INSIDE WASHINGTON: Army defends spy case

Richard Lardner - Associated Press - Jan 12, 2009

WASHINGTON (AP) -- The Army's top lawyer is disputing a critical government report that concluded faith instead of facts drove the investigation of a civilian employee wrongly suspected of spying for Israel.

The report by the Pentagon inspector general found the employee, David Tenenbaum, an Orthodox Jew, was targeted by counterintelligence agents because of his religion. The conclusion vindicated Tenenbaum, who was never charged with a crime and has spent a decade trying to clear his name.

The case demonstrates how difficult it can be to reconcile suspicion and reality within the murky counterespionage world.

Indeed, the Army still maintains it was right to go after Tenenbaum. In a 23-page response to the inspector general's findings, Army General Counsel Benedict Cohen says that report is filled with errors. It was Tenenbaum's suspicious behavior and, later, his "deceptive responses" during a lie detector test "that led the Army to conclude he may have been passing classified information to Israel," according to the response, obtained by The Associated Press.

The investigation of Tenenbaum played out during the mid-1990s, when the shock of major spy scandals was still being felt. In 1985 - dubbed the "Year of the Spy" - more than half a dozen agents were arrested. Among them was Jonathan Pollard, a civilian intelligence analyst for the Navy who was sentenced to

life in prison

By 1995, the Defense Investigative Service, now the Defense Security Service, was warning that Israeli intelligence officers were trying to exploit the "strong ethnic ties to Israel present in the United States." In that environment, Tenenbaum, who regularly wore a yarmulke and would eat out only in kosher restaurants, became a bull's eye.

Missing from the picture was evidence he had done anything wrong. Like Steven Hatfill, the government scientist wrongly implicated of masterminding the 2001 anthrax attacks, and Richard Jewell, the security guard falsely accused of the bombing at the 1996 Summer Olympics in Atlanta, Tenenbaum's guilt was presumed.

Even with the benefit of hindsight, the Army still draws a hard line. There was no religious discrimination, Cohen argues. With a few minor exceptions, the inquiry was done by the book. Tenenbaum is still an engineer at the Army's Tank-automotive and Armaments Command near Detroit, Cohen adds, proof that he has been treated "fairly and consistently."

Cohen's stance in the wake of the inspector general's withering appraisal has outraged Jewish groups. The Army needs to acknowledge it was wrong, they say, and restore Tenenbaum's reputation.

"I think this is an attempt at covering their tracks," said Malcolm Hoenlein, executive vice chairman of the Conference of Presidents of Major American Jewish Organizations in New York. "Why can they ruin a person's life on no grounds?"

It is unlikely Tenenbaum will ever get an apology, however. The back and forth indicates Army officials in Washington are more concerned about blocking any future lawsuits he might be contemplating than repairing the personal damage caused by the inquiry.

"It's a legal strategy," Scott Silliman, a law professor and executive director of the Center on Law, Ethics and National Security at Duke University, said of Cohen's remarks. "To accept the inspector general's report opens them up to litigation."

Cohen's response is dated Sept. 29 but has not been made public. Cohen declined to be interviewed. Army spokesman Paul Boyce said the response "speaks for itself."

After the polygraph in February 1997, a full-blown espionage investigation was launched. Tenenbaum's access to classified information was suspended. He was put on administrative leave. FBI agents seized his work computer and raided his house on a Saturday, the Jewish Sabbath. He and his family were under surveillance for almost two years.

"I cannot describe the feeling," Tenenbaum said in an AP interview. "It was so horrendous. I would wish it on no one."

Tenenbaum, 51, the son of a Holocaust survivor, has worked at the Army command north of Detroit since 1984. One of his primary duties was to design and develop safer combat vehicles. That meant finding the best armor and survival gear available in the U.S. or another country. As a result, he was in frequent contact with military engineers from other nations.

Fluent in Hebrew, Tenenbaum interacted frequently with the Israelis, meetings his supervisors encouraged. Still, the connections fueled suspicions. The first of half a dozen espionage allegations against Tenenbaum was filed by a co-worker in 1992. Another came in 1996 after he returned from a ballistics symposium in Israel and was said to be evasive about whom he talked to and where he went.

The case against Tenenbaum collapsed, however, after the Justice Department decided there was insufficient evidence. The inspector general's report notes that two of the co-workers who thought Tenenbaum was a traitor changed or "softened" their allegations under questioning.

But the Army still considered Tenenbaum a security risk. His security clearance, already suspended, was revoked in 2000. He was back at work, but not allowed near any significant projects. And he was told to stay away from the Israelis.

Tenenbaum filed a religious discrimination suit in federal court. It was dismissed after government attorneys successfully argued they would be forced to hand over sensitive information during the proceedings that, if made public, could damage intelligence gathering methods. His appeal failed and the U.S. Supreme Court refused to take his case.

Tenenbaum turned to his senator, Carl Levin, for help. In March 2006, Levin, D-Mich., the chairman of the Senate Armed Services Committee, asked the inspector general's office for a review.

The inspector general's report, released in July, didn't mince words: Tenenbaum was "subjected to unusual and unwelcome scrutiny because of his faith and ethnic background, a practice that would undoubtedly fit a definition of discrimination."

He was tricked into taking the polygraph exam, the report said, so he could be questioned about possible espionage.

Tenenbaum said the polygraph examiner screamed at him and called him a spy and a liar during the six-and-a-half hour session. "I've done other Jews before and I've gotten them to confess, too," the examiner said at one point, according to Tenenbaum.

The examiner denied Tenenbaum's account. And he said Tenenbaum acknowledged giving secret information to Israeli officials over a 10-year period.

The session wasn't recorded and no one else was in the room, so it was one person's word against another's, according to the inspector general.

Cohen, the Army general counsel, says Tenenbaum wasn't lured into taking the polygraph. Tenenbaum wanted his clearance level increased so he could work on more projects. Using a polygraph is often the best way to settle concerns about an employee's trustworthiness.

The decision to revoke Tenenbaum's clearance was reasonable even after the Justice Department dropped the case, Cohen says. A prosecutor has to prove probable cause to get a criminal indictment. But questionable behavior is enough to deny a clearance, he says.

In 2003, Tenenbaum's security clearance was not only restored, it was upgraded to top secret, a move Tenenbaum says confirms the case against him was baseless. Cohen disagrees, saying the decision doesn't negate the earlier suspicions.

As for the polygraph examiner's alleged misconduct, Cohen says the inspector general's own review found no proof it happened. Nor does the report cite any rule that requires a third party be present during a lie detector test.

In early October, Tenenbaum's lawyers sent Levin an eight-page statement criticizing the Army for "irresponsibly and reprehensibly attempting to defend the actions perpetrated against (Tenenbaum) by misrepresenting and mischaracterizing the facts of this case."

Tenenbaum still has his Army job, they add, but he was treated as a pariah and given little to do. He has been denied promotions and cannot get suitable work in the private sector because of the cloud hanging over him, they say.

Mayer Morganroth, one of Tenenbaum's lawyers, told the AP the Army needs to compensate Tenenbaum for what he's been through. He would not cite a dollar figure, but said it would have to be a "very sizable amount."

"The reason they went after him is because he's a Jew," Morganroth said.