The wars are over! The wars are over!

Interpretation, of course, is a creative endeavor, whether it’s Biblical hermeneutics or statutory interpretation. Last week, the United States District Court for the District of Massachusetts in U.S. v. Prosperi (pdf) needed to determine whether the term “war” in a federal statute includes the conflicts in Iraq and Afghanistan. Interestingly, the court found that they are not now “wars,” though they “were.” The defendant was arguing that they never were “wars,” that Congress intended the statute (which stops the running of the statute of limitations applicable to the crime the defendants were being tried for) to apply only to conflicts in which Congress had declared war. Congress has authorized the President to use force in Afghanistan and Iraq but never declared war.

The court determined, essentially, that the conflicts in Afghanistan and Iraq were “wars” because they constituted armed conflicts of sufficient size and scope. In essence, they were wars because they looked like wars, talked like wars, and walked like wars.

The court also determined, however, that the wars have ended. The court had to do so because under the statute the applicable statute of limitations begins to run again “three years after the termination of hostilities as proclaimed by the President . . . .” The court noted that it is very unclear when these wars ended or will end: “Traditionally, the end of a war is marked by the signing of a formal peace treaty. However, formal surrenders like those of Germany and Japan at the end of World War II, like formal declarations of war, are the modern exceptions.” The court also admitted that “a strong case can be made, given the continuing expenditures and loss of life in Iraq and Afghanistan, that the United States remains at war.” Nevertheless, the court finally decided the wars ended, respectively, with the recognition of the government of Hamid Karzai in Afghanistan and with Bush’s “Mission Accomplished” speech in Iraq:

On December 22, 2001, the United States formally recognized and extended full diplomatic relations to the new government of Hamid Karzai.37 That recognition signaled the cessation of a state of war with Afghanistan. Accordingly, the statute of limitations with respect to the Afghan conflict, expired on December 22, 2004. Similarly, on May 1, 2003, President Bush, while aboard the USS Abraham Lincoln, proclaimed that “[m]ajor combat operations in Iraq have ended. In the Battle of Iraq, the United States and our allies have prevailed. And now our coalition is engaged in securing and reconstructing that country.” Consequently, with regards to the Iraq conflict, the statute of limitations expired on May 1, 2006. (footnotes omitted)

I thought you’d like the good news.

p.s. The government apparently argued, but not very strenuously, that the ongoing “war on terror” constitutes a war as well. Of course, that would mean we’ll forever be at war. It’s not the first time the Bush Administration has made this argument; it has done so continuously since 2001. The court, like any body I’ve heard of presented with the argument, didn’t take it seriously:

At the hearing on the motion, there was also discussion of a global “war” on terrorism, waged principally against Osama bin Laden and al Qaeda. The use of the metaphor of war to describe the struggle against terrorism has been criticized. See Sir Adam Roberts, The ‘War on Terror’ in Historical Perspective, 47 SURVIVAL 101-130 (Summer 2005). I do not understand the government to be pressing the argument that the United States is “at war” with al Qaeda, at least in any traditional legal sense.