[Senate Hearing 105-730]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 105-730


 
  EXTRADITION, MUTUAL LEGAL ASSISTANCE, AND PRISONER TRANSFER TREATIES

=======================================================================

                                HEARING

                               BEFORE THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 15, 1998

                               __________

       Printed for the use of the Committee on Foreign Relations


 Available via the World Wide Web: http://www.access.gpo.gov/congress/senate



                      U.S. GOVERNMENT PRINTING OFFICE
 51-624 cc                   WASHINGTON : 1998
_______________________________________________________________________
           For sale by the U.S. Government Printing Office, 
 Superintendent of Documents, Congressional Sales Office, Washington, DC 20402


                     COMMITTEE ON FOREIGN RELATIONS

                 JESSE HELMS, North Carolina, Chairman
RICHARD G. LUGAR, Indiana            JOSEPH R. BIDEN, Jr., Delaware
PAUL COVERDELL, Georgia              PAUL S. SARBANES, Maryland
CHUCK HAGEL, Nebraska                CHRISTOPHER J. DODD, Connecticut
GORDON H. SMITH, Oregon              JOHN F. KERRY, Massachusetts
CRAIG THOMAS, Wyoming                CHARLES S. ROBB, Virginia
ROD GRAMS, Minnesota                 RUSSELL D. FEINGOLD, Wisconsin
JOHN ASHCROFT, Missouri              DIANNE FEINSTEIN, California
BILL FRIST, Tennessee                PAUL D. WELLSTONE, Minnesota
SAM BROWNBACK, Kansas
                     James W. Nance, Staff Director
                 Edwin K. Hall, Minority Staff Director

                                  (ii)



                            C O N T E N T S

                              ----------                              
                                                                   Page

Borek, Jamison S., Deputy Legal Adviser, Department of State.....     3
Richard, Mark M., Deputy Assistant Attorney General, Criminal 
  Division, Department of Justice................................     7

                                Appendix

Letter from Mark M. Richard, Deputy Assistant Attorney General, 
  Criminal Division, Department of Justice.......................    27
Responses of the Department of State to questions asked by 
  Senator Helms..................................................    29
Responses of the Department of State to questions asked by 
  Senator Biden..................................................    35

                                 (iii)



  EXTRADITION, MUTUAL LEGAL ASSISTANCE, AND PRISONER TRANSFER TREATIES

                              ----------                              


                      TUESDAY, SEPTEMBER 15, 1998

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:06 a.m. in 
room SD-419, Dirksen Senate Office Building, Hon. Rod Grams 
presiding.
    Senator Grams. Well, good morning. I am a little late, but 
I would like to get our hearing under way this morning to 
consider law enforcement treaties. I want to welcome Ms. Borek 
and also Mr. Richard here this morning. I look forward to your 
answers to our questions and also to your statement. But before 
that I just have a brief opening statement as well. So again, 
thank you for being here this morning.
    A record 30 law enforcement treaties are being considered 
by this committee today: 13 extradition treaties, 16 mutual 
legal assistance treaties, and 1 prisoner transfer treaty. All 
of these treaties are designed to further law enforcement 
interests and generally enjoy bipartisan support.
    The United States is party to more than 100 bilateral 
extradition treaties and, of the 13 extradition treaties, only 
the treaty with Zimbabwe represents a new treaty relationship. 
Treaties with the Caribbean countries, India, and Cyprus 
replace a 1931 treaty with the United Kingdom which continued 
to apply to these countries even after their independence. The 
other treaties modernize older treaties to ensure that all 
criminal acts punishable in both countries by 1 year in prison 
are covered by the treaties.
    Extradition relationships have long been a basis of 
bilateral relationships and represents a recognition by the 
United States of the legitimacy of a country's judicial system. 
Respect for a treaty partner's judicial system is essential 
since the treaties permit the transfer of individuals to 
another country in order to stand trial for alleged crimes. The 
treaty with Zimbabwe therefore signals a very important 
advancement in the U.S. relationship with that country.
    The treaties serve to create a web of relationships that 
make it increasingly difficult for criminals to find a safe 
haven from criminal prosecution.
    While opportunities are created by the increasing 
globalization, this openness can have detrimental effects as 
well, most notably the easy mobility of criminals, whether by 
physical travel or electronic connections via the WorldWide 
Web. Extradition of criminals becomes increasingly important to 
ensure that these wrongdoers are brought to justice.
    Now, since September 1997 185 persons were extradited to 
the United States for prosecution for crimes committed in the 
United States and the United States extradited 73 individuals 
to other countries for prosecution.
    A number of mutual legal assistance treaties are also being 
considered today, many of which are with the Eastern European 
and Caribbean countries, where fighting organized crime, drug 
trafficking, and money-laundering activities are high 
priorities for the United States. MLAT's provide for the 
sharing of information and evidence related to criminal 
investigations and prosecutions.
    The need to obtain the cooperation of foreign authorities 
is frequently critical to effective criminal prosecution. 
MLAT's enable U.S. prosecutors to obtain material and 
statements from treaty partners in a form that comports with 
U.S. legal standards.
    Finally, today the committee is looking at a prisoner 
transfer treaty between the United States and Hong Kong. That 
treaty facilitates the exchange of administrative 
responsibilities for final jail sentences and enables prisoners 
to serve their sentences in their home countries. This is 
designed to permit prisoners to be located closer to family and 
friends so that they may more easily visit with them.
    In the case of the Hong Kong agreement, the committee will 
need to be assured that this transfer of prisoners will be 
limited to Hong Kong and not the People's Republic of China.
    There is no question that these are important treaties. I 
believe they provide the framework for the sharing of 
information and transfer of criminals worldwide. It is 
essential, therefore, that in the wake of the Rome Treaty 
adopted by more than 100 countries in July to create a 
permanent international criminal court that the Senate clarify 
the relationship of these treaties with such a court.
    I am concerned that these treaties could be used to 
facilitate both the transfer of suspects, witnesses and other 
information to that misconceived court. At a hearing before the 
International Operations Subcommittee last month, both Chairman 
Helms and I made clear that the United States must isolate this 
court and ensure that no assistance is given it. The approval 
of these treaties must be contingent on an understanding that 
no persons will be extradited to the international criminal 
court and that no legal assistance will be given to the court.
    Last this morning, I would like to note that Attorney 
General Janet Reno is personally interested in these treaties 
and this committee will continue to work with her on important 
law enforcement issues as well. In fact, she is committed to 
appear before this committee on October the 1st to testify 
regarding the increasing law enforcement problem of 
international parental kidnapping.
    Today, however, the committee will hear first from Jamison 
S. Borek--am I pronouncing that correctly--the Deputy Legal 
Adviser for the Department of State, followed by Mark M. 
Richard, the Deputy Assistant Attorney General for criminal 
matters. I want to welcome you both here this morning and you 
may begin your testimony. Ms. Borek, we will begin with you. 
Thank you again.

STATEMENT OF JAMISON S. BOREK, DEPUTY LEGAL ADVISER, DEPARTMENT 
                            OF STATE

    Ms. Borek. Thank you, Mr. Chairman, I am pleased to appear 
before you today and I thank you and the other members of the 
committee and staff for holding this hearing to consider a 
number of very important international law enforcement 
cooperation treaties. As you have noted, these treaties fall 
into three categories.
    We have a number of extradition treaties, with Antigua and 
Barbuda, Argentina, Austria, Barbados, Cyprus, Dominica, 
France, Grenada, India, Luxembourg, Mexico, Poland, Spain, St. 
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, 
Trinidad and Tobago, and Zimbabwe. With the exception of 
Zimbabwe, as you have noted, these treaties seek to bring up to 
date and make much more effective and usable a number of 
treaties that date back even to the late 1800's in some cases.
    We have in addition mutual legal assistance treaties with 
Antigua and Barbuda, Australia, Barbados, Brazil, Czech 
Republic, Dominica, Estonia, Grenada, Hong Kong, Israel, 
Latvia, Lithuania, Luxembourg, Poland, St. Kitts and Nevis, St. 
Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and 
Venezuela.
    Unlike the extradition treaties, which go back almost 100 
years, the mutual legal assistance treaty program is relatively 
new and has been started only in the last decades. We have 
found this a very important component, with the growth of 
international organized crime and transnational crime, to 
assist in the investigation of crimes and ultimately in their 
prosecution.
    In addition, we have a prisoner transfer treaty with Hong 
Kong, which is necessary given the reversion of Hong Kong to 
Chinese sovereignty and the lack of continued applicability of 
the multilateral convention, the Council of Europe Convention 
on the Transfer of Sentenced Persons.
    Mr. Chairman, you have covered many of the essential points 
in your opening statement. The negotiation of these new 
treaties is important given the increasing threat of 
transnational crime and international organized crime, 
particularly in priority areas such as terrorism, organized 
crimes, arms, and drug trafficking. We have been seeking to 
improve these treaty tools in countries where there are 
particular threats, not necessarily because of domestic crime 
issues, but sometimes because they are transit points or 
important money-laundering centers. We are also attempting to 
extend agreements to what were formerly Eastern European 
countries with whom we did not have law enforcement relations, 
but in light of the new realities in these countries it is an 
appropriate time to do so.
    We are also seeking to extend and strengthen our 
relationships in the Asian areas as this is a new focus of 
activity, and also in other selected areas where there are 
particular problems.
    With your permission, Mr. Chairman, I will not read my 
entire statement, but ask that it be accepted and printed in 
the record.
    Senator Grams. Without objection.
    Ms. Borek. Thank you.
    [The prepared statement of Ms. Borek follows:]
                 Prepared Statement of Jamison S. Borek
    Mr. Chairman and members of the Committee: I am pleased to appear 
before you today to testify in support of 38 treaties for international 
law enforcement cooperation. The treaties, which have been transmitted 
to the Senate for advice and consent to ratification, fall into three 
categories:

   extradition treaties with Antigua and Barbuda, Argentina, 
        Austria, Barbados, Cyprus, Dominica, France, Grenada, India, 
        Luxembourg, Mexico, Poland, Spain, St. Kitts and Nevis, St. 
        Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and 
        Zimbabwe.
   mutual legal assistance treaties--or ``MLATs''--with Antigua 
        and Barbuda, Australia, Barbados, Brazil, Czech Republic, 
        Dominica, Estonia Grenada, Hong Kong, Israel, Latvia, 
        Lithuania, Luxembourg, Poland, St. Kitts and Nevis, St. Lucia, 
        St. Vincent and the Grenadines, Trinidad and Tobago, and 
        Venezuela.
   a prisoner transfer treaty with Hong Kong.

    The Department of State greatly appreciates this opportunity to 
move toward ratification of these important 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.
    The negotiation of new extradition and mutual legal assistance 
treaties are one important part of the President's comprehensive 
International Crime Control Strategy, which was announced last May. 
That Strategy recognizes the increasing threat of international crimes 
such as terrorism, organized crime and arms and drug trafficking. One 
important measure to better address this threat is to enhance the 
ability of U.S. Law enforcement officials to cooperate effectively with 
their overseas counterparts in investigating and prosecuting 
international crime cases. One of the Strategy's eight goals is to deny 
safe haven to international criminals--and the negotiation of new 
extradition and mutual legal assistance treaties is one of the 
objectives necessary to reaching that goal. Replacing outdated 
extradition treaties with modern ones and negotiating extradition 
treaties with new treaty partners is necessary to create a seamless web 
for the prompt location, arrest and extradition of international 
fugitives. The Strategy also underscores that mutual legal assistance 
treaties are vitally needed to provide rapid, mutual access to 
witnesses, records and other evidence in a form admissible in criminal 
prosecutions. The instruments before you today will be important tools 
in achieving this goal.

                          Extradition Treaties

    I will first address the extradition treaties currently before the 
Committee. As you know, under U.S. law, fugitives can only be 
extradited from the United States pursuant to authorization granted by 
statute or treaty. The treaties pending before the Committee will 
create new or updated treaty relationships with many important law 
enforcement partners.
    There are sixteen comprehensive extradition treaties before the 
Committee. Fifteen of these treaties update outdated extradition treaty 
relationships in order to ensure their effectiveness. These are part of 
the Administration's ongoing program to review and revise older treaty 
relationships, many of which are extremely outdated and do not include 
many modern crimes or modern procedures.

   Ten of these treaties will replace existing treaty 
        relationships between the United States and former British 
        territories that are now based on the 1931 or 1972 U.S.-UK 
        extradition treaties--Antigua and Barbuda, Barbados, Cyprus, 
        Dominica, Grenada, India, St. Kitts and Nevis, St. Lucia, St. 
        Vincent and the Grenadines, and Trinidad and Tobago.
   Another five of the extradition treaties before the 
        Committee are with countries with which we have other older 
        relationships that needed to be updated--these are Austria 
        (which is now governed by a 1930 treaty as supplemented in 
        1934), Luxembourg (now governed by 1883 treaty with 1935 
        Protocol), France (now governed by 1909 treaty as supplemented 
        in 1970 and 1971), Poland (now governed by 1927 treaty with 
        1935 Protocol) and Argentina (now governed by 1972 treaty). 
        With the passage of time, these treaties are not as effective 
        as the modern treaties before the Committee today in ensuring 
        that all fugitives may be brought to justice.
   Finally, the sixteenth extradition treaty before the 
        Committee is with Zimbabwe. With this treaty we will for the 
        first time create a bilateral extradition relationship with 
        that country, which became independent in 1980. The U.S.-
        Zimbabwe treaty will be the first U.S. law enforcement 
        cooperation treaty with that country and over time may be a 
        model for additional law enforcement relationships in the 
        region.

    All of the sixteen comprehensive extradition treaties contain 
several noteworthy provisions that will substantially serve our law 
enforcement objectives.
    First, these treaties define extraditable offenses to include 
conduct that is punishable by imprisonment or deprivation of liberty 
for a period of one year or more in both states. This is the so-called 
``dual criminality'' approach. Treaties negotiated before the 1970s 
typically provided for extradition only for offenses appearing on a 
list contained in the instrument. As time passed, these lists grew 
increasingly out of date. The dual criminality approach obviates the 
need to renegotiate treaties to cover new offenses in instances in 
which both states pass laws to address new types of criminal activity.
    Second, these treaties will permit extraditions whether the 
extraditable offense is committed before or after their entry into 
force. This provision is particularly useful and important, since it 
will ensure that persons who have already committed crimes can be 
extradited under the new treaties from each of the new treaty partners 
after the treaty enters into force.
    Third, these treaties all contain a provision that permits the 
temporary surrender of a fugitive to the Requesting State when that 
person is facing prosecution for, or serving a sentence on, charges 
within the Requested State. This provision can be important to the 
Requesting State and in some cases the fugitive for instance, so that: 
1) charges pending against the person can be resolved earlier while the 
evidence is fresh; or 2) where the person sought is part of a criminal 
enterprise, he can be made available for assistance in the 
investigation and prosecution of other participants in the enterprise.
    These treaties also address two of the most difficult issues in our 
extradition treaty negotiations--extradition of nationals of the 
Requested State and extraditions where the fugitives may be subject to 
the death penalty in the Requesting State.
    As a matter of longstanding policy, the U.S. Government extradites 
United States nationals. Eleven of the sixteen comprehensive treaties 
before the Committee contemplate the unrestricted extradition of 
nationals. Specifically, the proposed extradition treaties with all ten 
of the former British dependencies noted above except Cyprus, plus the 
treaties with Argentina and Zimbabwe, provide that nationality is not a 
basis for denying extradition. Many countries, however, are currently 
prohibited by their constitutions or domestic law from extraditing 
their nationals. The U.S. Government has made it a high priority to 
convince states to change their constitutions and laws and agree to 
extradite their nationals. This is, however, a very sensitive and deep-
seated issue and we have not succeeded in obtaining unqualified 
approval in all circumstances.
    The treaty with Argentina is in this respect particularly 
significant. Paragraph 3 of the Argentina treaty provides that ``[t]he 
extradition and surrender of the person sought shall not be refused on 
the ground that such person is a national of the Requested Party.'' 
This provision is especially useful since a relatively large percentage 
of fugitives wanted by the United States in that country are likely to 
be of Argentine nationality. This treaty, and our treaty with Bolivia 
which also permits extradition of nationals, to which the Senate gave 
advice and consent in 1996, represent a watershed in our efforts to 
convince civil law countries in the western hemisphere to oblige 
themselves to extradite their nationals to the United States. We are 
already using these treaties as precedents in our efforts with other 
nations in Latin America and elsewhere. In practical terms, these 
treaties should help the United States to bring to justice narcotics 
traffickers, regardless of nationality, who reside or may be found in 
these countries.
    The treaties with Austria, Cyprus, France, Luxembourg and Poland do 
not require a Requested State to extradite its nationals. In each of 
these treaties, however, should a Requested State refuse extradition on 
the basis of nationality, it is obliged upon request of the Requesting 
State to submit the case to its competent authorities for prosecution. 
The U.S. delegations pursued mandatory extradition of nationals 
strenuously with these countries, but the domestic laws of these 
countries currently prohibit the extradition of nationals and those 
governments were therefore unable to commit to the extradition of 
nationals. We are continuing our efforts to convince these and all 
other countries to remove Constitutional and other legal restrictions 
on the extradition of nationals.
    A second issue that often arises in modern extradition treaties 
involves extraditions in cases in which the fugitive may be subject to 
the death penalty in the Requesting State. A number of countries that 
have prohibited capital punishment domestically, also, as a matter of 
law or policy, prohibit the extradition of persons to face the death 
penalty. To deal with this situation, or to address the possibility 
that in some cases that the United States might want to seek such 
assurances, a number of recent U.S. extradition treaties have contained 
provisions under which a Requested State may request an assurance from 
the Requesting State that the fugitive will not face the death penalty. 
Provisions of this sort appear in the extradition treaties with 
Austria, Argentina, Cyprus, France, India, Luxembourg and Poland. In 
our negotiations with Antigua and Barbuda, Barbados, Dominica, Grenada, 
St. Kitts and Nevis. St. Lucia, and St. Vincent and the Grenadines, and 
Trinidad and Tobago, it was agreed that the possibility of the death 
penalty would not serve as a basis for the denial of extradition.
    In addition to these sixteen comprehensive treaties, that regulate 
all essential elements of bilateral extradition relations, there are 
two instruments with Spain and Mexico that supplement existing treaties 
with those countries.
    The first of these is entitled the Third Supplementary Extradition 
Treaty with Spain. This Supplemental treaty will facilitate the 
extradition of fugitives by eliminating two impediments in U.S.-Spain 
extradition practice. It will remove the statute of limitations of the 
Requested State as a basis for denying extradition making only the 
statute of limitations in the Requesting State relevant. It will also 
provide that amnesties, which are occasionally promulgated in Spain but 
typically not in the United States, will not bar extradition of 
fugitives sought by one party for offenses that are the subject of an 
amnesty in the other Party.
    The second supplemental treaty is the Protocol to the U.S.-Mexico 
Extradition treaty, which adds to the 1978 U.S.-Mexico extradition 
treaty a provision on the temporary transfer of persons for trial in 
the Requesting State of persons who have been convicted and sentenced 
in the Requested State. This provision is similar to those the United 
States has included in many of its modern extradition treaties and will 
facilitate the transfer of prisoners from one treaty partner to the 
other for trial while evidence and witnesses are still available and 
fresh.

                    Mutual Legal Assistance Treaties

    I will now comment briefly on the mutual legal assistance treaties 
with Antigua and Barbuda, Australia Barbados, Brazil, Czech Republic, 
Dominica, Estonia, Grenada, Hong Kong, Israel, Latvia Lithuania, 
Luxembourg, Poland, St. Kitts and Nevis, St. Lucia, St. Vincent and the 
Grenadines, Trinidad and Tobago, and Venezuela. The Department of 
Justice will speak on these treaties at greater length.
    These mutual legal assistance treaties before the Committee are 
similar to twenty other MLATs that have entered into force with 
countries throughout the world. The U.S. Government's's mutual legal 
assistance treaty program is relatively new when compared with 
extradition but have fast become a central aspect of our international 
law cooperation program. As a general matter, MLATs obligate the 
Requested State to provide the Requesting State with certain kinds of 
evidence, such as documents, records, and testimony, provided that 
treaty requirements are met. Ratification of the MLATs under 
consideration today will enhance our ability to investigate and 
prosecute a variety of crimes, including violent crime, drug 
trafficking and terrorism offenses.
    All of the MLATs require the Contracting Parties to assist each 
other in proceedings related to the forfeiture of the proceeds and 
instrumentalities of criminal activity, to the extent such assistance 
is permitted by their respective laws. Such assistance may prove 
invaluable insofar as it is used to deprive international drug 
traffickers and members of organized crime of the benefits of their 
criminal activity. The MLATs also provide that forfeited and seized 
assets or the proceeds of their sale may be transferred to the other 
Party.
    As is the case with all MLATs currently in force, there are 
exceptions to the obligation to provide assistance. Although the 
language varies to a certain extent among the treaties, all of the 
pending MLAT provide that requests for assistance may be denied if 
their execution would prejudice the essential interests of the 
Requested State. Assistance may be postponed if the Requested State 
determines that execution of a request would interfere with an ongoing 
criminal investigation or proceeding. For all of the treaties, the 
provisions relating to procedures to be followed in making requests and 
the type of assistance to be provided track closely provisions 
contained in the other MLATs currently in force.
    A key provision of all MLATs is the creation of ``Central 
Authorities'' to coordinate requests for assistance. For the United 
States, the Attorney General or her designee is the Central Authority. 
As the Department of Justice implements these treaties, I will defer to 
Deputy Assistant Attorney General Richard in describing the other 
specific provisions of these instruments and issues related to their 
implementation.

                   Hong Kong Prisoner Transfer Treaty

    Also before the Committee is the U.S.-Hong Kong Prisoner Transfer 
Agreement. The purpose of this instrument is to facilitate the transfer 
of persons sentenced in the United States and in Hong Kong to their 
home territory to serve their sentences, as was possible when Hong Kong 
was part of the United Kingdom and transfers were possible under the 
multilateral Council of Europe Convention on the Transfer of Sentenced 
Persons, to which the United States and the United Kingdom are parties. 
The Agreement achieves this purpose by establishing procedures that can 
be initiated by sentenced persons who prefer to serve their sentences 
in their home territory. The means employed to achieve this purpose are 
similar to those embodied in existing bilateral prisoner transfer 
treaties in force between the United States and eight other countries, 
and in the Council of Europe Convention.
    I will be happy to answer any questions the Committee may have.

    Senator Grams. Thank you very much. Mr. Richard.

    STATEMENT OF MARK M. RICHARD, DEPUTY ASSISTANT ATTORNEY 
       GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE

    Mr. Richard. Thank you, Mr. Chairman. With your permission, 
I would like to submit my full statement for the record and 
merely summarize it at this time.
    Senator Grams. Without objection.
    Mr. Richard. Our negotiation of these extradition treaties 
that are before the committee is a major aspect of our efforts 
to deny sanctuary or safe haven to international criminals, as 
you have noted in your opening statement. But obtaining 
physical custody of the fugitives through extradition processes 
means little in most instances unless we have the evidence to 
convict them at trial.
    For that purpose we must turn to processes that afford us 
the opportunity to acquire such evidence and to acquire it in a 
usable fashion. The device, the means to accomplish that 
objective, is in fact the mutual legal assistance treaties 
before the committee. They provide for assistance at all stages 
of the U.S. criminal investigation and prosecution, including 
grand jury proceedings. They also enable us, significantly, to 
obtain the assistance in a speedier process than otherwise 
available through non-treaty mechanisms currently on the books.
    As Ms. Borek already indicated, the extradition treaties 
attempt to modernize our extradition process. The extradition 
treaties by and large attempt to incorporate the most modern 
approaches and efficient approaches to international 
extradition. Each of the treaties use the dual criminality 
approach, which permits extradition for any crime punishable in 
both countries by more than 1 year imprisonment. This enables 
us to ensure that, with the passage of new criminal statutes in 
both countries, that we need not come back to have protocols to 
the treaty in order to have those crimes covered by the 
extradition treaty.
    The new treaties also incorporate a variety of procedural 
improvements. For example, they clarify the provisional arrest 
provisions whereby, once we identify the location of a 
fugitive, we can immediately seek to detain him or her while 
the documents are being prepared.
    The treaties also allow a state to temporarily transfer a 
person in custody while he is serving a sentence in the state 
in order to expedite prosecution in the requesting country. The 
treaties also allow the person sought to waive extradition and 
expedite return to the requesting state, thereby substantially 
expediting extradition in uncontested cases.
    Moreover, the extradition treaties reflect our law 
enforcement priorities and relations. We have tried to 
emphasize in the negotiating process those treaties that will 
in fact be of paramount practical value to U.S. law 
enforcement. By U.S. law enforcement, I am not limiting it to 
just Federal law enforcement. These treaties apply to state and 
local authorities, enabling them to acquire prisoners and 
fugitives that they are interested in.
    Let me turn briefly to the mutual legal assistance 
treaties. These treaties join 20 other MLAT's that have been 
ratified since 1977, beginning with the first with Switzerland. 
Our efforts to investigate and prosecute serious crimes must 
take into account the fact that critical evidence in major 
cases is often found abroad. Acquiring this evidence and 
acquiring it in a fashion that is usable in our court is not 
always an easy process.
    I would want to emphasize, though, that these treaties we 
recognize are not panaceas. They can be extremely useful tools, 
but they will not by themselves resolve the problem of 
international crime. Moreover, an MLAT's effectiveness in our 
experience ultimately depends on the good faith and commitment 
of the parties, as well as on the specific language of the 
instrument.
    Generally, these MLAT's contain the same characteristic 
provisions. They all create a central authority. In this case 
that central authority has been designated as the Attorney 
General and that function is in fact delegated to the Criminal 
Division and our Office of International Affairs. They also 
provide as broad a scope of coverage as possible, in order to 
enable us to obtain information and evidence in connection with 
the broadest scope of offenses. They also provide mechanisms 
for us to acquire information and acquire it in a fashion so as 
to have it usable in our courts, and this is particularly 
relevant in terms of affording defense an opportunity for 
confrontation in terms of taking depositions.
    Significantly, the MLAT process we have found is far more 
efficient and effective, and it provides for prosecutors and 
investigators a level of predictability that we never had 
before. The alternative basis, depending on the principles of 
comity, never enables us with great confidence to predict 
whether at the time of trial we will have the evidence in a 
fashion that we need. Here under the MLAT we now have a 
heightened level of predictability and thus confidence when we 
bring a case that we will be able to take it to trial at the 
appropriate time.
    Turning to the Hong Kong Prisoner Transfer Treaty just 
briefly, this treaty will provide a basis for us to renew the 
prisoner transfer relationship which we shared with Hong Kong 
from 1988 until 1997. Its substantive provisions are quite 
similar to those in our existing prisoner transfer treaties 
and, like those treaties, the U.S.-Hong Kong agreement permits 
a transfer only when both parties and the prisoner consent. 
This is critical because it does require the consent of the 
prisoner.
    Finally, based on our experience with Hong Kong under the 
Council of Europe Treaty, we expect a relatively small number 
of requests for transfer under this agreement.
    In conclusion, Mr. Chairman, we appreciate the committee's 
support in our efforts to address the problem of combating 
international crime and the Attorney General has asked me to 
express her appreciation to you for holding these hearings.
    Thank you.
    [The prepared statement of Mr. Richard follows:]
                 Prepared Statement of Mark M. Richard
    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 
38 law enforcement treaties that have been referred to the Committee. 
Eighteen of the 38 treaties are extradition treaties, with Antigua-
Barbuda, Argentina, Austria, Barbados, Cyprus, Dominica, France, 
Grenada, India, Luxembourg, Mexico Extradition Protocol, Poland, Spain 
Extradition Protocol, St. Kitts-Nevis, St. Lucia, St. Vincent-the 
Grenadines, Trinidad-Tobago, and Zimbabwe. Another 19 treaties are 
mutual legal assistance treaties (or ``MLATs'') with Antigua-Barbuda, 
Australia, Barbados, Brazil, Czech Republic, Dominica, Estonia, 
Grenada, Hong Kong, Israel, Latvia, Lithuania, Luxembourg, Poland, St. 
Kitts-Nevis, St. Lucia, St. Vincent-the Grenadines, Trinidad-Tobago, 
and Venezuela. Finally, also included is the U.S.-Hong Kong Prisoner 
Transfer Treaty, which enable us to renew the prisoner transfer 
relationship which we shared with Hong Kong, until its July 1997 
reversion to the People's Republic of China.
    The Department of Justice participated in the negotiation of these 
treaties, and today joins the Department of State in urging the 
Committee to report favorably to the Senate and recommend its advice 
and consent to the ratification. Since Deputy Legal Advisor Borek will 
discuss the extradition treaties in her testimony, and the Departments 
of Justice and State have prepared a detailed technical analysis of 
each of the treaties, I would like to speak today in more general terms 
about why we view these treaties as important instruments in 
investigating and prosecuting serious offenses both at the federal and 
state levels.
    Our negotiation of these 38 treaties is a major aspect of our 
efforts to deny sanctuary, or ``safe haven'' to international 
criminals, no matter where they are hiding around the globe. Criminals 
who violate U.S. law must not be allowed to remain beyond the reach of 
U.S. and other law enforcement authorities. International extradition 
treaties remain the most effective mechanism to obtain the return of 
international fugitives.
    However, obtaining physical custody of fugitives means little 
without the evidence needed to convict them at trial. Mutual legal 
assistance treaties--MLATs for short--provide for assistance at all 
stages of U.S. criminal investigations and prosecutions, including 
grand jury proceedings. They also enable much speedier assistance than 
is otherwise available through the cumbersome non-treaty mechanisms 
used for this purpose.

                        The Extradition Treaties

    The eighteen extradition treaties represent the continuing effort 
by the Department of Justice and the Department of State to modernize 
our extradition relations. Fifteen of these treaties replace 
extradition treaties now in force that have become outdated and 
obsolete. One treaty, with Zimbabwe, establishes an extradition 
relationship for the first time. Two of the treaties before the 
Committee, with Mexico and Spain, supplement treaties that are 
currently in force, leaving the basic structure and terms of the treaty 
intact.
    Each of the 18 treaties before the Committee reflects our effort to 
conclude agreements that incorporate the most modern and efficient 
approaches to international extradition. In the past, extradition 
treaties contained a list of the crimes for which extradition may be 
granted; each of the new treaties eschew such lists for a ``dual 
criminality'' approach, which permits extradition for any crime 
punishable in both countries by more than one year's imprisonment. A 
dual criminality provision makes it unnecessary to renegotiate the 
treaty or supplement it when new crimes are enacted--an especially 
attractive feature in an age in which new forms of criminal behavior 
constantly lead to new legislation. This is especially important since 
the U.S. has traditionally been at the cutting edge of criminalizing 
newly emerging criminal activities such as money laundering, computer-
related abuses, environmental crimes, to name just a few.
    The new treaties also incorporate a variety of procedural 
improvements. For example, all of the extradition treaties clarify the 
procedures for ``provisional arrest,'' the process by which a fugitive 
in flight can be detained while the documents in support of extradition 
are prepared. The treaties all allow each state to temporarily transfer 
a person while he is still serving a sentence in that State in order to 
expedite prosecution. The treaties also allow the person sought to 
waive extradition and expedite return to the requested state, thereby 
substantially expediting extradition in uncontested cases. Procedural 
improvements of this kind allow the legal framework for extradition to 
operate more efficiently.
    The treaties also will be important precedent for us in persuading 
other countries to extradite their nationals to us for trial, and 
assuring us that countries who have extradited nationals in the past 
continue to do so. For example, the new treaty with Argentina requires 
the extradition of Argentine nationals, and it will be an important 
precedent that we want to use to urge other countries in Latin America 
and elsewhere to follow. Similarly, the new treaties with Antigua and 
Barbuda, Barbados, Dominica, Grenada, St. Christopher-Nevis, St. Lucia, 
St. Vincent-the Grenadines, Trinidad, and India all explicitly require 
extradition of nationals, and thereby ``lock in'' our treaty partner to 
surrendering nationals in a way not accomplished by the treaties now in 
force with these nations. In all, eleven of the treaties before the 
Committee explicitly state that extradition may not be denied on the 
basis of the fugitive's nationality. The other new treaties--with the 
exception of the French treaty--give each state the discretion to grant 
or deny extradition of its nationals. The U.S. delegation worked hard 
to insure that this discretionary approach was maintained so that 
extradition of nationals would remain an option, as legal and policy 
barriers are removed.
    The extradition treaty with Argentina highlights a development in 
the field of international extradition. There is almost universal 
agreement among nations on the value of international extradition, but 
there is less agreement on whether nations should extradite their own 
nationals to other nations. Most countries with a common law tradition, 
like the United States, do extradite their citizens, on request, to the 
country where the crime was committed, provided there is a treaty in 
force and there is evidence to support the charges. Many countries with 
a civil law tradition, however, have historically refused or been 
reluctant to extradite their nationals. These nations typically deny 
extradition and offer instead to prosecute the national within their 
own legal system for crimes committed abroad, a process referred to as 
``domestic prosecution.''
    Our experience has been that such ``domestic prosecutions'' are 
appealing in theory but woefully ineffective and inefficient in 
practice. Evidence collected in one country often cannot be transferred 
from the country where the offense occurred to the country of the 
offender's nationality because rules of evidence differ, or other 
technical, legal, or procedural differences interfere. Witnesses and 
victims themselves are often unable or unwilling to travel long 
distances to participate in judicial proceedings whose language and 
procedures they do not understand. Moreover, as the Attorney General 
has often stated, it is more appropriate to have the defendant tried 
where the victims are located and where the major harm was committed.
    As a matter of fundamental law enforcement policy, the 
Administration believes that persons should be brought before the 
courts in those countries which have suffered the major criminal harm 
and which are best positioned to ensure fair and effective prosecution. 
The Administration further believes that criminals should never escape 
justice based simply on their citizenship or nationality.
    We are especially pleased to see the growing number of countries 
like Argentina that are willing to re-examine past policies prohibiting 
or discouraging extradition of nationals. For instance, Italy, faced 
with the serious threat to society posed by international organized 
crime organizations, was one of the first countries to reverse its 
position, and began in the 1980s to extradite its citizens to the U.S. 
Bolivia and Uruguay have also broken with civil law tradition and 
dismantled barriers to extradition of nationals, and other states such 
as Poland, are also re-evaluating their laws. For these reasons, the 
treaty with Argentina is an especially timely development, and will be 
an important precedent that we will encourage other Latin American 
nations to follow.
    The extradition treaties reflect our law enforcement relations and 
priorities with our treaty partners. We have tried to emphasize 
negotiations of the extradition treaties that will be of paramount 
practical value to U.S. law enforcement. For example:

   The extradition treaties with Barbados, Trinidad, and the 
        six nations that are members of the Organization of Eastern 
        Caribbean States (Antigua-Barbuda, Dominica, Grenada, St. 
        Kitts-Nevis, St. Lucia, and St. Vincent-the Grenadines) reflect 
        the importance of this strategic region to U.S. law 
        enforcement, which has found that Latin American drug rings, 
        reacting to heightened enforcement activity on the U.S.-Mexican 
        border and the western Caribbean, have increased their use of 
        the eastern Caribbean for smuggling drugs into the U.S. and 
        Western Europe.
   The extradition treaty with Poland, like the MLAT with that 
        state, was intended to enhance our ability to respond to 
        growing crime problem in Eastern Europe, which spills over to 
        the U.S. Similarly, the extradition treaty with Austria is 
        important because Austria occupies an especially strategic 
        location between Eastern and Central Europe.
   The extradition treaty with France will replace the current 
        1902 treaty. We handle a large number of extradition requests 
        involving France, and the volume grows larger each year, so a 
        new modern treaty is needed to enable us to process these 
        requests more effectively and efficiently. The new treaty and 
        the Agreed Minute accompanying the treaty will be an important 
        step toward reciprocity by the French.
   The Extradition Protocol with Mexico is designed to create a 
        new option in U.S.-Mexican extradition relations. All of our 
        other recent extradition treaties permit an offender who is 
        serving a long sentence in the Requested State to be 
        temporarily extradited to the Requesting State for the limited 
        purpose of trial there, while the evidence is available and the 
        witnesses' memories are fresh, then be returned to the 
        Requested State to complete serving the original sentence. The 
        current treaty with Mexico, signed May 4, 1978, does not 
        contain such a provision, a fact that has occasionally hampered 
        effective law enforcement. One example of this problem is a 
        recent case involving a Cuban national, Luis Martinez who was 
        wanted in New York to face multiple murder charges, but could 
        not be extradited immediately because he was already serving a 
        seven year sentence in Mexico for rape. New York authorities 
        felt that if Martinez' extradition were postponed for seven 
        years, however, New York would not be able to prosecute 
        Martinez at all, because of the imminent loss of the only 
        eyewitness to the crime. Fortunately, the Government of Mexico 
        agreed to make use of its prison parole system to expedite 
        Martinez's eligibility for release and worked closely with the 
        United States to arrange an expedited surrender of Martinez to 
        New York authorities. While a miscarriage of justice was 
        averted in the Martinez case, both the U.S. and Mexican 
        Governments realized that the extradition treaty should be 
        updated to provide a routine procedure in such matters. The 
        Protocol before the Committee is the result of these efforts.

                  The Mutual Legal Assistance Treaties

    The MLATs before this Committee will join twenty other MLATs that 
have been ratified since 1977, when our first MLAT, with Switzerland, 
entered into force. We now have MLATs in force with Switzerland, 
Turkey, Netherlands Italy, Canada, the Bahamas, Mexico, the U.K.-Cayman 
Islands, Argentina, Thailand, Morocco, Spain, Uruguay, Jamaica Panama, 
the Philippines, the United Kingdom, Hungary, South Korea, and Austria 
(which entered into force on August 1, 1998). Thus, the new MLATS 
before the Committee, when ratified, will double the number of MLATs in 
place, and enable us to greatly increase the number of successful 
requests to foreign countries for assistance.
    Our long-term goal is to have as many MLATs as possible in force 
with countries that constitute U.S. law enforcement priorities, and for 
good reason. As the Committee knows all too well, recent years have 
witnessed the increasing ``internationalization'' of crime, especially 
in the areas of drug trafficking, money laundering, terrorism, 
organized crime, and large scale fraud. Members of drug cartels, 
organized crime, and terrorist networks do not respect national 
boundaries; in fact, they intentionally exploit national borders to 
impede law enforcement efforts. Therefore, our efforts to investigate 
and prosecute serious crimes must take into account that critical 
evidence in major criminal cases is often found abroad. Obtaining such 
evidence--especially in a form that will be admissible in our courts--
is not always an easy matter. MLATs provide a more reliable and 
efficient means of obtaining such evidence, and thus further our 
investigative and prosecutive efforts. It is for this reason that 
negotiating and implementing MLATs have become an important part of 
international law enforcement efforts.
    At the same time, it is important to recognize that these treaties 
are not panaceas. Although they can be an extremely useful tools they 
will not resolve the problem of international crime alone. Moreover, an 
MLAT's effectiveness ultimately depends on the good faith and 
commitment of the parties as well as on the specific language of the 
instrument. It is important that we have a frank and productive working 
relationship. Indeed, we have found this process of consultation to be 
so critically important to the effectiveness of the treaties that 
specific consultation provisions have been included in each MLAT.
    While each of the MLATs now before the Committee shares certain 
characteristics, the specific provisions of each treaty vary. In the 
MLATs, as in the extradition treaties, some of the variances are minor 
or semantic; others are substantive. The technical analyses highlight 
and explain these variances among the treaties. The variances are the 
inevitable result of bilateral negotiations over a period of years with 
different countries, each of which has a different legal system and 
domestic interests, and with each of which the United States' law 
enforcement relations and priorities are different.
    The MLATS before the Committee do reflect our law enforcement 
relations and priorities with our treaty partners.
    For example, the MLAT with Israel reflects the long history of 
extensive and productive law enforcement cooperation than with Israel. 
We expect that this MLAT will enhance a relationship already 
distinguished by a common legal tradition and a history of successful 
collaboration on a wide range of important criminal matters ranging 
from terrorism to major white collar crime (e.g., the Eddie Antar fraud 
case), international drug trafficking, and organized crime. The number 
of U.S. requests to Israel for mutual legal assistance has grown 
sharply in recent years, and prompt ratification of the MLAT is 
essential to us in addressing the increasing workload in an efficient, 
effective manner.
    The MLATs with Estonia, Latvia, Lithuania, Poland, and the Czech 
Republic reflect the strategic importance of these nations as gateways 
to Eastern Europe, where the expansion of Russian organized crime is a 
growing problem for these nations and the U.S.
    The MLAT with Hong Kong is part of a package of agreements designed 
to maintain important law enforcement cooperation between the U.S. and 
this former United Kingdom colony; an extradition treaty with Hong Kong 
was approved by the Senate last year. The MLAT with Hong Kong will join 
MLATs now in force in the region with South Korea, the Philippines, and 
Thailand, and reflects our recognition that more effective law 
enforcement tools are needed with these key allies, and in the Far East 
generally, to combat drug trafficking, alien smuggling, money 
laundering, financial fraud, terrorism and other offenses.
    Similarly, the MLAT with Australia provides a streamlined procedure 
for enhanced cooperation with an important law enforcement partner on 
the Pacific Rim.
    The MLATs with Barbados, Trinidad, and the six nations that are 
members of the Organization of Eastern Caribbean States (Antigua-
Barbuda, Dominica, Grenada, St. Kitts-Nevis, St. Lucia, and St. 
Vincent-the Grenadines), complement the new extradition treaties with 
these countries that I discussed, and reflect the importance of this 
strategic region to U.S. law enforcement.
    For the benefit of the members of the Committee, I would now like 
to briefly explain what an MLAT is and describe its principle 
advantages.
    Mutual legal assistance treaties are intended to enable law 
enforcement to obtain evidence and information abroad in a form 
admissible in our courts. MLATs supplement existing arrangements on 
international exchange of information between police agencies, such as 
law enforcement liaison relationships, or Interpol.
    MLATs perform much the same function as letters rogatory in 
international cooperation. A letter rogatory is a written request from 
a court in one country to a court in another country asking the 
receiving court to aid the requesting court, as a matter of comity, in 
obtaining evidence located beyond the requesting court's reach. Since 
we have too few MLATs in force, we use letters rogatory to secure 
evidence from foreign countries where no MLAT or executive agreement on 
cooperation is in force. The MLAT provisions build on the authority 
given to us by Congress in 18 U.S.C. section 1782 to assist foreign 
countries in the gathering of evidence in the U.S.
    A comparison of the way in which letters rogatory requests are made 
with the MLAT process illustrates the law enforcement benefits of the 
treaties before the Committee. In the case of letters rogatory, a 
prosecutor, such as an Assistant United States Attorney, must apply to 
the court in the U.S. for the issuance of letters rogatory. Once the 
letter rogatory is signed by the court, it is transmitted through 
diplomatic channels to the foreign country, traveling to the Department 
of Justice in Washington, to the State Department, to the appropriate 
U.S. Embassy abroad, to the Ministry of Foreign Affairs of the foreign 
country, then to its Ministry of Justice, and finally to the foreign 
court. Once the foreign court receives the letter rogatory, that court 
will execute it, in accordance with the foreign country's rules of 
evidence and procedure. The evidence obtained through the process is 
transmitted back to United States through the same torturous route used 
to present the request.
    The MLAT request process is much more efficient for law enforcement 
purposes. Each of the MLATs establishes a Central Authority for the 
processing of requests, and the Attorney General is the Central 
Authority for the United States. By regulation, the Attorney General 
has delegated her duties to the Criminal Division's Office of 
International Affairs. The prosecutor seeking evidence under an MLAT 
works directly with the Office of International Affairs in preparing 
the request, and the request is signed by the Director of that office. 
The signed MLAT request is sent directly from the U.S. Central 
Authority to the Central Authority of the MLAT partner, which will 
either execute the request immediately, or refer it to the appropriate 
court or law enforcement agency for execution. Once the requested 
evidence is obtained, it is returned to the U.S. by the same route.
    The more streamlined handling of requests is but one reason why 
MLATs are superior to letters rogatory in obtaining evidence abroad. 
There are several other reasons.
    First, an MLAT obligates each country, consistent with the terms of 
the treaty, to provide evidence or other assistance. Letters rogatory, 
on the other hand, are executed solely as a matter of comity, and often 
completely at the discretion of the requested country's court. Thus, 
predictability of the response is of critical importance in planning 
for an upcoming prosecution.
    Second, an MLAT, either by itself or together with implementing 
legislation, can provide a means to overcome the bank secrecy and 
business confidentiality laws that so often frustrate effective law 
enforcement. This is especially helpful in the investigation of 
financial fraud, money laundering, and drug trafficking. Too often, 
letters rogatory are of limited utility to us because the foreign 
country's laws on letters rogatory do not permit piercing bank secrecy. 
For example, the MLAT with the Cayman Islands has been especially 
valuable to law enforcement in part because that MLAT coupled with the 
Cayman Islands' implementing legislation for it, clearly provides the 
terms upon which bank and business confidentiality must give way to 
legitimate law enforcement needs.
    Third, an MLAT provides an opportunity to devise procedures that 
permit us to obtain evidence in a form that will be admissible in our 
courts The rules of evidence used in our courts may be unheard of in 
foreign countries, especially countries that have a civil law rather 
than common law legal system. MLAT negotiations permit the 
establishment of a procedural framework for ensuring that the evidence 
produced for us comport with our evidentiary requirements, such as the 
use of sworn certificates to authenticate bank records in accordance 
with Title 18, United States Code, Section 3505, or the examining and 
cross-examining of witnesses in depositions abroad.

                 The Hong Kong Prisoner Transfer Treaty

    The last of the treaties before the Committee is the U.S.-Hong Kong 
Prisoner Transfer Treaty. This treaty will provide a basis for us to 
renew the prisoner transfer relationship which we shared with Hong Kong 
from 1988 until July 1997 under the Council of Europe Convention on the 
Transfer of Sentenced Persons. Like our other eight bilateral treaties 
and the multilateral Council of Europe treaty, this agreement with Hong 
Kong is designed to permit the repatriation of persons convicted abroad 
to serve out their sentences at home Its substantive provision are 
quite similar to those of our existing prisoner transfer treaties, and 
like those treaties, the U.S.-Hong Kong agreement permits a transfer 
only when both Parties and the prisoner himself consent. Based on our 
experience with Hong Kong under the Council of Europe treaty, we expect 
a relatively small number of requests for transfer under this 
agreement.
    In conclusion, Mr. Chairman, we appreciate the Committee's support 
in our efforts to address the problem of combating international crime. 
These treaties will enhance our ability to respond to current and 
emerging critical enforcement challenges. For that reason, we urge 
their speedy approval. I would be pleased to respond to the Committee's 
questions, including any written questions the Committee may wish to 
pose after the hearing today. \1\
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    \1\ Time constraints did not allow for clearance of this statement 
by the Office of Management and Budget.

    Senator Grams. Thank you very much for your statements.
    I have just some brief questions for each of you and maybe 
I'll just address all the first questions to Ms. Borek and then 
to Mr. Richard, so maybe divide them up that way.
    To start out, Ms. Borek, the pending treaty with Zimbabwe 
represents a new treaty relationship and the first bilateral 
extradition treaty with a sub-Saharan African nation. Were 
there specific events, Ms. Borek, that led to the negotiation 
of a treaty with Zimbabwe rather than the other countries in 
the region?
    Ms. Borek. Thank you, Mr. Chairman. That is correct. In the 
early nineties we had two important fugitives from the United 
States who had fled to Zimbabwe. One was wanted to stand trial 
for offenses in connection with the BCCI matter. At that point 
it seemed prudent to negotiate an extradition treaty with 
Zimbabwe. We have also had an interest in that part of Africa, 
but basically the choice of Zimbabwe as a place to start 
depended on the circumstances of the time.
    Senator Grams. Is the State Department confident that the 
judicial system of Zimbabwe is adequately or will adequately 
provide due process rights to individuals and humanitarian 
treatment to individuals that are imprisoned in that country? 
Is there that type of confidence?
    Ms. Borek. Yes, Mr. Chairman. The human rights record of 
the government of Zimbabwe does compare favorably with other 
countries with whom we would have extradition treaties. They 
have an independent judiciary. They do have the presumption of 
innocence, the right to confront and question witnesses, the 
right to counsel, and other fundamental rights of due process 
at trial. Thank you.
    Senator Grams. Ms. Borek, perhaps the most high profile 
extradition case in recent years is the request for the 
extradition of Samuel Sheinbein from Israel to Maryland, and it 
highlighted the issue of some countries' refusal to extradite 
their own nationals. In that case Sheinbein argued that he was 
a dual United States and Israeli citizen and therefore could 
not be extradited to the United States to stand trial for the 
murder of another Maryland teenager.
    Now, in each of the extradition treaties pending before the 
committee the United States commits to extradite its nationals. 
However, the treaties also permit some of the proposed treaty 
partners to refuse to extradite their own nationals. This 
amounts to a unilateral concession on the part of the United 
States.
    Which of the treaties pending before the committee permit a 
treaty partner to refuse extradition of their nationals?
    Ms. Borek. Thank you, Mr. Chairman. This is of course an 
important issue. Of the treaties, the majority of them require 
extradition of nationals in all circumstances. However, it is 
discretionary in the case of Poland, Austria, Cyprus, 
Luxembourg, and France.
    In treaties where it is discretionary, it is discretionary 
for both parties. So, strictly speaking, the United States 
would have a choice. However, it is a matter of longstanding 
U.S. policy that we will extradite nationals for trial for 
serious crimes committed overseas. This reflects two things in 
particular.
    Many of the civil law countries have the ability to 
prosecute, at least in theory, based on nationality and 
therefore they actually have the capacity to prosecute their 
nationals for acts committed overseas. It is a different 
question whether this is always effective. But the United 
States often does not have that type of jurisdiction, and it 
has been a law enforcement judgment that we do not want any 
country, including the United States, to be a safe haven for 
criminals and that we would practice what we preach.
    I think Mr. Richard would like to add to that. I think this 
is a very important program that we have been pursuing with 
other countries, not to have limitations on extradition of 
nationals.
    Senator Grams. But in those cases there is the same option 
to the United States, then, in those treaties with those 
countries that refuse to extradite their nationals? We have the 
same option with them is what you said?
    Ms. Borek. It is discretionary. The normal provision does 
not differentiate between countries. It simply says that in 
that case it is discretionary. The only one which is actually 
not worded in a fully reciprocal fashion is France, but in that 
case it is still discretionary for the United States to 
surrender a national and not mandatory.
    Senator Grams. Mr. Richard.
    Mr. Richard. If I may add just a few points. It is, as Ms. 
Borek indicated, a judgment on our part that, especially in 
light of the fact that we do not have the jurisdictional 
capability of prosecuting in the United States these 
individuals, that the option of allowing them to go free and 
not be held accountable for acts committed abroad in our 
judgment is inappropriate. We would prefer them not being in 
the community, but rather to stand trial in the foreign 
country, the requesting country.
    Moreover, we have, though, been making a major effort. The 
Attorney General personally as well as the President and others 
have been striking out on this point to change, if you will, 
the perception of a good portion of the world that currently 
rejects the notion of extraditing their nationals. I am proud 
to say that we have been making significant progress in my 
judgment.
    We have, as reflected, treaties with Argentina. Other prior 
treaties have broken, if you will, the traditional barrier of 
prohibiting extradition of nationals--civil law countries in 
South America, Europe. Israel has recently introduced 
legislation which, if passed, will resume the ability of Israel 
to extradite its nationals.
    So I think we are making progress on this front.
    Senator Grams. Thank you.
    What rationale do these countries give, Ms. Borek, for 
refusing extradition of their nationals?
    Ms. Borek. The primary rationale is their ability to 
prosecute themselves based on nationality. The difficulty in 
many cases that they point to is that there could be 
constitutional limitations, so that in some cases even if they 
wanted to change it it would be very difficult. Nonetheless, 
there are countries where it is a matter of legislation or of 
policy, and I think it is fundamentally a domestic point of 
view that prosecution should occur in the country of 
nationality.
    But as Mr. Richard said, this is changing. I might add 
that, while it is only the initial judgment in the case that 
you mentioned, there has been an initial judgment that the 
individual was extraditable. Of course this will be appealed 
and we will have to see the course of it as it goes along.
    Mr. Richard. If I may just add, what I hear most often 
across the table is the historic notion that there is something 
innately troublesome about having your own national have to go 
to a foreign country where he or she is not familiar with the 
process, languages may be different, and that in theory the 
fact that the country of nationality can prosecute resolves the 
situation.
    From a law enforcement point of view, frankly, one, these 
countries rarely prosecute their own nationals for crimes 
committed abroad, whether in the U.S. or other countries. When 
they do, it is the exceptional case, and it is particularly 
cumbersome and troublesome on our victims, who have to travel 
frequently, who have to subject themselves to the process of a 
foreign court if they want to see justice done.
    Finally, in many of the more complex prosecutions 
participants, co-conspirators and the like, are not about to 
provide any assistance to these foreign prosecutions. So they 
are not easy to put together. The statistics worldwide of 
domestic prosecutions tends to be very low.
    Senator Grams. I was going to follow up and say, is there 
any way that we have assurances, that we can hold their feet to 
the fire, so to speak, to do the prosecution. But you are 
basically saying that we do not have that type of influence.
    Mr. Richard. Well, we are making progress along those 
lines. For those countries that have historical constitutional 
barriers to that, we have been pushing, especially in the G-7 
context, that they commit separate components within their 
justice department, prosecutorial offices, equip them with the 
capability of performing nothing but addressing these domestic 
prosecutions, and that these prosecutions of crimes committed 
abroad by their nationals be afforded the same priority as 
their own domestic cases.
    We are pushing this. The Attorney General has been pushing 
it. It is not a very attractive alternative in our judgment, 
but nevertheless until we convince them of modifying their laws 
and constitutions I think we warrant at least the option in a 
particularly heinous case to prevail upon these countries to go 
with the domestic prosecution.
    Senator Grams. Ms. Borek.
    Ms. Borek. If I might just add to that, in cases where 
there is a discretionary provision not to extradite on the 
basis of nationality there is also typically an obligation 
that, when the country refuses extradition solely on the basis 
of nationality, it would submit that case, if requested, to the 
relevant authorities for prosecution.
    So in theory the obligation exists, but, as Mr. Richard 
said, there are practical difficulties in making it effective. 
But these are being addressed at the same time as trying to 
promote a fundamental change in attitude about the whole 
question.
    Senator Grams. Mr. Richard, when you say we're making 
progress in that direction, in those areas, is there an end in 
sight or how would that affect the treaties we are addressing 
here today as far as implementing any further pressures for 
prosecution?
    Mr. Richard. Well, from our vantage point the ultimate 
objective is to have countries afford themselves the capability 
of extraditing their nationals. That is the end, that is the 
relationship that we think affords greatest opportunity to see 
justice done in the international arena.
    We are making progress, though, in those instances, at 
least on the short-term basis, of countries that cannot or will 
not extradite their nationals of ensuring that they do afford 
us in those cases that we are interested in having domestic 
prosecutions, that they afford us the opportunity to see a 
viable prosecution brought, and by the steps I have indicated 
are forcing them to create special units, special training in 
foreign law, for those prosecutors and investigators, 
mechanisms for us to assist in providing them with the evidence 
and the like.
    For example, Israel currently has the so-called Begin law, 
which precludes extradition of Israeli nationals, but affords 
the Israeli prosecutor the opportunity to bring charges in 
Israel for crimes committed abroad. The difficulty is under 
Israeli law at the present time they do not have an easy way of 
gathering evidence abroad. So if there is a witness in the 
United States who for one reason or another does not want to 
travel to Israel, there is no easy mechanism for the Israeli 
prosecutors to come to the United States and take a deposition 
and have it admissible in court.
    So our position is they must align themselves in such a way 
as to be able to mount an effective prosecution. Fortunately, 
in the case of Israel it looks like they are changing their 
whole law to permit extradition of nationals.
    Senator Grams. Ms. Borek, the extradition treaties grant 
the Secretary of State authority to refuse where there is a 
concern that the request for extradition is politically 
motivated or for political offenses. What investigation will be 
undertaken prior to extradition to ensure that a request is not 
politically motivated? What kind of steps or procedures are in 
place to assure this?
    Ms. Borek. The normal procedure has two stages at which the 
Department of State would look at the request. Initially the 
requests are screened to make sure that they fit within the 
terms of the treaty and that there is a sufficient amount of 
evidence to establish a basis for proceeding.
    However, the primary point at which this could become a 
question is in the end, after a court has found someone 
extraditable. It then comes back to the Department of State and 
any sort of individual questions that might be raised 
concerning the particular case, not only the political 
motivation, but if there are other concerns about treatment or 
what have you, are typically raised at that stage.
    In our experience, in those cases in which there could be a 
political motivation it is really the defendant who is most 
keenly aware of that fact who brings it to the attention not 
only of the Department of State, but also of others, including 
courts at all stages in the process. So I think we have found 
that this is raised, if it is an issue. In some cases it might 
also be evident simply from looking at the request that it is 
not well founded. But if there is a particular hidden angle, I 
think the defendant is often the one to bring it out.
    Senator Grams. Has the United States ever made a refusal on 
these grounds that you can think of?
    Ms. Borek. It is not uncommon for requests initially to be 
found lacking in sufficient documentation. In some cases that 
is simply because they do not really have a good case. In other 
cases it could be because there is really some more 
questionable motive. I think it is rare for a case to actually 
get through the whole process and only have it come out at the 
end.
    Senator Grams. The India treaty contains an exchange of 
letters that requires consultation and agreement, in addition 
to the normal treaty requirements, when extradition is sought 
for a court, and that is apart from the ordinary criminal laws 
of the requesting state. But why was this exchange of notes 
necessary in this treaty?
    Ms. Borek. At the time this treaty was negotiated there 
were difficulties concerning not only terrorism but the 
government response to terrorism. There was a particular law, 
the Terrorist and Disruptive Prevention Act, which was used in 
connection with the detention and prosecution of persons 
charged with terrorist offenses.
    This law has lapsed as of 1995, but it still has some 
retroactive effect for cases under investigation and trial 
prior to that time. We were concerned that this law had 
particular limitations upon the rights of defendants that have 
been the subject of criticism, not only from nongovernmental 
groups but also from the Department of State in the human 
rights reports, and we were not prepared to undertake any sort 
of blanket obligation to extradite if there was going to be 
prosecution under that law.
    In fact, the presumption is that we would not extradite if 
there was going to be prosecution under that law. So we wanted 
to have an understanding, a clear understanding and arrangement 
with the government of India on this point.
    Senator Grams. Under what circumstances would the United 
States agree to extradite an individual to such a court?
    Ms. Borek. I do not know that we can imagine the situation 
under this particular law, but in general I suppose if you had 
a situation where, for example, an individual had been 
responsible for a bombing along the lines of the bombings of 
the Embassies in Kenya and Tanzania and there was no other 
viable way of prosecuting the person, I suppose we would take a 
very serious look at how deep our concerns were and exactly 
what our concerns were in connection with the due process 
rights of the defendant.
    But I do not think, since this particular law is 
retroactive and we know the universe of cases--at least someone 
theoretically knows the universe of cases--we do not anticipate 
it in connection with this particular treaty.
    Senator Grams. Could any of the extradition treaties be 
used to extradite an individual to a multilateral criminal 
tribunal through one of the treaty partners?
    Ms. Borek. Not directly. The question would be whether, 
having extradited someone to, for example, one of the treaties 
that is pending now, the treaty partner would turn around 
subsequently and retransfer or re-extradite someone to the 
multilateral institution. This is covered implicitly in 
limitations which are typically referred to as the rule of 
specialty, which put certain restrictions not only on 
retransfer, but also on adding charges that were not contained 
within the original extradition request. Of course, that would 
also be the case in this kind of situation. It does require the 
consent of the extraditing state to do this. We have discussed 
informally the fact that, because this is implicit, it might be 
desirable to clarify and make it explicit in connection with 
this type of situation.
    Senator Grams. Do we have any opportunity for any redress 
if the extradition has taken place and we find out that a 
prisoner is being moved to a third country or additional 
charges are added? I mean, once the horse is out of the barn, 
so to speak, do we have any way to police that type of 
activity?
    Ms. Borek. I am not aware that there has ever been a 
problem in this area. This is one of the most fundamental 
undertakings in an extradition agreement. It is well accepted, 
I think, as established not only in U.S. practice, but 
generally in extradition practice. I think our experience has 
been that countries respect it.
    In fact, it is quite common to get requests to add 
additional charges. So there is a history of compliance there.
    Senator Grams. Could any of the mutual legal assistance 
treaties be used to provide information to a treaty partner for 
use in an investigation by a multilateral criminal tribunal?
    Ms. Borek. There is a standard provision in the mutual 
legal assistance treaty which limits the use of information. I 
will just sort of read one which is from the Luxembourg treaty. 
It says that: ``The central authority of the requested state 
may require that the requesting state not use any information 
or evidence obtained under this treaty in any investigation, 
prosecution, or proceeding other than that described in the 
request without the prior consent of the requested states.''
    There is an exception where it has been made public, and 
then there is an exception which is basically for the United 
States, when it is required to disclose information to the 
defendant, for example, as exculpatory material. But the 
fundamental obligation is that, to the extent this is not 
public information, the state providing the information can 
require that it should not be used in any other prosecution, 
including other prosecutions by the state itself.
    Mr. Richard. If I may add just a historical footnote, the 
use limitation has historically been used as a sword against us 
with respect to our ability to use information that we acquire, 
generally in the context of tax cases or cases involving 
offenses that the other party to the treaty does not 
necessarily want to support. So it has generally been used 
offensively against us, although I recognize and I am not 
minimizing the concern here.
    Each of the treaties--the whole construct here through the 
central authority is to establish a relationship, if you will, 
between the central authorities, and I would anticipate that we 
would have a variety of opportunities to either attempt to 
block such a misuse of our information or to know it in advance 
and then be in a position to just simply assure that it not go 
over unless we had sufficient comfort that it would not be used 
in this distorted way.
    Senator Grams. Mr. Richard, I have a number of questions 
for you. But Ms. Borek, if you would like to jump in and add 
anything to these questions, please feel free to do so.
    Mr. Richard, in the case of Balzeese versus the United 
States the Supreme Court recently observed that the Fifth 
Amendment privilege against self-incrimination might apply in 
instances of multi-international or multinational law 
enforcement efforts. Do you anticipate that this case will have 
any impact on the execution of MLAT requests?
    Mr. Richard. We have contended with this issue of 
attempting to invoke privileges, both domestic privileges and 
the privileges of the other country. We have been dealing with 
this situation under existing treaties. It has not proven in my 
judgment to be a particularly significant impediment, if you 
will, to our ability to proceed.
    The recent Supreme Court ruling with respect to the 
availability to invoke the Fifth Amendment as a result of fear 
of foreign prosecution I suspect will assist us, if anything, 
in gathering information. So I do not think it is going to be 
an impediment, frankly.
    Senator Grams. Under the treaty, how do U.S. constitutional 
protections apply to information or evidence collected outside 
of the United States?
    Mr. Richard. Let me say, the ultimate arbiter of that 
question is a U.S. judge. For example, if we are taking a 
deposition abroad and an individual seeks to invoke a privilege 
under U.S. law, the provisions generally provide for us to take 
the testimony and have that issue adjudicated at the time when 
we are seeking to admit the evidence in a U.S. court.
    The U.S. court can rule on the validity of the invocation 
of the privilege. So ultimately there is evidence that will be 
before the court in the United States and judged as to its 
constitutionality by the U.S. court.
    This has raised interesting questions, but with respect to 
issues of acquiring information and evidence pursuant to the 
treaty I think the Fourth Amendment reasonableness standard 
will be looked to heavily by the courts and if the process 
employed reasonable, and that it will be because it will be 
pursuant to the laws of the receiving country, pursuant to the 
treaty, I think the courts will appreciate that the process has 
been a reasonable one.
    Senator Grams. According to some of the statistics that I 
have, although there has been an increase in extraditions to 
the United States, the number of extraditions from the United 
States has actually declined. Is it accurate that there has 
actually been a decline in extraditions from the United States?
    Mr. Richard. Well, I think in terms of the actual numbers 
that we have managed to send out pursuant to extradition 
treaties, our statistics I believe do reflect a small decline. 
Staff brought it to our attention and we have been considering 
possible reasons for it. One of them, and it is pure 
speculation on my part at this time, is that at one time 
extraditions were few in number, the defense bar tended to be 
fairly unfamiliar with what is a fairly old and archaic 
process.
    But those times are changing now. The extradition is being 
examined very closely. I think that it is taking more and more 
time to get them through our courts and I suspect that this may 
be slowing down our own process, if you will. There is more 
inclination to seek habeas relief when there is an extradition 
granted by our courts, and I do think the courts are taking a 
hard look at it.
    As you know, they recently entertained a challenge to the 
entire structure of our extradition relationship in the LaBue 
case. Ultimately that was resolved upholding the current 
structure, but nevertheless that alone created a certain 
interest in the entire field by the legal community.
    Senator Grams. As you stated in your testimony, Mr. 
Richard, the pending treaties are mainly with Caribbean 
countries as well as Eastern and Western Europe, and will be 
important to law enforcement efforts with regard to money- 
laundering, organized crime, and drug trafficking. A thorny 
effort in the area of international criminal investigations has 
been the unwillingness of countries to forego bank secrecy 
protections.
    Now, what progress do these countries make in enabling law 
enforcement to retrieve any bank information previously that 
had been protected by the bank secrecy laws before?
    Mr. Richard. Frequently it is precisely the treaty itself 
that provides the mechanism to pierce the bank secrecy and 
other domestic confidentiality provisions. When we go under a 
letters rogatory process, frequently the domestic law would not 
permit the court on the basis of comity merely to set aside the 
secrecy provisions. Pursuant to the treaty, we do acquire and 
it is a major point of negotiations to be sure that we do have 
access to bank records and other similar confidential 
materials. These are indispensable for making money-laundering 
cases, drug cases, and the like.
    I think the Cayman Island treaty, which has been in place 
for a while, is a prime example where before the treaty we had 
a terrible time trying to pierce bank secrecy. Under the treaty 
we do it routinely now. We would hope that we would continue to 
see good results under the treaties.
    The question of money laundering is particularly acute. A 
lot of these countries have by reputation alone significant 
money laundering problems and it is precisely for that reason 
that we wish to have the treaty as a vehicle for trying to 
pierce that secrecy.
    Senator Grams. Under a Senate condition to ratification of 
a bilateral tax treaty with Luxembourg, the pending mutual 
legal assistance treaty with that country must be first 
ratified. What, if any, additional law enforcement tools will 
that treaty provide for the investment of criminal and civil 
tax investigations in Luxembourg?
    Mr. Richard. You are talking about the tax treaty?
    Senator Grams. Yes.
    Mr. Richard. Or the mutual legal assistance treaty? The 
mutual legal assistance treaty will only apply to a criminal 
tax matter, where the tax treaty itself applies to both 
criminal and civil and is much more specific and broad-based 
than the one with the treaty.
    The current treaty in Luxembourg, mutual legal assistance 
treaty, provides that assistance will be granted for offenses 
involving value added taxes, sales taxes, excise taxes, customs 
duties, and any other taxes therein after agreed to by the 
contracting parties through the exchange of diplomatic notes.
    Senator Grams. The mutual legal assistance treaties commit 
the United States to search, seizure, and delivery at the 
request of a foreign government and empower American courts to 
issue warrants and other orders necessary to execute a treaty 
request. Now, the Electronic Communications Privacy Act and the 
Foreign Intelligence Surveillance Act both reinforce the 
commands of the Fourth Amendment with procedural requirements 
that may not themselves be constitutionally required.
    So does the treaty require the United States to honor a 
treaty request for electronic surveillance within the United 
States?
    Mr. Richard. Sir, I am not aware that mutual legal 
assistance treaties have ever been used as a vehicle for 
acquiring electronic surveillance, except at best in situations 
where we had independent jurisdiction of the activities. Where 
this is a crime committed wholly abroad and there is no 
jurisdictional basis for our own law enforcement, I am not 
aware that we have ever done that.
    The whole concept of search and seizures in the mutual 
legal assistance area must be done in accord with U.S. domestic 
law. So that it is not something that, for example, both in 
terms of the standard and the jurisdiction, that our own courts 
will not scrutinize and determine if it is constitutional. The 
mere fact that a country is requesting it will not be 
dispositive of our ability to do it.
    But like I say, I am not aware that we have ever done that 
under a mutual legal assistance treaty. Certainly this is only 
limited to criminal requests, so that, for example, a foreign 
intelligence service approaching us for assistance in 
connection with an intelligence matter, this treaty would not 
be available for that.
    Senator Grams. In another area, the Hong Kong Prisoner 
Transfer Treaty that was mentioned contains a standard 
provision regarding the enforcement of sentences in the country 
receiving the transferred prisoner. Specifically, the treaty 
requires that the laws and procedures of the party receiving 
the prisoner regulate the continued enforcement of the sentence 
with respect to the conditions for imprisonment and any 
reduction of sentence, conditional release, or parole.
    So how does the United States ensure that the prisoner who 
is transferred under similar treaties actually would finish out 
their sentences in prison?
    Mr. Richard. When you say ``ensure,'' I am not sure that we 
have a mechanism per se to ensure it. We are in a position to 
make inquiry as to what the conversion is, if you will, in 
terms of the sentence. At times, if we are not satisfied with 
what we anticipate would be the length of time, if you will, we 
always have the option of refusing to transfer.
    I cite, for example, the Barraldini case with Italy, where 
that is precisely an issue between us and Italy. After the 
fact, of course, one of our concerns is that we not see a 
revolving door, if you will, we transfer a prisoner and the 
next moment the prisoner is released pursuant to the laws of 
the receiving country.
    I think as a practical matter we become familiar with the 
processes of the host government and try to ensure that we have 
a fair read on what we can expect. But I have seen it work the 
other way, in all candor. I have seen prisoners suffering 
significant legal sentences abroad transferred here and, in 
accord with our system, the amount of time they spend in the 
U.S. on a converted sentence is much less than that which is 
imposed abroad. It is a reciprocal aspect of the situation.
    But we are in a position to simply refuse if we do not 
think it is going to be fair and equitable under the 
circumstances.
    Senator Grams. Now, what guidelines are applied in the 
decision, then, to consent to such a transfer so as to ensure 
that prisoners that have committed violence or other serious 
crimes are not eligible for transfer and potential release in 
the receiving country? So you are saying that there are 
guidelines or there are inquiries made or assurances that you 
want to have before the transfer would actually be made?
    Mr. Richard. Yes. Well, I do not want to suggest that in 
every case we seek specific assurances. We do not. We have a 
process in place, which I would be glad to articulate in 
writing to the committee. But essentially it consists of 
consulting with the prosecutors, consulting with the law 
enforcement agencies that had developed the case, interested 
parties, victims if necessary, to get an indication from them 
as to the receptivity of a transfer.
    Frequently we look to issues of have they cooperated with 
law enforcement after their conviction, do they have any 
outstanding fines, have they made the restitution required, and 
so forth. Then we make a policy judgment in a particular case 
whether to grant it or not.
    Where we have anticipated or a basis to believe, because of 
their own family ties, being in the United States, 
notwithstanding their citizenship, we might be very reluctant 
to transfer because chances are that individual once they hit 
the streets will try to come right back to the U.S. So it is an 
assessment. But I can give you a chapter and verse of how we go 
through the process.
    Senator Grams. I would probably prefer that in writing if 
you could, just give us a short background on it.
    Mr. Richard. Yes, I would be glad to.
    Senator Grams. Thank you.
    State law enforcement officials also have the ability to 
request extradition through your office as well as to seek law 
enforcement from a foreign country. What kinds of educational 
outreach does the Department of Justice do to ensure that State 
law enforcement officials are aware of the treaties, the 
benefits, and also some of the procedures for utilizing these 
treaties? Is there an outreach, a program that is available?
    Mr. Richard. Yes, and one that is becoming more and more 
intense. We have recently begun a program whereby we bring in 
as a representative of State and local authorities a detailee 
right into our Office of International Affairs. We also 
participate in a variety of conferences with State and local 
authorities when they meet. There are annual national 
conferences among State extradition officials, for example. We 
are always in attendance and provide presentations.
    We have various manuals that we have prepared on the 
procedures for preparing extradition packages which we send 
out. The Attorney General recently wrote to, I think, just 
about every local prosecutive agency identifying our Office of 
International Affairs as the vehicle for answering any of their 
needs in the international area on extradition and mutual legal 
assistance.
    We are exploring additional avenues, if you will, primarily 
through our State and local law enforcement committees as an 
additional vehicle for educating State and local authorities on 
the process. Our objective is to bring State and local 
officials into the entire process. In particular, for example, 
we want to get their feedback as to what the priority countries 
should be in terms of future negotiations, for example. We want 
to know where they are encountering problems in acquiring 
evidence or fugitives fleeting and so forth. So we want them to 
be partners with us in this whole international enforcement 
arena.
    Senator Grams. Now, prior to extradition in capital murder 
cases some treaty partners seek assurances that the death 
penalty will not be imposed in the event of a guilty verdict. 
Now, the Secretary of State generally gives that assurance 
based on similar assurances from the U.S. State seeking 
extradition.
    Is such an assurance from the State government sufficient 
for most foreign governments?
    Mr. Richard. Maybe Ms. Borek can answer that. My 
understanding is that by and large, yes, although on occasion I 
seem to recall that sought State Department assurances 
themselves that this is an accurate assurance. But I would 
stress, though, that this is a process of consultation with the 
State authorities. It is their choice whether to give the 
assurances or not, and it is a balancing act. Do they wish to 
forego the extradition request, which may be the consequence of 
not giving the assurance, and rely on the hope that the 
individual might at some future time be apprehended if he or 
she were to leave the country or what have you and locate 
somewhere else?
    It is a decision that frequently is a difficult one to make 
by the State authorities, and we work with them the best we 
can. At times we can convince the host government that the 
assurances, while not categorical, are adequate, so that they 
not be in effect denied, that the extradition is not denied 
across the board and the State interests are protected.
    It is not, as I say, a situation that we necessarily 
endorse, although on one occasion in one of the treaties we 
want the capability of demanding assurances because the other 
country has at least the potential of having the death sentence 
for crimes that we would not otherwise impose the death penalty 
on.
    Senator Grams. Ms. Borek, did you want to add anything?
    Ms. Borek. Thank you. I think foreign governments generally 
realize that having the assurance of the actual prosecuting 
authority is more important than having the assurance from the 
State Department from the practical point of view. Certainly, 
we always seek that as a precondition for giving any further 
assurances.
    I think that, as Mr. Richard said, from time to time we are 
asked to endorse that assurance. But I think this has been 
generally effective, and when there has been a difficulty it is 
not with the source of the assurance. There have been issues 
with Italy about the whole system and how it works, but it 
certainly is not because they have any particular lack of 
confidence in State or local prosecuting authorities.
    Senator Grams. Would there be any question of the method of 
execution?
    Mr. Richard. That has on occasion come up, come up in the 
context of concerns expressed by the European court on this 
death row phenomenon, the individual has been on death row so 
long that that process itself has proven unusual in the 
judgment of some. So that is often the basis of an attack, if 
you will, on the process, not directed necessarily at death 
penalty concepts, but rather the process employed in this 
country and the length of time it takes from conviction to the 
execution.
    So this is being raised on occasion in the European courts, 
but so far it has not precluded, at least to my knowledge, an 
extradition on that basis alone.
    Senator Grams. What recourse does the Secretary of State 
have if the U.S. State does not honor its agreement to suspend 
the death penalty where an extradited murderer is found guilty 
in a capital murder case? Again a hypothetical.
    Ms. Borek. That is a question which has been the subject of 
considerable legal analysis. I cannot give you a definitive 
answer on that because, happily, it has never been an issue in 
a real case. I think we rely fundamentally on the validity of 
the assurances in the first instance. Otherwise I think we 
would have to seek some sort of legal action vis a vis the 
authorities in question and intervention via the Justice 
Department if necessary.
    Senator Grams. And you would employ intervention? I mean, 
you would see that as a logical----
    Ms. Borek. Certainly we would want to see the assurances 
upheld. I think we would consider that as an absolute last 
resort.
    Senator Grams. Mr. Richard, just one final set of questions 
here. In your testimony you referred to the United States being 
on the cutting edge of criminalizing newly emerging criminal 
activity, such as money laundering, computer-related abuses, 
and environmental crimes.
    Mr. Richard. Yes, sir.
    Senator Grams. Do each of the pending extradition treaties 
require extradition for these crimes?
    Mr. Richard. I believe all of them--it is all under the 
dual criminality concept. When we go into extradition 
negotiations, we do particularly hone in on just what are the 
laws of the other country with respect to these kinds of 
offenses. It goes on: computer crimes, money laundering, 
conspiracy, what we call our RICO statute, our racketeering 
statute, and the like.
    So we try to satisfy ourselves, when possible, that we have 
the broadest coverage as possible.
    All the extradition treaties that we have before us do 
cover these types of offenses.
    Senator Grams. Have mutual legal assistance treaties 
currently in force, have they been effective in ensuring 
extradition of individuals charged with these types of crimes 
as well?
    Mr. Richard. That is an interesting question. I am not sure 
that we have ever gone back and taken a look at the evidence 
that we have acquired under a mutual legal assistance treaty 
and seen how much of that has been subsequently incorporated 
into an extradition request. I am not sure I can answer that.
    However, I do know in many of these cases we use them in 
tandem, if you will, so that we are in effect requesting the 
extradition plus we are requesting assistance in gathering 
evidence from that location at the same time. At times under 
the extradition provisions at the time of the arrest of the 
individual he or she may be in possession of materials which by 
the terms of the extradition treaty are also seized. So they 
are effective vehicles, but I am not sure we collect statistics 
along those lines.
    Senator Grams. Mrs. Borek, anything to add?
    Ms. Borek. No.
    Senator Grams. Well, that is all the questions I had, but 
what I would like to do is leave the record open for probably 
the remainder of the week in case--I know other members of the 
committee might want to submit some questions in writing for 
you. If that happens, if you could answer and respond and send 
them back to the committee in due process, hopefully. If you 
have any other additional information that you would like to 
supply to the committee, please do that as well as in writing.
    Again, I want to thank you for your time this morning and 
your answers, and I appreciate the responses.
    Mr. Richard. Thank you very much, Mr. Chairman.
    Ms. Borek. Thank you.
    Senator Grams. The hearing is now complete.
    [Whereupon, at 11:12 a.m., the committee was adjourned, 
subject to the call of the Chair.]


                            A P P E N D I X

                              ----------                              

                        U.S. Department of Justice,
                    Criminal Division, Washington DC 20530,
                                                   October 8, 1998.
Patricia McNerney,
Counsel, Foreign Relations Committee,
United States Senate,
Washington DC 20510.

Dear Ms. McNerney: The Department of Justice has carefully considered 
the proposals from the National Association of Criminal Defense Lawyers 
with respect to the mutual legal assistance treaties, prisoner transfer 
treaties, and extradition treaties now pending before this Committee. 
We believe that these proposals, if adopted, would hamper rather than 
enhance law enforcement efforts to develop effective mechanisms for 
securing cooperation from foreign criminal justice agencies.
              I. Mutual Legal Assistance Treaties (MLATs)
    The NACDL's proposal that the Senate place language in the reports 
that purport to allow any of the hundreds of Federal or state judges 
across the country to order the Government to make MLAT requests on 
behalf of criminal defendants, despite the explicit language to the 
contrary in the treaties themselves, would be contrary to the public 
interest in fighting international crime effectively. This proposal 
strikes at a basic premise of the treaties, and in the unlikely event 
our treaty partners would accept such a change, could transform the 
MLATs from important and useful law enforcement tools into mechanisms 
of little value to the government which, moreover, can be used by 
defense attorneys to frustrate criminal prosecution.
    The Department of Justice believes that the MLATs before the 
Committee already strike exactly the right balance between the needs of 
law enforcement and the interests of the defense. The MLATs were 
intended to be law enforcement tools, and were never intended to 
provide benefits to the defense bar. It is not ``unfair'' for MLATs to 
govern assistance solely between U.S. and foreign Government 
prosecutors and investigators, any more than it is improper for the FBI 
to conduct investigations for prosecutors and not for defendants. The 
Government has the job of assembling evidence to prove guilt beyond a 
reasonable doubt, so it must have the tools to do so. The defense does 
not have the same job, and does not need exactly the same tools.
    We know that the NACDL has raised this issue repeatedly since 1988. 
For example, in 1992, Michael Abbell (then counsel to leaders of a 
Colombian drug cartel) strongly urged on behalf of NACDL that this 
Committee require that MLATs permit requests by private persons such as 
defendants in criminal cases. To our knowledge, however, no court has 
ever ruled that due process or fairness require that MLATs be made 
available to defendants. The Senate Foreign Relations Committee did not 
adopt NACDL's proposals in 1988 or 1992, or at any time since then, and 
the farthest the Committee has gone to accommodate this claim has been 
to comment, in connection with one MLAT in 1989:

    [C]oncern was raised that defendants in criminal cases are 
        explicitly excluded from use of the Mutual Legal Assistance 
        Treaties. The committee notes that nothing in this treaty is 
        intended to negate the authority of the Court to ask the 
        prosecution to make requests for information under the treaty. 
        (emphasis added)

The Committee has since declined to include such language with respect 
to any subsequent MLATs. It should be noted that the 1989 comment 
referred only to a court's ability to request that the prosecution make 
an MLAT request, and thus is much more reasonable than the NACDL's 
current proposal that the Committee offer an opinion on the court's 
power to order the U.S. Central Authority to make such requests.
    We believe that the Committee's disinclination to adopt the NACDL's 
suggestions have been correct for several reasons.
    First, a major problem with making defense requests under MLATs is 
that any position we take is likely to be reciprocal. In other words, 
if the U.S. sends requests on behalf of criminal defendants in the 
U.S., we may have to execute requests made by our MLAT partners on 
behalf of criminal defendants abroad. This effectively will force the 
Department of Justice, the FBI, and other U.S. agencies to help foreign 
defendants (including drug traffickers like the members of the 
Colombian drug cartels) combat the criminal charges lawfully brought 
against them by our MLAT partners. This may further the interests of 
U.S. defense attorneys representing those persons, but it hardly serves 
the U.S. public interest. Indeed, in some cases, the NACDL position 
would place the Department of Justice in an awkward conflict of 
interest, because we would have to simultaneously help foreign 
prosecutors obtain the evidence needed to convict foreign criminals and 
assist those same criminals to avoid conviction.
    Second, since the MLATs were not negotiated for use by the defense, 
they contain several provisions which make them inappropriate 
instruments for defense requests.
    For example, the MLATs require the Requested State to pay much of 
the costs of executing requests for assistance. When we anticipate the 
costs of a proposed MLAT, we considered the likely volume of requests 
from U.S. and foreign law enforcement, but no assessment of possible 
defense requests is made. Since our treaty partners likely make the 
same calculation, some of them may refuse to ratify an MLAT rather than 
take on an obligation to assist criminal suspects as well as U.S. law 
enforcement.
    Another, more important issue involves the processing of requests. 
Each MLAT names the Attorney General as Central Authority for the 
United States. The Attorney General has delegated many of the duties of 
this role to the Office of International Affairs (OIA) in the Criminal 
Division. The function of that Office is not merely one of a ``post 
office'' or ``switchboard'' for the transmission of requests, but 
rather involves, on a daily basis, a critical role in the prosecutive 
process, including consulting with and advising the prosecutors seeking 
assistance under the MLAT. OIA regularly resolves questions as to how 
best to cast a request so that it will fall within the scope of the 
relevant MLAT; develops strategies designed to obtain evidence in a 
form admissible in a U.S. court; and collaborates with the requester to 
present the request in the most effective form, and with the most 
persuasive arguments, in order to convince the requested state to 
provide the assistance needed. All of this requires a probing analysis 
of all the relevant facts in the case, and, in essence, creates an 
``attorney-client'' relationship between the requestor and the OIA 
attorney. To place OIA in the position of counselling the defense in 
the formulation and transmittal of MLAT requests and advocating such 
requests to foreign officials creates a conflict of interest. (This is 
particularly true in Federal criminal cases, where the prosecutor and 
the defendant may be seeking, through OIA, to pursue evidence in the 
same case). It also is doubtful that the defense would wish to fully 
disclose the theory of its case, the evidence it already has, and its 
proposed trial strategy, and other extremely sensitive matters relating 
to its trial strategy to a federal prosecutor working for the Criminal 
Division of the Department of Justice. That, however, is precisely the 
kind of disclosure that is essential for OIA to properly and 
successfully pursue MLAT requests. Moreover, there is a further 
conflict of interest since OIA must necessarily establish a priority 
among the requests it receives, identifying and handling the more 
urgent ones earlier than the less urgent.
    Finally, the MLATs before the Senate were designed to provide 
solutions to problems that our prosecutors encounter in getting 
evidence from abroad. The problems encountered by prosecutors in 
employing letters rogatory are most serious when seeking evidence 
before indictment, and criminal defendants never had those problems at 
all. Even post-indictment, the problems faced by the Government and the 
defense are not equivalent, because. The defendant frequently has far 
greater access to evidence abroad than does the Government, since 
often, it was the defendant who chose to use foreign institutions (such 
as foreign banks in which evidence is located) in the first place. 
Thus, the Government most often uses MLATs to obtain copies of a 
defendant's foreign bank records; in such cases, the defendant already 
has copies of the records, or can easily obtain them simply by 
contacting his or her bank directly. Similarly, the Government uses 
MLATs to arrange through the foreign government to question the 
defendant's criminal associates abroad, persons that the defendant can 
usually contact and speak to without foreign government intervention. 
In short, the NACDL proposal is a ``solution'' for which no serious 
problem has ever emerged.
            II. Inter-American Prisoner Transfer Convention
    The NACDL supports the Senate approval of the Inter-American 
Prisoner Transfer Convention, which was transmitted to the Senate 
September 30, 1996. The Departments of Justice and State also support 
approval of this convention, as well as approval of the Inter-American 
Mutual Assistance Treaty and companion Protocol on Assistance in Tax 
Cases; the Inter-American Convention on Firearms Trafficking; and the 
Inter-American Convention Against Corruption. The Committee may wish to 
schedule a single hearing on all of these OAS law enforcement treaties.
                       III. Extradition Treaties
    The NACDL suggests that some of the treaties now before the Senate 
``contain waiver of extradition provisions that do not follow the most 
recent U.S. extradition treaties.'' In fact, the treaties before the 
Senate are typical of recent extradition treaties on this point. The 
NACDL is simply incorrect when it suggests that most recent U.S. 
treaties mandate that waivers occur ``in a formal court proceeding . . 
. in which [the fugitive] is: (1) represented by counsel; (2) advised 
of his rights under the treaty and the laws of that country; and (3) 
advised as to the effect of his waiver under the laws of the requesting 
country.'' While it is true that many recent U.S. extradition treaties 
contain some provision for simplifying or waiving extradition, most do 
not specify the procedure to be followed for waivers, and none of them 
go into the level of detail that the NACDL suggests. In our view, it is 
sufficient if the treaty states that waiver may be take place, leaving 
the precise procedure to be followed to the law and practice of the 
state where the proceeding occurs.
    The Administration is committed to bringing these treaties into 
force as soon as possible. We stand ready to respond to any further 
questions the Committee may have about these treaties.
            Sincerely,
                                   Mark M. Richard,
                         Deputy Assistant Attorney General.

                               __________

                 United States Department of State,
                                      Washington, DC 20520,
                                                September 29, 1998.

The Hon. Jesse Helms,
Chairman,
Committee on Foreign Relations,
United States Senate.

Dear Mr. Chairman: Following the September 15, 1998 hearing at which 
State Department officials testified, additional questions were 
submitted for the record. Please find enclosed the responses to those 
questions.
    If we can be of further assistance to you, please do not hesitate 
to contact us.
            Sincerely,
                                    Barbara Larkin,
                                       Assistant Secretary,
                                               Legislative Affairs.
Enclosure:
        As stated.

  Responses of the Department of State to Questions Asked by Senator 
                                 Helms
    1. During the 105th Congress, the Senate has been asked to give its 
advice and consent on almost as many MLATs as have entered into force 
in the last 20 years.
    Question 1A. How many MLATS are estimated for the 106th Congress?
    Answer. Based on the number of mutual legal assistance treaties 
currently under negotiation or recently signed, we estimate that as 
many as 12-15 new MLATs will be signed and sent to the Senate for 
advice and consent to ratification by the end of the 106th Congress.
    Question 1B. How many MLAT requests did the United States receive 
in the last year?
    Answer. The U.S. Justice Department's Office of International 
Affairs opened 416 cases involving requests received under the twenty 
MLATs now in force. A chart showing the breakdown of these cases by 
country is at Annex 1. Some of these cases involve multiple requests 
from the other country. With respect to this question and questions 1C 
through 1E, we note that statistics regarding formal requests reflect 
only one advantage of creating MLAT relationships. The relationships 
created between the Central Authorities enable numerous informal 
contacts and cooperation in law enforcement matters beyond those which 
are reflected in formal requests.
    Question 1C. How many MLAT requests did the United States submit in 
the last year?
    Answer. The U.S. Justice Department's Office of International 
Affairs opened 290 cases involving requests under the twenty MLATs now 
in force. The attached chart shows the breakdown of these cases by 
country. Several of these cases involve multiple requests to the other 
country. Some of these cases were opened by the Office of International 
Affairs but have not yet resulted in requests being made (e.g., 
requests may be in preparation or may not, based on available 
information, meet the relevant treaty's requirements)
    Question 1D. How many additional MLAT requests is the United States 
likely to receive annually should each of the pending Treaties go into 
effect?
    Question 1E. How many additional MLAT requests is the United States 
likely to submit annually should each of the pending Treaties go into 
effect?
    Answer. It is not possible to predict with certainty the number of 
requests that will be received or submitted annually under a particular 
treaty or treaties because the number of requests is greatly affected 
by factors that cannot be quantified or predicted (including, for 
example, shifting crime trends in both the U.S. and the foreign state, 
the pace at which each treaty partner enacts implementing legislation, 
and the degree to which individual and institutional witnesses in the 
requested state cooperate with particular requests). The nineteen 
countries with MLATs now before the Senate together generated about 84 
incoming cases and 42 outgoing cases in the last year under the pre-
MLAT procedures now in place. It is reasonable to assume that at least 
that number of cases overall will be generated once the proposed MLATs 
enter into force.
    Question 1F. What are the most common types of assistance we are 
asked to provide?
    Answer. The most common type of assistance the United States is 
asked to provide under our mutual legal assistance treaties is to 
arrange for a statement to be taken from a person located in the United 
States regarding an investigation possible prosecution of that person 
abroad. The U.S. is frequently asked to obtain bank records or 
corporate documents located in the U.S. that are related to suspect 
financial transactions in other countries.
    Question 1G. What are the most common types of assistance we 
request?
    Answer. The most common type of assistance we request is the 
production of bank or business records located abroad that are related 
to suspect transactions being investigated or prosecuted in the United 
States. Other kinds of requests include requests for interviews in the 
foreign state with suspects or witnesses, requests for government 
records such as police reports or records of convictions, and requests 
to help arrange for witnesses to travel to the U.S. for questioning. 
The type of assistance requested varies with the state involved. For 
instance, Switzerland, the Cayman Islands, and the Bahamas are major 
financial centers, and a large percentage of our requests there are for 
bank and business records; conversely, relatively few of our requests 
to the Philippines have been for bank records.
    Question 1H. How might the types of assistance sought and requested 
be expected to change in the future?
    Answer. We do not expect the types of assistance to change 
significantly in the future, but it is almost impossible to predict 
this with certainty.
    Question 1I. How might the types of assistance sought and requested 
be expected to differ under the pending Treaties should they go into 
effect than under existing MLATS?
    Answer. We do not expect the types of assistance sought and 
requested to differ under the pending treaties from the overall 
situation under the existing MLATs. However, we expect the assistance 
sought and received to vary by treaty, based on the needs in individual 
cases.

    2. The Technical Analyses accompanying various MLATs have from time 
to time offered an understanding of the reach of an essential interest 
clause or some other feature common to most MLATs or to the practices 
associated with their implementation.

    Question 2A. To what extent do these individual understandings have 
general application?
    Answer. The discussion of the ``essential interests'' clauses found 
in each of the Technical Analyses is intended to reflect the discussion 
of the relevant provision during the negotiation of that particular 
MLAT. The understandings reached in the negotiation of the relevant 
clause were generally similar among the various treaties and to that 
extent they are of general application. Where a particularly detailed 
or nuanced understanding of ``essential interests'' was agreed upon in 
a particular negotiation, that fact is reflected in the Technical 
Analysis (see, e.g., Technical Analysis of the U.S. Australia MLAT).
    Question 2B. Under what kinds of circumstances are we likely to 
invoke the essential interests clause?
    Answer. We would be likely to invoke the essential interests 
clause, for example, if executing the request would prejudice U.S. 
security interests, might oblige us to take action that we believe 
would violate the Constitution, or if executing the request would be 
inconsistent with an applicable proviso developed during the 
ratification process.
    Question 2C. Under what kinds of circumstances are other nations 
likely to invoke the essential interests clause in response to a 
request from us?
    Answer. None of our MLAT treaty partners has yet denied a U.S. 
legal assistance request on essential interests grounds. We could 
envision, for example, a request being denied on national security 
grounds or perhaps where the request involves a case or investigation 
for which the death penalty is possible in the United States but not in 
our treaty partner.
    Question 2D. Would you permit one of the several States of the 
United States that has abolished the death penalty to decline to 
execute a Treaty request related to a capital offense on the basis of 
the essential interests clause?
    Answer. Under each of the MLATs, only our Attorney General, as 
Central Authority, or her designee, may deny a request on the basis of 
essential interests. Moreover, the overwhelming majority of MLAT 
requests are executed by Federal officials acting under Federal law (28 
U.S.C. Sec. 1782), and state officials would not usually be involved. 
If for some reason state officials were called upon to execute an MLAT 
request, we would not expect them to decline to execute a request 
because it related to a capital offense, because we believe that even 
those states that have abolished the death penalty recognize the 
important public interest in efficient and effective investigation of 
capital cases in other nations. Indeed, states within the U.S. that 
have abolished the death penalty do not refuse to cooperate with other 
states within the U.S. that do have capital punishment, and we expect 
them to cooperate similarly with our MLAT partners.
    Question 2E. Has the United States ever denied a request based on 
the ``essential interests'' proviso included in most MLATS? What 
inquiry is made to ensure the requirements of this proviso are met?
    Answer. So far, the United States has not denied any requests based 
on the essential interests provisos. The thorough inquiry we make to 
ensure that the requirements of the various provisos are enforced 
involves the identification by the Justice Department of the relevant 
senior government officials who will have access to the information, 
and consultation with all other appropriate intelligence, antinarcotic 
and foreign policy agencies to make the relevant determinations.
    Question 3. Does the term ``person'' in the locate-and-identify 
articles refer only to human beings? Does the term ``person'' in the 
locate-and-identify articles refer to fugitives?
    Answer. The term ``person'' in locate and identify articles refers 
to both human beings and legal persons (e.g., corporations or 
institutions). The person could refer to a fugitive whose location we 
want to ascertain, but it could also be a witness we would like to 
interview or a person whom we wish to serve with process.
    Question 4. Why is the Extradition Protocol with Spain necessary? 
Are there any specific cases this Protocol would affect?
    Answer. The primary reason the Extradition Protocol with Spain was 
negotiated was that the main U.S.-Spain Treaty requires that 
extradition not be granted if the statute of limitations of either the 
Requesting State or the Requested State has expired, and this proved to 
be extremely difficult to implement. The Protocol substituted the much 
simpler rule that the statute of limitations of the Requesting State 
alone be applied. The Protocol also addresses the issue of amnesties by 
stating that amnesties in the Requested State will not bar extradition, 
and includes provisions on waiver of extradition and rule of specialty. 
The changes to the U.S.-Spain extradition relationship will be of 
general future application and will affect any future case brought 
under the treaty, as amended. The Protocol was not negotiated to 
address any particular pending or future case.
    Question 5. Why is the Extradition Protocol with Mexico necessary? 
Are there any specific cases this Protocol would affect?
    Answer. The primary reason for the Mexico Protocol is that the main 
U.S.-Mexico Extradition Treaty does not provide for temporary 
extradition for trial of persons whose final extradition must be 
deferred because they are serving long sentences in the Requested 
State.
    An important impetus for the Protocol was the inability of U.S. and 
Mexican authorities under the 1978 Treaty to effect the temporary 
surrender to New York of a dangerous felon (Luis Martinez) wanted for 
prosecution there on multiple murder charges. Arranging Martinez' trial 
in New York, before the completion of a seven-year Mexican prison 
sentence he was serving, was urgent because of the imminent loss of the 
only eyewitness to the crime, who was planning to leave the country. 
Given the relatively more serious nature of the U.S. charges, Mexico 
eventually agreed to parole Martinez so that he could be released and 
surrendered to U.S. authorities. According to our most recent 
information, he is currently awaiting trial in New York.
    Question 6. Please state for the record the countries that:

    are required by the pending treaties to extradite their 
        nationals.
   have the discretion to extradite their nationals and the 
        legal authority to extradite their nationals under domestic 
        law.
   have the discretion to extradite their nationals but do not 
        have the legal authority to extradite their nationals under 
        domestic law.
    Answer. The extradition treaties with Antigua and Barbuda, 
Argentina, Barbados, Dominica, Grenada, India, St. Kitts and Nevis, St. 
Lucia, St. Vincent and the Grenadines, Trinidad and Tobago and Zimbabwe 
all require extradition of nationals. The extradition treaties with 
Austria, Cyprus, Luxembourg, and Poland give each party the discretion 
to extradite its nationals, but each of these nations at this time is 
prohibited by statute or constitution from doing so. (At the time of 
the negotiations, Poland apparently had the legal authority to 
extradite its nationals if a treaty so provided, but a subsequent 
amendment of its Constitution eliminated that possibility). The 
extradition treaty with France gives the United States the discretion 
to extradite its nationals to France, but does not include similar 
discretion for France to extradite its nationals to the United States; 
a 1927 statute prohibits France from extraditing French nationals.
    The Mexico and Spain Protocols before the Committee do not address 
the issue of extradition of nationals. For the record, however, Mexico 
will extradite nationals under some circumstances. Spain historically 
has not extradited its nationals because of limitations in its national 
law, but a recent favorable judicial decision suggests that extradition 
of nationals may become possible under some circumstances.
    Question 7. Please state the State Department policy with regard to 
making a request for extradition to countries that do not extradite 
their nationals.
    Answer. Where an extradition treaty partner is permitted but not 
required to extradite its nationals, the State Department might request 
extradition of that country's national even if the relevant treaty 
partner had generally denied such requests. We might make such a 
request, for example, in an effort to encourage the country to exercise 
discretion available under its domestic law. In addition, there are 
provisions in the new treaties with countries that do not now extradite 
their nationals obligating the country, upon the U.S. Government's 
request, to prosecute their nationals if they are not extradited (see, 
e.g., Art. 3(2) of Luxembourg Treaty and Art. 4(2) of Poland Treaty). 
The State Department in consultation with the Justice Department might 
in some cases seek extradition of a foreign national to trigger a 
prosecution under one of these articles.
    Question 8. Why was an annex to the Hong Kong Mutual Legal 
Assistance Agreement necessary?
    Answer. A general goal of U.S. MLAT negotiators is to maximize the 
scope of assistance that is available under an MLAT. As a result, the 
majority of our MLATs do not contain a dual criminality requirement. 
However, Hong Kong's negotiators insisted upon the inclusion of a dual 
criminality standard in Article 3 (Limitations on Providing Assistance) 
. The purpose of the Annex is to ensure that our requests will be 
executed, irrespective of dual criminality, in connection with a wide 
range of offenses that are important to us but which may not have 
identical counterparts in Hong Kong law. These offenses include, but 
are not limited to: money laundering, fraud against the government, the 
Foreign Corrupt Practices Act, racketeering, and criminal exploitation 
of children. Somewhat similar annexes accompany several other MLATs, 
including the MLAT with South Korea (which was approved by the Senate 
August 2, 1996), the Cayman Islands (approved by the Senate Oct. 24, 
1989), and with Switzerland (approved by the Senate June 21, 1976).
    Question 9. Does the State Department find that the Hong Kong 
Agreements provide precedent for treaty relationships with non-
sovereign entities? If so, please explain.
    Answer. The State Department has viewed Hong Kong as a unique 
situation in light of the autonomy of the Hong Kong criminal justice 
system after reversion and the importance of our law enforcement 
interests. The United States has a long history of direct involvement 
with Hong Kong as a crown colony of Great Britain, including an active 
law enforcement and prisoner transfer relationship which we have every 
reason to continue. Hong Kong enters into each of these treaties with 
the authorization of ``the sovereign government which is responsible 
for [its] foreign affairs.'' In fact, both the United Kingdom and the 
People's Republic of China approved the treaties through the Sino-
British Joint Liaison Group.
    The upcoming reversion of Macau to the sovereignty of the PRC, in 
December 1999, presents another case in which we will have to address 
the need to continue an existing law enforcement relationship. As we 
begin planning for reversion, if an arrangement similar to that used 
for Hong Kong seems appropriate, we would consult with the Committee.
    Question 10. Why do the mutual legal assistance treaties differ 
with respect to the inclusion of standard forms in the treaty document?
    Answer. We usually seek to include provisions for use of forms in 
the treaty in order to ensure that evidence obtained under the MLAT 
(especially bank and business records) will be admissible in U.S. 
courts as provided by U.S. law (see 18 U.S.C. Sec. 3505). While these 
forms could be developed by the Central Authorities during 
implementation of the treaties, we have found it extremely helpful in 
the implementation if the forms are agreed upon during the negotiations 
and contained in the treaty document itself. Thus, three such forms are 
found in MLATs with Antigua and Barbuda, Australia, Barbados, Brazil, 
Dominica, Grenada, Israel, St. Kitts and Nevis, St. Lucia, St. Vincent 
and the Grenadines, and Trinidad and Tobago; four forms are included in 
the MLAT with the Czech Republic; and five forms are included in the 
MLATs with Estonia, Lithuania, Luxembourg, and Poland. Sometimes the 
negotiators view the forms as a strictly administrative matter, and 
place them in an exchange of diplomatic notes or letters accompanying 
the treaty (see, e.g., the Hong Kong Agreement). Sometimes, however, 
our treaty partners have difficulty accepting the inclusion of forms 
because they have no similar provisions in their domestic laws, and 
hence cannot utilize them as we do. Only one of the MLATs before the 
Senate, that with Venezuela, has no forms either included or attached.
    Question 11. Why was an exchange of notes necessary with Australia 
regarding the definition of ``essential interests''?
    Answer. Article 3(1) (c) of the U.S.-Australia MLAT permits the 
Central Authority of the Requested State to deny assistance ``if the 
execution of the request would prejudice the security or essential 
interests of the Requested State.'' Section 8 of Australia's Mutual 
Assistance in Criminal Matters Act 1987 (the ``1987 Act''), which is 
the Australian domestic law governing mutual legal assistance, contains 
discretionary and mandatory bases for denial of mutual legal assistance 
requests, including a discretionary limit on the provision of 
assistance in death penalty cases. The exchange of notes, which was 
sought by Australia, gives Australia the discretion to refuse requests 
for assistance in accordance with its law by setting forth the 
understanding of the Parties that the term ``essential interests'' 
includes the limitations on assistance codified in Australian domestic 
law in Section 8 of the 1987 Act, as amended by the Mutual Assistance 
in Criminal Matters Legislation Amendment Act 1996, for as long as the 
law is in effect.
    Australia also wanted the MLAT explicitly to allow it to deny 
assistance in cases and investigations subject to the death penalty in 
the United States. The United States opposed an explicit reference to 
the death penalty in the MLAT. Because Australia's Mutual Assistance in 
Criminal Matters Legislation Amendment Act 1996 amended the 1987 Act to 
limit assistance in death penalty cases, the delegations agreed to 
address this issue through the same exchange of notes. The Australian 
law requires denial of assistance in cases where a person is charged 
with or convicted of a death penalty offense unless the Australian 
Attorney-General determines that assistance should be granted. It also 
makes assistance discretionary in other cases where assistance may 
result in the imposition of the death penalty even where there is no 
charge or conviction of a death penalty offense at the time of the 
request. The Government of Australia confirmed by diplomatic note that 
it will not exercise the discretion to deny assistance in death penalty 
cases where requests for evidence might be exculpatory and that it 
would be unlikely to deny assistance at the pre-indictment phase, where 
the Requesting State is investigating a crime for which no formal 
charges have been filed but to which the death penalty could attach.
    Question 12. Please clarify your hearing testimony for the record 
regarding the Luxembourg MLAT. Specifically, what exchange of 
information provisions does this treaty require that are not provided 
for in the Luxembourg bilateral tax treaty? Please compare these 
requirements to the U.S. model for exchange of information.
    Answer. Because Luxembourg tax authorities are prohibited under 
Luxembourg law from obtaining information from Luxembourg financial 
institutions for their own tax investigations and proceedings, 
Luxembourg was unable to agree to any provision in the U.S.-Luxembourg 
Tax Convention which would obligate the Luxembourg competent authority 
to obtain such information upon the request of U.S. competent authority 
for use in U.S. tax investigations or proceedings. To allow U.S. 
authorities another channel for obtaining information of Luxembourg 
financial institutions, the exchange of notes makes clear that 
information of Luxembourg financial institutions may be provided to 
U.S. authorities only in accordance with the terms of the MLAT.
    During the negotiation of the MLAT, care was taken to ensure that 
the MLAT covers most, if not all, U.S. criminal tax offenses. Article 1 
of the MLAT requires the parties to provide assistance for offenses 
concerning value added taxes, sales taxes, excise taxes, customs 
duties, and any other taxes agreed to by the parties through an 
exchange of diplomatic notes. Assistance for any other tax offenses, 
including income tax offenses, is limited to situations in which the 
facts establish a reasonable suspicion of ``fiscal fraud,'' which is 
defined as a criminal offense in which 11(a) the tax involved, either 
as an absolute amount or in relation to an annual amount due, is 
significant; and (b) the conduct involved constitutes a systematic 
effort or a pattern of activity designed or tending to conceal 
pertinent facts from or provide inaccurate facts to the tax 
authorities.q`` This kind of detailed formulation is not typical of 
U.S. MLATS, most of which do not contain limitations on the exchange of 
criminal tax information.
    Question 13. Please clarify how the MLAT with Israel will relate to 
the bilateral tax treaty with Israel. Also, please clarify the universe 
of fiscal information that is available under the two treaties.
    Answer. The U.S.-Israel MLAT obliges each party to assist the other 
in investigations, prosecutions, and proceedings related to criminal 
matters. The 1975 U.S.-Israel Income Tax Convention (with First and 
Second Protocols) provides for assistance in both civil and criminal 
tax investigations Since there is some overlap between the Tax 
Convention and the MLAT with respect to criminal tax matters, Israel 
requested that the MLAT be accompanied by an exchange of diplomatic 
notes that addresses the conditions under which assistance under the 
MLAT is available in criminal tax cases. The Parties agreed in the 
notes that in general the Tax Convention will be employed to obtain 
assistance in criminal tax matters unless certain circumstances warrant 
seeking assistance under the MLAT. Specifically, assistance under the 
MLAT will not be requested for matters within the scope of the 
provision for cooperation in the Tax Convention unless: (1) the form of 
assistance requested is not within the framework of the Tax Convention; 
or (2) the case concerned also includes additional serious non-tax 
offenses.
    The first exception provides for assistance under the MLAT in 
criminal tax matters when the form of the requested assistance is not 
covered by the Tax Convention. The MLAT provides for a wide variety of 
forms of assistance, which are summarized in Article 2:

  (a) taking the testimony or statements of persons;
  (b) providing documents, records, and articles of evidence;
  (c) serving documents;
  (d) locating and identifying persons or items;
  (e) transferring persons in custody for testimony or for other 
        assistance under the Treaty;
  (f) executing requests for searches and seizures;
  (g) assisting in proceedings related to the immobilization and 
        forfeiture of assets; and
  (h) providing any other form of assistance not prohibited by the laws 
        of the requested state.

    Article 29 of the Tax Convention, as amended, provides for the 
exchange of ``information as is pertinent to carrying out the 
provisions of [the Tax Convention] or preventing fraud or fiscal 
evasion in relation to the taxes which are the subject of [the Tax 
Convention].'' Both the MLAT and the Tax Convention could be used 
(among other things) for the taking of testimony and obtaining 
documents such as bank records. Assistance in connection with criminal 
matters under the MLAT would be more expansive in some ways than 
assistance under the Tax Convention. For example, the MLAT unlike the 
Tax Convention could be used for assistance in service of documents or 
a search and seizure. Since the forms of assistance provided in the 
MLAT but not in the Tax Convention will now be available in criminal 
tax cases, U.S. prosecutors in need of the service of a document or a 
search and seizure in Israel may request such assistance under the 
MLAT.
    The second exception involves investigations or prosecutions in 
which tax offenses are accompanied by other serious non-tax offenses. 
Since the evidence needed for non-tax offenses would not be obtainable 
under the Tax Convention, the Parties agreed that it would be more 
efficient for the prosecutor to request all of the evidence needed, for 
both the tax and non-tax offenses, in one request under the MLAT.
    Question 14. What is the effect of the Protocol to the Treaty with 
St. Vincent and the Grenadines?
    Answer. The Protocol to the MLAT with St. Vincent and the 
Grenadines was sought by the delegation of St. Vincent and the 
Grenadines as a restatement of one aspect of the scope of the treaty. 
The Protocol, like the exchanges of diplomatic notes in the MLATs with 
St. Kitts and Nevis and Antigua and Barbuda, reflects the Parties' 
agreement that Article 1 of the MLAT excludes assistance for civil and 
administrative income tax matters that are unrelated to any criminal 
matter. Since our MLATs do not in any event apply to civil or 
administrative matters unrelated to any criminal matter, the Protocol 
does not alter or affect the scope of the MLAT.

               Annex 1 (Relates to Sen. Helms Question 1)
------------------------------------------------------------------------
   U.S. Mutal Legal Assistance     # Cases-Incoming    # Cases-Outgoing
             Treaty               Requests (FY 1998)  Requests (FY 1998)
------------------------------------------------------------------------
Argentina.......................                 47                   0
Austria.........................                 14                   7
The Bahamas.....................                  0                  17
Canada..........................                 24                  75
The Cayman Islands..............                  2                  19
Hungary.........................                 54                   3
Italy...........................                 27                   9
Jamaica.........................                  1                   1
South Korea.....................                  2                   3
Mexico..........................                 76                  29
Morocco.........................                  0                   0
The Netherlands.................                 22                  17
Panama..........................                 15                   6
The Philippines.................                  1                   6
Spain...........................                 28                   1
Switzerland.....................                 25                  37
Thailand........................                  3                   5
Turkey..........................                 22                   0
The United Kingdom..............                 53                  47
Uruguay.........................                  0                   2
------------------------------------------------------------------------

        
  Responses of the Department of State to Questions Asked by Senator 
                                 Biden
    Question 1. In cases where the United States has an existing 
extradition treaty in place, how many people have been extradited 
between the two countries within the last two years (this question 
applies only to those countries with which an extradition treaty was 
the subject of this hearing)?
    Answer. Attached at Annex 1 are charts showing recent extraditions 
to and from the countries with extradition treaties pending before the 
Committee. These numbers do not include the significant number of cases 
that began with extradition requests, but concluded with the fugitives 
being surrendered by means other than formal extradition, such as 
expulsion or deportation. For example, in 1997 and 1998, Mexico 
deported to the U.S. 11 fugitives in addition to those it extradited 
here.
    It is anticipated that the number of extraditions will increase 
once these new, modern treaties are in force, primarily because in many 
cases the new treaties, which are all based on dual criminality, will 
replace antiquated list treaties that do not include serious crimes 
such as money laundering, racketeering and alien smuggling.
    Question 2. Please describe the Department of Justice's view of the 
state of the law regarding evidence gathered in a search involving 
property owned and occupied by a U.S. citizen living in the Requested 
State, and whether that evidence would then be admissible in a U.S. 
court.
    Answer. We understand this question to be directed at searches 
conducted outside of United States at the request of the United States 
or in an investigation to which the United States is a joint 
participant. In those situations, the current state of the law is 
reflected in a Ninth Circuit decision. In United States v. Barona, 56 
F.3d 1087 (9th Cir. 1995), cert. denied sub nom. Bennett v. United 
States, 116 S.Ct. 813 (1996), the United States participated with 
foreign officials in wiretapping the telephones of certain American 
citizen in Europe under investigation for narcotics offenses. The 
interceptions complied with foreign law, but were not conducted 
pursuant to warrants issued under standards set out in the federal 
wiretap statute. The Ninth Circuit upheld the convictions against a 
claim of a Fourth Amendment violation.
    The Court ruled as an initial matter that the U.S. domestic wiretap 
law had no extraterritorial effect and did not govern the searches. It 
also ruled that the warrant requirement of the Fourth Amendment is 
impracticable in the context of foreign searches. The Court concluded, 
however, that the reasonableness requirement of the Fourth Amendment 
does apply because the wiretaps were the result of a ``joint venture'' 
search. It then held that a foreign search is reasonable if it was 
conducted in accordance with the law of the foreign state in which the 
search occurred. The court therefore rejected the defendants' Fourth 
Amendment claim, and upheld their convictions. This holding is 
consistent with the position that the government had previously argued 
in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990); there, the 
Solicitor General urged that if the Fourth Amendment applies extra 
territorially it should only require that the foreign search be 
reasonable, but not pursuant to a Fourth Amendment warrant, because of 
practical constraints and the difficult questions of sovereignty and 
authority. Attached at Annex 2 is a copy of a February 3, 1998, letter 
from the Department of Justice Office of Legislative Affairs to the 
Honorable Henry J. Hyde, Chairman, House Committee on the Judiciary, 
which discusses this issue in detail.
            U.S.-Mexico Extradition Protocol (T.Doc. 105-46)
    Question 1. Why was it necessary to agree that the mechanism 
established by the Protocol will be reserved for ``exceptional 
situations'', as explained in the Technical Analysis at page 4?

   Did the negotiators have a common understanding as to what 
        constitutes an exceptional situation?
    Answer. The temporary surrender mechanism under the U.S.-Mexico 
Extradition Protocol is generally the same as those in numerous other 
recent U.S. extradition treaties, and the intention is that it will be 
used in the same manner as the temporary surrender provisions in those 
other treaties. The statement in the Technical Analysis is not intended 
to reflect any different understanding, but merely to acknowledge the 
common practice -- i.e., that temporary surrender is virtually always 
reserved for ``exceptional situations.'' Given that temporary surrender 
is a complex process, potentially involving the interaction of federal 
and state judicial and prison authorities, only certain important cases 
would merit the expenditure of resources entailed. In fact, there have 
been very few cases to date under U.S. extradition treaties generally 
in which temporary surrender has been sought.
    The negotiators of this Protocol did indeed have a common 
understanding of the type of case that would trigger the temporary 
surrender mechanism. As noted at pages 8-9 of the statement of Deputy 
Assistant Attorney General Mark Richard before the Senate Foreign 
Relations Committee, an important impetus for the Protocol was the 
inability of U.S. and Mexican authorities under the 1978 extradition 
treaty to effect the temporary surrender to New York of a dangerous 
felon (Luis Martinez) wanted for prosecution there on multiple murder 
charges. Arranging Martinez' trial in New York, before the completion 
of a seven-year Mexican prison sentence he was serving, was urgent 
because of the imminent loss of the only eyewitness to the crimes. 
(Martinez was charged with critically wounding that witness.) U.S. and 
Mexican negotiators agreed that the Martinez case exemplified the 
circumstances in which temporary surrender is appropriate -- i.e., 
those in which the interests of justice would be thwarted by any delay 
in prosecution.
    Question 2. Please provide the text of the extradition treaty 
currently in force.
    Answer. A copy is attached at Annex 3.
             U.S.-India Extradition Treaty (T.Doc. 105-30)
    Question 1. What is the legal status of letters exchanged on June 
25, 1997 in connection with the treaty?
    Answer. The letters represent the authoritative understanding and 
interpretation of the governments of the United States and India that a 
Requesting State shall make an extradition request contemplating 
prosecution or punishment based on laws and procedures other than the 
ordinary criminal laws and procedures of the Requesting State only 
after consultation with and upon the agreement of the Requested State. 
While the letters do not have the legally binding status of the treaty 
itself, they represent a clear and authoritative record of how the 
United States and India interpret and intend to implement the relevant 
treaty provisions.
    Question 2. What are the limitations on the rights of defendants 
that were contained in India's Terrorist and Disruptive (Prevention) 
Act?
    Answer. India's Terrorist and Disruptive (Prevention) Act (TADA) 
limited the rights of a defendant accorded under ordinary Indian 
criminal law in a number of important respects. These include making it 
more difficult for the accused to be released on bail, permitting a 
defendant to be detained for a year before being charged, providing for 
all trial proceedings to be conducted in camera and for the court to 
sit at any place (e.g., including a jail), permitting the court to keep 
secret the identity of witnesses, allowing the admissibility of 
confessions to the police, reversing the burden of proof in certain 
situations, and limiting the right to appeal.
    Question 3. Has the Terrorist and Disruptive (Prevention) Act 
lapsed by its terms or was it repealed?
    Answer. TADA lapsed by its own terms on May 23, 1995, and has not 
been replaced. It continues to have effect, however, with respect to 
cases that were under investigation and trial as of that date.
    Question 4. Does the Executive Branch intend to deny extradition in 
the event a request is made involving a case under that Act or any 
similar law?
    Answer. While we cannot rule out the possibility that a request 
under laws of this type might merit serious consideration, we do not 
anticipate being presented with such a case, at least according to the 
information currently available to us with respect to India. We 
therefore would not expect to extradite to India pursuant to TADA or a 
similar law.
       U.S.-Trinidad & Tobago Extradition Treaty (T. Doc. 105-21)
    Question 1. Is an ``indictable offense'' as used in Article 2(1) 
equivalent to a felony in U.S. law?
    Answer. Yes, we understand that an indictable offense in Trinidad 
and Tobago is roughly equivalent to a felony in U.S. law. Trinidad has 
several categories of offenses, with indictable offenses being 
particularly serious offenses triable before a high court judge and 
jury. As reflected in Article 2(1), offenses are extraditable under the 
treaty only if they are indictable offenses in Trinidad and punishable 
by more than one year in the United States.
          U.S.-Luxembourg Extradition Treaty (T. Doc. 105-10)
    Question 1. Does Article 2(1) (a) include aiding and abetting an 
offense?
    Answer. Yes. During the negotiations of the U.S.-Luxembourg 
extradition treaty, the Luxembourg delegation explained that under 
Article 66 of Luxembourg's Criminal code, a ``co-author'' of an offense 
is punishable to the same extent as the principal. In addition, under 
Article 69 of Luxembourg's Criminal Code, one convicted of being an 
accomplice or accessory to the crime is punishable by a sentence ``one 
grade less than that which could be imposed on the principal.'' Our 
delegation concluded that these provisions of Luxembourg domestic law 
cover the same liability as 18 U.S.C. Sec. 2.
    Question 2. The Technical Analysis related to Article 2(6) states 
that the Secretary of State makes the decision whether to grant or deny 
extradition in case where the prosecution is barred by the statute of 
limitations in the Requested State.

   Please provide the legal authority for the Secretary to make 
        this decision.
   Why would this determination not be one for the court to 
        make?
    Answer. Article 2(6) of the Luxembourg extradition treaty states 
that extradition may be denied if prosecution is barred by the statute 
of limitations in the Requested State. In this article, like others 
where discretion is vested in the Requested State, it is appropriate 
for this decision to be vested in the Secretary of State. Under U.S. 
law, the Secretary of State, rather than a court, would ultimately 
exercise discretion as to whether extradition would be granted or 
denied.  See 18 U.S.C. Sec. Sec. 3184, 3186. Although a court might 
address the threshold factual question of whether the U.S. statute of 
limitations has expired, this treaty provision addresses the sovereign 
act of granting or denying extradition. In this connection, we note 
that U.S. extradition treaties increasingly do not include the statute 
of limitations of the Requested State as a ground for denial of 
extradition, and that we expect that, barring unusual circumstances, 
the United States would usually extradite if the only bar to 
extradition were the statute of limitations in this country as 
Requested State.
    Question 3. The Technical Analysis with regard to Article 5(3) 
states that the parties agreed that the drug trafficking offense, crime 
of violence, or other crime, must be ``particularly serious'' to fall 
within this paragraph.

   Why was this agreement between the parties necessary?
   Is not a drug trafficking offense ipso facto a 
        ``particularly serious'' offense?
    Answer. Article 5 on ``Fiscal Offenses'' resulted from extensive 
negotiations as to whether tax offenses should be extraditable under 
the U.S.-Luxembourg extradition treaty. Luxembourg wanted to exclude 
tax offenses from the scope of the treaty altogether. In deference to 
U.S. concerns, the language ultimately adopted permits (but does not 
require) denial of extradition for fiscal offenses; which are defined 
in Art. 5(2) as offenses related to reporting and payment of taxes or 
customs duties or relating to currency exchange control. Article 5(3) 
also specifically states that the Requested State may consider an 
offense that falls within the definition of Art. 5(2) not to be a 
fiscal offense if the offense relates to drug trafficking, a crime of 
violence, or other criminal conduct of a particularly serious nature. 
(In short, the U.S. delegation persuaded Luxembourg to make short, the 
U.S. delegation persuaded Luxembourg to make denial of fiscal offenses 
discretionary rather than mandatory, and to consider foregoing denial 
where the fiscal offense is related to a serious crime.)
    Answer. The U.S. believes that drug trafficking is inherently a 
serious offense. Nevertheless, the technical analysis reflects 
recognition by the U.S. delegation that Luxembourg probably would not 
apply subparagraph (3) if the tax, customs, or currency exchange 
offense in the case related to a crime (including a drug crime) that 
Luxembourg did not consider particularly serious.
    Question 4. Who will represent the United States in cases in 
Luxembourg courts? Who will pay for such representation?
    Answer. Luxembourg's domestic law does not contemplate 
``representation'' of the United States by Luxembourg in its courts in 
the manner in which many of our other extradition partners represent 
the United States. Instead, U.S. extradition requests will be presented 
in writing by the Luxembourg Ministry of Justice to an appropriate 
Luxembourg court with a Justice Ministry recommendation on the 
disposition of the request. It is therefore not contemplated that any 
costs for representation will be incurred by the United States.
            U.S.-Poland Extradition Treaty (T. Doc. 105-14)
    Question 1. Please describe the ``association to commit offenses'' 
under the law of Poland (referred to in Art. 2(2)).

   Is it similar to accomplice liability in U.S. law?
   Does Polish law provide for conspiracy liability in any 
        respect?
    Answer. Polish law does not have a general conspiracy statute 
similar to 18 U.S.C. Sec. 371. Article 123 of the Polish Penal Code 
only penalizes conspiracies in national security cases, i.e., 
conspiracies ``. . . to deprive the Republic of Poland of its 
independence, to detach a portion of its territory, to overthrow by 
force its system or to weaken its defenses generally. . .''
    Answer. The closest Polish analogue to our general conspiracy 
offense appears to be ``association to commit offenses'' under Article 
276 of the Polish Penal Code. This statute reads:

    ``1. Whoever participates in an association having for its purpose 
        an offense shall be subject to the penalty of deprivation of 
        liberty for from 6 months to 5 years.
    ``2. If the association has an armed character, the perpetrator 
        shall be subject to the penalty of deprivation of liberty for 
        from 1 to 8 years.
    ``3. Whoever establishes an association specified in paragraph 1 or 
        paragraph 2 or directs it shall be subject to the penalty of 
        deprivation of liberty for from 2 to 10 years.

    Because the crimes of conspiracy in the U.S. and association to 
commit offenses in Poland are not identical, Article 2(2) of the Treaty 
provides that a conspiracy in violation of U.S. law and an association 
to commit offenses under Polish law are extraditable if the underlying 
crime is one for which dual criminality exists, and does not require 
dual criminality for the conspiracy charge itself or the association to 
commit offenses charge itself.
    Question 2. The Technical Analysis regarding Article 8 states that 
the ``article indicates that the Requested State should not deny the 
request if the statute of limitations expires after the Requested State 
receives the request.''

   By its terms, the Article provides no such indication. In 
        what manner does the article so indicate? Is this assertion 
        based on the negotiating record?
    Answer. It is accurate that Article 8 itself does not contain the 
quoted language. The technical analysis should have referred to the 
understanding reached between the negotiators rather than the article 
itself.
            U.S.-Zimbabwe Extradition Treaty (T.Doc 105-33)
    Question 1. The Department of State Country Reports on Human Rights 
Practices for 1997 states that in Zimbabwe the ``Government still 
enjoys a wide range of legal powers under the Official Secrets Act and 
the Law and Order Maintenance Act (LOMA) .'' (p.386)

   Please summarize the legal powers that the government has 
        under these laws.
   Are there provisions of these laws that would not meet the 
        dual criminality standard?
    Answer. The Law and Order Maintenance Act (LOMA) was promulgated by 
the government of then-Southern Rhodesia in 1960 and was retained by 
the new government after Zimbabwe gained independence in 1980. We 
understand that the Government of Zimbabwe is considering repealing and 
replacing the LOMA but that no final decisions have been made by the 
Zimbabwean parliament.
    The LOMA gives the Government of Zimbabwe extraordinary powers to 
regulate and/or prohibit certain public processions, gatherings and 
meetings, and to prohibit the printing, publication, distribution, sale 
or reproduction of publications that the President determines are 
likely to be contrary to the interests of public safety or security. It 
authorizes the Postmaster-General to detain and examine packages 
suspected to contain any prohibited publication. The LOMA also creates 
various other security-related crimes such as interfering with 
essential services, undermining the authority of the police or of the 
President, making subversive statements, and participation in terrorism 
or sabotage.
    The Official Secrets Act (OSA) dates back to 1970 and gives the 
Government broad powers to proscribe the disclosure of information 
which might be useful to an enemy for purposes prejudicial to the 
safety or interests of Zimbabwe. It prohibits obtaining or disclosing 
official secrets, including information relating to or used in a 
``prohibited place,'' which includes defense installations and other 
places determined by the President. Unauthorized persons are prohibited 
from entering, creating sketches, plans, or models regarding, and, upon 
a request to disperse, loitering in the vicinity of such places. The 
OSA also criminalizes the failure to report known information on anyone 
who intends to violate the act.
    Many of the offenses thus created under LOMA and OSA would not be 
extraditable under the U.S.-Zimbabwe Treaty because they would not be 
offenses under U.S. law. Article 2 of the Treaty defines extraditable 
offenses as those that are ``punishable under the laws in both 
Contracting States by deprivation of liberty for a period of more than 
one year or by a more severe penalty.'' In determining whether this 
requirement is satisfied in a particular case, U.S. courts look to the 
underlying act upon which the charge of the requesting state is based. 
The dual criminality standard is met if this act is also proscribed by 
a law of the United States. See, e.g., Demjanjuk v. Petrovsky, 776 F.2d 
571, 579 (1985), cert. denied 475 U.S. 1016 (1986).
    If the Government of Zimbabwe were to request the extradition of a 
person for an offense under the LOMA or OSA, the United States would 
review the underlying act upon which the charge or conviction was 
based. While some offenses under LOMA and OSA may also be punishable 
under U.S. law and thus be found to be extraditable, many others would 
not be. For instance, certain offenses under LOMA might also violate 
U.S. gun control laws, and some offenses involving prohibited 
publication or disclosure of information could be punishable under our 
national security laws covering classified information. On the other 
hand, the broad reach of outlawed activity that we would consider to be 
protected by the First Amendment, including e.g., constraints on 
publication and public gatherings and prohibitions on undermining the 
authority of the police or the President, means that many offenses 
under these Acts would not satisfy dual criminality and would not be 
extraditable. Finally, we note that many of the offenses identified in 
this statute appear to be punishable by less than one year's 
imprisonment and would therefore not in themselves be extraditable.
    Apart from the dual criminality limitations, the Zimbabwe treaty, 
like all of the other treaties before the Committee, also contains 
exceptions to the obligation to extradite for political offenses and 
politically motivated prosecutions.
    Question 2. The Human Rights Report also states that ``well over 90 
percent of defendants in magistrates' courts go unrepresented,'' and 
that ``(m)agistrates, who are part of the civil service rather than the 
judiciary, hear the vast majority of cases and are sometimes subject to 
political pressure.'' (p.387)

   What is the scope of the jurisdiction that magistrates have? 
        Do they hear criminal cases involving deprivation of liberty 
        for a period of more than one year or by a more severe penalty?
    Answer. Zimbabwe's Magistrates Court Act establishes ordinary, 
senior, provincial, and regional magistrates with varying types of 
jurisdiction, ranging from the authority to impose punishments not 
exceeding one year to the authority to impose punishments not exceeding 
seven years of imprisonment. The magistrates courts do not have 
jurisdiction over murder and treason cases or any capital crime. Only 
the regional magistrates courts have jurisdiction over serious rape 
cases.
    Any defendant convicted by a magistrates court has the right to 
appeal to the High Court against his sentence and the right to appeal 
to the Supreme Court against his conviction. In addition, the High 
Court automatically reviews magistrates' sentences of unrepresented 
individuals who have been sentenced to over six months in prison or 
fined over one thousand dollars. The High Court also reviews, upon 
request, similar sentences of corporate defendants and those 
represented by counsel at trial, as well as lesser sentences of 
unrepresented individuals. Sentences of unrepresented individuals by 
ordinary, senior or provincial magistrates courts to more than three 
but less than six months in prison or to fines of more than five 
hundred but less than one thousand dollars that are not otherwise 
reviewed by the High Court are automatically reviewed by a regional 
magistrate, who may then refer the case to the High Court for review.
            u.s.- zimbabwe extradition treaty (t.doc 105-33)
    Question 3. How many fugitives from U.S. courts are currently in 
Zimbabwe?

   Please provide information about (a) what criminal charges 
        they face; (b) the sentence they have received (if applicable); 
        and (c) where these charges were pending or sentences (if 
        applicable) were imposed.
    Answer. The Justice Department does not currently have any open 
federal cases involving fugitives it knows are in Zimbabwe. This, 
however, does not mean that there are no U.S. fugitives in that country 
and does not foreclose the possibility that extradition requests will 
be made after the treaty enters into force. With the growth of 
narcotics trafficking and other transnational crime in the region we 
expect more cases to arise in the future for which there is U.S. 
federal jurisdiction. Since the U.S. currently has no extradition 
treaty in force with Zimbabwe, federal and state prosecutors and 
investigators interested in seeking extradition from Zimbabwe would 
probably elect not to submit extradition requests to the Department of 
Justice or Department of State, so we would have no record of these 
fugitives.
            U.S.-Cyprus Extradition Treaty (T. Doc. 105-16)
    Question 1. Article 8(6) provides that in the case of a person 
found guilty in absentia, the executive authority may refuse 
extradition unless ``the Requesting State provides the Requested State 
with information which demonstrates that the person was afforded an 
adequate opportunity to present a defense.''

   Does this therefore obligate the Requested State to 
        extradite if the requisite information is provided?
   Would the Requested State have an obligation to extradite if 
        the Requesting State provided that the defendant will be 
        afforded an adequate opportunity to present a defense (i.e., if 
        the jurisdiction in the Requesting State provides assurances 
        that a new trial will be held)?
    Answer. U.S. courts generally require that if the person sought for 
extradition was convicted in absentia in the Requesting State, the 
person is treated as one merely charged with an offense purpose of 
considering extradition. In addition, in in absentia cases the State 
Department typically requires the foreign state to agree to give the 
person sought a new trial after extradition (see, e.g., Gallina v. 
Fraser, 278 F.2d 77, 78 (2d Cir.), cert. denied, 364 U.S. 851, rehear'g 
denied, 364 U.S. 906 (1960)) except where the person sought had a full 
opportunity to defend himself on the merits during the in absentia 
proceedings. For example, the Secretary of State has extradited 
fugitives convicted in absentia who knew of all proceedings against 
them and were represented by counsel of their own choosing at those 
proceedings.
    The language of Article 8(6) of the Cyprus Extradition Treaty 
reflects this exception. Under the language of this provision, the 
Requested State would not be permitted to deny extradition based on the 
in absentia nature of the conviction if the person sought had an 
adequate opportunity to present a defense during the proceedings. 
However, it is not necessarily enough that the Requesting State provide 
information on the issue; the Requested State must assess the 
information and be convinced that it meets the standards in the treaty.
      U.S.-Spain Extradition Supplementary Treaty (T. Doc. 105-15)
    Question 1. Please provide the current extradition treaty and 
supplementary treaties or protocols.
    Answer. A copy is attached as Annex 4.
        U.S.-Hong Kong Prisoner Transfer Treaty (T. Doc. 105-7)
    Question 1. How many prisoner transfers with Hong Kong were carried 
out in the past three years under the previous prisoner transfer 
treaty?
    Answer. In 1995-1997, one United States national was transferred 
from Hong Kong to the United States, and one Hong Kong resident was 
transferred from the United States to Hong Kong.
    Question 2. Please provide the applicable Justice Department 
regulations or guidelines relevant to the transfer of prisoners to 
other countries pursuant to prisoner transfer treaties and 18 U.S.C. 
Section 4100 et seq.
    Answer. Attached at Annex 5 are the Justice Department Guidelines 
for Administration of Prisoner Transfer Treaties and Implementation of 
18 U.S.C. Sec. Sec. 4100 et seq. These guidelines, which were written 
in February 1989, are currently being revised.
    Question 3. Will the diplomatic channel for this treaty be the 
government of Hong Kong?
    Answer. Yes, we understand the reference in Article 12 to use of 
the diplomatic channel for settlement of disputes to refer to 
communications between the United States and Hong Kong, the two 
signatories to the treaty. This reflects the fact that the issue of 
transfer of prisoners falls within the autonomy of Hong Kong under the 
Joint Declaration and Basic Law. It is also consistent with the 
designation of Central Authorities in the United States and Hong Kong 
for implementation of the treaty in Article 3.
    Question 4. Please describe how provisions analogous to Article 
8(3) in existing prisoner transfer treaties work in practice.

   How is a sentence ``adapted''?
   Is the transferring Party notified when a sentence is so 
        adapted?
    Answer. Adaptation of sentence (or ``conversion'' of sentence, as 
it is termed in the Council of Europe Convention on the Transfer of 
Sentenced Persons) occurs when a prisoner is brought before a court in 
the receiving country and given a new sentence. Adaptation of sentence 
also occurs in the absence of court ruling when the receiving country 
advises us that its laws will not permit the prisoner to serve a 
sentence as lengthy as was imposed in the United States.
    In the few cases where adaptation has occurred, the process has 
worked as follows: our approval of an outgoing prisoner transfer is 
considered to be a preliminary approval. After we have given 
preliminary approval, the receiving country advises us, based on the 
limits of its law and its experience in similar cases, what new 
sentence the prisoner is likely to receive after transfer. If there is 
a substantial variance between the sentence which the prisoner received 
in the United States and the sentence which he or she is expected to 
serve after transfer, the case will be reconsidered within the 
Department of Justice. In most cases (particularly where the disparity 
is not extreme) we decide to go forward with the transfer, reasoning 
that the person has already been determined to be a good candidate for 
transfer by both countries and understanding that in many cases it is 
appropriate to defer to the standards of the receiving country. After 
the transfer has taken place and the new sentence has been set, the 
receiving country advises us what sentence will be served.

           Annex 1 (Relates to Sen. Biden General Question 1)


------------------------------------------------------------------------
                                         Extraditions TO the U.S.
                                 ---------------------------------------
             COUNTRY               Cumulative: 1997-   Cumulative: 1990-
                                          98                  98
------------------------------------------------------------------------
Antigua & Barbuda...............                  0                   2
Dominica........................                  0                   2
Grenada.........................                  0                   1
St. Kitts & Nevis...............                  0                   0
St. Lucia.......................                  0                   0
St. Vincent & The Grenadines....                  0                   0
Argintina.......................                  5                  15
Austria.........................                  1                  13
Barbados........................                  0                   7
Cyprus..........................                  2                   4
France..........................                  4                  35
India...........................                  1                   3
Luxembourg......................                  0                   5
Mexico..........................                 21                  61
Poland..........................                  0                   3
Spain...........................                  4                  32
Trinidad & Tobago\1\............                  0                   4

  Cumulative Totals.............                 38                 187
------------------------------------------------------------------------



------------------------------------------------------------------------
                                        Extraditions FROM the U.S.
                                 ---------------------------------------
             COUNTRY               Cumulative: 1997-   Cumulative: 1990-
                                          98                  98
------------------------------------------------------------------------
Antigua & Barbuda...............                  0                   0
Dominica\1\.....................                  0                   0
Grenada.........................                  0                   0
St. Kitts & Nevis...............                  0                   1
St. Lucia.......................                  0                   0
St. Vincent & The Grenadines....                  0                   0
Argintina.......................                  2                  14
Austria.........................                  2                  14
Barbados........................                  0                   2
Cyprus..........................                  0                   0
France..........................                  0                  19
India...........................                  3                   3
Luxembourg......................                  0                   1
Mexico..........................                 26                  73
Poland..........................                  0                   1
Spain...........................                  4                   5
Trinidad & Tobago\2\............                  0                   0

  Cumulative Totals.............                 37                 133
------------------------------------------------------------------------
\1\extradition in 1984; None since that time.
\2\extradition in 1987 and 1 in 1988; None since that time.

Statistics derived from Justice (OIA) and State (LEI) Records Numbers
  include ONLY extraditions and waivers. Does not include deportation or
  expulsion transfers.

           Annex 2 (Relates to Sen. Biden General Question 2)

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                                  February 3, 1998.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
U.S. House of Representatives,
Washington, DC.
    Dear Mr. Chairman: Thank you for your letter on behalf of 
Congressman Bob Livingston, forwarding a letter from Brian Leighton on 
behalf of Richard Horn, concerning the Fourth Amendment rights of 
citizens overseas and a lawsuit in which Mr. Leighton represents Mr. 
Horn. You have requested information concerning the Department of 
Justice's involvement with regard to Fourth Amendment protections and 
related court cases.
    Mr. Leighton's letter to Congressman Livingston refers to the only 
current litigation of which we are aware involving the applicability of 
the Fourth Amendment to U.S. citizens overseas. The case was brought by 
Mr. Horn, a Drug Enforcement Administration agent, against other U.S. 
government officials in their individual capacities under Bivens v. Six 
Unknown Named Agents, 403 U.S. 388 (1971). Mr. Horn alleged that, while 
he was stationed overseas, other employees of the U.S. government 
conducted electronic surveillance on him in his government-leased 
quarters. The district court denied the defendants' motion for summary 
judgment on qualified immunity grounds (the court's opinion is sealed). 
In his letter to Congressman Livingston, Mr. Leighton expressed concern 
that the district court's decision was being appealed. Although a 
protective notice of appeal was filed in the ordinary course, the 
Department of Justice has determined not to pursue an appeal at this 
time, and the case remains in the trial court for further proceedings.
    While the Bivens case was pending, Mr. Horn filed another action, 
styled as a class action, against the Secretary of State, the Director 
of Central Intelligence and the Director of the National Security 
Agency, in their official capacities, alleging that these agencies have 
a pattern and practice of conducting electronic surveillance against 
other employees of the U.S. government overseas. This latter case has 
been consolidated with the Bivens case.
    Both cases are now proceeding in the district court. As you know, 
we are constrained in our ability to comment further on specific 
matters in litigation.
    More generally, the Department of Justice has expressed its views 
concerning the applicability of the Fourth Amendment abroad in briefs 
filed in some recent criminal cases in the Supreme Court. In the 
government's brief in United States v. Verdugo-Urquidez, 494 U.S. 259 
(1990), a case involving a search abroad of a foreign national by both 
American and foreign officials, the United States took the position 
(Government's Brief at 17) that ``[t]he Constitution does not apply 
across the board to every person and in every setting overseas'' 
(emphasis in original). Instead, following the suggestion of Justice 
Harlan's concurring opinion in Reid v. Covert, 354 U.S. 1 (1957), the 
government advocated case-by-case judgments, based on the application 
of three general factors: (1) whether the United States exercises 
significant sovereignty in the particular territory; (2) the nature of 
the underlying right, that is, whether the right can readily be applied 
in a foreign setting; and (3) the relationship of the claimant to the 
United States (Brief at 17-23).
    The government argued in the Verdugo case that ``the text and 
purposes of the Fourth Amendment suggest that the underlying right has 
little, if any, extraterritorial force, particularly when urged on 
behalf of a foreign national'' (Brief at 23). The government further 
took the general view that, even if the Fourth Amendment applied extra 
territorially, it required only reasonableness; imposing the warrant 
requirement on overseas searches and seizures would be impracticable 
(Brief at 31-40). ``Because of the unusual practical constraints, as 
well as difficult questions of sovereignty and authority, agents 
conducting investigations overseas should at most be bound by the more 
flexible Fourth Amendment requirement of reasonableness'' (Brief at 
39).
    The Supreme Court agreed with the government's argument in Verdugo 
that the Fourth Amendment does not apply to foreign searches of foreign 
nationals, and it held that as to a search in Mexico of a citizen and 
resident of Mexico, ``the Fourth Amendment has no application.'' (494 
U.S. at 274-275.
    In another case, United States v. Barona, 56 F.3d 1087 (9th Cir. 
1995), cert. denied, Bennett v. United States, 116 S. Ct. 813, 1996), 
the United States had participated with Danish and Italian officials in 
wiretapping the defendants' telephones in Europe. Three of the 
defendants were American citizens. The court of appeals upheld all the 
convictions against a claim of a Fourth Amendment violation, and the 
United States opposed certiorari. The government's brief in opposition 
argued that the ``special needs'' that exist in the context of foreign 
searches make the warrant requirement impracticable in that setting; 
rather, the United States asserted, ``a foreign `joint venture' search 
of an American citizen that conforms to the requirements of foreign law 
should be accepted as reasonable within the meaning of the Fourth 
Amendment'' (Brief in Opposition at 10).
    I appreciate the inquiry on behalf of Mr. Leighton and his client. 
Do not hesitate to contact me should you, your office, or a constituent 
need additional information or assistance.
            Sincerely,
                                               Andrew Fois,
                                        Assistant Attorney General.
                                 ______
                                 

 Annex 3 (Relates to Sen. Biden Mexico Extradition Protocol Question 2)

           Treaties and Other International Acts Series 9656

                              EXTRADITION

                           Treaty Between the

                  United States of America and Mexico

                              English Only

                   Signed at Mexico City May 4, 1978
                                 MEXICO

                              Extradition

Treaty signed at Mexico City May 4, 1978;
Ratification advised by the Senate of the United States of America 
        November 30, 1979;
Ratified by the President of the United States of America December 13, 
        1979;
Ratified by Mexico January 31, 1979;
Ratifications exchanged at Washington January 25, 1980;
Proclaimed by the President of the United States of America February 6, 
        1980;
    Entered into force January 25, 1980

                               __________

            By the President of the United States of America

                             A PROCLAMATION

    Considering that:

    The Extradition Treaty between the United States of America and the 
United Mexican States was signed at Mexico City on May 4, 1978, the 
text of which, in the English and Spanish languages, is hereto annexed;
    The Senate of the United States of America by its resolution of 
November 30, 1979, two-thirds of the Senators present concurring 
therein, gave its advice and consent to ratification of the Treaty;
    The Treaty was ratified by the President of the United States of 
America on December 13, 1979, in pursuance of the advice and consent of 
the Senate, and was duly ratified on the part of the United Mexican 
States;
    It is provided in Article 23 of the Treaty that the Treaty shall 
enter into force on the date of exchange of the instruments of 
ratification;
    The instruments of ratification of the Treaty were exchanged at 
Washington on January 25, 1980; and accordingly the Treaty entered into 
force on that date;
    Now, Therefore, I, Jimmy Carter, President of the United States of 
America, proclaim and make public the Treaty, to the end that it be 
observed and fulfilled with good faith on and after January 25, 198O, 
by the United States of America and by the citizens of the United 
States of America and all other persons subject to the jurisdiction 
thereof.
    In testimony thereof, I have signed this proclamation and caused 
the Seal of the United States of America to be affixed.

  Done at the city of Washington this sixth day of February in the year 
            of our Lord one thousand nine hundred eighty and of the 
            Independence of the United States of America the two 
            hundred fourth.

[SEAL]

        

                                               Jimmy Carter

By the President:

        Cyrus Vance

                Secretary of State
                       EXTRADITION TREATY BETWEEN

                    THE UNITED STATES OF AMERICA AND

                       THE UNITED MEXICAN STATES

    The Government of the United States of America and the Government 
of the United Mexican States;
    Desiring to cooperate more closely in the fight against crime and, 
to this end, to mutually render better assistance in matters of 
extradition;
    Have agreed as follows:

                               ARTICLE 1

                        Obligation to Extradite

    1. - The Contracting Parties agree to mutually extradite, subject 
to the provisions of this Treaty, persons who the competent authorities 
of the requesting Party have charged with an offense or have found 
guilty of committing an offense, or are wanted by said authorities to 
complete a judicially pronounced penalty of deprivation of liberty for 
an offense committed within the territory of the requesting Party.
    2. - For an offense committed outside the territory of the 
requesting Party, the requested Party shall grant extradition if:

  a) Its laws would provide for the punishment of such offense 
            committed in similar circumstances, or
  b) the person sought is a national of the requesting Party, and that 
            Party has jurisdiction under its own laws to try that 
            person.

                               ARTICLE 2

                         Extraditable Offenses

    1. - Extradition shall take place, subject to this Treaty, for 
willful acts which fall within any of the clauses of the Appendix and 
are punishable in accordance with the laws of both contracting Parties 
by deprivation of liberty the maximum of which shall not be less than 
one year.
    2. - If extradition is requested for the execution of a sentence, 
there shall be the additional requirement that the part of the sentence 
remaining to be served shall not be less than six months.
    3. - Extradition shall also be granted for willful acts which, 
although not being included in the Appendix, are punishable, in 
accordance with the federal laws of both contracting Parties, by a 
deprivation of liberty the maximum of which shall not be less than one 
year.
    4. - Subject to the conditions established in paragraphs 1, 2 and 
3, extradition shall also be granted:
  a) For the attempt to commit an offense; conspiracy to commit an 
            offense; or the participation in the execution of an 
            offense; or
  b) When, for the purpose of granting jurisdiction to the United 
            States government, transportation of persons or property, 
            the use of the mail or other means of carrying out 
            interstate or foreign commerce, is also an element of the 
            offense.

                               ARTICLE 3

                           Evidence Required

    Extradition shall be granted only if the evidence be found 
sufficient, according to the laws of the requested Party, either to 
justify the committal for trial of the person sought if the offense of 
which he has been accused had been committed in that place or to prove 
that he is the person convicted by the courts of the requesting Party.

                               ARTICLE 4

                        Territorial Application

    1. - For the Purposes of this Treaty, the territory of a 
Contracting Party shall include all the territory under the 
jurisdiction of that Contracting Party, including airspace and 
territorial waters and vessels and aircraft registered in that 
Contracting Party if any such aircraft is in flight when the offense is 
committed.
    2. - For the purposes of this Treaty, an aircraft shall be 
considered to be in flight at any time from the moment when all its 
external doors are closed following the embarkation until the moment 
when any such door is opened for disembarkation.

                               ARTICLE 5

                    Politiclal and Military Offenses

    1. - Extradition shall not be granted when the offense for which it 
is requested is political or of a political character.
    If any question arises as to the application of the foregoing 
paragraph, the Executive authority of the requested Party shall decide.
    2. - For the purpose of this Treaty, the following offenses shall 
not be considered to be offenses included in paragraph 1:

    a) The murder or other willful crime against the life or physical 
            integrity of a Head of State or Head of Government or of 
            his family, including attempts to commit such an offense.
    b) An offense which the Contracting Parties may have the obligation 
            to prosecute by reason of a multilateral inter national 
            agreement.
    3. - Extradition shall not be granted when the offense for which 
extradition is requested is a purely military offense.

                               ARTICLE 6

                            Non bis in idem

    Extradition shall not be granted when the person sought has been 
prosecuted or has been tried and convicted or acquitted by the 
requested Party for the offense for which extradition is requested.

                               ARTICLE 7

                             Lapse of Time

    Extradition shall not be granted when the prosecution or the 
enforcement of the penalty for the offense for which extradition has 
been sought has become barred by lapse of time according to the laws of 
the requesting or requested Party

                               ARTICLE 8

                           Capital Punishment

    When the offense for which extradition is requested is punishable 
by death under the laws of the requesting Party and the laws of the 
requested Party do not permit such punishment for that offense, 
extradition may be refused unless the requesting Party furnishes such 
assurances as the requested Party considers sufficient that the death 
penalty shall not be imposed, or, if imposed, shall not be executed.

                               ARTICLE 9

                        Extradition of Nationals

    1. - Neither Contracting Party shall be bound to deliver up its own 
nationals, but the executive authority of the requested Party shall, if 
not prevented by the laws of that Party, have the power to deliver them 
up if, in its discretion, it be deemed proper to do so.
    2. - If extradition is not granted pursuant to paragraph 1 of this 
Article, the requested Party shall submit the case to its competent 
authorities for the purpose of prosecution, provided that Party has 
jurisdiction over the offense.

                               ARTICLE 10

             Extradition Procedures and Required Documents

    1. - The request for extradition shall be made through the 
diplomatic channel.
    2. - The request for extradition shall contain the description of 
the offense for which extradition is requested and shall be accompanied 
by:

    a) A statement of the facts of the case;
    b) The text of the legal provisions describing the essential 
            elements of the offense;
    c) The text of the legal provisions describing the punishment for 
            the offense;
    d) The text of the legal provisions relating to the time limit on 
the prosecution or the execution of the punishment of the offense;
    e) The facts and personal information of the person sought which 
            will permit his identification and, where possible, 
            information concerning his location.
    3. - In addition, when the request for extradition relates to a 
person who has not yet been convicted, It shall be accompanied by:
    a) A certified copy of the warrant of arrest issued by a judge or 
            other judicial officer of the requesting Party;
    b) Evidence which, in accordance with the laws of the requested 
            Party, would justify the apprehension and commitment for 
            trial of the person sought if the offense had been 
            committed there.
    4. When the request for extradition relates to a convicted person, 
it shall be accompanied by a certified copy of the judgment of 
conviction imposed by a court of the requesting Party.
    If the person was found guilty but not sentenced, the extradition 
request shall be accompanied by a certification to that effect and a 
certified copy of the warrant of arrest.
    If such person has already been sentenced, the request for 
extradition shall be accompanied by a certification of the sentence 
imposed and a statement indicating which part of the sentence has not 
been carried out.
    5. - All the documents that must be presented by the requesting 
Party in accordance with the provisions of this Treaty shall be 
accompanied by a translation in the language of the requested Party.
    6. - The documents which, according to this Article, shall 
accompany the request for extradition, shall be received in evidence 
when:
    a) In the case of a request emanating from the United States, they 
            are authenticated by the official seal of the Department of 
            State and legalized by the manner prescribed by the Mexican 
            law;
    b) In the case of a request emanating from the United Mexican 
            States, they are certified by the principle diplomatic or 
            consular officer of the United States in Mexico.

                               ARTICLE 11

                           Provisional Arrest

    1. - In the case of urgency, either Contracting Party may request, 
through the diplomatic channel, the provisional arrest of an accused or 
convicted person. The application shall contain a description of the 
offense for which the extradition is requested, a description of the 
person sought and his whereabouts, an undertaking to formalize the 
request for extradition, and a declaration of the existence of a 
warrant of arrest issued by a competent judicial authority or a 
judgment of conviction issued against the person sought.
    2. - On receipt of such a request, the requested Party shall take 
the necessary steps to secure the arrest of the person claimed.
    3. - Provisional arrest shall be terminated if, within a period of 
60 days after the apprehension of the person claimed, the executive 
authority of the requested Party has not received the formal request 
for extradition and the documents mentioned in Article 10.
    4. - The fact that the provisional arrest is terminated pursuant to 
paragraph 3 shall not prejudice the extradition of the person sought if 
the request for extradition and the necessary documents mentioned in 
Article 10 are delivered at a later date.

                               ARTICLE 12

                          Additional Evidence

    If the Executive authority of the requested Party considers that 
the evidence furnished in support of the request for extradition is not 
sufficient in order to fulfill the requirements of this Treaty, that 
Party shall request the presentation of the necessary additional 
evidence.

                               ARTICLE 13

                               Procedure

    1. The request fur extradition shall be processed in accordance 
with the legislation of the requested Party.
    2. - The requested Party shall make all arrangements necessary for 
internal procedures arising out of the request for extradition.
    3. - The competent legal authorities of the requested Party shall 
be authorized to employ all legal means within their power to obtain 
from the judicial authorities the decisions necessary for the 
resolution of the request for extradition.

                               ARTICLE 14

                         Decision and Surrender

    1. - The requested Party shall promptly communicate to the 
requesting Party its decision on the request for extradition.
    2. - In the case of complete or partial rejection of a request for 
extradition, the requested Party shall give the reasons on which it was 
based.
    3. - If the extradition is granted, the surrender of the person 
sought shall take place within such time as may be prescribed by the 
laws of the requested Party. The competent authorities of the 
Contracting Parties shall agree on the date and place of the surrender 
of the person sought.
    4. - If the competent authority has issued the warrant or order for 
the extradition of the person sought and he is not removed from the 
territory of the requested Party within the prescribed period, he shall 
be set at liberty and the requested Party may subsequently refuse to 
extradite him for the same offense.

                               ARTICLE 15

                           Delayed Surrender

    The requested Party, after granting the extradition, may defer the 
surrender of the person sought when that person is being proceeded 
against or is serving a sentence in the territory of the requested 
Party for a different offense, until the conclusion of the proceeding 
or the full execution of the punishment that has been imposed.

                               ARTICLE 16

             Requests for Extradition Made by Third States

    The requested Party, in the case of receiving requests from the 
other Contracting Party and from one or more third States for the 
extradition of the same person, be it for the same offense or for 
different offenses, shall decide to which requesting State it shall 
grant the extradition of that person.

                               ARTICLE 17

                           Rule of Speciality

    1. - A person extradited under the present Treaty shall not be 
detained, tried or punished in the territory of the requesting Party 
for an offense other than that for which extradition has been granted 
nor be extradited by that Party to a third State unless:

    a) He has left the territory of the requesting Party after his 
            extradition and has voluntarily returned to it:
    b) He has not left the territory of the requesting Party within 60 
            days after being free to do so; or
    c) The requested Party has given its consent to his detention, 
            trial, punishment or extradition to a third State for an 
            offense other than that for which the extradition was 
            granted.

    These stipulations shall not apply to offenses committed after the 
extradition.
    2. - If, in the course of the procedure, the classification of the 
offense is changed for which the person requested was extradited he 
shall be tried and sentenced on the condition that the offense, in its 
new legal form:

    a) Is based on the same group of facts established in the request 
            for extradition and in the documents presented in its 
            support: and
    b) Is punishable with the same maximum sentence as the crime for 
            which be was extradited or with a lesser sentence.

                               ARTICLE 18

                          Summary Extradition

    If the person sought informs the competent authorities of the 
requested Party that he agrees to be extradited, that Party may grant 
his extradition without further proceedings, and shall take all 
measures permitted under its laws to expedite the extradition. In such 
cases Article 17 shall not be applicable.

                               ARTICLE 19

                         Surrender of Property

    1 - To the extent permitted under the law of the requested Party 
and subject to the rights of third parties, which shall be duly 
respected, all articles, instruments, objects of value or documents 
relating to the offense, whether or not used for its execution, or 
which in any other manner may be material evidence for the prosecution, 
shall be surrendered upon the granting of the extradition even when 
extradition cannot be effected due to the death, disappearance, or 
escape of the accused.
    2. - The requested Party may condition the surrender of articles 
upon a satisfactory assurance from the requesting Party that the 
articles will be returned to the requested Party as soon as possible,

                               ARTICLE 20

                                Transit

    1. - The right to transport through the territory of one of the 
Contracting Parties a person who is not a national of that Contracting 
Party surrendered to the other Contracting Party by a third State shall 
be granted on presentation made through the diplomatic channel of a 
certified copy of the decision on extradition, provided that reasons of 
public order are not opposed to the transit.
    2. - The authorities of the transit State shall be in charge of the 
custody of the extradited person while that person is in its territory.
    3. - The Party to which the person has been extradited shall 
reimburse the State through whose territory such person is transported 
for any expenses incurred by the latter in connection with such 
transportation.

                               ARTICLE 21

                                Expenses

    The requested Party shall bear the expenses of the arrangements 
referred to in Article 13, with the exception that the expenses 
incurred for the translation of documents and, if applicable, for the 
transportation of the person ordered extradited shall be paid by the 
requesting Party.

                               ARTICLE 22

                          Scope of Application

    1. - This Treaty shall apply to offenses specified in Article 2 
committed before and after this Treaty enters into force.
    2. - Requests for extradition that are under process on the date of 
the entry into force of this Treaty, shall be resolved in accordance 
with the provisions of the Treaty of 22 February, 1899,[\1\] and the 
Additional Conventions on Extradition of 25 June 1902,[\2\] 23 December 
1925,[\3\] and 16 August 1939.[\4\]
---------------------------------------------------------------------------
    \1\ TS 242; 31 Stat. 1818.
    \2\ TS 421; 9 Bevans 918.
    \3\ TS 741; 44 Stat. 2409.
    \4\ TS 967; 55 Stat. 1133.
---------------------------------------------------------------------------

                               ARTICLE 23

              Ratification, Entry into Force, Denunciation

    1. - This Treaty shall be subject to ratification; the exchange of 
instruments of ratification shall take place in Washington as soon as 
possible.
    2. - This Treaty shall enter into force on the date of exchange of 
the instruments of ratification.
    3. - On entry into force of this Treaty, the Treaty of Extradition 
of 22 February 1899 and the Additional Conventions on Extradition of 25 
June 1902, 23 December 1925 and 16 August 1939 between the United 
States of America and the United Mexican States, shall cease to have 
effect without prejudice to the provisions of Article 22.
    4. - Either Contracting Party may terminate this Treaty by giving 
notice to the other Party. The termination shall take effect six months 
after the receipt of such notice.
    Done In two originals, in the English and Spanish languages. both 
equally authentic at Mexico City this fourth day of May, one thousand 
nine hundred and seventy eight.

Cyrus Vance
  For the Government of the
  United States of America
S. Roel
  For the Government of the
  United Mexican States

                                 ______
                                 

                                APPENDIX

    1. Murder or manslaughter: abortion.
    2. Malicious wounding or injury.
    3. Abandonment of minors or other dependents when there is danger 
            of injury or death.
    4. Kidnapping; child stealing: abduction: false imprisonment.
    5. Rape; statutory rape; indecent assault, corruption of minors, 
            including unlawful sexual acts with or upon children under 
            the age of consent.
    6. Procuration; promoting or facilitating prostitution.
    7. Robbery, burglary; larceny.
    8. Fraud.
    9. Embezzlement.
    10. An offense against the laws relating to counterfeiting and 
            forgery.
    11. Extortion.
    12. Receiving or transporting any money, valuable securities, or 
            other property knowing the same to have been unlawfully 
            obtained.
    13. Arson; malicious injury to property.
    14. Offenses against the laws relating to the traffic in, 
            possession, production, manufacture, importation or 
            exportation of dangerous drugs and chemicals, including 
            narcotic drugs. cannabis, psychotropic drugs. opium, 
            cocaine, or their derivatives.
    15. Offenses against the laws relating to the control of poisonous 
            chemicals or substances injurious to health.
    16. Piracy.
    17. Offenses against the safety of means of transportation 
            including any act that would endanger a person in a means 
            of transportation.
    18. An offense relating to unlawful seizure or exercise of control 
            of trains, aircraft, vessels, or other means of 
            transportation.
    19. Offenses against the laws relating to prohibited weapons, and 
            the control of firearms, ammunition, explosives, incendiary 
            devices or nuclear materials.
    20. An offense against the laws relating to international trade and 
            transfers of funds or valuable metals.
    21. An offense against the laws relating to the importation, 
            exportation, or international transit of goods, articles, 
            or merchandise, including historical or archaeological 
            items.
    22. Violations of the customs laws.
    23. Offenses against the laws relating to the control banking 
            institutions, or other corporations.
    24. Offenses against the laws relating to the sale of securities, 
            including stocks, bonds and instruments of credit.
    25. Offenses against the laws relating to bankruptcy or 
            rehabilitation of a corporation.
    26. Offenses against the laws or unfair transactions.
    27. Offenses against the laws property or copyright.
    28. Offenses against the laws relating to abuse of official 
            authority.
    29. Bribery, including soliciting, offering and accepting bribes.
    30. Perjury; false statements to any governmental authority. 
            Subornation of perjury or false statements.
    31. Offenses against the laws relating to obstruction of justice, 
            including harboring criminals and suppressing evidence.

                                 ______
                                 

     Annex 4 (Relates to Sen. Biden Spain Extradition Supplementary

                           Treaty Question 1)

                                 SPAIN

                              Extradition

Treaty signed at Madrid May 29, 1970;
Ratification advised by the Senate of the United States of America 
        February 17, 1971;
Ratified by the President of the United States of America March 1, 
        1971;
Ratified by Spain May 8, 1971;
Ratifications exchanged at Washington June 16, 1971;
Proclaimed by the President of the United States of America July 2, 
        1971;
Entered into force June 16, 1971.

                               __________

            By the President of the United States of America

                             A PROCLAMATION

    Considering that:
    The Treaty on Extradition between the United States of America and 
Spain was signed on May 29, 1970, the original of which Treaty is 
annexed hereto;
    The Senate of the United States of America by its resolution of 
February 17, 1971, two-thirds of the Senators present concurring 
therein, gave its advice and consent to ratification of the Treaty;
    The Treaty was ratified by the President of the United States of 
America on March 1, 1971, in pursuance of the advice and consent of the 
Senate, and has been duly ratified on the part of the Government of 
Spain;
    The respective instruments of ratification were exchanged at 
Washington on June 16, 1971;
    It is provided in Article XVIII of the Treaty that the Treaty shall 
enter into force upon the exchange of ratifications;
    Now, therefore, I, Richard Nixon, President of the United States of 
America, proclaim and make public the Treaty, to the end that it shall 
be observed and fulfilled with good faith on and after June 16, 1971 by 
the United States of America and by the citizens of the United States 
of America and all other persons subject to the jurisdiction thereof.
    In testimony whereof, I have signed this proclamation and caused 
the Seal of the United States of America to be affixed.

  Done at the city of Washington this second day of July in the year of 
            our Lord one thousand nine hundred seventy one and of the 
            Independence of the United States of America the one 
            hundred ninety-fifth.

[SEAL]

        

                                              Richard Nixon

By the President:

        William P. Rogers

                Secretary of State

                               __________

                     TREATY ON EXTRADITION BETWEEN

                      THE UNITED STATES OF AMERICA

                               AND SPAIN

                                 ______
                                 

TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF AMERICA AND SPAIN


    The President of the United States of America and the Chief of 
State of Spain, desiring to make more effective the cooperation of the 
two countries in the repression of crime through the rendering of 
maximum assistance in matters of extradition,

    Have decided to conclude a Treaty and to this end have named as 
their representatives:

    The President of the United States of America, The Honorable 
William P. Rogers, Secretary of State,

    The Chief of State of Spain, His Excellency Senor Gregono Lopez 
Bravo de Castro, Minister of Foreign Affairs, who have agreed as 
follows:

                               Article I

    In accordance with the conditions established in this Treaty, each 
Contracting Party agrees to extradite to the other, for prosecution or 
to undergo sentence, persons found in its territory who have been 
charged with or convicted of any of the offenses mentioned in Article 
II of this Treaty committed within the territory of the other, or 
outside thereof under the conditions specified in Article III.

                               Article II

    A. Persons shall be delivered up according to the provisions of 
this Treaty for any of the following offenses provided that these 
offenses are punishable by the laws of both Contracting Parties by a 
term of imprisonment exceeding one year:

    1. Murder; infanticide; patricide; manslaughter.
    2. Abortion.
    3. Rape; statutory rape; indecent assault, including sodomy and 
            unlawful sexual acts with or upon minors under the age 
            specified by the penal laws of both Contracting Parties.
    4. Aggravated injury or mutilation.
    5. Procuration.
    6. Willful nonsupport or willful abandonment of a child or spouse 
            when for that reason the life of that child or spouse is or 
            is likely to be endangered.
    7. Bigamy.
    8. Kidnapping or abduction; child stealing; false imprisonment.
    9. Robbery or larceny or burglary; housebreaking.
    10. Embezzlement; malversation; breach of fiduciary relationship.
    11. Obtaining money, valuable securities or property, by false 
            pretenses, by threat of force or by other fraudulent means 
            including the use of the mails or other means of 
            communication.
    12. Any offense relating to extortion or threats.
    13. Bribery, including soliciting, offering and accepting.
    14. Receiving or transporting any money, valuable securities or 
            other property knowing the same to have been obtained 
            pursuant to a criminal act.
    15. Any offense relating to counterfeiting or forgery; making a 
            false statement to a government agency or official.
    16. Any offense relating to perjury or false accusation.
    17. Arson; malicious injury to property.
    18. Any malicious act that endangers the safety of any person in a 
            railroad train, or aircraft or vessel or bus or other means 
            of transportation.
    19. Piracy, defined as mutiny or revolt on board an aircraft or 
            vessel against the authority of the captain or commander of 
            such aircraft or vessel, any seizure or exercise of 
            control, by force or violence or threat of force or 
            violence, of an aircraft or vessel.
    20. Any offense against the bankruptcy laws.
    21. Any offense against the laws relating to narcotic drugs, 
            psychotropic drugs, cocaine and its derivatives, and other 
            dangerous drugs, including cannabis, and chemicals or 
            substances injurious to health.
    22. Any offense relating to firearms, explosives, or incendiary 
            devices.
    23. Unlawful interference in any administrative or juridical 
            proceedings by bribing, threatening, or injuring by any 
            means, any officer, juror, witness, or duly authorized 
            person.


    B. Extradition shall also be granted for participation in any of 
the offenses mentioned in this article, not only as principal or 
accomplices, but as accessories, as well as for attempt to commit or 
conspiracy to commit any of the aforementioned offenses, when such 
participation, attempt or conspiracy is subject, under the laws of both 
Parties, to a term of imprisonment exceeding one year.

    C. If extradition is requested for any offense listed in paragraphs 
A or B of this article and that offense is punishable under the laws of 
both Contracting Parties by a term of imprisonment exceeding one year, 
such offense shall be extraditable under the provisions of this Treaty 
whether or not the laws of both Contracting Parties would place that 
offense within the same category of offenses made extraditable by 
paragraphs A and B of this article and whether or not the laws of the 
requested Party denominate the offense by the same terminology.

    D. Extradition shall also be granted for the above mentioned 
offenses, even when, in order to recognize the competent federal 
jurisdiction, circumstances such as the transportation from one State 
to another, have been taken into account and may be elements of the 
offense.

                              Article III

    A. For the purposes of this Treaty the territory of a Contracting 
Party shall include all territory under the jurisdiction of that 
Contracting Party, including airspace and territorial waters and 
vessels and aircraft registered in that Contracting Party if any such 
aircraft is in flight or if any such vessel is on the high seas when 
the offense is committed. For purposes of this Treaty an aircraft shall 
be considered to be in flight from the moment when power is applied for 
the purpose of takeoff until the moment when the landing run ends.

    B. Without prejudice to paragraph A, 1 of Article V, when the 
offense for which extradition has been requested has been committed 
outside the territory of the requesting Party, extradition may be 
granted if the laws of the requested Party provide for the punishment 
of such an offense committed in similar circumstances, and if the 
person whose surrender is sought is not also the subject of a request 
from another State whose jurisdiction over the person may take 
preference for territorial reasons and in respect of which there exists 
an equal possibility of acceding to a request for extradition.

                               Article IV

    Neither of the Contracting Parties shall be bound to deliver up its 
own nationals, but the executive authority of the United States and the 
competent authority of Spain shall have the power to deliver them up, 
if, in its discretion, it be deemed proper to do so.

                               Article V

    A. Extradition shall not be granted in any of the following 
circumstances:


    1. When the person whose surrender is sought is being proceeded 
against or has been tried and discharged or punished in the territory 
of the requested Party for the offense for which his extradition is 
requested.

    2. When the person whose surrender is sought has been tried and 
acquitted or has undergone his punishment in a third State for the 
offense for which his extradition is requested.

    3. When the prosecution or the enforcement of the penalty for the 
offense has become barred by lapse of time according to the laws of 
either of the Contracting Parties.

    4. When the offense in respect of which the extradition is 
requested is regarded by the requested Party as an offense of a 
political character, or that Party has substantial grounds for 
believing that the request for extradition has been made for the 
purpose of trying or punishing a person for an offense of the above 
mentioned character. If any question arises as to whether a case comes 
within the provisions of this subparagraph, the authorities of the 
Government on which the requisition is made shall decide.

    5. When the offense is purely military.


    B. For the purposes of the application of subparagraph A, 4 of this 
article, the attempt, whether consummated or not, against the life of 
the Head of State or of a member of his family shall not be considered 
a political offense or an act connected with such an offense.

    C. For the same purposes of application of subparagraph A, 4 of 
this article an offense committed by force or intimidation on board a 
commercial aircraft carrying passengers in scheduled air services or on 
a charter basis, with the purpose of seizing or exercising control of 
such aircraft, will be presumed to have a predominant character of a 
common crime when the consequences of the offense were or could have 
been grave. The fact that the offense has endangered the life or 
jeopardized the safety of the passengers or crew will be given special 
consideration in the determination of the gravity of such consequences.

                               Article VI

    If a request for extradition is made under this Treaty for a person 
who at the time of such request is under the age of eighteen years and 
is considered by the requested Party to be one of its residents, the 
requested Party, upon a determination that extradition would disrupt 
the social readjustment and rehabilitation of that person, may 
recommend to the requesting Party that the request for extradition be 
withdrawn, specifying the reasons therefore.

                              Article VII

    When the offense for which the extradition is requested is 
punishable by death under the laws of the requesting Party, extradition 
shall be denied unless the requesting Party provides such assurances as 
the requested Party considers sufficient that the death penalty shall 
not be imposed, or, if imposed, shall not be executed.

                              Article VIII

    The requested Party may, after a decision on the request has been 
rendered by a court of competent jurisdiction, defer the surrender of 
the person whose extradition is requested when that person is being 
proceeded against or is serving a sentence in the territory of the 
requested Party for an offense other than that for which extradition 
has been requested until the conclusion of the proceedings and the full 
execution of any punishment he may be or may have been awarded.

                               Article IX

    The determination that extradition based upon the request therefore 
should or should not be granted shall be made in accordance with this 
Treaty and with the law of the requested Party. The person whose 
extradition is sought shall have the right to use such remedies and 
recourses as are provided by such law.

                               Article X

    A. The request for extradition shall be made through the diplomatic 
channel.

    B. The request shall be accompanied by:


    1. A description of the person sought;

    2. A statement of the facts of the case;

    3. The text of the applicable laws of the requesting Party 
including the law defining the offense, the law prescribing the 
punishment for the offense, and the law relating to the limitations of 
the legal proceedings or the enforcement of the penalty for the 
offense.


    C. 1. When the request relates to a person already convicted, it 
must be accompanied by:

    When emanating from the United States, a copy of the judgment of 
conviction and of the sentence, if it has been passed; or

    When emanating from Spain, a copy of the sentence.

    2. In any ease, a statement showing that the sentence has not been 
served or how much of the sentence has not been served shall accompany 
the request.

    D. When the request relates to a person who has not yet been 
convicted, it must also be accompanied by a warrant of arrest issued by 
a judge or other judicial officer of the requesting Party.

    The requested Party may require the requesting Party to produce 
prima facie evidence to the effect that the person claimed has 
committed the offense for which extradition is requested. The requested 
Party may refuse the extradition request if an examination of the case 
in question shows that the warrant is manifestly ill-founded.

    E. If a question arises regarding the identity of the person whose 
extradition is sought, evidence proving the person requested is the 
person to whom the warrant of arrest or sentence refers shall be 
submitted.

    F. The documents which, according to this article, shall accompany 
the extradition request, shall be admitted in evidence when:

    In the case of a request emanating from Spain they bear the 
signature of a judge or other juridical or public official and are 
certified by the principal diplomatic or consular officer of the United 
States in Spain; or

    In the case of a request emanating from the United States they are 
signed by a judge, magistrate or officer of the United States and they 
are sealed by the official seal of the Department of State and are 
certified by the Embassy of Spain in the United States.

    G. The documents mentioned in this article shall be accompanied by 
an official translation into the language of the requested Party which 
will be at the expense of the requesting Party.

                               Article XI

    A. In case of urgency a Contracting Party may apply to the other 
Contracting Party for the provisional arrest of the person sought 
pending the presentation of the request for extradition through the 
diplomatic channel. This application may be made either through the 
diplomatic channel or directly between the respective Ministries of 
Justice.

    B. The application shall contain a description of the person 
sought, 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 or sentence against that person, and such 
further information, if any, as may be required by the requested Party.

    C. On receipt of such an application the requested Party shall take 
the necessary steps to secure the arrest of the person claimed.

    D. A person arrested upon such an application shall be set at 
liberty upon the expiration of 30 days from the date of his arrest if a 
request for his extradition accompanied by the documents specified in 
Article X shall not have been received. However, this stipulation shall 
not prevent the institution of proceedings with a view to extraditing 
the person sought if the request is subsequently received.

                              Article XII

    If the requested Party requires additional evidence or information 
to enable it to decide on the request for extradition, such evidence or 
information shall be submitted to it within such time as that Party 
shall require.

    If the person sought is under arrest and the additional evidence or 
information submitted as aforesaid is not sufficient or if such 
evidence or information is not received within the period specified by 
the requested Party, he shall be discharged from custody. However, such 
discharge shall not bar the requesting Party from submitting another 
request in respect of the same or any other offense.

                              Article XIII

    A person extradited under the present Treaty shall not be detained, 
tried or punished in the territory of the requesting Party for an 
offense other than that for which extradition has been granted nor be 
extradited by that Party to a third State unless:


    1. He has left the territory of the requesting Party after his 
extradition and has voluntarily returned to it;

    2. He has not left the territory of the requesting Party within 45 
days after being free to do so; or

    3. The requested Party has consented to his detention, trial, 
punishment or to his extradition to a third State for an offense other 
than that for which extradition was granted.


    These stipulations shall not apply to offenses committed after the 
extradition.

                              Article XIV

    A Party which receives two or more requests for the extradition of 
the same person either for the same offense, or for different offenses, 
shall determine to which of the requesting States it will extradite the 
person sought, taking into consideration the existing circumstances and 
particularly the possibility of a later extradition between the 
requesting States, the seriousness of each offense, the place where the 
offense was committed, the nationality of the person sought, the dates 
upon which the requests were received and the provisions of any 
extradition agreements between the requested Party and the other 
requesting State or States.

                               Article XV

    The requested Party shall promptly communicate to the requesting 
Party through the diplomatic channel the decision on the request for 
extradition.

    In the case of a complete or partial rejection of the extradition 
request, the requested Party shall indicate the reasons for the 
rejection.

    If the extradition has been granted, the authorities of the 
requesting and requested Parties shall agree on the time and place of 
the surrender of the person sought. Surrender shall take place within 
such time as may be prescribed by the laws of the requested Party.

    If the person sought is not removed from the territory of the 
requested Party within the time prescribed, he may be set at liberty 
and the requested Party may subsequently refuse to extradite that 
person for the same offense.

                              Article XVI

    To the extent permitted under the law of the requested Party and 
subject to the rights of third Parties, which shall be duly respected, 
all articles acquired as a result of the offense or which may be 
required as evidence shall, if found, be surrendered upon the granting 
of the extradition request.

    Subject to the qualifications of the first paragraph, the above 
mentioned articles shall be returned to the requesting Party even if 
the extradition, having been agreed to, cannot be carried out owing to 
the death or escape of the person sought.

                              Article XVII

    Expenses related to the transportation of the person sought shall 
be paid by the requesting Party. The appropriate legal officers of the 
country in which the extradition proceedings take place shall, by all 
legal means within their power, assist the requesting Party before the 
respective judges and magistrates.

    No pecuniary claim, arising out of the arrest, detention, 
examination and surrender of persons sought under the terms of this 
Treaty, shall be made by the requested Party against the requesting 
Party.

                             Article XVIII

    The ratifications of this Treaty shall be exchanged in Washington 
as soon as possible.

    This Treaty shall enter into force upon the exchange of 
ratifications and will continue in force until either Contracting Party 
shall give notice of termination to the other, which termination shall 
be effective six months after the date of receipt of such notice.

    This Treaty shall terminate and replace the Extradition Treaty 
between the United States and Spain signed at Madrid June 15, 1904 and 
the Protocol thereto signed at San Sebastian August 13, 1907;[\1\] 
however, the crimes listed in that Treaty and Protocol and committed 
prior to the entry into force of this Treaty shall nevertheless be 
subject to extradition pursuant to the provisions of that Treaty and 
Protocol.
---------------------------------------------------------------------------
    \1\ TS 492; 35 Stat 1947, 1955.

    In witness whereof the Plenipotentiaries have signed this Treaty 
---------------------------------------------------------------------------
and have hereunto affixed their seals.


    Done in duplicate, in the English and Spanish languages, both 
equally authentic, at Madrid this twenty-ninth day of May, one thousand 
nine hundred seventy.

                   FOR THE UNITED STATES OF AMERICA:

                           William P. Rogers

[SEAL]

                               FOR SPAIN:

                          Gregorio Lopez Bravo

[SEAL]
           treaties and other international acts series 8938

                              EXTRADITION

                          Supplementary Treaty

                              Between the

                        United States of America

                               and Spain

                         Amending the Treaty of

                              May 29, 1970

                   Signed at Madrid January 25, 1975
                    NOTE BY THE DEPARTMENT OF STATE

    Pursuant to Public Law 89-497, approved July 8, 1996 (80 Stat. 271; 
1 U.S.C. 113)  

    ``. . . the Treaties and Other International Acts Series issued 
under the authority of the Secretary of State shall be competent 
evidence . . . of the treaties, international agreements other than 
treaties, and proclamations by the President of such treaties and 
international agreements other than treaties, as the case may be, 
therein contained, in all the courts of law and equity and of maritime 
jurisdiction, and in all the tribunals and public offices of the United 
States, and of the several States, without any further proof of 
authentication thereof.''
                                 SPAIN

                              Extradition

    Supplementary treaty amending the treaty of May 29, 1970.
Signed at Madrid January 25, 1975;
Ratification advised by the Senate of the United States of America June 
            21, 1976;
Ratified by the President of the United States of America August10, 
            1976;
Ratified by Spain October 10, 1975;
Ratifications exchanged at Washington June 2, 1978;
Proclaimed by the President of the United States of America June 27, 
            1978.
Entered into force June 2, 1978.
                               __________

            By the President of the United States of America

                             A PROCLAMATION

    Considering That:

    The Supplementary Treaty on Extradition between the United States 
of America and Spain was signed at Madrid on January 25, 1975, the text 
of which Supplementary Treaty, in the English and Spanish languages, is 
hereto annexed;
    The Senate of the united Sates of America by its resolution of June 
21, 1976, two-thirds of the Senators present concurring therein, gave 
its advice and consent to ratification of the Supplementary Treaty;
    The Supplementary Treaty was ratified by the President of the 
United States of America on August 10, 1976, in pursuance of the advice 
and consent of the Senate, and was duly ratified on the part of Spain;
    It is provided in Article II of the Supplementary Treaty that the 
Supplementary Treaty shall enter into force upon the exchange of 
instruments of ratification;
    The instruments of ratification of the Supplementary Treaty were 
exchanged at Washington on June 2, 1978; and accordingly the 
Supplementary Treaty entered into force on that date;
    Now, therefore, I, Jimmy Carter, President of the United States of 
America, proclaim and make public the Supplementary Agreement, to the 
end that it shall be observed and fulfilled with good faith on and 
after June 2, 1978, by the United States of America and by the citizens 
of the United States of America and all other persons subject to the 
jurisdiction thereof.
    In testimony thereof, I have signed this proclamation and caused 
the Seal of the United States of America to be affixed.

Done at the city of Washington this twenty-seventh day of June in the 
            year of our Lord one thousand nine hundred seventy-eight 
            and of the Independence of the United States of America the 
            two hundred second.

[SEAL]

        

                                               Jimmy Carter

By the President:
        Cyrus Vance
                Secretary of State

              Supplementary Treaty on Extradition Between

                 The United States of America and Spain

    The President of the United States of America and the Chief of the 
State of Spain, desiring to make more effective the cooperation of the 
two countries in the repression of crime through the rendering of 
maximum assistance in matters of extradition,
    Have decided to conclude a Supplementary Treaty on Extradition to 
amend the Treaty of Extradition signed at Madrid on May 29, 1970,[\1\] 
hereinafter referred to as the 1970 Treaty, and to this end have named 
as their representatives:
---------------------------------------------------------------------------
    \1\ TIAS 7136; 22 UST 737
---------------------------------------------------------------------------
    The President of the United States of America:
        Samuel D. Eaton, Esquire, Charge d'Affaires ad interim,
    The Chief of State of Spain:
      His Excellency Senor D. Pedro Cortina Mauri, Minister of Foreign 
            Affairs,
who, after having exchanged their full powers, found to be in good and 
due form, have agreed as follows:

                               Article I

    Paragraph D of Article XI of the 1970 Treaty is revised as follows: 
``A person arrested upon such an application shall be set at liberty 
upon the expiration of 45 days from the date when the Embassy of the 
country seeking extradition is informed through diplomatic channels of 
the fact of this arrest if a request for his extradition accompanied by 
the documents specified in Article X shall not have been received. 
However, this stipulation shall not prevent the institution of 
proceedings with a view to extraditing the person sought if the request 
is subsequently received.''

                               Article II

    This Supplementary Treaty is subject to ratification and the 
instruments of ratification shall be exchanged in Washington as soon as 
possible.
    This Supplementary Treaty shall enter into force upon the exchange 
of instruments of ratification and shall cease to be effective on the 
date of the termination of the 1970 Treaty.
            treates and other international acts series 7136

                              EXTRADITION

                           Treaty Between the

                        United States of America

                               and Spain

                     Signed at Madrid May 29, 1970

                           English Text Only
                    NOTE BY THE DEPARTMENT OF STATE

    Pursuant to Public Law 89497, approved July 8, 1966 (80 Stat 271; 1 
U.S.C 113)--

    ``. . . the Treaties and Other International Acts Series issued 
under the authority of the Secretary of State shall be competent 
evidence . . . of the treaties, international agreements other than 
treaties, and proclamations by the President of such treaties and 
international agreements other than treaties, as the case may be, 
therein contained, in all the courts of law and equity and of maritime 
jurisdiction, and in all the tribunals and public offices of the United 
States, and of the several States, without any further proof or 
authentication thereof.''

                      SECOND SUPPLEMENTARY TREATY
                         ON EXTRADITION BETWEEN
                      THE UNITED STATES OF AMERICA
                                  AND
                          THE KINGDOM OF SPAIN

    The United States of America and the Kingdom of Spain;

    Desiring to make more effective the Treaty on Extradition between 
the Contracting Parties, signed at Madrid on May 29, 1970, as amended 
by the Supplementary Treaty on Extradition, signed at Madrid on January 
25, 1975 (hereinafter referred to as ``the Extradition Treaty'');

    Have resolved to conclude a Second Supplementary Treaty and have 
agreed as follows:

                               Article 1

    Article I of the Extradition Treaty is deleted and replaced by the 
following:

    Pursuant to the provisions of this Treaty, the Contracting Parties 
agree to extradite to each other for prosecution or to undergo sentence 
persons sought for extraditable offenses.

                               Article 2

    Article II of the Extradition Treaty is deleted and replaced by the 
following:
          A. An offense shall be an extraditable offense if it is 
        punishable under the laws in both contracting parties by 
        deprivation of liberty for a period of more than one year or by 
        a more severe penalty, or in the case of a sentenced person, if 
        the sentence imposed was greater than four months.
          B. Extradition shall also be granted for participation in any 
        of these offenses, not only as principals or accomplices, but 
        as accessories, as well as for attempts to commit or conspiracy 
        to commit any of the aforementioned offenses, when such 
        participation, attempt or conspiracy is subject, under the laws 
        of both Parties, to a term of imprisonment exceeding one year.
          C. For the purposes of this Article, an offense shall be an 
        extraditable offense whether or not the laws in the Contracting 
        States place the offense within the same category of offenses 
        or describe the offense by the same terminology.
          D. If extradition has been granted for an extraditable 
        offense, it shall also be granted for any other offense 
        specified in the request even if the latter offense is 
        punishable by less than one year's deprivation of liberty, 
        provided that all other requirements for extradition are met.
          E. Extradition shall also be granted for these offenses, even 
        when, in order to recognize the competent federal jurisdiction, 
        circumstances such as the transportation from one State to 
        another, have been taken into account and may be elements of 
        the offense.

                               Article 3

    Article IV of the Extradition Treaty is deleted and replaced by the 
following:
    Neither of the Contracting Parties shall be bound to deliver up its 
own nationals, but the Executive Authority of the United States and the 
competent authority of Spain, unless prohibited by their domestic 
legislation, shall have the power to deliver them up if, in their 
discretion, it be deemed proper to do so. If extradition is refused 
solely on the basis of the nationality of the person sought, the 
requested Party shall, at the request of the requesting Party, submit 
the case to its authorities for prosecution.

                               Article 4

    Article V, paragraphs B and C of the Extradition Treaty are deleted 
and replaced by the following:
          B. For the purpose of this Treaty, the following offenses 
        shall not be deemed to be offenses of a political character 
        within the meaning of subparagraph A of this Article:
                  (1) a murder or other willful crime against the 
                person of a Head of State of one of the Contracting 
                Parties, or of a member of the Head of State's family;
                  (2) an offense for which both Contracting Parties 
                have the obligation pursuant to a multilateral 
                international agreement to extradite the person sought 
                or to submit the case to their competent authorities 
                for the purpose of prosecution;
                  (3) murder, voluntary manslaughter and voluntary 
                assault and battery inflicting serious bodily harm;
                  (4) an offense involving kidnapping, abduction, the 
                taking of a hostage, or any other form of illegal 
                detention;
                  (5)an offense involving the placement or use of an 
                explosive, incendiary or destructive device or 
                substance, as well as the use of automatic weapons, to 
                the extent that they cause or are capable of causing 
                serious bodily harm or substantial property damage;
                  (6) an attempt to commit one of the above-mentioned 
                offenses or the participation as co-author or 
                accomplice of a person who commits or attempts to 
                commit such an offense;
                  (7) illicit association or bands formed to commit any 
                of the foregoing offenses under the laws of Spain, or a 
                conspiracy to commit any such offenses as provided by 
                the laws in the United States.

                               Article 5

    Article VIII of the Extradition Treaty is deleted and replaced by 
the following:
          A. If the extradition request is granted in the case of a 
        person who is being proceeded against or is serving a sentence 
        in the requested State, the requested Party may temporarily 
        surrender the person sought to the requesting Party for the 
        purpose of prosecution. The person so surrendered shall be kept 
        in custody in the requesting state and shall be returned to the 
        requested state after the conclusion of the proceedings against 
        that person, in accordance with conditions to be determined by 
        agreement of the contracting Parties.
          B. The requested party may postpone the extradition 
        proceedings against a person who is being prosecuted or who is 
        serving a sentence in that State. The postponement may continue 
        until the prosecution of the person sought has been concluded 
        and any sentence has been served.

                               Article 6

    Article X, paragraph D of the Extradition Treaty is deleted and 
replaced by the following:

          When the request relates to a person who has not yet been 
        convicted, it must also be accompanied by a warrant of arrest 
        issued by a judge or other judicial officer of the requesting 
        party and such information as would justify the committal for 
        trial of the person if the offense had been committed in the 
        requested State. The requested Party may refuse the extradition 
        request if an examination of the case in question shows that 
        the warrant is manifestly ill-founded.

                               Article 7

    Article XI, paragraph A of the Extradition Treaty is amended by 
adding the following third sentence:

          The facilities of the International Criminal police 
        organization (Interpol) may be used to transmit such a request.

                               Article 8

    Article XV of the Extradition Treaty is deleted and replaced by the 
following:
          The requested party shall communicate to the requesting Party 
        as soon as possible through the diplomatic channel the decision 
        on the request for extradition.
          In the case of a complete or partial rejection of the 
        extradition request, the requested Party shall indicate the 
        reasons for the rejection.
          The surrender shall be subject to the laws of the requested 
        Party.
          If the extradition has been granted, the authorities of the 
        requesting and requested Parties shall agree on the time and 
        place of the surrender of the person sought. Surrender shall 
        take place within such times as may be prescribed by the laws 
        of the requested Party.
          If the person sought is not removed from the territory of the 
        requested Party within the time prescribed, he may be set at 
        liberty and the requested Party may subsequently refuse to 
        extradite that person for the same offense.

                               Article 9

    1. The extraditions requested after the entry into force of this 
Supplementary Treaty shall be governed by its provisions, whatever the 
date of the commission of the offense may be, except that in the case 
of offenses not covered by the 1970 Treaty, this Supplementary Treaty 
will only be applicable if the requested person is found in the 
requested State forty-five (45) days after the entry into force of this 
Supplementary Treaty.
    2. The extraditions requested before the entry into force of this 
Supplementary Treaty shall continue to be processed and shall be 
resolved in accordance with the provisions of the Treaty of May 29, 
1970.

                               Article 10

    (1) This supplementary Treaty shall the Extradition Treaty.
    (2) This Supplementary Treaty shall be subject to ratification and 
the instruments of ratification shall be exchanged at Washington as 
soon as possible. It shall enter into force thirty days after the 
exchange of instruments of ratification. It shall be subject to 
termination in the same manner as the Extradition Treaty.

    IN WITNESS WHEREOF, the plenipotentiaries have signed this 
Supplementary Treaty.

    DONE at Madrid this 9th day of February, 1988, in duplicate, in the 
Spanish and English languages, both texts being equally authentic.

                                 ______
                                 

   Annex 5 (Relates to Sen. Biden Hong Kong Prisoner Transfer Treaty 
                              Question 2)

    Guidelines for Administration of Prisoner Transfer Treaties and 
               Implementation of 18 U.S.C. 4100, et seq.
                       i. general considerations
A. Background
    The United States of America became a signatory to treaties with 
the United Mexican States, and Canada, in 1976 and 1977 respectively, 
for the transfer of prisoners and the execution of penal sentences. 
Since 1977 the United States has become a signatory on prisoner 
transfer treaties with Bolivia (1978), France (1983), Panama (1979), 
Peru (1979), Turkey (1979) and the Council of Europe Convention (1983).
    Pursuant to the treaties with Mexico and Canada, and in 
contemplation of future treaties and the Council of Europe Convention, 
the Congress of the United States enacted legislation regarding the 
transfer of prisoners, found at 18 U.S.C. 4100, et seq. The 
implementing legislation, specifically 18 U.S.C. 4102(4) authorizes the 
Attorney General of the United States to make regulations for the 
proper implementation of such treaties and to make regulations for the 
implementation of this specific legislation. 18 U.S.C. 4102(11) 
authorizes the Attorney General to delegate his authority, conferred by 
this legislation, to officers of the Department of Justice. This 
authority was delegated to the Senior Associate Director, Office of 
Enforcement Operations, Criminal Division, Department of Justice.
    These guidelines set forth the criteria to be considered by the 
Department of Justice in implementing the specific legislation and, 
thereby, the treaties for prisoner transfer.
    These guidelines provide only internal Department of Justice 
guidance. They are not intended to, do not, and may not be relied upon 
to create any rights, substantive or procedural, enforceable at law by 
any person in any matter civil or criminal. Nor are any limitations 
hereby placed on otherwise lawful litigation prerogatives of the 
Department of Justice. Rather, these guidelines are intended to ensure 
that responsible officials, in the exercise of their discretion, treat 
prisoners fairly and not capriciously. These guidelines may be altered, 
modified, amended or changed, at any time, without notice.
B. Application
    Section 4100, et seq., of Title 18 and these guidelines allow the 
Department to transfer prisoners, convicted of a crime in a foreign 
country, to serve the sentence imposed in their home country when 
appropriate treaties allowing such transfers exist. Because the 
transfer of said prisoners must be determined on a case-by-case basis, 
sound judgment will be required in making transfer decisions. In order 
to appropriately assess an individual for transfer purposes, 
information will be obtained from a variety of sources including the 
prisoner and the sentencing state. All efforts shall be made to 
minimize delays in obtaining this information.
C. Responsibilities
    The decision to transfer or not to transfer a prisoner from the 
United States to the prisoner's home country and the decision to accept 
or reject the application of a United States citizen for transfer from 
a foreign prison are the sole responsibility of the Senior Associate 
Director, Office of Enforcement Operations, Criminal Division, or in 
his absence, the Director of that office.
  ii. procedures for determining the eligibility of american citizen 
  prisoners requesting transfer from foreign prisons to united states 
                                prisons
    A. In addition to specific criteria set forth in the treaty, 
statutes and legislative history authorizing the transfer of an 
individual to the United States from a foreign prison, the Office of 
Enforcement Operations shall determine whether an individual is 
eligible for transfer after considering the following:

    1. whether the individual has paid any and all fines and/or 
            restitution ordered by the foreign court;
    2. whether the offender has fulfilled the conditions of 18 U.S.C. 
            4100, et seq., and the conditions of the treaty pursuant to 
            which the transfer was requested;
    3. whether the return of the offender to the United States would so 
            outrage public sensibilities because of the extremely 
            serious nature of the offender's crime or circumstances 
            surrounding it as to outweigh the rehabilitation 
            considerations;
    4. whether the return of the offender to the United States would 
            constitute a threat to a citizen of the United States or to 
            the security of the United States;
    5. whether there is reason to believe that the offender would, on 
            the offender's return to the United States, engage in any 
            activity that would be part of a pattern of criminal 
            activity planned and organized by a number of persons 
            acting in furtherance of any offense that may be punishable 
            under any of the laws of the United States;
    6. whether the offender is actively under investigation, by either 
            the United States or the sentencing country, for criminal 
            activity;
    7. whether the offender is capable of providing information, to 
            either the United States or the sentencing country, 
            regarding any matter under investigation and whether the 
            offender has or will provide information;
    8. whether the offender has transferred before pursuant to a 
            prisoner transfer treaty;
    9. the relative accessibility of the sentencing country's borders;
   10. whether the offender is sentenced due to an immigration-related 
            offense or the purely military laws of a country;
   11. whether the offender is a career criminal and whether the 
            offender is likely to be rehabilitated while incarcerated;
   12. such other factors as may be appropriate given the specific 
            nature of the case or the defendant.

    B. The criteria set forth herein are intended to serve as general 
guidelines for the exercise of discretion in implementing 18 U.S.C. 
4100 and the administration of the prisoner transfer treaties. Nothing 
contained herein shall be construed as a limitation upon the discretion 
of the Attorney General or his designee.
    iii. procedures for determining eligibility of foreign national 
            prisoners requesting transfer from u.s. prisons
    A. In addition to specific criteria set forth in the treaty, 
            statutes and legislative history authorizing the transfer 
            of an individual from the United States to a foreign 
            country, the Office of Enforcement Operations shall 
            determine whether an individual is eligible for transfer 
            after considering the following:
    1. whether the offender has paid any and all fines and/or 
            restitution ordered by the United States Court as part of 
            the offender's sentence;
    2. whether the offender has fulfilled the conditions of 18 U.S.C. 
            4100, et seq., and the conditions of the treaty pursuant to 
            which the transfer was requested;
    3. whether the return of the offender to a foreign country would so 
            outrage public sensibilities because of the extremely 
            serious nature of the offender's crime or the circumstances 
            surrounding the offender's crime, as to outweigh the 
            rehabilitation considerations;
    4. whether the return of the offender to a foreign country would 
            inhibit or interfere with law enforcement activities within 
            the United States;
    5. whether the return of the offender to a foreign country would be 
            contrary to the public policy of the United States;
    6. whether the return of the offender to a foreign country would 
            constitute a threat to a citizen of the United States or to 
            the security of the United States;
    7. whether there is reason to believe that the offender would, on 
            the offender's return to a foreign country, engage in any 
            activity that would be part of a pattern of criminal 
            activity planned and organized by a number of persons 
            acting in furtherance of any offense that may be punishable 
            under any of the laws of the United States;
    8. whether the offender is actively under investigation, by either 
            the United States or the foreign country, for criminal 
            activity;
    9. whether the offender is capable of providing information, to 
            either the United States or foreign country, regarding any 
            matter under investigation and whether the offender has 
            provided said information;
    10. whether the offender has transferred before pursuant to a 
            prisoner transfer treaty;
    11. the relative proximity of the foreign country's natural borders 
            to the United States' borders;
    12. whether the offender is sentenced due to an immigration 
            offense;
    13. whether the offender is a career criminal;
    14. whether the offender is likely to be rehabilitated while 
            incarcerated;
    15. such other factors as may be appropriate given the specific 
            nature of the case or the defendant.

    B. The criteria set forth herein are intended to serve as general 
guidelines for the exercise of discretion in implementing 18 U.S.C. 
4100 and the administration of the prisoner transfer treaties. Nothing 
contained herein shall be construed as a limitation upon the discretion 
of the Attorney General or his designee.
    C. In addition to the criteria set forth in III(A) above, if the 
offender is seeking to transfer to a foreign country from a state 
prison in the United States, the following criteria shall be applied or 
considered:
    1. whether or not the state which sentenced the offender has been 
            authorized by state legislation to transfer prisoners of 
            foreign nationality to the countries of their citizenship 
            under treaties between the United States and foreign 
            countries;
    2. whether the offender has complied with the requirements set 
            forth in the specific states' legislation regarding 
            prisoner transfers;
    3. whether the individual state has approved the offender's 
            requested transfer to the country of citizenship;
    4. whether the transfer of the offender would interfere with state 
            law enforcement investigations;
    5. whether the transfer of the offender would outrage the 
            sensibilities of the public of that state due to the 
            egregious or serious nature of offender's crime or the 
            circumstances surrounding offender's crime.
    IV. The guidelines and criteria contained herein are complementary 
to the treaties and conventions entered into by and between the United 
States and other countries or nations. Nothing in this agreement shall 
be construed to expand, contradict, contravene or enlarge upon the laws 
the United States of America, its states, provinces, territories or 
political subdivisions.
      v. procedures for review of offender's request for transfer
    In addition to procedures and requirements set forth in 18 U.S.C. 
4100, et seq., and the specific treaty pursuant to which transfer is 
requested, the following procedures shall be followed in reviewing an 
offender's request for transfer to or from the United States.
    A. Upon receipt of an offender's request to transfer to the United 
States from a foreign prison;
    1. Inquiry shall be made of the foreign country with regards to the 
            statute under which the offender was sentenced, the 
            sentence received by offender; remission credits earned to 
            date; the prosecution's version of the crime, and any other 
            information that the Office of Enforcement Operations deems 
            relevant to a proper review of the request;
    2. Inquiry shall be made of any and all appropriate United States 
            investigative agencies for information regarding the 
            offender, the instant offense and the past criminal history 
            of the offender;
    3. Once all necessary information has been obtained, the request 
            and information shall be reviewed by the Office of 
            Enforcement Operations after which the Senior Associate 
            Director shall render a decision.
    4. The Senior Associate Director of the Office of Enforcement 
            Operations shall make a decision to approve or deny the 
            offender's request for transfer;
    5. The offender and the foreign country shall be promptly advised 
            of the decision of the Senior Associate Director of the 
            Office of Enforcement Operations;
    B. Upon receipt of an offender's request to transfer from the 
United States to the offender's country of citizenship.
    In addition to the procedures set forth in V (A) 1-6, above, 
inquiry shall be made of the appropriate agencies in order to obtain a 
complete overview of the crime with which the offender has been 
convicted.
   vi. procedures in the event of a denial of offender's request for 
                                transfer
    A. Upon being informed of a denial of offender's request to 
transfer the offender may:
    1. Re-apply no less than one calendar year after date of denial.
    2. Seek review of denial, at any time, if offender obtains new 
            information which may impact upon the decision of the 
            Senior Associate Director of the Office of Enforcement 
            Operations.