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A Waiting Game for Justice

Binyamin Rose

An Orthodox Jew from Detroit is awaiting an appeals court decision to find out if he will be able to sue the Department of Defense for monetary damages thirteen long years after false accusations of spying for Israel were leveled at him. Mishpacha’s news editor Binyamin Rose has been following the case of David Tenenbaum since the Defense Department’s inspector general admitted two years ago that Tenenbaum was a victim of discrimination.

Wednesday, July 28, 2010

There is no telling when the three-judge panel at the US Sixth Circuit Court of Appeals will rule on the Tenenbaum case, but the fact that the judges gave credence to the defense team’s contentions is a new and welcome development, says Mr. Tenenbaum’s attorney, Dan Harold.

“We were going in there expecting a trench war on the facts of the case and instead, basically, the judges and the attorney for the government agreed we’re looking at a situation where there was anti-Semitism,” says Mr. Harold of Morganroth & Morganroth, PLLC.

Judges Karen Nelson Moore, R. Guy Cole, and Alice Batchelder are being asked to determine if Mr. Tenenbaum is entitled to sue the government under a “Bivens” action — named after a 1971 case in which the US Supreme Court issued a landmark ruling that a federal employee could indeed sue his employer for monetary damages if the government had violated his rights as provided by a specific constitutional amendment. In the Bivens case, the nation’s highest court ruled that the government had violated his fourth amendment rights against unreasonable searches and seizures.

Mr. Tenenbaum’s experience was virtually identical when FBI agents raided his Southfield Michigan home on Shabbos in February 1997, while he and his family were having their Shabbos seudah. At the time, Mr. Tenenbaum was an engineer in the US Army Tank-Automotive and Armaments Command (TACOM) and was helping to devise a system to protect US troops fighting in Afghanistan and Iraq from armor piercing weaponry. A suspicious, or perhaps jealous, coworker, who knew Mr. Tenenbaum was Jewish and had probably heard him conversing in Hebrew with Israeli experts collaborating on the project, filed a report against Mr. Tenenbaum under Army Regulation Subversion and Espionage Directed Against the US Army (SAEDA).While the FBI investigation was dropped later that year for lack of evidence, it took almost six years for Mr. Tenenbaum’s security clearance to be restored and he has been shunned on the job ever since.

Two years ago, Mr. Tenenbaum won partial vindication when the inspector general of the US Department of Defense issued a report maintaining that he was a victim of religious discrimination. Mr. Tenenbaum subsequently filed a civil suit in the US District Court to obtain compensation for the damage inflicted on his career and personal life during that time, but the court dismissed his case, accepting the government’s contention that it would be impossible for them to mount a defense without revealing state secrets. The current Appeals Court action is intended to overturn this ruling and force the case to go back to the District Court and compel the government to mount a defense without hiding behind the state secrets provision.

“We’ve already proven there were no state secrets,” says Mr. Tenenbaum in a telephone interview from his Southfield home. Mr. Tenenbaum told Mishpacha that at the most recent appellate court hearing held last month in Cincinnati, one of the judges remarked to the government attorney, ‘what about some sort of remedy?’ The government attorney responded, ‘What sort of remedy should there be? He’s already been vindicated.’

“And I was thinking,” says Mr. Tenenbaum, “that’s like having a doctor cut off your arm and put it back on and then he says, ‘I reattached it for you, what do you want?’ 


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