Veteran Seeks Another Hearing in USS Liberty Records Fight Tied to 1967 Navy Attack

A military veteran seeking a secret report on the USS Liberty attack is asking a federal appeals court to reconsider its decision, arguing that decades of National Security Agency (NSA) use brought the document within the Freedom of Information Act (FOIA).

Michelle Kinnucan, a researcher, journalist and veteran, filed her rehearing petition Oct. 8. She wants the U.S. Court of Appeals for the 9th Circuit to revisit its Aug. 24 ruling, either through the original three-judge panel or a larger en banc panel. The filing merely requests another review, it is not an order granting one.

The case extends the records lawsuit over a House Appropriations Committee report prepared after Israeli forces attacked the Navy intelligence ship on June 8, 1967. The attack injured approximately 174 people and killed 34 others.

Survivors have disputed the official account for decades. This litigation addresses access to documents, however, and the August decision did not determine whether Israel knowingly attacked an American ship.

Why the NSA Won

The report examined communications failures surrounding the Liberty incident and the Defense Department’s communications networks. The NSA obtained a copy in May 1968. Kinnucan requested it in 2019 and sued in 2020.

FOIA covers agency records, while Congress falls outside its statutory definition of agency. The NSA’s position was that the report remained a congressional record despite its presence in NSA files. The panel agreed, affirming summary judgment for the NSA.

Writing for the court, Judge Daniel Bress adopted the approach used by the D.C. and 2nd circuits: A congressional document transferred to an agency remains outside FOIA when Congress clearly intends to retain control.

Otherwise, the judges reasoned, Congress would have to choose between keeping oversight material confidential and sharing it with the agencies it supervises.

Both volumes carried a banner stating, “NOT FOR RELEASE UNLESS AND UNTIL AUTHORIZED BY COMMITTEE.” The court treated that restriction, the surrounding evidence and the NSA’s handling of the report as proof that Congress retained control and the agency could not freely use or dispose of it.

In the earlier cases, United We Stand v. IRS and ACLU v. CIA, Congress put its restrictions in dated letters from identified officials. The Liberty banner supplied neither an author nor a date.

Bress relied on the dated congressional memorandum pages and the NSA’s declarations to infer that Congress added the banner before transferring the report, even though the record did not establish who added it or when.

Kinnucan Challenges the Legal Test

The petition challenges how the panel decided whether the report qualifies as an “agency record” under FOIA. Both sides agree the NSA obtained it.

The dispute is whether Congress retained control despite the NSA’s possession and use. Kinnucan’s first argument is that the panel’s reliance on congressional intent conflicts with Supreme Court and 9th Circuit precedent.

In DOJ v. Tax Analysts, the Supreme Court drew two requirements from its earlier decisions: an agency must have created or obtained the material, and it must control when the FOIA request is made.

The court defined control as possession acquired “in the legitimate conduct of its official duties.” It held that federal court decisions obtained and kept by the Justice Department were agency records, rejecting the DOJ’s argument that they had to have been written primarily for use in agency decision making.

In explaining control, Tax Analysts emphasized the connection between an agency’s possession of records and its official work. It cited Kissinger, where records brought to the State Department never entered its files and were never used for departmental business.

In the Liberty case, by contrast, the NSA retained the Liberty report, circulated it among officials and used it to prepare an agency history. Kinnucan’s petition argues that this handling establishes control because the NSA obtained and used the report in carrying out its official duties.

She also relies on Rojas v. FAA, a 2019 decision involving employee emails. The 9th Circuit declined to fully adopt a four-factor test partly because its consideration of the creator’s intent conflicted with Tax Analysts. Instead, it directed courts to examine evidence connecting the records to agency business, including how the agency used, maintained and relied on them.

Judge Bress distinguished those precedents. Neither addressed confidential congressional records transferred to an agency, and Tax Analysts involved already public court decisions. He distinguished the purpose for which a document was written from Congress’ intention to retain control after sharing it.

The panel treated the report’s “NOT FOR RELEASE . . .” banner as a continuing restriction on the NSA’s authority to release it. Under that reading, the NSA could circulate and use the report internally without gaining the control required to make it an agency record under FOIA.

Kinnucan disputes that distinction. Her petition notes that federal courts are also excluded from FOIA, yet Tax Analysts held that court decisions obtained by the Justice Department were agency records.

She argues that the NSA’s official use likewise brought this report within FOIA. That would not automatically require its release. The NSA could still invoke an existing exemption—such as protection for properly classified information—but would have to justify withholding it under that exemption.

What the Banner Proves

Kinnucan’s second argument concerns the evidence.

To win summary judgment, the NSA had to establish that the report was not an agency record without a genuine dispute over material facts, with reasonable factual inferences made in favor of the non-moving party, Kinnucan.

Her petition argues that the NSA failed to establish when or by whom the banner was applied. She also disputes what it proves: The committee could have authorized the release contemplated by the banner when it transferred the report to the NSA.

Her attorneys point to the transfer slip without return instructions, circulation among official,s and use by two retired researchers preparing an agency history as evidence supporting that interpretation.

The panel instead concluded that Congress placed the banner before the transfer and retained authority over subsequent release. It relied on ACLU v. CIA, which held that broad agency use could coexist with congressional control.

In that case, the Senate Intelligence Committee encouraged executive branch use of its report, including for CIA training and procedures. However, an earlier letter expressly reserved ownership and control to the committee after its investigation ended and required notification of outside requests for access. Permission to use the report did not override those restrictions.

The Liberty report’s banner provides none of those detailed instructions. Kinnucan argues that even ACLU requires considering the agency’s freedom to use and dispose of a document.

Her position is that the transfer and subsequent handling permit an inference that Congress relinquished control. The panel considered that handling consistent with continued restrictions; she argues that it improperly resolved the uncertainty in the NSA’s favor.

Transparency Groups Warn of Broader Secrecy

On October 19, the Electronic Frontier Foundation and MuckRock Foundation submitted an Amicus Curiae (a friend-of-the-court brief) supporting rehearing, accompanied by a motion asking the court to accept it.

They argue that the panel weakened the government’s burden to prove withholding was lawful by accepting the NSA’s interpretation of the banner despite gaps in the evidence and reasonable competing inferences. They warn that this approach could allow agencies to justify secrecy with less evidence while making their claims harder for requesters to challenge.

They cite litigation in which DOJ claimed surveillance court rules barred disclosure, only for the surveillance court to reject that interpretation. A redacted opinion was later released. DOJ treated congressional correspondence as agency records, released some information and invoked FOIA exemptions to withhold the rest.

In EFF v. ODNI, EFF and MuckRock argue that the NSA should face the same requirement here: justify what must remain secret and release any portions that are not protected. The panel’s ruling ends the inquiry earlier by treating the entire Liberty report as outside FOIA. Their argument is that agencies should have to substantiate restrictions, not merely assert them.

The groups compare the ruling to EPA v. Mink, which limited judicial review of classification decisions. The Supreme Court held that judges could not examine whether the government was justified in classifying the requested information.

Congress responded the following year by changing FOIA to require that information withheld under the national security exemption actually be properly classified. They argue that accepting the Liberty banner as decisive evidence revives the reliance on secrecy labels Congress rejected.

They also invoke House access rules, which generally open archived records after 30 or 50 years. They argue that the House’s own deadlines for opening records weigh against treating the banner as a permanent restriction. The rules still allow records to remain closed under specified exceptions.

Granting rehearing would reopen the court’s review without guaranteeing disclosure.

If further proceedings establish that the report is an agency record, the NSA could still seek to withhold it under FOIA exemptions, including protection for properly classified national security information, but would have to establish that an exemption applies.

For Liberty’s crew and their families, access could contribute to a fuller accounting of the communications failures surrounding the attack. Disclosure would not resolve every question of justice and accountability, but it could allow scrutiny of a congressional assessment that remains outside public view.