Linder v. Calero-Portocarrero & Linder v. National Security Agency – International Human Rights and Solidarity – CCR Docket Fall 1996

Efforts continue in the 1988 case 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 U.S.-supported  contras in Nicaragua.

In the latest skirmish of am almost three-year discovery period, CCR attorneys made forceful oral arguments at the U.S. District Court of Appeals, District of Columbia Circuit, in April 1996 to reverse a lower court decision permitting refusal by the National Security Agency (NSA) to surrender documents.

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.

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 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 August 1995, filed a Motion for Further Relief, 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 a further search for documents concerning defendants” acts against civilians, prisoners of war, the wounded and foreigners working in Nicaragua. a ruling is pending.

Thus, what originally was a suit to seek justice for Benjamin Linder has taken on a new coloration: forcing 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.

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