No concept has been as central to constitutional law as due process. In the current war on terror and the Bush administration's treatment of suspected terrorists, no protection is more threatened. The cases that pertain to due process—when it is due and how much—are crucial to the lives of those restrained in their liberty. Among those labeled the “worst of the worst,” especially offshore at Guantánamo Bay, the innocent fare far worse than those who have been charged with terrorist acts. How can they prove that they are not “illegal enemy combatants,” a category invented by White House lawyers but unknown to international law? How can the innocent prove their innocence? Yet this categorical reconstruction of identity is not unprecedented. To claim a history for these conditions of disfigured personhood and civil incapacity, I summon the cautionary haunt of due process in slave and prison law.
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