[Congressional Record (Bound Edition), Volume 151 (2005), Part 17]
[Senate]
[Pages 22642-22644]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

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INTER-AMERICAN CONVENTION AGAINST TERRORISM--TREATY DOCUMENT NO. 107-18

                                 ______
                                 

                      U.N.CONVENTIONAGAINSTTRANS-
          NATIONAL 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.

  U.N. CONVENTION AGAINST TRANS-NATIONAL ORGANIZED CRIME (T.D. 108-16)

       Resolved (two-thirds of the Senators present concurring 
     therein),

[[Page 22643]]

     SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO RESERVATIONS, 
                   UNDERSTANDINGS, AND DECLARATIONS

       The Senate advises and consents to the ratification of the 
     United Nations Convention Against Transnational Organized 
     Crime (hereinafter in this resolution referred to as the 
     ``Convention'') and two supplementary protocols: the Protocol 
     to Prevent, Suppress and Punish Trafficking in Persons, 
     Especially Women and Children (hereinafter in this resolution 
     referred to as the ``Trafficking Protocol'') and the Protocol 
     Against Smuggling of Migrants by Land, Sea and Air 
     (hereinafter in this resolution referred to as the 
     ``Smuggling Protocol''), adopted by the United Nations 
     General Assembly on November 15, 2000 and signed by the 
     United States on December 13, 2000 at Palermo, Italy (T. Doc. 
     108-16), subject to the reservations, understandings, and 
     declarations of sections 2, 3 and 4.

     SECTION 2. RESERVATIONS AND DECLARATION RELATIVE TO THE 
                   CONVENTION

       (a) Reservations.--The advice and consent of the Senate 
     under section 1 is subject to the following reservations 
     relative to the Convention, which shall be included in the 
     United States instrument of ratification:
       (1) The United States of America reserves the right to 
     assume obligations under the Convention in a manner 
     consistent with its fundamental principles of federalism, 
     pursuant to which both federal and state criminal laws must 
     be considered in relation to the conduct addressed in the 
     Convention. U.S. federal criminal law, which regulates 
     conduct based on its effect on interstate or foreign 
     commerce, or another federal interest, serves as the 
     principal legal regime within the United States for combating 
     organized crime, 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 another federal interest. 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 Convention. The United States of America 
     therefore reserves to the obligations set forth in the 
     Convention 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 
     Convention.
       (2) The United States of America reserves the right not to 
     apply in part the obligation set forth in Article 15, 
     paragraph 1(b) with respect to the offenses established in 
     the Convention. 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) to the extent provided for under its federal law.
       (3) In accordance with Article 35, paragraph 3, the United 
     States of America declares that it does not consider itself 
     bound by the obligation set forth in Article 35, paragraph 2.
       (b) Declaration.--The advice and consent of the Senate 
     under section 1 is subject to the following declaration 
     relative to the Convention:
       The United States of America declares that, in view of its 
     federalism reservation, current United States law, including 
     the laws of the States of the United States, fulfills the 
     obligations of the Convention for the United States. 
     Accordingly, the United States of America does not intend to 
     enact new legislation to fulfill its obligations under the 
     Convention.

     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 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.

[[Page 22644]]

  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 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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