Ref: Kinnucan v. National Security Agency et al., no. 2:20-cv-01309 (W.D. Wash., filed Sep. 1, 2020)

Nearly a year ago, Senior Judge Marsha J. Pechman of the US District Court for the Western District of Washington in Seattle ordered the government defendants—the National Security Agency and the Central Intelligence Agency—to turn over hundred of pages of classified material to her for an in camera review. These records pertain to the deadly June 8, 1967, Israeli attack on the USS Liberty (AGTR-5). That review was delayed for months while the government conducted a security clearance review for one of the judge’s clerks.

Following the review, on Nov. 4, 2022, Judge Pechman issued an “Additional Order on Cross-Motions for Summary Judgment”. The twenty-two page order was almost entirely favorable to the plaintiff. The judge reviewed almost every document the government was withholding and every reason they gave for withholding them and rejected nearly all of the government’s assertions. She wrote: “Except as to Document 1, the Court finds that the CIA and NSA have failed to meet their burden to justify the withholding of information from Documents 2 through 15 and as to the issue of segregability for those same documents.” The Document 1 exception concerned, on a three-page record, a single block of text that the plaintiff had already determined was unlikely to be significant for her purposes.

Judge Pechman further wrote: “Because the Court has already undertaken in camera review of the documents, the Court is tempted [to] rule on the existing record. But as the Court in Wiener made clear, a final ruling based on an ‘in camera review is appropriate only after “the government has submitted as detailed public affidavits and testimony as possible.” ‘ Wiener, 943 F.2d at 979. Here, the CIA ‘respectfully asks for this Court’s leave to provide’ further information to justify its ‘FOIA Exemption assertions.’ … Given that the CIA believes it can provide more specific information, the Court allows this further opportunity.” Consequently, she ordered the government to “file a supplemental Vaughn index and any additional supporting declarations they believe address the gaps identified in this Order … within thirty days of entry of this Order.”

Subsequently, the government then requested the plaintiff to agree to a ninety-day extension to respond to the judge’s order and to agree to take records the government now says do “not concern the U.S.S. Liberty” out of contention. Their request was declined and on Nov. 21, 2022, the government filed their “Notice of Intent to Lodge Classified Declarations for Ex Parte, In Camera Review and Motion to Extend Deadline”. In sum, in this motion, the government now proposes to keep secret some of its reasons for keeping the requested records secret. In other words, only the government and the judge can know the full story about why the government wants to keep these secret records secret—the surviving family members of the men who died on the Liberty on June 8, 1967, and subsequently can’t know, the living survivors can’t know, the American public can’t know, nor can the plaintiff or her attorneys know why these secret records are secret. Also, the government asked the judge to give them an extra thirty days, instead of ninety days, to address her Nov. 4 order.

On Nov. 30, 2022, “Plaintiff’s Opposition to Defendants Motion for Extension of Time” was filed. It begins by noting that “At least eighteen veteran-survivors of the attack on the U.S.S. Liberty have died since Plaintiff Michelle Kinnucan first made her records request seeking documents from Defendants.” The deceased are listed in footnote 1 of that document. The Opposition goes on to request the Court to deny the thirty-day extension request and to require the government to put their reasons for withholding the requested documents in the public court record instead of keeping some of them secret.

On December 2, 2022, the government filed its “Defendants’ Reply in Support of Motion to Extend Deadline to January 6, 2023”. In this document, the government now blames the plaintiff for much of the work the government has to to do: “Defendants sought Plaintiff’s consent to limit the parties’ dispute, and the reprocessing that the CIA is now undertaking, to just that information that is relevant to Plaintiff’s FOIA requests. That is, information related to the U.S.S. Liberty. Plaintiff would not agree. Therefore, the CIA is currently reprocessing the entirety of multiple lengthy documents where only a limited amount of information relates to the U.S.S. Liberty.”

Yet, it was the government itself, in a 1978 memorandum from the CIA’s Acting Legislative Counsel to CIA Director Stansfield Turner, that identified these documents as concerning the Liberty. On that basis and citing that memo, the Plaintiff requested the very records the CIA now conveniently contends are (mostly) not relevant. In fact, the material the government now claims is not pertinent—even if that claim is true—may provide important context to understand information that more obviously or directly bears on the attack on the USS Liberty.

Finally, the government now also claims: “where, as here, documents are 25 years or older, extensive historical research and more extensive classification analysis and decision-making are required in order to determine proper withholding …” So, in other words, the government tacitly admits it didn’t conduct this “proper withholding” review—as required by law—before it refused to release the records but now that review is vital. Moreover, their very age allegedly weighs against, rather than for, the timely and expeditious release of these records because … history.


(source citations available on request)

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, WA. On June 8, 1967, a combined aerial and naval assault on the Liberty by Israelis forces killed 34 Americans and wounded more than 170 others. Just prior to attack, as James M. Scott notes in Naval History: “A State Department report later determined that [Israeli] recon planes buzzed the Liberty as many as eight times over a nine-hour period [before the attack].” The combined Israeli air and naval strikes lasted over an hour. As a result of the heroic response of its officers and crew to the onslaught, the Liberty is “the most highly decorated ship … for a single action” in US Navy history. At the time of the attack, her home port was the naval base in Norfolk, VA.

Following the 1967 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.”

At the time of the attack Liberty was properly marked as to her identity and nationality while underway in calm, clear weather in international waters of the eastern Mediterranean. Many of Liberty’s surviving crew dispute the claim of mistaken identity. Over the years they have been joined in that by American officials including Richard Helms (Director of Central Intelligence, 1966-1973), Lieut. Gen. Marshall S. Carter (Director of the NSA, 1965-1969), Captain Ward Boston, Jr., JAGC (legal counsel for the 1967 Navy Court of Inquiry), and former Chairman of the Joint Chiefs of Staff Admiral Thomas H. Moorer.

A special thanks to Michelle J. Kinnucan for her continued work regarding the FOIA request on the USS Liberty!