Eastern District Judge John Gleeson has dismissed claims against former Attorney General John Ashcroft, FBI Director Robert Mueller and former INS Commissioner James Ziglar brought by plaintiffs who alleged discriminatory and punitive detention in the wake of the 9/11 terror attacks. The plaintiffs in the putative class action of Turkmen v. Ashcroft, 02-CV-2307, are eight men who are either Arab or Muslim—or perceived to be—and were arrested by the FBI or immigration authorities after 9/11, treated as “of interest” to the terror probe, detained under a blanket “hold-until-cleared” policy and held at the Metropolitan Detention Center or the Passaic County Jail.

In a 62-page opinion, Gleeson said the men were held under a “harsh confinement policy”: subjected to physical and verbal abuse by guards, repeatedly strip-searched, kept in administrative segregation for 23 hours a day, and denied access to counsel. The policy, he said, “was expressly directed at Arab and Muslim noncitizens who had violated immigration laws.” The judge said the plaintiffs failed to state a claim that Ashcroft, Mueller and Zigler “possessed punitive intent.” He said the plaintiffs “do not allege that the DOJ defendants intended to create the punitive or abusive conditions in which the plaintiffs were detained. Nor do they allege that the DOJ defendants were even aware of those conditions.”

At the same time, Gleeson allowed to proceed substantive due process claims against jail officials for express policies or “official conditions” that demonstrated “punitive intent,” as well as claims based on “unofficial abuse” inflicted by corrections officers, equal protection, interference with religion and illegal strip searches. But Gleeson also said qualified immunity is available for those officials on the communications blackout initially imposed when the men were jailed. Gleeson found “with some reluctance” that it was insufficiently clear at the time that the taping of detainees’ discussions with their lawyers violated the Constitution.