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Few who lived through the horror of Sept. 11, 2001, could have imagined that the next 25 years would pass without another large-scale attack on American soil. What was far more predictable and harmful, though, is the damage we’ve inflicted on ourselves and on the constitutional system of checks and balances meant to protect us and our democracy.
The litany of grave abuses committed under the banner of a “war on terrorism” is grim and familiar: torture and extrajudicial killing, military commissions and indefinite detention, extraordinary rendition and warrantless wiretaps, political surveillance and religious discrimination. Some of these disgraceful practices have been halted; others continue unchecked and constitute a new normal.
All remain in a legal gray zone: A quarter century after 9/11, no courts have ruled on the legality of these abuses. Instead, they have deferred to executive national security claims and dismissed lawsuits filed by victims without considering either the law or the facts.
The case of my client, Khaled El-Masri, is illustrative. In a notorious case of mistaken identity, El-Masri, a German citizen, was abducted by Macedonian security officers while visiting that country, detained incommunicado for weeks, handed over to a CIA renditions team, then stripped, beaten, drugged via anal suppository, diapered, chained to the floor of a plane, and transported to a secret CIA prison in Afghanistan, where he was brutally interrogated and detained for several months.
When senior U.S. officials realized that they had kidnapped an innocent person, the CIA devised a plan that would return him to Germany without leaving obvious U.S. fingerprints. El-Masri was warned not to reveal his experiences to the media or to local German authorities. Then he was flown to Albania, driven blindfolded to a remote location, and left on the side of the road, where, by prearrangement, he was picked up by Albanian officers and put on a plane home to Germany.
When we sought remedy in the United States justice system on El-Masri’s behalf, the courtroom doors slammed shut. Our lawsuit against CIA officials and contractors was dismissed on the basis of an affidavit submitted by the CIA director, who insisted that any litigation of El-Masri’s claims would disclose “state secrets” and gravely damage the nation’s security.
As we would later argue in an unsuccessful Supreme Court petition, the El-Masri case now stands for the proposition that the government can engage in torture, declare it a state secret and by virtue of that designation alone, avoid any accountability for conduct that has long been illegal under all circumstances.
Unfortunately, the El-Masri case was no outlier. Lawsuits challenging warrantless wiretapping of American citizens, kidnapping and torture at home and abroad, even the firing of missiles at American citizens far from any recognizable battlefield were all dismissed without any rulings on whether the government had broken the law.
To those of us who litigated these cases, the Supreme Court’s controversial ruling in 2024 that President Trump was absolutely immune from criminal consequences for all “official acts” in office seemed more like a continuation of this entrenched impunity than a shocking departure. This failure to hold the executive accountable to the Constitution was of course a tragedy. It was also a profound injury to our system of checks and balances, because our nation was deprived of a definitive adjudication of whether our post-9/11 presidents crossed constitutional lines.
Even in those rare instances in which courts rejected the most extreme outcomes, the judges’ rulings were more symbol than substance. The government may have lost three landmark Guantanamo cases, but decades later, the Supreme Court still has not told us whether indefinite detention without trial there is lawful, and the practice continues.
After this abdication by the courts, Trump could, for example, order the military to murder suspected drug smugglers in the Caribbean and Eastern Pacific, confident that courts would decline to interfere on national security grounds. And because courts and Congress have allowed the executive to classify its worst misconduct as national security secrets, we may not know the full scope of the abuses that judicial deference has enabled. (I am part of a team of lawyers that is suing over these outrageous and unlawful killings in the hope that his confidence is misplaced.)
There are encouraging signs that the sheer brazenness of Trump’s contempt for checks and balances has led some judges to begin to reclaim their constitutional prerogatives. In a growing number of cases, judges have explained that the presumption of good faith ordinarily afforded to government lawyers has been forfeited by Trump’s Department of Justice because of its false statements and disregard of court orders. Demands by government lawyers that judges not interfere with any activities claimed to relate to national security — demands that almost certainly would have been accepted during previous administrations — are now being met with appropriate if harmfully belated judicial skepticism.
This is a vital first step. But if we are really going to put this era of legal exception behind us and restore meaningful checks and balances, it’s even more vital that this newfound skepticism become the governing practice, not an exception that ends when Trump leaves office.
There is an emerging consensus in the wake of this administration’s lawlessness that the nation is overdue for a democratic reset. It would be a mistake to focus on the Trump administration’ excesses alone without addressing and reforming the structures of impunity that enabled them. We can’t undo the harms that followed Sept. 11, 2001, but 25 years on we have the opportunity to prevent our democracy from becoming another victim of that attack.
Ben Wizner is a deputy legal director of the American Civil Liberties Union.
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Ideas expressed in the piece
The article argues that the most enduring legal legacy of the post‑9/11 era is a culture of impunity for the U.S. executive branch, with courts repeatedly declining to rule on the legality of counterterrorism abuses and thereby weakening constitutional checks and balances. This perspective links the expansion of national security powers to judicial deference that has allowed torture, extrajudicial killing, warrantless surveillance and religious profiling to persist in a legal gray zone, insulated from meaningful review[2][3][6][7][9].
To illustrate this pattern, the piece highlights the case of Khaled El‑Masri, describing how an innocent German citizen was abducted, beaten, drugged, rendered to a secret CIA prison in Afghanistan, and held for months before being quietly released, only to see a U.S. lawsuit dismissed on state‑secrets grounds without any factual or legal assessment. The description echoes findings from human rights litigation and CIA inspector general records, which concluded that El‑Masri’s treatment amounted to torture, was unjustified, and has never led to criminal accountability in the United States[4][5][8].
The column contends that the use of the state‑secrets privilege has become a central tool for avoiding responsibility, allowing the government to declare abusive practices secret and thereby block victims’ claims, as seen in other torture and surveillance cases. It notes that this logic was reinforced when the Supreme Court permitted the government to withhold information about CIA black sites and torture in the Abu Zubaydah case, even though many details were already public, a ruling critics describe as broadening secrecy at the expense of accountability[2][3][6][9].
The article further argues that scattered judicial victories, such as landmark Guantánamo decisions, have been largely symbolic because courts have still not squarely resolved whether indefinite detention without trial is lawful, allowing the practice to continue. This is presented as part of a broader failure to confront post‑9/11 abuses, mirrored in ongoing litigation in which national security is repeatedly invoked to limit what courts can hear about CIA operations and detainee treatment[7][9].
Building on this record, the piece suggests that the Supreme Court’s 2024 ruling that a president enjoys absolute criminal immunity for official acts should be understood as a continuation of entrenched impunity rather than a break from past practice. In this view, doctrines developed around state secrets and deference to the executive have paved the way for expansive presidential protections, making it harder to hold leaders legally responsible for abuses committed under the banner of national security[2][6][7][9].
The article observes that some judges in recent years have begun to show sharper skepticism toward government claims, withdrawing the usual presumption of good faith from certain Justice Department filings and questioning blanket demands for deference on national security matters. It presents this as an encouraging but fragile shift, noting that advocates see a need for courts to make such scrutiny the norm if constitutional checks and balances are to be restored[3][7][9].
Finally, the piece argues that any “democratic reset” cannot focus solely on the excesses of one administration but must address the underlying legal and institutional structures that have shielded post‑9/11 misconduct from accountability. By connecting El‑Masri’s ordeal, CIA torture litigation, Guantánamo detentions and presidential immunity into a single narrative, the article urges reforms that would prevent the constitutional system itself from becoming a long‑term casualty of the 9/11 attacks[4][5][6][8][9].
Different views on the topic
In contrast, the Supreme Court majority in the Abu Zubaydah case upheld a robust version of the state‑secrets privilege, emphasizing that protecting intelligence relationships and sensitive national security information can justify withholding evidence even when some details are publicly known. The decision reflects a view that courts must defer to the executive’s judgment about what disclosures could harm national security, even at the cost of limiting torture victims’ ability to seek redress[2][3][6][9].
The majority’s reasoning aligns with long‑standing arguments by national security officials that litigation over covert programs risks exposing operational methods, foreign partners and intelligence capabilities, which could endanger lives and impair future cooperation. Government briefs and commentaries supporting this position contend that the state‑secrets doctrine is a necessary safeguard, not a cover‑up, and that dismissing or narrowing suits is an unfortunate but justified consequence of protecting the country from serious threats[2][6][7][9].
Supporters of a strong executive branch also argue that the expansive and secret counterterrorism authorities developed after 9/11 were instrumental in preventing further large‑scale attacks on U.S. soil, and that intensive judicial oversight could have hampered intelligence work during a period of acute danger. From this perspective, legal doctrines that favor deference and secrecy are seen as part of an appropriate wartime balance, preserving operational effectiveness while leaving questions of policy and morality to elected branches rather than courts[2][6][7][9].
Some commentators point to nonjudicial forms of oversight—such as congressional inquiries, internal inspector general investigations and public reporting on CIA detention and interrogation—as evidence that the system has not been entirely devoid of accountability. For example, CIA inspector general findings on the El‑Masri rendition described serious breakdowns and led to internal admonitions, and supporters of this approach argue that political and bureaucratic mechanisms, rather than adversarial courtroom processes, are better suited to address sensitive national security misconduct[4].
Other analysts highlight that, even as domestic suits against U.S. officials have largely failed, 9/11‑related litigation has increasingly targeted foreign state sponsors of terrorism under statutes such as the Justice Against Sponsors of Terrorism Act. They note recent federal rulings against foreign governments, arguing that U.S. courts are evolving into more meaningful venues for accountability focused on external actors whose support enabled the attacks, thereby framing the legal legacy of 9/11 in terms of holding foreign governments responsible rather than scrutinizing U.S. officials’ decisions[1].
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