Special Report / JN Exclusive

SEEKING JUSTICE

High-Level Cover-Up?

"Tenenbaums deserve their day in court," says Pentagon official.

Judith Doner Berne

Special to the Jewish News

A

high-ranking Pentagon official
has told the Jewish News that
David Tenenbaum, the Orthodox
Jewish civil engineer whom the U.S. Army
falsely accused of spying for Israel in
1997, was denied his day in court because
it would embarrass the Army.
The 2002 federal civil rights case that
Tenenbaum and his wife, Madeline,
brought against his Army and Department
of Defense (DOD) accusers for religious
discrimination was dismissed when the
Army claimed state secrets would be com-
promised. Tenenbaum is employed at the
Army's Tank-Automotive and Armaments
Command (TACOM) in Warren.
It wasn't until after his accusers had
gone through the deposition process that
former Attorney General John Ashcroft
and former Deputy Secretary of Defense
Paul Wolfowitz submitted affidavits to
establish the state secrets defense.
The investigation and charges "were
embarrassing for the Army,' accord-
ing to the Pentagon official, who has

12

July 15 • 2010

intelligence oversight responsibilities
and has reviewed Justice and Defense
Departments' records. He requested ano-
nymity at the beginning of a telephone
interview with the JN because he is not
authorized to speak on the matter.
"We analyzed all the Army's material
that they gave us," the Pentagon official said.
"He [Tenenbaum] is a strange fit for the
Department of Defense. He's very entrepre-
neurial. Here's a person who's pushing the
envelope. They ganged up on him. That's
reason enough to go ahead [with the lawsuit]."

A Shot At Winning
"The state secrets defense is not there to
protect people from embarrassment:' the
Pentagon official said."They [the Tenenbawns]
do deserve to have their day in court. I
think they have a good shot at winning."
An Executive Order (No. 12958, Section
1.7a) that governs all federal agencies
states: "In no case shall information be
classified in order to: (1) conceal viola-
tions of law, inefficiency, or administrative
error; (2) prevent embarrassment to a
person, organization, or agency; ... or (4)
prevent or delay the release of information

that does not require protection in the
interest of national security"
A second lawsuit, that was argued June
15 before the U.S. Sixth Circuit Court of
Appeals in Cincinnati, targets Ashcroft,
Wolfowitz and the "five instigating defen-
dants" for improperly invoking the state
secrets defense.
The case, which seeks damages of $200
million for the Tenenbaums plus interest,
costs and attorney fees, relies on a July
13, 2008 Department of Defense Office of
Inspector General (OIG) final report that
found: "Mr. Tenenbaum was the subject of
inappropriate treatment by Department
of the Army and Defense Investigative
Service officials ...
"We believe that Mr. Tenenbaum was
subjected to unusual and unwelcome scru-
tiny because of his faith and ethnic back-
ground, a practice that would undoubtedly
fit a definition of discrimination, whether
actionable or not',' the report concludes.
The DOD Office of Inspector General had
no official comment when asked recently
about the Tenenbaum case."We can't say
anything while it's before the courts',' said
Gary Comerford, OIG spokesman.

Attorneys Optimistic
"I think we're going to win the appear,'
predicted Mayer Morganroth, founding
attorney of Morganroth & Morganroth in
Birmingham, as he prepared to represent
the Tenenbaums before the appeals court.
"We prepared for weeks and months:' said
Daniel E. Harold, Morganrottis co-counsel, after
the appellate hearing. "Yet right off, the judges
acknowledged there was religious discrimi-
nation, and the U.S. attorney conceded that"
Indeed, in a transcript of the court
proceedings one judge said, "This panel is
prepared to say your client was wronged:'
However, the judge added, "But that
doesn't mean that you win this case."
At issue is whether the courts will
examine the classified materials to deter-
mine whether or not the state secrets
defense was properly used.
"After 13 years of lying to the courts,
the government attorney finally conceded
that my family and I were the victims of
anti-Semitism," Tenenbaum said. "Yet the
government is still hiding behind alleged
state secrets ... I was not doing anything
that was classified."
The appeal follows last year's dismissal