Police Mosque

Law.com
Police Papers Stir Islamic Group's Ire
Tuesday December 24, 2:03 am ET
Tom Perrotta, New York Law Journal

The New York City Police Department's bid to loosen federal restrictions on surveillance of political groups has angered a nonprofit Islamic foundation, which told a federal judge last week that a high-ranking police official made false statements against the group in recent court papers.

In a letter to Southern District of New York Judge Charles S. Haight Jr., an attorney for the group, the Alavi Foundation, "strenuously" objected to assertions made by David Cohen, the police department's deputy commissioner of intelligence.

The letter, sent on Dec. 16, was at the center of two written responses last week by a city attorney, who said the Alavi letter was a "collateral attack on the credibility of Commissioner Cohen" that, as "unsworn, self-serving statements," had no place in a proceeding to modify guidelines governing police surveillance.

Cohen, a 35-year veteran of the Central Intelligence Agency who joined the New York Police Department at the start of 2002, is at the forefront of a motion to modify a 1985 consent decree that requires police officers to prove suspicion of criminal activity before they can investigate political groups.

The Police Department claims the restrictions of the decree, known as the Handschu guidelines, prevent police officers from investigating terrorism and jeopardize the safety of New Yorkers. They contend that officers should only have to show that an investigation into a political group has a law enforcement purpose, a lower legal standard.

In recent court papers intended to show why the Handschu modifications are essential, Cohen said that Alavi is "totally controlled" by the Iranian government and in 1997 gave $1.4 million to the Al-Farouq mosque in Brooklyn, whose former imam is Sheik Omar Abdel-Rahman.

Rahman was a spiritual leader for many of the defendants in the 1993 World Trade Center bombing and is serving a life sentence for his role in a failed plot to bomb New York City landmarks.

On Dec. 16, an attorney for Alavi, John D. Winter of New York-based Patterson, Belknap, Webb & Tyler, said in an 11-page letter that several federal judges, including Southern District of New York Judge Sidney H. Stein, and two federal appellate courts had refuted allegations that Alavi was controlled by the Iranian government (see Gabay v. Mostazafan Foundation, 968 F.Supp. 895, S.D.N.Y. 1997).

He said the group, which was founded by the Shah of Iran in 1973, never gave money to the Al-Farouq mosque and that the foundation's tax returns showed total charitable contributions for 1997 were less than $1 million. The letter said that in 1997 and 1998, the group gave $69,000 to the Brooklyn Mosque Inc. at 543 Atlantic Ave., which is across the street from the Al-Farouq mosque.

"Before filing papers with a Court, lawyers are obligated to check their facts and acknowledge contrary authority," Winter wrote to Judge Haight. "If [Cohen's] mistakes were motivated by a good faith belief that the tragedy of September 11th compelled him to ignore evidence, then his actions are regrettable. However, if his mistakes were motivated by the belief that all Muslims are terrorists, then he is guilty of the worst kind of prejudice."

Winter's letter said Alavi took no position on the police department's request to modify the Handschu agreement.

CITY RESPONDS

Assistant Corporation Counsel Gail Donoghue, who is handling the Handschu case for the police, responded the next day with a brief letter to Judge Haight, and on Friday wrote to the judge that Alavi's allegations did not "impugn Deputy Commissioner Cohen's credibility."

She did, however, admit that Cohen made a mistake in his declaration about the years in which Alavi allegedly contributed money to the Al-Farouq mosque.

"The words 'in 1997' should read 'by 1992'," the letter said. It added that Cohen believed Alavi's contributions from 1988 to 1992, under the former name Mostazafan Foundation, totaled $1.4 million.

Referring to the federal decisions about Iran's influence over Alavi, Donoghue said it could not "be seriously argued that the meaning of 'control' in Deputy Commissioner Cohen's Declaration or in ordinary usage" is limited to the statutory definition in U.S.C. ? 1603(b).

She said the fact that Iran could "clandestinely determine Alavi's course of conduct" seemed "no more unlikely than for Osama bin Laden to plan the attack on the World Trade Center and the Pentagon from a cave in Afghanistan."

Winter of Patterson Belknap said in an interview that Alavi would respond to Judge Haight Monday. He declined further comment.

Following Donoghue's initial response, attorneys for the political groups whose 1970s' lawsuit led to the Handschu decree wrote a separate letter to Haight, saying that Cohen's alleged misstatements provide further evidence that Cohen should be deposed about statements he has made in court documents.

"All of this underscores why it is important to depose Deputy Commissioner Cohen if the police department is relying on his statement to dissolve the Handschu protections," Franklin Siegel, a civil rights attorney and co-counsel for the plaintiffs, said in an interview. "This whole thing simply raises questions about his reliability and what he knows."

The attorneys for the Handschu plaintiffs, who include the Black Panthers and Buffalo, N.Y., attorney Barbara Handschu, have argued that the surveillance restrictions guard First Amendment rights and do not need to be changed for the police to investigate terrorism.

Judge Haight considered the request to depose Cohen at a Dec. 13 hearing, where Donoghue said Cohen could not say anything more than what he has said in documents without compromising privileged law enforcement information.

She has asked Judge Haight for a protective order that would prevent Cohen's deposition, and in her second letter last week, prompted by the letter from the Handschu plaintiffs, she told the judge that Cohen's deposition would "produce, at best, conjectured testimony about hypothetical facts."

Haight has not set a date for a ruling on whether he will allow the deposition of Cohen.

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