/ September 4, 2008

We’re at War… Aren’t We?

This week, the Federal District Court of Massachusetts was forced to make a controversial, and somewhat peculiar, decision; is the United States at war? Judge Richard Stearns has determined that the U.S. is not currently at war, but was between 2001 and 2004, a decision that will allow the federal government to pursue a fraud case against a group of Boston construction workers.

In May of 2006, the U.S. indicted several “Big Dig” workers on fraud charges. The workers filed a motion to dismiss, arguing that because the alleged crimes took place in 2001, the five year federal statute of limitations had kicked in. The government hit back with the seldom used Suspension Act, 18 U.S.C. § 3287, which defers the statute of limitations during war-time:

“When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not . . . shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.”

Practically speaking, it is clear that the conflicts in Iraq and Afghanistan satisfy the definition of war, and their classification as such would effectively extend the statute of limitations to allow the trial to go forward. But, Congress did not officially declare war for either conflict; it green-lighted both with resolutions Authorizing the Use of Military Force (AUMFs). The defendants contend that without an official declaration of war, the Suspension Act is null.

Judge Stearns, however, disagreed, finding that there is no language within the statute mandating that the war at issue be declared by Congress. The Act was written during World War II, originally intended to lend the D.O.J. some extra time to prosecute war-time fraud and sort through massive and complicated military contracts. In his decision, Stearns writes that the wars in Afghanistan and Iraq have created similar needs, and thus, the Suspension Clause stands. The defendants’ motion to dismiss was denied, and in case you were wondering, the U.S. was in fact at war the last couple years.

Source: The Wall Street Journal Law Blog

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