Are We at War?

As I've seen various political issues pop up over the last several years, I've wondered if we're really war. Congress didn't declare war, but they did issue the Authorization to Use Military Force (AUMF). Does the president have expanded war powers? This question came up in a very odd way in a Massachusetts court case, I found via How Appealing

"'In this case, the court is asked to determine whether the United States is presently at war, and if so, with whom.' So begins a quite interesting opinion [pdf] that U.S. District Judge Richard G. Stearns of the District of Massachusetts issued last Friday." I found his train of thought and various statistics about this and previous wars interesting. Plus, you'll never guess what started this case...

"Defendants are charged with conspiracy, mail fraud, and the making of false statements in connection with the federally-financed Central Artery Tunnel Project" aka, the Big Dig. They supplied concrete for the tunnel and are accused of "recycling stale and adulterated concrete, and submitting false batch reports to conceal their fraud." This is not related to the infamous tunnel ceiling collapse 2 years ago. Defendants’ criminal acts are alleged to have begun in 1999. The indictment was returned on May 3, 2006, and superseded on June 28, 2006.

"Defendants contend that the acts of highway project fraud and mail fraud alleged to have been committed prior to May 3, 2001 (eighty-five counts in total), are barred by the five-year federal statute of limitations. The government, for its part, maintains that these counts are saved by the Wartime Suspension of Limitations Act ."

The Suspension Act was created in 1921, it doubled the statute of limitations to 6 years for fraud committed against the US. It was repealed in 1927 when WWI cases were over, and then re-enacted for WWII. In 1948 it was amended to apply when the US was "at war".

"Defendants, for their part, argue that the Suspension Act does not apply because: (1) the United States is not currently “at war” within the meaning of the Act; and even if it were, (2) the mail fraud and false statement charges do not fall within the scope of the Act because the alleged criminal acts were not related to military procurement."

So, these guys allegedly used bad concrete and the government found out about it after the statute of limitations ran out. So the government used an act created to extend the limitations when a war forces procurement to happen quickly and not allow shoddy work to happen while those doing oversight are busy during a war.

The act hasn't been used very often but it has been used. In a 1953 case, United States v. Grainger, the act was used for non-military purposes, so the second argument is moot.

As to whether we're at war, the Suspension Act doesn't define the term so the court has to decide. Yes there are several statutes that use the term "at war" and a plain reading would interpret this as Congress declaring war. The meaning of "at war" in the Suspension Clause has only come up in one case, in 1993, US v. Shelton, where a district court decided that for the first Gulf War, Congress didn't declare war and the Suspension Clause doesn't apply. That court wrote:

"[t]he Congressional intent underlying the Suspension Act appears to have been more directly concerned with such massive and pervasive conflicts as World War II. Indeed, there appear to be no reported decisions of civilian courts in which the Suspension Act was applied during any of the “wars” involving the United States that have occurred since World War II. The Vietnam War was arguably a much more intrusive and lengthy conflict than the recent conflict in the Persian Gulf area, but the Suspension Act does not appear to have ever been used for any offenses that occurred during the Vietnam War. "

Judge Stearns thinks that while the statute may not have been used, that doesn't mean it's no longer valid. Also, "The Shelton reading of the Suspension Act would be defensible if there was some indication in the Act (or its legislative history) that Congress meant the tolling provision to apply only during declared wars of an all-consuming nature like the Second World War. But there is not."

Also there are old Supreme Court cases from "the Quasi-War with France (1798-1800)" dealing with ownership rights of ships and cargo, that decided that it wasn't. "The unanimous Supreme Court, writing seriatim, found it irrelevant whether the conflict was a “perfect” (i.e., a declared) war, or an “imperfect” one." They took the circumstances of raising an army and armed naval conflict to mean we were at war.

Sterns writes "The United States has not declared war in any conflict since World War II, despite prolonged engagements in Korea, Vietnam, Kosovo, Afghanistan, and Iraq (twice) and shorter deployments in Panama, Grenada, Haiti, and Somalia, among others." He describes how each was authorized to use military force by an act of Congress or the U.N.

"Other courts have similarly resisted reading a declaration of war requirement into the terms “at war” or “during time of war” as they are used in other statutes." He mentions the War Powers Act and the Federal Tort Claims Act. "it is clear from both the text and the legislative history that the “at war” provision of the Suspension Act was intended to capture any authorized military engagement that might compromise or impede the government’s ability to investigate allegations of fraud."

He answers whether we're at war for purposes of the Suspension Act in four parts:

(1) the extent of the authorization given by Congress to the President to act:
AUMF of Sep 18, 2001 applied to “those nations, organizations or persons” responsible for 9/11. Bush used this to invade Afghanistan. AUMF of Oct 11, 2002 was against Iraq to “remove from power the current Iraqi regime and promote the emergence of a democratic government to replace that regime.” While not formal declarations of war, the War Powers Resolution does apply. The executive and legislative branches have treated it as war, issuing the required reports. In Hamdi v. Rumsfeld and Boumediene v. Bush the Supreme Court said we're at war.

(2) whether the conflict is deemed a “war” under accepted definitions of the term and the rules of international law:
He can't find any definition of war after 1625 that requires a formal declaration, they all just use "hostilites by force of arms"

(3) the size and scope of the conflict (including the cost of the related procurement effort):
"The Congressional Research Service estimates that the costs of the Afghanistan and Iraq conflicts will total nearly $859 billion between FY2001 and the latter part of FY2009. The Congressional Budget Office (CBO) has projected a total combined cost through FY2017 of between $1.2 trillion and $1.7 trillion. Adjusted for inflation, that cost surpasses any other war in American history, with the exception of World War II."

"Military involvement in Iraq alone, now over five years in duration, is longer than the U.S. involvement in World Wars I and II combined."

"Another useful gauge of the scope of these conflicts is measured in the expenditure of military manpower, both in raw numbers and in casualties. The exact number of those deployed is difficult to obtain, but troop strength for the combined hostilities averaged over 250,000 in 2007. Since 2001, over one million men and women in uniform have served in Iraq or Afghanistan, many of them on successive tours of duty. The Department of Defense reported a total of 4,589 military casualties in the combined actions as of June of 2008. That casualty figure surpasses the Revolutionary War (4,435), the War of 1812 (2,260), the Mexican War (1,733), the Indian Wars (1,000), the Spanish-American War (385), and the Persian Gulf War (147). The number of wounded soldiers – 32,135 as of June of 2008 – is over five times the number of wounded in the Revolutionary War (6,188), and over seven times the number of wounded in either the War of 1812 (4,505), or the Mexican War (4,152)."

(4) the diversion of resources that might have been expended on investigating frauds against the government.:
"The 9/11 attacks precipitated a massive reorganization of the U.S. Government to cope with the threat posed by terrorists in general and radical Islamists in particular" He cites, the Patriot Act, the revamping of FISA, the creation of DHS. "Since the fall of 2001, the FBI has referred more than 7,000 terrorism cases to DOJ. At the same time, the
overall number of criminal prosecutions credited to the FBI has dropped by more than 30 percent (from 19,000 to 12,700 cases). The sharpest declines have been in the prosecution of white-collar and organized crime."

So it counts as a war. "The tolling provisions of the Suspension Act apply 'until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.'" So is the war over?

"Traditionally, the end of a war is marked by the signing of a formal peace treaty. However, formal surrenders like those of Germany and Japan at the end of World War II, like formal declarations of war, are the modern exceptions. The end of more recent conflicts have been signaled by Presidential pronouncement or by the diplomatic or de jure recognition of a former belligerent or a newly constituted government. On July 27, 1953, for example, an Armistice Agreement with North Korea was followed by a proclamation by President Eisenhower that the “carnage of war is to cease and the negotiation of the conference table is to begin.”

"On December 22, 2001, the United States formally recognized and extended full diplomatic relations to the new government of Hamid Karzai. That recognition signaled the cessation of a state of war with Afghanistan. Accordingly, the statute of limitations with respect to the Afghan conflict, expired on December 22, 2004. Similarly, on May 1, 2003, President Bush, while aboard the USS Abraham Lincoln, proclaimed that “[m]ajor combat operations in Iraq have ended. In the Battle of Iraq, the United States and our allies have prevailed. And now our coalition is engaged in securing and reconstructing that country.” Consequently, with regards to the Iraq conflict, the statute of limitations expired on May 1, 2006."

So, we were at war, but it's over now.

"The court therefore will deem the Suspension Act to toll the limitations period for defendants’ alleged offenses from September 18, 2001, to May 1, 2006."