A $100 million charitable organization based on New York’s Fifth Avenue is “totally controlled by the government of Iran,” and “funds a variety of anti-American causes,” the New York Police Department’s deputy commissioner for intelligence says in court papers. In an interview with The New York Sun, a lawyer for the charity, the Alavi Foundation, denied that it was controlled by Iran. In at least two federal court cases, Americans suing Iran failed in their efforts to show that the foundation was an “agency or instrumentality of a foreign state.”

The police official, David Cohen, is a 35-year veteran of the CIA who was the CIA’s deputy director for operations from 1995 to 1997 and the deputy director of the CIA’s directorate of intelligence from 1991 to 1995.

Mr. Cohen’s declaration came in a federal court case to decide how much power the New York police should have to investigate individuals or groups without specific information about criminal activity.

The New York Police Department’s activities are governed by a 1985 consent decree that Mr. Cohen argues “dangerously limits the ability of the NYPD to protect the people it is sworn to serve.” The rules set by that consent decree are known as the Handschu Guidelines, after Barbara Handschu, a plaintiff in the 1971 case that led to the 1985 consent decree.

“As was made apparent by the success of the attacks on September 11th, terrorists engage in a prolonged period of often lawful activity in preparation for their criminal acts. They escape detection by blending into American society. They may own homes, live in communities with families, belong to religious or social organizations and attend educational institutions. They typically display enormous patience, often waiting years until the components of their plans are perfectly aligned,” Mr. Cohen said in his court declaration. (Excerpts, page 7.)

“It is apparent to me that the Handschu guidelines place daunting obstacles in our way. The continued applicability of the Guidelines places this city, our nation and its people at heightened and unjustifiable risk,” Mr. Cohen said.

In a later filing, Mr. Cohen said that without changes to the guidelines, “the counterterrorism efforts of the NYPD will be severely compromised.”

The reference to the Alavi Foundation comes in a document Mr. Cohen filed September 12, 2002, signed under penalty of perjury. In a section of the declaration headed “terrorist activity,” the declaration states, “The Alavi Foundation is a non-profit charitable organization ostensibly run by an independent board of directors but totally controlled by the government of Iran. The foundation has assets of about $100,000,000 in the U.S. and an annual income of between $10-15 million. The foundation funds a variety of anti- American causes, including the four Islamic education centers it owns in New York, Maryland, Texas and California.

“The Maryland center is headed by Mohammad Al Asi, an American convert to Islam who, during the Kuwait crisis, called on Muslims to strike against American interests in the Middle East. Mosques funded by Alavi have organizations which support Hezbollah and Hamas.”

Hezbollah and Hamas are two countries on the State Department’s list of terrorist organizations. Iran is on the State Department’s list of state sponsors of terror and was named by President Bush as part of the “Axis of Evil.”

A lawyer for the Alavi Foundation, John Winter of the New York firm Patterson, Belknap, Webb and Tyler, said the accusations about the Alavi Foundation made him “angry.”

“That guy’s affidavit is bogus,” he said of Mr. Cohen’s declaration. “I don’t know where that guy is coming from, but it’s wrong.”

“If we were truly bad people, do you think we’d still be in operation?” Mr. Winter said. He pointed to federal court decisions that he said rejected the allegation that the foundation was controlled by Iran.

In a case decided in 2000, Stephen Flatow, a New Jersey man whose daughter was killed by Iranian-backed terrorists, tried to collect from the Alavi Foundation on a $247 million judgment he had won against Iran. In that case, the U.S. Court of Appeals for the Fourth Circuit ruled that, under the relevant definition in federal law, the Alavi foundation is not an “agency or instrumentality of a foreign state.”

In a case decided in 1998, a Beverly Hills, Calif., man, Norman Gabay, tried to collect from the Mostazafan Foundation of New York, a predecessor of the Alavi Foundation. Mr. Gabay is a Jew who came to America in 1971 and whose carpet factory was seized by the Iranian government in 1983, according to an account of the case in Newsday.

In the Gabay case, a three judge panel of the U.S. Court of Appeals for the Second Circuit, including Judge Jose Cabranes, ruled that Mr. Gabay had “offered insufficient evidence to overcome the presumption of independence” that applied to the foundation.

A lawyer for Mr. Flatow, Thomas Fortune Fay, said the courts require an extremely high level of evidence — essentially proof of day-to-day control — to show that an American business or charity is controlled by a foreign government. “No one has ever met that burden of proof and no one ever will,” Mr. Fay said.

The Alavi Foundation’s 2001 tax return, available on the Web, lists the address of one of the group’s directors as “Tehran, Iran.” The return lists the market value of the foundation’s total assets at $82 million. The largest portion of the assets are in the form of an investment in 650 Fifth Ave. in New York; the tax return lists the market value of that investment at $55 million.

The Alavi Foundation’s Web site says its purposes “are charitable and philanthropic with an emphasis on education and civic concerns. One of its primary aims is to promote understanding and harmony among people of different religions.

“Another basic aim of the Foundation is to promote the study of the humanities, arts, and pure and applied sciences. The Foundation gives assistance to public charitable organizations during times of hardship and deprivation caused by war or natural disasters. It also provides financial assistance to not-for-profit organizations that are involved in the teaching of Islamic culture and the Persian language.”

Mr. Flatow said the foundation was originally created by the Shah of Iran as the Pahlavi Foundation. The building at 650 Fifth Ave., at 52nd Street, is sometimes known as the Pahlavi Foundation Building. After the Islamic revolution in Iran in 1979, there was a turnover on the foundation’s board of directors and its name was changed. ( Copyright 2002 The New York Sun, One SL, LLC. 12/05/02)