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The U.S. Supreme Court announced on June 29 that it would hear challenges by Guant�namo Bay, Cuba, detainees in Boumediene v. Bush and Al Odah v. U.S. to the Military Commissions Act of 2006 (MCA) and the Detainee Treatment Act of 2005 (DTA). One of the key issues in this round of litigation is whether, as the detainees argued in a recent filing, the mechanism provided by the DTA for judicial review of determinations of the Combatant Status Review Tribunals in the U.S. Circuit Court of Appeals for the District of Columbia “can [e]ver be an adequate substitute for habeas.” In April, when the Supreme Court denied an earlier appeal for review by the detainees, Justice Stephen G. Breyer said in his dissent from the denial that the court ultimately would have to resolve whether the DTA process is “a constitutionally adequate substitute for habeas corpus.” In discussing this standard, Breyer cited a 1977 Supreme Court decision, Swain v. Pressley. Swain dealt with a less high-profile and less overtly political group of prisoners � inmates convicted of local crimes under the D.C. Code. The Swain prisoner argued that the system of post-conviction relief for D.C. prisoners created by the District of Columbia Court Reform and Criminal Procedure Act of 1970 (DCCRCPA) violated the U.S. Constitution’s suspension clause. Before the DCCRCPA, local crime in the district was prosecuted in the federal district court. The act created a local court system for the district � the D.C. Superior Court and D.C. Court of Appeals. The ostensible purpose of the DCCRCPA (according to the Swain decision) was to create “a system of courts analogous to those found in the States.” But while most state prisoners have an opportunity to challenge their convictions in federal habeas after exhausting state-court remedies, the new statutory scheme generally restricted D.C. prisoners to a post-conviction challenge in the D.C. Superior Court. The statute contained a narrow exception permitting the federal district court to hear a habeas corpus petition by a D.C. prisoner if it “appears that the remedy by motion [in D.C. Superior Court] is inadequate or ineffective to test the legality of his detention.” In challenging this system, attorneys for Jasper C. Pressley, an inmate at a D.C. prison, made arguments that are now familiar. “From the beginnings of our government to today, when a person has been deprived of his liberty by the power of the United States,” they wrote in their brief in the Supreme Court, “the Article III courts have always been available to test the constitutionality of that confinement, whether the confinement was ordered by an Article III or non-Article III authority.” ‘Swain’ standard will apply The Swain court rejected these arguments, concluding that restricting D.C. prisoners to post-conviction challenges in their new local court did not unconstitutionally suspend the writ of habeas corpus. The court wrote that the “new collateral remedy” was an “adequate and effective” substitute for federal habeas, despite the fact that judges of the newly created D.C. Superior Court were not Article III judges. It is the Swain test by which the judicial review mechanism of the MCA and DTA will be evaluated in the Guant�namo detainees’ challenge. Too bad that Pressley lost. His case is now an important precedent in a legal battle that is being watched worldwide � one that is telling the world much about the United States, its court system and its fundamental values. To be sure, it is far from clear that the judicial review provided the Guant�namo detainees under the DTA ultimately will pass constitutional muster under the Swain standard. The DTA process is certainly far less like habeas than the procedure afforded D.C. prisoners. But it would be better for the detainees if Pressley had won. The Swain story is but one more example of how civil rights battles lost in more mundane cases can have repercussions in the War on Terror. Restrictive habeas jurisdiction doctrine developed in run-of-the-mill prisoner petitions proved decisive in the first round of litigation regarding alleged terrorist Jose Padilla. These examples demonstrate that important restrictions of civil liberties occur not only in watershed moments in high-profile cases, but also incrementally � in garden-variety disputes of local importance. If we want to protect suspects in highly politicized cases, we must vigorously defend the rights of Pressley and others like him. Giovanna Shay is an assistant professor of law at Western New England College School of Law. She was one of the members of the legal team representing amicus curiae the Public Defender Service for the District of Columbia in Rumsfeld v. Padilla. Johanna Kalb, a 2006 Yale Law School graduate, was a student member of the legal team for the petitioner in Hamdan v. Rumsfeld. The views expressed in this piece are the authors’ alone.

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