Legal Commentary

I've been staying rather mum on the Guantanamo cases and the Iraqi detention cases, partly because I've been busy and partly because I've been involved in both... that being said, I wanted to flag one issue that I explore in a new paper an early draft of which I just posted to SSRN--the idea of "adequate" and "effective" alternative remedies to habeas corpus. The paper, which I wrote in conjunction with a November 2007 symposium at the Roger Williams University School of Law, basically argues that Swain v. Pressley, the 1977 decision commonly cited for the proposition that Congress can fashion alternative remedies to habeas corpus, is actually incredibly unhelpful in providing criteria for identifying limits on Congress's power to so provide (and that a careful analysis of Pressley and its precursor, United States v. Hayman, helps to show why).

The abstract is below the fold; of course, I'd welcome any and all comments...

The Supreme Court's decision in Swain v. Pressley, 430 U.S. 372 (1977), is routinely cited for the proposition that "the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus." Thus, in the habeas petitions filed by Guantanamo detainees currently before the Supreme Court, one of the central questions is whether the substitute remedy provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 is "neither inadequate nor ineffective to test the legality of . . . detention."

Surprisingly, though, for as central a role as Pressley may yet come to play in the current cases, exceedingly little has been written about the decision, and there are no sustained academic treatments of Justice Stevens's cryptic holding. This symposium essay attempts to remedy that defect, analyzing Pressley in light of the precedent upon which it relied (the Court's 1952 decision in United States v. Hayman, upholding 28 U.S.C. 2255), before moving to how Pressley came to be understood after it was decided. As the essay argues, critical to the Court's decision in Pressley (as in Hayman) was statutory language providing that, should the alternative remedy prove to be inadequate or ineffective, habeas corpus would remain available. Thus, courts interpreting the statutes upheld in Hayman and Pressley never had to choose between concluding that the remedy _was_ adequate and effective and striking down the statute as violating the Constitution's Suspension Clause.

As the essay concludes, the myth of Swain v. Pressley, then, is that it provides useful criteria for assessing statutory substitutes for habeas corpus that do not include similar safety valves. Quite to the contrary, as a series of cases under the REAL ID Act of 2005 help illuminate, Pressley ultimately distorts courts' analysis of the adequacy of the substitute remedy, and will therefore likely be of little practical utility to the Supreme Court in the current cases.