NSA Hoards a 58-Year-Old Secret: The USS Liberty Verdict Awaits

The U.S. Court of Appeals for the Ninth Circuit heard oral arguments on March 9, 2026, in what may be the most consequential FOIA case of the year — one that doesn't just determine whether a single document gets released, but whether the government's intelligence apparatus can permanently launder classified records through a legal fiction to defeat public disclosure entirely.

The case is Kinnucan v. National Security Agency et al., No. 24-7642, and it has been working its way through the federal courts since journalist and independent researcher Michelle Kinnucan first filed her FOIA request in March 2019. What she asked for was a copy of what is known as the "HAC Report" — a two-volume document produced by a subcommittee of the House Appropriations Committee examining intelligence and communications failures surrounding the June 8, 1967 Israeli attack on the USS Liberty.

That attack killed 34 American sailors and wounded approximately 174 others. The Israeli government has long maintained the assault was a tragic case of mistaken identity. But the HAC Report — if its alleged contents are accurate — could blow that explanation apart.

According to former Rep. Robert L.F. Sikes, himself a member of the Appropriations Committee, the report contains testimony from a CIA witness stating that on June 7, 1967 — the day before the Liberty arrived at its designated operating area — the Israeli government threatened to attack the ship. If true, that testimony would directly contradict nearly six decades of official narrative. It would also corroborate three CIA intelligence reports from 1967, reportedly obtained in partially unredacted form through the very litigation now before the Ninth Circuit, which according to intelligence sources in Tel Aviv indicated Israeli forces knew exactly what flag the Liberty was flying.

The NSA has never denied possessing the HAC Report. Court filings confirm the agency has held it in its files since 1968 — stored, according to litigation records, within the NSA's own "Crisis Collection" of its History Collection, accessible to NSA personnel and used as part of the agency's official records. What NSA has argued, successfully so far, is that none of that matters: the report is a "congressional record," not an "agency record," and because Congress exempted itself from FOIA, the document cannot be released without congressional approval.

That argument has now twice prevailed at the district court level. Senior Judge Marsha J. Pechman of the U.S. District Court for the Western District of Washington sided with the government, most recently on November 21, 2024 — more than four years after the case was first filed. The court found that the copy of the HAC Report held by NSA bore a banner reading "NOT FOR RELEASE UNLESS AND UNTIL AUTHORIZED BY COMMITTEE," and concluded that Congress had manifested a clear intent to maintain control over the document.

But Kinnucan's appeal exposes something far more troubling than a bureaucratic records dispute. When NSA's own attorneys were preparing their response brief for the first appeal, they discovered that over the course of more than three years of active litigation, the NSA had withheld relevant information not just from opposing counsel, but from the Justice Department lawyers representing the agency and from the trial court judge. The revelation was significant enough that the government requested a voluntary remand — essentially asking the Ninth Circuit to send the case back down so NSA could quietly reprocess the request. The agency then produced two internal documents: a routing slip and a memorandum for the NSA Director, which Kinnucan's attorneys — Thomas R. Burke, Caesar Kalinowski IV, and Marietta Catsambas — argue only strengthens her case, confirming that the HAC Report was obtained and used in furtherance of NSA's official duties.

This is the second time the case has gone before the Ninth Circuit. On February 10, 2026, the court approved a motion by the USS Liberty Veterans Association to file an amicus brief supporting Kinnucan's position. Then came the March 9 oral arguments in Seattle, where a three-judge panel heard what is ultimately a narrow but legally momentous question: can a document become so integrated into an executive branch agency's files — stored for 58 years, cross-referenced in internal histories, used in official operations — that its original congressional status is effectively overridden?

The stakes go well beyond the HAC Report. As the litigation has progressed, it has revealed that the HAC Report is not the only documentation the government is suppressing. The CIA holds at least 256 pages of records that the agency itself has identified as relevant to the USS Liberty attack — records that are either partially redacted, fully redacted, or that were never formally acknowledged in the first place. The NSA, for its part, produced not a single record directly responsive to Kinnucan's multiple FOIA requests prior to the lawsuit being filed. And a series of FOIA requests for encrypted traffic reports from the USS Little Rock, the Sixth Fleet flagship that had operational control over the Liberty at the time of the attack, were flatly denied — the NSA claiming it possessed no responsive records, then terminating Kinnucan's appeal on the grounds that the matter was in active litigation.

That kind of circular stonewalling — deny the records, then block the appeal because you're being sued over the records — is precisely the bureaucratic death spiral that FOIA was meant to prevent.

The Ninth Circuit's decision, which could come at any time, will set precedent that extends far beyond this case. If the court affirms the district court, it effectively creates a permanent workaround for agencies seeking to shield operationally significant documents from public disclosure: acquire a congressional record, integrate it into your files, use it for decades, and then invoke the congressional exemption as a shield when requesters come knocking. If the court reverses, it will establish that de facto agency control — demonstrated by decades of possession, use, and storage — is sufficient to convert a congressional record into an agency record subject to FOIA.

For the surviving crew of the USS Liberty and the families of the 34 Americans who died, the stakes are simpler. They want to know what their government learned, and what it has been hiding, for nearly sixty years.

The Jordan Calloway Take

Government Secrets & FOIA

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Here is what the government is actually arguing in Kinnucan v. NSA: that a spy agency can receive a classified congressional document, store it in its own archives for 58 years, cross-reference it in internal histories, use it in the course of official operations — and then, when a journalist files a FOIA request, claim the document belongs to Congress and walk away clean. That is not a legal theory. That is a permission slip for permanent institutional secrecy dressed up in procedural clothing. The NSA hid relevant information from its own Justice Department lawyers and from a federal judge for over three years of litigation. That is not an agency acting in good faith toward transparency — that is an agency treating the court as an obstacle to be managed. And yet, so far, the courts have rewarded that behavior with favorable rulings. If the Ninth Circuit affirms the district court, every federal agency in Washington will learn the lesson: when you want to bury a document forever, just label it a congressional record and keep it. The winners if nothing changes? The intelligence community, which continues to dictate its own accountability. The losers? Thirty-four dead Americans, their families, and every citizen who believes the government owes them the truth about what happened on June 8, 1967.

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