Did you know that, as of 2008, there’s a good chance the federal government can prosecute you for fraud against the U.S. whenever it wants to, regardless of the statute of limitations? Does that seem alarming to you?
The government can do this because of a federal statute called the Wartime Suspension of Limitations Act. The Act says that when the U.S. is at war or “Congress has enacted a specific authorization for the use of the Armed Forces,” the statute of limitations for any offense involving fraud or attempted fraud against the U.S. or one of its agencies is suspended until five years after the termination of hostilities.
The Act has its roots in earlier laws. The first, enacted in 1921 after the end of World War I, extended the statute of limitations for frauds that were indictable at that time out of a concern that the war effort had drawn important government resources away from investigating and prosecuting fraud. Congress passed a similar statute in 1942, while World War II still raged. Some updates followed over the years, most recently in 2008, when Congress added the language above about authorizations for the use of the Armed Forces. Of course, it’s not clear to me—or to some far more prominent commentators—that there’s much difference under U.S. law between being “at war” and Congress having authorized the use of military force. But that shouldn’t obscure the core point; for as long as the U.S. military is operating pursuant to the congressional authorizations to use military force enacted in 2001 (for those who planned and perpetrated the 9/11 attacks) and 2002 (for Iraq), the government will have a free hand to go after contractors and others who defraud the U.S. at a time of its choosing, even if those crimes have nothing to do with the war effort.
The policy underlying the Act is understandable enough: many government resources are reallocated during wartime. And there’s no question that since 9/11, the government has indeed redirected many of its law enforcement efforts to intelligence and counterterrorism work—sometimes to the detriment of prosecuting white collar crime and organized crime. Nevertheless, the Act represents a disconcerting rule in a time where there’s not only no end in sight to the current congressionally authorized deployments, but not even a firm conception of what an end to hostilities with non-state actors like transnational terror networks would look like. American war-footing social habits have certainly shifted from the domestic “wartime” culture that prevailed during World War II. Then, Katz’s Delicatessen’s campaign for customers to “send a salami to your boy in the Army” was a widely known catchphrase that was later featured in a song in Jerry Lewis’s 1950 musical At War with the Army. The cultural relevance is lessened today, though this author would appreciate his family sending anything from Katz’s to their boy in Seattle—a place where it’s impossible to find an authentic pastrami sandwich.
The Supreme Court did clarify in 2015 that the Act only applies to criminal frauds, and not to civil claims brought under the False Claims Act (itself a Civil War-era law enacted to combat wartime frauds). See Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter. But that clarification only hardens the conclusion that if you criminally defraud the United States, you can’t rest easy for the foreseeable future.