One of the first orders of business for the new Democratic Congress should be legislating better safeguards against mistaken incarcerations of terrorism suspects and attaching the language to a veto-proof defense spending bill.

This would not only avoid needless imprisonment of harmless innocents. It would also help win the war against Islamist terrorism by reassuring allies and potential allies abroad that we are the good guys — and that America is still a safe place to visit.

In the five years since 9/11, the Bush administration has grabbed and imprisoned suspected "enemy combatants" without due process in Peoria and Chicago as well as in Afghanistan and elsewhere. But we still don’t have a decent system for sorting out dangerous jihadists from harmless bystanders.

It’s time we got this right. And although the need for Congress to protect against the possibility of unwarranted electronic eavesdropping gets far more attention, the need for it to end the current reality of long-term imprisonment of innocent people is far, far more important.

The Bush administration, mistaking its own incompetence for infallibility, has shown such indifference to the risk of erroneous detentions as to draw a succession of Supreme Court rebukes while making "Guantanamo" an anti-American rallying cry around the world. Meanwhile, President Bush continues to claim sweeping power to seize foreign students, tourists, and other visitors anywhere in the U.S. and lock them up for years — even for life — without ever producing real evidence of involvement in terrorism.

Congress has made two well-intentioned efforts to straighten out this executive-detention mess. But by severely curbing judicial review of executive detentions, the December 2005 Detainee Treatment Act and this October’s Military Commissions Act have actually made things much worse.

Both incoming Senate Judiciary Committee Chairman Patrick Leahy and outgoing Republican Chairman Arlen Specter will seek legislation to allow more-robust judicial review. But it will take an injection of courage to get to a congressional majority.

The heart of the problem is the kangaroo-court, lawyer-free process prescribed by the administration for the "combatant status review tribunals" that determine which captives are and are not enemy combatants.

Until mid-2003, Bush had directed the military not to use its traditional rules or any other judicial process to separate enemy combatants from innocents. That left a slipshod screening process and resulted in many erroneous detentions. It was only under pressure from the Supreme Court that the administration finally established the CSRTs. Not surprisingly, it rigged the rules to make it extremely difficult for innocent detainees to win release. Congress has required improvements, but not enough.

These CSRTs are far more important, although far less known, than the "military commissions" that Bush ordained in 2001 to conduct war-crimes trials, that the Supreme Court found in June to be illegal without congressional approval, and that Congress approved with modifications in October.

The CSRTs have approved the indefinite incarceration at Bush’s Guantanamo Bay prison camp of 520 men, of whom only a small fraction (if any) will ever be put on trial by military commissions for war crimes. They have also found that 38 of the men imprisoned at Guantanamo were not enemy combatants at all — or, in the administration’s face-saving phrase, "no longer enemy combatants."

This belies the numerous vows by Bush, Vice President Cheney, and others since 2002 that every single one of the prisoners taken to Guantanamo was a dangerous terrorist picked up on "the battlefield." (In addition to the 38 men cleared and released by the CSRTs, more than 300 others have been released or transferred to their home countries without being cleared, leaving about 430 still at Guantanamo.) We can only guess at how many more would have been cleared by a process more careful than the patently unfair CSRT rules.

Detainees are presumed guilty unless they can prove their innocence. They have neither lawyers nor the means to gather evidence of innocence from their home countries, nor do they have access to the details and sources of the evidence against them. This evidence consists mostly of hearsay from unreliable people without firsthand knowledge and statements given during brutally coercive interrogations by other detainees seeking lenience.

The only judicial review of CSRT decisions allowed by the two laws that Congress has adopted over the past year is a cursory hearing by the U.S. Court of Appeals for the District of Columbia Circuit, with no opportunity for detainees to present evidence that their CSRTs choose not to consider.

Astonishingly, a little-noticed provision of the Military Commissions Act also effectively allows the administration to grab any foreigners who come to this country — including permanent resident aliens — and lock them up indefinitely with no trial of any kind. At most, they would get the same deficient process as that of the Guantanamo detainees.

The only prisoner in this category now is Ali Saleh Kahlah al-Marri, a Qatari. The graduate student at Bradley University was seized at his home in Peoria, was taken from his wife and five children, and has been held in a Navy brig in South Carolina for more than three years.

The government claims to have computer files and other evidence showing that al-Marri sent e-mails to Khalid Shaikh Mohammed, the mastermind of the 9/11 attacks; received funds from a Al Qaeda financier; did research on chemical weapons; and frequented jihadist Web sites. He may well be what the government says he is: a Qaeda sleeper agent who trained in Afghanistan and was sent to the U.S. to explore computer hacking methods to disrupt financial institutions.

But if the courts uphold the due-process-free detention of al-Marri, the same could be done to any foreign visitor, no matter how weak the evidence. That’s why prominent Republicans and conservatives have joined liberals in urging the courts to reject the Bush position and to give al-Marri a fair hearing.

Al-Marri’s case is before the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. The petitions of many Guantanamo detainees are before the D.C. Circuit. Among the issues in these cases are the constitutionality of the curbs on judicial review of the detentions and of the extremely broad definition of "enemy combatant," which could ensnare even unwitting donors to Islamic charities that secretly finance terrorists.

These cases come in the wake of two major Supreme Court rulings against Bush in 2004 and a third this June. The first held that detainees were constitutionally entitled to due-process hearings, at least if they (unlike al-Marri) are U.S. citizens. The second held that the foreigners detained at Guantanamo were entitled to seek release by filing habeas corpus petitions in federal District Courts. The third held that the structure of Bush’s military commissions denied to defendants the protections required by both the Uniform Code of Military Justice and the 1949 Geneva Conventions.

Now Congress has re-established the military commissions (with some new safeguards) and — more importantly — has sought to deny habeas corpus review to all foreigners detained as enemy combatants. As a substitute for habeas, the new laws authorize only the cursory D.C. Circuit review.

Whether the justices will be bold enough to take on Congress as well as the president and strike down these restrictions on judicial review is hard to predict. Congress should not wait to find out. Instead, it should revise the new laws to require a fair process for deciding whom to detain.

The administration and its allies argue that courts have no business second-guessing battlefield detention decisions by military commanders. They add that terrorists masquerading as innocent civilians do not deserve the same rights as ordinary criminal defendants.

But many or most of these men were not captured on any battlefield. The courts intruded only after the administration in 2002 arrogantly proclaimed its own shabby screening process to be infallible and swept aside the more careful process that the military had long used. And now that we are talking about very long-term detentions, we need an even more careful process precisely because of the difficulty, in this new kind of war, of sorting out harmless civilians from terrorists.

I do not dispute the need to detain some enemy combatants against whom there is not sufficient admissible evidence to support ordinary criminal prosecutions. Nor do I doubt that there will be close calls in which courts should defer to military decisions to detain people based on less-than-conclusive evidence.

But the current process is so flawed as to allow for indefinite detention even of detainees who could produce conclusive proof, if given fair hearings, that they have nothing to do with terrorism. Congress needs to fix this.