The Liberty Incident

Examining Judge's Report (1967)

The Ram Ron file and report were forwarded to Colonel Meir Shamgar, the Military Advocate General, on June 18, 1967. After two days' study by Colonel Shamgar, it was submitted to Lieutenant General Itzhak Rabin, Chief of Staff, with a recommendation to convene a preliminary inquiry under section 283 of the Israel Military Justice Law of 1955. (The equivalent of a U.S. Navy Court of Inquiry.)

Why did the Military Advocate General want a preliminary inquiry when the commission of inquiry had reported no misconduct or wrongdoing by the IDF in his June 16, 1967, report? 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 were 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 that someone might say was 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 to 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 and who 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. In his recollection, 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 recalled that after weeks of waiting for the crisis to develop, there was extreme tension in Israel. There was also a strong concern for the feelings of the United States and 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 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 occurred in the midst of a war, very close to a coast where battles were still raging and that the Liberty was in "the naval battles arena," an area that had been declared by the Egyptians as dangerous for shipping, and he presumed that the Liberty was aware of the declaration. 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 approach to a foreign shore.

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. The inquiry then reconvened as an adversary proceeding and was completed on July 21, 1967 (the thirteenth day of Tamuz 5727 on the Hebrew calendar) with the reading of his decision in the presence of the Chief Military Prosecutor, Major Kedmi; Chief Military Defense Counsel, Lieutenant Colonel Tein; and the Acting Chief of Naval Operations, Avraham Lunz.

When the inquiring judge's decision was rendered, it was classified and sent to the United States by two different routes. One copy was delivered at the Department of State in Washington, D.C., by Israel Deputy Chief of Mission Ephraim Evron to the U.S. Under Secretary of State, Nicholas Katzenbach, who read the report in Evron's presence and then stated that it was an excellent report except for the last sentence. The last sentence stated, "I hold that there is no sufficient amount of prima facie evidence, justifying committing anyone for trial."

As a general rule of appellate review, many cases fall into a category called "fairly debatable." In such cases, the reviewing court allows the decision to stand and does not substitute its judgment for the judgment of the judge who heard the testimony and had the opportunity to observe the demeanor and appearance of the witnesses and deal with the evidence firsthand. Perhaps if the judge had been American rather than Israeli, a decision to prosecute might have been reached. It is always easier for someone conducting a review of actions taken and decisions made under great pressure to calmly and peacefully decide what would have been the best decision. But at the time and place of the event, when the original actors' glands were pumping adrenalin and the fight-or-flight syndrome was affecting their brains, it becomes more a question of whether they acted reasonably than whether they acted perfectly. Judge Yerushalmi put it this way in his decision: "For all my regret that our forces were involved in an incident with a vessel of a friendly state, and its sad outcome, I ought to put the behavior of each of the officers, who had any connection with the incident, to the test of the conduct of reasonable officers during war operations, when the Naval arm of the Israel Defense Force was confronted with maritime forces superior in numbers, and when all involved were conscious of the task before them ' to protect the safety of Israel, to identify every enemy threatening from the sea, to attack it and speedily destroy it. The criterion for reasonable conduct under these conditions may possibly differ from that in time of relative quiet."

A copy of the decision was delivered to U.S. Chief of Naval Operations Admiral Thomas Moorer, who limited it for dissemination to only four codes in the office of the CNO: one copy stayed with the CNO, code 00; one copy went to the Vice Chief of Naval Operations, code 09; one went to Operations, code 62; and one went to Intelligence, code 92. Although the document has never been declassified, it is easily obtainable in the Pentagon and in Israel.

The Examining Judge's Report in both English and Hebrew follow.

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