Dr. Terri Marsh: Standing on the Right Side of History

(Minghui.org) On July 7, 2023, the U.S. Court of Appeals for the Ninth Circuit issued an opinion overturning the decision of a lower court to dismiss a case filed against Cisco Systems by practitioners of Falun Gong. In their complaint, the plaintiffs allege that the technology company aided and abetted the violent suppression campaign (“douzheng”) waged by the Chinese Communist Party’s (CCP) against peaceful practitioners of the faith-based group. According to Dr. Terri Marsh, this development amounts to a “huge victory” for human rights and Falun Gong.

Dr. Marsh is a principal attorney representing the plaintiffs of this case and executive director of the Human Rights Law Foundation in Washington, D.C. She has been working on this case for the past 15 years on behalf of 13 plaintiffs: a group of Falun Gong practitioners and their relatives.

Dr. Terri Marsh

According to Dr. Marsh, “Falun Gong is an Eastern type of spiritual practice that instructs adherents as to how to incorporate truthfulness, compassion, and forbearance into their daily lives and engage in what is called ‘cultivation’ in order to become enlightened.” Under U.S. law, Falun Gong qualifies as a religion insofar as the tenets and practice of Falun Gong comport with the legal definition of religion set forth by each Circuit Court in the United States.

Case Began 15 Years Ago

Dr. Marsh decided to initiate this case during a May 2008 Senate Judiciary Committee hearing, where a Cisco executive testified about his company’s involvement with the CCP’s “Golden Shield” surveillance apparatus developed in part to violently suppress Falun Gong adherents and other social minorities. This occurred “during the questioning of Cisco’s Vice President about specific internal PowerPoint documents created by the company.

According to the hearing transcript, in response to their questions, the Cisco Vice President acknowledged that “the Cisco internal presentation included a Chinese Government official statement regarding the combat of hostile elements, including religious organizations.” Other statements by Cisco in the same or related PowerPoints promise to carry out the “combat campaign” against Falun Gong and describe it as a “lucrative opportunity” for the company.

After three years of investigations, in 2011, Dr. Marsh filed the Doe v. Cisco case at the U.S. District Court for the Northern District of California based on evidence collected by Falun Gong believers, including several technology experts.

Why Did Cisco Help the CCP?

“Cisco was among the high-tech companies vying for access to the Chinese technology market,” said Dr. Marsh. “As our Complaint alleges, to secure access to the lucrative technology market in China, Defendants marketed, designed, and developed several high-level solutions, e.g., integration of application designs, that show Public Security officers and Party agents how to identify, round up, and forcibly convert Falun Gong believers in China.”

Based upon these and similar allegations, the Complaint contends that, among other things, Cisco executives violated the Torture Victims Protection Act (TVPA) and Cisco violated the Alien Tort Statute (ATS).

“The TVPA allows U.S. federal courts to hold liable any individual who ‘on behalf of a foreign nation’ subjects a U.S. citizen to torture or extrajudicial killing even if these abuses occur abroad,” said Dr. Marsh.

Significantly, she added, “the 9th Circuit panel reversed the District Court’s dismissal of this claim because Plaintiff Lee sufficiently alleged that Defendants Chambers and Cheung aided and abetted torture.”

Appeals Ruling and Expert Briefs

Notwithstanding the multiple hurdles required to submit a successful ATS claim, the Ninth Circuit held that the Plaintiffs had adequately pled that Defendant Cisco had aided and abetted the alleged international law violations that include but are not limited to torture.

Judge Marsha Berzon, the author of the Ninth Circuit’s opinion, stated in its opening summary, “Plaintiffs plausibly alleged that corporate defendant Cisco provided assistance to the [Chinese Communist] Party and to Chinese Public Security that had substantial effects on those entities’ violations of international law.”

The appeal was supported by two expert amici curiae briefs submitted by the human rights nonprofits EarthRights and the Electronic Frontier Foundation. A third amicus brief was submitted by David Scheffer, a former United States Ambassador-at-Large for War Crimes Issues.

Possible Response from Cisco

According to Dr. Marsh, Cisco will likely file an en banc petition asking the entire Ninth Circuit to reverse the Panel’s determinations.

The Ninth Circuit Court of Appeals is the largest of the 13 federal courts of appeal, and its jurisdiction is only one level below that of the Supreme Court. The U.S. Constitution does not specify the number of judges on the Supreme Court; Congress set the number to nine judges in 1869, and the size of the court remains the same to the present day. The Ninth Circuit Court of Appeals currently has 29 judges.

As Dr. Marsh noted, the Ninth Circuit’s decision bodes well for Falun Gong adherents in China who in her view are subjected to torture and other international law violations based solely on their practice of the religion of Falun Gong.

Standing on the Right Side of History

Dr. Marsh said the case “sends a strong signal” to Falun Gong practitioners, “reminding them that ‘they are on the right side of history and that this Opinion has exposed the evil nature of the Party and the scope of its violent campaign against Falun Gong believers.’ She added that the Opinion exposes CCP lies and propaganda as what they are: lies and propaganda.

Indeed, the Opinion makes clear that the CCP’s contention that the U.S. supports the Party’s decision to persecute Falun Gong believers in China is blatantly false. The Party’s persecution of Falun Gong believers runs afoul of fundamental principles that protect religious freedom and the right to be free from torture. Dr. Marsh added that she applauds the believers in China for their dedication to the core values of Truthfulness, Compassion, and Tolerance.