[Senate Treaty Document 114-4]
[From the U.S. Government Publishing Office]
114th Congress } { Treaty Doc.
SENATE
1st Session } { 114-4
______________________________________________________________________
TREATY WITH JORDAN ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF THE HASHEMITE KINGDOM OF JORDAN ON MUTUAL LEGAL
ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON OCTOBER 1, 2013
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 8, 2015.--Treaty was read the first time, and together with
the accompanying papers, referred to the Committee on Foreign Relations
and ordered to be printed for the use of the Senate
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U.S. GOVERNMENT PUBLISHING OFFICE
59-118 WASHINGTON : 2015
LETTER OF TRANSMITTAL
----------
The White House, December 8, 2015.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification, I transmit herewith the Treaty between
the Government of the United States of America and the
Government of the Hashemite Kingdom of Jordan on Mutual Legal
Assistance in Criminal Matters, signed at Washington on October
1, 2013. I also transmit, for the information of the Senate,
the report of the Department of State with respect to the
Treaty.
The Treaty is one of a series of modern mutual legal
assistance treaties negotiated by the United States to more
effectively counter criminal activities. The Treaty should
enhance our ability to investigate and prosecute a wide variety
of crimes.
The Treaty provides for a broad range of cooperation in
criminal matters. Under the Treaty, the Parties agree to assist
each other by, among other things: producing evidence (such as
testimony, documents, or items) obtained voluntarily or, where
necessary, by compulsion; arranging for persons, including
persons in custody, to travel to another country to provide
evidence; serving documents; executing searches and seizures;
locating and identifying persons or items; and freezing and
forfeiting assets or property that may be the proceeds or
instrumentalities of crime.
I recommend that the Senate give early and favorable
consideration to the Treaty, and give its advice and consent to
ratification.
Barack Obama.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, August 31, 2015.
The President,
The White House.
The President: I have the honor to submit to you the Treaty
between the Government of the United States of America and the
Government of the Hashemite Kingdom of Jordan on Mutual Legal
Assistance in Criminal Matters, signed at Washington on October
1, 2013. I recommend the Treaty be transmitted to the Senate
for its advice and consent to ratification.
The Treaty covers mutual legal assistance in criminal
matters. In recent years, the United States has entered into
similar bilateral treaties with a number of countries. The
Treaty contains all of the essential provisions of such
treaties sought by the United States. It will enhance our
ability to investigate and prosecute a wide variety of
offenses. The Treaty is self-executing and will not require
further implementing legislation.
An overview of the Treaty, including a detailed, article-
by-article analysis, is enclosed with this report. The
Department of Justice joins the Department of State in favoring
approval of this Treaty by the Senate at the earliest possible
date.
Respectfully submitted,
John F. Kerry.
Enclosures: As stated.
U.S.-Jordan Mutual Legal Assistance Treaty
Overview
The Treaty between the Government of the United States of
America and the Government of the Hashemite Kingdom of Jordan
on Mutual Legal Assistance in Criminal Matters (the ``Treaty'')
creates for the first time a treaty-based relationship of
mutual legal assistance between the United States and Jordan.
The Treaty covers mutual legal assistance in criminal matters
and contains many provisions similar to those in other treaties
of its kind and all of the essential provisions sought by the
United States.
The following is an article-by-article description of the
provisions of the Treaty. Article 1 sets out the scope of
assistance available under the Treaty. Article 1(1) creates an
international obligation on each Party to provide mutual legal
assistance to the other Party in connection with the
investigation, prosecution, and prevention of offenses and in
proceedings related to criminal matters. This ensures that the
Parties can afford each other legal assistance in a broad range
of criminal matters, from violent crimes to fraud, from tax
matters to racketeering, from computer crime to environmental
crime, and so on. Assistance may also be sought for proceedings
related to criminal matters, such as civil forfeiture
proceedings, and for investigations and proceedings by
authorities involved in implementing governmental regulations
relating to violations that may be referred for criminal
prosecution under the laws of the Requesting Party. Thus, where
the conditions of the Treaty are otherwise met, assistance
would be available, for example, for proceedings of the
Securities and Exchange Commission when those proceedings are
incidental to, or connected with pending criminal
investigations or prosecutions, or may be referred for criminal
prosecution. Article 1(2) contains a non-exhaustive list of the
major types of assistance to be provided under the Treaty,
including producing evidence (such as testimony, documents, or
items) obtained voluntarily or, where necessary, by compulsion;
arranging for persons, including persons in custody, to travel
to another country to provide evidence; serving documents;
executing searches and seizures; locating and identifying
persons or items; and identifying, tracing, freezing, seizing
and forfeiting assets or property that may be the proceeds or
instrumentalities of crime. Each of these types of assistance
is described in detail in subsequent articles in the Treaty.
The Treaty also authorizes provision of any other
assistance not prohibited by the laws of the Party receiving
the request (referred to in the Treaty, as in other such
treaties, as the ``Requested Party,'' while the Party making
the request is the ``Requesting Party''). As long as there is
no specific legal restriction under the laws of the Requested
Party barring the type of assistance requested, it may be
provided pursuant to the Treaty.
Consistent with most U.S. mutual legal assistance treaties
(MLATs), Article 1(3) provides that, with the exception of
where it is specifically required by the laws of the Requested
Party, ``dual criminality'' is not a prerequisite for
assistance under the Treaty. Thus, unless otherwise provided
under the laws of the Requested Party, assistance shall be
provided without regard to whether the conduct at issue would
constitute an offense under the laws of the Requested Party.
The Treaty does require ``dual criminality'' in certain
circumstances. For example, under Article 14, a Requested Party
is obligated to execute a search and seizure request if the
request includes sufficient information justifying such action
under its law and the offense at issue would also constitute an
offense under its law.
Article 1(4), a standard provision in U.S. MLATs, provides
that the Treaty is intended solely for government-to-government
mutual legal assistance. The Treaty is not intended to provide
to persons other than the Parties a means of evidence
gathering, nor is it intended to extend generally to civil
matters. Private persons in the United States may continue to
obtain evidence from Jordan by letters rogatory, an avenue of
international assistance that the Treaty leaves undisturbed.
Similarly, the paragraph provides that the Treaty is not
intended to create any right in any private person to suppress
or exclude evidence provided pursuant to the Treaty, or to
impede the execution of a request.
Article 2 requires that each Party designate a ``Central
Authority'' to make and receive Treaty requests. The Central
Authority of the United States would make all requests to
Jordan on behalf of federal and state agencies and local law
enforcement authorities in the United States. The Central
Authority of Jordan would make all requests emanating from
similar officials in Jordan. The Central Authorities are,
pursuant to Article 2(3), to communicate directly with one
another.
For the United States, the Central Authority is the
Attorney General or a person designated by the Attorney
General. For Jordan, the Central Authority is the Minister of
Justice or a person designated by the Minister of Justice. In
the United States, the authority to handle the duties of the
Central Authority under MLATs has been delegated to the Office
of International Affairs in the Criminal Division of the
Department of Justice.
The Central Authority of the Requesting Party exercises
discretion, consistent with the provisions of the Treaty, as to
the form of requests, as well as the number and priority of
requests. The Central Authority of the Requested Party is
responsible for receiving and evaluating each incoming request;
transmitting it to the proper agency, court, or other authority
for execution; and providing a timely response.
Article 3 sets forth the circumstances under which the
Requested Party's Central Authority may deny assistance under
the Treaty. Refusal under this Article is discretionary with
the Central Authority of the Requested Party. Several of the
grounds for refusal are common to most U.S. MLATs. For example,
a request may be denied if it relates to a military offense, if
it does not conform to the requirements of the Treaty, or if
its execution would prejudice the ``security, sovereign or
other essential interests of the Requested Party.'' During the
negotiations, the Parties agreed that the essential interest
clause would allow a Party to deny a request for assistance in
connection with a political offense. In keeping with the
overall intent of the Treaty to facilitate assistance, the
Parties also included in Article 3 a provision designed to
limit the use of grounds for refusal. Under Article 3(2), a
Central Authority, before refusing assistance under Article
3(1), is to consult with its counterpart in the Requesting
Party to consider whether assistance can be given subject to
such conditions as the Central Authority of the Requested Party
deems necessary. If the Requesting Party accepts assistance
subject to these conditions, it is required to comply with
them.
Article 3(3) gives the Requested Party discretion to deny a
request if the offense is punishable by less than one year of
imprisonment under the law of the Requesting Party or the crime
is financial in nature but does not involve a significant
financial loss, and the Requested Party determines that the
resources required to execute the request are not justified in
light of the nature of the offense. This treaty is one of the
first MLATs the United States has negotiated that includes such
a de minimis clause. The inclusion of such clauses has become a
priority for the United States in order to avoid the obligation
to execute large numbers of MLAT requests relating to minor
crimes, which can create significant burdens on the resources
of the Department of Justice.
In addition, if the Central Authority of the Requested
Party refuses assistance, it is required under Article 3(4) to
inform the Central Authority of the Requesting Party of the
reasons for the refusal.
Article 4 prescribes the form and contents of requests
under the Treaty, specifying in detail the information required
in each request. It also permits the Central Authority of the
Requested Party to request additional information, if necessary
to execute the request
Article 5 concerns the execution of requests. Article 5(1)
includes three important concepts: the obligation of the
Central Authority of the Requested Party to execute requests
promptly (or to refer them to the competent authorities who
have jurisdiction to execute the requests); the requirement
that competent authorities do ``everything in their power'' to
execute requests; and the granting of authority to courts, or,
as provided by the law of the Requested Party, the
investigative authorities, in the territory of the Requested
Party to issue subpoenas, search warrants, or other orders
necessary to execute requests. Article 5(2) builds on this by
requiring the Requested Party to make all necessary
arrangements to represent the Requesting Party in any
proceedings arising out of a request for assistance. It is
understood that such proceedings may include proceedings before
a judicial authority or administrative agency. Taken together,
these provisions reflect an understanding that the Parties
intend to provide each other with a wide measure of assistance
from judicial and executive branches of government in the
execution of mutual legal assistance requests. These provisions
also specifically authorize United States courts to use all of
their powers to issue whatever process is necessary to satisfy
a request under the Treaty, whether the authority for such
process comes from the Treaty itself or from existing statutes.
Article 5(3) specifies that requests are to be executed in
accordance with the laws of the Requested Party unless the
Treaty provides otherwise. The requests themselves may specify
a particular procedure to be followed, and such specified
procedure is to be followed unless prohibited by the law of the
Requested Party. Following the procedure specified can be
important to ensure evidence collected in one State satisfies
the requirements for admissibility at trial in the other. It is
understood that if neither the Treaty nor the request specifies
procedures to be followed, the Requested Party is to execute
the request in accordance with its domestic criminal procedure
laws. The intent of this provision, like similar provisions in
other U.S.MLATs, is to allow the Requested Party to use its
established procedures for obtaining evidence where procedures
are not otherwise specified, so long as those procedures do not
undermine the obligation in the Treaty to provide assistance.
Article 5(4) allows the Central Authority of the Requested
Party to postpone the execution of a request, or make execution
subject to specified terms, if it determines that execution of
the request would interfere with an ongoing criminal
investigation, prosecution or proceeding in that state. If the
Requesting Party accepts assistance subject to terms, it must
comply with such terms.
Confidentiality of requests is addressed in Article 5(5).
The Requesting Party may ask that the request, its contents,
and the outcome of the execution of the request be kept
confidential. The Requested Party must use its best efforts to
comply with such a request, but if assistance cannot be granted
without breaching the confidentiality requirements, the
decision whether to proceed is left to the Requesting Party.
The remaining provisions in Article 5 address some of the
types of communications between Central Authorities essential
to a good working mutual legal assistance relationship. For
example, Central Authorities must respond to requests for
progress reports, and inform each other of the outcome of
execution of requests, including any reasons for refusal of a
request.
Article 6 addresses the costs associated with providing
assistance. As is standard in U.S. MLATs, Article 6 provides
that the Requested Party must pay all costs relating to the
execution of a request, including representation costs, except
for the following items to be paid by the Requesting Party:
fees of expert witnesses; costs of translation, interpretation
and transcription; and allowances and expenses related to
travel of persons pursuant to Articles 10 and 11 (relating to
travel for the purpose of providing assistance and transfer of
persons in custody). The article also provides that, in the
event that fulfilling a request would require extraordinary
expenses, the Central Authorities will consult order to
determine how those costs shall be borne.
Article 7 addresses limitations on use of information and
evidence provided under the Treaty. Under Article 7(1), the
Central Authority of the Requested Party may request that
information or evidence produced in response to a request under
the Treaty not be used for any investigation, prosecution or
proceeding other than that described in the request without the
consent of the Central Authority of the Requested Party. In
such cases, the Requesting Party must comply with the request
for limitations on use.
Under Article 7(2), the Central Authority of the Requested
Party may also request that the information or evidence
produced under the Treaty be kept confidential or be used
subject to specified terms. If the Requesting Party accepts the
requested terms, it must use its best efforts to comply with
those terms. The default rule, however, is that such
information or evidence is not confidential, and Article 7(4)
also provides that once such information or evidence has been
made public in the territory of Requesting Party in accordance
with Article 7(1) and (2), it may be used for any purpose.
Moreover, the Treaty explicitly permits the disclosure of
information or evidence to the extent that there is an
obligation to disclose it under the Constitution of the
Requesting Party in a criminal proceeding. This contingency,
found in Article 7(3), was included to ensure that the United
States would be able to satisfy any obligations to disclose
information under its Constitution, such as those set forth in
Brady v. Maryland, 373 U.S. 83 (1963).
As with other provisions of the Treaty, the confidentiality
protections and use limitation provisions of Article 7 are for
the benefit of the two governments that are Parties to the
Treaty, and invocation and enforcement of these provisions is
entirely a matter for the Parties.
Article 8 is the first of a series of articles that spell
out in detail the procedures to be employed in the case of
specific types of requests for assistance outlined in Article
1(2). Article 8 addresses production of evidence, whether it is
a statement or testimony, documents, records, or particular
items. A person from whom evidence is sought under the Treaty
may appear voluntarily to provide such evidence, or, if
necessary, the Treaty authorizes the Parties to compel
production of evidence. This compulsion may be accomplished by
subpoena or any other means available under the laws of the
Requested Party (see Article 5(3)).
Article 8(2) calls on the Requested Party, upon request, to
inform the Requesting Party in advance of the date, time, and
place of the taking of testimony or evidence. In addition,
Article 8(2) requires the Requested Party to permit persons
specified in the request to be present during execution of the
request and to allow such persons either to question the person
giving testimony or evidence, or to pose questions to the
competent authority, which then asks them of the person giving
testimony or evidence. As the Jordanian negotiators explained,
under Jordanian law, representatives of the U.S. Government
would likely not be permitted to question a witness directly
but would have to use the second option provided for by this
Article and present such questions to the Jordanian competent
authority, which would then pose them to the witness.
Article 8(3) provides that if a person from whom the
request seeks testimony or evidence asserts a right to decline
to provide such evidence by claiming an immunity, incapacity or
privilege under the laws of the Requesting Party, the evidence
shall nonetheless be taken and the claim made known to
authorities of the Requesting State so that they may resolve
it. The Treaty does not specifically address the resolution of
claims of privilege under the Requested Party's law, but by
implication those are to be resolved by that state's
authorities. This formulation allows each Party to resolve
claims of privilege made under its own laws.
Article 8(4) contains the first of several provisions in
the Treaty addressing the authentication of evidence produced
pursuant to the Treaty. Similar provisions are found at
Articles 9(3) and 14(2). Evidence produced under the Treaty may
be authenticated by an attestation including, with respect to
business records, official records, or evidence that has been
seized pursuant to the Treaty, by use of one of the forms
appended to the Treaty. The appended forms are an integral part
of the Treaty. The Treaty provides that evidence produced and
authenticated according to the procedure set forth in the
Treaty shall be admissible in evidence in the tenitory, of the
Requesting Party.
Article 9 addresses provision of documents or other records
in the possession of government agencies. The Parties are
obligated to provide to each other copies of publicly available
records in any form in the possession of governmental
departments and entities upon request. The Treaty authorizes
the Requested Party, in its discretion, to provide to the
Requesting Party any records that are not publicly available to
the same extent, and under the same conditions, as they would
be available to the Requested Party's own law enforcement or
judicial authorities.
The Treaty will constitute a ``convention relating to the
exchange of tax information'' for purposes of Title 26, United
States Code, Section 6103(k)(4), and the United States would
have the discretion to provide tax return information to Jordan
under this article in appropriate cases.
Article 10 provides a mechanism for the Requesting Party to
ask for the voluntary attendance in its territory, or in the
territory of a third state, of a person located in the
territory of the Requested Party for the purpose of assistance
under the Treaty, such as to serve as a witness or expert in
proceedings or to assist in an investigation. The Requesting
Party must indicate the extent to which the person's expenses
will be paid. The Requested Party is required to inform the
person of the request for the person's appearance and notify
the Requesting Party of the person's response.
When persons agree to travel to appear in the territory of
the Requesting Party, Article 10(2) provides that the
Requesting Party may grant such persons safe conduct, thus
ensuring that the person appearing in the territory of the
Requesting Party will not be subject to service of process or
be detained or subjected to any restriction on personal liberty
for acts or convictions that preceded the person's departure
from the territory of the Requested Party. The grant of safe
conduct pursuant to this provision applies only to past
offenses and would not prevent the Requesting Party from
prosecuting the person for perjury or any other crime committed
while present, pursuant to Article 10, in the territory of the
Requesting Party. Under Article 10(3), any safe conduct so
provided would cease fifteen days after the Central Authority
of the Requested Party is notified that the person's presence
is no longer required, or when the person has left the
territory of the Requesting Party and voluntarily returns. In
its discretion, the Central Authority of the Requesting Party
may, for good cause, extend the period of safe conduct for up
to seven additional days.
Article 11 provides a similar mechanism for persons in
custody. A need sometimes arises for the testimony in one
country of a person who is incarcerated in another country. For
example, a witness incarcerated in one country--whether the
Requesting or Requested Party--may have to give testimony in
the presence of an incarcerated defendant in the other country.
Attendance of the detained person is still voluntary, but is
also subject to the agreement of the Central Authorities. In
addition, the Treaty imposes certain conditions on such
transfers: the person must be held in custody by the receiving
Party, unless otherwise authorized by the sending Party; the
receiving Party must return the person in custody to the
territory of the sending Party as soon as circumstances permit
or as otherwise agreed; the return of the person shall not
require extradition proceedings; the period that the person is
in custody in the territory of the receiving Party shall be
credited against the person's sentence in the sending Party;
and the safe conduct protections provided for by Article 10(2)
and (3) apply to persons transferred pursuant to Article 11.
Article 12 provides for determining the whereabouts or
identity in the territory of the Requested Party of persons
(such as witnesses, potential defendants, or experts) or items
when such information is requested. The Treaty requires only
that the Requested Party use its best efforts to ascertain the
location or identity of the persons or items sought. The extent
of such efforts will vary, of course, depending on the quality
and extent of the information provided by the Requesting Party
concerning the suspected or last known location.
Article 13 relates to service of documents. It creates an
obligation on the Parties to use their best efforts to serve
documents relating to a request for assistance, such as
summonses, complaints, subpoenas, or notices. Under Article
13(2), when the document pertains to an appearance in the
territory of the Requesting Party, the request for service of
the document must be transmitted a reasonable time before the
scheduled appearance. The Parties chose not to set a fixed
period of time for this obligation, as circumstances may vary.
Article 13(3) requires the Requested Party to return proof of
service in the manner specified in the request. If service
cannot be effectuated, the Requested Party must inform the
Requesting Party promptly of the reasons for not effecting
service.
Article 14 obligates the Requested Party to execute a
request for the search, seizure, and delivery of any item to
the Requesting Party if the request includes the information
justifying such action under the laws of the Requested Party
and the offense at issue would also constitute an offense under
the law of the Requested Party. For requests from Jordan to the
United States, this means that a request would have to be
supported by a showing of probable cause for the search. The
Requested Party may require that the Requesting Party agree to
terms deemed necessary to protect interests of third parties,
such as victims and legitimate owners.
Article 15 allows the Requested Party to require that the
Requesting Party return any items provided to it in execution
of a request under the Treaty.
Assistance in forfeiture proceedings is the subject of
Article 16. The types of actions that could be undertaken under
this Article include actions to restrain, seize, and forfeit
property. The Article applies both to conviction-based
forfeiture proceedings and to non-conviction based forfeitures
proceedings premised on criminal conduct regardless of whether
the offender is prosecuted for that conduct. Article 16(2)
provides a non-exhaustive list of the types of assistance that
a Party is required to provide pursuant to this Article.
Article 16(3) requires the Requested Party to consult with
the Requesting Party before disposing of property frozen,
restrained, seized, or forfeited pursuant to Article 16.
Article 16(4) permits the Party in control of the property to
transfer all or part of it to the other Party or, after
consultation between the Parties, to any other State that
assisted in forfeiture of property in a manner proportionate to
the other Party's or other State's assistance. United States
law permits the government to transfer a share of certain
forfeited property to other countries that participate directly
or indirectly in the seizure or forfeiture of the property
when, among other requirements, such transfer is authorized by
an international agreement. This Article provides such
authorization for asset sharing with Jordan or another country.
Article 16(4) also provides that, where appropriate and upon
request, priority should be given to returning property to the
Requesting Party so that victims of an offense may be
compensated or the property may be returned to its legitimate
owners. Article 16(5) requires the Parties to assist each
other, to the extent permitted by their respective domestic
laws, in proceedings relating to restitution to victims of
crime. Article 16(6) gives the Parties discretion to deny
assistance requested pursuant to Article 16 if the value of the
property in question does not substantially exceed the
resources that would be expended in providing the assistance.
Article 17 states that this Treaty is not intended to be
the sole mechanism for the Parties to provide assistance to
each other and thus shall not prevent the Parties from
providing assistance to each other through the provisions of
other agreements, arrangements, or practices that may be
applicable, or through the provisions of their national laws.
Thus, for example, the Treaty would leave the provisions of
U.S. and Jordanian law on letters rogatory completely
undisturbed, and would not alter any practices or arrangements
concerning investigative assistance or prohibit the Parties
from developing other such practices or arrangements. Article
17(2) makes clear that no request for assistance is necessary
when a Party wishes spontaneously to share information or
evidence with the other Party.
The final clauses are contained in Article 18. The Treaty
is subject to ratification by each Party according to
procedures required by its Constitution. For the United States,
this means ratification after the advice and consent of the
Senate. The Treaty will enter into force upon the exchange of
instruments of ratification. Article 18 also provides
procedures for termination of the Treaty.
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