[continued from previous message]

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

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)