In the late 1970s interest in the Liberty attack was revived by the publication of an article by Richard K. Smith in the June 1978 U.S. Naval Institute Proceedings and by the James M. Ennes Jr. book Assault on the “Liberty,” published in 1979.49 Certain senators read the material, and in 1979 the Liberty incident found its way to the Senate Select Committee on Intelligence. The chairman of the committee was Birch Bayh of Indiana; the vice chairman was Barry Goldwater of Arizona. The committee began an investigation by sending staff members to Israel to take testimony and collect material provided by the Israel Air Force and Navy. The investigators were permitted to interview the pilots who attacked the Liberty. The pilots sat behind a sheet or screen so they could not be identified by the investigators.50 This author met with and interviewed the pilots face to face and is the only non-Israeli to have done so. In response to this inquiry, the Israel Defense Force Department of Combat History prepared a report on the Liberty incident.51 The introduction to the report states that “the American Congress appointed a committee, headed by Adlai Stevenson, for the purpose of investigating the affair and publishing the results of the investigation.”52
What is quite clear is that the committee began an investigation of the Liberty incident that involved sending its staff to Israel. It is the only time that an official U.S. investigation did any inquiry or fact-finding in Israel on the Liberty attack. The committee heard the allegations and gathered and reviewed evidence. Almost no record or institutional memory of this investigation can be found.53 There is considerable correspondence between the CIA and various committee members. Various Israel Defense Force officials recall the investigation and visits of committee staff to Israel.54 After an extensive investigation, the committee apparently did not find sufficient evidence to warrant pursuing Smith’s and Ennes’s charges, and the investigation was laid to rest without releasing a report,55 thus leaving undisturbed the official U.S. government position taken by President Johnson and maintained by Presidents Nixon, Ford, Carter, Reagan, Bush (41), Clinton, and Bush (43).
Two other events occurred in this time frame that seem to further support the conclusion. First, the Israel Defense Force Department of Combat History prepared and published an official Israeli version of the Liberty attack entitled The Attack on the Liberty Incident. This document makes specific reference to a U.S. congressional committee created to investigate the Liberty incident. Although it remains classified by Israel, the document was delivered to the U.S. government and was the beginning of Israel’s relaxation of security and the release of information about the Liberty incident.
Second, within this time frame the U.S. Department of State settled the Liberty incident with Israel by an exchange of diplomatic notes that acquiesced in the Israeli position that Israel refused to accept total blame for the incident. Did the Department of State receive any data from the Senate Select Committee? State Department documents declassified to date do not indicate such a passage of information from the committee to the Department of State.
The super-secret National Security Agency published a seventy-seven-page document fourteen years after the event. The top-secret document was partially declassified and released in 1983.56 It was authored by two NSA officials after they had retired. The authors are William D. Gerhard and Henry M. Millington. Though scheduled for declassification review in 2011, the document has been partially declassified more than one time since 1983 and was further declassified pursuant to the FOIA request of this author on July 2, 2003, and then further declassified voluntarily by the NSA on June 6, 2007. Nothing further has been released as a result of the scheduled 2011 review.
Though a great deal of the document remains classified, the unclassified portions disclose a wealth of data. The NSA is very candid in shouldering more than its share of the blame. The foreword to the report, written by Vincent J. Wilson Jr., chief historian and publications staffer at NSA, describes the document: “The passage of time has made it possible for the authors to reexamine the Liberty incident objectively and answer a number of persistent questions. The authors accordingly set forth the technical rationale for the Liberty mission, the particulars of the Israeli miscalculation, the details of the American communications failures, a narrative of the attack [deleted] and the lessons to be learned from the event.”
The unclassified table of contents of the copy of the document in the National Archives indicates that in chapter 5, on page 38, the report sets forth the Israel prosecutor’s charges of negligence, but page 38 of the document as obtained from the National Archives remains redacted, with the exception of a picture of an Israeli motor torpedo boat of the class that attacked the Liberty and a note that the figure is unclassified. Other unredacted copies of chapter 5 are in the possession of various persons. The document shows unclassified pictures, which were used as the basis for the silhouettes shown on page 161.
The document concludes with respect to the Israelis:
(U[unclassified]) In summation, the judge concluded that in all the circumstances of the case the conduct of the naval officers concerned in the Liberty incident could not be considered unreasonable to an extent which would justify committal for trial.
Explanation Reexamined (U)
(U) Reexamination of Israel’s explanation of why its air and naval forces attacked the Liberty reveals egregious errors in both command judgments and operational procedures.57
The NSA was certainly angry with Israel over the death of its own staff member as well as the deaths of thirty-three Navy men on board a platform that NSA had sent to the war zone and was unable to extract in time to avert disaster.58 Like the Navy, the NSA has an emotional connection with the Liberty incident. Its man, a civilian employee, Allen Blue, was killed on board the Liberty, and its program was negatively affected. It would be easy to understand if the NSA rejected the Israeli explanation as a result of the direct impact of the event on the agency and the fact that many of its staff members probably knew Allen Blue. Nevertheless, the NSA was not influenced by emotions and concluded in the report that the Liberty had been mistaken for an Egyptian ship as a result of miscalculations and egregious errors.59
In June 1991, on the twenty-fourth anniversary of the Liberty incident, the Liberty Veterans Association held its annual reunion in Washington, D.C. The chief of staff to President Bush, John Sununu, arranged to meet the veterans in the Rose Garden of the White House. There was high anticipation that they would have an opportunity to present their grievances about the Liberty incident to the president. The president did not join them in the Rose Garden that day. In fact, the president already had a position on the Liberty incident, which is set forth in a letter from the White House dated September 5, 1991. Its essence is: “A thorough investigation into the USS Liberty incident was conducted and the conclusion was that it was a tragic case of mistaken identity. No real basis exists for reopening the matter.”60
Through Sununu, the Liberty veterans were referred to Congressman Nicholas Mavroules, chairman of the House Armed Services Subcommittee on Investigations, to whom they sent a letter dated July 1, 1991, requesting an investigation of the Liberty incident. The letter contained twenty-two specific allegations, many of which have little to do with the issue of whether or not the attack was a mistake—for example, “The American Red Cross refused to honor USS Liberty survivors’ requests to notify our next of kin as to our condition.”61
A letter supported by the president’s chief of staff clearly carried some political weight. Mavroules obtained the loan of Roy J. Kirk from the General Accounting Office (now the Government Accountability Office), one of Congress’s investigating arms, and began an investigation that lasted nearly a year. Warren Nelson, a member of Congressman Mavroules’s staff, had code-word security clearance, which is higher than top secret. He personally reviewed the then-still-classified Clifford Report and the NSA document in its unredacted form and confirmed to Kirk that neither report contained any support for an intentional-attack theory.62 Kirk was able
to read the Clifford Report and found it not to be significant. Ultimately the committee concluded that the incident had already been fully investigated and that there was no evidence to support the allegations made by the Liberty Veterans Association or any reason for any further investigation. The subcommittee did not issue a report.
In all, then, the attacks were investigated by a naval court of inquiry, the CIA, the NSA, the JCS, and the President’s Foreign Intelligence Advisory Board and examined by Congress on five occasions. Each official investigation concluded either that the attacks were a tragic mistake or that there was no evidence that the attacks were anything else. Seven U.S. presidents—three Democrats and four Republicans—have agreed.63 The official investigations and presidential positions remain consistent. The Liberty incident was a tragic mistake. There is no competent evidence to the contrary.
Chapter 13
ISRAEL INVESTIGATES
Israeli military law is based on U.S. and British military law. In the U.S. Navy, a Judge Advocate General (JAG) Manual investigation is required any time a death, injury, or damage to property occurs. The investigation may be conducted by one officer, who need not be a lawyer. The initial Israeli investigation of the Liberty incident began with the appointment of Col. Ram Ron as a commission of inquiry to examine the Liberty incident under section 537 of the Israeli Military Justice Law of 1955.1 The initial investigation was comparable to a U.S. Navy JAG Manual investigation.
Ram Ron was born in Poland in 1925 and came to Israel as a baby. He had received some legal training at the University of Jerusalem but was not a judge or a lawyer. He was an infantry officer and paratrooper who had served as a battalion commander and a brigade commander and had been assigned to the planning division at General Headquarters. He spent the 1967 war with Gen. Avraham Joffe in the Sinai. Upon his appointment he began his investigation on June 12, completing his report on June 16, 1967. When asked by this author about command control and what influence or pressure, if any, was put on him in regard to the investigation, Ram Ron responded, “One thing I can tell you for sure, I was totally free to come to any conclusion. Had I come to a conclusion that a crime had been committed, I would have reported it without hesitation.”2 Ron concluded that a chain of battlefield errors resulted in a severe tragedy—for the dead and wounded and their families, for the American people, and for Israel.
The investigation was conducted mainly at naval headquarters in Haifa. Ron considered at least fourteen items of documentary evidence.3 He took testimony from twelve witnesses, all air force and naval officers, including the commander of the navy, the officer who authorized the torpedo attack, the motor torpedo boat division commander, and the captain of the torpedo boat that launched the torpedo that hit the Liberty. He also took testimony of the chief of Air Force Intelligence, the chief of Air Force Operations, and the chief air controller, who selected and dispatched the aircraft to attack the Liberty. He did not have communication with, or access to, any U.S. witnesses.
His report contains a number of minor errors that do not bear on the conclusions reached. For example, he reports that four torpedoes were launched, when the number was five. He confirms that a ship was observed and identified as the U.S. ship Liberty at 0550 on the morning of June 8. However, he lists her bow marks as “R.T.R.-5,” when in fact they were “GTR 5.”4
He came to the conclusion that the attack resulted from three principal Israeli errors. There were numerous other errors, some of which he mentioned and some not. The three points on which he focused were (1) the erroneous report concerning the shelling of El Arish; (2) the establishment of the Liberty’s speed at thirty knots; and (3) the identification of the Liberty as the El Quseir. He also concluded that “another grave error—no less decisive than the mistakes referred to above—was made by the ship Liberty itself.” He concludes that the Liberty “acted carelessly and placed herself in far reaching peril by approaching so near to the coast of an area known to her to be a war area without giving notice of her presence to the Israeli authorities” and that she tried to conceal her identity and presence in an area that was not a navigation area crossed by maritime routes but rather an area where ships do not usually sail.
Ron made a number of recommendations, including that procedures be established for declaring “danger zones”; that pilots be better trained in the identification of enemy vessels; and that better procedures be established for disseminating information about neutral ships observed in war zones. Ron found a chain of errors, a lot of nervousness on the part of the navy, and a lot of “fog of the battlefield.”
The file and the report were forwarded to Col. Meir Shamgar, the military advocate general, on June 18, 1967. After two days’ study by Colonel Shamgar, it was submitted to Lt. Gen. Itzhak Rabin, Chief of Staff, with a recommendation to convene a preliminary inquiry under section 283 of the Israel Military Justice Law of 1955.5
Why did the military advocate general want a preliminary inquiry, when the commission of inquiry had reported no misconduct or wrongdoing by the IDF? When interviewed in Jerusalem on June 6, 1988, Shamgar, who was then serving as the president of the Supreme Court of Israel, answered that he wanted a full judicial procedure because of the seriousness of the event and the fact that so many people had been killed and injured. He stated that while he never had the slightest suspicion of any malicious intent, he was not satisfied with only a military review, which someone might characterize as sweeping the incident under the rug. He wanted judicial consideration of the errors reported by Ram Ron and judicial determination of whether any of the reported errors constituted negligence or misfeasance that might rise to a level where prosecution was warranted.
So Judge Yeshayahu Yerushalmi, a lieutenant colonel in the IDF, began a procedure as examining judge. Yerushalmi was born in Poland in 1920 and came to Israel in 1935. He graduated from Balfour College in Tel Aviv and went on to study law at the University of Jerusalem. He joined the Haganah and worked as a law clerk and lawyer from March 1942 until 1947, when he joined the army as a private. He was soon transferred to the military advocate general and became JAG to the air force and then JAG to the navy. In 1957 he was appointed as a judge on the Court of Military Appeals, a position he had held for ten years when he was appointed as examining judge in the Liberty matter.
Yerushalmi heard thirty-four witnesses and received fourteen documents into evidence in the Liberty inquiry. Witnesses included the operations officers of the air force, the navy, and General Headquarters; the persons who were on the motor torpedo boats; and the pilots of the attacking aircraft. The proceedings were closed to the public but were recorded by a court reporter (who was a sergeant in the army at the time but later became a lieutenant colonel and a judge).
The proceeding was conducted using a combination of English and American common law. The rules of evidence were observed, and hearsay was not allowed. As in a U.S. Navy court of inquiry, the proceeding began as a fact-finding procedure and went forward until the judge stopped the proceedings and named parties. Like its U.S. counterpart, the proceeding was then adjourned to allow any named party to obtain counsel and prepare a defense. From that point on, the proceeding was adversarial. The government was represented by Chief Military Prosecutor Yaacov Kedmi, who had the burden of proof. The named party, in this case Avraham “Ramy” Lunz, was represented by Chief Military Defense Counsel Villie Tien, and the inquiry continued with the possibility that the judge could bind over the party for prosecution by court-martial. Defendant Lunz called three witnesses, produced five exhibits, and made a statement under oath.
Judge Yerushalmi did not see the Ram Ron report before starting his inquiry, and his work was totally independent. Recalling the episode, he particularly remembers that he was shown silhouettes of the Liberty and the El Quseir. They were overlaid, and Judge Yerushalmi found the overlays to be persuasive evidence. He also recalls that at the time, after weeks of waiting for the crisis to develop, there was extreme tension in Israel. There was a
lso a strong concern for the feelings of the United States, as well as gratitude, because no one in the world stood with Israel except the United States.
Yerushalmi made it clear “that it is not my function to determine, in any manner whatsoever, whether the Liberty acted properly at any stage prior to the incident or during the incident itself.” However, he went on to say that in order to determine the reasonableness of all concerned, it would be necessary for him to examine the conduct of the Liberty. He did a thorough job of analyzing the testimony and the facts known on the Israeli side of the equation. He, like Rear Admiral Kidd, was handicapped by lack of input from the other parties to the incident. Yerushalmi told this author that each day he asked the chief military prosecutor, “When are the Americans coming?” Finally he was told that they were not coming. It is amazing that both Yerushalmi and Kidd were able to do such excellent work without input from each other.
Yerushalmi noted in his decision that the incident had occurred in the midst of a war, very close to a coast where battles were still raging, and that the Liberty had been in “the naval battles arena,” an area that had been declared by the Egyptians as dangerous for shipping,6 of which he presumed the Liberty was aware. He also noted that the site of the attack was not on a recognized shipping lane and that foreign warships, particularly in sensitive zones, announce their approaches to foreign shores.
He entered an interim decision on July 5, 1967, holding: “It appears to me, prima facie, that offenses of negligence may have been committed by the Acting Chief of Naval Operations (Avraham Lunz) because he did not report to the Head of the Naval Department, that on the day of the incident the American ship Liberty was observed proceeding in the vicinity of and along the Israel coast.”7 The inquiry then reconvened as an adversarial proceeding and was completed on July 21, 1967 (the thirteenth day of Tamuz 5727 on the Hebrew calendar) with the reading of the judge’s his decision in the presence of the chief military prosecutor, Major Kedmi; the chief military defense counsel, Lieutenant Colonel Tein; and the Acting Chief of Naval Operations, Avraham Lunz.
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