Earlier this month, a federal appeals court ruled that the indefinite detention of Ali Saleh Kahlah al-Marri, a legal resident alien living in Peoria, Ill., threatened to "undermine all of the freedoms guaranteed by the constitution." Mr. Marri, who has never borne arms against the United States, has been held without charge as an "enemy combatant" for more than four years. Those critics who have condemned the court's ruling as jeopardizing national security misunderstand the nature of terrorism.
Under ordinary circumstances, terrorism holds no appeal to the overwhelming majority of any society. People are not by nature extremists. In fact, with rare exceptions, people are indifferent to the angry ranting of a fanatic.
The reason is simple: The terrorist's view of the world is not widely shared. The wrongs that cut him to the quick do not offend his compatriots or stir them to action. His political ends are dismissed as illegitimate, his violent means assailed as crimes. Instead of being welcomed as a hero, he is vilified. The fate of many a violent extremist is to die in prison, disillusioned and alone, the world as unconcerned with his cause as it had ever been.
But occasionally, fortune smiles on the extremist, granting him the credibility he craves. Ironically, the extremist rarely has anything to do with this change. Instead, it happens when the society he attacks pursues policies that vindicate his venom. To his satisfaction, reality comes to resemble what he has long decried. His vision begins to acquire substance where once it was fantasy. Those around him – long unmoved by his platform – awaken to see the world as he has described it. Gradually, the lifeblood of any state – its moral legitimacy – ebbs from the society to the terrorist, whose message no longer seems so extreme.
So it has become with the war on terror. Noble declarations of American rhetoric can't conceal reality on the ground: seemingly endless detentions of innocent prisoners; "enhanced interrogation techniques" that many believe to be torture; black sites where prisoners "disappear"; renditions to countries that practice what the US cannot.
In the end, the US approach to combating terrorism has given Islamic radicalism the greatest gift of all: evidence to support the argument that America has abandoned the rule of law. And so the call to jihad has achieved a currency that was all but unthinkable before Sept. 11. By most accounts, Al Qaeda numbered only a few hundred people on that fateful day. Now its numbers and the numbers in sympathetic groups can barely be counted, so attractive has its message become.
At the same time, US policies provide endless occasion for recruiting jihadists via the Web, the medium least amenable to our influence. "You who shirk jihad...." one Saudi sheik implored on a radical Islamist website, "How can you enjoy life and comfort while your noble sisters are being raped and their is honor defiled in the Abu Ghraib prison.... ...[W]hat excuse can you give Allah while your brethren in the prisons of Abu Ghraib and Guantánamo ... are stripped naked?"
Nor is this merely anecdotal. According to the State Department, in 2003, the first year of the Iraq war, the number of "significant" terrorist attacks around the world soared to 175, the highest total in 21 years. Thus began a deadly progression. The number of significant attacks more than tripled in 2004 to 655. In 2005, there were more than 11,000 total attacks. And 2006 was another banner year with about 14,000 attacks. That's nearly 40 attacks every day. And that does not include attacks against US soldiers in Iraq.
Meanwhile, increasing evidence shows the terror is migrating beyond Iraq. Suicide bombings in Afghanistan, once unheard of, are increasingly common. And states throughout the Middle East report the worrisome presence of jihadists who honed their deadly skills on the killing fields of Iraq.
Some well intended but misguided politicians insist that the balance between law and security must always favor security. But they miss the mark, for there is no balance to be struck. Terror thrives at law's demise, reveling in its impotence. Law is security; lawlessness invites terror.
The court's ruling in favor of Marri and refusal to accept a claim of executive power that would have disastrous consequences for the integrity of the Constitution and the country is a remarkable step toward restoring the rule of law and, more important, a necessary effort to ensure the national security.
• Joseph Margulies is an associate clinical professor at Northwestern University Law School and deputy director of the MacArthur Justice Center in Chicago. He served as lead counsel in Rasul v. Bush and is author of "Guantánamo and the Abuse of Presidential Power."