69–010 

Calendar No. 899 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–431 

WARTIME ENFORCEMENT OF FRAUD ACT OF 2008 

JULY 25, 2008.—Ordered to be printed 

Mr. LEAHY, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 2892] 

The Committee on the Judiciary, to which was referred the bill 

(S. 2892), to promote the prosecution and enforcement of frauds 

against the United States by suspending the statute of limitations 

during times when Congress has authorized the use of military 

force, having considered the same, reports favorably thereon, without amendment, and recommends that the bill do pass. 

CONTENTS 

Page 

I. Background and Purpose of the Wartime Enforcement of Fraud Act 

of 2008 ......................................................................................................... 1 

II. History of the Bill and Committee Consideration ....................................... 5 

III. Section-by-Section Summary of the Bill ...................................................... 5 

IV. Congressional Budget Office Cost Estimate ................................................ 6 

V. Regulatory Impact Evaluation ...................................................................... 6 

VI. Conclusion ...................................................................................................... 6 

VII. Additional Views of Senators Sessions and Coburn ................................... 7 

VIII. Changes to Existing Law Made by the Bill, as Reported ........................... 9 

I. BACKGROUND AND PURPOSE OF THE WARTIME ENFORCEMENT OF

FRAUD ACT OF 2008 

On April 18, 2008, Chairman Patrick Leahy introduced the Wartime Enforcement of Fraud Act of 2008 (WEFA), which was cosponsored by Senator Grassley. Senators Obama, Byrd, and Cardin 

have since joined as cosponsors. This legislation will protect AmerVerDate Aug 31 2005 02:32 Jul 27, 2008 Jkt 069010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR431.XXX SR431

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1 A similar provision was passed after World War I, extending the statute of limitations for 

conspiracy to defraud the Government from three years to six years. Congress recognized that 

war contracts required ‘‘the most minute investigation’’ and wanted to provide prosecutors with 

the time necessary to discover fraud. H.R. Rep. No. 67–365, at 1 (1921). Congress restored the 

three-year statute of limitations after the war once the Department of Justice announced that 

it did not plan any further prosecution of contracting fraud related to World War I. 2For example, this extension of the statute of limitations allowed prosecutors to secure a 79- 

count indictment against a subcontract employee who for three years falsified payroll records 

to bill the government for the hours worked by nonexistent employees. See United States v. 

Agnew, 6 F.R.D. 566 (E.D.Pa. 1947). 

ican taxpayers from criminal contractor fraud by giving investigators and auditors the time they need to thoroughly review contracts 

related to the ongoing conflicts in Iraq and Afghanistan. 

The legislation makes current law extending the statute of limitations during wartime applicable to the conflicts in Iraq and Afghanistan. It amends the Wartime Suspension of Limitations Act 

(18 U.S.C. 3287) to apply not only when the United States is engaged in a declared war, but also when Congress has authorized 

the used of military force pursuant to the War Powers Resolution 

(50 U.S.C. 1544(b)). The legislation also extends the statute of limitations to five years after the end of a conflict, making the law consistent with the current statute of limitations for criminal fraud offenses. See 18 U.S.C. § 3282(a). 

A. BACKGROUND

War contracting fraud and efforts to combat it have a long history in this Nation. During World War II, President Franklin Delano Roosevelt spoke out against ‘‘war millionaires’’ who made excessive profits exploiting the calamity of war, and President Harry S. 

Truman, when he served in the Senate, crossed this country holding now-famous public hearings to expose gross fraud, waste and 

abuse by military contractors. In 1942, President Roosevelt signed 

into law the Wartime Suspension of Limitations Act, which extended the time prosecutors had to bring charges relating to criminal fraud offenses against the United States.1 Recognizing the extreme difficulty in tracking down contracting fraud in the midst of 

a war, Congress unanimously approved the 1942 law, which temporarily suspended the statute of limitations. In 1948, President Truman signed a new law making this change permanent. The Wartime Suspension of Limitations Act proved to be vital in pursuing 

war profiteers, as prosecutors used the law to pursue contracting 

fraud after the war was over.2

In recent years, war contracting fraud has again plagued this 

Nation during the engagement of U.S. forces in Iraq and Afghanistan. Congress has appropriated more than $500 billion to date for 

the wars in Iraq and Afghanistan, including more than $50 billion 

for relief and reconstruction activities. The investigations and audits conducted so far have uncovered how billions in taxpayers’

money has been lost to contract fraud, waste, and abuse. The Department of Justice, however, has only initiated a few cases involving less than $30 million lost to fraud, while hundreds of investigations into contracts worth billions remain pending, and new investigations based on allegations of fraud are started every month. 

Unless the statute of limitations is extended, these investigations 

may well be shut down before they can be completed and wartime 

fraud will go unpunished. 


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3See Senate Judiciary Committee Hearing, ‘‘Combating War Profiteering: Are We Doing 

Enough to Investigate and Prosecute Contracting Fraud and Abuse in Iraq’’ (March 20, 2007); 

Senate Appropriations Committee Hearing, ‘‘The Effectiveness of U.S. Efforts to Combat Corruption, Waste, Fraud and Abuse in Iraq (March 11, 2008); Senate Appropriations Committee, 

‘‘Oversight Hearing on Fraud, Waste, and Abuse in Defense Department Contracts Supporting 

Activities in Iraq and Afghanistan’’ (July 23, 2008). 4 In their views, Senators Sessions and Coburn express concern that ‘‘the Department of Defense should weigh in before the Senate considers the bill’’ and the legislation needs to be studied further. In their testimony before the Appropriations Committee, the Deputy Secretary of 

Defense and the Defense Department Inspector General both weighed in supporting the bill. In 

addition, Senators Sessions and Coburn claim that in passing the Wartime Suspension of Limitations Act in 1942 and 1948, Congress ‘‘intentionally limited’’ the law to declared wars, not authorizations for the use of military force. Since the War Powers Resolution, which allows for congressional authorizations for the use of military force, was not passed until 1973, nearly three 

decades after the Wartime Suspension of Limitations Act, this contention is dubious at best. 

Even if there were anything to this claim, that does not preclude this Congress from doing the 

right thing and extending the wartime suspension of statutes of limitations to war zones created 

by authorizations for the use of military force. The point of the Wartime Suspension of Limitations Act and this bill is the same, to ensure that the fog of war does not allow those who defraud the United States from getting away with it because their actions could not be investigated during hostilities. 

Private contractors have been used to a greater extent during 

these war-time activities than at any time in our history. The exigencies of war overseas, however, make oversight of these contractors more difficult, and expenditures are often made with fewer 

audit and other controls than during normal Government procurement. Often, the Government does not learn about serious fraud 

until years after the fact. As a result, the provision of goods and 

services during these military actions, as well as during relief and 

reconstruction activities, are more vulnerable to acts of fraud and 

abuse. 

Hearings in both the Judiciary and Appropriations Committees 

have highlighted the difficulty of conducting investigations and audits into contracting fraud as the war is ongoing.3 Inspectors General from the Defense Department, the State Department, and 

other agencies, as well as the Special Inspector General for Iraq 

Reconstruction (SIGIR), have consistently indicated that ongoing 

hostilities in Iraq and Afghanistan have significantly hampered 

their ability to review contracts and pursue investigations. For example, an audit by the Department of Defense Inspector General 

in May 2008 found that more than 90 percent of the $8.2 billion 

spent on contractors in Iraq lacked adequate documentation, and 

the DoD IG is still in the process of auditing billions spent on these 

contracts. Similarly, a separate SIGIR audit of a $1.2 billion State 

Department contract for security services in Iraq had to be stopped 

because Government and contractor officials could not find the invoices and documents showing how the money was spent. The 

State Department estimates it will take three to five years to find 

and organize the documentation for this contract, just for the audit 

to be completed. At this point, billions of dollars are unaccounted 

for, and it will take years to fully investigate and audit these expenditures for fraud. 

In response to this problem, the Deputy Secretary of Defense 

Gordon England and the Acting Defense Department Inspector 

General Gordon Hedell testified before the Senate Appropriations 

Committee on July 23, 2008 that the bill would help them complete 

their oversight of Iraq war contracts, and they both supported the 

bill.4


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5Pub. L. No. 870–299, 68 Stat. 1145 (1961) amended 18 U.S.C. 3287 to change the statute 

of limitations to five years for noncapital offenses. 

B. NEED FOR LEGISLATION

While the World War II provision suspending the statute of limitations is still the law today, it applies only ‘‘when the United 

States is at war.’’ 18 U.S.C. § 3287. As a result, the ongoing military operations in Iraq and Afghanistan are likely exempt from 

this law because they were undertaken when Congress authorized 

the use of military force, rather than by a formal declaration of 

war. 

The Wartime Enforcement of Fraud Act of 2008 (WEFA) would 

correct this problem and extend the statute of limitations when 

Congress has authorized the use of the Armed Forces pursuant to 

the War Powers Resolution, as well as during declared wars. The 

legislation would make three changes to current law. 

First, it would extend the statute of limitations when Congress 

enacts a specific authorization for the use of the Armed Forces consistent with the War Powers Resolution. In doing so, this language 

would apply current law to the ongoing conflicts in Iraq and Afghanistan, and to similar actions in the future. This amendment is 

not intended to apply to peacekeeping missions under the auspices 

of the United Nations, or military actions not specifically authorized by Congress pursuant to the War Powers Resolution. This will 

give investigators and auditors additional time to thoroughly review all war contracts and bring those who have defrauded the 

American taxpayers to justice. 

Second, the legislation would extend the statute of limitations for 

five years after the end of the conflict, updating the provision to be 

consistent with the general statute of limitations for criminal offenses. See 18 U.S.C. § 3282(a). The statute of limitations for criminal fraud offenses was only three years when the law was passed 

during World War II, but is five years today.5

Third, it makes clear that a presidential proclamation ending 

hostilities, and thus ending the tolling of the statute of limitations 

period, must be a formal proclamation with notice to Congress. 

This will provide a clear point in time at which the statute of limitations will begin to run, providing certainty to courts, prosecutors, 

and litigants interpreting this provision. 

Now, more than five years after the start of the Iraq war and 

nearly seven years after the beginning of the Afghanistan war, the 

statute of limitations has started to bar criminal actions in investigations of contracting fraud early in these conflicts. This bill will 

allow additional time for investigators and auditors to thoroughly 

investigate and review all war contracts and potentially save the 

U.S. taxpayers untold millions of dollars. If the current law is left 

unchanged, each passing day of the conflicts in Iraq and Afghanistan would result in a grant of immunity for fraudulent conduct by 

war contractors that has gone undiscovered or unprosecuted during 

the conflicts. 


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II. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION

A. INTRODUCTION OF THE BILL

Chairman Patrick Leahy introduced the bill, S. 2892, on April 

18, 2008, with Senator Grassley. 

B. COMMITTEE CONSIDERATION

The Committee voted at a June 26, 2008 executive business 

meeting to report S. 2892 favorably to the Senate without amendment by voice vote. 

III. SECTION-BY-SECTION SUMMARY OF THE BILL

Section 1. Short title 

This section provides that the legislation may be cited as the ‘‘Wartime Enforcement of Fraud Act of 2008.’’

Section 2. Suspends the statute of limitations when Congress has 

authorized the use of military force 

This provision amends Section 3287 of title 18, which suspends 

the statute of limitations ‘‘when the United States is at war,’’ to include circumstances where Congress has authorized the use of military force consistent with the War Powers Resolution. Technically, 

Section 3287 only applies to declared wars, not circumstances 

where Congress has authorized the use of military force, as in the 

recent wars in Iraq and Afghanistan. The amendment to Section 

3287 specifically tracks the text of the Congressional authorizations 

for the use of the Armed Forces in Iraq and Afghanistan and refers 

only to those authorizations described in the War Powers Resolution (50 U.S.C. 1544(b)). As a result, only significant military actions requiring Congressional action would trigger this suspension 

of the statute of limitations. This amendment is not intended to 

apply to peacekeeping missions under the auspices of the United 

Nations or military actions not specifically authorized by Congress 

pursuant to the War Powers resolution. This language is intended 

to apply the suspension of statute of limitations to the wars in Iraq 

and Afghanistan. 

The bill extends the statute of limitations for five years from the 

termination of hostilities, as opposed to the three years under current law. When the original Wartime Suspension of Limitations Act 

was passed in 1942, the criminal statute of limitations was only 

three years, and today it is five years. This change is consistent 

with the standard statute of limitations for all criminal fraud provisions and is necessary to update the law for modern times. See 

18 U.S.C. 3282(a). 

The bill also makes clear that the act that ends the tolling of the 

statute of limitations period must be an official act of the President 

with notice to Congress, or a concurrent resolution of Congress. 

This change is necessary so that the date ending the authorization 

of military force is clear, so courts, prosecutors, and litigants can 

be sure when the statute of limitations starts to run. This change 

will avoid any confusion or unnecessary litigation in enforcing 

fraud cases in the future. 

Lastly, the bill clarifies that for purposes of applying the definitions in Section 103 of Title 41 in Section 3287 of Title 18, the term 


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‘‘war’’ shall include Congressional authorizations for the use of 

military force pursuant to the War Powers resolution. This is just 

a conforming amendment so the definitions in the law can properly 

be applied. 

IV. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

The cost estimate provided by the Congressional Budget Office 

pursuant to section 402 of the Congressional Budget Act of 1974 

was not available for inclusion in this report. The estimate will be 

printed in either a supplemental report or the Congressional 

Record when it is available. 

V. REGULATORY IMPACT EVALUATION

In compliance with rule XXVI of the Standing Rules of the Senate, the Committee finds that no significant regulatory impact will 

result from the enactment of S. 2892. 

VI. CONCLUSION

The Wartime Enforcement of Fraud Act, S. 2892, would close a 

loophole in current law and give the government new power to 

prosecute contracting fraud in Iraq and Afghanistan. If passed, the 

government could recover taxpayers’ money lost in no-bid and costplus contracts awarded to companies that have delivered defective 

products, overbilled the government, or committed criminal fraud. 

The legislation would update a law first passed by the Congress 

during World War II that suspends the statute of limitations for 

contracting fraud offenses during times of war. It will allow the 

government to punish war profiteers and potentially save the U.S. 

taxpayers untold millions. 


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VII. ADDITIONAL VIEWS

ADDITIONAL VIEWS OF SENATORS SESSIONS AND COBURN 

ON S. 2892, ‘‘THE WARTIME ENFORCEMENT OF FRAUD 

ACT OF 2008’’

The Wartime Enforcement of Fraud Act amends the Wartime 

Suspension of Limitations Act, which currently extends the statute 

of limitations for contracting fraud offenses committed during a 

time of war. The bill would add any ‘‘Congressional enactment of 

a specific authorization for the use of the Armed Forces’’ as a trigger for suspension of the statute of limitations for contracting fraud 

offenses. Additionally, the bill provides that the statute of limitations is suspended until 5 years after the termination of hostilities 

as proclaimed by a Presidential proclamation with notice to Congress. 

Individuals who commit fraud against the government during 

hostilities should be vigorously prosecuted. We have a history of 

supporting legislation, such as the Military Extraterritorial Jurisdiction Act, that ensures crimes and frauds perpetrated in Iraq or 

other places overseas are rightly brought to justice here in the 

United States. We support efforts to provide the Department of 

Justice all the tools they need to prosecute contractors who commit 

fraud against the United States. However, we fear this approach 

would have the unintended consequence of creating a potentially 

unlimited statute of limitations period for defense contractors. This 

goes against the great traditions of our American legal system 

where statutes of limitation typically begin to run as soon as a 

crime has been committed and are usually limited to a specific 

number of years. In fact, prosecution for most federal crimes must 

begin within five years of the commission of an offense. Limited exceptions include murder and other offenses punishable by death, 

and some federal terrorism and sex offenses. 

By including a Congressional authorization for the use of Armed 

Forces as an event that triggers suspension of the Statute of Limitations, the bill will directly impact conflicts that fall short of declared war. The Wartime Suspension of Limitations Act was enacted after World War II and we can only assume that the language is intentionally limited to declared wars. A declared war is 

of a different nature than an undeclared military conflict which can 

be a much smaller affair that does not similarly affect the government’s ability to build and prosecute war fraud cases. If, as is potentially the case in the current conflicts with Iraq and Afghanistan, a President is hesitant to officially announce the end of hostilities, the statute of limitations will never start running. This 

means contractors could remain subject to potential liability for 

criminal offenses (or investigations) for years, possibly a lifetime. 


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1 128 S. Ct. 2229, at 2270 (2008) (the Court was expressing concern for detainees, saying that 

the possibility of persons wrongfully detained for such a long conflict ‘‘is a risk too significant 

to ignore’’). 2Toussie v. United States, 397 U.S. 112 (1970). 

3 U.S. v. Marion, 404 U.S. 307, 321–323 (1971) (emphasis added). 

Even if an official act declaring an end to hostilities is made, it 

may not happen for a very long time. The Supreme Court recently 

said in Boumediene v. Bush, ‘‘the duration of hostilities . . . may 

last a generation or more.’’ 1

Furthermore, providing a very long—potentially indefinite—statute of limitations for a criminal offense violates longstanding principles often articulated by the Supreme Court. In Toussie v. United 

States, the Court held: 

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of 

time following the occurrence of those acts the legislature 

has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may 

have become obscured by the passage of time and to minimize the danger of official punishment because of acts in 

the far-distant past. Such a time limit may also have the 

salutary effect of encouraging law enforcement officials 

promptly to investigate suspected criminal activity. 2

The Court has also held: 

Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. . . . Possible prejudice is inherent in 

any delay, however short; it may also weaken the Government’s case. . . . Such a [statute of] limitation is designed 

to protect individuals from having to defend themselves 

against charges when the basic facts may have become obscured by the passage of time and to minimize the danger 

of official punishment because of acts in the far-distant 

past. Such a time limit may also have the salutary effect 

of encouraging law enforcement officials promptly to investigate suspected criminal activity.3

We believe this bill creates two disturbing disincentives at a time 

where contractors are vital to national security and American efforts during armed conflicts: (1) it could make it more difficult to 

recruit contractors needed during conflict, and (2) it could make it 

more difficult for the government to prove these cases if too much 

time goes by. We believe the statute of limitations issue should be 

studied closely and that the Department of Defense should weigh 

in before the Senate considers the bill. 

JEFF SESSIONS. 

TOM COBURN. 


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VIII. CHANGES TO EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by S. 2892, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new matter is printed in italic, and 

existing law in which no change is proposed is shown in roman): 

UNITED STATES CODE 

TITLE 18—CRIMES AND CRIMINAL 

PROCEDURE 

* * * * * * * 

PART II—CRIMINAL PROCEDURE 

* * * * * * * 

CHAPTER 213—LIMITATIONS 

* * * * * * * 

§ 3287. Wartime suspension of limitations 

When the United States is at war or Congress has enacted a specific authorization for the use of the Armed Forces, as described in 

section 5(b) of the War Powers Resolution (50 U.S.C. § 1544(b)), the 

running of any statute of limitations applicable to any offense (1) 

involving fraud or attempted fraud against the United States or 

any agency thereof in any manner, whether by conspiracy or not, 

or (2) committed in connection with the acquisition, care, handling, 

custody, control or disposition of any real or personal property of 

the United States, or (3) committed in connection with the negotiation, procurement, award, performance, payment for, interim financing, cancelation, or other termination or settlement, of any 

contract, subcontract, or purchase order which is connected with or 

related to the prosecution of the war or directly connected with or 

related to the authorized use of the Armed Forces, or with any disposition of termination inventory by any war contractor or Government agency, shall be suspended until øthree¿ five years after the 

termination of hostilities as proclaimed by øthe President¿ Presidential proclamation, with notice to Congress, or by a concurrent 

resolution of Congress. 

Definitions of terms in section 103 of title 41 shall apply to similar terms used in this section. For purposes of applying such definitions in this section, the term ‘war’ includes a specific authorization 

for the use of the Armed Forces, as described in section 5(b) of the 

War Powers Resolution (50 U.S.C. § 1544(b)). 

Æ 


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