Supreme Court Refuses Case of Alleged Religious Discrimination

Matthew E. Berger - JTA - November 30, 2004

A Jewish Army engineer who claims he suffered religious discrimination won't get his day in court.

The U.S. Supreme Court on Monday rejected the case of David Tenenbaum, who claimed he was subjected to 11 years of investigations and discrimination because he was Jewish and was feared to be spying for Israel.

The high court agreed with lower federal courts that dismissed the case, saying the U.S. government could not properly defend itself without revealing sensitive national security information.

The Tenenbaum case made headlines in 1997, when Tenenbaum allegedly admitted in a polygraph test that he had inadvertently shared classified documents with Israeli military officials, a charge Tenenbaum's lawyer disputes. The FBI and U.S. Army investigated Tenenbaum several times, even raiding his home on the Sabbath.

Some saw the case as a reverberation of anti-Israel and anti-Jewish bias in government following the conviction of Jonathan Pollard, a U.S. Navy analyst sentenced in 1986 to life in prison for spying for Israel.

The latest ruling suggests that those accused of unlawful ties with Israel may have little recourse.

After Tenenbaum sued several federal agencies in 1998, U.S. officials claimed they couldn't defend the government without divulging classified materials.

Later, the current deputy secretary of defense, Paul Wolfowitz, who is Jewish, wrote that revealing material relevant to Tenenbaum's case could cause "serious damage to the national security."

A District Court ruled for the government in 2002, and the Sixth Circuit Court of Appeals concurred in May.

Tenenbaum's lawyer says the government is using the state-secrets doctrine - which allows the government to withhold information from a court case when disclosure would risk national security - to mask religious discrimination.

"Every time you want to hide your misbehavior all you have to do is say it's a secret, and you get away with it," Mayer Morganroth said.

But a spokesman for the U.S. Attorney's Office in Detroit said both courts received the information the government wanted to keep secret, and agreed with Wolfowitz.

"It's not a unilateral, executive act," Peter Caplan told The Associated Press. "The courts play a role in the case and are able to see the information and evaluate whether the government is turning square corners."

Morganroth said Tenenbaum was investigated for 11 years and was falsely accused of spying for Israel because of his close ties to Israeli officials in Michigan.

Tenenbaum, who is an Orthodox Jew and is fluent in Hebrew, remains an engineer at the U.S. Army Tank Automotive and Armaments Command in Warren, Mich.

After the investigations were concluded, he received "top-secret" clearance. Yet some co-workers "still think of him as a spy and still treat him like one," Morganroth said.

American Jewish groups have been reluctant to get involved in the case, acknowledging the legitimacy of the state-secrets doctrine.

"It's somewhat troublesome, but there may not be any way around it," said Marc Stern, the American Jewish Congress' general counsel. "The question is how to make sure the provision is not used improperly, to cover religious discrimination."

Morganroth said his only remaining option is to seek relief through Congress, saying Sen. Carl Levin (D-Mich.) had expressed an interest in drafting a bill that would provide Tenenbaum with compensation and would address problems of religious discrimination in military classification.

Levin's office said Tuesday that it had been contacted by Tenenbaum's attorney and would be looking into the matter.