[Congressional Record Volume 151, Number 130 (Friday, October 7, 2005)]
[Senate]
[Pages S11334-S11336]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
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INTER-AMERICAN CONVENTION AGAINST TERRORISM--TREATY DOCUMENT NO. 107-18
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U.N. CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME--TREATY DOCUMENT
NO. 108-16
Mr. STEVENS. Mr. President, I ask unanimous consent that the Senate
proceed to executive session to consider the following treaties on
today's Executive Calendar, Nos. 2 and 3. I further ask unanimous
consent that these treaties be considered as having passed through
their various parliamentary stages, up to and including the
presentation of the resolutions for ratification; that any committee
conditions, declarations, or reservations be agreed to as applicable;
that any statements be printed in the Record as if read; and that the
Senate take one vote on the resolutions of ratification, to be
considered as separate votes; further, that when the resolutions of
ratification are voted upon, the motion to reconsider be laid on the
table; the President be notified of the Senate's action, and that
following the disposition of the treaties, the Senate return to
legislative session.
The PRESIDING OFFICER. Without objection, it is so ordered. The
treaties will be considered to have passed through their various
parliamentary stages, up to and including the presentation of the
resolutions of ratification.
The resolutions of ratification are as follows:
INTER-AMERICAN CONVENTION AGAINST TERRORISM (T.D.107-18)
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO UNDERSTANDING
Resolved (two-thirds of the Senators present concurring
therein), The Senate advises and consents to the ratification
of the Inter-American Convention Against Terrorism (the
``Convention''), adopted at the thirty-second regular session
of the General Assembly of the Organization of American
States meeting in Bridgetown, Barbados, and signed by the
United States on June 3, 2002 (Treaty Doc. 107-18), subject
to the understanding in Section 2.
SECTION 2. UNDERSTANDING
The advice and consent of the Senate under section 1 is
subject to the following understanding, which shall be
included in the United States instrument of ratification:
The United States of America understands that the term
``international humanitarian law'' in paragraph 2 of Article
15 of the Convention has the same substantive meaning as the
law of war.
SECTION 3. RESERVATIONS, UNDERSTANDING, AND DECLARATION
RELATIVE TO THE TRAFFICKING PROTOCOL
(a) Reservations.--The advice and consent of the Senate
under section 1 is subject to the following reservations
relative to the Trafficking Protocol, which shall be included
in the United States instrument of ratification:
(1) The United States of America reserves the right not to
apply in part the obligation set forth in Article 15,
paragraph 1(b), of the United Nations Convention Against
Transnational Organized Crime with respect to the offenses
established in the Trafficking Protocol. The United States
does not provide for plenary jurisdiction over offenses that
are committed on board ships flying its flag or aircraft
registered under its laws. However, in a number of
circumstances, U.S. law provides for jurisdiction over such
offenses committed on board U.S.-flagged ships or aircraft
registered under U.S. law. Accordingly, the United States
will implement paragraph 1(b) of the Convention to the extent
provided for under its federal law.
(2) The United States of America reserves the right to
assume obligations under this Protocol in a manner consistent
with its fundamental principles of federalism, pursuant
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to which both federal and state criminal laws must be
considered in relation to conduct addressed in the Protocol.
U.S. federal criminal law, which regulates conduct based on
its effect on interstate or foreign commerce, or another
federal interest, such as the Thirteenth Amendment's
prohibition of ``slavery'' and ``involuntary servitude,''
serves as the principal legal regime within the United States
for combating the conduct addressed in this Protocol, and is
broadly effective for this purpose. Federal criminal law does
not apply in the rare case where such criminal conduct does
not so involve interstate or foreign commerce, or otherwise
implicate another federal interest, such as the Thirteenth
Amendment. There are a small number of conceivable situations
involving such rare offenses of a purely local character
where U.S. federal and state criminal law may not be entirely
adequate to satisfy an obligation under the Protocol. The
United States of America therefore reserves to the
obligations set forth in the Protocol to the extent they
address conduct which would fall within this narrow category
of highly localized activity. This reservation does not
affect in any respect the ability of the United States to
provide international cooperation to other Parties as
contemplated in the Protocol.
(3) In accordance with Article 15, paragraph 3, the United
States of America declares that it does not consider itself
bound by the obligation set forth in Article 15, paragraph 2.
(b) Understanding.--The advice and consent of the Senate
under section 1 is subject to the following understanding
relative to the Trafficking Protocol, which shall be included
in the United States instrument of ratification:
The United States of America understands the obligation to
establish the offenses in the Protocol as money laundering
predicate offenses, in light of Article 6, paragraph 2(b) of
the United Nations Convention Against Transnational Organized
Crime, as requiring States Parties whose money laundering
legislation sets forth a list of specific predicate offenses
to include in such list a comprehensive range of offenses
associated with trafficking in persons.
(c) Declaration.--The advice and consent of the Senate
under section 1 is subject to the following declaration
relative to the Trafficking Protocol:
The United States of America declares that, in view of its
reservations, current United States law, including the laws
of the States of the United States, fulfills the obligations
of the Protocol for the United States. Accordingly, the
United States of America does not intend to enact new
legislation to fulfill its obligations under the Protocol.
SECTION 4. RESERVATIONS AND UNDERSTANDING RELATIVE TO THE
SMUGGLING PROTOCOL
(a) Reservations.--The advice and consent of the Senate
under section 1 is subject to the following reservations
relative to the Smuggling Protocol, which shall be included
in the United States instrument of ratification:
(1) The United States of America criminalizes most but not
all forms of attempts to commit the offenses established in
accordance with Article 6, paragraph 1 of this Protocol. With
respect to the obligation under Article 6, Paragraph 2(a),
the United States of America reserves the right to
criminalize attempts to commit the conduct described in
Article 6, paragraph 1(b), to the extent that under its laws
such conduct relates to false or fraudulent passports and
other specified identity documents, constitutes fraud or the
making of a false statement, or constitutes attempted use of
a false or fraudulent visa.
(2) In accordance with Article 20, paragraph 3, the United
States of America declares that it does not consider itself
bound by the obligation set forth in Article 20, paragraph 2.
(b) Understanding.--The advice and consent of the Senate
under section 1 is subject to the following understanding
relative to the Smuggling Protocol, which shall be included
in the United States instrument of ratification:
The United States of America understands the obligation to
establish the offenses in the Protocol as money laundering
predicate offenses, in light of Article 6, paragraph 2(b) of
the United Nations Convention Against Transnational Organized
Crime, as requiring States Parties whose money laundering
legislation sets forth a list of specific predicate offenses
to include in such list a comprehensive range of offenses
associated with smuggling of migrants.
Mr. SESSIONS. Mr. President, the Senate is prepared to ratify two
important treaties, the Inter-American Convention Against Terrorism,
and the United Nations Convention Against Transnational Organized
Crime.
As a former prosecutor, I believe these treaties will provide
important tools in our war against terrorism and organized crime.
However, as chairman of the Senate Steering Committee, and as a
United States Senator, it is my job to carefully review all legislation
and treaties to ensure that they are consistent with our Constitution
and in the best interest of the United States.
In reviewing these treaties, there were two matters I felt needed
further clarification.
First, the issue of extradition. I believe it is important that if we
are going to enter into an extradition arrangement, it strengthen our
hand with respect to nations, such as Mexico, who have refused to
extradite violent criminals to the United States for prosecution. It
serves no purpose to enter into treaties with no teeth.
Second, the International Criminal Court: The position of the United
States has been firm in opposition to any expanded powers of the
International Criminal Court. These treaties were silent on the ICC.
They did not explicitly permit the ICC from exercising jurisdiction
over matters, nor do they prohibit it from doing so. Were I not
absolutely certain that these treaties would provide no mechanism for
an overzealous ICC prosecutor to assert new jurisdiction, these
treaties would not be ratified today.
However, based on an exchange of correspondence with the United
States Department of Justice, I am satisfied that there is absolutely
no way the ICC may assert any new jurisdiction based upon these
treaties.
I received this letter by fax within the last few minutes, and it is
on this basis that I am permitting these treaties to proceed. I am
confident that these treaties are in the interest of the United States,
and this correspondence will serve as legislative history with respect
to the concerns I just addressed.
I ask unanimous consent that the above-referenced letters be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC.
Hon. Jeff Sessions,
U.S. Senate,
Washington, DC.
Dear Senator Sessions: We are pleased to have the
opportunity to respond to your letter of October 6, posing
questions about the United Nations Convention Against
Transnational Organized Crime and the Inter-American
Convention Against Terrorism. Both Conventions are strongly
supported by the Administration, and we urge immediate action
by the Senate to provide its advice and consent to
ratification. As you may be aware, the first Conference of
States Parties to the U.N. transnational organized crime
convention will commence in Vienna on October 10, and thus
there is particular urgency to the Senate acting today to
approve this treaty and thereby strengthen the United States'
ability to participate effectively at this meeting.
Your first question concerned Article 16 of the U.N.
Convention on transnational organized crime and its impact on
our existing bilateral extradition relations. This is a
common provision in multilateral law enforcement treaties,
and it can strengthen our extradition relationships under
existing bilateral extradition treaties by requiring that the
organized crime offenses covered by the U.N. Convention be
included as extraditable offenses under those existing
treaties. This can be helpful with older treaties that
contain a limited list of extraditable offenses. Our treaty
with Mexico, however, is not so limited.
As you suggest in your letter, a particular concern with
Mexico at this time is the impact of a 2001 Mexican Supreme
Court decision which barred extradition where a defendant
would be subject to a life sentence. The U.N. Convention does
not resolve this issue; at the same time it in no way
endorses, or requires the United States to acquiesce in, such
a limitation on extradition. You can be assured that
resolving this problem in our extradition relations with
Mexico remains a major objective of the Departments of
Justice and State and is one that Attorney General Gonzales
has raised personally with the Mexican Attorney General and
with the Mexican Foreign Minister. We are hopeful that a
recent decision of the Mexican Supreme Court in a domestic
criminal case may open the door to a favorable revision of
its 2001 decision, and we are committed to working with
Mexico to that end.
With respect to your question concerning potential
interplay between these treaties and the International
Criminal Court (ICC), I can assure you that the
Administration continues to have fundamental concerns about
the ICC and would not advocate the United States joining any
treaty that would expand the jurisdiction of the ICC or
impose directly or indirectly any obligation on the United
States to support the ICC. The jurisdiction of the ICC is
strictly defined by the Rome statute at Article 5. Neither of
the treaties now being considered by the Senate extends or
could extend that jurisdiction. This is clear from the text
of the treaties and the intent of the negotiators. Moreover,
in no respect will the United States becoming a party to
these two treaties affect the provisions of the American
Service-members' Protection Act of 2002 (ASPA), including its
restrictions on assistance to the ICC. We do
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not believe there is any ambiguity on these points and thus
no need for clarification through understandings in the
resolution of ratification. You and other members of the
Senate can be confident that the Administration shares your
concerns about the ICC and is fully satisfied that none of
those concerns are implicated in these treaties.
We have consulted with the Department of State, which
concurs fully in these views, and hope with this letter you
and your colleagues will be able to vote in favor of these
two important treaties today.
Sincerely,
William E. Moschella,
Assistant Attorney General.
____
Senate Steering Committee,
United States Senate,
Washington, DC, October 6, 2005.
Hon. Alberto R. Gonzales,
Attorney General, U.S. Department of Justice,
Washington, DC.
Dear Mr. Attorney General: I am writing regarding two
critical treaties that the Senate is considering. As a former
prosecutor, I believe these treaties could provide important
new tools to law enforcement. However, before we ratify them,
I seek your assistance in addressing several concerns.
1. Article 16 of the United Nations Convention Against
Transnational Organized Crime. I am interested in learning
whether or not the extradition provisions of this treaty
would strengthen our current bilateral arrangements to
address problems we have had with nations such as Mexico who
refuse to extradite dangerous criminals to the United States.
Further, it would appear that our moral position for
extradition would be undermined if we explicitly acquiesce in
allowing the nation to consider penalties as a basis for
denying extradition.
2. International Criminal Court. The ICC is mentioned in
neither treaty, and the Department of Justice attorneys have
maintained that the ICC would have no jurisdiction over
matters addressed in them. However, the main reason that the
United States rejects the Rome Statute is that the ICC has
one prosecutor who initiates investigations with virtually
unchecked discretion. I seek further clarification from the
Department on whether we can be absolutely certain that these
treaties would not provide a vehicle for a case to be brought
to the ICC by an overzealous prosecutor. Absent such
certainty, it would be my desire to include an understanding
to the resolution of ratification that clarifies the United
States's position that the ICC may not try cases under the
Convention or avail itself of the Convention's extradition or
judicial assistance provisions. We could also add an explicit
understanding to the resolution that ASPA shall govern
application of the Convention by the Executive branch.
Thank you for your assistance.
Sincerely,
Jeff Sessions.
Mr. STEVENS. Mr. President, I ask for a division vote on the
resolutions of ratification.
The PRESIDING OFFICER. A division vote is requested. Senators in
favor of the resolutions will rise and stand until counted.
Those opposed will rise and stand until counted.
On a division vote, two-thirds of the Senators present and voting
having voted in the affirmative, the resolutions of ratification are
agreed to.
Mr. STEVENS. Mr. President, I am delighted to represent two-thirds of
the Senate.
The PRESIDING OFFICER. The Chair recognizes the power of the Senator
from Alaska.
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