WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Cisco Systems v. Doe, a case in which the Court is considering, among other questions, whether the Torture Victim Protection Act imposes liability on those who aid and abet torture, Constitutional Accountability Center Senior Appellate Counsel Miriam Becker-Cohen issued the following reaction:

In this case, the Court will decide whether a technology company and its executives may be held liable for custom-building and selling to the Chinese Communist Party (CCP) a software system designed to surveil Falun Gong practitioners so that the CCP could track them down and torture them. The answer should be yes. As we explained in our amicus brief, which focused on one of the two statutes at issue in this case, the Torture Victim Protection Act (TVPA) plainly extends liability to those who aid and abet torture because it imposes liability on any person who “subjects an individual to torture.” If this Court adheres to the plain meaning of the TVPA and the word “subjects” in particular, it will affirm the decision of the court below.

CAC Legal Fellow Harith Khawaja added this reaction:

While today’s argument primarily focused on the Alien Tort Statute, Justice Sotomayor in particular expressed skepticism of Petitioners’ position on the TVPA, echoing many of the arguments our brief raised. She pressed Petitioners’ counsel on the ordinary meaning of the TVPA, pointing out—as our brief explained—that the verb “subjects” means to “cause” something or “expose” someone to something, thereby encapsulating aiding-and-abetting liability. Likewise, she doubted Petitioners’ contention that “subjects” covers command responsibility but not aiding-and-abetting liability, something our brief explained was inconsistent with the ordinary meaning of the statute. And she highlighted the same weaknesses in Petitioners’ structural arguments our brief discussed in detail: The “physical custody or control” requirement that Petitioners claim is required for liability under the TVPA comes from a separate provision of the statute that defines “torture.” It does not modify the class of liable individuals—those who “subject” others to torture—which includes those who aid and abet torture.