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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-?Arish, 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-?Arish 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-?Arish 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 Choini?re 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.v