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US District Court-Southern District of New York
United States of America v. Ben-Ami Kadish, Defendant: Sealed Complaint. New York: April 21, 2008.
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Count 1
Approved: [signed
Before: Douglas F. Eaton, US Magistrate Judge, Southern District of New York
Violation of 18 U.S.C. §§ 371, 794 and 1001, 1512
County of Offense: New York
Southern District of New York, ss.: Lance A. Ashworth, being duly sworn, deposes and says that he is a Special Agent of the FBI (“FBI”), and charges as follows:
(1) From at least in or about 1979, through and including in or about 1985, in the Southern District of New York and elsewhere, Ben-Ami Kadish, the defendant, and others http://www.wvwnews.net/story.php?id=4360, unlawfully, willfully, and knowingly combined, conspired, confederated, and agreed together and with each other to communicate, deliver and transmit, directly and indirectly, to a foreign government, faction
and party thereof, and to representatives, officers, agents, employees, citizens and subjects thereof, documents and information relating to the national defense, with the intent and reason to believe that they would be used to the injury of the US and to the advantage of a foreign nation, specifically, the http://www.wvwnews.net/story.php?id=4411, contrary to Title 18, US Code, Section 794(a).
Count One: http://www.wvwnews.net/story.php?id=4357.
(2) In furtherance of the conspiracy and to effect the illegal object thereof, the following overt acts, among others, were committed in the Southern District of New York and elsewhere: (a) On numerous occasions from in or about at least 1979 through in or about 1985, a co-conspirator not named as a defendant herein (“CC-1”) provided Ben-Ami Kadish, the defendant, with lists of classified documents related to national defense (the “Classified Documents”) for Kadish to obtain from the US Army’s Armament Research, Development, and Engineering
Center at the Picatinny Arsenal in Dover, New Jersey(the “Arsenal”). (b) On numerous occasions from in or about at least 1979 through in or about 1985, Kadish removed the Classified Documents from the Arsenal and took the Classified Documents to his residence in New Jersey (the “Residence”). (c) On numerous occasions from in or about at least 1980 through in or about 1985, CC-1 called Kadish from his (CC-1’s) residence located in the Riverdale Section of the Bronx in order to arrange the Visits. (Title 18, US Code, Section 794(c).)Count Two.
(3) From in or about 1979 through and including on or about 3/20/2008, in the Southern District of New York and elsewhere, Ben-Ami Kadish, the defendant, and others known and unknown, unlawfully, willfully, and knowingly did combine, conspire, confederate, and agree together and with each other to commit an offense against the US, to wit, to violate Section 951 of Title 18, US Code.
(4) It was a part and an object of the conspiracy that Ben-Ami Kadish, the defendant, and others known and unknown, unlawfully, willfully and knowingly would and did act in the US as agents of a foreign government, specifically, the Government of Israel, without prior notification to the Attorney General, as required by law, in violation of Title 18, US Code, Section 951.
Count Two: Overt Acts.
(5) In furtherance of the conspiracy and to effect the illegal object thereof, the following overt acts, among others, were committed in the Southern District of New York and elsewhere: (a) On numerous occasions from in or about at least 1979 through in or about 1985, a co-conspirator not named as a defendant herein (“CC-1”) provided Ben-Ami Kadish, the defendant, with lists of classified documents related to national defense (the “Classified Documents”) for Kadish to obtain from the US Army’s Armament Research, Development, and Engineering
Center at the Picatinny Arsenal in Dover, New Jersey (the “Arsenal”). (b) On numerous occasions from in or about at least 1979 through in or about 1985, Kadish removed the Classified Documents from the Arsenal and took the Classified Documents to his residence in New Jersey (the “Residence”).
(c) On numerous occasions from in or about at least 1980 through in or about 1985, CC-1 visited Kadish at the Residence in order to photograph the Classified Documents (the “Visits”). (d) On numerous occasions from in or about at least 1980 through in or about 1985, CC-1 called Kadish from his (CC-1’s) residence located in the Riverdale Section of the Bronx in order to arrange the Visits. (e) On numerous occasions from in our about 1985 through on or about 3/20/2008, Kadish engaged in telephone and email conversations with CC-1. In order to maintain and conceal his status as an agent of the Government of Israel, Kadish did not inform the Attorney General or any other US law enforcement agency about his ongoing contacts with CC-1 and his provision of the Classified Documents to CC-1. (f) On or about 3/20/2008, CC-1 telephoned Kadish, and CC-1 instructed Kadish to lie to US law enforcement agents. (g) On or about 3/21/2008, Kadish lied to FBI agents about his recent communications with CC-1. (Title 18, US Code, Section 371.)
Count Three.
(6) From on or about 3/20/2008 through on or about 3/21/2008, in the Southern District of New York and elsewhere, Ben-Ami Kadish, the defendant, and others known and unknown, unlawfully, willfully, and knowingly combined, conspired, confederated, and agreed together and with each other to knowingly and willfully make a materially false, fictitious, or fraudulent statement or representation, in any matter within the jurisdiction of the executive branch of the Government of the US, contrary to Title 18, US Code, Section 1001(a)(2).
Count Three: Overt Acts.
(7) In furtherance of the conspiracy and to effect the illegal object thereof, the following overt acts, among others, were committed in the Southern District of New York and elsewhere: (a) On or about 3/20/2008, after law enforcement officials (the “Law Enforcement officials”) interviewed Ben-Ami Kadish, the defendant, (the “First
Interview”), in connection with a Southern District of New York Federal grand jury investigation into espionage offenses (the “Grand Jury Investigation”), Kadish received a telephone call from a co-conspirator not named as a defendant herein (“CC-1”), and CC-1 instructed Kadish to lie to the Law Enforcement Officials. (b) On or about 3/21/2008, the Law Enforcement Officials interviewed Kadish again in connection with the Grand Jury Investigation, and during this interview, Kadish stated that he (Kadish) did not speak with CC-1 after the First Interview. (Title 18, US Code, Sections 371 and 1001(a)(2).)
Count Four.
(8) From on or about 3/20/2008 through on or about 4/21/2008, in the Southern District of New York and elsewhere, Ben-Ami Kadish, the defendant, and a co-conspirator not named as a defendant herein (“CC-1”) unlawfully, wilfully, and knowingly combined, conspired,
confederated, and agreed together and with each other to engage in misleading conduct toward another person with intent to hinder, delay, and prevent the communication to a law enforcement officer of information relating to the commission and possible commission of a Federal offense, contrary to Title 18, US Code, Section 1512(b)(3).
Count Four: Overt Acts.
(9) In furtherance of the conspiracy and to effect the illegal object thereof, the following overt acts, among others, were committed in the Southern District of New York and elsewhere: (a) On or about 3/20/2008, after law enforcement officials (the “Law Enforcement Officials”) interviewed Ben-Ami Kadish, the defendant, (the “First
Interview”), in connection with a Southern District of New York Federal grand jury investigation into espionage offenses (the “Grand Jury Investigation”), Kadish received a telephone call from a co-conspirator not named as a defendant herein (“CC-1”), and CC-1 instructed Kadish to lie to the Law Enforcement Officials. (b) On or
about 3/21/2008, the Law Enforcement Officials interviewed Kadish again in connection with the Grand Jury Investigation, and during this interview, Kadish stated that he (Kadish) did not speak with CC-1 after the First Interview. (Title 18, US Code, Section 1512(k).)
The bases for my knowledge and for the foregoing charges are, in part, as follows:
(10) I am a Special Agent of the FBI, and I have been involved in the investigation of the above-described offenses. As set forth more fully below, this Complaint is based, among other things, on my training and experience; my personal participation in this investigation; witness interviews I have conducted; and documents I have reviewed.
(11) Because this affidavit is being submitted for the limited purpose of demonstrating probable cause, it does not include details of every aspect of my investigation. Where I relate statements, conversations, and actions are related in substance and in part, except where otherwise indicated. Similarly, where I describe documents, the content of the documents is related in substance and in part, except where otherwise indicated.
Ben-Ami Kadish.
(12) At all times material to the allegations contained in this Complaint: (a) Ben-Ami Kadish, the defendant, is a US citizen, who was born in Connecticut. From in or about 10/1963 to in or about 1/1990, Kadish was employed as a mechanical engineer at the US Army’s Armament Research, Development and Engineering Center at the Picatinny Arsenal in Dover, New Jersey (the “Arsenal”). (b) In his
capacity as a mechanical engineer at the Arsenal, Kadish received security clearances in order to have access to classified documents and information. Specifically, Kadish received a “Secret” security clearance on 10/22/1963, and maintained that clearance throughout his term of employment with the Arsenal. (c) At no time during his
employment with the Arsenal was Kadish ever authorized, directly or indirectly, to deliver, communicate, or transmit classified information or documents to representatives, officers, agents, employees, subjects, and citizens of the Government of Israel, faction or party thereof.
The Co-Conspirator.
(13) At all times material to the allegations contained in this Complaint: (a) A co-conspirator not named as a defendant herein (“CC-1”) was born in Israel and is a citizen of Israel. (b) During at least in or about the late 1970s, CC-1 was employed at the Israeli Aerospace Industries, then known as the Israeli Aircraft Industries, (“IAI”), in Israel. Since at least in or about the late 1970s, IAI has been a defense manufacturing contractor for the Israeli government. (c) From in or about 7/1980 through in or about 11/1985, CC1 was employed by the Government of Israel as the Consul for Science Affairs at the Israeli Consulate General in Manhattan, New York (the “Israeli Consulate”). While he was employed at the Israeli Consulate, CC-1 resided in the Riverdale section of Bronx, New York (the “Riverdale Residence”). (d) In or about 11/1985, Jonathan Jay Pollard was charged with espionage-related offenses in relation to his having provided classified information to CC-1, among other people. (e) In or about 11/1985, CC-1 left the US and has not returned to the US. (f) CC-1 has never received security clearances in order to have access to any documents and information classified by the US government.
Control of Classified Information and Documents.
(14) Pursuant to Executive Order 12356, as superseded by Executive Order 12958 and amended by Executive Order 13292, (the “Order”), classified information is defined as information in any form that (1) is owned by, produced by or for, or under the control of the US Government; (2)falls within one or more of the categories set forth in Section 1.5 of the Order; and (3) is classified by an original classification authority who determines that its unauthorized disclosure reasonably could be expected to result in damage to the national security. Among the categories of information set out in Section 1.5 of the Order is information concerning military plans, weapons systems, or operations (1.5(a)); foreign government information (1.5(b)); intelligence activities, including intelligence sources and methods (1.5(c)); and foreign relations or foreign activities of the US, including confidential sources (1.5(d)).
(15) The Order mandates that information requiring protection for reasons of national security be classified at one of three levels: “Top Secret,” “Secret,” or “Confidential.” The designation “Top Secret” applies to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security. The designation “Secret” applies to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to national security. Access to classified information at any level may be further restricted through compartmentation in “Sensitive Compartmented Information” (“SCI”) categories. Dissemination of classified information at any levels may be further restricted through caveats such as “Not Releasable to Foreign Nationals” (“NOFORN”).
(16) Classified information, of any designation, may only be shared with persons determined by an appropriate US government official to be eligible for access to classified information, who have signed an approved non-disclosure agreement, and who possess a need to know the
content of the classified information. If a person is not eligible to receive classified information, classified information may not be disclosed to that person.
The Conspiracies.
(17) Based on information obtained from the Arsenal, I have learned that from at least in or about 1970 through in or about 1985: (a) The Arsenal kept a library of documents (the “Library”), which included numerous documents with classified information related to the
national defense of the US. (b) In order to borrow documents with classified information from the Library, the Arsenal required its employees to complete and sign a form called the “Classified Document Accountability Record,” (“CDAR Form”) which listed, among other things, the title and classification of each of the documents being signed out on a given date. The borrower was then given a copy of the CDAR Form. (c) From at least on or about 8/23/1979, through on or about 7/15/1984, Ben-Ami Kadish, the defendant, signed at least 24 CDAR Forms, showing that Kadish borrowed at least 35 classified documents (the “Classified Documents”) from the Library at the Arsenal.
(18) Each of the Classified Documents contained information related to the national defense of the US. For example: (a) One of the Classified Documents contained information concerning nuclear weaponry and was classified as “Restricted Data,” a specific designation by the US Department of Energy, because the document contained atomic-related information (the “Restricted Data Document”). Ben-Ami Kadish, the defendant, was not authorized to view the Restricted Data Document, or to borrow it from the Library because, among other things, his clearance level (i.e., “Secret”) did not permit Kadish to view the Restricted Data Document. (b) Another one of the Classified Documents contained information concerning a major weapons system, i.e., information regarding a modified version of an F-15 fighter jet that the US had sold to another foreign country (the “F-15 Document”). the F-15 Document was classified by the Department of Defense as “Secret” and was further restricted as “NOFORN”, or “Not Releasable to Foreign Nationals.” (c) Another one
of the Classified Documents contained information concerning a major weapons system and a major element of defense strategy, i.e., information regarding the US Patriot missile air defense system (the “Patriot Document”). The Patriot Document was classified by the
Department of Defense as “Secret.”
(19) On or about 3/20/2008, another law enforcement agent and I interviewed Ben-Ami Kadish, the defendant, at an FBI office in New Jersey (the “First Interview”). Kadish stated, in substance and in part, the following: (a) Sometime in the 1970s, after Kadish had begun working at the Arsenal, and while CC-1 was still employed at IAI, Kadish was introduced to CC-1 by Kadish’s brother, who was one of CC-1’s then-co-workers at IAI. Specifically, Kadish and CC-1 met in person in the New York City area (the “Initial Meeting”). (b) At the Initial Meeting, CC-1 did not ask Kadish to provide him (CC-1) with access to any classified documents. In numerous subsequent meetings, CC-1 asked, and Kadish agreed, to provide him (CC-1) with
classified documents that would help protect Israel. (c) Kadish obtained classified documents for CC-1 from the Library at the Arsenal. Kadish did not choose the classified documents that he retrieved from the Arsenal. Rather, CC-1 provided Kadish with lists of specific items to obtain from the Library, which Kadish would then
borrow from the Library. (d) Kadish borrowed the classified documents from the Library by signing CDAR Forms. After borrowing the classified documents from the Library, Kadish would take them back to his office at the Arsenal, put them into his briefcase, and take them
at the end of the work day to the residence in New Jersey where he (Kadish) was then living (the “Residence”). CC-1 would later call Kadish and then travel to the Residence, where CC-1 would take photographs of the classified documents in the basement of the Residence. Kadish knew that he (CC-1) photographed the classified documents in the basement. The next morning, Kadish would take the classified documents back to the Arsenal and return them to the Library. (e) During the First Interview, I showed Kadish classified documents that the FBI had obtained from the Arsenal, including the Restricted Data Document and the F-15 Document. Kadish confirmed that he had borrowed the Classified Documents for CC-1, signed the CDAR Forms to obtain the Classified Documents, and provided CC-1 with access to the Classified Documents. (f) Kadish recognized the Restricted Data Document and confirmed that he knew at the time that he made it available to CC-1 that (1) the Restricted Data Document included atomic-related information; (2) he (Kadish) did not have the requisite clearance nor the necessary need to know in order to borrow the document from the Library; and (3) he (Kadish) had provided CC-1 with access to the Restricted Data Document. (g) Kadish recognized the F-15 document and confirmed that he had obtained the F-15 Document for CC-1 because it had a direct correlation to Israel’s security. (h) In total, Kadish provided CC-1 with approximately 50 to 100 classified documents, all of which were borrowed from the Library at the Arsenal. (i) Kadish said he (Kadish) believed that providing classified documents to CC-1 would help Israel. (j) Kadish is no longer living at the Residence. In or about 1995, he (Kadish) moved to another location in New Jersey, where he (Kadish) has since resided (the “Current Residence”). (k) During the First Interview, I also gave to Kadish my business card, which stated that I was an FBI special agent working within the Southern District of New York.
(20) On or about 3/20/2008, after the First Interview with the FBI, CC-1 called a telephone number associated with the Current Residence of Ben-Ami Kadish, the defendant, and spoke with Kadish (the “Telephone Conversation”). During the Telephone Conversation, CC-1 instructed Kadish to lie to law enforcement officials. For example, CC-1 stated: “Don’t say anything. Let them say whatever they want. You didn’t…do anything…. What happened 25 years ago? You didn’t remember anything.” [The information set forth in this paragraph is based on a preliminary translation of the Telephone Call, which was conducted primarily in Hebrew.
(21) On or about 3/21/2008, another law enforcement agent and I interviewed Ben-Ami Kadish, the defendant, (the “Second Interview”), at Kadish’s Current Residence. Kadish stated, in substance and in part, the following: (a) CC-1 never paid him (Kadish) money to obtain classified documents. Rather, CC-1 gave Kadish small gifts and occasionally bought dinner for Kadish and his family at a restaurant in the Riverdale section of the Bronx. (b) Kadish and CC-1 have kept in touch since CC-1’s departure from the US in 1985. Kadish and CC-1 have primarily maintained contact by telephone and e-mail, and in 2004, they saw each other in person in Israel. According to Kadish, all of their contacts after 1985 have been for purely social reasons. (c) Kadish did not speak with CC-1 after the First Interview with the FBI.
(22) On or about 3/21/2008, prior to the Second Interview, a subpoena was issued on behalf of a grand jury sitting in the Southern District of New York (the “Subpoena”). The Subpoena was addressed to Ben-Ami Kadish, the defendant, but was not served on him at the Second Interview.
(23) Based on a review of telephone records, I have learned the following: (a) From at least in or about 7/1985 through in or about 11/1985, at least 22 telephone calls were placed from the Riverdale Residence of CC-1 to the telephone number associated with the Residence, where Ben-Ami Kadish, the defendant, was then living.
Wherefore, deponent prays that warrants be issued for the arrest of Ben-Ami Kadish, the defendant, and that he be arrested and imprisoned, or bailed, as the case may be.
[signed Lance A. Ashworth, Special Agent, FBI
Sworn to before me 4/21/2008.
[signed Douglas F. Eaton, US Magistrate Judge, Southern District of New York.