STUDENT NOTES
Reversing a Sunset: The Legality of Retroactively
Enforcing Limitations Periods Extensions
Hussain Awan*
Congress’s recent amendments to the International Emergency Economic
Powers Act (IEEPA) and Trading with the Enemy Act (TWEA), doubling these
statutes’ limitations periods, provoked much confusion and anxiety about the
potentially retroactive enforcement of U.S. sanctions laws by the U.S. Department
of the Treasury’s Office of Foreign Assets Control (OFAC) and the U.S. Department
of Justice (DOJ). On the civil side, months after the amendments were signed into
law, OFAC released guidance indicating that it would apply the extended statute of
limitations retroactively, but not to already time-barred violations. There is still no
indication of U.S. sanctions authorities’ enforcement intentions in the criminal
sphere.
None of the analyses published thus far have correctly identified the applicable
constitutional rules or Supreme Court precedents informing OFAC’s recent position
on retroactivity, or the ones that might guide DOJ’s strategy. Lastly, the experience
of U.S. sanctions law modifications over the last few months is instructive for any
agency interpreting legislation that extends statutes of limitation.
This article proceeds in three parts. Firstly, it examines the applicable law
in the criminal context––with a focus on the Ex Post Facto Clause––and argues
that DOJ should apply the same expired-unexpired distinction to criminal limita-
tions periods as was adopted by OFAC for civil ones in its guidance document.
Secondly, it conducts a thorough analysis of all the applicable constitutional and
common law precedents that likely informed OFAC’s interpretation in the civil
context, ranging from due process protections to the framework for evaluating
retroactive legislation set forth by the Supreme Court in Landgraf v. USI Film
legislation granting it more expansive limitations period authority. Thirdly, deriving
lessons from the experience of U.S. sanctions authorities since last April, this article
makes the case that agencies retroactively applying statutes of limitations extensions
should refrain from seeking to revive prosecution for time-barred violations in both
civil and criminal settings––though for markedly different reasons.
* J.D., Harvard Law School, 2025; B.A. in International Development and French, McGill
University, 2022. I am deeply indebted to Alex Lamy, Rob O’Brien, and the many other members of
Baker McKenzie’s International Trade group whose expert advice and guidance served as the
foundation for early drafts of this article. © 2025, Hussain Awan.
81
I. INTRODUCTION
Nathaniel Hawthorne’s Count Donatello once mused that “time flies over us, but
leaves its shadow behind.”
1
In the law, the shadow of an impending prosecution,
brought about by wrongful acts allegedly committed in bygone days, is supposed to
dissipate as time flies past. Once the limitations period lapses, night falls and the
shadow disappears altogether. But what if, like Joshua in Gibeon,
2
we could freeze
the sun in place, extending how long the shadow lingers? Or, like Abraham in front
of Nimrod,
3
ask for the sun to move backward, resuscitating a dissipated shadow?
As we explore retroactive limitations period extensions, we find ourselves grappling
with a metaphysical question of sorts: Can we truly forestall the twilight of justice,
or is attempting to do so a misstep into legal chaos?
Such concerns arise whenever Congress or state legislative bodies amend laws
to extend the default statute of limitations for a violation, without explicitly saying
that the new and improved limitations period will apply solely prospectively. For
both criminal and civil offenses, the standard statute of limitations in the U.S. Code
is five years, “except as otherwise expressly provided by law” or “by Act of
Congress.”
4
See 18 U.S.C. § 3282(a) (2024); 28 U.S.C. § 2462 (2024); CONG. RSCH. SERV., RL31253, STATUTE
OF LIMITATION IN FEDERAL CRIMINAL CASES: AN OVERVIEW 2, 6 (Nov. 14, 2017), https://perma.cc/
7E3L-NNNE.
Legislation that changes the default period of five years by lengthening
it inexorably provokes retroactivity concerns.
In a recent instantiation of this phenomenon, on April 24, 2024, President Joseph
Biden signed the 21st Century Peace through Strength Act into law, which, among
many other things, amended the International Emergency Economic Powers Act
(IEEPA) and Trading With the Enemy Act (TWEA) to “expressly provide” for a
ten-year limitations period for sanctions violations.
5
Until then, the aforementioned
default limitations period of five years had applied to all sanctions regimes under
1. NATHANIEL HAWTHORNE, THE MARBLE FAUN 217 (Belknap 2012) (1860) (“‘I may have known
such a life, when I was younger,’ answered the Count gravely. ‘I am not a boy now. Time flies over us,
but leaves its shadow behind.’”).
2. Joshua 10:12–13 (“The day the LORD delivered the Amorites over to the Israelites, Joshua prayed
to the LORD before Israel: ‘O sun, stand still over Gibeon! O moon, over the Valley of Aijalon.’ The
sun stood still and the moon stood motionless while the nation took vengeance on its enemies. The event
is recorded in the Scroll of the Upright One. The sun stood motionless in the middle of the sky and did
not set for about a full day.”).
3. THE QUR’AN 2:258 (‘Alı¯ Qulı¯ Qara¯’ı¯ trans., 2d ed. 2005) (“Have you not regarded him [that is,
Nimrod] who argued with Abraham about his Lord, because Allah had given him kingdom? When
Abraham said, ‘My Lord is He who gives life and brings death,’ he replied, ‘I [too] give life and bring
death.’ Abraham said, ‘Indeed Allah brings the sun from the east; now you bring it from the west.’”); see
also AL-KULAYNI
¯, AL-KA
¯FI, vol. 4, bk. 3, ch. 221 (Islamic Seminary 2015) (“[ʿAlı¯] said, ‘The Messenger
of Allah and I once sat right there. He then laid his head in my lap and dozed off, sinking into a deep
sleep. The time for the afternoon prayer came, but I did not wish to move his head.. .when the
Messenger of Allah awoke, he said, ‘O ʿAlı¯, have you prayed?’ I said, ‘No.’ He asked, ‘Why not?’ I
replied, ‘I disliked disturbing you.’ So he rose. . .and said, ‘O God, return the sun to its time so that ʿAlı¯
may perform his prayer.’ The sun then returned to the time of prayer until I prayed the afternoon prayer.
Then it set again just like a star falling from the sky.’”).
4.
5. H.R. 815, 118th Cong. § 3111 (2024).
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