After 9/11, an assault on civil liberties: the worst terrorist attack on American soil jolted a populace complacent about national security. It also sparked an unprecedented backlash against Arab-Americans and restrictions on long-cherished rights. Now critics ask: has the government gone too far?

In his 1998 book, All the Laws But One, Chief Justice William Rehnquist quoted a Pasman maxim to describe his view of the courts in periods of national crisis: "In times of war, laws are silent. "After all, Lincoln suspended habeas corpus during the Civil War; thousands of Japanese-Americans were indiscriminately interred during World War II.

But after 9/11, the book struck a prophetic chord. Little more than a month after the attacks, President Bush signed into law the USA PATRIOT Act, authorizing sweeping new powers for domestic surveillance of suspected terrorists and searches of private residences without previously required judicial approval.

Before 9/11, Attorney General John Ashcroft had promised action to end racial profiling. Afterward, the administration approved a series of homeland security measures that singled out Arab immigrants, including fingerprinting and pursuing deportation orders, even for those with no connection to terrorism. Some critics believe such measures helped fuel prejudice against Arab-Americans. The American-Arab Anti-Discrimination Committee (ADC), formed in 1980, reported a fourfold increase in hate crimes and incidents of discrimination since the attacks.

The world has changed in the past two years. The proposed PATRIOT Act II, a far more restrictive program than its prequel, sparked intense criticism when a draft was leaked to the press earlier this year; and it has yet to be proposed in Congress. A separate Defense Department initiative called the Total Information Awareness project--a database that would sift through medical, travel, and financial information to penetrate terrorist networks--was significantly scaled back by legislators who were deeply concerned about the program's proposed incursion on privacy.

At press time, Ashcroft was crisscrossing the country, trying to mollify the PATRIOT Act's critics while garnering support for a new proposal that links the "war on terrorism" to drug interdiction efforts.

If the tide is turning; KAREEM SHORA and TIMOTHY EDGAR can claim a share of the credit. Shora, legal adviser to the ADC, and Edgar, legislative counsel on national security and immigrant rights at the American Civil Liberties Union, frequently work together, lobbying on Capitol Hill or speaking to groups about the effect of the "war on terrorism" on human rights. They spoke with TRIAL recently at the ACLU's offices in Washington, D.C.

TRIAL: By the time this goes to press, the second anniversary of 9/11 will have passed. How have altitudes and policies toward Arab-Americans changed?

EDGAR: One of the big challenges in addressing civil liberties after 9/11 is that you're faced with an almost impossible conundrum: We know there are a lot of negative stereotypes and public attitudes toward Arab-Americans and immigrants. If the American public feels that the only people's rights that are at risk are those of one community, then we are not going to get the level of engagement in Congress that we need to fix the civil liberties problems that increase government power and reduce government accountability for everyone.

While it is true that initiatives in areas like immigrant detention have primarily affected Arabs and Arab-Americans, many of the checks and balances that once existed and have now been taken away could affect the liberties of everyone in the future.

That challenge is most difficult in our relationship with conservative organizations, which often strongly agree with us on privacy and limiting government power and on ensuring proper checks and balances on when the government can take your property of invade your home. But some of these organizations are indifferent or even hostile to Muslim-and Arab-Americans. I've had to figure out how to prevent that challenge from tearing apart our coalition.

In that respect, the job entails as much diplomacy as politics or law. It means that we talk about due process for all persons in the United States. We don't use the word "immigrants."

Some of the strongest and best examples of civil liberties abuses, the real human stories, are those pertaining to the treatment of Arabs and Muslims in the immigration system: the sweeps after 9/11, the special registration, the fingerprinting, the detention of roughly 1,000 people based mainly on their ethnicity--there's a whole list of them.

Once average Americans feel their rights or liberties are at stake, the abuses toward Arab-Americans help confirm their fears: "Well, I don't think I'm going to be indefinitely detained in a military prison, but if the government is willing to do that to someone who is Arab or Muslim, maybe it is willing to do other things generally that I object to that may affect my life and my liberties."

SHORA; And a lot of the already-passed provisions do affect average Joes. In the USA PATRIOT Act, for example, there are provisions that permit the government to look at your library records.

They can walk into any library in any town and see what books you checked out, what Web sites you looked at, and not tell you.

EDGAR: Essentially, the most vulnerable community is the community that's coming under fire at a given time. But throughout history, we've seen that such a community is the canary in the coal mine for everyone.

TRIAL: How easy is it for Americans to marginalize the problem, to think, "This is an Arab-American issue. We haven't had a major terrorist incident on American soil since 9/11, so whatever the government is doing must be working"? How do you deal with the question, "Why should I care?"

EDGAR: I've been pleasantly surprised by how many Americans clearly do care. We've seen record growth in the ACLU's membership. Before 9/11, we were at 275,000. Now, we're over 400,000. We've seen communities around the country, from conservative to liberal, passing resolutions affirming respect for civil liberties and saying that provisions in the USA PATRIOT Act and other statutes and government actions have gone too far.

I don't think Alaska is a hotbed of the Arab-American community in this country. It's a majority Republican state, and it has overwhelmingly approved resolutions disapproving of the PATRIOT Act. Now, we see a senator and representatives from Alaska getting into the debate on our side.

Clearly the issues of terrorism, homeland security, and civil liberties, in all their complexity, are the most important issues in America today. People want to be safe. But we're finding that most people reject the idea that you have to do away with civil liberties in order to protect yourself.

We have seen the beginning of the shift of the pendulum. We thought PATRIOT II would be in Congress by now. There was an extraordinary vote recently in the House to stop "sneak and peak" searches. It was 309 to 118, with half the Republicans and almost all the Democrats voting that the government should have to give you notice before searching your property. That was a key part of the USA PATRIOT Act. I was shocked that we won such an overwhelming victory on that issue, and it just shows the kind of momentum we've tapped into.

SHORA: Let me address the part of your question about there not having been a major terrorist attack since 9/11. I give great credit to some of the things the government has done. It reached out to the affected communities. The largest cell that was captured since 9/11, in upstate New York, was captured only because of very direct cooperation between law enforcement and the Arab-American community.

EDGAR: How has the Roman maxim about laws being silent in wartime played out in the war on terrorism--a war with no proximate end and often amorphous enemy?

SHORA: This isn't a traditional war. You could edit the maxim to say many laws have been used as a weapon in this war.

EDGAR: I think that phrase accurately describes the nasty and brutish principles that guided the Roman Empire, but it shouldn't describe the principles of the United States of America in the 21st century. A lot of the progress in the last several centuries regarding the rule of law is reflected in the idea that even in times of crisis, we maintain a basic system of laws. We do not, for example, believe that the internment of Japanese-Americans during World War II was OK because ii was a time of war. What we're fighting for now is a system of government and a way of life, not just the physical security of this country. We're fighting for the security of its values and its principles.

The other answer is that it is a different kind of war. Essentially, a war against terrorism is a war for civil liberties. We are trying to ensure that we're better than the terrorists. It's not a choice that we have. If we start giving up rights like the right to counsel, the right to free speech, the right to freedom of religion, and the right to privacy, then we are simply giving up our way of life.

Right after 9/11, we saw a Jekyll-and-Hyde response from the government that was very much a mixed message. President Bush, [former New York mayor Rudy] Giuliani, and many political leaders issued statements condemning violence against Arab-Americans or Muslim-Americans, condemning lumping everyone in [those groups] with the terrorists. President Bush visited a mosque in Washington, D.C. Those were very important gestures.

But at the same time, we were dealing with a huge roundup of Arab and Muslim immigrants, and huge proposals to take away civil liberties and rights, that sent exactly the opposite message: We're not just going to focus on specific terrorists, we're going to focus on an entire community. The government was telling Americans not to engage in discrimination, and yet it was engaging in that very form of discrimination.

TRIAL: Kareem, in the year immediately after the attacks, your organization showed a fourfold increase in reports of discrimination. Can you give us a sense of the kind of reports that you've been getting ? Have conditions improved?

SHORA: In the realm of employment discrimination, the EEOC confirmed in 2002 that discrimination against Muslims increased 1,500 percent that year. The FBI hate-crimes analysis shows a very similar increase toward Muslims. Obviously, we're not seeing as many hate crimes committed against Arab-Americans of Muslim-Americans as African-Americans or Jewish-Americans, but the percentage of increase tells the story that there was in fact a backlash against this smaller community--at least initially.

And people who commit hate crimes often don't know the difference between someone who is Latino and someone from the Middle East. They just look at the complexion and attack the person. A Mexican was beaten up in Los Angeles, and they were hurling Anti-Arab and anti-Muslim epithets at him. Sikhs, who are from India and area distinct religious group, were victims of hate crimes. The first confirmed 9/11-related hate crime was against a Sikh gas-station attendant in Mesa, Arizona, who was shot and killed.

Right after 9/11, the ADC received bomb threats. We had police officers stationed in our office. We're obviously an easy target because of the name of our organization.

But in terms of the way Arab-Americans are looked at overall, there's been a tremendous improvement. Shortly after 9/11, our community faced an ordinary knee-jerk reaction. Every emerging community in America has gone through this stage.

TRIAL: What types of reports have you gotten ten in the realm of employment?

SHORA: Most of them are hostile-work-environment claims, Title VII or Title VI. We saw a lot of terminations. Arab-American pilots continue to face a significant amount of racial discrimination. Right now, I'm aware of six cases of Arab-American pilots who were terminated for no reason. Airport workers face a lot of problems. And we saw government actions that exacerbated the employment issues.

EDGAR: I think that's been one of the biggest problems. We do have government agencies that are very dedicated to enforcing laws like those that say we can't tire a pilot just because he's Arab-American. But then we see examples of administrative actions that are just blatant discrimination. One is the racial-profiling guidance that the Bush administration issued. Prior to 9/11, it had a campaign promise to end racial profiling. The only exception? National security.

Our view is that racial profiling is an ineffective law enforcement tactic, therefore it makes no sense to have an exception for national security, because that implies that it is an effective law enforcement tactic, and one we're going to use when it's really important. That's a terrible mixed message to send.

Another example is the local enforcement of immigration laws. Local enforcement drives a wedge between immigrant communities and their police; crime goes unchecked because people are afraid to report it for fear of deportation.

The Bush administration tried to have both sides on this issue by saying to the Latino community and other communities in which they sought Republican votes that it was not interested in a broad use of local enforcement of immigrants laws, but that an exception would be made for certain "high risk" immigrants. And that turned out to be people from the Arab and Muslim world.

SHORA: There's a distinct example of this. When the Justice Department started the "absconder" apprehension program, it took people with outstanding orders of deportation and incorporated those names in a national database that is accessed by local law enforcement. We know there are about 315,000 individuals who have outstanding deportation orders. But when the government decided to start that program, the first 6,000 were only men from Arab countries. So if you're a man who's Arab, and you're stopped by Idaho state police for speeding, that officer will arrest you for being a deportation absconder.

We're not saying not to enforce the laws. But this is selective enforcement.

EDGAR: It's about as blatant as you can possibly imagine. It's like an officer going through a list of people with bad parking tickets, and if the person's name looks Arab, you're going to go after them.

For every time that FBI Director Robert Mueller says he wants to work with the Arab-American community, there's another example of a government policy that sends exactly the opposite message: We're going to go after Arab-Americans and Muslims because of their ethnicity, not because of their involvement in terrorism.

When it comes to racial profiling, a lot of Americans say, "Do we have to arrest as many Norwegian terrorists as Arab terrorists?" No. That's absurd. We're saying go after the terrorists. If they happen to be of one ethnicity, so be it. But don't go after an entire community and selectively enforce all sorts of other laws that have nothing to do with terrorism.

SHORA: The government has to work with the community. A lot of antiterrorism initiatives that have been coming from the U.S. attorney general's office have damaged these community-out-reach efforts tremendously.

Guess how many agents the FBI has hired since 9/11 who are fluent in Arabic, Pashto, Urdu, or Persian? Zero. Since 9/11, the FBI has not hired a single agent who's proficient in those languages.

And there are real-life examples demonstrating that profiling doesn't work. Who are these alleged terrorists we captured after 9/11 who were supposedly trying to hurt our country? Were they from the Middle East--Jose Padilla? John Walker Lindh? Richard Reid, the shoe bomber?

Racial profiling doesn't work because we know our enemies are not just Muslims from the Middle East. Terrorist groups can recruit anybody. John Walker Lindh was recruited from California to Afghanistan. Richard Reid--he's a British citizen who has nothing to do with the Middle East. Yet he was about to destroy an aircraft with passengers on board. Jose Padilla was an inmate in Chicago charged with a scheme to explode a "dirty bomb." This isn't only a civil liberties issue. It's not just an Arab-American issue. It's a national security issue. Look at one small program like special registration. [This program requires aliens from "al Qaeda-harboring countries" to register with the Justice Department and be fingerprinted.] How many terrorists has the government caught with this program? Zero. It has not pointed out a single person who has been captured due to special registration. Now, it claims to have captured 11 individuals related to terrorism. What did the government do with those people? Who are they? We were told these people were deported. You don't deport terrorists, Therefore, they were not terrorists.

TRIAL: To what extent have you benefitted from the backlash that greeted certain initiatives like the Total information Awareness program?

EDGAR: You never look a gift horse in the mouth in Washington. When the other side decides to make your argument for you, you just sit back and say, "Thank you very much." The Total Information Awareness program, which Congress has significantly restricted, not only was headed by Admiral [John] Poindexter [who was convicted in the Iran-Contra scandal, and has since resigned from the Defense Department program], but the logo for the program was a giant eye looking on the entire world. I guess those folks at the Total Information Awareness program hadn't seen The Lord of the Rings, because that's the symbol of evil: the onmiscient eye.

TRIAL: How can trial lawyers respond to the issues your organizations have been raising?

EDGAR: Every trial lawyer who reads this should become a cooperating attorney with the ACLU and the ADC, because we need their experience and their help. This is why I went to law school and why most people who are trial lawyers went to law school--to fight for the underdog.

Trial lawyers also provide us with real stories. When you have a case involving a person who's been abused by government or by private discrimination, contact a national organization. Legislators respond to personal stories--particularly personal stories from their district--far more than they do complicated arguments of statistics.

Trial lawyers are also great advocates for the system of judicial review. A lot of what we're talking about is a system of checks and balances. And there is a group in this country that is very hostile toward judicial review. It has been trying to strip checks and balances and strip courts of their power for years. Now it has the argument that judges looking at warrants area threat to national security.

The government can go into your home, can put you in prison, can take your house or your boat or your car. But it can do so only with certain procedures with a judge. And when laws are passed that make those procedures less meaningful, it ultimately hurts the innocent.

One reason people need to be engaged is that we all know there is a very real possibility of another terrorist attack. The struggle against terrorism is very real. We want to lay the groundwork so if that happens, we'll have a committed group of people that will stand up and fight for the rights of all Americans.

We need to lay that groundwork now, because if we wait, we could end up right back where we were before--or worse.