On Monday, April 7, 2025, the opening brief in Kinnucan v. NSA et al. (no. 24-7642) was filed in the 9th US Circuit Court of Appeals. The appeal seeks to reverse a US District Court decision that a 57-year-old report in the possession of the National Security Agency (NSA) is a Congressional record not subject to release under the Freedom of Information Act. The report was prepared by the US House Appropriations Committee (HAC Report) and pertains to the 1967 Israeli attack on the USS Liberty (AGTR-5).
The USS Liberty, a WW II-era, Victory-class cargo ship converted to serve as a signals intelligence collector or “spy ship,” was commissioned in 1964 at the naval shipyard in Bremerton, Washington. On June 8, 1967, a combined aerial and naval assault on the Liberty, lasting over an hour, by Israeli forces killed 34 Americans and wounded more than 170 others. Following the attack, the US Navy undertook a hasty and incomplete Naval Court of Inquiry (NCOI) that found: “Available evidence combines to indicate the attack on LIBERTY on 8 June was in fact a case of mistaken identity.” However, the June 28, 1967 Defense Department public summary of proceedings of the NCOI 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.” According to the US Navy, “The Court of Inquiry was the only United States Government investigation into the attack.”
As I reported on Antiwar.com last December, the HAC Report is of great public interest because, according to the late Rep. Robert L. F. Sikes, who was an Appropriations Committee member, the report contains testimony from a Central Intelligence Agency (CIA) witness that on June 7, 1967 – before the Liberty arrived at its designated area of operations – the Israeli government threatened to attack the ship.
If true, this would corroborate three CIA intelligence reports from 1967. According to these reports, intelligence sources in Tel Aviv stated: “Israel’s forces knew exactly what flag the LIBERTY was flying.” Moreover, the sources stated 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.” Conversely, of course, if the contents of the HAC Report do not corroborate these allegations then that would tend to help exonerate Israel of wrongdoing in the attack.
“Reprocessed” copies of the three CIA reports with additional material unredacted were obtained in the course of the USS Liberty FOIA lawsuit. The three reports are: “(Sanitized) Comment on Known Identity of USS Liberty/Resumption of Oil Production of Red Sea Wells by Israel;” “Turkish General Staff Opinion Regarding the Israeli Attack on the USS Liberty;” and “Prospects for Political Ambitions of Moshe Dayan/Attack on USS Liberty Ordered by Dayan.” The information collection dates for these reports are early June 1967; June 22, 1967; and, October 1967 respectively. Despite my request, the CIA has failed to release any records it may possess regarding the evaluation, if any, of these three reports. You can find the CIA reports in the USS Liberty (AGTR-5) – Public project on DocumentCloud.
This is the second time the case has gone to the 9th US Circuit Court of Appeals. As the new brief indicates, when we filed in 2024 the “NSA mooted [the appeal] by requesting a ‘voluntary remand’ so that it could reprocess Ms. Kinnucan’s request after ‘government counsel… discovered additional information in NSA’s possession regarding the HAC Report’s transfer.”
In their excellent brief, attorneys Thomas R. Burke, Caesar Kalinowski IV, and Marietta Catsambas argue that the additional information only strengthens the legal case for the release of the HAC Report writing, “the routing slip and memorandum confirm Ms. Kinnucan’s contention that the HAC Report was obtained in furtherance of NSA’s official duties.” This sentence references one of the factors – usage by an executive branch agency in the course of its official duties – required to determine the status of a record under the FOIA.
Here’s the brief’s conclusion:
Ms. Kinnucan – as well as the surviving servicemembers of the U.S.S. Liberty, the families of the deceased, and the American public – are all entitled to know what Congress learned nearly sixty years ago about this deadly assault by a putative ally of the United States. Because NSA has provided no evidence regarding the circumstances of Congress’s creation or transfer of the Report to NSA hands, any limitations on NSA’s use of the HAC Report, or even congressional intent to retain control over the Report after it was ‘release[d]’ to NSA for the agency’s use, it has failed to meet its burden to withhold the document from them and the public. Respectfully, this Court should therefore reverse the district court and order the HAC Report released.
Many thanks to the three attorneys who have represented me for their diligence and determination in this case. An amicus brief on behalf of the USS Liberty Veterans Association was filed April 14, 2025. The government’s response is expected in early June.
News on the Possible Truman Precedent?
Also, in my article last December I wrote about an alleged 1947 attempt by a pre-state Jewish Zionist paramilitary known as LEHI a.k.a. the ‘Stern Gang’ to use a bomb to assassinate President Harry S. Truman. More than four years ago, I started requesting records concerning this incident.
Here is the gist of the February 28, 2025, reply from the US Postal Inspection Service (USPIS): “Pursuant to the Department of Justice guidelines and settled case law, an agency may issue responses to FOIA inquiries which neither affirms nor denies the agency has an investigation on a particular subject. With regards to your particular request, this agency makes no statement as to whether or not an investigation matching the FOIA inquiry you have submitted is within the records of the Postal Inspection Service.”
In the FOIA parlance, this is known as a Glomar response. Here’s part of my administrative appeal (borrowing, in part, from a 2022 CCR letter by Ian Head):
Properly invoked, Glomar functions to protect legitimate government interests, not to conceal alleged terrorist activity by or on behalf of foreign actors against officials of the United States government. As such, Glomar responses are meant to be reserved for those requests where either confirming or denying the existence of responsive records would cause cognizable harm to the agency, in this case, the USPIS (Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)).
The USPIS has asserted its Glomar denial here without reference to any specific legal authority and without adequately proving that the requested information is classified, let alone properly classified. “To properly employ the Glomar response to a FOIA request an agency must ‘tether’ its refusal to respond to one of the nine FOIA exemptions…” (Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 68 (2d Cir. 2009).
On April 24, 2025, the Postal Service’s General Counsel denied my appeal. The Opinion and Order concedes: “the Inspection Service did not adequately support its Glomar response; however, the Inspection Service’s response letter did not fully detail the agency’s search for responsive records.” The document then goes on to describe the search for responsive records – in a single repository – concluding: “This search revealed no responsive records.” Finally, according to the opinion the initial repsonse “is affirmed in full.” I have requested the USPIS to clarify whether it is now withdrawing its previous Glomar response.
More Work to Do – Can You Help?
Kinnucan v. NSA et al. has demonstrated that there is a substantial body of documentary evidence concerning the attack on the Liberty still being withheld by the government. To be clear, there are hundreds of pages of records either partially or wholly redacted or never acknowledged or released in any form. Unfortunately, the necessary resources for further research and litigation are in short supply. In the coming months I plan to start a non-profit organization to raise funds for research and litigation related to the Liberty records. If you are willing and able to help at some point by providing archival research or legal services or funds to pay for these services then please contact me at libertylawsuit@secure.mailbox.org.
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.
