[Senate Hearing 108-721]
[From the U.S. Government Printing Office]



                                                        S. Hrg. 108-721

                  HEARING ON LAW ENFORCEMENT TREATIES:

TREATY DOC. 107-18, INTER-AMERICAN CONVENTION AGAINST TERRORISM; TREATY 
 DOC. 108-6, PROTOCOL OF AMENDMENT TO THE INTERNATIONAL CONVENTION ON 
THE SIMPLIFICATION AND HARMONIZATION OF CUSTOMS PROCEDURES; TREATY DOC. 
108-11, COUNCIL OF EUROPE CONVENTION ON CYBERCRIME; TREATY DOC. 108-16, 
U.N. CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND PROTOCOLS ON 
            TRAFFICKING IN PERSONS AND SMUGGLING OF MIGRANTS

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

                                HEARING

                               BEFORE THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                              JUNE 17, 2004

                               __________

       Printed for the use of the Committee on Foreign Relations


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




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                     COMMITTEE ON FOREIGN RELATIONS

                  RICHARD G. LUGAR, Indiana, Chairman
CHUCK HAGEL, Nebraska                JOSEPH R. BIDEN, Jr., Delaware
LINCOLN CHAFEE, Rhode Island         PAUL S. SARBANES, Maryland
GEORGE ALLEN, Virginia               CHRISTOPHER J. DODD, Connecticut
SAM BROWNBACK, Kansas                JOHN F. KERRY, Massachusetts
MICHAEL B. ENZI, Wyoming             RUSSELL D. FEINGOLD, Wisconsin
GEORGE V. VOINOVICH, Ohio            BARBARA BOXER, California
LAMAR ALEXANDER, Tennessee           BILL NELSON, Florida
NORM COLEMAN, Minnesota              JOHN D. ROCKEFELLER IV, West 
JOHN E. SUNUNU, New Hampshire            Virginia
                                     JON S. CORZINE, New Jersey

                 Kenneth A. Myers, Jr., Staff Director
              Antony J. Blinken, Democratic Staff Director

                                  (ii)

  
?

                            C O N T E N T S

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                                                                   Page

Allen, Hon. George, U.S. Senator from Virginia, statement 
  submitted for the record.......................................    37
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening 
  statement......................................................     1
Schmitz, Mr. Michael T., Assistant Commissioner for International 
  Affairs (Acting), Bureau of Customs and Border Protection, U.S. 
  Department of Homeland Security, Washington, DC................    21
    Prepared statement on Revised Customs Convention.............    23
    Responses to additional questions on the Protocol of 
      Amendment (Treaty Doc. 108-6), from Senator Biden..........    67
Swartz, Mr. Bruce, Deputy Assistant Attorney General, Criminal 
  Division, U.S. Department of Justice, Washington, DC...........    12
    Prepared statement...........................................    15
    Responses to additional questions on the Convention on 
      Cybercrime (Treaty Doc. 108-11), from Senator Biden........    52
    Responses to additional questions on the U.N. Convention 
      Against Transnational Organized Crime and Protocols on 
      Trafficking in Persons and Smuggling of Migrants (Treaty 
      Doc. 108-16), from Senator Biden...........................    59
Witten, Mr. Samuel M., Deputy Legal Adviser, U.S. Department of 
  State, Washington, DC..........................................     3
    Prepared statement...........................................     6
    Responses to additional questions on the Convention on 
      Cybercrime (Treaty Doc. 108-11), from Senator Lugar........    48
    Responses to additional questions on the U.N. Convention 
      Against Transnational Organized Crime and Protocols on 
      Trafficking in Persons and Smuggling of Migrants (Treaty 
      Doc. 108-16), from Senator Biden...........................    59
    Responses to additional questions on the Convention Against 
      Terrorism (Treaty Doc. 108-18), from Senator Biden.........    49
    Responses to additional questions on the Protocol of 
      Amendment (Treaty Doc. 108-6), from Senator Biden..........    67

             Additional Statements Submitted for the Record

AeA, statement submitted in support of the International 
  Convention on the Simplification and Harmonization of Customs 
  Procedures.....................................................    38
Electronic Privacy Information Center [epic.org], statement 
  submitted for the record.......................................    39
Microsoft Corporation, letter to Senators Lugar and Biden, in 
  support of the Convention on Cybercrime, from Scott Charney, 
  Chief Trustworthy Computing Strategist.........................    41
Revised Kyoto Convention on Customs Modernization Coalition, 
  statement submitted in support of the International Convention 
  on the Simplification and Harmonization of Customs Procedures..    42

                                 (iii)

  

 
                  HEARING ON LAW ENFORCEMENT TREATIES:

TREATY DOC. 107-18, INTER-AMERICAN CONVENTION AGAINST TERRORISM; TREATY 
 DOC. 108-6, PROTOCOL OF AMENDMENT TO THE INTERNATIONAL CONVENTION ON 
THE SIMPLIFICATION AND HARMONIZATION OF CUSTOMS PROCEDURES; TREATY DOC. 
108-11, COUNCIL OF EUROPE CONVENTION ON CYBERCRIME; TREATY DOC. 108-16, 
U.N. CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND PROTOCOLS ON 
            TRAFFICKING IN PERSONS AND SMUGGLING OF MIGRANTS

                              ----------                              


                        THURSDAY, JUNE 17, 2004

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:34 a.m. in SD-
419, Dirksen Senate Office Building, Hon. Richard G. Lugar 
(chairman of the committee), presiding.
    Present: Senator Lugar.


        OPENING STATEMENT OF SENATOR RICHARD G. LUGAR, CHAIRMAN


    The Chairman. This hearing of the Senate Foreign Relations 
Committee is called to order. The committee meets today to hear 
testimony on a series of law enforcement treaties. These are 
the Council of Europe Convention on Cybercrime; the Inter-
American Convention Against Terrorism; the Protocol of 
Amendment to the International Convention on the Simplification 
and Harmonization of Customs Procedures; and the United Nations 
Convention Against Transnational Organized Crimeand Protocols 
on Trafficking in Persons and Smuggling of Migrants.
    In addition, the last treaty is accompanied by two 
protocols addressing trafficking in persons and alien 
smuggling. All of these agreements are designed to enhance our 
ability to join with other countries in fighting crime 
internationally.
    Within the Congress, the Senate Foreign Relations Committee 
is charged with the unique responsibility of reviewing treaties 
included by the administration. Our colleagues in the Senate 
depend upon us to make timely and judicious recommendations on 
treaties. This is a serious responsibility, and I know that all 
members of this committee understand the importance of our role 
in this process.
    In advance of this hearing, the committee has worked hard 
with the administration to prepare this set of law enforcement 
treaties for committee consideration. Committee staff has 
reviewed these treaties carefully. We have held two formal 
committee briefings covering the treaties, and the 
administration representatives have been available to answer 
questions. I appreciate the support and cooperation of the 
ranking member, Senator Biden, and his staff during this 
procedure.
    The Council of Europe Cybercrime Convention is aimed at 
improving the capacity of parties to fight computer crime. This 
Convention was negotiated under the auspices of the Council of 
Europe. The United States participated in these negotiations in 
its capacity as an observer to the Council of Europe.
    The Convention establishes a number of substantive crimes 
that parties agree to prohibit under their domestic law. It 
requires parties to adopt improved procedures for investigating 
computer crimes, and it provides for international cooperation 
in the investigation of those crimes.
    The Inter-American Convention Against Terrorism was adopted 
by the Organization of American States in the aftermath of the 
September 11 terrorist attacks on the United States. It calls 
on parties to accede to a number of pre-existing international 
conventions addressing various forms of terrorism. It also 
obligates parties to track and to prevent the financing of 
terrorist activities, and to enhance the effectiveness of law 
enforcement efforts aimed at preventing terrorists. These tools 
will improve cooperation among countries in this hemisphere to 
fight terrorism.
    The Customs Harmonization Protocol is the product of a 
long-standing, multilateral effort to harmonize national 
customs procedures. It incorporates the many developments in 
trade and customs processing that have occurred since the 
conclusion of the 1973 Convention on Customs Simplification and 
Harmonization.
    The Protocol complements U.S. initiatives to promote 
homeland security. It promotes the use of advanced customs 
procedures that will enable officials in the United States and 
abroad to identify high-risk cargo that may be headed for the 
United States. Wide adherence to the Protocol would also 
benefit United States business by creating more predictable, 
efficient, and standardized customs procedures worldwide.
    The United Nations Convention Against Transnational 
Organized Crime and Protocols on Trafficking in Persons and 
Smuggling of Migrants and two Protocols, the Protocol to 
Prevent, Suppress, and Punish Trafficking in Persons, 
Especially Women and Children, and the Protocol Against 
Smuggling of Migrants by Land, Sea and Air, are the first 
multilateral treaties to address the phenomenon of 
transnational organized crime. The Convention requires parties 
to criminalize certain conduct, such as participation in an 
organized criminal group, money laundering, bribery of public 
officials, and obstruction of justice.
    The Convention also strives to improve cooperation among 
parties on extradition and mutual legal assistance in relation 
to these crimes. It would enhance the United States' ability to 
render and receive assistance on a global basis in the common 
struggle to prevent, investigate, and prosecute transnational 
organized crime.
    The two Protocols require parties to criminalize 
trafficking in persons and the smuggling of migrants. They 
provide standardized definitions for a number of trafficking 
and smuggling-related offenses which parties undertake to 
criminalize. They also contain provisions calling on parties to 
make available certain procedures and assistance to victims of 
such crimes.
    I commend the United States officials who have worked on 
these agreements for negotiating documents that command wide 
support. Some of these agreements are the product of years of 
dedication and patient negotiations. Prompt ratification of 
these agreements will help the United States continue to play a 
leadership role in international law enforcement and will 
advance the security of Americans at home and abroad.
    We are pleased to have with us today a panel of 
administration witnesses with deep expertise on these treaties. 
We'll hear from Mr. Michael Schmitz, Acting Assistant 
Commissioner for International Affairs at the Bureau of Customs 
and Border Protection; Mr. Bruce Swartz, Deputy Assistant 
Attorney General in the Criminal Division of the Department of 
Justice; and Mr. Samuel Witten, Deputy Legal Adviser at the 
Department of State. We look forward to their insights on these 
treaties.
    We welcome you to the committee this morning. I'm advised 
by staff that the testimony order has been changed. The order 
now is Mr. Witten, Mr. Swartz, and Mr. Michael Schmitz. If this 
will not interrupt your line of thought unduly, first of all 
we'll hear from Mr. Witten.

   STATEMENT OF SAMUEL M. WITTEN, DEPUTY LEGAL ADVISER, U.S. 
                      DEPARTMENT OF STATE

    Mr. Witten. Thank you very much, Mr. Chairman. Mr. 
Chairman, I'm pleased to appear before you today to testify in 
support of six multilateral instruments, five relating to 
international law enforcement cooperation, and one concerning 
customs procedures.
    The five specifically law enforcement treaties address the 
major criminal concerns of terrorism, cybercrime, transnational 
organized crime, and trafficking and smuggling of persons. The 
customs protocol seeks to meet the needs of international trade 
and customs services and protect international security through 
the simplification and harmonization of customs procedures.
    The Department of State greatly appreciates this 
opportunity to address these international instruments. Mr. 
Swartz will provide more information on the direct benefits to 
U.S. law enforcement of the law enforcement conventions. Mr. 
Schmitz will discuss the importance of the new customs 
protocol. I will provide the committee with a general overview 
of these instruments and their value to the United States. It 
is worth emphasizing that we have worked and succeeded to 
ensure that the United States can comply with all of these 
instruments without the need for any implementing legislation.
    The multilateral law enforcement conventions before you 
today reflect that the U.S. has been working together with 
other countries, indeed leading efforts at the United Nations 
as well as regional organizations like the Council of Europe 
and the Organization of American States, to improve our 
collective abilities to prevent and punish terrorist crimes, 
computer crimes, and organized crimes, such as those involving 
the exploitation of persons.
    These conventions break new ground legally and provide 
essential and practical tools for international cooperation. I 
will say just a few words about each one and my prepared 
testimony will provide additional details.
    The Chairman. Let me just add that the full testimony that 
you have prepared will be made a part of this record. If you 
summarize, be assured that the full text will be a part of the 
record.
    Mr. Witten. Thank you, Mr. Chairman. The Inter-American 
Convention Against Terrorism was negotiated as a direct 
response to the attacks on the United States of September 11, 
2001. Within 10 days of the attacks, the foreign ministers of 
the OAS member states endorsed the negotiation of a regional 
Convention against terrorism, and the resulting Convention was 
adopted by the OAS General Assembly and opened for signature on 
June 3, 2002.
    Thirty-three OAS members states have signed the 
Conventions, which entered into force on July 10, 2003, and as 
of last week, eight states are party to the Convention, 
including Canada, Mexico, Peru, and Venezuela. The Convention 
builds upon other multilateral and bilateral instruments 
already in force. It incorporates by reference the offenses set 
forth in 10 counter-terror instruments listed in article 2 of 
the Convention, to which the United States is already a party.
    The cooperative measures set forth in the rest of the 
Convention will thus be available for a wide range of 
terrorism-related offenses, including hijackings, bombings, 
attacks on diplomats, and financing of terrorism.
    The Council of Europe Convention on Cybercrime is, as you 
mentioned, Mr. Chairman, the product of years of study and work 
by the experts from a wide range of countries. Although it was 
negotiated in a European forum, the United States played a 
leading role in its development. The United States has since 
worked to ensure that the Convention, the only one of its kind, 
is used worldwide as a model by countries seeking to address 
the newly emerging area of computer crime.
    The Convention was opened for signature and was signed by 
the United States on November 23, 2001. As of last week, 38 
countries have signed the Convention and six have also ratified 
it. It will enter into force on July 1, 2004. The Convention 
has three main parts. I'll simply highlight them, and Mr. 
Swartz will provide more detail. It provides that any member 
state must criminalize certain conduct relating to computer 
systems. As one example, article 2 requires parties to 
criminalize illegal access into computer systems, including 
activities known as hacking.
    Second, it requires parties to ensure that certain 
investigative procedures are available to enable their domestic 
law enforcement authorities to investigate cybercrime offenses 
effectively and obtain electronic evidence, such as computer 
data, of crime.
    And finally, Mr. Chairman, in a manner analogous to other 
law enforcement treaties to which the United States is a party, 
the Convention requires parties to provide each other broad 
international cooperation in investigating computer-related 
crime and obtaining electronic evidence in addition to 
assisting in the extradition of fugitives sought for crimes 
under the Convention.
    Next, the U.N. Convention Against Transnational Organized 
Crime and Protocols on Trafficking in Persons and Smuggling of 
Migrants is the first and only global instrument designed 
specifically to combat the dangerous contemporary phenomenon of 
criminal groups operating internationally. During the second 
half of the 1990s, the U.S. and its G-8 allies, concerned about 
the rapid spread of organized crime across borders no longer 
frozen by cold war geopolitics, recognized the need for 
coordinated international action. As of last week, 147 
countries, including the United States, have signed the 
Transnational Organized Crime and Protocols on Trafficking in 
Persons and Smuggling of Migrants Convention and 78 are already 
parties to it.
    The Convention has been in force since September 29, 2003. 
The Convention focuses on the offenses that are characteristic 
of transnational organized crime and on key methods of 
international cooperation for combating it. Two of its 
protocols on trafficking in persons and alien smuggling are 
also before the committee today.
    The Convention not only requires parties to ensure that 
their national criminal laws meet the criteria set forth in the 
Convention with respect to offenses characteristic of 
transnational organized crime, but also provides a blueprint of 
international cooperation. Many countries, particularly in the 
developing world, lack existing bilateral extradition or mutual 
legal assistant treaty relationships with one another, but once 
they become a party to this Convention, they will be able to 
rely on the Convention to fill that legal gap for many serious 
crimes.
    Finally, with respect to the Transnational Organized Crime 
and Protocols on Trafficking in Persons and Smuggling of 
Migrants Convention, as I mentioned, there are two Protocols 
before the committee. The formal name of the first is the 
Protocol to Prevent, Suppress, and Punish Trafficking in 
Persons, Especially Women and Children. This was originally 
proposed and drafted in its earliest forms by the United States 
and has the potential to be a powerful international law 
enforcement instrument requiring countries to criminalize 
trafficking and providing a broad framework for international 
cooperation to prosecute traffickers, prevent trafficking, and 
protect trafficking victims.
    As of last week, 117 countries, including the United 
States, have signed the trafficking protocol, and 61 countries 
are already parties to it. The trafficking protocol has been in 
force since December 25, 2003.
    And the Protocol Against the Smuggling of Migrants by Land, 
Sea and Air is designed to prevent and combat the smuggling of 
migrants and to promote cooperation among state parties to that 
end, while protecting the rights of smuggled migrants. As of 
last week, 112 countries, including the United States, have 
signed the Migrant Smuggling Protocol, and 55 countries are 
parties to it. The Migrant Smuggling Protocol has been in force 
since January 28, 2004.
    Finally, the State Department urges Senate approval of the 
Protocol of Amendment to the International Convention on the 
Simplification and Harmonization of Customs Procedures. Mr. 
Schmitz will provide additional detail about this instrument. I 
would note that the Customs Protocol represents the kind of 
modernization and customs harmonization that is becoming 
increasingly necessary to U.S. exporters and other traders 
alike. It responds to the modernization in business and 
administrative methods and to the control of international 
trade, without compromising standards of customs control.
    Accession to the Protocol will facilitate greater economic 
growth, increased foreign investment, and stimulate U.S. 
exports. The Protocol amends the original Convention done at 
Kyoto on May 18, 1973, and replaces the annex to the 1973 
Convention with a general annex and 10 specific annexes, all of 
which is considered the, ``Revised Customs Convention.''
    By acceding to the Protocol, we would also encourage other 
countries to sign on and implement procedures that will make 
trade and goods across our borders more predictable, and 
therefore, potentially more secure. The Protocol will enter 
into force 3 months after 40 contracting parties have consented 
to be bound by it. As of last month, 32 countries have 
consented to be bound, including some of our largest trading 
partners, for example, Australia, Canada, China, Japan, and 
most members of the European Union.
    With that, Mr. Chairman, I'll conclude my remarks. We 
appreciate the committee's decision to consider these important 
treaties, and I'll be happy to answer any questions the 
committee may have.
    [The prepared statement of Mr. Witten follows:]

                 Prepared Statement of Samuel M. Witten

    Mr. Chairman and members of the Committee:
    I am pleased to appear before you today to testify in support of 
six multilateral instruments, five relating to international law 
enforcement cooperation and one concerning customs procedures. The law 
enforcement treaties address the major criminal concerns of terrorism, 
cybercrime, transnational organized crime, and trafficking and 
smuggling of persons. The customs protocol seeks to meet the needs of 
international trade and customs services through the simplification and 
harmonization of customs procedures. The Department of State greatly 
appreciates this opportunity to address these international 
instruments.
    In recent years, the world community as a whole has had to confront 
a rising tide of trans-border crime of many types. The multilateral law 
enforcement conventions before you today reflect that the United States 
has been working together with other countries--indeed, leading 
efforts--at the United Nations as well as at regional organizations 
like the Council of Europe and the Organization of American States, to 
improve our collective abilities to prevent and punish terrorist 
crimes, computer crimes, and organized crimes such as those involving 
the exploitation of persons. They break new ground legally, and provide 
essential and practical tools for international cooperation.
    These law enforcement instruments are innovative in containing 
definitions of certain serious crimes--computer crime and trafficking 
in persons, for example--on which there never previously had been an 
international consensus. Now we not only agree collectively on what 
constitutes such crimes, but also commit ourselves to punish them 
comparably and to extradite fugitives and otherwise assist in the 
investigation and prosecution of persons who commit them.
    These instruments also contain breakthroughs in methods for 
providing and obtaining assistance to and from other countries. The 
investigation of computer crimes, for instance, requires real-time 
coordination in tracing electronic communications across borders, and 
the Cybercrime Convention commits parties to do just that. The 
Transnational Organized Crime and Protocols on Trafficking in Persons 
and Smuggling of Migrants Convention similarly details procedures for 
mutual legal assistance that will be able to function effectively 
without the need to resort solely to cumbersome domestic law processes. 
And to ensure that fugitive terrorists in our hemisphere are brought to 
justice, the OAS Terrorism Convention eliminates the possibility that 
they could hide behind assertions that their crimes are ``political 
offenses.''
    The customs protocol, meanwhile, represents the kind of 
modernization and customs harmonization that is becoming increasingly 
necessary to U.S. exporters and other traders alike. It responds to the 
modernization in business and administrative methods and to the growth 
of international trade, without compromising standards of customs 
control. Accession to the protocol would facilitate greater economic 
growth, increase foreign investment, and stimulate U.S. exports.
    I will address each of the instruments individually.

            THE INTER-AMERICAN CONVENTION AGAINST TERRORISM
    The Inter-American Convention Against Terrorism was negotiated as a 
direct response to the attacks on the United States of September 11, 
2001. Within 10 days of the attacks, the foreign ministers of the OAS 
member states endorsed the negotiation of a regional convention against 
terrorism, and the resulting convention was adopted by the OAS General 
Assembly and opened for signature nine months later on June 3, 2002.
    Thirty-three OAS member states have signed the Convention, which 
entered into force on July 10, 2003. As of last week, eight states are 
party to the Convention, including Canada, Mexico, Peru and Venezuela.
    The Convention builds upon other multilateral and bilateral 
instruments already in force. Following the model of the 1999 
International Convention for the Suppression of Financing of Terrorism, 
the Convention incorporates by reference the offenses set forth in ten 
counter-terrorism instruments listed in Article 2 of the Convention to 
which the United States is already a party. The cooperative measures 
set forth in the rest of the convention will thus be available for a 
wide-range of terrorism-related offenses, including hijackings, 
bombings, attacks on diplomats, and the financing of terrorism. My 
colleague from the Department of Justice will provide an overview of 
these measures in his testimony.
    Parties are required under the Convention to ``endeavor to become a 
party'' to these ten counter-terrorism instruments. In addition to 
facilitating the implementation of the Convention, this obligation also 
furthers the United States' interest in securing the broadest possible 
adherence to these instruments and advances implementation of United 
Nations Security Council Resolution 1373, which calls upon states to 
become parties to these instruments ``as soon as possible.''
    The Convention provides that a state may declare that the 
obligations contained in the Convention shall not apply to the offenses 
set forth in any of the listed counter-terrorism instruments if it is 
not yet a party to that instrument or if it ceases to be a party. This 
procedure provides flexibility for states that are considering becoming 
parties to this Convention, without undermining our interests in having 
all states ultimately become parties to the other counter-terrorism 
instruments. The United States will not need to make such a declaration 
since it is already a party to the ten instruments.
    Existing Federal authority is sufficient to discharge our 
obligations under this Convention, so no implementing legislation is 
required. The State Department's report on the Convention recommended 
two Understandings, one relating to Article 10 and the other relating 
to Article 15. Upon further review, we have determined that the 
Understanding relating to Article 10 is unnecessary and we are 
therefore no longer recommending its inclusion in the Senate's 
resolution of advice and consent.

     PROTOCOL OF AMENDMENT TO THE INTERNATIONAL CONVENTION ON THE 
         SIMPLIFICATION AND HARMONIZATION OF CUSTOMS PROCEDURES
    I am also pleased to speak in support of the Protocol of Amendment 
to the International Convention on the Simplification and Harmonization 
of Customs Procedures. The Protocol amends the original Convention done 
at Kyoto on May 18, 1973, which entered into force for the United 
States on January 28, 1984, and replaces the Annexes to the 1973 
Convention with a General Annex and 10 Specific Annexes, all of which I 
will refer to as the ``Revised Customs Convention.''
    Over the past two decades, changes in technology and patterns of 
international trade have made the original Convention outdated. The 
United States took an active role in negotiating these amendments in 
order to produce the kind of modernization and customs harmonization 
that is becoming increasingly necessary to U.S. exporters and other 
traders alike. The revision process also included participation by the 
private sector through various groups such as the International Chamber 
of Commerce, the International Federation of Customs Brokers 
Association and the International Express Couriers Conference. On June 
26, 1999, after 4 years of study and deliberation, the members of the 
World Customs Organization adopted the Protocol in Brussels, Belgium.
    The Revised Customs Convention aims to meet the needs of 
international trade and customs services through the simplification and 
harmonization of customs procedures. It responds to the modernization 
in business and administrative methods and to the growth of 
international trade, without compromising standards of customs control.
    Accession to the Protocol by the United States would contribute to 
important U.S. interests. First, accession would benefit the United 
States and U.S. businesses by facilitating greater economic growth, 
increasing foreign investment, and stimulating U.S. exports through 
more predictable, standard and harmonized customs procedures governing 
cross-border trade transactions. These achievements can best be pursued 
by the United States as a Party to the Revised Customs Convention.
    Second, acceding to the Protocol will enable the United States to 
continue its leadership role in the areas of customs and international 
trade facilitation. Accession signals to our trading partners that the 
U.S. is committed to an international Convention that establishes a 
blueprint for modern customs procedures throughout the world.
    By acceding to the Protocol, we also encourage other countries to 
sign on and implement procedures that will make trade in goods across 
our borders more predictable and, therefore, potentially more secure. 
Our understanding from U.S. Customs and Border Protection is that the 
Revised Customs Convention will not limit the U.S. Government's ability 
to institute necessary measures to provide for our own national 
security.
    U.S. industry has been consulted throughout the negotiation process 
and has expressed its very strong interest and support for obtaining 
the Senate's consent to accession. Strong supporters include the U.S. 
Council for International Business (USCIB) and the American Electronics 
Association (AeA), which includes companies such as Hewlett Packard and 
Microsoft.
    By acceding to the Protocol, the United States would consent to be 
bound by the amended 1973 Convention and the new General Annex. At the 
same time, or anytime thereafter, Parties have the option of accepting 
any of the Specific Annexes (or Chapters thereof), and may enter 
reservations with respect to any Recommended Practices contained in the 
Specific Annexes. After careful study, we have proposed that the United 
States accept most of the Specific Annexes, and enter the reservations 
to certain Recommended Practices proposed by U.S. Customs and Border 
Protection as set forth in the Report by the Secretary of State, 
attached to the President's transmittal of the Protocol. We have made 
these recommendations with current U.S. legislation or regulations in 
mind. With them, no new implementing legislation would be necessary for 
the United States to implement the Revised Customs Convention.
    The Protocol and proposed U.S. reservations have been circulated 
and cleared through the U.S. Inter-Agency Working Group on the Customs 
Cooperation Council, which includes, among others, the Departments of 
State, Treasury, Commerce, and Homeland Security and the Office of the 
U.S. Trade Representative. U.S. Government agencies are not aware of 
any opposition to the Revised Customs Convention.
    The Protocol will enter into force three months after 40 
contracting parties have consented to be bound by it. As of last month, 
32 countries have consented to be bound, including some of our largest 
trading partners (Australia, Canada, China, Japan, and most members of 
the European Union).

               COUNCIL OF EUROPE CONVENTION ON CYBERCRIME
    The Committee also has before it the Council of Europe Convention 
on Cybercrime, the product of years of study and work by experts from a 
wide range of countries. Although it was negotiated in a European 
forum, the United States played a leading role in its development.
    In 1997, the Council of Europe established a Committee of Experts 
on Crime in Cyber-space, with participants from the United States, 
Canada, Japan, and South Africa, as well as Council of Europe member 
states, to undertake negotiation of the Cybercrime Convention. 
Beginning in April 2000, at the urging of the United States, supported 
by other countries, the Council of Europe published drafts of the 
Convention to allow for review and comment by interested members of the 
public. In addition, U.S. Government officials made information about 
the Convention available to interested members of the public. The 
Convention was opened for signature--and was signed by the United 
States--on November 23, 2001. As of last week, 38 countries have signed 
the Convention, and six have also ratified it. The Convention will 
enter into force on July 1, 2004.
    The Convention has three main parts, each of which provides 
important law enforcement benefits for the United States. First, it 
requires Parties to criminalize certain conduct related to computer 
systems. For example, Article 2 requires parties to criminalize 
``illegal access'' into computer systems, including activities known as 
``hacking.'' By requiring Parties to establish these kinds of 
substantive offenses, the Convention will help deny safe havens to 
criminals, including terrorists, who can cause damage to U.S. interests 
from abroad using computer systems.
    Second, it requires Parties to ensure that certain investigative 
procedures are available to enable their domestic law enforcement 
authorities to investigate cybercrime offenses effectively and obtain 
electronic evidence (such as computer data) of crime. In this way, the 
Convention will enhance the ability of foreign law enforcement 
authorities to investigate crimes effectively and expeditiously, 
including those committed by criminals against U.S. individuals, U.S. 
government agencies, and other U.S. institutions and interests.
    Third, in a manner analogous to other law enforcement treaties to 
which the United States is a party, the Convention requires Parties to 
provide each other broad international cooperation in investigating 
computer-related crime and obtaining electronic evidence, in addition 
to assisting the extradition of fugitives sought for crimes identified 
under the Convention. It provides mechanisms for U.S. law enforcement 
authorities to work cooperatively with their foreign counterparts to 
trace the source of a computer attack and, most importantly, to do so 
immediately when necessary, 24 hours a day, 7 days a week. The 
Convention would therefore enhance the United States' ability to 
receive, as well as render, international cooperation in preventing, 
investigating, and prosecuting computer-related crime. Because such 
international cooperation is vitally important to our efforts to defend 
against cyber attacks and generally improve global cybersecurity, 
support for the Cybercrime Convention has been identified as a key 
initiative in the 2003 National Strategy to Secure Cyberspace.
    The Convention would not require implementing legislation for the 
United States. As discussed at length in the Secretary of State's 
report accompanying the transmittal of the Convention, the 
Administration has recommended six reservations and four declarations, 
all envisaged by the Convention itself, in connection with this 
Convention. To make clear that the United States intends to comply with 
the Convention based on existing U.S. federal law, we have also 
recommended that the Senate adopt an understanding to that effect.

    UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME
    The United Nations Convention against Transnational Organized Crime 
(``TOC Convention'') is the first and only global instrument designed 
specifically to combat the dangerous contemporary phenomenon of 
criminal groups operating internationally. During the second half of 
the 1990's, the United States and its G-8 allies, concerned about the 
rapid spread of organized crime across borders no longer frozen by Cold 
War geopolitics, recognized the need for coordinated international 
action. The United Nations also embraced the idea, and negotiations on 
the Convention took place under UN auspices in 1999 and 2000. 
Developing and developed countries from all regions participated 
actively, reflecting their awareness of the serious threat 
transnational organized crime poses to the effectiveness of their 
governments.
    As of last week, 147 countries, including the United States, have 
signed the TOC Convention, and 78 countries are Parties to it. The 
Convention has been in force since September 29, 2003. On June 28, the 
Parties to the TOC Convention will meet collectively for the first time 
to elaborate procedures for promoting and reviewing its implementation. 
The United States will participate in this conference as a signatory 
but not yet a Party; the farther along we are on the road to 
ratification, the more effective we can be at the Conference of the 
Parties in ensuring that the Convention is implemented in ways 
consistent with our own anti-crime philosophy and priorities.
    The Convention focuses on the offenses that are characteristic of 
transnational organized crime and on the key methods of international 
cooperation for combating it. It is buttressed by three protocols 
concentrating on particularly problematic manifestations of 
transnational organized crime, all of which were negotiated 
simultaneously with the main Convention. Two of these protocols, on 
trafficking in persons and on alien smuggling, are before you today. 
Adherence to each of the protocols is optional. States can only join 
the Protocols if they also join the main Convention, because the 
protocols rely directly upon the cooperation and other mechanisms set 
out in the Convention.
    One of the Convention's key achievements is to require Parties to 
ensure that their national criminal laws meet the criteria set forth in 
the Convention with respect to four offenses characteristic of 
transnational organized crime--participation in an organized criminal 
group, laundering of the proceeds of serious crime, corruption of 
domestic public officials, and obstructing justice by intimidating 
witnesses and justice and law enforcement officials. Since the relevant 
U.S. criminal laws already provide for broad and effective application 
in these areas, we can comply with the Convention's criminalization 
obligations without need for new legislation. The value of these 
Convention provisions for the United States is that they oblige other 
countries that have been slower to react legislatively to the threat of 
transnational organized crime to adopt new criminal laws in harmony 
with ours.
    As further described by my Department of Justice colleague, a 
second important feature of the Convention is that it provides a 
blueprint for international cooperation. Few global criminal law 
conventions are so detailed and precise in setting out mechanisms for 
extraditing fugitives and assisting foreign criminal investigations and 
prosecutions. Many countries, particularly in the developing world, 
lack existing bilateral extradition or mutual legal assistance treaty 
relationships with one another, but now will be able to rely on this 
Convention to fill that legal gap for many serious crimes.
    For the United States, the Convention will not create entirely new 
extradition relationships, as we will continue to rely on our extensive 
web of bilateral treaties for that purpose, but it will broaden some of 
our older existing treaties by expanding their scope to include the 
offenses described above. By contrast, we will be able to use the 
Convention as a basis for new relationships with countries with which 
we lack bilateral mutual legal assistance treaties (MLATs), primarily 
those in parts of Asia, Africa, and the Middle East. The Convention 
fully incorporates all the safeguard provisions the U.S. insists upon 
in our bilateral MLATs, and thereby ensures that we may deny requests 
that are contrary to our essential interests or are improperly 
motivated.
    Finally, the Convention is noteworthy for its capacity to adapt to 
the many faces of transnational organized crime. It enables and 
facilitates international cooperation not only for the specific 
offenses it identifies, but also for serious crime generally that is 
transnational in nature and involves an organized group. Such groups 
operate for financial benefit, of course, but not always exclusively. 
Terrorist groups are known to finance their activities through the 
commission of offenses such as kidnapping, extortion, and trafficking 
in persons or commodities. The TOC Convention thus can open doors for 
the United States in securing the help of other countries in 
investigating and prosecuting terrorist crimes.
    The Administration has proposed several reservations and 
understandings to the Convention and its two Protocols. With these 
reservations and understandings the Convention and the Protocols will 
not require implementing legislation for the United States.

   PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, 
    ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS 
            CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME
    The Committee is considering two protocols to the Transnational 
Organized Crime Convention as well. The Protocol to Prevent, Suppress 
and Punish Trafficking in Persons, Especially Women and Children, 
originally proposed and drafted by the United States, has the potential 
to be a powerful international law enforcement instrument, requiring 
countries to criminalize trafficking and providing a broad framework 
for international cooperation to prosecute traffickers, prevent 
trafficking, and protect trafficking victims. As of last week, 117 
countries including the United States, have signed the Trafficking 
Protocol, and 61 countries are Parties to it. The Trafficking Protocol 
has been in force since December 25, 2003.
    As my Justice Department colleague will describe in more detail, 
the Trafficking Protocol, the first binding international instrument to 
define the term ``trafficking in persons,'' creates obligations to make 
certain acts criminal. It also contains provisions designed to protect 
the victims of trafficking and addressing prevention, cooperation, and 
other measures.
    I want to highlight some of the groundbreaking victim protection 
provisions in this Protocol, which recognizes that protection of 
victims is as important as prosecuting traffickers. In addition to 
requiring that victims are offered the possibility of obtaining 
compensation, and that Parties facilitate and accept the return of 
their nationals and permanent residents who are trafficking victims, 
the Protocol calls on Parties to make available to trafficking victims 
certain protections and assistance, including protection of their 
privacy and physical safety, as well as provisions for their physical, 
psychological, and social recovery. Similarly, States Parties are to 
consider providing temporary or permanent residency to victims of 
trafficking in appropriate cases. In recognition of the fact that legal 
systems and available resources will affect how States Parties 
implement these particular measures, the Protocol includes language 
providing appropriate discretion and flexibility.
    The Protocol obligates States Parties to take measures to prevent 
and combat trafficking in persons and to protect victims from 
revictimization, and to do so in appropriate cooperation with non-
governmental organizations. Among other things, States Parties are 
called upon to take measures, including research and mass media 
campaigns, to prevent and combat trafficking.
    The Protocol also requires States Parties to exchange information, 
in accordance with their domestic law, in order to enable them to 
better detect traffickers and their routes. This provision does not 
affect mutual legal assistance relations, many aspects of which are 
instead governed by treaties for that purpose, and by provisions such 
as Article 18 of the Convention itself.
    Finally, without prejudice to international commitments to the free 
movement of people, the Protocol provides for the strengthening of 
border controls, as necessary, to prevent and detect trafficking in 
persons. States Parties are obliged to take measures, within available 
means, to ensure that their travel and identity documents are of such a 
quality that they cannot easily be misused and cannot readily be 
falsified, altered, replicated or issued.
    With the reservations and understandings that have been proposed by 
the Administration, the Protocol will not require implementing 
legislation for the United States. In this connection, the Trafficking 
Victims Protection Act of 2000 (``TVPA'') sets out a comprehensive 
framework for protecting victims of trafficking and combating 
trafficking in persons domestically and abroad. A Cabinet-level 
interagency task force, chaired by the Secretary of State, ensures the 
appropriate coordination and implementation of the Administration's 
anti-trafficking efforts.

   PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR, 
   SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL 
                            ORGANIZED CRIME
    The second protocol supplementing the Transnational Organized Crime 
Convention is the Protocol against the Smuggling of Migrants by Land, 
Sea and Air. The purposes of this protocol are to prevent and combat 
the smuggling of migrants, and to promote cooperation among States 
Parties to that end, while protecting the rights of smuggled migrants. 
As of last week, 112 countries, including the United States, have 
signed the Migrant Smuggling Protocol, and 55 countries are Parties to 
it. The Migrant Smuggling Protocol has been in force since January 28, 
2004. Subject to the recommended reservations and understandings, the 
Protocol would not require implementing legislation for the United 
States.
    In the Migrant Smuggling Protocol, the Parties designed an 
instrument that balances law enforcement provisions with appropriate 
protection of the rights of smuggled migrants. Here to, my Justice 
Department colleague will address the Protocol's law enforcement 
benefits, such as the obligations to make certain acts criminal, while 
I will concentrate on the migrant-protection provisions.
    First, the Protocol obligates States Parties to accept the return 
of smuggled migrants who are its nationals or permanent residents at 
the time of return. It is the first binding international instrument to 
codify this longstanding general principle of customary international 
law. Consistent with their obligations under international law, states 
parties must also take appropriate measures to preserve and protect 
certain rights of smuggled migrants. Parties are not precluded from 
prosecuting a smuggled person for illegal entry or other criminal 
violations.
    The Protocol recognizes the pervasiveness of migrant smuggling via 
the seas, and sets forth procedures for interdicting vessels engaged in 
such smuggling. States Parties taking measures against a vessel engaged 
in migrant smuggling must ensure the safety and humanitarian handling 
of the persons on board and, within available means, that any actions 
taken with regard to the vessel are environmentally sound. States 
Parties must take care not to endanger the security of the vessel or 
its cargo, or prejudice the commercial or legal interests of the flag 
State or any other interested State. The Protocol also contains 
provisions requiring international cooperation to prevent and suppress 
migrant smuggling by sea in accordance with the international law of 
the sea.
    The Protocol contains several useful cooperation and prevention 
provisions. States Parties, consistent with their domestic legal and 
administrative systems, are to exchange among themselves certain types 
of information for the purpose of achieving the Protocol's objectives, 
such as embarkation and destination points, as well as routes, carriers 
and means of transportation, known to be or suspected or being used by 
an organized criminal group engaged in alien smuggling. States Parties 
are also required to have programs to ensure that the public is aware 
of the criminal nature of migrant smuggling and the risks it poses to 
migrants, as well as to promote development programs to combat the root 
socio-economic causes of the smuggling of migrants.
    Finally, the Migrant Smuggling Protocol encourages States Parties 
to conclude bilateral or regional agreements or arrangements to 
implement the Protocol. This was an important Article to the United 
States, as we have bilateral migration agreements with a number of 
countries.
    Mr. Chairman, we very much appreciate the Committee's decision to 
consider these important treaties.
    I will be happy to answer any questions the Committee may have.

    The Chairman. Thank you very much, Mr. Witten, for your 
comprehensive testimony. We look forward now to hearing from 
you, Mr. Swartz.

 STATEMENT OF BRUCE SWARTZ, DEPUTY ASSISTANT ATTORNEY GENERAL, 
         CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Swartz. Thank you, Mr. Chairman, and thank you for this 
opportunity to express the strong support of the Department of 
Justice for the Inter-American Convention Against Terrorism, 
the Council of Europe's Cybercrime Convention, and the U.N. 
Convention Against Transnational Organized Crime and Protocols 
on Trafficking in Persons and Smuggling of Migrants, including 
its Protocols Against Trafficking in Persons and Migrant 
Smuggling.
    These Conventions address three of the most dangerous forms 
of transnational crime: terrorism, cybercrime, and organized 
criminal activity. Each of the Conventions addresses these 
problems in a similar and comprehensive fashion with a single 
goal. That is to ensure that there are no safe havens, whether 
for terrorists, cyber criminals, or members of organized crime 
groups.
    The Conventions seek to accomplish these goals through two 
means. First, by ensuring that each state party has in place 
enforcement mechanisms, key enforcement mechanisms that will be 
directed against this type of criminal activity. Second, the 
Conventions also require that each state party have in place 
international operation cooperation mechanisms that will allow 
mutual legal assistance in the investigation and prosecution of 
these matters.
    The United States already has laws that will allow us to 
meet each of the requirements that we would undertake under 
these Conventions. In turn, these Conventions will advance our 
law enforcement interests by ensuring that our law enforcement 
partners have the domestic enforcement mechanisms in place, as 
well as the international enforcement--excuse me, cooperation 
mechanisms in place that will allow us to effectively 
investigate and prosecute international crime of these types.
    Turning first to the Inter-American Convention Against 
Terrorism, this treaty will allow us to effectively move 
against not only terrorist organizations with global scope, 
such as al-Qaeda, but also against terrorist groups in this 
hemisphere, such as the FARC and the AUC, which are matters of 
great concern to the United States.
    In order to ensure that terrorists do not find safe havens 
in this hemisphere, the Convention builds upon the already 
existing 10 key U.N. anti-terrorism Conventions, as well as 
U.N. Security Council Resolution 1373. It provides important 
mechanisms that facilitate extradition and mutual legal 
assistance for terrorism offenses and to prevent abuse of the 
asylum process by terrorists. For example, article 11 of the 
Convention prohibits refusal of extradition or mutual legal 
assistance on the grounds that an offense covered by the U.N. 
terrorism Conventions would constitute a political offense. 
That's an important step forward for many of our older 
treaties.
    The Convention likewise provides important tools that can 
be used by law enforcement to ensure that terrorist funds will 
find no safe haven in this hemisphere. The Convention requires 
that the offenses set forth in the 10 U.N. terrorism 
Conventions be treated as predicate offenses for money 
laundering prosecutions and for freezing and confiscation of 
crime-related assets.
    The Council of Europe's Cybercrime Convention likewise is 
designed to deny safe havens to cyber criminals. This is the 
first multilateral treaty to address specifically not only the 
growing problem of computer crime, but also the important issue 
of the preservation of electronic evidence for prosecutions and 
investigations internationally.
    The Convention first requires parties to criminalize acts 
that are directed against computers or computer systems, such 
as unauthorized intrusions into computer systems or attacks 
using computer viruses or worms. Those kinds of attacks pose 
great dangers not only in terms of economic loss, but to the 
security of the United States.
    Under the Convention, parties must prohibit further the 
carrying out of a number of traditional crimes, crimes in the 
physical world that are increasingly being committed now by 
computers, such as forgery, child pornography, fraud, and 
copyright piracy. For criminal liability to attach to each of 
these offenses, the conduct in question must be conducted 
either intentionally or willfully and without right. These are 
important safeguards to protect legitimate computer users and 
Internet service providers.
    It's also important to note that these types of criminal 
offenses already exist under United States law. In contrast, 
countries that do not have adequate criminal laws governing 
these types of conduct have become havens for cyber criminals. 
Thanks to the Convention, that will no longer be the case.
    The procedural sections of the Convention are equally 
important, given the difficulty of locating and securing 
electronic evidence before it is deleted or otherwise 
disappears. This is true not only in cases of computer crime 
per se, but also in a number of other cases, terrorism cases, 
organized crime cases, cases really that cover the entire range 
of criminal offenses.
    The Convention requires each party to have the power on an 
expedited basis to, among other things, preserve and disclose 
stored computer data, including traffic data. Now, these powers 
and procedures are already provided for under United States law 
and have proved invaluable to many investigations. And as is 
the case with the substantive offenses, the Convention contains 
safeguards on the use of these procedural tools.
    Finally, the Convention contains important provisions on 
international cooperation. It provides a basis for U.S. law 
enforcement to obtain on an expedited basis preservation of 
electronic evidence stored in another country relevant to a 
U.S. criminal or terrorist investigation and to trace in real 
time electronic communications by criminals to their source in 
another state.
    The U.N. Transnational Organized Crime and Protocols on 
Trafficking in Persons and Smuggling of Migrants Convention 
likewise is intended to end safe havens for international 
organized crime groups. The Convention first requires parties, 
as you noted, Mr. Chairman, to establish a number of criminal 
offenses and related measures that already exist under United 
States law, but that do not yet exist in some countries. These 
are gaps that organized criminal groups exploit.
    In particular, the Convention requires countries to 
criminalize conspiracy to commit a broad range of serious 
crimes. It also requires the criminalization of money 
laundering, bribery, and obstruction of justice.
    And the second area from which important benefits will flow 
from the Transnational Organized Crime and Protocols on 
Trafficking in Persons and Smuggling of Migrants Convention is 
in the area of international cooperation. The Convention's 
provisions on international extradition, mutual legal 
assistance, and police cooperation provide a legal basis for 
other parties to provide broad cooperation, both to the United 
States and among one another.
    Article 16, for instance, will significantly expand the 
reach of older United States extradition treaties that contain 
a list approach to offenses by requiring parties who treat any 
serious crime committed by an organized crime group as a basis 
for extradition. Article 18 contains a mini-MLAT that provides 
a basis for mutual legal assistance where other treaty 
relationships are not available.
    The Trafficking Protocol to the Transnational Organized 
Crime and Protocols on Trafficking in Persons and Smuggling of 
Migrants Convention also advances important law enforcement 
interests of the United States, which are reflected, for 
instance, in the Trafficking Victims Protection Act of 2000. 
Among the most important elements of the Trafficking Protocol 
is that it provides for the first time a definition of 
trafficking which will allow for international cooperation on 
that basis.
    The Migrant Smuggling Protocol likewise benefits the United 
States by requiring other countries to criminalize the 
smuggling of migrants and the production of fraudulent 
documents for the smuggling. With migrant smuggling an ever-
present problem for the United States, these are important 
developments that will advance our interests significantly.
    Mr. Chairman, in conclusion, I would like to thank you for 
your leadership and the committee's leadership on these issues, 
and I'd like to express my thanks as well to my colleagues in 
the State Department and in the numerous sections in the 
Department of Justice that have worked on these Conventions. As 
you've pointed out, these Conventions have taken months and 
years in some cases of very hard work. We believe that they 
significantly advance the safety and security of the United 
States and we look forward to answering questions about them 
further. Thank you.
    [The prepared statement of Mr. Swartz follows:]

                   Prepared Statement of Bruce Swartz

                            A. INTRODUCTION
    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 
the Inter-American Convention against Terrorism, the Council of Europe 
Cybercrime Convention, the UN Convention against Transnational 
Organized Crime, and the Protocols to the Transnational Organized Crime 
Convention on Trafficking in Persons and Smuggling of Migrants. Each of 
these treaties will directly advance the law enforcement interests of 
the United States. Moreover, with the respective reservations, 
declarations or understandings recommended by the Administration, each 
convention can be implemented on the basis of existing U.S. law.
    These conventions were negotiated by the Departments of Justice and 
State, as well as the Commerce Department in the case of the Council of 
Europe Convention on Cybercrime, and the Department of the Treasury in 
case of the Convention against Transnational Organized Crime. We join 
the Departments of State, Treasury and Commerce today in urging the 
Committee to report favorably to the Senate and recommend its advice 
and consent to the ratification of these treaties.
    The Secretary of State has submitted letters that describe in 
detail each of these multilateral instruments. In my testimony today, I 
will concentrate on why they provide important benefits for United 
States law enforcement.
    I am not testifying today with regard to the Protocol of Amendment 
to the International Convention on Simplification and Harmonization of 
Customs Procedures, and I defer to my colleagues in the Departments of 
State and Homeland Security as to that instrument. In this connection, 
I would note that, as a general matter, enhancement of customs 
procedures is of benefit to the broad law enforcement community.

                      B. OAS TERRORISM CONVENTION
    With respect to the Inter-American Convention against Terrorism, as 
indicated in Mr. Witten's testimony, the elaboration of that treaty was 
a part of the hemispheric actions taken subsequent to the events of 
September 11.
    In light of existing terrorism conventions on a wide array of 
subjects, the OAS Convention does not seek to elaborate a comprehensive 
and new definition of terrorism or punish such conduct as a criminal 
offense. The Convention is structured to provide for a range of modern 
law enforcement mechanisms that facilitate cooperation in combating the 
forms of terrorism already prohibited by 10 key UN counter-terrorism 
conventions. Some of these mechanisms are already found in the two most 
recent UN counter-terrorism conventions the 1997 International 
Convention for the Suppression of Terrorist Bombings and the 1999 
International Convention for the Suppression of the Financing of 
Terrorism--but not in older UN counter-terrorism conventions. Others 
are enhanced versions of law enforcement tools called for by UN 
Security Council Resolution 1373.
    The tools in this treaty increase the ability of U.S. law 
enforcement to obtain cooperation from other States in the hemisphere 
in combating terrorist groups. They are therefore important to our 
efforts against globally active groups such as Al Qaida, and those in 
the hemisphere, such as the Revolutionary Armed Forces of Colombia 
(FARC) and the Autodefensas Unidas de Colombia (AUC), whose members 
have been charged with a range of offenses against the United States. I 
will review its most significant benefits.
    First, the Convention provides mechanisms that facilitate 
extradition and mutual legal assistance for terrorism offenses. For 
example, Article 11 prohibits refusal of extradition or mutual legal 
assistance for the conduct set forth in the UN Conventions on the 
grounds that the offense is considered political in nature. Modern U.S. 
extradition treaties, and some mutual legal assistance treaties, limit 
the invocation of the so-called political offense exception as a ground 
for refusal of cooperation in terrorism cases, as do the two most 
recent UN counter-terrorism conventions. However, older extradition 
treaties, and many mutual legal assistance treaties, do not contain 
this limitation.
    Similarly, Article 10 provides a legal framework for Parties to 
temporarily transfer persons who are in custody to another Party so 
that they may give testimony or otherwise assist with respect to 
terrorism offenses, irrespective of whether or not there is a mutual 
legal assistance treaty in place between the States concerned 
containing such a provision. The ability to arrange such temporary 
transfers may facilitate the taking of testimony in a U.S. terrorism 
prosecution, as well as the gathering of other evidence of terrorism, 
and is typically contained in mutual legal assistance treaties to which 
the United States is party. Here, too, only the two most recent UN 
counter-terrorism conventions provide for this mechanism; the OAS 
Convention will allow Parties to apply it among themselves with respect 
to the range of conduct addressed in the earlier UN counter-terrorism 
conventions as well.
    Second, the Convention provides important tools that can be used by 
law enforcement to halt the flow of funds to terrorist groups. Article 
7 requires that Parties establish effective regulatory oversight of 
financial institutions for purposes of detecting efforts to finance 
terrorism, and provide for Financial Intelligence Units to facilitate 
the international exchange of information that has been gathered. 
Building on the similar but less specific provisions of the 1999 UN 
Terrorism Financing Convention, UN Security Council Resolution 1373, 
and the UN Convention on Transnational Organized Crime, the Convention 
provides stronger regulatory measures to address financing of terrorism 
than any convention to date.
    The provisions of Article 5 (on asset confiscation) and Article 6 
(on designation of money laundering predicate offenses) also helpfully 
go further than prior conventions by requiring that the offenses set 
forth in the 10 UN counter-terrorism conventions be designated as 
predicate offenses for purposes of prosecuting the laundering of 
proceeds of crime, and freezing and confiscating crime-related assets. 
Given that in many cases the terrorist acts will not have been 
committed in the jurisdiction in which assets are hidden or money 
laundering transactions take place, it is particularly important that 
these acts be considered predicate offenses wherever committed.
    Finally, Articles 12 and 13, based on more general language in 
UNSCR 1373, prohibit Parties from granting refugee or asylum status to 
persons who there are reasonable or serious grounds to believe 
committed one of the offenses covered by the 10 UN conventions. These 
articles, which are fully consistent with U.S. law, constitute the 
farthest reaching regime to date in an international convention with 
respect to immigration measures that must be taken against terrorists, 
and they are important mechanisms for preventing members of terrorist 
groups from abusing the asylum system to establish footholds in States 
in this hemisphere.

               C. COUNCIL OF EUROPE CYBERCRIME CONVENTION
    Turning next to the Council of Europe Cybercrime Convention, this 
is the first and thus far only multilateral treaty to address 
specifically the problem of computer-related crime and electronic 
evidence gathering. With the growth of the Internet, attacks on 
computer networks have caused large economic losses and created great 
risks for critical infrastructure systems. In addition, criminals 
around the world are using computers to commit or assist a great 
variety of traditional crimes, including kidnapping, child pornography, 
child sexual exploitation, identity theft, fraud, extortion, and 
copyright piracy. Computer networks also provide terrorist 
organizations and organized crime groups the means with which to plan, 
coordinate, and commit their crimes. This Convention contains 
significant law enforcement tools to be applied against all of these 
activities.
    The Convention focuses on three types of measures that must be 
taken to effectively address these types of criminal behavior: First, 
establishment of domestic criminal offenses; second, adoption of 
procedural tools for investigating crimes effectively in the Internet 
age; and third, establishment of strong mechanisms for international 
cooperation, since computer-related crimes are often committed via 
transmissions routed through numerous countries. With respect to each 
of these areas, the Convention provides important safeguards to protect 
civil liberties and legitimate commercial interests. I will now briefly 
review the key features of the Convention.
    The Convention first requires Parties to criminalize ``classic'' 
computer crime offenses--such as unauthorized intrusions into computer 
systems; unauthorized interception and monitoring of computerized 
communications; attacks on computers and computer systems, such as 
denial of service attacks, or attacks using computer viruses or worms; 
and the misuse of devices, such as passwords or access codes, to commit 
offenses involving computer systems. Parties must further prohibit the 
carrying out of a number of more traditional crimes committed by means 
of a computer system, such as forgery, fraud, the production, 
advertisement, and distribution of child pornography, and copyright 
piracy. For criminal liability to attach for each of these offenses, 
the conduct in question must be committed intentionally or willfully, 
and ``without right,'' thereby protecting legitimate computer users and 
researchers as well as Internet Service Providers engaged in the 
provision of legitimate services. The Explanatory Report to the 
Convention, which has been submitted to the Senate for its information, 
describes in great detail the manner in which these provisions should 
be applied, so that these legitimate activities are protected.
    These types of criminal offenses already exist under U.S. law; 
however, countries that do not have adequate criminal laws governing 
these types of conduct have become havens for cybercriminals. The 
Convention's requirement that Parties establish these criminal offenses 
will therefore serve as a deterrent to the commission of crimes that 
threaten U.S. national security and financial interests.
    The procedural section of the Convention arose from a recognition 
that--with respect to both computer-related and traditional crime--the 
speed and efficiency of electronic communications make electronic 
evidence of crime difficult to locate and secure. Such evidence may be 
in transit, and can be quickly altered, moved or deleted. To ensure 
that Parties are able to investigate effectively the offenses 
established under the Convention and to collect electronic evidence 
regarding other criminal offenses, such as terrorism, organized crime 
and violent crimes, the Convention requires each Party to have the 
power--on an expedited basis--to preserve and disclose stored computer 
data, including traffic data, to compel the production of electronic 
evidence by ISPs, to search and seize computers and data, and to 
collect traffic data and content in real time. These powers and 
procedures are already provided for under U.S. law, and have proved 
invaluable to many investigations.
    As with the substantive offenses, the Convention contains 
safeguards on the use of these procedural tools. For example, the 
powers and procedures may be used only in connection with ``specific'' 
criminal investigations or proceedings; there is no general obligation 
on service providers to collect and retain data on a routine basis, and 
ISPs are required only to preserve data in specific cases that they 
already have gathered for commercial purposes. The Convention also 
requires that the procedural powers I have described be subject to 
conditions and safeguards under domestic law that protect civil 
liberties.
    Finally, the Convention contains important provisions on 
international cooperation. Modern telecommunications facilitate the 
commission of crimes without regard to national borders, making 
cooperation between law enforcement in different countries more 
important than ever. Recognizing this need, the Convention provides 
enhancements to extradition regimes in force among the Parties, and 
obliges Parties to afford mutual assistance ``to the widest extent 
possible'' as to both the computer-related criminal offenses 
established under the Convention, and where electronic evidence needed 
for the investigation and prosecution of other serious criminal 
conduct.
    With respect to extradition, the Convention obliges the Parties to 
consider the criminal offenses they establish as extraditable offenses 
under their applicable extradition treaties and laws. The Convention 
does not, however, require the U.S. to extradite persons in the absence 
of a bilateral treaty, and we will continue to apply the relevant terms 
and conditions of our bilateral extradition treaties to the offenses 
established by the Convention.
    Similarly, the Convention augments existing mutual legal assistance 
relationships to account for computer-related crime and creates new 
relationships where necessary. Mutual legal assistance is generally to 
be provided through existing MLATs between the Parties. If the 
requesting and requested States do not have an MLAT in place between 
them, the Convention--in an analogous manner to the Transnational 
Organized Crime Convention--provides certain mechanisms to be applied 
between them, including grounds for refusal so that cooperation can be 
denied in appropriate cases, such as where execution of a request would 
prejudice the sovereignty, security, or other essential interests of 
the requested State.
    Whether operating through existing MLATs or under the Convention, 
Parties are required to have key procedural mechanisms available for 
use in international cases. Thus, the Convention provides a basis for 
U.S. law enforcement to obtain, on an expedited basis, preservation of 
electronic evidence stored in another country relevant to a U.S. 
criminal investigation, and to trace in real time electronic 
communications by criminals to their source in another State. Another 
key innovation by which the Convention helps ensure the rapidly 
expedited international cooperation required to combat cybercrime 
effectively is the establishment of a 24/7 network of emergency 
contacts. Such contacts are to be available at any time, day or night, 
and comprised of professionals having both the technical means and the 
legal mechanisms to respond to urgent requests for information from 
their foreign counterparts.
    The adoption of these tools by other countries will give U.S. 
investigators a much better chance of obtaining evidence needed to 
successfully prosecute criminals who endanger our national security and 
economic interests. In the past, if an electronic transmission's trail 
led to another country, the chances were slim of successfully tracing 
the communication to its source or securing the evidence before 
deletion. With the tools provided for under the Convention, however, 
the ability of U.S. law enforcement to obtain international cooperation 
in identifying major offenders and securing evidence of their crimes so 
that they can be brought to justice will be significantly enhanced.
    The Administration has recommended that the United States deposit a 
number of reservations and declarations designed to ensure that we can 
discharge our obligations under the Convention through existing federal 
law. These reservations and declarations will enable the U.S. to apply 
additional threshold requirements to the offenses of illegal access to 
data, misuse of access devices, computer-related forgery, and data 
interference; limit application of the offenses of misuse of devices, 
child pornography and copyright piracy; and--like the reservations 
proposed for the UN Convention on Transnational Organized Crime--limit 
application of the jurisdiction article in cases involving crimes 
committed on ships or aircraft registered under U.S. law, and clarify 
that the U.S. will implement its obligations in a manner consistent 
with our federal system of government and existing federal law.

             D. UN TRANSNATIONAL ORGANIZED CRIME CONVENTION
    With respect to the UN Convention on Transnational Organized Crime 
(``TOC''), Mr. Witten's testimony describes its role as a modern 
framework for combating organized crime. Prior to the TOC Convention, 
there was no meaningful multilateral framework for addressing the 
phenomenon of organized crime. The TOC Convention and its protocols 
create a broad regime modeled on the most recent and effective of the 
multilateral drug trafficking treaties--the 1988 United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, also known as the 1988 Vienna Narcotics Convention.
    From the Transnational Organized Crime Convention, we anticipate 
law enforcement benefits flowing from the obligations on States Parties 
to establish criminal offenses and related domestic measures, and to 
provide international cooperation as to a broad range of organized 
criminal activity.
    The Convention first requires Parties to establish a number of 
criminal offenses and related measures that already exist under U.S. 
laws, but that do not yet exist in some countries--a gap that is 
exploited by organized crime groups. For example, it is important to an 
overall strategy for fighting organized crime that all States have laws 
which enable prosecution of leaders, advisors or other persons whose 
role in criminal enterprises is indirect and insulated from the actual 
commission of the financial and violent crimes that enable the 
enterprise to maintain its wealth and power. Accordingly, Article 5 
requires countries to criminalize conspiracy or criminal association 
with respect to a broad range of serious crimes.
    Also significant are the Convention's provisions on money 
laundering, bribery and obstruction of justice. Article 6 of the TOC 
Convention requires the criminalization of money laundering with 
respect to a comprehensive range of predicate offenses associated with 
organized crime activities and therefore builds upon and expands 
earlier commitments with respect to drug trafficking predicate offenses 
in the 1988 Vienna Narcotics Convention. Moreover, Article 7, based on 
the groundbreaking prior work of the Financial Action Task Force, is 
the first provision in an international convention to require the 
establishment of a comprehensive regulatory regime for combating money 
laundering.
    Since organized crime groups often seek to maintain their influence 
through corruption, as well as disruption of investigative and 
prosecutive efforts against them, Articles 8 and 23 also require 
Parties to criminalize both bribery of domestic public officials and a 
wide range of activities that obstruct justice.
    Finally, from our century-long experience in combating organized 
crime in the United States, we know that there are other domestic 
measures law enforcement must employ in order to effectively address 
organized crime, including a system for protecting witnesses from the 
criminal groups that may seek to intimidate or harm them, and means of 
penetrating secretive organized crime groups through lawful inducements 
for group members to cooperate with law enforcement. Articles 24 and 26 
of the Convention provide for States Parties to adopt such measures.
    The second area from which important benefits will flow from the 
TOC Convention is in the area of international cooperation. Foreign 
countries already obtain excellent cooperation from the U.S. in 
extradition, mutual legal assistance and police cooperation; however, 
the legal framework for obtaining reciprocal benefits is not always 
present. The Convention's provisions on international extradition, 
mutual legal assistance and police cooperation provide a legal basis 
for other Parties to provide similarly broad cooperation, both to the 
United States and among one another.
    Of particular note are the provisions in Articles 16 and 18. 
Article 16 requires that the Parties deem as extraditable offenses 
under their applicable treaties the offenses established by the 
Convention, as well as any crime that has been committed by an 
organized criminal group, and that is punishable by a maximum term of 
at least four year's imprisonment under the law of both the requesting 
and extraditing States. The practical import of the broad scope of this 
Article will be to significantly expand the reach of older U.S. 
extradition treaties that contain a ``list'' of extraditable offenses.
    Article 18 on mutual legal assistance establishes a similarly broad 
obligation to provide mutual legal assistance under the following 
terms: Where the State requesting assistance already has a mutual legal 
assistance treaty in force with the State from which assistance is 
sought, that treaty will continue to govern requirements for obtaining 
assistance. However, where there is no such treaty, the Article 
contains a ``mini-MLAT,'' meaning that paragraphs 9-29 of the Article 
serve, in effect, as a mutual legal assistance treaty governing in 
great detail cooperation between the States Parties for offenses 
covered by the Convention. Paragraph 21 provides for grounds for 
refusal that would enable the U.S. to decline assistance in politically 
motivated cases and other appropriate circumstances. Also significant 
is that Article 18 requires on a global scale measures that have long 
been a standard aspect of U.S. mutual legal assistance practice, but 
that are not always applicable in other countries--such as a 
prohibition on invoking bank secrecy to bar cooperation. An analogous 
article in the 1988 Vienna Narcotics Convention has increased 
cooperation obtained by the United States from other countries in 
narcotics cases, and we would anticipate a similar increase in 
cooperation in organized crime cases pursuant to this provision.
    The Administration has submitted to the Senate three proposed 
reservations and one understanding and one declaration. With these 
reservations, understanding and declaration, existing federal law is 
sufficient to enable the United States to discharge the obligations 
undertaken in the Convention.

  E. PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, 
      ESPECIALLY WOMEN AND CHILDREN (THE ``TRAFFICKING PROTOCOL'')
    The Trafficking Protocol also advances important policy interests 
of the United States, which are reflected, for example, in the 
Trafficking Victims Protection Act of 2000 and the reauthorization 
legislation of 2003. Those laws make clear the importance the United 
States places on all countries adopting effective criminal laws against 
trafficking in persons, and on international cooperation to combat this 
phenomena.
    Article I of the Trafficking Protocol (as with the Migrant 
Smuggling Protocol also pending--before the Committee) requires Parties 
to apply all of the benefits and obligations of the Main Convention to 
the offenses established in the protocols. Thus, the extradition, 
mutual legal assistance, confiscation of assets, witness protection 
obligations and other key parts of the main Convention also apply, for 
Parties to the Protocols, to the offenses of trafficking in persons and 
smuggling of migrants.
    Among the most important elements of the Trafficking Protocol is 
that it provides for the first time in an international treaty a 
definition of trafficking in persons, and requires all Parties to 
criminalize conduct included within the definition of trafficking in 
persons. Having a common definition will allow countries to cooperate 
more effectively in providing mutual legal assistance, granting 
extradition, and providing police-level information and intelligence 
sharing.
    Article 3, which sets forth the definition, may be divided into 
three components: conduct, means and purpose. First, the conduct 
covered by ``trafficking in persons'' is the recruitment, 
transportation, transfer, harboring or receipt of persons. Second, the 
means element can be satisfied by any of the following: the threat or 
use of force or other forms of coercion, abduction, fraud, deception, 
the abuse of power or of a position of vulnerability, or the giving or 
receiving of payments or benefits to achieve the consent of a person 
having control over another person (in essence, the buying and selling 
of persons). Third, the purpose of exploitation includes, at a minimum, 
exploitation of the prostitution of others or other forms of sexual 
exploitation, forced labor or services, slavery or practices similar to 
slavery, servitude, or the removal of organs. Article 3 further 
provides that, once any of the means set forth above has been used, the 
consent of the victim to the intended exploitation is irrelevant.
    With respect to children, the Article makes it clear that any of 
the conduct set forth above, when committed for the purpose of 
exploitation, constitutes ``trafficking'' even if none of the means set 
forth above are used. Thus, any recruitment or harboring of a child for 
prostitution or other sexual exploitation would constitute trafficking.
    I would like to point out that the negotiating record sets forth 
several statements intended to assist in the interpretation of the 
definition of ``trafficking in persons.'' One of those statements makes 
clear that the Protocol is without prejudice to how States Parties 
address prostitution in their respective domestic laws. Thus the 
practices and policy choices related to prostitution of individual 
States in the United States are unaffected by this protocol.
    Further, both the Trafficking Protocol and the Migrant Smuggling 
Protocol establish for the first time in a multilateral instrument the 
obligation of States Parties to take back their own citizens and to 
facilitate such returns when necessary, for example, by issuing 
necessary travel documents. In the Trafficking Protocol, this 
obligation is set forth in paragraph 1 of Article 8 (``Repatriation of 
victims of trafficking in persons'').
    The United States has recommended two Reservations and three 
Understandings with respect to the Trafficking Protocol.

   F. PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR
    The Migrant Smuggling Protocol provides all of the benefits I have 
already mentioned that flow from the interplay of the Protocols with 
the main Convention (such as in facilitating extradition, mutual legal 
assistance, and asset confiscation with respect to smuggling offenses), 
and from specific provisions common to both Protocols (such as the 
obligation to accept the return of citizens).
    Of course, most importantly, it also benefits the United States by 
requiring other countries to criminalize the smuggling of migrants, and 
the production of fraudulent documents that furthers smuggling. With 
migrant smuggling an ever-present problem for United States law 
enforcement, these obligations will help fill gaps in the current 
abilities of many countries to effectively address smuggling crimes 
domestically, and open the door to increased international cooperation 
in such cases.
    Article 6 (``Criminalization'') is the critical article that 
contains these obligations. The article requires States Parties to 
criminalize three distinct types of conduct: (1) ``smuggling of 
migrants'' as that term is defined in Article 3; (2) document fraud 
when committed for the purpose of enabling the smuggling of migrants; 
and (3) enabling a person to reside illegally in a State by means of 
document fraud or any other illegal means.
    The Protocol also contains important provisions regarding boarding 
and searching vessels suspected of smuggling migrants. We anticipate 
that these provisions will help promote interdiction efforts by States 
Parties, and they should enhance cooperation in a number of practical 
ways, including through the obligation on the vessel's ``flag State'' 
to expeditiously respond to requests for boarding and search, as well 
as through the providing of an express basis in international law for 
the search of vessels suspected of engaging in migrant smuggling.
    We do suggest one Reservation and two Understanding with respect to 
the Migrant Smuggling Protocol to enable us to implement our 
obligations through application of our current laws.
    We have not sought the same Reservations and Understanding with 
respect to jurisdiction and federalism issues as in the Main Convention 
and Trafficking Protocol. Since U.S. federal law comprehensively covers 
migrant smuggling into U.S. territory, including any such crime 
occurring on a ship or aircraft, as well as related document offenses, 
in our view such limitations are not required with respect to this 
instrument.

                             G. CONCLUSION
    In conclusion, the Department of Justice appreciates the 
opportunity to explain the terms of these instruments. Each convention 
and protocol will aid our law enforcement efforts, both by enhancing 
the ability of many countries to address these very serious forms of 
criminality, and by facilitating enhanced international cooperation 
with the United States in specific cases. We urge the Senate to give 
rapid advice and consent to ratification of these conventions.
    Mr. Chairman, that completes my prepared remarks. At this time I 
would be pleased to respond to any questions that you or other members 
of the Committee may have.

    The Chairman. Well, thank you very much, Mr. Swartz. I 
would say that we appreciate very much the cooperation of so 
many people in the Department of Justice who have worked very 
carefully. I will again identify the witnesses. We've heard 
from Mr. Witten from the State Department, and now we've heard 
from Mr. Swartz in the Justice Department. It's our pleasure to 
welcome now Mr. Michael Schmitz of the Bureau of Customs and 
Border Protection.

STATEMENT OF MICHAEL T. SCHMITZ, ACTING ASSISTANT COMMISSIONER 
    FOR INTERNATIONAL AFFAIRS, BUREAU OF CUSTOMS AND BORDER 
        PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY

    Mr. Schmitz. Thank you, Mr. Chairman, and thank you for the 
opportunity to testify this morning on the importance of the 
United States' accession to the Protocol of Amendment to the 
1973 Convention on the Simplification and Harmonization of 
Customs Procedures, or what I will refer to as the Revised 
Customs Convention.
    The Revised Customs Convention presents a blueprint for 
modern and efficient customs procedures in the 21st century. 
Accession by the United States will present a significant step 
forward in the promotion of economic growth, national security, 
and customs integrity at both the national and international 
level.
    The Revised Customs Convention under consideration today 
provides a global framework for modern customs procedures that 
are transparent, simple, predictable, efficient, and effective. 
This Convention is the World Customs Organization's, or WCO's, 
acknowledgment of the critical role customs administrations 
play in facilitating legitimate international trade while still 
affecting national customs controls. The Revised Customs 
Convention is a global call for professionalism and integrity 
in all customs administrations.
    The Revised Convention is also the WCO's response to 
heightened security concerns related to the movements of goods 
and people across national borders. Accession to the Revised 
Customs Convention by the United States would send a clear 
message to both the international trade community and 
governments around the world that this country stands firmly 
behind customs procedures that facilitate the secure movement 
of legitimate trade across national borders.
    This WCO instrument of the Revised Customs Convention has 
involved both the Customs and Border Protection as well as U.S. 
industry in leadership roles in all WCO initiatives that 
facilitate trade and secure international supply chains. The 
U.S. traders and Customs and Border Protection have worked hand 
in hand at the WCO to bring this Convention forward.
    The original Convention dates from 1973 and the United 
States acceded in 1983. But as the 21st century approached, the 
huge growth in international trade plus advancements in 
information technology meant that the existing Customs 
Convention was outgrowing its usefulness. WCO members 
recognized the need for a more modern Customs Convention that 
would meet the demands and challenges of international trade 
and security in the 21st century.
    More specifically, WCO members sought to enter the new 
century with a modernized Customs Convention that set 
standardized procedures that were simple, transparent, and 
effective. The non-binding nature, aspects of the original 
Customs Convention created a global customs environment that 
lacked the transparency, uniformity, and efficiency required to 
facilitate the increasing movement of goods across national 
borders. WCO members wanted a Customs Convention that contained 
standards and procedures that were binding on all parties, but 
also had enough flexibility to accommodate inevitable change.
    Consequently, in 1994, the WCO undertook a 5-year revision 
of the original 1973 Customs Convention. This revision 
culminated in 1999 with the unanimous adoption of the Revised 
Customs Convention we are here to discuss today.
    The Revised Customs Convention is based on the following 
principles: standard, simplified customs procedures; continuous 
development and improvement of customs control techniques; 
maximum use of information technology; and partnership between 
customs administrations and the international trade community. 
Unlike the original Customs Convention, the Revised Customs 
Convention contains a body and general annex whose standards 
are binding on all parties. The general annex includes 
standards for core customs functions, such as collection of 
duties and taxes, risk management, the use of information 
technology, pre-arrival processing, transparency of customs 
regulations, appeal procedures, and consultation between 
customs and the trade community.
    In addition to the body and general annex, the Revised 
Customs Convention contains 10 specific annexes that address 
more specialized customs procedures. These annexes contain 
standards and recommended practices on such topics as 
warehousing, transit, temporary admission, and drawback. Unlike 
the general annex, contracting parties have more flexibility to 
select which annexes or portion of annexes they will accede to.
    Effective customs control and risk management techniques 
embodied in the Revised Customs Convention complement the 
border security initiatives already undertaken by Customs and 
Border Protection and the Department of Homeland Security. As 
an example, the Convention includes a commitment to use and 
standardize import information. Advanced electronic data on 
inbound cargo and travelers is a prime element of Customs and 
Border Protection's effort to push our borders outward and 
protect our society from dangerous goods and people before they 
reach U.S. soil.
    The standardization of information also helps prevent the 
movement of dangerous goods or people across borders by 
enabling customs authorities to coordinate in real time with 
their international counterparts, other government agencies, 
and the trade community.
    In addition to their economic and security benefits, the 
more transparent customs procedures of the Revised Customs 
Convention are also a key component of customs anti-corruption 
initiatives. By requiring transparency in customs procedures, 
the Revised Customs Convention will promote the integrity and 
professionalism of customs administrations worldwide and reduce 
the susceptibility of American businesses and citizens to 
corrupt foreign customs practices.
    The United States is already compliant with all provisions 
of this Convention that we propose to accept. As permitted by 
the Revised Convention, we propose taking reservations to 
several provisions because they conflict with our national 
legislation or because there is no national legislation that 
allows their application.
    The Revised Customs Convention will come into force 3 
months after 40 parties to the original Customs Convention have 
expressed their consent to be bound by it. As of today, 32 
countries have adhered to the Revised Customs Convention. As 
this number is quickly moving toward 40, it is important that 
the United States become a party, because upon entry into 
force, the WCO will establish a management committee to oversee 
implementation and management of the new Convention. It is 
imperative that the United States be an active member of this 
management committee from the start so that we can help ensure 
that the Convention is implemented in a manner that contributes 
to our economic growth and national security.
    Many in the international trade community and other 
governments are following our deliberations on this Convention. 
For American companies, the significance of U.S. accession is 
not the impact on customs procedures here in the United States, 
but rather the impact on customs procedures abroad and the 
predictability it will bring them as they export their 
products. Other governments are looking to the United States 
for leadership as they decide whether they should accede to the 
Revised Customs Convention and be legally bound to apply 
customs standards and procedures that are modern, transparent, 
simple, and predictable.
    In conclusion, the Revised Customs Convention is a 
necessary tool for facilitating trade, ensuring economic 
growth, and improving the security of the international trade 
system. Mr. Chairman, accession to the Revised Customs 
Convention by the United States would send a clear message here 
at home and abroad that the public and private sector truly can 
work together to facilitate trade and that trade and security 
are not mutually exclusive.
    Mr. Chairman, I thank you again for the opportunity to 
testify this morning and am open to any questions that you may 
have.
    [The prepared statement of Mr. Schmitz follows:]

 Prepared Statement of Michael T. Schmitz on Revised Customs Convention

    Mr. Chairman and Members of the Committee, thank you for this 
opportunity to testify this morning on the importance of United States 
accession to the Protocol of Amendment to the 1973 Convention on the 
Simplification and Harmonization of Customs Procedures, or what I will 
refer to as the Revised Customs Convention.
    The Revised Customs Convention presents a blueprint for modern and 
efficient customs procedures in the 21st century. Accession by the 
United States will present a significant step forward in the promotion 
of economic growth, national security and customs integrity at both the 
national and international level. The Revised Customs Convention under 
consideration today provides a global framework for modern customs 
procedures that are transparent, simple, predictable, efficient and 
effective. The Revised Customs Convention is the response of customs' 
stakeholders, both public and private, to the increased globalization 
of the world economy and reduced tariff barriers, particularly at the 
end of the last century. This Convention is the World Customs 
Organization, or WCO's, acknowledgement of the critical role of customs 
administrations in facilitating legitimate international trade while 
still effecting national customs controls. The Revised Customs 
Convention is also a global call for professionalism and integrity in 
all customs administrations. Lastly, but certainly of no less 
significance, the Revised Customs Convention is the WCO's response to 
heightened security concerns related to the movements of goods and 
people across national borders. Accession to the Revised Customs 
Convention by the United States would send a clear message to both 
businesses and governments that this country stands firmly behind 
customs procedures that facilitate, and do not deter, the legitimate 
and secure movement of people and goods across borders.
    Let me take a moment to share with you some brief background on the 
Revised Customs Convention and why U.S. accession to it is under 
discussion here today. The Revised Customs Convention is the main 
customs facilitation instrument of the World Customs Organization. The 
WCO is an independent, inter-governmental body whose mission is to 
promote the efficiency and effectiveness of customs administrations. 
Headquartered in Brussels, Belgium, it currently has 162 Members, 
including the United States, and is the only global body focused 
exclusively on customs issues. Both U.S. Customs and Border Protection 
and U.S. industry have taken a leadership role in WCO initiatives to 
facilitate trade and secure supply chains.
    The WCO concluded the original Convention in 1973 in Kyoto, Japan. 
This original Convention had 63 Parties, including the United States, 
which acceded to it in 1983. Since that time, the Convention has been 
the main international framework for customs procedures applied to the 
cross-border movement of goods and people.
    As the 21st century approached, however, globalization, the growth 
of international trade, and advancements in technology since 1974 
resulted in a global customs Convention that was outgrowing its 
usefulness. WCO Members called for a more modernized Convention that 
would meet the demands and challenges of international trade and 
security in the 21st Century. More specifically, Members sought to 
enter the new century with a modernized Convention that set 
standardized procedures that were simple, transparent and effective. 
The non-binding nature of aspects of the original Convention created a 
global customs environment that lacked the transparency, uniformity and 
efficiency required to facilitate the increasing movement of goods and 
people across national borders. WCO Members wanted a Convention that 
contained standards and procedures that were binding on all Parties, 
but that also had enough flexibility to accommodate inevitable change.
    Consequently, in 1994, the WCO undertook a five-year extensive 
review of the original 1973 Convention. This review culminated in 1999 
with the unanimous adoption of the Revised Customs Convention we are 
here to discuss today. This review included input not only from customs 
administrations, but also from other government agencies, several 
international organizations and industry. The United States took a lead 
role in this review to ensure provisions that maximized benefits to 
U.S. industry and CBP's ability to carry out effective customs 
controls. In fact, it was not only CBP that championed this new 
Convention. Several American companies also took a keen interest and an 
active role. At the international level, private sector stakeholders 
such as the International Chamber of Commerce, the International 
Federation of Brokers Associations and the International Express 
Couriers Conference all contributed to the revision process and have 
expressed strong support for the finished product.
    The Revised Customs Convention is based on the following 
principles:

   Standard, simplified procedures

   Continuous development and improvement of customs control 
        techniques

   Maximum use of information technology

   Partnership between customs administrations and industry

    Unlike the original Convention, the Revised Convention contains a 
Body and General Annex whose standards are binding on all Parties. This 
General Annex includes standards for core customs functions, such as 
collection of duties and taxes, risk management, the use of information 
technology, pre-arrival processing, transparency of customs 
regulations, appeals procedures, and consultation between customs and 
industry. Standards must generally be implemented within thirty-six 
months of entry into force. For certain Transitional Standards, this 
period is extended to sixty months.
    In addition to the Body and General Annex, the Revised Customs 
Convention contains ten Specific Annexes that address more specialized 
Customs procedures. These Annexes contain standards and recommended 
practices on such topics as warehousing, transit, temporary admission 
and drawback. Unlike with the General Annex, Contracting Parties have 
more flexibility to select which Annexes, or portions of annexes, that 
they will apply.
    The Revised Customs Convention does not only facilitate trade. Its 
role in advancing global security is even more significant today than 
we ever envisioned in the pre-9/11 world in which we revised the 
original Convention. Effective customs controls and risk management 
techniques embodied in this Convention complement our homeland security 
initiatives. As an example, the Convention includes a commitment to use 
and standardize information technology. Advance electronic data on 
inbound cargo and travelers is a prime element of CBP's efforts to push 
our borders outward and protect our society from dangerous goods and 
people before they reach U.S. soil. The standardization of information 
also helps to prevent the movement of dangerous goods or people across 
borders by enabling customs authorities to coordinate not only with 
their international counterparts, but also with other agencies and 
industry in a timely manner.
    In addition to their economic and security benefits, the more 
transparent customs procedures of the Revised Customs Convention are 
also a key component in customs anti-corruption initiatives. By 
requiring transparency in customs procedures, the Revised Customs 
Convention will promote the integrity and professionalism of customs 
administrations worldwide and reduce the susceptibility of American 
businesses and citizens to corrupt foreign customs practices.
    At this point, I would like to stress that the United States is 
already compliant with all the provisions of this Convention that we 
propose to accept. These provisions represent approximately 90% of all 
provisions in the General Annex and ten Specific Annexes. Excluding the 
one Specific Annex to Which we would not accede, the United States is 
already compliant with approximately 90% of this Convention. As 
permitted by the Revised Convention, we propose taking reservations to 
the remaining provisions, either because they conflict with our 
national legislation or because there is no national legislation that 
allows their application. As is stipulated in the Convention, CBP will 
review the United States' reservations to this Convention every three 
years with a view of determining whether the United States can accept 
them or whether changes in legislation should be sought. However, it 
should be emphasized that accession to the Protocol of Amendment will 
require no change to current national legislation at this time.
    The Revised Customs Convention will come into force three months 
after 40 Parties to the original Convention have expressed their 
consent to be bound by it. As of today, 32 countries have adhered to 
this Convention. As this number rapidly grows towards 40, it is even 
more critical that the U.S. become a Party. Upon entry into force, the 
WCO will establish a Management Committee to oversee implementation and 
its management. It is imperative that the United States be an active 
member of this Management Committee from the start so that we can help 
ensure that the Convention is implemented in a manner that contributes 
to our economic growth and national security.
    I can assure the Members of this Committee that many businesses and 
Governments are following our deliberations here today very closely. 
For American companies, the significance of U.S. accession is not 
necessarily the impact on customs procedures here in the United States, 
but rather the impact on customs procedures abroad and the 
predictability it will bring them as they export their products. Other 
Governments are looking to the United States for leadership as they 
decide whether they should adhere to the Revised Customs Convention and 
be legally bound to apply customs standards and procedures that, again, 
are modernized, transparent, simple, and predictable.
    In conclusion, the Revised Customs Convention is a necessary tool 
for facilitating trade, ensuring economic growth, improving the 
protection of society and, consequently, for opening more markets for 
American businesses, both large and small.
    As we move forward in the 21st Century, the need for modernized 
customs procedures is critical. These procedures must promote both 
trade and security. Mr. Chairman and Members of this Committee, the 
Revised Customs Convention provides such a global customs framework. 
Accession to this Convention by the United States would send a clear 
message here at home and abroad that the public and private sector 
truly can work together to facilitate trade and that trade and security 
are not mutually exclusive.
    Again, thank you for this opportunity to testify before you today.

    The Chairman. I thank you very much, Mr. Schmitz. I'm going 
to proceed now through each of the four treaties, and then the 
protocols accompanying the last one, so that our hearing record 
will be as complete as possible in terms of your testimony, and 
your responses. For the benefit of both witnesses and all who 
are following the hearing, I will begin with a short summary of 
what we're talking about one by one.
    First of all, the Inter-American Convention Against 
Terrorism. This Convention was concluded by the Organization of 
American States, as you have pointed out, following the 
September 11 terrorist attacks on the United States. The 
Convention's provisions are designed to strengthen prohibitions 
against acts of terrorism and to promote international 
cooperation in investigating and prosecuting such acts. It 
contains a list of 10 existing multilateral treaties addressing 
terrorism, to which parties of the Convention agree to endeavor 
to join if they have not already done so.
    The Convention also obligates parties to develop domestic 
capacities to track and to disrupt the financing of terrorist 
activities and to freeze assets used or intended to be used to 
finance terrorist activities. In addition, the Convention 
promotes international cooperation on border controls as well 
as efforts to investigate and prosecute acts of terrorism.
    The Convention further establishes that for offenses 
covered by the Convention, a state may not decline a request 
for extradition or for mutual legal assistance on the ground 
that the offense in question was inspired by political motives.
    Several of the signatories to the Convention have yet to 
ratify one or more of the underlying international terrorism-
related agreements listed in article 2 of the Convention. There 
are 10 such existing multilateral treaties. Has the Convention 
provided a catalyst for more widespread ratification by the 
signatories? Mr. Swartz or Mr. Witten, do you have a view on 
this?
    Mr. Witten. Thank you, Mr. Chairman. The Convention is one 
of several efforts that are ongoing to get countries that have 
not yet signed on to the 10 listed conventions to become party. 
Security Council Resolution 1373 addresses this issue. The 
United States for several years, even before September 11, has 
been diplomatically advocating that countries in this 
hemisphere and throughout the world join these Conventions.
    I understand that within the OAS system this instrument has 
provided a focal point for discussion of the importance of 
parties joining. With respect to specific developments in the 
last 20 months or 22 months or so since the Convention has been 
enforced, I think there has been some progress. For those 
countries that have not yet become party, the United States is 
doing what we can to urge them, persuade them to become a party 
as part of the broader efforts that our country is making.
    The Chairman. Thank you. Do either of you have anything 
further to add to that? Very well. Let me proceed with a second 
question. The administration has recommended an understanding 
related to the meaning of the term, ``international 
humanitarian law,'' as it appears in paragraph 2 of article 15, 
under which the term would have, ``the same substantive meaning 
as the law of war.''
    What do you understand the ``law of war'' to mean in this 
context?
    Mr. Witten. Mr. Chairman, I can address this, and if 
necessary supplement for the record. This understanding 
parallels the understanding that we sought from the Senate in 
connection with the Convention on the Suppression of Terrorist 
Bombings, because the term, ``international humanitarian law,'' 
is one that the United States understands to mean the ``law of 
war.'' I was involved in those negotiations for the Terrorist 
Bombing Convention, and recall that a number of countries 
agreed with us, but others were uncertain. So the United States 
and perhaps other countries made clear during the negotiation 
that this had the meaning of the ``law of war.'' My 
understanding is that this would encompass at a minimum the 
1949 Geneva Conventions and the protocols to which nations have 
become party.
    The Chairman. Very well. A third question. Article 11 of 
the Convention provides that a request for extradition or 
mutual legal assistance may be refused solely because it 
concerns a political offense. But article 14 allows a party to 
refuse a request when it has substantial grounds for believing 
the request has been made for the purpose of punishing a person 
on account of that person's political opinion. Is there any 
risk article 14 will provide a basis for negating article 11?
    Mr. Swartz. Mr. Chairman, we do not believe that that will 
be a possibility in the sense that article 14 is designed to 
address the issue of political opinions as opposed to actions 
taken that would be offenses under the international 
Conventions that have been the key U.N. counter-terrorism 
Conventions.
    The Chairman. So you're drawing a distinction between 
opinions and actions?
    Mr. Swartz. Yes, Mr. Chairman.
    The Chairman. Very well. That concludes the questions I 
have on the first of the Conventions. I would just note that 
clearly this is a product of negotiation among members of the 
Organization of American States. The activities involved there 
once again show our support for the OAS, our respect for those 
members and their work with us in this hemisphere. That is 
obviously an important aspect of this, in addition to the legal 
framework that we have been discussing today.
    Now, I want to take up the Council of Europe Convention on 
Cybercrime. This Convention addresses crimes directed against 
or involving the use of computers. It requires parties to 
prohibit certain computer-related crimes under their domestic 
laws, to develop and be prepared to use certain investigative 
methods with respect to computer-related crimes and computer-
stored evidence of other crimes, and to cooperate with other 
Convention parties to investigate and prosecute such crimes.
    Crimes that the Convention requires parties to prohibit 
include unauthorized access to a computer system, unauthorized 
interception of data from a computer system, unauthorized 
damage or deletion of computer data, unauthorized interference 
with the operation of a computer system, computer-related 
forgery, and computer-related fraud. All of these offenses are 
already prohibited under United States law. Investigative 
techniques the Convention requires parties to develop and be 
prepared to use include the ability to preserve, search, and 
seize stored computer data, the ability to collect in real time 
and preserve data being communicated between computers, and the 
ability to intercept certain content of the data.
    The Convention also adds computer-related crimes covered by 
the Convention to those offenses for which extradition may be 
sought under extradition treaties in force among parties to the 
Convention and obligates parties to provide mutual legal 
assistance with respect to such crimes and with respect to 
computer-related evidence of other crimes.
    Let me ask first of all, what effect would the Convention's 
prohibitions have on legitimate activities by U.S. businesses, 
such as actions by Internet service providers to monitor 
traffic on their own networks, or security testing and 
research?
    Mr. Swartz. Mr. Chairman, the Convention will have no 
effect on such legitimate activity. As you've pointed out, the 
Convention will be implemented in the United States under our 
existing statutes and has a number of safeguards built in. 
Among other things, the activity in question must be done 
without right and it must be done intentionally or willfully, 
depending on the nature of the crime. Those safeguards, and in 
addition the safeguards that are set forth in article 15 with 
regard to human rights, ensure that legitimate activity will 
not be criminalized by this Convention as indeed it is not 
criminalized under existing United States law.
    The Chairman. I'm curious because this Convention, of 
course, was negotiated by members of the Council of Europe with 
the United States in strong observer status. Who may finally 
accede to this Convention? Is it likely to be just the European 
states and the United States, or is this likely to have a 
broader application?
    Mr. Witten. During the negotiation, Mr. Chairman, in 
addition to members of the Council of Europe, a number of other 
states participated actively in observer status. As I 
understand it, the United States, Canada, Japan, other major 
countries with an interest, participated. The Council of Europe 
has a mechanism for countries outside the Council of Europe and 
countries that did not participate to join, and at this time 
it's hard to predict how widely the Council of Europe 
Convention will be joined.
    It's our view that just among those that were active 
observers and those that are members of the Council of Europe, 
if they all join or a substantial number join, that's a huge 
advance for the United States with respect to the ability of 
countries to cooperate in this area.
    The Chairman. Do any of you, just a matter of curiosity, 
have some estimate of, in the event that all of the European 
countries acceded to the treaty, plus Japan and Canada and the 
United States, what percentage of computers in the world might 
be covered by that situation? How much is left out at this 
point that would not be cooperative?
    Mr. Witten. Mr. Chairman, we'll submit something for the 
record \1\ on that.
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    \1\ See responses to additional questions for the record provided 
by Mr. Witten on page 48.
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    The Chairman. Very well. Thank you.
    Mr. Swartz. Mr. Chairman, if I may add briefly to Mr. 
Witten's point, we also see this Convention as a model for 
further development should other countries not accede to this, 
but as a model for bilateral, other instruments with regard to 
cybercrime.
    The Chairman. Well, it's an extraordinary advance, as we 
all know, leaving aside the criminal aspects. Today we're 
discussing the use of computer technology in countries all over 
the world for conveying information to parties who may not have 
that information. It's extremely important in democracy 
building, in the extension of liberty. These are issues outside 
of our purview today. But I simply am curious, as I'm certain 
you are, about the advent of this technology, how this 
information spreads, but also how it can be subverted. Viruses 
become inoperative or sometimes, as was suggested, I think by 
Mr. Witten, hackers may create commercial and governmental 
damage here, but likewise, people who are attempting to 
suppress thought throughout the world have their own means of 
subverting this situation. This is an extraordinarily 
interesting subject that I think will have legs for further 
discussion.
    Let me ask, would the U.S. accession to the Convention 
create any new obligations on U.S. Internet service providers 
to collect and maintain data?
    Mr. Swartz. Mr. Chairman, it will not. The schema set 
forward by the Cybercrime Convention is not one of data 
retention. There are no requirements for data retention, but 
rather data preservation. That is, in connection with a 
specific case, if an Internet service provider already, for 
other reasons, is collecting that data, that data can be 
preserved in connection with the investigation and prosecution, 
but it does not impose obligations to retain data.
    The Chairman. What safeguards does the Convention provide 
for the civil rights and privacy interests of individuals?
    Mr. Swartz. Mr. Chairman, I think it provides both 
structural and specific protections in that safeguard. First, 
with regard to its overall structure, it is clearly a 
Convention that relates to investigation of specific crimes. It 
is not a broad-based Convention that deals with things beyond 
criminal activity. Beyond that, specific provisions of the 
Convention make clear that the activities have to be done 
without right, that is, illegitimately. They have to be done 
intentionally or willfully to meet the mens rea requirement. 
And then beyond that, further protection is provided by article 
15, which speaks of human rights having to be protected by the 
parties to the Convention.
    The Chairman. Mr. Witten.
    Mr. Witten. Mr. Chairman, just to add a footnote to Mr. 
Swartz's comment. Where legal assistance is provided pursuant 
to the legal assistance articles, primarily article 27, which 
would apply in cases where there's no other treaty arrangement 
in place, there is a specific right that all parties have to 
deny assistance in cases where they deem it in their essential 
interests, which could include areas where we would view it 
inappropriate to provide assistance to another treaty partner. 
This is a provision that's analogous to the provision that 
appears in our bilateral MLAT provisions and in other 
multilateral instruments. Thank you, Mr. Chairman.
    The Chairman. Finally, would the substantive crimes created 
under the Convention affect the ability of U.S. Government 
officials to take actions in relation to computer systems 
necessary to investigate crimes or to protect national 
security?
    Mr. Swartz. Mr. Chairman, there is nothing in the 
Convention we believe that would stop the United States from 
taking the actions necessary to protect its security. In fact, 
we believe this will greatly advance our security by ensuring 
that other countries put in place the same types of offenses, 
the same types of mechanisms that we have under our laws.
    The Chairman. Very well. Let's consider now the U.N. 
Convention on Transnational Organized Crime and Protocols on 
Trafficking in Persons and Smuggling of Migrants. The United 
Nations Convention Against Transnational Organized Crime and 
two Protocols, the Protocol to Prevent, Suppress, and Punish 
Trafficking in Persons, Especially Women and Children, and the 
Protocol Against Smuggling of Migrants by Land, Sea or Air are 
the first multilateral treaties to address the phenomenon of 
transnational organized crime.
    The Convention and Protocol would be effective tools to 
assist in the global effort to combat transnational organized 
crime in many forms. The instruments require states parties to 
criminalize certain conduct, such as participation in an 
organized criminal group, money laundering, bribery of public 
officials, obstruction of justice, trafficking and smuggling of 
persons. The Convention and Protocols strive to improve 
cooperation among the states parties on extradition and mutual 
legal assistance in relation to these crimes.
    The trafficking protocol aims to prevent and combat 
trafficking in persons, particularly women and children, to 
protect and assist the victims of such trafficking, and to 
promote cooperation among states parties in meeting these 
objectives. And similarly, the smuggling protocol requires 
nations to criminalize the smuggling of migrants. In addition, 
the states parties are required to criminalize behavior such as 
providing false documents that enable migrants to remain 
illegally in a country. The agreements would thus enhance the 
United States' ability to render and receive assistance on a 
global basis in the common struggle to prevent, investigate, 
and prosecute transnational organized crime.
    Now, my questions. The first conference of the parties to 
the Convention Against Transnational Organized Crime and 
Protocols on Trafficking in Persons and Smuggling of Migrants 
will take place in less than 2 weeks to establish, among other 
things, the procedural mechanism for the Convention and the 
Protocols. What do you expect to come from this initial 
meeting? And do we anticipate the parties heading in a certain 
direction? And then, when is it likely that the next conference 
will take place?
    Mr. Witten. Thank you, Mr. Chairman. The conference of the 
parties will be largely organizational, adopting rules of 
procedure, setting the framework. It will be the first of 
several. It's hard to say exactly what all the outcomes will 
be, but----
    The Chairman. Who do we anticipate will be at this 
conference?
    Mr. Witten. We anticipate that those countries that have 
already become a party will attend, because as I mentioned in 
my prepared testimony, this Convention and the two Protocols 
are already in force. We anticipate that there will be other 
countries that have signed, such as the United States. 
Obviously we won't be a party unfortunately in time to 
participate fully, but the countries that have already become a 
party will be in a slightly stronger position than we are to 
the extent they will be participating as parties. However, the 
United States has been at the center of this exercise for 
years, and we anticipate that although we will not be 
participating as parties, we will play a major role as 
observers and active participants.
    Mr. Swartz. Mr. Chairman, if I may add to that as well, as 
signatories, it's our understanding we'll be able to 
participate in the discussions at the convention of parties, 
and since decisionmaking is largely by consensus, we expect 
that our views will be heard. As Mr. Witten points out, we have 
played a major role in this and believe that we will continue 
to play such a role.
    The Chairman. We're a signatory and therefore we have a 
place at the table. To be a party, that would require the 
ratification procedure be completed presumably.
    Mr. Swartz. Yes. As a non-party, we cannot vote on matters, 
but insofar as consensus and discussion is involved, we can 
participate as we understand it.
    The Chairman. Well, thinking through the housekeeping in 
our own situation, on what date does the conference commence?
    Mr. Swartz. I've been informed it's a week from Monday.
    The Chairman. A week from Monday. I'm trying to think 
through the procedures. After we complete our work today, we 
will have to rely upon the committee to have the proper 
business meeting to take action as a committee, and then, of 
course, the leadership of the Senate will determine the 
priority of items that we will discuss on the floor.
    But taking the very best of circumstances--that the 
committee acts, and that the Senate acts as a whole, by, say, a 
week from tomorrow, a week from Friday--presumably we could 
then be a party at that conference. Is that correct?
    Mr. Witten. Mr. Chairman, any forward movement is helpful 
even if we're not a party by the time the conference----
    The Chairman. Even this hearing today, I suspect.
    Mr. Witten. Even this hearing today. I suspect that the 
U.S. delegation will mention the fact that the committee has 
taken this Convention up. I understand from my colleague, Liz 
Verville, who chaired the delegation for much of the 
negotiation, that--and I'll confirm this--but I understand that 
even after we deposit our instrument, there's a 30-day clock 
before we're formally a party.
    The Chairman. I see.
    Mr. Witten. That being so, that's why in my comment a 
moment ago I indicated that we would not be a party. However, 
as I mentioned, the forward movement of having the hearing and 
your positive comments will be very helpful with respect to our 
position in Vienna.
    The Chairman. Well, you may be able to take the record and 
even the tape of the proceedings to the meeting for the 
edification of other delegates.
    Article 18 of the Convention contains a ``mini,'' mutual 
legal assistance treaty, and requires states parties to assist 
each other in investigating and prosecuting the offenses 
covered by the Convention. How will this provision improve our 
ability to fight transnational organized crime? The United 
States currently has over 45 bilateral mutual legal assistance 
treaties. How will the Convention affect these existing 
agreements?
    Mr. Swartz. Mr. Chairman, I will begin and Mr. Witten will 
also add on to this. The provision of the article will not 
affect our bilateral mutual legal assistance agreements. Where 
we have such treaties, we will proceed under those treaties. It 
does provide, however, a very valuable assistance to us with 
regard to countries where we do not have mutual legal 
assistance arrangements, and sets out, as you say, a mini-MLAT 
that will govern and facilitate expedited assistance with 
regard to these very important crimes. And I think Mr. Witten 
has some examples of countries where that would be the case.
    Mr. Witten. Thank you, Mr. Swartz. Yes, we actually have 
gone through the list of countries that have already become 
party to this to identify new legal assistance treaty 
relations, and there is a substantial list, and I will mention 
a number of countries that once we become a party will have 
article 18 MLAT relations. Costa Rica, Denmark, El Salvador, 
Finland, Honduras are all examples of countries that at this 
point we don't have a bilateral mutual legal assistance treaty, 
but by virtue of article 18 and the treaty relationship under 
the framework of this multilateral Convention we will have 
bilateral legal assistance treaty relations.
    The Chairman. The Convention defines, ``organized criminal 
group,'' as a, ``structured group, of three or more persons 
existing for a period of time and acting in concert with the 
aim of committing one or more serious crimes or offenses 
established in accordance with the Convention in order to 
obtain directly or indirectly a financial or other material 
benefit.'' Explain how this definition might encompass a 
terrorist group and assist with our war on terrorism.
    Mr. Swartz. Mr. Chairman, most directly this definition 
would encompass a terrorist group if it acted in part for 
financial or other material benefit. Beyond that, given the 
interrelationships we increasingly see between terrorist groups 
and organized crime groups and the problem that organized crime 
groups present, particularly in the failed state context, we 
see this as a chance to address what might be potential 
terrorists or terrorist facilitators in an early stage when 
they're acting in an organized crime capacity.
    But again, it allows us to directly move against terrorist 
groups insofar as they fit within this definition, and many 
will, and allows us to deal with organized crime groups before 
they can become terrorists.
    The Chairman. So the early stage idea, I suppose, comes 
back to three or more persons. That's not many. Three get 
together for a period of time and then act in concert with the 
aim of committing one or more serious crimes and so forth. So 
this, as you say, is getting to the roots of the situation at 
an early point.
    What mechanisms will be in place to monitor the domestic 
laws of states parties to guarantee their compliance with the 
Convention and Protocols? What are the penalties if a state 
party fails to adopt laws criminalizing the offenses covered by 
the agreements, or to take other measures required under the 
agreements?
    Mr. Swartz. Mr. Chairman, I can begin generally to say that 
the conference of parties we expect to be the initial body that 
will oversee implementation and review the conduct of parties 
under the Convention. Mr. Witten may add to that.
    Mr. Witten. Thank you. Yes, I think that's right. Part of 
the role of the conference of the parties--not all multilateral 
law enforcement conventions have such ongoing entities as a 
conference of the parties that meets even biennially. The goal 
here of the conference of the parties is that so many countries 
are ratifying that don't have domestic laws that are good 
matches with the crimes established in articles 5, 6, 8, and 
33, and also the two protocols, that there will be model laws 
made available through the conference, there will be technical 
assistance that can be requested and offered.
    And this body, this ongoing contact--it's a living 
instrument, and we have high hopes that this can be a tool 
whereby a lot of countries, including developing countries that 
don't have very developed systems of criminal law, can use it 
as a tool, and the United States through the conference of the 
parties and upon request and other contacts that we have will 
encourage that.
    The Chairman. So a layperson listening to this would 
anticipate that the conference will meet periodically, that 
delegates will come, including delegates from the United States 
to the conference, and that in preparation perhaps for 
participation in the conference, we and others would have 
monitored the laws or lack of laws in the participating 
countries. In other words, systematically, if there were 50 
participants, we go down ad seriatim as to how each of these 
countries is doing. Have they adopted the right laws, or have 
they denied their responsibilities? If each of the participants 
in the conference has done his or her homework, why we identify 
periodically in a systematic way who is doing what.
    Mr. Swartz. Yes, Mr. Chairman. The conference of parties is 
called upon to conduct that kind of assessment. And in 
addition, in the interim periods, the Convention will serve as 
a framework both for our technical assistance efforts, and we 
expect for the U.N.'s technical assistance efforts. It will 
allow a chance to say to developing countries in particular, as 
Mr. Witten has suggested, these are the kind of provisions that 
you need to work with to establish to deal with organized 
criminal activity.
    The Chairman. Now, I have some questions on the Trafficking 
and Smuggling Protocol. Articles 6 and 7 of the Trafficking 
Protocol focus on the rights of trafficking victims. However, 
most of the language is not mandatory and simply requires 
states parties to consider taking measures to provide for the 
physical and psychological needs of victims, and to permit 
victims to remain in their countries. How effective will these 
discretionary provisions be in protecting the rights of 
trafficking victims?
    Mr. Witten. Thank you, Mr. Chairman. These provisions were 
the consensus provisions among the negotiators as to what sorts 
of protections would be appropriate. I think that in a 
Convention of this character there's always a distinction 
between obligations and the Convention performing a framework 
for facilitating the implementation of particular issues.
    For something like these provisions on protection, in terms 
of how it would be followed up, I think obviously a part of the 
conference of the parties and the ongoing contact with respect 
to trafficking, this would be a part of the dialog. But just as 
we were talking earlier about the other international 
instruments, for the United States, for example, provisions 
along the lines of article 6 and article 7 are a part of a 
bigger picture. We have our annual trafficking in persons 
exercise where we analyze the efforts that other countries are 
making to address the problems of trafficking, protect those 
victims, and so forth. We have bilateral contacts pursuant to 
that and we anticipate that that, as long as this problem 
exists, which unfortunately could be quite a long time, we 
anticipate that this will be a major diplomatic effort on the 
part of the United States and the part of other countries. 
Thank you.
    The Chairman. Article 18 of the Smuggling Protocol provides 
that states parties have an obligation to facilitate and accept 
without unreasonable delay the return of a person who is 
smuggled, and article 16 imposes additional requirements on 
states to preserve and protect the rights of such individuals. 
Do these requirements have any implications upon U.S. detention 
policy for migrants, such as when, for example, a migrant is 
detained as a material witness to testify against smugglers?
    Mr. Swartz. Mr. Chairman, we do not believe that it would 
affect the United States' ability to detain an individual, as 
you say, for a witness in those circumstances, or otherwise 
have a negative effect on the United States' ability to deal 
with individuals. It is an important advance, we believe, that 
does call upon other countries to accept the repatriation of 
these individuals and not one that will have consequences that 
will be damaging to the United States.
    The Chairman. Let me ask now questions about the Protocol 
of Amendment to the Convention on Harmonization and 
Simplification of Customs Procedures. This Protocol is designed 
to update and modernize the existing international Convention 
on the Simplification and Modernization of Customs Procedures 
by incorporating the developments in trade and customs 
processing that have occurred in the 30 years since the 
original Convention was concluded.
    The Convention calls for parties to continuously modernize 
their customs procedures; to apply their customs procedures 
predictably, consistently, and transparently; to make available 
information on their customs laws, regulations, guidelines, and 
practices; to adopt modern techniques, such as risk management, 
audit-based controls, and the maximum use of information 
technology to cooperate with the customs authorities of other 
countries; to implement relevant international standards; and 
to provide a transparent system of administrative and judicial 
review of customs decisions.
    The Protocol also contains a series of detailed changes to 
existing customs rules and practices, which parties undertake 
to implement. United States customs laws and procedures 
currently comply with most of the Protocol's provisions. The 
administration has proposed taking reservations to these 
provisions that are not consistent with existing law. Such 
reservations would obviate the need for any implementing 
legislation for the Protocol.
    Now, my questions. What economic benefit does the 
administration expect this Protocol will have for the United 
States economy?
    Mr. Schmitz.
    Mr. Schmitz. Mr. Chairman, our partners in the 
international trade community have for the last 20 years raised 
their concerns about the cost of customs, clearing customs in 
other countries. In the developed world, European Union, Japan, 
procedures are fairly efficient. But of the 162 members of the 
World Customs Organization, you would probably only classify 40 
of those as developed. And as customs revenue is often the 
single biggest source of government finance, the customs can 
end up as a bottleneck, customs procedures can end up as a 
bottleneck, because it is the one point where you can do 
taxation. Along with taxation often comes corruption.
    But it is sometimes the delays in getting the goods into 
the country, the customs delays can be for days. We're not 
talking hours, we're talking days. And that is the economic 
benefit that we see to countries having to adopt a standard, a 
uniform standard.
    And the other part of this is that the individual companies 
do not have to learn 140 separate sets of customs procedures to 
deal with any country that they wish to trade with.
    The Chairman. Well, how many countries are likely to accede 
to this new Convention?
    Mr. Schmitz. The number that will accede, the European 
Union has just deposited their instrument, which is going to 
mean that then the individual members, so that will probably 
very quickly push it over 40. Like our colleagues here, we are 
going to Brussels next week for the annual council meeting of 
the World Customs Organization. They too will be interested in 
what has occurred here today because the mere fact that we have 
had this hearing is very useful in getting other countries to 
come forward, because if the United States, Japan, and the 
European Union adopt a process, the market forces push others 
to do it.
    The least developed countries are the slowest to come 
along, but those that are moving forward come forward more 
quickly, and when they move and they see the increase in their 
revenues and the increase in their own trade, it begins to sell 
itself.
    The Chairman. I'm just curious as a matter of technical 
expertise. There are many countries, and you've broadly 
categorized them as less developed. Would they have the 
mechanical tools to be able to expedite the process? You've 
described scenes of days of waiting for goods and materials. If 
technical expertise is required, who might under all these 
procedures or organizations provide that, so that, in terms of 
worldwide trade, there will be more simplification and a 
broader unity of outlook on this?
    Mr. Schmitz. Mr. Chairman, in my experience, the funding 
agencies that generally come forward to help--because you are 
absolutely correct, there are countries you say, well, can they 
even afford this technology that will make this possible? In 
conferences that I have attended in Africa, the World Bank, the 
Asian Development Bank, here in the Americas the American 
Development Bank, some U.N. organizations have funding for 
this. Then you have individual countries. The Japanese are very 
large in capacity building in the developing world, 
particularly Asia, of course. Within Africa, the South Africans 
have taken a leadership role.
    But it is a matter of funding that these countries do not 
have and they do look to the international organizations to 
fund it. There are some places in Africa that have actually 
fairly surprisingly modern data management systems, and the 
Africans are in certain groupings, certain regional groupings, 
are also trying to work out a standardized process where they 
could pool their resources to get the technology that they 
need, because the number of ports of entry that they have is 
small.
    But it is an ongoing problem. The World Customs 
Organization does seek out donors to help countries afford and 
learn how to use this technology.
    The Chairman. Well, this is encouraging news. Our committee 
is very supportive of AGOA, the African Growth and Opportunity 
Act, and it is currently promoting legislation that may keep 
that agreement vital and alive. But my curiosity arises. On the 
one hand, we are attempting to help other states come into 
enterprise, as opposed to aid, and at the same time, that 
denotes customs and goods and services going across borders, 
and maybe a greater complexity of affairs. So, while the one 
hand is trying to help one process, we want to make certain 
that the other hand complements that, so that this is a 
holistic view of things.
    Let me ask, what impact will the Protocol have on our 
homeland security interests? I mentioned that in the opening 
statement, and so have you in your testimony. Since the revised 
Convention was adopted in 1999, border security needs have 
become a paramount concern of our country and of others. How do 
the trade facilitation goals of the revised Convention interact 
with U.S. border security requirements? And are these goals and 
requirements complementary, or do they hinder each other? To 
what extent can effective trade facilitation and border 
security be achieved simultaneously under the Convention?
    Mr. Schmitz.
    Mr. Schmitz. Mr. Chairman, our experience here in the 
United States is that appropriate border security can actually 
increase trade facilitation because we attempt to risk manage 
the threat. And what we did here in the United States, and 
certainly this Convention will permit this same kind of 
activity throughout the world, but we took our 200-year-old 
authority on vessel manifests immediately after the 9/11 attack 
and we had always had the right to receive this information. A 
vessel manifest, you have to present it to customs before you 
could unload your merchandise. We took that and pushed it, 
you're going to have to give us this manifest information 24 
hours before you lade it overseas.
    We then worked with our international business trade 
partners here in the United States to make that apply, not 
necessarily 24 hours, but different rules for advanced 
information to rail, air, and surface traffic. What we see in 
this Convention is the push to get this pre-arrival 
information. If you have pre-arrival information, you have the 
time to risk manage that.
    We just concluded a meeting with the European Union here, 
who are looking at our container security initiative, and we've 
signed a separate agreement with the European Union, and they 
came over to visit to take a look at our National Targeting 
Center and how we process this information 24/7. And what it 
gives us is a chance with this information to screen everything 
that is coming. I'm not saying searching. We screen at least 
the documents saying what is coming into this country.
    Based on criteria that are in the screening systems, 
certain things are identified. We do then further work on 
those. If we are not satisfied, we then target our effort, our 
search effort, on those limited number of shipments, and then 
let the regular importer, Chrysler, GM, the people that we 
know, we focus on those that we don't. We do have CBP 
inspectors currently stationed in 18 ports overseas. This is a 
reciprocal agreement. The Japanese and the Canadians have 
people in our ports here in the United States, and what we ask 
our foreign counterparts to do is, if we have identified a 
particular shipment and we think that that particular shipment 
should be looked at, we do it first on a non-intrusive, 
essentially an x-ray, and if that isn't satisfactory, then what 
we ask our foreign counterparts is to search the container 
there. They make the same requests of us.
    As this pre-arrival information spreads throughout the 
world, I think more and more countries are going to say, 
listen, we can facilitate our trade. If we only have to focus 
on x number of containers that are coming in rather than this 
wave that comes at us, we can all be more efficient. But the 
United States and the European Union are going to be the 
leaders in this also, and it is our responsibility to bring 
along the developing countries to the same type of standard.
    The Chairman. Let me ask one question about modifications 
to current practice and fiscal impact. How will this change, 
this Convention, our customs operations and infrastructure? 
What fiscal impact will it have on United States customs? Or 
describe new problems, fiscal or otherwise?
    Mr. Schmitz. I'm happy to report that there would be no 
financial impact and no impact on our current procedures.
    The Chairman. That is the best of news. Well, I very much 
appreciate the detailed responses of our witnesses. Obviously, 
you have been negotiating in these areas for a long time, are 
well prepared to respond to these questions. I have wished to 
ask them, and to have your responses, for the sake of as 
complete a record as possible. These treaties and protocols are 
important. We thank you for coming in a timely way to our 
conference this morning to this meeting.
    We will likewise try to take action in a timely way on our 
part, and encourage our colleagues to become familiar with the 
issues and the questions and answers that we have had this 
morning. Having said that, our hearing is adjourned.
    [Whereupon, at 10:56 a.m., the committee adjourned, to 
reconvene subject to the call of the Chair.]
                              ----------                              


             Additional Statements Submitted for the Record


               Prepared Statement of Senator George Allen

    Thank you Mr. Chairman for holding today's hearing on these four 
law enforcement treaties.
    I would like to take a moment to say a few words about Treaty 
Document 108-11, the Council of Europe Convention on Cybercrime. The 
Internet is a powerful tool that expands people's educational, 
economic, and communicative opportunities across the globe. However, as 
the Internet has grown, so too has cybercrime; the tools to conduct 
these crimes are widely available throughout the world. The nature of 
increasing cyber attacks requires effective computer security 
practices, and better law enforcement deterrence to thwart these 
attacks.
    I recently had the pleasure of meeting with chief executive 
officers of companies that are important players in Internet security 
and who are members of the Business Software Alliance. These innovators 
gave me several reasons why it is important for the Senate to move 
promptly to ratify this Convention. I would like to share the 
conclusions on cybersecurity of these executives with the committee.

   First, the tools to conduct cyber crime are widely available 
        around the world to any person or group, regardless of their 
        motivation or location. Internet attacks are easy, low risk, 
        and hard to trace. And because the methods of attack are so 
        similar regardless of the attacker, the methods of defending 
        against cyber attacks are similar as well. Good computer 
        security practices, improved corporate governance, and better 
        law enforcement deterrence are essential in deterring these 
        types of attackers.

   Second, cyber criminals are not constrained by national 
        boundaries. In fact, perpetrators are likely to route attacks 
        through several countries to decrease the probability of being 
        caught. That is why our cybersecurity depends on the security 
        practices of every country, every business, and every citizen 
        to which we are connected. It is also why we depend on 
        effective international law enforcement cooperation on a very 
        wide scale, if we are to find and capture perpetrators. As with 
        terrorism, there must be no safe havens.

   Third, because most of the information infrastructures that 
        we rely upon, even for many government functions, are in the 
        private sector, security cannot be achieved by governments 
        alone. We need a broad partnership between government and 
        private industry in all of our countries.

   Finally, as the number of intruders capable of executing 
        attacks climbs, we must simultaneously increase our commitment 
        to combating them.

    The Council of Europe Convention on Cybercrime will play an 
important role in helping us to become a more secure and productive 
nation, because it criminalizes acts such as hacking and the 
production, sale, or distribution of hacking tools. It is important to 
note that while the treaty helps with successful investigation and 
prosecution of cybercriminals, it does not require changes in 
technology or business practices. Furthermore, it helps raise awareness 
throughout the world that computer viruses, worms, and other attacks 
are not clever acts of mischief, but instead serious crimes with 
serious penalties.
    Cybercrime is a real threat and it is growing by the day. According 
to the latest CSI/FBI survey, 56% of respondents reported unauthorized 
access to their computer systems in the last 12 months alone. In 
addition, data theft has grown more than 650% in the past three years. 
Increased cybercriminal activity is also financially costly, as the 
average reported loss from unauthorized intrusions was $2.7 million per 
incident.
    As we can see, the threat of cyber crime is evident and requires 
prompt action. I urge the Senate to move swiftly to address these 
problems that threaten the well-being of our nation by ratifying the 
Council of Europe Convention on Cybercrime.

                                 ______
                                 

                                           AeA,    
                       601 Pennsylvania Ave., N.W.,
                                 North Building, Suite 600,
                                      Washington, DC, July 8, 2004.

The Honorable Richard G. Lugar,
Senate Foreign Relations Committee,
450 Dirksen Senate Office Building,
Washington, DC 20515

The Honorable Joseph R. Biden, Jr.,
Senate Foreign Relations Committee,
450 Dirksen Senate Office Building,
Washington, DC 20515

    Dear Senators:

    On behalf of AeA, I would like to thank you for your work in moving 
the International Convention on the Simplification and Harmonization of 
Customs Procedures, otherwise known as the Revised Kyoto Convention, 
closer to Senate consideration. As was indicated in the June 17th 
Senate Foreign Relations Committee hearing, this is a noncontroversial 
issue that serves to improve customs procedures as well as benefit 
national security.
    AeA has been a strong advocate of the Revised Kyoto Convention 
given the many benefits that ratification of this convention will bring 
to the U.S. high tech industry and to national security. We urge the 
Senate to take up and approve the Revised Kyoto Convention.
    AeA is the nation's largest high-tech trade association, 
representing more than 3,000 U.S.-based technology companies. 
Membership spans the industry product and service spectrum, from 
semiconductors and software to computers, Internet, and 
telecommunications systems and services. With 18 regional U.S. offices 
and offices in Brussels and Beijing, AeA brings a broad industry and 
grassroots perspective to the public policy arena.

            Sincerely,
                                         William T. Archey,
                                                 President and CEO.

                                 ______
                                 

              Electronic Privacy Information Center
                        1718 Connecticut Ave. NW, Suite 200
                                      Washington, DC, June 17, 2004

Chairman Richard G. Lugar
Ranking Member Joseph R. Biden, Jr.
Senate Committee on Foreign Relations
United States Senate
Washington, DC 20510

    Dear Chairman Lugar and Senator Biden,

    We are writing on behalf of the Electronic Privacy Information 
Center (EPIC) to urge opposition of ratification of Treaty 108-11, the 
Council of Europe's Convention on Cybercrime (``the Cybercrime 
Convention''). EPIC is a leading civil liberties organization that has 
reported on developments in privacy and human rights around the world 
for several years.\1\ We believe for the reasons stated below that it 
would be a mistake for the United States to support adoption of this 
treaty. We ask that this statement be included in the June 17, 2004 
hearing record of the Senate Committee.
---------------------------------------------------------------------------
    \1\ See, e.g., Privacy and Human Rights: An International Survey of 
Privacy Laws and Developments (EPIC 2003) (A 545 page report on recent 
developments in over fifty-five countries around the world), available 
online at http://www.privacyinternational.org/survey/phr2003/. See also 
EPIC, Cybercrime Convention, available online at http://www.epic.org/
privacy/intl/ccc/html.
---------------------------------------------------------------------------
 the convention threatens core united states civil liberties interests
The Convention Lacks Adequate Safeguards For Privacy
    We object to the ratification of the Cybercrime Convention because 
it threatens core legal protections, in the United States Constitution, 
for persons in the United States. The treaty would create invasive 
investigative techniques while failing to provide meaningful privacy 
and civil liberties safeguards, and specifically lacking judicial 
review and probable cause determinations required under the Fourth 
Amendment. A significant number of provisions grant sweeping 
investigative powers of computer search and seizure and government 
surveillance of voice, e-mail, and data communications in the interests 
of law enforcement agencies, but are not counterbalanced by 
accompanying protections of individual rights or limit on governments' 
use of these powers.
Individual Privacy Is Fundamental to Good Security Practices
    The Cybercrime Convention sets out a strong commitment to security 
measures, while failing to acknowledge the commonly held position that 
the protection of individual privacy is in fact fundamental to good 
security practices,\2\ and the fact that many of the Convention's 
provisions, when put into practice, may actually detract from 
security.\3\ For example, Article 14 (Search and Seizure of Stored 
Computer Data) requires countries to enact legislation compelling 
individuals to disclose their decryption keys in order to allow for law 
enforcement access to computer data.\4\ Besides the contradiction 
between this requirement and the prevalent right against self-
incrimination, which would otherwise be safeguarded under the United 
States Constitution, the disclosure of these keys can drastically 
reduce the security of a wide range of computer systems.\5\
---------------------------------------------------------------------------
    \2\ Banisar & Gus Hosein, A Draft Commentary on the Council of 
Europe Cybercrime Convention, Oct. 2002, available online at .
    \3\ Id.
    \4\ Council of Europe: Convention on Cybercrime, Nov. 23, 2001, 41 
I.L.M 282, Art. 14. Article 14, para. 4 provides, inter alia, that 
participating countries shall enact legislation that would empower law 
enforcement authorities ``to order for the purposes of criminal 
investigations or proceedings any person who has knowledge about the 
functioning of the computer system or measures applied to protect the 
computer data therein to provide all necessary information, as is 
reasonable, to enable the undertaking'' of the seizure of such data.
    \5\ Banisar, supra note 1, at 32.
---------------------------------------------------------------------------
Vague and Weak Privacy Protections
    In response to objections from privacy and human rights groups, the 
working group added Article 15 (Conditions and Safeguards), which 
provides, inter alia, that each party must ensure that ``the 
establishment, implementation, and application of the powers and 
procedures provided for in this Section [Procedural Law] are subject to 
conditions and safeguards provided for under its domestic law, which 
shall provide for the adequate protection of human rights and 
liberties.'' \6\ This provision is quite vague, and is not reiterated 
with specific and detailed protections within any of the specific 
provisions. For example, provisions on expedited preservation of stored 
computer data \7\ and expedited preservation and partial disclosure of 
traffic data \8\ make no mention of limitations on the use of these 
techniques with an eye to protection of privacy and human rights. 
Furthermore, the vagueness of this provision (and others) introduces 
the risk of enhancement of the flaws and benefits of the Cybercrime 
Convention overall, as the Convention is transposed into the laws of 
ratifying countries which may have drastically different pre-existing 
privacy and human rights protections.\9\
---------------------------------------------------------------------------
    \6\ Convention on Cybercrime, supra note 3, at Art. 15.
    \7\ Id. at Art. 16.
    \8\ Id. at Art. 17.
    \9\ Giovanni Buttarelli, Remarks in Washington, D.C., Promoting 
Freedom and Democracy: A European Perspective, May 21, 2004, available 
online at http://www.epic.org/privacy/intl/buttarelli-052104.html.
---------------------------------------------------------------------------
Insufficient Recognition of International Human Rights Obligations
    References to the protection of human rights, including the right 
to privacy, are brief at best, especially when compared with myriad 
espousals of the importance of serving the interests of law enforcement 
agencies.\10\ Examination of the Preamble is extremely illuminating on 
this point, with eight clauses related to the interests of law 
enforcement, crime-prevention, and national security, and only two 
oriented toward protection of privacy and human rights.\11\
---------------------------------------------------------------------------
    \10\ Convention on Cybercrime, supra note 3, at Preamble.
    \11\ Id.
---------------------------------------------------------------------------
    Coupled with the lack of consideration of, and compliance with, 
important international conventions on human rights, it becomes clear 
that the Cybercrime Convention is much more like a law enforcement 
``wish list'' than an international instrument truly respectful of 
human rights. The Cybercrime Convention fails to respect fundamental 
tenets of human rights espoused in previous international Conventions, 
such as the 1948 Universal Declaration of Human Rights \12\ and the 
1950 Convention for the Protection of Human Rights and Fundamental 
Freedoms.\13\ The Cybercrime Convention also ignores a multitude of 
treaties relating to privacy and data protection, including the Council 
of Europe's 1981 Convention for the Protection of Individuals with 
regard to the Automatic Processing of Personal Data,\14\ and the 
European Union's 1995 Data Protection Directive.\15\
---------------------------------------------------------------------------
    \12\ Available online at , 
reprinted in Marc Rotenberg, Ed., Privacy Law Sourcebook: United States 
Law, International Law and Recent Developments 316-21 (EPIC 2003).
    \13\ Available at .
    \14\ Convention for the Protection of Individuals with regard to 
the Automatic Processing of Personal Data, available online at .
    \15\ Directive 95/46/EC of the European Parliament and of the 
Council of 24 October 1995, available at http://europa.eu.int/comm./
internal_market/en/media/dataprot/law/index.html.
---------------------------------------------------------------------------
The Cybercrime Convention Lacks a Dual-Criminality Requirement
    Article 25 (General Principles Relating to Mutual Assistance) 
introduces broad principles of mutual assistance across international 
borders, but lacks a ``dual-criminality'' provision, under which an 
activity must be considered a crime in both countries before one state 
could demand cooperation from another. Thus, the treaty would require 
U.S. law enforcement authorities to cooperate with a foreign police 
force even when such an agency is investigating an activity that, while 
constituting a crime in their territory, is perfectly legal in the U.S. 
No government should be put in the position of undertaking an 
investigation of a citizen who is acting lawfully, regardless of mutual 
assistance provisions and the laws of other countries.\16\
---------------------------------------------------------------------------
    \16\ See Greg Taylor, The Council of Europe Cybercrime Convention: 
A Civil Liberties Perspective, Electronic Frontiers Australia, 
available online at .
---------------------------------------------------------------------------

THE CYBERCRIME CONVENTION WAS DRAFTED IN A SECRETIVE AND UN-DEMOCRATIC 
                                 MANNER
    The drafting of the treaty has been conducted in a very secretive 
and undemocratic manner. The Council of Europe's Committee of Experts 
on Crime in Cyberspace (``the Committee'') completed nineteen drafts of 
the Convention before the document was released to the public.\17\ 
Between 1997 and 2000, no draft was released and no public input was 
solicited.\18\ The Convention was drafted by persons and groups 
primarily concerned with law enforcement, and reflects their concerns 
almost exclusively, to the detriment of privacy and civil liberties 
interests.\19\ Since the release of Draft 19, the Committee has made 
little effort to acknowledge and incorporate concerns and suggestions 
of privacy and human rights groups. The Council of Europe set up an e-
mail address only late in the negotiation process (after the release of 
Draft 19), to which members of the public could submit comments. 
However, few of these suggestions appear to have been translated into 
substantive changes to the document.\20\
---------------------------------------------------------------------------
    \17\ Id.
    \18\ Banisar, supra note 1, at 5.
    \19\ Id. at 2.
    \20\ Id. at 5.
---------------------------------------------------------------------------
    We also note that, as with the process of drafting the Cybercrime 
Convention, there is markedly one-sided representation at today's 
hearing, as all three witnesses are government officials. For 
legislation that so touches on individual rights and freedoms, there 
should be a broader range of voices heard on this topic.
most european countries have failed to ratify the cybercrime convention
    Despite the ceremonial act of thirty-eight countries in signing the 
Convention, only six countries have yet ratified the Cybercrime 
Convention.\21\ As of June 16, 2004, only Albania, Croatia, Estonia, 
Hungary, Lithuania, and Romania ratified the Cybercrime Convention. The 
Cybercrime Convention remains very controversial in Europe, in 
particular the provisions relating to the lack of protections for the 
use, collection, and distribution of personal data. In Europe, personal 
data protection has come to be considered a fundamental right, and 
Europe's legislators are committed to safeguarding this right.\22\ 
Europeans are concerned that while the Cybercrime Convention aims to 
achieve a noble end of fighting cyber-crime, the extensive surveillance 
tools that are being shaped to achieve this end are threats to a 
democratic society.\23\
---------------------------------------------------------------------------
    \21\ Council of Europe, Convention on Cybercrime, Status as of 16/
6/2004, at .
    \22\ Buttarelli, supra note 8.
    \23\ Id.
---------------------------------------------------------------------------
    In summary, the Cybercrime Convention threatens core legal rights 
established by the United States Constitution. It constructs a sweeping 
structure of vast and invasive law enforcement activity without a 
corresponding means of oversight and accountability. It speaks in very 
specific terms about the new authorities to pursue investigations but 
in only generalities with regard to legal rights.
    The Cybercrime Convention is the result of a process that excluded 
legal experts and human rights advocates. It is a one-sided document 
that fails to reflect the broad commitment to the rule of law and the 
protection of democratic institutions that has otherwise characterized 
the treaties proposed by the Council of Europe.
    It is therefore not surprising that the vast majority of the 
countries of the Council of Europe have thus far failed to ratify the 
Cybercrime Convention. We urge the United States not to support this 
deeply flawed proposal.

            Sincerely yours,
                                   Marc Rotenberg,
                                           EPIC President.

                                   Cedric Laurant,
                                           EPIC Policy Counsel.

                                   Tara Wheatland,
                                           EPIC IPIOP Law Clerk.

                                 ______
                                 

                         Microsoft Corporation,    
                         Law and Corporate Affairs,
                             1401 Eye Street NW, Suite 500,
                                   Washington, DC, October 7, 2004.

The Honorable Richard G. Lugar,
The Honorable Joseph R. Biden, Jr.,
430 Dirksen Senate Office Building,
Washington, DC 20510.

    Dear Chairman Lugar and Ranking Member Biden:

    I want to thank each of you for your leadership in holding a 
hearing on the Council of Europe Convention on Cybercrime, and also 
express Microsoft's strong support for the treaty's ratification.
    The information technology and Internet revolution have brought the 
United States' and the global economy significant benefits. Continuing 
innovation promises even greater benefits for all, but to extend this 
growth, we must continue to enhance trust in and the trustworthiness of 
the online environment.
    At Microsoft, security is a top priority. Through our Trustworthy 
Computing Initiative, we are making our technology more secure and 
easier to maintain securely. Unfortunately, we will always face online 
criminals who search for new ways to harm the public. Some of their 
attacks may be mere nuisance, but others may pose real risks to global 
security, public safety and economic development.
    Many of the most serious of these crimes travel across 
international borders, making them much more difficult for law 
enforcers to investigate and prosecute. Therefore, Microsoft urges the 
Senate to ratify the Council of Europe Convention on Cybercrime, which 
was transmitted to the Senate on November 23, 2003. It reduces critical 
obstacles that restrict international investigations and prosecutions 
of online crime by requiring countries to establish appropriate 
criminal offenses and legal tools, and by providing the means for 
international cooperation and assistance. The Convention also contains 
safeguards for civil liberties and, as I understand, does not require 
any change to existing United States law.
    The Convention is the first multilateral agreement drafted 
specifically to address the problems posed by international online 
crime, and its widespread adoption would improve security in the United 
States and around the world. The United States has helped lead the 
international fight against cyber crime, and I urge the Senate to 
continue that leadership by rapidly reviewing and ratifying the 
Convention.

            Sincerely,
                                             Scott Charney,
                            Chief Trustworthy Computing Strategist.

                                 ______
                                 

      Revised Kyoto Convention on Customs Modernization Coalition

    AeA--Air Courier Conference of America--American Association of 
 Exporters & Importers--Joint Industry Group--National Association of 
      Manufacturers--United States Business Alliance for Customs 
    Modernization--United States Council for International Business

                                                     June 25, 2004.

The Honorable Richard G. Lugar,
Senate Foreign Relations Committee,
450 Dirksen Senate Office Building,
Washington, DC.

    Dear Mr. Chairman:

    As chairman of the Revised Kyoto Convention on Customs 
Modernization Coalition, I am writing to express the Coalition's 
support for the Revised Kyoto Convention.
    We were pleased with the June 17th hearing on this issue as the 
Coalition has been working for the passage of the Revised Kyoto since 
2000. The Convention will bring numerous benefits to U.S. business 
involved in international trade such as:

   reduction of inefficient customs procedures and policies 
        that impede access to markets and unnecessarily increase costs;

   facilitation of product market introduction;

   more efficient customs procedures overall;

   standardization of customs implementation and administrative 
        procedures worldwide--across participating countries;

   reduced cycle time due to more predictability in the customs 
        entry and release process, which also results in inventory 
        savings (inventory costs can run as high as $20 million per 
        day);

   greater understanding of compliance requirements resulting 
        from increased transparency so that industry is better able to 
        meet ``time-to-market'' objectives;

   implementation of special procedures for low-risk importers;

   reduced opportunities for extortion of facilitation payments 
        as a result increased transparency and automation.

    The attached documents provide more detail on the benefits of the 
Revised Kyoto.
    We appreciate all the work you have done on this issue and look 
forward to Senate approval.

            Sincerely,
                                        William A. Maxwell,
                                                          Chairman.

           Revised Kyoto Convention on Customs Modernization

                               BACKGROUND
    In today's global trade environment, inefficient customs processes 
and procedures pose significant and costly barriers to U.S. trade. U.S. 
businesses need more consistency and predictability in the customs 
environment in order to trade goods in a timely and cost-effective 
manner. The Revised Kyoto Convention on Customs Modernization offers an 
opportunity to achieve such consistency and predictability as it is an 
international instrument designed to simplify and harmonize customs 
procedures and policies worldwide.
    The World Customs Organization (WCO) adopted the original Kyoto 
Convention in 1974. Due to the changing nature of global trade through 
the 1980s and 1990s, the WCO adopted a revised version of the 
Convention in June 1999--i.e., the Revised Kyoto Convention on Customs 
Modernization. For this Convention to come into effect, 40 of the 61 
current subscribers to the 1974 Convention must ratify it. The United 
States was one of the original subscribers.
    Upon ratification, actions that were voluntary under the 1974 
Convention would become obligatory. Customs authorities in acceding 
countries would be committed to:

   Making information on Customs requirements, laws, rules, and 
        regulations easily available to everyone;

   Providing a transparent system of appeals with respect to 
        Customs rulings and decisions;

   Maximizing the use of automated systems (i.e. improving data 
        collection, exchange and analysis, etc. through the use of 
        information technology systems);

   Employing risk management techniques to focus on high-risk 
        shipments in order to use customs resources more effectively.

   Using pre-arrival information to facilitate the rapid 
        clearance of shipments;

   Specifying the terms of the relationship between Customs 
        authorities and ``agents'' (customs brokers, freight 
        forwarders, carriers and other such agents acting on behalf of 
        importers and exporters) to clearly define requirements such as 
        licensing;

   Establishing formal consultative relationships between 
        Customs authorities and importers, exporters and their various 
        agents (commonly referred to collectively as ``the trade'') to 
        resolve matters and commonly work towards solutions;

   Using electronic fund transfers to more accurately collect 
        tariffs and fees, reduce fraud and expedite shipments through 
        the customs clearance process; and

   Interfacing with other government agencies responsible for 
        imports and exports to coordinate requirements for and 
        clearance of such transactions.

        Benefits of Ratification of the Revised Kyoto Convention

                        ON CUSTOMS MODERNIZATION
 Reduction of inefficient customs procedures and policies that 
        impede access to markets and unnecessarily increase costs
    A WCO analysis demonstrates that inefficient global customs 
procedures add 7% to the cost of information technology (IT) goods 
traded globally. Unpredictable clearance delays often render perishable 
or time-sensitive high tech shipments valueless; as a result companies 
find themselves forfeiting the goods rather than pay inflated tariffs 
or any attendant fines. Such experiences lead companies to abandon 
promising export markets.
 Facilitation of product market introduction
    Many U.S. IT companies source components in multiple countries 
where they undergo complex supply chain operations. U.S. IT companies 
must get their products to market with speed, predictability and at the 
lowest logistics costs to remain competitive. Harmonization and 
simplification of customs procedures under the Revised Kyoto will 
greatly reduce supply-chain problems and address the time sensitive 
nature of products with short life cycles.
 More efficient customs procedures overall
    The Revised Kyoto Convention will reduce the number of steps that 
slow Customs clearance and impede compliance such as: manual instead of 
automated clearance procedures and processing of documentation; lack of 
automated risk management tools to expedite clearance of lower-risk 
shipments; and lack of transparency of customs procedures. Greater 
efficiency will also enhance enforcement and security as well as 
facilitation missions. Bringing foreign Customs agencies to the Revised 
Kyoto standard of efficiency will mean more efficient allies in the 
United States' campaign against terrorism, drugs and corruption.
 Standardization of customs implementation and administrative 
        procedures worldwide--across participating countries
    The Revised Kyoto calls on all participating countries to conform 
to the same set of standards in order to promote the consistency, 
predictability and efficiency that are necessary for global trade 
today.
 Reduced cycle time due to more predictability in the customs 
        entry and release process, which also results in inventory 
        savings (inventory costs can run as high as $20 million per 
        day)
    When clearance times vary even within one country it is very costly 
to the importer and exporter (e.g. customs clearance could take five 
hours for shipments in one week and two days for the same shipments 
during the next week). The more predictable the entry and clearance 
processes, the more importers and exporters can accurately plan their 
supply chain logistics and minimize inventory-carrying costs.
 Greater understanding of compliance requirements resulting 
        from increased transparency so that industry is better able to 
        meet ``time-to-market'' objectives
    Importers and exporters require information about legal 
requirements and customs initiatives in order to be compliant and 
follow the rules of trade. The Revised Kyoto promotes transparency--the 
publication of regulations, rulings, decisions, and other customs 
communications in a public manner either in a circular or on the 
Internet. Such transparency leads to higher rates of compliance among 
importers and exporters, and helps them meet time-to-market objectives. 
It will also benefit small and medium sized exporters.
 Implementation of special procedures for low-risk importers
    The Revised Kyoto Convention includes requirements for the use of 
risk management techniques, that is, profiling traders to identify 
high-risk importers requiring examination and attention, and 
designating low-risk importers in programs that will allow expedited 
treatment for entry and clearance procedures. This type of system not 
only allows the trader to move goods more expeditiously, but also 
allows customs authorities to focus resources on the greatest areas of 
risk and threat to the country's borders.
 Reduced opportunities for extortion of facilitation payments 
        as a result increased transparency and automation
    Requirements under the Revised Kyoto require customs 
administrations to have much better visibility and tracking of duty 
payments, refunds and other types of financial transactions. These 
requirements build in a system of internal controls to reduce the 
possibility of unauthorized diversion of funds and to support a more 
accurate and ``audit-proof'' customs accounting system.

           Revised Kyoto Convention on Customs Modernization

                         QUESTIONS AND ANSWERS
What is the Revised Kyoto Convention?
    The Revised Kyoto Convention is an amendment to the Kyoto 
Convention, formally known as the ``International Convention on the 
Simplification and Harmonization of Customs Procedures''. It is an 
international instrument maintained by the World Customs Organization 
(WCO) offering countries a comprehensive, coherent solution for the 
simplification and harmonization of their customs procedures.
What is the World Customs Organization?
    Established in 1952 as the Customs Co-operation Council, the WCO is 
an independent intergovernmental body whose mission is to enhance the 
effectiveness and efficiency of customs administrations. With 161 
Member Governments, it is the only intergovernmental worldwide 
organization competent on customs matters.
What is the bottom line impact of adopting the Revised Kyoto 
        Convention?
    The WCO estimates that archaic customs procedures and practices add 
5 to 7% to the cost of items that flow in international trade. 
Adherence to the Revised Kyoto would significantly reduce if not 
eliminate this wasteful surcharge.
Does the Revised Kyoto help U.S. security?
    The Revised Kyoto promotes the use of risk management procedures 
and pre-arrival information for screening and other purposes, enabling 
customs administrations to identify and target higher risk transactions 
more effectively. Customs administrations also must commit to the 
employment of automated systems, which are inherently more reliable and 
secure.
Why was the original Kyoto Convention created?
    One of the main aims of the WCO, since its inception, has been to 
secure the highest degree of harmony and uniformity in the customs 
systems of its member countries. Despite the volume and importance of 
the work done in different fields, however, until now there was no 
international instrument offering countries a comprehensive, coherent 
solution for the simplification and harmonization of their customs 
procedures.
When was the original Convention created and implemented?
    The Kyoto Convention was established in Kyoto, Japan, on May 18, 
1973 and entered into force on September 25, 1974.
When was the Revised Kyoto Convention created and implemented?
    The Revised Kyoto was unanimously adopted in June 1999 by the 114 
Customs administrations that attend the WCO's 94th Session.
How does the Revised Kyoto come into force?
    There are 63 ``Contracting Parties'' to the original Kyoto 
Convention. Forty of the Contracting Parties, must ratify the Revised 
Kyoto in order for it to enter into force and replace the original 
Kyoto Convention.
    Three months after 40 Contracting Parties have acceded to the 
Revised Kyoto, the remaining 23 Contracting Parties do not 
automatically accede. They have two options:

          1. deposit their instrument of ratification
          2. accede

    The non-original Contracting Parties will then be able to accede to 
the Revised Kyoto as specified in Article 8 of the Revised Kyoto. Prior 
to this, the non-original Contracting Parties can only accede to the 
original Kyoto Convention.
How many of the 63 Contracting Parties have ratified the Revised Kyoto?
    As of May 2004, 32 countries have ratified the Revised Kyoto. They 
include: Algeria, Australia, Austria, Belgium, Bulgaria, China, Canada, 
Czech Republic, Denmark, European Community, Finland, Germany, Greece, 
Hungary, Ireland, Italy, Japan, Korea, Latvia, Lesotho, Lithuania, 
Morocco, Netherlands, New Zealand, Slovakia, Slovenia, Spain, Sweden, 
Uganda, United Kingdom, South Africa and Zimbabwe.
Who are the 63 original Contracting Parties?
    The 63 original Contracting Parities include: Algeria, Australia, 
Austria, Belgium, Botswana, Bulgaria, Burundi, Cameroon, Canada, China, 
Congo (Democratic Republic of), Cote d'Ivoire, Croatia, Cuba, Cyprus, 
Czech Republic, Denmark, European Community, Finland, France, Gambia, 
Germany, Greece, Hungary, India, Ireland, Israel, Italy, Japan, Kenya, 
Korea (Republic of), Latvia, Lesotho, Lithuania, Luxemburg, Malawi, 
Malaysia, Morocco, Netherlands, New Zealand, Nigeria, Norway, Pakistan, 
Poland, Portugal, Rwanda, Saudi Arabia, Senegal, Slovak Republic, 
Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Turkey, 
Uganda, United Kingdom, United States, Vietnam, Yugoslavia, Zambia, and 
Zimbabwe.
How do countries implement the Revised Kyoto Convention?
    Contacting Parties are obligated to bring the Standards, 
Transitional Standards and Recommended Practices that they have 
accepted into force nationally. Standards must be implemented within 36 
months of ratification, while transitional standards have a 60-month 
implementation period. Contracting Parties' national legislation must 
include at least the basic rules from the General Annex, with detailed 
regulations for their implementation. Such regulations are not 
necessarily restricted to Customs legislation and may include official 
notification, charters, or ministerial decrees or similar instruments. 
National legislation should include the conditions under which the 
Customs procedures will be accomplished. Customs administrations are 
obliged to ensure that their regulations are transparent, predictable, 
consistent and reliable.
Why was the original Kyoto Convention revised?
    Since its implementation in 1974 the growth in international cargo, 
developments in information technology and a highly competitive 
international business environment have created conflict with 
traditional customs methods and procedures. As a result, the WCO 
revised and updated the Kyoto Convention to ensure that it meets the 
current demands of international trade.
What revisions were made to the original Kyoto Convention?
    The revision preserves many of the elements of the original Kyoto 
Convention, together with new elements to meet current conditions, and 
it is restructured to improve the harmonization of practices. The 
primary revisions follow:

   The core customs policies and procedures have been 
        reorganized so that they are now found in a General Annex. 
        Implementation of the standards set out in the General Annex is 
        mandatory for countries that accede. (In the original Kyoto 
        text countries could accede to provisions on an a la carte 
        basis.)

   New core concepts such as the obligations to automate data 
        systems, to cooperate with trade, and to implement risk 
        management techniques have been incorporated.

   A mechanism is provided to maintain and update the Kyoto 
        Convention (Management Committee to review and update the 
        Convention at regular intervals).

   Detailed guidelines and best practices to assist countries 
        in understanding how to implement the Kyoto Convention are 
        provided in the Guidelines to the Convention.
Does U.S. implementation of the Revised Kyoto Convention require any 
        changes in U.S. law?
    The United States has chosen to opt out of provisions that would 
require changes in U.S. law. U.S. Customs officials have indicated that 
changes might be considered sometime in the future for certain valid 
reasons. For instance, if rules of origin were no longer relevant then 
the United States would need to revise its laws to reflect this change.
Will implementation of the Revised Kyoto Convention allow customs 
        administrations to maintain controls while focusing on trade 
        facilitation?
    The standards in the Revised Kyoto promote harmonized common 
procedures that enable Customs to be more efficient in carrying out 
enforcement and revenue functions, and are vital to improved trade 
facilitation. Enforcement, compliance, and security functions are 
inseparable from trade facilitation in modern customs procedures, which 
are needed to address high volumes and rapid movement of goods. 
Implementing the Revised Kyoto will therefore enable more countries to 
have effective security and enforcement practices, while bringing 
improvements in trade facilitation.
Does the Revised Kyoto Convention benefit all modes of transport?
    The principles for efficient and simple clearance procedures in the 
Revised Kyoto apply equally to all goods and all means of transport 
that move goods into or out of a customs territory. The formalities for 
all carriers on entering or leaving a customs territory are also 
uniform.
Is the Revised Kyoto Convention adapted to the needs of developing 
        countries?
    Encouraging national economic growth is one of the key objectives 
for developing countries. Simplifying the procedures to move goods 
across borders will reduce administrative barriers, thereby encouraging 
more international trade and investment, which spur economic growth. 
Simplified procedures also help small and medium-sized enterprises to 
become involved in international trade. A number of developing 
countries played an active role during the revision of the Revised 
Kyoto. This has ensured that the revised provisions address their 
particular concerns.
Does the Revised Kyoto Convention help governments to deal with the new 
        challenges of electronic commerce?
    Recognizing the changes in today's business practices and the role 
of electronic commerce, the Revised Kyoto requires customs 
administrations to apply information technology to support customs 
operations, wherever it is cost-effective and efficient for both 
Customs and the trade. It provides administrations with detailed 
guidelines on how to apply and implement information technology for the 
clearance of goods, carriers and persons, thus assisting Customs 
administrations to deal with the demands generated by electronic 
commerce.
Is it realistic to anticipate that all WCO Members will accept the 
        Revised Kyoto Convention?
    WCO member countries invested four years in updating and 
modernizing this important instrument. By unanimously adopting the 
Revised Convention in June 1999, the then 151 WCO members signaled 
their approval of these new principles and rules for simplified and 
harmonized customs procedures, and their willingness to work towards 
full implementation.
Is it reasonable to expect Customs administrations to commit to 
        implementing all of the 600 Standards and Recommendations and 
        Practices contained in the Revised Kyoto?
    The Body of the Convention (relating to the procedures for its 
adoption and administration) and the General Annex are binding on 
Contracting Parties and form the minimum requirement of the contract. 
This is essential to ensure the harmonization of procedures in all 
countries that become contracting parties. However, the Specific 
Annexes of recommended practices, dealing with specialized topics such 
as transit or free zones are optional. In addition, the General Annex 
differentiates between standards and transitional standards; the latter 
have longer implementation periods. It is clear that many countries 
will require training and assistance to implement the Revised Kyoto.
Does acceding to the Revised Kyoto Convention gives a Customs 
        administration less autonomy?
    The Revised Convention imposes obligations but provides flexibility 
and different time limits for implementation. The General Annex is the 
base, while the Specific Annexes can be added at the pace desired by a 
Customs administration. There are features such as Transitional 
Standards and Guidelines to aid governments to meet the obligations 
undertaken, and a Management Committee to give all Contracting Parties 
a voice in the further development and administration of the agreement.
Does the Revised Kyoto Convention apply to all geographic regions?
    The core principles of the Revised Kyoto have been developed for 
universal standardization and harmonization of customs procedures. They 
apply in the territory of each Contracting Party that accedes to it 
regardless of its geographical location.
Can a single General Annex really cover every aspect of trade 
        facilitation as well as targeted control procedures in order to 
        permit smoother legitimate trade?
    Implementation of the General Annex would be a great step toward 
simplified common customs procedures worldwide for the key elements 
covered in the General Annex. Together with Specific Annexes the 
Revised Kyoto provides a blueprint for worldwide procedures that would 
address most facilitation issues. It would not address them all; for 
example, there would still be issues regarding the amount and 
uniformity of data requirements, which are being addressed in another 
project, the WCO Customs Data Model (formerly the G-7 data initiative).
How will the Revised Kyoto Convention be enforced?
    The Revised Kyoto does not have a formal enforcement mechanism. 
However, signatories are expected to meet their obligations. 
Contracting Parties should settle any disputes between them by 
negotiation. Any disputes not settled by negotiation are referred to 
the Management Committee, which was created under the Revised Kyoto. 
The Committee, which is made up of representatives from the Contracting 
Parties, would consider the dispute and make recommendation to settle 
it. Contracting Parties may agree in advance that the recommendation of 
the Management Committee will be binding.
                              ----------                              


       Responses to Additional Questions Submitted for the Record


 Responses of Samuel M. Witten to Additional Questions for the Record 
                 Submitted by Senator Richard G. Lugar

     QUESTIONS ON THE CONVENTION ON CYBERCRIME (TREATY DOC. 108-11)
    Question 1. The Secretary of State's September 11, 2003 letter of 
submittal for the Convention indicates that the administration 
considers some of the Convention's provisions to be self-executing. 
Please indicate which articles or provisions of the Convention the 
administration considers to be self-executing.

    Answer. As noted in the transmittal letter, most of the provisions 
of the Convention are not self-executing but rather require Parties to 
enact legislation to implement them. For the United States, no new 
implementing legislation is required, because existing U.S. Federal law 
is sufficient to satisfy the Convention's requirements.
    The administration considers the provisions of Articles 24-25 and 
Articles 27-33 of the Convention to be self-executing. These 
provisions--on extradition and mutual legal assistance--can be directly 
invoked by the government. They do not create any private rights of 
action. Nor do the mutual legal assistance provisions give individuals 
or other private entities any right to obtain, suppress, or exclude 
evidence, or to impede the execution of a request.

    Question 2. Article 27(4)(b) of the Convention indicates that a 
party to the Convention may refuse to provide mutual legal assistance 
in response to a request made under the Convention if ``it considers 
that the execution of the request is likely to prejudice its 
sovereignty, security, ordre public or other essential interests.'' 
What does the administration understand the scope of this provision to 
be? Would it, or would other provisions of the Convention, permit the 
United States to decline to provide assistance to countries with 
respect to whose judicial processes or due process standards the United 
States has concerns? Would it, or would other provisions of the 
Convention, permit the United States to decline to comply with a 
request on the ground that the conduct being investigated by the 
requesting state is Constitutionally protected in the United States?

    Answer. This type of provision is common to the over 40 Mutual 
Legal Assistance Treaties to which the United States has become a party 
in recent decades. We view such provisions, which give the party 
receiving a request the right to deny assistance in particular, 
designated circumstances, as important to preserving our essential 
interests and legal principles. The Department of Justice will 
carefully review each request to determine the potential for abuse, and 
will make a determination whether to deny or condition assistance. The 
administration considers this provision to authorize the denial of 
assistance where providing the assistance would impinge on United 
States Constitutional protections, such as free speech, and intends to 
deny assistance in such situations.

    Question 3. What steps does the administration plan to take to 
review incoming requests for mutual legal assistance under the 
Convention to ensure their consistency with the Convention?

    Answer. The Department of Justice, Criminal Division, Office of 
International Affairs (OIA) will be responsible for scrutinizing 
incoming mutual legal assistance requests arising under the Convention 
to ensure compliance with applicable legal requirements. OIA has 
executed thousands of requests under the many bilateral and 
multilateral treaties providing for such law enforcement cooperation, 
and has been careful not to provide assistance in inappropriate cases. 
The Department of Justice, Criminal Division, Computer Crime and 
Intellectual Property Section will undertake similar review of requests 
for assistance that come in through the 24/7 network contemplated in 
Article 35 of the Convention rather than as formal requests for mutual 
legal assistance. The administration views this review process as 
providing an important operational safeguard to ensure compliance with 
the Convention's terms and the U.S. policies described in the answer to 
the prior question.

    Question 4. Article 15 of the Convention states that ``Each party 
shall ensure that the establishment, implementation and application of 
the powers and procedures provided for in this Section are subject to 
conditions and safeguards provided for under its domestic law, which 
shall provide for the adequate protection of human rights. . . .'' What 
provisions of U.S. law regarding protection of human rights does the 
administration understand to apply in connection with the Convention 
pursuant to Article 15?

    Answer. The U.S. Constitution and a number of provisions of U.S. 
law establish conditions and safeguards that protect individual rights 
with respect to the powers and procedures provided for in Section 2 of 
the Convention. For example, U.S. implementation of these investigative 
measures is fully subject to the Constitution; particularly relevant in 
this context are the individual rights and limits on government action 
established by the Fourth and Fifth Amendments. Similar protections can 
be found in various Federal statutes, including the Federal Rules of 
Criminal Procedure and Title 18 of the U.S. Code (in particular, 
Chapters 119, 121, and 206 as amended by the Electronic Communications 
Privacy Act), which require, among other things, judicial supervision 
of requests for interception or disclosure of electronic communications 
and other safeguards set out in Article 15 of the Convention and its 
Explanatory Report.

    Question 5. Under what circumstances will private parties in the 
United States asked to provide information to respond to requests made 
under the Convention be entitled under U.S. law to reimbursement for 
costs they incur in complying with such requests?

    Answer. We are aware that a number of Internet service providers 
have sought confirmation that, should the United States become party to 
the Convention, the United States will continue its current practice of 
reimbursing them for costs they incur in the course of the execution of 
foreign mutual legal assistance requests. The Convention has no effect 
on U.S. law governing reimbursement of such costs, and it is not the 
intention of the administration to change its reimbursement policy as a 
result of the entry into force of this Convention.

    Question 6. If all member countries of the Council of Europe, plus 
the United States, Japan, and Canada become parties to the Convention, 
what percentage of the world's computers would be within jurisdictions 
that are parties to the Convention?

    Answer. If all Council of Europe members plus the United States, 
Japan, and Canada became parties to the Convention, computers in many 
highly-networked countries would be covered. Those countries would 
include the United Kingdom, France, Germany, Italy, the Netherlands, 
Finland, Norway, and Sweden. Although the administration cannot 
independently vouch for the accuracy of the following figures, 2002 
statistics published by the International Telecommunication Union 
suggest that approximately 70% of the world's computers would be 
covered in that scenario. The relevant statistics are as follows:

        Computers in Use (in 1000s)
                United States--190,000
                Canada--15,300
                Japan--48,700
                Europe--167,430

                  Total--421,430

                  Worldwide Total--588,775

    See http://www.itu.int/ITU-D/ict/statistics/at--glance/
InternetO3.pdf

                                 ______
                                 

 Responses of Samuel M. Witten to Additional Questions for the Record 
               Submitted by Senator Joseph R. Biden, Jr.

   questions on the convention against terrorism (treaty doc. 107-18)
    Question 1. To date, only 8 of the 33 signatories have become 
parties to the Convention. Why is ratification proceeding so slowly?

    Answer. Although the United States already has the necessary legal 
authorities and regulatory structures in place to fully implement the 
Convention, some of the other signatories to the Convention will 
require legislation or make other domestic arrangements in order to be 
in a position to implement the Convention. This can be expected to take 
time, as action by a number of different governmental ministries may be 
required before these countries will be in a position to ratify the 
convention. In this connection, it should also be noted that the 
Convention incorporates by reference the offenses set forth in the ten 
multilateral counter-terrorism conventions listed in Article 2 of the 
Convention. While the United States is a party to all ten of these 
conventions, other OAS member states that are not yet party to one or 
more of these conventions will need to determine whether they will 
become a party, or instead will make a declaration pursuant to 
paragraph 2 of Article 2.
    The United States Mission to the Organization of American States 
has been working to facilitate the ratification process for signatories 
by, among other things, assisting the OAS in conducting workshops to 
help countries determine whether implementing legislation is necessary, 
and if so, to suggest how to draft such legislation. In addition, the 
Inter-American Committee Against Terrorism (``CICTE'') plans to conduct 
a workshop for signatory states on implementing the Convention this 
year. Prompt ratification of the Convention by the United States will 
put us in a stronger position to press the remaining OAS member states 
to become party to the Convention.

    Question 2. The Inter-American Convention on Mutual Assistance in 
Criminal Matters was signed over a decade ago, and, as of June 2004, 
less than half of the members of the OAS are parties to it. Given this 
slow pace of ratification, why should the committee expect that this 
Convention will enjoy broad support among OAS member states?

    Answer. The United States itself did not become party to the Inter-
American Convention on Mutual Legal Assistance in Criminal Matters 
until May of 2001. From the date the Convention opened for signature in 
1994 until the U.S. became party, only three other OAS member states 
had become party to it. However, in the three years since the U.S. 
became a party, ten other countries have joined (we note that Trinidad 
and Tobago became a party on June 8, as did El Salvador on July 16). We 
believe our becoming a party has positively influenced the pace of 
ratification, and has enabled us to press more vigorously for other 
states to join the convention.
    With respect to the Inter-American Convention Against Terrorism, 
there has been a very strong level of support for the Convention among 
OAS member states since its inception. Delegations from member states 
negotiated the Convention in less than eight months--a remarkable 
achievement for a multilateral convention--and the Convention was 
adopted by the OAS and signed by thirty OAS member states on June 3, 
2002. During the two years following its opening for signature, eight 
countries have become party, a pace that exceeds that of the Mutual 
Legal Assistance Convention. In January 2004, the Special Summit of the 
Americas called upon all member states that had not yet done so to 
ratify the Terrorism Convention and to ``urgently consider signing and 
ratifying'' the Inter-American Convention on Mutual Legal Assistance in 
Criminal Matters. As with the Mutual Legal Assistance Convention, we 
would hope that our becoming party to the Terrorism Convention will 
encourage other ratifications, and put us in a better position to press 
for similar action by the remaining non-parties.

    Question 3. What is the nature of the obligation in Article 3? Does 
it commit parties to make best efforts to become a party to the 
international instruments listed in Article 2? Or is it something less 
than that?

    Answer. We understand Article 3 to require a party to the 
Convention to take steps toward becoming a party to any international 
instrument listed in Article 2 to which it is not yet a party. At the 
same time, however, the Article explicitly recognizes that such steps 
must be in accordance with the party's constitutional procedures and 
would include adopting the necessary measures to implement those 
instruments. It is thus somewhat more complex than a ``best efforts'' 
formulation. This requirement reflects the member states' desire to 
advance the implementation of United Nations Security Council 
Resolution 1373, which ``calls upon'' states to become parties to these 
same instruments ``as soon as possible,'' while preserving the 
prerogatives of legislative bodies in the domestic approval/
ratification process. (It should be noted that at the time of the 
negotiations, the United States itself had not yet ratified the 
International Convention for the Suppression of Terrorist Bombings or 
the International Convention for the Suppression of Terrorist 
Financing.)

    Question 4. Which agency of the United States will be designated as 
the ``financial intelligence unit'' under Article 4(1)(c).

    Answer. The administration intends to designate the Financial 
Crimes Enforcement Network (FinCEN) at the Department of the Treasury 
as the financial intelligence unit for the purposes of implementing the 
Convention.

    Question 5. What are the Federal laws in the United States that 
would be utilized to implement Articles 5 and 6? Do these apply, as 
required by the Convention, to offenses committed outside U.S. 
territory?

    Answer. With respect to Article 6, the offenses listed in Article 2 
of the Convention are money laundering predicate offenses under 18 
U.S.C. 1956(c)(7)(A), which covers terrorism offenses by virtue of 18 
U.S.C. 1961(1)(G). In addition, the following offenses listed in 
Article 2 of the Convention are predicate offenses under 18 U.S.C. 
1956(c)(7)(D): 49 U.S.C. 46502, 46504-46506 (aircraft hijacking and 
sabotage), 18 U.S.C. 32 (sabotage), 18 U.S.C. 37 (violence at 
airports), 18 U.S.C. 1116 (attacks on internationally protected 
persons), 18 U.S.C. 1203 (hostage taking), 18 U.S.C. 831 (protection of 
nuclear material), 18 U.S.C. 2280 (violence against maritime 
navigation), 18 U.S.C. 2281 (violence against fixed platforms), 18 
U.S.C. 2332f (terrorist bombings), 18 U.S.C. 2339A (providing material 
support to terrorists), 18 U.S.C. 2339B (providing material support or 
resources to a designated foreign terrorist organization), and 18 
U.S.C. 2339C (prohibiting the financing of terrorism).
    Offenses committed outside the U.S. that are against a foreign 
nation and listed in 18 U.S.C. 1956(c)(7)(B) are also money laundering 
predicates. Such offenses include all crimes of violence, and murder, 
kidnapping, robbery, extortion, and destruction of property by means of 
explosive or fire. In addition, 18 U.S.C. 1967(c)(7)(B)(vi) covers 
conduct as to which the U.S. is obligated by multilateral treaty to 
extradite or submit the case for prosecution if the offender is found 
in the United States. The U.S. has such an obligation as to each of the 
offenses set forth in the counterterrorism instruments listed in 
Article 2 of the Convention.
    With respect to Article 5, 18 U.S.C. 981(a)(1) (A), (B), (C), 
(G)(ii) and (iii) and (H),. 18 U.S.C. 982, and 18 U.S.C. 1963 provide 
for forfeiture of the assets involved in the conduct set forth in 
Article 2 of the Convention, since they also apply to the predicate 
offenses described above. The legal basis for forfeiture with respect 
to conduct committed outside U.S. territory is set forth at 18 U.S.C. 
981(a)(1) (A), (B) and (C), which permits the forfeiture of property 
involved in offenses listed in 18 U.S.C. 1956(c)(7)(B).

    Question 6. Article 7 obligates states parties to cooperate and 
exchange information to ``detect and prevent the international movement 
of terrorists and trafficking in arms or other materials intended to 
support terrorist activities.'' In connection with this obligation, did 
the negotiators discuss the Inter-American Convention Against the 
Illicit Manufacturing of and Trafficking in Firearms? When does the 
executive branch expect that it will be prepared to proceed with Senate 
consideration of that Convention?

    Answer. Negotiators of the Convention did discuss the Inter-
American Convention Against the Illicit Manufacturing of and 
Trafficking in Firearms, and anticipated that the two Conventions could 
supplement one another for those States that choose to be parties to 
both instruments. The executive branch could proceed with Senate 
consideration of the trafficking convention as soon as the Senate takes 
it up.

    Question 7. Article 10(1)(a) requires informed consent of a 
prisoner before transfer to another state party. Paragraph 3 of Article 
10 provides a means for bringing charges against a person transferred 
if the state party from which the person is transferred consents. When 
would such consent from the state party be sought? Is it prior to 
obtaining the informed consent of the prisoner for the transfer itself?

    Answer. This provision is based on the virtually identical 
provisions of Article 13 of the UN Convention for the Suppression of 
Terrorist Bombings and Article 16 of the UN Convention on the 
Suppression of the Financing of Terrorism. Neither the OAS provision 
nor its UN predecessors are intended to be a substitute for 
extradition. However, we could anticipate cases in which, prior to 
transfer, a prisoner might agree to waive the protection of paragraph 
3. There might also be rare cases in which the agreement of the 
transferring state was sought and provided subsequently. For example, 
should the prisoner's sentence come to a conclusion during the 
transfer, he or she might be released and remain in the state of 
transfer. In this case, paragraph 3 would require the state of transfer 
to seek permission of the transferring state prior to detaining the 
person for acts preceding the transfer.

    Question 8. How many current bilateral treaties on extradition and 
mutual legal assistance between the United States and OAS member states 
will be effectively amended by Article 11? That is, which current 
treaties have a broader political offense exception than is 
contemplated by this article?

    Answer. There are sixteen extradition treaties between the U.S. and 
other OAS member states that do not provide for such limitations on 
invocation of the political offense exception: Brazil, Chile, Colombia, 
Ecuador, El Salvador, Guatemala, Guyana, Haiti, Honduras, Jamaica, 
Nicaragua, Panama, Dominican Republic, Suriname, Uruguay, and 
Venezuela. Four of these countries (El Salvador, Nicaragua, Panama and 
Venezuela) are already party to the OAS Terrorism Convention, so our 
extradition treaty with those countries would be augmented immediately 
upon our becoming a party.
    We have mutual legal assistance treaty (MLAT) relationships with 25 
OAS Members. Seventeen of these are through bilateral MLATs with the 
following countries: Antigua and Barbuda, Argentina, Bahamas, Barbados, 
Belize, Brazil, Canada, Dominica, Grenada, Jamaica, Mexico, Panama, St. 
Kitts and Nevis, Santa Lucia, St. Vincent and the Grenadines, Trinidad 
and Tobago, and Uruguay. (Canada, Grenada, Mexico:, Panama, and 
Trinidad and Tobago are also party to the OAS MLAT.) Eight of these 
treaty relationships are solely through the OAS MLAT, which the United 
States joined in 2001: Chile, Colombia, Ecuador, El Salvador, 
Guatemala, Nicaragua, Peru and Venezuela.
    Of these twenty-five treaty relationships, the treaty in force with 
twenty-two of these countries expressly permits assistance to be denied 
on political offense grounds: Antigua and Barbuda, Argentina, Bahamas, 
Barbados, Belize, Chile, Colombia, Dominica, Ecuador, El Salvador, 
Grenada, Guatemala, Jamaica, Mexico, Nicaragua, Panama, Peru, St. Kitts 
and Nevis, Santa Lucia, St. Vincent and the Grenadines, Uruguay, and 
Venezuela. Antigua and Barbuda, El Salvador, Mexico, Nicaragua, Panama, 
Peru and Venezuela are already Parties to the OAS Terrorism Convention; 
accordingly, upon our becoming party to the OAS Terrorism Convention, 
the political offense provisions in our MLAT relationships with each of 
these countries would be narrowed. As other countries named in this 
paragraph eventually become party to the OAS Terrorism Convention, 
there will be a similar effect upon our MLAT relationships with them.

    Question 9. Is there a difference between the standards in Articles 
12 and 13 and the standards on determining refugee status and asylum 
under U.S. law? Please elaborate.

    Answer. The obligations we would undertake under these two articles 
are functionally equivalent, and fully in accordance with existing U.S. 
law. The use in Article 13 of ``reasonable grounds to believe'' was not 
intended by the drafters to articulate a lesser legal standard than 
``serious reasons for considering'' as set forth in Article 12. 
Specifically, under U.S. immigration law, only those aliens who meet 
the definition of ``refugee'' as set forth in Section 101(a)(42) of the 
Immigration and Nationality Act (INA) are eligible for refugee status 
and/or asylum. Therefore, the United States' requirements under 
Articles 12 and 13 will apply to the same class of persons, i.e. only 
those aliens meeting the definition of ``refugee.''
    An alien who is otherwise eligible for refugee status, but has been 
deemed inadmissible to the United States pursuant to INA section 
212(a)(3)(B) (Terrorist Activities), would be denied refugee status and 
may not be admitted to the United States. Pursuant to INA section 
207(c)(3), the Secretary of Homeland Security may not waive a finding 
of inadmissibility under 212(a)(3)(B). Similarly, under INA section 
208(b)(2)(A), asylum may not be granted to an alien who is inadmissible 
under section 212(a)(3)(B) or removable under section 237(a)(4)(B) 
(engaging in terrorist activities). Thus, existing law is sufficient to 
fully implement both Articles 12 and 13.

                                 ______
                                 

   Responses of Bruce Swartz to Additional Questions for the Record 
               Submitted by Senator Joseph R. Biden, Jr.

     questions on the convention on cybercrime (treaty doc. 108-11)
    Question 1. What is the Executive Branch's view of the 
authoritative nature of the Explanatory Report?

    Answer. The Explanatory Report provides guidance in interpretation 
and application of the Convention's provisions. Although the provisions 
of the Explanatory Report are not binding on the Parties, they reflect 
the understanding of the Parties, on the basis of which the 
Convention's provisions were drafted. The Explanatory Report can 
provide a fundamental basis for interpretation of the Convention, and 
the Parties and the Council of Europe refer to it in practice.

    Question 2. Are there any related exchange of notes, official 
communications, or statements of the U.S. negotiating delegation not 
submitted to the Senate with regard to the Convention that would 
provide additional clarification of the meaning of provisions of the 
Convention?

    Answer. No. The meaning of provisions of the Convention is governed 
in the first instance by the Convention itself. In addition, as 
mentioned in the answer to the prior question, the Explanatory Report 
may serve as a fundamental basis for interpretation of the Convention. 
Additional perspective on the meaning of provisions is provided in the 
Department of State's letter of submittal, which sets forth an article-
by-article analysis.

    Question 3. The Convention was signed by the United States on 
November 23, 2001. Why did it take nearly 2 years until it was 
submitted to the Senate?

    Answer. An extensive interagency review took place, during which 
the detailed package transmitting and explaining the Convention was 
prepared. Among other things, the Convention was carefully reviewed by 
the Justice Department to ensure that the obligations the United States 
would undertake as a Party to the Convention could be met under current 
law.

    Question 4. To date, 38 states have signed the Convention, but only 
six have ratified it. Why have so few states ratified the Convention? 
Has any state that signed it indicated that it is reconsidering its 
support for the Convention?

    Answer. It is not uncommon for states to proceed deliberately in 
the ratification of complex multilateral instruments such as the 
Convention. Many signatories may engage in the same type of extensive, 
interagency review that took place in the United States. In addition, 
we believe the United States becoming a Party may positively influence 
the pace of ratification, as the United States has the largest number 
of computers and the largest amount of computer data of any signatory 
state. The United States becoming a Party will also enable us to press 
more vigorously for other states to join the Convention. To our 
knowledge, no state that has signed the Convention is reconsidering its 
support for the Convention.

    Question 5a. The Convention is open to accession by any state 
provided that there is unanimous consent of the Contracting State.
   Have there been any discussions among the members of the 
        Council or the states that participated in the drafting of the 
        Convention about inviting other states to accede to the 
        Convention? If so, have the United States and the other states 
        discussed criteria for extending such invitations?

    Answer. During the negotiations that led to the Convention, the 
delegations were aware and contemplated that, at the appropriate time, 
states other than those currently eligible to join the Convention would 
be invited to accede to the Convention. Indeed, Article 37 of the 
Convention, patterned on a model clause included in many Council of 
Europe treaties, specifically contemplates accession by other states. 
The negotiators modified the model provision, however, to make explicit 
that no state could be invited to accede to the Convention without the 
unanimous consent of State Parties to the Convention, and not merely 
those State Parties that are members of the Council of Europe. The 
United States would, therefore, as a Party to the Convention, have a 
specific role in the process.
    Although the negotiators did not set out any formal criteria for 
extending invitations, it was discussed generally that the type of 
states receiving invitations would be those that possess the capability 
to render assistance as contemplated by the Convention and adhere to a 
human rights framework comparable to that of members of the Council of 
Europe and other states that participated in the negotiations.

    Question 5b. The Convention is open to accession by any state 
provided that there is unanimous consent of the Contracting State.
   It is anticipated that invitations will be extended to 
        states outside of Europe? If so, which states are likely to be 
        considered?

    Answer. As described in the prior answer, it was contemplated by 
the negotiators, and it is still anticipated, that invitations would be 
extended to states outside of Europe. We are unaware of any discussions 
of specific states to which invitations might be extended.

    Question 5c. The Convention is open to accession by any state 
provided that there is unanimous consent of the Contracting State.
   Is it anticipated that invitations will be extended to 
        states that do not provide for ``adequate protection of human 
        rights and liberties'' as that term is used in Article 15(1)?

    Answer. We are not in a position to predict to which states 
invitations to accede to the Convention will be extended. The issue of 
human rights, however, is one that we anticipate would be considered at 
the time of any potential invitation in connection with this, we note 
that the Statute of the Council of Europe provides that all members 
``must accept the principles of the rule of law and of the enjoyment by 
all persons within its jurisdiction of human rights and fundamental, 
freedoms.'' Similarly, states can obtain observer status at the Council 
of Europe, as the United States has, only if they are willing to accept 
the same principles.

    Question 6. Do the extradition or mutual legal assistance 
provisions of the Convention implicate the President's powers as 
Commander-in-Chief under Article II of the Constitution? Please 
elaborate.

    Answer. The extradition and mutual legal assistance provisions of 
the Convention will be administered by the Executive Branch under the 
supervision of the President. Legal authority for carrying out these 
provisions derives from the clause in Article II of the Constitution 
stating that the President ``shall take Care that the Laws be 
faithfully executed,'' as well as from applicable statutes. The 
Commander in Chief authority of Article II is not necessary for 
implementation of these provisions of the Convention, nor is it 
affected by them.

    Question 7. The United States has mutual legal assistance 
relationships in place with many states in Europe. Of the states that 
have signed, ratified, or acceded to the Convention to date, which 
states do not have a mutual legal assistance relationship with the 
United States?

    Answer. Of the 6 states that have ratified the Convention to date--
Albania, Croatia, Estonia, Hungary, Lithuania, and Romania--the United 
States does not have a mutual legal assistance treaty (MLAT) in force 
with two--Albania and Croatia. Of the 28 European states that have 
signed but not ratified the Convention to date--Armenia, Austria, 
Belgium, Bulgaria, Cyprus, Denmark, Finland, France, Germany, Greece, 
Iceland, Ireland, Italy, Latvia, Luxembourg, Malta, Moldova, 
Netherlands, Norway, Poland, Portugal, Slovenia, Spain, Sweden, 
Switzerland, the former Yugoslav Republic of Macedonia, Ukraine, and 
the United Kingdom--the United States does not currently have an MLAT 
in force with 14--Armenia, Bulgaria, Denmark, Finland, Germany, 
Iceland, Ireland, Malta, Moldova, Norway, Portugal, Slovenia, Sweden, 
and the former Yugoslav Republic of Macedonia. In the absence of a 
treaty, the U.S. has ongoing law enforcement relationships in the field 
of mutual legal assistance in criminal matters with all of the 
signatory states and Parties to the Convention. It should be noted that 
no states have acceded to the Convention.

    Question 8. What steps does the Executive Branch take under 
existing MLATs, or intend to take under the Convention, to prioritize 
foreign requests made that will place production or other burdens on 
private industry?

    Answer. If a requesting state has indicated that its request is 
urgent, the Justice Department will--as it currently does with respect 
to mutual legal assistance and letters rogatory requests--review the 
request, if necessary consult with the requesting state, and determine 
how urgently the request should be executed. The custodian of the data 
sought, in this case generally an Internet Service Provider, will be 
asked to provide the data with the appropriate urgency. We are not 
aware that current volumes of requests are unduly burdening ISPs, and 
do not expect a significant increase in the number of requests as a 
result of United States ratification of the Convention. However, should 
such a situation arise, the Justice Department is prepared to work with 
ISPs to reach acceptable solutions.

    Question 9. The New York Times recently reported on an extradition 
case in the Eastern District of New York (William Glaberson, ``Bowing 
to an Extradition Deal, U.S. Will Forgo Death Penalty,'' June 19, 
2004). The news report suggested that, in this particular case, the 
United States had initially decided not to honor the terms of an 
extradition order from a court in the Dominican Republic that was 
conditioned on the defendant not being subject to the death penalty. 
This matter has implications for many other extradition cases, now and 
in the future. Please describe:
   the circumstances of this matter;
   U.S. policy on commitments made to treaty partners not to 
        seek the death penalty when requested by the treaty partner, 
        including whether the United States has modified that policy in 
        the last 12 months.

    Answer. The article refers to Alejandro De Asa Sanchez, who was 
extradited from the Dominican Republic. Our extradition treaty with the 
Dominican Republic dates from the 1930s, and it contains no provision 
addressing the death penalty. Moreover, in this case, as in similar 
cases, the Government of the Dominican Republic did not seek and the 
United States did not provide an assurance that the death penalty would 
not be sought as a condition of Mr. De Asa Sanchez's extradition. 
However, in this case, as in others of persons extradited from the 
Dominican Republic, the Department of Justice exercised its discretion 
not to seek the death penalty in view of our very active and positive 
extradition relationship with the Dominican Republic and of our 
understanding of the Dominican Republic's concerns that its citizens, 
if extradited, not be subject to the death penalty.
    When the United States provides an assurance to a treaty partner 
that it will not seek the death penalty as a condition of extradition, 
it abides by that condition. This has been and continues to be the 
position of the United States.

    Question 10. What is the scope of the term ``suitable for 
processing'' as used in Article 1(b)? Does it encompass any document 
that may be transmitted via electronic mail?

    Answer. Data ``suitable for processing'' as that term is used in 
Article 1(b), is meant to include data that can be directly processed 
by a computer system--in other words, data in electronic form or stored 
on optical or magnetic media. See Paragraph 25 of the Explanatory 
Report. Information in a form that cannot be directly processed, such 
as printed text or an image on paper, which requires an intermediary 
step such as scanning before it can be processed, is outside the scope 
of the definition.
    Any document transmitted via electronic mail would come within the 
scope of ``data suitable for processing,'' because the electronic mail 
attachments and documents in electronic form are processed and 
transmitted by email servers and clients as part of the normal 
transmission process for electronic mail.

    Question 11. Under Article 2 of the Convention, would the 
transmission of ``cookies'' or ``spyware'' by a Web site to an 
individual computer without the consent of the computer owner 
constitute illegal access? Is such transmission currently a violation 
of U.S. law?

    Answer. ``Cookies'' and ``spyware'' are different, and our answer 
accordingly discusses each concept separately.
    The transmission and receipt of ``cookies'' (small text records 
maintained by a Web browser containing information--e.g., user name, 
viewing preferences--that a Web server has requested be stored so that 
the Web browser may provide it during a subsequent visit to the Web 
site) by themselves would not typically be considered ``illegal access 
without right,'' as noted in Paragraph 48 of the Explanatory Report, as 
cookies are sent as part of established Web browsing protocols and the 
operator of the browser has the ability to reject or delete such 
cookies. Paragraph 38 of the Explanatory Report also notes that 
``legitimate and common activities inherent in the design of networks, 
or legitimate and common operating or commercial practices should not 
be criminalised.'' The normal uses of cookies would fit within these 
principles, and not be considered illegal access under the Convention. 
The transmission and receipt of normal HTTP cookies is not criminalized 
under United States law. See generally In re DoubleClick Inc. Privacy 
Litigation, 154 F.Supp.2d 497 (S.D.N.Y. 2001) (in civil case involving 
Electronic Communications Privacy Act and Computer Fraud and Abuse Act, 
court concluded that use of cookies did not violate either act).
    The general concept of ``spyware'' encompasses a fairly broad range 
of programs installed on computers for various reasons. Indeed, whether 
a program is or is not spyware may be a matter for disagreement between 
program distributors and users. In general, however, if an entity 
causes a program to be installed surreptitiously on a user's computer 
system, whether by exploiting a vulnerability in a system or by 
deceiving the user, that conduct could be punished by current statutes 
that would implement Article 2, 3, 4, or 5 of the Convention, depending 
on the precise behavior of the spyware. For example, if the purpose of 
the spyware is to record keystrokes and transmissions of the user, it 
would be prohibited by statutes implementing Article 3 of the 
Convention (in the United States, the relevant statute would be 18 
U.S.C. Sec. 2511(1)). If the purpose of the spyware is to copy personal 
information from the hard drive of the user and transmit it to the 
distributor, it would likely be prohibited by statutes implementing 
Article 2 of the Convention (in the United States, the relevant statute 
would be 18 U.S.C. Sec. 1030(a)(2)).

    Question 12. What provision or provisions of U.S. law implement 
Articles 2 through 10, and Articles 16 through 21?

    Answer. The following statutes implement the Articles listed. 
Particular facts of cases may implicate additional statutes (for 
example, a computer fraud committed upon a financial institution may 
additionally violate the bank fraud statute, 18 U.S.C. Sec. 1344). The 
following list, however, encompasses the core sections implementing the 
specified Articles.

 
Articles 2, 4, &   18 U.S.C. Sec.  1030;
 5:
Article 3:         18 U.S.C. Sec.  2511;
Article 6:         18 U.S.C. Sec.  1029, 1030, and 2512;
Articles 7 & 8:    18 U.S.C. Sec.  1030 and 1343;
Article 9:         18 U.S.C. Sec.  2251, et seq.;
Article 10:        17 U.S.C. Sec.  501, et seq., and 18 U.S.C. Sec.
                    2318, et seq.;
Articles 16 & 17:  18 U.S.C. Sec.  2703;
Article 18:        18 U.S.C. Sec.  2703 and Federal Rules of Criminal
                    Procedure 6, 17;
Article 19:        Constitution of the United States, Amendment IV,
                    Federal Rule of Criminal Procedure 41, and 18 U.S.C.
                    Sec.  2703;
Article 20:        18 U.S.C. Sec.  3121, et seq.;
Article 21:        18 U.S.C. Sec.  2510, et seq.
 


    Question 13. The commentary in the Secretary's letter accompanying 
the second proposed reservation regarding Article 6 states that 
``United States law does not directly criminalize the possession or 
distribution of data interference and system interference devices.''
   Does U.S. law criminalize the production or sale of data 
        interference or system interference devices? If so, why is the 
        proposed reservation drafted so broadly so as to include such 
        offenses?

    Answer. At present, United States law does not directly criminalize 
the production or sale of data interference or system interference 
devices. Possession or distribution of viruses, distributed denial-of-
service tools, and similar articles is not specifically prohibited 
under United States law, although possession or distribution of access 
and interception devices with intent to defraud or to intercept is 
prohibited (18 U.S.C. Sec. 1029, 2512).
    In appropriate cases, a person developing, possessing, or 
distributing a virus or denial of service tool could be charged with 
either attempting to cause damage or aiding damage to a computer 
system, if the government could prove that the possessor intended to or 
did cause the item to damage a computer system or systems.
    Because no federal statute directly implemented the items covered 
by the reservations, the United States sought and obtained a 
reservation possibility on this issue, and we have drafted and 
submitted to the Senate a proposed reservation that makes clear that 
United States law does not directly include those offenses. If the 
United States were a Party to the Convention and later criminalized the 
possession or distribution of such items, we would have the option to 
withdraw the reservation in whole or in part. The presence of the 
reservation, however, relieves the United States from any obligation to 
so criminalize those acts.

    Question 14. Article 25(4) provides that, ``[e]xcept as otherwise 
specifically provided for in articles in this chapter, mutual 
assistance shall be subject to the conditions provided for by the law 
of the requested party or by applicable mutual assistance treaties . . 
.'' In the view of the executive branch, what are the specific 
exceptions to this proviso that are contained in his chapter?

    Answer. The specific exceptions referred to in Article 25(4) 
(described to some extent in Paragraph 258 of the Explanatory Report to 
the Convention) consist of:
          1. the requirement of Article 25(2) that each Party must 
        provide for the types of cooperation that the other articles 
        require (such as preservation, real time collection of data, 
        search and seizure, and maintenance of a 24/7 network), even 
        when these measures are not already included in the Party's 
        mutual legal assistance laws, treaties or equivalent 
        arrangements;
          2. Article 25(4)'s requirement that cooperation may not be 
        denied as to the offenses set forth in Articles 2-11 on the 
        grounds that the requested Party considers it to be a 
        ``fiscal'' offense, notwithstanding anything to the contrary in 
        a mutual legal assistance law or treaty;
          3. the requirement of Articles 27 and 28 that they are to be 
        applied in lieu of domestic law, where there is no MLAT or 
        equivalent agreement in force between the requesting and 
        requested Parties;
          4. the stipulation in Article 29(3)-(4) that a Party may not 
        refuse to comply with a request for preservation on dual 
        criminality grounds (the possibility of a reservation is 
        provided for as to this requirement).

    Question 15. Please describe the process that the executive branch 
intends to follow if the United States receives requests for assistance 
under Articles 29 through 33.

    Answer. In general, and in accordance with current practice, the 
Department of Justice, Criminal Division, Office of International 
Affairs (OIA), as Central Authority for mutual legal assistance, will 
process incoming mutual legal assistance requests arising under the 
Convention to ensure compliance with applicable legal requirements and 
will oversee execution of requests by United States Attorneys Offices. 
Where particularly rapid action is sought, requests may also be 
submitted to the United States through the 24/7 network contemplated in 
Article 35 of the Convention. At present, the Department of Justice's 
Computer Crime and Intellectual Property Section (CCIPS) acts as the 
point-of-contact for the United States in a similar network of 37 
countries that was originally established by the G8 in 1997, and it is 
contemplated that it would play this role for purposes of Article 35 of 
the Convention. In such cases, CCIPS will work in coordination with OIA 
in reviewing and executing the request. (Note that Article 32 of the 
Convention does not contemplate requests for assistance;)

    Question 16a. The provisions on legal assistance permit a state to 
refuse assistance if it is ``likely to prejudice its sovereignty, 
security, ordre public or other essential interests.''
   Under what circumstances would the United States expect to 
        refuse a request for legal assistance on grounds that it is 
        likely to prejudice essential interests?

    Answer. This type of provision is common to the over forty Mutual 
Legal Assistance Treaties to which the United States has become a party 
in recent decades. The administration considers this provision to 
authorize the denial of assistance where, for example, providing the 
assistance would impinge on United States Constitutional protections, 
such as free speech, or jeopardize national security for any reason. 
The Department of Justice will carefully review each request to 
determine the potential for abuse, and will make a determination 
whether to deny or condition assistance.

    Question 16b. The provisions on legal assistance permit a state to 
refuse assistance if it is ``likely to prejudice its sovereignty, 
security, ordre public or other essential interests.''
   The standard of the provision is ``likely to prejudice'' the 
        particular interest, not that it is certain to do so. What is 
        the process for making such a determination?

    Answer. As previously stated, similar provisions appear in over 
forty bilateral and multilateral treaties providing for mutual legal 
assistance in criminal matters, in which the Department of Justice, 
Criminal Division, Office of international Affairs (OIA), acts as 
Central Authority. OIA will also be responsible for reviewing formal 
mutual legal assistance requests arising under the Convention. As now, 
the facts and charges on which requests are based will be scrutinized 
carefully, and OIA will consult with relevant Department of Justice 
components and other agencies, to ensure that assistance is not 
provided in inappropriate cases. This standard provides OIA with 
discretion to refuse assistance in cases such as those described in 
response to the prior question.

    Question 16c-1.The provisions on legal assistance permit a state to 
refuse assistance if it is ``likely to prejudice its sovereignty, 
security, ordre public or other essential interests.''
   Similar provisions are found in other bilateral mutual legal 
        assistance treaties.
          1. How often does the United States invoke this sort of 
        provision as a basis for refusing to provide assistance? Please 
        provide examples.

    Answer. The United States rarely, if ever, has to formally invoke 
such a provision as a basis for refusing to provide assistance, but we 
have denied assistance or persuaded foreign states not to make formal 
requests where, for example, the implementation of the request would 
impinge on First Amendment protections. Our experience is that other 
countries are often aware of our Constitutional protections and 
therefore either consult with us prior to making a request that is 
likely to be refused or generally avoid making requests to the United 
States that would implicate such protections. In other cases, other 
grounds for refusal may be invoked.

    Question 16c-2. The provisions on legal assistance permit a state 
to refuse assistance if it is ``likely to prejudice its sovereignty, 
security, ordre public or other essential interests.''
   Similar provisions are found in other bilateral mutual legal 
        assistance treaties.
          2. Would the United States refuse assistance under the 
        Convention in a case such as Yahoo!, Inc. v. La Ligue Contre le 
        Racisme et L 'Antisemitisme, 169 F. Supp.2d 1181 (N.D. Cal. 
        2001)?

    Answer. While each case will turn on its own facts, Yahoo is an 
example of a case in which the U.S. would refuse assistance.

    Question 16d. The provisions on legal assistance permit a state to 
refuse assistance if it is ``likely to prejudice its sovereignty, 
security, ordre public or other essential interests.''
   Some states that have signed the Convention do not fully 
        respect civil liberties. For example, the State Department's 
        most recent country reports on human rights indicates that the 
        government of Moldova interfered with freedom of the press in a 
        variety of ways: ``the Government sometimes restricted these 
        rights [of freedom of the press], applying the electoral law, 
        the Civil Code, and a calumny law . . .'' Given that the 
        Convention does not require dual criminality for the provision 
        of legal assistance, how does the executive branch expect to 
        respond to requests for assistance from nations that do not 
        respect fundamental rights and which seek to use the Convention 
        to suppress those rights?

    Answer. The Convention need not have a dual criminality requirement 
to fully authorize the United States to protect freedom of the press. 
As stated above, assistance can be denied on the basis of the 
provisions of the Convention, such as the grounds cited in the question 
or the political offense provisions of Article 27(4), as well as on 
grounds currently available pursuant to applicable treaty or domestic 
law. The executive branch, through the Department of Justice, expects 
to address requests for assistance on an individual basis. The 
Department of Justice will carefully review each request, regardless of 
the country from which it comes, to ensure that compliance with it 
would not impinge on U.S. fundamental principles and policy, and that 
U.S. implementation of foreign requests would not be inconsistent with 
relevant Constitutional protections.

    Question 17. Article 33(1) states that it shall be governed ``by 
the conditions and procedures provided for under domestic law.'' By 
contrast, Article 34 states that assistance shall be provided ``to the 
extent permitted under their applicable treaties and domestic law.'' Is 
there a reason that the language in the two provisions is different? Is 
not Article 33 to be governed by any applicable mutual legal assistance 
treaty? If not, why not?

    Answer. Article 33 imposes a categorical obligation to provide 
assistance to other Parties with respect to the real time collection of 
traffic data, while Article 34 does not provide a general obligation to 
assist another Party with respect to interception of content data.
    Each Party must have the power to provide the form of cooperation 
set forth in Article 33 to other Parties; however, the drafters 
recognized that each country would specify the conditions under which 
cooperation would be provided in its ``domestic law.'' The reference to 
``domestic law'' may include application of conditions that may be 
provided for by treaty; in this regard, see Paragraph 295 of the 
Explanatory Report to the Convention.
    In contrast, with respect to interception of content of 
communications under Article 34, the drafters recognized that 
international cooperation of this kind may not be available at all, at 
least in some circumstances, under some legal regimes (such as that of 
the United States). Accordingly, there is no general obligation to 
provide this form of cooperation; rather, assistance is available only 
``to the extent'' the treaties and laws of the requested state provide 
for it.

    Question 18. The amendment processed under Article 44 provides for 
proposed amendments to be reviewed by a committee of experts and 
approved by the Committee of Ministers, after ``consultation with the 
non-member States Parties.'' As a non-member of the Council of Europe, 
would the United States have only this consultative role in review and 
approval of proposed amendments? Is there an understanding between COE 
members and non-members who participated in the elaboration of the 
Convention about the nature and scope of this consultation?

    Answer. Under Article 44 of the Convention, the United States, if 
it became a Party to the Convention, would have two opportunities to 
review proposed amendments to the Convention. First, as noted in the 
question, States Parties that are not members of the Council of Europe 
would be consulted by the Council of Europe Committee of Ministers 
before that Committee adopted any amendment. In addition, as provided 
in Article 44(5) of the Convention, any amendment adopted by the 
Committee of Ministers can come into effect only after all Parties to 
the Convention have indicated their acceptance of the amendment. 
Therefore, if the United States were a Party to the Convention, no 
amendment could be adopted without its consent.

                                 ______
                                 

Responses of Samuel M. Witten and Bruce Swartz to Additional Questions 
        for the Record Submitted by Senator Joseph R. Biden, r.

      questions applicable generally to the un convention against 
 transnational organized crime and protocols on trafficking in persons 
             and smuggling of migrant (treaty doc. 108-16)
    Question 1. Are there any related exchange of notes, official 
communications, or statements of the U.S. negotiating delegation not 
submitted to the Senate with regard to the Convention or the two 
protocols that would provide additional clarification of the meaning of 
terms of the Convention or the Protocols?

    Answer. No. The meaning of terms used in the Convention and 
Protocols is governed in the first instance by the definitions provided 
in those instruments, as well as by their context in the Convention. In 
addition, Interpretive Notes for the official records (travaux 
preparatoires) serve as a supplemental means of interpretation of 
certain terms in the Convention and Protocols. Additional perspective 
on the meaning of terms is provided in the Department of State's letter 
of submittal, which sets forth an article-by-article analysis.

    Question 2. The Convention and Protocols were signed on December 
13, 2000. They were submitted to the Senate on February 23, 2004.
          a. What was the cause of the delay in submitting the treaties 
        to the Senate?

    Answer. The interval between United States signature of the 
Convention and Protocols and their submission to the Senate for advice 
and consent to ratification results from their complexity and the need 
for extensive interagency discussion. Each instrument contains, among 
other things, detailed criminalization obligations that interact in 
complex ways with U.S. Federal and state criminal law. As a result, the 
Department of Justice undertook systematic research to ascertain 
whether existing criminal laws in the United States were adequate to 
satisfy fully Convention and Protocol obligations, and the results of 
their inquiry required extensive subsequent consultation with the 
Department of State. Since certain of the criminalization obligations 
relate to subject-matter which is addressed in state criminal law, 
questions of federalism arose in these discussions, and ultimately a 
reservation and understanding relating to particular articles of the 
main Convention and Trafficking Protocol was prepared.

        b. Was there any significant opposition within the executive 
        branch to submission of the Convention or the Protocols to the 
        Senate?

    Answer. The administration fully supports ratification of the 
Convention and the Protocols.

    Question 3. What is the view of the executive branch of the 
authoritative nature of the Interpretive Notes for the official records 
(travaux preparatoires) of the negotiation of the Convention and the 
Protocols thereto (UN document A/55/383/Add.1, November 3, 2000)?

    Answer. The Interpretive Notes for the official records (travaux 
preparatoires) serve to preserve certain points relating to articles of 
the instruments that are subsidiary to the text but nonetheless of 
potential interpretive importance. In accordance with customary 
international law, as reflected in Article 32 of the Vienna Convention 
on the Law of Treaties, preparatory work such as that memorialized in 
the Interpretive Notes may serve as a supplementary means of 
interpretation, if an interpretation of the treaty done in good faith 
and in accordance with the ordinary meaning given to the terms of the 
treaty results in ambiguity or is manifestly absurd. Thus, the 
Interpretive Notes, while not binding as a matter of treaty law, could 
be important as a guide to the meaning of terms in the Convention and 
Protocols.

    Question 4. A third protocol was concluded in connection with the 
Organized Crime Convention related to the illicit manufacturing and 
trafficking in firearms. What is the position of the executive branch 
on whether the United States should become a party to that Protocol? If 
the administration supports doing so, when will it be submitted to the 
Senate?

    Answer. Like many other countries, the United States has focused 
first on the Convention and the Trafficking in Persons and Migrant 
Smuggling Protocols, which were finished a year before the Firearms 
Protocol and were signed by the U.S. and over a hundred other countries 
at a high-level signing ceremony. The administration is reviewing the 
Firearms Protocol in order to determine whether to propose that the 
United States accede to it.
   questions on the convention against transnational organized crime 
                          (treaty doc. 108-16)
    Question 1. What Federal statutes implement the obligations of 
Articles 5, 6, 8 and 23?

    Answer. With respect to Article 5 (criminalization of participation 
in an organized criminal group), the key federal statute implementing 
paragraph (a)(1) is 18 U.S.C. Sec. 371, which establishes criminal 
liability for conspiracy to commit any Federal offense. With respect to 
paragraph (1)(b), 18 U.S.C. Sec. 2 establishes criminal liability for 
aiding and abetting the commission of a Federal offense. See also 18 
U.S.C. Sec. 1961 et seq. (RICO).
    With respect to Article 6 (criminalization of laundering of 
proceeds of crime), the applicable Federal statutes are 18 U.S.C. 
Sec. Sec. 1956 and 1957.
    With respect to Article 8 (criminalization of corruption), 
paragraph 1 is implemented through a variety of Federal statutes, 
including 18 U.S.C. Sec. 201 (bribery), 18 U.S.C. Sec. 1341 et seq. 
(mail and wire fraud), 18 U.S.C. Sec. 1951 (Hobbs Act), and 18 U.S.C. 
Sec. 1961 et seq. (RICO). While paragraph 2 is not mandatory, U.S. law 
covers corrupt acts involving foreign or international officials in a 
number of circumstances, in particular under the Foreign Corrupt 
Practices Act (15 U.S.C. Sec. 78 dd-1, et seq.). Paragraph 3, on 
accomplice liability, is implemented by 18 U.S.C. Sec. 2. With respect 
to Article 23 (criminalization of obstruction of justice), the 
applicable Federal statute implementing paragraph (a) is 18 U.S.C. 
Sec. 1512(b).
    With respect to paragraph (b), the applicable Federal statute is 18 
U.S.C. Sec. 1503.

    Question 2. Article 6(1) provides that a State Party shall adopt 
laws ``in accordance with fundamental principles of its domestic law.'' 
Article 6(1)(b) further provides that laws enacted pursuant to that 
subparagraph shall be ``subject to the basic concepts of its legal 
system.'' What is the difference between these two concepts?

    Answer. The terms ``fundamental principles of its domestic law'' 
and ``basic concepts of its legal system'' are conceptually similar. 
However, a structural difference between the two clauses is that 
``subject to basic concepts of its legal system'' in Article 6(1)(b) 
enables a State Party, without a reservation, to decide not to apply 
that paragraph, should it be deemed incompatible with such basic 
concepts. By contrast, ``in accordance with fundamental principles of 
its domestic law'' in the chapeau of Article 6(1) does not allow a 
State Party to exempt itself from obligations in 6(1)(a); instead, it 
sets a parameter for implementation of the obligation to criminalize 
the laundering of the proceeds of crime.

    Question 3. What is the purpose of Article 6(2)(e)?

    Answer. For a few States, it is fundamental that a person who 
commits the object crime, and thereby obtains proceeds from it, cannot 
also be prosecuted for laundering the proceeds of that crime. These 
States required Article 6(2)(e) to make clear that their legal approach 
was consistent with the Convention.

    Question 4. Does the federalism reservation need to apply to 
Article 8? Does not every state criminalize bribery of public officials 
or solicitation or acceptance of bribes by public officials?

    Answer. Article 8(1) covers, in essence, the offer or acceptance by 
a public official of ``an undue advantage, for the official himself or 
herself or another person or entity.'' In reviewing state bribery 
statutes, it appeared to us that the laws of one or more states may not 
be in full compliance with the particular way this offense was defined 
in the Convention. For example, one or more state bribery laws may not 
reach advantages that benefit third parties, or they may not reach all 
conceivable non-pecuniary types of benefits. Given such variations in 
state law, we determined that the federalism reservation should be 
applied to Article 8 as well as the other criminalization provisions of 
the Convention.

    Question 5. What Federal statutes implement the provisions of 
Articles 12 and 13?

    Answer. Article 12 (1) through (5) is implemented principally 
through 18 U.S.C. Sec. Sec. 981-983. U.S., law, specifically 18 U.S.C. 
Sec. Sec. 981 and 982, authorizes the civil and/or criminal forfeiture 
of property in the United States that is derived from, or traceable to, 
the proceeds of offenses that constitute ``specified unlawful 
activities'' under the U.S. money laundering statute or property that 
is involved in a money laundering offense. See 18 U.S.C. 
Sec. 1956(c)(7)(B). There are also many other Federal statutes 
providing for forfeiture of certain types of property relating to the 
commission of a crime under specifically defined circumstances. 
Paragraph 6 is implemented through compulsory process available 
pursuant to the Right to Financial Privacy Act, the Federal Rules of 
Criminal Procedure, the Federal Rules of Evidence and general U.S. 
jurisprudence. The remaining provisions of Article 12 contain no 
specific obligations.
    Article 13 (1) through (2) is implemented through 18 U.S.C. 
Sec. Sec. 981, 982, 983 and 28 U.S.C. Sec. 2467. To preserve the 
availability of assets pending forfeiture, the United States can 
restrain assets located in the United States that are subject to 
forfeiture under foreign law either by seeking a restraining order from 
the court or by registering and enforcing those foreign restraining 
orders that have been certified by the Attorney General. The procedure 
for obtaining a restraining order is set forth at 18 U.S.C. 
Sec. 983(j), which provides for a contested hearing with notice to 
persons having an interest in the property. The restraining order may 
remain in effect until the conclusion of the foreign proceedings and 
the final forfeiture judgment is transmitted for recognition. 
Notwithstanding this provision, U.S. prosecutors can obtain an ex parte 
order from the court for the initial restraint at the request of a 
foreign country against assets of a person arrested or charged in a 
foreign country in connection with an offense that would give rise to 
the forfeiture of property in the United States pending the arrival of 
evidence from the foreign country to support probable cause for 
forfeiture under 18 U.S.C. Sec. 981 or under the Controlled Substances 
Act. See 18 U.S.C. Sec. 981(b)(4)(A).
    Pursuant to 28 U.S.C. Sec. 2467, the United States can now seek the 
registration and enforcement of foreign forfeiture judgments rendered 
in connection with any violation of foreign law that would constitute a 
violation of an offense for which property could be forfeited under 
Federal law if the offense were committed in the United States.
    Paragraph (3) of Article 13 will be implemented through application 
of U.S. Mutual Legal Assistance Treaties, and the self-executing 
provisions of Article 18 of the Convention. The remaining provisions of 
Article 13 contain no specific obligations.

    Question 6. Is there authority under current U.S. law to provide 
confiscated funds as envisioned by Article 14(3)(a)?

    Answer. Article 14(3)(a) provides that a State Party ``may give 
special consideration to'' contributing the value of confiscated 
property to the United Nations for purposes of combating organized 
crime, but does not go beyond suggesting the possibility of this step. 
While there is statutory authority to share the proceeds of successful 
forfeiture actions with countries that made possible or substantially 
facilitated the forfeiture of assets under United States law (18 U.S.C. 
Sec. Sec. 981-982, 21 U.S.C. Sec. 881(e)(1)(E), and 31 U.S.C. 
Sec. 9703(h)(1)), there is no statutory authority for the United States 
to make such a contribution to the United Nations.

    Question 7. Article 16(1) states that the article applies to 
``offenses covered by the Convention'' or in cases where an offense 
referred to in Article 3(1) (a) or (b) involves an organized criminal 
group. By its terms, however, Article 3 requires that any offense be 
``transnational in nature'' and ``involve[] an organized criminal 
group.'' What, then, is the scope of Article 16? Does it exclude the 
transnational element?

    Answer. Extradition under the Convention may be sought not only for 
the offenses it requires that parties criminalize but also for 
``serious crime'' generally, i.e. offenses punishable by at least four 
years' imprisonment. At the same time, Article 16 is subject to the 
general scope provision of the Convention (Article 3), which requires 
that an extraditable offense be transnational in nature and involve an 
organized criminal group. Article 16(1) expressly recites the 
requirement that an organized criminal group be involved in the offense 
in order for it properly to be the subject of an extradition request 
under the Convention.
    Article 16(1) further provides that the transnationality 
requirement is met if ``the person who is the subject of the request 
for extradition is located in the territory of the requested State 
Party, provided that the offense for which extradition is sought is 
punishable under the domestic law of both the requesting State Party 
and the requested State Party.'' In other words, the transnationality 
element is supplied by the fact of a request from one sovereign state 
to another for a fugitive whose alleged offense satisfies the dual 
criminality requirement customary in the extradition context.

    Question 8. Is Article 16(9) a general provision on detention of a 
suspect who is sought for extradition, or is it considered to also 
authorize provisional arrest? What provisions of U.S. law are 
applicable under this Article?

    Answer. For those countries that will utilize the Convention as an 
international legal basis for extradition, Article 16 incorporates all 
of the essential provisions of an extradition treaty. Among these is a 
general authorization in Article 16(9) that a requested State Party 
may, in certain circumstances including urgency, and ``subject to the 
provisions of its domestic law and its extradition treaties,'' detain a 
person whose extradition is sought. This formulation is intended to 
enable execution of both a provisional arrest request and a request for 
arrest contained in a formal extradition submission. Since the United 
States will continue to extradite only pursuant to its bilateral 
extradition treaties (as amended by multilateral instruments such as 
the Convention), it will not rely on Article 16(9) as an international 
legal basis for detention of a fugitive. U.S. law authorizing the 
arrest and detention of a fugitive pursuant to a request made under a 
bilateral extradition treaty is found at 18 U.S.C. Sec. 3184 et seq.

    Question 9. Article 18, paragraph 11 requires informed consent of a 
prisoner before transfer to another state party. Paragraph 12 provides 
a means for bringing charges against a person transferred if the state 
party from which the person is transferred consents. When would such 
consent for an additional prosecution from the state party be sought? 
Is it prior to obtaining the informed consent of the prisoner for the 
transfer itself?

    Answer. Article 18, paragraphs 10-12, collectively provide a 
framework for transferring a detained person from one State Party to 
another in order for the Requested State to obtain information or 
evidence from that person. It is not a substitute for extradition. 
Substantially similar provisions are included in a number of 
multilateral law enforcement conventions, including the Inter-American 
Convention Against Terrorism and the UN Conventions for the Suppression 
of Terrorist Bombings and Financing of Terrorism. U.S. bilateral mutual 
legal assistance treaties also include provisions of this type.
    As a rule, the consent of a transferring state party to the 
bringing of charges in the state of transfer would be sought prior to 
the transfer taking place. There may, however, be rare cases in which 
the agreement of the transferring state is sought and provided 
subsequently, for example if completion of service of the prisoner's 
sentence occurred during the transfer, and he was released and remained 
in the state to which he had been transferred.
    Consent of the prisoner under Article 18(10) to the bringing of 
unrelated charges typically also would be obtained prior to transfer; a 
prisoner may, of course, waive this right.

    Question 10. Article 18(21)(d) permits a state party to refuse a 
request for legal assistance on ground that it would ``be contrary to 
the legal system of the requested State party relating to mutual legal 
assistance for the request to be granted.'' Please provide examples of 
cases where the United States would likely refuse a request for 
assistance based on this provision.

    Answer. As noted in the article-by-article analysis contained in 
the Letter of Submittal, the grounds for refusal permitted by Article 
18(21) collectively are broader than those generally included in U.S. 
bilateral MLATs. Article 18(21)(d) itself is not found in our bilateral 
MLATs. Rather, it is drawn verbatim from the analogous mutual legal 
assistance provisions of the 1988 UN Drug Convention (Article 
7(15)(d)), to which the United States is a party and which in numerous 
respects served as a model multilateral criminal law instrument for the 
negotiators of the TOC Convention.
    The Interpretive Notes to the TOC Convention state that ``contrary 
to the legal system'' is ``not intended to encourage refusal of mutual 
assistance for any reason, but is understood as raising the threshold 
to more essential principles of domestic law of the requested State.'' 
While the Interpretive Notes do not further specify what ``more 
essential principles'' of domestic law are, the official Commentary on 
the 1988 Drug Convention (E/CN.7/590) cites as examples ``where the 
offender may be subject to cruel, inhuman or degrading penalties or to 
capital punishment, or to trial by special ad hoc tribunals.'' We are 
not aware of instances where the United States has utilized this ground 
for refusal under the 1988 Drug Convention.

    Question 11. Article 30(2)(c) calls on State Parties to make 
voluntary contributions to a UN funding mechanism for the purpose of 
providing technical assistance to developing countries and countries 
with economies in transition. Does the executive branch plan to request 
funds from Congress to make such contributions and at what level?

    Answer. The executive branch's single greatest priority for the 
work of the Crime Prevention and Criminal Justice Program of the United 
Nations Office on Drugs and Crime (UNODC) is assisting with the 
ratification and implementation of the TOC and its protocols on 
trafficking in persons and smuggling of migrants. UNODC initiated a 
program devoted to this technical assistance work in 2001, and the 
Department of State has contributed a total of $1,475,000 (from FY'01 
and FY'02) to support these efforts, along with expertise from within 
the Department of Justice. The Department of State's Bureau for 
International Narcotics and Law Enforcement Affairs anticipates 
providing additional funds to UNODC for this project in the future, out 
of its International Narcotics Control and Law Enforcement account, in 
amounts to be determined as part of the Bureau's annual process of 
earmarking its annual pledges to UNODC. In keeping with longstanding 
practice, the Department will inform Congress of all amounts earmarked 
for this project.

    Question 12a. The Secretary's letter of submittal recommends a 
declaration on non-self-execution, except for Articles 16 and 18. It 
then states that ``Article 16 and 18 of the Convention contain detailed 
provisions on extradition and legal assistance that would be considered 
self-executing in the context of normal bilateral extradition practice. 
It is therefore appropriate to except those provisions from the general 
understanding that the provisions of the Convention are non-self-
executing.''
   Is this statement not contradicted, in part, by the 
        assertion, also made in the Secretary's letter, that the 
        Convention ``does not provide a substitute international legal 
        basis for extradition, which will continue to be governed by 
        U.S. domestic law and applicable bilateral extradition 
        treaties.''? Similarly, is it not contradicted, in part, by a 
        statement in the letter that where other MLATs exist between 
        the parties, ``they shall be utilized, and the Convention does 
        not affect their provisions.''?

    Answer. The statement that the provisions of Articles 16 and 18, 
unlike the other provisions of the Convention, are self-executing is 
not contradicted by the other quotations cited in the question. With 
respect to extradition, Article 16(4) of the Convention allows but does 
not require State Parties to consider the Convention the legal basis 
for extradition in respect of any offense to which it applies. The 
United States would not use the Convention as an independent legal 
basis for extradition from the United States in cases where the United 
States has no extradition treaty with another State Party seeking 
extradition. We will continue our practice of extraditing persons under 
the authority of bilateral extradition treaties, and will deem the 
offenses under this Convention to be extraditable offenses under such 
treaties as are in force between State Parties to the Convention.
    With respect to mutual legal assistance, Article 18(7) of the 
Convention sets forth the rule that the mutual legal assistance 
provisions of the Convention apply where the State Parties in question 
do not have a bilateral mutual legal assistance treaty. Where, however, 
a bilateral mutual legal assistance treaty is in force between State 
Parties, the provisions of that treaty shall apply unless the State 
Parties agree otherwise. State Parties therefore may by express 
agreement, but are not required to, apply the mutual legal assistance 
provisions of the Convention in situations in which a bilateral mutual 
legal assistance treaty is in force.

    Question 12b. How is Article 18 of the Convention related to 
``normal bilateral extradition practice,'' as is set forth in the 
chapeau of the question above?

    Answer. Article 18 of the Convention is not related to ``normal 
bilateral extradition practice,'' but rather to normal bilateral mutual 
legal assistance practice. The quoted excerpt of the submittal letter 
should have read as follows: ``Article 16 and 18 of the Convention 
contain detailed provisions on extradition and legal assistance that 
would be considered self-executing in the context of normal bilateral 
extradition and mutual legal assistance practice.''
 questions applicable to trafficking in persons protocol (treaty doc. 
                                108-16)
    Question 1. In Article 3(a), what does the term ``for the purpose 
of exploitation'' mean?

    Answer. Article 3(a) of the Protocol contains further explanation 
of what the negotiators meant by this phrase: ``Exploitation shall 
include, at a minimum, the exploitation of the prostitution of others 
or other forms of sexual exploitation, forced labour or services, 
slavery or practices similar to slavery, servitude or the removal of 
organs.''

    Question 2. The Secretary's letter of submittal states that the 
negotiating record sets forth six statements intended to assist in the 
interpretation of the definition of ``trafficking in persons.'' Please 
provide these statements.

    Answer. The six statements are part of the notes for the offidial 
records (travaux preparatoires), which were provided to the Senate 
together with the Secretary's letter of submittal. See paragraphs 63-68 
on pages 12-13 of the travaux preparatoires. The statements read as 
follows:

        Article 3: Use of terms

        Subparagraph (a)

          63. The travaux preparatoires should indicate that the 
        reference to the abuse of a position of vulnerability is 
        understood to refer to any situation in which the person 
        involved has no real and acceptable alternative but to submit 
        to the abuse involved.
          64. The travaux preparatoires should indicate that the 
        Protocol addresses the exploitation of the prostitution of 
        others and other forms of sexual exploitation only in the 
        context of trafficking in persons. The terms ``exploitation of 
        the prostitution of others'' or ``other forms of sexual 
        exploitation'' are not defined in the Protocol, which is 
        therefore without prejudice to how States Parties address 
        prostitution in their respective domestic laws.
          65. The travaux preparatoires should indicate that the 
        removal of organs from children with the consent of a parent or 
        guardian for legitimate medical or therapeutic reasons should 
        not be considered exploitation.
          66. The travaux preparatoires should indicate that where 
        illegal adoption amounts to a practice similar to slavery as 
        defined in article 1, paragraph (d), of the Supplementary 
        Convention on the Abolition of Slavery, the Slave Trade, and 
        Institutions and Practices Similar to Slavery, it will also 
        fall within the scope of the Protocol.

        Subparagraph (b)

          67. The travaux preparatoires should indicate that this 
        subparagraph should not be interpreted as restricting the 
        application of mutual legal assistance in accordance with 
        article 18 of the Convention.
          68. The travaux preparatoires should indicate that 
        subparagraph (b) should not be interpreted as imposing any 
        restriction on the right of accused persons to a full defense 
        and to the presumption of innocence. They should also indicate 
        that it should not be interpreted as imposing on the victim the 
        burden of proof. As in any criminal case, the burden of proof 
        is on the State or public prosecutor, in accordance with 
        domestic law. Further, the travaux preparatoires will refer to 
        article 11, paragraph 6, of the Convention, which preserves 
        applicable legal defences and other related principles of the 
        domestic law of States Parties.

    Question 3. The Secretary's letter of submittal, in discussing the 
term ``other forms of sexual exploitation'' references state laws that 
proscribe a variety of forms of sexual abuse. Do these laws have a 
trafficking element? If not, how do they meet the obligation to 
criminalize trafficking in persons for the purpose of other forms of 
sexual exploitation? Please elaborate.

    Answer. With respect to criminalization of trafficking for the 
purpose of ``other forms of sexual exploitation,'' Federal law 
prohibits interstate travel or transportation of a person, and 
enticement or inducement for the purpose of committing any criminal 
sexual act. It is thus fully consistent with the offense established in 
the Trafficking Protocol. The State laws addressed in the Secretary's 
letter of submittal also proscribe a variety of forms of sexual abuse, 
as well as attempted commission of such offenses. However, these laws 
generally do not have an element of recruitment or transportation. As 
explained in the transmittal package, there may therefore be scenarios 
in which the act of trafficking a person for purposes of sexual 
exploitation would not be punishable under the relevant state criminal 
law governing attempted or completed sex abuse. (For example, the act 
of recruiting a person for purposes of sexual exploitation may not 
constitute a criminal offense under the laws of one or more states.) 
Accordingly, we have proposed the federalism reservation to address the 
possibility that there may be purely local crimes that would not be 
covered by the Federal law, and would also not be covered by state 
sexual abuse laws.

    Question 4. The Secretary's letter of submittal, in discussing the 
obligation to prohibit the trafficking and attempted trafficking in 
persons for the removal of organs, discusses 42 U.S.C. 274e and other 
applicable Federal statutes on fraud, kidnapping, and other laws, 
stating that these ``likely cover[] most instances of such trafficking 
that could arise.'' But the letter recognizes that the ``express 
obligation under the Protocol is nonetheless broader.'' The proposed 
reservation that follows this discussion indicates it is necessary, 
however, only to address rare offenses of a ``purely local character.'' 
Are there not also some gaps in Federal law that are not addressed by 
the proposed reservation?

    Answer. There is a theoretical possibility that a person could be 
viewed as committing an offense under the Protocol, without such 
activity satisfying the elements of an attempt or conspiracy under U.S. 
Federal or state law. However, after careful examination of relevant 
law by the Justice Department, we concluded that the possibility was so 
remote and theoretical that a reservation was not needed.

    Question 5. The proposed reservation related to federalism appears 
to [be] broader than any reservation entered to date by any State Party 
to the Protocol. Prior to recommending this reservation, did the 
executive branch assess the possible reaction of other States Parties 
to this proposed reservation? If so, what was the result of such an 
assessment?

    Answer. The proposed federalism reservation to the Trafficking in 
Persons Protocol is analogous to that also proposed with respect to the 
Transnational Organized Crime Convention. It explains the United States 
Federal criminal law relating to trafficking in persons, and notes that 
this Federal law will be the ``principal legal regime'' for combating 
this offense. The proposed reservation also describes the very limited 
circumstances in which state criminal law may be applicable, and the 
conceivable scenario where there is no applicable Federal or state law.
    During the course of negotiations on both the Convention and 
Protocols, the U.S. delegation informed other delegations about the 
nature of our legal system, in which both Federal and state substantive 
criminal law may be relevant in order to implement a criminalization 
obligation established in an international instrument. The U.S. system 
is virtually unique in this respect, even among Federal states. We 
believe that this effort caused many foreign governments to understand 
the likelihood that the United States would require federalism 
reservations in connection with certain Convention and Protocol 
criminalization obligations.
    The administration, in preparing the proposed federalism 
reservations, considered the likely reaction of other State Parties. 
While it is impossible to predict every foreign government's reaction 
in advance, we believe that the foundation laid during negotiations, as 
well as the somewhat detailed explanation in the text of the 
reservations of the nature of U.S. federalism, as well as the 
reservations' very limited scope, will assist foreign understanding and 
acceptance.

    Question 6. What is the nature of the obligation of Article 6(6)? 
Will it require the United States to extend the victims compensation 
law to U.S. victims of trafficking who are outside the United States?

    Answer. Under Article 6(6), States Parties are required to ensure 
the possibility that victims obtain compensation for damages suffered. 
The United States already has laws in place that are adequate to meet 
this requirement. Under 18 U.S.C. Sec. 1593, Federal courts must, in 
sentencing defendants convicted of trafficking offenses, order that 
defendants pay restitution to the victim that is equal to the full 
extent of the victim's losses. In addition, as a general matter, the 
U.S. legal system affords victims of crime the possibility of bringing 
a civil suit for damages against the perpetrators of the harm. The 
entire range of trafficking behaviors is captured under State tort law, 
under which a victim may recover damages. Finally, section 4(a)(4) of 
the Trafficking Victims Protection Reauthorization Act of 2003 created 
a civil action provision that expressly allows trafficking victims to 
sue their traffickers in an ``appropriate'' Federal district court. 
Under that provision, victims outside the United States could bring 
suit if their victimization constituted an offense under U.S. law, 
which would require that some part of the offense occurred in the U.S. 
Nothing in the Protocol suggests that trafficking cases entirely 
unrelated to the U.S. are required to be actionable in the United 
States.

    Question 7. Article 8(2) requires that return of a victim of 
trafficking in persons be done ``with due regard for the safety of that 
person and for the status of any legal proceedings related to the fact 
that the person is a victim of trafficking.'' How will the executive 
branch determine whether it is safe for the victim to their country of 
origin?

    Answer. U.S. investigating authorities and immigration officials 
will consider all the evidence in the case, including information 
provided by the victim and any victim advocate involved in the case, 
the location of the suspected traffickers (including associates who may 
be located elsewhere), and the ability of authorities and non-
governmental organizations in the source country to offer services and 
protection to the victim. The U.S. embassies in the source countries 
may also be asked to provide relevant information. Of course, the 
Trafficking Victims Protect Act, 22 U.S.C. Sec. 7101 et seq., provides 
for the possibility of continued presence in the United States for 
victims of severe forms of trafficking who can assist in the 
investigation and prosecution, or a visa for trafficking victims who 
are victims of a severe form of trafficking, who have complied with any 
reasonable request for assistance in the investigation (or are younger 
than 18), and who would face extreme hardship by returning home.

    Question 8. With regard to Article 8(6), are there any such 
agreements in force for the United States? Please elaborate.

    Answer. The United States has no bilateral or multilateral 
agreements or arrangements specific to trafficking victims. The United 
States does have more general agreements with, for example, the 
Dominican Republic, governing the return of those countries' nationals 
apprehended at sea, and may enter similar agreements with other 
countries in the future. The U.S. also has nonbinding arrangements on 
repatriation, including those with Canada and Mexico, as well as local 
arrangements with particular Mexican jurisdictions, which set forth 
procedures to be followed in repatriating those countries' citizens. 
All of these agreements are consistent with the obligations set forth 
in Article 8.
questions applicable to migrant smuggling protocol (treaty doc. 108-16)
    Question 1. What Federal statutes will implement the obligations of 
Article 6?

    Answer. The U.S. will implement its obligations under Article 6 
through enforcement of the following statutes:
    8 U.S.C. Sec. 1324(a)(1)(A)(i) (knowingly bringing an alien to 
other than a designated port of entry); 8 U.S.C. Sec. 1324(a)(2)(B)(ii) 
(bringing in any manner an alien without prior official authorization 
for commercial advantage or private financial gain); 18 U.S.C. 
Sec. 1543 (falsely making passports); 18 U.S.C. Sec. 1546(a) (falsely 
making various visas and entry and residence documents); 18 U.S.C. 
Sec. 1028(a)(1) (producing false U.S. identity documents in a way that 
affects interstate commerce); 18 U.S.C. Sec. 1542 (``securing'' a 
passport by false statement); 18 U.S.C. Sec. 1028(a)(4) (possessing a 
fraudulent passport with the intent to defraud the U.S.); 18 U.S.C. 
Sec. 1546(a) (obtaining false visas and other travel documents); 18 
U.S.C. Sec. 1028(a)(4) (possession of an identity document with intent 
is to defraud the U.S. government); 18 U.S.C. Sec. 1542 (``furnishes to 
another'' a passport secured by fraudulent statement); 18 U.S.C. 
Sec. 1544 (``furnishes, disposes of, or delivers a passport to any 
person, for use by another than the person for whose use it was 
originally issued and designed''); 18 U.S.C. Sec. 1028 (``transfer'' of 
a false or fraudulently produced identity document); 8 U.S.C. 
Sec. 1324(a)(1)(A)(iii) (concealing, harboring, or shielding from 
detection an alien who has come to, entered, or remains in the U.S. in 
violation of law); 18 U.S.C. Sec. 2 (general aiding and abetting); and 
18 U.S.C. Sec. 371 (conspiracy).

    Question 2. The Secretary's letter of submittal, in discussing 
Article 6(3) and its requirement to establish as aggravating 
circumstances certain conduct, references the Federal Sentencing 
Guidelines, the constitutionality of which may have since been called 
into question by the Supreme Court in Blakely v. Washington. Does the 
executive branch have any views on the degree to which the United 
States will be able to comply with the obligation of Article 6(3) after 
Blakely?

    Answer. It will take some time to determine how the United States 
Supreme Court will apply Blakely, which involved State sentencing 
guidelines, to the Federal sentencing guidelines. In the meantime, 
until this issue is settled, Deputy Attorney General Comey has 
instructed Federal prosecutors to include in indictments allegations 
that will form the basis of upward departures or upward adjustments, so 
that juries will make findings on those specific facts. This process 
will enable the courts to utilize those factual findings as a basis for 
increased sentences, thereby satisfying the requirements of the Blakely 
case. Thus, by submitting relevant facts to a jury, the United States 
can meet its obligation under Article 6(3) to punish migrant smuggling 
more severely when it includes degrading or inhumane treatment or 
endangerment of the migrant's life or safety.

    Question 3. The discussion of Article 9 in the Secretary's letter 
of submittal indicates that ``existing claims procedures'' under 
current law would be used to process and adjudicate any claims for 
compensation for any loss or damage. Please describe the authority for 
these existing procedures and how those procedures are administered.

    Answer. The applicable U.S. law regarding claims against the United 
States for actions taken by the U.S. Armed Forces, including the U.S. 
Coast Guard, are contained in the Suits in Admiralty Act (46 U.S. Code 
App. Sec. Sec. 741 et seq.) and the Public Vessels Act (46 U.S. Code 
App. Sec. 781), in which there are waivers of sovereign immunity, as 
well as the Military Claims Act (10 U.S.C. Sec. 2733) and the Foreign 
Claims Act (10 U.S.C. Sec. 2734). The applicable U.S. Coast Guard 
regulations are to be found in 33 CFR Part 25 and the Admiralty Claims 
Procedures in 32 CFR Part 752.
    For the U.S. Coast Guard (USCG), these procedures are administered 
by the USCG's two Maintenance & Logistics Commands. The USCG, as a 
matter of policy, promptly pays all meritorious claims for property 
damage or personal injury resulting from law enforcement activities 
pursuant to which no violations or illegal activity are discovered. 
Claimants may initiate a claim by filling out a simple two-page form 
and presenting it to the Commanding Officer of any USCG unit, to the 
military attache of any United States Embassy or consulate, or to the 
Commanding Officer of any unit of the Armed Forces of the United 
States. Such forms are available through the USCG and United States 
Navy, including units that conduct boardings and searches of suspect 
vessels. After administrative investigation and review by the USCG, the 
claim, if merited, may be paid. If the parties cannot agree to settle 
the claim, the claimant retains the right to seek any available relief 
in United States Federal court.
    The Secretary of the Navy has authority to settle admiralty claims 
for damage caused by vessels or other property of the U.S. Navy and 
maritime torts committed by agents or employees of the U.S. Navy. This 
authority is subject to the caveat that legal liability must exist and 
the case must not be in litigation. The Office of the Judge Advocate 
General of the Navy, Admiralty and Maritime Law Division, is 
responsible for adjudicating all tort claims within admiralty 
jurisdiction involving the operation of United States Navy vessels, 
personnel or property. There is no particular form or format necessary 
to submit an admiralty claim to the Office of the Judge Advocate 
General of the Navy. The claimant must fully explain the facts 
underlying the claim and justify the amount claimed by including 
relevant documents, charts, diagrams, and photographs, as well as 
repair or replacement estimates, surveys, receipts, or invoices.

    Question 4. The discussion of Article 11 in the Secretary's letter 
of submittal emphasizes the discretionary language of this provision. 
How will this article be implemented under U.S. law?

    Answer. The text of Article 11 is designed to provide significant 
flexibility to States Parties. In this connection, the U.S. already has 
in place laws and practices that implement specific measures set forth 
in the Article. For example, 8 U.S.C. Sec. Sec. 1224 and 1323 impose 
fines on commercial carriers for violations of immigration law, such as 
transporting aliens into the U.S. without a valid visa or passport. 
With respect to paragraph 5 of this article, 8 U.S.C. Sec. 1182(2)(H) 
deems inadmissible those engaged in trafficking in persons; and 8 
U.S.C. Sec. 1201(i) authorizes the Secretary of State to revoke visas 
and could be used against traffickers.

    Question 5. Is not Article 18(1) of the Protocol self-executing?

    Answer. No, we would not consider Article 18(1) of the Protocol to 
be self-executing. The non-self-executing declaration proposed by the 
administration was intended to make clear that Article 18(1) (among 
other provisions) does not create enforceable legal rights in U.S. 
courts.

                                 ______
                                 

   Responses of Samuel M. Witten and Michael T. Schmitz to Additional 
   Questions for the Record Submitted by Senator Joseph R. Biden, Jr.

     Question 1. During the course of the negotiation of the Protocol 
of Amendment, was there any consultation with the Committee on Foreign 
Relations? If not, why not?

     Answer. During the course of negotiations, there were no 
consultations with the Senate Foreign Relations Committee (SFRC). In 
retrospect, such consultations would have been appropriate.

     Question 2. During the course of the negotiations of the Protocol 
of Amendment, were there any consultations with the Senate Committee on 
Finance or the House Committee on Ways and Means? If not, why not?

     Answer. During the course of negotiations, there were no separate 
consultations with Senate Committee on Finance or the House Committee 
on Ways and Means.
     That said, the former U.S. Customs Service, which was the agency 
that took the lead in the negotiations, extended to the Senate Finance 
and House Ways and Means Committee members and staffers a standing 
invitation to attend and participate in meetings of the U.S. Inter-
Agency Working Group on the Customs Cooperation Council, and notified 
members and staffers of such meetings. The former U.S. Customs used 
these meetings to provide an opportunity for feedback during the 
negotiation process from concerned agencies, including, among others, 
the Departments of State, Treasury, Commerce, Transportation, 
Agriculture and Labor, the Office of the United States Trade 
Representative, the U.S. International Trade Commission and the Office 
of Management and Budget.

     Question 3. The negotiations on the Protocol of Amendment were 
concluded in June 1999. Why did it take until April 2003 for submission 
of the Protocol for advice and consent to accession? Was there any 
significant opposition within the Executive Branch to submission of the 
Protocol to the Senate?

     Answer. Review of this Convention within the U.S. Government has 
been a very extensive, thorough process to analyze the potential impact 
on the United States and consistency with national legislation. In 
2000, following the adoption of the Convention by the World Customs 
Organization in 1999, the former U.S. Customs Service, then a part of 
the Department of the Treasury, initiated an extensive review of the 
Revised Convention to identify any inconsistencies between the 
provisions of the Revised Convention and U.S. customs procedures and 
requirements and national legislation. This review enabled the former 
U.S. Customs Service to specify whether any implementing legislation 
would be required, and to determine whether the United States would 
need to decline to accept certain Specific Annexes or Chapters within 
these Annexes, or to enter reservations to Recommended Practices 
therein. This process also involved interagency consultations and a 
complete review by the Department of the Treasury and an extensive 
review by the Department of State and the Department of Justice.
     The Administration fully supports accession to the Revised 
Convention.

     Question 4. If the United States accedes to the Protocol of 
Amendment, what will be the legal status of the 1973 Convention for the 
United States vis-a-vis parties to the Convention which have not become 
parties to the Amended Convention? Will the existence of different 
treaty regimes affect U.S. customs policies and practices? If so, how?

     Answer. If the United States accedes to the Protocol of Amendment, 
it will continue to have treaty relations under the 1973 Convention 
with parties to that convention that have not become parties to the 
Revised Convention. The fact that the Protocol of Amendment will not 
enter into force until 40 parties (of the 63 parties to the 1973 
Convention) have expressed their consent to be bound by it should help 
minimize any issues arising from this. Thirty-four States have already 
consented to be bound by the Revised Customs Convention, two of these 
since the June 17, 2004, hearing of the Senate Foreign Relations 
Committee. These include some of our largest trading partners (Canada, 
China, Japan, Germany and the United Kingdom). Application of the new 
procedures with respect to some parties, while maintaining relations 
under the 1973 Convention with others, is not expected to create 
significant problems, as the procedures are generally compatible.

     Question 5. In the view of the executive branch, does the Amended 
Convention provide for a private right of action?

     Answer. No. The Revised Convention, like the 1973 Convention, is 
not intended to create a private right of action in U.S. courts.

     Question 6. Article 4(4) of the Amended Convention makes reference 
to Guidelines that accompany the Annexes, and states that these 
Guidelines are not binding upon parties. What is the purpose of the 
Guidelines? To what degree are they consistent with U.S. practice?

     Answer. The Guidelines identified in Article 4(4) of the Revised 
Convention are designed to provide non-binding guidance for parties to 
help with the implementation of the Standards and Recommended Practices 
in the Specific Annexes of the Convention. The Guidelines are generally 
consistent with U.S. practice. As they are not binding on parties, even 
if they were inconsistent with U.S. practice, they would require no 
change in U.S. practice.

     Question 7. Article 6(8) of the Amended Convention provides the 
voting procedure if there is not consensus in the Management Committee. 
Is it expected that most decisions will be made by consensus?

     Answer. Decisions within the working bodies of the World Customs 
Organization are generally made by consensus. Voting only occurs as a 
last resort if consensus cannot be reached. It is therefore expected 
that most decisions made by the Management Committee under the Revised 
Convention will also be made by consensus. Decisionmaking by consensus 
generally benefits the United States, which, as the contributor of 25 
percent of the WCO budget, has considerable influence within the 
organization.

     Question 8. Article 12(3) of the Amended Convention requires a 
party to examine the possibility of withdrawing any reservations to the 
Recommended Practices every three years. Would the executive branch 
seek Senate approval for withdrawal of any reservation?

     Answer. The ``reservations'' that can be made by parties under 
Article 12, to which you refer, are intended to allow States to 
identify when their domestic law is inconsistent with a Recommended 
Practice and allow States to thereby depart from the uniform practice 
otherwise encouraged by the Revised Convention. In accordance with 
Article 12(2) a State that does not wish to be bound by a particular 
Recommended Practice must notify the depositary and declare the 
differences that exist between provisions of its national legislation 
and those of the Recommended Practice concerned. If a State's domestic 
law changes so that the Recommended Practice can be followed, the so-
called ``reservation'' should be removed in accordance with Article 
12(3). As a result, the United States will only withdraw such a 
``reservation'' when U.S. law becomes consistent with the Recommended 
Practice. We do not consider such notifications to be reservations as 
that term is generally understood in international law or U.S. treaty 
practice. It would, therefore, not be necessary in this particular case 
for the executive branch to return to the Senate for approval when 
withdrawing such notifications.

     Question 9. Article 13(3) of the Amended Convention states that 
each Contracting Party ``shall implement the Recommended Practices'' in 
the Specific Annexes or Chapters it has accepted within 36 months. The 
Recommended Practices in the Specific Annexes, however, are not stated 
in mandatory language, but instead state that a party ``should'' take a 
particular course of action or adopt a particular practice.
           a. Why are the Recommended Practices stated in this manner?
           b. What is the executive branch's view of the nature of the 
        legal obligation with regard to any Recommended Practice in a 
        Specific Annex that the United States intends to accept?

     Answer. The use of ``should'' in the Specific Annexes is 
consistent with the ``recommended'' nature of the Practices. This 
reflects the fact that a party may enter a reservation to any 
applicable Recommended Practices, and in that sense the Recommended 
Practices are optional. However, where a party does not enter a 
reservation to an applicable Recommended Practice, that Recommended 
Practice is binding and its implementation is obligatory, in accordance 
with Article 12(2) and Article 13(3). Although the terminology used in 
the Convention is thus somewhat unusual when compared with practice in 
other treaties and conventions, read as a whole the structure of the 
Convention is consistent with other conventions where parties undertake 
obligations absent express statements to the contrary.

     Question 10. Please describe current U.S. law and policy on 
personal searches of travelers by customs officers. How does it comport 
with Specific Annex J, Chapter 1, Standard 10?

     Answer. As a result of this question, we have reviewed Specific 
Annex J (Special Procedures), Chapter 1 (Travellers), Standard 10 on 
personal searches of travelers, and have concluded that absent a 
definition of ``personal searches'' in the Body of the Revised 
Convention, the General Annex of the Convention or its Specific 
Annexes, the consistency between Standard 10 and U.S. law and practice 
is subject to question, particularly regarding the level of suspicion 
required for minimally intrusive searches, such as pat down searches, 
of persons at the border. We note that a similar question arises with 
respect to Specific Annex H (Offenses), Chapter 1 (Customs Offenses), 
Standard 6, which also pertains to personal searches.
     We therefore propose that the United States, upon acceding to the 
Revised Convention, exercise its discretion, as provided in Article 8.3 
and Article 12.2 of the Convention, not to accept Chapter 1 of Specific 
Annex H or Chapter 1 of Specific Annex J. (Note that under Article 
12.2, a ratifying/acceding party may not opt out of an individual 
Standard alone; in order to opt out of a Standard, one must opt out of 
the relevant Specific Annex or Chapter therein.) The Administration 
previously recommended to the Senate that the United States opt out of 
Chapter 4 of Specific Annex F; Chapter 2 of Specific Annex J; and 
Specific Annex K in its entirety. The Administration also recommended 
that the United States enter a reservation to a number of Recommended 
Practices, as authorized in Article 12.2 of the Convention. Those 
recommendations still apply; the only changes to our prior 
recommendations for the Senate's Resolution of Advice and Consent are 
to opt out of the two additional chapters identified above relating to 
personal searches.
     The additional opt-outs are recommended for the following reason. 
Under U.S. law, Customs officers have broad authority to stop, detain, 
search, and examine any ``vehicle, beast, or person.'' 19 U.S.C. 
Sec. Sec. 482, 1581-1582. Nonetheless, such authority must be exercised 
consistent with the reasonableness requirement of the Fourth Amendment. 
United States v. Montoya de Hernandez, 473 U.S. 531 (1985). Under that 
standard, Customs officers must have an increased level of 
particularized suspicion to conduct more intrusive personal searches. 
Id. (detention for internal smuggling requires reasonable suspicion). 
Under U.S. law, most courts have held that officers do not require any 
objective quantum of suspicion for minimally intrusive searches at the 
border, including pat downs. U.S. Customs and Border Protection's 
policy is to require officers to have at least one specific objective 
basis for conducting a pat down. Standard 10 thus comports both with 
U.S. government policy and existing U.S. law insofar as it applies to 
intrusive personal searches. The question of whether Standard 10 is 
consistent with U.S. law as applied to minimally intrusive searches 
such as pat downs and frisks, however, is more complicated. The Supreme 
Court has not spoken directly to the issue of the level of suspicion 
required for a pat down or frisk at the border. However, the trend in 
the courts of appeals has been to require no suspicion for officers to 
conduct such searches. See, e.g., Bradley v. United States, 299 F.3d 
197 (3d Cir. 2002) (no suspicion required); United States v. Gonzalez-
Rincon, 36 F.3d 859, 864 (9th Cir. 1994) (reasonable suspicion not 
required); United States v. Braks, 842 F.2d 509 (1st Cir. 1988) 
(stating ``mere'' suspicion is ``no'' suspicion); United States v. 
Sandler, 644 F.2d 1163 (5th Cir. 1981) (``mere'' suspicion justifies 
routine border search). We believe this is a correct view of the law on 
the subject.
     Standard 10 provides that ``personal searches of travelers for the 
purposes of customs control shall be carried out only in exceptional 
cases and when there are reasonable grounds to suspect smuggling or 
other offences.'' Standard 10 does not define whether ``personal 
searches'' include frisks or pat downs. The (non-binding) Guideline to 
Standard 10 provides that ``the types and degrees of personal searches 
carried out depend on the reasonableness of the grounds for suspicion. 
Intrusive personal searches may be appropriate when there is a high 
level of suspicion, whereas a frisk or pat down of person would be 
appropriate when there is a lesser level of suspicion.'' Read in 
conjunction with this Guideline, one interpretation of Standard 10 
would be that the requirement in the Standard for ``reasonable grounds 
for suspicion'' applies to pat down searches, which U.S. courts have 
held may be conducted with no suspicion. In that sense, Standard 10 
(and Standard 6 in Annex H, Chapter 1) may not comport with U.S. law 
and therefore opting out of the Standard (and hence the relevant 
Chapter) would be appropriate.
     Opting out of these two Chapters now does not foreclose the 
possibility of accepting these Chapters in the future. Having ratified 
or acceded to the Convention, any party may subsequently notify the 
depositary that it accepts one or more Specific Annexes or Chapters 
therein. If the United States becomes a Party to the Convention, U.S. 
Customs and Border Protection will participate in the Management 
Committee created pursuant to the Convention's entry into force and 
will work to amend those Standards that may be inconsistent with U.S. 
law or policy, including Standard 6 in Specific Annex H, Chapter 1, and 
Standard 10 in Specific Annex J, Chapter 1.

     Question 11. Specific Annex J, Chapter 1, Recommended Practice 17 
states that travelers should be permitted to import, free of duty, non-
commercial goods up to an aggregate value of 75 Special Drawing Rights.
           a. How does this compare with current U.S. law on such duty-
        free import of non-commercial goods by travelers? Has this rate 
        changed in the last 20 years? If so, how?
           b. Does the Recommended Practice mean that the United States 
        could not reduce its duty-free exemption below 75 SDRs?

     Answers:
     a. Seventy-five SDRs equates to approximately $110 USD. Duty-free 
importation allowances for returning residents are discussed in Part 
148 of the CBP Regulations (19 CFR Part 148). Currently, U.S. Customs 
and Border Protection's personal exemptions for returning residents are 
$800, $1,200, and $600, as explained below.
           9804.00.65, HTSUS allows for the duty-free personal 
        importation of articles acquired abroad valued up to $800 for a 
        resident returning from any foreign country.
           9804.00.70, HTSUS allows for the duty-free personal 
        importation of articles valued up to $1,200 for a resident 
        returning from an insular possession.
           9804.0.72, HTSUS allows for the duty-free personal 
        importation of articles valued up to $600 for a resident 
        returning from a beneficiary developing country.
     In 1986, the personal exemption was raised from $300 to $400 and 
the exemption for residents returning from insular possessions was 
raised from $600 to $800. (See, T.D. 86-118 and P.L. 97-446). In 1997, 
the exemption for returnees from the insular possessions was raised to 
from $800 to $1,200 (See, T.D. 97-75). The personal exemption was 
raised from $400 to $800 in the Trade Act of 2002.

     b. Yes. Unless the United States takes a reservation to Specific 
Annex J, Chapter 1, Recommended Practice 17, the United States could 
not reduce its duty-free exemption below 75 SDRs. However, as the U.S. 
duty-free exemption has increased over time to the current duty-free 
exemption level of $800, it is highly unlikely that such a reservation 
would ever be necessary.

     Question 12. Under Specific Annex J, Chapter 1, Standard 20, are 
there any items on this list of items (i.e. items to be considered 
``personal effects'' of a non-resident) controlled under the U.S. 
Munitions List (USML) or the Commerce Control List (CCL)? Specifically, 
do the terms ``portable radio receivers'' or ``cellular or mobile 
telephones'' include satellite telephones? If any items are on the USML 
or CCL, and the traveler wishes to re-export them, are applicable 
export controls affected by provisions of the Amended Convention? If 
so, how?

     Answer. Most commercially-available versions of the items listed 
as personal effects under Specific Annex J, Chapter 1, Standard 20 are 
not on the U.S. Munitions List (USML) or Commerce Control List (CCL) 
and do not require export documentation. However, depending upon their 
level of technology, these items may be on the USML or CCL, or these 
items may otherwise be subject to export controls based on the country 
of destination or the intended end-use or end-user of the items. 
Additionally, any modification performed on these items may result in 
the item being controlled on either the USML or the CCL.
     The terms ``portable radio receivers'' or ``cellular or mobile 
telephones'' may include satellite telephones. However, our current 
export controls are not affected by any provisions of the Revised 
Convention. Our current enforcement scheme requires that certain 
personal items that require a license or may be exported pursuant to a 
license exception or exemption, such as weapons (rifles, handguns, 
shotguns), ammunition for firearms, bullet-proof vests, gas masks, CS 
Gas and Tear Gas, and GPS devices, must be exported in compliance with 
export formalities, including submission of the electronic Shipper's 
Export Declarations (SEDs) via the Automated Export System (AES), 
regardless of the fact that they may be characterized as ``personal.'' 
Our current export scheme also requires that certain items labeled 
``personal'' in Standard 20 be exported with formalities, including an 
SED and via AES, when those items meet criteria established by other 
Federal government agencies. Specific Annex J, Chapter 1, Standard 36 
of the Revised Convention allows for the use of temporary exportation 
documents for personal effects in exceptional cases. The Revised 
Convention allows for our export control scheme to continue without 
change.

     Question 13. Under Specific Annex J, Chapter 1, Standard 33, does 
the term ``necessary formalities'' include export controls and 
shipper's export declarations under U.S. law?
     Answer. (Please note that this question appears to refer to 
Specific Annex J, Standard 34 and not to Specific Annex J, Standard 33. 
If this question does in fact refer to Specific Annex J, Standard 34, 
the response is as follows.)
     Yes. Under Specific Annex J, Chapter 1, Standard 34, the term 
``necessary formalities'' does include export controls and Shipper's 
Export Declarations (SEDs) under U.S. law. If an item is controlled 
pursuant to the International Traffic in Arms Regulations (ITAR) of the 
Department of State or the Commerce Control List (CCL) of the Export 
Administration Regulations administered by the Department of Commerce, 
it typically requires the electronic submission of the Shipper's Export 
Declaration via the Automated Export System (AES). Electronic export 
information must be submitted through the AES, regardless of value, for 
all commodities controlled under the ITAR. Exports of CCL commodities 
that require a license for export must be reported through AES 
regardless of value. With limited exceptions, a Shipper's Export 
Declaration must be filed if the value of the commodities exceed 
$2,500.

     Question 14. Under Specific Annex J, Chapter 1, Standard 36, are 
there any such ``exceptional cases'' where a temporary exportation 
document is required under U.S. law? Please elaborate.

     Answer. Yes. Under Specific Annex J, Chapter 1, Standard 36, there 
may be ``exceptional cases'' where a temporary exportation document is 
required under U.S.

law. Merchandise that, by its nature, intended destination, end-use, or 
end-user, requires a license or license exception or exemption by a 
U.S. government agency for export typically requires the submission of 
an electronic Shipper's Export Declaration through the Automated Export 
System (AES).