[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2250 Introduced in Senate (IS)]

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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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