Wartime-Out for Prosecutors: Examining the Extent of the Wartime Statute of Limitations Act

Abstract

Instances of contractor fraud became overwhelming to prosecutors in the wake of the First World War, compelling congress to enact a statute that granted prosecutors a powerful “time-out” that extended the statute of limitations. When federal prosecutors encountered the same problem in World War Two, Congress made this extension permanent, enacting the Wartime Suspension of Limitations Act (WSLA), which suspended the tolling of the statute of limitations on fraud against the United States until after three years after the war’s end. The WSLA went unused during the United States’ involvement in Korea and Vietnam and eventually resurfaced during the Persian Gulf War. During the Persian Gulf war, a district court held that the WSLA was intended for large conflicts and was not applicable to undeclared wars. The law was unsettled, however, as a separate district court disagreed with this ruling and held that the WSLA was applicable to the wars in Iraq and Afghanistan. Confronted with widespread allegations of contractor fraud arising out of the United States’ involvement in Iraq and Afghanistan and under the impression that the WSLA was not applicable to the current state of warfare, Congress decided to amend the WSLA in 2008 to ensure that federal prosecutors would have the time necessary to identify and prosecute fraud against the United States. This amendment left several questions unanswered including: (1) how courts should address issues of fraud that occured before the 2008 amendment and (2) whether courts should be concerned with a potentially indefinite tolling of the statute of limitations for these crimes. These problems have been brought to light by several discordant lower court opinions and a recently granted writ of certiorari that may soon provide some answers. This paper addresses these issues and suggests yet another amendment to the WSLA: one that balances society’s interest in preserving reasonable statutes of limitation with the need for effective prosecution of fraud during wartime.