Refuting the Israeli Arguments

"Ship was not flying flag when sighted."

The government of Israel first asserted that USS Liberty was not flying a national ensign (American flag), initial 9 June 1967 telegram From the Defense Attachè in Israel to the White House: "6. Ship [USS Liberty] was not flying flag when sighted."

It was then asserted that if she was, the Israeli pilots and torpedo boat crews were unable to discern a flag or any other markings. The IDF history Report stated, "Even at this stage, there was still no flag discernable on the ship, and only later, at closer range was the Division commander able to see a small flag and code flag which bore the ship's name." (p. 17).

These claims are simply not credible. There was extensive sworn testimony at the U.S. Navy Court of Inquiry attesting to both the presence and visibility of the flag high above the bridge (as required by Navy regulations) and the hull markings on the bow and stern of the ship:

Testimonmy of Ensign Scott

Q. Do you recall the flag or the national ensign flying?

[Ensign Scott:] Yes sir, it was flying. I noticed at first light that the ensign was flying. I looked up to it to check the wind direction just in the event I had to blow tubes and I wanted to have a favorable wind direction. That's about all I recall about the flag being up on the day and night while we were over here. I don't recall seeing it down at all.

Testimony of LT. Golden

[LT. Golden:] Yes sir. At approximately 1145, I completed eating lunch, and went to the 01 level forward to sunbathe along with the Captain and some of the other officers. I have a lounge chair, most of us do have; while laying on my back sunbathing, I noticed a plane flying over. I dozed off, and approximately 25 minutes or so later on, I woke up and saw a plane circling again coming from the port beam, crossing the ship. While watching it, I glanced up and noticed it just crossing over the stack area, and I noticed a small amount of smoke coming out of my stack, and also the flag was flying.

Counsel for the Court: Was it extended?

[LT. Golden:] Yes sir, there was a slight breeze blowing.

Q. Where was the flag flying from, Lieutenant GOLDEN?

[LT. Golden:] The foremast.

Q. And it was standing out where it could be seen?

[LT. Golden:] Yes sir. Not completely the full length, but it was standing out.

Testimony of LTJG Painter

Counsel for the Court: Did you have occasion to see the national ensign flying?

[LTJG Painter:] Yes sir, I did. I saw the national ensign flying after the, it was at the time I believe when we were going to abandon ship. I ran out on the main deck to get the life rafts ready. I remember distinctly looking back up and seeing the Ensign flying. This was, I think, after the air raid, after the torpedo attack.

Q. Had you seen it earlier that morning?

[LTJG Painter:] I saw it earlier that morning when I came up, I don't know when it was. I came up on and of off that morning checking a patrol plane that had been flying over us. The quartermaster, DAVID QM2, had told me that the night that he was wounded that he had put the flag up at 0730 that morning.

Q. So you, in recollection, recall seeing the flag flying in the morning and after the torpedo attack?

[LTJG Painter:] Yes, before and after the torpedo attack.

Q. Do you know whether or not it was the same flag?

[LTJG Painter:] I couldn't tell you sir. The way I thought at one time, what the heck was it, I noticed there was something funny about it. I might have seen the flag twice, because once I saw one that had been shot up and it was ragged, and the next time I looked at it I didn't notice whether it was ragged or not. I couldn't say either way whether it was the same flag.

Testimony of Chief Smith

Counsel for the Court: Did you have occasion to see the national colors flying?

[Chief Smith:] Yes sir. At the time I ran out of the radio central space to the transmitter room.

Q. What time was this?

[Chief Smith:] I would say about 1225, this was about two minutes either way. And this was Zulu time because I'm basing it on the log here. I had occasion to look at it because I was under the impression we were being attacked by UAR, and I wanted to see, and by the time that report came down to us from the bridge that they were Israelis, I wanted to check myself personally to see if our flag was flying because I couldn't understand it. For some reason I saw the flag flying at that time. If this was the original flag or not, I do not know sir.

Testimony of LTJG Watson

Counsel for the Court: Excuse me, any time prior to the attack, did you notice the national colors flying?

[LTJG Watts:] Yes sir. At lunch that day, we were discussing the situation and Mr. Golden made the statement that someone had said something about the ensign flying so the people would know who we were. Mr. Golden made the statement something like, "Don't we have a bigger flag we can fly, maybe the holiday colors ?" Then after lunch we went out on the 01 level forward and most of the officers were around there sunbathing immediately preceding 1300. At approximately 1245, an aircraft flew over approximately 5,000 to 8,000 feet, and his line of flight took it over the radar mast, and I was watching it and made a comment about it that it looked like a C119 flying boxcar. And as it flew over the radar mast, the ensign was flying from the gaff. I noticed that it was flying, at this time there was a breeze.

Q. Extended?

[LTJG Watson:] Yes sir.

President: Was it from the mast aft or the mast directly over the bridge?

[LTJG Watson:] The mast directly over the bridge, sir.

Quite clearly, this testimony establishes that the flag was flying per naval regulations:

United States Navy
Regulations on the display of the national ensign (NTP-13B)

503. Vessel Underway

a. During peacetime, the national ensign shall be displayed during daylight hours from the gaff (or from the triatic stay in the case of those ships with mast mounted booms and stays which would interfere with the hoisting, lowering, or flying of the national ensign) under the following circumstances, unless otherwise directed by the senior officer present:

(1) Getting underway or mooring/anchoring
(2) Falling in with other ships
(3) Cruising near land
(4) When engaged in battle

More to the point, the fact of the presence or visibility of the flag is not material to this inquiry. Belligerent powers have a duty to positively identify their targets before attacking in international waters. They cannot simply attack an unknown ship in international waters without positively knowing the nationality of the ship.

This principle is well established in existing international law as seen in the decisions handed down at the Nuremberg War Crimes trials in the cases of Admirals Raeder and Doenitz. In both cases, defenses of "mistake" and "accidental attack" were rejected entirely by the court in convicting the two men for commission of war crimes, in part, by allowing ships under their command to attack merchant and neutral ships.

The government of Israel would have you believe that the presence or lack of a flag is an essential issue. It isn't. While it is certainly prudent to fly a highly visible national flag while near a war area, a neutral ship cannot be attacked for failure to fly a flag:

11.9.7 Failure to Display. When objects or persons are readily recognizable as being entitled to protected status, the lack of protective signs and symbols does not render an otherwise protected object or person a legitimate target. .  .  .
Liberty's holiday ensign
USS Liberty's Holiday Ensign

In this case, the sworn testimony is unanimous: Throughout the day of June 8, 1967, USS Liberty flew an Amerian flag. Prior to the attack, USS Liberty flew her normal-sized flag or "steaming ensign." During and after the attack, she flew her larger-sized "holiday ensign." (The Count of Inquiry record cites estimates of these flags' physical size being 5' x 8' and 7' x 13', respectively. On page VIII of the court record appendix, "Point 6" cites the ship's flag sizes being regulation sizes 9 and 7, respectively.)

Another Israeli flight of Mirages had no problem recognizing the ship as a "merchant type" ship that was clearly "not Egyptian, not Syrian, possibly American or Soviet." These aircraft were directed by ground radar controllers to identify the ship. This order was given very shortly before the other Mirages attacked. More importantly, the Israeli controllers recognized the ship as non-hostile. ("Go away. Immediately! It may be a third force!")

While many of the formal findings of the various United States government reports concerning the attack were highly qualified statements ("based on the evidence available now"), this presence of the flag was asserted without equivocation. Both the Clifford and Salans Memorandums made formal findings that the flag was both present and visible.

Clifford:

d. At all times prior to the attack the Liberty was flying her normal size American flag (five feet by eight feet) at the masthead. The flag was shot down during the air attack and was replaced by a second American flag (seven feet by thirteen feet) five minutes prior to the attack by motor torpedo boats. The Liberty did not endeavor to hide her identity or her presence in international waters at any time prior to or during the attack.

Salans:

The Navy inquiry confirms by testimony of five members of the crew that they had personally observed the Ensign flying during the entire morning and up until the air attack. The Ensign was subsequently shot away during the air attack. Before the torpedo attack, a second Ensign was hoisted. The Navy report also found that "hull markings were clear and freshly painted.

The Clifford report noted that "the Liberty's U.S. Navy's distinguishing letters and number were painted clearly on her bow. The Liberty's name was clearly painted in English on her stern. The ship's configuration and her standard markings were clearly sufficient for reconnaissance aircraft and waterborne vessels to identify her correctly...." The report noted that at all times prior to the air attack the Liberty was flying her normal size American flag (5 ft. by 8 ft.) at the masthead.

Five minutes prior to the attack by the torpedo boats, the Liberty put up a flag measuring 7 ft. by 13 ft. to replace the flag which had been shot down in the air attack.

The ship's original weather log establishes that throughout the day of June 8, 1967 there were winds out of the west-northwest at speeds of between 4 and 7 knots. For hours prior to the attack, the ship followed a heading of 283 degrees (west-northwest) at a speed of approximately five knots. Factoring in the ship's speed and heading in relation to the wind, the relative wind was never less than nine knots after the ship turned onto a westerly heading at approximately 0900.

A 5-knot wind (the ship's pre-attack speed) produces over 1/16 lb (1 ounce) per square foot lifting force. The square foot weight of a government regulation cotton, Nylon or polyester flag is less than one ounce. Thus, the relative wind across USS Liberty's; decks, by itself, produced enough lift-force to unfurl the flag.