UCMJ statute of limitations during wartime

[steve119]

What is the name of your state? SD

The statute of limitations for most crimes under the UCMJ is 5 years. However, it gets extended in time of war. Does our current conflict in Iraq/Afghanistan count as war for the UCMJ statute of limitations purposes? This may sound like a dumb question, and I figure the answer is probably yes it does count as war, but Im not sure because there wasn't a declaration of war by congress.

Thank you - I welcome your insights.

[cyberspook]

Originally Posted by steve119

What is the name of your state? SD

The statute of limitations for most crimes under the UCMJ is 5 years. However, it gets extended in time of war. Does our current conflict in Iraq/Afghanistan count as war for the UCMJ statute of limitations purposes? This may sound like a dumb question, and I figure the answer is probably yes it does count as war, but Im not sure because there wasn't a declaration of war by congress.

Thank you - I welcome your insights.

I looked this up * 843. ART 43 of the UCMJ. It states when the United States is at war...

I am also curious as to what the UCMJ considers war.

[mommyof4]

[url]www.au.af.mil/au/awc/awcgate/ucmj.htm[/url]

"Time of War" determination and the UCMJ, posted by USMC SJA (local copy)
“Time of War” and the Uniform Code of Military Justice

When the nation enters a “Time of War,” special provisions of the Uniform Code of Military Justice (UCMJ) come into effect. These provisions are specifically designed to enhance the commander’s ability to ensure order and discipline.

A “Time of War,” for UCMJ purposes, can exist without a Congressional declaration of war. For example, at the outset of the Korean War, which was conducted without a Congressional declaration of war, the President declared for UCMJ purposes that a “Time of War” existed. There was no such UCMJ specific declaration during the Vietnam War, nor was there a formal declaration of war, and as a result, the military courts of appeals heard numerous appeals regarding war-related offenses. In response, the military courts of appeal developed a set of standards to determine if a UCMJ “time of war” exists.

Since 11 September there has been neither a declaration of war from Congress, nor a special finding by the President that UCMJ “Time of War” exists.

A “Time of War” determination effects the UCMJ in several ways. For example, certain offenses can only occur during time of war (e.g. the offenses of improper use of a countersign, misconduct as a prisoner, and spying ). Other offenses against military authority are strengthened to enhance the military commander’s ability to maintain order and discipline in wartime. For example, death becomes the maximum punishment for desertion, assaulting or willfully disobeying a superior commissioned officer, and misbehavior of a sentinel. Increased sentences are also allowed for malingering, drug offenses, and self-injury without intent to avoid service.

Another effect of a “Time of War” determination, the statute of limitations, that is, the time limit after which an offense may not be punished, is also modified for several offenses. For example, for the offenses of unauthorized absence and missing movement, the time limit does not begin to run until the time of war has concluded. Another example is that the statute of limitation, rather than being tolled, is extended in length for frauds committed against the government and other offenses that are “detrimental to the prosecution of the war . . . .”

[steve119]

SO let me see if I understand you correctly. There are three independent ways for a UCMJ "time of war" to exist:

1. congress declares war (which happened in WWII)
2. the president specifically declares that this is a UCMJ "time of war" (which happened in Korean War)
3. certain standards set by the military court of appeals are met (which happened in Vietnam War)

So even though #1 and #2 haven't happened, #3 is still a possibility for the current Iraq/Afghanistan conflict. What are the standards?

[SHORTY LONG]

Like it or not, and call it what you may want; we
have crazies trying to kill us! Contact your locale
Congress person and get their feedback on your
inquiry whither we are at war or not!

[mommyof4]

I don't know. I didn't go that far into research. I just answered your question.

[steve119]

And I appreciate it - your answer was exactly what I was looking for. A belated thank you.

[fozzy2]

When are we at "war"? There is no one real answer. Generally speaking, the government will try and have it both ways -- cherry picking laws it likes that apply during war, and ignoring laws it doesn't like that apply during war.

Legally speaking, the need for a Congressional declaration is all but dead and gone. The courts will almost always defer to whatever the executive branch is arguing at the case at hand. There is no requirement for consistency. A gov lawyer will claim "war" one day, another will deny "war" the next. That's how it goes.

More directly to the point -- the military appellate courts have not, to my knowledge, made any authorative ruling on our current conflict in Iraq or Afghanistan. However, based on precedent, they would almost certainly agree that for UCMJ purposes we are "at war" if the government should so argue. Shortly after the Iraq invasion I heard that there was inquiry as to whether field units could/should charge certain UCMJ crimes as happening "during time of war" (which can enhance punishments, often to death). The answer was "Don't do it, we really would rather not deal with that." Or -- our policy is to have no policy. I'm not certain if this has changed.

Forget about all the mud puppies and gyrenes, however, I suspect that the *real* battle may come if/when a new party takes over the executive branch and starts serious investigation and prosecution into contractor fraud (there have been oodles, but beyond 'disbarment' the government has generally not been prosecuting because it brings bad press). There is a law (don't have the exact cite handy) that for purposes of defrauding the government, etc. the statute of limitations is tolled until the end of the war plus five years. Thus, in 2009 if a new administration takes over, it could take off the gloves and start investigating/prosecuting contractors --- who will most assuredly hire the best possible lawyers to argue that the 'regular' statute of limitations applies and that we are not really at war.

[cyberspook]

Originally Posted by fozzy2

When are we at "war"? There is no one real answer. Generally speaking, the government will try and have it both ways -- cherry picking laws it likes that apply during war, and ignoring laws it doesn't like that apply during war.

Legally speaking, the need for a Congressional declaration is all but dead and gone. The courts will almost always defer to whatever the executive branch is arguing at the case at hand. There is no requirement for consistency. A gov lawyer will claim "war" one day, another will deny "war" the next. That's how it goes.

More directly to the point -- the military appellate courts have not, to my knowledge, made any authorative ruling on our current conflict in Iraq or Afghanistan. However, based on precedent, they would almost certainly agree that for UCMJ purposes we are "at war" if the government should so argue. Shortly after the Iraq invasion I heard that there was inquiry as to whether field units could/should charge certain UCMJ crimes as happening "during time of war" (which can enhance punishments, often to death). The answer was "Don't do it, we really would rather not deal with that." Or -- our policy is to have no policy. I'm not certain if this has changed.

Forget about all the mud puppies and gyrenes, however, I suspect that the *real* battle may come if/when a new party takes over the executive branch and starts serious investigation and prosecution into contractor fraud (there have been oodles, but beyond 'disbarment' the government has generally not been prosecuting because it brings bad press). There is a law (don't have the exact cite handy) that for purposes of defrauding the government, etc. the statute of limitations is tolled until the end of the war plus five years. Thus, in 2009 if a new administration takes over, it could take off the gloves and start investigating/prosecuting contractors --- who will most assuredly hire the best possible lawyers to argue that the 'regular' statute of limitations applies and that we are not really at war.

Well said. Thank you Fozzy