Linder v. Calero-Portocarrero – International Human Rights and Solidarity – CCR Docket Fall 1992

Five years after Benjamin Linder’s torture and death at the hands of the contras, his alleged murderer s may finally stand trial. On June 18, 1992, the Eleventh Circuit Court of Appeals reversed the district court decision which had dismissed the suit by the Linder family against three contras, ruling in essence that trial must proceed.

Linder, a U.S. citizen, and two Nicaraguans were murdered in April 1987 by contras who attacked them while they were constructing a small dam in the village of Bocay. The dam was part of a project to provide electricity, potable water and boost development in a poor rural area of Nicaragua.

In 1988, CCR filed suit in federal district court in Miami against the contra organizations and their leaders, Adolfo Calero, Enrique Bermudez, and Aristides Sanchez, charging them with the death of Linder. The complaint alleged that they ordered the killing, or were at least aware of, or condoned the contra practice of killing civilians and executing  the wounded.

Plaintiffs, the family of Benjamin Linder, asserted a cause of action under international law and the wrongful death law of Florida­ the state in which the contras then had their headquarters and where much of their leadership resided.

The contra defendants filed a motion to dismiss, claiming that a federal court could not entertain jurisdiction over suits alleging injuries or wrongful death that occur during war even if the death involved torture and

summary execution of a civilian. CCR responded with an argument based on the Filartiga principle In 1990, the district court dismissed the case on political question grounds-a discretionary doctrine which precludes federal courts from deciding cases which could interfere with foreign policy.

But in a precedent-setting opinion, the appeals court reversed. For the first time, an American court found that tort suits-suits for damages-could be based upon violations of the customary laws of war. As the circuit court said, “Even though a civil war was in progress…does this immunize the defendants from tort liability for the torture and murder of Linder? We think not.”

At this writing, a trial date has not been set, and the defendants may first request a Supreme Court review.

Michael Ratner, Margaret L. Ratner, Beth Stephens, Jules Lobel, with Harold Hongju Koh of the Lowenstein lnternational Human Rights Clinic of Yale Law School, and Dr. Ann Mari Buitrago, FOIA specialist