[Senate Executive Report 104-26]
[From the U.S. Government Publishing Office]



104th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      104-26
_______________________________________________________________________


 
  TREATY WITH THE PHILIPPINES ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL 
                                MATTERS

                                _______
                                

                 July 30, 1996.--Ordered to be printed

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

                              R E P O R T

                   [To accompany Treaty Doc. 104-18]

    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 Republic of the Philippines 
on Mutual Legal Assistance in Criminal Matters, signed at 
Manila on November 13, 1994, 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 November 13, 1994, the United States signed a treaty 
with the Philippines on mutual assistance in criminal matters 
and the President transmitted the Treaty to the Senate for 
advice and consent to ratification on September 5, 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 
authorities.
    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 report--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 
follows:

          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. 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. Major 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 
treaty.
    The Philippines Treaty states that the parties shall 
provide mutual assistance ``in connection with the prevention, 
investigation and prosecution of offenses, and in proceedings 
related to criminal matters'' (art. 1).

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 Philippines Treaty states that assistance may be denied 
if a request relates to a political offense. Assistance also 
may be denied if it relates to a military offense not normally 
punishable under criminal law. Another basis for refusing 
assistance is that execution of a request would prejudice the 
national security or other essential interest of the Requested 
State. A final reason for denying assistance is that it fails 
to comply with requirements for form and contents. 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 circuitry 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.

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 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 Requested 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.
    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 Philippines (art. 8) limits the 
right to question to the extent permitted by the Requested 
State's laws.
            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 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 chair of individuals through whose hands the item passed. 
These provisions state that no other verification is necessary 
for admissibility in the Requesting State.
            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. 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 
Philippines MLAT (art. 10) 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 forefieture 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 learns 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. To the extent permitted in domestic law, the proposed 
Philippines MLAT (art. 16) also require assistance in (1) 
providing restitution to crime victims and (2) collecting 
criminal fines. 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 
State.
            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 in considers prejudical 
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. The proposed Philippines MLAT expressly states that 
nothing in it is to preclude the use or disclosure of 
information to the extent that the Requesting State's 
constitution so requires in a criminal prosecution.
            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 is the belief that it is 
improper in our adversarial system of justice to deny 
defendants 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 constitutional.
    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 compulstory 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 MALTs 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 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 Helm's question for the record regarding 
how the U.S. has made use of the MLAT with Panama after its 
1995 ratification:

          One 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 trial.

    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 philippines

    On November 13, 1994, the representatives of the 
Governments of the United States and the Republic of the 
Philippines signed the Treaty on Mutual Legal Assistance in 
Criminal Matters (``the Treaty''). In recent years, the United 
States has entered into similar treaties with many other 
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 the third such treaty the United States has 
signed with an Asian country and is a major advance for the 
United States in its efforts to combat organized crime, 
transnational terrorism, international drug trafficking and 
other offenses. The Treaty is also important for the 
Philippines, as it reflects a formal commitment by the United 
States to assist in its high priority investigations of public 
corruption, such as efforts to recover public assets stolen 
during the administration of former President Ferdinand Marcos.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. The Philippines 
currently has no specific mutual legal assistance laws in force 
and intends to enact implementing legislation for the Treaty.
    The following technical analysis of the Treaty was prepared 
by the United States delegation that conducted the 
negotiations.

Article 1--Scope of assistance

    This article provides for assistance in all matters 
involving the prevention, investigation, and prosecution of 
criminal offenses, and in proceedings relating to criminal 
matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in the 
Philippines, and other legal measures taken prior to the filing 
of formal charges in either Contracting Party.\13\ The term 
``proceedings'' was intended to cover the full range of 
proceedings in a criminal case, including such matters as bail 
and sentencing hearings.\14\ It was also agreed that since the 
phrase ``proceedings related to criminal matters'' is broader 
than the investigation, prosecution or sentencing process 
itself, proceedings covered by the Treaty need not be strictly 
criminal in nature. For instance, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature; \15\ such proceedings are covered by the 
Treaty.
---------------------------------------------------------------------------
    \13\ The requirement that assistance be provided under the Treaty 
at the pre-indictment stage is critical to the United States, as our 
investigators and prosecutors often need to obtain evidence from 
foreign countries in order to determine whether or not to file criminal 
charges. This obligation is a reciprocal one, and the United States 
must assist the Philippines under the Treaty in connection with 
investigations prior to the filing of charges in the Philippines.
     Some United States courts have interpreted Title 18, United States 
Code, Section 1782 to require that assistance be provided in criminal 
matters only if formal charges have already been filed abroad, or are 
``imminent,'' or ``very likely.'' McCarthy, ``A Proposed Unified 
Standard for U.S. Courts in Granting Requests for International 
Judicial Assistance,'' 15 Fordham Intl' L.J. 772 (1991). The better 
view is that Section 1782 does not contemplate such restrictions. 
Conway, In re ``Request for Judicial Assistance from the Federal 
Republic of Brazil; Blow to International Judicial Assistance,'' 41 
Catholic U.L. Rev. 545 (1992). The 1996 amendment to the statute 
eliminates this problem.
     In any event, the Treaty was intentionally written to cover 
criminal investigations that have just begun as well as those that are 
nearly completed, and it draws no distinction between cases in which 
charges are already pending, ``imminent,'' ``very likely,'' or ``very 
likely very soon.''
    \14\ One United States court has interpreted Title 28, United 
States Code, Section 1782 as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. See in re ``Letters Rogatory Issued by Director of Inspection 
of Gov't of India,'' 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary 
obstacle to the execution of requests concerning matters at the 
investigatory stage and those matters customarily handled by 
administrative officials in the Requesting State. Since this paragraph 
specifically permits requests to be made in connection with matters not 
within the jurisdiction of an adjudicatory ``tribunal'' in the 
Requesting State, this paragraph accords courts broader authority to 
execute requests than does Title 28, United States Code, Section 1782, 
as interpreted in the India and Fonseca cases.
    \15\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
---------------------------------------------------------------------------
    Paragraph 2 sets forth a list of the major types of 
assistance specifically considered by the negotiators. Most of 
the items listed in paragraph 2 are described in further detail 
in subsequent articles. The list is not intended to be 
exhaustive, a fact that is signalled by the word ``include'' in 
the opening clause of the paragraph and is reinforced by the 
final subparagraph.
    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 
State would also continue an offense had they occurred in the 
Requested State. Paragraph 3 makes it clear that there is no 
requirement of dual criminality for cooperation under the 
Treaty, and that assistance may be provided even when the 
criminal matter under investigation in the Requesting State 
would not be a crime in the Requested State.
    Paragraph 3 is important because United States and 
Philippines criminal law differ significantly, and the dual 
criminality rule would render assistance unavailable to us in 
many significant areas. During the negotiations, the United 
States delegation received assurances from the Philipine 
delegation that assistance is available under the Treaty to 
United States investigations of key crimes such as drug 
trafficking,\16\ terrorism,\17\ organized crime and 
racketeering,\18\ money laundering, tax fraud or tax evasion, 
exploitation of guest workers and contract laborers,\19\ crimes 
against environmental laws, and antitrust law violations.
---------------------------------------------------------------------------
    \16\ This includes investigations of charges of conspiracy and 
engaging in a continuing criminal enterprise. See 18 U.S.C. Sec. 2; 21 
U.S.C. Sec. 848.
    \17\ See, e.g., 18 U.S.C. Sec. Sec. 115, 1203, 2331-38, 49 U.S.C. 
Sec. 1472.
    \18\ See 18 U.S.C. Sec. Sec. 1961-68. The Philippines does not have 
an identical offense, but does have statutes prohibiting graft and 
corruption.
    \19\ For example, the United States Attorney in Saipan is actively 
investigating labor and human rights violations allegedly committed 
against Filipinos recruited to work in Saipan. See ``United States 
Pacific Paradise is Hell for Some Foreign Workers: Filipinos Report 
Beatings, Rapes, Lockups,'' Wash. Post, Aug. 29, 1994, at A1.
---------------------------------------------------------------------------
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \20\ that states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence-gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from the Philippines by 
letters rogatory, an avenue of international assistance that 
the Treaty leaves undisturbed. Similarly, this paragraph 
provides that the Treaty is not intended to create any right in 
a private person to suppress or exclude evidence provided 
pursuant to the Treaty.
---------------------------------------------------------------------------
    \20\ See United States v. Johnpoll, 739 F.2d (2d Cir. 1984).
---------------------------------------------------------------------------

Article 2--Central authorities

    This article requires that each Contracting Party establish 
a ``Central Authority'' for transmission, receipt, and handling 
of Treaty requests. The Central Authority of the United States 
makes all requests to the Philippines on behalf of federal 
agencies, state agencies, and local law enforcement authorities 
in the United States. The Philippine Central Authority makes 
all requests emanating from officials in the Philippines.
    The Central Authority for the Requesting State exercises 
discretion as to the form and content of requests, and the 
number and priority of requests. The Central Authority of the 
Requested State is also responsible for receiving each request, 
transmitting it to the appropriate federal or state agency, 
court, or other authority for execution, and ensuring that a 
timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
delegated by the Attorney General acts as the Central Authority 
for the United States. The Attorney General has delegated the 
authority to handle the duties of Central Authority under 
mutual assistance treaties to the Assistant Attorney General in 
charge of the Criminal Division.\21\ Paragraph 2 also states 
that the Secretary of Justice of the Philippines or a person 
designated by the Secretary of Justice serves as the Central 
Authority for the Philippines.
---------------------------------------------------------------------------
    \21\ 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. 58, 44 Fed. Reg. 18,661 (1979), as amended at 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).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate with one another directly or through the diplomatic 
channel. Since United States mutual legal assistance practice 
has demonstrated that direct communication between Central 
Authorities is essential to the prompt and efficient execution 
of requests, our treaties usually do not provide for 
transmitting requests via diplomatic channels. The Treaty does 
provide for use of diplomatic channels as an option, however, 
because longstanding Philippine administrative practice has 
been to utilize such channels; the Philippines has no explicit 
law on this topic. The delegations agreed, however that most 
communications regarding the Treaty will be transmitted 
directly between Central Authorities; the diplomatic channel 
will be reserved for unusual situations.

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 Requested State to deny a 
request if it relates to a political offense; paragraph 1(b) 
permits denial if a request involves an offense under military 
law that would not be an offense under ordinary criminal law. 
It is anticipated that the Central Authorities will employ 
jurisprudence similar to that used with respect to extradition 
treaties for determining what constitutes a ``political 
offense.'' These restrictions are similar to those found in 
other mutual legal assistance treaties.
    Paragraph 1(c) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or similar essential interests of 
the Requested State. This would include cases when assistance 
might involve disclosure of information that is classified for 
national security reasons. It is anticipated that the 
Department of Justice, in its role as Central Authority for the 
United States, will work closely with the Department of State 
and other government agencies to determine whether to execute 
requests that might fall in this category. All United States 
mutual legal assistance treaties contain provisions permitting 
the Requested State to decline to execute requests if execution 
would prejudice its essential interests.
    The delegations agreed that the phrase ``essential 
interests'' is intended to limit narrowly the class of cases in 
which assistance may be denied. It is not enough that the 
Requesting State's case is one that would be inconsistent with 
public policy had it been brought in the Requested State. 
Rather, the Requested State must be convinced that execution of 
the request would seriously conflict with significant public 
policy. An example is a request involving prosecution by the 
Requesting State of conduct that occurred in the Requesting 
State that is constitutionally protected in the Requested 
State.
    It was agreed that ``essential interests'' may include 
interests unrelated to national military or political security, 
and may be invoked if the execution of a request would violate 
essential United States interests related to the fundamental 
purposes of the Treaty. For example, one fundamental purpose of 
the Treaty is to enhance law enforcement cooperation. The 
attainment of that goal would be hampered if sensitive law 
enforcement information available under the Treaty were to fall 
into the ``wrong hands.'' Accordingly, the United States 
Central Authority may invoke paragraph 1(c) to decline to 
provide sensitive or confidential drug-related information 
pursuant to a Treaty request whenever it determines, after 
appropriate consultation with law enforcement, intelligence, 
and foreign policy agencies, that a senior foreign government 
official who likely will have access to the information is 
engaged in or facilitates the production or distribution of 
illegal drugs, and is using the request to the prejudice of a 
United States investigation or prosecution.\22\
---------------------------------------------------------------------------
    \22\ This is consistent with the sense of the Senate as expressed 
in its advice and consent to ratification of the mutual legal 
assistance treaties with Mexico, Canada, Belgium, Thailand, the 
Bahamas, and the United Kingdom Concerning the Cayman Islands. Cong. 
Rec. 13,884 (1989) (treaty citations omitted). See also Staff of Senate 
Comm. on Foreign Relations, 100th Cong., 2d Sess., Mutual Legal 
Assistance Treaty Concerning the Cayman Islands 67 (1988) (testimony of 
Mark M Richard, Deputy Assistant Attorney General, Criminal Division, 
Department of Justice).
---------------------------------------------------------------------------
    Paragraph 1(d) permits the denial of a request not made in 
conformity with the Treaty.
    Paragraph 2 is similar to article 3(2) of the United 
States-Switzerland Mutual Legal Assistance Treaty, and obliges 
the Requested State to consider imposing appropriate conditions 
on its assistance in lieu of denying a request outright 
pursuant to paragraph 1. For example, a Contracting Party might 
request information that could be used either in a routine 
criminal case (which is within the scope of the Treaty) or in a 
political prosecution (which is subject to refusal under the 
Treaty's terms). This paragraph permits the Requested State to 
provide the information on condition that it be used only in 
the routine criminal case. Naturally, the Requested State 
should notify the Requesting State of any proposed conditions 
before actually delivering the evidence in question, thereby 
according the Requested State an opportunity to indicate 
whether it is willing to accept the evidence subject to the 
conditions. If the Requested State does accept the evidence 
subject to the conditions, it must honor the conditions.
    Paragraph 4 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requested State of any reasons for denying assistance. This 
ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings and enable the Requested State to prepare 
future requests better.

Article 4--Form and content of requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``emergency situations.'' A request 
in another form must be confirmed in writing within ten days 
unless the Central Authority of the Requested State agrees 
otherwise. Unless otherwise agreed, the request and all 
documents accompanying the request shall be in English.\23\
---------------------------------------------------------------------------
    \23\ The Philippines has two official languages, English and 
Pilipino, which is based on Tagalog. Several other languages, such as 
Cebuano, Bicol, Ilocano, and Pampango, are also widely used.
---------------------------------------------------------------------------
    Paragraph 2 lists information deemed crucial to the 
efficient operation of the Treaty which must be included in 
each request. Paragraph 3 outlines kinds of information that 
are important but not always crucial, and should be provided 
``to the extent necessary and possible.'' In keeping with the 
intention of the Contracting 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 Contracting Party promptly to 
undertake diligent efforts to execute a request. The Treaty 
contemplates that upon receiving a request, the Central 
Authority will first review the request, then promptly notify 
the Central Authority of the Requesting State if the request 
does not appear to 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 forthwith. If the request 
meets the Treaty's requirements but its execution requires 
action by some other entity in the Requested State, the Central 
Authority will promptly transmit the request to the correct 
entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests for execution to the federal investigators, 
prosecutors, or judicial officials it deems appropriate to 
fulfill the request.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to take whatever action necessary and within its 
power to execute the request. This provision 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 Philippines. Rather, it is anticipated that when a 
request from the Philippines requires compulsory process for 
execution, the Department of Justice will ask a federal court 
to issue the necessary process under Title 28, United States 
Code, Section 1782, and the provisions of the Treaty.\24\
---------------------------------------------------------------------------
    \24\ Paragraph 1 specifically authorizes United States courts to 
use all of their powers to issue subpoenas and other process to satisfy 
requests under the Treaty.
---------------------------------------------------------------------------
    It is understood that if execution of the request entails 
action by a judicial or administrative agency, the Central 
Authority of the Requested State shall arrange for the 
presentation of the request to that court or agency at no cost 
to the Requesting State. Since the cost of retaining counsel 
abroad to present and process letters rogatory is expensive at 
times, this provision for reciprocal legal representation in 
paragraph 2 is a significant advance in international legal 
cooperation. It is also understood that if the Requesting State 
decides to hire private counsel in connection with a particular 
request, it is free to do so at its own expense.
    Paragraph 3 provides that all requests shall be executed in 
accordance with the laws of the Requested State except to the 
extent that the Treaty specifically provides otherwise. Thus, 
the method of executing a request for assistance under the 
Treaty must be in accordance with the Requested State's 
internal laws absent specific contrary procedures in the Treaty 
itself. For the United States, the Treaty is intended to be 
self-executing; no new or additional legislation will be needed 
to carry out the obligations undertaken.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when execution will interfere with an 
ongoing investigation or legal proceeding in the Requested 
State. It is understood that the Central Authority of the 
Requested State determines when to apply this provision. The 
Central Authority of the Requested State may, at its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence that might otherwise be lost before 
the conclusion of the investigation or legal proceedings in the 
Requested State.
    It is anticipated that some United States requests for 
assistance may contain information that under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation or 
proceeding,'' as required by paragraph 2(b). Therefore, 
paragraph 5 enables the Requesting State to call upon the 
Requested State to keep the information in the request 
confidential.\25\ If the Requested State cannot execute the 
request without disclosing the information in question (as may 
be the case if execution requires a public judicial proceeding 
in the Requested State), or if for some other reason this 
confidentiality cannot be assured, the Treaty obliges the 
Requested State to so indicate, thereby giving the Requesting 
State an opportunity to withdraw the request rather than risk 
jeopardizing its investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \25\ This provision is similar to language in other United States 
mutual legal assistance treaties. See, e.g., U.S.-Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5), T.I.A.S. No. --; U.S.-
Canada Mutual Legal Assistance Treaty, Mar. 18, 1985, art. 6(5), 
T.I.A.S. No. --; U.S.-Italy Mutual Legal Assistance Treaty, Nov. 13, 
1985, art. 8(2), T.I.A.S. No. --.
---------------------------------------------------------------------------
    Paragraph 6 requires the Central Authority of the Requested 
State to respond to reasonable inquiries by the Requesting 
State concerning progress of its requests. This is to encourage 
open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 provides that the Central Authority of the 
Requested State promptly must notify the Central Authority of 
the Requesting State of the outcome of the execution of a 
request. If the request is denied, the Central Authority of the 
Requested State must also explain in writing to the Central 
Authority of the Requesting State the reasons for the outcome. 
For example, if the evidence sought cannot be located, or if a 
witness to be interviewed invokes a privilege under article 
8(4), the Central Authority of the Requested State must report 
this to the Central Authority of the Requesting State.

Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each Contracting Party shall bear the 
expenses incurred within its territory in executing a legal 
assistance treaty request. This is consistent with similar 
provisions in other United States mutual legal assistance 
treaties.\26\ Article 6 does oblige the Requesting State to pay 
fees of expert witnesses; translation, interpretation, and 
transcription costs; and allowances and expenses related to 
travel of persons pursuant to articles 10 and 11.
---------------------------------------------------------------------------
    \26\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, Mar. 
18, 1985, art. 8, T.I.A.S. No. --.
---------------------------------------------------------------------------

Article 7--Limitations on use

    Paragraph 1 states that the Central Authority of the 
Requested State may request that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
In such cases, the Requesting State is required to comply with 
the conditions. It will be recalled that article 4(2)(d) states 
that the Requesting State must specify the reason why 
information or evidence is sought.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 permits the Requested State to request that 
information or evidence provided to the Requesting State be 
kept confidential or be used only subject to terms and 
conditions it specifies. Under most United States mutual legal 
assistance treaties, conditions of confidentiality are imposed 
only when necessary and are tailored to fit the circumstances 
of each particular case. For instance, the Requested State may 
wish to cooperate with the investigation in the Requesting 
State but choose to limit access to information that might 
endanger the safety of an informant, or unduly prejudice the 
interests of persons not connected in any way with the matter 
being investigated in the Requesting State. Paragraph 2 
requires that if conditions of confidentiality are imposed, the 
Requesting State need only make ``best efforts'' to comply with 
them. This ``best efforts'' language was used because the 
purpose of the Treaty is the production of evidence for use at 
trial, and that purpose would be frustrated if the Requested 
State to see valuable evidence while imposing confidentiality 
restrictions that prevent the Requesting State from using it.
    The Philippine delegation expressed particular concern that 
information it might supply in response to a request by the 
United States under the Treaty not be disclosed under the 
Freedom of Information Act. The delegations agreed that 
paragraph 2, as drafted, does not authorize disclosure under 
the Freedom of Information Act of information provided under 
the Treaty.
    Paragraph 3 states that once evidence obtained under the 
Treaty is revealed to the public in accordance with paragraphs 
1 or 2, the Requesting State is free to use the evidence for 
any purpose. Once evidence obtained under the treaty is 
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 being cited 
or described in the press. Once that occurs, it is practically 
impossible for the Central Authority of the Requesting State to 
block the use of that information by third parties.
    If the United States government receives evidence under the 
Treaty that seems to be exculpatory to the defendant in a 
criminal case, the United States is obliged to share the 
evidence with the defendant.\27\ Therefore, paragraph 4 states 
that nothing in article 7 shall preclude the use or disclosure 
of information in a criminal prosecution to the extent that 
there is an obligation to do so under the constitution or law 
of the Requesting State. Advance notice of any such proposed 
use or disclosure shall be provided by the Requesting State to 
the Requested State.
---------------------------------------------------------------------------
    \27\ See Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    It should be noted that under article 1(4), the 
restrictions outlined in article 7 are for the benefit of the 
Contracting Parties, and the invocation and enforcement of 
these provisions are left entirely to the Contracting Parties. 
If a person alleges that a Philippine authority seeks to use 
information or evidence obtained from the United States in a 
manner inconsistent with this article, the person can inform 
the Central Authority of the United States of the allegations 
for consideration as a matter between the Contracting Parties.

Article 8--Taking testimony or evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom evidence is sought shall be compelled, if necessary, 
to appear and testify or produce documents, records, or 
articles of evidence. The compulsion contemplated by this 
article can be accomplished by subpoena or any other means 
available under the law of the Requested State.
    Paragraph 2 requires that, upon request, the requested 
State must furnish information in advance about the date and 
place of the taking of testimony.
    Paragraph 3 provides that any interested persons specified 
in the request, including the defense counsel in a criminal 
case, shall be permitted to be present and, to the extent 
allowed by the Requested State's laws, to pose questions during 
the taking of testimony under this article. The Philippine 
delegation was confident that United States prosecutors can be 
present and participate in the execution of requests in the 
Philippines. Current Philippine law, however, places 
restrictions on the extent to which private lawyers from the 
United States may question witnesses directly in the 
Philippines, and leaves the extent of such questioning up to 
the judge overseeing the proceeding. It is understood that in 
the event that direct questioning of a witness is not possible, 
the defendant and defense counsel may submit questions for the 
judge to pose to the person whose testimony or evidence is 
being taken.
    Paragraph 4, when read together with article 5(3), ensures 
that no person will be compelled to furnish information if the 
person has a right not to do so under the law of the Requested 
State. Thus, a witness questioned in the United States pursuant 
to a request from the Philippines is guaranteed the right to 
invoke any of the testimonial privileges (e.g., attorney 
client, interspousal) available in the United States, as well 
as the constitutional privilege against self-incrimination, to 
the extent that it applies in the context of evidence being 
taken for foreign proceedings.\28\ A witness testifying in the 
Philippines may raise any of the similar privileges available 
under Philippine law.
---------------------------------------------------------------------------
    \28\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 4 does require that if a witness attempts to 
assert a privilege that is unique to the Requesting State, the 
Requested State will take the desired evidence and turn it over 
to the Requesting State along with notice that it was obtained 
over a claim of privilege. The applicability of the privilege 
can then be determined in the Requesting State, where the scope 
of the privilege and the legislative and policy reasons 
underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties.\29\
---------------------------------------------------------------------------
    \29\ See, e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 
9(2), T.I.A.S. No. --; U.S.-Mexico Mutual Legal Assistance Treaty, Dec. 
9, 1987, art. 7(2), T.I.A.S. No. --.
---------------------------------------------------------------------------
    Paragraph 5 states that evidence produced pursuant to this 
article may be authenticated by an attestation, including, the 
the case of business records, authentication by the form 
appended to the Treaty. Thus, the provision establishes a 
procedure for authenticating records in a manner essentially 
similar to Title 18, United States Code, Section 3505.\30\ 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, and does not need implementing 
legislation.
---------------------------------------------------------------------------
    \30\ Similar to Title 18, United States Code, Section 3505, Form A 
must be sworn to or affirmed on penalty of criminal punishment for 
false statement or false attestation. The United States delegation was 
assured that the making of a false statement on Form A is punishable in 
the Philippines as perjury in violation of article 183 of the 
Philippine Penal Code.
---------------------------------------------------------------------------
    The final sentences of article 8 provide that the evidence 
authenticated by Form A is ``admissible'' but, of course, it 
will be up to 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 (such as relevance or materiality) still must be 
satisfied in each case.

Article 9--Records of Government agencies

    Paragraph 1 obliges each Contracting Party to furnish the 
other with copies of publicly available records of government 
agencies. The term ``government departments and agencies'' 
includes all executive, judicial, and legislative units of the 
federal, state, and local levels in both Contracting Parties.
    Paragraph 2 provides that the Requested State ``may'' share 
with the Requesting State copies of nonpublic information in 
government files. The obligation under this provision is 
discretionary. Moreover, the article states that the Requested 
State may only exercise its discretion to turn over information 
in its files ``to the same extent and under the same 
conditions'' as it would to its own law enforcement or judicial 
authorities. The Central Authority of the Requested State 
determines the parameters of that extent and what those 
conditions are. The discretionary nature of this provision was 
deemed necessary because government files of a Contracting 
Party may contain information available to investigative 
authorities in that country that justifiably could be deemed 
inappropriate for release to a foreign government. For example, 
assistance might be deemed inappropriate if the information 
requested identifies or endangers an informant, prejudices 
sources of information needed in future investigations, or 
reveals information that was given to the Requested State in 
return for a promise not to divulge it. Of course, a request 
may be denied under this provision if the law in the Requested 
State bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty in tax 
matters and that such assistance would include tax return 
information when appropriate. The United States delegation was 
satisfied after discussion with the Philippine delegation that 
the Treaty is a ``convention relating to the exchange of tax 
information'' for purposes of Title 26, United States Code, 
Section 6103(k)(4), and that the United States has discretion 
to provide tax return information to the Philippines under this 
article in appropriate cases.\31\
---------------------------------------------------------------------------
    \31\ Thus, the Treaty, like all other United States bilateral 
mutual legal assistance treaties, authorizes each Contracting Party to 
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
    Paragraph 3 states that documents provided under this 
article may be authenticated in accordance with the procedures 
specified in the request, and if authenticated in this manner, 
the evidence shall be admissible in the Requesting State. Thus, 
the Treaty establishes a procedure for authenticating official 
foreign records that is consistent with Rule 902(3), Federal 
Rules of Evidence, and Rule 44, Federal Rules of Civil 
Procedure.
    Paragraph 3, similar to article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible,'' 
although the judicial authority presiding over the trial 
determines whether the evidence should in fact be admitted. The 
evidentiary tests other than authentication (such as relevance 
or materiality) must be established in each case.

Article 10--Testimony in the Requesting State

    This article provides that upon request, the Requested 
State shall invite persons located in its territory to travel 
to the Requesting State to appear before an appropriate 
authority there. It shall notify the Requesting State of the 
invitee's response. An appearance in the Requesting State under 
this article is not mandatory; the invitation may be refused by 
the prospective witness. The Requesting State is expected to 
pay the expenses of such an appearance pursuant to article 6.
    Paragraph 1 provides that the witness shall be informed of 
the amount and kind of expenses to be incurred by the 
Requesting State in a particular case. Such expenses usually 
will include the costs of transportation and room and board. 
When the witness is to appear in the United States, a nominal 
witness fee also will be provided.
    Paragraph 2 establishes that the Central Authority of the 
Requesting State may determine that a person who is in the 
Requesting State pursuant to this article shall not be subject 
to service of process, or be detained or subjected to any 
restriction of personal liberty while in the Requesting State. 
This ``safe conduct'' is limited to acts or convictions that 
preceded the witness's departure from the Requested State. It 
is understood that this provision does not prevent prosecution 
of a person for perjury or any other crime committed while in 
the Requesting State.
    Paragraph 3 states that any safe conduct guaranteed in this 
article expires seven days after the Central Authority of the 
Requesting State notifies the Central Authority of the 
Requested State that the person's presence is no longer 
required, or when the person leaves the territory of the 
Requesting State and thereafter returns to it voluntarily. 
However, the Central Authority of the Requested State may 
extend the safe conduct period up to 15 days thereafter if it 
determines that there is good cause to do so.

Article 11--Transfer of persons in custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, countries are willing and able to ``lend'' witnesses 
to the United States provided the witnesses will be carefully 
guarded while in the United States and will be returned to the 
country at the conclusion of their testimony. On occasion, the 
United States Justice Department also has arranged for 
consenting federal inmates in the United States to be 
transported to foreign countries for testifying in criminal 
proceedings.\32\
    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty,\33\ which in 
turn is based on article 11 of the European Convention on 
Mutual Assistance in Criminal Matters.
---------------------------------------------------------------------------
    \32\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
    \33\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    There also have been recent situations in which a person in 
custody in a United States criminal case has demanded 
permission to travel to another country to be present at a 
deposition being taken there in connection with the criminal 
case.\34\ Paragraph 2 addresses this situation.
---------------------------------------------------------------------------
    \34\ See, e.g., United States v. King, 552 F.2d 833 (9th Cir. 1976) 
(defendants insisted on traveling to Japan to be present at deposition 
of certain witnesses in prison).
---------------------------------------------------------------------------
    Paragraph 3 provides express authority for the receiving 
State to maintain the person in custody throughout the person's 
stay there, unless the sending specifically authorizes release. 
This paragraph also authorizes the receiving State to return 
the person in custody to the sending State, and provides that 
this return will occur in accordance with terms and conditions 
agreed upon by the Central Authorities. The initial transfer of 
a prisoner under this article requires the consent of the 
person involved and of both Central Authorities, but the 
provision does not require that the prisoner consent to be 
returned to the sending State.
    Once the receiving State agrees to assist the sending 
State's investigation or proceeding pursuant to this article, 
it is inappropriate for the receiving State to hold the person 
transferred and require extradition proceedings before 
returning the person to the sending State as agreed. Therefore, 
paragraph 3(c) contemplates that extradition proceedings are 
not required before the status quo is restored by the return of 
the person transferred. Paragraph 3(d) states that the person 
is to receive credit for time served while in the custody of 
the receiving State. This is consistent with United States 
practice in these matters.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article because it 
is anticipated that authorities of the contracting Parties will 
deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the receiving State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

Article 12--Location or identification of persons or items

    This article provides for ascertaining the whereabouts in 
the Requested State of persons (such as witnesses, potential 
defendants, or experts) or items at the request of the 
Requesting State. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the persons or items sought by the Requesting State. The 
extent of such efforts will vary, of course, depending on the 
quality and extent of the information provided by the 
Requesting State concerning the suspected location and last 
known location.
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States is not obligated to 
attempt to locate persons or items that may be in third 
countries. In all cases, the Requesting State is expected to 
supply all available information about the last known location 
of the persons or items sought.

Article 13--Service of documents

    This article creates an obligation on the Requested State 
to ``use its best efforts'' to effect the service of summonses, 
complaints, subpoenas, or other legal documents at the request 
of the Requesting State. It is expected that when the United 
States is the Requested State, service under the Treaty will be 
made by registered mail (in the absence of any request by the 
Philippines to follow a specified procedure for service), or by 
the United States Marshals Service in instances when personal 
service is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be received by the Central Authority of 
the Requested State by a reasonable time before the appearance 
date. The negotiators agreed that a 30-day advance notice is 
appropriate in most cases, but the Central Authorities are free 
to agree to permit service with less advance notice, or more, 
as deemed appropriate on a case-by-case basis.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State.

Article 14--Search and seizure

    It is sometimes in the interests of justice for one country 
to ask another country 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.\35\ This article 
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
    \35\ 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.).
---------------------------------------------------------------------------
    Article 14 requires that a search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that a request to the United 
States from the Philippines usually must be supported by a 
showing of probable cause for the search. A United States 
request to the Philippines has to satisfy the corresponding 
evidentiary standard there. It is contemplated that such 
requests are to be carried out in strict accordance with the 
laws of the Requested State.
    Paragraph 2 is designed to ensure that records are kept of 
articles seized and/or delivered under the Treaty. This 
provision effectively requires that the Requested State keep 
detailed and reliable information regarding the condition of an 
article at the time of seizure and the chain of custody between 
seizure and delivery to the Requesting State.
    This article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the Requesting State, thus relieving 
the Requesting State of the burden, expense, and inconvenience 
of having to bring the Requested State's law enforcement 
officers to the Requesting State to provide authentication and 
chain of custody testimony each time the Requesting State uses 
evidence produced pursuant to this article. As in articles 8(5) 
and 9(3), the injunction that the certificates be admissible 
without additional authentication at trial leaves the trier of 
fact free to bar use of the evidence itself, in spite of the 
certificate, if some other reason exists to do so aside from 
authenticity or chain or custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred. This article is similar to provisions in 
many United States extradition treaties.\36\
---------------------------------------------------------------------------
    \36\ See, e.g., U.S.-United Kingdom Extradition Treaty, June 8, 
1972, art. 13, 28 U.S.T. 227, T.I.A.S. No. 8468, 1049 U.N.T.S. 167; 
U.S.-Canada Extradition Treaty, Dec. 3, 1971, art. 15, 27 U.S.T. 983, 
T.I.A.S. No. 8237; U.S.-Japan Extradition Treaty, Mar. 3, 1978, art. 
13, 31 U.S.T. 892, T.I.A.S. No. 9625, 1203 U.N.T.S. 225; US.-Mexico 
Extradition Treaty, May 4, 1978, art. 19, 31 U.S.T. 5059, T.I.A.S. No. 
9656.
---------------------------------------------------------------------------

Article 15--Return of documents, records, and items of evidence

    This article provides that any documents or items of 
evidence furnished under the Treaty must be returned to the 
Requested State as soon as possible if the Central Authority of 
the Requested State specifically requests prompt return at the 
time the items are furnished to the Requesting State. It is 
anticipated that unless original records or articles of 
significant intrinsic value are involved, the Requested State 
will not usually request return of the items, but this is a 
matter best left to development of practice.
    The article also states that if both Central Authorities 
agree, the documents, records, or items may be disposed of in a 
mutually acceptable manner other than by return to the 
Requested State. Thus, in appropriate cases, the Central 
Authorities may agree that transferred items may be sold,\37\ 
forfeited, transferred to a third state,\38\ or destroyed.\39\
---------------------------------------------------------------------------
    \37\ It may be more cost effective to sell the item in the 
Requesting State and repatriate the proceeds of the sale.
    \38\ It is possible to imagine situations in which the person with 
a claim to an item transferred from the Philippines to the United 
States resides in neither Contracting Party.
    \39\ For example, if the item transferred is a sample of narcotics 
seized during a search, destruction of the sample at the conclusion of 
the case would be consistent with standard procedure in the United 
States.
---------------------------------------------------------------------------

Article 16--Assistance in forfeiture proceedings

    A major goal of the Treaty is to enhance the efforts of 
both Contracting Parties in combatting narcotics trafficking. 
One significant strategy in this effort is action by United 
States authorities to seize and confiscate money, property, and 
other proceeds of drug trafficking.
    This article is similar to article 17 in the United States-
Canada Mutual Legal Assistance Treaty and article 15 of the 
United States-Thailand Mutual Legal Assistance Treaty. 
Paragraph 1 authorizes a Central Authority to notify the other 
Central Authority of the existence in the latter's territory of 
proceeds or instrumentalities of offenses that may be 
forfeitable or otherwise subject to seizure. The term 
``proceeds or instrumentalities'' is intended to include things 
such as money, vessels, or other valuables either used in the 
crime or purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the Contracting Party in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in the Philippines, they can be seized in 
aid of a prosecution under Title 18, United States Code, 
Section 2314,\40\ or be subject to a temporary restraining 
order in anticipation of a civil action for the return of the 
assets to the lawful owner.
---------------------------------------------------------------------------
    \40\ 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.
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, this 
article contemplates that the Contracting Parties will be 
especially willing to help one another. Title 18, United States 
Code, Section 981(a)(1)(B) also allows for 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 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' \41\ This is 
consistent with the laws of countries such as Switzerland and 
Canada; there is a growing trend among countries toward 
enacting legislation of this kind in the battle against 
narcotics trafficking.\42\ The United States delegation expects 
that article 16 will enable this legislation to be even more 
effective.
---------------------------------------------------------------------------
    \41\ 18 U.S.C. Sec. 981(a)(1)(B).
    \42\ For example, article 3 of the United Nations Draft Convention 
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 
calls for the signatory nations to enact broad legislation to forfeit 
illicit drug proceeds and to assist one another in such matters. A 
Report on the Status of the Draft, the U.S. Negotiating Position, and 
Issues for the Senate, S. Rpt. No. 100-64, 100th Cong., 1st Sess. 6-11, 
25-26 (1987).
---------------------------------------------------------------------------
    Paragraph 2 states that the Contracting Parties shall 
assist one another to the extent permitted by their laws in 
proceedings relating to forfeiture of proceeds or 
instrumentalities of offenses, restitution to crime victims, 
and collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that authorities in the 
Requested State may take immediate action to immobilize the 
assets temporarily pending further proceedings. Thus, if the 
law of the Requested State enables it to seize in aid of a 
proceeding in the Requesting State or to enforce a judgment of 
forfeiture levied in the Requesting State, the Treaty provides 
that the Requested State shall do so. The language of the 
article is carefully selected, however, so as not to require 
either Contracting Party to take any action that exceeds its 
internal legal authority. It does not mandate institution of 
forfeiture proceedings or initiation of temporary 
immobilization in either Contracting Party against property 
identified by the other if the relevant prosecution authorities 
do not deem it proper to do so.\43\
---------------------------------------------------------------------------
    \43\ Unlike United States law, Philippine law does not allow for 
forfeiture in civil cases. However, Philippine law does permit 
forfeiture in criminal cases. Accordingly, a defendant must be 
convicted in order for the Philippines to confiscate property.
---------------------------------------------------------------------------
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in the law enforcement 
activity that led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country and be approved by the Secretary of State.\44\ 
Paragraph 3 is consistent with this framework and will enable a 
Contracting Party having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other 
Contracting Party, at the former's discretion and to the extent 
permitted by its laws.
---------------------------------------------------------------------------
    \44\ E.g., 18 U.S.C. Sec. 981(i)(1).
---------------------------------------------------------------------------

Article 17--Compatibility with other treaties

    This article states that assistance and procedures provided 
for under the Treaty shall not prevent assistance under any 
other applicable international agreements. Article 17 also 
provides that the Treaty shall not be deemed to prevent 
recourse to any assistance available under the internal laws of 
either Contracting Party. Thus, a Treaty leaves provisions of 
United States and Philippine law that deal with letters 
rogatory completely undisturbed and does not alter any pre-
existing agreements concerning investigative assistance.\45\
---------------------------------------------------------------------------
    \45\ See e.g., Agreement on the Provision of Documents to the 
Government of the Republic of the Philippines, United States-
Philippines, Mar. 15, 1986, T.I.A.S. No. --; Agreement on Procedures 
for Mutual Legal Assistance, United States-Philippines, Mar. 31, 1987, 
T.I.A.S. No. --.
---------------------------------------------------------------------------

Article 18--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
practical ways to make the treaty more effective and their own 
efforts more efficient. This article calls upon the Contracting 
Parties to share those ideas with one another and encourages 
them to agree on the implementation of such measures. Practical 
measures of this kind might include methods of keeping each 
other informed of the progress of investigations and cases in 
which Treaty assistance was utilized, and the use of the Treaty 
to obtain evidence that otherwise might be sought via methods 
less acceptable to the Requested State. Very similar provisions 
are contained in recent United States mutual legal assistance 
treaties.\46\
---------------------------------------------------------------------------
    \46\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, Mar. 8, 
1985, T.I.A.S. No. --; U.S.-Cayman Islands Mutual Legal Assistance 
Treaty, July 3, 1986, T.I.A.S. No. --  ; U.S. Argentina Mutual Legal 
Assistance Treaty, Dec. 4, 1990, T.I.A.S. No. --.
---------------------------------------------------------------------------
    It is anticipated that the Central Authorities will conduct 
annual consultations pursuant to this article.

Article 19--Application

    This article states that the Treaty shall apply to any 
request presented after it enters into force, even if the 
relevant acts or omissions occurred before the date on which 
the Treaty enters into force. Provisions of this kind are 
common in law enforcement agreements; similar provisions are 
found in most United States mutual legal assistance treaties.

Article 20--Ratification, entry into force, and termination

    Paragraph 1 contains standard provisions on the procedures 
for ratification and the exchange of instruments of 
ratification.
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 contains standard treaty language setting forth 
the procedure for terminating the Treaty. Termination shall 
take effect six months after the date of written notification. 
Similar termination provisions are present in other United 
States mutual legal assistance treaties.

              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 Republic of the 
Philippines on Mutual Legal Assistance in Criminal Matters, 
signed at Manila on November 13, 1994. 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.