The Navy Court of Inquiry: Evidence of Negligence
K. J. Halliwell (August 21, 2008 -- Revised April 16, 2014)
On June 10, 1967, two days after the USS Liberty attack, Admiral John S. McCain Jr.,  Commander in Chief, U.S. Naval Forces Europe (CINCUSNAVEUR), ordered a Navy Court of Inquiry (NCOI) to inquire into all pertinent facts and circumstances leading to and connected with the attack, resulting damages, and deaths and injuries; and when complete, submit its findings of fact.
 
The Court consisted of three members: Rear Admiral Isaac C. Kidd, Jr. (President), Captain Bernard J. Lauff and Captain Bert M. Atkinson, Jr..  The Court's senior and junior counsel were Law Specialists[1] Captain Ward Boston, Jr. and Lieutenant Commander Allen Feingersch, respectively.
 
The record of Court proceedings shows that the Court first met and heard testimony late at night on June 10, 1967 and early morning June 11, 1967, for about four hours, in London, England.[2] Then its members and counsel traveled to Malta where fourteen USS Liberty crew members appeared before the Court, aboard the attack-damaged ship, during two or three days of testimony heard on June 13 and/or 14, and 15.  The crew members are listed below, in the order of their appearance.
 
First and possibly second day of testimony by USS Liberty crew members:
(Second and possibly third day of NCOI testimony on June 13 and/or 14, 1967)
David Lucas -- Ensign (Deck and Gunnery Officer)
William McGonagle -- Commander (Commanding Officer)
Lloyd Painter -- Lieutenant Junior Grade (Deck Officer)
John Scott -- Ensign (Damage Control Officer)
George Golden -- Lieutenant (Engineering Officer)
Malcolm O'Malley -- Ensign (Operations Officer)
Malcolm Watson -- Lieutenant Junior Grade (MPA Officer)
Richard Pfeiffer -- Lieutenant (Medical Officer)
Jessie Thompson -- Communications Technician Chief
Francis Lamkin -- Communications Technician Chief
Wayne Smith -- Radioman Chief
Second or third day of testimony by USS Liberty crew members:
(Third or fourth day of NCOI testimony on June 15, 1967)
Maurice Bennett -- Lieutenant (Communications Officer) -- recalled?[3]
Joseph Carpenter -- Communications Technician Second Class
Maurice Bennett -- Lieutenant (Communications Officer)
Thorp Long -- Communications Technician Second Class
William McGonagle -- Commander (Commanding Officer) -- recalled
 
During the first day of USS Liberty crew testimony, dated June 13 in the record, Lucas' testimony consumed almost three hours of the Court's time from 0755 to 1045.  (The record shows the Court opening on June 13 at 0755 and recessing at 1045 on June 14 -- confusing to say the least, and possibly reflective of the hurried manner in which the written record was prepared.)  The Court reconvened at 1300, June 14, to hear McGonagle's testimony.  After the Court recessed again, from 1620 to 1645, McGonagle resumed his testimony.  Oddly, the Court's record does not cite a time for the end of McGonagle's testimony, but it was likely about 1730.[4]   Also, no times are cited for the remaining nine witnesses' testimony or the end of the Court's day, but the remaining witnesses' combined testimony was about the length of Lucas' and McGonagle's combined testimony; thus, if testimony was only for one day (i.e., June 13 or 14), then it would have been about midnight when the last witness was heard -- possible, but an extremely long day for members of the Court given that no recesses are cited after the 1620 recess.
 
During the second or third day of USS Liberty crew testimony, on June 15, the Court met from 0820 until 1445, with a one and one-half hour recess for lunch.  Of nearly five hours testimony, a majority of time was spent hearing testimony from the crew members listed above.  The remaining time was spent hearing three subject matter experts testify about matters involving attack damage and repair, and the potential for survivability of personnel within the area damaged by the torpedo strike.
 
Thus, the Court's record indicates that about 19 hours of testimony was heard from 17 witnesses during two or three days of testimony on June 13 and/or 14, and 15.  Combining this with six hours of testimony from two witnesses heard on June 10 and 16,[2] the total is 25 hours of testimony from 19 witnesses.  This pales in comparison to similar matters subject to NCOI hearings; e.g.,  the NCOI for the USS Pueblo incident heard over 200 hours of testimony from 104 witnesses. 
 
From the above, it is clear that the USS Liberty incident's NCOI was conducted in a comparatively short period of time; i.e., it was rushed.  Regardless, the Court heard a relatively large number of witnesses, and collected a relatively large amount of technically complex and event related information.  Considering the limited time involved, this was a laudable achievement; and, by itself, not indicative of neglect.
 
On the other hand, due to limited time, all available and pertinent witnesses (information sources) were not heard, or their testimony otherwise included in the Court's record of proceedings.  This was bald-faced negligence by the Court and its counsel; it clearly violated the Navy Judge Advocate General's (JAG) guidelines cited in counsel's closing remarks (emphasis added):
"The JAG Manual provides that the responsibility of Counsel for the Court is to exploit all practicable sources of information and to bring out all facts in an impartial manner without regard to the favorable or unfavorable effect on persons concerned."
Also, this view was reflected in a speech by former U.S. Navy JAG, retired Rear Admiral Merlin Staring (now deceased), on June 8, 2007, at USS Liberty memorial ceremonies:
"The [USS Liberty incident] Navy Court [of Inquiry] was directed to inquire into 'all the pertinent fact and circumstances leading to and connected with' the 8 June 1967 attack on the Liberty.  That it did not and could not possibly have done so is apparent from the Navy's official record. ...critically important witnesses [were never] officially questioned concerning their observations or experiences during the attack."
The following is a prime example (i.e., evidence) of the Court's negligence.
 
In Lucas' and McGonagle's testimony about the MTB (motor torpedo boat) attack, McGonagle recalled machine gun fire from Liberty occurring before the MTB attack began, and Lucas recalled the firing occurring after the ship was hit by a torpedo.[5]  Both witnesses cited the names of the men who manned and fired the machine guns during the MTB attack.  These men survived the attack and were not seriously wounded.  Clearly, the Court and its counsel had a duty to hear testimony by these men; their testimony had the potential to resolve the material differences between Lucas' and McGonagle's testimony.
 
This is not the only material difference in testimony from Lucas and McGonagle,[6] but it is perhaps the most pivotal in that it either supports or refutes the IDF's (Israel Defense Force) claims about timing of gun firing from USS Liberty, during the MTB attack.
 
As exemplified above, the NCOI and its counsel were blatantly negligent by failing to conduct a thorough inquiry, as prescribed in the Navy JAG manual.

In a belated attempt to set things right, several years ago the Court's senior counsel, retired U.S. Navy Captain Ward Boston (now deceased), released a signed affidavit that in part stated:

"The late Admiral Isaac C. Kidd, president of the court, and I were given only one week to gether evidence for the Navy's official investigation into the attack, despite the fact that we both had estimated that a proper Court of Inquiry into an attack of this magnitude would take at least six months to conduct."
. . .
"Regrettably, we did not receive into evidence and the court did not consider any of the more than sixty witness declarations from men who had been hospitalized and were unable to testify in person."
Clearly, Boston's statements support that the Court was not allowed time, for reasons unknown, to adequately investigate the attack on USS Liberty; and, as a result, it was negligent in performance of its duty, as prescribed in the Navy JAG manual, to "exploit all practicable sources of information and to bring out all facts".
 
Justice delayed is justice denied.
British Prime Minister, William E. Gladstone