Penn’s Center for Ethics and the Rule of Law (CERL) and the National Institute of Military Justice (NIMJ) filed an amicus brief last week with the United States Court of Appeals for the Armed Forces in United States v. Askins, concerning a statute of limitations tolling provision.  

The relevant tolling provision in the Uniform Code of Military Justice (UCMJ) operates when the United States is “at war.” The brief argues that the lower court did not apply the appropriate test to determine what “at war” means within the statute, and urges the Court to “assess whether the United States was ‘at war’ according to the definition of ‘time of war’ found in the Manual for Courts-Martial interpreted through the lens of international law.” 

Amici assert that the Army Court of Criminal Appeals gave inappropriate weight to factors derived from United States v. Bancroft in determining  whether the United States was “at war” within the meaning of the UCMJ.  International law, specifically the Tadić test, can help resolve ambiguities around the meaning of the phrase “time of war.” 

According to the brief, “In the absence of a clear statement from Congress defining the meaning of the phrase ‘at war,’ reliance on the international consensus of what constitutes an armed conflict is a methodological approach consistent with United States case law.” 

Co-counsel on the brief are Philip D. Cave, chair of NIMJ; Rachel L. Baron, CERL-NIMJ litigation and policy postdoctoral fellow; and Brenner M. Fissell, vice president of NIMJ and distinguished senior fellow at CERL.