worthwhile goal and that providing a

civil remedy for its victims was a concrete step

towards that goal. The TVPA is a deliberate, eyesopen choice by the political branches. In the words of

Representative James Leach (R-IA), a member of the

House Foreign Affairs Committee and original cosponsor of the legislation, during the floor debate on

passage of the TVPA:

4

Now and again in recent years critics of

American foreign policy have alleged

that we sometimes act as policemen of

the world. Sometimes we do that for good

cause. Sometimes we do it effectively;

sometimes counterproductively. But in

this particular approach what we are

saying is that we are going to be and

represent, and the first country so to do,

although certainly consistent with the

U.N. Convention Against Torture, we are

going to provide a court to police the

world.

My own sense is that through courts,

through the rule of law, through the

western tradition, we have a greater

chance to set a model for the world and

to have an effect than we sometimes do

through the exercise of force.

134 Cong. Rec. 28612 (Oct. 5, 1988).

Congress had heard testimony about a recent

decision, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.

1980), that provided a civil remedy pursuant to the

Alien Tort Statute, 28 U.S.C. § 1350, to the family of

a young man tortured to death in Paraguay. Congress

repeatedly expressed its intent to provide a similar

remedy to U.S. citizens and, at the same time, to

preserve and clarify that the ATS remained available

to provide redress for violations of international law.

5

The remedy chosen by Congress for the TVPA, like the

ATS, was a tort claim for damages, a claim that

encompasses aiding and abetting liability.

Members of Congress have consistently spoken

out, including by passing resolutions and other

measures, to condemn aiding and abetting religious

persecution, particularly when it leads to torture and

extrajudicial killing. Indeed, in 2000, Congress

established the Congressional-Executive Commission

on China (CECC) to monitor human rights and the

rule of law in China. U.S.-China Relations Act of 2000,

Pub. L. No. 106-286, § 301, 114 Stat. 880 (2000). The

CECC has addressed political repression and

persecution of religious minorities in China, including

Falun Gong practitioners, Uyghur Muslims, and

Christians. The legislative record establishes clearly

and consistently that this litigation is neither

inconsistent with U.S. law nor contrary to U.S. foreign

policy. Plaintiffs should have the opportunity to prove

their claims in a court of law, as Congress intended.

ARGUMENT

I.

A Bipartisan, Nearly Unanimous

Congress Passed the TVPA

The TVPA passed the House three times: first in

1988 by voice vote (H.R. 1417), then in 1989 by a vote

of 362-4 (H.R. 1662) and finally in 1991 by voice vote

(H.R. 2092). The TVPA passed the Senate by voice

6

vote in 1992. The TVPA was signed into law by the

President on March 12, 1992.

A. Before drafting and passing the TVPA,

Congress spent years investigating the

use of torture by foreign governments

Congress spent years investigating the use of

torture by foreign governments, focusing in particular

on religious persecution and torture of political

prisoners.

In 1984, the House of Representatives Committee

on Foreign Affairs held a series of hearings on “The

Phenomenon of Torture.” Hearings and Markup on

H.J. Res. 605 Before the H. Comm. on Foreign Affs.

and its Subcomm. on Hum. Rts. and Int’l Orgs., 98th

Cong. (May 15, 16, and Sept. 6, 1984). The Senate

followed, with a hearing on the “Practice of Torture by

Foreign Governments and U.S. Efforts to Oppose its

Use.” Hearing Before the S. Comm. on Foreign Rels.,

Hr’g 98-953, 98th Cong. (Jun. 26, 1984).

The Senate Committee heard graphic testimony

about the persecution of followers of the Baha’i faith

by the government of Iran. See Practice of Torture at

20 (statement of Elliott Abrams, Assistant Sec’y of

State for Hum. Rts. and Humanitarian Affs.); at 73-74

(statement of Firuz Kazemzadeh, Vice-Chairman of

Nat’l Spiritual Assembly of the Bahai’is describing

torture).

The House Committee heard testimony about

doctors in Chile who aided and abetted torture by

7

ensuring that victims survived for further torture “to

prevent them from escaping through unconsciousness

or death.” Phenomenon of Torture at 9. Members

heard a similar account from a Uruguayan torture

survivor. Id. at 44.

The House heard graphic testimony about the

implements of torture. Id. at 9. And the Members

heard testimony from evangelical pastors targeted for

torture in Nicaragua, including from one pastor who

testified that soldiers “took my hair and cut off first

one ear and then the other.” Id. at 234. That pastor

testified that his case was not an isolated one, and he

described the torture suffered by other believers. Id.

On the last day of the House hearings, witnesses

described the importance of financial compensation

for victims and described a recent case based on “an

old law,” Filartiga v. Pena-Irala, 630 F.2d 876, that

awarded a $10 million judgment to the family of a

young man tortured to death in Paraguay.

Phenomenon of Torture at 240 (statement of Michael

Posner, Exec. Dir. of Laws. Comm. for Int’l Hum.

Rts.). That case had proceeded to judgment under the

Alien Tort Statute, 28 U.S.C. § 1350. Members heard

that the Second Circuit had concluded that “for the

purposes of civil liability, the torturer has become -like the pirate and slave trader before him -- hostis

humani generis, an enemy of all mankind.”

Phenomenon of Torture at 245-6. Later hearings on

the TVPA also focused on Filartiga. E.g., Torture

Victim Protection Act of 1989: Hearing on S. 1629 and

8

H.R. 1662 Before the Subcomm. on Immigr. and

Refugee Affs. of the S. Comm. on the Judiciary, Hr’g

101-1284, 101st Cong. 40-41 (Jun. 22, 1990)

(statement of Robert F. Drinan, S.J.), 48-52

(statement of Michael Posner, Exec. Dir. of Laws.

Comm. for Int’l Hum. Rts.).

Following these hearings, Congress adopted and

President Reagan signed a joint resolution in

opposition to the practice of torture. That resolution,

Pub. L. No. 98-447, focused on diplomatic solutions. It

instructed the United States Representative to the

United Nations to continue to raise the issue of torture

practiced by governments; to continue to involve the

United States in formulating international standards,

particularly the draft Convention Against Torture;

and requested the Secretary of State to issue formal

instructions to each chief of mission to investigate and

raise concerns in individual cases of torture. Joint

Resolution, Pub. L. No. 98-447, 98 Stat 1722 (1984).

Congress also resolved to enact laws to reinforce U.S.

policy to oppose the practice of torture by foreign

governments. Id. at 98 Stat. 1721.

B. Congress decided to enact a tort remedy

to provide money damages to victims,

which it viewed as “clearly the most

effective deterrent” to combat continued

human rights abuses

Consistent with the Joint Resolution and

recognizing that diplomatic efforts were not enough on

their own, Members of Congress moved forward to

9

draft and introduce a bill to provide a civil remedy to

victims of torture and extrajudicial killing. As

Representative Gus Yatron (D-PA) explained when he

introduced the first TVPA bill in 1986, “Torture is a

powerful and brutal enemy. It cannot be conquered if

it is ignored, nor can it be beaten solely by

admonitions or condemnations.” 132 Cong. Rec. 9710

(May 6, 1986). Senator Arlen Specter (R-PA) similarly

explained when he introduced the Senate counterpart,

“the resolution calls upon the Congress to develop [a]

concrete mechanism by which the United States can

combat the use of torture throughout the world . . . .

Passage of the Torture Victim Protection Act would

begin to fulfill that mandate.” 132 Cong. Rec. 12949

(Jun. 6, 1986) (statement of Sen. Specter); see also H.

Comm. on Foreign Affs., Torture Victim Protection Act

of 1988, H.R. Rep. No. 100-693, at 2 (1988) (hearings

established that additional domestic legislation was

needed).

The “concrete mechanism” Congress chose was a

civil remedy. The Chairman of the House Foreign

Affairs Committee, Representative Dante Fascell (DFL), explained on the House floor during the debate

on passage of the TVPA that nations must provide a

remedy to victims of torture:

[T]he United States has been in the

forefront in promoting respect for human

rights throughout the world. If

international human rights are to be

given legal effect, we and other nations

10

must provide domestic remedies to

victims of torture. . . .

135 Cong. Rec. 22715 (Oct. 2, 1989). See also H.R. Rep.

No. 100-693, at 2. (“The United States has long

recognized that if international human rights are to

be given legal effect, adhering nations must make

available domestic remedies and sanctions to address

abuses regardless of where they occur.”).

Congress drafted the statute against the backdrop

of tort liability and explained that it was enacting a

remedy in tort for money damages. For example, the

Chairman of the House Judiciary Committee,

Representative Peter Rodino (D-NJ), spoke in support

of the bill’s passage in 1988:

Mr. Speaker, I am one of the original

authors of H.R. 1417, the Torture Victim

Protection Act of 1988. This legislation is

designed both to clarify current law with

respect to tort liability for human rights

violations, and to send a message to

torturers throughout the world . . . . H.R.

1417 would clarify U.S. law by providing

an explicit civil cause of action in tort for

torture and extrajudicial killing, and by

providing that U.S. courts shall have

original jurisdiction over such actions.

134 Cong. Rec. 28614 (Oct. 5, 1988); see also 135 Cong.

Rec. 22714 (Oct. 2, 1989) (on passage of the TVPA,

H.R. 1662, statement of Rep. Jack Brooks (D-TX),

11

Chairman of the House Judiciary Committee: “the

Torture Victim Protection Act, provides any person,

whether a citizen of the United States or alien, a cause

of action in Federal court for damages resulting from

torture or extra-judicial killing . . . [the perpetrator]

shall be liable for money damages, or any other

appropriate relief to the injured party or that party’s

legal representative.”); 133 Cong. Rec. 6670 (Mar. 24,

1987) (statement by Sen. Specter on introduction of

the TVPA of 1987: “this bill is designed to provide

tangible results – a cause of action for damages for

violations of the law of nations condemning torture

and extrajudicial killing . . . . The legislation also

would encourage other nations to develop and apply

meaningful domestic remedies, clearly the most

effective deterrent to continued human rights

abuses.”).

Each Committee report filed on the TVPA

referenced the information Congress had learned

about Filartiga, the Second Circuit case. E.g., H.

Comm. on the Judiciary, Torture Victim Protection Act

of 1989, H.R. Rep. No. 101-55, at 3 (“The Filartiga case

met with general approval.”); S. Comm. on the

Judiciary, Torture Victim Protection Act of 1991, S.

Rep. No. 102-249, at 3-4 (1991) (quoting Filartiga’s

holding); see also H.R. Rep. No. 100-693, at 3.

Congress noted that questions had been raised by “at

least one Federal judge” in another case, Tel-Oren v.

Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984),

about whether the Alien Tort Statute provided an

12

adequate basis for a private right of action. H.R. Rep.

No. 101-55 at 3 (1989); see also S. Rep. No. 102-249, at

4. In response, Congress endorsed the approach taken

by Filartiga and enacted the TVPA “to provide a clear

basis for future suits” and, in addition, expand the

civil remedy to U.S. citizens. H.R. Rep. No. 100-693,

at 3; S. Rep. No. 102-249, at 4. As the House Judiciary

Committee Report explained, “[t]he TVPA would

establish an unambiguous and modern basis for a

cause of action that has been successfully maintained

under an existing law, section 1350.” H.R. Rep. No.

101-55, at 3.

First, Congress agreed that “official torture and

summary execution violate standards accepted by

virtually every nation. The universal consensus

condemning these practices has assumed the status of

customary international law.” H.R. Rep. No. 101-55 at

2; see also S. Rep. No. 102-249, at 3 (same); TVPA of

1989: Hr’g at 17 (Senator Specter explains that

torture is a universal crime, like piracy); 135 Cong.

Rec. 22716 (Oct. 2, 1989) (Rep. Leach during debate

on the passage of TVPA citing Dutch legal scholar

Hugo Grotius and noting that while some principles of

public international law remain unsettled, “there are

some legal principles so fundamental to the existence

of international society that they acquire the

attributes of jus cogens, or peremptory norms of

international law. The right of the individual to be

free from torture is such a norm.”). The definitions in

the TVPA were drawn from the definitions in the

13

Convention Against Torture and reflect customary

international law. H.R. Rep. No. 100-693, at 3; S. Rep.

No. 102-249, at 6.

Second, Congress (in both the House and Senate

Committee reports) made clear that the ATS

has other important uses and should not

be replaced. . . . [C]laims based on torture

or summary executions do not exhaust

the list of actions that may appropriately

be covered by section 1350. That statute

should remain intact to permit suits

based on other norms that already exist

or may ripen in the future into rules of

customary international law.

H.R. Rep. No. 101-55, at 3-4.; see also S. Rep. No. 102249, at 3-5 (same).

C. Congress enacted and the President

signed the TVPA despite the

Administration’s concerns about the

foreign policy impact of the bill

In 1988, the Reagan Administration agreed that

torture is universally condemned and supported the

goals of the TVPA, to deter torture and compensate its

victims, but opposed its enactment as premature,

stating “[a]lthough civil remedies are not per se

unwarranted for extraterritorial acts of torture, we

believe that enactment of the TVPA at this time would

be premature and undesirable” and recommended

instead reliance on the multilateral Convention

14

Against Torture framework. Torture Victim Protection

Act: Hearing and Markup on H.R. 1417 Before the

Comm. on Foreign Affs. and its Subcomm. on Hum.

Rts. and Int’l Orgs., 100th Cong. 91 (Mar. 23, Apr. 20,

and Jun. 7, 1988). A representative of the Bush

Administration testified later that the Administration

was concerned that the TVPA “may interfere with

complex and multifarious foreign policy.” TVPA of

1989: Hr’g at 8 (statement of John O. McGinnis,

Deputy Assistant Att’y Gen., Off. of Legal Couns., U.S.

Dep’t of Just.). In support of the Administration,

Senators Alan Simpson and Charles Grassley filed

Minority Views, opposing the TVPA because “it might

create serious difficulties with the management of

foreign policy.” S. Rep. No. 102-249, at 13.

The TVPA nonetheless passed both chambers by

overwhelming margins. Members of Congress

understood the warnings that the statute risked

entangling U.S. courts in foreign disputes and could

implicate sensitive international relationships. They

nonetheless concluded that universal condemnation of

torture justified the use of domestic courts as a forum

for international human rights accountability. For

example, Representative Lamar Smith (R-TX) of the

House Judiciary Committee supported passage,

explaining that the “infliction of torture under color of

law is conduct so offensive to basic civilized norms as

to justify providing a remedy in our courts even

though the conduct occurs outside our borders.” 135

Cong. Rec. 22715 (Oct. 2, 1989). The Ranking Member

15

of the House Foreign Affairs Committee,

Representative William Broomfield (R-MI), addressed

the Administration’s concerns directly:

It is unfortunate that the Department of

State opposes this bill. I can appreciate

the Department’s view that Congress

should focus its attention on ratifying the

Torture Convention. But I do not believe

these two approaches to addressing

these horrible crimes need to be an

either/or matter.

The United States should have a full

arsenal of weapons against those who

commit torture or murder under the

cloak of official authority. Adopting the

Torture Victim Protection Act will

enhance the protections available to the

victims of torture in the courts of the

United States.

The Department of State is also

concerned that through this bill the

United States would be unilaterally

extending its jurisdiction over actions

that occur overseas. If there were ever a

reason to extend the jurisdiction of our

courts, however, this is certainly it.

Enactment of this legislation would

continue the leadership role of the

United States on human rights.

16

Id. at 22717. Again, on final passage in 1991,

Representative Broomfield reiterated, “There are, of

course, situations in which application of this statute

could create difficulties in our relations with friendly

countries. But this is a small price to pay in order to

see that justice is done for the victims of torture.” 137

Cong. Rec. 34786 (Nov. 25, 1991). Representative Bill

McCollum (R-FL) of the House Judiciary Committee

emphasized Congress’s intention that a remedy for

victims of torture should be available, despite foreign

policy concerns:

It seems to me that despite some

opposition and some questions about it

from sources concerned with the fact that

there might be a reciprocity question

that could get us into conflict

somewhere, that this is not that big a

deal, but it is indeed a very big deal to

the victims involved, and we ought to

provide civil remedies.

Id. at 34785-86.

Later, on the Senate floor, Senators Grassley (RIA) and Specter (R-PA) entered into a colloquy directly

addressing concerns about involving the judiciary in

foreign affairs:

Mr. GRASSLEY. Will the bill involve the

judicial branch of Government in foreign

affairs?

17

Mr. SPECTER. I do not believe that it

will. While it will allow a remedy for acts

committed in foreign countries, torture is

universally condemned by the family of

nations. No nation officially supports or

condones torture. Therefore, I do not

expect that this act will entangle the

judiciary in sensitive foreign policy

matters.

138 Cong. Rec. 4176 (Mar. 3, 1992). The colloquy then

highlighted case-by-case judicial management

doctrines, including forum non conveniens, as tools for

managing individual cases. Id. No Senator called for a

recorded vote, and the bill passed.

At the bill’s signing, President George H.W. Bush

identified the diplomatic risks posed by the TVPA but

nonetheless signed it into law:

There is thus a danger that U.S. courts

may become embroiled in difficult and

sensitive disputes in other countries, and

possibly

ill-founded

or

politically

motivated suits, which have nothing to

do with the United States and which

offer little prospect of successful

recovery. Such potential abuse of this

statute undoubtedly would give rise to

serious

frictions

in

international

relations . . . .

18

Statement on Signing the Torture Victim Protection

Act of 1991, 1 Pub. Papers 437 (Mar. 12, 1992).

President Bush grounded his decision to sign the

bill, despite the foreign policy concerns, in the United

States’ continued leadership on human rights:

Today I am signing into law H.R. 2092

. . . because of my strong and continuing

commitment to advancing respect for

and protection of human rights

throughout the world. The United States

must continue its vigorous efforts to

bring the practice of torture and other

gross abuses of human rights to an end

wherever they occur.

Id.

D. Congress intended to include aiding and

abetting liability

Consistent with the Convention Against Torture,

the TVPA imposes liability on any individual “who

subjects” another to torture. 28 U.S.C. § 1350 (note).

The Senate Judiciary Committee Report, in a section

entitled “scope of liability,” explains that the TVPA

applies to those who “ordered, abetted, or assisted in

the torture,” S. Rep. No. 102-249, at 8.

Relying on this Court’s opinion in Central Bank of

Denver v. First Interstate Bank of Denver, 511 U.S. 164

(1994), Petitioners argue that Congress was required

to use the words “aiding and abetting” in the text of

19

the TVPA if it intended to include aiding and abetting

liability. Pet’r’s Br. 40. As described above, Congress

drafted the TVPA as a tort statute, against the

backdrop of ordinary tort-related liability rules.1

“[W]here a common-law principle is well established,

. . . the courts may take it as given that Congress has

legislated with an expectation that the principle will

apply except ‘when a statutory purpose to the contrary

is evident.’” Astoria Fed. Sav. & Loan Ass’n v.

Solimino, 501 U.S. 104, 108 (1991) (citations omitted)

(quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779,

783 (1952)); see also, e.g., Meyer v. Holley, 537 U.S.

280, 285 (2003) (“[W]hen Congress creates a tort

action, it legislates against a legal background of

ordinary tort-related vicarious liability rules and

consequently intends its legislation to incorporate

those rules.”). When the TVPA was passed in 1991, it

was well established that the common law prohibited

aiding and abetting intentional torts. See, e.g.,

Halberstam v. Welch, 705 F.2d 472, 477-78 (D.C. Cir.

1983).

1 Indeed, when a representative of the State Department

appeared before the Senate Judiciary Committee, he argued that

the United States already complied with the Convention Against

Torture, because “[e]xisting U.S. law already establishes private

rights of suit sufficient to implement this requirement

domestically, for example, through a common law tort action, a

civil action for violations of civil rights or a suit for constitutional

tort.” TVPA of 1989: Hr’g at 25-26 (statement of David P.

Stewart, Assistant Legal Adviser of the Dep’t of State). These

remedies include aiding and abetting liability.

20

Central Bank of Denver does not impose a clearstatement rule on Congress. Rather, the Court held

that “the statutory text controls the definition of

conduct covered by § 10(b)” of the Securities Exchange

Act of 1934. Cent. Bank of Denv., 511 U.S. at 175. And

it held that the text of § 10(b), which imposed liability

only on those who “use or employ . . . any

manipulative or deceptive device or contrivance,” id.

at 171 (quoting 15 U.S.C. § 78j(b)), was too narrow to

encompass aiding-and-abetting liability. Thus, a court

will not presume, without more, that a private right of

action includes aiding and abetting liability when the

text of the statute expressly limits liability to the

primary tortfeasor. See id. at 174-75. That is not the

case here, where the Convention Against Torture and

the legislative history provide important context for

Congress’s word choice.

Even if Central Bank of Denver created a clearstatement rule, the Court should not apply it here to

a statute that pre-dates that decision. Clear

statement rules “insist that Congress speak with

unusual clarity when it wishes to effect a result that,

although

constitutional,

would

disturb

a

constitutionally inspired value.” John F. Manning,

Clear Statement Rules and the Constitution, 110

Colum. L. Rev. 399, 407 (2010). Clear statement rules

come with a cost – often described as a “clarity tax.”

E.g., Biden v. Nebraska, 600 U.S. 477, 508 (2023)

(Barrett, J., concurring); see also Manning, supra, at

419 (clear-statement rules can “accentuate the

21

countermajoritarian difficulty by multiplying the

occasions upon which courts act in the teeth of

apparent legislative preferences”). No important

value, constitutional or otherwise, justifies imposing a

clear statement rule to limit the intended scope of the

TVPA. Notably, it is undisputed that the TVPA

creates liability for command responsibility, Pet’r’s

Br. 41, though the text is no more specific about

command liability than it is aiding-and-abetting

liability.2

II.

This Case is Consistent with Federal

Law and U.S. Foreign Policy, Which

Have Long Sought to Address Serious

Human Rights Abuses in China

Congress has long sought to address serious

human rights abuses by the Chinese Communist

Party (CCP), especially the persecution of religious

minorities in that country. Members of Congress have

been clear that Americans, including American

companies, must not be complicit in furthering those

abuses.

It is also undisputed that Congress imposed criminal

liability for aiding and abetting torture in the companion crime

bill, which imposed criminal penalties consistent with the

Convention Against Torture. 18 U.S.C. §§ 2, 2340A; Pet’r’s Br.

40 (citing 18 U.S.C. § 2(a)); see also 137 Cong. Rec. 34785 (Nov.

25, 1991) (statement of Rep. Mazzoli (D-KY) of the House

Judiciary Committee referencing crime bill provisions

implementing the Convention Against Torture and stating TVPA

“complements what we did in the crime bill.”). In Title 18, aiding

and abetting liability was imposed by a general code provision,

which operates much like the background tort principles do here.

2

22

In particular, Congress has repeatedly expressed

concern about the transfer of surveillance technology

by American companies to the CCP. Congress has held

a number of hearings to highlight this problem. See,

e.g., The Internet in China: A Tool for Freedom or

Suppression?: Joint Hearing Before the Subcomm. on

Africa, Glob. Hum. Rts. and Int’l Operations and the

Subcomm. on Asia and the Pacific of the H. Comm. on

Int’l Rels., Hr’g 109-157, 109th Cong. 1 (Feb. 15, 2006)

(“We are here to examine a problem that is deeply

troubling . . . and that is that American technology

and know-how is substantially enabling repressive

regimes in China and elsewhere in the world to cruelly

exploit and abuse their own citizens.” (statement of

Rep. Christopher H. Smith (R-NJ))).

These hearings included discussion of Cisco and its

provision of network equipment to China. Global

Internet Freedom: Corporate Responsibility and the

Rule of Law: Hearing Before the Subcomm. on Hum.

Rts. & the L. of the S. Comm. on the Judiciary, Hr’g

110-643, 110th Cong. 3 (May 20, 2008), (“Human

rights groups have accused Cisco of providing network

equipment that forms the backbone of the Great

Firewall of China and is used by other repressive

countries to censor Internet and monitor users.”

(statement of Sen. Durbin (D-IL))). This focus has

continued during the current Congress. On January

30, 2025, the Senate Foreign Relations Committee

examined the use of advanced technology in Chinese

government surveillance operations. The Malign

23

Influence of the People’s Republic of China at Home

and Abroad: Recommendations for Policy Makers:

Hearing Before the S. Comm. on Foreign Rels., Hr’g

119-33, 119th Cong. (Jan. 30, 2025).

The House has also passed a number of bipartisan

resolutions condemning religious persecution in

China, including of the Falun Gong, and calling on

China to cease its persecution, torture and other

abuse of believers. E.g., H.R. Res. 608, 109th Cong.

(2005) (agreed to by 363 to 1, condemned torture of

Falun Gong and determined that U.S. policy should be

to “defend religious freedom and freedom of conscience

in China.”); H.R. Res. 605, 111th Cong. (2010) (agreed

to 412 to 1, called upon the Chinese government to

“immediately cease and desist from its campaign to

persecute, intimidate, imprison, and torture Falun

Gong practitioners” and to abolish an extrajudicial

security

apparatus); H.R.

Res.

343,

114th

Cong. (2016) (agreed to by voice vote, expressed

concern regarding organ harvesting from nonconsenting prisoners of conscience, including Falun

Gong practitioners, Uyghurs, and members of other

religious groups).

To improve its ability to monitor human rights and

the rule of law in China and to provide detailed

analysis and policy recommendations for Congress

and the President, Congress established the

Congressional-Executive Commission on China

24

(“CECC”). § 301, 114 Stat. at 880.3 The CECC is a

bipartisan body that includes both legislative and

executive branch members. It has held numerous

hearings on religious persecution by the CCP. See,

e.g., Surveillance, Suppression and Mass Detention:

Xinjiang’s Human Rights Crisis: Hearing Before the

Cong.-Exec. Comm’n on China, 115th Cong. 64 (July

26, 2018) (“The Chinese government and Communist

Party are equal opportunity oppressors – targeting

unregistered and registered Christians, Tibetan

Buddhists, Falun Gong practitioners, and others with

harassment, detention, imprisonment and more.”

statement of Sen. Marco Rubio (R-FL))); Religious

Freedom in China: Hearing Before the Cong.-Exec.

Comm’n on China, 108th Cong. (Nov. 18, 2004);

Roundtable on Religious Freedom in China:

Roundtable Before the Cong.-Exec. Comm’n on China,

107th Cong. (March 25, 2002); CECC at 20: Two

Decades of Human Rights Abuse and Defense in

China: Hearing Before the Cong.-Exec. Comm’n on

China, 117th Cong. (Dec. 13, 2022).

Petitioners assert that the United States and

China have “a complex diplomatic and economic

relationship.” Pet’r’s Br. 7. They argue that because

the Foreign Relations Authorization Act for Fiscal

Years 1990 and 1991 restricted crime control

equipment, but not crime-control software and

3 The CECC’s functions are codified at 22 U.S.C. §§ 6911 et

seq.

25

technology products, that official U.S. policy favors

permitting the sale of custom-designed tools that

facilitate the CCP’s religious persecution. That is not

so. These provisions were adopted in response to the

Tiananmen Square Massacre, well before the internet

became a prominent tool. In addition, the specific

prohibitions in the law addressed known technologies

and indicated an intention to prohibit rather than

permit the type of support to the Chinese government

that Petitioners are alleged to have provided. The

Tiananmen Square Act contains detailed findings of

fact that the Chinese government had engaged in “an

unprovoked, brutal, and indiscriminate assault on

thousands of peaceful and unarmed demonstrators

and onlookers in and around Tiananmen Square.”

Foreign Relations Authorization Act for Fiscal Years

1990 and 1991, Pub. L. No. 101-246, § 901(a)(1), 104

Stat. 80 (1990). The Act described that the Chinese

government had executed dozens of individuals who

participated in the pro-democracy demonstrations

and arrested thousands of protestors. Id. at

§ 901(a)(2)–(4). For these reasons, Congress indicated:

[i]t is the sense of the Congress that . . .

the resumption of normal diplomatic and

military relations . . . will depend directly

on the Chinese Government’s halting of

executions of prodemocracy movement

supporters, releasing those imprisoned

for their political beliefs, and increasing

26

respect for internationally recognized

human rights; . . . .

Id. at § 901(b)(4).

Rather than supporting Petitioners’ transactions

with the Chinese government, the legislative record

establishes clearly and consistently that Congress has

condemned the types of actions that gave rise to this

lawsuit.

In sum, Congress has repeatedly expressed

concern about the human rights situation in China. It

has denounced religious persecution by the Chinese

government. It has also expressed concern about U.S.

corporate complicity in the transfer of surveillance

technology to China. This case is neither inconsistent

with U.S. law nor contrary to U.S. foreign policy.4

CONCLUSION

In passing the TVPA, Congress communicated its

intent that U.S. courts remain open for victims of

torture to seek justice against those responsible,

including Americans who aid and abet bad actors like

4 Counsel thank the following students for their valuable

research assistance: Carson Holmgren, Patrick Kissel, and

Reagan Nail of the University of Minnesota Law School and

Renata Valquier Chavez of Georgetown Law.

27

the Chinese Communist Party. The Court should

honor Congress’s intent.

Respectfully submitted,

AGNIESZKA M. FRYSZMAN

Counsel of Record

NICHOLAS J. JACQUES

COHEN MILSTEIN SELLERS

& TOLL PLLC

1100 New York Ave. NW

Eighth Floor

Washington, DC 20005

TEL: (202) 408-4600

afryszman@cohenmilstein.com

JENNIFER M. GREEN

HUMAN RIGHTS LITIGATION AND

ADVOCACY CLINIC

UNIVERSITY OF MINNESOTA LAW

SCHOOL

229-19th Ave. South

Minneapolis, MN 55455

March 27, 2026

Counsel for Amici Curiae.