[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2250 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
1st Session
S. 2250
To ensure due process protections of individuals in the United States
against unlawful detention based solely on a protected characteristic.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 19, 2017
Ms. Duckworth (for herself, Ms. Hirono, Mr. Blumenthal, Mr. Schatz, Mr.
Booker, and Mrs. Feinstein) introduced the following bill; which was
read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To ensure due process protections of individuals in the United States
against unlawful detention based solely on a protected characteristic.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Korematsu-Takai Civil Liberties
Protection Act of 2017''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) On February 19, 1942, President Franklin D. Roosevelt
signed Executive Order 9066 (7 Fed. Reg. 1407; relating to
authorizing the Secretary of War to prescribe military areas),
endowing the Secretary of War and the designated military
commanders of the Secretary of War with the power to create
military zones and forcibly exclude persons as the Secretary of
War and the designated military commanders determined to be
``necessary and desirable''.
(2) On March 2, 1942, military commander Lieutenant General
John L. DeWitt promulgated Public Proclamation No. 1, which
declared that the entire Pacific Coast was ``particularly
subject to attack, to attempted invasion . . . and, in
connection therewith, [was] subject to espionage and acts of
sabotage'' and that ``[s]uch persons or classes of persons as
the situation may require will by subsequent proclamation be
excluded from all of Military Area No. 1 and . . . [some] zones
. . . within Military Area No. 2.''. On that basis, General
Dewitt designated all of California, the western halves of
Oregon and Washington, and the southern half of Arizona as
``Military Area No. 1''.
(3) On March 21, 1942, President Roosevelt signed the Act
of March 21, 1942 (56 Stat. 173, chapter 191) (commonly
referred to as ``Public Law 503''), which stated, ``[W]hoever
shall enter, remain in, leave, or commit any act in any
military area or military zone . . . shall . . . be guilty . .
. and upon conviction shall be liable to a fine . . . or . . .
imprisonment . . . or both. . . .''.
(4) Pursuant to Executive Order 9066 (7 Fed. Reg. 1407;
relating to authorizing the Secretary of War to prescribe
military areas), Public Proclamation No. 1, and Public Law 503,
on March 27, 1942, General DeWitt issued Civilian Exclusion
Order No. 34, making it a crime for Japanese Americans to leave
Military Area No. 1.
(5) On May 3, 1942, under the authority of Civilian
Exclusion Order No. 34, General DeWitt issued another military
order making it a crime for Japanese Americans to remain in
Military Area No. 1 and ordering those Japanese Americans into
make-shift detention centers, allowing those individuals to
take only that which they could carry.
(6) The order of May 3, 1942, created an impossible
predicament for Japanese Americans--
(A) as those orders were diametrically
contradictory because--
(i) simultaneously, Japanese Americans were
made criminals whether they left their homes or
did not leave their homes; and
(ii) obedience to one part of Public Law
503 would necessarily violate the other; and
(B) because the only way that Japanese Americans
could avoid criminal prosecution was to submit to
indeterminate incarceration in temporary detention
camps through what was called an ``evacuation'', which
was in fact a mass roundup of all individuals of
Japanese ancestry, including orphans, babies, the ill,
and the elderly.
(7) Congress established the Commission on Wartime
Relocation and Internment of Civilians, which later found that,
``Decades of discrimination against immigrants from Japan and
public hostility toward Americans of Japanese descent fueled
outraged shock at the Pearl Harbor attack.''.
(8) The February 1942 recommendation of General DeWitt
said, ``The Japanese race is an enemy race and while many
second and third generation Japanese born on American soil,
possessed of United States citizenship, have become
`Americanized', the racial strains are undiluted . . . It
therefore, follows that along the vital Pacific Coast over
112,000 potential enemies, of Japanese extraction, are at large
today . . . The very fact that no sabotage has taken place to
date is a disturbing and confirming indication that such action
will be taken.''.
(9) By the spring of 1943, Japanese Americans were
volunteering to serve in the Armed Forces of the United States,
and there was growing sentiment to allow them and their
families to return home. The testimony of General DeWitt before
a subcommittee of the Committee on Naval Affairs of the House
of Representatives on April 13, 1943, highlighted the
discriminatory nature of the orders to evacuate, relocate, and
incarcerate Japanese Americans. Historians have quoted General
DeWitt as stating, ``A Jap's a Jap! . . . It makes no
difference whether he is an American or not.''.
(10) In 1942, there were 1,100,000 nationals of enemy
nations in the United States, and, of those individuals, fewer
than 4 percent were Japanese nationals. A curfew was enacted
that applied to nationals from Germany, Italy, and Japan.
American citizens of Japanese ancestry also had to abide by the
curfew, whereas, American citizens of German ancestry and
Italian ancestry did not.
(11) Individuals were forced to leave their homes and
livelihoods behind. Most bank accounts were frozen or
confiscated as enemy assets. People were allowed to take what
they could carry, excluding any item that the Government deemed
``contraband''.
(12) There were 10 permanent incarceration sites, all of
which were in isolated areas--
(A) at Gila River, Arizona;
(B) at Poston, Arizona;
(C) at Jerome, Arkansas;
(D) at Rohwer, Arkansas;
(E) at Manzanar, California;
(F) at Tule Lake Segregation Center, California;
(G) at Granada, Colorado (commonly referred to as
``Amache'');
(H) at Minadoka, Idaho;
(I) at Topaz, Utah; and
(J) at Heart Mountain, Wyoming.
(13) Each incarceration site held between 7,000 and 18,000
individuals, and a total of approximately 120,000 Japanese
Americans were ultimately detained.
(14) Some Japanese Americans, including Fred Korematsu,
Gordon Hirabayashi, and Minoru Yasui, challenged the detention,
exclusion, and curfew orders aimed at Japanese Americans.
(15) In June 1943, the Supreme Court of the United States
unanimously decided Hirabayashi v. United States, 320 U.S. 81
(1943), and the companion case Yasui v. United States, 320 U.S.
115 (1943). In the Hirabayashi case, the Supreme Court found
that both the power delegated to the military to impose curfews
and the Executive orders creating that power were
constitutional despite--
(A) their applications primarily to Americans of
Japanese ancestry on the basis of the particular
``racial characteristics'' of Americans of Japanese
ancestry; and
(B) the fact that the ultimate result of the orders
was imprisonment for an indefinite period of
confinement that was imposed without--
(i) the right to an attorney;
(ii) the right to notice of the charges
against the individual being imprisoned; and
(iii) the right to a trial.
(16) On December 18, 1944, the Supreme Court of the United
States, in the 6-3 decision in Korematsu v. United States, 323
U.S. 214 (1944), held that the order requiring exclusion of
persons of Japanese ancestry from States on the West Coast was
constitutional. The majority of the Court--
(A) found that the order did not violate the Fifth
Amendment to the Constitution of the United States and
was constitutional as a ``military necessity''; and
(B) cited the racial characteristic justification
from the Hirabayashi case to support the decision in
the Korematsu case.
(17) The dissenting Justices in the Korematsu case pointed
out the blatant race-based deprivation of constitutional rights
caused by the curfew and exclusion orders as follows:
(A) Justice Jackson acknowledged the deference
afforded to the other branches of the Federal
Government in times of war but argued that such
deference should not force the Court to ratify or
enforce unconstitutional orders. Justice Jackson noted
that Fred Korematsu should be found innocent, as his
guilt was based ``only in that he was born of different
racial stock''.
(B) Justice Murphy emphasized that the United
States was not under martial law and that ``[s]uch
exclusion goes over the `very brink of constitutional
power', and falls into the ugly abyss of racism''.
(C) Justice Roberts explicitly acknowledged the
racist basis of the orders, stating that ``[t]he
obvious purpose of the orders made, taken together, was
to drive all citizens of Japanese ancestry into
Assembly Centers within the zones of their residence,
under pain of criminal prosecution.''. Justice Roberts
also explained the clear unconstitutional basis of the
orders, pointing out that ``if a citizen was
constrained by two laws, or two orders having the force
of law, and obedience to one would violate the other,
to punish him for violation of either would deny him
due process of law.''.
(18) The public, Congress, and the President began efforts
to address the wrongs of incarceration and to provide redress
for individuals who had been incarcerated.
(19) In 1971, Congress repealed the Emergency Detention Act
of 1950, approved September 23, 1950 (64 Stat. 1019), which
granted the President the power to detain individuals without
due process and establish detention centers, through the
passage of the Act entitled ``An Act to amend title 18, United
States Code, to prohibit the establishment of detention camps,
and for other purposes'', approved September 25, 1971 (85 Stat.
348) (commonly referred to as the ``Non-Detention Act of
1971''). Senator Daniel Inouye and the Japanese American
Citizens' League led efforts to repeal the Emergency Detention
Act of 1950.
(20) Executive Order 9066 (7 Fed. Reg. 1407; relating to
authorizing the Secretary of War to prescribe military areas)
was officially terminated on December 31, 1976, by President
Gerald R. Ford through Presidential Proclamation 4417, dated
February 19, 1976 (41 Fed. Reg. 7741). President Ford condemned
Executive Order 9066 as a national mistake, asking the public
to affirm the ``American Promise'', a promise to learn from
``the tragedy of that long-ago experience forever to treasure
liberty and justice for each individual American, and resolve
that this kind of action shall never again be repeated.''.
(21) In 1980, Congress established the Commission on the
Wartime Relocation and Internment of Civilians. After public
hearings around the country and review of all documentation the
Commission was able to compile, the Commission--
(A) issued a report titled ``Personal Justice
Denied'' with recommendations on legislative remedies
to address the incarceration; and
(B) concluded that the military orders and
subsequent curfew, exclusion, and detention were not
based on military necessity but instead arose due to
``race prejudice, war hysteria and a failure of
political leadership.''.
(22) In 1983, petitions for writs of error coram nobis were
filed in Federal courts on behalf of Fred Korematsu, Gordon
Hirabayashi, and Minoru Yasui based on the discovery of secret
intelligence reports and memoranda of the Department of
Justice, the Federal Bureau of Investigation, the Federal
Communications Commission, the Navy, and the Army categorically
denying that Japanese Americans had committed any wrong and
admitting that there was no reason to incarcerate Japanese
Americans. Lawyers of the Department of Justice who were
responsible for defending the Government during the original
cases in 1943 and 1944 characterized the claims of the Army
that Japanese Americans were engaging in espionage as
``intentional falsehoods'' and characterized the justification
of a ``military necessity'' as a fabrication. The lawyers
unsuccessfully pleaded with the Solicitor General of the United
States at the time of the orders, Charles Fahy, to disclose to
the Supreme Court of the United States these intelligence
reports, stating that to withhold the contents of the reports
``would approximate the suppression of evidence''. The Supreme
Court of the United States has cautioned that writs of coram
nobis should be granted ``only under certain circumstances
compelling such action to achieve justice'' and to correct
``errors of the most fundamental character''.
(23) Between 1983 and 1987, Federal courts granted
petitions for writs of coram nobis for Fred Korematsu and
Gordon Hirabayashi, vacating their criminal convictions for
violating Public Law 503, finding that ``fundamental error''
had resulted from suppression of evidence, destruction of
evidence, and presentation of false and misleading information
to the Supreme Court of the United States by the Federal
Government. Minoru Yasui died while his case was in the process
of appeal, and, as such, he never received an evidentiary
hearing.
(24) President Ronald W. Reagan--
(A) urged Congress to pass the Civil Liberties Act
of 1988 (50 U.S.C. App. 1989b et seq.), which
apologized for the incarceration of Japanese Americans
and authorized payment to the survivors, saying the
Civil Liberties Act of 1988 was needed to end ``a sad
chapter in American history in a way that reaffirms
America's commitment to the preservation of liberty and
justice for all''; and
(B) signed the Civil Liberties Act of 1988 into law
on August 10, 1988.
(25) In 2011, the Acting Solicitor General of the United
States, Neal Katyal, issued an admission of misconduct for the
orders and actions against Japanese Americans during World War
II. Acting Solicitor General Katyal admitted that his
predecessor, Solicitor General Charles Fahy, had made gross
generalizations based on race and had failed to disclose a
naval intelligence report concluding that Japanese Americans,
including those incarcerated, did not pose a threat to the
national security of the United States.
(26) Fred Korematsu received the Presidential Medal of
Freedom for his civil rights work from President William J.
Clinton in 1998. Gordon Hirabayashi received the Presidential
Medal of Freedom in 2012 from President Barack H. Obama. Minoru
Yasui received the Presidential Medal of Freedom from President
Obama posthumously in 2015.
(27) Korematsu v. United States, 323 U.S. 214 (1944), is
now part of the ``anti-canon'', a group of cases including Dred
Scott v. Sandford, 60 U.S. 393 (1857), Plessy v. Ferguson, 163
U.S. 537 (1896), and Lochner v. New York, 198 U.S. 45 (1905),
that, though found to be constitutional at the time, are now
viewed as precedent not to be relied upon and as lessons on how
not to repeat the mistakes of history.
(28) The right to be free from discrimination based on
membership in a protected class and the right to due process
are enshrined in the Constitution of the United States.
(29) Section 1 of the 14th Amendment to the Constitution of
the United States provides that ``[n]o state shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.''.
(30) The 14th Amendment to the Constitution of the United
States embodies the principle that ``the government must treat
citizens as individuals, and not as members of racial, ethnic,
or religious groups.''.
(31) Despite the rejection of Korematsu v. United States,
323 U.S. 214 (1944), and the dark legacy of the incarceration
of individuals of Japanese ancestry during World War II, the
Korematsu case is still used as a justification for
discrimination under the guise of national security.
(32) A spokesman for Great America PAC said on a broadcast
of the Fox News Network that incarceration of Japanese
Americans provided the precedent for the proposal for a
registry of Muslims made by then President-elect Donald J.
Trump.
(33) In 2015, then Presidential candidate Donald J. Trump
told the American Broadcasting Company (commonly referred to as
``ABC'') that he would have to consider the same policies as
President Franklin D. Roosevelt, even on a ``temporary'' basis
because ``what I am doing is no different than what FDR--FDR's
solution for Germans, Italians, Japanese, you know, many years
ago.''.
(34) Courts have rejected efforts to ban entry of
individuals to the United States solely on the basis of the
national origin or religious background of those individuals,
efforts that include the detention of certain individuals at
airports without individualized due process following the
implementation of Executive Order 13769 (82 Fed. Reg. 8977;
relating to protecting the Nation from foreign terrorist entry
into the United States) and Executive Order 13780 (82 Fed. Reg.
13209; relating to protecting the Nation from foreign terrorist
entry into the United States).
(35) Justice Jackson, in Korematsu v. United States, 323
U.S. 214 (1944), warned that, ``once a judicial opinion
rationalizes such an order to show that it conforms to the
Constitution, or rather rationalizes the Constitution to show
that the Constitution sanctions such an order, the Court for
all time has validated the principle of racial discrimination
in criminal procedure and of transplanting American citizens.
The principle then lies about like a loaded weapon, ready for
the hand of any authority that can bring forward a plausible
claim of an urgent need.''.
(36) Leaders such as the late Representative Mark Takai
from Hawaii were dedicated to remembering the injustices
suffered by Japanese Americans and fighting to ensure the equal
protection of the civil liberties of every citizen for all
future generations. Representative Takai served 20 years in the
House of Representatives of Hawaii and had a distinguished
career in the National Guard of Hawaii, earning the rank of
Lieutenant Colonel before being elected to Congress in 2014.
Representative Takai was an advocate for the establishment of
the Honouliuli National Monument, the first monument dedicated
to teaching future generations about the incarceration camps
for individuals of Japanese ancestry during World War II.
Representative Takai said, ``The internment of Japanese
American citizens during World War II is a tragic example of
what happens when we allow fear and hatred to take the place of
rational and just actions.''. One of the last acts of
Representative Takai in the House of Representatives of Hawaii
was the passage of ``Civil Rights Day'' legislation remembering
Fred Korematsu and the historic fight of Fred Korematsu for due
process and civil rights. Representative Takai said ``Now more
than ever, we must learn from the mistakes of the past . . .
and educate the coming generations about the importance of
civil liberties for all people.''.
SEC. 3. PROHIBITION AGAINST UNLAWFUL DETENTION.
Section 4001 of title 18, United States Code, is amended--
(1) by redesignating subsection (b) as subsection (c); and
(2) by inserting after subsection (a) the following:
``(b) Prohibition on Detention Based on Protected
Characteristics.--
``(1) In general.--No individual may be imprisoned or
otherwise detained based solely on an actual or perceived
protected characteristic of the individual.
``(2) Definition.--In this subsection, the term `protected
characteristic' includes--
``(A) race;
``(B) ethnicity;
``(C) national origin;
``(D) religion;
``(E) gender;
``(F) gender identity; and
``(G) sexual orientation.''.
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