Linder v. Calero-Portocarrero & Linder v. Department of Defense and F.B.I. and C. I A. – International Human Rights and Solidarity – CCR Docket Fall 1997

More legal skirmishes have occurred in an almost four-year discovery period to obtain documents from recalcitrant U.S. agencies that might shed light on the murder of Benjamin Linder, a U. S. engineer who was murdered in 1987 by the U.S. supported contras in Nicaragua.

A recent set-back too place in fall 1996, when a federal appeals panel denied CCR’s argument to reverse a lower court decision that permitted the national Security Agency (NAS) to refuse to surrender documents. In addition, the lower court judge denied a motion for further relief in December 1996 maintaining that the government did have the right to withhold documents it deemed “secret.” The court did however, demand that the CIA produce additional information. CCR appealed the denials in the District Court of Columbia Court of Appeals and the argument has been scheduled for December 1997. The dispute over the failure by the CIA to produce documents is still before the lower Court.

Linden, 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 and potable water and to boost development in a poor, rural area of Nicaragua.

A year later, in 1988 CCR filed suit in federal district court Miami against the contra organizations and their leaders, charging them with Linder’s death. The complaint alleged that they ordered the killing. or at least were aware or condoned the contra practice of killing civilians and executing the wounded. Plaintiffs–Linder’s father, mother, sister, and brother–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.

In 1990 the district court  dismissed the case on the political question grounds–a discretionary doctrine that precludes federal courts from deciding cases that could interfere with foreign policy. But in a precedent-setting opinion, the appeals court reversed in 1992, signifying, for the first time, that tort suits–suits for damages– could be based on violations of the customary laws of war.

CCR subpoenaed government documents relevant to the case in late 1993. A year and a half later, after the government refused to even discuss complying with the subpoenas, the court ordered it to produce some documents in July 1995.  However, the NSA refused to cooperate, and the lower court sustained this position on administrative grounds, which CCR asserted did not properly weigh “Balancing plaintiffs’ need for information with the government’s need for secrecy.”  In late August 1995, CCR filed a motion for further relief, asking the court to order the CIA, the department of State, the Department of Defense, and the FBI to supply the Linders with more information on the withheld documents and conduct a further search for documents. It is this motion that the court denied.

The suit to seek justice for Benjamin Linder has now become one to force U.S. Agencies to disclose their own role in the deaths of U.S. citizens who participate legitimately in aiding social change in other countries.

In April 1997 a CCR attorney spoke at a 10-year commemoration of Linder’s death, held in Brooklyn, New York.

Michael Ratner. Beth Stephens, Jules Lobel, Mahlon Perkins, Margaret Ratner, Jennifer M. Green, Harold Hongju Koh of the Yale Lowenstein International Human Rights Law Clinic, and Daniel E. Jonas.