Targeted?

A Jewish engineer for the U.S. Army says anti-Semitism fueled false suspicions that he spied for Israel.

Alan Abrams - Special to the Jewish News - May 18, 2001

A Jewish Army engineer from Southfield, who during a six-year period faced multiple investigations that he spied for Israel, is suing the Army, claiming that anti-Semitism motivated the discredited accusations against him.

David Tenenbaum, an Orthodox Jew employed at the Army's Tank Automotive and Armaments Command (TACOM) headquarters in Warren, was never charged with espionage. But the widely reported innuendo that he spied for Israel has made life a living nightmare for the 43-year-old father of four, he says.

In a brief filed in his lawsuit against the Army, Tenenbaum alleges that his religious and cultural practices - such as seeking kosher travel accommodations separate from his co-workers, leaving work early on Friday afternoons and speaking Hebrew to Israeli liaison officers - were interpreted by accusers as fitting a espionage profile.

Tenenbaum's brief cites depositions and Army documents revealing some in the Army referred to him as "our little Jewish spy" and frequently compared him to Jonathan Pollard, a Navy analyst now serving a life term for giving classified material to Israel in the 1980s. Unlike Pollard, however, Tenenbaum was never charged with any crime.

But are the comparisons of Tenenbaum to Pollard pure prejudice? Southfield attorney Mayer Morganroth, representing Tenenbaum in his civil lawsuit, thinks so.

"It is completely inappropriate to compare David Tenenbaum to Jonathan Pollard," he says. "David has never been shown to have done anything wrong whatsoever, and the Department of Justice even admits that David has never done anything improper.

Morganroth states further, "If anything, David is like Captain Alfred Dreyfus, who, despite an excellent service record, had been falsely accused of espionage for the sole reason that he was Jewish."

Dreyfus, a decorated officer in the French Army, was exiled to Devil's Island until a worldwide public outcry helped clear his name a century ago.

Accusations Of Espionage

For David Tenenbaum, life has not been the same since his world was turned upside down in February 1997. That's when he was suspended from his job and the media reported on an unsealed FBI affidavit and search warrant that targeted him as a spy. News coverage revealed that the FBI, based on the results of a lie-detector test, suspected Tenenbaum of committing espionage for Israel.

Tenenbaum is a civilian engineer at TACOM. Now, four years later, despite having never been formally charged, his security clearance has been revoked and his colleagues, Tenenbaum says, stay away from him on both a personal and professional level.

Tenenbaum, employed by TACOM since December 1984, says he no longer has access to classified information or is part of the workgroup in the research, development and engineering division.

His work revolved around improving the Army's fighting vehicles, specifically their protective armor and survivability after being hit by enemy fire. In 1995, he created an unclassified project known as Light Armor Survivability Systems, which he designed to be a cooperative effort between the U.S., Israel and Germany.

Since his return to work in April 1998, he says he has been prohibited from working on projects with Israel, even though he has received performance awards and positive evaluations from his superiors throughout the time he worked on these projects.

Fighting Back

In October 1998, Tenenbaum filed a lawsuit in federal court against individuals from the Department of Defense and the Army. Part of that suit, charging religious discrimination and seeking relief under Michigan civil rights law, was dismissed in April 1999; Tenenbaum was instructed by the court to exhaust federal administrative remedies and then file a claim against the Army under Title VII of the Civil Rights Act of 1964.

In January 2000, Tenenbaum accordingly filed a religious discrimination suit against the Army in the U.S. District Court for the Eastern District of Michigan in Detroit. But Judge Robert Cleland dismissed the suit last October. Tenenbaum filed an appeal Jan. 17, 2001 to the U.S. Sixth Circuit Court of Appeals in Cincinnati.

The appeal challenges the October ruling that Tenenbaum did not file his Title VII religious discrimination claim with the Equal Employment Opportunity Commission on time. Tenenbaum's lawyers claim that, because it is a continuing violation, the 45-day requirement for a timely filing does not apply.

The appeal claims Tenenbaum's constitutional rights were violated in the process of revoking his security clearance. But the overriding theme of the appeal is that all of the suspicions and accusations against Tenenbaum have been, and continue to be, motivated by anti-Semitism.

"The legal issue on appeal is the same as it was in the District Court: Whether, in this day and age, a Jew is entitled to equal protection, due process and fairness under the U.S. Constitution and laws of the United States,"" said Mayer Morganroth, Tenenbaum's lead lawyer, of the firm of Morganroth and Morganroth.

Tenenbaum's appellate brief relates that "key Army officials ... have admitted that Tenenbaum's being an Orthodox Jew was a driving factor in accusing him of espionage."

Tenenbaum's brief claims that accusations made against him may have been because of his closeness to Israeli liaison officers at TACOM. "There were four liaison officers on the base at TACOM," said Tenenbaum in an interview. "There was a German, Canadian, British and an Israeli one. There isn't an Israeli one any longer.

"Depending upon the project, there was a time when I spoke to one more than any other one," he added. "And besides, with Jews, you tend to connect. And as far as I know, there's no law against one Jew talking to another Jew on base."

The First Investigation

A preliminary investigation in 1992 was opened when a co-worker filed a Subversion and Espionage Directed Against the United States Army (SAEDA) report, which was prepared by the Army's 902nd Military Intelligence Battalion.

The report states that Tenenbaum had admitted revealing classified information to the Israelis. The report prompted the FBI to conduct a preliminary inquiry. That allows the FBI to investigate people who are suspected of espionage for up to four months where no documents, witnesses or other evidence exists to support opening a full investigation. The FBI ended the preliminary inquiry in 1992 on the grounds Tenenbaum had not committed any illegal acts on Israel's behalf.

The co-worker backed off from his initial allegations when the FBI reinterviewed him in 1994, according to documents cited in Tenenbaum's appellate brief, and the FBI decided to end a second preliminary inquiry of Tenenbaum.

But the accusations continued to dog Tenenbaum through 1998. Subsequent Army investigations focused on Tenenbaum being Jewish and speaking Hebrew. These investigations were based upon what the Army calls espionage indicators; another reason was that Tenenbaum had visited Israel, according to Tenenbaum's appellate brief.

Tenenbaum's appellate brief states that he discovered this information by filing Freedom of Information Act requests and in the legal discovery process in his U.S. District Court case. He received documents from the Department of Defense through at least June 2000.

His brief claims, "Even key Army officials who played primary roles in the underlying events of this case have admitted that Tenenbaum's being an Orthodox Jew was a driving factor in accusing him of espionage" (arguing deposition testimony of Special Agent Steve Twynham of the 902nd Military Intelligence Battalion and Special Agent Robert Riley of the Defense Security Service [DSS]).

According to Tenenbaum's brief, "Twynham also testified that Tenenbaum's being Jewish fit a profile for espionage-related activity. This testimony matches [John] Simonini's [TACOM's director of intelligence and counterintelligence] sworn statement to the DSS which claims that Tenenbaum's religious and ethnic background fit 'a classic profile' warranting security concerns."

Tenenbaum's appellate brief claims a Defense Department confidential document, circulated in late 1995, warned the military and its contractors that Jewish ethnicity was a counterintelligence concern.

Raising Suspicions

"I'd traveled to Israel three times for the government," said Tenenbaum in an interview. "They said I traveled to Israel on a non-American air carrier [Israel's El Al]. The rule is that you have to travel on an American carrier when you go overseas. So they said I'd violated regulations. What they failed to mention is that I had written permission [from a supervisor].

"There was also an issue because I didn't stay in the same hotel as other Americans in my travel group. That's because I have a different kashrut [kosher observance] level, and I wanted to stay near shuls, not at a five-star hotel like everybody else. So they said I was setting myself apart.

"Why should I be more suspected than anybody else?" said Tenenbaum. "I had to prove my innocence. They weren't interested in finding the truth. They wanted to find guilt."

The appeal prepared by Tenenbaum's team at Morganroth and Morganroth states, "Until 1992, Tenenbaum's Jewish background was an asset, which TACOM used to benefit its U.S.-Israeli programs by having Tenenbaum work on such projects. The Army's actions against Tenenbaum began at least on the day he was nominated to participate in the Scientists and Engineers Exchange Program on July 22, 1992, whereby Tenenbaum would be sent to Israel to work for the U.S. Army in conducting research with Israel.

"This demonstrates that they [the allegations] were motivated by anti-Semitism and continue through today," the appeal claims. Tenenbaum's brief states that handwritten notes taken at a meeting at TACOM between the FBI and Army personnel specifically use the phrase "anti-Jewish sentiment" to describe the circumstances surrounding the espionage allegations against Tenenbaum.

According to Tenenbaum's appellate brief, which refers to depositions made under oath and other sworn statements, TACOM employees claimed, "Anything we tell Tenenbaum, he tells the Israelis." Tenenbaum, referred to as "our little Jewish spy," was frequently compared to Jonathan Pollard. Tenenbaum's legal briefs detail how his colleagues, despite explanations by one of his supervisors, believed that Tenenbaum left early on Fridays to go on vacation rather than observe Shabbat.

No Comment

Telephone messages left by the Jewish News for Tenenbaum's supervisors and Department of Defense counterintelligence officers at TACOM were not returned. An Army media liaison officer said it was against Army policy to comment on a case still pending in the courts.

The Army's appellate brief is expected to be filed during June. But prior defense arguments have not responded directly to Tenenbaum's religious discrimination claims - contending instead that such claims are barred because he failed to file them within 45 days of their occurrence, as required.

Specifically, the Army contends that any religious discrimination that Tenenbaum now alleges is the mere effect of past alleged discrimination - not part of a continuing pattern against him. The Army further contends that the 45-day filing deadline should not be extended because none of its actions prevented Tenenbaum from becoming aware of possible religious discrimination against him. The U.S. District Court accepted this argument and dismissed Tenenbaum's lawsuit last October.

The Army also maintains that Tenenbaum's religious discrimination claims should not be heard by the courts at all because they involve issues involving his security clearance. The Army contends that security clearance issues are matters of national security, which are best left to the executive branch, regardless of whether or not the Army has committed violations against a federal employee.

In this regard, Tenenbaum did file an administrative appeal of his security clearance revocation, and an administrative law judge completed hearing arguments in February. The judge's recommendation to a federal panel is expected as early as June. Tenenbaum's attorneys say the panel's final verdict should be handed down later this year.

The Pressure Intensifies

Tenenbaum's appellate brief claims he was subjected to extreme anti-Semitic taunts and provocation by an examiner while undergoing a lie-detector test on Feb. 13, 1997. The test was administered to Tenenbaum, the documents allege, as part of a ruse to convince him to upgrade his security clearance to top secret.

Tenenbaum's appellate brief says he was asked by Albert Snyder, the polygraph operator, to confess to inadvertently releasing classified information, but he "refused because he had done nothing wrong." At that time, Tenenbaum was notified that he had been suspended from TACOM. According to testimony cited in his appellate brief, members of TACOM, the Defense Department Security Service, the 902nd Military Intelligence Battalion and the FBI attended a presentation by the 902nd in October 1996 where Tenenbaum was labeled a spy.

Tenenbaum's brief states, "On Jan. 22, 1997, [John] Simonini [TACOM's director of intelligence and counterintelligence], in a sworn statement to the DSS, alleged that Tenenbaum confessed to disclosing classified information to the Israelis at the July 16, 1996 meeting." In an interview, Tenenbaum vigorously denies that he made any type of confession. When Tenenbaum left his office on Feb. 14, 1997, federal agents seized his computer; TACOM police in the parking lot asked for his identity badge and used it to scrape off the parking permit on his car. However, no one searched his briefcase for sensitive documents.

On Saturday, Feb. 15, 1997, Tenenbaum said he knew there was a good chance that agents would search his house. In the middle of Shabbat lunch, seven or eight federal agents descended upon his home, according to his appellate brief and an interview with Tenenbaum.

Harassment?

In an interview, Tenenbaum said the lead FBI agent told him, "I have no idea what I'm doing here." But the agents came in and turned his house "upside down." He said his daughter, who was then 5, still is troubled by the ordeal.

"She hears someone come to the door and if she doesn't know them, she starts to scream, "Don't open the doors," Tenenbaum said.

He said the agents "did not act like storm troopers. They could have made us all lay on the floor under gunpoint. They asked where things were. They took the children's drawings, music books - things they thought might contain a code."

The next day, agents began following him in their cars. At one point, Tenenbaum said, six cars with two agents in each vehicle followed him. His wife Madeline also was followed.

From Feb. 14, 1997, until July 10, 1998, Tenenbaum was under a full-field FBI criminal investigation for espionage, according to testimony of FBI Special Agent James Gugino cited in Tenenbaum's appellate brief. For more than three months of this period, Tenenbaum was placed under 24-hour surveillance, which ended when, according to his appellate brief, Tenenbaum's computer files revealed no evidence of espionage.

On Feb. 3, 1998, in a letter sent out under the name of Saul Green, who at the time was the U.S. attorney for the Eastern District of Michigan, Assistant U.S. Attorney Michael Liebson wrote to FBI headquarters in Washington and notified the agency that he declined to prosecute Tenenbaum because there was no evidence on which to indict him.

The notification commended the performance of the FBI agents and stated, "This investigation was exceptionally thorough ... there is no question that if evidence existed which would prove this case, then these agents would have found it."

Despite that letter, the FBI continued the investigation. According to Tenenbaum's appellate brief, as of April 10, 1998, the FBI had not developed any evidence of espionage or false swearing.

Tenenbaum was permitted to return to work on April 20, 1998. His court appeal says the FBI did not officially close its investigation until July 10, 1998 - 17 months after it was launched.

In April 1998, Tenenbaum notified the Army of his intent to sue for religious discrimination. He filed that suit in October 1998. His security clearance was revoked on Nov. 17, 1998.

Tenenbaum's appellate brief says the Army, through at least July 24, 2000, listed his name on the Internet as a spy. Tenenbaum told the Jewish News that while browsing the 902nd Military Intelligence Battalion's Web site, he saw his name listed as a spy who had worked at TACOM. Tenenbaum was the only person listed on the page that had not been charged, convicted or fined for espionage, he says. Tenenbaum is bitter about what he describes as the FBI's "abuse of power" during the surveillance period. Children in his Southfield neighborhood would tell him, "Mr. Tenenbaum, there's another car waiting for you parked over on 10 Mile Road."

"It was like living in the Stalin regime," said Tenenbaum in an interview. "Every time my kids were outside, [the FBI] would drive slowly by the house."

They never identified themselves, he added.

Neighbor Support

Tenenbaum's neighbor Jerry Abraham, an attorney, told the Jewish News, "After seeing the surveillance around the clock in front of his [Tenenbaum's] house, I decided I would monitor the situation. It was getting way out of hand - this is a neighborhood where Holocaust survivors live.

"So I had a meeting with Saul Green in his office and advised him of my concern. I told him I had a problem with the blatant attempt to harass David and the rest of the neighborhood."

But the problem continued. "They were still in the neighborhood. And then they were following me," Abraham said. "Once, I had three or four cars follow me. I think they were just trying to intimidate me."

That same night, at 11 p.m., there was a knock at Abraham's door. He said he opened it to find three officers from the Southfield Police Department. "They started making threats," Abraham said. "'You better stop what you're doing,' they said. "What are you talking about?" I asked. 'You know what we're talking about. If you continue, we'll take you in and book you,' said the officers. I told them I knew my rights, and they left," said Abraham.

Another neighbor, Simon Kresch, also an attorney, took pictures of the FBI vehicles. He said one agent told him, "He [Tenenbaum] is in trouble. Now you're in trouble."

Kresch says the FBI then followed him to the Southfield police station and waited in the parking lot while he made a formal complaint. "They [the FBI] tried to intimidate me," he said. No action was apparently taken about the complaint, said one of Tenenbaum's attorneys, Daniel E. Harold of Morganroth and Morganroth.

Jewish News calls to Saul Green seeking comment were not returned prior to his leaving office as U.S. attorney on May 1.

Southfield Police Chief Joe Thomas said the case was brought to the attention of his department by the FBI to ensure that the police knew there were FBI agents conducting a surveillance operation. "We did not have an active role," said Thomas.

He denied that any of his officers ever made a threat against Abraham. "If a police officer tells you something you don't want to know, it doesn't constitute a threat," said Thomas.

Asked about the complaint filed by Kresch, Thomas said: "If someone had a complaint about the FBI agents, we told them to contact the FBI. It wasn't our investigation."

Neighbor Matthew Kamins has known Tenenbaum since 1973. When the FBI surveillance began, Kamins contacted Chief Thomas and the FBI to protest. Kamins also spoke with senior staff members of U.S. Sen. Carl Levin. He said he called Michigan's senior senator to protest the FBI surveillance. "I talked to them quite a bit, but I didn't get very far. But I tried," he said.

Official Policy

Last October, David Zwiebel, executive vice president of government and public affairs of Agudath Israel of America, a New York-based national organization representing Orthodox Jewry, wrote then-Defense Secretary William S. Cohen about Tenenbaum's plight and expressed concern about religious profiling.

His letter followed the FBI's well-publicized labeling of Dr. Wen Ho Lee, a Taiwanese American scientist working at the Los Alamos, N.M., nuclear laboratory, as having been a spy for China, although no evidence to prove the allegation ever surfaced.

Assistant Secretary of Defense Arthur L. Money, whose responsibilities included intelligence, replied for Cohen on Nov. 6. He wrote Zweibel that while he could not comment upon the specifics of the case because of the pending civil action, "all DoD [Department of Defense] personnel who hold security clearances are subject to periodic background investigations. These investigations follow guidelines applicable to all Executive Branch agencies and focus on the individual's trustworthiness and reliability; they do not allow investigation based on race, religious affiliation or political views or activities.

"They are conducted at prescribed intervals or when allegations of behavior or conduct, which might bring the individual's trustworthiness or reliability [into question], are received. I would expect Mr. Tenenbaum to be treated no differently than any other cleared DoD employee in this regard.

"I can assure you that the Department does not target individuals for investigation by evaluating their religious affiliations. I am aware of no counterintelligence profile to single out anyone based on religious observance," wrote Money.

Tenenbaum said he believes a congressional investigation into his case is warranted. Tenenbaum attorney Harold said they were never able to coordinate a meeting with Sen. Levin. Terry Andringa, Levin's press secretary, said the office offered to meet with Tenenbaum in 1997, but "neither Tenenbaum nor his lawyer [at the time] ever followed up with the office to schedule an appointment."

Did Tenenbaum lose any friends over the spy charges? "Sure," he replies. "People did not want to be seen with me at work. One of them told me, 'I don't want them to do to me what they did to you.'" But Tenenbaum said no one who was Jewish broke with him.

According to testimony by Paul Barnard, TACOM's chief of counterintelligence, quoted in Tenenbaum's filings, "this is the only case at TACOM in which an employee's ethnic and religious background have been used to support espionage allegations and a decision to revoke the employee's security clearance."

Meanwhile, David Tenenbaum continues to work at TACOM while waiting for the slow legal process of his federal appeal to wind its way through the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.