On November 21, 2024, Senior Judge Marsha J. Pechman of the US District Court for the Western District of Washington issued what seems likely to be her final order in Kinnucan v. National Security Agency et al. The order came more than four years after the federal case was first filed in September 2020. The suit was brought to obtain records the NSA, Central Intelligence Agency, and the Defense Intelligence Agency had failed to release despite a series of Freedom of Information Act (FOIA) requests concerning the USS Liberty (AGTR-5).
On June 8, 1967 – three days after Israel initiated the Six-Day War by attacking Egypt – Israeli forces launched a combined aerial and naval assault on the Liberty. Lasting over an hour, the unprovoked attack killed 34 Americans and wounded more than 170 others. The Israeli government would claim that the attack was the result of mistaken identity. More than 57 years after the attack, the FOIA lawsuit revealed new details and, more importantly, it made it clear that the US government is still refusing to release hundreds of pages of documents concerning the assault.
Attack on the Liberty
For those unfamiliar with the Liberty’s history some additional background may be in order.[1] The Liberty – a WW II-era, Victory-class cargo ship converted to serve as a signals intelligence collector or “spy ship” – was collecting intelligence for analysis by the NSA when she was attacked. The Liberty was reconnoitered multiple times by Israeli military aircraft over the span of several daylight hours on the day of, but prior to, the attack. As James M. Scott (2017) wrote: “A State Department report later determined that recon planes buzzed the Liberty as many as eight times over a nine-hour period.”
The Liberty never approached closer than 26 nautical miles to the Israeli coast.[2] Nevertheless while steaming in clear weather and calm seas in international waters of the Mediterranean Sea northwest of the Egyptian town of al-ʿArīsh, the Liberty came under repeated aerial attack by Israeli forces at approximately 2 PM, local time, followed by an assault by Israeli motor torpedo boats.
Israeli troops surrounded al-ʿArīsh on June 5 and occupied the town on June 6, 1967. Early on, Israeli officials would claim the attack on the Liberty was in response to a naval bombardment of al-ʿArīsh by an unidentified vessel. But by June 10, the Israelis dropped that claim, as no such naval bombardment had occurred. A June 1969 chronology produced by the US Senate Foreign Relations Committee stated: “It was later discovered that the explosions at al -Arish were ammunition dumps and not an Egyptian naval bombardment.”
In any case, the attack on the Liberty was the only verified Israeli surface naval engagement at sea during the 1967 Israeli-Arab war.[3] Far from occurring in a heated battle involving a tangle of enemy ships firing at each other at close quarters – the proverbial “fog of war” – the Liberty was a lone, American non-combatant vessel attacked in broad daylight on a calm blue sea miles from any other hostile engagement.
As a result of the heroic response of its officers and crew, the Liberty is “the most highly decorated ship … for a single action” in US Navy history. Yet, as will be shown here, despite the heavy casualties and the crew’s heroic performance during and after the attack, the US government, evidently, has never investigated the responsibility of Israeli civilian leaders and military officers for ordering the unprovoked assault.
An Inadequate Investigation and Evidence Ignored
On June 10, 1967, a US Naval Court of Inquiry (NCOI) into the attack was convened at the direction of Admiral John S. McCain, Jr. with Rear Admiral Isaac C. Kidd, Jr. as its presiding officer. Kidd “closed the Court” on June 16, 1967, and its findings were provided to McCain on June 18, 1967. The NCOI’s report was classified Top Secret and not declassified until 1976.
On June 28, 1967, the Defense Department issued a public media release comprised of a summary of the proceedings of the NCOI together with a transcript of testimony by the ship’s captain. On the very first page of the summary of proceedings it is stated:
It was not the responsibility of the Court to rule on the culpability of the attackers and no evidence was heard from the attacking nation … The Court heard witnesses testify … to significant surveillance of the LIBERTY…
Inasmuch as this was not an international investigation, no evidence was presented on whether any of these [Israeli] aircraft had identified LIBERTY or whether they had passed any information on LIBERTY to their own higher headquarters.[4]
On the same day as the DoD’s media release, Secretary of State Dean Rusk would read the selections quoted above, along with other portions of the summary, to members of the Senate Committee on Foreign Relations meeting in a closed, executive session. In response to a question by Senator Bourke B. Hickenlooper about whether Israeli pilots had identified the Liberty as an American vessel, Rusk reiterated: “You see, we do not have in front of our own Naval Court of Inquiry Israeli personnel or officers or anything of that sort so the Court of Inquiry under those circumstances could not, I suppose, properly make a finding on that point.”[5]
In fact, according to records released during the course of the lawsuit, Secretary Rusk’s department already had pertinent information. On June 10, 1967, Message 0854 was sent from the US Defense Attaché’s Office in Tel Aviv (USDAO Tel Aviv).[6] Its addressees are the White House, Office of Secretary of Defense, Chief of Naval Operations, State Department, Joint Chiefs of Staff, and the Defense Intelligence Agency (the USDAO is a subordinate unit of the DIA). Furthermore, the contents of Message 0854 were also analyzed in a June 13, 1967, State Department intelligence memo directed to Deputy Secretary of State Nicholas Katzenbach, Rusk’s second-in-command.[7]
Message 0854 relayed intelligence obtained from a reliable, if unwitting, Israeli source inside the Israeli military establishment. In short, Message 0854 states that Israeli aircraft, at the direction of ground controllers, made at least two reconnaissance passes specifically for the purpose of ascertaining the identity of the Liberty. On each pass, the Israeli aviators observed the Liberty flying the American flag and relayed this information to ground controllers.
The Israeli source was “positive at least two attempts to identify [the] ship and two reports of [the] US flag were made.” He also stated he personally overheard these radio transmissions and disclosed them after he heard an Israeli news broadcast claiming the attack was “erroneous.”
Thus, less than 48 hours after the attack, top US civilian and military officials had credible evidence that Israeli officials were falsely claiming the Liberty had not been identified as an American vessel before the attack, an assertion the Israelis mendaciously clung to until June 17, 1967. Even then Israelis maintained that the Liberty “made an effort to hide its identity by flying a small flag which was difficult to identify from a distance”.[8]
RADM Kidd also had access to this information soon after the attack. On June 15, 1967, the USDAO Tel Aviv sent a message (Message 0900) directed to Kidd, as “President of [the] Court of Inquiry”, providing a detailed chronology of the attack and subsequent events.[9] In paragraph 13 of Message 0900 the DAO specifically references Message 0854 and states:
USDAO source reported secondary source gave info gathered by overhearing IDF [Israeli Defense Forces] AF [air force] air-to-ground control frequencies. Info suggested [sic] that IDF aircraft made two or three identification passes over a ship sometime prior to attack on Liberty. Aircraft reported ship had U.S. flag … Info this para forwarded to limited addressees including CNO [i.e. the US Chief of Naval Operations] and DIA in USDAO 0854 Jun 67.
Note here how the author of Message 0900 reduces the unequivocal assertion of the Israeli source, as reported in Message 0854, regarding the reconnaissance overflights to a mere suggestion.
Although, as discussed earlier, this intelligence was passed directly to the State Department, Secretary Rusk makes no mention of it in his Senate testimony. By contrast, at a NATO meeting in Luxembourg less than two weeks before his Senate appearance, Rusk made “comments to [NATO Secretary-General] Brosio and several foreign ministers at Luxembourg about Israeli foreknowledge that Liberty was a US ship …” Although other messages are discussed in and included as exhibits to the NCOI’s report, neither Message 0854 itself nor the information it contains, as summarized in Message 0900, is discussed or referenced in the body of the report.
As of 2005, it was the position of the US Navy’s highest legal authority, the Office of the Judge Advocate General, that “The Court of Inquiry was the only United States Government investigation into the attack.”[10] Over the years there were additional American analyses or reviews occasioned by the attack on the Liberty but in none of the declassified records do they purport to have independently investigated the culpability of Israeli leaders for the attack. This decades-long failure to properly and fully investigate underscores the importance of prying loose the hundreds of pages of records pertaining to the attack that the US government is still withholding.
The Fruits of FOIA and Litigation
Defense Intelligence Agency Records
The lawsuit resulted in the release of 162 unredacted pages of DIA messages along with four partially redacted pages of two different versions of a single message, all originating from USDAO Tel Aviv. In the course of the lawsuit it was learned, that the messages, including Message 0854, had been transferred, years earlier, from the DIA to the National Archives and Records Administration (NARA). In any case, the DIA still retains and exercises declassification authority over the agency messages in NARA custody.
Central Intelligence Agency Records
As a result of the lawsuit, the CIA eventually produced five batches, totaling 255 pages, of records that they had initially identified as responsive to my requests but unreleasable. While much of the released material is not germane nevertheless some of it adds to or amplifies the existing record. Moreover, several pages of relevant material – records that had never been released before or released with fewer redactions – were obtained.
In sum, the records included 171 pages with no redactions or with redactions that are unlikely to be relevant to the attack on the Liberty. Obviously, any judgment of the significance of the withheld material is, at best, informed speculation. While source and textual context can provide important clues it is, perforce, simply impossible to properly and confidently evaluate material the CIA still refuses to release.
After accounting for the 171 pages described above, this leaves about 84 pages containing redacted information that is likely significant to understanding the attack on the Liberty and the US government’s response. Of the records the CIA identified as responsive, the agency also withheld at least 14 pages in whole. This is an estimate because an unknown number of pages, containing 29 endnotes, of at least one record are missing and the CIA never acknowledged these missing pages. On 24 pages the agency released, it redacted all substantive content on each page. There are an additional 47 pages with less extensive redaction of material that is likely significant to the USS Liberty inquiry.
Knowing that there is likely relevant material that the CIA has and still refuses to release is useful. Though, of course, it’s not nearly as useful as having it released. Moreover, a minimum of six separate records can be documented to have existed but which the CIA has never acknowledged. Two examples may suffice.
The first example pertains to the evaluation of three one-page CIA information reports – two from June and one from October of 1967. These reports were first released to other requesters in the 1970s and sparked national, albeit superficial, news coverage at the time. Copies obtained in 2021 as a result of the present lawsuit reveal significant new source information.[11]
According to these reports, sources in Tel Aviv stated: “Israel’s forces knew exactly what flag the LIBERTY was flying” and Israeli Defense Minister Moshe Dayan “personally ordered the attack” on the Liberty over the objections of senior military officers, one of whom characterized the attack as “pure murder”.
However, in 1977, CIA Director Stansfield Turner went on national television and emphasized that these three reports were “raw intelligence”. He quickly shifted the focus away from them onto an “evaluated overall document”. A day after Turner’s television appearance, Alan D. Wolfe, then the CIA’s Chief of the Near East Division in the Directorate of Operations, commented that the three information reports were “raw reports which in historical hindsight were garbage, but which appeared worthy of dissemination at the time.”
In available records, Wolfe does not explain on what basis the reports went from “worthy of dissemination” to “garbage.” Apropos of his intelligence acumen, Wolfe was formally reprimanded for his role in the Aldrich Ames spy scandal. In the 1980s Ames was a Soviet KGB double agent while working as a CIA counterintelligence officer in Rome where Wolfe was then the CIA Station Chief.
In any case, Wolfe also indicates that the “evaluated overall document” Turner cited was an intelligence memorandum dated June 13, 1967. The “Intelligence Directorate Memo on Israeli Attack on Liberty,” is one of the documents the CIA eventually released to me as a result of the lawsuit, albeit missing all 29 of its endnotes.[12]
More to the point, contrary to Wolfe’s assertion, that memo makes no mention of the three 1967 CIA information reports implicating Israeli officials in a knowing attack on the Liberty. Presumably, the memo could not discuss these reports because it was issued ten days before the earliest distribution date – June 23, 1967 – of the three information reports.
Thus, in front of a national audience, Turner invoked a memo that he evidently knew had nothing to say about the three reports he and Wolfe dismissed as mere “raw” intelligence. In fact, one of those “raw” reports was more accurate than CIA analysis at the time. The memo Turner and Wolfe cited claimed there “was little doubt that the Israelis failed to identify the Liberty as a US ship before or during the attack.”
Conversely, the second of the three information reports correctly reported that Israeli forces had identified the Liberty prior to the attack. The report contained intelligence from a US citizen working for an American newspaper. The source claimed that “Around 10-11 June while in Tel Aviv I talked with an Israeli …” The Israeli reportedly made it clear the attack on the Liberty was no mistake and “implied that the ship’s identity was known at least six hours before the attack …”
I also requested that the CIA provide its “records pertaining to the response, analysis, evaluation of, and/or decision not to evaluate, the 1967 CIA ‘Information Report’ ” implicating Dayan. Yet, none of the documents provided so far by the agency mention or evaluate any of the three reports implicating Israeli officials in a knowing attack on the Liberty.
As for the second example, nearly everything pertaining to the Liberty – up to eight pages – is wholly redacted from the never-before-released June 28, 1967 Director of Central Intelligence briefing to Congress. Chronologically, this briefing could possibly, among other things, contain an evaluation of at least one of the three CIA information reports implicating Israeli leaders in a knowing attack on the Liberty.
In sum, evidently, the CIA is still closely guarding material that is very important to understanding what happened on June 8, 1967, and afterwards.
National Security Agency Records
In a March 2019 FOIA request, I asked for a copy of a two-volume document referred to in court records as the “HAC Report” (“HAC” is short for House Appropriations Committee). The report’s full name is “A Report to the Committee on Appropriations – U.S. House of Representatives on the Effectiveness of the Worldwide Communications Systems and Networks of the DoD, U.S.S. Liberty Incident”.
I first learned of the HAC Report when I read a declassified, but still heavily redacted, 1981 internal NSA history titled Attack on a Sigint Collector, the U.S.S. Liberty by William D. Gerhard and Henry W. Millington. Gerhard and Millington referenced the HAC Report no fewer than five times in their work. (This history is referred to as “Attack” in court records.) Based upon my communications with a dozen government records repositories, including the Library of Congress and both the Historian and the Archivist of the US House of Representatives, it appears that the NSA possesses the only extant copy of the HAC Report.
According to investigative journalist Stephen Green, US Representative Robert L. F. Sikes – who was an Appropriations Committee member at the relevant time – said the HAC Report contains testimony from a CIA witness that on June 7, 1967, the Israeli government threatened to attack the Liberty if the ship was not diverted or moved away from Israel.[13]
Further, Green said: “The information provided by Rep. Sikes has been corroborated by other committee sources who do not wish to be identified”.[14] In an addendum to his book, James M. Ennes Jr. further substantiates Green, writing:
To verify Green’s report even further, we had a long interview with a former CIA analyst who confirms the essential details. According the analyst, the CIA was asked three questions by the White House immediately after the attack. The CIA reply: Yes, the attack was deliberate. Yes, Israel knew in advance it was an American naval vessel. We do not yet know who in Israel ordered the attack.[15]
Green wrote that the Israeli threat was relayed to US officials via “an intelligence report” from USDAO Tel Aviv.[16] However, none of the material released to me so far from DIA-NARA or the CIA directly substantiate the existence of such a report.
Sikes left Congress under the cloud of a financial disclosure and conflict of interest scandal in January 1979. Evidently, Sikes was never charged with any crime in connection with the alleged financial impropriety. The year before he left Congress he transferred his papers from the University of West Florida (UWF) to the R. L. F. Sikes Library in Crestview, FL.
Sikes died in 1994, ten years after the publication of Green’s book. If Sikes ever took issue with Green’s claims about him or the HAC Report then I have been unable to document it. Yet, in a surprising twist, in 2019, the Sikes Library and UWF informed me that many of Sikes’ Appropriations Committee papers are lost.
In a June 2020 FOIA request I also sought to obtain the encrypted traffic reports of the USS Little Rock (CLG-4) for the months of May-July, 1967 “and/or any analyses or reports may aggregate or summarize the date/information contained in those reports.” At the time of the attack, the Liberty was under the nominal control of the US Navy’s Sixth Fleet and the Little Rock was the fleet’s flagship. I also requested “Any records pertaining to any attack(s) upon, theft, destruction, disappearance, etc. of U.S. ‘crypto-equipment’ and/or the thirteen ‘U.S. facilities’ housing them during the Six-Day War in 1967…”
The NSA denied possessing any responsive records. When I appealed their response on the grounds that their records search was inadequate, the agency terminated my appeal on the basis that the matter was being litigated in federal court. The trial court judge neglected to rule on the issue of these requests and on an amendment to the CIA FOIA request. Thereafter, it was decided not to litigate these matters on appeal and to instead focus on obtaining the HAC Report. Apart from HAC Report routing records, as described below, it used to justify remand the NSA has yet to produce a single record in response to either my FOIA requests or the lawsuit.
Litigating for the HAC Report
The NSA did not respond to my request for the HAC Report until after the lawsuit was filed. In response to the suit NSA claimed the HAC Report was not an agency record. Instead, they said, the HAC Report was a Congressional record and “that NSA has no authority to release the report under FOIA.” Judge Pechman agreed with the government’s position in her December 28, 2021 order.
That decision was appealed to the Ninth US Circuit Court of Appeals. Less than two months after we filed our opening brief in the appeal, the government filed a motion to send the case back to the District Court. In the remand motion, the government’s attorneys now asserted:
While preparing the government response brief on appeal, the undersigned counsel for NSA received additional information that is relevant to that issue but was not presented to counsel below or to the district court. Government counsel also discovered that NSA is in possession of additional material that arguably could be considered responsive to the FOIA request, the existence of which was not disclosed to the district court or opposing counsel.
In short, after the appeal was filed it was revealed that – over the course of more than three years of litigation – the NSA had withheld relevant information from my attorneys, the Justice Department attorneys representing it, and the trial court judge.
Contrary to what Judge Pechman wrote in her most recent order, there was no stipulation to remand the case. In fact, my attorneys filed a brief in opposition to sending the case back to the lower court. However, the Court of Appeals granted the government’s request, and on November 21, 2024, Judge Pechman once more agreed that the HAC Report is a Congressional record not subject to FOIA.
Those who are interested in the minutiae of the legal arguments are welcome to peruse the case files at the link I provided in the first paragraph of this article. In what follows, I will provide an overview of the case as it pertains to the HAC Report and a few thoughts on Judge Pechman’s latest order.
The government’s position was that the HAC Report was not an “agency record” and because Congress exempted its own records from the Freedom of Information Act only Congress could authorize the release of the report. In support of this position, the NSA’s attorney said there was a banner on the cover and memorandum pages of both volumes of the report that said “NOT FOR RELEASE UNLESS AND UNTIL AUTHORIZED BY COMMITTEE”. On the memo pages, the NSA claimed, it said: “This report is classified TOP SECRET because it contains information, so classified by the Department of Defense, relating to matters involving national security of the United States.” The NSA has never produced copies of the cover or memo pages.
Furthermore, in response to an earlier request for the HAC Report by someone else, the NSA claimed they had been told in 2009 by an unnamed Appropriations Committee staffer not to release the report. Following my request in 2019, they said they again contacted Committee staff in November 2020 but never received a reply.
In July 2024, the NSA tried again and this time another unnamed staffer wrote back, saying: “I think the subject matter of the report would continue to fall within HAC-D [i.e. the Committee’s Defense Subcommittee] jurisdiction. To my knowledge there is no change in the Committee’s policy regarding this matter, but let me know if you need anything additional to that effect.” There is no indication that the NSA ever asked for further clarification of the Committee’s position.
In a nutshell, our position, was that “the very fact that NSA possesses the Report demonstrates that the committee did authorize its release.” This, in combination with the following factors set forth in one of our briefs, establish that, under applicable case law, the HAC Report is an “agency record” under NSA’s control and, thus, subject to FOIA:
NSA has never returned the HAC Report in the 55+ years since it first received those documents, nor provided evidence that Congress later demanded its return. To the contrary, the HAC Report was (and likely still is) stored “in the ‘Crisis Collection’ of the NSA History Collection,” … which appears accessible to anyone at NSA and “consists of manuscripts, memoranda, studies, and interviews related directly or indirectly to the consists cryptologic history of the United States.” Ms. Kinnucan has also presented evidence that, since its acquisition of the HAC Report, NSA has used the Report as part of its official duties.
In creating and distributing Attack, NSA relied on, quoted, and cited portions of the HAC Report as part of its duties. And when NSA declassified and publicly disseminated Attack in 2006, it apparently concedes that it did not seek Congress’s approval or make any attempt to restrict access to information contained in Attack about the HAC Report. Instead, consistent with the original 1968 release by Congress at NSA’s request and NSA’s subsequent distribution, NSA believed it could use the HAC Report for its own purposes. As such, the HAC Report is not just physically held at NSA; it was used in connection with the transaction of agency business, without any apparent restrictions on classification or NSA’s use.
As attorney Caesar Kalinowski IV pointed out to the court, the NSA’s history of the incident, Attack, was prepared after Gerhard and Millington had both retired. Moreover, the government presented zero evidence that the NSA had sought or received permission from the Committee to use the HAC Report in the preparation of Attack, let alone give its retirees access to it. This all supported the idea that the NSA exercised control over the HAC Report, within the legal meaning of FOIA.
And although we did not raise this issue in our briefs or at oral argument, the statement that “This report is classified TOP SECRET because it contains information, so classified by the Department of Defense…” also seemingly undercuts the Congressional record argument for two reasons. First, Congress has its own independent classification authority and it seems doubtful Congressional staff would instead invoke Executive branch classification authority. Second, the NSA, as a Defense Department agency, has authority to declassify information classified by the DoD and, arguably, an obligation to do so in accordance with FOIA.
As for the results of NSA’s outreach to House Appropriations Committee staff, Judge Pechman noted: “… Defendants provide no declaration from Congress … and it has not identified the staff member’s position or knowledge of the HAC Report.” Later in the Order she writes: “The Court separately notes that it places no weight on the fact that two unidentified congressional staff members have told NSA that it does not believe the Report should be released… These statements are pure hearsay and do not constitute admissible evidence … And the present view of Congress is not relevant.”
All well and good. Yet, despite this, three times in her Order she contradicts herself by citing the very same three paragraphs of an NSA declaration making the claims she has putatively rejected. Judge Pechman cites them in support of the notion that the HAC Report is a Congressional record. For example, on page 3 of the Order, citing the declaration of NSA Deputy Chief of Enterprise Guidance Services Adam DeMillio, she writes: “To NSA’s knowledge, the HAC Report has never been made public by Congress or anyone else. (DeMillio Decl. ¶¶ 25-27.)” Paragraphs 25-27 of DeMillio’s declaration speak to the NSA’s 2009 and 2024 communications with Committee staff and nothing else.
At one point in her Order, Judge Pechman also writes:
Additionally, the Memorandum to the NSA Director states that the HAC Report copy sent to him was ‘purloined’ – a fact that seemingly supports Defendants’ position … Though neither Party would concede that the HAC Report in NSA’s possession was stolen, the language in the Memorandum further buttresses the congressional indication of control on the banner itself.
The memorandum she’s referring to here is one of the documents the NSA failed to produce until after we appealed. Here, the judge’s reasoning seems to cut both ways to the government’s benefit. The HAC Report, it is argued, wasn’t stolen. Yet, paradoxically, the use of ‘purloined’ (synonymous with stolen) is somehow also evidence that it wasn’t transferred to NSA’s control with the Committee’s approval. Heads NSA wins, tails we lose.
Finally, in critiquing our position on the status of the HAC Report, Judge Pechman also wrote:
There are two key considerations. First, Congress possesses a constitutional oversight role that allows it to keep certain records secret. See U.S. Const. Art. I, § 5, cl. 3 (“Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy.”) Second, congress’s ability to provide oversight to agencies could well be hampered if it feared that any records given to an agency as part of its oversight role could be made public by the agency’s mere possession of the document. See United We Stand, 359 F.3d at 599.
The relevant part of the Article I clause she quotes is also known as the Record of Proceedings clause. It’s worth pointing out here that Congress keeping “certain records secret” under the Record of Proceedings clause is explicitly envisioned as the exception and not the rule.
Regarding the purpose of the clause, in the 7-2 majority opinion in Field v. Clark, 143 U.S. 649, 670 (1892), Justice Harlan wrote:
“[A]s Mr. Justice Story has well said, ‘the object of the whole clause is to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents. And it is founded in sound policy and deep political foresight. Intrigue and cabal are thus deprived of some of their main resources, by plotting and devising measures in secrecy. The public mind is enlightened by an attentive examination of the public measures; patriotism, and integrity, and wisdom obtain their due reward…”
As for Congress’ oversight role, as Mr. Kalinowski pointed out during oral argument, the government never provided any evidence that the HAC Report was transferred to the NSA, or used by it, in furtherance of congressional oversight. I would add that if Congress wanted to make its material available to the executive branch while maintaining control and shielding it from FOIA access then there are at least two obvious ways of accomplishing that. Congress could require executive branch personnel to either review such material in a congressional sensitive compartmented information facility and/or have Congressional staff provide censored summaries for external use omitting material Congress wants to keep secret. Those would both be meaningful acts of control and secrecy that would still allow Congress to exercise oversight.
The NSA’s September 27, 2024, brief also says: “Kinnucan concedes that Congress possesses constitutional and other authority to shield congressional records from public release, which here, the committee has exercised by never releasing its HAC report to the public. And Kinnucan acknowledges that she cannot compel the committee itself to release the HAC report.” While this lawsuit was not the appropriate venue for me (or the NSA ) to argue these points, I never conceded either of them.
Generally, with very narrow exceptions, I would assert Congress has, in principle if not in law, a general obligation to make its records public. Two decades before the FOIA became law, Congress passed the Legislative Reorganization Act (LRA) of 1946 (60 Stat 812 et seq.), which provides, in part (see 60 Stat 833), as codified in 44 USC 2118:
The Secretary of the Senate and the Clerk of the House of Representatives, acting jointly, shall obtain at the close of each Congress all the noncurrent records of the Congress and of each congressional committee and transfer them to the National Archives and Records Administration for preservation, subject to the orders of the Senate or the House of Representatives, respectively.
Another provision, originally, of the LRA (see 60 Stat 835), as codified in 2 USC 4301(d), indicates that “All committee hearings, records, data, charts, and files … shall be the property of the Congress …” The HAC Report, therefore, doesn’t belong to the House Appropriations Committee.
Additionally, the 116th US Congress convened on January 3, 2019, and ended on January 3, 2021. My FOIA request to NSA for the HAC report and the initiation of the lawsuit both fell within this time period. Rule VII of the House Rules of the 116th Congress, while it conflicts somewhat with the statutes cited above, indicates that the HAC Report should have been made available to the public in 1997 or 2017 at the latest.
Of course, the LRA’s requirement that Congressional records be transferred to the National Archives is not the same as making those records publicly available. Per House rules, House records sent to the National Archives are still subject to the orders of the House. However, I would argue that the general intent manifested by Congress in the LRA, together with House rules, is to make records, such as the HAC report, publicly available.
In other words, FOIA notwithstanding, the apparent absence of any Congressional or House order or resolution specifically and affirmatively barring the release of the HAC Report manifests an implicit Congressional intent to have the HAC report treated according to the default release plan envisioned by the Constitution and as set forth in the LRA and the House rules. Since the bodies that do properly have authority over the disposition of the record – Congress and/or the House – have adopted a broad pro forma records release policy and have not specifically created an exception for the HAC Report then the stamped banner saying “NOT FOR RELEASE UNLESS AND UNTIL AUTHORIZED BY COMMITTEE” should be considered invalid. However, that is an argument, perhaps, for another case.
Violent Precedents
In 1992, retired US diplomat George W. Ball published The Passionate Attachment: America’s Involvement With Israel, 1947 to the Present. On page 58, Ball asserts:
…the ultimate lesson of the Liberty attack had far more effect on policy in Israel than in America. Israel’s leaders concluded that nothing they might do would offend the Americans to the point of reprisal. If America’s leaders did not have the courage to punish Israel for the blatant murder of American citizens, it seemed clear that their American friends would let them get away with almost anything.
The evidence suggests that this lesson was learned by Israelis long before June 8, 1967. In the summer of 1947 a pre-state Jewish Zionist paramilitary known as LEHI or the “Stern Gang” reportedly attempted to use a bomb to assassinate President Harry S. Truman.
Less than a year later, on May 22, 1948, the US Consul General in Jerusalem, Thomas C. Wasson, America’s senior diplomat in Israel, was shot, reportedly by an Israeli sniper. US Navy Chief Petty Officer Herbert Walker, assigned to the Consulate’s Naval Communication Unit, was also shot by a sniper near the consulate a day prior to Wasson’s shooting. Both men were shot in an Israeli-controlled sector of Jerusalem and they died on May 23, 1948.
On October 23, 1948, Israeli troops in Haifa fired on US personnel in a small boat attached to the USS George K. MacKenzie (DD-836). A few weeks later Israeli troops would fire on the USS Gainard (DD-706) on December 13, 1948. Both ships were part of the UN Palestine Patrol assigned to enforce an arms and munitions embargo.[17]
Then, too, there are the abortive Israeli false flag attacks of Operation Shoshannah, also known as the Lavon Affair, undertaken in 1954 by Israeli agents in Cairo. As Henry Kissinger would years later aptly, if succinctly, state: “The Lavon affair in the ’50s was about Israelis blowing up American installations in Cairo and blaming it on the Arabs.” In none of the cases recounted above is there any evidence I could find in the public record that the US government ever investigated or attempted to hold Israeli officials accountable for these dangerous and, sometimes, deadly attacks.
Conclusion
In the aftermath of the October 7, 2023 HAMAS attacks, including the unjustified murder of innocent Israeli civilians, Israeli forces have wounded and killed tens of thousands of Palestinians, overwhelmingly children and noncombatant adults, and devastated the civilian infrastructure – homes, hospitals, schools, mosques, churches, grocery stores, etc. – of Gaza. In light of this and Israeli attacks in the West Bank, Lebanon, and Syria, many Americans are rethinking US foreign policy.
Indeed, a fair argument could be made that the most recent US presidential election was decided, in part, on the basis of the evident failure of the Biden-Harris administration to act in accordance with basic human decency, sage policy, and domestic and international law by curtailing its diplomatic, financial, and military assistance to Israel. The attack on the USS Liberty is part of a pattern of Israeli belligerence facilitated by the US government and ought to form a part of this process of reconsideration.
Kinnucan v. National Security Agency et al. has demonstrated that there is still a substantial body of documentary evidence concerning the attack on the Liberty being withheld. There is also still a tremendous amount of work to be done to bring all of the US government’s records about the Israeli attack on the USS Liberty into the light of day. We also owe it to the memory, and to the kin, of the 31 sailors, 2 Marines and one NSA civilian killed in the attack and to the survivors – living and dead – to have the record finally made fully public. Unfortunately, the necessary resources for further research and litigation are in short supply.
In closing, I want to express my gratitude to the attorneys at Davis Wright Tremaine for their excellent work in bringing this lawsuit and litigating it at both the trial and appellate court levels. Thank you to Thomas R. Burke, Caesar Kalinowski IV, Allexia Arnold, David Nordlinger, and Marietta Catsambas. Thanks also to Michael A. Grisham at Dorsey & Whitney for filing an amicus brief on behalf of the USS Liberty Veterans Association. I also wish to remember the late Rep. Paul N. “Pete” McCloskey, Jr., who submitted a personal declaration in support of the case.
Addendum: As this article was being prepared for publication, I learned that we will again be appealing Judge Pechman’s decision to the 9th US Circuit Court of Appeals. I also learned that the New Hampshire House of Representatives will be considering legislation in its new session to study the federal government’s response to the attack on the Liberty. The bill is not currently online but its prime sponsor is Rep. Matthew R. Sabourin dit Choiniѐre for Rockingham District 30 (Seabrook). Last January, I provided written testimony in support of a similar bill and that testimony was used in preparing this article.
Notes
- Except as otherwise indicated, details on the Liberty and the attack are drawn from James M. Ennes, Jr., Assault on the Liberty (Reintree Press, 2013) and/or James M. Scott, The Attack on the Liberty (Simon & Schuster, 2009). Ennes is a survivor of the attack and his book was first published in 1980 by Random House.
- Scott (2009; p. 186), citing A. Jay Cristol, The Liberty Incident (Brassey’s 2002), p. 267, puts the distance at 38 nautical miles. Cristol makes the same claim on page 15 of his 2013 book, The Liberty Incident (Naval Inst. Pr.). I think that Cristol got that, among other things, wrong and there’s actually an endnote in his 2013 book that seems to contradict the 38 nautical mile claim in the body text. Note 31 on page 311 seems to put the actual distance at “more than twenty-five miles…” My own calculation puts the Liberty‘s closest point of approach to the Israeli coastline at more than 26 nautical miles, i.e. 30 statute miles or 48 kilometers.
- In Six Days of War (Rosetta Books, 2010) Michael B. Oren, Israel’s American-born former ambassador to the United States, writes, on page 607: “In stark contrast to its air and ground forces, Israel’s navy had performed desultorily in the war. Combined naval and commando attacks on Syrian and Egyptian ports failed to inflict serious damage – six Israeli frogmen fell captive in Alexandria…” There were also reports of Israeli forces using depth charges on Egyptian submarines near Haifa during the war. However, the actual presence of submarines in the two known incidents remains unconfirmed. See also US DAO TEL AVIV SECRET NOFORN 0855 Jun 67, 101005Z, National Archives and Records Administration (NARA), Record Group 319: Records of the Army Staff, “Top Secret Telecommunications Center Messages, 1965-1974” (Entry UD-UP 230).
- Office of Assistant Secretary of Defense (Public Affairs), News Release No. 594-67, June 28, 1967, US Naval History and Heritage Command, Box 913 of the Immediate Office Files of the Chief of Naval Operations: 1960-1969.
- Executive Sessions of the Senate Foreign Relations Committee together with Joint Sessions with the Senate Armed Services Committee (Historical Series) 90th Cong. 1st sess., 1967 vol. 19, (US GPO, 2006) pp. 754-756.
- US DAO TEL AVIV SECRET NOFORN 0854 Jun 67, 101000Z, National Archives and Records Administration (NARA), Record Group 319: Records of the Army Staff, “Top Secret Telecommunications Center Messages, 1965-1974” (Entry UD-UP 230). Ennes writes on page 152: “And while the court was still in session, Kidd received a report that Israeli Defense Force aircraft had been heard reporting by radio to a ground station that they had made two or three identification passes over a ship that displayed an American flag – a ship which can only have been USS Liberty.” However, Ennes provides no source or additional details for this information except to add “this evidence was ignored” or “kept from public knowledge.” A different version of Message 0854 was was declassified by the National Security Agency in 2006 but evidently garnered no scholarly analysis and generated no discernible media coverage.
- John Quigley quotes from this declassified June 13, 1967, State Department memo in his book, The Six-Day War and Israeli Self-Defense (Cambridge UP, 2013), p. 93.
- US DAO TEL AVIV CONFIDENTIAL 0928 Jun 67, 181030Z, US Navy, Office of the Judge Advocate General, “Record of Proceedings, Court of Inquiry to Inquire into the Circumstances Surrounding the Armed Attack on USS LIBERTY (AGTR-5) on 8 June 1967”. Message 0928 is marked “Doc. 1, Ex. 48 -LIBERTY”. This message also contains a possible clue as to why the Johnson administration never properly investigated the attack. Gen. Yitzhak Rabin’s aide Lieutenant Colonel Efrat told the US Defense Attaché of Rabin’s extreme anger over a recent Newsweek article on the attack. Declassified Israeli diplomatic cables indicate that Israelis knew that President Johnson gave an off-the-record briefing with a Newsweek reporter where he revealed the Israelis had engaged in a “deliberate attack” against the Liberty. Israeli officials and operatives within the US administration quickly mobilized behind the scenes to blackmail Johnson into silence with allegations of antisemitism. Israeli diplomat Ephraim Evron issued instructions to “Alert him [Johnson] to the personal implications if the public finds out that he participated in spreading the story, which borders on blood libel.” Four known American Israeli operatives involved in mitigating the impact of Israeli belligerence were Democratic fund-raiser Abe Feinberg (Israeli code name: “Hamlet”) US Supreme Court Justice Abe Fortas (“Ilan”), attorney and LBJ confidant David Ginsburg (“Harari”), and US Ambassador to the UN Arthur Goldberg (“Menashe”). See Tom Segev, 1967 (New York: Metropolitan Books, 2007) pp. 568-570 and Scott (2009) pp. 141, 194-198.
- US DAO TEL AVIV SECRET NOFORN 0900 Jun 67, 151615Z, US Navy, Office of the Judge Advocate General, “Record of Proceedings, Court of Inquiry to Inquire into the Circumstances Surrounding the Armed Attack on USS LIBERTY (AGTR-5) on 8 June 1967”. Message 0900 is marked “Doc. 45, Ex. 48 -LIBERTY”.
- US Navy, Office of the Judge Advocate General, “Letter from Jane G. Dalton, Captain, JAGC, U.S. Navy, to the Hon. Rob Simmons” (5890 Ser 15.151.A1/0198), March 16, 2005, Robert R. Simmons Papers, Archives and Special Collections, University of Connecticut Library, Storrs, CT.
- The three reports are: “(Sanitized) Comment on Known Identity of USS Liberty/Resumption of Oil Production of Red Sea Wells by Israel”, Early Jun. 1967; “Turkish General Staff Opinion Regarding the Israeli Attack on the USS Liberty” Jun. 22, 1967; and, “Prospects for Political Ambitions of Moshe Dayan/Attack on USS Liberty Ordered by Dayan”, Oct. 1967. The CIA’s CADRE reference IDs for these reports are C06140176, C06140175, and C01286836, respectively, and they were released to me on May 18, 2021.
- The CIA’s CADRE reference ID for the memo is C01218180. It was released to me on Mar. 26, 2021, and, again, with one fewer redaction on Jan 6, 2023.
- Sikes as cited in Stephen Green, Taking Sides: America’s Secret Relations with a Militant Israel (Morrow & Co., 1984) p. 239.
- Green, p. 275, n. 48.
- Ennes, p. 308.
- Green, pp. 215, 226, 239.
- I first learned of the killing of Wasson and the attacks on the USS MacKenzie and USS Gainard from Green pp. 31-33, 41.
Michelle J. Kinnucan was one of the “four core carvers” of the John T. Williams memorial totem pole. She is also an independent researcher whose writing has appeared in Common Dreams, Critical Moment, Palestine Chronicle, Arab American News, and elsewhere. Her 2003 investigative report on the Global Intelligence Working Group was featured in Censored 2005: The Top 25 Censored Stories (Seven Stories Pr., 2004) and she contributed a chapter to Finding the Force of the Star Wars Franchise (Peter Lang, 2006). You may contact her at <libertylawsuit@secure.mailbox.org>.
