<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:26831.wais]
S. Hrg. 109-342
TREATIES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
NOVEMBER 15, 2005
__________
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COMMITTEE ON FOREIGN RELATIONS
RICHARD G. LUGAR, Indiana, Chairman
CHUCK HAGEL, Nebraska JOSEPH R. BIDEN, Jr., Delaware
LINCOLN CHAFEE, Rhode Island PAUL S. SARBANES, Maryland
GEORGE ALLEN, Virginia CHRISTOPHER J. DODD, Connecticut
NORM COLEMAN, Minnesota JOHN F. KERRY, Massachusetts
GEORGE V. VOINOVICH, Ohio RUSSELL D. FEINGOLD, Wisconsin
LAMAR ALEXANDER, Tennessee BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire BILL NELSON, Florida
LISA MURKOWSKI, Alaska BARACK OBAMA, Illinois
MEL MARTINEZ, Florida
Kenneth A. Myers, Jr., Staff Director
Antony J. Blinken, Democratic Staff Director
(ii)
?
C O N T E N T S
----------
Page
Dodd, Hon. Christopher J., U.S. Senator from Connecticut, opening
statement...................................................... 2
Prepared statement........................................... 3
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening
statement...................................................... 1
Warlow, Mary Ellen, director, Office of International Affairs,
Criminal Division, Department of Justice....................... 10
Prepared statement........................................... 11
Witten, Samuel M., deputy legal adviser, Department of State..... 5
Prepared statement........................................... 7
APPENDIXES
APPENDIX I--RESPONSES TO ADDITIONAL QUESTIONS SUBMITTED FOR THE RECORD
BY MEMBERS OF THE COMMITTEE
Questions From Chairman Lugar
Responses to Additional Questions Submitted for the Record by
Senator Lugar to Samuel Witten, U.S. Department of State, and
Mary Ellen Warlow, U.S. Department of Justice.................. 27
Extradition Treaty between the United States of America and
the United Kingdom of Great Britain and Northern Ireland
(Treaty No. 108-23)........................................ 27
Protocol between the Government of the United States and the
Government of the State of Israel Amending the Convention
on Extradition (Treaty No. 109-3).......................... 32
Treaty between the United States of America and Germany on
Mutual Legal Assistance in Criminal Matters (Treaty No.
108-27).................................................... 32
Treaty between the United States of America and Japan on
Mutual Legal Assistance in Criminal Matters (Treaty No.
108-12).................................................... 33
Questions From Senator Biden
Responses to Additional Questions Submitted for the Record by
Senator Biden to Samuel Witten, U.S. Department of State, and
Mary Ellen Warlow, U.S. Department of Justice.................. 33
Extradition Treaty between the United States of America and
the United Kingdom of Great Britain and Northern Ireland
(Treaty No. 108-23)........................................ 33
(iii)
Responses to Additional Questions Submitted for the Record by
Senator Biden to Samuel Witten, U.S. Department of State, and
Mary Ellen Warlow, U.S. Department of Justice--(continued)
Treaty between the United States of America and Germany on
Mutual Legal Assistance in Criminal Matters (Treaty No.
108-27); Treaty between the United States of America and
Japan on Mutual Legal Assistance in Criminal Matters
(Treaty No. 108-12)........................................ 43
Treaty between the United States of America and Japan on
Mutual Legal Assistance in Criminal Matters (Treaty No.
108-12).................................................... 45
Treaty between the United States of America and Germany on
Mutual Legal Assistance in Criminal Matters (Treaty No.
108-27).................................................... 45
Responses to Additional Questions Submitted for the Record by
Senator Biden to Samuel Witten, U.S. Department of State....... 47
Protocol between the Government of the United States and the
Government of the State of Israel Amending the Convention
on Extradition (Treaty No. 109-3).......................... 47
Responses to Additional Questions Submitted for the Record by
Senator Biden to Mary Ellen Warlow, U.S. Department of State... 49
Protocol between the Government of the United States and the
Government of the State of Israel Amending the Convention
on Extradition (Treaty No. 109-3).......................... 49
Questions From Senator Chafee
Responses to Additional Questions Submitted for the Record by
Senator Chafee to Samuel Witten, U.S. Department of State, and
Mary Ellen Warlow, U.S. Department of Justice.................. 50
Extradition Treaty Between the United States of America and
the United Kingdom of Great Britain and Northern Ireland
(Treaty No. 108-23)........................................ 50
APPENDIX II--ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
Material Submitted by the Ancient Order of Hibernians, Political
Education Committee............................................ 52
Material Submitted by the Irish American Unity Conference........ 53
Material Submitted by Francis A. Boyle, Professor of Law,
University of Illinois at Urbana-Champaign, College of Law..... 54
Statement for the Record Submitted by Timothy H. Edgar, National
Security Policy Counsel, American Civil Liberties Union........ 60
TREATIES
----------
TUESDAY, NOVEMBER 15, 2005
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 9:23 a.m. in Room
SD-419, Dirksen Senate Office Building, Hon. Richard G. Lugar
[chairman] presiding.
Present: Senators Lugar [presiding] and Dodd.
OPENING STATEMENT OF HON. RICHARD G. LUGAR,
U.S. SENATOR FROM INDIANA
The Chairman. This hearing of the Senate Foreign Relations
Committee is called to order. The committee will begin with an
opening statement by the chair and then testimony by our
distinguished witnesses. We are going to commence a few moments
before 9:30 and that will offer an opportunity for me to give
my statement and for the witnesses to begin at approximately
9:30. I mention that because we will have a series of roll call
votes on the Senate floor, estimated at 10:45. So we will have
ample time, I believe, for the testimony of the witnesses and
responses to questions by Senators. At the end of the hearing I
will ask the witnesses for prompt responses to the questions
that will be submitted in writing that we have not had an
opportunity to discuss in public here.
The committee meets today to hear testimony on four
bilateral law enforcement treaties. Within the Congress, the
Senate Foreign Relations Committee is charged with the unique
responsibility of reviewing treaties negotiated by the
administration. Our colleagues in the Senate depend on us to
make timely and judicious recommendations on these treaties.
We are pleased that administration officials are with us
today and we look forward to hearing why they believe the
Senate should approve the four treaties under consideration. In
advance of this hearing, committee staff members have reviewed
these treaties very carefully. They have held two formal
committee briefings covering the treaties, with administration
representatives available to answer questions. I appreciate the
support and cooperation of Senator Biden, the distinguished
ranking member, throughout this process.
Today we welcome Mr. Samuel Witten, Deputy Legal Adviser at
the Department of State, and Ms. Mary Ellen Warlow, Director of
the Office of International Affairs in the Criminal Division in
the Department of Justice. They will testify on extradition
treaties with the United Kingdom and Israel and mutual legal
assistance treaties, or MLATs, with Germany and Japan.
These four countries are close United States allies, with
whom the United States enjoys excellent cooperation in the
areas of law enforcement and anti-terrorism. Extradition and
mutual legal assistance treaties provide critical tools for
United States law enforcement authorities as they investigate
and prosecute transnational crime, including terrorism.
Extradition treaties ensure that those who commit crimes in the
United States cannot escape justice by fleeing to other
countries.
The extradition treaties with the United Kingdom and Israel
are designed to update our existing extradition relationships
with these two countries. Upon entry into force, the treaty
with the United Kingdom would replace the existing U.S.-UK
extradition treaty, which dates back to 1972. The protocol with
Israel would amend an existing agreement that was negotiated in
1962.
Among other provisions, both treaties would move away from
the use of a specified list of offenses that are extraditable
and toward a modern, dual criminality standard for extradition.
The dual criminality standard allows perpetrators of serious
offenses that are a crime in both countries to be extradited.
The committee is aware that particular interest has been
expressed about the treaty with the United Kingdom. The
committee will carefully consider this treaty and expects to
hold an additional hearing next year to hear from witnesses
outside our government. Today we want to establish a record of
the administration's views on the treaty to which the committee
and all interested parties can refer as we continue our
deliberations.
Mr. Witten and Ms. Warlow also will address new mutual
legal assistance treaties that have been negotiated with
Germany and Japan. The MLATs commit the signatories to provide
each other with assistance related to criminal investigations,
including establishing streamlined mechanisms for sharing
criminal evidence. The treaties with Germany and Japan are the
latest in a series of such agreements negotiated by the United
States over the last couple of decades. They contain many
provisions similar to those in earlier agreements.
I commend the American negotiators who have worked on these
four agreements, some of which are the product of years of
patient diplomacy, and I look forward to the contributions of
our witnesses.
I have been joined by my distinguished colleague Senator
Dodd of Connecticut. Do you have any opening comments, Senator
Dodd?
STATEMENT OF HON. CHRISTOPHER J. DODD,
U.S. SENATOR FROM CONNECTICUT
Senator Dodd. Well, Mr. Chairman, thank you. We have got a
very busy morning and I want to underscore your points as well.
These are extremely important, and as evidence of the
tremendous work done by our witnesses and others who I know
worked with them, we do not have a packed hearing room this
morning, which is usually good evidence you have done a
tremendous job. A crowd is usually drawn when there is
controversy and the fact that you have been able to do such a
successful amount of work on these is very worthwhile.
Mr. Chairman, I want to thank you for your opening
comments, but also in particular the line in your prepared
statement about the additional hearing on the U.K.-U.S.
Northern Ireland treaty, if you will, because we would like to
raise some additional issues with that. That treaty, as you
point out, was signed on March 31, 2003, and transmitted to the
Senate in 2004, and if ratified it would replace the 1972
treaty as modified by a highly controversial 1985 supplementary
treaty.
You may recall--I cannot believe it was 20 years--when we
had these debates in the heat of the matters going on in
Northern Ireland at the time. That was during President
Reagan's administration and of course Mrs. Thatcher--and you
were Chairman, I think, at that point, too. I should say it was
controversial, but it was not terribly so because it passed
rather overwhelmingly. The Senator from Connecticut thought it
was controversial and raised some issues at the time.
Anyway, I would like to ask unanimous consent for some
comments here to be included in the record.
The Chairman. They will be included in the record in full.
[The prepared statement of Senator Dodd follows:]
Prepared Statement of Senator Christopher J. Dodd
Mr. Chairman, this morning the committee on Foreign Relations is
holding a hearing to review a number of extradition treaties that are
pending before this committee. Among these treaties is the 2003 U.S.-UK
Extradition Treaty, which was signed on March 31, 2003 and transmitted
to the Senate on April 19, 2004. If ratified, this treaty would replace
a 1972 Treaty as modified by a highly controversial 1985 Supplementary
Treaty.
Mr. Chairman, the last time the subject of extradition came before
this committee relative to the United States and the United Kingdom was
two decades ago. At that time you were Chairman and I was a freshman
Senator new to the committee. At that time, the committee's
consideration of the 1985 Supplementary treaty was the subject of
intense review and scrutiny. It was the subject of three hearings and
two markups, over the course of roughly twelve months--with more than
twenty witnesses heard by the committee. Ultimately the committee gave
its advice and consent, but not before adopting three amendments and
declaration relative to the treaty, including an amendment related to a
political offense exception to extradition.
Mr. Chairman, I am not suggesting that the Extradition treaty now
before us need take that amount of the committee's time or is
necessarily as controversial. However, I do believe that before
deciding whether to give our advice and consent to this new treaty, and
under what conditions, we need to fully understand the changes that are
being proposed to the existing extradition framework.
I believe that there are a number of important questions raised by
the pending treaty. Among the most important are why was Article 3 of
the Supplementary Treaty removed and what is the effect of that change?
Article 3 was added by this committee in 1986, and was the subject of
painstaking negotiation. It bars extradition if the person sought
establishes that the extradition request has been made with a view to
try him on account of his race, religion, nationality, or political
opinions, or that if surrendered, he would be prejudiced at trial or
punished because of those reasons. This provision also provides for
judicial review of these questions, a provision unique to our bilateral
extradition treaties. I recognize that it is unique--but there were
unique reasons for its inclusion twenty years ago.
I understand that there have been only a handful of cases in which
Article 3 was invoked, and that none are pending now. But believe that
before we consider modifying this article we find out whether there any
cases likely to be filed in the near future that would be affected by
the changes to Article 3?
More generally, how do the provisions of the new treaty compare to
the current treaty with the UK, and why were such changes made?
Will the treaty have any effect on Americans who have been
politically active in their opposition to British rule in Northern
Ireland?
What benefits will the United States gain, in its effort to obtain
the extradition of suspects to the United States? In other words, to
state it plainly, what is in it for us as a nation if we approve this
treaty?
Mr. Chairman, I recognize this is only an initial hearing, and that
there will be more discussion and review in the months ahead. My office
and I assume other members of the committee have been contacted by
individuals and organizations, including the ACLU expressing concerns
and raising questions about the impact of this treaty on individuals
who may have committed past political crimes that would not have been
extraditable under existing treaty arrangements, but could be in
jeopardy under the new one.
Without doubt, much has changed since the 1985 Supplementary Treaty
entered into force. First and foremost was the conclusion of the 1998
Good Friday Accord, which has established a framework for resolving the
root causes of the political conflict in Northern Ireland. While there
have been bumps along the road with respect to the full implementation
of the Accords, I believe that it has been largely effective in ending
the sectarian conflict that cost so many lives.
Since the signing of the Good Friday Accords in 1998, British
authorities have taken a number of legal steps to address legal
questions related to sectarian conflict. In 1998 the UK introduced an
early release program whereby IRA and Loyalist prisoners could apply
for release on license after they had served two years in prison--447
individuals have been released under this scheme. More recently, on
November 9 of this year, the Northern Ireland Offense bill was
introduced in the British Parliament to cover those individuals who do
not fall within the framework of the 1998 early release program--namely
those who went ``on the run'' before trial or escaped from prison
before serving two years of their sentences. Once that bill becomes
law, I believe that most so called political crimes related to the
Northern Ireland conflict will be put to rest.
These are important legal steps that have been taken since the
committee considered the 1985 Supplementary Treaty. Some of which may
not yet fully appreciated or understood. Additional hearings where
expert witnesses can layout these and other facts would enormously help
this committee in its consideration of the treaty.
It is my understanding, Mr. Chairman, that you are open to calling
additional witnesses. Presumably that won't be possible until next
year.
I thank you, Mr. Chairman for your willingness to more extensively
study this treaty, and I look forward to working with you to find the
kind of witnesses that can best inform the committee as we carry out
our responsibilities with respect to this treaty. Unfortunately, I will
not be able to stay for the entire hearing this morning because the
Banking Committee where I also serve is currently conducting a
nomination hearing for Chairman Greenspan's replacement on the Federal
Reserve Board. With your permission I will submit some questions for
the Record. I would also ask unanimous consent to have several written
statements that have been prepared for this hearing, printed in the
record so they can be available for the review of all Senators.
I look forward to reviewing the hearing record, and to working with
you, Mr. Chairman, on future hearings on this treaty.
Senator Dodd. There are a number of important questions
raised by the pending treaty. Among the most important is why
was article 3 of the supplementary treaty removed and what is
the effect of that change. Article 3 was added by this
committee in 1986 and was the subject of painstaking
negotiation, I might point out. It bars extradition of the
person sought establishes that the extradition request is made
with a view to try him on account of his race, religion,
nationality, or political opinions, or that if surrendered he
would be prejudiced at trial or punished because of those
reasons.
This provision also provides for judicial review of these
questions, a provision unique to our bilateral extradition
treaties. I recognize that it is unique, but there were unique
reasons for its inclusion some 20 years ago as well.
I understand that there have been only a handful of cases
in which article 3 was invoked and that none are now pending.
But I believe that before we consider modifying this article we
find out whether there are any cases likely to be filed in the
near future that would be affected by the changes to article 3,
more generally how do the provisions of this new treaty compare
to the current treaty with the United Kingdom, and why such
changes were made.
There are some additional comments here, Mr. Chairman, that
I will submit for the record. But I think the fact that we are
going to have an additional hearing on the subject matter will
give us a chance to examine those questions as well, and I am
very again grateful to you.
The Chairman. I thank the Senator for his comments. His
statements will be made a part of the record.
Senator Dodd. Mr. Chairman, there are some additional
comments here regarding this point that I would like to have
included in the record regarding that particular point.
The Chairman. It will be included in the record.
[The material to which Senator Dodd referred appears in
Appendix II of this hearing transcript.]
Senator Dodd. Thank you very much.
The Chairman. As I mentioned in my opening statement, and
as the Senator from Connecticut referenced, we appreciate that
the treaty, the U.S.-UK treaty, is a controversial area. There
has been the work that I cited by our mutual staffs, and that
will need to continue. As the Senator has pointed out, we look
forward to future witnesses and an additional hearing in the
coming year.
Now I would like to recognize our witnesses, and we
appreciate your coming. I will ask you to testify in the order
of first of all Mr. Witten and then Ms. Warlow. Let me say that
your full statements will be made a part of the record and you
may either deliver those or summarize, and after you have
concluded, why, then we will ask questions of you.
Mr. Witten.
STATEMENT OF SAMUEL M. WITTEN, DEPUTY LEGAL ADVISER,
DEPARTMENT OF STATE
Mr. Witten. Thank you, Mr. Chairman, Senator Dodd. I will
submit my full statement for the record, and I will give a very
brief summary here.
I am pleased to appear before you today to testify in
support of four bilateral law enforcement instruments, two
relating to extradition and two relating to mutual legal
assistance in criminal matters. If approved by the Senate and
brought into force, these treaties will improve key aspects of
our bilateral law enforcement relationships with four of our
most important international partners: the United Kingdom,
Israel, Germany, and Japan. We understand that all four of
these countries have completed or nearly completed their
domestic approval processes and it is important that the United
States be in a position to bring these treaties into force as
soon as possible.
The growth and transport of criminal activity, especially
violent crime, terrorism, drug trafficking, and the laundering
of proceeds of organized crime, has confirmed the need for
increased international law enforcement cooperation.
Extradition treaties and MLATs are essential tools in that
effort and their negotiation is an important part of a
concerted effort by the Departments of State and Justice to
modernize the legal tools available for the extradition of
criminal fugitives and in the investigation and prosecution of
crimes.
I will highlight several important points and more detail
will be contained in my lengthier submitted statement. Turning
first to the proposed new U.S.-UK extradition treaty, I note
that the United Kingdom is one of the U.S. Government's most
important allies in the global war against terrorism. The new
treaty, if approved by the Senate, will substantially improve
our ability to cooperate together on international extradition
matters, one of the cornerstones of international law
enforcement cooperation. The treaty before the Senate updates
the existing U.S.-UK treaty relationship to make it consistent
with virtually all of our modern extradition treaties in Europe
and elsewhere.
Among other things, the new treaty will incorporate into
the U.S.-UK extradition relationship modern provisions on key
extradition issues, such as dual criminality, provisional
arrest, statutes of limitations, political offense, political
motivation, and other matters. Consistent with longstanding
U.S. practice, the treaty would be applicable to offenses
committed before as well as after the date of entry into force.
The extradition protocol with Israel would supplement the
1962 extradition convention currently in force between the
United States and Israel and would update our existing treaty
relationship with this very important law enforcement partner
for the first time in over 40 years. Significantly, the
protocol would replace the current list of offenses in the 1962
convention with a dual criminality regime, thus permitting
extradition for offenses not currently included in the existing
convention. It also makes helpful changes in areas such as the
descriptions of the information needed for provisional arrest
and for extradition, the definition of the political offense
exception, and the rule of specialty.
The protocol addresses the issue of extradition of
nationals in an innovative way intended to build on important
advances in Israel's domestic extradition law that make the
extradition of nationals possible for Israel under certain
circumstances. In short, as the result of this new protocol,
combined with helpful advances in Israel's domestic extradition
law, Israel will be able to extradite its nationals who are
residents of Israel for trial in the United States so long as
they can be returned to Israel to serve any sentence imposed.
I will now turn to the two mutual legal assistance treaties
pending before the committee, with Germany and Japan, two key
law enforcement partners. The treaties broadly apply to
criminal investigation and proceedings and also enable certain
assistance in connection with investigations by regulatory
agencies.
I will not go into great detail on these treaties since
most of their provisions are by and large typical of those
found in our over 50 existing mutual legal assistance treaties
and are described in great length in our transmittals of the
treaties to the Senate and in our prepared testimony. I will
say, however, that the proposed MLATs with Germany and Japan
fill a significant gap in our network of MLATs with major law
enforcement partners. With the new proposed treaties with
Germany and Japan, the United States will have concluded such
treaties with all of our partners in the Group of 8, the G-8.
Mr. Chairman, we very much appreciate the committee's
decision to consider these important treaties. I will be happy
to answer any questions the committee may have.
[The prepared statement of Mr. Witten follows:]
Prepared Statement of Samuel M. Witten
Mr. Chairman and members of the committee. I am pleased to appear
before you today to testify in support of four bilateral law
enforcement instruments, two relating to extradition and two relating
to mutual legal assistance in criminal matters. If approved by the
Senate and brought into force, these treaties will improve key aspects
our bilateral law enforcement relationships with four of our most
important international partners--the United Kingdom, Israel, Germany,
and Japan. We understand that all four of these countries have
completed or nearly completed their domestic approval processes, and it
is important that the United States be in a position to bring these
treaties into force as soon as possible.
The Department of State greatly appreciates this opportunity to
address these treaties. The growth in transborder criminal activity,
especially violent crime, terrorism, drug trafficking, and the
laundering of proceeds of organized crime, has confirmed the need for
increased international law enforcement cooperation. Extradition
treaties and MLATs are essential tools in that effort, and their
negotiation is an important part of a concerted effort by the
Departments of State and Justice to modernize the legal tools available
for the extradition of criminal fugitives, and in the investigation and
prosecution of crimes.
I will address each of the instruments individually.
EXTRADITION TREATY WITH GREAT BRITAIN AND NORTHERN IRELAND
Turning first to the proposed new U.S.-UK Extradition treaty, I
note that the United Kingdom is one of the U.S. Government's most
important allies in the global war against terrorism. The new treaty,
if approved by the Senate, will substantially improve our ability to
cooperate together on international extradition matters, one of the
cornerstones of international law enforcement cooperation.
The treaty before the Senate updates the existing U.S.-UK treaty
relationship to make it consistent with virtually all of our modern
extradition treaties. It will replace the 1972 extradition treaty and
1985 supplementary treaty that are currently in force between the two
countries. Once the treaty is ratified, the United States will be
positioned to continue to receive the benefits of several recent
changes in UK law, including the reduction in the evidentiary standard
that the United States will be required to meet when seeking the
extradition of a fugitive from the United Kingdom, thereby making it
easier to bring fugitives to justice in the United States. Among other
things, the treaty would also streamline the extradition procedures
regarding requests to and from UK territories, by enabling U.S.
certification of extradition requests to be made in those territories
rather than through the United Kingdom's central authority in London.
The proposed treaty defines conduct as an extraditable offense if
the conduct on which the offense is based is punishable under the laws
in both States by deprivation of liberty for a period of one year or
more or by a more severe penalty. This kind of pure ``dual
criminality'' clause will be an improvement over the treaty regime
currently in place, which lists categories of offenses plus other
offenses listed in relevant UK extradition law and considered felonies
under U.S. law. As with all of our dual criminality treaties, this
provision means that the United States would not be required to
extradite a fugitive where the UK charge would not be a crime if
committed in the United States, for example, because the underlying
conduct would be protected by the Constitution and therefore could not
be criminalized.
The treaty requires that extradition be denied if the competent
authority of the Requested State determines that the request is
politically motivated. Like all other modern U.S. extradition treaties,
the new treaty grants the executive branch rather than the judiciary
the authority to determine whether a request is politically motivated.
This change makes the new treaty consistent with U.S. practice with
respect to every other country with which we have an extradition
treaty. Under the new treaty, as under the existing treaty, U.S. courts
will continue to assess whether an offense for which extradition has
been requested is a political offense.
Another helpful improvement in the proposed treaty deals with the
treatment of the statute of limitations. A decision by the Requested
State whether to grant the request for extradition shall be made
without regard to any statute of limitations in either State. This of
course does not eliminate the application of the statute of limitations
for either the United States or the United Kingdom once a fugitive has
been returned. Rather, it reserves the legal determination on the issue
of the statute of limitations to the courts of the country where the
criminal charges are pending. This provision is typical of our other
modern extradition treaties. Similarly, the treaty has a modern
provision on the provisional arrest of fugitives that is typical of our
extradition practice and consistent with U.S. law.
The treaty also provides that the Requested State may, to the
extent permitted under its law, seize and surrender to the Requesting
State all items and assets, including proceeds, that are connected with
the offense in respect of which extradition is granted. This same
concept, which is contained in the existing treaty and virtually all
U.S. extradition treaties, is helpful to law enforcement officials in
some cases in securing evidence related to the offense for which the
fugitive is sought.
In addition, the treaty sets forth a clear ``Rule of Specialty''
which provides, subject to specific exceptions, that fugitives can only
be tried for the charges for which they were extradited, absent
specific consent by the State that has extradited the fugitive. The
current U.S.-UK treaty does not contain a provision for waiver of the
rule of specialty, and the proposed provision is substantially the same
as the parallel provision in our modern extradition treaties.
Consistent with longstanding U.S. practice, the treaty would be
applicable to offenses committed before, as well as after, the date of
entry into force.
EXTRADITION PROTOCOL WITH ISRAEL
The extradition protocol with Israel, signed July 6, 2005, would
supplement the 1962 extradition convention currently in force between
the United States and Israel. The protocol would update the existing
treaty relationship with this very important law enforcement partner in
a manner consistent with our modern extradition treaties.
Significantly, the protocol would replace the current list of
offenses with a ``dual criminality'' regime, thus permitting
extradition for offenses not currently included in the existing
convention. The protocol also updates the provision listing the
exceptions to extradition, including by adding a military offense
exception; expanding the list of offenses excluded from the political
offense exception; and modernizing the prior prosecution clause to
provide that extradition may--as opposed to shall--be denied if the
person has already been tried and convicted in a third country for the
offense for which extradition is requested.
The protocol updates the statute of limitations provision in the
current convention, which states that extradition shall not be granted
if an offense or the execution of the penalty is time-barred in either
the Requested or the Requesting Party. The protocol would limit this
exception to only those situations where the Requested Party's law
requires the denial of extradition if the offense or execution of the
penalty is time-barred in the Requested Party. Although Israeli law
currently precludes extradition if the offense or execution of the
penalty is time-barred in Israel, this kind of flexible treaty
provision will be helpful if Israel were to change its law to permit
extradition regardless of Israel's statute of limitations.
Other provisions that would be updated by the protocol include: the
provision providing for postponement of extradition proceedings or the
deferral of surrender when a fugitive is already being proceeded
against or serving a sentence for another offense; the procedures for
requesting extradition and provisional arrest; the provision providing
for the transit of a fugitive wanted by a third state; the rule of
specialty provision; and the expenses provision, which also provides
that a Requested Party shall represent the Requesting Party in any
extradition proceedings. As with our other modern treaties, the
protocol will apply to offenses committed before as well as after the
date it enters into force.
The protocol addresses the issue of extradition of nationals in an
innovative way intended to build on important recent advances in
Israel's domestic extradition law that make the extradition of
nationals possible for Israel under certain circumstances. It repeats
the existing convention's requirement that extradition cannot be denied
solely on the basis of the nationality of the fugitive. It also
provides that if required by its law, the Requested Party may condition
the extradition of a national and resident on the assurance that the
fugitive shall be returned to serve any sentence of incarceration in
the Requested Party. The assurance ceases to have effect if the
fugitive consents to serving his sentence in the Requesting Party or
refuses to or withdraws his consent. The United States and Israel are
parties to the Council of Europe Convention on the Transfer of
Sentenced Persons, which provides the framework for the transfer of
Israeli citizens back to Israel to serve their sentence. Moreover, the
protocol requires that Israel enforce, according to its laws, the
sentence imposed in the United States, even if that sentence exceeds
the maximum penalty for such offense in Israel. Under Israeli law,
prisoners are eligible for parole after serving 2/3 of their sentence.
A returned fugitive would therefore be eligible for parole once he has
served 2/3 of the term of years imposed in the United States.I will now
turn to the two mutual legal assistance treaties pending before the
committee with Germany and Japan, two key law enforcement partners.
MUTUAL LEGAL ASSISTANCE TREATY WITH GERMANY
The proposed U.S.-Germany Mutual Legal Assistance Treaty in
Criminal Matters (MLAT) fills a significant gap in our network of MLATs
with major European law enforcement partners. Like other recent MLATs
concluded by the United States, the treaty with Germany broadly applies
to criminal investigations and proceedings. It enables assistance in
connection with investigations by regulatory agencies, for example the
Securities and Exchange Commission, to the extent that they may lead to
criminal prosecutions. Further, certain antitrust investigations and
proceedings, even some types which are considered civil matters under
German law, are within the scope of the MLAT.
The MLAT with Germany is typical of our over 50 MLATs with
countries around the world, including most of the countries of Europe.
It has several innovations, including provisions on special
investigative techniques, such as telecommunications surveillance,
undercover investigations, and controlled deliveries. It allows certain
uses for evidence or information going beyond the particular criminal
investigation or proceeding, which can include bilateral assistance to
help prevent serious criminal offenses and the averting of substantial
danger to public security.
The treaty identifies the U.S. Attorney General and the German
federal Ministry of Justice as the central authorities responsible for
the execution of the treaty. In view of the federal systems in both
countries, it also lists, in an appendix, those other federal and state
authorities which are competent to initiate requests for assistance.
MUTUAL LEGAL ASSISTANCE TREATY WITH JAPAN
The United States and Japan signed an MLAT on August 5, 2003. While
the United States has similar treaties in force with over 50 countries,
this is the first MLAT signed by Japan. With the new proposed treaties
with Germany and Japan, the United States has now concluded such
treaties with all of our partners in the Group of Eight (G-8).
The Japan MLAT will provide an effective tool in the investigation
and prosecution of a wide variety of offenses of concern to our two
countries, including terrorism, drug trafficking, fraud and other
white-collar crimes. The treaty permits assistance both for matters
already deemed criminal and in connection with an administrative
investigation of suspected criminal conduct (e.g., an investigation by
the Securities and Exchange Commission of suspected securities fraud),
in appropriate cases.
There is one aspect of this treaty related to the designation of
Central Authorities that should be mentioned. The Central Authority is
the entity that performs the functions provided for in the MLAT on
behalf of each government. For the United States, the Central Authority
is the Attorney General or a designee, a function that has been
delegated to the Office of International Affairs in the Criminal
Division of the Department of Justice. For Japan, on the other hand,
the Central Authority is either the Minister of Justice or the National
Public Safety Commission (the National Police) or their designees. The
authorization for Japan to designate two agencies is necessary because
of the respective jurisdictions of the two Japanese agencies concerned.
The MLAT is accompanied by an exchange of diplomatic notes provided to
the Senate for its information that specifies the kinds of mutual legal
assistance requests that will be handled by each agency on the Japanese
side.
Mr. Chairman, we very much appreciate the committee's decision to
consider these important treaties.
I will be happy to answer any questions the committee may have.
The Chairman. Thank you very much, Mr. Witten.
Ms. Warlow.
STATEMENT OF MARY ELLEN WARLOW, DIRECTOR, OFFICE OF
INTERNATIONAL AFFAIRS, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE
Ms. Warlow. Thank you, Mr. Chairman, thank you for the
opportunity to submit my written statement for the record, and
I will try to briefly summarize that statement. I too am
pleased to appear before you--I am pleased to appear before the
committee today to present the views of the Department of
Justice on these four important law enforcement treaties. As
you noted, Mr. Chairman, these are treaties with four of our
most important allies and partners in combatting crime and
fighting terrorism. Each of these instruments is something that
will advance the law enforcement interests of the United
States.
I would like to turn first briefly to the two extradition
instruments, with the United Kingdom and Israel. Both contain
features we regularly seek in order to have modern, effective
extradition relations. First, as you noted, Mr. Chairman, both
are dual criminality treaties, that is, extradition is
dependent solely on whether both countries criminalize the
conduct at issue as a felony, thus dispensing with the approach
of list treaties in the two existing instruments. This is
extremely important to us because it gives us the broadest
possible range for extraditable offenses and it also allows the
treaties to keep to date with developments in the law. In the
decades since these treaties were negotiated, we have seen new
offenses, such as money laundering, computer crimes,
trafficking in persons, and crimes such as providing material
support to terrorism.
Also, both treaties are very important for practitioners
because they ease the burdensome evidentiary requirements that
the United States has had to meet in order to seek extradition.
Both the United Kingdom and Israel had required presentation
for purposes of an extradition of a prima facie non-hearsay
case, and I cannot stress enough how difficult these
requirements were in complex cases involving multiple victims
or complex criminal activity.
However, neither the new treaty with the United Kingdom nor
the protocol to our treaty with Israel will modify the
evidentiary standard for extradition proceedings in the United
States. That is information, information that can include
hearsay, that is sufficient to meet a standard of probable
cause when the person is sought for extradition for trial.
Both treaties contain provisions consistent with modern
extradition practice and procedure. These include the temporary
surrender provision that allows us to have someone extradited
temporarily when they are already serving a sentence in the
other country. Also, both treaties streamline the procedures
for requesting provisional arrest, that is the issuance of a
warrant in urgent circumstances pending the presentation of a
full extradition hearing and the formal extradition documents.
Currently these requests have to be made through the diplomatic
channel and, though our colleagues in the State Department are
extremely efficient, we also have to deal with our embassies
abroad and foreign ministries. Under these treaties we can make
requests directly to our counterparts in the United Kingdom and
Israel.
Other procedural improvements in both treaties include
limiting or eliminating the statute of limitation as a
consideration in the extradition proceedings. This is a benefit
that we have sought in many of our modern extradition treaties.
Other common aspects of both treaties are explicit
provisions for defendants to waive extradition and thus
accelerate their return if they so consent and modern
comprehensive provisions regarding the rule of specialty, a
principle that bars prosecution of a fugitive for offenses
other than those for which he has been extradited.
As Mr. Witten noted, the treaties are somewhat different on
extradition of nationals with the United Kingdom. Our
longstanding tradition of extraditing without regard to
nationality would remain. The protocol with Israel, as Mr.
Witten has explained quite thoroughly, has a novel approach
reflecting advancements in the Israeli law. Thus the former bar
on extradition of nationals from a 1978 law is now changed and
in a way that we can take advantage of. We have had some
experience with this provision of the revised Israeli law and
since 1999 15 Israeli citizens have in fact been extradited to
the United States.
Consistent with our modern treaties with countries with
which we have a long and reliable extradition history, both the
U.K. extradition treaty and the Israel protocol exclude
application of the political offense exception where the
offense at issue is a serious crime of violence, offenses
including bombs and other destructive devices, irrespective of
the purported political motivation or justification of the
defendant. This limitation on the political offense exception
is not new to our relations to the United Kingdom and indeed
the 1985 supplementary treaty was the first U.S. extradition
treaty to specifically exclude the most serious terrorist
offenses and crimes of violence from consideration as a
political offense. Thus with the protocol with Israel, Israel
too will have the benefit of this improvement in our treaty
practice.
Very briefly on the MLATs for the committee has assisted us
in the Department of Justice greatly over the years by
approving over 50 mutual legal assistance treaties. Let me just
note a few elements of these treaties.
Although the treaties are structured somewhat differently,
in substance they are very much the same. As a general rule,
there is not a requirement of dual criminality, although that
does exist to some extent with respect to compulsory measures.
Both treaties have the advantage of direct contact between
central authorities. They allow us to take depositions that
accommodate U.S. requirements of confrontation. They allow us
to transfer incarcerated witnesses if they agree. We have
provisions for confidentiality, seizure, and forfeiture of
assets, and of course residual authority to deny assistance
where our essential interests are implicated.
Thank you, Mr. Chairman. I would be happy to respond to
your questions.
[The prepared statement of Ms. Warlow follows:]
Prepared Statement of Mary Ellen Warlow
Mr. Chairman and members of the committee, I am pleased to appear
before you today to present the views of the Department of Justice on
four law enforcement treaties, including one protocol, that have been
referred to the committee. Each of these instruments will advance the
law enforcement interests of the United States. They are of particular
importance as we face an increasing need for cooperation and assistance
from the international community in the investigation of crimes
relating to terrorism and other serious violent activity, trafficking
in persons and drugs, and large-scale financial offenses.
The updated extradition treaty between the United States and the
United Kingdom of Great Britain and Northern Ireland modernizes and
streamlines the 1972 treaty and the 1985 supplementary treaty. The
protocol to the extradition treaty between the United States and Israel
amends the terms of the existing treaty. The bilateral mutual legal
assistance treaties (``MLATs'') with Germany and Japan are the first of
their kind to be negotiated between the United States and the treaty
partner.
The decision to proceed with the negotiation of law enforcement
treaties such as these is made by the Departments of State and Justice,
and reflects our international law enforcement priorities. The
Department of Justice participated in the negotiation of these
extradition and mutual legal assistance treaties, and we join the
Department of State today in urging the committee to report favorably
to the Senate and recommend its advice and consent to ratification of
each of the treaties. In my testimony today, I will concentrate on why
these treaties are important for United States law enforcement agencies
engaged in investigating and prosecuting serious offenses.
THE EXTRADITION TREATY AND PROTOCOL
Modernizing our extradition treaties and, where appropriate,
establishing new extradition relationships, remain among the top
priorities of the Justice Department's international law enforcement
efforts.
The extradition treaty and protocol being considered by the
committee replace and update, respectively, the existing treaties that
govern our extradition relations with two of our most important law
enforcement partners, the United Kingdom and Israel. Both of the new
instruments contain features we regularly seek in order to establish or
augment a modern, effective extradition relationship.
THE UNITED STATES-UNITED KINGDOM EXTRADITION TREATY
The new extradition treaty with the United Kingdom of Great Britain
and Northern Ireland, which will replace the outdated 1972 treaty and
the supplementary treaty of 1985, was signed on March 31, 2003, and is
an integral part of the coordinated bilateral commitment to enhancing
and modernizing the U.S.-U.K. law enforcement relationship. It includes
a number of improvements to the existing instruments. For instance, it
is a ``dual criminality'' treaty, expanding the scope of extraditable
offenses well beyond those specifically recognized in the existing
treaty's list or in domestic U.K. extradition law and allowing the
automatic extension of the proposed treaty's provisions to new forms of
criminality that are made punishable as felonies in both countries in
the future. It will allow requests for provisional arrest, which are
used in urgent circumstances to prevent the flight of serious felons or
protect society from dangerous and violent suspects, to be made
directly between the Department of Justice and an authority to be
designated by the United Kingdom, thus obviating the need to go through
formal diplomatic channels in order to secure emergency assistance.
Further, it gives clear guidance to the courts on actions not to be
considered as ``political offenses'' for which extradition is barred
and redirects decisions on ``political motivation'' to the Executive
branch, a placement of responsibility that is consistent with all our
other modern extradition treaties and longstanding United States
caselaw.
Another provision in the new treaty of particular significance is
that authorizing ``temporary surrender.'' Under the current treaty, the
extradition of an individual who is being prosecuted or serving a
sentence in one country must be deferred until the completion of the
trial and any sentence imposed. Such a deferral can have disastrous
consequences for a later prosecution due to lapse of time, the absence
or death of witnesses, and the failure of memory. The new provision
will allow the individual being tried or punished in one country to be
sent temporarily to the other for purposes of prosecution there and
then returned to the first country for resumption of the original trial
or sentence. The availability of ``temporary surrender'' has become
more and more significant in recent years as international criminals,
including terrorists, transgress the laws of a number of nations to
plan and carry out their illegal activities. This particular provision
has a very real and practical impact on our ability to successfully
prosecute defendants who have violated the laws of both nations. We
wish to inform the committee that our government has requested the
extradition of a defendant who has been indicted in a major terrorism
case here in the United States. However, that defendant currently
stands charged with criminal violations in the United Kingdom as well.
In this scenario, the establishment of a temporary surrender mechanism
through approval of this new treaty is considered vital to ensuring
that this defendant--and others similarly situated--ultimately faces
trial and is broughtto justice in the United States.
All of these provisions of the new treaty will clearly be of
benefit to both the United States and the United Kingdom and will serve
to enhance our efforts to bring fugitives to justice. One of the
primary United States objectives in negotiating the new treaty was to
remove the ``prima facie'' evidence requirement imposed by the United
Kingdom in extradition cases and replace it with a less stringent
standard being made available under new U.K. domestic extradition laws.
As events transpired, the government of the United Kingdom undertook to
designate the United States for favored treatment under the new
legislation and the lower standard of proof as of January 2004, even
though the United States ratification process was not yet complete.
This designation has made the preparation of extradition requests far
easier and, in some cases, allowed us to proceed with cases that we
might earlier have declined to pursue. Unfortunately, as time has
passed, the government of the United Kingdom has been the recipient of
increasingly sharp criticism in the press and in Parliament over having
given the United States the beneficial designation without a showing of
reciprocal support for an improved extradition relationship through
United States approval of the new treaty. Moreover, a number of
significant defendants in pending extradition cases from the United
States are starting to raise the allegation of a ``flawed'' designation
process in the lower courts and on appeal. We therefore hope that this
hearing will lead to speedy approval of the new treaty and its entry
into force in the immediate future.
We understand that some have raised questions about certain
provisions of the treaty. We will be pleased to respond to any such
questions. The Departments of Justice and State believe that this
treaty will significantly improve our extradition relationship with the
United Kingdom without undermining in any way the commitment of the
United States to the protection of individual human rights and the
fulfillment of our international obligations. As we have emphasized
earlier, the provisions of the new treaty do no more than place our
extradition relationship with the U.K. on a par with other nations with
which we have modern treaties.
THE UNITED STATES-ISRAEL EXTRADITION PROTOCOL
The Protocol with Israel, signed on July 6, 2005, amends the 1962
Convention on Extradition (``Convention'') that is currently in force
and brings it up to the standards of our modern extradition practice.
Like the new U.S.-U.K. Treaty, the Protocol establishes a ``dual
criminality'' approach, carrying the obligation to extradite for all
offenses that are punishable in both treaty partners' countries by
imprisonment for a period of one year, or by a more severe penalty.
This approach replaces the outmoded "list" regime of our current
Convention, which limits extradition to those crimes enumerated in the
text. Dual criminality treaties carry the advantage of reaching the
broadest range of felony offense behavior, without requiring the
repeated updating of the treaty as new forms of criminality emerge.
This is particularly important as United States authorities investigate
and prosecute crimes related to terrorism, trafficking in persons,
high-tech crimes, and other recent trends. The Protocol will make such
crimes as material support of terrorism, money laundering, computer
crimes and a broader range of sex offenses against children
extraditable.
Further, the Protocol significantly streamlines the process of
requesting extradition by establishing that extradition documents
containing hearsay will be admissible in court. Permitting the formal
documents in support of extradition requests to contain hearsay
evidence will alleviate the burden on United States prosecutors of
preparing often voluminous packages for Israeli courts; United States
courts have long accepted hearsay in extradition proceedings. The
Protocol also expands the list of crimes excluded from the political
offense exception to extradition to bring it into line with our modern
practice. It establishes that a murder or other of the most serious
violent crimes shall not constitute a political offense. Likewise,
offenses as to which we are obligated to extradite or prosecute under
the terms of a multilateral international agreement--such as offenses
under ten U.N. anti-terrorism treaties--may not be considered political
offenses for which extradition is barred.
The extradition of Israeli nationals has been problematic for the
United States since Israel enacted a 1978 law that conflicted with the
Convention and barred the extradition of Israeli citizens. The 1997
case of United States national Samuel Sheinbein who was charged with
murder in the State of Maryland, fled to Israel and successfully
avoided extradition by claiming Israeli citizenship, highlighted the
issue and led to a change in Israel's extradition law. While the
Israeli legislation does not entirely eliminate restrictions on the
extradition of nationals, it provides a much-improved framework for
dealing with fugitives who claim Israeli citizenship. First, offenders
are no longer able to avoid extradition by claiming citizenship after
committing an offense in the United States; limitations on extradition
apply only if the defendant establishes that he was a citizen and
resident of Israel at the time of the offense. Second, the limitations
on extradition are significantly modified: as long as we are able to
assure that the defendant will be returned to Israel to serve his
sentence, Israeli citizens may be extradited to stand trial. The
Protocol accommodates the approach of Israel's legislation.
We have already had experience in several cases utilizing this
approach, and found it to be workable. The Council of Europe Convention
(``COE Convention'') on the Transfer of Sentenced Persons, to which
both the United States and Israel are parties, provides the framework
for the transfer of Israeli citizens back to Israel to serve their
sentences. Specifically, since 1999, the United States has extradited a
total of 20 fugitives from Israel, of whom 15 were Israeli nationals
(including dual United States-Israeli nationals). Of those 15 Israelis,
following their United States trials we have transferred 5 back to
Israel under the COE Convention; 6 are serving their sentences in the
United States because Israel determined that they were not residents of
Israel at the time of their crimes; 1 was not transferred because his
United States sentence was too short to allow for processing and
transfer; and 3 cases remain pending in the United States. This
approach of permitting extradition of nationals on condition of their
return for service of sentence is similar to that in the 1983 United
States-Netherlands extradition treaty. However, the Protocol with
Israel has the significant additional benefit that Israel has
explicitly agreed to enforce the United States sentence, even if it
exceeds the maximum penalty under Israeli law.
The Protocol incorporates a variety of procedural improvements in
extradition practice. Like the new U.K. treaty, the Protocol
streamlines the procedures for ``provisional arrest'' by permitting
such emergency requests to be made directly between the respective
Justice authorities, without requiring initial resort to the diplomatic
channel. Another similar provision contained in the Protocol is
``temporary surrender.'' The Protocol allows a person found
extraditable, but who is already in custody in the requested State on
another charge, to be temporarily transferred to the requesting State
for purposes of trial. As discussed previously, this provision is
designed to overcome the problem of delaying extradition while a
fugitive is serving a sentence abroad, during which time the case
underlying the extradition request may become stale--or completely
unviable--because of the unavailability of witnesses or other
evidentiary difficulties.
THE MUTUAL LEGAL ASSISTANCE TREATIES
The two MLATs before this committee will expand the United States's
complement of law enforcement mechanisms designed to strengthen our
ability to obtain evidence and other forms of assistance from overseas
in support of our criminal investigations and prosecutions. I realize
the committee has become acquainted with the significant benefits MLATs
provide to the international law enforcement community since the first
such treaty came into force in 1977. We now have over 50 MLATs in
force. Accordingly, I will briefly review only some of those benefits
in this statement.
Our practical experience with MLATs over the years has demonstrated
that they are generally more efficient than other formal means of
international legal assistance, specifically including letters
rogatory, as MLAT requests do not require a court order and they are
not routed through diplomatic channels. MLATs establish a direct
channel of communication between Central Authorities--usually contained
within the respective treaty partners' Departments of Justice--and they
confer a binding legal obligation to provide assistance if the
requirements of the treaty are met. MLATs are broad in scope, and
provide for assistance at the investigatory stage, usually without the
requirement of dual criminality. These treaties pierce bank secrecy and
provide a mechanism for addressing legal and policy issues such as
confidentiality, admissibility requirements for evidence, allocation of
costs, confrontation of witnesses at foreign depositions and custodial
transfer of witnesses. Significantly, MLATs provide a framework for
cooperating in the tracing, seizure and forfeiture of criminally-
derived assets.
Despite these and other benefits, we realize that MLATs in
themselves are not the solution to all aspects of law enforcement
cooperation. They are similar to extradition treaties in that their
success depends on our ability to implement them effectively, combining
comprehensive and updated legal provisions with the competence and
political will of our treaty partners. Our recognition of the
importance of effective treaty implementation led to the development of
a consultation clause that we include in our MLATs, to ensure that we
will have regular dialogues with our treaty partners on the handling of
our cases.
While the two MLATs before the committee share certain standard
features, their specific provisions vary to some extent. The
transmittal packages explain these variations, which are the result of
negotiations over a period of years with countries that have a
different legal system from that of the United States and represent a
different law enforcement priority for the United States.
I would like to highlight how each of the MLATs before the
committee reflects our international law enforcement priorities:
The United States-Germany MLAT
The United States-Germany MLAT, signed on October 14, 2003, is the
first such treaty between our countries and is the culmination of a
lengthy negotiation. Upon its entry into force, the MLAT will enhance
the existing mutual assistance relationship characterized by
longstanding, collegial, but discretionary cooperation, and establish
an obligation to provide assistance in the investigation and
prosecution of offenses including terrorism, drug trafficking, fraud,
and other serious crimes. The treaty provides for a broad range of
cooperation in criminal matters, including taking the testimony or
statements of persons; providing documents, records, and articles of
evidence; locating or identifying persons; serving documents;
transferring persons in custody for testimony or other purposes;
executing requests for searches and seizures; assisting in proceedings
related to immobilization and forfeiture of assets, restitution to the
victims of crime and collection of fines; and any other form of
assistance not prohibited by the laws of the State granting the
assistance. Also, enforcement agencies such as the SEC that have
authority to refer matters to the Department of Justice for criminal
prosecution may make requests under the MLAT.
In addition, this is the first United States MLAT to include
special investigative techniques among permissible types of assistance.
Specifically, Article 12 establishes that the Parties may use
telecommunications surveillance, undercover investigations, and
controlled deliveries, in accordance with their domestic law, in
execution of requests for assistance. This provision was included at
Germany's request, to assert the Federal government's legal authority,
vis-a-vis the States, to undertake such actions on behalf of foreign
authorities.
The United States-Japan MLAT
The United States-Japan MLAT was signed on August 5, 2003, and is
the result of nearly a decade of negotiations. The treaties with
Germany and Japan complete our network of MLATs with our partners in
the Group of Eight (G-8). Japan's legislative body, the Diet, has
ratified the treaty, which is Japan's first MLAT, and enacted the
necessary domestic legislation to implement it. The treaty will enhance
law enforcement cooperation between our countries in the investigation
and prosecution of a wide variety of crimes, including terrorism, drug
trafficking, child exploitation and obscenity, antitrust violations,
fraud, crimes against the environment, and others. Like other treaties
in force, and the United States-Germany MLAT also presented for the
committee's consideration today, the United States-Japan MLAT obligates
the Parties to assist one another in investigations, prosecutions and
other proceedings in criminal matters through the taking of testimony;
producing documents and other items of evidence; inviting persons to
testify in the requesting state; transferring persons in custody for
testimony and other purposes; assisting in proceedings relating to
forfeiture and any other assistance permitted under the laws of the
requested party and agreed upon by the Central Authorities. In
addition, concerning certain proceedings related to criminal offenses,
Article 1(3) permits assistance in connection with an administrative
investigation of suspected criminal conduct (e.g., the Securities and
Exchange Commission's investigation of suspected securities fraud) in
appropriate circumstances.
A salient feature of the MLAT is the designation in Article 2 of
two Central Authorities for Japan. The Central Authority is a key
ingredient to the success of any mutual assistance relationship, as it
is the entity that governs the execution of requests. For the United
States, the Attorney General or a designee is the Central Authority;
this duty has been delegated to the Office of International Affairs
within the Department's Criminal Division. For Japan, the two
designated Central Authorities are the Minister of Justice and the
National Public Safety Commission, which oversees Japan's National
Police Agency. A related Exchange of Notes sets forth the kinds of
requests that each agency, headed by a co-equal, Cabinet-level
official, will handle. During the negotiations, the Japanese delegation
explained that this unusual, dual Central Authority approach will give
their police the ability, in certain circumstances, to request
assistance under the MLAT without going through the Ministry of
Justice. They based their rationale on internal Japanese policies and
the manner in which criminal cases are investigated and prosecuted in
the Japanese legal system. This approach will have no negative effect
on the process of making United States requests to Japan, or on Japan's
execution of our requests. In fact, it memorializes our current
practice and, as the Exchange of Notes states, the United States may
continue to consult directly with the Japanese Ministry of Justice
concerning any United States request under the treaty. The MLAT follows
a modern dual criminality approach, with the limited exception of
requests involving conduct not constituting a criminal offense under
the laws of the requested Party and requiring compulsory process to
execute. In such cases, the requested Party may deny assistance.
CONCLUSION
We appreciate the committee's support in our efforts over the years
to strengthen and enlarge the framework of treaties that assist us in
combating international crime. We at the Department of Justice view
extradition and mutual legal assistance treaties as particularly useful
tools in this regard. In addition, as our network of international law
enforcement treaties has grown in recent years, we have focused
increasing efforts on implementing our existing treaties, with a view
to making them as effective as possible in the investigation and
prosecution of our most serious crimes, including those related to
terrorism. We join our colleagues from the Department of State in
urging the prompt and favorable consideration of these treaties, to
enhance our ability to fight transnational crime. I will be pleased to
respond to any questions the committee may have.
The Chairman. Well, thank you very much, Ms. Warlow, for
your testimony. As we mentioned, the prepared statements of
both witnesses will be made a part of our record, in full.
I have two very lengthy and complex questions with regard
to the United States-U.K. treaty, so suffer with me through the
reading of the question, but the questions have been crafted so
that you will have opportunities to offer the technical
responses that this hearing tries to bring about, because we
are attempting to have as comprehensive a view as possible of
each of the four treaties.
The first treaty that we are talking about appears to be
the more complex and more controversial and therefore we will
work our way through that first of all. My question: There has
been a great deal of interest in the provision of this new
treaty relating to political motivation. The existing treaty
with the United Kingdom as amended in 1986 prohibits
extradition for political offenses while excluding certain
violent offenses from being considered to be political
offenses.
Individuals whose extradition is requested for an offense
that has been excluded from the political offense exception may
raise in court a claim that the extradition request was made in
order to try or punish them on account of their race, religion,
nationality, or political opinion. Like the existing treaty,
the new treaty would bar extradition for political offenses,
again excluding certain violent crimes from this category. It
also continues to prohibit extradition where the request for
extradition is found to be politically motivated. However, in
the United States such claims would be determined by the
executive branch rather than by the courts.
That being the case, let me ask you these questions. First,
in what types of cases has the current provision permitting
political motivation claims to be determined by the court been
invoked in practice over the past 19 years, and with what
results? Mr. Witten, do you have a response to that?
Mr. Witten. Mr. Chairman, on this question I will ask my
colleague Ms. Warlow to discuss some of the developments that
have occurred since the 1985 supplementary treaty was brought
into force and I will add any comments at the end.
The Chairman. Very well. Ms. Warlow?
Ms. Warlow. Thank you, Mr. Chairman. There have been very
few cases in which this provision has been invoked. In sum,
there have only been five persons who have availed themselves
of this particular provision for judicial review of political
motivation. The first was a case in which there was an asserted
claim that the defendant, named Howard, would have suffered
bias in his trial by virtue of his race. That claim was
rejected by the First Circuit.
The following four cases in fact involved offenses relating
to Northern Ireland, described as terrorist-related or IRA-
related. They all arose in the early 1990s. The first was the
case of a person named Smith. He was arrested in 1992. There
was extensive litigation about his case. Ultimately, after a
long process of litigation, in 1996 he was extradited to
Ireland. He was released in 1998.
The next three defendants, whose names were Art, Kirby, and
Brennan, their cases were consolidated and again there was
extensive taking of evidence about conditions in Northern
Ireland. The claims of the defendants were heard exhaustively.
The case continued on in various stages until the year 2000. So
we had the first defendants arrested in 1992 until 2000. At
that point the case was pending rehearing en banc before the
Ninth Circuit.
The cases were withdrawn by the United Kingdom in 2000, at
the end of 2000, consistent with a general statement of policy
by the United Kingdom that they were no longer seeking
extradition of such defendants. It has not been invoked in any
case since.
The Chairman. Thank you.
Secondly, is the provision in the new treaty which refers
such claims to the executive branch consistent with the
treatment of this issue in other modern U.S. extradition
treaties?
Mr. Witten. Mr. Chairman, yes, it is consistent. In fact,
all of the treaties that this committee has considered over the
years with the exception of the supplementary treaty with the
United Kingdom have included a standard provision that the
issue of political motivation or wrongful motivation would be
handled by the executive branch. We are in an unusual situation
here where one of our closest partners in the global war on
terror has an additional burden of going through the U.S. court
system on what is essentially an issue of the reasons for the
extradition request being made, an issue that we would handle
in all other treaties, including with Europeans and countries
around the world, as a matter for the executive branch to sort
through.
The Chairman. Thirdly, why is it now appropriate in our
extradition relations with the United Kingdom to remove this
issue from the purview of the judiciary?
Mr. Witten. Mr. Chairman, Ms. Warlow has outlined some of
the difficulties that have transpired over the years as U.S.
courts have been asked to analyze issues of prejudice to
position and political motivation. Particularly in the last 4
years in the aftermath of September 11th, the United States and
the United Kingdom have had an extraordinarily close law
enforcement and counterterrorism relationship. It is anomalous
at this point for there to be a provision in one of our two
fundamental law enforcement treaty bilateral relationships with
the United Kingdom where the motivation of the United Kingdom
is sorted out as a judicial matter rather than a matter for the
executive branch.
This administration strongly believes that the treaty with
the United Kingdom should be rationalized and made equivalent
to all of our other treaty partners.
Ms. Warlow. I might just add, Mr. Chairman, that the 1985
supplementary treaty was the first that had these explicit
carveouts for certain types of offenses in the sense that they
could not be considered political offenses. Since that time,
the Senate has approved a number of treaties which have taken
exactly the same approach. So there was, I believe, some
initial concern that this new approach to the political offense
might require an additional balance or additional inquiry by
the judiciary.
In fact, I believe every new treaty that we have concluded
with a European partner has the same sort of approach with
respect to political offense, but none of them have adopted
this shifting of the inquiry to the judiciary rather than the
executive.
The Chairman. I thank the witnesses.
Now, this question really raises a set of issues that have
come essentially from letters to the committee. Obviously, the
treaty that we were just discussing, and that you have just
testified on in these first responses, is controversial and has
brought much attention throughout now many years, and we have
recited the history of the situation. The staffs of the
committee have summarized in these questions some of the
responses and I would like to ask your comments on these.
I start by saying the committee has received letters
expressing concerns regarding several of the treaty's
provisions, in addition to questions concerning the treatment
of political motivation, which we just discussed. I am going to
read to you several excerpts from these letters. I would ask
you for the administration's response.
Number one. The first of these excerpts indicates a concern
regarding the treaty's potential impact on the free speech
rights of American citizens. It states, ``We are convinced that
this treaty as it reads will trample on the rights of all
Americans and especially Irish Americans to speak out on what
we see as political and human rights violations by the United
Kingdom in the north of Ireland or anywhere else.''
Now, to witnesses: Please explain whether or how this new
treaty could be used to extradite an individual from the United
States for engaging in speech that would be protected under the
United States Constitution.
Mr. Witten. Thank you, Mr. Chairman. Mr. Chairman, the
treaty could not be used in this manner. The treaty, like all
of our other extradition treaties, requires a finding that the
conduct at issue would constitute a criminal offense punishable
by a sentence of 1 year or more if committed in the United
States. Since engaging in constitutionally protected free
speech cannot be punished as a crime in the United States, this
test of dual criminality would fail and therefore the conduct
in question would not be extraditable.
The Chairman. I thank you.
The second issue. One of the letters asserts that the
treaty ``allows for extradition even if no American Federal law
is violated.'' Is that an accurate assumption?
Ms. Warlow. No, Mr. Chairman, it is not. Again, it is the
issue of dual criminality which provides the protection.
Extradition can succeed only if the conduct is criminal,
recognized as a felony, in the United States. Now, it is not
the case that it need be a Federal felony, but it can be also a
State felony. This is an established practice in extradition
law and of course it makes sense for us because we do not have
a full Federal criminal code. It is limited.
The Chairman. The third issue. This third excerpt addresses
the procedures that may be applied under the new treaty to
determine whether a person is extraditable. It states, ``The
treaty would eliminate the need for Britain to present and show
evidence before U.S. courts that the person requested for
extradition is guilty of the crime he or she is charged with.
They would only need to convince a member of the administration
in office that a crime had been committed. Unsupported
allegations of wrongdoing could be sufficient cause for
extraditing law-abiding citizens.''
What would be the administration's reaction to this
statement?
Mr. Witten. Mr. Chairman, the statement is incorrect. The
treaty does not change the manner in which proceedings that
would lead to extradition to the United Kingdom would be
pursued. There would still be the obligation for the U.S.
executive branch to present to a U.S. court enough evidence to
satisfy the standard of probable cause. The statement assumes
that these kinds of decisions would be made by the executive
branch without the judiciary's involvement and in fact under
both the new treaty and the existing treaty with the United
Kingdom, like all of our other extradition partners, the
executive branch must present sufficient evidence to meet the
probable cause standard.
The Chairman. The fourth situation. Another excerpt asserts
that the treaty, ``allows for provisional arrest and detention
for 60 days upon request by the United Kingdom without a court
hearing or a trial, as well as the seizure of assets in the
United States by the British government.''
What is the administration's response to this assertion?
Ms. Warlow. Mr. Chairman, this provision is not novel. It
is a standard provision regarding provisional arrest and there
are similar provisions in the existing treaties. In order to
have someone provisionally arrested, a prosecutor must file a
complaint with a judge that sets out sufficient information for
the judge to make a determination that an arrest is warranted.
Then a decision of whether or not the person is to be held or
not is for the judge to determine. And the length of time, 60
days, is a common length of time for provisional arrest.
As to the question of seizure, in no way does the treaty
authorize the United Kingdom to seize assets in the United
States. A request for seizure has to be supported by facts
sufficient to meet our legal requirements.
The Chairman. A fifth issue. The letters also raise the
issue of retroactive application of the treaty. One letter
states, ``The terms of the proposed treaty will apply
retroactively for offenses allegedly committed even before the
treaty's ratification.''
Is this accurate? And then furthermore, does the treaty
permit extradition for an offense that was not criminalized in
both countries at the time the conduct occurred? What would be
the effect of precluding retroactive application of the treaty?
Mr. Witten. Mr. Chairman, first, the statement is accurate,
but there is nothing novel about a provision in an extradition
treaty that the treaty could be invoked for conduct that took
place before the treaty enters into force. It is a standard
provision, and indeed both the existing treaty and the new
treaty have provisions along these lines. The provision for
retroactivity is in virtually all, perhaps all, of our modern
extradition treaties.
With respect to the aspect of your question, Mr. Chairman,
about conduct that was not criminalized at the time it took
place, this treaty would have nothing to do with the standard
in the U.S. law of ex post facto. For the United States to seek
extradition for conduct, it would have to be conduct that is
criminalized under our law, and under our Constitution we would
not be in a position to make criminal conduct that was not
criminal at the time it took place.
I will defer to my colleague for more on that.
Ms. Warlow. That is fine.
Mr. Witten. We have nothing further, Mr. Chairman.
The Chairman. Finally, in this last excerpt I want to raise
with you, the letter states, ``The treaty would effectively
eliminate any statute of limitations.'' Now, this statement
appears to refer to the fact that the new treaty contains a
provision requiring the requested party to decide whether to
grant extradition without regard to the statute of limitations
in either party, which represents a change from the existing
agreement.
What was the reason for including this provision in the new
treaty? Is the provision common in other modern U.S.
extradition treaties and would extradited individuals be able
to raise a statute of limitations defense before a competent
court in the requesting party following their extradition?
Mr. Witten. I will take that question, Mr. Chairman. The
treaty does not in any way eliminate application of the statute
of limitations for either the United States or the United
Kingdom. What it does is it makes the issue of the statute of
limitations an issue which we believe is appropriately reserved
to the courts of the country requesting extradition and
therefore irrelevant in the extradition proceeding itself.
In our view it is not appropriate that a foreign court
should seek to apply our own statute of limitations in an
extradition proceeding or seek to apply its statute of
limitations with respect to an offense committed in the United
States. This is not a novel provision. It is found in several
of our modern treaties.
Also, I would have to stress that the person who is
extradited in no way is inhibited in raising issues of statute
of limitations in the context of their trial. So the treaty
does not impinge on those rights or change this in any respect.
In our view, this provision makes good sense. We have had many
cases where we have seen courts grapple with trying to apply
foreign statutes of limitations or their own statute of
limitations to cases investigated under different procedural
rules and this is an appropriate and common provision in our
view.
The Chairman. I thank you.
Now, this question is not from writers of letters. This is
my own. Our extradition relations with the United Kingdom are
currently governed by a treaty dating back to 1972. Why do we
need to replace this treaty and in what way will the new treaty
improve U.S. efforts to obtain extradition of fugitives from
the United Kingdom?
Ms. Warlow. I would be happy to respond to your question.
As you noted, our treaty is more than 30 years old and it is
important for us, with the United Kingdom, one of our most
important law enforcement partners, to have a state of the art
treaty. Our practice under the old treaty was a difficult one
for the reasons we described in our statements. The old list
approach was very difficult and limiting. It did not allow us
to capture modern offenses. The burden of proof was extremely
difficult and has actually been abandoned by virtually all
common law countries at this time.
We need other modern mechanisms. A temporary surrender
provision is quite important. We have at least two cases
already on our radar screen that we think would be important
ones where we would be able to surrender people soon for trial.
One of them is a murder case. Another one is a case involving
terrorism.
This is an important treaty for the United States. I have
to stress, we have in a sense a rather imbalanced extradition
relationship with the United Kingdom by way of numbers. Our
requests to the United Kingdom run five, six times as many as
the United Kingdom's requests to us and they are a range of
offenses from murders, narcotics, frauds. We also now have, I
believe, six individuals now in custody in the United Kingdom
who we sought the extradition of for terrorist offenses against
the United States.
So this is an extremely important relationship. It is a
good relationship, and we have now come to the point where we
can take advantage of improvements in UK extradition law that
are memorialized in this treaty and then will control our
relationship in the future. So it is a very important
instrument for us from a law enforcement perspective.
The Chairman. Are there any extradition requests from the
United Kingdom now pending that relate to the conflict in
Northern Ireland? If not, when was the last such extradition
request received by the administration?
Ms. Warlow. Mr. Chairman, there are no such requests. The
last requests we received were the--I forget which of the
defendants it would have been in the era of 1994. There have
been none since. And those requests, as I noted, were in fact
withdrawn in 2000.
The Chairman. The supplementary treaty of 1985 narrowed the
political offense exception to exclude certain violent offenses
such as those covered by multilateral counterterrorism
conventions to which both the United States and the United
Kingdom are party. The new treaty would continue this trend.
Does the United States have any active extradition requests to
the United Kingdom related to acts of terrorism?
Ms. Warlow. Yes, Mr. Chairman, we do. We have three older
cases that involve persons who have been charged for
involvement in the bombings of the U.S. embassies in Africa. We
have I believe two cases involving persons who sought to
establish jihadist camps in the United States. Another case
involves material support of terrorism, which is from the
District of Connecticut.
The Chairman. I thank you.
Now, this next question deals with the proposal for a
treaty between the United States and the government of Israel
amending the convention on extradition. The protocol would
allow Israel to condition extradition of its resident nationals
to the United States on assurances that any sentence imposed on
them in the United States would be carried out in Israel. Do we
have any other extradition treaties with similar provisions?
Secondly, how would the provision work in practice? I
understand that Israeli law has already been amended to include
such a requirement. What has our experience been with Israel to
date under this new law?
Mr. Witten. Mr. Chairman, with respect to your first
question, do we have any other extradition treaties with
similar provisions, the answer is yes. The U.S.-Netherlands
bilateral extradition treaty does have a provision that
provides for extradition of its nationals with the
understanding that a Dutch national can then serve his or her
sentence in The Netherlands if extradited to the United States,
convicted, and given a term of imprisonment.
With respect to how this mechanism with Israel has worked
in practice over the last few years, I will defer to my
colleague Ms. Warlow. I will just make a brief comment, that in
the last 5 years there has been tremendously positive
cooperation between the U.S. and Israel on this very issue.
This issue became very prominent, as you may remember, in the
late 90s. The Israeli government was determined to make
improvements in its domestic law that would facilitate
extradition of its residents and nationals, and we are now in
2005 seeing the very positive results of their efforts. We
commend the Israeli government for all of its hard work in this
area.
The Chairman. Ms. Warlow?
Ms. Warlow. Mr. Chairman, by way of the procedure that we
use, if the fugitive--there is a reason to believe the fugitive
is in a position to make a claim of Israeli citizenship, our
practice is to provide an assurance at the time we seek the
person's arrest or extradition that if they are found to be, in
accordance with the Israeli law, both a national and resident
of Israel at the time of the offense, we will agree that they
will serve a sentence in Israel. We use the Council of Europe
prisoner transfer treaty as our mechanism for doing this.
The Israeli courts are the ones that determine whether or
not the person is indeed a citizen and resident of Israel. I
would like to point out that the issue of also finding that the
person was a resident at the time of the offense significantly
narrows the extent to which a person might avail themselves of
this procedure. Of the Israeli nationals, of the 15 returned to
the United States, 6 were serving, are serving their sentences
here now because the Israeli courts found they were not
nationals at the time of the offense.
Something else that is quite important to us in this scheme
and is explicitly reflected in the treaty itself is Israel's
commitment that it will apply the sentence imposed by the
United States. In other words, it does not use a resentencing
under Israeli law.
The Chairman. The 1962 convention currently bars
extradition for offenses of a political character. The protocol
would retain this bar, but exclude certain violent offenses
from being considered political offenses under the treaty. Is
this new provision consistent with other modern U.S.
extradition treaties? For example, how does it compare to the
new extradition treaty with the United Kingdom, which is also
before us today?
Mr. Witten. Mr. Chairman, the exclusions to the political
offense exception in the Israeli and U.K. treaties are
substantially similar. There are a few minor differences that
resulted from the fact that these treaties are negotiated
individually between us and our treaty partners. They each
exclude from the political offense exception a list of serious
crimes of violence and crimes relating to explosives and
destructive devices.
In addition, as you mentioned, Mr. Chairman, they exclude
offenses that are covered under the multilateral law
enforcement conventions to which the U.S. and the UK are party,
such as the terrorist bombing convention, the terrorism
financing convention, and other instruments.
These exceptions are similar to those that are in quite a
few of our other modern treaties and I will just mention for
the record a number of important law enforcement partners--
Canada, France, Germany, Lithuania, Luxembourg, Poland, South
Africa, and Spain. We have done similar narrowings of the scope
of the political offense exception with all of them.
Thank you, Mr. Chairman.
The Chairman. The 1962 convention prohibits extradition
where the prosecution would be time-barred under the laws of
either country. Under the protocol, extradition would be
prohibited only where the law of the requested party requires
it to apply its own statute of limitations law as a condition
to extradition and the prosecution would be time-barred under
that law. How do you expect this provision to be implemented
and what does Israeli law, in contrast to U.S. law, require on
this point?
Ms. Warlow. Thank you, Mr. Chairman. For the United States
there is no provision of our law that requires us to test
statute of limitations in the context of extradition. This is
consistent with our policy, as I noted earlier. We believe that
this issue is best reserved for the trial court, the court that
is going to actually hear the case, and defendants are free to
make any claim as to statute of limitations before the court
where they are tried.
We had in the context of the negotiations sought to have a
complete elimination of the statute of limitations. This is
very strongly our preferred view. At present Israeli law still
requires that Israeli courts test the offense under Israeli
statute of limitations. However, we are hopeful that this might
change and the treaty is drafted in such a way that if Israel
were to change its law and eliminate this requirement then
either country would apply questions of statute of limitations
in the extradition context.
The Chairman. I thank you.
I turn now to the questions on the United States-Federal
Republic of Germany MLAT treaty. Is the U.S.-Germany MLAT
consistent with the provisions of the MLAT signed by the United
States and the European Union in June of 2003, and what is the
relationship between these two treaties?
Mr. Witten. Thank you, Mr. Chairman. The two treaties are
largely consistent. They were actually negotiated in parallel.
The U.S.-German MLAT negotiations extended back quite a number
of years. The U.S.-EU negotiations began while the U.S.-German
bilateral negotiations were in progress.
In a few respects, the EU treaty will serve to amend or
supplement the bilateral treaty with Germany and it will do the
same thing with respect to all other modern MLATs with EU
member states. We will be doing a short bilateral treaty with
Germany that will be submitted to the Senate some time in 2006
along with the U.S.-EU MLAT. Our plans are to submit to the
Senate at the same time the U.S.-EU framework agreement on
legal assistance and the bilateral treaties that have been
negotiated with the individual EU member states that will form
together, along with the bilateral MLATs, a fairly
comprehensive and innovative law enforcement relationship for
legal assistance.
The Chairman. I thank you.
Now, article 3 permits a party to deny assistance if a
request's execution would prejudice the state's sovereignty,
security, or other essential interests. Do you anticipate that
Germany may use this provision to deny certain requests for
business records or other information? Indeed, do the parties
understand the term, ``essential interests,'' to encompass
German data protection or privacy concerns?
Ms. Warlow. Thank you, Mr. Chairman. Under this provision,
which is common in our MLATs, we actually think it will be very
rarely invoked and rarely, if at all, invoked with respect to
business records, the type of information that you referred to.
One of the reasons for that is that the treaty is very careful
about providing for confidentiality and use limitations, which
certainly have been a concern for Germany as to sensitive
business data, for example, in the antitrust arena or with
personal data.
So we have a very rigorous regime that spells out what the
uses are for information, onward uses, and confidentiality. So
we think it is unlikely that these issues would rise to the
basis of denial on an essential interests claim. Thank you.
The Chairman. A third question. This treaty contains a new
provision not seen in earlier U.S. MLATs that would permit each
party, in accordance with its laws and upon the request of the
other party, to employ certain special investigative techniques
in its territory on behalf of the other party. These techniques
are surveillance of telecommunications, controlled deliveries,
and undercover criminal investigations by law enforcement
officers of the other party.
What is the purpose of this provision and how do you
anticipate that it would be used in practice? Does United
States law currently regulate or limit the ability of the
United States to use such techniques on behalf of a treaty
partner?
Ms. Warlow. Thank you, Mr. Chairman. This is a newer
provision and our understanding is that Germany wished to have
it included. First, there is an increasing interest in Europe
in setting out issues of what are called special investigative
techniques in a treaty framework. Also, I believe there may
have been an issue that Germany wanted to be sure these were
included in the treaty so they could respond to requests from
us on a federal level. So by including it in the treaty, it
allowed them to do so. They have a very strong federalist
system in Germany.
In reality, from the perspective of United States practice
it is not necessary for us to deal with issues of controlled
delivery or undercover, authorized undercover activity in an
MLAT itself. These are matters that we generally deal with
through our police channels. If they are agreed upon at a
police level by our DEA or FBI, they are somewhat--they do not
necessarily require an MLAT from our perspective. Many European
countries do, however, like us to make a request through an
MLAT, for example, if we were having a controlled delivery.
As to the issue of electronic surveillance, I would like to
point out that the clause makes it clear that it is only to the
extent permissible under our law. At present we do not have the
authority to conduct electronic surveillance based solely on
collecting evidence of a foreign crime. So that is not
something that is in reality permitted under our law.
The Chairman. I thank you both.
I want to raise questions finally with regard to the United
States-Japan MLAT. I understand that this agreement is the
first mutual legal assistance treaty Japan has negotiated with
any country. How does this treaty compare with other modern
U.S. MLATs, and does it provide for all of the forms of
assistance traditionally included in such agreements?
Mr. Witten. Thank you, Mr. Chairman. It is our
understanding that this is the first MLAT that Japan negotiated
with any other country, and it is a major achievement in what
is a good, very good law enforcement cooperation with Japan.
But we are delighted, as the result of extensive and very
productive negotiations with the Japanese government, to be in
a position to ask this committee to approve the treaty.
It compares--it is similar to those other MLATs that this
treaty--excuse me--that this committee has considered, and it
does include the essential provisions that are sought by the
United States. This would include matters such as taking
testimony, examining persons, inviting persons to testify,
search and seizure of items, and so forth. While the Japan MLAT
does not provide for service of judicial documents, that
service is covered by the 1963 U.S.-Japan consular convention.
Thank you.
The Chairman. Under this treaty assistance may be provided
in connection with administrative investigations of suspected
criminal conduct at the direction of the requesting party. Does
this represent an expansion of assistance traditionally
provided under U.S. MLATs and what types of administrative
investigations is it intended to cover? Could it be used, for
example, to obtain assistance from Japan for administrative
investigations of criminal conduct at the U.S. State level as
well as at the Federal level?
Ms. Warlow. Mr. Chairman, the inclusion of this sort of
provision was an objective of ours in this treaty. We do try to
make the treaties flexible enough that regulatory agencies that
have the ability to refer matters for criminal investigation
and prosecution can avail themselves of the MLATs.
The types of investigations or agencies I think most
typically would be the Securities and Exchange Commission,
which does conduct investigations which often are referred to
the Department of Justice for prosecution. We have other
regulators of commodities under the Federal trade laws.
Also, the treaty would permit State regulators of
securities and similar agencies to also make requests. As in
all our MLATs, they are tools available both to Federal and
State law enforcement authorities.
The Chairman. Let me ask either of you if you have any
further comments or testimony on any of the four treaties as we
attempt to complete this phase of the administration's
responses?
Ms. Warlow. No, Mr. Chairman. Just to thank you and the
members for holding the hearing on these very important
instruments.
Mr. Witten. The same here, Mr. Chairman. Thank you very
much for convening this hearing and considering these treaties.
The Chairman. Well, we thank both of you for your
preparation for the hearing and we look forward to continued
consideration of the treaties. As has been mentioned, with the
UK-United States-Ireland treaty there will be another hearing
of the committee, probably in the next year, in calendar 2006,
at which independent witnesses from outside the administration
will be called upon for their testimony.
I appreciate the staff work of Republican and Democratic
staff members in the panels of discussion they have already
conducted with you and other administration officials, as well
as with other parties, to formulate the very best questions
that we ought to ask prior to Senate consideration of the
treaties. We thank you for the completeness of your statements
today. We ask that you be open to questions that might be
raised by other members of the committee. The schedule, as the
Senator from Connecticut and I pointed out in our opening
statements, is rigorous in the windup of some of our other
issues on the Senate floor, and if you would respond swiftly to
those inquiries that will help us complete our record.
We thank you very much and the hearing is adjourned.
[Whereupon, at 10:26 a.m., the committee was adjourned.]
A P P E N D I X
----------
Appendix I--Responses to Additional Questions Submitted for the Record
by Members of the Committee
QUESTIONS FROM CHAIRMAN LUGAR
Responses to Additional Questions Submitted for the Record by Senator
Lugar to Samuel Witten, U.S. Department of State, and Mary Ellen
Warlow, U.S. Department of Justice
Extradition Treaty between the United States of America and the United
Kingdom of Great Britain and Northern Ireland (Treaty No. 108-
23)
Question. Some opponents of the treaty have raised concerns
regarding Article 22(1), which states that the treaty ``shall apply to
offenses committed before as well as after the date it enters into
force.'' In testimony before the Committee on November 15, 2005, you
indicated that provisions in extradition treaties allowing for
application to offenses committed before their entry into force are
standard in U.S. extradition practice. What would be the effect of
precluding such application of this treaty?
Answer. The treaty's provision on retroactivity is typical of the
U.S. Government's extradition practice. If the extradition treaty
applied only to offenses committed after the treaty entered into force,
there would be no treaty under which a fugitive who committed an
offense before the new treaty enters into force could be extradited
(except, as described in Article 23(3), where documents in support of
an extradition request have already been submitted to the courts of the
Requested State).
Question. Article 16(1) of the treaty provides: ``To the extent
permitted under its law, the Requested State may seize and surrender to
the Requesting State all items in whatever form, and assets, including
proceeds, that are connected with the offense in respect of which
extradition is granted.'' In testimony before the Committee on November
15, 2005, you stated that, contrary to an assertion by opponents of the
treaty, this provision does not authorize the United Kingdom to seize
assets in the United States.
(a) Please explain how this provision would work in practice.
(b) Are such provisions found in other U.S. extradition
treaties?
Answer. (a) Article 16 refers to the Requested State's ability to
seize items and assets that are connected with the offense for which
the fugitive is sought and transfer them to the Requesting State. This
provision will be useful to law enforcement officials in some cases in
securing evidence related to the offense for which the fugitive is
sought.
In practice, this provision would work in the following way: In its
diplomatic note requesting provisional arrest or extradition, the
Requesting State would ask the Requested State, pursuant to Article 16,
to seize items connected with the offense and, if extradition is
granted, to surrender those items to the Requesting State. In the
United States, all such seizure and surrender actions would be carried
out by U.S. authorities and would occur in accordance with U.S. law,
including prohibitions against unreasonable searches and seizures found
in the United States Constitution and in various state constitutions,
and implemented in various federal and state statutes. Typically, law
enforcement authorities would obtain a warrant from a judge to arrest
the fugitive and, in executing the arrest warrant, will seize items and
assets connected with the offense for which extradition is requested.
If extradition is granted by the judge, and the Secretary of State
authorizes the extradition, typically the U.S. authorities would turn
over such items and assets, seized incident to arrest, pursuant to
Article 16 of the treaty. If U.S. law enforcement authorities are
unable to seize items incident to the arrest, they will have to obtain
a seizure warrant, consistent with U.S. law, to seize those items. The
seizure warrant would typically be obtained pursuant to a formal
request for assistance under the Mutual Legal Assistance Treaty in
place between the United States and the United Kingdom.
(b) There is nothing novel about this provision; this same concept
is contained in virtually all U.S. extradition treaties, including the
existing U.S.-UK treaty currently in force between the two countries.
Question. In testimony before the Committee on November 15, 2005,
you stated that, in the case of extradition requests from the United
Kingdom under this treaty, a U.S. court would determine whether there
was enough evidence to satisfy the probable cause standard.
(a) Please elaborate on the role U.S. courts would play under
this treaty in determining whether an individual may be
extradited to the United Kingdom.
(b) What is the legal basis for the role of U.S. courts in
this process?
Answer. U.S. extradition proceedings are undertaken pursuant to
Sec. 18 U.S.C. Sec. 3184, which provides that a U.S. judge or
magistrate judge determine whether there is sufficient evidence to make
a determination of extraditability. The United States Constitution,
together with federal case law, provides the standard used by the court
to evaluate the sufficiency of the foreign evidence provided in support
of an extradition request--probable cause to believe that the person
who is before the court is the person charged or convicted in the
foreign country and, in those cases where the person has not been
convicted, probable cause to believe that person committed the offenses
for which extradition is sought. The court also determines whether the
offense for which extradition is sought is an extraditable offense
under the treaty. In the case of the new treaty, the relevant question
would be whether dual criminality exists, i.e. whether the conduct at
issue is punishable under the laws in both States by deprivation of
liberty for a period of one year or more or by a more severe penalty.
In this context, the court would also consider any claims raised by the
fugitive that the offense is a political offense. If the court issues
an order of extraditability, the Secretary of State then determines
whether to issue a surrender warrant.
Question. In testimony before the Committee on November 15, 2005,
you stated that the last three extradition requests from the United
Kingdom for offenses related to the Northern Ireland conflict were
withdrawn by the United Kingdom In 2000 ``consistent with a general
statement of policy by the United Kingdom that they were no longer
seeking extradition of such defendants.''
(a) Please provide a copy of this UK policy statement.
(b) Has the United Kingdom taken any other steps in regard to
fugitives wanted in connection with offenses related to the
Northern Ireland conflict that may be relevant to the potential
for extradition requests for such fugitives under this treaty?
Answer. (a) A copy of a statement dated September 29, 2000, by
Peter Mendelson, the Secretary State for Northern Ireland at that time,
is attached. This document can also be accessed on the Internet from
the UK government's official web site at http://www.nio.gov.uk.
(b) Following the Belfast Agreement, the U.K. government introduced
the Northern Ireland (Sentences) Act of 1998. The legislation outlined
an early release scheme whereby prisoners could apply for ``release on
licence'' after they had served two years in prison. The scheme covers
a certain set of terrorist-related offences carrying a sentence of five
years or more committed before April 10, 1998. ``Release on licence''
means that the individual is not in jail but must comply with certain
conditions. The conditions are that the person does not support certain
specified organizations (essentially those which are still involved in
terrorism); does not become involved in the commission, preparation, or
instigation of acts of terrorism; and, in the case of a life prisoner,
does not become a danger to the public.
In September 2000, the U.K. government announced (see the attached
statement) that it would no longer pursue the extradition of
individuals who, if they had remained within the Northern Ireland
prison system, would now be eligible for early release. Kevin John
Artt, Terrence Damien Kirby, and Pol Brennan (three individuals who
were the subjects of the U.K. extradition requests to the United States
in the 1990s) all fell within that category, and the U.K. is no longer
seeking their extradition. The Government of the United Kingdom has
informed the United States Government that there has been no change in
this position since 2000.
In 2003, the governments of the U.K. and the Republic of Ireland
published a set of proposals in relation to terrorist suspects who are
``one the run.'' These proposals were aimed at resolving an anomaly
which arose from the 1998 early release scheme. The anomaly was that
individuals who had gone ``one the run'' before the trial or escaped
from prison before serving two years of their sentence would not be
eligible for the early release scheme, whereas their counterparts who
had stayed in prison would have been released on licence.
Following a statement by the IRA on July 28, 2005, and the
subsequent decommissioning of its weapons, the U.K. Government
introduced legislation in November of 2005 to implement those
proposals. However, the legislation was withdrawn by the Government of
the United Kingdom from consideration by Parliament on January 11,
2006. Secretary of State for Northern Ireland Peter Hain indicated in a
statement to the Parliament that it was withdrawn because of opposition
from victims' groups and from all Northern Ireland parties, including
Sinn Fein. Sinn Fein, which had previously not opposed the legislation,
decided that it could not accept that British military and police
officials who were involved in criminal acts in connection with ``The
Troubles'' in Northern Ireland would be eligible to participate in the
proposed scheme.
The withdrawal of this legislation does not change the status of
individuals who have already been convicted and sentenced, including
Artt, Kirby, and Brennan, in any way.
[The information referred to above follows:]
----------------------------------------------------------------------------------------------------------------
Northern Ireland Office Media Centre Friday 29 September 2000
-----------------------------------------------------------------------------------------------------------------
Statement by Peter Mandelson:
Extradition of Convicted Fugitives
On 28 July, all remaining prisoners eligible under the early release scheme who had completed 2 years of their
sentences were released as envisaged in the Good Friday Agreement.
The completion of these remaining releases has implications for a number of people who were sentenced to
imprisonment for offences committed before the Good Friday Agreement, but who failed to complete these
sentences. In most cases those concerned escaped from custody and fled to other countries up to 20 years ago.
In many cases, extradition proceedings were initiated and in some of these the government is now being pressed
by Court authorities to clarify its position.
Whether to pursue an extradition request depends on the public interest at stake, including the remaining
sentence which the fugitive would stand to serve if he or she were returned. It is clearly anomalous to pursue
the extradition of people who appear to qualify for early release under the Good Friday Agreement scheme, and
who would, on making a successful application to the Sentence Review Commissioners, have little if any of their
original prison sentence to serve.
In view of this and the time that has elapsed, I do not believe that it would now be proportionate or in the
public interest to continue to pursue such cases.
If these individuals wish to benefit from the early release scheme, they will be able to return to Northern
Ireland and make an application to the Sentence Review Commissioners. If this is granted, normal licence
conditions, including liability to recall to prison, will apply. The decision has no implications for the
prosecution of other offences where sufficient evidence exists. It is not an amnesty.
As with the rest of the early release programme, I do not under-estimate the hurt this decision may cause the
victims of those whose extradition will no longer be pursued, and the onus it places on all of us to ensure
that the Good Friday Agreement does result in a permanent peace in which there are no more victims.
----------------------------------------------------------------------------------------------------------------
Question. Article 2(4) of the treaty provides for extradition for
offenses committed outside the territory of the requesting party if the
laws of the requested party similarly criminalize such conduct when
committed outside of its territory. Where this condition is not met,
the requested party may, in its discretion, permit extradition.
(a) Do other U.S. extradition treaties contain similar
provisions regarding extraterritorial offenses?
(b) What specific concerns led to the inclusion of this
provision in this treaty?
(c) Are you aware of particular offenses for which there is
extraterritorial application under the law of the United
Kingdom, but not under U.S. law?
Answer. (a) Yes. This type of provision is included in several of
our modern extradition treaties. For example, our treaties with
Argentina, Brazil, Canada, Hungary, South Africa, and South Korea, all
contain similar provisions.
(b) We seek this sort of provision where there may be a question
whether extradition will be permitted for particular extraterritorial
offenses, in light of the fact that U.S. criminal law often has
extraterritorial application of some kind. For the United Kingdom, the
dual criminality inquiry in extradition cases extends to the question
of whether it could also exercise extraterritorial jurisdiction under
similar circumstances. U.S. law, however, does not require such a
strict duality of jurisdiction in extradition cases involving
extraterritorial offenses. This type of provision accommodates both
legal frameworks while providing as much flexibility as possible with
respect to extraterritorial offenses.
(c) As a general matter, the United Kingdom exercises less
expansive extraterritorial jurisdiction than the United States. We are
not aware of particular offenses for which there is extraterritorial
application under the law of the United Kingdom, but not under U.S.
law.
Question. Some opponents of the treaty contend that it would
eliminate the protection traditionally afforded to extradited
individuals by the rule of specialty, which prohibits their prosecution
in the requesting state for crimes other than those for which they were
extradited. What is the Administration's response to this assertion?
Answer. Both the current and new treaties with the United Kingdom
contain the rule of specialty. The main difference is that, under the
new treaty, in keeping with current international extradition practice,
either party may request that the other party waive the rule of
specialty. Indeed, provisions similar to the one contained in the new
treaty with the United Kingdom are contained in virtually all of our
modem extradition treaties, including Argentina, Belize, Austria,
India, Peru, and Sri Lanka. In practice, rule of specialty waiver
provisions are infrequently invoked. However, in certain circumstances,
these treaty provisions are important, for example, where new
information regarding criminal conduct surfaces that was not previously
available to the Requesting State at the time the extradition was
sought.
Question. The existing extradition treaty with the United Kingdom
employs a hybrid approach to determining what offenses are
extraditable, permitting extradition for listed offenses, as well as
other offenses that meet certain specified criteria. The new treaty
would institute a pure dual criminality approach, meaning that offenses
are extraditable if they are criminalized in both countries and
punishable for a period of one year or more.
(a) How do you anticipate that the new dual criminality
approach would facilitate U.S. efforts to apprehend fugitives
that have fled to theUnited Kingdom?
(b) Are there particular crimes for which the United States
has not been able to obtain extradition under the existing
hybrid approach?
Answer. (a) The new dual criminality approach will make it easier
to incorporate new criminal offenses into the extradition relationship,
thereby making it harder for fugitives to escape justice on the basis
of legal technicalities characteristic of the old ``list'' approach.
(b) Under the existing treaty's hybrid approach, the United States
had not been able to obtain extradition for individuals charged with
offenses such as conspiracy to commit white collar crimes, non-drug
money laundering, and certain insider trading and antitrust crimes.
Under new UK extradition legislation, the United States can now
request extradition for these offenses. However, we understand from our
UK counterparts that entry into force of the treaty and its new dual
criminality approach will put an end to arguments from fugitives sought
for extradition that try to exploit the inconsistency between the
existing treaty and the UK's domestic law position which, since 2003,
has employed a pure dual criminality approach when handling extradition
requests from the United States.
Question. Article 4(2) of the treaty contains a list of violent
crimes to be excluded from consideration as political offenses. This
list differs somewhat from the existing list of such offenses contained
in the 1985 Supplementary Treaty. Please explain the differences
between the two lists and the reasons these changes were made.
Answer. As in other extradition treaties, the new treaty provides
that certain types of offenses will not be considered to be political
offenses for the purpose of evaluating a request for extradition. Many
of these provisions, including (a), (c), (d), (e), and (g), are similar
to provisions contained in the existing treaty.
The addition of section (b) (``a murder or other violent crime
against the person of a Head of State of one of the Parties, or of a
member of the Head of State's family'') has become a routine provision
under the political offense exception, in recognition of the inherent
seriousness of attacks against heads of state.
The addition of section (f) (``possession of an explosive,
incendiary, or destructive device capable of endangering life, of
causing grievous bodily harm or of causing substantial property
damage''), which is not contained in any other extradition treaty of
the United States, is designed to address the problem of an extremely
narrow U.S. judicial interpretation of the more general language of the
current U.K. supplementary treaty regarding explosives offenses. In the
extradition case involving Pol Brennan, the United Kingdom sought the
extradition of Brennan, who was arrested with a companion in downtown
Belfast on the early afternoon of a business day in possession of an
armed 23-pound bomb, which they intended to plant in a shop. Brennan
was subsequently convicted of the offense of possession of explosives
with intent to endanger life or injure property, escaped from prison,
and was subsequently arrested in the United States. (Matter of Artt,
972 F.Supp. 1253, 1260-1262 (N.D.Cal. 1997).) In the course of the U.S.
extradition case against Brennan, the Court of Appeals for the Ninth
Circuit held that this offense did not constitute an ``offense
involving the use of a bomb'' excluded from consideration as a
protected political offense under Article 1(d) of the Supplementary
Treaty. Matter of Artt, 158 F.3d 462, 471-473 (9th Cir. 1998). The
language of the new treaty makes it clear that such an explosives
offense, like other serious crimes of violence, is not to be considered
a ``political'' offense for which extradition is barred.
The use of ``manslaughter'' in section (c) of the new treaty, as
opposed to ``voluntary manslaughter'' in the 1985 Supplementary Treaty,
is consistent with the language used in other recent U.S. extradition
treaties, including Canada, Hungary, Luxembourg, and Poland. The use of
``any form of unlawful detention'' in section (d) instead of ``serious
unlawful detention,'' reflects the language used in other extradition
treaties, including those with Canada, France, and Hungary. The use of
``an offense involving'' certain acts, in section (d), is not unique to
the new treaty--it is used in Article 1(d) of the 1985 Supplementary
treaty. This same language is also used in other of our modern U. S.
extradition treaties, including those with France, Hungary, and Poland.
The changes to the wording in section (e) (``placing or using, or
threatening the placement or use of, an explosive, incendiary, or
destructive device or firearm capable of endangering life, causing
grievous bodily harm, or of causing substantial property damage'')
derive from our decision to have this language track the analogous
international commitment in the United Nations Intemational Convention
for the Suppression of Terrorist Bombings, an international law
enforcement cooperation agreement to which both the United States and
the United Kingdom are parties. Section (e) also includes unlawful use
of firearms, which, of course, was beyond the scope of the U.N.
Convention and, in this respect, is similar to the analogous provision
in Article 1(d) of the existing treaty.
The changes to the wording in section (g) (``an attempt or a
conspiracy to commit, participation in the commission of, aiding or
abetting, counseling or procuring the commission of, or being an
accessory before or after the fact to any of the foregoing offenses'')
closely reflect the wording of U.S. criminal law on principals and
aiding and abetting, which states, in part, that ``[w]hoever commits an
offense against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a principal.'' 18
U.S.C. Sec. 2.
Protocol between the Government of the United States and the Government
of the State of Israel Amending the Convention on Extradition
(Treaty No. 109-3)
Question. The Protocol would amend the existing 1962 Convention to
replace the existing list of extraditable offenses with dual
criminality approach, meaning that offenses would be extraditable if
they are criminalized in both countries and punishable for a period of
one year or more.
(a) How do you anticipate that the new dual criminality
approach would facilitate U.S. efforts to apprehend fugitives
that have fled to Israel?
(b) Are there particular crimes for which the United States
has not been able to obtain extradition under the existing list
approach?
Answer. (a) The ``dual criminality'' approach facilitates U.S.
efforts to obtain the extradition of fugitives from Israel by expanding
the scope of extraditable offenses well beyond those specifically
recognized in the existing convention's list. It allows the automatic
extension of the convention's provisions to new forms of criminality
that are made punishable as felonies in both countries in the future,
without any need to update the convention as new forms of criminality
emerge.
(b) Under the new Protocol, the United States would now be able to
obtain extradition for conduct not currently included on the list of
extradition offenses, such as sexual abuse of boys as well as girls,
money laundering (other than laundering of drug proceeds, which can be
reached by virtue of application of the 1988 UN Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances), and
computer intrusions and hacking.
Question. Why does Article 5 of the Protocol delete Article IX of
the 1962 Convention? What was the purpose of Article IX and how has it
been used?
Answer. Article IX was originally intended to reflect the fact that
domestic procedural law governed the extradition process, in the
absence of specific treaty provisions. After review between the
governments, we determined that the provision was unnecessary and could
be misunderstood as permitting unilateral modification of the treaty's
obligations through enactment of inconsistent domestic law.
Treaty between the United States of America and Germany on Mutual Legal
Assistance in Criminal Matters (Treaty No. 108-27)
Question. Article 15(3) of the treaty would allow each party to use
evidence or information obtained under the treaty, without the prior
consent of the other, ``for averting substantial danger, to public
security.'' This appears to be a new provision in U.S. mutual legal
assistance treaty practice.
(a) Why was this provision included in this treaty and under
what conditions do you envision that it might be invoked?
(b) Will the Executive Branch seek to include similar
provisions in future mutual legal assistance treaties?
Answer. (a) Article 15(3) of the MLAT with Germany permits a
Requesting State, without the prior consent of the Requested State, to
use evidence or information for certain specified purposes, e.g.
``averting substantial danger to public security,'' other than for the
particular criminal investigation or proceeding underlying the request.
Germany sought this broadening of the strict MLAT use limitation
article found in approximately half of our MLATs in order to reflect
corresponding provisions of German privacy law which provide its law
enforcement agencies additional flexibility to use information received
from a foreign government. The United States anticipates that Article
15(3) could be relied upon, for example, where information supplied by
Germany about an individual who is the subject of a U.S. criminal
prosecution also is relevant to a separate U.S. criminal investigation
into threatened terrorist activity. This provision thus is helpful to
the United States by creating a presumption that information received
pursuant to an MLAT request can be used for prevention as well as
prosecution purposes.
(b) Similar language is included in Article 9(1)(b) of the 2003
Agreement on Mutual Legal Assistance between the United States and the
European Union, and in the implementing mutual legal assistance
instruments currently being completed with each EU member state. The
U.S.-EU Agreement, together with all implementing instruments, will be
submitted to the Senate in 2006 for its advice and consent to
ratification. Once these agreements enter into force, this additional
flexibility in using information supplied pursuant to an MLAT request
will be available to the United States in its judicial assistance
relationships across the EU. Whether such a provision will be included
in future U.S. MLATs with non-European governments will depend in part
upon whether they have adopted privacy laws of the type found in
Europe.
Treaty between the United States of America and Japan on Mutual Legal
Assistance in Criminal Matters (Treaty No. 108-12)
Question. U.S. mutual legal assistance treaties traditionally
provide for each party to designate a central authority, generally the
Attorney General in the case of the United States, which will be
responsible for making and receiving requests under the agreement. In
this treaty, Japan has designated two central authorities--the Minister
of Justice and the National Public Safety Commission.
(a) Please explain how this dual central authority system
will work in practice.
(b) Will it affect the ability of the United States to obtain
assistance under the treaty?
Answer. (a) Japan has designated the Minister of Justice as the
central authority for all requests made by the United States. In this
regard, the Japan NH-AT will work the same way as other U.S. MLATs.
With respect to requests made by Japan, the Minister of Justice will
serve as the central authority for requests submitted by Japanese
public prosecutors or the judicial police, or if a request requires
examination of a witness in a U.S. court. The National Public Safety
Commission will serve as the central authority for requests submitted
by the Japanese National Police or imperial guard officers. The two
Japanese agencies will establish a mechanism to avoid unnecessary
duplication and facilitate efficient provision of assistance. If
necessary, the U.S. Department of Justice may consult with the Japanese
Ministry of Justice regarding the execution of any request, regardless
of which agency initiated the request on the Japanese side.
(b) This arrangement is not expected to affect the ability of the
United States to obtain assistance under the treaty, since the Minister
of Justice will be the central authority for all requests made by the
United States. Thus, whenever the United States requests assistance
under the treaty, the Japan MLAT will work in the same way as other
MLATs.
__________
QUESTIONS FROM SENATOR BIDEN
Responses to Additional Questions Submitted for the Record by Senator
Biden to Samuel Witten, U.S. Department of State, and Mary Ellen
Warlow, U.S. Department of Justice
Extradition Treaty between the United States of America and the United
Kingdom of Great Britain and Northern Ireland (Treaty No. 108-
23)
Question. Are there any diplomatic notes or negotiating statements
relative to the meaning of treaty terms about which the Committee has
not been informed?
Answer. No.
Question. Has the executive branch prepared a technical analysis of
the treaty, as was done in connection with consideration of extradition
treaties in the 105th, 106th, and 107th Congresses (no such treaties
were considered in the 108th Congress)? If so, please provide it. If
not, why was such analysis not prepared?
Answer. No technical analysis of the treaty was prepared. For a
number of years, the executive branch drafted technical analyses for
bilateral law enforcement treaties, motivated largely by the need to
explain mutual legal assistance treaties (which at the time were new
and innovative types of law enforcement instruments) to U.S.
prosecutors and the public. After more experience and upon further
consideration, the executive branch determined that these analyses,
which are not typically prepared for other treaties, were no longer
needed. Moreover, the content of such technical analyses of law
enforcement treaties had become largely duplicative of the section-by-
section analysis provided in the Secretary of State's Report (provided
to the Foreign Relations Committee as part of the President's
transmittal package) on each treaty.
Question. On August 3, 2004, the Department of State issued a
``Fact Sheet'' on the treaty. Does it provide an authoritative
representation of the views of the Executive Branch regarding the
treaty terms that are addressed by the fact sheet?
Answer. The Fact Sheet was prepared in an effort to address, in
plain language, questions that had been posed about aspects of the
proposed new U.S.-UK extradition treaty. It is meant to serve as a
general guide to the new treaty, but the Administration's definitive
view of relevant issues is provided in the transmittal documents given
to the Foreign Relations Committee and in the administration's November
15, 2005 testimony.
Question. Please provide data on the following:
(a) The number of extradition requests made by each party
under the current U.S.-U.K. extradition treaty in the last five
years (on either a calendar year or fiscal year basis), and
information on the number of such requests that were (1)
approved, (2) not approved, or (3) withdrawn.
(b) Of all requests filed by the United States to the United
Kingdom since January 1, 2003, provide a general summary of the
types of cases (e.g., numbers of cases involving terrorist
offenses, number of cases involving violent crimes, number of
cases involving narcotics charges, number of cases involving
fraud offenses).
Answer.
(a) Approximate number of U.S. extradition requests to the United
Kingdom during calendar years 2001 through 2005: 116. Of these,
approximately 20 were approved, 2 were not approved, 10 were withdrawn,
and approximately 36 are currently being litigated in UK courts.
(Others had dispositions such as: the fugitive died prior to
disposition; the fugitive waived extradition proceedings; the fugitive
was subsequently arrested in the United States; the fugitive was
subsequently located in a third country; the fugitive could not be
located; or the fugitive has been found extraditable and is in custody
in the United Kingdom but cannot be surrendered until he has served his
UK sentence.)
Approximate number of UK extradition requests to the United States
during calendar years 2001 through 2005: 33. Of these, approximately 7
were approved, 2 were not approved, 2 were withdrawn, and approximately
4 are pending but not yet the subject of judicial proceedings in the
United States. (Others had dispositions such as: the fugitive was
deported; the fugitive waived extradition proceedings; the fugitive was
subsequently located in a third country; the fugitive could not be
located; or the fugitive has been found extraditable and is in custody
in the United States but cannot be surrendered until he has served his
U.S. sentence.)
(b) A general breakdown of the U.S. extradition requests made to
the United Kingdom between January 1, 2003, and the present, by types
of crimes together with their approximate numbers, is as follows:
<bullet> Fraud and other white collar crimes (including money
laundering, forgery and counterfeiting, and tax offenses): 22
<bullet> Terrorism (including supporting terrorist activities and
weapons of mass destruction): 8
<bullet> Narcotics offenses: 14
<bullet> Violent crimes (including homicide, attempted homicide,
assault, robbery, burglary, and weapons/firearms offenses): 12
<bullet> Kidnapping (including parental abduction): 2
<bullet> Sexual offenses (including child molestation/rape and child
pornography): 10
Question. The proposed treaty excludes Article 3 of the 1985
Supplementary Treaty, which provided that extradition would not occur
if the fugitive established before a U.S. court, by a preponderance of
the evidence, that the request for extradition was made on account of
his race, religion, nationality, or political opinion, or that he would
be prejudiced at trial by reason of his race, religion, nationality, or
political opinion. By its terms, this provision from the 1985
Supplementary Treaty is broader than the political motivation provision
barring extradition under Article 4(3) of the proposed treaty.
(a) What was the rationale for eliminating the provisions of
Article 3 of the Supplementary Treaty?
(b) Please describe all instances where a fugitive sought
judicial review under Article 3 of the 1985 Supplementary
Treaty and extradition was denied on a basis set forth in that
article.
Answer. In U.S. law and practice, the question of ``political
motivation'' and questions regarding motivation based on similarly
improper bases such as race or religion, are determined by the
Secretary of State. This responsibility of the Secretary of State has
been recognized by U.S. courts in the longstanding ``Rule of Non-
Inquiry,'' whereby courts defer to the Secretary in evaluating the
motivation of the foreign government. This principle recognizes that
among the three branches of the U.S. Government, the Executive branch
is best equipped to evaluate the motivation of a foreign government in
seeking the extradition of an individual. The U.S. Government's
extradition treaties reflect the fact that the U.S. Secretary of State
appropriately makes this judgment, and not the U.S. courts.
Indeed, until 1985, the issue of motivation of the Government of
the United Kingdom in making an extradition request of the United
States was treated the same as in all of our other extradition
relationships--the courts played no role in reviewing this issue. In
1985, however, as part of an amendment of other aspects of the UK
extradition relationship, the U.S. Senate developed what became Art.
3(a) of the 1972 U.S.-UK extradition treaty, as amended by the 1985
supplementary treaty, which states that extradition ``shall not occur
if the person sought establishes to the satisfaction of the competent
judicial authority by a preponderance of the evidence that the request
for extradition has in fact been made with a view to try or punish him
on account of his race, religion, nationality, or political opinions,
or that he would, if surrendered, be prejudiced at his trial or
punished, detained or restricted in his personal liberty by reason of
his race, religion, nationality or political opinions.'' This text was
added pursuant to the Senate's Resolution regarding advice and consent
to the 1985 supplementary treaty.
This anomalous treaty provision has led to long, difficult, and
inconclusive litigation in several cases, where U.S. courts were thrust
into the unfamiliar and inappropriate position of addressing motivation
of a foreign government. The provision for judicial review of political
motivation claims has been invoked in five cases, all dating from the
early 1990s. The first involved Curtis Andrew Howard, who claimed he
would be prejudiced in legal proceedings in the United Kingdom because
of his race. He was extradited in 1993. The other four of these cases
involved persons of Irish Catholic background who were convicted of
crimes of violence in Northern Ireland, and who escaped from prison in
Northern Ireland in 1983 and fled to the United States.
The first of these cases involved James Joseph Smyth, who had been
convicted of the attempted murder of a prison guard. More than 40
witnesses were heard at his extradition hearing, and a 5-week
evidentiary hearing was held. (Ultimately, the record in the case
exceeded 3,000 pages.) In 1996, Smyth was finally extradited from the
United States to the United Kingdom. He was subsequently released from
prison in 1998 pursuant to an accelerated release law, the Northern
Ireland (Sentences) Act 1998, that grew out of the Belfast Agreement.
The next three cases involved defendants Kevin John Artt, Terence
Damien Kirby, and Pol Brennan, who were arrested separately in the
United States between 1992 and 1994. Their extradition cases were
consolidated for consideration by U.S. courts. All had been convicted
in the UK judicial system of felonies and sentenced to terms of
imprisonment. Artt was convicted of murdering a prison official; Kirby
was convicted of offenses of possession of explosives and a submachine
gun, false imprisonment, assault, and felony murder arising out of two
separate incidents; Brennan was convicted of possession of explosives.
There was extensive litigation and testimony in the U.S. District Court
regarding their claims of prejudice under Article 3 of the 1985
supplementary treaty and numerous appeals. This litigation was and is
unprecedented; as U.S. courts were put in the position of evaluating
defendants' claims of generalized, systemic bias within a foreign
system of justice. In 2000, the United Kingdom withdrew its request for
extradition, consistent with its announcement that it would not be
seeking the extradition of persons who, if they had remained in prison
in Northern Ireland, would have benefited from the 1998 early release
law.
Question. Article 4(3) of the proposed treaty provides that
extradition shall not be granted if the competent authority of the
Requested State determines that the request was politically motivated.
Please describe the process of review in the Executive Branch when a
person whose extradition has been certified by a court under 18 U.S.C.
Sec. 3184 makes such a claim. In the last five calendar years, how
often has the Secretary of State denied extradition under similar
provisions in other bilateral extradition treaties?
Answer. Consideration of whether a request for extradition is
politically motivated begins when it is received by the Department of
State. We have found that requests which the Department of State
believes may be politically motivated are generally also insufficient
as a technical matter, for example, the facts and evidence provided by
the Requesting State do not meet the probable cause standard, the
proper documentation has not been provided, the papers have not been
appropriately certified, or the dual criminality requirement is not
met. This circumstance is not surprising given that these types of
requirements in extradition treaties are designed, in part, to ensure a
robust level of integrity in the extradition process.
If, at any time in the extradition process prior to the signing of
the surrender warrant by the Secretary of State (or other appropriate
principal of the Department of State), the U. S. Executive Branch
becomes aware of facts or circumstances that suggest a request might be
politically motivated, the Department of State explores that
possibility through the diplomatic channel and otherwise until fully
satisfied that the request is not politically motivated.
After a fugitive has been found extraditable and committed to the
custody of the U.S. Marshal, and all appeals in U.S. courts have been
exhausted, the Department of State reviews the record of the case as
certified by the District Court to the Secretary of State. This record
normally consists of the Magistrate's Certification of Extraditability
and Order of Commitment, any related orders or memoranda issued by the
Magistrate, all court orders issued in the course of any appellate
proceedings, the transcript of the extradition proceedings before the
Magistrate, and the documents. submitted by the requesting State. In
addition, it is the Department of State's policy to accept and review
written argumentation against extradition submitted by the fugitive or
his counsel if received in time to be included with the Department's
final review of the case. Also, members of the fugitive's family or
other interested parties may make written representations (these are
usually of a humanitarian nature) on behalf of the fugitive. All of
these things are taken into consideration by the Department of State
with a view to determining what recommendation to make to the Secretary
of State with respect to a possible extradition.
In the last five calendar years, the Secretary of State has not
denied extradition on the basis that the request was politically
motivated. As noted above, some requests are not processed through the
U.S. court system because they are based on summary assertions of
culpability with inadequate evidence, or other reasons that could be
indicative of political motivation.
Question. Please provide information on the number of deportations
from the United States to the United Kingdom or Ireland in the last
five years (on either a calendar year or fiscal year basis).
Answer.
Removals (not including expedited removals):
----------------------------------------------------------------------------------------------------------------
FY 2001 FY 2002 FY 2003 FY 2004 FY 2005
----------------------------------------------------------------------------------------------------------------
Ireland....................................................... 50 64 69 63 43
UK............................................................ 329 462 430 369 325
----------------------------------------------------------------------------------------------------------------
Expedited Removals: The following figures for expedited removals
are not complete because, we understand, these figures were not being
kept before 2004 and, even then, the figures are not complete even for
2004 and 2005.
Expedited Removals:
------------------------------------------------------------------------
FY 2004 FY 2005
------------------------------------------------------------------------
Ireland......................................... 4 12
UK.............................................. 34 21
------------------------------------------------------------------------
Question. Please elaborate on how Article 2(4), which permits
extradition even if the laws of the requested state do not provide for
punishment of such conduct committed outside its territory, is
consistent with the requirement of dual criminality in Article 2(1).
Additionally, please provide information on what crimes might be
covered by this provision.
Answer. Article 2(4) addresses a disparity between U.S. and UK
extradition law and practice regarding extraterritorial offenses.
For the United States and most other countries, there is no
requirement of equivalence of extraterritorial jurisdiction in the
extradition context, and thus provisions such as Article 2(4) do not
appear at all in many extradition treaties. However, the United Kingdom
and some other common law countries do condition extradition not only
on a finding of ``dual criminality'' but also, with respect to
extraterritorial offenses, on a finding that the United Kingdom could
also have exercised jurisdiction in similar circumstances. To
accommodate this difference, Article 2(4) gives the Requested State the
discretion to deny a request for extradition where it would not have
had similar authority to exercise extraterritorial jurisdiction.
(Israel's extradition law is similar to the United Kingdom's in this
respect, and a similar provision can be found in Article III of the
1962 U.S.-Israel extradition treaty, which is unchanged by the Protocol
before the Committee.)
Thus, Article 2(4) addresses a jurisdictional issue present in the
law of the United Kingdom and some other countries, whereas Article
2(1) addresses the criminal nature of the conduct itself.
Currently, Article 2(4) would potentially cover some types of
crimes related to sex with children (where the U.S. statute is broader
than the corresponding UK statute), and certain types of murder (where
the UK statute is broader than the U.S. statute). At the time the
treaty was negotiated, Article 2(4) had been relevant to an even wider
group of offenses, such as some terrorism-related and counterfeiting
offenses, but UK law is now more flexible in these areas.
Question. Ms. Warlow testified that in 2000, requests for
extradition of Artt, Kirby and Brennan were withdrawn by the United
Kingdom, ``consistent with a general statement of policy by the United
Kingdom that they were no longer seeking extradition of such
defendants.'' Does the Executive Branch have any information from the
government of the United Kingdom that the policy remains in effect?
Please elaborate.
Answer. In September 2000, the UK government announced that it
would no longer pursue the extradition of individuals who, if they had
remained within the Northern Ireland prison system, would now be
eligible for early release. Kevin John Artt, Terence Damien Kirby, and
Pol Brennan, (three individuals who were the subjects of UK extradition
requests to the United States in the 1990s), all fell within that
category, and the UK is no longer seeking their extradition. The
Government of the United Kingdom has informed the United States
Government that there has been no change in this position since 2000.
Question. There are several differences between the political
offense exception set forth in the 1985 Supplementary Treaty and the
proposed treaty. Please elaborate on the rationale for, and the
significance of, each the following textual changes:
(a) In Article 4(2)(c): ``manslaughter'' (proposed treaty)
instead of ``voluntary manslaughter'' (1985 Supplementary
Treaty);
(b) In Article 4(2)(d): ``any form of unlawful detention''
(proposed treaty) instead of ``serious unlawful detention''
(1985 Supplementary Treaty);
(c) In Article 4(2)(d): ``an offense involving'' certain
acts, such as kidnaping (proposed treaty) rather than the
listing of the acts (1985 Supplementary Treaty);
(d) In Article 4(2)(f): ``possession of an explosive,
incendiary. . . .'' (proposed treaty); the 1985 Supplementary
Treaty contains no analogous provision on possession.
Answer. The words and phrases chosen in Article 4 were negotiated
between the two governments to ensure that the exceptions to political
offense were clearly stated in a way that would reflect modern
extradition practice in the two governments and would also be
consistent with other modern U.S. treaties. They reflect careful
consideration by relevant U.S. Government components, including the
Justice Department's Office of International Affairs, which supervises
the litigation of extradition cases in U.S. courts and the manner in
which various phrases in these treaties have been litigated.
(a) The use of ``manslaughter'' in section (c) of the new treaty,
as opposed to ``voluntary manslaughter'' in the 1985 Supplementary
Treaty, reflects the language used in other of our modern extradition
treaties, including those with Canada, Hungary, Luxembourg, and Poland.
(b) The use of ``any form of unlawful detention'' in section (d)
instead of ``serious unlawful detention,'' as in the 1985 Supplementary
Treaty, reflects the language used in other of our modern extradition
treaties, including those with Canada, France, and Hungary.
(c) The use of ``an offense involving'' certain acts, in section
(d), is not unique to the new treaty--it is used in Article 1(d) of the
1985 Supplementary treaty. This same language is also used in other of
our modern extradition treaties, including those with France, Hungary,
and Poland.
(d) The addition of section (f) (``possession of an explosive,
incendiary, or destructive device capable of endangering life, of
causing grievous bodily harm or of causing substantial property
damage'') is designed to address the problem of an extremely narrow
U.S. judicial interpretation of the more general language of the
current U.K. supplementary treaty regarding explosives offenses. In the
extradition case involving Pol Brennan, the United Kingdom sought the
extradition of Brennan, who was arrested with a companion in downtown
Belfast on the early afternoon of a business day in possession of an
armed 23-pound bomb, which they intended to plant in a shop. Brennan
was subsequently convicted of the offense of possession of explosives
with intent to endanger life or injure property, escaped from prison,
and was subsequently arrested in the United States. (Matter of Artt,
972 F.Supp. 1253, 1260-1262 (N.D.Cal. 1997)) In the course of the U.S.
extradition case against Brennan, the Court of Appeals for the Ninth
Circuit held that this offense did not constitute an ``offense
involving the use of a bomb'' excluded from consideration as a
protected political offense under Article 1(d) of the Supplementary
Treaty. Matter of Artt, 158 F.3d 462, 471-473 (9th Cir. 1998). The
language of the new treaty makes it clear that such an explosives
offense, like other serious crimes of violence, are not to be
considered ``political'' offenses for which extradition is barred.
Question. Article 4(2)(f) of the proposed treaty provides that mere
possession of certain items would not be covered by the political
offense exception. Of course, the dual criminality provision of Article
2 would apply.
(a) Is there such an offense under U.S. law? If so, please
elaborate. If not, why is this provision contained in the
proposed treaty?
(b) Is such a provision set forth in any other extradition
treaty to which the United States is a party?
Answer. (a) There are certain offenses under U.S. law that
criminalize possession of explosives and other dangerous items,
particularly in settings where danger to public safety is heightened.
For example, it is a felony to possess an explosive in an airport (18
U.S.C. Sec. 844(g)) or to transport a hazardous material aboard a civil
aircraft (49 U.S.C. Sec. 46312). It is also a federal felony to possess
stolen explosives (18 U.S.C. Sec. 18 U.S.C. 842(h)); to possess
explosives during the commission of another federal felony (18 U.S.C.
Sec. 844(h)); to possess explosive or incendiary missiles designed to
attack aircraft (18 U.S.C. Sec. 2332g); to possess radiological
dispersal devises (18 U.S.C. Sec. 2332h); or to possess nuclear
materials (18 U.S.C. Sec. 831)). Possession of explosives or similar
materials may also be an offense under the laws of individual U.S.
states. See, for example, Chapter 21, Article 37, Section 3731(a) of
the Kansas criminal code, which states that ``[c]riminal use of
explosives is the possession, manufacture or transportation of
commercial explosives; chemical compounds that form explosives;
incendiary or explosive material, liquid or solid; detonators; blasting
caps; military explosive, fuse assemblies; squibs; electric match or
functional improvised fuse assemblies; or any completed explosive
devices commonly known as pipe bombs or Molotov cocktails.''
As discussed in response to the previous question, the addition of
section (f) (``possession of an explosive, incendiary, or destructive
device capable of endangering life, of causing grievous bodily harm or
of causing substantial property damage'') is designed to address the
problem of an extremely narrow U.S. judicial interpretation, in the
context of political offense, of the more general language of the
current UK supplementary treaty regarding explosives offenses, where
the court focused on the nomenclature of the offense rather than on the
conduct.
(b) This provision is not contained in any other extradition treaty
of the United States. As noted above in subsection ``a'' of this
answer, the language was negotiated in the aftermath of a judicial
decision interpreting the relevant language in the current U.S.-UK
treaty.
Question. Article 4(2)(e) would seem to be largely covered by
paragraph 2(a), by virtue of the fact that both the United States and
the United Kingdom are parties to the International Convention for the
Suppression of Terrorist Bombings. Are there any material differences
between the two provisions? What does paragraph 2(e) add that is not
covered by 2(a)?
Answer. The changes to the wording in section (e) (``placing or
using, or threatening the placement or use of, an explosive,
incendiary, or destructive device or firearm capable of endangering
life, causing grievous bodily harm, or of causing substantial property
damage'') derive from our decision to have this language track the
analogous international commitment in the United Nations International
Convention for the Suppression of Terrorist Bombings, an international
law enforcement cooperation agreement to which both the United States
and the United Kingdom are parties. Section (e) also includes unlawful
use of firearms, which, of course, was beyond the scope of the U.N.
Convention and, in this respect, is similar to the analogous provision
in Article 1(d) of the existing treaty.
Question. Article VIII(1) of the current treaty governs provisional
arrest. It provides, inter that the application for provisional arrest
shall contain ``such further information, if any, as would be necessary
to justify the issue of a warrant of arrest had the offense been
committed, or the person sought been convicted, in the territory of the
requested party.'' This language is omitted from Article 12 of the
proposed treaty. Why?
Answer. The provisional arrest language of the 1972 treaty has not
been continued in this or other modern treaties because it does not
provide sufficient guidance about what information should be provided
at the provisional arrest stage--those urgent cases where it is
appropriate to effect the immediate arrest of the fugitive--as opposed
to the information that must be submitted with the formal extradition
request to support a final judicial determination of extraditability.
The language of Article VIII(1) of the 1972 treaty states that the
provisional arrest request should contain ``an indication of intention
to request the extradition of the person sought and a statement of the
existence of a warrant of arrest or a conviction against that person,
and, if available, a description of the person sought, and such further
information, if any, as would be necessary to justify the issue of a
warrant of arrest had the offense been committed in the territory of
the requested Party.'' Article VII(3) of the 1972 treaty provides that
the formal extradition request, in the case of a person not yet
convicted, must include information that ``would justify [the
fugitive's] committal for trial if the offense had been committed in
the territory of the requested Party . . . .'' From the perspective of
U.S. practitioners, the antiquated language of these two provisions is
not particularly helpful and would therefore not typically be included
in a modern extradition treaty.
The purpose of provisional arrest is to permit, in urgent
circumstances, the immediate arrest of the fugitive, pending the
submission of the formal extradition documents which must be sufficient
to meet all the requirements for extradition under the treaty and the
domestic law of the requested country. Thus, information submitted in
the context of provisional arrest is necessarily more abbreviated. The
provision of the 1972 treaty gave no guidance as to what ``further
information,'' beyond the existence of a warrant and description of the
fugitive, might be required and indeed suggested that no further
information at all might be necessary. Article 12(2) of the new treaty
makes it clear that more information is required and provides guidance
as to the several categories of information U.S. courts are likely to
expect in order to issue a provisional arrest warrant.
In addition, the language of Articles VII and VIII of the 1972
treaty is confusing because the distinction it clearly means to draw
between the abbreviated provisional arrest request made in urgent
circumstances and the fully documented formal extradition request is
muddied by referencing standards of proof at two stages in a domestic
criminal case--arrest and committal for trial--which are not in fact
different under much of modern U.S. criminal procedure.
The new treaty resolves these difficulties by requiring more
information about the offense and offender at the provisional arrest
stage, and by making clear in Article 8(3)(c) that the formal
extradition request must include information sufficient for the U.S.
court to determine probable cause to believe the fugitive committed the
offense for which extradition is sought.
Question. The current treaty provides for a probable cause standard
for extradition. Article 2 of the 1985 Supplementary Treaty explicitly
states that an individual sought for extradition may present evidence
whether there is probable cause; Article IX(1) of the 1972 treaty
provides that extradition shall only be granted if the evidence is
sufficient ``according to the law of the requested Party'' to ``justify
the committal for trial of the person sought'' if the offense had been
committed in the territory of the requested party; and Article VII(3)
provides that request must be accompanied by ``such evidence as,
according to the law of the requested Party, would justify his
committal for trail if the offense had been committed in the territory
of the requested Party.''
The proposed treaty contains only the last provision (in Article
8(3)(c)), requiring that the request for extradition to the United
States be supported by ``such information as would provide a reasonable
basis to believe that the person sought committed the offense for which
extradition is requested.''
What is the standard for extradition from the United States
under the proposed treaty, and upon what specific provisions of
the treaty and U.S. law is that standard based?
Answer. The standard for extradition from the United States under
Article 8(3)(c) of the proposed treaty and under U.S. law is that of
probable cause. Under U.S. law, the United States Constitution,
together with federal case law, provides the standard used by courts to
evaluate the sufficiency of foreign evidence provided in support of an
extradition request. The applicable standard requires there be probable
cause to believe that the person who is before the court is the person
charged or convicted in the foreign country and, in those cases where
the person has not been convicted, probable cause to believe that
person committed the offenses for which extradition is sought. See
United States v. Wiebe, 733 F.2d 549, 553 (8th Cir. 1984) (``The
probable cause standard applicable in extradition proceedings is
defined in accordance with federal law and has been described as
evidence sufficient to cause a person of ordinary prudence and caution
to conscientiously entertain a reasonable belief of the accused's
guilt.'') (internal quotation marks omitted).
Question. Article 16 of the proposed treaty provides for, ``[t]o
the extent permitted under its law,'' the seizure and surrender by the
requested State of assets connected with the offense in respect of
which extradition is granted.
(a) Please summarize U.S. law on such seizure and surrender.
(b) In extradition cases, at what point in time does such
seizure occur?
(c) Most modern U.S. extradition treaties, as well as the
1972 treaty with the United Kingdom, contain a statement that
the rights of third parties shall be respected. Why is such a
statement not included in Article 16 of the proposed treaty?
Answer. In the United States, all such seizure and surrender
actions would be carried out by U.S. authorities and would occur in
accordance with U.S. law, including prohibitions against unreasonable
searches and seizures found in the United States Constitution and in
various state constitutions, and implemented in various relevant
federal and state statutes.
Like in other U.S. treaty relationships, under the UK treaty in a
diplomatic note requesting provisional arrest or extradition, the
Requesting State would ask the Requested State, pursuant to Article 16,
to seize items connected with the offense and, if extradition is
granted, to surrender those items to the Requesting State. Typically,
law enforcement authorities would obtain a warrant from a judge to
arrest the fugitive and, in executing the arrest warrant, will seize
items and assets connected with the offense for which extradition is
requested. If extradition is approved by the judge, and the Secretary
of State authorizes the extradition, typically the U.S. authorities
would turn over such items and assets, seized incident to arrest,
pursuant to Article 16 of the treaty. If U.S. law enforcement
authorities are unable to seize items incident to the arrest, they will
have to obtain a seizure warrant, consistent with U.S. law, to seize
those items. The seizure warrant would typically be obtained pursuant
to a formal request for assistance under the Mutual Legal Assistance
Treaty in place between the United States and the United Kingdom.
There is nothing novel about this provision; this same concept is
contained in virtually all U.S. extradition treaties, including the
existing U.S.-UK treaty currently in force between the two countries.
A statement about the rights of third parties was not necessary in
this treaty given that the laws of the United States and of the United
Kingdom on this topic are largely similar and provide adequately for
the rights of third parties under domestic laws and procedures.
Question. Article 18 of the proposed treaty authorizes the
requested state to waive the rule of specialty.
(a) In an average year, how often does the United States or
other treaty partners seek the waiver of the rule of specialty
in extradition cases? How often is it granted by the United
States? What is the process for reviewing and authorizing such
requests in the United States?
(b) In the view of the Executive Branch, what types of cases
are appropriate for waiver of the rule?
Answer. In practice, rule of specialty waiver provisions are
infrequently invoked. From 1991 to the present, the Department of State
has received approximately 30 requests for waiver of the rule of
specialty. Of these, 17 were granted, 5 were denied, and 8 are pending.
In the same time period, the United States has made approximately 6
requests to other countries to waive the rule of specialty.
Generally, the criteria for evaluating a request from a treaty
partner to waive the rule of specialty are (1) timeliness, (2) whether
the justification for the request is sufficient, and (3) whether there
is sufficient evidence to meet the probable cause standard regarding
the offense for which the request is made. If the request fails to meet
any of these criteria, the request is denied.
The Department of State receives such requests in the form of a
diplomatic note from the foreign government. The Office of the Legal
Adviser of the Department of State does a preliminary review of the
request and then forwards it to the Office of International Affairs of
the Department of Justice for its review. If these offices agree that
the request should be granted in whole or in part, the Office of the
Legal Adviser sends that recommendation to the Secretary of State (or
other appropriate principal of the Department of State) together with
the relevant facts and analysis. If the Secretary (or other appropriate
principal) approves the request in whole or in part, notice of that
decision is communicated in a diplomatic note to the requesting
government.
If, on the other hand, the Department of Justice recommends that
the request be denied, the Department of State sends a diplomatic note
to that effect to the requesting government.
(b) The most common situation in which the Executive Branch waives
the rule of specialty is when new information regarding criminal
conduct surfaces that was not previously available to the Requesting
State at the time the extradition was sought.
Newly discovered evidence relating to conduct of which the
Requesting State was aware at the time of its request for extradition
may also, in some circumstances, warrant a waiver of the rule of
specialty.
Additionally, the charging of lesser included offenses and
additional charges based on the same conduct may warrant a waiver of
the rule of specialty. (The UK treaty, like several others, makes it
clear that a waiver need not be obtained if the new charge is simply a
lesser included offense.)
Question. Article 23(3) provides that upon entry into force of the
proposed treaty, the 1972 treaty and the 1985 Supplementary Treaty
shall cease to have effect, except that the prior treaty shall apply to
any extradition proceedings in which the extradition documents have
been submitted to the courts of the requested state. This proviso is
further qualified, however, by this statement: ``except that Article 18
of this Treaty shall apply to persons found extraditable under the
prior Treaty.''
Is there a temporal limitation to this latter provision? In
other words, does Article 18 of the proposed treaty apply only
to those extradition cases pending at the time of entry into
force, or does it apply to all persons who have heretofore been
found extraditable under the prior treaty (as that term is
defined in Article 23)?
Answer. No. Article 18 of the new treaty relating to the rule of
specialty would apply to persons who have been found extraditable under
the current treaty.
Question. Is there a relationship between this treaty and the U.S.-
EU treaty on extradition? Please elaborate.
Answer. The extradition treaty signed by the United States and the
United Kingdom on March 31, 2003, would be amended in certain respects
by the extradition agreement subsequently signed by the United States
and the European Union on June 25, 2003. The changes to the bilateral
extradition treaty resulting from the U.S.-EU agreement are identified
in a bilateral instrument signed by the United States and the United
Kingdom on December 16, 2004. The resulting amended text of the
extradition treaty is set out in an annex to the bilateral instrument.
These agreements will be presented to the Senate for its consideration
when the final set of negotiations with other EU countries are
completed, which we expect will be in the near future. The changes to
the bilateral treaty are as follows.
Two of the changes serve to expedite extradition procedures. One
will allow supplementary extradition documents to be sent directly
between the U.S. Department of Justice and the UK Home Office rather
than through diplomatic channels (Article 10(2) of the Annex). A second
procedural improvement--simplifying certification and authentication
requirements (Article 9 of the Annex)--will be implemented only after
the United Kingdom enacts implementing legislation, as indicated in an
exchange of notes accompanying the signing of the bilateral instrument.
The 2003 extradition treaty also would be supplemented by the
addition of a provision (Article 15 of the Annex) establishing parity
between a U.S. extradition request to the UK and a request to the UK
for the same person made by another ELT member state pursuant to the
European Arrest warrant mechanism. Finally, the U.S.-EU extradition
agreement establishes a consultation procedure (Article 8 bis of the
Annex) which may be employed where the state seeking extradition
contemplates including particularly sensitive personal information in
the request.
Since the geographic extent of the United Kingdom for purposes of
EU membership is more limited than that ordinarily reflected by the
United Kingdom in its international agreements with third countries,
the bilateral extradition instrument implementing the U.S.-EU agreement
will not apply to the Channel Islands and the Isle of Man. Those
territories would continue to be subject to the 2003 extradition treaty
in its original form.
Question. Does the proposed treaty implicate the President's power
under Article II of the Constitution as Commander-in-Chief of the Army
and the Navy? If so, please elaborate.
Answer. Answer: No.
Question. Ms. Warlow testified that the proposed treaty eases the
evidentiary burden the United States has to meet in order to seek
extradition from the United Kingdom, lowering it from a standard of
prima facie.
(a) What is the standard for obtaining extradition in the
United Kingdom under the proposed treaty and the Extradition
Act 2003 (U.K.)?
(b) Is it not the case that the United States is already
benefiting from the lower standard by virtue of approval in the
United Kingdom of the Extradition Act 2003, and the subsequent
designation of the United States as a part 2 country pursuant
to that Act?
Answer. The standard for obtaining extradition in the United
Kingdom is defined under UK domestic law; we understand that this
evidentiary standard is comparable to the U.S. ``probable cause'
standard.
One of the primary benefits of ratification of the new treaty is
that the United States will be positioned to continue to receive the
benefits of recent changes in UK extradition law, including the
reduction in the evidentiary standard that the United States will be
required to meet when seeking the extradition of a fugitive and the
ability to submit hearsay evidence.
In concrete terms, what this favored status means for U.S. requests
to the United Kingdom is that the United States need not produce first
person affidavits (witness statements) with regard to each element of
each offense for which extradition is sought. Thus, to meet the
evidentiary threshold, the United States must produce only a
prosecutor's affidavit that outlines the case. Of course, the United
States will still have to produce the arrest warrant, charging
documents, and other items as required by Article 8 of the new treaty.
The United States has been benefiting, since January 1, 2004, from this
lower standard by virtue of the UK's Extradition Act 2003, and the
subsequent designation of the United States as a part 2 country under
that Act.
We note that some defendants in extradition proceedings in the
United Kingdom have argued that, under the provisions of the current
treaty, the UK government could not legally designate the United States
to receive the benefits of the lower evidentiary standard. We have been
advised by our counterparts in the United Kingdom that they do not
believe these arguments will be successful. We also understand from our
UK counterparts that U.S. non-ratification of the new treaty is now
attracting considerable parliamentary interest in the UK. Various
individuals and groups have suggested that the United States be removed
from this favored category. (If this were to happen, the United States'
extradition documents would, once again, have to meet an onerous prima
facie standard.) We think it is unlikely that this idea will gain
political traction, at least in the near future.
Treaty between the United States of America and Germany on Mutual Legal
Assistance in Criminal Matters (Treaty No. 108-27)
Treaty between the United States of America and Japan on Mutual Legal
Assistance in Criminal Matters (Treaty No. 108-12)
Question. Please describe the current state of law enforcement
cooperation between the United States and Japan and the United States
and Germany.
Answer. The United States enjoys excellent law enforcement
cooperation with both Japan and Germany. It is anticipated that the
entry into force of a Mutual Legal Assistance Treaty with each country
will further strengthen our bilateral law enforcement cooperation.
Question. Article 1(3) of the Treaty with Japan requires a party to
provide assistance ``in connection with an administrative investigation
of suspected criminal conduct.'' Article 1(1) of the Treaty with
Germany contains a similar provision, stating that assistance provided
for criminal investigations includes investigations and proceedings
``relating to regulatory offenses to the extent that they may lead to
court proceedings or be referred for criminal prosecution in the
Requesting State.'' Is there an understanding between the negotiating
states about the scope of these provisions?
Answer. Both provisions were the subject of extensive discussion
during the negotiations which resulted in a common understanding of
their scope. Although the provisions of the two treaties vary somewhat,
they permit requests for assistance from entities such as the
Securities and Exchange Commission or the Federal Trade Commission,
which investigate conduct that may also constitute a criminal offense
and which have authority to refer matters to the Department of Justice
for prosecution. It was also understood that for the United States'
assistance also would be available for administrative investigations by
state authorities, provided the particular conditions described in the
applicable treaty were met.
Under the proposed treaty with Japan, the administrative
investigation must be of ``suspected criminal conduct.'' In addition,
the Central Authority (for the United States, the Department of
Justice) must certify that the administrative authority conducting the
investigation has statutory or regulatory authority to investigate
facts that could constitute a criminal offense and to refer matters
investigated and results of its investigations ``to prosecutors for
criminal prosecution.'' The Central Authority also must certify that
``the testimony, statements or items to be obtained will be used . . .
in an investigation, prosecution or other proceeding in criminal
matters, including the decision whether to prosecute.''
With respect to the proposed treaty with Germany, the understanding
was similarly to permit entities such as the Securities and Exchange
and Federal Trade Commission or similar state authorities to obtain
investigative information as long as the criteria set out in the treaty
were met in the particular case. The approach under the proposed treaty
with Germany is slightly different and reflects the extent to which the
negotiators explored two areas of potential concern: first, some
matters that were criminal in one jurisdiction were merely regulatory
in the other, and, second, the different extents to which entities
conducting regulatory or administrative investigations were authorized
by law to refer such matters for criminal prosecution. As a solution,
the negotiators defined ``criminal investigations and proceedings''--
for which treaty assistance is available--to encompass investigation of
regulatory matters if (1) such matters could be referred for criminal
prosecution or could lead to civil court proceedings, and (2) the
``regulatory offense'' being investigated would constitute a criminal
offense in the Requested State.
Thus, through somewhat different formulas, both treaties serve to
reach a balance so that the MLAT may be used to assist in
administrative or regulatory investigations that focus on serious and
potentially criminal conduct, without opening the door to the treaty's
use as a general instrument of information exchange in the
administrative and regulatory sphere.
Question. Article 12(2) of the Treaty with Japan provides that the
requested Party may provide the requesting Party with items that are in
the possession of governmental departments of the requested Party to
the ``same extent and under the same conditions as such items would be
available to its investigative and prosecuting authorities.'' Article 9
of the Treaty with Germany contains a similar provision, but applies it
to ``corresponding authorities'' rather than ``investigative and
prosecuting authorities.''
(a) Both provisions are discretionary. Please elaborate on
the degree to which the U.S. government intends to provide
information under these treaty provisos in light of U.S.
federal laws restricting provision of such information (but
permitting its provision to certain government agencies),
including the Privacy Act of 1974 and Federal Rule of Criminal
Procedure 6(e).
(b) Is there an understanding that these provisions will
constitute a ``convention . . . relating to the exchange of tax
information'' for the purpose of Title 26, United States Code,
Section 6103(k)(4)? Or is such exchange of tax information
already provided for under existing bilateral conventions for
the avoidance of double taxation?
Answer. (a) As noted in the question, these provisions of the
proposed Japanese and German treaties are essentially the same, and
give the Requested State discretion to provide governmental information
that is not publicly available to the same extent that it might be
provided to its own prosecuting or investigating authorities. A similar
provision is found in virtually all of our bilateral Mutual Legal
Assistance Treaties.
The purpose of these treaties is to facilitate cooperation between
the Parties in the investigation and prosecution of criminal offenses.
The proposed treaty with Germany specifically states, in Article 1(1),
that its purpose is ``to afford each [Treaty partner] . . . the widest
measure of mutual assistance in criminal investigations and proceedings
. . . It is the intention of the U.S. Government to exercise its
discretion favorably whenever possible, where information sought by a
treaty partner will be important to the effective investigation or
prosecution of a crime. At the same time, the treaties permit the
Requested State to impose conditions of confidentiality or use
restrictions equivalent to or greater than those that might apply in a
domestic context, and such conditions or limitations may be imposed in
order to meet legal requirements, or even if not legally mandated, as a
policy choice of the Requested State. These provisions do not, however,
permit disclosure of information to foreign authorities where such
disclosure would be prohibited under U.S. law.
Regarding information in records maintained by a U.S. government
agency that are covered by the Privacy Act, information could be
provided under the treaties with Germany and Japan if disclosure of the
information to foreign law enforcement officials was among the agency's
published ``routine uses'' for such information (5 U.S.C.
Sec. 552a(b)(3)), or pursuant to court order (5 U.S.C.
Sec. 552a(b)(11)).
Regarding disclosure of grand jury material, it is noteworthy that
Rule 6(e), F.R.Crim.P. has been amended to permit disclosure of grand
jury material sought by foreign courts or prosecutors for use in a
criminal investigation. However, such disclosure must be authorized by
the court, and the court may impose conditions regarding such
disclosure. Rule 6(e)(3)(E)(iii). These procedures would govern a
request for grand jury information made by Germany or Japan under the
respective Mutual Legal Assistance Treaties.
(b) The negotiators understood that these provisions would serve as
a basis for exchange of tax information and that the Treaties with
Germany and Japan would each constitute a ``convention . . . relating
to the exchange of tax information'' for purposes of 26 U.S.C.
Sec. 6103(k)(4). Such understandings are the rule, rather than the
exception, for mutual legal assistance treaties.
The negotiators of the Mutual Legal Assistance Treaty with Germany
agreed to cover assistance for tax offenses, although the United States
and Germany are parties to a bilateral tax convention (1708 UNTS 3,
entered into force August 21, 1991). Since investigations regarding tax
offenses may include other types of crimes such as fraud, money
laundering, or other unlawful activity which has produced unreported
illicit income, the United States ordinarily seeks to include tax
offenses within the scope of its Mutual Legal Assistance Treaties, so
that investigators and prosecutors can make a single request for
assistance covering the full range of offenses under investigation.
Article 25(1) of the MLAT makes it clear that the availability of
``tax information'' pursuant to its provisions in no way impinges on
the availability to secure assistance pursuant to the tax convention
(and vice versa).
Similarly, the Mutual Legal Assistance Treaty with Japan will cover
assistance for tax offenses, although the United States and Japan are
also parties to a bilateral tax convention (23 UST 967, entered into
force July 9, 1972), for the reasons noted above with respect to the
Treaty with Germany. Similarly, Article 17 of the MLAT makes it clear
that the availability of tax information under the MLAT in no way
impinges on the ability to obtain the same information pursuant to
another applicable international agreement, such as the bilateral tax
convention.
Treaty between the United States of America and Japan on Mutual Legal
Assistance in Criminal Matters (Treaty No. 108-12)
Question. Article 7(2) of the Treaty with Japan permits the Central
Authority of the requested Party to request that testimony or
statements provided under the treaty be kept confidential or be used
only subject to specified conditions, and requires the requesting Party
to comply with such a request if it agrees with it. Paragraph 3
contains an exception to this requirement ``to the extent that there is
an obligation under the Constitution of the requesting Party to do so
in a criminal prosecution.''
Does the quoted language about an obligation under the
Constitution to disclose information in a criminal prosecution
cover disclosure of information required under Brady v.
Maryland and Jencks v. United States?
Answer. Article 7(2) recognizes a situation where the Requested
Party may ask the Requesting Party to keep confidential or limit the
use of certain testimony, statements, or items that the requested Party
has an obligation to provide and no basis to deny under Article 3.
Thus, the Requested Party intends to provide it, but wishes the
Requesting Party to restrict its use. If the Requesting Party agrees to
receive the assistance subject to such a restriction, it is obligated
to comply with that restriction. However, Article 7(3) of the treaty
provides an exception: U.S. prosecutors may make disclosures, even if
contrary to restrictions the U.S. has accepted, to the extent required
by Brady v. Maryland, which articulates a constitutionally based
disclosure requirement.
Disclosure required under the Jencks Act, 18 U.S.C. Sec. 3500,
codifying the disclosure principles articulated in Jencks v. United
States, is not constitutionally mandated. Therefore, the exception
under 7(3) is inapplicable. Nonetheless, a restriction on disclosure
imposed under the treaty does not relieve U.S. prosecutors of any
disclosure obligations imposed by the Jencks Act or other U.S. law. In
such a case, the U.S. prosecutor would either need to seek and obtain
the permission of Japan to make the disclosure or inform the U.S. court
of the prosecutor's inability to disclose, at which point it would be
for the court to determine what remedy, if any, would be appropriate.
Treaty between the United States of America and Germany on Mutual Legal
Assistance in Criminal Matters (Treaty No. 108-27)
Question. Article 14 of the Treaty with Germany provides that the
Central Authority of the Requested State may request that evidence or
information furnished under the treaty be kept confidential or used
only subject to specified condition. The Requesting State is then
required to use its ``best efforts'' to comply with the conditions.
Article 15 of the Treaty provides a framework for limitation or
conditions on use of information provided to the Requesting State.
Article 16 contains restriction on the use of information or evidence
received by the Requesting State in antitrust cases.
Please elaborate on the relationship of these three articles with
the requirements of Brady v. Maryland, Jencks v. United States, the
Jencks Act (18 U.S.C. 3500), and Federal Rule of Criminal Procedure
26.2.
Answer. Article 14(2) recognizes a situation where the Requested
State may ask the Requesting State to keep confidential or limit the
use of certain evidence that the Requested State has an obligation to
provide and no basis to deny providing pursuant to Article 3. In this
case, the Requested State intends to provide the evidence, but wishes
the Requesting State to restrict its use (beyond any restriction or
condition otherwise applicable under the treaty).
While the Requesting State has no obligation to accept subject to
such a restriction, if it does so, then the Requesting State is
obligated to use best efforts to comply. Use of best efforts does not
permit the Requesting State's prosecutors to avoid compliance with
Constitutional and statutory disclosure requirements in criminal cases.
Article 15(1) of the proposed treaty recognizes a situation where
the Requested State has a basis to deny assistance pursuant to Article
3 but may choose to provide the assistance subject to disclosure or use
restrictions. Unlike Article 14(2), where the Requested State has no
treaty basis to deny assistance and can only ask the Requesting State
to accept restrictions and use best efforts to keep them, Article 15(1)
requires that the Requesting State, if it has accepted conditions in
order to obtain assistance that would otherwise be unavailable under
the treaty, comply with those restrictions. As Article 15(4) makes
clear, Article 15(1) does not affect the ability of the Requesting
State's prosecutors to make disclosures required by Brady v. Maryland.
However, the restrictions could affect the Requesting State's
prosecutors' ability to disclose or make other uses in a manner
inconsistent with the restrictions imposed and accepted (e.g.,
compliance with the Jencks Act or the provisions of Rule 26.2,
hereinafter referred to generally as ``Jencks-related disclosures'').
Even so, the restrictions would not relieve U.S. prosecutors of any
disclosure obligations imposed by U.S. law. In such a case, the U.S.
prosecutor would either need to seek and obtain the permission of
Germany to make the disclosure, or inform the U.S. court of the
prosecutor's inability to disclose, at which point it would be for the
court to determine what remedy, if any, would be appropriate.
Article 15(2) sets out a general rule that the Requesting State may
not use information obtained under the treaty, for a purpose other than
that for which the information was originally sought, unless it obtains
the prior consent of the Requested State. Article 15(3) provides
exceptions when the Requested State's prior consent is unnecessary.
Again, by virtue of Article 15(4), the general limitation of Article
15(2) does not apply where disclosure is required under Brady. The
impact on Jencks-related disclosures may require prior consent where
(1) the assistance (i.e., witness statement) to be disclosed does not
relate to the purpose for which the Requesting State sought the
information or assistance or (2) the disclosure does not fall within
any of the exceptions set out in Article 15(3). However, since Jencks-
related disclosures arise in the context of criminal prosecutions, and
assistance, including the production of prior witness statements is
generally available under the proposed treaty, such disclosures would
ordinarily be permissible within the first exception under Article
15(3): ``[t]he Requesting State may use any evidence or information
obtained under this Treaty . . . . 1. for any other purpose for which
assistance pursuant to this Treaty would be available. . . .''
Article 16 applies to antitrust investigations and prosecutions and
obligates the Requesting State to (I) use assistance provided by the
Requested State only with respect to antitrust matters and (2) protect
that assistance in the same manner as evidence obtained under the
Requesting State's laws. Since Article 15(4), discussed above, also
applies to information provided under Article 16, a Brady disclosure is
unaffected.
Jencks-related disclosures are permitted under Article 16, to the
extent that they would occur in proceedings arising under the
prosecution of antitrust offenses. However, where information was
originally obtained for an antitrust proceeding under Article 16, but
then became subject to Jencks-related disclosure requirements in the
context of another prosecution of other offenses, prior consent of the
Requested State would be required. Moreover, the exceptions under
Article 15(3) to the prior consent rule, would not be applicable to
evidence obtained under Article 16. Again, in such a situation the
prosecutor must either obtain the consent of the Requested Party or
inform the court of the inability to comply with the disclosure
requirement, and in the latter case, it will be for the court to
determine what remedy, if any, is appropriate.
Question. Article 12(2) of the Treaty with Germany authorizes a
Party to ``permit the operation in its territory of criminal
investigations by law enforcement officers of the other Party acting
under covert or false identity.''
(a) What domestic U.S. laws govern such operations?
(b) Do any immunities, such as diplomatic immunity or the
qualified immunity doctrine (under Harlow v. Fitzgeraldi),
apply to German agents conducting such operations in the United
States? Please elaborate.
(c) Are there any related agreements with the German
government on the operation of their agents in the United
States?
Answer. (a) Foreign law enforcement agents are subject to the
provisions of the Foreign Agents Registration Act (18 U.S.C. Sec. 951),
which are implemented in part through regulations at 28 C.F.R.
Sec. 73.3. Subsections (b) and (c) of those regulations provide that
foreign law enforcement agents must notify U.S. law enforcement
authorities or the Justice Department's Office of International
Affairs, with respect to their pursuing investigative or other official
actions in the United States. As a practical matter, U.S. law
enforcement authorities would object to German law enforcement
authorities conducting undercover activities within the United States
unless such undercover activities were fully approved by and
coordinated with U.S. law enforcement authorities. To the extent
foreign law enforcement authorities act within the United States they
are subject to United States laws.
(b) It is conceivable that a law enforcement officer of one Party
accredited to that Party's Embassy or a consulate in the territory of
the other Party might be authorized by the host state to participate in
such an operation. In such a situation, immunities accorded to the
foreign law enforcement officer under the Vienna Convention on
Diplomatic Relations or the Vienna Convention on Consular Relations may
be applicable to acts undertaken during the course of such an
operation.
It is our understanding that a German officer operating in the
United States would enjoy any qualified immunity applicable to domestic
law enforcement officers only to the extent that U.S. law permitted the
officer to be designated as a U.S. law enforcement official or
otherwise specifically conveyed law enforcement powers or immunities
upon such an officer. However, we are aware of only one provision that
currently permits such designation: 19 U.S.C. Sec. 1401(i), which
permits foreign law enforcement officers to be designated to perform
duties of a customs officer.
(c) We are not aware of any related bilateral agreements regarding
the operation of German law enforcement agents in the United States or
the operation of United States law enforcement agents in Germany. There
is, however, a relevant enabling provision in the 1988 United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, to which both the United States and Germany are Parties.
Article 9, paragraph 1(c), provides for possible cooperation among
parties including arrangements ``[in] appropriate cases and if not
contrary to domestic law, [to] establish joint teams to . . . carry out
[counternarcotics investigations]. Officials of any Party taking part
in such teams shall act as authorized by the appropriate authority of
the Party in whose territory the operation is to take place; in all
such cases, the Parties involved shall ensure that the sovereignty of
the Party on whose territory the operation is to take place is fully
respected.''
__________
Responses to Additional Questions Submitted for the Record by Senator
Biden to Samuel Witten, U.S. Department of State
Protocol between the Government of the United States and the Government
of the State of Israel Amending the Convention on Extradition
(Treaty No. 109-3)
Question. Article 3 provides for new Article VI bis, which provides
in paragraph 1(a) that extradition ``shall not be granted'' in one
circumstance, and in paragraph 1(b) provides that extradition ``may be
denied'' in another circumstance. Subparagraph (a) appears to be
mandatory, while subparagraph (b) appears to be discretionary.
The Secretary's letter of transmittal, as set forth in Treaty Doc.
109-3, suggests that all of paragraph (I) is mandatory. It says that
``[n]ew Article VI bis (I) bars extradition when the person sought has
been convicted or acquitted in the Requested Party or another country
for the same offense.'' (emphasis added)
Is subparagraph 1(b) mandatory or discretionary?
Answer. Subparagraph 1(b) is discretionary. Denial of extradition
is mandatory under subparagraph 1(a), which addresses the situation
where a fugitive has already been tried for the same offenses in the
Requested Party and convicted or acquitted. Subparagraph I(b), however,
is discretionary, and deals with the rather unusual situation in which
the fugitive has been convicted in a third state, but has been returned
to the Requested Party to serve all or part of the sentence resulting
from that conviction. In this situation, the state receiving an
extradition request may deny extradition if there has been a prior
conviction in the third state. It is our understanding that Israel
views its current laws as ordinarily requiring denial of extradition in
this circumstance.
Question. What is the rationale for requiring, in subparagraph 1(b)
of Article VI bis that the person sought for extradition serve his
sentence in the Requested Party?
Answer. Subparagraph 1(b) of Article VI bis does not require the
person sought for extradition to serve his sentence in the Requested
Party. This Article generally deals with fact patterns concerning when
a prior conviction for the same offense by another sovereign could or
should bar extradition. As noted in response to [the previous question]
question 1, subparagraph 1(b) deals with what we believe would be the
rather unusual situation where the person sought had previously been
convicted in a third state, but had been transferred to the Requested
Party (which presumably would be his state of nationality) to serve the
sentence resulting from that conviction. If, thereafter, a request was
made under the Protocol for the extradition of the person for the same
offense, the Requested Party would have discretion to deny a request
pursuant to subparagraph 1 (b) of Article VI bis.
Question. What is the practical implication of new Article VIII
bis? In other words, does the law of either party require extradition
to be denied under the circumstance covered by the provision?
Answer. The United States does not believe that application of the
Requested Party's statute of limitation should act to bar extradition
when the offense remains viable under the Requesting Party's laws
regarding lapse of time. However, Israel's law currently requires
extradition to be denied if an offense would have been time-barred
under Israel's law had it been committed there. Because this is
unambiguously Israel's current law, the negotiators included a
provision (Article VIII bis) that explicitly permits Israel to deny
extradition in such a circumstance, but only to the extent that it
continues to be required under its law. Since the United States has no
such legal limitation, Article VIII bis will have no practical
implication in extradition proceedings within the United States. If
Israel's law on this subject changes and extradition no longer is
required to be denied on this basis, the exception in this article will
no longer apply.
Question. New Article XI omits the following language set forth in
Article XI of the current treaty: ``. . . and such further information,
if any, as would be necessary to justify the issue of a warrant of
arrest had the offense been committed, or the person sought been
convicted, in the territory of the requested Party.''
Why was this language dropped from the proposed protocol?
Answer. The language referred to in this question is similar to
that of Article VIII of the 1972 U.S.-UK extradition treaty. In both
cases, this language was dropped and a more appropriate and detailed
explanation of the information required for provisional arrest was
substituted in the new instruments (New Article XI of the proposed
U.S.-Israel Protocol and Article 12 of the proposed U.S.-UK treaty.) As
explained in our answer to a question posed by Senator Biden regarding
the proposed U.S.-UK extradition treaty, the provisional arrest
language of the 1962 U.S.-Israel treaty has not been continued in this
Protocol or other modern treaties because it does not provide
sufficient guidance about what information should be provided at the
provisional arrest stage--those urgent cases where it is appropriate to
effect the immediate arrest of the fugitive--as opposed to the
information that must be submitted with the formal extradition request
to support a final judicial determination of extraditability.
The language of Article XI of the 1962 treaty states that the
provisional arrest request should contain ``an indication of intention
to request the extradition of the person sought and a statement of the
existence of a warrant of arrest or a judgment of conviction against
that person, and such further information, if any, as would be
necessary to justify the issue of a warrant of arrest had the offense
been committed . . . in the territory of the requested Party.'' Article
V of the 1962 treaty provides that extradition shall be granted only
if, in the case of a person not yet convicted, ``evidence [is] found .
. . sufficient . . . to justify his committal for trial. . . . '' From
the perspective of U.S. practitioners, the antiquated language of these
provisions is not particularly helpful and would therefore not
typically be included in a modem extradition treaty.
The purpose of provisional arrest is to permit, in urgent
circumstances, the immediate arrest of the fugitive, pending the
submission of the formal extradition documents that must be sufficient
to meet all the requirements for extradition under the treaty and the
domestic law of the requested country. Thus, information submitted in
the context of provisional arrest is necessarily more abbreviated. The
provision of the 1962 treaty gave no guidance as to what ``further
information,'' beyond the existence of a warrant and description of the
fugitive, might be required and indeed suggested that no further
information at all might be necessary. Article 7 of the Protocol amends
Article XI of the 1962 treaty to make it clear that more information is
required and provides guidance as to the several categories of
information U.S. courts are likely to expect in order to issue a
provisional arrest warrant.
In addition, the language of Article XI (provisional arrest) and
Articles V and X (formal extradition) of the 1962 treaty is confusing
because the distinction it clearly means to draw between the
abbreviated provisional arrest request made in urgent circumstances and
the fully documented formal extradition request is muddied by
referencing standards of proof at two stages in a domestic criminal
case--arrest and committal for trial--which are not in fact different
under much of modem U.S. criminal practice.
As noted above, the difficulty posed by the 1962 treaty's
provisional arrest provision is addressed by the Protocol's amending
Article XI to provide much greater guidance about the information to be
included in the provisional arrest request. The Protocol also provides
in new Article X (set out in Article 6 of the Protocol) fuller guidance
as to what is to be included in the formal extradition request. The
negotiators, however, retained the 1962 treaty's ``committal for
trial'' evidentiary standard for the formal extradition proceeding,
rather than substitute the ``reasonable basis to believe'' standard
common in our modern treaties. This is because Israel continues to
require a standard of prima facie evidence--the standard for
``committal for trial'' in its domestic criminal prosecutions--for
purposes of formal extradition. (Israel, however, will no longer
require that extradition documents conform to its hearsay or other
evidentiary requirements applicable at trial (see new Article X bis,
paragraph 2).) Retaining this language, however, will not affect U.S.
extradition practice of requiring extradition evidence to meet a
``reasonable basis to believe'' or ``probable cause'' standard.
__________
Responses to Additional Questions Submitted for the Record by Senator
Biden to Mary Ellen Warlow, U.S. Department of State
Protocol between the Government of the United States and the Government
of the State of Israel Amending the Convention on Extradition
(Treaty No. 109-3)
Question. In your prior response to a previous question, you
discussed Articles XI and V of the 1962 convention with Israel.
In pertinent part, Article XI of the 1962 Convention provides that
an application for provisional arrest--
shall contain a description of the person sought, an indication
of intention to request the extradition of the person sought
and a statement of the existence of a warrant of arrest or a
judgment of conviction against that person and such further
information, if any, as would be necessary to justify the issue
of a warrant of arrest had the offense been committed, or the
person sought been convicted, in the territory of the requested
party.
Article V provides that extradition shall be granted ``only if the
evidence be found sufficient, according to the law of the place where
the person sought shall be found, either to justify his committal for
trial if the offense of which he is accused had been committed in that
place . . .''
Your prior response states that from the ``perspective of U.S.
practitioners, the antiquated language of these provisions is not
particularly helpful and would therefore not typically be included in a
modern extradition treaty.'' You elaborate by stating that the language
in the 1962 treaty is confusing because the intended distinction
between the ``abbreviated'' provisional arrest request made under
urgent circumstances and the documentation normally accompanying the
formal extradition request is ``muddied by referencing standards of
proof at two stages in a domestic criminal case--arrest and committal
for trial--which are not in fact different under much of modern U.S.
criminal practice.''
(a) In the view of the Department of Justice, does the Fourth
Amendment to the U.S. Constitution apply to provisional arrest
under Article XI of the 1962 Convention with Israel?
(b) In the view of the Department of Justice, does the Fourth
Amendment to the U.S. Constitution apply to provisional arrest
under Article XI of the Convention with Israel, as modified by
Article 7 of the Protocol?
Answer. The Department of Justice has taken the position that the
Fourth Amendment does apply in the context of the issuance of a warrant
for provisional arrest pending extradition. That principle, applicable
to requests under the current treaty with Israel, would continue to
apply under the language of the new protocol.
Question. Do you expect that the amendment to Article XI of the
Convention made by Article 7 of the Protocol will result in a
substantive change in the practice of the Department of Justice with
regard to the type and quantum evidence it presents to request
provisional arrest warrants under the Constitution?
Answer. The Department of Justice does not anticipate any
substantive change in the type or quantum of evidence that we submit to
our courts in support of a request for issuance of a provisional arrest
warrant.
__________
QUESTIONS FROM SENATOR CHAFEE
Responses to Additional Questions Submitted for the Record by Senator
Chafee to Samuel Witten, U.S. Department of State, and Mary Ellen
Warlow, U.S. Department of Justice
Extradition Treaty Between the United States of America and the United
Kingdom of Great Britain and Northern Ireland (Treaty No. 108-
23)
Question. I have been hearing from many Rhode Islanders who have
concerns about this extradition treaty. I recently received a letter
from the Ancient Order of Hibernians stating, ``The responsibility for
deciding whether or not an extradition request is politically-motivated
is transferred from the courts to the Executive Branch of the
government which we believe violates due process.''
Their concerns about changes to the current treaty seem to stem
from the fear that moving the decision about whether an extradition
request is politically motivated from the Judicial to the Executive
branch will deny them their ``day in court.''
Can you please explain this provision in the treaty and comment on
these concerns?
Why is it appropriate to remove this decision from the purview of
the Judiciary at this time?
Answer. There are two circumstances in which a defendant may assert
that a purportedly political aspect of the case against him should bar
his extradition.
The first concerns a claim that the offense itself for which
extradition is sought is a ``political offense.'' Under both the
current and the new treaty between the United States and the United
Kingdom, as well as under all of the U.S. Government's other
extradition treaties, such claims are heard by the judiciary.
(``Political offenses'' could include, for example, non-violent speech
protesting government action.) Under the current and new treaty with
the United Kingdom, serious crimes of violence cannot be considered
political offenses.
The second kind of ``political'' issue that might arise in the
context of an extradition case is the ``political motivation'' issue
referred to in the letter. This could be a claim by a fugitive sought
for international extradition that he should not be extradited because
the foreign government's decision to charge him or seek his extradition
is illegitimate because it is motivated by the requesting country's
desire to punish the person for his political views.
In U.S. practice, the question of ``political motivation'' is
determined by the Secretary of State. This responsibility of the
Secretary of State has been recognized by U.S. courts in the
longstanding ``Rule of Non-Inquiry,'' whereby courts defer to the
Secretary in evaluating the motivation of the foreign government. This
principle recognizes that among the three branches of the U.S.
Government, the Executive branch is best equipped to evaluate the
motivation of a foreign government in seeking the extradition of an
individual. The U.S. Government's extradition treaties reflect the fact
that the U.S. Secretary of State appropriately makes this judgment, and
not the U.S. courts.
Indeed, until 1985, the issue of motivation of the Government of
the United Kingdom in making an extradition request of the United
States was treated the same as in all of our other extradition
relationships--the courts played no role in reviewing this issue. In
1985, however, as part of an amendment of other aspects of the UK
extradition relationship, the U.S. Senate developed what became Art.
3(a) of the 1972 U.S.-UK extradition treaty, as amended by the 1985
supplementary treaty, which states that extradition ``shall not occur
if the person sought establishes to the satisfaction of the competent
judicial authority by a preponderance of the evidence that the request
for extradition has in fact been made with a view to try or punish him
on account of his race, religion, nationality, or political opinions,
or that he would, if surrendered, be prejudiced at his trial or
punished, detained or restricted in his personal liberty by reason of
his race, religion, nationality or political opinions.'' This text was
added pursuant to the Senate's Resolution regarding advice and consent
to the 1985 supplementary treaty.
This anomalous treaty provision has led to long, difficult, and
inconclusive litigation in several cases, where U.S. courts were thrust
into the unfamiliar and inappropriate position of addressing motivation
of a foreign government. The provision for judicial review of political
motivation claims has been invoked in five cases, all dating from the
early 1990s. Four of these cases involved persons of Irish Catholic
background who were convicted of crimes of violence in Northern
Ireland, and who escaped from prison in Northern Ireland in 1983 and
fled to the United States.
The first of these cases involved James Joseph Smyth, who had been
convicted of the attempted murder of a prison guard. More than 40
witnesses were heard at his extradition hearing, and a 5-week
evidentiary hearing was held. Ultimately, the record in the case
exceeded 3,000 pages. In 1996, Smyth was finally extradited from the
United States to the United Kingdom. He was subsequently released from
prison in 1998 pursuant to an accelerated release law, the Northern
Ireland (Sentences) Act 1998, that grew out of the Belfast Agreement.
The next three cases involved defendants Kevin John Artt, Terence
Damien Kirby, and Pol Brennan, who were arrested separately in the
United States between 1992 and 1994. Their extradition cases were
consolidated for consideration by U.S. courts. All had been convicted
in the UK judicial system of felonies and sentenced to terms of
imprisonment. Artt was convicted of murdering a prison official; Kirby
was convicted of offenses. of possession of explosives and a submachine
gun, false imprisonment, assault, and felony murder arising out of two
separate incidents; Brennan was convicted of possession of explosives.
There was extensive litigation and testimony in the U.S. District Court
regarding their claims of prejudice under Article 3 of the 1985
supplementary treaty and numerous appeals. This litigation was and is
unprecedented, as U.S. courts were put in the difficult position of
evaluating defendants' claims of generalized, systemic bias within a
foreign system of justice. In 2000, the United Kingdom withdrew its
request for extradition, consistent with its announcement that it would
not be seeking the extradition of persons who, if they had remained in
prison in Northern Ireland, would have benefited from the 1998 early
release law.
There are no pending extradition requests from the United Kingdom
in connection with the conflict in Northern Ireland.
Appendix II--Additional Material Submitted for the Record
Ancient Order of Hibernians, Political Education Committee
John E. McInerney, National Chairman,
Largo, Maryland,
July 22, 2004.
Hon. Richard G. Lugar,
U.S. Senate, Washington, DC.
Re: Proposed USA-UK Extradition Treaty
Dear Senator Lugar. I urge you to oppose the new extradition treaty
between Great Britain and the United States which the President
recently submitted to the United States Senate. The treaty was signed
in March of 2003. This treaty, negotiated by U.S. Attorney General John
Ashcroft and British Home Secretary David Blunkett, marks a serious
unprecedented departure from two centuries of American extradition
practice.
Let me assure you Senator Lugar that I read and studied this treaty
in great detail and I realize that the treaty contains (1) a number of
ill-considered erosions of judicial review, (2) would threaten the due
process rights of Americans, and (3) seriously impact on American civil
rights and civil liberties.
America has always been a refuge for those fleeing tyranny and
persecution overseas. A ``political offense'' exception has been an
essential component of every one of our extradition treaties since
President Thomas Jefferson refused extradition to France of an
outspoken opponent of-the French Revolution.
One of the many serious fatal flaws in this new British-American
extradition treaty is that it weakens, if not eliminates, the time
honored extradition safeguards that the current American-British
extradition treaty includes. This proposed treaty is an unprecedented
departure from two centuries of American extradition practice as far as
the ``political offense exception'' is concerned.
The current extradition treaty, still in force, provides this very
important safeguard that:
. . . extradition shall not occur if the person sought
establishes to the satisfaction of the competent judicial
authority by a preponderance of the evidence that the request
for extradition has in fact been made with a view to try or
punish him on account of his race, religion, nationality, or
political opinions . . . (Article 3(a) UK-U.S. Supplemental
Treaty, 1986)
Sadly, this language is missing from the new proposed extradition
treaty between Britain and the United States. Please compare the above
language with the language in Article 4 of the proposed treaty.
I strongly believe this agreement would hinder our First Amendment
right of free speech. if the new treaty is ratified, an American
citizen who opposes British policy for example, an investigative
journalist who wrote of current and past police abuses in the north of
Ireland for an American newspaper--could face arrest and extradition
without having any ability to challenge, in an American court before an
impartial judge, whether the criminal charges are really a pretext for
the punishment on account of race, religion, nationality or political
opinion. This denial of due process and of our ``day in court'' is
something so foreign to our American way of life and a serious erosion
of over two centuries of freedoms every American takes for granted.
This new treaty will trample on our civil rights and civil
liberties as Americans. I wish to further point out a few more major
flaws in this proposed extradition treaty.
<bullet> The proposed extradition treaty transfers responsibility for
determining whether the extradition request is politically
motivated from the federal courts to the executive branch.
(Article 4, #3) Under this provision, a person will not have
the right of his or her ``day in court'' before an impartial
judge. This will seriously impact the separation of powers that
is at the heart of our American system of law.
<bullet> It allows for extradition even if no American federal law is
violated. (Article 2, #4)
<bullet> The treaty will eliminate the need for any showing of the
facts by the United Kingdom sufficient that the person
requested for extradition to Britain is really guilty of the
crime he or she is charged with. The mere unsupported
allegations are sufficient for deportation to Great Britain.
Never before in our nation's history has the United States
government seriously considered subjecting the liberty of
American citizens to the whims of a foreign government.
(Article 8, #2 (b))
<bullet> The new treaty will allow for provisional arrest and
detention of Americans for 60 days upon request by Great
Britain with no formal extradition request providing supporting
details. (Article 12) Under this provision, a person will not
have the right of his or her ``day in court'' before an
impartial judge.
<bullet> The terms of the proposed treaty will apply retroactively
for offenses allegedly committed even before the treaty's
ratification. No American citizen active in Irish and Irish
American affairs who oppose British policy in the north of
Ireland will be safe if this treaty comes into force. (Article
6)
For these and other major flaws in the proposed treaty, I strongly
urge you to vote NO when this treaty comes to the floor of the United
States Senate for ratification. Our government can negotiate a better
treaty without signing away to Great Britain some of our basic rights
and freedoms as American citizens.
Once again, I urge you to oppose the new extradition treaty and to
support proper judicial review of extradition requests.
Finally, I hereby request that full public hearings be held when
the Committee on Foreign Relations considers this new treaty and that
this letter be made part of the printed record.
I look forward to reading your thoughts on this matter.
Sincerely,
John E. McInerney
P.S.: Those of us who know our proud American history remember the
story of our patriot, Caesar Rodney. In July of 1776, he was aware of
the importance of an unanimous vote in the Continental Congress to
declare our nation's independence from Great Britain. A very sick man,
he rode through the night from Delaware to Philadelphia to cast the
crucial vote for Delaware for independence. I am sure if Caesar Rodney
was alive today he would not cast a vote to curtail or take away the
rights of American citizens in favor of Great Britain. Nor would he
approve extradition on demand by Great Britain without due process.
__________
Irish American Unity Conference
a threat to irish americans: the new u.s./uk extradition treaty
March 5, 2004
Honorable members of the United States Senate: On March 31, 2003
U.S. Attorney John Ashcroft and UK. Home Secretary David Blunkett
signed a new treaty, providing for extradition between the two
countries of persons accused of crimes. The new treaty, which has yet
to be ratified by the U.S. Senate, marks an unprecedented departure
from two centuries of American extradition practice. America has always
been a refuge for those fleeing tyranny overseas, and a ``political
offense exception'' to extradition has been an essential element of
every one of our extradition treaties since Thomas Jefferson refused
extradition of an opponent of the French Revolution.
Although the new treaty pays lip service to the political offense
exception, it removes that essential protection for those seeking
refuge on our shores. Worse, it subjects U.S. citizens to extradition
based solely on unproven allegations by the British government. Any
American active in Irish affairs faces potential detention and
transportation to the United Kingdom without any proof of guilt and
without judicial review. Never before in its history has the United
States government subjected the liberty of its citizens to the whims of
a foreign government.
While the most immediate threat is aimed at those who reject the
Good Friday Agreement (G.F.A.), this treaty is a threat to political
activists across the board. In fact, the treaty appears to be an effort
by the UK government to set the stage for the breakdown, of the G.F.A.,
allowing extradition of former activists for alleged past behavior.
Irish America strongly opposes this new extradition treaty, As
professor Boyle states in the accompanying position paper, this treaty
``is a British dagger pointed at Irish (and American) hearts.''
We have attached for your review Professor Francis Boyle' s
position paper as well as the ACLU Letter to the Senate Foreign
Relations Committee.
Andrew L. Somers, Jr., National President,
Irish American Unity Conference
__________
Material Submitted by Francis A. Boyle, Professor of Law, University of
Illinois at Urbana-Champaign, College of Law
Hon. Richard G. Lugar, Chairman,
Hon. Joseph R. Biden, Jr., Ranking Member,
U.S. Senate Foreign Relations Committee.
Re: Proposed United States-United Kingdom Extradition Treaty
Dear Senators Lugar and Biden:
I.
I am in receipt of an undated document entitled ``Response by the
U.S. Department of State and the U.S. Department of Justice to Points
Raised by the Irish-Americans Against Extradition Petition.'' I wish to
thank you for your kind consideration in obtaining this formal Response
to some of these concerns about the proposed U.S.-UK Extradition Treaty
from the Department of State and the Department of Justice. As a
preliminary matter, I fully concur with the 18 December 2003 Letter
already sent to you by Ms. Laura Murphy, Director of the ACLU
Washington Legislative Office and Mr. Timothy H. Edgar ACLU Legislative
Counsel, which was also sent to all Members of the Senate Foreign
Relations Committee on behalf of the American Civil Liberties Union.
Articles 2 and 4 of the proposed Treaty will gut, destroy and eliminate
the longstanding, time-honored, and well-grounded ``political offense''
exception to U.S. extradition law and practice in all but the name.
The United States of America was founded by means of a Declaration
of Independence and a Revolutionary War fought against the British
Crown, with which this proposed Treaty is to be concluded. But under
the terms of this proposed Treaty, our Founding Fathers and Mothers
such as John Hancock, George Washington, Thomas Jefferson, James
Madison, Ben Franklin, John Adams, and Dolly Madison, inter alia, would
be extradited to the British Crown for prosecution of their very
revolutionary activities that founded the United States of America
itself, Because of our Republic's unique historical origins and
background, special care, concern, attention, and consideration must be
taken with respect to the conclusion of any extradition treaty between
the United States of America and the British Crown.
II.
It is obvious from the text of this proposed Treaty that it is
directed primarily against Irish American citizens engaged in the
lawful exercise of their constitutional rights under the First
Amendment to the United States Constitution in order to protest the
longstanding military occupation of six counties in Ireland by the
British Crown in violation of the international legal right of the
Irish People to self-determination as well as of the United Nations
Declaration on the Granting of Independence to Colonial Countries and
Territories, Resolution 1 514(XV) of 14 December 1960, which
constitutes customary international law and jus cogens. See Francis A.
Boyle, The Decolonization of Northern Ireland, 4 Asian Yearbook of
International Law 25-46 (1995), a copy of which is attached. In
particular, the inchoate crimes specified in article 2(2) and article
4(2)(g) of the proposed Treaty would make extraditable to the British
Crown Irish American citizens who are exercising their rights under the
First Amendment to the United States Constitution to protest the
continued British military occupation of these six counties in Ireland
as well as the deplorable human rights violations that have
historically been inflicted by the British Crown upon Irish Catholics
living in the north of Ireland, in the rest of Ireland, as well as
within Great Britain itself and elsewhere.
Moreover, because of the court-stripping provisions found in
article 2(4), article 2(5), article 4(3), article 4(4), article 5(3),
article 7, article 18(1)(c), and article 18(2) of the proposed Treaty,
there would be no judicial review by a U.S. Federal Court of the
exercise of such First Amendment rights under the U.S. Constitution by
Irish American citizens, and thus this proposed Treaty would be
unconstitutional for that reason as well. Under the terms of this
proposed Treaty, the First Amendment rights of Irish American citizens
would be subjected to the unfettered discretion and political biases of
Executive Branch officials who in the past have shown no respect for
the First Amendment rights of Irish American citizens when it came to
the former's infiltration, investigation, prosecution, and persecution
of perfectly lawful Irish American citizens as well as Irish American
humanitarian organizations and Irish American political groups who were
only exercising their First Amendment rights under the U.S.
Constitution in order to protest the longstanding military occupation
of six counties in Ireland by the British Crown as well as its campaign
of human rights atrocities against Irish Catholics.
Moreover, the unconstitutional retroactivity of the proposed Treaty
as set forth in article 22 would render Irish American citizens subject
to extradition to the British Crown for their perfectly lawful exercise
of First Amendment rights under the U.S. Constitution going all the way
back into the indefinite past to at least the 1916 Irish Revolution for
Independence against the same British Crown with which this proposed
Treaty is to be concluded. This conclusion is only further confirmed
and strengthened by article 6 of the proposed Treaty that
unconstitutionally purports to eliminate any Statute of Limitations
requirement for extradition as well.
Furthermore, such Irish American citizens would be subjected to
unconstitutional preventative detention under article 12 of the
proposed Treaty at the behest of the British Crown in violation of the
Fifth Amendment and the Eighth Amendment to the United States
Constitution. Furthermore, such Irish American citizens could be
unconstitutionally seized and incarcerated pursuant to article 8(3)(c)
and article 12 of the proposed Treaty at the behest of the British
Crown in violation of the U.S. Constitution's Fourth Amendment
prohibition on ``unreasonable searches and seizures'' as well as the
Fourth Amendment requirement of ``probable cause'' for the issue of any
warrants related thereto. Furthermore, such Irish American citizens
would have their property unconstitutionally confiscated and
transferred to the British Crown pursuant to article 16 of the proposed
Treaty at the behest of the British Crown itself in violation of the
``due process of law'' requirement of the Fifth Amendment to the United
States Constitution.
Furthermore, article 18 of the proposed Treaty eliminates in all
but name the longstanding, time-honored and well-grounded Rule of
Specialty for such Irish American citizens. In addition, article 18(2)
of the proposed Treaty would permit Irish American citizens extradited
to Britain then to be summarily shipped onward to some undesignated
third state at the order of the British Crown and the political whim of
the Department of State, where such Irish American citizens could
readily be persecuted by that indeterminate third state. It becomes
crystal clear that the primary purpose of this proposed Treaty is for
the British Crown to target, threaten, intimidate, harass, persecute
and terrorize Irish American citizens for exercising their First
Amendment rights under the United States Constitution.
III.
Weighing most decisively against approving this proposed Treaty is
the fact that since the U.S.-UK Supplementary Extradition Treaty came
into force in 1986, the United States became a contracting party to the
International Covenant on Civil and Political Rights in 1992, to which
the United Kingdom is also a contracting party. This proposed U.S.-U.K.
Extradition Treaty will violate several fundamental provisions of the
Covenant that are expressly designed to protect the basic human rights
of Irish American citizens, inter alia. In particular, but not limited
to, I respectfully call to your attention the following treaty
obligations and human rights protections under the Covenant that will
be violated by this proposed Treaty:
Article 2(1): Each State Party to the present Covenant
undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or
other status.
Article 2(2): Each State Party to the present
Covenant undertakes: (a) To ensure that any person
whose rights or freedoms as herein recognized are
violated shall have an effective remedy,
notwithstanding that the violation has been committed
by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy
shall have his right thereto determined by competent
judicial, administrative or legislative authorities, or
by any other competent authority provided for by the
legal system of the State, and to develop the
possibilities of judicial remedy;
(c) To ensure that the competent authorities shall
enforce such remedies when granted.
Article 9(1): Everyone has the right to liberty and security
of person.
Article 9(1): No one shall be subjected to arbitrary arrest
or detention.
Article 9(3): Anyone arrested or detained on a criminal
charge shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to release.
Article 9(3): It shall not be the general rule that persons
awaiting trial shall be detained in custody, but release may be
subject to guarantees to appear for trial. . . .
Article 9(4): Anyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings before a
court, in order that the court may decide without delay on the
lawfulness of his detention and order his release if the
detention is not lawful.
Article 9(5): Anyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to
compensation.
Article 10(1): All persons deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity
of the human person.
Article 14(1): All persons shall be equal before the courts
and tribunals. In the determination of any criminal charge
against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by
law.
Article 14(2): Everyone charged with a criminal offence shall
have the right to be presumed innocent until proved guilty
according to law.
Article 14(7): No one shall be liable to be tried or punished
again for an offence for which he has already been finally
convicted or acquitted in accordance with the law and penal
procedure of each country.
Article 15(1): No one shall be held guilty of any criminal
offence on account of any act or omission which did not
constitute a criminal offence, under national or international
law, at the time when it was committed.
Article 17(1): No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home, or
correspondence, nor to unlawful attacks on his honour and
reputation.
Article 18(1): Everyone shall have the right to freedom of
thought, conscience and religion. This right shall include
freedom to have or to adopt a religion or belief of his choice,
and freedom, either individually or in community with others
and in public or private, to manifest his religion or belief in
worship, observance, practice and teaching.
Article 19(1): Everyone shall have the right to hold opinions
without interference.
Article 19(2): Everyone shall have the right to freedom of
expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.
Article 21: The right of peaceful assembly shall be
recognized.
Article 22(1): Everyone shall have the right to freedom of
association with others . . .
If the Senate were to consent to this proposed Extradition Treaty
with the British Crown, that would effectively abrogate, violate, and
set at naught these most basic human rights of Irish American citizens
under the Covenant, to which the United States is a contracting party.
Furthermore, Senate consent would also place the United States of
America in breach of its solemn treaty obligations under these
provisions of the International Covenant on Civil and Political Rights
with respect to all the other contracting states parties as well. Such
violations will render the United States subject to the treaty
enforcement mechanisms of the Covenant as well as to the other ordinary
enforcement mechanisms, remedies, and sanctions for violating a
solemnly concluded international human rights treaty as well as the
basic principle of customary international law and jus cogens that
pacta sunt servanda.
IV.
Most significantly, on 18 December 2001 the British Crown formally
derogated from its obligations under article 9 of the Covenant, whereas
the United States of America has not so derogated. So long as that U.K.
derogation to article 9 of the Covenant remains in force, there is no
way the United States can lawfully extradite any Irish American citizen
to the British Crown pursuant to the terms of this proposed Treaty
without the United States government violating its own obligations
under article 2(1) of the Covenant: ``Each State Party to the present
Covenant undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in
the present Covenant. . . .'' The United States cannot lawfully
extradite Irish American citizens to the British Crown, which has
derogated from its obligations under Covenant article 9, without the
United States itself violating Covenant article 2(1) and article 9 with
respect to its own Irish American citizens and also with respect to all
the other contracting states parties to the Covenant.
Furthermore, as a contacting party to the Covenant, the United
States is currently under an obligation not to extradite Irish American
citizens to the United Kingdom where they will be subjected to gross
and repeated violations of their most basic human rights by the British
Crown. These facts have been most recently documented by the Nobel
Peace Prize Winning Amnesty International, whose Headquarters and
International Secretariat are located in London, the capital of the
United Kingdom. Since Amnesty International is right there on the spot,
they certainly know of what they speak. See International Secretariat
of Amnesty International, United Kingdom: Scrap Internment, AI Index:
EUR 45/008/2004 (23 Feb. 2004); Amnesty International, United Kingdom:
A Shadow Criminal Justice System, AI Index: EUR 45/030/2003 (Public),
News Service No: 278 (11 Dec. 2003); Amnesty International, United
Kingdom: Justice Perverted Under the Anti-Terrorism, Crime and Security
Act 2001, AI Index: EUR 451 029/2003 (11 Dec. 2003); Amnesty
International Press Release, UK: Basic Rights Denied After 11
September, ENGEUR 45019 2002 (25 Feb. 2004); Amnesty International,
United Kingdom: Rights Denied: The UK's Response to 11 September 2001,
AI Index: EUR 45/016/2002 (5 Sept. 2002); Amnesty International, United
Kingdom: Amnesty International's Memorandum to the UK Government on
Part 4 of the Anti-terrorism, Crime and Security Act 2001, AI Index:
EUR 45/017/2002 (5 Sept. 2002).
In light of this most extensive documentation by Amnesty
International of massive violations of the most basic human rights of
foreigners by the British Crown under the International Covenant on
Civil and Political Rights, to which the United States is a contracting
party, under the European Convention on Human Rights, under the U.N.
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, to which the United States is a contracting
party, and under other basic sources of both customary and conventional
international human rights law too numerous to list here but
identified, analyzed, and condemned authoritatively by the
International Secretariat of Amnesty International headquartered in
London itself, now is certainly not the time for the United States to
conclude this proposed Extradition Treaty with the British Crown.
According to Amnesty International, there currently exists a grave
human rights emergency for foreigners in the United Kingdom that is
quickly degenerating into a human rights catastrophe. Certainly the
United States Senate must not subject Irish American citizens to these
massive violations of their most fundamental human rights currently
being inflicted on a daily basis by the British Crown against
foreigners, as authoritatively documented by Amnesty International
itself. And the human rights emergency/catastrophe in the United
Kingdom for foreigners is getting worse every day. See, e.g., Alan
Cowell, Britain, Citing Terrorist Threat, Plans to Expand Its Spy
Agency, New York Times, Feb. 26, 2004 (U.K. government proposals for
secret trials and reducing the ``proof beyond a reasonable doubt''
standard for criminal convictions). The United States Senate must not
risk subjecting Irish American citizens to secret trials, kangaroo
courts, and a less-than-reasonable-doubt standard for criminal
convictions by the British Crown. The odious infamy of Britain's Star-
Chamber and Diplock Courts shall live forever in the annals of American
Jurisprudence.
V.
Finally, even if the U.S. Senate were to amend article 3 of the
proposed Treaty so as to prohibit the extradition of U.S. nationals
thereunder to the British Crown, the above objections to the proposed
Treaty would apply pari passu with respect to foreigners present in the
United States whose extradition night be sought under the terms of the
new Treaty by the British Crown, and especially for those foreigners of
Irish Descent. The proposed Treaty would violate the most basic human
rights of foreigners present in the United States, and especially those
of Irish Descent, under the International Covenant on Civil and
Political Rights. Covenant article 2(1) provides that the Covenant
protects the basic human rights of everyone living in the United
States, both citizens and foreigners alike: ``Each State Party to the
present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.''
The same can be said for those basic protections of the United States
Constitution mentioned above, which apply equally to U.S. citizens and
foreigners present in the United States.
Furthermore, with respect to those foreigners present in the United
States, and especially those of Irish Descent, the proposed Treaty
would also violate the solemn U.S. dual obligations of both (1) asylum
and (2) non-refoulement as required by the 1967 U.N. Refugees Protocol,
to which the United States is a contracting party, as well as under
customary international law. We must never forget the grave injustices
that the British Crown inflicted upon Joe Doherty with the support of
the Department of State and the Department of Justice. See United
States and United Kingdom Supplementary Extradition Treaty: Hearings on
Treaty Doc. 99-8 Before the Senate Committee on Foreign Relations, S.
Hrg. 99-703, 99th Cong., 1st Sess. 511 (1985). There must be no more
Joe Dohertys!
Conclusion
For all of these reasons then, the United States Senate must refuse
to give its advice and consent to the proposed U.S.-UK Extradition
Treaty for any reason. There is no way this proposed Treaty can be
salvaged by attaching any package of Amendments, Reservations,
Declarations, and Understandings. The Senate Foreign Relations
Committee must reject this Treaty outright. The currently existing
bilateral and multilateral extradition treaty regime between the United
States and the British Crown is more than sufficient to secure the
prosecution or extradition of alleged terrorists. This proposed Treaty
will only secure and guarantee the persecution of Irish American
citizens, voters, and tax-payers by the British Crown. This proposed
Treaty will also secure and guarantee the persecution of foreigners of
Irish Descent present in the United States by the British Crown. The
perfidy of this proposed Treaty cannot be overstated or underestimated.
This Treaty is a British dagger pointed at the heart of Irish America.
Yours very truly,
Francis A. Boyle, Professor of Law,
Board of Directors, Amnesty International USA (1988-92)
__________
Testimony in Opposition to the Ratification of the Proposed Extradition
Treaty Between the United States and the United Kingdom (31 March 2003)
Good morning. My name is Francis Boyle, professor of law at the
University of Illinois College of Law in Champaign. I have already
submitted to the members of this committee a detailed memorandum of law
against the ratification of this proposed extradition treaty dated 4
March 2004 that I respectfully request be entered into the formal
record of these proceedings together with my written comments here
today.
The United States of America was founded by means of a declaration
of independence and a revolutionary war fought against the British
crown. But under the terms of this proposed treaty, our founding
fathers and mothers such as John Hancock, George Washington, Thomas
Jefferson, James Madison, Ben Franklin, John Adams, and Dolly Madison
would be extradited to the British crown for prosecution and
persecution for their very revolutionary activities that founded the
United States of America itself. Because of this American legacy of
revolution against tyranny, the U.S. has always provided a safe haven
for those seeking refuge on our shores. We have always been wary of
efforts by foreign powers to transport Americans and foreigners for
prosecution abroad on political charges. Indeed, in the declaration of
independence itself, one of the specific complaints against British
tyranny made by Thomas Jefferson was directed at the British custom of
``transporting us beyond seas to be tried for pretended offences.''
For that reason, several episodes in the early history of our
republic such as that of citizen genet under Thomas Jefferson laid the
foundation for the uniquely American notion of the ``political offense
exception'' to extradition. In essence, the political offense exception
holds that people in the United States will not be handed over to
foreign governments for criminal prosecution when the crime alleged is
political in nature.
The political offense exception has since become a standard part of
customary international law. But the political offense exception is not
some abstract notion created by the world court, or the U.N., or any
other international body. It began right here in the United States of
America. And it was created by our founding fathers and mothers, who
knew from personal experience, that it was outrageously unfair for a
state to hand a person over to another state for political prosecution.
It is a bedrock principle of American justice.
This basic principle of American justice is now under assault by
means of this treaty which surely has George Washington, Thomas
Jefferson as well as James and Dolly Madison turning in their graves.
This new treaty marks an unprecedented departure from two centuries of
American extradition practice. Although the new treaty pays lip service
to the political offense exception, it effectively eliminates the
political offense exception for all practical purposes. For example,
the political offense exception is eliminated for any offense allegedly
involving violence or weapons, including any solicitation, conspiracy
or attempt to commit such crimes. As we have seen in Chicago, Florida,
and New York, undercover U.S. government agents infiltrate peaceful
Irish groups, suggest criminal activity, and then falsely claim that
innocent members of those groups agreed with, or initiated, criminal
statements. That is all it takes for solicitation or conspiracy to be
extraditable under this proposed treaty.
In addition, the treaty wipes out a number of constitutional and
procedural safeguards. It eliminates any statue of limitations,
eliminates the need for any showing of probable cause, permits
indefinite preventive Detention, applies retroactively to offenses
allegedly committed before the treaty's ratification, eliminates the
time-honored rule of specialty in all but name, allows for seizure of
assets, and it does not matter if the behavior you are accused of is
perfectly legal under united states law. Under this treaty, the heirs
of George Washington could have their assets seized as proceeds of a
criminal terrorist conspiracy. Even worse yet, all it would take for
any of the people in this room to get extradited under this proposed
treaty is a false allegation from the British government that one of
its spies overheard them say something reckless about weapons or the
armed struggle in Ireland that is now over. This treaty is
unconstitutional under the First Amendment to the United States
Constitution, which Britain does not have.
Most outrageously, responsibility for determining whether a
prosecution is politically motivated is transferred from the U.S.
federal courts to the executive branch of government. This means that
instead of having your day in court, before a neutral. Federal judge,
you will be required to rely on the not so tender mercies of the
department of state, which historically has always been anglophile,
pro-British, anti-Irish, and against Irish Americans and Irish America.
There are now over forty million Irish American citizens, voters, and
tax-payers, and we all especially like to vote. These court-stripping
provisions of the treaty are unconstitutional under article iii of the
United States constitution, which Britain also does not have.
As the current U.S. Irish deportation cases show, Britain can
easily return Irish and British citizens to the United Kingdom. So why
are the British now trying now to shift the extradition decision from
the courts to the executive branch? Because you cannot deport a U .S.
citizen. A U.S. citizen has to be extradited. Article 3 of the proposed
treaty makes it crystal clear that her majesty's government wants to
target Irish American citizens for prosecution in British courts, which
have a long history of perpetrating legal atrocities against innocent
Irish people.
Finally, for reasons fully explained in my 4 March 2004 memorandum
to you, if the senate were to consent to this proposed extradition
treaty, that would effectively abrogate, violate, and set a naught the
most basic human rights of Irish American citizens under the
international covenant on civil and political rights to which the
United States is a contracting party. Furthermore, such senate consent
to this proposed treaty would also place the United States of America
in breach of its solemn treaty obligations under numerous provisions of
that covenant with respect to all the other contracting states parties
as well. Such violations will render the United States subject to the
treaty enforcement mechanisms of that covenant as well as to the other
ordinary enforcement mechanisms, remedies, and sanctions for violating
a solemnly concluded international human rights treaty as well as the
basic principle of customary international law and jus cogens that
pacta sunt servanda.
For all these reasons the Senate Foreign Relations Committee must
reject this treaty outright. There is no way this unconstitutional
treaty can be salvaged by attaching any package of amendments,
reservations, declarations, and understandings. The currently existing
bilateral and multilateral extradition treaty regime between the United
States and the British crown is more than sufficient to secure the
extradition of alleged terrorists. This proposed treaty will only
secure and guarantee the persecution of Irish American citizens, tax-
payers, and voters by the British crown. Thank you.
__________
Statement for the Record Submitted by Timothy H. Edgar, National
Security Policy Counsel, American Civil Liberties Union
On behalf of the American Civil Liberties Union and its more than
400,000 members, we are pleased to submit this statement for the record
of a hearing on important revisions to the legal regime governing
bilateral extradition treaties between the United States and the United
Kingdom (Treaty Doc. 108-23) and between the United States and Israel
(Treaty Doc. 109-3).
We urge you to delay consideration of these treaties in order to
explore more fully the corrosive effect they would have on the role of
the courts in extradition proceedings. The Senate should reject these
treaties so they can be renegotiated to preserve the judiciary's proper
role.
The new U.S.-UK extradition treaty and the proposed protocol
amending the 1962 U.S.-Israel extradition treaty contain alarming
court-stripping provisions, which threaten the fundamental due process
rights of Americans and others accused of crimes by the British and
Israeli governments.
Most troubling, article 4(3) of the proposed U.S.-UK extradition
treaty and the amendments proposed by Article 3 of the protocol to
Article 6(3) of the 1962 U.S.-Israel extradition treaty eliminate the
American judiciary's role in determining whether an extradition request
should be denied on the basis of the political offense exception. Under
the treaties, the Executive Branch is given sole discretion to
determine whether this exception applies.
The political offense exception to extradition has a centuries-old
pedigree that protects Americans and others from political, religious
or other impermissible persecution. The exception ensures that the
United States does not unwittingly become the agent of punishment for a
government's political opponents and dissidents. The exception also
ensures the interests of the United States by safeguarding its
neutrality in the political affairs of other countries. The exception
is a general bar on extradition of alleged offenders who are sought for
protected political activity, regardless of their ideology.
The ACLU agrees that terrorists and others who use violence against
innocent civilians should find no haven in the United States. However,
eliminating judicial review of the political offense exception is not
necessary to ensure the extradition of suspected terrorists. American
and international law provide that those who commit war crimes, crimes
against humanity or who aid or commit terrorist acts against innocent
civilians for political or ideological ends do not enjoy the benefits
of the political offense exception.
The current extradition treaty with the United Kingdom, adopted in
1972, was amended by a Supplemental Treaty, ratified in 1986, that
narrowed the political offense exception. The Supplemental Treaty, as
originally proposed in 1985, would have eliminated any judicial role
for determining whether any offense was a political offense. A
firestorm of criticism greeted that proposal as opening the door to
wholesale harassment of Irish American and other critics of British
government policies, and the Senate refused to ratify it. Instead, a
Supplemental Treaty was negotiated that excluded serious violent crimes
from the political offense exception while ensuring judicial review to
allow consideration of whether the accused would receive a fair trial
in the United Kingdom.
The Senate Foreign Relations Committee described the 1986
Supplement Treaty as a successful ``effort to balance anti-terrorism
concerns and the right of due process for individuals.'' \1\ Senator
Biden explained, in a colloquy with Senators Kerry and Lugar that was
adopted in the report accompanying the treaty, that the Senate intended
the Supplemental Treaty to allow for broader judicial review:
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\1\ In re Smyth, 61 F.3d 711 (9th Cir. 1995) (quoting S. Exec. Rep.
No. 17, 99th Cong., 2d Sess., 3 (1986)).
[T]he defendant will have an opportunity in Federal court to
introduce evidence that he or she would personally, because of
their race, religion, nationality or political opinion, not be
able to get a fair trial because of the court system or any
other aspect of the judicial system in a requesting country, or
that the person's extradition has been requested with a view to
try or punish them on account of their race, their religion,
nationality or political opinion. \2\
---------------------------------------------------------------------------
\2\ Id. (quoting S. Exec. Rept. No. 17 at 4-5).
The new U.S.-UK treaty would undo this compromise by eliminating
this review. If the new treaty were ratified, an American who opposed
British policy--for example, an investigative journalist who wrote of
police abuses in Northern Ireland for an Irish American newspaper--
could face arrest and extradition without having any ability to
challenge, in an American court, whether the criminal charges are
really a pretext for the punishment on account of race, religion,
nationality or political opinion.
While both treaties preserve the courts' role in reviewing whether
there is probable cause that the accused committed the crime, the
``probable cause'' standard is a low one and depends on information
supplied by the foreign government. Such information may be difficult
for the accused to rebut. For an extradition hearing to be meaningful,
the accused must also be able to submit information about the improper
political motivation of the extradition request, and an American judge
must be free to consider such evidence.
Preservation of the political offense exception is an important
bulwark for freedom in the world. Since the time of Thomas Jefferson,
the United States has refused extradition requests for political
offenses. Indeed, in the Declaration of Independence, the colonists
accused King George of ``transporting us beyond Seas to be tried for
pretended offences.'' That principle applies with equal force today, no
less than in 1776. No one in America should be sent to face trial in
any foreign country without meaningful judicial review of all aspects
relevant to extradition.
Both treaties contain other deeply troubling provisions. These
include provisions which eliminate the statute of limitations as a
defense to extradition (article 6 of the U.S.-UK treaty), allow for
``provisional arrests'' for as long as sixty days with no formal
extradition request providing supporting details (article 12 of the
U.S.-UK treaty; also article 7 of the Protocol amending article 9 of
the 1962 U.S.-Israel treaty), and which allow for the treaty to be
applied retroactively (article 22 of the U.S.-UK treaty; also article
11 of the Protocol).
Attorney General Ashcroft announced at the signing ceremony for the
new U.S.-UK treaty ``should serve as a model to the world'' and could
lead to revising other extradition treaties. \3\ As a result, Senate
approval of these treaties, especially without thorough review and
hearings, could encourage the Administration to pursue treaties with
other nations that diminish due process and meaningful judicial review.
---------------------------------------------------------------------------
\3\ Attorney General Ashcroft's remarks at the signing ceremony are
available at: http://www.usdoj.gov.
---------------------------------------------------------------------------
Without a meaningful political offense exception as a part of our
extradition laws, the United States could well lose its place as a
haven for the persecuted. In the early days of the Cuban revolution--
before the United States broke off diplomatic relations with Fidel
Castro--the political offense exception pre-vented the return of Cuban
dissidents to face criminal charges by the Castro regime. \4\ The
political offense exception also sheltered a Greek public official from
being sent back to face corruption allegations that resulted from his
opposition to the takeover of his town by a Communist party government.
\5\
---------------------------------------------------------------------------
\4\ Ramos v. Diaz, 179 F. Supp. 459 (S.D. Fl. 1959).
\5\ In re Mylonas, 187 F. Supp. 716 (N.D. Ala. 1960).
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The Senate should stand in favor of meaningful judicial review of
political offenses, and should reject these new extradition treaties so
they may be renegotiated to protect the role of the courts.
__________
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