GARLAND, Circuit Judge, concurring in the denial of rehearing en banc -- Haji Bismullah a/k/a Haji Bismillah, and a/k/a Haji Besmella, v. Robert M. Gates, Secretary of Defense -- No. 06-1197 (2008-02-01)

GARLAND, Circuit Judge, concurring in the denial of rehearing en banc: On June 29, 2007, the Supreme Court granted the detainees’ petition for certiorari in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007). In granting that petition, the Court advised the parties that “it would be of material assistance to consult any decision in Bismullah, et al. v. Gates, . . . currently pending in the United States Court of Appeals for the District of Columbia Circuit,” and that “supplemental briefing will be scheduled upon the issuance of any decision” in that case. Boumediene v. Bush, 127 S. Ct. 3078 (2007). The Supreme Court heard oral argument in Boumediene on December 5, 2007. Were we to grant en banc review in Bismullah, we would plainly delay our decision and hence the Supreme Court’s disposition of Boumediene. As delaying the latter is contrary to the interests of all of the parties, as well as to the public interest, I concur in the denial of rehearing en banc without reaching the merits.