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Further to this question and this answer, 18 USC 960 states:

Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined under this title or imprisoned not more than three years, or both.

However, The USA has provided significant Security Cooperation with Ukraine with its war against Russia including investing billions of dollars in equipment, training, advisory services and advisory support etc (and rightly so).

Unless I am very much mistaken, the USA is currently at peace with Russia so its support for Ukraine, to me, seems to fall within the fairly broad definition of an enterprise against a "foreign state" and/or against "people with whom the United States is at peace". Presumably this latter point would include Russians within Ukraine.

My assumption is that the "whoever", as the subject of 18 USC 960, refers exclusively to non-governmental activities but is this expressly defined anywhere, such as in statute, case law, or by executive order?

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    It only prohibits stuff "against the territory or dominion", and my understanding is that the American gear supplied to Ukraine comes with a "don't attack Russian territory with this"-rule.
    – Arno
    Oct 28, 2022 at 12:32
  • It also prohibits stuff against "people with whom the United States is at peace". Thanks for the pointer, and I've edited accordingly.
    – Rick
    Oct 28, 2022 at 13:19
  • @Rick I am not sure tat there is a peace treaty between Russia and the USA, or had been one between the USSR and the USA that could be inherited, but that doesn't mean they are at war. for a similar reason, technically the declaration of war from the USSR to Japan never was followed up with a peace treaty, but neither country considers itself to be at war with the other. Though they are not friendly to one another, due to kuril.
    – Trish
    Oct 28, 2022 at 13:40
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    @Rick: Check the grammar: it prohibits enterprises against "the territory or dominion of people with whom the United States is at peace". An enterprise against the people themselves is not forbidden by this section, provided that it does not attack their territory or dominion. Oct 28, 2022 at 13:40
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    I do not think this is intended to apply to official actions of the U.S. government. If it is the U.S. may not have violated it regarding Ukraine but ihas done it in many other cases. Oct 28, 2022 at 14:44

2 Answers 2

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Is the USA government exempt from falling foul of the provisions at 18USC960 by funding Ukraine?

Yes.

The criminal code doesn't apply to the U.S. government acting pursuant to authorizations to do so (e.g. Congressional appropriations bills and general chain of command authority legislation in the organizational statutes of the DOD).

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    That is what I assumed - where is it written or implied? Oct 28, 2022 at 18:20
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    @GeorgeWhite One way to get there is that "the United States of America" is not included in the definition of "Whoever" (much like the notion that the King can't commit a crime in British law) and agents of it acting within the scope of their duties are likewise exempt under the acting pursuant to a lawful order doctrine which has some latin name that escapes me at the moment. You can also look at the appropriations acts and DOD authorizing acts see them as in conflict with 18 USC § 960 and interpret the legislative intent to avoid a conflict between the two.
    – ohwilleke
    Oct 28, 2022 at 18:42
  • Related (as to government employees acting pursuant to lawful orders from a superior): en.wikipedia.org/wiki/Superior_orders
    – ohwilleke
    Oct 28, 2022 at 18:45
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    @George One problem with citing this is that it almost never makes it to court. The US government generally wouldn’t charge its own employees for carrying out its own wishes, so you don’t have much caselaw where the government tried to do that.
    – cpast
    Oct 29, 2022 at 0:29
  • There are some cases where "whoever" clearly does include a government officer acting in the scope of their duties, or at least under color thereof. For instance, in the Posse Comitatus Act, the "whoever" can basically only be the President, acting in the scope of their duties to command the military and/or execute the laws. So I'm not convinced there's a blanket exemption as you assert. Oct 29, 2022 at 4:15
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Your question can be generalized: Does this law, which prohibits any military expedition against a foreign state with whom the US is at peace, and if we interpret the "at peace" provision to mean "in lieu of a formal declaration of war", then haven't all US military deployments since the end of WWII been in violation of this law?

The first thing to note is that as commander in chief of the military, POTUS has the constitutional power to deploy troops, and to manage foreign affairs. There are limits imposed by the War Powers Act of 1973. Congress has never purported to usurp presidential military authority. There is a time-frame specified for deploying troops in an emergency (48 hours for notification, 60 days for withdrawal without Congressional consent). If Congress consents, that's the end of the discussion.

Congress authorizes military action (either monetary or troop commitments) by act of Congress. Authorizing such action might seem to require prior repeal or amendment of 18 USC 960, but the courts instead interpret the passage of a later law to implicitly amend a relevant prior law. Congress cannot be prosecuted for passing a law that seems to technically violate 18 USC 960, and POTUS cannot be prosecuted for carrying out a law enacted by Congress.

In addition, the scope of 18 USC 960 is limited by the expression "against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace", and it can be argued that all such overseas actions have not been "against the territory or dominion of any foreign prince or state", they have been in defense of some US interest by an invading nation (or organization such as al-Shabab, ISIS, etc.). A line would therefore be drawn at invading Russia for the purpose of taking over Russian territory.

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