Arlen Specter: “The standards which have been established, which would, under some circumstances, permit a substitute procedure for…”

“The standards which have been established, which would, under some circumstances, permit a substitute procedure for habeas corpus were articulated by the Supreme Court of the United States in the case of Swain v. Pressley. In that case, the Supreme Court said there could be a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's contention. But the collateral remedy which was present in Swain v. Pressley is a far cry from the provisions of the Combat Status Review Tribunal. What the Supreme Court was dealing with in the Swain case was habeas corpus before a State court as opposed to habeas corpus before a Federal court. In Swain, the Supreme Court said that the 'relief available in the Superior Court is neither ineffective nor inadequate simply because the judges of that court do not have life tenure.' So here we have a State court functioning under the rules of habeas corpus and the Supreme Court says that is an equivalent of Federal court habeas corpus because State court judges can make that determination and the only difference is that the State court judges do not have wide tenure. In Swain, the Supreme Court went on to say: It is a settled view that elected judges of our State courts are fully competent to decide Federal constitutional issues. So there you have the constitutional issue decided. But the only difference is that it is a State court. Well, that has absolutely no resemblance to the combat status review tribunal.”