II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Korematsu-Takai Civil 

5 Liberties Protection Act of 2017’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) On February 19, 1942, President Franklin 

9 D. Roosevelt signed Executive Order 9066 (7 Fed. 


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1 Reg. 1407; relating to authorizing the Secretary of 

2 War to prescribe military areas), endowing the Sec3 retary of War and the designated military com4 manders of the Secretary of War with the power to 

5 create military zones and forcibly exclude persons as 

6 the Secretary of War and the designated military 

7 commanders determined to be ‘‘necessary and desir8 able’’. 

9 (2) On March 2, 1942, military commander 

10 Lieutenant General John L. DeWitt promulgated 

11 Public Proclamation No. 1, which declared that the 

12 entire Pacific Coast was ‘‘particularly subject to at13 tack, to attempted invasion . . . and, in connection 

14 therewith, [was] subject to espionage and acts of 

15 sabotage’’ and that ‘‘[s]uch persons or classes of 

16 persons as the situation may require will by subse17 quent proclamation be excluded from all of Military 

18 Area No. 1 and . . . [some] zones . . . within Mili19 tary Area No. 2.’’. On that basis, General Dewitt 

20 designated all of California, the western halves of 

21 Oregon and Washington, and the southern half of 

22 Arizona as ‘‘Military Area No. 1’’. 

23 (3) On March 21, 1942, President Roosevelt 

24 signed the Act of March 21, 1942 (56 Stat. 173, 

25 chapter 191) (commonly referred to as ‘‘Public Law 


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1 503’’), which stated, ‘‘[W]hoever shall enter, remain 

2 in, leave, or commit any act in any military area or 

3 military zone . . . shall . . . be guilty . . . and 

4 upon conviction shall be liable to a fine . . . or . . . 

5 imprisonment . . . or both. . . .’’. 

6 (4) Pursuant to Executive Order 9066 (7 Fed. 

7 Reg. 1407; relating to authorizing the Secretary of 

8 War to prescribe military areas), Public Proclama9 tion No. 1, and Public Law 503, on March 27, 

10 1942, General DeWitt issued Civilian Exclusion 

11 Order No. 34, making it a crime for Japanese 

12 Americans to leave Military Area No. 1. 

13 (5) On May 3, 1942, under the authority of Ci14 vilian Exclusion Order No. 34, General DeWitt 

15 issued another military order making it a crime for 

16 Japanese Americans to remain in Military Area No. 

17 1 and ordering those Japanese Americans into 

18 make-shift detention centers, allowing those individ19 uals to take only that which they could carry. 

20 (6) The order of May 3, 1942, created an im21 possible predicament for Japanese Americans— 

22 (A) as those orders were diametrically con23 tradictory because— 

24 (i) simultaneously, Japanese Ameri25 cans were made criminals whether they left 


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1 their homes or did not leave their homes; 

2 and 

3 (ii) obedience to one part of Public 

4 Law 503 would necessarily violate the 

5 other; and 

6 (B) because the only way that Japanese 

7 Americans could avoid criminal prosecution was 

8 to submit to indeterminate incarceration in 

9 temporary detention camps through what was 

10 called an ‘‘evacuation’’, which was in fact a 

11 mass roundup of all individuals of Japanese an12 cestry, including orphans, babies, the ill, and 

13 the elderly. 

14 (7) Congress established the Commission on 

15 Wartime Relocation and Internment of Civilians, 

16 which later found that, ‘‘Decades of discrimination 

17 against immigrants from Japan and public hostility 

18 toward Americans of Japanese descent fueled out19 raged shock at the Pearl Harbor attack.’’. 

20 (8) The February 1942 recommendation of 

21 General DeWitt said, ‘‘The Japanese race is an 

22 enemy race and while many second and third gen23 eration Japanese born on American soil, possessed 

24 of United States citizenship, have become ‘Ameri25 canized’, the racial strains are undiluted . . . It 


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1 therefore, follows that along the vital Pacific Coast 

2 over 112,000 potential enemies, of Japanese extrac3 tion, are at large today . . . The very fact that no 

4 sabotage has taken place to date is a disturbing and 

5 confirming indication that such action will be 

6 taken.’’. 

7 (9) By the spring of 1943, Japanese Americans 

8 were volunteering to serve in the Armed Forces of 

9 the United States, and there was growing sentiment 

10 to allow them and their families to return home. The 

11 testimony of General DeWitt before a subcommittee 

12 of the Committee on Naval Affairs of the House of 

13 Representatives on April 13, 1943, highlighted the 

14 discriminatory nature of the orders to evacuate, relo15 cate, and incarcerate Japanese Americans. Histo16 rians have quoted General DeWitt as stating, ‘‘A 

17 Jap’s a Jap! . . . It makes no difference whether he 

18 is an American or not.’’. 

19 (10) In 1942, there were 1,100,000 nationals of 

20 enemy nations in the United States, and, of those 

21 individuals, fewer than 4 percent were Japanese na22 tionals. A curfew was enacted that applied to nation23 als from Germany, Italy, and Japan. American citi24 zens of Japanese ancestry also had to abide by the 


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1 curfew, whereas, American citizens of German an2 cestry and Italian ancestry did not. 

3 (11) Individuals were forced to leave their 

4 homes and livelihoods behind. Most bank accounts 

5 were frozen or confiscated as enemy assets. People 

6 were allowed to take what they could carry, exclud7 ing any item that the Government deemed ‘‘contra8 band’’. 

9 (12) There were 10 permanent incarceration 

10 sites, all of which were in isolated areas— 

11 (A) at Gila River, Arizona; 

12 (B) at Poston, Arizona; 

13 (C) at Jerome, Arkansas; 

14 (D) at Rohwer, Arkansas; 

15 (E) at Manzanar, California; 

16 (F) at Tule Lake Segregation Center, Cali17 fornia; 

18 (G) at Granada, Colorado (commonly re19 ferred to as ‘‘Amache’’); 

20 (H) at Minadoka, Idaho; 

21 (I) at Topaz, Utah; and 

22 (J) at Heart Mountain, Wyoming. 

23 (13) Each incarceration site held between 7,000 

24 and 18,000 individuals, and a total of approximately 


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1 120,000 Japanese Americans were ultimately de2 tained. 

3 (14) Some Japanese Americans, including Fred 

4 Korematsu, Gordon Hirabayashi, and Minoru Yasui, 

5 challenged the detention, exclusion, and curfew or6 ders aimed at Japanese Americans. 

7 (15) In June 1943, the Supreme Court of the 

8 United States unanimously decided Hirabayashi v. 

9 United States, 320 U.S. 81 (1943), and the com10 panion case Yasui v. United States, 320 U.S. 115 

11 (1943). In the Hirabayashi case, the Supreme Court 

12 found that both the power delegated to the military 

13 to impose curfews and the Executive orders creating 

14 that power were constitutional despite— 

15 (A) their applications primarily to Ameri16 cans of Japanese ancestry on the basis of the 

17 particular ‘‘racial characteristics’’ of Americans 

18 of Japanese ancestry; and 

19 (B) the fact that the ultimate result of the 

20 orders was imprisonment for an indefinite pe21 riod of confinement that was imposed without— 

22 (i) the right to an attorney; 

23 (ii) the right to notice of the charges 

24 against the individual being imprisoned; 

25 and 


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1 (iii) the right to a trial. 

2 (16) On December 18, 1944, the Supreme 

3 Court of the United States, in the 6–3 decision in 

4 Korematsu v. United States, 323 U.S. 214 (1944), 

5 held that the order requiring exclusion of persons of 

6 Japanese ancestry from States on the West Coast 

7 was constitutional. The majority of the Court— 

8 (A) found that the order did not violate 

9 the Fifth Amendment to the Constitution of the 

10 United States and was constitutional as a 

11 ‘‘military necessity’’; and 

12 (B) cited the racial characteristic justifica13 tion from the Hirabayashi case to support the 

14 decision in the Korematsu case. 

15 (17) The dissenting Justices in the Korematsu 

16 case pointed out the blatant race-based deprivation 

17 of constitutional rights caused by the curfew and ex18 clusion orders as follows: 

19 (A) Justice Jackson acknowledged the def20 erence afforded to the other branches of the 

21 Federal Government in times of war but argued 

22 that such deference should not force the Court 

23 to ratify or enforce unconstitutional orders. 

24 Justice Jackson noted that Fred Korematsu 

25 should be found innocent, as his guilt was based 


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1 ‘‘only in that he was born of different racial 

2 stock’’. 

3 (B) Justice Murphy emphasized that the 

4 United States was not under martial law and 

5 that ‘‘[s]uch exclusion goes over the ‘very brink 

6 of constitutional power’, and falls into the ugly 

7 abyss of racism’’. 

8 (C) Justice Roberts explicitly acknowl9 edged the racist basis of the orders, stating that 

10 ‘‘[t]he obvious purpose of the orders made, 

11 taken together, was to drive all citizens of Jap12 anese ancestry into Assembly Centers within 

13 the zones of their residence, under pain of 

14 criminal prosecution.’’. Justice Roberts also ex15 plained the clear unconstitutional basis of the 

16 orders, pointing out that ‘‘if a citizen was con17 strained by two laws, or two orders having the 

18 force of law, and obedience to one would violate 

19 the other, to punish him for violation of either 

20 would deny him due process of law.’’. 

21 (18) The public, Congress, and the President 

22 began efforts to address the wrongs of incarceration 

23 and to provide redress for individuals who had been 

24 incarcerated. 


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1 (19) In 1971, Congress repealed the Emergency 

2 Detention Act of 1950, approved September 23, 

3 1950 (64 Stat. 1019), which granted the President 

4 the power to detain individuals without due process 

5 and establish detention centers, through the passage 

6 of the Act entitled ‘‘An Act to amend title 18, 

7 United States Code, to prohibit the establishment of 

8 detention camps, and for other purposes’’, approved 

9 September 25, 1971 (85 Stat. 348) (commonly re10 ferred to as the ‘‘Non-Detention Act of 1971’’). Sen11 ator Daniel Inouye and the Japanese American Citi12 zens’ League led efforts to repeal the Emergency 

13 Detention Act of 1950. 

14 (20) Executive Order 9066 (7 Fed. Reg. 1407; 

15 relating to authorizing the Secretary of War to pre16 scribe military areas) was officially terminated on 

17 December 31, 1976, by President Gerald R. Ford 

18 through Presidential Proclamation 4417, dated Feb19 ruary 19, 1976 (41 Fed. Reg. 7741). President Ford 

20 condemned Executive Order 9066 as a national mis21 take, asking the public to affirm the ‘‘American 

22 Promise’’, a promise to learn from ‘‘the tragedy of 

23 that long-ago experience forever to treasure liberty 

24 and justice for each individual American, and resolve 


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1 that this kind of action shall never again be re2 peated.’’. 

3 (21) In 1980, Congress established the Com4 mission on the Wartime Relocation and Internment 

5 of Civilians. After public hearings around the coun6 try and review of all documentation the Commission 

7 was able to compile, the Commission— 

8 (A) issued a report titled ‘‘Personal Justice 

9 Denied’’ with recommendations on legislative 

10 remedies to address the incarceration; and 

11 (B) concluded that the military orders and 

12 subsequent curfew, exclusion, and detention 

13 were not based on military necessity but instead 

14 arose due to ‘‘race prejudice, war hysteria and 

15 a failure of political leadership.’’. 

16 (22) In 1983, petitions for writs of error coram 

17 nobis were filed in Federal courts on behalf of Fred 

18 Korematsu, Gordon Hirabayashi, and Minoru Yasui 

19 based on the discovery of secret intelligence reports 

20 and memoranda of the Department of Justice, the 

21 Federal Bureau of Investigation, the Federal Com22 munications Commission, the Navy, and the Army 

23 categorically denying that Japanese Americans had 

24 committed any wrong and admitting that there was 

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1 yers of the Department of Justice who were respon2 sible for defending the Government during the origi3 nal cases in 1943 and 1944 characterized the claims 

4 of the Army that Japanese Americans were engaging 

5 in espionage as ‘‘intentional falsehoods’’ and charac6 terized the justification of a ‘‘military necessity’’ as 

7 a fabrication. The lawyers unsuccessfully pleaded 

8 with the Solicitor General of the United States at 

9 the time of the orders, Charles Fahy, to disclose to 

10 the Supreme Court of the United States these intel11 ligence reports, stating that to withhold the contents 

12 of the reports ‘‘would approximate the suppression 

13 of evidence’’. The Supreme Court of the United 

14 States has cautioned that writs of coram nobis 

15 should be granted ‘‘only under certain circumstances 

16 compelling such action to achieve justice’’ and to 

17 correct ‘‘errors of the most fundamental character’’. 

18 (23) Between 1983 and 1987, Federal courts 

19 granted petitions for writs of coram nobis for Fred 

20 Korematsu and Gordon Hirabayashi, vacating their 

21 criminal convictions for violating Public Law 503, 

22 finding that ‘‘fundamental error’’ had resulted from 

23 suppression of evidence, destruction of evidence, and 

24 presentation of false and misleading information to 

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1 eral Government. Minoru Yasui died while his case 

2 was in the process of appeal, and, as such, he never 

3 received an evidentiary hearing. 

4 (24) President Ronald W. Reagan— 

5 (A) urged Congress to pass the Civil Lib6 erties Act of 1988 (50 U.S.C. App. 1989b et 

7 seq.), which apologized for the incarceration of 

8 Japanese Americans and authorized payment to 

9 the survivors, saying the Civil Liberties Act of 

10 1988 was needed to end ‘‘a sad chapter in 

11 American history in a way that reaffirms Amer12 ica’s commitment to the preservation of liberty 

13 and justice for all’’; and 

14 (B) signed the Civil Liberties Act of 1988 

15 into law on August 10, 1988. 

16 (25) In 2011, the Acting Solicitor General of 

17 the United States, Neal Katyal, issued an admission 

18 of misconduct for the orders and actions against 

19 Japanese Americans during World War II. Acting 

20 Solicitor General Katyal admitted that his prede21 cessor, Solicitor General Charles Fahy, had made 

22 gross generalizations based on race and had failed to 

23 disclose a naval intelligence report concluding that 

24 Japanese Americans, including those incarcerated, 


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1 did not pose a threat to the national security of the 

2 United States. 

3 (26) Fred Korematsu received the Presidential 

4 Medal of Freedom for his civil rights work from 

5 President William J. Clinton in 1998. Gordon 

6 Hirabayashi received the Presidential Medal of Free7 dom in 2012 from President Barack H. Obama. 

8 Minoru Yasui received the Presidential Medal of 

9 Freedom from President Obama posthumously in 

10 2015. 

11 (27) Korematsu v. United States, 323 U.S. 214 

12 (1944), is now part of the ‘‘anti-canon’’, a group of 

13 cases including Dred Scott v. Sandford, 60 U.S. 393 

14 (1857), Plessy v. Ferguson, 163 U.S. 537 (1896), 

15 and Lochner v. New York, 198 U.S. 45 (1905), 

16 that, though found to be constitutional at the time, 

17 are now viewed as precedent not to be relied upon 

18 and as lessons on how not to repeat the mistakes of 

19 history. 

20 (28) The right to be free from discrimination 

21 based on membership in a protected class and the 

22 right to due process are enshrined in the Constitu23 tion of the United States. 

24 (29) Section 1 of the 14th Amendment to the 

25 Constitution of the United States provides that 


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1 ‘‘[n]o state shall make or enforce any law which 

2 shall abridge the privileges or immunities of citizens 

3 of the United States; nor shall any State deprive any 

4 person of life, liberty, or property, without due proc5 ess of law; nor deny to any person within its juris6 diction the equal protection of the laws.’’. 

7 (30) The 14th Amendment to the Constitution 

8 of the United States embodies the principle that 

9 ‘‘the government must treat citizens as individuals, 

10 and not as members of racial, ethnic, or religious 

11 groups.’’. 

12 (31) Despite the rejection of Korematsu v. 

13 United States, 323 U.S. 214 (1944), and the dark 

14 legacy of the incarceration of individuals of Japanese 

15 ancestry during World War II, the Korematsu case 

16 is still used as a justification for discrimination 

17 under the guise of national security. 

18 (32) A spokesman for Great America PAC said 

19 on a broadcast of the Fox News Network that incar20 ceration of Japanese Americans provided the prece21 dent for the proposal for a registry of Muslims made 

22 by then President-elect Donald J. Trump. 

23 (33) In 2015, then Presidential candidate Don24 ald J. Trump told the American Broadcasting Com25 pany (commonly referred to as ‘‘ABC’’) that he 


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1 would have to consider the same policies as Presi2 dent Franklin D. Roosevelt, even on a ‘‘temporary’’ 

3 basis because ‘‘what I am doing is no different than 

4 what FDR—FDR’s solution for Germans, Italians, 

5 Japanese, you know, many years ago.’’. 

6 (34) Courts have rejected efforts to ban entry 

7 of individuals to the United States solely on the 

8 basis of the national origin or religious background 

9 of those individuals, efforts that include the deten10 tion of certain individuals at airports without indi11 vidualized due process following the implementation 

12 of Executive Order 13769 (82 Fed. Reg. 8977; re13 lating to protecting the Nation from foreign terrorist 

14 entry into the United States) and Executive Order 

15 13780 (82 Fed. Reg. 13209; relating to protecting 

16 the Nation from foreign terrorist entry into the 

17 United States). 

18 (35) Justice Jackson, in Korematsu v. United 

19 States, 323 U.S. 214 (1944), warned that, ‘‘once a 

20 judicial opinion rationalizes such an order to show 

21 that it conforms to the Constitution, or rather 

22 rationalizes the Constitution to show that the Con23 stitution sanctions such an order, the Court for all 

24 time has validated the principle of racial discrimina25 tion in criminal procedure and of transplanting 


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1 American citizens. The principle then lies about like 

2 a loaded weapon, ready for the hand of any author3 ity that can bring forward a plausible claim of an 

4 urgent need.’’. 

5 (36) Leaders such as the late Representative 

6 Mark Takai from Hawaii were dedicated to remem7 bering the injustices suffered by Japanese Ameri8 cans and fighting to ensure the equal protection of 

9 the civil liberties of every citizen for all future gen10 erations. Representative Takai served 20 years in 

11 the House of Representatives of Hawaii and had a 

12 distinguished career in the National Guard of Ha13 waii, earning the rank of Lieutenant Colonel before 

14 being elected to Congress in 2014. Representative 

15 Takai was an advocate for the establishment of the 

16 Honouliuli National Monument, the first monument 

17 dedicated to teaching future generations about the 

18 incarceration camps for individuals of Japanese an19 cestry during World War II. Representative Takai 

20 said, ‘‘The internment of Japanese American citi21 zens during World War II is a tragic example of 

22 what happens when we allow fear and hatred to take 

23 the place of rational and just actions.’’. One of the 

24 last acts of Representative Takai in the House of 

25 Representatives of Hawaii was the passage of ‘‘Civil 


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1 Rights Day’’ legislation remembering Fred 

2 Korematsu and the historic fight of Fred Korematsu 

3 for due process and civil rights. Representative 

4 Takai said ‘‘Now more than ever, we must learn 

5 from the mistakes of the past . . . and educate the 

6 coming generations about the importance of civil lib7 erties for all people.’’. 

8 SEC. 3. PROHIBITION AGAINST UNLAWFUL DETENTION. 

9 Section 4001 of title 18, United States Code, is 

10 amended— 

11 (1) by redesignating subsection (b) as sub12 section (c); and 

13 (2) by inserting after subsection (a) the fol14 lowing: 

15 ‘‘(b) PROHIBITION ON DETENTION BASED ON PRO16 TECTED CHARACTERISTICS.— 

17 ‘‘(1) IN GENERAL.—No individual may be im18 prisoned or otherwise detained based solely on an ac19 tual or perceived protected characteristic of the indi20 vidual. 

21 ‘‘(2) DEFINITION.—In this subsection, the term 

22 ‘protected characteristic’ includes— 

23 ‘‘(A) race; 

24 ‘‘(B) ethnicity; 

25 ‘‘(C) national origin; 


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1 ‘‘(D) religion; 

2 ‘‘(E) gender; 

3 ‘‘(F) gender identity; and 

4 ‘‘(G) sexual orientation.’’. 

Æ 


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