October 11, 2007

When the United States Is at War

by PG

Because I mostly avoid Michelle Malkin's and other blogs grounded in a team mentality (DKos would be similar on the left), I had missed the kerfuffle last year about some UC Santa Cruz students who had blocked military recruiters from a job fair on campus. While I think such blocking is unwise -- either the student body all feels the same as those protesters, in which case no one will sign up anyway, or some students are interested in military service, in which case the protesters are blocking an opportunity for their classmates -- I hadn't thought it was criminal. But so it was trumpeted to be on conservative sites such as Confederate Yankee, and their reading of 18 U.S.C. 2388 (a) reminded me of the ongoing disagreement between many liberals and conservatives on a fundamental legal question: is the United States currently at war? On a practical level, our military has been in active combat operations in Afghanistan since 2001, in Iraq since 2003. However, if someone were to challenge his prosecution under any of the several laws that apply only when the United States is at war, a court would have to make a legal determination as to whether we are at war.

For example, 18 U.S.C. 2388(a) ( reads,

(a) Whoever, when the United States is at war, willfully makes or conveys false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies; or Whoever, when the United States is at war, willfully causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or willfully obstructs the recruiting or enlistment service of the United States, to the injury of the service or the United States, or attempts to do so - Shall be fined under this title or imprisoned not more than twenty years, or both.
Note that the obstruction of recruitment is a crime only when the U.S. is at war, whereas incitement to insubordination by a member of the Armed Forces is a crime at any time under 18 U.S.C. 2387. But to Confederate Yankee & Co., it goes without saying that the condition precedent for 18 U.S.C. 2388 -- that "the United States is at war" -- has been met continuously since 2001. I'm less confident. According to the historical notes on the Code,
The phrase "when the United States is at war" was inserted at the beginning of this section to make it permanent instead of temporary legislation, and to obviate the necessity of reenacting such legislation in the future. This permitted the elimination of references to dates and to the provision limiting the application of the section to transactions not yet fully barred. When the provisions of the War Contract Settlements Act of 1944, upon which this section is based, are considered in connection with said section 590a which it amends, it is obvious that no purpose can be served now by the provisions omitted.
In other words, these laws were written to keep the rules of WWII going for any later wars. Like most of our conflicts before it but none after, WWII was a declared war. Part of the failure to declare later conflicts to be "wars" may be attributable to our refusal in some cases to recognize the opposing side as a government. We did not deny that Mussolini, Hitler and Tojo/ Emperor Hirohito were the heads of state in Italy, Germany and Japan; we did not claim them to be merely the heads of factions. The United States sought the surrender of the Axis powers. In contrast, the U.S. did not recognize Kim Il-sung or Ho Chi Minh as the heads of state for Korea and Vietnam, and did not seek surrenders of those nations from them. Similarly, the U.S. (and most of the world) did not recognize the Taliban as the legitimate government of Afghanistan. Why the U.S. has not declared war in either the first or the second Gulf action does not fit into this explanation, however, because we treated Saddam Hussein as Iraq's head of state (especially when we were sending him aid against Iran).

Multiple criminal statutes rely upon that condition precedent. Take 18 U.S.C. 3287, which "[w]hen the United States is at war" suspends the statute of limitations on particular fraud offenses "until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress." If you believe that the U.S. has been at war since the AUMF, a physician who is alleged to have intentionally over-billed Medicare ("fraud or attempted fraud against the United States or any agency thereof in any manner) in October 2001 can be prosecuted for it until an indefinite point well into the future. Neither the President nor Congress shows any signs of saying that we have terminated hostilities* with all of "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001," but even if they did so today, the doctor could be prosecuted three years from now. That the evidence of a crime over nine years old may be long lost -- part of the reason we have statutes of limitations in the first place -- is irrelevant. I can understand how a nation that is on a full-blown war footing may not have the resources to check against fraud until the cessation of hostilities, but the U.S. government does not seem to be in such a condition right now.

Other "when the United States is at war" criminal statutes include 18 U.S.C. 2153 (destruction of war material, war premises, or war utilities), 18 U.S.C. 2154 (production of defective war material, war premises, or war utilities), 46 U.S.C. 835 (restrictions on transfer of shipping facilities during war or national emergency). Unlike Sections 2388 and 3287, these also apply "in times of national emergency as declared by the President or by the Congress."

Having heard only a couple of copyright lectures, I wasn't aware that there's a special procedure for circumventing the enemy's intellectual property rights while we're at war, and even after courses in corporations and securities, I didn't know that corporations had to report all of the beneficial owners of their stock who are residents of enemy nations. And did you know that the National Rifle Association has lobbied its way right into the U.S. Code?

(b) Limitation on Sale of Guns and Ammunition.— Sales of guns and ammunition authorized under any law shall be limited to—
(1) other departments of the Government;
(2) governments of foreign countries engaged in war against a country with which the United States is at war; and
(3) members of the National Rifle Association and of other recognized associations organized in the United States for the encouragement of small-arms target practice.
But enough of that; too much time with the Code leaves me feeling like I've been peering through the window of a sausage factory.

* There's a further separation-of-powers complication, in that Congress's saying it thinks the President ought to terminate hostilities may not be the same as the actual termination of hostilities. Cf. Termination of Hostilities in Indochina, Pub. L. 92–129, Sept. 28, 1971, 85 Stat. 360:

It is hereby declared to be the sense of Congress that the United States terminate at the earliest practicable date all military operations of the United States in Indochina, and provide for the prompt and orderly withdrawal of all United States military forces at a date certain subject to the release of all American prisoners of war held by the Government of North Vietnam and forces allied with such Government, and an accounting for all Americans missing in action who have been held by or known to such Government or such forces. The Congress hereby urges and requests the President to implement the above expressed policy by initiating immediately the following actions:
(1) Negotiate with the Government of North Vietnam for an immediate cease-fire by all parties to the hostilities in Indochina.
(2) Negotiate with the Government of North Vietnam for the establishing of a final date for the withdrawal from Indochina of all military forces of the United States contingent upon the release at a date certain of all American prisoners of war held by the Government of North Vietnam and forces allied with such Government.
(3) Negotiate with the Government of North Vietnam for an agreement which would provide for a series of phased and rapid withdrawals of United States military forces from Indochina subject to a corresponding series of phased releases of American prisoners of war, and for the release of any remaining American prisoners of war concurrently with the withdrawal of all remaining military forces of the United States by not later than the date established pursuant to paragraph (2) hereof.
I wonder how incredibly poorly a military action has to be going for Congress to stop passing mere resolutions and instead pull the funding.

October 11, 2007 11:32 AM | TrackBack
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