By Michelle Kinnucan
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”.
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The Most Revolutionary Act 