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 2000

The past year was dominated by discovery disputes related to CCR’s efforts to obtain U.S. government documents that might shed light on the death of Benjamin Linder, a U.S. engineer who was murdered in 1987 by U.S.-supported contras in Nicaragua.

In 1988, CCR filed suit in federal district court in Miami against the contra organizations and their leaders, charging them with Linder’s death. (Linder and two Nicaraguans were murdered in April 1987 by contras who attacked them while they were constructing a small dam in a poor, rural area of Nicaragua.) 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 lived.

In 1990, the district court dismissed the case on 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, indicating for the first time that tort suits–suits for damages–could be based upon violations of customary laws of war.

CCR subpoenaed government documents relevant to the case in late 1993. A year and a half later, after the government had refused even to consider complying with the subpoenas, the court ordered the government to produce some documents. However, the National Security Agency (NSA) refused to cooperate, and the lower court and the appellate court sustained this position on administrative grounds, which CCR asserted did not properly balance plaintiffs’ need for information with the government’s need for secrecy.

In late August 1995, CCR filed a motion for further relief concerning the remainder of the agencies, asking the court to order the CIA, the Department of Defense, the Department of State, and the FBI to supply the Linders with more information on the withheld documents and conduct further search for documents. In December 1996, a lower court judge ruled in favor of the argument by the FBI and Departments of State and Defense that they have the right  to withhold documents deemed “secret.”

CCR appealed the denials to the District of Columbia Court of Appeals. On January 16, 1998, the court granted CCR the right to pursue documents from the government agencies about the structure of, and human rights abuses perpetrated by, Nicaraguan contra organizations. The Court of Appeals ruled that the district court had failed to apply the proper standards pertaining to third-party subpoenas, and ordered the district to reassess the plaintiffs’ demands for documents. The case is now back before the district court, where the government agencies continue  their attempts to block access to records that would support the Linder’s claims, but might also provide evidence of U,S. knowledge of, and acquiescence (or worse) in, the commission of contra atrocities.

Upon remand, the District Court ordered a narrow additional search and agreed with the government agencies that the plaintiffs must bear some of the costs of the search. Plaintiffs challenged the order to pay the costs of the search and on march 10, 2000, the District Court issued an order relieving the agencies of any responsibility for document production. Plaintiffs moved for an expedited appeal to the D.C. Court of Appeals. Defendants moved for summary affirmance of the District Court’s order on the fees; plaintiffs have opposed this motion. As of this writing, CCR awaits a ruling.

  Jennifer M. Green, Beth Stephens, Michael Ratner and Jules Lobel