The David Tenenbaum Case: A Long and Winding Road

This past May we obtained and posted a cache of internal documents from the Pentagon's Inspector General's Office that raised a number of troubling questions about the treatment meted out to a civilian Army engineer, David Tenenbaum.  POGO became interested and involved because an assertion by an Army lawyer that the case involved state secrets prevented Tenenbaum from being able to proceed in a civil lawsuit.  Further raising our eyebrows and concern, that same lawyer later went to work for the DOD Inspector General as his general counsel, and worked on the case without revealing his earlier involvement.             

Tenenbaum, who is Jewish and speaks Hebrew, frequently traveled to Israel and met with Israeli experts on defense issues.  But some of his colleagues and supervisors began to suspect him of spying for Israel. Several espionage probes launched by the Army, and an FBI investigation that ultimately resulted in no charges, were all targeted at Tenenbaum.

In 2006, Sen. Carl Levin (D-MI), chairman of the Senate Armed Services Committee, requested that the Defense Department's Office of Inspector General (DOD/OIG) conduct an independent review of the matter.  That review concluded that Tenenbaum had been targeted due to his religion and ethnicity, and that had he not been Jewish, he would not have been investigated.  But the documents obtained by POGO revealed that lawyers within the OIG were attempting to rewrite that conclusion in order to remove any suggestion of discriminatory treatment.

We are pleased to report that the DOD/OIG has now sent POGO Executive Director Danielle Brian a letter and final report on its investigation (A Pentagon lawyer familiar with the case reports that "Former Inspector General Kicklighter would not leave until this was done, personally supervising the senior officials preparing his final text, down to the last day of his authority in office").  The report concludes that:

"Mr. Tenenbaum was the subject of inappropriate treatment by Department of the Army and Defense Investigative Service officials. Mr. Tenenbaum's religion was a factor in the decision. But for Mr. Tenenbaum's religion, the investigations would likely have taken a different course. We believe that Mr. 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, whether actionable or not."

But this matter is far from concluded.  Tenenbaum now has the finding of discrimination, but has yet to receive a remedy for all the turmoil visited upon him and his family.  And meanwhile, POGO has a response that fails to address a significant issue we raised about the lawyers in the DOD/OIG: the IG's lack of dedicated, unencumbered legal counsel within his office.

The internal DOD/OIG documents obtained by POGO revealed that the IG's counsel, who as mentioned above had previously worked for the Army and had handled aspects of the Tenenbaum matter, had failed to recuse himself or even acknowledge his prior involvement. Once forced to recuse, nevertheless he had allowed his subordinates to handle the matter--again posing a clear conflict of interest and potential violation of professional responsibility rules.

Since last fall, POGO has been conducting a major review of the Inspector General law, the IG system, and how to improve it. In our first report, Inspectors General: Many Lack Essential Tools for Independence, we found, among other conclusions, that it is an absolute necessity for all IGs to have access to independent legal advice, free and clear of their agencies' or departments' general counsels.

Regrettably, the DOD/OIG does not have such counsel; rather, his attorney answers to an agency that is headed by the department's general counsel, who answers to the Secretary of Defense.  POGO found that conflicts of interest involving the IG's current counsel contributed to delay and obstruction in the Tenenbaum matter.  Further, because there are no rules of professional responsibility for the attorneys within the OIG, some of those lawyers may have violated the rules of the professional state bars to which they have been admitted regarding actions taken while dealing with the Tenenbaum matter.

Legislation now pending in Congress--in both the IG reform bill and the defense authorization bill--would require all IGs, including that of the Pentagon, to have their own dedicated legal advisers.  We urge Congress to enact these important provisions as quickly as possible.

-- Beverley Lumpkin

Comments

[john stace]

Hello,

I want to see the 62 page report and letter you refer to.

I attempted to open the hyper-link but was unsuccessful. Could you please advise how I can do this ?

thanks,

John

[Ken Huffman]

It appears that you folks at POGO are true believers in the notion of a firewall of integrity between OIG legal counsel and agency general counsel. That's rich. IG's often want their counsel to work hand in hand in glove with agency general counsel. IG's seek independent counsel to insure they have full time attorneys devoted to protecting their parochial interests. Independent counsel for the OPM IG meant attorneys working nearly full time for five years to defend their boss against disclosures of fraud and malfeasance while designing retalliatory measures against the whistleblower. Who in are you well meaning suckers at POGO talking with to develop your fanciful and back assward ideas about how IG's really work? Just pathetic - dream on.