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.

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Ben Wizner is a deputy legal director of the American Civil Liberties Union.

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