b. On the constitutional claims, the district court held that respondents are entitled to qualified immunity. Pet. App. 154a-166a. The court declined to determine whether petitioners' allegations stated claims of constitutional violations, holding that respondents are entitled to qualified immunity because any constitutional rights possessed by Guantanamo Bay detainees were not clearly established at the time of the conduct. Id. at 156a-166a.
And then argued:
[I]At the time of petitioners' detention (between 2002 and March 2004), it was not clearly established that the Fifth and Eighth Amendments protected aliens detained abroad by the military. In Johnson v. Eisentrager, 339 U.S. 763 (1950), for instance, this Court rejected the contention that alien combatants held by the military outside the sovereign territory of the United States, at a military base in Germany, had a constitutional right to seek habeas corpus and rights under the Fifth Amendment. See also Verdugo- Urquidez, 494 U.S. at 269 (holding that Fourth Amendment did not apply to search of non-resident alien's property abroad, and discussing and quoting Eisentrager, 339 U.S. at 784); Zadvydas v. Davis, 533 U.S. 678, 693 (2001) ("t is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders") (citing Eisentrager, 339 U.S. at 784); see also Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004), cert. denied, 543 U.S. 1146 (2005); 32 County Sovereignty Comm. v. Department of State, 292 F.3d 797, 799 (D.C. Cir. 2002).
b. Review is also unwarranted in light of the court of appeals' additional holding (Pet. App. 10a-13a) that respondents are in any event entitled to qualified immunity on petitioners' Fifth and Eighth Amendment claims. That holding is likewise correct and represents a straightforward application of settled principles governing qualified immunity.
There were even cases that had specifically rejected a claim of constitutional rights for aliens at Guantanamo Bay. The Eleventh Circuit had held that alien refugees there had "no First Amendment or Fifth Amendment rights." Cuban Am. Bar Ass'n v. Christopher, 43 F.3d 1412, 1428 (11th Cir.), cert. denied, 515 U.S. 1142, and 516 U.S. 913 (1995). And the D.C. Circuit concluded-during the period of petitioners' own detention-that the Fifth Amendment did not apply to aliens held at Guantanamo Bay. Al Odah v. United States, 321 F.3d 1134, 1140-1144 (2003), rev'd on other grounds sub nom. Rasul v. Bush, 542 U.S. 466 (2004). Even after this Court reversed Al Odah on statutory grounds and held that detainees at Guantanamo Bay could seek habeas relief under 28 U.S.C. 2241, see Rasul v. Bush, 542 U.S. 466, 476 (2004), district courts reached opposing conclusions about whether detainees at Guantanamo Bay had Fifth Amendment rights. See Boumediene, 128 S. Ct. at 2241 (describing district court opinions).
No. 09-227: Rasul v. Myers - Opposition