America first? SCOTUS considers closing US court doors to foreign torture claims

WASHINGTON (CN) — In the middle of oral arguments Tuesday, Chief Justice John Roberts paused questioning to make an unusual announcement: “I’ve been notified that there will be a flyover of four planes.”

Military jets were set to roar over the Washington, D.C., region at 11:22 a.m. while the British monarch, King Charles III, visited the White House as part of a state visit that will include an address to Congress this evening.

Roberts, a George W. Bush appointee, warned court watchers of a potential noise disruption to the Supreme Court’s arguments, stating there was no need for alarm.

“I don’t know why they didn’t check with me,” Roberts quipped.

Ironically, the interruption came as the justices were debating their role in foreign policy or whether the executive and legislative branches should shoulder those burdens.

“Are we masquerading as to where the real responsibility and where your efforts belong?” Justice Neil Gorsuch, a Donald Trump appointee, asked Chinese nationals seeking accountability for human rights abuses committed by their government. “Do they belong in the courts or maybe across the street?”

The Chinese nationals argued U.S. courtroom doors were open to address such injustices when American companies participated in violations of international law. Under the Alien Tort Statute and the Torture Victim Protection Act, they said a California-based company should be held liable for helping the Chinese Communist Party subject them to brutal human rights abuses.

Members of the Falun Gong religion say Cisco Systems contracted with the Communist Party to create the “Golden Shield,” a multitiered surveillance system used to target, detain and torture religious minorities.

“Cisco subjected Falun Gong believers to torture and extrajudicial killing by identifying them and delivering them to their torturers,” Paul Hoffman, an attorney with Schonbrun Seplow representing the Chinese nationals, said. “Such conduct has violated international law at least since Nuremberg. This court should not give the green light to U.S. corporations acting from the United States to help foreign governments commit torture or extrajudicial killings.”

To bring a lawsuit in a U.S. court, the nationals would need a cause of action. Without express authorization by Congress, most of the conservative justices were skeptical Tuesday that the nationals had one.

“As sympathetic as this case certainly is, responsibility for creating causes of action generally lies not with judges but with Congress,” Gorsuch said.

The Alien Tort Statute gave federal courts original jurisdiction for civil actions by foreign nationals committed in violation of international law. In recent years, the Supreme Court has strictly limited when such suits can be brought, however.

Justice Brett Kavanaugh, another Trump appointee, worried that the legislative branch wasn’t aware of just how limited the opportunities to bring a case have become.

“By leaving the door somewhat ajar but never quite getting there, we’ve maybe misled Congress into thinking, ‘oh, we don’t need to do anything about these human rights things, the courts are taking care of it,’” Kavanaugh said. “And I’m concerned on a separation of powers level that we’re not really allowing suits to go forward, but Congress thinks because of a lack of clarity in our case law.”

Several justices suggested overruling Sosa v. Alvarez-Machain, the 2004 ruling that identified circumstances when foreign nationals could bring these cases. It was unclear whether that view would carry the day or whether a more middle-ground ruling would prevail.

Justice Sonia Sotomayor, a Barack Obama appointee, stood on the other side of the spectrum, strongly advocating for allowing such claims. Sotomayor questioned how the lawsuits could conflict with the executive branch’s foreign policy concerns when the current administration advocated for the exact cause the Chinese nationals were pressing before the court.

“What are the foreign policy implications for this suit when President Trump, in 2020, when he was talking about the Chinese policy, was encouraging China to respect and not prosecute the Falun Gong adherents,” Sotomayor said. “And where he states that he stands by the principle that American technology should not be used to further that prosecution.”

Far from stepping on Congress’ toes, Justice Ketanji Brown Jackson, a Joe Biden appointee, worried the court’s ruling would ignore the Legislature’s intent.

“I could appreciate in particular cases where having this particular person bring this particular claim against a corporation is going to raise significant foreign policy issues, but the U.S. hasn’t filed such a statement in this case,” Jackson said.

The federal government told the court hadn’t filed a statement noting a policy conflict because it didn’t think it needed to. However, the government said this case could potentially cause an issue because it could create sensitivities by going after top officials in the Chinese government.

Despite Roberts’ call to attention, noise from the White House flyover never penetrated the high court’s marble walls, leaving the justices to continue their work without further interruption.

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