[Senate Executive Report 104-23]
[From the U.S. Government Publishing Office]

104th Congress                                              Exec. Rept.

 2d Session                                                      104-23



                 July 30, 1996.--Ordered to be printed


   Mr. Helms, from the Committee on Foreign Relations, submitted the 

                              R E P O R T

                    [To accompany Treaty Doc. 104-2]

    The Committee on Foreign Relations to which was referred 
the Treaty Between the Government of the United States of 
America and the Government of the United Kingdom of Great 
Britain and Northern Ireland on Mutual Legal Assistance in 
Criminal Matters, signed at Washington on January 6, 1994, 
together with a related exchange of notes signed the same date, 
having considered the same, reports favorably thereon with two 
provisos and recommends that the Senate give its advice and 
consent to the ratification thereof as set forth in this report 
and the accompanying resolution of ratification.

                               I. Purpose

    Mutual Legal Assistance Treaties (MLATs) provide for the 
sharing of information and evidence related to criminal 
investigations and prosecutions, including drug trafficking and 
narcotics-related money laundering. Both parties are obligated 
to assist in the investigation, prosecution and suppression of 
offenses in all forms of proceedings (criminal, civil or 
administrative). Absent a treaty or executive agreement, the 
customary method of formally requesting assistance has been 
through letters rogatory.

                             II. Background

    On January 6, 1994, the United States signed a treaty with 
United Kingdom on mutual assistance in criminal matters and the 
President transmitted the Treaty to the Senator for advice and 
consent to ratification on January 23, 1995. In recent years, 
the United States has signed similar MLATs with many other 
countries as part of an effort to modernize the legal tools 
available to law enforcement authorities in need of foreign 
evidence for use in criminal cases.
    States historically have been reluctant to become involved 
in the enforcement of foreign penal law.\1\ This reluctance 
extended to assisting foreign investigations and prosecutions 
through compelling testimony or the production of documents. 
Even now, the shared interest in facilitating the prosecution 
of transnational crime is viewed as being outweighed at times 
by unwillingness to provide information to those with different 
standards of criminality and professional conduct.
    \1\ E.g., Restatement (Third) of the Foreign Relations Law of the 
United States Part IV, ch. 7, subch. A, Introductory Note and Sec. 483, 
Reporters' Note 2 (1987); Ellis & Pisani, The United States Treaties on 
Mutual Assistance in Criminal Matters: A Comparative Analysis, 19 Int. 
Lawyer 189, 191-198 (discussing history of U.S. reluctance and 
evolution of cooperation) [hereinafter cited as Ellis & Pisani].
    Despite these hindrances, the need to obtain the 
cooperation of foreign authorities is frequently critical to 
effective criminal prosecution. Documents and other evidence of 
crime often are located abroad. It is necessary to be able to 
obtain materials and statements in a form that comports with 
U.S. legal standards, even though these standards may not 
comport with local practice. Also, assisting prosecutors for 
trial is only part of how foreign authorities may assist the 
enforcement process. Detecting and investigating transnational 
crime require access to foreign financial records and similar 
materials, while identifying the fruits of crime abroad and 
having them forfeited may deter future criminal activity. It is 
necessary to have the timely and discrete assistance of local 
    Still, it was not until the 1960s that judicial assistance 
by means of letters rogatory--requests issuing from one court 
to another to assist in the administration of justice \2\--were 
approved. Even then, the ability of foreign authorities to use 
letters rogatory to obtain U.S. assistance was not established 
firmly in case law until 1975.\3\ By this time, the United 
States had negotiated and signed a mutual legal assistance 
treaty with Switzerland, the first U.S. treaty of its kind. 
This treaty was ratified by both countries in 1976 and entered 
into force in January 1977. Since then, the United States has 
negotiated more than 20 additional bilateral MLATs, 14 of which 
are in force.\4\
    \2\ See In re Letter Rogatory from the Justice Court, District of 
Montreal Canada, 523 F.2d 562, 564-565 (6th Cir. 1975).
    \3\ Id. at 565-566.
    \4\ According to the August 4, 1995, Letters of Submittal 
accompanying the MLATs with Austria and Hungary, the United States has 
bilateral MLATs in force with Argentina, The Bahamas, Canada, Italy, 
Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland, 
Thailand, Turkey, the United Kingdom concerning the Cayman Islands, and 
Uruguay. MLATs not in force but ratified by the United States include 
those with Belgium, Colombia, and Panama. Signed but unratified MLATs 
include the five addressed in this reports--those with Austria, 
Hungary, the Republic of Korea, the Philippines, and the United 
Kingdom--and one with Nigeria. Treaty Doc. 102-21, 104th Cong., 1st 
Sess. v (1992).
    Absent a treaty or executive agreement, the customary 
method of formally requesting assistance has been through 
letters rogatory. The Deputy Assistant Attorney General of the 
Criminal Division has summarized the advantages of MLATs over 
letters rogatory to the House Foreign Affairs Committee as 

          An MLAT or executive agreement replaces the use of 
        letters rogatory. * * * However, treaties and executive 
        agreements provide, from our perspective, a much more 
        effective means of obtaining evidence. First, an MLAT 
        obligates each country to provide evidence and other 
        forms of assistance needed in criminal cases. Letters 
        rogatory, on the other hand, are executed solely as a 
        matter of comity. Second, an MLAT, either by itself or 
        in conjunction with domestic implementing legislation, 
        can provide a means of overcoming bank and business 
        secrecy laws that have in the past so often frustrated 
        the effective investigation of large-scale narcotics 
        trafficking operations. Third, in an MLAT we have the 
        opportunity to include procedures that will permit us 
        to obtain evidence in a form that will be admissible in 
        our courts. Fourth, our MLATs are structured to 
        streamline and make more effective the process of 
        obtaining evidence.\5\
    \5\ Worldwide Review of Status of U.S. Extradition Treaties and 
Mutual Legal Assistance Treaties: Hearings Before the House Committee 
on Foreign Affairs, 100th Cong., 1st Sess. 36-37 (1987) (statement of 
Mark M. Richard, Deputy Assistant Attorney General, Criminal Division).

    Letters rogatory and MLATs are not the only means that have 
been used to obtain assistance abroad.\6\ The United States at 
times has concluded executive agreements as a formal means of 
obtaining limited assistance to investigate specified types of 
crimes (e.g., drug trafficking) or a particular criminal scheme 
(e.g., the Lockheed investigations).\7\ A separate, formal 
means of obtaining evidence has been through the subpoena 
power. Subpoenas potentially may be served on a citizen or 
permanent resident of the United States abroad or on a domestic 
U.S. branch of a business whose branches abroad possess the 
desired information.\8\
    \6\ U.S. Dept. of Justice, United States Attorneys' Manual 
Sec. Sec. 9-13.520 et seq. (October 1, 1988).
    \7\ Id. at Sec. 9-13.523.
    \8\ Id. at Sec. 9-13.525.
    Additionally, the Office of International Affairs of the 
Criminal Division of the Department of Justice notes several 
informal means of obtaining assistance that have been used by 
law enforcement authorities in particular circumstances. These 
have included informal police-to-police requests (often 
accomplished through law enforcement personnel at our embassies 
abroad), requests through Interpol, requests for readily 
available documents through diplomatic channels, and taking 
depositions of voluntary witnesses. Informal means also have 
included ``[p]ersuading the authorities in the other country to 
open `joint' investigations whereby the needed evidence is 
obtained by their authorities and then shared with us.'' The 
Justice Department also has made ``treaty type requests that, 
even though no treaty is in force, the authorities in the 
requested country have indicated they will accept and execute. 
In some countries (e.g., Japan and Germany) the acceptance of 
such requests is governed by domestic law; in others, by custom 
or precedent.'' \9\
    \9\ Id. at Sec. 9-13.524.
    Like letters rogatory, executive agreements, subpoenas, and 
informal assistance also have their limitations compared to 
MLATs. Executive agreements have been restricted in scope and 
application. Foreign governments have strongly objected to 
obtaining records from within their territories through the 
subpoena power.\10\ There is no assurance that informal means 
will be available or that information received through them 
will be admissible in court.
    \10\ Notwithstanding foreign objections, unilateral methods such as 
issuing subpoenas on domestic branches may actually have promoted the 
negotiation of MLATs. According to one commentator, ``the principal 
incentive for many foreign governments to negotiate MLATs with the 
United States was, and remains, the desire to curtail the resort by 
U.S. prosecutors, police agents, and courts to unilateral, 
extraterritorial means of collecting evidence from abroad.'' E. 
Nadelmann, Cops Across Borders: The Internationalization of U.S. 
Criminal Law Enforcement 315 (1993) [hereinafter cited as Nadelmann].

                              III. Summary

                               a. general

    Mutual legal assistance treaties generally impose 
reciprocal obligations on parties to cooperate both in the 
investigation and the prosecution of crime. Most, but not all, 
MLATs have covered a broad range of crimes with no requirement 
that a request for assistance relate to activity that would be 
criminal in the requested State. The means of obtaining 
evidence and testimony under MLATs also range broadly. MLATs 
increasingly are extending beyond vehicles for gathering 
information to include ways of denying criminals the fruits and 
the instrumentalities of their crimes.

                         b. primary provisions

1. Types of proceedings

    MLATs generally call for assistance in criminal 
investigations and proceedings. This coverage often is broad 
enough to encompass all aspects of a criminal prosecution, from 
investigations by law enforcement agencies to grand jury 
proceedings to trial preparation following formal charges to 
criminal trial. Most recent MLATs also cover civil and 
administrative proceedings--forfeiture proceedings, for 
example--related to at least some types of prosecutions, most 
frequently those involving drug trafficking. However, the scope 
of some MLATs has been more circumscribed than the proposed 
    The United Kingdom (UK) Treaty calls for the provision of 
mutual legal assistance in proceedings (art. 1). Proceedings 
covers ``proceedings related to criminal matters and includes 
any measure or step taken in connection with the investigation 
or prosecution of criminal offenses, including the freezing, 
seizure or forfeiture of the proceeds and instrumentalities of 
crime, and the imposition of fines related to a criminal 
prosecution.'' In addition to criminal proceedings, 
discretionary authority is given to the Central Authorities of 
the parties to ``treat as proceedings for the purpose of this 
Treaty such hearings before or investigations by any court, 
administrative agency or administrative tribunal with respect 
to the imposition of civil or administrative sanctions as may 
be agreed in writing between the parties'' (art. 19).

2. Limitations on assistance

    All MLATs except various types of requests from the treaty 
assistance provisions. For example, judicial assistance 
typically may be refused if carrying out a request would 
prejudice the national security or other essential interest of 
the Requested State. Requests related to political offenses 
usually are excepted, as are requests related to strictly 
military offenses. Unlike the extradition treaties, dual 
criminality--a requirement that a request relate to acts that 
are criminal in both the Requested and Requesting States--
generally is not required. Nevertheless, some treaties do 
contain at least an element of a dual criminality standard. 
Additionally, some treaties go beyond military and political 
offenses to also except requests related to certain other types 
of crimes. Requests related to tax offenses at times have been 
restricted in an MLAT to offenses that are connected to other 
criminal activities. Before a request is denied, a Requested 
State generally is required to determine whether an otherwise 
objectionable request may be fulfilled subject to conditions.
    The UK MLAT states that a Requested State may refuse 
assistance if the Requested Party believes that complying with 
the request would impair its sovereignty, security, or other 
essential interest, or would be contrary to important public 
policy. A request also may be denied if it relates to an 
individual who, if proceeded against in the Requested State for 
conduct to which the request relates, would be entitled to be 
discharged on the grounds of previous acquittal or conviction. 
Assistance may be denied if a request relates to a political 
offense, and assistance also may be denied if it relates to a 
military offense not normally punishable under criminal law. 
Before assistance may be denied, the parties are to consult to 
consider whether assistance may be given subject to conditions 
(art. 3).

3. Transmittal of requests

    Requests under MLATs are conveyed directly through 
designated Competent Authorities, which in the United States 
has been the Criminal Division of the Justice Department. The 
time and paperwork saved in thereby bypassing the courts and 
diplomatic channels are among the main advantages of MLATs. For 
example, a report by the Criminal Justice Section of the 
American Bar Association has stated that the circuity of the 
channel for transmitting letters rogatory and evidence obtained 
under them often effectively frustrates use of letters rogatory 
as a means of obtaining assistance.\11\
    \11\ American Bar Association, Criminal Justice Section, Report 
(No. 109) to the House of Delegates 3 (1989 Annual Meeting in Honolulu) 
(hereinafter cited as ABA Report).
    The provisions on the form and contents of requests are 
contained in article 4 of the respective treaties. The proposed 
MLAT requires that a request for assistance under an MLAT be in 
writing, except in urgent situations (in which case a request 
must be confirmed in writing later, typically within 10 days). 
Among the information usually to be included in a request are 
(1) the name of the authority conducting the investigation, 
prosecution, or proceeding to be assisted by the request; (2) a 
detailed description of the subject matter and nature of the 
investigation, prosecution, or proceeding to which the request 
relates, a description of the pertinent offenses; (3) a 
description of the evidence or other assistance being sought; 
and (4) the purpose for which the assistance is being sought.
    To the extent necessary and possible, other information 
that may facilitate carrying out the request also is to be 
provided, including, for example, information on the 
whereabouts of information or persons sought or a description 
of a place or person to be searched and of objects to be 
seized. Additional information may include lists of questions 
to be asked, a description of procedures to be followed, and 
information on allowances and expenses to be provided to an 
individual who is asked to appear in the Requesting State. The 
proposed UK treaty also expressly mentions providing 
confidentiality requirements.

4. Execution of requests

    Under the proposed treaties the Competent Authority of a 
Requested State is to execute a request promptly or, when 
appropriate, transmit the request to authorities having 
jurisdiction within the Requested State to execute it. The 
competent authorities of the Requested State are to do 
everything in their power to execute the request.
    Article 5 of the proposed MLAT provides that requests are 
to be executed in accordance with the laws and practices of the 
Requested State, unless the treaties provide otherwise. At the 
same time, the method of execution specified in a request is to 
be followed unless the laws of the Requested State prohibit it. 
As is typical in other MLATs the proposed treaty provides that 
the judicial authorities of the Requested State shall have 
power to issue subpoenas, search warrants, or other orders 
necessary to execute the request.
    The Central Authority of a Requested State may postpone or 
place conditions on the execution of a request if execution in 
accordance with the request would interfere with a domestic 
criminal investigation or proceeding, jeopardize the security 
of a person, or place an extraordinary burden on the resources 
of the Requested State.
    At the request of a Requesting State, a Requested State is 
to use its best efforts to keep a request and its contents 
confidential. If a request cannot be executed without breaching 
confidentiality, the Requested State shall so inform the 
Requesting State, and the Requesting State then is given the 
option to proceed nonetheless. (Provisions on keeping 
information provided to a Requesting State confidential are 
discussed below.)
    Requested States generally bear the costs of executing a 
request other than expert witness fees; interpretation, 
transcription, and translation costs; and travel costs for 
individuals whose presence is Requested in the Requesting State 
or a third State.

5. Types of assistance

    In conducting a covered proceeding, a Requesting State 
commonly may obtain assistance from a Requesting State that 
includes (1) the taking of testimony or statements of persons 
located there; (2) service of documents; (3) execution of 
requests for searches and seizures; (4) the provision of 
documents and other articles of evidence; (5) locating and 
identifying persons; and (6) the transfer of individuals in 
order to obtain testimony or for other purposes. Also, mutual 
legal assistance treaties increasingly have called for 
assistance in immobilizing assets, obtaining forfeiture, giving 
restitution, and collecting fines.
            Taking testimony and compelled production of documents in 
                    Requested State
    The proposed MLAT permits a State to compel a person in the 
Requested State to testify and produce documents there. Persons 
specified in the request are to be permitted to be present and 
usually have the right to question the subject of the request 
directly or have questions posed in accordance with applicable 
procedures of the Requested State. If a person whose testimony 
is sought objects to testifying on the basis of a privilege or 
other law of the Requesting State, the person nevertheless must 
testify and objections are to be noted for later resolution by 
authorities in the Requesting State. The UK MLAT (art. 8) 
states that a person whose testimony is compelled may be 
required to testify in accordance with the law of the Requested 
    With respect to questioning a witness by a person specified 
in the request, though most treaties grant a right to question, 
the proposed MLAT with the UK (Art. 8) requires that the 
questioning be conducted by a legal representative qualified to 
appear before the courts of the Requested State.
            Service of documents
    Under an MLAT, a Requesting State may enlist the assistance 
of the Requested State to serve documents related to or forming 
part of a request to persons located in the Requested State's 
territory. This obligation generally is stated as a requirement 
of the Requested State to ``use its best efforts to effect 
service'' (art. 13). The UK MLAT also expressly states that 
service of a subpoena or other process shall not impose an 
obligation under the law of the Requested State to comply with 
    The treaties require that documents requiring a person to 
appear before authorities be transmitted by ``a reasonable 
time'' before the appearance. The service provisions of the 
MLAT under consideration is broader than some of those under 
MLATs currently in force. Provisions under some earlier MLATs 
provide that a Requested State has discretion to refuse to 
serve a document that compels the appearance of a person before 
the authorities of the Requesting State.
            Searches and seizures
    MLATs compel that an item be searched for and seized in the 
Requested State whenever a Requesting State provides 
information that would be sufficient to justify a search and 
seizure under the domestic law of the Requested State. The MLAT 
authorizes conditioning or otherwise modifying compliance to 
assure protection of third parties who have an interest in the 
property seized. The proposed MLAT contains procedures and 
forms for verifying the condition of an item when seized and 
the chain of individuals through whose hands the item passed. 
These provisions state that no other verification is necessary 
for admissibility in the Requesting State.
    In addition to showing that a search and seizure would be 
justified under the law of the Requested State, the proposed UK 
MLAT (art. 14) allows a request to be refused if the powers of 
search and seizure could not be exercised in the Requested 
State in similar circumstances with respect to the conduct 
            Provision of documents possessed by the Government
    MLATs provide a variety of means for obtaining documents 
abroad. Two means--compelled production in a Requested State by 
an individual there and search and seizure--have been 
mentioned. Additionally, a Requesting State generally may 
obtain publicly available documents. In its discretion, a 
Requested State may provide a Requesting State documents in its 
possession that are not publicly available if the documents 
could be made available to domestic authorities under similar 
circumstances. The proposed MLAT contains provisions setting 
out authentication forms.
            Testimony in Requesting State
    MLATs do not require the compelled appearance of a person 
in a Requesting State, regardless of whether the person is in 
custody or out of custody in the Requested State. Under 
provisions on persons not in custody, a Requesting State may 
ask a Requested State to invite a person to testify or 
otherwise assist an investigation or proceeding in the 
Requesting State. A request to invite a witness generally is 
accompanied by a statement of the degree to which the 
Requesting State will pay expenses. A Requested State is 
required to invite the person Requested to appear in the 
Requesting State and to inform that State promptly of the 
invited witness's response.
    A person in custody may not be transferred to a Requesting 
State under an MLAT unless both the person and the Requested 
State consent. A Requesting State is required to keep a person 
transferred in custody and to return the person as soon as 
possible and without requiring an extradition request for 
return. The proposed UK Treaty (art. 11) states that a 
transferred person may not be required to stay in the 
Requesting State beyond the date on which the person would have 
been released from custody in the Requested State. Persons 
transferred receive credit for time spent in custody in the 
Requesting State.
    The proposed MLAT makes some express provision for immunity 
from process and prosecution for individuals appearing in the 
Requesting State in accordance with a treaty request. Under the 
proposed UK MLAT (art. 11) immunity, which can apply to all 
acts committed prior to departure from the Requested State, is 
at the discretion of the Requesting State only for persons not 
in custody. Immunity from process and prosecution expires if 
the person appearing in the Requesting State stays beyond a 
designated period after the person is free to leave or if the 
person appearing voluntarily reenters the Requesting State 
after leaving.
            Immobilization of assets and forfeiture
    The proposed MLAT contains a forfeiture assistance 
provision. A Requesting State is permitted to enlist the 
assistance of a Requested State to forfeit or otherwise seize 
the fruits or instrumentalities of offenses that the Requesting 
State leans are located in the Requested State. A Requested 
State, in turn, may refer information provided it about fruits 
and instrumentalities of crime to its authorities for 
appropriate action under its domestic law and report back on 
action taken by it.
    More generally, the MLATs require the parties to assist 
each other to the extent permitted by their respective laws in 
proceedings on forfeiting the fruits and instrumentalities of 
crime. While the UK MLAT (Art. 16) requires assistance in 
collecting criminal fines, it is silent on assisting in victim 
restitution. At the same time, it expressly calls for 
assistance not only in forfeiture proceedings, but also in 
proceedings on identifying, tracing, and freezing the fruits 
and instrumentalities of crime. The proposed MLAT provides that 
forfeited proceeds are to be disposed of under the law of the 
Requested State, and if that law permits, forfeited assets or 
the proceeds of their sale may be transferred to the Requesting 
            Limitations on use
    To address potential misuse of information provided, MLATs 
restrict how a Requesting State may use material obtained under 
them. States at times have raised concerns that MLATs could be 
used to conduct ``fishing expeditions,'' under which a 
Requesting State could obtain information not otherwise 
accessible to it in search of activity it considers prejudicial 
to its interests. Requested States also are concerned that its 
own enforcement interests may be compromised if certain 
information provided by them is disclosed except as is 
compelled in a criminal trial. As a result, the MLAT contains a 
provision requiring information be kept confidential and 
limited in use to purposes stated in the request.
    Article 7 of the proposed MLAT allows the Requested State 
to place confidentiality and use restrictions on information 
and other material. Typically, a Requested State may require 
that information or evidence not be used in any investigation, 
prosecution, or proceeding other than that described in the 
request. Requested States also may request that information or 
evidence be kept confidential, and Requesting States are to use 
their best efforts to comply with the conditions of 
confidentiality. Nevertheless, once information or evidence has 
been made public in a Requesting State in the normal course of 
the proceeding for which it was provided, it may be used 
thereafter for any other purpose.
    While MLATs contain confidentiality and use limits, they do 
vary. Instead of requiring a Requesting State to use ``its best 
efforts'' to comply with a confidentiality request, the UK MLAT 
requires a Requesting State to inform the Requested State if 
the request cannot be carried out without breaching 
confidentiality, at which point the Requested State may 
determine the extent to which the request may be executed.

Location of persons or items

    In whole or in part, MLAT requests most often require the 
Requested State to locate a person or item. The proposed MLAT 
requires the Requested State's ``best efforts'' in locating the 
person or item.

6. MLATs and defendants

    International agreements frequently confer benefits on 
individuals who are nationals of the State parties. Investment 
and immigration opportunities, tax benefits, and assistance in 
civil and commercial litigation are but some of the advantages 
an individual may enjoy under an international agreement. 
Nevertheless, it is clear that MLATs are intended to aid law 
enforcement authorities only.
    The resulting disparity between prosecution and defendant 
in access to MLAT procedures has led some to question the 
fairness and even the constitutionality of MLATs denying 
individual rights. (The constitutional provisions most 
immediately implicated by denying a defendant use of MLAT 
procedures are the fifth, sixth, and fourteenth amendments.) At 
the core of the legal objections compulsory process and other 
effective procedures for compelling evidence abroad if those 
procedures are available to the prosecution.\12\
    \12\ In its 1989 report on MLATs, the Criminal Justice Section of 
the American Bar Association both strongly supported MLATs and also 
recommended that ``every future MLAT should expressly permit criminal 
defendants to use the treaty to obtain evidence from the Requested 
country to use in their defense if they can make a showing of necessity 
to the trial court.'' ABA Report at 8.
    Those opposing defendant use of MLAT procedures fear that 
States would not enter into MLATs if it meant making 
information available to criminals. Also, MLATs do not preclude 
accused persons from using letters rogatory to obtain evidence 
located in the territory of treaty partners, even though the 
non-mandatory nature of letters rogatory may result in 
difficulties in obtaining evidence quickly.
    In its response to a question for the record by Senator 
Helms on this issue the State Department stated:

          There are no legal challenges to any of our existing 
        MLATs. It is the position of the Department of Justice 
        that the MLATs are clearly and unquestionably 
          In 1992, Michael Abbell, then--counsel to some 
        members of the Cali drug cartel, did suggest to the 
        Committee that MLATs should permit requests by private 
        persons such as defendants in criminal cases. To our 
        knowledge, no court has adopted the legal reasoning at 
        the core of that argument.

    The Department of Justice believes that the MLATs before 
the Committee strike the right balance between the needs of law 
enforcement and the interests of the defense. The MLATs were 
intended to be law enforcement tools, and were never intended 
to provide benefits to the defense bar. It is not ``improper'' 
for MLATs to provide assistance for prosecutors and 
investigators, not defense counsel, any more than it would be 
improper for the FBI to conduct investigations for prosecutors 
and not for defendants. The Government has the job of 
assembling evidence to prove guilt beyond a reasonable doubt, 
so it must have the tools to do so. The defense does not have 
the same job, and therefore does not need the same tools.
    None of the MLATs before the Senate provide U.S. officials 
with compulsory process abroad. None of the treaties require 
the treaty partner to compel its citizens to come to the United 
States, and none permit any foreign Government to compel our 
citizens to go abroad. Rather, the MLATs oblige each country to 
assist the other to the extent permitted by their laws, and 
provide a framework for that assistance. Since the Government 
does not obtain compulsory process under MLATs, there is 
nothing the defense is being denied.
    The MLATs do not deprive criminal defendants of any rights 
they currently possess to seek evidence abroad by letters 
rogatory or other means. The MLATs were designed to provide 
solutions to problems that our prosecutors encountered in 
getting evidence from abroad. There is no reason to require 
that MLATs be made available to defendants, since many of the 
drawbacks encountered by prosecutors in employing letters 
rogatory had largely to do with obtaining evidence before 
indictment, and criminal defendants never had those problems.
    Finally, it should be remembered that the defendant 
frequently has far greater access to evidence abroad than does 
the Government, since it is the defendant who chose to utilize 
foreign institutions in the first place. For example, the 
Government often needs MLATs to gain access to copies of a 
defendant's foreign bank records; in such cases, the defendant 
already has copies of the records, or can easily obtain them 
simply by contacting the bank.

                  IV. Entry into Force and Termination

                          a. entry into force

    The Treaty enters into force upon exchange of instruments 
of ratification.

                             b. termination

    The Treaty will terminate six months after notice by a 
Party of an intent to terminate the Treaty.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed treaty on Wednesday, July 17, 1996. The hearing 
was chaired by Senator Helms. The Committee considered the 
proposed treaty on July 24, 1996, and ordered the proposed 
treaty favorably reported with two provisos by voice vote, with 
the recommendation that the Senate give its advice and consent 
to the ratification of the proposed treaty.

                         VI. Committee Comments

    The Committee on Foreign Relations recommended favorably 
the proposed treaty. The Committee believes that the proposed 
treaty is in the interest of the United States and urges the 
Senate to act promptly to give its advice and consent to 
ratification. In 1996 and the years head, U.S. law enforcement 
officers increasingly will be engaged in criminal 
investigations that traverse international borders. The 
Committee believes that attaining information and evidence (in 
a form that comports with U.S. legal standards) related to 
criminal investigations and prosecutions, including drug 
trafficking and narcotics-related money laundering, is 
essential to law enforcement efforts.
    To cite an example of how an MLAT can benefit the U.S. 
justice system, the Committee notes the response by the State 
Department to Chairman Helms' question for the record regarding 
how the U.S. has made use of the MLAT with Panama after its 
1995 ratification:

          Once recent case from the Southern District of Texas 
        serves as an example of the usefulness of the treaty in 
        the prosecution of financial crimes. In that case, the 
        Assistant U.S. Attorney urgently needed bank records 
        from Panama to verify the dates and amounts of certain 
        money transfers of the alleged fraud proceeds in order 
        to corroborate the testimony of a principal witness. 
        The U.S. requested the records only a short time before 
        they were needed in the trial, and we were pleased that 
        Panamanian authorities produced the records promptly. 
        The records were described by the prosecutor as ``the 
        crowning blow'' to arguments raised by the defense and 
        indispensable to the Government's ultimate success in 
        the trail.

    The Committee believes that MLATs should not, however, be a 
source of information that is contrary to U.S. legal 
principles. To attempt to ensure the MLATs are not misused two 
provisos have been added to the Committee's proposed resolution 
of ratification. The first proviso reaffirms that ratification 
of this treaty does not require or authorize legislation that 
is prohibited by the Constitution of the United States. 
Bilateral MLATs rely on relationships between sovereign 
countries with unique legal systems. In as much as U.S. law is 
based on the Constitution, this treaty may not require 
legislation prohibited by the Constitution.
    The second proviso--which is now legally binding in 11 
United States MLATs--requires the U.S. to deny any request from 
an MLAT partner if the information will be used to facilitate a 
felony, including the production or distribution of illegal 
drugs. This provision is intended to ensure that MLATs will 
never serve as a tool for corrupt officials in foreign 
governments to gain confidential law enforcement information 
from the United States.

                  VII. Explanation of Proposed Treaty

    The following is the Technical Analysis of the Mutual Legal 
Assistance Treaty submitted to the Committee on Foreign 
Relations by the Departments of State and Justice prior to the 
Committee hearing to consider pending MLATs.

technical analysis of the mlat between the united states of america and 
                           the united kingdom

    On January 6, 1994, the United States and the United 
Kingdom of Great Britain and Northern Ireland signed the Treaty 
on Mutual Legal Assistance in Criminal Matters (``the 
Treaty''). In recent years, the United States has signed 
similar treaties with a number of countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement authorities in need of foreign evidence for use in 
criminal cases. The Treaty is expected to be a valuable weapon 
in the fight against crime, especially drug trafficking, and 
violent crime. The United Kingdom has already played a key role 
in major cases such as the BCCI case and the Pan Am 103 
    The Treaty obliges United Kingdom officials to assist 
United States prosecutors and investigators in obtaining 
testimony or documents in the United Kingdom, conducting 
searches and seizures in the United Kingdom, transferring 
persons in custody in the United Kingdom who are needed as 
witnesses in the United States, and cooperating with the United 
States in asset forfeiture matters. The Treaty can be used in a 
wide range of criminal matters such as narcotics offenses, 
money laundering, acts of terrorism, major international fraud 
and tax cases.
    It is not anticipated that the Treaty will require any new 
implementing legislation. The United States Central Authority 
expects to rely heavily on the existing authority of the 
federal courts under Title 28, United States Code, Section 
1782, in the execution of requests. The United Kingdom Central 
Authority will implement the Treaty pursuant to the Criminal 
Justice Act of 1990.
    The following technical analysis of the Treaty was prepared 
by the United States delegation that conducted the 

Article 1--Scope of assistance

    This article provides for assistance in proceedings for 
criminal law enforcement matters. The term ``proceedings'' is 
defined in article 19 and includes the entire spectrum of 
activities in connection with criminal prosecution, including 
any criminal trial, grand jury proceeding in the United States, 
and court or administrative hearing aimed at the imposition of 
civil or administrative sanctions as may be agreed upon. The 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of drug trafficking sometimes are civil 
in nature,\13\ but it is intended that such proceedings fully 
qualify for assistance under the Treaty.
    \13\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
    Paragraph 2 lists the major types of assistance 
specifically considered by the negotiators. The items listed in 
this paragraph are described in further detail in subsequent 
articles. However, the list is not intended to be exclusive, as 
is indicated by the word ``include'' in the first clause of the 
paragraph and by subparagraph (h).
    Paragraph 3 makes it clear that the Treaty sets forth the 
rights and obligations between the governments of the United 
States and the United Kingdom, and that the Treaty is not 
intended for use by nongovernmental parties or institutions. 
Thus, private parties may not invoke the Treaty to obtain 
assistance or seek evidence for use in solely private matters. 
This is consistent with other United States mutual legal 
assistance treaties \14\ and reflects the fact that the purpose 
of the Treaty is to enhance the effectiveness of criminal law 
enforcement activities, and not to provide an alternative 
method of evidence-gathering for others.\15\ Private litigants 
in the United States may continue to seek evidence in the 
United Kingdom by letters rogatory, an avenue of assistance 
which the Treaty leaves undisturbed.
    \14\ See generally Ellis and Pisani, United States Treaties on 
Mutual Assistance in Criminal Matters: A Comparative Analysis, 19 Int'l 
Law. 189 (1985).
    \15\ Thus, article 1 generally does not authorize assistance for 
investigations in either Party that are not being pursued by law 
enforcement authorities. This is consistent with United States case law 
on mutual legal assistance, which does not permit such assistance. See 
In re Letter of Request to Examine Witnesses From the Court of Queen's 
Bench of Manitoba, Canada, 59 F.R.D. 625 (N.D. Cal. 1973), aff'd, 488 
F.2d 511 (9th Cir. 1973).
    Paragraph 3 also states that the Treaty is not intended to 
create any rights to impede execution of requests or to 
suppress or exclude evidence obtained thereunder. Thus, a 
person from whom records are sought may not oppose the 
execution of the request by claiming that it does not comply 
with the Treaty's formal requirements, such as those specified 
in article 4, or the substantive requirements set out in 
article 3. Therefore, there would be no basis under the Treaty 
under which any evidence obtained by the United States from the 
United Kingdom that could be suppressed or excluded on the 
basis that the United States request somehow failed to comply 
with the Treaty. This is a standard provision in our mutual 
legal assistance treaties.\16\
    \16\ See Ellis and Pisani, United States Treaties on Mutual 
Assistance in Criminal Matters: A Comparative Analysis, 19 Int'l Law. 
211-12, 221-22 (1985); see also United States v. Johnpoll, 739 F.2d 702 
(2d Cir. 1984).
    The definition of ``proceedings'' is important, as 
paragraph 1 provides that the Treaty applies to investigations 
and ``proceedings'' for law enforcement purposes. The Treaty 
makes it clear that ``proceedings'' include any proceedings 
before a criminal court, such as pre-trial hearings, trials, or 
post-trial hearings. ``Proceedings'' also include the process 
by which judicial authorities determine whether to formally 
charge an offender, and hence include grand jury proceedings in 
the United States. In article 19(2), the definition of 
``proceedings'' includes any judicial or administrative action 
which could result in an order directing the forfeiture of 
proceeds. This provision, upon agreement of the Parties, could 
include all court or administrative actions of any kinds which 
would result in the forfeiture of ill-gotten gains (such as 
disgorgement proceedings in securities cases).

Article 2--Central authorities

    This article requires that each Party designate a ``Central 
Authority'' for transmission, reception, and handling of Treaty 
requests. The Central Authority of the United States would make 
all requests to the United Kingdom on behalf of federal 
agencies, state agencies, and local law enforcement authorities 
in the United States. The United Kingdom Central Authority 
would make all requests originating from its officials. The 
Central Authority of the Requesting Party will exercise some 
discretion as to the form, content, number, and priority of 
    Paragraph 2 provides that the Attorney General will be the 
Central Authority for the United States, as is the case under 
all other United States mutual legal assistance treaties. The 
Attorney General has delegated these responsibilities to the 
Assistant Attorney General in charge of the Criminal 
Division.\17\ Paragraph 3 specifies that the Central Authority 
for the United Kingdom shall be the Secretary of State for the 
Home Department or a person designated by the Secretary of 
State for purposes specified in the designation.
    \17\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 44 Fed. Reg. 18,661 (1979), as amended as 45 Fed. 
Reg. 6,541 (1980); 48 Fed. Reg. 54,595 (1983). That delegation 
subsequently was extended to the Deputy Directors of the Office of 
International Affairs. 59 Fed. Reg. 42,160 (1994).
    The Central Authority of the Requested Party is also 
responsible for receiving each request from the Requesting 
Party and transmitting it to the appropriate federal or state 
agency, court or other authority for execution, with a view to 
ensuring that a timely response is made.

Article 3--Limitations on assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph 1(a) permits the Central Authority of the 
Requested Party to deny a request if execution of the request 
would prejudice its sovereignty, security or other essential 
interests, or would be contrary to an important public policy. 
In an exchange of diplomatic notes dated January 6, 1994, the 
Parties agreed that the term ``important public policy'' in 
paragraph 1(a) would include a Requested Party's policy of 
opposing the exercise of jurisdiction which in its view is 
extraterritorial and objectionable. For example, the United 
Kingdom advised that what are known as ``re-export cases'' 
would closely scrutinized, and it was possible that assistance 
for such cases would be denied under the ``important public 
policy'' clause of 3(1)(a).
    Paragraph 1(b) permits the Requested Party to deny 
assistance under the Treaty if the target of the investigation 
or the defendant in the case had previously been tried and 
convicted or acquitted on the same facts outlined in the 
request.\18\ This approach is similar to the concept of non bis 
in idem in international extradition treaties. In an exchange 
of diplomatic notes dated January 6, 1994, the Parties agreed 
that paragraph 1(b) shall not affect the availability of 
assistance with respect to other participants in the offense 
who are not the subjects of a previous acquittal or conviction.
    \18\ A similar provision is found in the U.S.-Bahamas Treaty, June 
12 & Aug. 18, 1987, art. 3(1)(c) T.I.A.S. No.--; and the U.S.-Panama 
Treaty, Apr. 11, 1991, art 3(1)(c), T.I.A.S. No.--.
    Paragraph 1(c)(i) permits the Requested Party to deny the 
request if it relates to a political offense, and paragraph 
1(c)(ii) permits denial if the offense is a military offense. 
These restrictions are similar to those found in other mutual 
legal assistance treaties. It is anticipated that the Central 
Authorities will employ jurisprudence similar to that used in 
the extradition context for the application of these 
    Extradition treaties sometimes condition the surrender of 
fugitives upon a showing of ``dual criminality,'' i.e., proof 
that the facts underlying the offense charged in the Requesting 
Party would also constitute an offense in the Requested Party. 
The United States usually resists including such a provision in 
its mutual legal assistance treaties. During the negotiations 
with the United Kingdom, a dual criminality requirement was 
considered but rejected. It was agreed, however, that 
assistance would not be provided under the Treaty in one 
specified class of offenses which is considered criminal in one 
Party but not in the other. In an exchange of diplomatic notes 
dated January 6, 1994, the Parties agreed that the Treaty shall 
not apply to antitrust or competition law investigations or 
proceedings.\19\ This agreement was reached because in the 
United Kingdom, antitrust and anticompetitive policy are not 
enforced by criminal sanctions, often involve sensitive issues 
of national economic policy and implicate the United Kingdom's 
relations with its fellow European Union member-states.
    \19\ The exchange of notes also states that the Central Authorities 
may, at their discretion, treat as proceedings for the purpose of the 
Treaty such individual antitrust or competition law matters, or 
antitrust or competition law matters generally, as may be agreed in 
writing between the Parties at a later date. The Parties also agreed 
that while antitrust matters are not covered by the Treaty, assistance 
in such matters may be provided under other applicable arrangements, 
agreements, practices, or policies. For example, the United Kingdom may 
provide assistance under the Criminal Justice (International 
Cooperation) Act 1990, which permits assistance for any criminal 
    Paragraph 2 is similar to article 3(2) of the United 
States-Switzerland Mutual Legal Assistance Treaty, and obliges 
the Requested Party to consider imposing appropriate conditions 
on its assistance in lieu of denying a request outright 
pursuant to paragraph 1. For example, a Party might request 
information that could be used either in a routine criminal 
case (which would be within the scope of the Treaty) or in a 
political prosecution (which would be subject to refusal under 
the Treaty's terms). This paragraph would permit the Requested 
Party to provide the information on the condition that it be 
used only in the routine criminal case. Naturally, the 
Requested Party would notify the Requesting Party of any 
proposed conditions before actually delivering the evidence in 
question, thereby according the Requesting Party an opportunity 
to indicate whether it is willing to accept the evidence 
subject to the conditions. If the Requesting Party does accept 
the evidence, it must respect the conditions specified by the 
Requested Party with respect to the evidence.

Article 4--Form and contents of requests

    This article is similar to article 29 of the United States-
Swiss Treaty, which, in turn, is based on article 14 of the 
European Convention on Mutual Assistance in Criminal Matters.
    Paragraph 1 requires that requests be in writing. If 
exigent circumstances make this impracticable, it is understood 
that the Central Authorities will communicate the written 
request within ten days of an oral one.
    Paragraph 2 lists information which is deemed crucial to 
the efficient operation of the Treaty and so must be included 
in each request. Paragraph 3 outlines kinds of information 
which are important but not crucial, and which should be 
provided ``to the extent necessary and possible.''
    In keeping with the intention of the Parties that requests 
be as simple and straightforward as possible, there is no 
requirement under the Treaty that a request be legalized or 
certified in any particular manner.

Article 5--Execution of requests

    Paragraph 1 requires each Party to ``take whatever steps it 
deems necessary'' to execute a request.
    The Treaty contemplates that the Central Authority which 
receives a request will first review the request and 
immediately notify the Central Authority of the Requesting 
Party if it is of the opinion that the request does not comply 
with the Treaty's terms. If the request does satisfy the 
Treaty's requirements and the assistance sought can be provided 
by the Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested Party, the Central Authority will see to it that the 
request is promptly transmitted to the correct entity for 
    When the United States is the Requested Party, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution. A request may be transmitted to state 
officials for execution, however, if the Central Authority 
deems it more appropriate to do so.
    Paragraph 1 authorizes and requires the federal, state, or 
local agency or authority selected by the Central Authority to 
take whatever action would be necessary and within its power to 
execute the request. This is not intended or understood to 
authorize the use of the grand jury in the United States for 
the collection of evidence pursuant to a request from the 
United Kingdom. Rather, it is anticipated that when a request 
from the United Kingdom requires compulsory process for 
execution, the Department of Justice would ask a federal court 
to issue the necessary process under Title 28, United States 
Code, Section 1782 and the provisions of the Treaty.
    It is understood that if execution of the request entails 
action by a judicial authority or administrative agency, the 
Central Authority of the Requested party shall arrange for the 
presentation of the request to that court or agency at no cost 
to the other Party. Since the cost of retaining counsel abroad 
to present and process letters rogatory is sometimes quite 
high, this provision for reciprocal legal representation should 
be a significant advance in international legal cooperation. It 
is also understood that should the Requesting Party choose to 
hire private counsel in connection with a particular request, 
it is free to do so.
    Paragraph 3 requires that the method of execution specified 
in the request shall be followed except to the extent that the 
method is incompatible with the laws and practices of the 
Requested Party. This provision is necessary for the following 
two reasons.
    First, there are significant differences between the 
procedures that must be followed by United States and United 
Kingdom authorities in collecting evidence in order to 
safeguard the admissibility of that evidence at trial. For 
instance, United States law permits documentary evidence taken 
abroad to be admitted into evidence, if duly certified and if 
the defendant was given a fair opportunity to test its 
authenticity.\20\ Similarly, United States courts sometimes 
prefer that depositions abroad be videotaped in order to better 
preserve and present to the jury the witness's demeanor. While 
United Kingdom law enforcement officials do not utilize these 
procedures in preparing cases for submission to United Kingdom 
courts a this time, there is no legal prohibition against these 
techniques being used in the United Kingdom to prepare evidence 
for use in the United States.
    \20\ 18 U.S.C. Sec. 3505.
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting Party's investigation could be 
hampered--if the Requested Party were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    Both delegations agreed that the Treaty's primary goal of 
enhancing law enforcement could be frustrated if the Requested 
Party were to insist on producing evidence in a manner which 
renders the evidence inadmissible or less persuasive in the 
Requesting Party. For this reason, paragraph 3 requires the 
Requested Party to follow the procedure outlined in the request 
to the extent that it can, even if the procedure is not that 
usually employed in its own proceedings. However, if the 
procedure called for in the request is unlawful in the 
Requested Party (as opposed to simply unfamiliar there), the 
appropriate procedure under the law applicable for 
investigations or proceedings in the Requested Party will be 
    Paragraph 4 states that a request for assistance need not 
be executed immediately when execution would interfere with an 
investigation or legal proceeding in progress in the Requested 
Party. The Central Authority of the Requested Party will 
determine when to apply this provision. The Central Authority 
of the Requested Party may, in its discretion, take such 
preliminary actions as it deems advisable to obtain or preserve 
evidence which many otherwise be lost before the conclusion of 
the investigation or legal proceeding taking place in that 
Party. If this is done, the Requesting Party should not be 
seriously disadvantaged by having to wait for the conclusion of 
the proceedings in the Requested Party. This paragraph, like 
article 3(2), allows the Requested Party to consider imposing 
appropriate conditions on its assistance after consultation 
with the Requesting Party.
    Paragraph 5 requires that the Central Authority of the 
Requested Party facilitate the participation in the execution 
of requests any persons specified in the requests.
    Paragraph 6 states that the Requested Party may request 
information from the Requesting Party in order to give effect 
to its request.
    Paragraph 8 requires that the Central Authority of the 
Requested Party promptly notify the Central Authority of the 
Requesting Party of the outcome of the execution of the 
request. This ensures that the Requesting party will be kept 
informed of the status of the execution of its request and that 
when a request is only partly executed, the Requested Party 
will provide some explanation for not providing all of the 
information or evidence sought.

Article 6--Costs

    This article proceeds from the basic principle that the 
Requested Party should bear all expenses incurred in the 
execution of the request, but obliges the Requesting Party to 
pay fees of private experts and allowances and expenses related 
to travel, unless otherwise mutually decided in a particular 
case. For example, a major case in the Requesting Party could 
involve substantial (and costly) investigative efforts in the 
Requested Party, while the law enforcement authorities of the 
two Parties have finite resources. Therefore, paragraph 2 
requires that the Central Authorities consult ``with a view to 
reaching agreement'' on the conditions under which the request 
shall be executed and the manner in which costs shall be 
allocated'' if execution of the request requires costs or other 
resources of an extraordinary nature.

Article 7--Confidentiality and limitations on use

    Paragraph 1 states that upon request, the Requested Party 
shall keep confidential any information that might indicate 
that a request has been made or responded to. If the request 
cannot be executed without breaching confidentiality (as may be 
the case if execution requires a public judicial proceeding in 
the Requested Party), the Requested Party shall so inform the 
Requesting Party, which shall then determine the extent to 
which it wishes the request to be executed.
    Paragraph 2 requires that the Requesting Party refrain from 
using any information provided under the Treaty for any purpose 
other than stated in the request without the consent of the 
Central Authority of the Requested Party.
    The United Kingdom delegation expressed particular concern 
that information it supplies in response to United States 
requests receive the same kind of confidentiality accorded 
exchanges of information via diplomatic channels, and not be 
disclosed under the Freedom of Information Act. The Parties 
agreed that this clause of the Treaty, as drafted, would mean 
that a Requested Party would not use or disclose any 
information or evidence obtained under the Treaty for any 
purposes unrelated to the proceedings stated in the request 
without the prior consent of the Requested Party.
    If the United States government were to receive evidence 
under the Treaty in one case which proved to be exculpatory to 
the defendant in another case, the United States could be 
obliged to share the evidence with the defendant in the second 
case. 21 Therefore, in an exchange of diplomatic notes 
dated January 6, 1994, the Parties agreed that paragraph 2 
shall not preclude the use or disclosure of information to the 
extent that there is an obligation to do so under the 
Constitution or law of the Requesting Party in a criminal 
prosecution. Notice of any such proposed disclosure shall be 
provided by the Requested Party in advance.
    \21\ See Brady v. Maryland, 373 U.S. 83 (1963).
    Once evidence obtained under the Treaty has been revealed 
to the public in a trial, that information effectively becomes 
part of the public domain. The information is likely to become 
a matter of common knowledge, perhaps even cited or described 
in the press. When such information has been made public, it is 
practically impossible for the Central Authority of the 
Requesting Party to block the use of that information by third 
parties. Therefore, paragraph 3 provides that once information 
or evidence becomes public, the Requesting Party is free to use 
it for any purpose.

Article 8--Taking testimony and producing evidence in the territory of 
        the Requested Party

    Paragraph 1 states that a person in the Requested Party may 
be compelled, if necessary,\22\ to appear and testify or 
produce documents, records, of articles of evidence. The 
compulsion contemplated by this article can be accomplished by 
subpoena (if the Requested Party's law so provides) or any 
other means available under the law of that Party. This 
provision means that the procedure for executing a request 
under the Treaty would have to conform with the laws of the 
Requested Party. It should be stressed that it is the Treaty 
that determines whether assistance is required, and local law 
governs the different (if equally important) question of how 
the assistance is provided.
    \22\ Use of the words ``if necessary'' appears at first glance to 
make the obligation to execute a request for testimony discretionary. 
However, the words ``if necessary'' were used in the Treaty in order to 
make it clear that compulsory process is not required in every case. 
For instance, a witness may be willing to provide the needed testimony 
voluntarily. Use of the words ``may be compelled'' without the words 
``if necessary'' might appear to oblige the Requested Party to issue a 
subpoena or other compulsory process even if it was not necessary. The 
United States and United Kingdom delegations fully intended that the 
Treaty establish a mandatory obligation to arrange the production of 
the requested testimony, leaving it to the Requested Party's discretion 
whether to use compulsory judicial process to fulfill that obligation.
    Paragraph 2 ensures that no person would be compelled to 
furnish information if the person has a right not to do so 
under the law of the Requested Party. Thus, a witness 
questioned in the United States pursuant to a Treaty request 
from the United Kingdom is guaranteed the right to invoke any 
of the testimony privileges (e.g., attorney-client, inter-
spousal) usually available in proceedings in the United States, 
as well as the constitutional privilege against self-
incrimination. \23\ Of course, a witness testifying in the 
United Kingdom may raise any of the similar privileges 
available under United Kingdom law.
    \23\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
    Since the law is unclear on the extent to which a person in 
one country may stand on a privilege available only under the 
law of a foreign country, the Treaty neither requires nor 
forbids the recognition in the Requested Party of privileges 
existing only under the law of the Requesting Party. Paragraph 
2 does require that in cases in which a witness attempts to 
assert a privilege unique to the jurisprudence of the 
Requesting Party, the authorities in the Requested Party will 
take the desired evidence and turn it over to the Requesting 
Party along with notice that it was obtained over a claim of 
privilege. The applicability of the privilege can then be 
determined in the Requesting Party, where the scope of the 
privilege and the legislative and policy reasons underlying it 
are best understood.\24\ A similar provision appears in many of 
our recent mutual legal assistance treaties.
    \24\ Cf., F. & J. Dick Co. v. Bass, 295 F. Supp. 758 (N.D. Ga. 
1966); Reg. v. Rathbone, Exp. Dikko, 2 W.L.R. 375 (1985).
    Paragraph 3 requires that upon request, the Central 
Authority of the Requested Party must notify the Central 
Authority of the Requesting Party ``in advance'' of the date 
and place of the taking of testimony. Although the time period 
``in advance'' is undefined, the negotiations understood that 
each Party would attempt to accommodate the needs of the other 
in this regard.
    Advance notice is of particular importance to the United 
States because our authorities sometimes rely heavily on 
deposition testimony when a witness is unwilling or unable to 
come to the United States to testify at trial. With assurances 
of advance notice, a United States trial court can order that a 
deposition take place in the United Kingdom on a date to be 
specified by British authorities; the United States court may 
even indicate a preferred date. The Central Authorities will 
attempt to accommodate the court and will notify the court 
sufficiently in advance of the depositions in order to permit 
the parties to be present.
    Paragraph 4 provides that interested parties, including the 
defendant and defense counsel in criminal cases, may be 
permitted to be present and pose questions during the taking of 
testimony under this article.
    Paragraph 5 states that documentary information produced 
pursuant to the Treaty may be authenticated by having a 
custodian of records or other qualified person complete, under 
oath, a certification in a specified form. A model of the form 
to be used by the United States is appended to the Treaty. 
Thus, the provision establishes a procedure for authenticating 
United Kingdom records for use in the United States in a manner 
essentially similar to that provided for under Title 18, United 
States Code, Section 3505.\25\
    \25\ It is understood that the second and third sentences of the 
article provide for the admissibility of authenticated documents as 
evidence without additional foundation or authentication. With respect 
to the United States, this paragraph is self-executing.
    The final sentences of the article provide that the 
evidence is ``admissible,'' but it will be the responsibility 
of the judicial authority presiding at the trial to determine 
whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (e.g., relevance and materiality) will still 
have to be satisfied in each case.

Article 9--Records of government agencies

    This article serves to ensure speedy access to government 
records, including records of the executive, judicial, and 
legislative branches at the federal, state, and local levels.
    Paragraph 1 obliges each Party to furnish the other copies 
of publicly available records of government departments and 
agencies. The term ``government departments and agencies'' 
includes executive, judicial, and legislative units at the 
federal, state, and local levels in either Party.
    Paragraph 2 provides that the Requested Party ``may'' share 
with the Requested Party copies of non-public information in 
its government files. The article states that the Requested 
Party may only utilize its discretion to turn over information 
in its files ``to the same extent and under the same 
conditions'' as it would with respect to its own law 
enforcement or judicial authorities. It was the intention of 
the negotiators for the Central Authority of the Requested 
Party to determine the extent and the nature of the conditions. 
The discretionary nature of this provision is necessary because 
official files in each Party contain some information that 
would be available to investigative authorities in that Party, 
but which justifiably would be deemed inappropriate to release 
to a foreign government. Examples of instances in which 
assistance might be denied under this provision would be when 
disclosure of the information is barred by law in the Requested 
Party or when the information requested would identify or 
endanger an informant, prejudice sources of information needed 
in future investigations, or reveal information which was made 
available to the Requested Party in return for a promise that 
it not be divulged.
    Paragraph 3 states that documents provided under this 
article will be authenticated pursuant to a certificate in a 
form appended to the Treaty. Thus, the authentication will be 
conducted in a manner similar to that required by rule 902(3), 
Federal Rules of Evidence, and the records will be admissible 
into evidence without additional foundation or authentication.
    In discussing this article, the United States delegation 
explained the significance of Title 26, United States Code, 
Section 6103(k)(4), and indicated that if the negotiators 
agreed that the Treaty was intended to be a vehicle by which 
tax information could be provided, then the United States could 
give the United Kingdom assistance when it needs information in 
the possession of the Internal Revenue Service which otherwise 
could not be furnished. The United Kingdom delegation responded 
that the assistance it intends to grant will include tax 
information in some circumstances. Therefore, the United States 
delegation was satisfied that the Treaty, like the other United 
States mutual legal assistance treaties, is a ``convention'' 
within the meaning of Title 26, United States Code, Section 
    The article refers to the provision of copies of government 
records, but the Requested Party would not be precluded from 
delivering the original government records to the Requesting 
Party, upon request, if the law in the Requested Party permits 
it and if it is essential to do so.

Article 10--Personal appearance in the territory of the Requesting 

    This article provides that upon request, the Requested 
Party shall invite witnesses who are located in its territory 
and needed to testify in the Requesting Party for that purpose. 
An appearance in the Requesting Party under this article is not 
mandatory; the invitation may be refused by the prospective 
    Of course, the Requesting Party would be expected to pay 
the expenses of such an appearance. It is assumed that such 
expenses would normally include the costs of transportation, 
room, and board. When the witness is to appear in the United 
States, a nominal witness fee would also be provided.
    Paragraph 3 provides that a person who is in the Requesting 
Party to testify or for confrontation purposes pursuant to the 
Treaty shall be immune from criminal prosecution, detention or 
any other restriction on personal liberty, or service of 
process in a civil suit while present in the Requesting Party. 
This ``safe conduct'' is limited to acts or convictions which 
preceded the witness's departure from the Requested Party. It 
is understood that this provision does not, of course, prevent 
the prosecution of a person for perjury or any other crime 
committed while in the Requesting Party.
    Paragraph 4 states that the safe conduct guaranteed by this 
article expires 15 days after the witness has been officially 
notified that the witness's presence is no longer required, or 
if the witness leaves the territory of the Requesting Party and 
thereafter returns to it.

Article 11--Transfer of persons in custody

    In some recent criminal cases, a need has arisen for the 
testimony at a trial in one country of a witness serving a 
sentence in another country. In some instances, the country 
involved was willing and able to ``lend'' the witness to the 
United States government, provided the witness would be 
carefully guarded while here and returned at the conclusion of 
the testimony.\26\ In some recent cases, the United States 
government was able to arrange for federal inmates in the 
United States to be transported to foreign countries to testify 
in criminal proceedings there.\27\ This article calls for 
mutual assistance in situations of this kind and thereby 
provides an express legal basis for cooperation in these 
matters. The provision is based on article 26 of the United 
States-Switzerland Treaty, which is in turn based on article 11 
of the European Convention on Mutual Assistance in Criminal 
    \26\ Federal law provides for this situation. See 18 U.S.C. 
Sec. 3508.
    \27\ For example, in September, 1986, the Justice Department and 
the Drug Enforcement Administration arranged for four federal prisoners 
to be transported to the United Kingdom to testify for the Crown in 
Regina v. Dye, a major narcotics prosecution in Central Criminal Court 
(``the Old Bailey'') in London.
    Recently, some persons in custody in the United States have 
demanded permission to travel to other countries to be present 
at depositions to be taken there in connection with their 
criminal cases.\28\ This article addresses this situation.
    \28\ See United States v. King, 552 F.2d 833 (9th Cir. 1976) 
(defendants insisted on travelling to Japan to be present at deposition 
of certain witnesses in prison).
    Paragraph 2 provides express authority for the receiving 
Party to maintain the person in custody throughout the person's 
stay there, unless the sending Party specifically authorizes 
release. The paragraph also obliges the receiving Party to 
return the person in custody to the sending Party, and provides 
that this return will occur as soon as circumstances permit or 
as otherwise agreed to. The transfer of a prisoner under this 
article requires the consent of the person involved and of the 
Parties, but the prisoner need not consent to be returned to 
the sending Party.
    Once the receiving Party has agreed to assist the sending 
Party in its investigation or proceeding pursuant to this 
article, it would be inappropriate for the receiving Party to 
hold the person transferred and require formal extradition 
proceedings before permitting the person's return to the 
sending Party. Therefore, paragraph 2(c) contemplates that 
extradition proceedings will not be required before the status 
quo is restored by the return of the person transferred.

Article 12--Location or identification of persons

    This article provides that the Requested Party is to 
ascertain the location or identity in the Requested Party of 
persons (such as witnesses, potential defendants, or experts) 
when such information is of importance in connection with an 
investigation or proceeding covered by the Treaty. The Treaty 
requires only that the Requested Party make ``best efforts'' to 
locate or identify such persons.

Article 13--Service of documents

    This article creates an obligation on the part of the 
Central Authority of the Requested Party to arrange for or 
effect the service of summonses, complaints, subpoenas, or 
other legal documents at the request of the Central Authority 
of the Requesting Party.
    It is expected that when the United States is the Requested 
Party, service under the Treaty will be made by registered mail 
(in the absence of a request by the United Kingdom to follow 
any other specified procedure for service) and by the United 
States Marshals Service in instances when personal service is 
    It is anticipated that this article will facilitate service 
of subpoenas on United States citizens located in the United 
Kingdom pursuant to United States law.\29\
    \29\ See 28 U.S.C. Sec. 1783.
    Paragraph 3 states that when the document to be served 
calls for the appearance of a person in the Requesting Party, 
the document must be transmitted by the Requesting Party to the 
Requested Party by a reasonable time before the scheduled 
appearance. Thus, if the United States were to ask the United 
Kingdom to serve a subpoena issued pursuant to Title 28, United 
States Code, Section 1783 on a United States citizen in the 
United Kingdom, the request would have to be submitted well in 
advance of the hearing or trial at which the citizen is 
expected to appear. This is to allow sufficient time for 
service to be effected and for the person to make arrangements 
for the appearance.
    Paragraph 4 requires that proof of service be returned to 
the Requesting Party.

Article 14--Search and seizure

    It is sometimes in the interests of justice for one Party 
to ask another to search for, secure, and deliver articles or 
objects needed as evidence or for other purposes. United States 
courts can and do execute such requests under Title 28, United 
States Code, Section 1782.\30\ The United Kingdom delegation 
felt that such requests could be carried out under current 
United Kingdom law if made by letters rogatory.
    \30\ See, e.g.,United States ex rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No. 84-67-Misc-018 (M.D. 
Fla., Orlando Div.).
    This article creates a framework for handling such 
requests. Pursuant to paragraph 1's requirement that the 
request include ``information justifying such action under the 
laws of the Requested Party,'' a request to the United States 
from the United Kingdom will have to be supported by probable 
cause for the search. A United States request to the United 
Kingdom would have to satisfy the corresponding evidentiary 
standard there. It is contemplated that the request would be 
carried out in strict accordance with the law of the Requested 
    Paragraph 2 allows the Central Authority of the Requested 
Party to refuse a request for search and seizure if it 
necessitates actions that would not be legally exercisable in 
the Requested Party in similar circumstances.
    Paragraph 3 is designed to ensure that a record is kept of 
articles seized and delivered under the Treaty. This provision 
effectively requires that detailed and reliable records be kept 
regarding the condition of the article at the time of the 
seizure and the chain of custody between the time of seizure 
and time of delivery to the Requesting Party.
    The article also requires that the certificates prepared 
for this purpose be admissible at trial without additional 
authentication. This is intended to avoid the burden, expense, 
and inconvenience to the Requested Party of sending its 
officials to the Requesting Party to provide testimony 
concerning authentication and the chain of custody every time 
evidence produced pursuant to this article is introduced. the 
fact that the certificates are admissible without additional 
authentication leaves the trier of fact free to accord the 
certificates such weight as is due.
    Paragraph 4 states that the Requested Party need not 
surrender any articles it has seized unless it is satisfied 
that any interests of third parties therein are adequately 
protected. This article is similar to provisions in many United 
States extradition treaties.\31\
    \31\ See, e.g., United States-Canada Extradition Treaty, Dec. 3, 
1971, art. 15, 27 U.S. T. 983, T.I.A.S. No. 8237.

Article 15--Return of documents and articles

    This article provides that any documents, records or 
articles of evidence furnished under the Treaty must be 
returned to the Requested Party unless such return is waived by 
the Requested Party. Documents or items provided to the United 
States pursuant to a Treaty request therefore must be returned 
to the United Kingdom once they are no longer needed here, 
unless authorities in the United Kingdom give permission for a 
different disposition. The negotiators anticipated that unless 
original records or articles of some intrinsic value were 
provided, the Requested Party will routinely waive return, but 
this is a matter best left to development of practice.

Article 16--Assistance in forfeiture proceedings

    A primary goal of the Treaty is to enhance the efforts of 
both Parties in the war against narcotics trafficking. One 
major strategy in drug enforcement by United States authorities 
is to seize and confiscate the money, property, and other 
proceeds of drug trafficking.
    This article is designed to further that strategy. 
Paragraph 1 states that the Parties shall aid one another in 
proceedings involving the identification, tracing, seizure or 
forfeiture of the proceeds and instrumentalities of crime. The 
traditional rule was that no country was obliged to aid another 
in the execution of penal laws respecting enforcement of fines 
or forfeiture of criminal assets. However, this rule is 
gradually changing, at least in instances in which the foreign 
country's laws are designed to provide redress to individual 
victims, or when the foreign country has already perfected its 
title to the assets it claims.\32\ Moreover, any country is 
always free to assume a treaty obligation broader than a 
customary international obligation. In article 16, the Parties 
agree to aid one another, upon request, in proceedings 
involving the identification, tracing, seizure and forfeiture 
of illegally obtained assets, in restoring illegally obtained 
funds or articles to their rightful owners, and in the 
collection of fines imposed at sentencing. The term ``proceeds 
and instrumentalities'' would include items such as money, 
vessels, or other valuables either used in the commission of 
the offense or obtained as a result of the offense.
    \32\ See, e.g., Mutual Assistance in Criminal Matters: A 
Commonwealth Perspective at 32-34 (prepared by Dr. David Chaikin and 
Commonwealth Secretariat for meeting of Commonwealth Law Ministers, 
Colombo, Sri Lanka, Feb. 14-18, 1985).
    Thus, if the law of the Requested Party enables it to seize 
assets in aid of a proceeding in the Requesting Party or to 
enforce a judgment of forfeiture or fine levied in the 
Requesting Party, the Treaty requires the Requested Party to do 
so. The article does not mandate institution of forfeiture 
proceedings in either Party against property identified by the 
other Party if the relevant prosecutive authorities do not deem 
it proper to do so.
    Paragraph 2 states that one Part may notify the other of 
the location of assets in its territory which may be 
forfeitable or otherwise subject to seizure. Upon receipt of 
notice under this article, the Central Authority of the Party 
in which the proceeds are located may take whatever action is 
appropriate under the law of that Party. For instance, if the 
assets in question are located in the United States and were 
obtained as a result of a fraud in the United Kingdom, they may 
be seized in aid of a prosecution under Title 18, United States 
Code, Section 2314,\33\ or may be made subject to a temporary 
restraining order in anticipation of a civil action for the 
return of the assets to the lawful owner. If the assets are 
located in the United Kingdom, we expect similar action may be 
taken pursuant to United Kingdom law.\34\ If the assets in 
question are the fruit of drug trafficking, it is anticipated 
that the Parties will move quickly and expeditiously to freeze 
them and ensure their confiscation.
    \33\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad. 18 U.S.C. Sec. 2314.
    \34\ Under some circumstances, English common law at the present 
time permits this to be done. See Mareva Compania Naviera SA v. Int'l 
Bulkcarriers SA, All ER 213 (1980), Bankers Trust Co. v. Shapira, 1 
W.L.R. 1274 (1980).
    Paragraph 3 provides for the disposition of forfeited 
proceeds or property. Such disposition shall be in accordance 
with the law of the Requested Party. The Requested Party may 
keep the forfeited assets or the proceeds thereof or share them 
with the Requesting Party.
    United States law permits the transfer of forfeited 
property or a portion of the proceeds of the sale thereof to 
any foreign country that participated directly or indirectly in 
the seizure or forfeiture of the property.\35\ The amount 
transferred generally reflects the contribution of the foreign 
government in the law enforcement activity that led to the 
seizure or forfeiture of the property under United States law. 
United States sharing statutes require that the transfer 
recommended by the Attorney General or the Secretary of the 
Treasury be authorized in an international agreement between 
the United States and the foreign country and be agreed to by 
the Secretary of State. Article 16 is intended to authorize and 
provide for the transfer of forfeited assets or the proceeds of 
such assets to the United Kingdom pursuant to United States 
sharing statutes.
    \35\ E.g., 18 U.S.C. Sec. 981(i)(1).
    Title 18, United States Code, Section 981(a)(1)(B) also 
permits the forfeiture to the United States of property ``which 
represents the proceeds of an offense against a foreign nation 
involving the manufacture, importation, sale, or distribution 
of a controlled substance (as such term is defined for the 
purposes of the Controlled Substances Act) within whose 
jurisdiction such offense or activity would be punishable by 
death or imprisonment for a term exceeding one year and which 
would be punishable by imprisonment for a term exceeding one 
year if such act of activity had occurred within the 
jurisdiction of the United States.'' The United States 
delegation intended that article 16 will permit full 
implementation of this legislation.

Article 17--Compatibility with other arrangements

    This article provides that the Parties are free to provide 
assistance pursuant to other international agreements or 
arrangements or other agreements or practices which may be 
applicable between the two Parties. It also provides that the 
Treaty shall not be deemed to prevent recourse to any 
assistance available under the internal laws of either Party. 
Thus, the Treaty leaves the law of the United States and the 
United Kingdom on letters rogatory completely undisturbed and 
does not alter any pre-existing agreements concerning 
    On such agreement discussed by the Parties is the Agreement 
Concerning the Investigation of Drug Trafficking Offenses and 
the Seizure and Forfeiture of Proceeds and Instrumentalities of 
Drug Trafficking, done at London February 9, 1989, which is 
also known as ``the Drug Agreement.'' Since the Drug Agreement 
was intended as an interim measure pending negotiation of this 
Treaty, article 16 of the Drug Agreement states that it will 
terminate when the Treaty enters into force. Both the United 
States and the United Kingdom, however, now prefer that the 
Drug Agreement remain in effect. Therefore, in a January 6, 
1994, exchange of diplomatic notes, United States and the 
United Kingdom representatives indicated their governments' 
desires that the Drug Agreement remain in force notwithstanding 
the entry into force of the Treaty. The Parties also amended 
the Drug Agreement by deleting the passage which would 
otherwise require its expiration.

Article 18--Consultation

    Paragraph 1 calls upon the Parties to consult on the 
implementation of the Treaty, either generally or with respect 
to particular requests for assistance. Experience has shown 
that as the Central Authorities of mutual assistance treaties 
work together, they learn practical ways to make implementation 
of the treaties more effective. A similar requirement is found 
in other mutual legal assistance treaties.
    Paragraph 1 indicates that consultations maybe particularly 
appropriate when ``in the opinion of either Party or Central 
Authority, the expenses or other resources required for 
implementation of this Treaty are of an extraordinary nature.* 
* *'' Article 6(2) provides for consultations if the execution 
of any individual request might require extraordinary costs or 
other resources on the part of the Requested Party. The United 
Kingdom delegation was concerned, however, that situations 
might arise in which no single request, standing alone, is 
unreasonable, but one Party receives such a large volume of 
requests from the other Party that an untenable administrative 
burden is imposed. The United States delegation did not agree 
that either Party should be able to deny requests on this basis 
but did agree that consultations between the Central 
Authorities would be appropriate in such circumstances.
    Paragraph 1 also indicates that consultations may be 
appropriate if the Requested Party's execution of the request 
might place it in conflict with its obligations under other 
bilateral or multilateral arrangements. The United Kingdom 
requested this provision because it is a member-state of the 
European Union (EU), and its obligations to its fellow EU 
member-states are continually evolving pursuant to EU 
directives. This provision ensures discussions and 
consultations between the Parties should those obligations 
appear inconsistent with the terms of the Treaty.
    Paragraph 2 is similar to article 17(3) of the United 
States-Cayman Islands Mutual Legal Assistance Treaty. It 
provides that neither Party shall enforce any compulsory 
measures requiring an action to be performed by a person 
located in the territory of the other Party unless the Party 
contemplating such enforcement has first exhausted the 
procedures established in paragraphs 3 and 4.\36\ In an 
exchange of diplomatic notes dated January 6, 1994, the Parties 
agreed on a definition of ``compulsory measures.'' \37\
    \36\ This provision is somewhat broader than article 17(3) of the 
United States-Cayman Islands Treaty, which deals only with compulsory 
measures relating to the production of documents. See U.S.-Cayman 
Islands Mutual Legal Assistance Treaty, July 3, 1986, art. 17(3), 
T.I.A.S. No. --.
    \37\ The exchange of notes provides that ``compulsory measures'' 
(including, in the case of the United States, a grant jury subpoena) 
are those measures that require an action to be performed by any person 
located in the territory of the Party not issuing the measure and that 
fall within one of the following categories:

          (i) any measure for the production of evidence located in the 
        territory of the Party not issuing the measure;
          (ii) any measure relating to assets in the territory of the 
        Party not issuing the measure; or
          (iii) any measure compelling a natural person who is in the 
        territory of one Party to make a personal appearance in the 
        territory of the other Party unless:

                  (a) the Party compelling the appearance has lawfully 
                obtained jurisdiction over that person; or
                  (b) the person is a national of the Party compelling 
                the appearance,

        without prejudice to whether a Party objects to these 
        compulsory measures or the jurisdiction claimed by the other 
        Party. The Central Authorities may add to or amend these 
        categories as may be agreed to in writing between the Parties.
    Paragraphs 3 and 4 require that the Central Authority of a 
Party intending to enforce a compulsory measure inform the 
other Central Authority, which may request formal consultations 
regarding the matter. If such a request is made, the Central 
Authorities shall consult in an effort to determine whether the 
Treaty could be used to obtain the needed evidence without 
enforcement of the compulsory measure. The Central Authorities 
shall also consider other means of resolving the matter, such 
as introducing different evidence to prove the fact at issue, 
or employing such other agreements or arrangements as may be 
    Paragraph 5 places strict time limits on this consultation 
process. If the Central Authority proposing to enforce a 
compulsory measure receives a request from the other Central 
Authority for consultations on the matter, it may not enforce 
the measure for 60 days after receipt of the request for 
consultations. If the consultations are unsuccessful, or if the 
delay in enforcing the measure is jeopardizing the successful 
completion of the proceedings in the Party proposing to enforce 
the compulsory measure, written notice to this effect may be 
given, and the consultation obligations under the Treaty shall 
terminate 21 days after the date of such notice.
    Paragraph 6 states that even in those cases in which the 
Parties' obligations under this article have been fulfilled, 
each Party shall continue to exercise moderation and restraint. 
This is similar to obligations undertaken in the exchange of 
notes dated July 3, 1986, which accompanied the United States-
Cayman Islands Treaty. The requirement of ``moderation and 
restraint'' contemplated in this paragraph is not meant to 
imply that the United States will forego the right to 
unilaterally enforce compulsory measures that are not 
foreclosed by the Treaty itself. It is intended to signal that 
both Parties maintain open lines of communication and continue 
to work together even when the time limits on consultation have 
    Both delegations viewed article 18 as a useful vehicle for 
minimizing conflict over investigatory techniques and perceived 
extraterritorial process without prejudice to the principles of 
either Party. The United Kingdom delegation was concerned that 
the article does not go as far as it would have wished, since 
it does not constrain the issuance and enforcement of 
compulsory measures. The United States was unable to agree to 
restrictions only regarding the issuance of compulsory 
    Therefore, in an exchange of diplomatic notes dated January 
6, 1994, the government of the United States, in the spirit of 
cooperation, mutual respect and good will, and in the interests 
of facilitating the cooperative use of the Treaty with respect 
to criminal offenses that fall within its scope, and of 
avoiding measures which could result in conflicts between our 
respective laws, policies, or national interests, informed the 
government of the United Kingdom that upon Senate advice and 
consent to ratification of the Treaty, the United States 
Department of Justice will take the following measures to 
reduce the potential for conflict in this regard:
          (1) instruct all federal prosecutors not to seek 
        grand jury or trial subpoenas for the production of 
        evidence located in the United Kingdom in any matter 
        covered by the Treaty, unless the United States Central 
        Authority has concluded that the provisions of article 
        18 have been satisfied;
          (2) instruct all federal prosecutors not to enforce 
        any grand jury subpoenas, trial subpoenas, 
        administrative subpoenas or agency summonses that seek 
        evidence located in the United Kingdom in any matter 
        covered by the Treaty, unless the provisions of article 
        18 have been satisfied;
          (3) use its best efforts to coordinate the issuance 
        of administrative subpoenas or summonses by other 
        agencies for evidence located in the United Kingdom in 
        any matter covered by the Treaty, by advising all 
        United States government agencies not to seek such 
        process without consultation and coordination with the 
        United States Central Authority; and
          (4) use its best efforts to bring sensitivity to 
        other matters which may involve potential conflicts 
        over any matter covered by the Treaty, and to encourage 
        the careful screening and evaluation of such matters 
        before actions are taken.
    It was also agreed that the Central Authority of each Party 
will undertake to discuss with the other any case brought to 
its attention involving an exercise of jurisdiction with 
respect to criminal matters falling within the Treaty which may 
result in the production of evidence located in the territory 
of the other Party, with a view to resolving any differences in 
a mutually satisfactory manner.

Article 19--Definitions

    This article defines the term ``proceedings'' for purposes 
of the Treaty. It specifies that ``proceedings'' relate to 
criminal matters, and include any measure or step taken in 
connection with the investigation or prosecution of criminal 
offenses. The term also includes the freezing, seizure, or 
forfeiture of the proceeds and instrumentalities of criminal 
offenses and the imposition of fines related to criminal 
    In the United States, prosecutors may pursue in rem 
forfeiture with respect to crimes such as drug trafficking, and 
such proceedings may be civil or administrative in nature. The 
term ``proceedings'' for purposes of the Treaty includes such 
civil or administrative forfeiture proceedings that relate to a 
criminal matter.
    Article 19 further provides that the Central Authorities 
may at their discretion treat as ``proceedings'' for purposes 
of the Treaty such hearings before or investigations by any 
court, administrative agency, or administrative tribunal with 
respect to the imposition of civil or administrative sanctions 
as may be agreed to in writing between the Parties. This 
provision was agreed to because in both the United States and 
the United Kingdom, swift and efficient civil or administrative 
sanctions sometimes are as much an integral part of combatting 
criminal behavior as actual criminal prosecution. For instance, 
efforts to illegally manipulate the securities markets can be 
addressed by a criminal investigation of the manipulator, or by 
an administrative action to halt the relevant trading, or a 
civil action to disgorge unlawfully obtained profits. Other 
examples include an administrative action to cancel the 
driver's license of a person convicted of drunk driving, or an 
attempt to disbar a lawyer who defrauded clients.
    The Securities and Exchange Commission (SEC) and the 
Commodities Futures Trading Commission (CFTC) were concerned 
that their investigations involving conduct that might fairly 
be described as criminal be eligible for coverage under this 
provision of the Treaty. The United Kingdom agreed to this. 
However, the SEC and CFTC did not want their civil and 
administrative proceedings to be covered by the Treaty's 
exclusivity and first-resort provisions under article 18 
without their consent. Therefore, it was agreed that a civil or 
administrative matter before the SEC or CFTC will be covered by 
the Treaty only if both Central Authorities agree to this under 
paragraph 2, and only when that agreement has been confirmed 
via diplomatic channels.

Article 20--Territorial application

    This article provides that with respect to the United 
Kingdom, the Treaty shall apply to England, Wales, Scotland, 
Northern Ireland, the Isle of Man, the Channel Islands, and any 
other territory whose foreign policy is the responsibility of 
the United Kingdom \38\ and to which the Treaty shall have been 
extended by agreement between the Parties. This article gives 
either Party the right to terminate such extension agreements 
upon six months notice. The mutual legal assistance treaty 
between the United States and the United Kingdom regarding the 
Cayman Islands was subsequently extended to several other 
United Kingdom dependent territories in the Caribbean. It is 
possible that the Parties may agree to extend the Treaty in a 
similar fashion.
    \38\ An example of such a territory is Bermuda.

Article 21--Ratification and entry into force

    This article contains standard language concerning the 
procedures for the exchange of the instruments of ratification 
and the entry into force of the Treaty.

Article 22--Termination

    This article contains the standard provision in mutual 
legal assistance treaties concerning the procedure for 
terminating the Treaty. Either Party must provide six months 
notice of an intent to terminate the Treaty.

              VIII. Text of the Resolution of Ratification

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of The Treaty Between the Government of the United 
States of America and the Government of the United Kingdom of 
Great Britain and Northern Ireland on Mutual Legal Assistance 
in Criminal Matters, signed at Washington on January 6, 1994, 
together with a Related Exchange of Notes signed the same date. 
The Senate's advice and consent is subject to the following two 
provisos, which shall not be included in the instrument of 
ratification to be signed by the President:

          Nothing in the Treaty requires or authorizes 
        legislation or other action by the United States of 
        America that is prohibited by the Constitution of the 
        United States as interpreted by the United States.
          Pursuant to the rights of the United States under 
        this Treaty to deny requests which prejudice its 
        essential public policy or interest, the United States 
        shall deny a request for assistance when the Central 
        Authority, after consultation with all appropriate 
        intelligence, anti-narcotic, and foreign policy 
        agencies, has specific information that a senior 
        government official who will have access to information 
        to be provided under this Treaty is engaged in a 
        felony, including the facilitation of the production or 
        distribution of illegal drugs.