From: Michelle J. Kinnucan

On Monday, August 24, 2024, a three-judge panel of the US 9th Circuit Court of Appeals upheld the District Court’s decision that a two-volume 1967 House Appropriations Committee report on the attack on the USS Liberty is a Congressional record, not an Executive branch record. Concretely, that means the National Security Agency (NSA), which possesses the only known remaining copy of the report, will not be releasing it to the public.


In general, plaintiff-appellants have 45 days to file a petition to the 9th Circuit Court of Appeals for rehearing of the appeal by the full court. In this particular case, a week of that 45 days is already gone.

The attorneys at Davis Wright Tremaine (DWT) who have handled this case since it began in 2020 think that the likelihood that the 9th Circuit Court of Appeals would agree to rehear the appeal is “very low.” However, if the Court does agree then DWT will argue the new appeal on the same generous financial terms that the rest of case and appeals have been handled. Aside from the long odds of success, the sticking point is that DWT wants $20,000 to file the petition for rehearing and they want to make a decision in the next seven days. So far, the only money DWT has made from the USS Liberty FOIA lawsuit is the $100,000 they recovered in legal fees from the CIA, which covered only a fraction of their costs.

The USS Liberty Research and Legal Fund LLC (Liberty RLF) has pledged $7,500.00 to fund the petition for rehearing, which leaves another $12,500.00 that must be raised for the case to go forward. If you know of an individual or an organization willing to make a contribution – large or small – to fund the next step in the case then please let me know by sending me a message at <libertylawsuit@secure.mailbox.org>. Donations to the Liberty RLF are tax-deductible through its fiscal sponsor.

In what follows, I will explain why this report is, potentially, so important. The document’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 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. The authors referenced the  Liberty Incident Report no fewer than five times.

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 Liberty Incident 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 Liberty Incident Report contains testimony from a CIA witness that on June 7, 1967 – the day before the attack – the Israeli government threatened to attack the Liberty if the ship was not diverted away from the area of Israeli military operations in Gaza and Egypt. Green’s book, Taking Sides, was favorably reviewed in the Naval War College Review in 1984.

Further, Green said: “The information provided by Rep. Sikes has been corroborated by other committee sources who do not wish to be identified”. In a 2013 addendum to his groundbreaking book on the attack, LCDR James M. Ennes Jr., USN, ret. 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 to 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.”

Green wrote that the Israeli threat was relayed to US officials via “an intelligence report” from the US Defense Attache in Tel Aviv, which was a Defense Intelligence Agency assignment. However, none of the material released to me so far from DIA-NARA or the CIA directly substantiates 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 these alleged improprieties. 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 Liberty Incident Report then I have been unable to document it. 

To sum up, there are no guarantees that the Liberty Incident Report in the NSA’s possession documents what Sikes, according to Green and Ennes, claimed it says. The fact that the government has apparently destroyed all the other copies and, nearly 60 years later, refuses to release the one copy of the Liberty Incident Report known to still exist might indicate that it contains exactly what Sikes and others said it contains – a threat by Israeli officials to attack the Liberty the day before Israel actually did attack her.

However, we will probably never know for sure what is in the report unless it is leaked or a court orders it released. If the Liberty RLF raises the necessary $12,500.00 then, against admittedly long odds, another attempt will be made to bring this report to light. Otherwise, the time will expire and the Israel Lobby and its minions in the US government can chalk up another win. Although I am exploring another possible legal option to obtain the report I have not yet confirmed the viability of that option. So, for now, the only path forward in the courts is a petition for rehearing.

Best wishes,

Michelle J. Kinnucan