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Trump judge Mark Bennett cast the deciding vote in a divided Ninth Circuit panel decision extending two congressional authorizations for military force, one against those involved with 9/11 and the other against Iraq to an ordinary case of fraud. The case is United States v. Jucutan.
The U.S. Army has a program in which soldiers try to recruit new members to serve in the military and are paid for each successful enlistment. Jordan Jucutan was one such recruiter. He was accused of fraudulently submitting names and private information (like Social Security numbers) of potential recruits who had not actually agreed to join the military. Specifically, he was indicted for wire fraud and aggravated identity theft, which have a five-year statute of limitations. However, the federal government did not begin its criminal proceedings against Jucutan until after that period had passed.
On December 10, a divided panel of the Ninth Circuit ruled that Jucutan can be prosecuted anyway because of a federal law tolling the statute of limitations for certain crimes “directly connected with or related to” a congressionally-authorized use of military force (the Wartime Suspension of Limitations Act, or WSLA). The panel—with Judge Bennett casting the deciding vote—ruled that since the recruitment program was created to fight the “war on terror,” it was covered by the 2001 and 2002 congressional authorizations of military force against the 9/11 perpetrators and against Iraq.
Judge Marsha Siegel Berzon dissented, explaining that neither authorization was so expansive. Simply recruiting a force to combat international terrorism is not “directly connected with or related to” the authorization of 2001 (against those who helped carry out the 9/11 attacks) or of 2002 (against Iraq), as required by the WSLA.
Judge Berzon also pointed out that the Supreme Court has warned lower courts that the WSLA should be “narrowly construed” and “interpreted in favor of” enforcing ordinary statutes of limitations.