Fix Needed

LAST WEEK a federal court in Washington threw out the lawsuit of Salim Ahmed Hamdan, the detainee at Guantanamo Bay, Cuba, whose successful challenge to the Bush administration's proposed military trials for accused terrorists led to a landmark Supreme Court decision earlier this year. The dismissal of the case is an ironic consequence of Mr. Hamdan's victory before the high court. The justices' decision forced Congress finally to take action to create a legal structure for the war on terrorism. But one of the actions Congress took in the hastily passed Military Commissions Act was to strip the federal courts of jurisdiction over such lawsuits, including those, like Mr. Hamdan's, that were already pending. Under the act, many other important cases will probably have to be dismissed -- which is why Congress should promptly amend the law when it reconvenes in January.

While the Supreme Court's rulings on this subject have been muddy, U.S. District Judge James Robertson may well have been legally correct in dismissing the case. The fault here lies with Congress, not with any judge. Judge Robertson held that the legislature had unambiguously stripped the courts of jurisdiction over all lawsuits challenging detentions at Guantanamo Bay -- so-called habeas corpus lawsuits. And he ruled as well that Congress had the power under the Constitution to do so -- at least for aliens held beyond American shores. But saying that Congress acted lawfully is not the same as saying it acted wisely.

Stripping the courts of habeas jurisdiction over Guantanamo was a profoundly foolish step to stop judicial review of an administration whose behavior has repeatedly illustrated the crucial importance of such oversight. Virtually every step the administration has taken toward a fairer and more open system for the detention and prosecution of enemy combatants has come as the result of pressure, direct and indirect, of litigation. The decision to respond to the Supreme Court's rebuke by, among other things, sharply limiting judicial review disabled the one mechanism that has consistently pushed policy in a constructive direction. Congress badly needs to reconsider.

Fortunately, the bipartisan leadership of the Senate Judiciary Committee is committed to doing just that. Incoming Chairman Patrick J. Leahy (D-Vt.) and ranking Republican Arlen Specter (Pa.) are pushing legislation to reestablish habeas jurisdiction for these cases. The new Congress would do a service if it acted swiftly to correct its error.