Criminal law - Wartime Suspension of Limitations Act extends filing time for fraud claims against Big Dig contractors - United States v. Prosperi.

• Author: Campbell, Cailin M.

The United States government historically suspends federal statutes of limitations during wartime. (1) The Wartime Suspension Act ("Suspension Act") extends the statute of limitations involving crimes of fraud against the federal government for five years after the end of a war. (2) In United States v. Prosperi, (3) the Federal District Court of Massachusetts considered whether the country was "at war" and, if so, whether the Suspension Act allowed fraud claims to be brought against Central Artery Tunnel project ("Big Dig") contractors that were otherwise time-barred. (4) The court concluded that the United States was at war in both Afghanistan and Iraq when the lawsuit originated, and thus, the fraud claims were not time-barred because the Suspension Act applied. (5)

The Big Dig, a fifteen-year $14.6 billion infrastructure project, included replacing almost eight miles of highway and moving large portions of an elevated highway underground in Boston, Massachusetts. (6) The defendants, former managers of Aggregate Industries, a Big Dig contractor, were charged with making and mailing false claims to the federal government. (7) The government alleged that beginning in 1999, the defendants supplied concrete that did not meet government construction contract specifications. (8) The government indicted the defendants on May 3, 2006. (9) The defendants moved to dismiss the majority of the counts as time-barred on June 29, 2007. (10)

Historically, the branches of the federal government struggle over which branch has the ability to decide that the country is at war. (11) The Constitution gives Congress the power to "declare war" and the President the power to command the military. (12) The Constitution, however, is silent as to the war power of the Judiciary. (13) In light of this silence, the Judiciary has been reluctant to rule that a war legally exists. (14) Instead, the Supreme Court, through analyzing the actions of both the President and Congress, can articulate the start and end dates of wars. (15) Traditionally, the Court looks towards presidential proclamations, formal peace agreements, and specific legislation to determine when a war has ended. (16)

Despite the ambiguity as to which branch of the federal government decides if the country is "at war," the government has long recognized the need to extend statutes of limitations during times of war. (17) The Suspension Act, first enacted in 1921, extends the statute of limitations for crimes involving fraud or attempted fraud against the government during times of war. (18) The statute applies when fraud is an essential element of the crime charged and the offense involves a pecuniary matter. (19) Congress amended the Suspension Act multiple times; first in 1948, when the words "at war" were added to make the statute permanent. (20) The statute was amended again in July 2008 to expand the definition of "at war" to include the congressional authorization of military force and to encourage the prosecution of crimes involving fraud against the government, despite the statute not being successfully used since 1956. (21)

The definition of "at war" within legislation has been the subject of much debate. (22) "[T]here is next to no positive law regulating the war-ending process which is both substantive and explicit;" thus, the specific actions necessary to end a war are unclear. (23) Traditionally, war ends through a formal agreement or complete military victory by annihilation of the adversary. (24) With the advent of wars against terrorism, like those in Afghanistan and Iraq, the analysis becomes complicated because there is not an easily identifiable enemy, such as a country. (25) As a result, it is difficult to ascertain the start and end dates of untraditional wars like those in Afghanistan and Iraq. (26)

In United States v. Prosperi, the Federal District Court of Massachusetts held that the United States was at war with both Afghanistan and Iraq, and therefore, the Suspension Act extended the statute of limitations for crimes involving fraud committed against the government during the war period. (27) Despite possible political implications, the court reasoned that it was appropriate to determine whether the country was, in fact, at war. (28) The court debated the actual meaning of the words "at war" within the statute. (29) Acknowledging that the statute was used rarely between World War II and today, the court rejected the idea that the statute had been impliedly revoked. (30) Instead, the court identified four factors that a court should consider in determining whether the United States is at war. (31) Specifically, the court considered whether: 1) Congress gave authorization to the President; 2) the conflict is deemed a war under international law; 3) the size and scope of the conflict is large; and 4) the conflict causes a diversion of national resources. (32)

Applying the first factor, the Prosperi court found that Congress and the Supreme Court had sufficiently recognized the President's authority to combat terrorism in both Afghanistan and Iraq. (33) Because a formal declaration of war was not necessary, the court also found that the conflicts in Afghanistan and Iraq could be deemed wars under international law. (34) Considering the third factor, the court concluded that the size and scope suggested that both military actions were, in fact, "wars." (35) Finally, applying the last factor, the court recognized that the terrorist attacks on September 11, 2001, prompted a massive reorganization of the federal government that diverted resources to preventing international terrorism. (36) With all four factors satisfied, the court ultimately concluded that the conflicts in Afghanistan and Iraq were "wars" for the purpose of the statute, and that the Afghanistan War ended on December 22, 2001, and the Iraq War ended on May 1, 2003. (37)

The Federal District Court of Massachusetts correctly found that the meaning of "at war" within the Suspension Act was a judicial, rather than a political, question. (38) The court, in line with Supreme Court precedent, looked toward congressional and presidential actions to determine the start dates of each war. (39) Additionally, the court appropriately rejected the reasoning that the Suspension Act had been impliedly repealed due to disuse. (40) The court went beyond Supreme Court precedent, however, in formulating the four-factor test to determine whether the country was at war. (41) While the court was correct in considering congressional recognition of the Afghanistan and Iraq Wars, it should not have analyzed the wars under international law or considered the size or cost of either war. (42) Instead, the court should have only analyzed the actions of Congress and the President and decided whether either political branch had acknowledged a start or end date to either war. (43) The court incorrectly defined December 22, 2001 as the end date of the Afghanistan War. (44) Although cited, the court ignored Hamdi v. Rumsfeld, (45) in which the Supreme Court found that the United States was still "at war" in Afghanistan in 2004.46 Specifically, the Supreme Court explained that the United States could only hold enemy combatants as long as the conflict was ongoing. (47) The Supreme Court's holding in Hamdi necessitates a finding that the country is still at war in Afghanistan because there were still Afghan enemy combatants detained. (48) Additionally...