[Senate Executive Report 106-13]
[From the U.S. Government Publishing Office]



106th Congress                                               Exec. Rpt.
                                 SENATE
 1st Session                                                   106-13

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



 
              EXTRADITION TREATY WITH THE REPUBLIC OF KOREA

                                _______
                                

                November 3, 1999.--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. 106-2]

    The Committee on Foreign Relations, to which was referred 
the Extradition Treaty between the Government of the United 
States of America and the Government of Republic of Korea, 
signed at Washington on June 9, 1998 (Treaty Doc. 106-2), 
having considered the same, reports favorably thereon, with one 
understanding, one declaration and one proviso, 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.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary of Key Provisions........................................2
 IV. Entry Into Force and Termination.................................5
  V. Committee Action.................................................5
 VI. Committee Comments...............................................5
VII. Explanation of Proposed Treaty...................................8
VIII.Resolution of Ratification......................................22

 IX. Annex...........................................................25

                               I. Purpose

    The proposed extradition treaty: (1) identifies the 
offenses for which extradition will be granted, (2) establishes 
procedures to be followed in presenting extradition requests, 
(3) enumerates exceptions to the duty to extradite, (4) 
specifies the evidence required to support a finding of a duty 
to extradite, and (5) sets forth administrative provisions for 
bearing costs and legal representation.

                             II. Background

    An extradition treaty is an international agreement in 
which the Requested State agrees, at the request of the 
Requesting State and under specified conditions, to turn over 
persons who are within its jurisdiction and who are charged 
with crimes against, or are fugitives from, the Requesting 
State. The United States is a party to approximately 100 
bilateral extradition treaties, and several multilateral 
treaties which require extradition.
    In recent years the Departments of State and Justice have 
led an effort to modernize U.S. bilateral extradition treaties 
to better combat international criminal activity, such as drug 
trafficking, terrorism and money laundering.
    The importance of extradition treaties as a tool for law 
enforcement is reflected in the increase in the number of 
extraditions of individuals under treaties. Between September 
1997 and 1998, 185 persons were extradited to the United States 
for prosecution for crimes committed in the United States, and 
the United States extradited 73 individuals to other countries 
for prosecution. (The Republic of Korea, by contrast, began 
negotiating bilateral extradition treaties only recently. The 
number of such treaties it has signed did not reach a dozen 
until May 1999, when it signed a bilateral treaty with 
Mongolia.)
    In the United States, the legal procedures for extradition 
are governed by both federal statute and self-executing 
treaties. Federal statute controls the judicial process for 
making a determination to the Secretary of State that she may 
extradite an individual under an existing treaty. Courts have 
held that the following elements must exist in order for a 
court to find that the Secretary of State may extradite: (1) 
the existence of a treaty enumerating crimes with which a 
defendant is charged; (2) charges for which extradition is 
sought are actually pending against the defendant in the 
requesting nation and are extraditable under the treaty; (3) 
the defendant is the same individual sought for trial in the 
requesting nation; (4) probable cause exists to believe that 
the defendant is guilty of charges pending against him in the 
requesting nation; and (5) the acts alleged to have been 
committed by the defendant are punishable as criminal conduct 
in the requesting nation and under the criminal law of the 
United States.
    Once a court has made a determination that an individual 
may be extradited under U.S. law, and so certifies to the 
Secretary of State, she may still refrain from extraditing an 
individual on foreign policy grounds, as defined in the 
treaties themselves (or even absent express treaty provisions).

                     III. Summary of Key Provisions


1. Extraditable Offenses: The Dual Criminality Clause

    The South Korean treaty, like all modern U.S. extradition 
treaties, contains a standard definition of what constitutes an 
extraditable offense: an offense is extraditable if it is 
punishable under the laws of both parties by a prison term of 
more than one year. Attempts and conspiracies to commit such 
offenses, and participation in the commission of such offenses, 
are also extraditable.
    The dual criminality clause means, for example, that an 
offense is not extraditable if in the United States it 
constitutes a crime punishable by imprisonment of more than one 
year, but it is not a crime in the treaty partner or is a crime 
punishable by a prison term of less than one year. In earlier 
extradition treaties the definition of extraditable offenses 
consisted of a list of specific categories of crimes. This 
categorizing of crimes has resulted in problems when a specific 
crime, for example drug dealing, is not on the list, and is 
therefore not extraditable. The result has been that as 
additional offenses become punishable under the laws of both 
treaty partners the extradition treaties between them need to 
be renegotiated or supplemented. A dual criminality clause 
obviates the need to renegotiate or supplement a treaty when it 
becomes necessary to broaden the definition of extraditable 
offenses.

2. Extraterritorial Offenses

    A separate question arises as to whether offenses committed 
outside the territory of the Requesting State are extraditable 
under the treaty. To be able to extradite individuals charged 
with extraterritorial crimes can be an important weapon in the 
fight against international drug traffickers and terrorists. 
The Treaty with the Republic of Korea (in Art. 2(4)) directs 
that extradition may proceed for an extraterritorial offense if 
the individual sought is a national of the Requesting State or 
if the criminal law of the Requested State would reach 
extraterritorial acts of the type covered by the extradition 
request. In addition, the Requested State retains discretion to 
grant extradition for extraterritorial crime even if neither of 
the foregoing conditions pertains, or to refuse an otherwise 
extraditable extraterritorial crime if the crime was committed 
in part within its territory and it has initiated prosecution.

3. Political Offense Exception

    In recent years the United States has been promoting a 
restrictive view of the political offense exception in 
furtherance of its campaign against terrorism, drug 
trafficking, and money laundering. The exclusion of certain 
violent crimes, (i.e., murder, kidnaping, and others) from the 
political offense exception reflects the concern of the United 
States government and certain other governments with 
international terrorism.
    The exclusion from the political offense exception for 
crimes covered by multilateral international agreements, and 
the obligation to extradite for such crimes or submit the case 
to prosecution by the Requested State, is now a standard 
exclusion and is contained in the proposed treaty with the 
Republic of Korea.
    The multilateral international agreement exception clause 
serves to incorporate by reference certain multilateral 
agreements to which the United States is a party and which deal 
with international law enforcement in drug dealing, terrorism, 
airplane hijacking and smuggling of nuclear material. These 
agreements require that the offenses with which they deal shall 
be extraditable under any extradition treaty between countries 
that are parties to the multilateral agreements. The 
incorporation by reference of these multilateral agreements is 
intended to assure that the offenses with which they deal shall 
be extraditable under an extradition treaty. But, extradition 
for such offenses is not guaranteed. A Requested State has the 
option either to extradite or to submit the case to its 
competent authorities for prosecution. For example, a Requested 
State could refuse to extradite and instead declare that it 
will itself prosecute the offender.
    It should be noted that the incorporation by reference of 
multilateral international agreements that deal with 
international law enforcement can have significance only if the 
Republic of Korea is Party to such multilateral agreement.

4. The Death Penalty Exception

    The United States and other countries often have different 
views on capital punishment, though some countries do impose 
the death penalty for certain crimes, such as drug trafficking. 
The Treaty with the Republic of Korea permits the parties to 
refuse extradition for an offense punishable by the death 
penalty in the Requesting State if the same offense is not 
punishable by the death penalty in the Requested State, unless 
the Requesting State gives assurances satisfactory to the 
Requested State that the death penalty will not be imposed or 
carried out. (Art. 7). In addition, in cases where the offense 
constitutes murder in the Requested State the imposition of 
capital punishment is not grounds for refusal.

5. The Extradition of Nationals

    The U.S. does not object to extraditing its own nationals 
and has sought to negotiate treaties without nationality 
restrictions. Many countries, however, refuse to extradite 
their own nationals. The Treaty with the Republic of Korea does 
not require extradition of nationals, but leaves the decision 
to the discretion of the Requested State. (Art. 3).

6. Retroactivity

    The Treaty with the Republic of Korea applies to offenses 
committed before as well as after it enters into force. (Art. 
20). This retroactivity provision does not violate the 
Constitution's prohibition of ex post facto laws, which applies 
only to enactments making criminal those acts that were not 
illegal when committed, not to the extradition of a defendant 
for acts that were criminal when committed but for which no 
extradition agreement existed at the time.

7. The Rule of Speciality

    The rule of speciality (or specialty), which prohibits a 
Requesting State from trying an extradited individual for an 
offense other than the one for which he was extradited, is a 
standard provision included in U.S. bilateral extradition 
treaties. The Treaty with the Republic of Korea expresses the 
basic prohibition and also includes the following exceptions: 
(1) an extradited individual may be tried by the Requesting 
State for an offense other than the one for which he was 
extradited if the Requested State (which may request the 
submission of additional supporting documents) consents; (2) 
the offense is a lesser included offense; (3) the extradited 
individual leaves the territory of the Requesting State and 
voluntarily returns to it; (4) the extradited individual does 
not leave the territory of the Requesting State within 25 days 
after he or she is free to leave; or, (5) the extradited 
individual voluntarily consents to being tried for an offense 
other than the one for which he was extradited. These 
exceptions to the speciality rule are designed to allow a 
Requesting State some latitude in prosecuting offenders for 
crimes other than those for which they were specifically 
extradited.

8. Lapse of Time

    The Treaty with the Republic of Korea precludes extradition 
of offenses barred by an applicable statute of limitations. 
However, time during which a fugitive has fled prosecution is 
not to be counted toward the applicable limitation period, or 
is any other time that would suspend the limitation period 
under the law of either the Requesting or Requested State.

                  IV. Entry Into Force and Termination


                          a. Entry into force

    The Treaty shall enter into force upon the exchange of the 
instruments of ratification.

                             b. Termination

    Either Party may terminate this Treaty at any time by 
giving written notice to the other Party, and the termination 
shall be effective six months after the date of such notice.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed Treaty on October 20, 1999 (a transcript of the 
hearing can be found in the annex to this report). The 
Committee considered the proposed Treaty on November 3, 1999, 
and ordered the proposed Treaty favorably reported by voice 
vote, with the recommendation that the Senate give its advice 
and consent to the ratification of the proposed Treaty subject 
to one understanding, one declaration, and one proviso.

                         VI. Committee Comments

    The Committee on Foreign Relations recommends favorably the 
proposed Treaty. On balance, 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. Several issues did arise in the course of the 
Committee's consideration of the Treaty, and the Committee 
believes that the following comments may be useful to the 
Senate in its consideration of the proposed Treaty and to the 
State and Justice Departments.

  A. Restriction on Transfer of Extraditees to International Criminal 
                                 Court

    On July 17, 1998 a majority of nations at the U.N. 
Diplomatic Conference in Rome, Italy, on the Establishment of 
an International Criminal Court voted 120-7, with 21 
abstentions, in favor of a treaty that would establish an 
international criminal court. The court is empowered to 
investigate and prosecute war crimes, crimes against humanity, 
genocide and aggression. The United States voted against the 
treaty.
    The Resolution of Ratification accompanying the Extradition 
Treaty contains an understanding relative to the international 
court. Specifically, regarding the ``Rule of Speciality'' the 
United States shall restate in its instrument of ratification 
its understanding of the provision, which requires that the 
United States consent to any retransfer of persons extradited 
to the Treaty Partner to a third jurisdiction. The 
understanding further states that future United States policy 
shall be to refuse consent to the transfer of any person 
extradited to Korea by the United States to the International 
Criminal Court. This restriction is binding on the President, 
and would be vitiated only in the event that the United States 
ratifies the treaty establishing the court, pursuant to the 
Constitutional procedures as contained in Article II, section 2 
of the United States Constitution.
    This provision makes clear that both Parties understand 
that individuals extradited to the other Party may not be 
transferred to the international court. Members of the 
Committee are concerned that the treaty could become conduits 
for transferring suspects to the international criminal court, 
even though the United States has rejected the court.

                      B. Extradition of nationals

    Under Article 3 of the proposed treaty, neither Party is 
bound to extradite its own nationals. However, either Party may 
extradite its national ``if, in its discretion, it is deemed 
proper to do so.'' Permitting such broad discretion to 
extradite nationals is not the preferred U.S. requirement. The 
United States seeks in its negotiations to treat extradition of 
nationals in the same manner as extradition of other 
individuals.
    The technical analysis prepared by the U.S. treaty 
negotiators, which is set forth in this report, states that the 
Korean delegation assured the U.S. delegation that it did not 
foresee that the discretion not to extradite would be used 
frequently.
    The Committee supports the extradition of U.S. nationals. 
Criminal suspects should not be given safe haven in this 
country. The alternative--trying them in this country--is often 
not a realistic option, for two reasons. First, U.S. courts 
often lack jurisdiction over the crime, because not many crimes 
are subject to extraterritorial jurisdiction under U.S. law. 
Second, prosecuting such cases in the United States is often 
extremely difficult, particularly when the evidence and many of 
the witnesses are not located in this country, as would often 
be the case.
    The Committee is deeply concerned that many nations around 
the world do not agree to extradite their own nationals to the 
United States. The Committee expects that U.S. negotiators will 
continue to press other nations to agree to extradite their 
nationals, including in existing treaty relationships. The 
Committee urges the Executive Branch to emphasize, in 
discussing new extradition relationships with foreign states, 
that a reciprocal duty to extradite nationals is a key U.S. 
negotiating objective.
    Under current practice the United States on occasion may 
not seek extradition if it does not think that a country will 
extradite, whether because a country does not have an 
extradition treaty with the United States, does not extradite 
its nationals, or would simply be unlikely to extradite under 
the circumstances. The Committee believes that failure to even 
request extradition may create the false perception that the 
United States is not interested in pursuing such individuals. 
The Committee anticipates that the United States will err on 
the side of making requests for extradition of nationals, 
unless law enforcement efforts would be compromised, in order 
to continue to require treaty partners to respond to U.S. 
requests for extradition of nationals.

   C. Use of treaties to aggressively pursue international parental 
                               kidnaping

    On October 1, 1998, the Committee on Foreign Relations 
convened a hearing to consider U.S. Responses to International 
Parental Kidnaping. The Attorney General, Janet Reno, testified 
before the Committee, as did four parents whose children were 
abducted or wrongfully detained in international jurisdictions. 
The parents recounted their frustration with the current level 
of U.S. Government assistance in seeking the return of their 
children.
    Although the Attorney General pointed to limitations in the 
ability of the U.S. Government to resolve many cases of 
international parental abduction, she also recognized that the 
United States could do better in assisting in the return of 
abducted children and pledged to take steps to improve 
coordination between the Departments of State and Justice.
    The State and Justice Departments have testified that the 
Treaty with the Republic of Korea is designed to ensure that no 
individual can evade the justice system by travel to a foreign 
country. This same principal should be true of parents who take 
their children from the United States in violation of the 1993 
International Parental Kidnaping Act. The Committee expects, 
therefore, that State and Justice Department officials will 
seek extradition unless it will hinder the law enforcement 
efforts. The Committee also expects that State and Justice 
Department officials will raise this issue in the course of 
negotiation of all bilateral law enforcement treaties and in 
other bilateral diplomatic exchanges. The Committee 
anticipates, also, that this issue will be given great scrutiny 
in the issuance of passports, with a special eye towards 
passport or visa fraud.

                   D. National Security Law in Korea

    The Republic of Korea has long had in place the ``National 
Security Law.'' According to the State Department's Country 
Reports on Human Rights Practices for 1998, the law

        permits the authorities to detain and arrest persons 
        who commit acts viewed as supportive of North Korea and 
        therefore dangerous to the Republic of Korea. 
        Authorities arrested not only persons spying on behalf 
        of North Korea but also those who praised North Korea, 
        its former leader Kim Il Sung, or its ``self-reliance'' 
        political philosophy.
        . . . The [law] permits the imprisonment of up to 7 
        years of anyone who `with knowledge that he might 
        endanger the existence or security of the State or the 
        basic order of free democracy, praised, encouraged, 
        propagandized for, or sided with the activities of an 
        antistate organization.'

It is long been recognized that aspects of the National 
Security Law do not comport with basic civil liberties, 
particularly the right to free speech or free association.
    During the Committee's hearing on the Treaty, the Executive 
Branch witnesses affirmed that cases under the National 
Security Law that involve restrictions on civil liberties would 
not qualify under the ``dual criminality'' provision of the 
Treaty, in that the United States does not criminalize certain 
of the behavior proscribed by the National Security Law. In 
addition, as the technical analysis emphasizes, such ``crime'' 
would fall under the political offense exception of Article 
4(1), or the political motivation exception in Article 4(4). 
The Committee expects the State Department to be vigilant in 
ensuring that extradition is not permitted in such cases.

                  VII. Explanation of Proposed Treaty


Technical Analysis of the Extradition Treaty Between the United States 
                  of America and the Republic of Korea

    On June 9, 1998, the United States signed a treaty on 
extradition with the Republic of Korea (``the Treaty''). The 
Treaty, which will be the first extradition treaty to enter 
into force between the United States and this important ally in 
the Western Pacific, represents a major step forward in the 
United States' efforts to strengthen cooperation with countries 
on the Pacific Rim in combating organized crime, transnational 
terrorism, international drug trafficking, and other offenses.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed for the United States. 
The Republic of Korea has its own extradition legislation \1\ 
which will apply to United States' requests under the Treaty.
---------------------------------------------------------------------------
    \1\ Extradition Act, Law No. 4015 of August 5, 1988 (hereinafter 
``Extradition Act 1988'') The key sections of the Extradition Act 1988 
that are germane to the interpretation and implementation of the Treaty 
are discussed in more detail in this Technical Analysis. During the 
negotiations, the Korean delegation said that in Korea a treaty 
supersedes inconsistent legislation, so the terms of the treaty would 
override the Extradition Act 1988, but that they as negotiators had 
been instructed to make the treaty consistent with Korean law as much 
as possible.
---------------------------------------------------------------------------
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    The first article of the Treaty, like the first article in 
every recent United States extradition treaty, formally 
obligates each Contracting State to extradite to the other 
persons sought for prosecution, trial, or imposition or 
execution of punishment for an extraditable offense, pursuant 
to the provisions of the remainder of the Treaty. The article 
refers to persons wanted ``in'' the Requesting State rather 
than ``by'' the Requesting State, since the obligation to 
extradite, in cases arising from the United States, would 
include state and local prosecutions as well as federal cases.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what are extraditable offenses. This Treaty, like most recent 
United States extradition treaties, does not list the offenses 
for which extradition may be granted. Instead, paragraph 1 of 
the article permits extradition for any offense punishable 
under the laws in both Contracting States by deprivation of 
liberty (i.e., imprisonment, or other form of detention), for a 
period of more than one year, or by a more severe penalty such 
as capital punishment. Defining extraditable offenses in terms 
of ``dual criminality'' rather than attempting to list each 
extraditable crime obviates the need to renegotiate the Treaty 
or supplement it if both countries pass laws dealing with a new 
type of criminal activity, or if the list inadvertently fails 
to cover a criminal activity punishable in both countries.
    During the negotiations, the United States delegation 
received assurances from the Koreans that extradition would be 
possible for such offenses as drug trafficking (including 
operating a continuing criminal enterprise, in violation of 
Title 21, United States Code, Section 848); offenses under the 
racketeering statutes (Title 18, United States Code, Section 
1961-1968); drug money laundering; \2\ terrorism; tax offenses; 
crimes against environmental protection laws; and any antitrust 
violations punishable in both states by more than one year of 
imprisonment.
---------------------------------------------------------------------------
    \2\ Korean law currently does not prohibit the laundering of 
proceeds of non-drug offenses, but the Korean Ministry of Justice is 
exploring drafting comprehensive non-drug money laundering legislation. 
During the negotiations, the Korean delegation said that extradition 
might be granted to the U.S. for a non-drug money laundering offense if 
the offender were viewed as having ``participated'' in the underlying 
crime.
---------------------------------------------------------------------------
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, or otherwise 
participating in, an extraditable offense. Conspiracy charges 
are frequently used in United States criminal cases, 
particularly those involving complex transnational criminal 
activity, so it is especially important that the treaty be 
clear on this point. The Koreans told us that there is no 
statutory provision for conspiracy in Republic of Korea law, 
similar to Title 18, United States Code, Section 371. Some U.S. 
treaties handle this matter by creating an exception to dual 
criminality and expressly make extraditable both ``conspiracy'' 
and its closest analogue under the law of our treaty partner. 
That approach proved unnecessary in this Treaty because the 
Korean delegation assured the U.S. delegation that Korea would 
not deny extradition on dual criminality grounds if 
``conspiracy'' charges were included in the U.S. request for 
most major crimes covered by the Treaty.\3\
---------------------------------------------------------------------------
    \3\ In Korea, conspiracy to commit an offense is punishable only if 
specified by statute, and conspiracy to commit the most serious crimes 
(e.g., murder, drug trafficking, robbery, kidnapping, or larceny) is 
punishable, as is conspiracy to sponsor foreign aggression, join an 
organized crime group, use explosives, aid fugitives to escape or 
harbor criminals, commit arson, sabotage or obstruct traffic, tamper 
with drinking water, or counterfeit currency or securities. It is our 
understanding that if the U.S. charged a conspiracy to commit a crime 
and no precisely equivalent conspiracy offense exists under Korean law, 
extradition might be possible nonetheless if the facts amounted to 
``participation'' in the substantive offense under Korean law.
---------------------------------------------------------------------------
    Paragraph 3 reflects the intention of both countries to 
interpret the principles of this article broadly. Judges in 
foreign countries are often confused by the fact that many 
United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in the United 
States federal courts. Because these foreign judges know of no 
similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements be disregarded in 
applying the dual criminality principle. For example, Korean 
authorities must treat United States mail fraud charges (Title 
18, United States Code, Section 1341) in the same manner as 
fraud charges under state laws, and view the federal crime of 
interstate transportation of stolen property (Title 18, United 
States Code, Section 2314) in the same manner as unlawful 
possession of stolen property. This paragraph also requires a 
Requested State to disregard differences in the categorization 
of the offense in determining whether dual criminality exists, 
and to overlook mere differences in the terminology used to 
define the offense under the laws of each country. A similar 
provision is contained in all recent United States extradition 
treaties.
    Paragraph 4 deals with the fact that many federal crimes 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes jurisdiction in our courts to 
prosecute offenses committed outside of the United States if 
the crime was intended to, or did, have effects in this 
country, or if the legislative history of the statute shows 
clear Congressional intent to assert such jurisdiction.\4\ In 
the Republic of Korea, however, the Government's ability to 
prosecute extraterritorial offenses is much more limited. 
Therefore, Article 2(4) reflects the Republic of Korea's 
agreement to recognize United States jurisdiction to prosecute 
offenses committed outside of the United States if the Korean 
law would permit it to prosecute similar offenses committed 
outside of it in corresponding circumstances and also obligates 
the Requested State to extradite for extraterritorial crimes 
committed by a national of the Requesting State. If the 
Requested State's laws do not so provide, the second sentence 
of the paragraph states that extradition may be granted, but 
the executive authority of the Requested State has the 
discretion to deny the request. The final sentence in the 
paragraph was necessitated by the fact that Korea's extradition 
law expressly gives the Minister of Justice the discretion to 
deny extradition if the offense was committed in Korean 
territory.\5\ The Korean delegation suggested that the Treaty 
give each Contracting State the discretion to deny extradition 
in such circumstances. In the view of the United States, 
however, there is still no reason to deny extradition if the 
crime was committed in the Requested State's territory but the 
Requested State is not in fact prosecuting that offense. The 
compromise reached was to provide that extradition may be 
denied when the offense for which extradition is sought was 
committed in the territory of the Requested State and a 
prosecution for that offense is pending in that State.\6\
---------------------------------------------------------------------------
    \4\ Restatement (Third) of the Foreign Relations Law of the United 
States Sec.  402 (1987); Blakesley, ``United States Jurisdiction over 
Extraterritorial Crime,'' 73 Journal of Criminal Law and Criminology 
1109 (1982).
    \5\ Section 9(2), Korean Extradition Act 1988. The law also allows 
denial of extradition if the offense is subject to pending prosecution 
in Korea. Section 9(3), Korean Extradition Act.
    \6\ It was understood between the delegations that the Requested 
State may postpone the extradition proceedings against the person 
sought while that person is being prosecuted for an offense in the 
Requested State, and it was recognized that once the prosecution is 
completed the Requested State may have no alternative to denying the 
extradition request under Article 5 if the person sought was convicted 
or acquitted.
---------------------------------------------------------------------------
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense it shall also be granted for any 
other offense specified in the request even if the latter 
offense is punishable by less than one year's imprisonment. For 
example, if Korea agrees to extradite to the United States a 
fugitive wanted for prosecution on a felony charge, the United 
States will also be permitted to obtain extradition for any 
misdemeanor offenses that have been charged, as long as those 
misdemeanors would also be recognized as criminal offenses in 
Korea. Thus, the Treaty incorporates recent United States 
extradition practice by permitting extradition for misdemeanors 
committed by a fugitive when the fugitive's extradition is 
granted for a more serious extraditable offense. This practice 
is generally desirable from the standpoint of both the fugitive 
and the prosecuting country in that it permits all charges 
against the fugitive to be disposed of more quickly, thereby 
facilitating trials while evidence is still fresh and 
permitting the possibility of concurrent sentences. Similar 
provisions are found in recent extradition treaties with 
countries such as Cyprus and the Philippines.\7\
---------------------------------------------------------------------------
    \7\ See Art. 2(5), U.S.-Cyprus Extradition Treaty, signed June 17, 
1996, entered into force September 14, 1999; Art. 2(5), U.S.-
Philippines Extradition Treaty, signed November 13, 1994, entered into 
force November 22, 1996.
---------------------------------------------------------------------------
    Paragraph 6 states that when extradition has been sought 
for an offense against a law relating to taxation, customs 
duties, exchange control, or other revenue matters, it shall 
not be refused on the ground that the Requested State does not 
have a tax, customs duty, or exchange regulation of the same 
kind as that in the Requesting State. Similar to paragraphs 
3(a) and 3(b) of this article, this provision clarifies that 
revenue-related offenses, which are still subject to the 
general dual criminality requirement of this article, need not 
be based on identical regulations in order to be extraditable. 
This provision is inspired by Article 2(3) of the United 
Nations Model Extradition Treaty, and memorializes the fact 
that the Republic of Korea and the U.S. both extradite for tax 
and fiscal offenses. Similar provisions appear in recent U.S. 
extradition treaties with Austria, France, India, Poland, and 
Trinidad and Tobago.\8\
---------------------------------------------------------------------------
    \8\ See Art. 2(4)(b), U.S.-Austria Extradition Treaty, signed 
January 8, 1998; Art. 2(6), U.S.-France Extradition Treaty, signed 
April 23, 1996; Art. 2(3)(c), U.S.-India Extradition Treaty, signed 
June 25, 1997, entered into force July 21, 1999; Art. 3, U.S.-Poland 
Extradition Treaty, signed July 10, 1996, entered in force August 18, 
1999; Art. 2(6), U.S.-Trinidad and Tobago Extradition Treaty, signed 
March 4, 1996.
---------------------------------------------------------------------------
    Paragraph 7 provides that a person who has already been 
sentenced in the Requesting State may be extradited only if 
more than four months of the sentence remain to be served. Most 
U.S. extradition treaties signed in recent years do not contain 
such a requirement, but provisions of this kind do appear in 
some recent U.S. extradition treaties.\9\
---------------------------------------------------------------------------
    \9\ See Art. 2(2), U.S.-Luxembourg Extradition Treaty, signed Oct. 
1, 1996; Art. 2(1), U.S.-France Extradition Treaty, signed April 15, 
1996; Art. 2(1), U.S.-Argentina Extradition Treaty, signed June 10, 
1997; Art. 2(2), U.S.-Bolivia Extradition Treaty, signed June 27, 1995, 
entered into force Nov. 21, 1996.
---------------------------------------------------------------------------

                         Article 3--Nationality

    Paragraph 1 states that neither Contracting State shall be 
bound to extradite its own nationals, but the Requested State 
shall have the power to do so if, in its discretion, it be 
deemed proper to do so. As a matter of longstanding policy, the 
U.S. Government extradites U.S. nationals. \10\ However, Korean 
law gives the Minister of Justice the discretion to deny 
extradition if the person sought is a Korean national, \11\ and 
the Korean delegation insisted that the discretion to do so be 
reflected in the Treaty so that the Treaty would be consistent 
with Korean law. The Korean delegation assured the U.S. 
delegation that although the discretion to refuse extradition 
of nationals was important to it, it did not foresee that that 
discretion would be used frequently. Similar provisions appear 
in some other recent U.S. extradition treaties.\12\
---------------------------------------------------------------------------
    \10\ See generally Shearer, Extradition in International Law, 110-
114 (1970); 6 Whiteman, Digest of International Law, 871-876 (1968). 
Our policy of drawing no distinction between nationals of the United 
States and those of other countries in extradition matters is 
underscored by Title 18, U.S. Code, Section 3196, which authorizes the 
Secretary of State to extradite U.S. citizens pursuant to treaties that 
permit (but do not require) surrender of citizens, if other 
requirements of the Treaty have been met.
    \11\ Section 9(1), Extradition Law 1988.
    \12\ See Art. 3, U.S.-Malaysia Extradition Treaty, signed August 3, 
1995, entered into force June 2, 1997; Art. V., U.S.-Japan Extradition 
Treaty, signed March 3, 1978, entered into force March 26, 1980, 31 UST 
892; Art. V, U.S.-Australia Extradition Treaty, signed May 14, 1974, 
entered into force May 8, 1976, as amended by Protocol, dated September 
4, 1990, entered into force December 21, 1992; Art. VII., U.S.-Jamaica 
Extradition Treaty, signed June 14, 1983, entered into force July 7, 
1991.
---------------------------------------------------------------------------
    Paragraph 2 requires that if extradition is refused solely 
on the basis of the nationality of the person sought, the 
Requested State, at the request of the Requesting State, shall 
submit the case to its authorities for prosecution. The 
negotiators agreed that the Requested State is obliged to 
consider prosecuting the person, but is not obliged to 
prosecute if it determines, in its sound prosecutorial 
discretion, that the facts do not make out a criminal offense 
under its law or it lacks jurisdiction to prosecute or if there 
are other reasons not to do so, thus preserving the important 
principle of prosecutorial discretion in the United States.
    Paragraph 3 states that nationality shall be determined at 
the time of the commission of the offense for which extradition 
is requested. In other words, for purposes of this article, the 
nationality of the person sought at the time of the commission 
of the offense governs, not the nationality at the time of the 
extradition hearing. This is to avoid the unfairness that would 
result when a person escapes extradition by acquiring the 
nationality of the Requested State after the crime was 
committed.

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in United 
States extradition treaties.
    Paragraph 2 describes three categories of offenses which 
shall not be considered to be political offenses.
    First, the political offense exception does not apply where 
there is a murder or other willful violent crime against the 
person of a Head of State of one of the Contracting States, or 
a member of the such person's family.
    Second, the political offense exception does not apply to 
offenses which are included in a multilateral treaty, 
convention, or international agreement, which requires the 
parties to either extradite the person sought or submit the 
matter for prosecution, including but not limited to such 
agreement relating to genocide, terrorism, or kidnapping. The 
conventions to which this clause would apply at present 
include, for example, the Convention for the Suppression of 
Unlawful Seizure of Aircraft (Hijacking).\13\
---------------------------------------------------------------------------
    \13\ Done at the Hague on 16 December 1970, entered into force 14 
October 1971, 22 UST 1641, TIAS 7192.
---------------------------------------------------------------------------
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or participating in the 
commission of, any of the foregoing offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request, though purporting to be made for an offense 
for which surrender may be granted, was in fact made for the 
primary purpose of prosecuting or punishing the person sought 
on account of that person's race, religion, nationality, or 
political opinion,\14\ or that extradition was requested for 
political purposes. This paragraph is based on Republic of 
Korea law,\15\ and is consistent with the longstanding law and 
practice of the United States, under which the Secretary of 
State alone has the discretion to determine whether an 
extradition request is based on improper political 
motivation.\16\
---------------------------------------------------------------------------
    \14\ There are similar provisions in many U.S. extradition 
treaties. See Art. III(3), U.S.-Jamaica Extradition Treaty, signed June 
14, 1983, entered into force September 24, 1984; Art. 5(4), U.S.-Spain 
Extradition Treaty, signed May 29, 1970, entered into force June 16, 
1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Art. 4, U.S.-Netherlands 
Extradition Treaty, signed June 24, 1980, entered into force September 
15, 1983 (TIAS 10733); and Art. IV(c), U.S.-Ireland Extradition Treaty, 
signed July 13, 1983, entered into force Dec. 15, 1984 (TIAS 10813).
    \15\ Section 7(4), Extradition Act 1988.
    \16\ See Eain v. Wilkes, 641 F.2d 504, 513-518 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 744 F. Supp. 904 (D. 
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law.\17\
---------------------------------------------------------------------------
    \17\ An example of such a crime is desertion. Matter of Extradition 
of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 1988).
---------------------------------------------------------------------------

                      Article 5--Prior Prosecution

    This article prohibits extradition if the offender has been 
convicted or acquitted in the Requested State for the offense 
for which extradition is requested. Similar language appears in 
many United States extradition treaties.\18\ The Korean 
delegation urged that this provision be expanded because Korean 
law explicitly requires the Minister of Justice to deny 
extradition if the person sought is being proceeded against in 
Korea,\19\ even if the person has not yet been convicted or 
acquitted. The U.S. delegation did not accept this proposal, 
but understands that in such cases the Republic of Korea will 
likely postpone action on the extradition request pursuant to 
Article 12, and may then take action under Article 5 as soon as 
the Korean proceedings are completed.
---------------------------------------------------------------------------
    \18\ See, e.g., Art. 5, U.S.-Jordan Extradition Treaty, signed at 
Washington March 28, 1995, entered into force July 29, 1995.
    \19\ Section 7(2), Extradition Law 1988.
---------------------------------------------------------------------------
    The parties agreed that this provision applies only if the 
offender is convicted or acquitted in the Requested State of 
exactly the same crime he is charged with in the Requesting 
State. It would not be enough that the same facts were 
involved. Thus, if an offender is accused in one State of 
illegally smuggling narcotics into the country, and is charged 
in the other State of unlawfully exporting the same shipment of 
drugs out of that State, an acquittal or conviction in one 
State would not insulate the person from extradition to the 
other, since different crimes are involved.

                        Article 6--Lapse of Time

    Article 6 states that extradition may be denied when the 
prosecution would have been barred by lapse of time according 
to the law of the Requested State had the same offense been 
committed in the Requested State.\20\ Similar provisions are 
found in recent U.S. extradition treaties with Japan, France, 
and Luxembourg.\21\
---------------------------------------------------------------------------
    \20\ It is settled law in the United States, that lapse of time is 
not a defense to extradition at all unless the treaty specifically 
provides to the contrary. Freedman v. United States, 437 F. Supp. 1252, 
1263 (D. Ga. 1977); United States v. Galanis, 429 F. Supp. 1215, 1224 
(D. Conn. 1977).
    \21\ See Art. IV(3), U.S.-Japan Extradition Treaty, signed March 3, 
1978, entered into force March 26, 1980, 31 UST 892; Art. 9(1), U.S.-
France Extradition Treaty, signed April 23, 1996; Art. 2(6), U.S.-
Luxembourg Extradition Treaty, signed Oct. 1, 1996.
---------------------------------------------------------------------------
    Korea insisted on this provision because Korean law demands 
that extradition be denied if the statute of limitations would 
have expired in either Korea or in the Requesting State.\22\ 
However, the delegations were sensitive to the fact that U.S. 
and Korean statutes of limitations are so different that this 
provision could be very difficult to implement. For example, in 
the United States, the statute of limitations becomes 
irrelevant when criminal charges are filed. In Korea, however, 
the statute of limitations for prosecution continues to run 
even when charges have been filed. Instead, each official act 
by the prosecution evidencing an intent to prosecute the 
defendant or capture and re-incarcerate the escapee 
``interrupts'' the period of prescription and restarts the 
applicable period of prescription. Therefore, the Treaty 
provides that a request may be denied if it would be timebarred 
in the Requested State, but that acts or circumstances that 
would toll the statute of limitation in either state would be 
applied by the Requested State.
---------------------------------------------------------------------------
    \22\ Section 7(1), Korea Extradition Law 1988.
---------------------------------------------------------------------------
    In the United States, the statute of limitations is tolled 
during the period that a defendant is a fugitive from justice. 
In Korea, however, the flight of the defendant or escape of a 
convict does not toll the applicable period of prescription. 
The second sentence of the paragraph adopts the U.S. standard, 
stating that the period during which the person for whom 
extradition is sought fled from justice does not count towards 
the running of the statute of limitations. In addition, the 
final sentence of the article states that acts or circumstances 
that would suspend the expiration of the statute of limitations 
in either State shall be given effect by the Requested State, 
and in this regard the Requesting State shall provide a written 
statement of the relevant provisions of its statute of 
limitations, which shall be conclusive.

                     Article 7--Capital Punishment

    Paragraph 1 permits the Requested State to refuse 
extradition in cases in which the offense for which extradition 
is sought is punishable by death in the Requesting State, but 
is not punishable by death in the Requested State. This article 
provides two exceptions to this general rule:

          Under subparagraph (a), the extraditable offenses 
        constitutes murder under the laws of the Requested 
        State; or
          Under subparagraph (b), the Requesting State provides 
        assurances that the death penalty will not be imposed 
        or, if imposed, will not be carried out.

    Similar provisions are found in many recent United States 
extradition treaties.\23\
---------------------------------------------------------------------------
    \23\ See, e.g., Art. 8, U.S.-India Extradition Treaty, signed June 
25, 1997, entered into force July 21, 1999; Art. 6, U.S.-Thailand 
Extradition Treaty, signed December 14, 1983, entered into force May 
17, 1991.
---------------------------------------------------------------------------
    Paragraph 2 provides that when the Requesting State gives 
assurances in accordance with paragraph 1, the assurances shall 
be respected, and the death penalty, if imposed, shall not be 
carried out.

        Article 8--Extradition Procedures and Required Documents

    This article sets out the documentary and evidentiary 
requirements for an extradition request, and is generally 
similar to articles in the United States' most recent 
extradition treaties.
    The first paragraph requires that all requests for 
extradition be submitted in writing and through the diplomatic 
channel. A formal extradition request may be preceded by a 
request for provisional arrest under Article 10, which may be 
initiated through diplomatic channels, or directly between the 
respective justice ministries.
    Paragraph 2 outlines the information which must accompany 
every request for extradition under the Treaty. Most of the 
items listed in this paragraph enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, Article 9(2)(c) calls for ``the text of 
the law describing the essential elements of the offense for 
which extradition is requested,'' enabling the Requested State 
to determine easily whether there would be a basis for denying 
extradition for lack of dual criminality under Article 2.
    Paragraph 3 describes the additional information needed 
when the person is sought for trial in the Requesting State; 
Paragraph 4 describes the information needed, in addition to 
the requirements of paragraph 2, when the person sought has 
already been tried and convicted in the Requesting State.
    Paragraph 3(c) requires that if the fugitive is a person 
who has not yet been convicted of the crime for which 
extradition is requested, the Requesting State must provide 
``reasonable grounds to believe that the person sought has 
committed the offense for which extradition is requested.'' 
This is consistent with extradition law in the United 
States,\24\ and is similar to language in other United States 
extradition treaties.\25\
---------------------------------------------------------------------------
    \24\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. See 
discussion in Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  476, comment b (1987).
    \25\ See, e.g., Art. 8(3)(c), U.S.-Jordan Extradition Treaty, 
signed March 28, 1995, entered into force June 29, 1995.
---------------------------------------------------------------------------
    Paragraph 4 lists the information needed to extradite a 
person who has already been convicted of an offense in the 
Requesting State. This paragraph makes it clear that once a 
conviction has been obtained, no showing of probable cause is 
required. In essence, the fact of conviction speaks for itself, 
a position taken in recent United States court decisions, even 
absent a specific treaty provision.\26\
---------------------------------------------------------------------------
    \26\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D. Vt. 1979).
---------------------------------------------------------------------------
    Paragraph 5 states that if the Requested State considers 
the information furnished in support of the request for 
extradition insufficient under its law with respect to 
extradition, it may ask that the Requesting State submit 
supplementary information within a reasonable length of time as 
it specifies. This paragraph is intended to permit the 
Requesting State to cure defects in the request and 
accompanying materials that are found by a court in the 
Requesting State or by the attorney acting on behalf of the 
Requesting State, and to permit the court, in appropriate 
cases, to grant a reasonable continuance to obtain, translate, 
and transmit additional materials. A similar provision is found 
in other United States extradition treaties.\27\
---------------------------------------------------------------------------
    \27\ See, e.g., Art. 8(5), U.S.-Cyprus Extradition Treaty, signed 
June 17, 1996, entered into force September 14, 1999; Art. 11, U.S.-
Austria Extradition Treaty, signed January 8, 1998.
---------------------------------------------------------------------------
    Paragraph 6 states that all documents be translated into 
the language of the Requested State.

                 Article 9--Admissibility of Documents

    Article 9 states that the documents that accompany an 
extradition request shall be received and admitted as evidence 
in the extradition proceedings if they are certified by the 
principal diplomatic or consular officer of the Requested State 
resident in the Requesting State \28\ or if they are certified 
or authenticated in any other manner accepted by the law of the 
Requested State.
---------------------------------------------------------------------------
    \28\ Thus, the article creates a method of certification for both 
States that is identical to that provided for in U.S. law. See Title 
18, United States Code, Section 3190.
---------------------------------------------------------------------------

                     Article 10--Provisional Arrest

    This article describes the process by which a person in one 
country may be arrested and detained while the formal 
extradition papers are being prepared. Paragraph 1 expressly 
provides that a request for provisional arrest may be made 
through the diplomatic channel or directly between the 
Departments of Justice in the United States and the Republic of 
Korea.
    Paragraph 2 states the information which the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
notified promptly of the disposition of its application and, if 
applicable, the reason for any inability to proceed with the 
application.
    Paragraph 4 provides that the person who has been 
provisionally arrested may be discharged if the Requesting 
State does not file a fully documented request for extradition 
with the executive authority of the Requested State within two 
months of the date on which the person was arrested. The 
delegations agreed that receipt of the documents by the Embassy 
of the Requested State shall constitute receipt by the 
executive authority. Similar provisions appear in all recent 
U.S. extradition treaties.
    Paragraph 5 makes it clear that the discharge of the person 
shall not prejudice the subsequent rearrest and extradition of 
that person if the extradition request and supporting documents 
are delivered later than the two months indicated in paragraph 
4.

                   Article 11--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide an 
explanation of the reasons for the denial. If extradition is 
granted, the article requires that the two States agree on a 
time and place for surrender of the person. The Requesting 
State must remove the fugitive within the time prescribed by 
the law of the Requested State, or the person may be discharged 
from custody and the Requested State may subsequently refuse to 
extradite for the same offense. United States law permits the 
person to request release if he has not been surrendered within 
two calendar months of having been found extraditable,\29\ or 
of the conclusion of any litigation challenging that 
finding,\30\ whichever is later. Republic of Korea law requires 
that the person be released if he is not removed within thirty 
days after the Minister of Justice issues the surrender 
order.\31\
---------------------------------------------------------------------------
    \29\ Title 18, United States Code, Section 3188.
    \30\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also 
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th 
Cir. 1978).
    \31\ Section 35(2), Extradition Law 1988.
---------------------------------------------------------------------------

              Article 12--Temporary and Deferred Surrender

    Occasionally, a person sought for extradition may be 
already facing prosecution or serving a sentence on other 
charges in the Requested State. Article 12 provides a means for 
the Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person 
sought and the service of any punishment that may have been 
imposed. Similar provisions appear in our recent extradition 
treaties with countries such as Jordan, the Bahamas, and 
Australia.\32\
---------------------------------------------------------------------------
    \32\ See Art. 13, U.S.-Jordan Extradition Treaty, signed at 
Washington March 28, 1995, entered into force July 29, 1995; Art. 12, 
U.S.-Bahamas Extradition Treaty, signed March 9, 1990, entered into 
force September 22, 1994; Art. IX, U.S.-Australia Extradition Treaty, 
signed May 14, 1974, entered into force May 8, 1976, as amended by 
Protocol, dated September 4, 1990, entered into force December 21, 
1992.
---------------------------------------------------------------------------
    Paragraph 1 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to this 
provision will be returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. Such 
temporary surrender furthers the interests of justice in that 
it permits trial of the person sought while evidence and 
witnesses are more likely to be available, thereby increasing 
the likelihood of successful prosecution. Such transfer may 
also be advantageous to the person sought in that: (1) it 
allows him to resolve the charges sooner; (2) it may make it 
possible for him to serve any sentence in the Requesting State 
concurrently with the sentence in the Requested State; and (3) 
it permits him to defend against the charges while favorable 
evidence is fresh and more likely to be available to him. 
Similar provisions are found in many recent extradition 
treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the surrender of a person who is 
serving a sentence in the Requested State until the full 
execution of the punishment which has been imposed.\33\ The 
provision's wording makes it clear that the Requested State may 
postpone the initiation of extradition proceedings as well as 
the surrender of a person facing prosecution or serving a 
sentence.
---------------------------------------------------------------------------
    \33\ Under United States law and practice, the Secretary of State 
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. 
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------

      Article 13--Requests for Extradition Made by Several States 

    This article reflects the practice of many recent United 
States extradition treaties and lists some of the factors which 
the executive authority of the Requested State must consider in 
determining to which country a person should be surrendered 
when reviewing requests from two or more States for the 
extradition of the same person. For the United States, the 
Secretary of State would make this decision.\34\
---------------------------------------------------------------------------
    \34\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
---------------------------------------------------------------------------

             Article 14--Seizure and Surrender of Property

    The first paragraph of the article provides that to the 
extent permitted by its laws the Requested State may seize and 
surrender all articles, documents, and evidence connected with 
the offense for which extradition is requested.\35\ The second 
sentence of the paragraph provides that these objects may be 
surrendered to the Requesting State even if extradition cannot 
be effected due to the death, disappearance, or escape of the 
fugitive. Similar provisions are found in all recent U.S. 
extradition treaties.
---------------------------------------------------------------------------
    \35\ The Korean delegation told the U.S. delegation that seizure 
and surrender of evidence in extradition matters is governed by Section 
17(2) of the Extradition Law 1988, and that seizures pursuant to this 
Article would be carried out under Sections 106 and 215 of Korea's 
Criminal Procedure Code.
---------------------------------------------------------------------------
    The second paragraph states that the Requested State may 
obtain assurances from the Requesting State to enable it to 
temporarily surrender the property in such a way as to insure 
that the property is returned free of charge to the Requested 
State as soon as practicable, or may defer surrender if the 
property is needed in connection with pending proceedings in 
the Requested State.
    The final paragraph states that the obligation to surrender 
property under this provision is subject to due respect for any 
rights that third parties may have to such property.

                     Article 15--Rule of Speciality

    This article covers the principle known as the rule of 
speciality, which is a standard aspect of United States 
extradition practice. Designed to ensure that a fugitive 
surrendered for one offense is not tried for other crimes, the 
rule of speciality prevents a request for extradition from 
being used as a subterfuge to obtain custody of a person for 
trial or service of sentence on different charges which may not 
be extraditable under the treaty or properly documented at the 
time that the request is granted.
    Since a variety of exceptions to the rule have developed 
over the years, this article codifies the current formulation 
of the rule by providing that a person extradited under the 
Treaty may only be detained, tried, or punished in the 
Requesting State for (a) the offense for which extradition was 
granted, or any other extraditable offense of which the person 
could be convicted upon proof of the same facts upon which the 
extradition was granted; or (b) for offenses committed after 
the extradition; and (c) any other offenses for which the 
executive authority of the Requested State consents.\36\ 
Article 15(c)(i) permits the Requested State to require the 
documents described in Article 8 when it is asked for its 
consent to pursue new charges; requires that a legal record of 
any statements made by the extradited person with respect to 
the offense be submitted to the Requested State; and provides 
that the person extradited may be detained by the Requesting 
State while the request is being processed, for as long as the 
Requested State authorizes.
---------------------------------------------------------------------------
    \36\ In the United States, the Secretary of State has the authority 
to grant such consent. See Berenguer v. Vance, 473 F. Supp. 1195 
(D.D.C. 1979).
---------------------------------------------------------------------------
     Paragraph 2 prohibits extradition to a third state for an 
offense committed prior to extradition without the consent of 
the surrendering State.\37\
---------------------------------------------------------------------------
    \37\ This provision is consistent with the provisions in all recent 
U.S. extradition treaties.
---------------------------------------------------------------------------
    Paragraph 3 permits the detention, trial, or punishment of 
an extraditee for additional offenses if (1) the extraditee 
leaves and voluntarily returns to the Requesting State, or (2) 
the extraditee does not leave the Requesting State within 25 
days of being free to do so.

                  Article 16--Simplified Extradition 

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings and to expedite their 
return to the Requesting State. This article provides that when 
a fugitive consents to return to the Requesting State, the 
person may be returned to the Requesting State without further 
proceedings. It is anticipated that in such cases there would 
be no need for the formal documents described in Article 8 or 
further judicial proceedings of any kind.
    United States practice has long been that the rule of 
speciality does not apply when a fugitive waives extradition 
and voluntarily returns to the Requested State.\38\ The second 
sentence of Article 16 incorporates this practice, and 
specifies that Article 15, relating to the rule of speciality, 
shall not apply when a person waives extradition under Article 
16.
---------------------------------------------------------------------------
    \38\ Cf. Art. 16, U.S.-Netherlands Treaty, signed June 24, 1980, 
entered into force Sept. 15, 1983, TIAS 10733.
---------------------------------------------------------------------------

                          Article 17--Transit

    Paragraph 1 gives each Contracting State the discretion to 
authorize transit through its territory of persons being 
surrendered to the other country by third countries.\39\ 
Requests for transit may be transmitted either through the 
diplomatic channel, or directly between the Departments of 
Justice in the United States and the Republic of Korea, and are 
to contain a description of the person whose transit is 
proposed and a brief statement of the facts of the case with 
respect to which he is being surrendered to the Requesting 
State. The paragraph specifies that the person may be detained 
in custody during the period of transit.
---------------------------------------------------------------------------
    \39\ A similar provision is in all recent U.S. extradition 
treaties.
---------------------------------------------------------------------------
    Paragraph 2 states that no advance authorization is 
required if the person in custody is in transit to one of the 
Parties and is traveling by aircraft and no landing is 
scheduled in the territory of the other Party. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant the 
request if, in its discretion, it is deemed appropriate to do 
so. The Treaty specifies that the Requested State is to detain 
the person for up to 96 hours until a request for transit is 
received, and thereafter until it is executed.
    Paragraph 3 states that permission for the transit shall 
include permission for the accompanying officials to seek and 
obtain assistance from appropriate authorities in the Requested 
State in order to maintain the person in custody. Thus, the 
Korean National Police might enlist the aid of the U.S. 
Marshals Service or the Federal Bureau of Investigation in 
effecting the transit of a prisoner en route to Korea via the 
United States.
    Paragraph 4 states that if the transit is not accomplished 
within a reasonable time the Contracting State in whose 
territory the person is held may direct that the person be 
released.

                Article 18--Representation and Expenses 

    The first paragraph of this article provides that the 
Requested State shall advise, assist, appear in court on behalf 
of the Requesting State, and represent the interests of the 
Requesting State in any proceedings arising out of an 
extradition request. Thus, the United States will represent the 
Republic of Korea before the courts in this country in 
connection with a request from Korea for extradition, and the 
Republic of Korea will arrange for the representation of the 
United States in connection with United States extradition 
requests to the Republic of Korea. In some cases, the Requested 
State may wish to retain private counsel to assist in the 
presentation of the extradition request. It is anticipated that 
in those cases the fees of private counsel retained by the 
Requested State would be paid by the Requested State.
    Paragraph 2 provides that the Requesting State will bear 
the expenses of the translation of documents and the costs of 
conveying the person from the territory of the Requested State. 
The Requested State is to pay all other expenses incurred in 
that State by reason of the extradition proceedings. This is 
consistent with other U.S. extradition treaties and U.S. law on 
the subject.\40\
---------------------------------------------------------------------------
    \40\ See, e.g., Art. 19, U.S.-Jordan Extradition Treaty, signed 
March 28, 1995, entered into force June 29, 1995; Art. 20, U.S.-India 
Extradition Treaty, signed June 25, 1997, entered into force July 21, 
1999.
---------------------------------------------------------------------------
    Paragraph 3 provides that neither State shall make a 
pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination, and surrender of the fugitive. This would include 
any claim by the fugitive for damages, reimbursement, or legal 
fees, or other expenses occasioned by the execution of the 
extradition request.

                        Article 19--Consultation

    The first paragraph of this article provides that the 
Contracting States shall consult, at the request of either, 
concerning the application or interpretation of the treaty. 
This mandatory consultation requirement was added at the 
request of the United States delegation to address concerns 
regarding the relationship between this treaty and Korea's 
National Security Law (NSL).
    The NSL, as amended in 1980, restricts ``anti-state 
activities'' that endanger ``the state or the lives and freedom 
of the citizenry.'' Previous Governments in Seoul used the law 
not only against espionage and sabotage but also to control and 
punish domestic dissent, such as the publication of 
unauthorized political commentary, art, or literature, on the 
grounds that such expressions benefited an ``antistate 
organization.'' In divided Korea, almost any act of opposition 
to the Republic of Korea Government could be characterized as 
benefiting North Korea. The United States has consistently 
expressed to the Republic of Korea government its strong 
concerns that the NSL could be used to infringe individual 
civil liberties, including the right to free expression.
    During the extradition treaty negotiations, the U.S. 
delegation made it clear that the United States does not 
anticipate extraditing any person to Korea who is charged under 
the NSL with offenses that would implicate freedom of speech or 
assembly in the United States and does not anticipate that 
Korea would make a request for extradition for such an offense. 
The Korean delegation acknowledged that it understood the 
United States position. In fact, the United States and Korean 
delegations agreed that offenses that intruded on freedom of 
speech or assembly would not be extraditable under the Treaty. 
First, there would almost certainly be no comparable offense in 
the U.S. and thus the request would not satisfy the basic 
requirement of dual criminality to establish the obligation to 
extradite under Article 2(1). The request would also likely 
fall within one of the exceptions to the extradition 
obligation, e.g. the crime would be a political offense for 
which extradition is prohibited under Article 4(1), or the 
request would be politically motivated, subject to denial under 
Article 4(4). If Korea were to make such a request for 
extradition, the United States would use the mandatory 
provisions of Article 19 to require consultations with Korea in 
order to confirm its understanding of the applicable law in the 
Republic of Korea, and to make clear its reading of the treaty 
on these matters.
    Article 19 of the treaty provides that the Departments of 
Justice in the United States and the Republic of Korea may 
consult with one another with regard to an individual 
extradition case or on extradition procedures in general. A 
similar provision is found in other recent U.S. extradition 
treaties.

                        Article 20--Application

    This Treaty, like most of the other United States 
extradition treaties negotiated in the past two decades, is 
expressly made retroactive, and covers offenses which occurred 
before as well as after the date upon which the Treaty enters 
into force.

      Article 21--Ratification, Entry Into Force, and Termination

    This article contains standard treaty language providing 
for the exchange of instruments of ratification as soon as 
possible. The Treaty is to enter into force upon the exchange 
of instruments of ratification.
    This article also contains the standard treaty language 
describing the procedure for giving notice of termination of 
the Treaty. Termination shall become effective six months after 
the date of notice.

                    VIII. Resolution of Ratification

      Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty between the Government 
of the United States of America and the Government of Republic 
of Korea, signed at Washington on June 9, 1998 (Treaty Doc. 
106-2), subject to the understanding of subsection (a), the 
declaration of subsection (b), and the proviso of subsection 
(c).
      (a) Understanding.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:

        Prohibition on Extradition To the International 
        Criminal Court.--The United States understands that the 
        protections contained in Article 15 concerning the Rule 
        of Speciality would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to the Republic 
        of Korea by the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the treaty establishing that Court has 
        entered into force for the United States by and with 
        the advice and consent of the Senate, as required by 
        Article II, section 2 of the United States 
        Constitution.

      (b) Declaration.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:

        Treaty Interpretation.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.

      (c) Proviso.--The resolution of ratification is subject 
to the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:

        Supremacy of the Constitution.--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.
                               IX. Annex

                              ----------                              




      EXTRADITION TREATY WITH SOUTH KOREA (TREATY DOCUMENT 106-2)

                              ----------                              


                      WEDNESDAY, OCTOBER 20, 1999

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:15 p.m. in room 
SD-419, Dirksen Senate Office Building, Hon. Rod Grams, 
presiding.
    Present: Senators Grams and Biden.
    Senator Grams. Thank you very much. Sorry we are a little 
late, but I wanted to get the hearing started to consider the 
U.S. Extradition Treaty with South Korea.
    Today the committee is considering the Extradition Treaty 
between the Government of the United States and the Government 
of the Republic of Korea.
    This treaty is intended to facilitate the extradition of 
individuals to stand trial in the countries where they are 
accused of committing felonies, thereby curbing the ability of 
international fugitives to find safe haven.
    The committee has taken the unusual step of considering 
this extradition treaty ahead of the standard biennial schedule 
for consideration of law enforcement treaties in light of a 
pending request for extradition of an international fugitive 
currently in South Korea who is being sought by the U.S. 
District Attorney in Philadelphia to stand trial for murder.
    The United States has extradition relationships with more 
than 110 countries. Extradition treaties have long been a basis 
for furthering bilateral relationships and represent a 
recognition by the United States of the legitimacy of a 
country's judicial system.
    Respect for a treaty partner's judicial system is essential 
since the treaties permit the transfer of individuals to 
another country in order to stand trial for alleged crimes. The 
treaty with South Korea, therefore, signals an important 
advancement in the U.S.-South Korean relationship.
    This extradition treaty will also add to a growing web of 
relationships by the United States that makes it increasingly 
difficult for criminals to find a safe haven from criminal 
prosecution. While economic opportunities are created by the 
increasing globalization of the economy, this openness also 
facilitates transborder criminal activity, such as the 
terrorist attacks on our embassies in East Africa just last 
year.
    Extradition of criminals, particularly those wanted for 
terrorism, drug trafficking, and violent crime, has become 
increasingly important to insure that perpetrators of such 
heinous crimes are brought to justice.
    When the Senate last considered international extradition 
treaties in the wake of approval of the Rome Treaty and the 
International Criminal Court, which was adopted by more than 
100 countries in July 1998, each treaty's instrument of 
ratification included a prohibition on the transfer of 
Americans extradited under the treaty to an international 
criminal court. The resolution of ratification for the treaty 
with South Korea will also insure that the transfer of subjects 
extradited to South Korea will not be made to that misconceived 
court.
    Today the committee will hear from Jamison S. Borek, Deputy 
Legal Advisor for the Department of State, and also Mr. John E. 
Harris, Acting Director of the Office of International Affairs 
of the Department of Justice.
    I want to welcome you here to this hearing today.
    Now I would like to take a moment and turn it over to 
Senator Biden for any opening comments he may have.
    Senator Biden. Thank you, Mr. Chairman. I am grateful that 
you are holding this hearing. I asked Senator Helms whether he 
would move this up, and I thank him as well for being willing 
to do that.
    If this extradition treaty with South Korea is approved, I 
think it will add a new dimension to a 50 year relationship 
with South Korea that has been growing and getting better.
    Ours is an alliance forged in blood, and a sometimes 
desperate struggle against common adversaries. But it is 
fitting, it seems to me, that we should complement our 
extensive security and economic ties by expanding the 
cooperation area in law enforcement.
    This treaty is important for two reasons. First, it 
acknowledges the tremendous changes which have occurred in 
South Korea as the country has emerged from years of 
authoritarian rule to become a thriving multi-party democracy. 
President Kim Dae Jung has made democracy and accountability a 
hallmark of his administration, launching sweeping reforms not 
only in the economic sector but also in the political and 
judicial realms.
    Although the reforms are still underway, the changes in 
South Korea I think are dramatic and I think are plain to see. 
Thus, I think it is appropriate that we take note of the 
reforms and the increased confidence they inspire in Korean 
courts.
    Second, this treaty will pay important and immediate 
dividends for U.S. law enforcement. Even as we sit here in 
Washington, a murder suspect, a fugitive from justice wanted 
for trial in Philadelphia, is now free in South Korea. The only 
thing preventing him from being returned to the United States 
to stand trial is the absence of an extradition treaty with 
South Korea.
    Moreover, the treaty is a critical component for overall 
law enforcement cooperation with South Korean authorities, 
cooperation which I believe will help combat organized crime, 
drug smuggling, and international terrorism, as the chairman 
has mentioned.
    Mr. Chairman, by giving its advice and consent to this 
treaty, the Senate, I hope it will be clear, will be sending a 
strong signal to the people of South Korea that we value our 
alliance and we have confidence in their judicial system. We do 
not sign extradition treaties with countries in whose judicial 
systems we have little confidence.
    It will also send a message to criminals who might seek 
refuge by fleeing to either country. You can run, but, if 
apprehended, you can not hide from eventual prosecution.
    Mr. Chairman, I look forward to our hearing and again thank 
you for moving on this as quickly as you have. I welcome the 
witnesses and am looking forward to hearing their testimony.
    Senator Grams. Thank you, Senator Biden.
    Ms. Borek, if you have any opening statement that you would 
like to make, please proceed.

STATEMENT OF JAMISON S. BOREK, DEPUTY LEGAL ADVISER, DEPARTMENT 
                            OF STATE

    Ms. Borek. Thank you, Mr. Chairman. If I may, I will 
shorten my statement and ask that the full document be accepted 
for the record.
    Senator Grams. It will be so entered.
    Ms. Borek. Thank you, Mr. Chairman, Senator Biden. Thank 
you for giving us the opportunity to testify in support of the 
Extradition Treaty with the Government of the Republic of Korea 
today.
    We greatly appreciate this opportunity to move toward 
ratification of this treaty, which was signed on June 9 of last 
year. The growth in transport of criminal activity, especially 
violent crime, terrorism, drug trafficking, and the laundering 
of proceeds of organized crime, has confirmed the need for an 
increased international law enforcement cooperation effort. 
Extradition treaties, such as the Treaty with the Republic of 
Korea, are essential tools in that effort.
    This will become the first bilateral extradition treaty 
between the United States and the Republic of Korea. We do not 
currently have an extradition treaty in place. This provides 
the opportunity for fugitives from justice to use each of our 
countries as a haven from the other, an increasing problem 
given the continuing rise in transnational crime and ease of 
travel across borders.
    Taken together with the Mutual Legal Assistance Treaty with 
the Republic of Korea, to which you gave advice and consent and 
which entered into force in May 1997, this will be the basis 
for significant expanded law enforcement cooperation.
    This is a fairly standard treaty in the modern line. It 
provides for dual criminality, so that all offenses which are 
criminal, serious crimes in both countries will be covered.
    Second, it does cover extraditable offenses committed 
before entry into force. So it will permit us to seek 
extradition of persons who have already committed crimes, such 
as were mentioned by Senator Biden.
    It has other improvements which we find in modern treaties. 
It does contain a provision making the extradition of nationals 
discretionary. However, in this case, we have to note that the 
Korean Government does not expect to refuse extradition on the 
basis of nationality as a matter of policy. There is discretion 
under their law for the Minister of Justice to refuse 
extradition in some cases and, therefore, they believe this 
discretion should be reflected in the treaty. But we were 
assured that they do not expect to use this discretion on any 
sort of frequent or regular basis. They do not have a 
principled problem with the extradition of nationals.
    As you know, this is in other countries a problem which we 
are striving to overcome with the Department of Justice.
    I will not go on with that. It is basically a modern treaty 
in the modern form. It will be a very useful and important 
treaty, and we hope very much that you will give it your advice 
and consent.
    I will close here and take your questions.
    [The prepared statement of Ms. Borek follows:]

                 Prepared Statement of Jamison S. Borek

    Mr. Chairman and members of the Committee:
    I am pleased to appear before you today to testify in support of 
the extradition treaty between the Government of the United States of 
America and the Government of the Republic of Korea.
    The Department of State greatly appreciates this opportunity to 
move toward ratification of this important treaty, which was signed on 
June 9, 1998. The growth in trans-border criminal activity, especially 
violent crime, terrorism, drug trafficking, and the laundering of 
proceeds of organized crime, has confirmed the need for increased 
international law enforcement cooperation. Extradition treaties such as 
the treaty with the Republic of Korea now under consideration by this 
Committee are essential tools in that effort.
    Upon entry into force, this will become the first bilateral 
extradition treaty between the United States and the Republic of Korea. 
The current absence of an extradition treaty provides the opportunity 
for fugitives from justice to use each of our countries as a haven from 
the other, an increasing problem given the continuing rise of 
transnational crime and the ease of travel across borders. Taken 
together with the Mutual Legal Assistance Treaty with the Republic of 
Korea, which entered into force in May 23, 1997, the extradition treaty 
will provide the basis for significant expanded law enforcement 
cooperation between our two countries.
    Most of the Treaty's provisions are those typically found in other 
recently negotiated bilateral extradition treaties. The overall Treaty 
provides significant advantages to the United States, particularly when 
compared to the absence of any treaty on these issues. The following 
are some of these important features.
    First, the Treaty defines extraditable offenses to include conduct 
that is punishable by imprisonment or deprivation of liberty for a 
period of one year or more in both states, or by a more severe penalty. 
This is the so-called ``dual criminality'' approach. Treaties 
negotiated before the 1970s typically provided for extradition only for 
offenses appearing on a list contained in the instrument. As time 
passed, these lists grew increasingly out of date. The dual criminality 
approach obviates the need to renegotiate treaties to cover new 
offenses in instances in which both states pass laws to address new 
types of criminal activity.
    Second, the Treaty will permit extraditions whether the 
extraditable offense is committed before or after their entry into 
force. This provision is particularly useful and important, since it 
will ensure that persons who have already committed crimes can be 
extradited under the new treaties from each of the new treaty partners 
after the treaty enters into force.
    Third, the Treaty provides a clear statement of the documentation 
and other information that will be needed to support extradition 
requests in either country. Like the analogous provisions in other 
recent U.S. extradition treaties, this statement will provide 
prosecutors of both countries with clear guidance on the material 
needed to make the treaty work effectively and efficiently.
    Fourth, the Treaty contains a provision that permits the temporary 
surrender of a fugitive to the Requesting State when that person is 
facing prosecution for, or serving a sentence on, charges within the 
Requested State. This provision can be important to the Requesting 
State and in some cases the fugitive for instance, so that: 1) charges 
pending against the person can be resolved earlier while the evidence 
is fresh; or 2) where the person sought is part of a criminal 
enterprise, he can be made available for assistance in the 
investigation and prosecution of other participants in the enterprise.
    The Treaty also addresses the important issue of extradition of 
nationals of the Requested State. As a matter of longstanding policy, 
the U.S. Government extradites United States nationals. The treaty with 
Korea does not require each State to extradite its nationals, but 
empowers each State to do so in its discretion. Should a Requested 
State refuse extradition on the basis of nationality, it is obliged 
upon request of the Requesting State to submit the case to its 
authorities for prosecution. The U.S. delegation pursued mandatory 
extradition of nationals during the negotiations, but Korean law gives 
the Korean Minister of Justice the discretion to deny extradition if 
the person sought is a Korean national, and the Government of Korea 
insisted that the Minister's discretion needed to be reflected in the 
Treaty so that it would not be inconsistent with this aspect of Korean 
law. The provision on nationality is thus similar to that we have 
included in U.S. extradition treaties with Japan, Australia, Jamaica, 
and Malaysia. The Korean delegation assured the U.S. delegation that 
although the discretion to refuse extradition of nationals was 
important to it, it did not foresee that that discretion would be used 
frequently.
    We will continue our efforts to convince Korea and all other 
countries to remove remaining restrictions on the extradition of 
nationals. The U.S. Government has made it a high priority to convince 
states to change their constitutions and laws and agree to extradite 
their nationals. As we have discussed with this Committee before, 
however, this is a very sensitive and deep-seated issue and we have not 
succeeded in obtaining unqualified approval in all circumstances.
    A second issue that often arises in modern extradition treaties 
involves extraditions in cases in which the fugitive may be subject to 
the death penalty in the Requesting State. A number of recent U.S. 
extradition treaties have contained provisions under which a Requested 
State may request an assurance from the Requesting State that the 
fugitive will not face the death penalty. A provision of this sort 
appears in the extradition treaty with Korea.
    In sum, Mr. Chairman, the proposed Treaty with the Republic of 
Korea will create a crucially important first-ever legal framework for 
extradition relations with an important law enforcement partner. We 
appreciate the Committee's decision to convene this hearing to consider 
the treaty.
    I will be happy to answer any questions the Committee may have.

    Senator Grams. Thank you very much, Ms. Borek.
    Mr. Harris.

    STATEMENT OF JOHN E. HARRIS, ACTING DIRECTOR, OFFICE OF 
INTERNATIONAL AFFAIRS, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE

    Mr. Harris. Thank you, Mr. Chairman.
    With your permission, I, too, would like to shorten my 
statement and submit the full text for the record.
    Senator Grams. It will be so entered.
    Mr. Harris. Thank you.
    Mr. Chairman and members of the committee, I am very 
pleased to appear here today to present the views of the 
Department of Justice in support of the new Extradition Treaty 
between the United States and the Republic of Korea. The 
Department of Justice participated in the negotiation of the 
treaty, works closely with Federal, State, and local 
prosecutors across the country in preparing extradition 
requests, and is happy to join with the Department of State in 
urging the committee to report favorably to the Senate and 
recommend advice and consent to this important agreement.
    This extradition treaty is relatively standard, as Ms. 
Borek indicated. In our statements we have described in more 
detail some of the standard features in extradition treaties 
that are also found in this agreement--things like dual 
criminality, coverage for conspiracy, which is an important 
tool for prosecutors in insuring that criminals are brought to 
justice, and coverage for charges that involve offenses 
committed outside of the United States' territory, 
extraterritorial offenses. Under some of our older treaties, 
there is difficulty in securing extradition for those crimes. 
This treaty has specific language that clarifies the ground 
rules for such extradition requests. Also, not least, there is 
provision for retroactive application of the treaty to crimes 
that were committed before the treaty was approved.
    We are especially pleased by the language in the treaty 
that makes it possible to secure the extradition of nationals 
of both countries.
    As you know, it is U.S. policy to avoid arbitrary 
restrictions on the extradition of nationals, and we place no 
small amount of importance on the Republic of Korea's 
assurances that the discretionary language on extradition of 
nationals does not reflect any intention to routinely deny 
extradition requests that involve Korean nationals.
    The only other point that I would like to stress, Mr. 
Chairman, is that, as has been indicated, this treaty is of 
particular interest to the Department of Justice because there 
are real cases out there of criminals who could be brought to 
justice if the treaty were in place. We see frequent inquiries 
from prosecutors across the country who are looking into cases 
involving fugitives that are in Korea.
    Some of these cases we believe can be queued up for prompt 
action as soon as this treaty enters into place. I have already 
asked my staff to begin reaching out to Federal, State, and 
local prosecutors so that other cases can be prepared for 
processing. In other words, this treaty presents an opportunity 
for the United States to advance its law enforcement interests 
at the same time we strengthen an important relationship with 
an important ally.
    The last point that I think is worth keeping in mind, as 
has been indicated, is that this is the first bilateral 
extradition treaty between the United States and Korea, but it 
is by no means the beginning of our bilateral law enforcement 
relationship. The Mutual Legal Assistance Treaty, to which the 
Senate gave its approval in August 1996 and which entered into 
force in May 1997, has worked well. It has provided an 
opportunity for us to get a sense of the value of our improved 
and strengthened law enforcement relationship in this important 
area of the world.
    The Mutual Legal Assistance Treaty makes it easier to 
obtain evidence that is necessary to bring charges against 
criminals. The next logical step in the process is the putting 
into place of an effective, modern extradition treaty.
    We compliment the committee for moving the treaty to 
consideration and bringing attention to it. We look forward to 
prompt and, we hope favorable action on it.
    Thank you.
    [The prepared statement of Mr. Harris follows:]

                  Prepared Statement of John E. Harris

    Mr. Chairman and members of the Committee, I am pleased to appear 
before you today to present the views of the Department of Justice in 
support of a new extradition treaty between the United States and the 
Republic of Korea. The Department of Justice participated in the 
negotiation of this treaty, and today joins the Department of State in 
urging the Committee to report favorably to the Senate and recommend 
its advice and consent to ratification.
    Upon ratification, this will be the first extradition treaty to 
enter into force between the United States and this important ally in 
Asia. The treaty will improve upon the network of modern extradition 
treaties the United States has in force with others in the region, 
including Japan, Thailand, the Philippines, and the Hong Kong Special 
Administrative Region. It represents a major step forward in the United 
States' efforts to strengthen cooperation with countries of the Pacific 
Rim in combating organized crime, transnational terrorism, 
international drug trafficking, and other offenses. In addition, the 
extradition treaty will join the Mutual Legal Assistance Treaty (MLAT) 
between the United States and the Republic of Korea, which entered into 
force in 1997, to form an important set of tools for prosecutors and 
law enforcement authorities to use to obtain the return of 
international fugitives and the evidence necessary to convict them at 
trial.
    Inasmuch as the Departments of Justice and State have prepared a 
detailed technical analysis of the treaty, I would like to speak today 
in more general terms about why we view this treaty as an important 
mechanism in investigating and prosecuting serious offenses.
    The extradition treaty between the United States and the Republic 
of Korea represents a continuing effort by the Department of Justice 
and the Department of State to modernize our international extradition 
relations and deny ``safe haven'' to criminals wherever in the world 
they may seek refuge. The treaty further reflects our effort to 
conclude agreements that incorporate the most modern and efficient 
approaches to international extradition, like those contained in the 
treaties presented to the Committee last year. A brief review of some 
of the salient features follows.
    First, this treaty, like most recent United States extradition 
treaties, is not limited by a list of offenses for which extradition 
may be granted. Instead, it permits extradition for any offense that is 
punishable in both countries by more than one year's imprisonment, or 
by a more severe penalty. This modern ``dual criminality'' approach 
makes it unnecessary to renegotiate the treaty or supplement it when 
laws relating to new crimes are enacted. During the negotiations, the 
United States delegation received assurances from their Korean 
counterparts that extradition would be possible for such offenses as 
drug trafficking, including operating a continuing criminal enterprise; 
racketeering; drug money laundering; terrorism; tax offenses; crimes 
against environmental protection laws; and antitrust violations. The 
Korean delegation also indicated that non-drug money laundering, 
although not currently a crime in Korea, might be extraditable if the 
offender were viewed as having ``participated'' in the underlying 
crime. The Korean Ministry of Justice is exploring the drafting of 
comprehensive non-drug money laundering legislation.
    Second, this treaty provides that extradition should be granted for 
attempting or conspiring to commit, or otherwise participating in, an 
extraditable offense. This ensures that extradition is possible for 
certain drug-related offenses and crimes under our Continuing Criminal 
Enterprise (CCE) and Racketeer Influenced and Corrupt Organizations 
(RICO) statutes. The treaty also permits extradition for any offense 
specified in a request, even if it is punishable by less than one 
year's imprisonment, when extradition has been granted for an 
extraditable offense.
    The Republic of Korea's ability to prosecute extraterritorial 
offenses is more limited than that of the United States. Our 
jurisprudence recognizes jurisdiction in U.S. courts to prosecute 
offenses committed outside of the United States if the crime was 
intended to have effects in this country, or did have such effects, or 
if there was clear Congressional intent to assert such jurisdiction. In 
the treaty, the United States' more expansive approach is accommodated 
by the Koreans' agreement to recognize United States jurisdiction to 
prosecute offenses committed outside its territory if Korean law would 
permit it to prosecute offenses committed outside the Republic of Korea 
in similar circumstances or if the offense has been committed by a 
national of the Requesting State. If the laws in the Requested State do 
not so provide, the executive authority of the Requested State has the 
discretion to grant extradition, provided that the requirements of the 
treaty are met.
    Third, the treaty permits the extradition of nationals on a 
discretionary basis. The U.S. Government extradites United States 
nationals, and places a high priority on securing the mandatory 
extradition of nationals in its modern extradition treaty negotiations, 
as it did during the talks with Korea. This treaty contains a 
discretionary formulation at the insistence of the Korean delegation, 
in order to make the treaty provision consistent with Korean law. The 
Korean delegation assured the United States delegation that they did 
not foresee the frequent use of this discretion when determining 
whether to extradite Korean nationals to the United States. This treaty 
provision also requires that if extradition is refused solely on the 
basis of the nationality of the person sought, the Requested State, 
when asked by the Requesting State, shall submit the case to its 
authorities for prosecution.
    The new extradition treaty also incorporates a variety of 
procedural improvements over the practice in some of our older 
treaties. For example, it clarifies the procedure for ``provisional 
arrest,'' the process by which a fleeing fugitive can be arrested upon 
request, pending the preparation of documents in support of 
extradition. Further, the treaty allows each State to temporarily 
transfer for trial a person who is already serving a sentence in one 
State. Once the trial is completed, the person will be returned to 
finish the original sentence and then will finally be surrendered if he 
or she is convicted and sentenced to a period of incarceration with 
respect to the offense for which temporary surrender was granted. In 
appropriate cases, the ability to surrender fugitives temporarily will 
serve the interests ofjustice by avoiding prolonged delays prior to 
surrender, by which time the evidence in the other country may no 
longer be compelling or even available. Procedural improvements of this 
kind allow the legal framework for extradition to operate more 
efficiently.
    It is important to note that this treaty will apply to offenses 
committed both before and after the date it enters into force. In 
establishing a first-time extradition relationship with the Republic of 
Korea, it will significantly enhance our ability to combat 
transnational crime in the region, both in terms of current and 
emerging challenges to law enforcement. For these reasons, I request 
that you approve the treaty promptly.
    I will be happy to answer any questions the Committee may have.

    Senator Grams. Thank you very much, Mr. Harris.
    I have just a quick couple of questions.
    The proposed treaty with South Korea represents a new 
bilateral extradition treaty relationship with that country. 
Ms. Borek, what specific events led to the negotiations of this 
treaty?
    Ms. Borek. Thank you, Mr. Chairman. Mr. Harris may want to 
add to this.
    I think we have been interested in an extradition treaty 
relationship with Korea for some time because this is an area 
in which we do not want to have a safe haven possibility. I 
think, as Senator Biden mentioned, there were some prior 
concerns about the legal system which posed an impediment to 
perhaps putting it on a priority list for moving forward.
    I think the democratic reforms and the tremendous progress 
that has been made in the Republic of Korea in recent years 
have really answered these concerns and questions and, 
therefore, we are comfortable now and quite happy to move 
forward with a treaty that, certainly from a law enforcement 
point of view, will be very important to us.
    Senator Grams. Mr. Harris, did you have anything to add to 
that?
    Mr. Harris. I don't think I really have anything to add.
    One thing the Justice Department takes into account when we 
work with the State Department in selecting priorities for 
negotiation is the number of fugitives that would be 
apprehended under the treaty. With the increase in Korean 
immigration to the United States, increased business and 
commercial ties, and a general close relationship between the 
two countries, we did reach a point where it was clear that 
Korea was one of the countries where both governments would 
benefit from an improved ability to secure the extradition of 
fugitives. That, coupled with the democratic reforms, made this 
a logical step in the expansion of U.S. relations.
    Senator Grams. Ms. Borek, I understand that in some 
instances the treaty deviates from the model. The proposed 
treaty follows the U.S.-Japan Extradition Treaty. Is the U.S.-
Japan treaty in effect the model for all extradition treaties 
in Asia?
    Ms. Borek. With your permission, I might defer that 
question to Mr. Harris, who was actually personally involved in 
this negotiation.
    Mr. Harris. Thank you.
    I think the answer is no, the U.S.-Japan Treaty is not the 
model for our extradition negotiations in Asia. But it is a 
good treaty. It has proven to be a workable relationship and, 
given the similarity in some aspects of Korean and Japanese 
law, it made sense that it was consulted in determining what 
the proper language should be in the treaty with Korea.
    But I think it is fair to say that both governments during 
the negotiations did approach this with an effort to craft the 
best agreement for the U.S. and Korea with the Japanese treaty 
merely one of several points of reference, one with which I 
think it is fair to say the Korean Government is especially 
comfortable. This is not, by any means, the only reference 
point.
    Senator Grams. Senator Biden mentioned and so did I in our 
opening statements that consideration of this treaty has been 
expedited in order to facilitate the return of an individual 
that is charged with murder in Philadelphia. What assurances do 
you have that the South Koreans will, in fact, extradite this 
individual, given that there is discretion to deny extradition 
since he is a national of the Republic of Korea?
    Mr. Harris.
    Mr. Harris. That is a good question. Of course, we are not 
able to predict with absolute certainty the outcome of a 
judicial or executive request in a country before the treaty is 
in place. But we have worked closely with the prosecutors in 
Philadelphia. We have talked with the appropriate authorities 
in the Republic of Korea. Assuming that the Commonwealth of 
Pennsylvania, working with the Department of Justice, submits 
the documents in support of a request for this individual's 
extradition, consistent with the terms of the treaty, we have 
been assured that the request will be positively considered by 
the Republic of Korea.
    They further stated that, at this time, they see no 
impediments or problems with prospective extradition.
    Senator Grams. Ms. Borek, did you want to comment?
    Ms. Borek. I might just add that we have already had, I 
think, a very positive, cooperative relationship with the 
Government of the Republic of Korea on this case. There is an 
official ban on the exit of the individual from the country so 
as to minimize the flight risk. At one point they did offer 
even to prosecute him themselves.
    So, as Mr. Harris says, I think we have established a 
cooperative relationship and we do understand that they will 
look at this in a very positive light.
    Of course, even in our case we would not say what U.S. 
courts would do. But we are not aware of any reason why there 
should be a problem. Certainly nationality is not such a 
reason.
    Senator Grams. Thank you.
    Senator Biden.
    Senator Biden. I only have a couple of questions.
    Mr. Harris, it is good to see you again. I am used to 
seeing you in the Judiciary Committee in the past.
    This question is for either or both of you if you wish to 
comment. It concerns dual criminality. This has been one of the 
staples in our extradition treaties.
    There are provisions in South Korean that do not comport 
with ours, provisions in South Korean law that do not comport 
with what we consider constitutionally permissible conduct. 
Their National Security Law limits, broadly I might add, 
political speech of a certain category, that is, speech which 
might be construed as supportive of North Korea.
    Am I right in understanding that most cases brought under 
the National Security Law would not be extraditable?
    Ms. Borek. Yes, Senator. This certainly was a focus of 
attention during the negotiation because we were concerned 
specifically about that law. We definitely concluded that the 
dual criminality requirement would be a bar to the kinds of 
cases that we were worried about, which involved what we would 
consider to be undue infringement on freedom of speech and 
political association.
    There is also, of course, the political offense exception 
which could come into play in a particular case.
    Senator Biden. Give me an example of how that would come 
into play.
    Ms. Borek. Well, to the extent that there is a particular 
offense involved in what would be considered political 
activity, you could invoke the political offense exception 
directly. But that is really a more specialized exception, and 
the dual criminality requirement I think would take care of it 
before you even got to that particular political offense 
exception.
    Senator Biden. Yesterday, I met with the South Korean 
ambassador--an impressive fellow, by the way. I was very 
impressed with not only how articulate he was but his sense of 
circumstance in South Korea as well as in the region. But that 
is just an aside.
    He indicated that South Korea and the South Korean people 
are very interested in this treaty. I am sure no one in America 
has any idea about this treaty. Notwithstanding your 
significant positions, this is not going to make the press. 
This is not going to be something people are going to talk 
about.
    But as he says, in South Korea the Korean Government has a 
very high level of interest in this treaty as well as, 
apparently, there is an interest that goes beyond just 
government circles.
    Do you have a sense, Ms. Borek, about this. First, is that 
true, if you know? I do not expect you necessarily to know 
this, but I would be curious if you do know. Is it true and, 
second, why so?
    Ms. Borek. Well, I would have to say, and I am speculating 
here, that I think it may be because of the factors that you 
mentioned in your initial statement and that I mentioned in 
response to the question. There has been a hesitation about 
having an extradition treaty with the Republic of Korea in the 
past due to some aspects of concerns we had about the judicial 
system and what might happen in terms of rights of individuals. 
To say now that we really don't have these concerns is an 
endorsement, in a sense, of the judicial system. It is 
something to which we pay attention, always, in any case, with 
an extradition treaty. So it could be that, from this point of 
view, this is a sign of progress that has been made.
    Also, just from a practical point of view, I think they do 
want to make some extradition requests. So I think there is 
also a law enforcement interest on the part of the Korean 
Government as well.
    Senator Biden. To get back to the extradition request, 
let's assume there is someone who is a Korean national who 
violated, without any question, their National Security Law by 
praising the North or calling for a unified country under the 
North, or whatever, who fled to the United States. Is that the 
kind of crime for which we would extradite?
    Ms. Borek. No, sir. That would not meet the dual 
criminality criterion.
    I might say that we have not had problems with this kind of 
case in our extradition relationship, and I certainly would not 
expect it in this case. I think the Government of Korea 
perfectly well understands what the issues are in this area and 
they were discussed. I don't expect that there would even be a 
problem.
    Senator Biden. I don't have any doubt about it, either. 
But, quite frankly, I think that is the one thing that would be 
raised in opposition to this treaty by some, unless we 
affirmatively outline at the front end that that is not a crime 
for which the United States would believe the person is 
extraditable under this treaty. If we do not say it, I am sure 
there will be some talk show host somewhere who will suggest 
that that is what we are doing. This is why I wanted it on the 
record.
    Maybe it is unfair to say ``talk show host.'' I have a 
friend who says that ``assumption is the mother of all screw-
ups.'' I think for us to assume that people would know that we 
would not do that and that the treaty would not compel us to do 
that would be a mistake. That is why I bothered to ask the 
question. I realize you knew that I knew the answer. I could 
tell by looking at your face which suggested you thought ``why 
is he asking me that question?'' That is the reason I asked the 
question.
    The last point I will make is this. It is not a question. I 
think, just to give you one person's opinion, first of all, I 
think you did a good job in negotiating this treaty. I think it 
is a very positive step. I think the more we establish the 
notion of the rule of law binding nations that have economic, 
as well as political relationships, that nations are ultimately 
bound and tied by the rule of law, this, ultimately, is the 
security that the relationship will be, will stay firm.
    I would just note parenthetically one Senator's view. I 
think that Korea's attention to our willingness to sign an 
extradition treaty with them, which is at least a maturation of 
our position from the past, is evidence of the fact that moral 
suasion makes a difference; that those who suggest that 
treaties we sign with other nations--and here everyone in the 
press is now going to think I am talking about the conference 
on the Test Ban Treaty, because I am so preoccupied with that. 
But I am not merely talking about that. I am talking about the 
role of moral suasion in international relations. I think that 
countries who wish to become part of the international 
community in a way that is accepted across the board 
increasingly understand that the rule of law, commitment to 
treaties, court systems that function, and judicial systems 
that are fair, that these ultimately are a sine qua non for any 
further legitimization.
    I think that is the reason why it is important in my view--
this is just me--why I think it is so important for the Korean 
Government. But I also think it is evidence of the fact that we 
should not refrain, as a Nation, from making clear what our 
minimum standards are, no matter what the economic, political, 
or security benefits there are in dealing with a nation. 
Ultimately, to become a full fledged partner with the United 
States of America, you must accede to the basic rule of law and 
have court systems that function.
    I think Korea has done that, as I said at the outset. This 
is pure dicta on my part, but I think that is the reason why 
the Korean Government understands that this is an important 
deal in terms of our recognition of their, the legitimacy of 
their judicial system.
    So I do not think we should underestimate the impact that 
we have when we abide by and insist others abide by the rule of 
law.
    At any rate, I don't have any further questions. But I 
thank you both for the professional way in which you went about 
negotiating this treaty and the way in which you have presented 
the case.
    I have no further questions, Mr. Chairman.
    Senator Grams. Thank you, Senator Biden.
    I have just a few followup questions, especially on the 
extradition of nationals. In the proposed treaty, extradition 
of nationals is discretionary rather than mandatory.
    Ms. Borek, did you discuss with the Korean delegation the 
types of instances in which they would not foresee extraditing 
their nationals?
    Ms. Borek. I know the general issue was discussed. I 
believe, and Mr. Harris can correct me, that they did not have 
in mind a particular kind of case in which they would not 
extradite nationals. It was more a question that under their 
law the Minister of Justice had certain discretion and they 
could not override that legal discretion by having an absolute 
provision in the treaty.
    So it was a hypothetical need to preserve a theoretical 
prerogative, rather than a particular kind of case where they 
saw a problem.
    Senator Grams. Who will decide that discretion?
    Ms. Borek. Well, it will certainly be up to the Government 
of Korea in a given case if we are requesting someone from 
them. But under their law, it is the Minister of Justice who 
would have the discretion, ultimately.
    Senator Grams. Mr. Harris, will this treaty have any effect 
on the large U.S. armed forces presence in South Korea or in 
the surrounding region?
    Mr. Harris. That was one of the issues discussed during the 
negotiations, and our conclusion was that it would not.
    Senator Grams. It would not?
    Mr. Harris. It would not.
    There is, of course, a Status of Forces Agreement that 
governs the extent to which criminal jurisdiction is available 
in those cases. This treaty does not interfere with or obstruct 
the operation of that.
    Senator Grams. In another area, in the past, the Justice 
Department witnesses have referred to the United States as 
being on, and I quote, ``the cutting edge of criminalizing 
newly emerging criminal activities, such as money laundering, 
computer related abuses, and environmental crimes.''
    Does the proposed treaty adequately allow the United States 
to reach individuals who commit these types of crimes that 
maybe some other countries do not recognize?
    Mr. Harris. It does, Senator. I am happy to report that 
during the negotiations, we carefully went through with the 
Republic of Korea the high priority offenses that the Justice 
Department is interested in making sure are covered by modern 
extradition treaties. We were persuaded that, for the 
overwhelming majority of them, there is dual criminality and 
there is, indeed, the wherewithal for effective extradition 
arrangements.
    Senator Grams. Ms. Borek, during consideration of a number 
of extradition treaties last year, the Senate added an 
understanding regarding the ``rule of speciality'' that is 
contained in all treaties, which insures that no persons are 
tried for crimes for which they are not extradited. The 
prohibition extends to the transfer of an individual without 
the consent of the original requested State.
    Does the State Department continue to support the inclusion 
of an understanding that no U.S. citizen extradited under the 
treaty may be transferred to the International Criminal Court 
if that court is established without the United States 
ratification of the treaty creating the court?
    Ms. Borek. Yes, Senator.
    Senator Grams. It does cover that?
    Ms. Borek. Yes.
    Senator Grams. And what does the Justice Department say, 
Mr. Harris?
    Mr. Harris. Yes, Senator.
    Senator Grams. Great. I wanted to make sure we had that on 
record.
    I just wanted to ask one final question dealing with the 
statute of limitations.
    Article 6 of the proposed treaty bars extradition in cases 
where the law of the requested State would have barred the 
crime due to a statute of limitations having run out.
    Now South Korea, unlike other treaty partners with similar 
commitments, also allows the time to continue running on the 
time limitation, even when charges are filed. Actions that 
would toll the statute of limitations, therefore, will apply 
under this treaty.
    So the question is are you confident that this article of 
the treaty adequately insures that fugitives cannot simply run 
out the clock by fleeing to Korea?
    Mr. Harris. Senator, this article of the treaty was the 
subject of considerable negotiation. As you may recall, of the 
treaties that were before the Senate last fall, most of them 
had slightly different language. Many of our most modern 
extradition treaties flatly state that the statute of 
limitations of the requesting State will apply.
    We have a few in which it was not possible to reach that 
resolution. In this case, because of the specific provisions of 
Korean law, we did agree that the statute of limitations of the 
requested State would apply. But, as you have indicated, the 
specific language in the article is crafted so that those 
factors which toll the statute of limitations under the law of 
the requesting State would be given weight.
    So when the United States is making a request to Korea, 
there should be the ability to prevent a miscarriage of justice 
by the statute of limitations of Korea having expired before 
extradition can be accomplished.
    Senator Grams. Is there anything either of you would like 
to add?
    Ms. Borek.
    Of course, that is usually what gets you into trouble, that 
last added statement.
    Ms. Borek. No, thank you, sir. I was just going to say 
thank you for holding this hearing today.
    Senator Grams. I remember that, having been a reporter, 
that was always the last question--is there anything you would 
like to add?
    Mr. Harris. I would like to thank you, Mr. Chairman, and 
the committee for holding this hearing and allowing this to go 
forward.
    Senator Grams. Thank you. I appreciate both of you being 
here for your statements and also for your answers.
    Just one final note. We will leave the record open for 
three business days and other members of the committee might 
have questions that they would like to enter in writing. We 
would ask for a prompt response if you do receive those. We 
appreciate that.
    Thank you very much for being here today.
    The hearing is concluded.
    [Whereupon, at 2:48 p.m., the hearing was concluded.]

                                  
