[Senate Executive Report 106-24]
[From the U.S. Government Publishing Office]



106th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      106-24

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



 
MUTUAL LEGAL ASSISTANCE TREATIES WITH CYPRUS, EGYPT, FRANCE, GREECE, 
  NIGERIA, ROMANIA, SOUTH AFRICA, UKRAINE AND THE INTER-AMERICAN 
  CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS WITH RELATED 
  PROTOCOL

                                _______
                                

October 4 (legislative day, September 22), 2000.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

[To accompany Treaty Docs. 106-35; 106-19; 106-17; 106-18; 102-26; 106-
                    20; 106-36; 106-16; and 105-25]

    The Committee on Foreign Relations, to which were referred 
the Treaty Between the Government of the United States of 
America and the Government of the Republic of Cyprus on Mutual 
Legal Assistance in Criminal Matters, signed at Nicosia on 
December 20, 1999 (Treaty Doc. 106-35); the Treaty Between the 
Government of the United States of America and the Government 
of the Arab Republic of Egypt on Mutual Legal Assistance in 
Criminal Matters, signed at Cairo on May 3, 1998, and a related 
Exchange of Diplomatic Notes (Treaty Doc. 106-19); the Treaty 
Between the Government of the United States of America and the 
Government of France on Mutual Legal Assistance in Criminal 
Matters, signed at Paris on December 10, 1998 (Treaty Doc. 106-
17); the Treaty Between the Government of the United States of 
America and the Government of the Hellenic Republic on Mutual 
Legal Assistance in Criminal Matters, signed at Washington on 
May 25, 1999 (Treaty Doc. 106-18); the Treaty Between the 
Government of the United States of America and the Federal 
Republic of Nigeria on Mutual Legal Assistance in Criminal 
Matters, signed at Washington on September 13, 1989 (Treaty 
Doc. 102-26); the Treaty Between the Government of the United 
States of America and the Government of Romania on Mutual Legal 
Assistance in Criminal Matters, signed at Washington on May 26, 
1999 (Treaty Doc. 106-20); the Treaty Between the Government of 
the United States of America and the Government of the Republic 
of South Africa on Mutual Legal Assistance in Criminal Matters, 
signed at Washington on September 16, 1999 (Treaty Doc. 106-
36); the Treaty Between the Government of the United States of 
America and Ukraine on Mutual Legal Assistance in Criminal 
Matters, signed at Kiev on July 22, 1998, and with an Exchange 
of Notes signed on September 30, 1999, which provides for its 
provisional application (Treaty Doc. 106-16); and the Inter-
American Convention on Mutual Assistance in Criminal Matters, 
adopted at the Twenty-Second Regular Session of the 
Organization of American States (``OAS'') General Assembly 
meeting in Nassau, The Bahamas, on May 23, 1992, and the 
Optional Protocol Related to the Inter-American Convention on 
Mutual Assistance in Criminal Matters, adopted at the Twenty-
Third Regular Session of the OAS General Assembly meeting in 
Managua, Nicaragua, on June 11, 1993, both instruments signed 
on behalf of the United States at OAS Headquarters in 
Washington on January 10, 1995 (Treaty Doc. 105-25), having 
considered the same, reports favorably thereon, each with the 
understandings, declarations and provisos indicated in the 
corresponding resolutions of ratification, infra, and 
recommends that the Senate give its advice and consent to the 
ratification thereof as set forth in this report and said 
resolutions of ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................2
 II. Background.......................................................2
III. Summary..........................................................2
 IV. Entry Into Force and Termination.................................9
  V. Committee Action................................................10
 VI. Committee Recommendation and Comments...........................10
VII. Explanation of Proposed Treaties................................12
VIII.Text of the Resolutions of Ratification........................181


                               I. Purpose

    Bilateral and multilateral mutual legal assistance treaties 
are intended to establish a formal basis for cooperative law 
enforcement efforts.

                             II. Background

    Eight mutual legal assistance treaties (``MLATs'') were 
submitted to the Senate during the 106th Congress. They include 
agreements with Cyprus, Egypt, France, Greece, Romania, South 
Africa, and Ukraine. The Inter-American Convention on Mutual 
Assistance in Criminal Matters and its Optional Protocol were 
submitted to the Senate during the 105th Congress. The MLAT 
with Nigeria was submitted to the Senate during the 102d 
Congress. If the agreements described in this report enter into 
force, they will join thirty-six existing MLATs already in 
force for the United States.

                              III. Summary


                               A. GENERAL

    Each of the treaties discussed in this report has 
distinctive features. All of them, however, including the 
multilateral Inter-American Convention (``OAS MLAT''), follow a 
common format and as a group exhibit more similarities than 
differences. In general, they consist of twenty articles, more 
or less. They cover essentially the same matter, in the same 
general order, often with only minor variations of style and 
language. Typically their texts are arranged as follows:

   the scope of assistance of the Treaty, in the form 
        of a general statement of purpose and a general 
        inventory of the kinds of assistance available;

   identification of the Central Authorities 
        responsible for administration of the Treaty;

   the limitations on assistance available at the 
        discretion of the Central Authority in particular types 
        of cases;

   the form and contents required of any petition for 
        help under the Treaty;

   the general responsibilities and prerogatives of 
        those called upon to execute requests under the Treaty;

   how the costs associated with a particular request 
        are to be allocated;

   the limitations of use or disclosure of any evidence 
        or information secured pursuant to a Treaty request;

   the procedure for hearings conducted at the behest 
        of a foreign country to take testimony or evidence in 
        the Requested State;

   the circumstances under which the Parties are to 
        have access to information found in the records of 
        government agencies of other countries;

   the procedure for inviting witnesses to travel 
        abroad and give testimony in the Requesting State;

   the provisions for the transfer of persons in 
        custody (prisoners) from one country to the other to 
        permit them to participate in foreign proceedings;

   the pledge of each Party to devote their best 
        efforts in response to a request for the location or 
        identification of a particular person or item;

   the commitment of each Party for the service of 
        documents related to a Treaty request;

   the agreement to execute a search and seizure upon 
        request of a Treaty partner;

   provisions for the return of property transferred to 
        another country pursuant to a Treaty request;

   bilateral assistance in forfeiture proceedings and 
        in proceedings concerning restitution and criminal 
        fines;

   compatibility with other arrangements, that is, the 
        fact that the Treaty is not intended to preempt other 
        legal grounds for cooperative law enforcement efforts;

   consultation among the agencies responsible for 
        implementation of the Treaty; and

   the particulars of ratification, termination and 
        effective dates.

    Parties to the Optional Protocol to the OAS MLAT would 
agree not to reject certain requests for assistance relating to 
tax crimes. The Optional Protocol was negotiated at the request 
of the United States out of concern that the OAS MLAT itself 
allowed assistance to be denied in certain cases in which the 
underlying offense was considered a ``fiscal'' offense. The 
Executive Branch also desires ratification of the Optional 
Protocol to improve cooperation in a wide range of tax 
offenses.

                           B. KEY PROVISIONS

1. Scope of Assistance

    In general, the MLATs begin with an article that addresses 
the scope of the assistance available under the Treaty. The 
article usually consists of four components: a statement of 
purpose, an inventory of some of the types of assistance 
available under the agreement, a statement on dual criminality 
and a disclaimer of any intent to give defendants additional 
rights.

2. Central Authorities

    The Treaties all require the designation of a Central 
Authority that is vested with exclusive authority to send and 
receive treaty requests, and that often has broad 
administrative authority to make the treaties work. In most 
cases, the Central Authority is the country's attorney general. 
For the United States, actual treaty administration is 
delegated to the Department of Justice's Office of 
International Affairs which provides sufficiency review and 
traffic control over requests under the treaty. Central 
Authorities enjoy considerable authority and flexibility over 
dispatch and receipt of Treaty requests in order to ensure 
efficient implementation of the treaty.
    The MLAT with Egypt is typical and permits the Central 
Authorities to set or agree to any conditions necessary for 
approval of requests that might otherwise be denied; to waive 
the requirement, in emergency situations, that requests be 
submitted in writing; to postpone or condition execution of a 
request for assistance that might interfere with a criminal 
investigation, prosecution or proceeding of its own; and to 
determine whether requests should be kept confidential and 
whether the information secured may be used for other purposes.

3. Limitations on Assistance

    All of the Treaties have an article that describes the 
circumstances under which assistance may or must be refused. 
They help define the MLATs' outer limits, but seldom surface in 
practice. The four most recurrent limitations permit the 
parties to decline a request for assistance (1) which involves 
a purely military offense not ordinarily treated as a criminal 
offense, (2) which is related to a political offense, (3) whose 
execution would prejudice a national security or similar 
essential interest, or (4) which does not comply with the 
MLATs' procedural prerequisites.
    The provision on purely military offenses and political 
offenses is drawn from extradition practice. The purely 
military offense exception covers things like mutiny and 
desertion, is fairly self-evident, and rarely claimed. In an 
extradition context, the political offense exception, on the 
other hand, is neither so evident nor so rare. It clearly 
includes purely political crimes like treason, espionage, and 
sedition. Under U.S. law it also extends to crimes that are 
relatively political, that is, offenses ``committed in the 
course of and incidental to a violent political disturbance 
such as a war, revolution or rebellion.'' Under the laws of 
various other nations it has sometimes been thought to 
encompasses either politically motivated offenses or offenses 
whose prosecution is politically motivated or both.
    Although the essential interests clause is almost always 
couched with national security, it is generally understood to 
be more inclusive than the language alone might suggest. The 
most commonly cited examples are (1) requests ``involving 
prosecution by the Requesting State of conduct that occurred in 
the Requested State that is constitutionally protected in the 
Requested State'' and (2) requests for sensitive law 
enforcement information where the ``senior foreign government 
official who likely will have access to the information is 
engaged in or facilitates the production or distribution of 
illegal drugs, and is using the request to the prejudice of a 
United States investigation or prosecution.''
    MLATs not infrequently join other restriction clauses with 
one or more of the usual four limitation clauses. Requests 
involving a prosecution based on race, religion, nationality, 
or political opinion may be singled out for possible rejection. 
Search and seizure and forfeiture assistance may be limited if 
dual criminality requirements are not met. Double jeopardy or 
the prospect of a constitutional violation may also be 
explicitly mentioned as a ground for denying a MLAT request.
    Among the pacts under consideration, the denial clause of 
the French MLAT is the most abbreviated, and the denial clause 
of the OAS MLAT is the most expansive. The Optional Protocol to 
the OAS MLAT was negotiated at the request of the United States 
out of concern that the OAS MLAT itself allowed assistance to 
be denied in certain cases in which the underlying offense was 
considered a ``fiscal'' offense. The Executive Branch believes 
ratification of the Optional Protocol will improve cooperation 
with OAS MLAT parties over a wide range of tax offenses.

4. Form and Content of Requests

    The form and content demands of most MLATs have been 
formulated to streamline the request process, to prevent 
denials based on misunderstandings, and to keep requests within 
the confines of the Treaty. Under normal circumstances, 
requests must be written in the language of the requested 
country. Certain basic information must be provided for all 
requests and other information requirements are tailored to 
requests for particular kinds of assistance. Search and seizure 
requests, for instances, are expected to include a 
particularized description of the place to be searched and the 
items to be seized. The provision in the Treaty with Cyprus is 
representative in both type and content.

5. Execution of Requests

    Contemporary MLATs generally merge several provisions 
concerning treaty administration using similar if not identical 
language for matters such as:

   general obligations of the Central Authorities;

   representation of the foreign country placing the 
        request;

   the law governing the manner in which requests will 
        be answered;

   the obligation when a request relates to a matter 
        pending in both countries;

   confidentiality requirements;

   the rights of requesters to be informed of the 
        status of performance on their requests; and

   the rights of requesters to be informed of the 
        outcome of the execution of their requests.

6. Costs

    The Treaties handle associated costs primarily as incidents 
of domestic law enforcement responsibilities. The country 
providing assistance is expected to bear the expense. 
Requesting countries are responsible for the costs of 
translations, transcriptions, expert witness fees, and the 
expenses associated with the foreign travel of witnesses. The 
approach prevents countries from claiming reimbursement for 
excessive costs to discourage requests or to mask a refusal to 
provide assistance. In exceptional cases, however, the Parties 
may agree to share costs and to modify the assistance provided 
for fiscal reasons.

7. Limitations on Use

    Most MLATs allow the Central Authorities of the country 
providing evidence or information under the Treaty to prohibit 
its use in other investigations, prosecutions, or proceedings 
without their consent or until after it has been publicly 
disclosed as a consequence of the use for which it was 
intended. The provision is sometimes worded as a prohibition 
(``the Requesting State shall not * * *'') and sometimes as a 
prerogative (``the Requested State may require * * *''). In 
either case, it is designed to ensure that information will not 
be used for purposes for which it could not have been obtained 
directly under the MLAT. Consequently, its invocation can be 
anticipated, is apparently relatively uncommon, and can be 
tailored to minimal adverse effect. In this country, the 
limitation places the MLAT information and evidence initially 
beyond the reach of a Freedom of Information Act request.
    The same article normally includes confidentiality 
limitations in addition to use limitations. They permit 
responding countries to insist that the evidence or information 
they provide be kept confidential and to condition their 
responses accordingly. News of the results of a MLAT request 
may be just as damaging as word of the fact a request has been 
made. Premature disclosure could result in flight; destruction 
of evidence; concealment of assets; harm, intimidation, 
corruption, or obstruction of witnesses or officials; and 
embarrassment of the innocent. The cloak tends to be fairly 
tightly drawn.

8. Testimony and Evidence in the Requested State

    An original purpose of the MLAT program was to permit the 
United States to obtain evidence from foreign jurisdictions in 
a form admissible in American courts. That remains unchanged. 
There are alternative procedures for any type of assistance 
that a MLAT enables, but the Treaties make it possible to 
overcome real and practical problems.
    American courts usually have no authority to subpoena 
foreign nationals living abroad. Although Americans living 
overseas can be subpoenaed, to do so in many countries is 
considered both diplomatically and legally offensive. Even when 
foreign resistance can be overcome, U.S. law imposes formidable 
requirements that must be met before depositions can be taken 
overseas and the testimony subsequently introduced in criminal 
proceedings in this country.
    MLATs are crafted to overcome these obstacles, in addition 
to meeting the practical and diplomatic challenges of taking 
depositions in a foreign country. They obligate the parties to 
call witnesses, using compulsory process if necessary.

9. Records of Government Agencies

    The majority of MLATs divide governmental information 
available under their provisions into two categories, namely, 
publicly available information (which must be provided upon 
request) and information available to judicial and law 
enforcement personnel but not to the general public (which may 
be provided upon request). The Treaties contemplate access to 
material held by any of the three branches of government. The 
United States is unwilling to compromise drug trafficking 
intelligence produced and held by our various law enforcement 
agencies. Thus, as in some past MLATs, the Senate has insisted 
upon a resolution of ratification proviso instructing the 
Administration to deny any MLAT request that would give corrupt 
foreign officials information that might be used to frustrate 
our efforts to combat drug trafficking.
    The Technical Analyses accompanying in many of these 
Treaties have noted that the provision permits access by both 
the law enforcement and tax enforcement authorities of our MLAT 
Treaty partners to tax information held by the Internal Revenue 
Service to the same extent that access is available to federal 
officials.

10. Appearances Outside the Requested State

    Foreign witnesses can not be compelled to travel to the 
United States to testify nor can a witness in this country be 
compelled to travel overseas to testify, but as the Treaties 
observe they may be invited to do so. The invitations are 
extended by the nation in which the witness is found. The 
country seeking assistance must indicate the extent to which 
the witnesses' expenses will be paid. These elements are common 
to all of the Treaties. There is greater diversity over whether 
witnesses may request reimbursement in advance, whether 
witnesses may be invited to appear in third countries, and the 
extent to which safe conduct will be offered. The advance 
reimbursement stipulations, where they appear, are cast in 
discretionary terms and likely reflect general practice. 
Guarantees of safe conduct assure invited witnesses that, 
during their visit, the host country will not arrest, charge, 
or sue them for any past conduct.

11. Transfer of Persons in Custody

    The Treaties anticipate situations where prisoners are 
sought as participants in proceedings in another country. The 
Treaties overcome the dual problem that the country where the 
proceedings are to be conducted will frequently be unwilling to 
allow foreign officials to maintain custody of a prisoner 
within its territory but will lack the authority under its laws 
to accept custody on its own.
    With the consent of the prisoner and each of the States, 
the Treaties allow a transfer of custody to provide law 
enforcement assistance. The Treaties uniformly authorize the 
receiving State to accept custody, instruct the receiving State 
to return the prisoner without the necessity of extradition, 
and credit the prisoner with time spent in the receiving State.

12. Location and Identification of Persons or Items

    The MLAT parties generally pledge their best efforts to 
ascertain the location or identity of ``persons or items'' 
within their territory upon request. Effective use of a MLAT or 
an extradition treaty often begins by finding an overseas 
fugitive or locating and identifying a witness or a custodian 
of bank records or other physical evidence resident in another 
country.

13. Service of Documents

    In American criminal cases, service of documents consists 
most often of the service of subpoenas. Foreign nationals 
living abroad are ordinarily beyond the reach of American 
courts, but Congress has long authorized federal courts to 
subpoena Americans residing overseas. The existing statute, 28 
U.S.C. 1783, permits subpoenas ordering an American to return 
to this country to testify as well as subpoenas ordering an 
appearance in the country where the American witness resides. 
For purposes of American law, section 1783 requires no Treaty 
reenforcement to be effective. In some countries, however, its 
use may be offensive to notions of sovereignty and illegal in 
few instances. Letters rogatory may be an available 
alternative, but they come with their own shortcomings. Beyond 
a pledge of best efforts, the Treaties commit the Parties to 
provide advance notice in connection with any documents calling 
for an appearance abroad. They also demand that the country 
serving the documents provide evidence of service in the manner 
requested.

14. Search and Seizure

    The search and seizure articles in the Treaties are 
generally uniform. They require execution of any request 
accompanied by information sufficient to satisfy the legal 
requirements of the country in which execution is to occur. 
They generally feature an authentication procedure designed to 
satisfy American legal requirements for admissibility of 
evidence. Finally, each of the Treaties has a provision 
authorizing conditions for the protection of third party 
interests in the property. Although broadly cast as ``search 
and seizure'' provisions, the Treaty articles are rather 
clearly limited to searches and seizures of property; they 
neither authorize nor anticipate the search for nor the seizure 
of individuals.

15. Assistance in Forfeiture, Restitution and Fine Collection 
        Proceedings

    The forfeiture articles in most contemporary MLATs address 
forfeiture, restitution, and the collection of criminal fines. 
Forfeiture is the confiscation of the fruits and 
instrumentalities of criminal activity.
    In the United States, there are over one hundred federal 
forfeiture laws, but the most heavily used are those enacted to 
fight drug trafficking, money laundering and organized crime. 
The proceeds resulting from cooperative federal-state 
investigations are shared with participating state law 
enforcement agencies. Both the money laundering and drug 
forfeiture provisions make the same benefit available to 
foreign countries. The United States will enforce foreign 
forfeiture judgments and may confiscate any property located in 
the United States but derived from, or traceable to, a serious 
violation of a foreign controlled substances law.
    Forfeiture varies from one jurisdiction to another and as a 
consequence the impact of MLAT forfeiture provisions vary a 
great deal from one treaty to the next. Experience under the 
United Nations Convention Against Illicit Traffic in Narcotic 
Drugs and Psychotropic Substances has made forfeiture easier in 
drug-related cases. Article 5 of the Convention requires the 
parties: to adopt forfeiture laws with respect to proceeds 
generated by drug trafficking; to establish the procedures to 
identify, trace and freeze or seize proceeds, property, 
instrumentalities and other forfeitable items; to permit 
judicial access to bank, financial and other commercial 
records; and to establish confiscation procedures for property 
located within their territory but subject to confiscation as a 
consequence of drug trafficking elsewhere.
    MLAT forfeiture assistance articles are generally similar 
to the U.N. Convention. They encourage the parties to give aid 
where their laws permit, but they do not contemplate conforming 
amendments within the parties' domestic law.

16. Fine Collection and Restitution

    The Treaties in most instances include only passing 
references to fine collection and restitution: ``The 
Contracting Parties shall assist each other to the extent 
permitted by their respective laws in proceedings relating to 
the forfeiture of the proceeds and instrumentalities of 
offenses, restitution to the victims of crime, and the 
collection of fines imposed as sentences in criminal 
prosecutions.'' With exception of forfeiture judgments, courts 
in the United States will not ordinarily enforce foreign 
restitution orders or collect foreign criminal fines.

                  IV. Entry Into Force and Termination


                          A. ENTRY INTO FORCE

    The Treaties generally provide for the entry into force of 
the treaty either on the date of, or shortly after, the 
exchange of instruments of ratification.

                             B. TERMINATION

    The Treaties generally provide for the Parties to withdraw 
from the treaty by means of written notice to the other Party. 
Termination would take place six months to a year after the 
date of notification. Some of the treaties make clear that 
requests for assistance prior to notification of termination 
shall be honored.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
these treaties on September 12, 2000, (a transcript of the 
hearing and questions for the record can be found in Senate 
hearing 106-660 entitled, ``Consideration of Pending 
Treaties''). The Committee considered the treaties on September 
27, 2000, and ordered them favorably reported by voice vote, 
with the recommendation that the Senate give its advice and 
consent to the ratification of the proposed Treaties subject to 
the understandings, declarations and provisos indicated in 
section VIII, below.

               VI. Committee Recommendation and Comments

    The Committee recommends favorably the proposed treaties. 
On balance, the Committee believes that the proposed treaties 
are in the interest of the United States and urges the Senate 
to act promptly to give its advice and consent to ratification. 
The Committee believes that the following comments may be 
useful to the Senate in its consideration of the proposed 
treaties and to the Departments of State and Justice.

  A. RESTRICTION ON COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT

    As discussed in Exec. Rpt. 105-23, on July 17, 1998, a 
majority of nations at the United Nations Diplomatic Conference 
on the Establishment of an International Criminal Court (Rome, 
Italy) approved a treaty that would, upon entry into force, 
establish an International Criminal Court. The Court would be 
empowered to investigate and prosecute war crimes, crimes 
against humanity, genocide and aggression. The United States 
voted against this treaty.
    Because of the implications for Americans involved in 
formulation and execution of our foreign policy, several 
members of the Committee remain deeply concerned by the 
prospect of an International Criminal Court empowered to 
investigate the matters referred to above that is permanent, 
could become politicized, and over which there would be limited 
international political control. This concern is magnified by 
events since adoption of Exec. Rpt. 105-23, namely, 
International Criminal Tribunal for the Former Yugoslavia 
Prosecutor Carla del Ponte's claim of jurisdiction over United 
States and other NATO forces for their conduct during 1999 
Kosovo combat operations.
    In light of the Secretary of State's expressed desire that 
the United States become a ``good neighbor'' to the Court if it 
enters into being, and if certain safeguards designed to 
protect U.S. officials and soldiers from prosecution are 
approved, as well as other factors, several members of this 
Committee are concerned that United States bilateral MLATs 
could become conduits for transferring information or for 
assistance from the United States to the Court even though the 
United States voted against its establishment.
    Accordingly, the Committee has decided once again to insert 
a related understanding into each of the Resolutions of 
Ratification accompanying the MLATs discussed in this report. 
Specifically, this provision is designed to make clear that 
information shared with a party by the United States pursuant 
to the MLAT shall not be forwarded to the International 
Criminal Court. The Committee recognizes that the terms of the 
treaties will not give the United States, as the Requested 
State, total control over the Requesting State's use of 
assistance provided under the MLAT.
    For instance, under the article on use limitations, 
information provided under the MLAT that has become public in 
the Requesting State may be used for any purpose. The Committee 
does expect and intend, however, that the United States will 
exercise its rights under each MLAT to prevent any assistance 
or information provided by the United States from being 
transferred to the International Criminal Court.
    The Committee intends that this restriction is binding on 
the President, and would be removed only in the event that the 
United States ratifies the treaty establishing the Court 
pursuant to the procedures stated in Article II, section 2, of 
the United States Constitution.
    Lastly, Members of the Committee were troubled to learn at 
the September 12, 2000, hearing on the MLATs covered in this 
report that the Department of Justice does not at present 
routinely include in all MLAT transmittal letters language 
which forbids MLAT treaty partners from passing U.S.-provided 
information to the International Criminal Court. While the 
Committee recognizes that the Court does not yet exist, there 
is nonetheless significant concern that information which is 
made available today to treaty partners whose MLATs do not 
contain the Senate's use limitation restriction (e.g., Spain) 
may conclude that they are free, in the future, to share U.S.-
provided information with the International Criminal Court if 
it comes into existence. Consequently, the Committee strongly 
recommends--even if a given MLAT was ratified without the 
Senate understanding--that the Department of Justice routinely 
include an International Criminal Court use prohibition clause 
when it transmits information or provides assistance to any 
MLAT treaty partner.

  B. USE OF MLATS TO AGGRESSIVELY PURSUE INTERNATIONAL PARENTAL CHILD 
                               ABDUCTORS

    The Committee remains concerned about the serious problem 
of international parental child abduction. Notably, a September 
2000 General Accounting Office report (GAOP/GAO/NSIAD-00-226BR) 
reveals that an estimated 1,000 children are abducted by one of 
their parents from the United States annually. Between January 
1995 and May 15, 2000, ``left behind'' American parents 
initiated nearly 300 cases under the 1980 Hague Convention on 
the Civil Aspects of International Child Abduction involving 
just three countries: Germany, Sweden and Austria. Well over 
half of those cases are unresolved.
    The Committee reiterates its grave concern over this 
troubling issue. Under current practice, MLATs provide for 
cooperation between law enforcement officials. Although the 
Hague Treaty addresses civil aspects of this issue, the act of 
international parental abduction is a Federal crime. The 
Committee believes that care should be taken to ensure that 
MLATs will be useful tools for attaining information and other 
cooperation to assist in the return of abducted or wrongfully 
retained children. The Committee anticipates that the Executive 
Branch will consider terminating MLATs or taking other measures 
in the event that the Central Authority of a given party 
consistently fails to adequately provide assistance under the 
respective MLAT. The Committee is especially concerned that the 
proposed MLATs discussed in this report be monitored to ensure 
cooperation in the exchange of information related to 
international parental child abduction.
    The Departments of State and Justice testified on September 
12, 2000, that these treaties are essential to ensuring that 
criminals do not evade prosecution. This same principle should 
be true for the crime of parental child abduction in violation 
of the 1993 International Parental Kidnaping Act. The Committee 
expects, therefore, that officials of the Departments of State 
and Justice will seek law enforcement cooperation in all cases 
unless it will hinder U.S. law enforcement efforts. The 
Committee also expects these officials to raise this issue in 
the course of negotiation of all bilateral law enforcement 
treaties and in other bilateral diplomatic exchanges.

                          C. MLAT WITH NIGERIA

    The Executive Branch testified on September 12, 2000, 
before the Committee that the MLAT with Nigeria will be ``an 
effective tool in the investigation and prosecution of a wide 
variety of modern crimes of concern to the U.S. and Nigeria.'' 
The Committee notes that the MLAT with Nigeria was concluded in 
1989, and received in the Senate in 1992. The treaty has 
languished owing in part to United States concerns about the 
lack of a democratic government in Nigeria. The return of 
democratic government in Nigeria now makes it possible to 
proceed with consideration of this agreement. Sophisticated 
international criminality originating in Nigeria in narcotics 
trafficking, wire fraud and other areas are imperatives which 
also led the Committee to move forward with this MLAT.

                 VII. Explanation of Proposed Treaties

    The following are the article-by-article technical analyses 
provided by the Departments of State and Justice for each of 
the mutual legal assistance treaties covered by this Report.

 Technical Analysis of the Treaty Between The Government of the United 
   States of America And The Government of the Republic of Cyprus on 
              Mutual Legal Assistance in Criminal Matters

    On December 21, 1999, the United States signed a Treaty 
Between the Government of the United States of America and the 
Government of the Republic of Cyprus on Mutual Legal Assistance 
in Criminal Matters (``the Treaty''). In recent years, the 
United States has signed similar treaties with a number of 
countries as part of a highly successful effort to modernize 
the legal tools available to law enforcement authorities in 
need of foreign evidence for use in criminal cases.
    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, international drug trafficking and 
other offenses.
    It is anticipated that the Treaty will be implemented in 
the United States largely pursuant to the procedural framework 
provided by Title 28, United States Code, Section 1782. Cyprus 
currently does not have any specific law on mutual legal 
assistance, but it assured the United States that it will enact 
new legislation to implement the Treaty.
    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 
history. 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--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of offenses, and in proceedings relating to 
criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in Cyprus, and 
other legal measures taken prior to the filing of formal 
charges in either State.\1\ The term ``proceedings'' was 
intended to cover the full range of proceedings in a criminal 
case, including such matters as bail and sentencing 
hearings.\2\ It was also agreed that since the phrase 
``proceedings related to criminal matters'' is broader than the 
investigation, prosecution or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature,\3\ but such proceedings are covered by the 
Treaty.
---------------------------------------------------------------------------
    \1\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., as our investigators 
and prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist Cyprus under the 
Treaty in connection with investigations prior to charges being filed 
in Cyprus.
    \2\ One U.S. court has interpreted Title 28, United States Code, 
Section 1782, as permitting the execution of a request for assistance 
from a foreign country only if the evidence sought is for use in 
proceedings before an adjudicatory ``tribunal'' in the foreign country. 
In Re Letters Rogatory Issued by the Director of Inspection of the 
Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. Blumenthal, 
620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary obstacle to 
the execution of requests concerning matters which are at the 
investigatory stage, or which are customarily handled by administrative 
officials in the Requesting State. Since this paragraph of the Treaty 
specifically permits requests to be made in connection with matters not 
within the jurisdiction of an adjudicatory "tribunal" in the Requesting 
State, this paragraph accords the courts broader authority to execute 
requests than does Title 28, United States Code, Section 1782, as 
interpreted in the India and Fonseca cases.
    \3\ See, Title 21, United States Code, Section 881; Title 18, 
United States Code, Section 1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Paragraph 3 of this article makes it clear that there is no 
requirement of dual criminality under this Treaty for 
cooperation. Thus, assistance is to be provided even when the 
criminal matter under investigation in the Requesting State 
would not be a crime in the Requested State. Article 1(3) is 
important because United States and Cyprus criminal law differ 
significantly, and a general dual criminality rule would make 
assistance unavailable in many significant areas. During the 
negotiations, the Cyprus delegation gave assurances that 
assistance would be available under the Treaty to the United 
States in investigations of major crimes such as conspiracy; 
drug trafficking, including operating a continuing criminal 
enterprise (Title 21, United States Code, Section 848); 
offenses under the racketeering statutes (Title 18, United 
States Code, Section 1961-1968); money laundering; Export 
Control Act violations; criminal tax; securities fraud and 
insider trading, environmental protection, and antitrust 
offenses.
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \4\ which states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Cyprus by letters 
rogatory, an avenue of international assistance that the Treaty 
leaves undisturbed. Similarly, the paragraph provides that the 
Treaty is not intended to create any right in a private person 
to suppress or exclude evidence provided pursuant to the 
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
    \4\ See, United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party \5\ establish a 
``Central Authority'' to make and receive Treaty requests. The 
Central Authority of the United States would make all requests 
to Cyprus on behalf of federal agencies, state agencies, and 
local law enforcement authorities in the United States. The 
Central Authority of Cyprus would make all requests emanating 
from officials in Cyprus.
---------------------------------------------------------------------------
    \5\ The terms ``Party'' and ``State'' are used interchangeably in 
the Treaty and have the same meaning.
---------------------------------------------------------------------------
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the proper federal or state agency, 
court, or other authority for execution, and ensuring that a 
timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual legal assistance treaties to the 
Assistant Attorney General in charge of the Criminal 
Division.\6\ Article 2(2) of the Treaty also states that the 
Attorney General of Cyprus or a person designated by the 
Attorney General will serve as the Central Authority for 
Cyprus.
---------------------------------------------------------------------------
    \6\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or any other means, at the 
option of the Central Authorities themselves.
    Paragraph 4 states explicitly that in urgent cases the 
Central Authorities may transmit requests through the 
International Criminal Police Organisation (INTERPOL). Although 
no mutual legal assistance treaty now in force explicitly 
provides for requests to be made through INTERPOL, it is 
usually anticipated that the Central Authorities may select any 
means of communication that they find convenient, including 
INTERPOL. Many recent U.S. extradition treaties explicitly 
permit provisional arrest requests to be submitted through the 
INTERPOL channel,\7\ and the use by the Central Authorities of 
INTERPOL's communication facilities for urgent mutual 
assistance requests should prove equally valuable. The 
negotiators agreed that this paragraph does not authorize 
INTERPOL to participate substantively in its implementation.
---------------------------------------------------------------------------
    \7\ See, e.g., U.S.-Cyprus Extradition Treaty, signed at Washington 
June 17, 1996, entered into force September 14, 1999, art. 11(1).
---------------------------------------------------------------------------

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty. These 
restrictions are similar to those found in other mutual legal 
assistance treaties.
    Paragraph (1)(a) permits the denial of a request if it 
relates to a political offense or an offense under military law 
that would not be an offense under ordinary criminal law. It is 
anticipated that the Central Authorities will employ 
jurisprudence similar to that used in the extradition treaties 
for determining what is a ``political offense.''
    Paragraph (1)(b) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or similar essential interests of 
that State. All United States mutual legal assistance treaties 
contain provisions allowing the Requested State to decline to 
execute a request if execution would prejudice its essential 
interests.
    The delegations agreed that the word ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the United States Department of Justice, 
as Central Authority for the United States, would work closely 
with the Department of State and other government agencies to 
determine whether to execute a request that might fall in this 
category.
    The delegations also agreed that the phrase ``essential 
interests'' was intended to narrowly limit the class of cases 
in which assistance may be denied. It would not be enough that 
the Requesting State's case is one that would be inconsistent 
with public policy had it been brought in the Requested State. 
Rather, the Requested State must be convinced that execution of 
the request would seriously conflict with significant public 
policy. An example might be a request involving prosecution by 
the Requesting State of conduct which occurred in the Requested 
State and is constitutionally protected in that State.
    However, it was agreed that ``essential interests'' could 
be invoked if the execution of a request would violate 
essential interests related to the fundamental purposes of the 
Treaty. For example, one fundamental purpose of the Treaty is 
to enhance law enforcement cooperation, and attaining that 
purpose would be hampered if sensitive law enforcement 
information available under the Treaty were to fall into the 
wrong hands. Therefore, the U.S. Central Authority may invoke 
paragraph 1(b) to decline to provide information pursuant to a 
request under this Treaty if it determines, after appropriate 
consultation with law enforcement, intelligence, and foreign 
policy agencies, that a senior foreign government official who 
will have access to the information is engaged in a felony, 
including the facilitation of the production or distribution of 
illegal drugs.\8\
---------------------------------------------------------------------------
    \8\ This is consistent with the Senate resolution of advice and 
consent to ratification of other recent mutual legal assistance 
treaties with, e.g., Luxembourg, Hong Kong, Poland and Barbados. See, 
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual legal 
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark Mr. Richard, 
Deputy Assistant Attorney General, Criminal Division, United States 
Department of Justice).
---------------------------------------------------------------------------
    Paragraph (1)(c) permits the denial of a request if 
execution of the request would violate the Constitution of the 
Requested State or the obligations of the Requested State under 
any international multilateral treaty relating to human rights. 
The clause permitting denial if the request would violate the 
Constitution of the requested state is self-explanatory, and is 
similar to provisions that appear in several other treaties.\9\ 
The clause permitting denial if the request would violate a 
human rights convention was requested by Cyprus' delegation.
---------------------------------------------------------------------------
    \9\ U.S.-Jamaica Mutual Legal Assistance Treaty, signed at Kingston 
July 7, 1989, entered into force July 25, 1995, art. 2(1)(e).
---------------------------------------------------------------------------
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty,\10\ and obliges the 
Requested State to consider imposing appropriate conditions on 
its assistance in lieu of denying a request outright pursuant 
to the first paragraph of the article. For example, a State 
might request information that could be used either in a 
routine criminal case (which would be within the scope of the 
Treaty) or in a prosecution of a political offense (which would 
be subject to refusal). This paragraph would permit the 
Requested State to provide the information on the condition 
that it be used only in the routine criminal case. Naturally, 
the Requested State would notify the Requesting State of any 
proposed conditions before actually delivering the evidence in 
question, thereby giving the Requesting State a chance to 
indicate whether it is willing to accept the evidence subject 
to the conditions. If the Requesting State does accept the 
evidence subject to the conditions, it must honor the 
conditions.
---------------------------------------------------------------------------
    \10\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at 
Bern May 25, 1973, entered into force January 23, 1977, art. 26, 27 
U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
    Paragraph 3 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``urgent situations.'' If the 
request is not in writing, it must be confirmed in writing 
within ten days unless the Central Authority of the Requested 
State agrees otherwise. Each request shall be in the language 
of the Requesting State accompanied by a translation in the 
language of the Requested State (i.e., English for the United 
States and Greek for Cyprus) unless otherwise agreed.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 lists nine kinds of 
information that are important but not always crucial, and must 
be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority to promptly 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the competent 
judicial or other authorities to do everything within its power 
to execute the request. This provision is not intended or 
understood to authorize the use of the grand jury in the United 
States for the collection of evidence pursuant to a request 
from Cyprus. Rather, it is anticipated that when a request from 
Cyprus requires compulsory process for execution, the United 
States Department of Justice would ask a federal court to issue 
the necessary process under Title 28, United States Code, 
Section 1782, and the provisions of the Treaty. Similarly, 
Cyprus' delegation informed the U.S. delegation that this 
general language should not be understood to authorize the use 
of the Treaty to conduct criminal proceedings in Cyprus for the 
U.S. (e.g., the accepting of guilty pleas from defendants).
    The third sentence in Article 5(1) reads ``[t]he competent 
judicial or other authorities of the Requested State shall have 
power to issue subpoenas, search warrants, or other orders 
necessary to execute the request.'' This language specifically 
authorizes United States courts to use all of their powers to 
issue subpoenas and other process to satisfy a request under 
the Treaty. It also reflects an understanding that the Parties 
intend to provide each other with every available form of 
assistance from judicial and executive branches of government 
in the execution of mutual assistance requests. The phrase 
refers to ``judicial or other authorities'' to include all 
those officials authorized to issue compulsory process that 
might be needed in executing a request.
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for 
representation of the Requesting State in the execution of a 
request for assistance. Thus, it is understood that if 
execution of the request entails action by a judicial or 
administrative agency, the Central Authority of the Requested 
State shall arrange for the presentation of the request to that 
court or agency at no cost to the Requesting State.
    Paragraph 3 provides that ``[r]equests shall be executed 
according to the internal laws and procedures of the Requested 
State except to the extent that this Treaty provides 
otherwise.'' Thus, the method of executing a request for 
assistance under the Treaty must be in accordance with the 
Requested State's internal laws absent specific contrary 
procedures in the Treaty itself. For the United States, the 
Treaty is intended to be self-executing; no new or additional 
legislation will be needed to carry out the obligations 
undertaken.
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by U.S. and Cyprus 
authorities in collecting evidence in order to assure the 
admissibility of that evidence at trial. For instance, United 
States law permits documents obtained abroad to be admitted in 
evidence if they are duly certified and the defendant has been 
given fair opportunity to test its authenticity.\11\ Since 
Cyprus' law contains no similar provision, documents acquired 
in Cyprus in strict conformity with Cyprus procedures might not 
be admissible in United States courts. Furthermore, United 
States courts use procedural techniques such as videotape 
depositions that simply are not used in Cyprus even though they 
are not forbidden there.
---------------------------------------------------------------------------
    \11\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    Both delegations agreed that the Treaty's primary goal of 
enhancing law enforcement in the Requesting State could be 
frustrated if the Requested State were to insist on producing 
evidence in a manner which renders the evidence inadmissible or 
less persuasive in the Requesting State. For this reason, 
Paragraph 3 requires the Requested State to follow the 
procedure outlined in the request to the extent that it can, 
even if the procedure is not that usually employed in its own 
proceedings. However, if the procedure called for in the 
request is unlawful in the Requested State (as opposed to 
simply unfamiliar there), the appropriate procedure under the 
law applicable for investigations or proceedings in the 
Requested State will be utilized.
    Finally, Paragraph 3 provides that where neither the Treaty 
or the request specifies a particular procedure to be followed, 
the request shall be executed in accordance with the 
appropriate procedure under the laws applicable to criminal 
investigations and proceedings in the Requested State.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing criminal investigation or legal proceeding in the 
Requested State. The paragraph also allows the Requested State 
to provide the information to the Requesting State subject to 
conditions needed to prevent interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation, 
prosecution, or proceeding'' as required by Article 4(2)(b). 
Therefore, Paragraph 5 of Article 5 enables the Requesting 
State to call upon the Requested State to use its best efforts 
to keep the information in the request confidential.\12\ If the 
Requested State cannot execute the request without disclosing 
the information in question (as might be the case if execution 
requires a public judicial proceeding in the Requested State), 
or if for some other reason this confidentiality cannot be 
assured, the Treaty obliges the Requested State to so indicate, 
thereby giving the Requesting State an opportunity to withdraw 
the request rather than risk jeopardizing an investigation or 
proceeding by public disclosure of the information.
---------------------------------------------------------------------------
    \12\ This provision is similar to language in other mutual legal 
assistance treaties. See, e.g., U.S.-Lithuania Mutual Legal Assistance 
Treaty, signed at Washington January 16, 1998, entered into force 
August 26, 1999, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought cannot be provided immediately, the 
Central Authority of the Requested State must also explain the 
basis for the outcome to the Central Authority of the 
Requesting State. For example, if the evidence sought could not 
be located, the Central Authority of the Requested State would 
report that fact to the Central Authority of the Requesting 
State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties.\13\ Since 
the cost of retaining counsel abroad to present and process 
letters rogatory is sometimes quite high, this provision is a 
significant advance in international legal cooperation. It is 
also understood that should the Requesting State choose to hire 
private counsel for a particular request, it is free to do so 
at its own expense. Article 6 does provide that the Requesting 
State will pay fees of expert witnesses, translation, 
interpretation and transcription costs, and allowances and 
expenses related to travel of persons pursuant to Articles 10 
and 11.
---------------------------------------------------------------------------
    \13\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty, 
signed at Washington February 4, 1998, entered into force May 7, 2000, 
art. 6.
---------------------------------------------------------------------------
    Paragraph 2 of this article provides that if it becomes 
apparent during the execution of a request that complete 
execution of a request would require extraordinary expenses, 
then the Central Authorities shall consult to determine the 
terms and conditions under which execution may continue.

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that the Requesting State not use 
any information or evidence provided under the Treaty in any 
investigation, prosecution, or proceeding other than that 
described in the request without the prior consent of Central 
Authority of the Requested State. If such a use limitation is 
required, the Requesting State must comply with the 
requirement. It will be recalled that Article 4(2)(d) states 
that the Requesting State must specify the purpose for which 
the information or evidence is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it furnishes to the Requesting 
State be kept confidential. Under most United States mutual 
legal assistance treaties, conditions of confidentiality are 
imposed only when necessary, and are tailored to fit the 
circumstances of each particular case. For instance, the 
Requested State may wish to cooperate with the investigation in 
the Requesting State but choose to limit access to information 
which might endanger the safety of an informant, or unduly 
prejudice the interests of persons not connected in any way 
with the matter being investigated in the Requesting State. 
Paragraph 2 requires that if the Requesting State accepts the 
evidence subject to conditions of confidentiality, the 
Requesting State must make ``best efforts'' to comply with 
them. This ``best efforts'' language was used because the 
purpose of the Treaty is the production of evidence for use at 
trial, and that purpose would be frustrated if the Requested 
State could routinely permit the Requesting State to see 
valuable evidence, but impose confidentiality restrictions 
which prevent the Requesting State from using it.
    The Cyprus delegation expressed concern that information it 
might supply in response to a request by the United States 
under the Treaty not be disclosed under the Freedom of 
Information Act. Both delegations agreed that since this 
article permits the Requested State to prohibit the Requesting 
State's disclosure of information for any purpose other than 
that stated in the request, a Freedom of Information Act 
request that seeks information that the United States obtained 
under the Treaty would have to be denied if the United States 
received the information on such a condition.
    Paragraph 3 states that nothing in Article 7 shall preclude 
the use or disclosure of information to the extent that there 
is an obligation to do so under the Constitution of the 
Requesting State in a criminal prosecution.\14\ Any such 
proposed disclosure shall be notified by the Requesting State 
to the Requested State in advance.
---------------------------------------------------------------------------
    \14\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed to the public in a manner consistent 
with Paragraph 1 or 2, the Requesting State is free to use the 
evidence for any purpose. When evidence obtained under the 
Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain, and 
is likely to become a matter of common knowledge, perhaps even 
be described in the press. The negotiators noted that once this 
has occurred, it is practically impossible for the Central 
Authority of the Requesting State to block the use of that 
information by third parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 7 are for the benefit of the 
Contracting Parties, and the invocation and enforcement of 
these provisions are left entirely to the Contracting Parties. 
If a person alleges that a Cyprus authority has used 
information or evidence obtained from the United States in a 
manner inconsistent with this article, the person can inform 
the Central Authority of the United States of the allegations 
for consideration as a matter between the Contracting Parties.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or give statements \15\ or 
produce items, including documents and records and articles of 
evidence. The compulsion contemplated by this article can be 
accomplished by subpoena or any other means available under the 
law of the Requested State.
---------------------------------------------------------------------------
    \15\ The Treaty draws a distinction between taking ``testimony'' 
and taking ``statements'' because under Cyprus' law ``testimony'' can 
only be given after formal charges have been filed.
---------------------------------------------------------------------------
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request (e.g., the defendant and his counsel in criminal cases) 
shall be permitted by the Requested State to be present and 
question the person giving the testimony or evidence.
    Paragraph 4 states that when a person asserts a claim of 
immunity, incapacity, or privilege under the laws of the 
Requested State, that claim shall be resolved in accordance 
with the law of the Requested State. This is consistent with 
Article 5(3), and ensures that no person will be compelled to 
furnish information if he has a right not to do so under the 
law of the Requested State. Thus, a witness questioned in the 
United States pursuant to a request from Cyprus is guaranteed 
the right to invoke any of the testimonial privileges (e.g., 
attorney-client, inter-spousal) available in the United States 
as well as the constitutional privilege against self-
incrimination, to the extent that it might apply in the context 
of evidence being taken for foreign proceedings.\16\ A witness 
testifying in Cyprus may raise any of the similar privileges 
available under the law of Cyprus.
---------------------------------------------------------------------------
    \16\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 4 also states that if a witness attempts to 
assert a claim of immunity, incapacity, or privilege under the 
laws of the Requesting State, the Requested State will take the 
evidence and turn it over to the Requesting State along with 
notice that it was obtained over a claim of privilege. The 
applicability of the privilege can then be determined in the 
Requesting State, where the scope of the privilege and the 
legislative and policy reasons underlying the privilege are 
best understood. A similar provision appears in many of our 
recent mutual legal assistance treaties.\17\
---------------------------------------------------------------------------
    \17\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty, 
signed at Bridgetown February 28, 1996, and entered into force March 3, 
2000, art. 8(4).
---------------------------------------------------------------------------
    Paragraph 5 states that evidence produced pursuant to this 
article shall, upon request, be authenticated by an 
attestation, including, in the case of business records, 
authentication in the manner indicated in Form A appended to 
the Treaty. In Cyprus, the attestation will be given under 
oath, before a judge magistrate, or judicial officer, and any 
false statements made in the attestation will be subject to 
prosecution in Cyprus as a ``false oath or declaration'' in 
violation of Article 117 of Cyprus' Criminal Code. Thus, the 
provision establishes a procedure for authenticating records in 
a manner essentially similar to Title 18, United States Code, 
Section 3505. The absence or nonexistence of such records 
shall, upon request, be certified through the use of Form B, 
also appended to the treaty. Records authenticated by Form A, 
or Form B certifying the absence or nonexistence of such 
records, shall be admissible in evidence in the Requesting 
State. With respect to the United States, this paragraph is 
self-executing, and does not need implementing legislation.
    Article 8(5) provides that the evidence authenticated by 
Form A is ``admissible,'' but of course, it will be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (such as relevance, and materiality) would still 
have to be satisfied in each case.

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each State to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a government department 
or agency in the Requested State. The term ``government 
departments and agencies'' includes all executive, judicial, 
and legislative units of the federal, state, and local level in 
each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The undertaking under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own law enforcement or judicial authorities. It 
is intended that the Central Authority of the Requested State, 
in close consultation with the interested law enforcement 
authorities of that State, will determine that extent and what 
those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty, 
like most other U.S. bilateral mutual legal assistance 
treaties, is a ``convention relating to the exchange of tax 
information'' for purposes of Title 26, United States Code, 
Section 6103(k)(4), and the United States would have the 
discretion to provide tax return information to Cyprus under 
this article in appropriate cases.
    Paragraph 3 states that records provided under this article 
may be authenticated by the officials responsible for 
maintaining them through the use of Form C appended to the 
Treaty. No further authentication is required. If authenticated 
in this manner, the records shall be admissible in evidence in 
the Requesting State. The paragraph also provides for the 
appropriate officials to certify the absence or nonexistence of 
records, through Form D appended to the Treaty. Thus, the 
Treaty establishes a procedure for authenticating official 
foreign documents that is consistent with Rule 902(3) of the 
Federal Rules of Evidence and Rule 44, Federal Rules of Civil 
Procedure.
    Paragraph 3, similar to Article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible'' in 
the Requesting State but it will, of course, be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
evidentiary tests other than authentication (such as relevance 
or materiality) must be established in each case.

         Article 10--Appearance Outside of the Requested State

    This article provides that upon request, the Requested 
State shall invite persons in the Requested State to travel 
outside of the Requested State (i.e., to the Requesting State 
or to a third state) to appear. The Central Authority of the 
Requested State shall inform the Central Authority of the 
Requesting State of the invitee's response. An appearance in 
the Requesting State under this article is not mandatory, and 
the invitation may be refused by the prospective witness.
    The Requesting State would be expected to pay the expenses 
of such an appearance pursuant to Article 6. Therefore, 
paragraph 2 provides that the Requesting State must indicate to 
the Requested State the extent to which the person's expenses 
will be paid. It is assumed that such expenses would normally 
include the costs of transportation, and room and board. When 
the person is to appear in the United States, a nominal witness 
fee would also be provided. The paragraph provides that the 
person may ask that the Requesting State advance the money to 
pay these expenses, and that this advance may be handled 
through the Embassy or consulate of the Requesting State.
    Paragraph 3 provides that the Central Authority of the 
Requesting State may, in its discretion, determine that a 
person appearing in the Requesting State under this Article 
shall not be subject to service of process, or be detained or 
subjected to any restriction of personal liberty by reason of 
acts or convictions which preceded the person's departure for 
the Requesting State from the Requested State. It is understood 
that this provision would not prevent the prosecution of a 
person for perjury or any other crime committed while in the 
Requesting State.
    Paragraph 4 states that any safe conduct provided under 
this article expires seven days after the Central Authority of 
the Requesting State has notified the Central Authority of the 
Requested State that the person's presence is no longer 
required, or if the person leaves the territory of the 
Requesting State and thereafter returns to it. However, the 
Central Authority of the Requesting State may extend the safe 
conduct for up to fifteen days if it determines that there is 
good cause to do so.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings.\18\
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    \18\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Article 11 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty,\19\ which in 
turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters.\20\ Paragraph 1 provides 
that persons in custody in the Requested State whose presence 
outside of that State (i.e., to the Requesting State or to a 
third state) is sought for purposes of assistance under this 
Treaty, such as providing testimony in a criminal prosecution, 
shall be transferred in custody for that purpose if the person 
consents and the Central Authorities of both states agree.
---------------------------------------------------------------------------
    \19\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at 
Bern May 25, 1973, entered into force January 23, 1977, art. 26.
    \20\ It is also consistent with Title 18, United States Code, 
Section 3508, which provides for the transfer to the United States of 
witnesses in custody in other States whose testimony is needed at a 
federal criminal trial.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State 
for that purpose if the person consents and if the Central 
Authorities of both States agree. This would also cover 
situations in which a person in custody in the United States on 
a criminal matter has sought permission to travel to another 
country to be present at a deposition being taken there in 
connection with the case.\21\
---------------------------------------------------------------------------
    \21\ See, also, United States v. King, 552 F.2d 833 (9th Cir. 
1976), cert. denied, 430 U.S. 966 (1977), where the defendants insisted 
on traveling to Japan to be present at the deposition of certain 
witnesses in prison there.
---------------------------------------------------------------------------
    Paragraph 3 provides express authority, and the obligation, 
for the receiving State to keep such a person in custody 
throughout the person's stay there, unless the sending State 
specifically authorizes release. This paragraph also authorizes 
and obligates the receiving State to return the person in 
custody to the sending State as soon as circumstances permit or 
as otherwise agreed, and provides that this return will occur 
in accordance with terms and conditions agreed upon by the 
Central Authorities. The initial transfer of a prisoner under 
this article requires the consent of the person involved and of 
both Central Authorities, but the provision does not require 
that the person consent to be returned to the sending State.
    In keeping with the obligation to return a person 
transferred under this article, paragraph (3)(c) explicitly 
prohibits the Party to whom a person is transferred from 
requiring the transferring Party to initiate extradition or 
other proceedings before the status quo is restored by the 
return of the person transferred. Paragraph (3)(d) states that 
the person is to receive credit for time served while in the 
custody of the receiving State. This is consistent with United 
States practice in these matters. Finally, Paragraph 3(e) 
states that if the transfer of the person outside the Requested 
State is to a third state rather than to the Requesting State, 
it is the Requesting State that nevertheless must be 
responsible for making all arrangements to meet the 
requirements of this paragraph, including the requirements that 
the person be kept in custody and returned to the Requested 
State.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the Receiving State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

               Article 12--Transit of Persons in Custody

    Article 11 contemplates that persons in custody will be 
moved from State to State for purposes of mutual assistance, 
and it is reasonable to anticipate situations in which one 
State may need to bring persons in custody through the other on 
the way to or from third States. Article 12 provides the legal 
framework for such transit. Similar articles appear in other 
recent U.S. mutual legal assistance treaties.\22\
---------------------------------------------------------------------------
    \22\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force, September 17, 1990, 
art. 11.
---------------------------------------------------------------------------
    Paragraph 1 states that a Requested State may authorize the 
transit through its territory of a person whose personal 
appearance has been requested in investigations, prosecutions, 
or proceedings in the Requesting State. Despite the 
discretionary nature of such transit, an explicit reference to 
constitutional limitations was included because at the request 
of the Cyprus delegation because of its concerns about 
potential litigation attempting to apply its constitutional ban 
on extradition of nationals to such transit.
    Paragraph 2 provides the Requested State with express 
authority to keep a person in custody during transit and 
imposes an obligation to do so.

       Article 13--Location or Identification of Persons or Items

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

                    Article 14--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers 
relating in whole or in part to a Treaty request. Identical 
provisions appear in most U.S. mutual legal assistance 
treaties.\23\
---------------------------------------------------------------------------
    \23\ See, e.g., U.S.-Lithuania Mutual Legal Assistance Treaty, 
signed at Washington January 16, 1998, entered into force August 26, 
1999, art. 13.
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Cyprus to follow a specified 
procedure for service) or by the United States Marshal's 
Service in instances in which personal service is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents must be transmitted by the Central Authority of 
the Requesting State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 15--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
U.S. courts can and do execute such requests under Title 28, 
United States Code, Section 1782.\24\ This article creates a 
formal framework for handling such requests and is similar to 
provisions in many other U.S. mutual legal assistance 
treaties.\25\
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    \24\ For example, in United States Ex Rel Public Prosecutor of 
Rotterdam, Netherlands v. Richard Jean Van Aalst, Case No 84-52-M-01 
(M.D. Fla., Orlando Div.), a search warrant was issued February 24, 
1984, based on a request under Title 28, United States Code, Section 
1782.
    \25\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 15.
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    Article 15 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Cyprus will have to be supported by a 
showing of probable cause for the search. A U.S. request to 
Cyprus would have to satisfy the corresponding evidentiary 
standard there, which is ``a reasonable basis to believe'' that 
the specified premises contains articles likely to be evidence 
of the commission of an offense.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision requires that, upon request, every official who 
has custody of a seized item shall certify, through the use of 
Form E appended to this Treaty, the continuity of custody, the 
identity of the item, and any changes in its condition.
    The article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the Requesting State, thus relieving 
the Requesting State of the burden, expense, and inconvenience 
of having to send its law enforcement officers to the Requested 
State to provide authentication and chain of custody testimony 
each time the Requesting State uses evidence produced under 
this article. As in Articles 8(5) and 9(3), the injunction that 
the certificates be admissible without additional 
authentication leaves the trier of fact free to bar use of the 
evidence itself, in spite of the certificate, if there is some 
reason to do so other than authenticity or chain of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred.

                      Article 16--Return of Items

    This article provides that any documents or items of 
evidence furnished under the Treaty must be returned to the 
Requested State as soon as possible. The delegations understood 
that this requirement would be invoked only if the Central 
Authority of the Requested State specifically requests it at 
the time that the items are delivered to the Requesting State. 
It is anticipated that unless original records or articles of 
significant intrinsic value are involved, the Requested State 
will not usually request return of the items, but this is a 
matter best left to development in practice.

         Article 17--Proceeds and Instrumentalities of Offenses

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Cyprus in combating narcotics 
trafficking. One significant strategy in this effort is action 
by United States authorities to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    This article is similar to a number of United States mutual 
legal assistance treaties, including Article 16 of the U.S.-
Barbados Mutual Legal Assistance Treaty and Article 17 of the 
U.S.-Latvia. Paragraph 1 authorizes the Central Authority of 
one Party to notify the other of the existence in the latter's 
territory of proceeds or instrumentalities of offenses that may 
be forfeitable or otherwise subject to seizure. The term 
``proceeds or instrumentalities'' was intended to include 
things such as money, vessels, or other valuables either used 
in the crime or purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the Party in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Cyprus, they could be seized under Title 
18, United States Code, Section 981 in aid of a prosecution 
under Title 18, United States Code, Section 2314,\26\ or be 
subject to a temporary restraining order in anticipation of a 
civil action for the return of the assets to the lawful owner. 
Proceeds of a foreign kidnaping, robbery, extortion or a fraud 
by or against a foreign bank are civilly and criminally 
forfeitable in the United States since these offenses are 
predicate offenses under U.S. money laundering laws. \27\ Thus, 
it is a violation of United States criminal law to launder the 
proceeds of these foreign fraud or theft offenses, when such 
proceeds are brought into the United States.
---------------------------------------------------------------------------
    \26\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad. Proceeds of such 
activity become subject to forfeiture pursuant to Title 18, United 
States Code, Section 981 by way of Title 18, United States Code, 
Section 1956 and Title 18, United States Code, Section 1961. The 
forfeiture statute applies to property involved in transactions in 
violation of section 1956, which covers any activity constituting an 
offense defined by section 1961(1), which includes, among others, Title 
18, United States Code, Section 2314.
    \27\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be able and 
willing to help one another. Title 18, United States Code, 
Section 981(a)(1)(B), allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada; there is a growing trend among nations 
toward enacting legislation of this kind in the battle against 
narcotics trafficking.\28\ The U.S. delegation expects that 
Article 16 of the Treaty will enable this legislation to be 
even more effective.
---------------------------------------------------------------------------
    \28\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, December 20, 
1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds or instrumentalities 
of offenses, to restitution to crime victims, or to the 
collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested Party may take immediate action to temporarily 
immobilize the assets pending further proceedings. Thus, if the 
law of the Requested State enables it to seize assets in aid of 
a proceeding in the Requesting State or to enforce a judgment 
of forfeiture levied in the Requesting State, the Treaty 
provides that the Requested State shall do so. The language of 
the article is carefully selected, however, so as not to 
require either Party to take any action that would exceed its 
internal legal authority. It does not, for instance, mandate 
institution of forfeiture proceedings or initiation of 
temporary immobilization in either country against property 
identified by the other if the relevant prosecution officials 
do not deem it proper to do so.\29\
---------------------------------------------------------------------------
    \29\ In Cyprus, unlike the United States, the law does not allow 
for civil forfeiture. However, Cyprus law permits forfeiture in 
criminal cases, and ordinarily a defendant must be convicted in order 
for Cyprus to confiscate the defendant's property.
---------------------------------------------------------------------------
    U.S. law permits the government to transfer a share of 
certain forfeited property to other countries that participate 
directly or indirectly in the seizure or forfeiture of the 
property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State.\30\ 
Paragraph 3 is consistent with this framework, and will enable 
a Party having custody over proceeds or instrumentalities of 
offenses to transfer forfeited assets, or the proceeds of the 
sale of such assets, to the other Party, at the former's 
discretion and to the extent permitted by their respective 
laws.
---------------------------------------------------------------------------
    \30\ See, Title 18, United States Code, Section 981(i)(1).
---------------------------------------------------------------------------

           Article 18--Compatibility with Other Arrangements

    This article states that assistance and procedures set 
forth in this Treaty shall not prevent either Party from 
granting assistance to the other Party through the provisions 
of other applicable international agreements. Article 18 also 
states that the Parties may provide assistance pursuant to any 
bilateral arrangement, agreement, or practice that may be 
applicable.\31\ The Treaty would leave the provisions of United 
States and Cyprus law on letters rogatory completely 
undisturbed, and would not alter any pre-existing agreements 
concerning investigative assistance.
---------------------------------------------------------------------------
    \31\ See, e.g., the Agreement for Mutual Assistance Between Customs 
Services, signed at Washington June 2, 1987, entered into force August 
21, 1987. Convention for the Avoidance of Double Taxation and the 
Prevention of Fiscal Evasion with Respect to Taxes on Income, with 
related notes, signed at Nicosia March 19, 1984; entered into force 
December 31, 1985.
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                        Article 19--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Central Authorities will share those ideas with one 
another, and encourages them to agree on the implementation of 
such measures. Practical measures of this kind might include 
methods of keeping each other informed of the progress of 
investigations and cases in which treaty assistance was 
utilized. Similar provisions are contained in all recent United 
States mutual legal assistance treaties. It is anticipated that 
the Central Authorities will conduct regular consultations 
pursuant to this article.

      Article 20--Ratification, Entry Into Force, and Termination

    Paragraph 1 states that the Treaty is subject to 
ratification and that the instruments of ratification are to be 
exchanged as soon as possible.
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 provides that the Treaty shall apply to any 
request presented pursuant to it after the date of the Treaty's 
entry into force, without regard to whether the relevant acts 
or omissions under investigation occurred before, on or after 
the date on which the Treaty entered into force. Provisions of 
this kind are common in law enforcement agreements.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of receipt of written 
notification. Similar termination provisions are included in 
other United States mutual legal assistance treaties.
                                ------                                


 Technical Analysis of the Mutual Legal Assistance Treaty Between the 
 Government of the United States of America and the Government of Egypt

    On May 3, 1998, the United States signed a Treaty Between 
the Government of the United States of America and the 
Government of the Arab Republic of Egypt on Mutual Legal 
Assistance in Criminal Matters (the ``Treaty''). In recent 
years, the United States has signed similar treaties with many 
other countries, as part of a highly successful effort to 
modernize the legal tools available to law enforcement 
authorities in need of foreign evidence for use in criminal 
cases.
    The Treaty with Egypt is expected to be a major advance for 
the United States in its attempts to win the cooperation in 
Africa and the Middle East in combating organized crime, 
transnational terrorism, international drug trafficking, and 
other crimes.
    It is anticipated that the Treaty will be implemented in 
the United States largely pursuant to the procedural framework 
provided by Title 28, United States Code, Section 1782. The 
Egyptian delegation informed the U.S. delegation that Egypt has 
no specific mutual legal assistance law, and that it will 
render assistance pursuant to the Treaty itself, referring to 
its domestic procedural law where applicable.
    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 
history. 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--Scope of Assistance

    Paragraph 1 of Article 1 requires the Parties to provide 
assistance in all matters involving the investigation, 
prosecution, and prevention of offenses, and in proceedings 
relating to criminal matters.
    The delegations understood that the term ``investigations'' 
includes grand jury proceedings in the United States and 
similar pre-charge proceedings in Egypt, and other legal 
measures taken prior to the filing of formal charges in either 
Party.\1\ The term ``proceedings'' is intended to cover the 
full range of proceedings in a criminal case, including such 
matters as bail and sentencing hearings.\2\ Since the phrase 
``proceedings related to criminal matters'' is broader than the 
investigation, prosecution, or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, disbarment proceedings and proceedings 
to forfeit to the Government the proceeds of illegal drug 
trafficking may be civil in nature; \3\ such proceedings were 
discussed with the Egyptian delegation and are covered by the 
Treaty. The U.S. delegation also informed the Egyptian 
delegation that requests for assistance might emanate from any 
of various U.S. agencies, including the following: the Federal 
Bureau of Investigation; the Securities and Exchange 
Commission; the Internal Revenue Service; the U.S. Customs 
Service; the Bureau of Alcohol, Tobacco, and Firearms; and the 
Drug Enforcement Administration. Finally, the U.S. delegation 
indicated that requests might arise before a case became 
criminal in nature; for example, the SEC often investigates 
matters before it is known whether criminal proceedings will be 
instituted.
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    \1\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the United States, as our 
investigators and prosecutors often need to obtain evidence from 
foreign countries in order to determine whether or not to file criminal 
charges. This obligation is a reciprocal one, and the United States 
must assist Egypt under the Treaty in connection with investigations 
prior to charges being filed in Egypt.
    \2\ One United States court has interpreted Title 28, United States 
Code, Section 1782, as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. See, Fonseca v. Blumenthal, 620 F.2d 322 (2nd Cir. 1980); In 
Re Letters Rogatory Issued by the Director of Inspection of the 
Government of India, 385 F.2d 1017 (2nd Cir. 1976). This rule poses an 
unnecessary obstacle to the execution of requests concerning matters 
which are at the investigatory stage, or which are customarily handled 
by administrative officials in the Requesting State. Since this 
paragraph of the Treaty specifically permits requests to be made in 
connection with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \3\ Title 21, United States Code, Section 881; Title 18, United 
States Code, Section 1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The second paragraph's list of kinds of 
assistance is not intended to be exhaustive, a fact which is 
signaled by the word ``include'' in the opening clause of the 
paragraph and reinforced by the final subparagraph.
    Paragraph 3 states that assistance is to be provided in 
connection with any conduct that is the subject of 
investigation or proceedings in the Requesting State. This 
language is intended to make it clear that there is no 
requirement of dual criminality for cooperation under this 
treaty. Thus, assistance is to be provided even when the 
criminal matter under investigation in the Requesting Party 
would not be a crime in the Requested Party. Article 1(3) is 
important because a dual criminality rule would make assistance 
unavailable where United States and Egypt criminal laws differ.
    In discussing the types of cases for which assistance might 
be requested, the U.S. delegation delineated a number of 
offenses on which it might seek assistance. Some of the 
offenses discussed related to the following: drug trafficking 
and money laundering; money laundering in the non-drug context; 
racketeering, including RICO; continuing criminal enterprises; 
cases involving criminal and civil forfeiture; kidnaping, 
including parental kidnaping; terrorism; fraud, including fraud 
against the government, securities fraud, and insider trading; 
customs, export control, and smuggling cases; taxes; the 
environment; foreign corrupt practices and bribery; antitrust 
violations; currency reporting; computer crime; and alien 
smuggling. Egypt indicated that offenses on which it would seek 
evidence are similar to those discussed by the U.S. delegation.
    Paragraph 4 contains a standard provision in U.S. mutual 
legal assistance treaties,\4\ which states that the Treaty is 
intended solely for government-to-government mutual legal 
assistance. The Treaty is not intended to provide to private 
persons a means of evidence gathering, nor is it intended to 
extend to civil matters. Private litigants in the United States 
may obtain evidence from Egypt by letters rogatory, an avenue 
of international assistance which this treaty leaves 
undisturbed. Similarly, the paragraph provides that the Treaty 
is not intended to create any right in a private person to 
suppress or exclude evidence, or to impede the execution of a 
request.
---------------------------------------------------------------------------
    \4\ See, United States v. Johnpoll, 739 F.2d 702 (2nd Cir.), cert. 
denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    Article 2 of the Treaty requires that each Party establish 
a ``Central Authority'' for transmission, reception, and 
handling of treaty requests. The Central Authority of the 
United States would make all requests to Egypt on behalf of 
federal agencies, state agencies, and local law enforcement 
authorities in the United States. The Egyptian Central 
Authority will make all requests emanating from officials in 
Egypt.
    The Central Authority for the Requesting Party will 
exercise discretion as to the form and content of requests, and 
also as to the number and priority of requests. The Central 
Authority of the Requested Party is also responsible for 
receiving each request, transmitting it to the appropriate 
federal or state agency, court, or other authority for 
execution, and insuring that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the duties of Central Authority under mutual legal 
assistance treaties to the Assistant Attorney General in charge 
of the Criminal Division.\5\ Paragraph 2 also states that the 
Minister of Justice of Egypt or the person designated by the 
Minister of Justice will serve as the Central Authority for 
Egypt.
---------------------------------------------------------------------------
    \5\ 28 C.F.R. Section 0.64-1. The Assistant Attorney General for 
the Criminal Division has in turn delegated the authority to the Deputy 
Assistant Attorneys General and to the Director of the Criminal 
Division's Office of International Affairs, in accordance with the 
regulation. Directive No. 81, 45 Fed.Reg. 79,758(1980), as corrected at 
48 Fed. Reg. 54,595(1983). This authority is further delegated to 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, INTERPOL channels, or any 
other means, at the option of the Central Authorities 
themselves.

                  Article 3--Limitations on Assistance

    Article 3 specifies the limited classes of cases in which 
assistance may be denied under the Treaty. These restrictions 
are similar to those found in other mutual legal assistance 
treaties.
    Paragraph 1(a) permits the denial of a request if it 
relates to an offense under military law which would not be an 
offense under ordinary criminal law.
    Paragraph 1(b) permits the Central Authority of the 
Requested State \6\ to deny a request if execution of the 
request would prejudice the security or other essential public 
interests of that State. All United States mutual legal 
assistance treaties contain provisions allowing the Requested 
State to decline to execute a request if execution would 
prejudice its essential interests.
---------------------------------------------------------------------------
    \6\ The terms ``Party'' and ``State'' are used interchangeably in 
the Treaty and have the same meaning.
---------------------------------------------------------------------------
    The delegations agreed that the term ``security'' includes 
cases where assistance might involve disclosure of information 
which is classified for national security reasons. It is 
anticipated that the Department of Justice, in its role as 
Central Authority for the United States, would work closely 
with the Department of State and other Government agencies to 
determine whether to execute a request which might fall in this 
category.
    The delegations also agreed that the phrase ``essential 
interests'' was intended to narrowly limit the class of cases 
in which assistance may be denied. It would not be enough that 
the Requesting State's case is one which would be inconsistent 
with public policy had it been brought in the Requested State. 
Rather, the Requested State must be convinced that execution of 
the request would seriously conflict with significant public 
policy. An example might be a request involving prosecution by 
the Requesting State of conduct which occurred in the Requested 
State and is constitutionally protected in that State.
    However, it was agreed that ``essential interests'' could 
also be invoked if the execution of a request would violate 
essential interests related to the fundamental purposes of the 
Treaty. For example, one fundamental purpose of the Treaty is 
to enhance law enforcement cooperation; attaining that purpose 
would be hampered if sensitive law enforcement information 
available under the Treaty were to fall into the wrong hands. 
Therefore, the U.S. Central Authority may invoke Article 
3(1)(b) to decline to provide information pursuant to a request 
under this Treaty if it determines, after appropriate 
consultation with law enforcement, intelligence, and foreign 
policy agencies, that a senior foreign government official who 
will have access to the information is engaged in a felony, 
including facilitation of the production or distribution of 
illegal drugs.\7\
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    \7\ This is consistent with the Senate resolution of advice and 
consent to ratification of other recent mutual legal assistance 
treaties with, e.g. Luxembourg, Hong Kong, Poland, and Barbados. See, 
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal 
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy 
Assistant Attorney General, Criminal Division, United States Department 
of Justice).
---------------------------------------------------------------------------
    In general, the mere fact that the execution of a request 
would involve the disclosure of records protected by bank or 
business secrecy in the Requested State would not justify 
invocation of the ``essential interests'' provision. Indeed, a 
major objective of the Treaty is to provide a formal, pre-
existing channel for making such information available for law 
enforcement purposes.
    The Treaty, unlike most other mutual legal assistance 
treaties, does not expressly permit the denial of a request if 
it involves a ``political offense.'' The U.S. delegation 
proposed that this exception be included in the Treaty, but, as 
the term was unfamiliar to the Egyptian delegation, it was 
removed. The delegations agreed that the Central Authorities 
could deny assistance in cases involving political offenses 
pursuant to the ``essential interests'' provision of Article 
3(1)(b). An exchange of diplomatic notes to this effect was 
submitted for the Senate's information.
    Paragraph 1(c) permits the denial of a request if it was 
not made in conformity with the Treaty.
    Paragraph 2 obligates the Requested State to consider 
imposing appropriate conditions on its assistance in lieu of 
denying a request outright pursuant to the first paragraph of 
the article. For example, a State might request information 
which could be used either in a routine criminal case (which 
would be within the scope of the Treaty) or in a case involving 
a political offense (which would be subject to refusal under 
the Treaty's terms). This paragraph would permit the Requested 
State to provide the information on the condition that it be 
used only in the routine criminal case. It is anticipated that 
the Requested State would notify the Requesting State of any 
proposed conditions before actually delivering the evidence in 
question, thereby according the Requesting State an opportunity 
to indicate whether it is willing to accept the evidence 
subject to the conditions. If the Requesting State does accept 
the evidence subject to the conditions, it must honor the 
conditions.
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance. 
This ensures that when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Content of Requests

    Paragraph 1 of this Article requires that requests be in 
writing, except that the Central Authority of the Requested 
State may accept a request in another form in ``urgent 
situations.'' A request in another form must be confirmed in 
writing within ten days unless the Central Authority of the 
Requested State agrees otherwise. The request shall be in the 
language of the Requested State unless agreed otherwise. The 
Egyptian delegation requested that all requests to Egypt be in 
Arabic and the United States expects that all requests from 
Egypt will be in English.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty and which must 
be included in each request. Article 4(3) outlines kinds of 
information which are important, but not always crucial, and 
must be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the parties that requests be as 
simple and straightforward as possible, there is no requirement 
that a request be legalized or certified in any particular 
manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority to promptly 
execute a request. The Treaty contemplates that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirement but 
its execution requires action by some other agency in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct agency for execution. For example, 
the Egyptian delegation explained that given the strict banking 
laws in Egypt, records cannot be released without an order 
issued by the Court of Appeal in Cairo. When a request for 
Egyptian bank records is made, the Minister of Justice will 
transmit the request to a general prosecutor who, in turn, will 
obtain the necessary order on behalf of the United States.
    Where the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power to execute the 
request. This provision is neither intended nor understood to 
authorize the use of the grand jury in the United States for 
the collection of evidence pursuant to a request from Egypt. 
Rather, it is anticipated that when a request from Egypt 
requires compulsory process for execution, the Department of 
Justice would ask a federal court to issue the necessary 
process under Title 28, United States Code, Section 1782, and 
the provisions of this Treaty.
    The third sentence in Paragraph 1 reads ``[t]he Courts of 
the Requested State shall have authority to issue orders 
necessary to execute the request.'' This language specifically 
authorizes United States courts to use all of their powers to 
issue subpoenas and other process to satisfy a request under 
the Treaty. Other recent mutual legal assistance treaties 
specify that the courts have authority to issue subpoenas and 
search warrants, as well as ``other orders necessary'' to 
execute the request. The Egyptian delegation explained that the 
specific terms would have no meaning when translated to Arabic; 
therefore, they asked that the broader terminology be used. The 
agreed upon language reflects an understanding that the Parties 
intend to provide each other with every available form of 
assistance from judicial and executive branches of government 
in the execution of mutual legal assistance requests.
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for and 
meet the costs of representing the Requesting State in any 
proceedings in the Requested State arising out of the request 
for assistance. Thus, it is understood that if execution of the 
request entails action by a judicial or administrative agency, 
the Central Authority of the Requested State shall arrange for 
the presentation of the request to that court or agency at no 
cost to the other State. Since the cost of retaining counsel 
abroad to present and process letters rogatory is sometimes 
quite high, this provision for reciprocal legal representation 
in Article 5(2) is a significant advance in international legal 
cooperation. It is also understood that should the Requesting 
State choose to hire private counsel for a particular request, 
it is free to do so at its own cost.
    Paragraph 3 provides that requests shall be executed 
according to the internal laws and procedures of the Requested 
State except to the extent that the Treaty provides otherwise. 
Thus, the method of executing a request for assistance under 
the Treaty must be in accordance with the Requested State's 
internal laws absent specific, contrary procedures in the 
Treaty itself. For the United States, the Treaty is intended to 
be self-executing, and no new or additional legislation is 
needed to carry out the obligations undertaken.
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures are prohibited in 
the Requested State. This provision is necessary for two 
reasons:
    First, there are significant differences between the 
procedures that must be followed by U.S. and Egyptian 
authorities in collecting evidence in order to assure the 
admissibility of that evidence at trial. For instance, United 
States law permits documents obtained abroad to be admitted in 
evidence if they are duly certified and the defendant has been 
given fair opportunity to test its authenticity.\8\ Since 
Egypt's law contains no similar provision, documents acquired 
in Egypt in strict conformity with Egyptian procedures might 
not be admissible in U.S. courts. Furthermore, U.S. courts use 
procedural techniques such as videotape depositions that simply 
are not used in Egypt even though they are not forbidden there.
---------------------------------------------------------------------------
    \8\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be subject to 
forensic examination, and sometimes the procedures which must 
be followed to enhance the scientific accuracy of such tests do 
not coincide with those utilized in assembling evidence for 
admission into evidence at trial. The value of such forensic 
examinations could be significantly lessened--and the 
Requesting State's investigation could be retarded--if the 
Requested State were to insist unnecessarily on handling the 
evidence in a manner usually reserved for evidence to be 
presented to its own courts.
    The Treaty's primary goal of enhancing law enforcement in 
the Requesting State could be frustrated if the Requested State 
were to insist on producing evidence in a manner which renders 
the evidence inadmissible or less persuasive in the Requesting 
State. For this reason, Paragraph 3 requires the Requested 
State to follow the procedure outlined in the request to the 
extent that it can, even if the procedure is not that usually 
employed in its own proceedings. However, if the procedure 
called for in the request is unlawful in the Requested State 
(as opposed to simply unfamiliar there), the appropriate 
procedure under the law applicable for investigations or 
proceedings in the Requested State will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately where the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The Central Authority of the Requested State may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence which might otherwise be lost 
before the conclusion of the investigation or legal proceedings 
in that State. The paragraph also allows the Requested State to 
provide the information sought to the Requesting State on 
conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information which is ordinarily protected by Rule 6(e) of the 
Federal Rules of Criminal Procedure in the course of an 
explanation of ``a description of the subject matter and nature 
of the investigation, prosecution, or proceeding'' as required 
by Article 4(2)(b) of the Treaty. Therefore, Paragraph 5 
enables the Requesting State to call upon the Requested State 
to keep the information in the request confidential.\9\ If the 
Requested State cannot execute the request without disclosing 
the information in question (as might be the case if execution 
requires a public judicial proceeding in the Requested State), 
or if for some other reason this confidentiality cannot be 
assured, the Treaty obligates the Requested State to so 
indicate, thereby giving the Requesting State an opportunity to 
withdraw the request rather than risk jeopardizing an 
investigation or proceeding by public disclosure of the 
information. The Egyptian delegation indicated that requests 
for legal assistance can be kept confidential, even when bank 
records are sought; bank account holders will not be informed 
that an order for records has been issued and that records have 
been obtained.
---------------------------------------------------------------------------
    \9\ This provision is similar to language in other United States 
mutual legal assistance treaties. See, e.g., U.S.-Lithuania Mutual 
Legal Assistance Treaty, signed at Washington January 16, 1998, entered 
into force August 26, 1999, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the two Central 
Authorities in monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of the 
request. If the assistance sought is not provided, or if 
execution is delayed or postponed, the Central Authority of the 
Requested State must also explain the basis for the outcome to 
the Central Authority of the Requesting State. For example, if 
the evidence sought could not be located, the Central Authority 
of the Requested State would report that fact to the Central 
Authority of the Requesting State.

                            Article 6--Costs

    Article 6 of the Treaty reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties.\10\ 
Article 6 does oblige the Requesting State to pay fees of 
expert witnesses, translation and transcription costs, and 
allowances and expenses related to travel of persons pursuant 
to Articles 10 and 11. The delegations also agreed that the 
States could negotiate extraordinary costs which might be 
incurred in a particular case.
---------------------------------------------------------------------------
    \10\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty, 
signed at Washington February 4, 1998, entered into force May 7, 2000, 
art. 6.
---------------------------------------------------------------------------

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may request that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
If the Requested State provides such consent, the Requesting 
State must comply with any conditions specified with the 
consent. It will be recalled that Article 4(2)(d) requires the 
Requesting State to specify the purpose for which the 
information or evidence is sought.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
Paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, and only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information it provides to the Requesting State be 
kept confidential or be used only subject to specified terms 
and conditions. The delegations agreed that conditions of 
confidentiality would be imposed only when necessary, and would 
be tailored to fit the circumstances of each particular case. 
For instance, the Requested State may wish to cooperate with 
the investigation in the Requesting State but choose to limit 
access to information which might endanger the safety of an 
informant or unduly prejudice the interests of persons not 
connected in any way with the matter being investigated in the 
Requesting State. Paragraph 2 requires that if conditions of 
confidentiality are imposed, the Requesting State shall make 
``best efforts'' to comply with them. This ``best efforts'' 
language was used because the purpose of the Treaty is the 
production of evidence for use at trial, and that purpose would 
be frustrated if the Requested State could routinely permit the 
Requesting State to see valuable evidence but impose 
confidentiality restrictions which prevent the Requesting State 
from using it.
    Paragraph 3 states that nothing in Article 7 shall preclude 
the use or disclosure of information to the extent that there 
is an obligation to do so under the Constitution of the 
Requesting State in a criminal prosecution.\11\ Any such 
proposed disclosure shall be noticed by the Requesting State to 
the Requested State in advance.
---------------------------------------------------------------------------
    \11\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed to the public in accordance with 
Paragraph 1 or 2 of this Article, the Requesting State is free 
to use the evidence for any purpose. When evidence obtained 
under the Treaty has been revealed to the public in a trial, 
that information effectively becomes part of the public domain, 
and is likely to become a matter of common knowledge, perhaps 
even described in the press. Once this has occurred, it is 
practically impossible for the Central Authority of the 
Requesting State to block the use of that information by third 
parties.
    It should be noted that under Article 1(4) of the Treaty, 
the restrictions outlined in Article 7 are for the benefit of 
the two nations that are parties to the Treaty (the United 
States and Egypt) and the invocation and enforcement of these 
provisions are left entirely to the parties. Where any 
individual alleges that an authority in the Requesting State is 
seeking to use information or evidence obtained from the 
Requested State in a manner inconsistent with this article, the 
recourse would be for the person to inform the Central 
Authority of the Requested State of the allegations for 
consideration as a matter between the governments.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
shall be compelled, if necessary, to appear and testify or 
produce documents, records, or articles of evidence. The 
compulsion contemplated by this article can be accomplished by 
subpoena or any other means available under the law of the 
Requested State. The Egyptian delegation indicated that 
compulsory process is available in Egypt, as in the United 
States. There, a court issues a notice, or subpoena, to the 
appropriate person or entity. Where the receiving entity is not 
responsive to the notice, the responsible person faces fines 
and imprisonment.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that, except to the extent prohibited 
under the law of the Requested State, any interested parties, 
including the defendant and his or her counsel, shall be 
permitted to be present during the taking of testimony under 
this article. This provision was the subject of much discussion 
during the treaty negotiations, resulting in an Agreed Minute, 
signed by both delegations, setting forth their common 
understanding on its implementation. The Agreed Minute confirms 
that Egyptian laws authorize the presence of the defendant or 
his representative during the taking of related testimony and 
records the critical need for U.S. law enforcement personnel 
connected with the investigation or prosecution of an offense 
for which evidence or testimony is sought in Egypt to be 
present during the taking of such evidence or testimony. The 
Minute sets forth the Egyptian delegation's explanation that 
under Egyptian law the victim of the offense that is the 
subject of the assistance request has the right to designate a 
representative to be present during the taking of testimony or 
evidence by a state prosecutor. In this situation, the victim 
could designate any person (for example, a U.S. official) to be 
its representative.\12\ In the case of crimes such as narcotics 
offenses, where the victim was the United States as a whole 
rather than a specific individual, the Egyptian Delegation 
confirmed that the U.S. Central Authority could propose and the 
Egyptian authorities would permit a U.S. official to be present 
during the taking of such evidence or testimony in Egypt when 
such official could provide information relevant to the 
execution of the request by having him designated as an expert 
or witness with respect to the investigation. For its part, the 
United States delegation confirmed that Egyptian officials 
connected with the investigation or prosecution of an offense 
for which evidence or testimony is sought in the United States 
would be permitted to be present during the taking of such 
evidence or testimony.
---------------------------------------------------------------------------
    \12\ The Egyptian delegation indicated that its rules with regard 
to who may be present during the taking of testimony are strict and 
exclusive, and that these rules provide the ``legal qualification'' 
necessary for one to be present. Under Egyptian law, the following 
persons may be present during the taking of testimony outside of trial, 
such as at a deposition: the public prosecutor; the witness and his or 
her counsel; the victim and a representative of the victim; the person 
suspected or accused of the crime and his or her counsel; and an expert 
able to provide information relevant to the topic on which testimony is 
given.
---------------------------------------------------------------------------
    Paragraph 3 also provides that persons specified in a 
request for assistance may ``pose questions directly or 
indirectly to the person giving the testimony.'' The Egyptian 
delegation indicated that only a prosecutor, acting as a juge 
d'instruction, may pose questions to a witness. The U.S. 
delegation explained that there is a need for prosecutors and 
the defendant sometimes to pose questions during the course of 
an examination. The Egyptian delegation agreed that such 
questions could be posed through the judge, by means of a 
written list of questions or otherwise, but that the questions 
could not be asked directly.
    Paragraph 4 states that if a witness asserts a claim of 
immunity, incapacity, or privilege under the laws of the 
Requesting State, the Requested State will take the desired 
evidence and turn it over to the Requesting State along with 
notice that it was obtained over a claim of privilege. The 
applicability of the privilege can then be determined in the 
Requesting State, where the scope of the privilege and the 
legislative and policy reasons underlying the privilege are 
best understood. A similar provision appears in most of our 
recent mutual legal assistance treaties.\13\ The negotiating 
delegations agreed that the Requesting State would inform the 
Requested State of any potential privileges which might be 
raised, to the extent that they are known, when a request is 
made. It is understood that when a person asserts a claim of 
immunity, incapacity, or privilege under the laws of the 
Requested State, that claim shall be resolved in accordance 
with the law of the Requested State. This is consistent with 
Article 5(3) and ensures that no person will be compelled to 
furnish information if he has a right not to do so under the 
law of the Requested State. Thus, a witness questioned in the 
United States pursuant to a request from Egypt is guaranteed 
the right to invoke any of the testimonial privileges 
(attorney-client, inter-spousal) available in the United 
States, as well as the constitutional privilege against self-
incrimination, to the extent that it might apply in the context 
of evidence being taken for foreign proceedings.\14\ A witness 
testifying in Egypt may raise any of the similar privileges 
available under Egyptian law, including the privilege against 
self-incrimination.
---------------------------------------------------------------------------
    \13\ See, e.g., U.S.-Barbados Mutual legal Assistance Treaty, 
signed at Bridgetown February 28, 1996, and entered into force March 3, 
2000, art. 8(4).
    \14\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 5 states that evidence produced pursuant to this 
article may be authenticated by an attestation, including, in 
the case of business records, authentication using Form A 
appended to the Treaty. Thus, the provision establishes a 
procedure for authenticating records in a manner essentially 
similar to Title 18, United States Code, Section 3505. The 
paragraph also provides for certification of the absence or 
nonexistence of records, using Form B, also appended to the 
Treaty. The final sentence of the paragraph provides for the 
admissibility of authenticated documents, and the certificate 
of nonexistence, as evidence without additional foundation or 
authentication. With respect to the United States, this 
paragraph is self-executing and does not need implementing 
legislation. However, admissibility ultimately will be 
determined by the judicial authority presiding over the trial. 
Evidentiary tests other than authentication (such as relevance, 
materiality, etc.) would still have to be satisfied in each 
case.

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each State to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a governmental department 
or agency in the Requested State. The term ``government 
departments and agencies'' includes all executive, judicial, 
and legislative units of the federal, state, and local level in 
either country.\15\
---------------------------------------------------------------------------
    \15\ The Egyptian delegation indicated that even publicly available 
records should be obtained through the use of a formal treaty request, 
in order to qualify U.S. law enforcement officials to receive the 
records. The Egyptian delegation also indicated that records such as 
criminal records and records of conviction can be obtained 
administratively from the Ministry of Interior.
---------------------------------------------------------------------------
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information 
contained in government files. The undertaking under this 
provision is discretionary, and such requests may be denied in 
whole or in part. Moreover, the article states that the 
Requested State may only exercise its discretion to turn over 
such information in its files ``to the same extent and under 
the same conditions'' as it would to its own law enforcement or 
judicial authorities. It is intended that the Central Authority 
of the Requested State, in close consultation with the 
interested law enforcement authorities of that State, will 
determine that extent and what those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The U.S. delegation discussed whether this treaty could 
serve as a basis for exchange of information in tax matters. It 
was the intention of the U.S. delegation that the United States 
be able to provide assistance under the Treaty in tax matters, 
and such assistance could include tax return information when 
appropriate. The Egyptian delegation indicated that information 
could be exchanged in tax matters; accordingly, the U.S. 
delegation is satisfied that this Treaty, like most other U.S. 
mutual legal assistance treaties, is a ``convention relating to 
the exchange of tax information'' for purposes of Title 26, 
United States Code, Section 6103(k)(4), and the United States 
would have the discretion to provide tax return information to 
Egypt under this article in appropriate cases. In addition, 
cooperation in tax matters is reflected by the Convention for 
the Avoidance of Double Taxation and the Prevention of Fiscal 
Evasion with Respect to Taxes on Income entered into force 
between Egypt and the United States on December 31, 1981.
    The third paragraph states that documents provided under 
this article may be authenticated using Form C attached to the 
Treaty, and, if certified or authenticated in this manner, the 
evidence shall be admissible in evidence in the Requesting 
State. Moreover, the paragraph provides that the absence or 
nonexistence of records may, when requested, be certified using 
Form D, also appended to the Treaty. Thus, the Treaty 
establishes a procedure for authenticating official foreign 
records by certification that is consistent with Rule 902(3) of 
the Federal Rules of Evidence and Rule 44 of the Federal Rules 
of Civil Procedure.
    Paragraph 3, like Article 8(5), states that documents 
authenticated under this paragraph, as well as certificates of 
absence or nonexistence, shall be ``admissible;'' it will, of 
course, be up to the judicial authority presiding over the 
trial to determine whether the evidence should in fact be 
admitted. Evidentiary tests other than authentication (such as 
relevance or materiality) must be established in each case.

             Article 10--Testimony in the Requesting State

    Article 10 provides that, upon request, the Requested State 
shall invite witnesses who are located in its territory and 
needed in the Requesting State to travel to the Requesting 
State to testify. An appearance in the Requesting State under 
this article is not mandatory, and the invitation may be 
refused by the prospective witness. The Requesting State would 
be expected to pay the expenses of such an appearance pursuant 
to Article 6 of the Treaty. Therefore, paragraph 1 provides 
that the witness shall be informed of the extent of the 
expenses which the Requesting State will provide in a 
particular case. It is assumed that such expenses would 
normally include the costs of transportation, and room and 
board. When the witness is to appear in the United States, a 
nominal witness fee would also be provided.
    Paragraph 2 provides that the Central Authority of the 
Requesting State may, if it so chooses, determine that it will 
not subject the witness to service of process or detention or 
any restriction of personal liberty for acts committed before 
the witness left the Requested State to serve as a witness. It 
should be noted that this safe conduct is limited to acts or 
convictions which preceded the witness' departure from the 
Requested State. This provision does not prevent the 
prosecution of a person for perjury or any other crime 
committed while in the Requesting State under this article or 
at a later time.
    Paragraph 3 states that any safe conduct provided under 
this article expires seven days after the Central Authority of 
the Requesting State has notified the Central Authority of the 
Requested State that the person's presence is no longer 
required, or when the person leaves the territory of the 
Requesting State and thereafter returns to it. However, the 
Central Authority of the Requesting State may extend the safe 
conduct up to fifteen days if it determines that there is good 
cause to do so.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in the custody of another country. In 
some instances, the country involved is willing and able to 
``lend'' the witness to the United States Government, provided 
that the witness would be carefully guarded while in the United 
States and returned to the foreign country at the conclusion of 
the testimony. On occasion, the Department of Justice has been 
able to arrange for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings.\16\
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    \16\ For example, in September 1986, the U.S. Justice Department 
and the U.S. Drug Enforcement Administration arranged for four federal 
prisoners to be transported to the United Kingdom to testify for the 
Crown in Regina v. Dye, Williamson, Ells, Davies, Murphy and Millard, a 
major narcotics prosecution in ``the Old Bailey'' (Central Criminal 
Court) in London.
---------------------------------------------------------------------------
    Paragraph 1 provides an express legal basis for cooperation 
in these matters. This article is based on Article 26 of the 
U.S.-Switzerland Mutual Legal Assistance Treaty,\17\ which in 
turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters.\18\ It provides that, 
upon request, a person in custody in either State whose 
presence is requested in the other State for purposes of 
assistance under this Treaty may be transferred to that State 
if the person consents and if the Central Authorities of both 
States agree. There have also been situations in which a person 
in custody on a criminal matter has demanded permission to 
travel to another country to be present at a deposition being 
taken there in connection with the case.\19\ Article 11(1) also 
covers this situation.
---------------------------------------------------------------------------
    \17\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at 
Bern, May 25, 1973, entered into force January 23, 1977, art. 26.
    \18\ It is also consistent with Title 18, United States Code, 
Section 3508, which provides for the transfer to the United States of 
witnesses in the custody of other States whose testimony is needed at a 
federal criminal trial.
    \19\ See, also, United States v. King, 552 F.2d 833 (9th Cir. 
1976), cert. denied, 430 U.S. 966 (1977), where the defendants insisted 
on traveling to Japan to be present at the deposition of certain 
witnesses in prison there.
---------------------------------------------------------------------------
    Paragraph 2 provides express authority and the obligation 
for the receiving State to maintain such a transferred person 
in custody throughout his or her stay there, unless the sending 
State specifically authorizes release. The paragraph also 
requires the receiving State to return the person in custody to 
the sending State, as soon as circumstances permit or as 
otherwise agreed by both Central Authorities. The initial 
transfer of a prisoner under this article requires the consent 
of the person involved and of both Central Authorities, but the 
provision does not require that the prisoner consent to be 
returned to the sending State.
    In keeping with the obligation to return a person 
transferred under this article, paragraph (2)(c) expressly 
prohibits the State to whom a person is transferred from 
requiring the transferring State to initiate extradition or any 
other proceedings before the status quo is restored by the 
return of the person transferred. Finally, paragraph (2)(d) 
states that the prisoner will receive credit for time served 
while in the custody of the receiving State. This is consistent 
with United States practice in these matters.
    The article does not provide for any specific ``safe 
conduct'' for prisoners transferred under this article because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to transfer without safe 
conduct, and the requesting State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to travel.

       Article 12--Location or Identification of Persons or Items

    This Article provides that the Requesting State may seek to 
ascertain the identity or whereabouts in the Requested State of 
persons (such as witnesses, potential defendants, or experts) 
or items. This is a standard provision contained in all U.S. 
mutual legal assistance treaties. The Treaty requires only that 
the Requested State make ``best efforts'' to locate the persons 
or items sought by the Requesting State. The extent of such 
efforts will vary, of course, depending on the quality and 
extent of the information provided by the Requesting State 
concerning the suspected location and last known location.
    The obligation to locate a person or item is limited to 
persons or items which are or may be in the territory of the 
Requested State. Thus, neither the United States nor Egypt 
would be obliged to attempt to locate persons or items which 
may be in third countries. In all cases, the Requesting State 
would be expected to supply all available information about the 
last known location of any person or item sought.

                    Article 13--Service of Documents

    This article creates an obligation on the part of the 
Requested State to use its best efforts to effect the service 
of documents such as summonses, complaints, subpoenas, or other 
legal papers relating in whole or in part to a Treaty request. 
Identical provisions appear in most U.S. mutual legal 
assistance treaties.\20\
---------------------------------------------------------------------------
    \20\ U.S.-Lithuania Mutual Assistance Treaty, signed at Washington 
January 16, 1998, entered into force August 26, 1999, art. 13.
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Egypt to follow a specified 
procedure for service), or by the United States Marshal's 
Service in instances where personal service is requested.
    Paragraph 2 provides that where the documents to be served 
call for the appearance of a person in the Requesting State, 
the document must be received by the Central Authority of the 
Requested State a reasonable time before the date set for any 
such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State.

                     Article 14--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former State as evidence or for other 
purposes. United States courts can and do execute such requests 
under Title 28, United States Code, Section 1782.\21\ This 
article creates a formal framework for handling such a request 
and is similar to provisions in many other United States mutual 
legal assistance treaties.\22\
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    \21\ See, e.g., United States ex rel Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No. 84-52-M-01 (M.D.Fla., 
Orlando Div.) (search warrant issued Feb. 24).
    \22\ See, e.g., U.S.-Latvia Mutual Assistance Treaty, signed at 
Washington June 13, 1997, entered into force September 17, 1999, art. 
15.
---------------------------------------------------------------------------
    The article requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Egypt will have to be supported by 
probable cause for the search. A United States request to Egypt 
would have to satisfy the corresponding evidentiary standard 
there. The Egyptian delegation indicated that, under Egyptian 
law, an order issued by either the Egyptian court or the 
general prosecutor, depending on the case, is needed before a 
search can be performed; a court order is needed where the 
rights of private, third parties (who are not targets of the 
investigation) are involved.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered under the Treaty. 
This provision requires that, upon request, every official in 
the Requested State who has had custody of a seized item shall 
certify the identity, continuity of custody, and changes in 
condition, using Form E appended to the Treaty.
    The article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the Requesting State, thus relieving 
the Requested State of the burden, expense, and inconvenience 
of having to send its law enforcement officers to the 
Requesting State to provide authentication and chain of custody 
testimony each time the Requesting State uses evidence produced 
pursuant to this article. As in Articles 8(5) and 9(3), the 
injunction that the certificates be admissible without 
additional authentication at trial leaves the trier of fact 
free to bar use of the evidence itself, in spite of the 
certificate, if there is some other reason to do so aside from 
authenticity or chain of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred.

                      Article 15--Return of Items

    This procedural article provides that, if requested, any 
documents or items of evidence furnished under the Treaty must 
be returned to the Requested State as soon as possible. This 
requirement applies only if the Central Authority of the 
Requested State specifically requests it at the time that the 
items are delivered to the Requesting State. It is anticipated 
that unless original records or articles of significant 
intrinsic value are involved the Requested State will not 
require return, but this is a matter best left to development 
of practice.

      Article 16--Assistance in Seizure and Forfeiture Proceedings

    Article 16 is similar to Article 16 of the U.S.-Barbados 
Mutual Legal Assistance Treaty and Article 17 of the U.S.-
Latvia Mutual Legal Assistance Treaty. The first paragraph 
authorizes the Central Authority of one Party to notify the 
other of the existence in the latter's territory of proceeds or 
instrumentalities of offenses that may be forfeitable or 
otherwise subject to seizure. The term ``proceeds or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables which either were used in 
the crime or were purchased or obtained as a result of the 
crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Egypt, they could be seized in aid of a 
prosecution under Title 18, United States Code, Section 
2314,\23\ or be subject to a temporary restraining order in 
anticipation of a civil action for the return of the assets to 
the lawful owner. Proceeds of a foreign kidnaping, robbery, 
extortion, or fraud by or against a foreign bank are civilly 
and criminally forfeitable in the United States since these 
offenses are predicate offenses under U.S. money laundering 
laws.\24\ Thus, it is a violation of United States criminal law 
to launder the proceeds of these foreign fraud or theft 
offenses when such proceeds are brought into the United States.
---------------------------------------------------------------------------
    \23\ This statute makes it an offense to transpoprt money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad. Proceeds of such 
activity become subject to forfeiture pursuant to Title 18, United 
States Code, Section 981 by way of Title 18, United States Code, 
Section 1956 and Title 18, United States Code, Section 1961. The 
forfeiture statute applies.
    \24\ Title 18 United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Parties will be able and willing to 
help one another. Title 18, United States Code, Section 
981(a)(1)(B), allows for the forfeiture to the United States of 
property which represents the proceeds of ``an offense against 
a foreign nation involving the manufacture, importation, sale, 
or distribution of a controlled substance (as such term is 
defined for the purposes of the Controlled Substance Act), 
within whose jurisdiction such offense would be punishable by 
death or imprisonment for a term exceeding one year and which 
would be punishable under the laws of the United States by 
imprisonment for a term exceeding one year if such act or 
activity constituting the offense against the foreign nation 
had occurred within the jurisdiction of the United States.'' 
This is consistent with the laws in other countries, such as 
Switzerland and Canada, and there is a growing trend among 
nations toward legislation of this kind in the battle against 
narcotics trafficking. \25\ The U.S. delegation expects that 
Article 16 of the Treaty will enable this legislation to be 
even more effective.
---------------------------------------------------------------------------
    \25\ Article 5 of the United Nations Draft Convention Against 
Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which 
calls for the state parties to enact broad legislation to forfeit 
illicit drug proceeds and to assist one another in such matters. United 
Nations Draft Convention Against Illicit Traffic in Narcotic Drugs and 
Psychotropic Substances, with annex and final act, done at Vienna, 
Decmeber 20, 1988.
---------------------------------------------------------------------------
    The second paragraph of Article 16 states that the Parties 
shall assist one another to the extent permitted by their laws 
in proceedings relating to the forfeiture of the proceeds or 
instrumentalities of offenses, to restitution to crime victims, 
or to the collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested State may take immediate action to temporarily 
immobilize the assets pending further proceedings. Thus, if the 
law of the Requested State enables it to seize assets in aid of 
a proceeding in the Requesting State or to enforce a judgment 
of forfeiture levied in the Requesting State, the Treaty 
provides that the Requested State shall do so. However, the 
language of the article is carefully selected so as not to 
require either State to take any action that would exceed its 
internal legal authority. It does not, for instance, mandate 
institution of forfeiture proceedings or initiation of 
temporary immobilization in either country against property 
identified by the other if the relevant prosecuting authorities 
do not deem it proper to do so.
    The Egyptian delegation stated that its courts have the 
authority to enforce restitution orders and fines of foreign 
courts, as well as to freeze or restrain assets pursuant to a 
future foreign order of forfeiture. However, the delegation 
stated that assets may be forfeited only upon a criminal 
conviction, and Egyptian courts do not have the authority to 
order the final forfeiture of assets pursuant to a foreign 
order in the absence of an international agreement to that 
effect. The Egyptian delegation indicated that the Government 
of Egypt may freeze, or seize or restrain, assets on our 
behalf. However, it can forfeit assets only upon a criminal 
conviction, and Egyptian courts do not have the authority to 
enforce forfeiture orders of foreign courts.\26\ It should be 
noted that, although frozen assets cannot be forfeited to the 
U.S. government, such assets can be transferred to victims as 
part of restitution or paid to the U.S. government pursuant to 
fines imposed on the defendant.
---------------------------------------------------------------------------
    \26\ The Egyptian delegation indicated that a separate treaty 
providing for the recognition of foreign judgments would be needed.
---------------------------------------------------------------------------
    United States law permits the Government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred will generally reflect the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State.\27\ 
Article 16(3) is consistent with this framework, and will 
enable the transfer of forfeited assets, or the proceeds of the 
sale of such assets, to the other Party to the extent permitted 
by the respective laws of the Parties.
---------------------------------------------------------------------------
    \27\ Title 18, United States Code, Section 981(i)(1).
---------------------------------------------------------------------------

             Article 17--Compatibility with Other Treaties

    This article states that assistance and procedures provided 
by this Treaty shall not prevent assistance under any other 
applicable international agreement between the two countries. 
It also provides that the Treaty shall not be deemed to prevent 
recourse to any assistance available under the internal laws of 
either country. Finally, Article 17 preserves the ability of 
each to provide assistance pursuant to any bilateral 
arrangement, agreement or practice that may be applicable. 
Thus, the Treaty leaves the provisions of United States and 
Egyptian law on letters rogatory completely undisturbed, and 
does not alter any pre-existing agreements concerning 
investigative assistance.\28\
---------------------------------------------------------------------------
    \28\ See, e.g., the U.S.-Egypt Agreement on Procedures for Mutual 
Assistance in connection with Matters Relating to the Westinghouse 
Electric Corporation, signed at Washington November 19, 1978, entered 
into force November 29, 1978 (30 UST 3996; TIAS 9441; 1169 UNTS 328), 
and related agreements; U.S.-Egypt Agreement on Procedures for Mutual 
Assistance in Connection with Matters Relating to the General Electric 
Company, signed at Washington September 17, 1993, entered into force 
September 17, 1993, as amended November 18, 1994; U.S.-Egypt 
Arrangement for the Direct Exchange of Certain Information Regarding 
the Traffic in Narcotic Drugs, entered into force August 26, 1930 (11 
Bevans 1331); and the Agreement Regarding the Transfer of Forfeited 
Assets, signed at Cairo May 20, 1993, entered ito force May 20, 1993.
---------------------------------------------------------------------------

                        Article 18--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the Treaty more effective and 
their own efforts more efficient. This article calls upon the 
Parties to share those ideas with one another, and encourages 
them to agree on the implementation of such measures. Practical 
measures of this kind might include methods of keeping each 
other informed of the progress of investigations and cases in 
which treaty assistance was utilized. It is anticipated that 
consultations will be held on a regular basis.

      Article 19--Ratification, Entry Into Force, and Termination

    Paragraph 1 provides that the Treaty and its Appendices are 
subject to ratification and that the instruments of 
ratification shall be exchanged as soon as possible.
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 states that the Treaty shall apply to any 
request presented pursuant to it after it enters into force, 
even if the relevant acts or omissions occurred before the date 
on which the Treaty entered into force. Provisions of this kind 
are common in law enforcement agreements, and similar 
provisions are found in many recent United States' mutual legal 
assistance treaties.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination will take 
effect six months after receipt of written notification. 
Similar requirements are contained in mutual legal assistance 
treaties with other countries.
                                ------                                


 Technical Analysis of the Treaty Between the United States of America 
       and France on Mutual Legal Assistance in Criminal Matters

    On December 10, 1998, the United States signed a Treaty on 
Mutual Legal Assistance in Criminal Matters Between the United 
States of America and France (``the Treaty''). In recent years, 
the United States has signed similar treaties with a number of 
countries as part of a program to modernize the legal tools 
available to law enforcement authorities in need of foreign 
evidence for use in criminal cases.
    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, international drug trafficking, and 
other offenses.
    It is anticipated that the Treaty will be implemented in 
the United States largely pursuant to the procedural framework 
provided by Title 28, United States Code, Section 1782. France 
has a new law, effective June 23, 1999, specifically governing 
foreign assistance.
    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 
history. 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--Scope of Assistance

    Throughout the Treaty, the negotiators relied heavily on 
wording in provisions of France's mutual legal assistance 
treaties with Australia and Canada to bridge differences in the 
U.S. and French systems. That reliance is evident in the first 
paragraph of the first article, which provides for assistance 
in investigations or proceedings in respect of criminal 
offenses the punishment of which, at the time of the request 
for assistance, is a matter for the judicial authorities of the 
Requesting State.
    By this language the negotiators did not intend that an 
offense with respect to which assistance is sought be pending 
before a court; they did intend that the offense entail the 
possibility of punishment (i.e., penal sanctions) that would be 
a matter for a court and not for an administrative body. The 
Treaty is not intended to provide assistance for administrative 
or regulatory matters, except as provided otherwise in the 
Treaty, e.g., Article 11.
    For France, jurisdiction to conduct investigations lies 
with its judicial authorities. Because the United States does 
not rely on judicial authorities to conduct criminal 
investigations, the negotiators specifically agreed that the 
phrase includes, for the United States, grand jury proceedings 
and investigations undertaken by ``competent authorities.\1\ 
Then, to clarify this point, the negotiators, at Article 3, 
defined ``competent authorities.''
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    \1\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the United States, as our 
investigators and prosecutors often need to obtain evidence from 
foreign countries in order to determine whether or not to file criminal 
charges.
---------------------------------------------------------------------------
    The negotiators intended that the phrase ``proceedings in 
respect of criminal offenses'' cover proceedings not strictly 
criminal in nature. For example, Article 11 specifically 
provides for assistance with respect to proceedings to forfeit 
the proceeds of illegal drug trafficking, which may be civil in 
nature.\2\
---------------------------------------------------------------------------
    \2\ See, Title 21, United States Code, Section 881; Title 18, 
United States Code, Section 1964.
---------------------------------------------------------------------------
    Paragraph 2 excludes from coverage of this Treaty military 
offenses that are not otherwise offenses under ordinary 
criminal law and specified types of procedures regarding 
offenses (i.e., execution of requests for provisional arrest 
and extradition; enforcement of judgments except as provided at 
Article 11).
    Paragraph 3 is based on a notion that is standard in U.S. 
mutual legal assistance treaties, but differently worded in 
this Treaty. Generally, such treaties are intended solely for 
government-to-government mutual legal assistance 
cooperation.\3\ This Treaty does not change that proposition. 
The Treaty is not intended to provide to private persons in 
either State a means of evidence gathering. Private litigants 
in the United States or France may continue to obtain evidence 
from the other State by letters rogatory, an avenue of 
international assistance that the Treaty leaves undisturbed. 
Additionally, for the United States, the Treaty is not intended 
to create any right in a private person to suppress or exclude 
evidence provided pursuant to the Treaty, or to impede the 
execution of a request. Because the situation in France was 
clearly different on this point (i.e., France considered that 
the Treaty might create a private right of action to contest, 
for example, the procedure used to execute a request as 
improper implementation of the Treaty), the negotiators agreed 
on the formulation set forth in this paragraph and, to ensure 
that the U.S. position that the Treaty creates no private 
rights of action was unaltered, further agreed to an 
explanatory note. Both delegations intended and understood that 
the explanatory note would be an integral part of the Treaty. 
See Explanatory Note on the Treaty, Article 1(3).
---------------------------------------------------------------------------
    \3\ See, e.g., United States v. Johnpoll, 739 F.2d 702 (2d Cir. 
1984), cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
    Assistance under the Treaty requires no showing of ``dual 
criminality'' (i.e., proof that the facts underlying the 
offense charged in the Requesting State would also constitute 
an offense had they occurred in the Requested State) with one 
exception, set forth in Article 11(3), relating to 
immobilization of proceeds of offenses. Most U.S. mutual legal 
assistance treaties have no requirement for dual criminality. 
For France, the critical question is whether the request is 
made on behalf of a competent authority as defined in Article 
3.

                     Article 2--Central Authorities

    Paragraph 1 requires that each State designate a Central 
Authority to make and receive requests under the Treaty. The 
Attorney General or a person designated by the Attorney General 
will be the Central Authority for the United States. The 
Attorney General has delegated the authority to handle the 
duties of Central Authority under mutual assistance treaties to 
the Assistant Attorney General in charge of the Criminal 
Division.\4\ The Ministry of Justice is the Central Authority 
for France. The Central Authority of the United States would 
make all requests to France on behalf of federal agencies, 
state agencies, and local law enforcement authorities in the 
United States. The Central Authority of France would make all 
requests emanating from officials in France. The Central 
Authority for the Requesting State will exercise discretion as 
to the form and content of requests, and the number and 
priority of requests. The Central Authority of the Requested 
State is also responsible for receiving each request, 
transmitting it to the proper agency, court or other authority 
(which, in the United States, may be federal or state) for 
execution, and ensuring that a timely response is made.
---------------------------------------------------------------------------
    \4\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
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    The Central Authorities shall communicate directly with one 
another for the purposes of the Treaty. It is anticipated that 
such communication will be accomplished by telephone, 
facsimile, or any other means, at the option of the Central 
Authorities themselves.
    Paragraph 2 provides for consultations between the Central 
Authorities for the purpose of implementing the Treaty. The 
delegations anticipated that the Central Authorities would 
agree upon such practical measures as they deemed to be 
necessary to facilitate the implementation of the Treaty. The 
French delegation particularly noted that the procedures to be 
made available to the United States pursuant to Article 9 were 
substantially different from normal French procedures and the 
provision for consultations should help ensure that the 
provision was properly implemented in France.
    Paragraph 3 requires the Central Authorities to keep each 
other informed of the status of execution of requests. The 
negotiators expected that the Central Authorities would 
maintain open lines of communication that would encompass all 
aspects of the execution of requests.

                    Article 3--Competent Authorities

    This article describes the authorities upon whose behalf 
the Central Authorities of each State will make requests. For 
France, the competent authorities are judicial authorities, 
including public prosecutors. For the United States, the 
competent authorities are prosecutors and authorities with 
statutory or regulatory responsibility for investigations of 
criminal offenses, including the referral of matters to 
prosecutors for criminal prosecution.
    The delegations agreed to include a sample listing of U.S. 
competent authorities in the Explanatory Note on the Treaty 
because the U.S. system vests jurisdiction to investigate 
criminal offenses in numerous federal and state agencies and 
authorities. See Explanatory Note on the Treaty, Article 3. 
However, because the list was illustrative only, and not 
intended to be exhaustive, the delegations agreed that a 
request made by the Central Authority of the United States on 
behalf of a ``competent'' authority would be sufficient to 
establish the credentials of the authority as a ``competent 
authority.''

                    Article 4--Contents of Requests

    Paragraph 1 specifies that requests must be in writing. The 
paragraph then identifies seven categories of information that 
must be included in each request.
    Paragraph 2 allows the Requesting Party to indicate a time 
by which the assistance should be provided.
    In keeping with the intention of the Parties that requests 
be as simple and straightforward as possible, there is no 
requirement under the Treaty that a request be legalized or 
certified.

                  Article 5--Transmission of Requests

    This article specifies that the channel for transmitting 
requests and the results from execution of requests shall be 
directly between Central Authorities. The provision allows two 
variants for both sending requests and receiving results: (1) 
in urgent situations, the transmitting Central Authority may 
transmit an advance copy of the request by any means, including 
via the Interpol channel and (2) the Central Authorities may 
agree to the transmittal of results from execution through a 
different channel than the Central Authority to Central 
Authority channel.

                    Article 6--Denial of Assistance

    This article specifies the limited classes of situations in 
which assistance may be denied under the Treaty, in addition to 
those excluded under Article 1(2). The negotiators understood 
that, for the United States, decisions concerning denial of 
assistance would be made by the executive (i.e., the Central 
Authority for the United States). Although for France the 
executive likewise makes such decisions, its judiciary will 
also be able to render an independent decision regarding the 
propriety of providing assistance which, if the Central 
Authority for France disagrees, it may appeal to a higher 
court.
    Paragraph (1)(a) permits the Requested State to decline to 
execute a request if the request relates to an offense that the 
Requested State considers to be a political offense (e.g., 
espionage, treason and other actions recognized as political 
offenses under the jurisprudence developed in extradition 
cases) or related to a political offense (i.e., ordinary 
criminal acts committed for political reasons). In practice, 
France seldom denies requests on the basis that the offense 
(e.g., bank robbery) has political underpinnings. Moreover, to 
the extent that political underpinnings exist, France relies on 
proportionality to determine whether to consider the matter to 
be related to a political offense, with the notion that 
violence negates ideology.
    Paragraph (1)(b) permits the Requested State to decline to 
execute a request if to do so would prejudice the 
``sovereignty, security, public order, or other essential 
interests'' of that State. All U.S. mutual legal assistance 
treaties contain provisions allowing the Requested State to 
deny execution of a request if execution would prejudice its 
essential interests.
    The negotiators agreed that ``sovereignty'' or ``security'' 
as a basis for denying assistance includes the notion that 
providing assistance would disclose information otherwise 
classified for national security reasons. It is anticipated 
that the U.S. Department of Justice, as Central Authority for 
the United States, would work closely with the Department of 
State and other U.S. government agencies to determine whether 
to execute a request that might fall in this category.
    The negotiators further agreed that the term ``public 
order,'' while similar in consequence to sovereignty or 
security, means a ``judicial'' public order (i.e., principles 
of the state that cannot be violated). In the same vein, the 
phrase ``other essential interests'' was intended to cover 
similar equally serious interests of the Requested State. Such 
interests are not implicated where providing assistance, for 
example, causes political or public embarrassment, and the 
discretion to deny assistance would be improperly exercised for 
that reason. Rather, the Requested State must be convinced that 
execution of the request would seriously conflict with 
significant public policy. An example might be a request 
involving prosecution by the Requesting State of conduct that 
occurred in the Requested State and is constitutionally 
protected in that State.
    However, ``essential interests'' could also be invoked if 
the execution of a request would violate essential interests 
related to the fundamental purposes of the Treaty. For example, 
one fundamental purpose of the Treaty is to enhance law 
enforcement cooperation, and attaining that purpose would be 
hampered if sensitive law enforcement information available 
under the Treaty were to fall into the wrong hands. Therefore, 
the U.S. Central Authority may invoke paragraph 1(b) to decline 
to provide information pursuant to a request under this Treaty 
if it determines, after appropriate consultation with law 
enforcement, intelligence and foreign policy agencies, that a 
senior foreign government official who will have access to the 
information is engaged in a felony, including facilitation of 
the production or distribution of illegal drugs.\5\
---------------------------------------------------------------------------
    \5\ This is consistent with the Senate resolution of advice and 
consent to ratification of other recent mutual legal assistance 
treaties with, e.g., Luxembourg, Hong Kong, Poland and Barbados. See, 
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal 
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy 
Assistant Attorney General, Criminal Division, United States Department 
of Justice).
---------------------------------------------------------------------------
    The negotiators understood that, inasmuch as the 
controlling principle under the Treaty is the obligation of the 
Parties to provide assistance to each other, the exceptions are 
to be narrowly interpreted and used only if necessary. 
Moreover, to the extent that execution of a portion of a 
request warrants denial based upon its impact on sovereignty, 
security, public order, or other essential interests, the 
unaffected portion of the request is to be executed.
    Because the purpose of the Treaty is to provide assistance 
whenever possible, paragraph 2 obliges the Requested State to 
consider imposing appropriate conditions on its assistance in 
lieu of denying execution of a request outright pursuant to 
paragraph 1. For example, a State might request information 
that could be used either in a routine criminal case (which 
would be within the scope of the Treaty) or in a prosecution 
involving a political offense (which would be subject to 
refusal). This paragraph would permit the Requested State to 
provide the information on the condition that it be used only 
in the routine criminal case. The Requested State would notify 
the Requesting State of any proposed conditions before actually 
delivering the evidence in question, thereby giving the 
Requesting State a chance to indicate whether it is willing to 
accept the evidence subject to the conditions. If the 
Requesting State accepts the evidence subject to the 
conditions, it must honor the conditions.
    Paragraph 3 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the reasons for a denial of assistance. 
This ensures, first, that the Requesting State is always aware 
that a particular request has been denied and, second, is in a 
better position to make requests thereafter. To the extent that 
a request is only partly denied, the Requested State's 
explanation for not providing complete execution should also 
avoid misunderstandings.

                    Article 7--Postponing Execution

    Article 7 recognizes that prompt execution of a request 
could be difficult or impossible where such execution would 
``interfere with an ongoing criminal investigation or 
proceeding'' in the Requested State. In that situation, it may, 
after consultation between the Central Authorities, postpone 
execution, including transmission, or make execution subject to 
conditions needed to prevent interference with the Requested 
State's investigation or proceeding. If the Requesting State 
accepts the assistance subject to conditions, it must comply 
with them. The reference to postponing transmission reflects 
the negotiators'' understanding that the Central Authority of 
the Requested State may, in its discretion, take such 
preliminary action as deemed advisable to obtain or preserve 
evidence, for later transmission, that might otherwise be lost 
before the conclusion of the investigation or legal proceedings 
in that State.

                    Article 8--Execution of Requests

    Paragraph 1 provides that ``[r]equests shall be executed in 
accordance with the provisions of this Treaty and the laws of 
the Requested State.'' Thus, neither State is expected to take 
any action in execution of a request that would be expressly 
prohibited under its domestic laws. For the United States, the 
Treaty is intended to be self-executing; no new or additional 
legislation will be needed to carry out the obligations 
undertaken.
    Paragraph 2 outlines the obligations of the Requested 
State's authorities in executing requests from the Requesting 
State. The negotiators intended that the Central Authority of 
the Requested State would initiate the execution of requests. 
Upon receiving a request, that Central Authority will first 
review it and promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request satisfies the Treaty's 
requirements, paragraph 2 holds the Central Authority 
responsible for making ``all necessary arrangements'' to place 
the request before the proper agency, court, or other authority 
for execution (and ensuring that a timely response is made). 
When the United States is the Requested State, the Central 
Authority will transmit most requests to federal investigators, 
prosecutors, or judicial officials for execution.
    Sentence 2 of paragraph 2 both authorizes and requires 
administrative and judicial authorities to ``use all necessary 
measures available under the laws of the Requested State'' to 
execute a request. For the United States, this empowers its 
courts to do everything within their power to execute the 
request, including issuing subpoenas, search warrants or other 
orders necessary to execute the request. It also reflects an 
understanding that the Parties intend to provide each other 
with every available form of assistance from judicial and 
executive branches of government in the execution of mutual 
assistance requests. This provision is not intended or 
understood to authorize United States authorities to use the 
grand jury for the collection of evidence pursuant to a request 
from France. Rather, when execution of a request from France 
requires the use of compulsory process, the U.S. Department of 
Justice will use the mechanism of Title 28, United States Code, 
Section 1782 and the provisions of the Treaty, to present the 
request to a federal court in order to secure the necessary 
process. The court shall then order ``any form of assistance, 
not prohibited'' by U.S. law. This includes the issuance of 
subpoenas, search warrants, and such other orders as are 
``necessary or useful'' for execution of the request. For 
example, when France seeks the testimony or evidence of a 
witness located in the United States, a U.S. court will 
normally fulfill its Treaty responsibility by appointing a 
commissioner pursuant to Title 28, United States Code, Section 
1782 and authorizing that commissioner to issue a 
commissioner's subpoena to compel the witness to appear and 
testify and produce such documents, records, and items as 
France has requested. The language of this sentence reflects 
the understanding of the Parties that each intends to provide 
the other with every form of assistance available to the 
judicial and executive branches of government in the execution 
of requests.
    Paragraph 3 authorizes a person ``giving testimony or 
evidence'' to assert any claim of immunity, incapacity, or 
privilege available under the laws of the Requested State. Such 
claim will be resolved in the Requested State and the person 
will be required (or not) to give testimony or evidence 
accordingly. On the other hand, if the person seeks to assert a 
claim available under the laws of the Requesting State, the 
person will be required to give the testimony or evidence and 
the claim will be recorded for the record, where it will be 
preserved for resolution by the authorities of the Requesting 
State in accordance with the law of that State. The 
applicability of the privilege can then be determined in the 
Requesting State where the scope of the privilege and the 
legislative and policy reasons underlying it are best 
understood.
    The paragraph does provide for consultation between the 
Central Authorities where a witness gives advance notice of 
intention to assert a claim under the laws of the Requesting 
State. This may provide an alternative to the Central Authority 
of the Requested State by providing an opportunity in advance 
to ascertain the viability of the claim and then act 
accordingly in lieu of simply compelling a witness to give 
testimony or evidence where the witness raises a claim under 
the laws of the Requesting State.
    Paragraph 3 is similar to provisions found in numerous 
other U.S. mutual legal assistance treaties.\6\ It ensures that 
no person will be compelled to furnish testimony or evidence if 
he has a right not to do so under the law of the Requested 
State. Thus, a witness questioned in the United States pursuant 
to a request from France may invoke any testimonial privilege 
(e.g., attorney client, husband-wife) available in the United 
States, including the constitutional privilege against self-
incrimination, to the extent that it might apply in the context 
of evidence being taken for the French proceeding. Conversely, 
a witness testifying in France pursuant to a U.S. request may 
raise any of the privileges available under the laws of France.
---------------------------------------------------------------------------
    \6\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty, signed 
at Bridgetown February 28, 1996, and entered into force March 3, 2000, 
art. 8(4).
---------------------------------------------------------------------------
    Paragraph 4 specifies that a person who gives false 
testimony or evidence in the execution of a request in the 
Requested State shall be subject to prosecution or punishment 
in that State in accordance with its laws. The provision does 
not require that the person giving false testimony or evidence 
be prosecuted in the Requested State; it merely clarifies that 
the person may be subject to such prosecution. The provision 
also does not affect the ability of the Requesting State to 
prosecute in accordance with its laws. Both the United States 
and France have laws that subject a person providing false 
testimony or evidence in the execution of a treaty request to 
criminal sanction.

                     Article 9--Specific Procedures

    This article--particularly paragraphs 1 and 2--represents 
the solution to the most intractable problem facing the 
negotiators: providing a reliable Treaty mechanism that would 
enable the United States routinely to secure testimony in 
France, which testimony would thereafter be usable in a 
criminal proceeding in the United States. Because the two 
countries' systems are so procedurally different in regard to 
taking and preserving testimony, finding a meeting point was 
difficult, and the negotiators recognized that a perfect 
solution was impossible. However, the negotiators intended, and 
were confident that the text of this article permits, the 
taking of testimony in France in a manner that, in all but the 
rarest of situations, will produce testimony usable in a U.S. 
criminal proceeding.
    Paragraph 1, sentence 1, provides that, if requested, the 
Requested State shall inform the Requesting State of the dates 
and places of execution of a request.
    Paragraph 1, sentence 2, provides that ``authorities and 
persons designated by the Requesting State may be permitted to 
be present, and may assist in,'' executing the request ``if the 
Requested State consents.'' The Central Authority for France, 
together with the French judicial authority (i.e., an examining 
magistrate) taking the testimony, will normally make the 
critical determination regarding consent. Although the element 
of consent creates some uncertainty for the United States with 
respect to the presence of relevant parties at the taking of 
testimony, the subsequent sentence requires consent with 
respect to depositions, with limited exceptions: France ``shall 
permit such designated authorities and persons to be present at 
and assist in the taking of depositions . . . subject to, in 
particular, the application of Articles 6 [Denial of 
Assistance] and 7 [Postponing Execution].'' Referencing these 
articles demonstrates the narrow grounds on which the parties 
anticipated consent for participation in depositions might be 
denied since such denial or postponement is otherwise available 
independent of Article 9 and, thus, the provision institutes no 
new standard for consent. Moreover, that the negotiators 
intended for consent to be given for most depositions is 
explicitly stated in the explanatory note:
    The scope of this commitment [to accommodate requests for 
depositions in compliance with U.S. internal procedure], 
however, may be limited, notably by the application of Articles 
6 and 7 relating respectively to the denial of requests for 
legal assistance and to postponement of execution of such 
requests. This commitment does not preclude that, in certain 
cases, which in practice shall be most exceptional, the 
authority entrusted with the execution of the request may 
determine that the presence and assistance of the designated 
persons are not possible within a specific case. [Emphasis 
added.]
    See Explanatory Note on the Treaty, Article 9.
    Paragraph 2, sentence 1, specifies that the procedures 
subsequently listed shall be ``carried out insofar as they are 
not contrary to the fundamental principles of a judicial 
proceeding in the Requested State.'' The reference to 
``fundamental principles'' was considered imperative by the 
French delegation because the procedures subsequently outlined 
are novel from the French perspective. Nonetheless, the French 
delegation believed that none were in fact incompatible with 
French fundamental principles of a judicial proceeding. To 
reach a different conclusion would render France unable to 
provide any mutual legal assistance to the United States.
    Paragraph 2 continues in sentence 2 to list procedures that 
the Requested State ``shall'' provide to the Requesting State. 
Several of these procedures, especially as the negotiators 
contemplated and intended that they be implemented, are foreign 
to French practice and procedure. Subparagraph (a) provides for 
the taking of testimony from witnesses ``under oath'' and 
contemplates questioning, not under oath, of targets and 
defendants. Subparagraph (b) provides for ``confrontation'' 
between witnesses and defendants during depositions (or 
videoconferencing). Confrontation includes the possibility of 
defendants presenting questions to be asked of witnesses. 
Subparagraph (c) provides the same possibility for the 
Requesting States' authorities present during, for example, the 
confrontation. Subparagraph (d) provides for the creation of a 
record or recording of, for example, the confrontation. 
Subparagraph (e) allows for a verbatim transcript. For the 
purposes of creating a record or verbatim transcript, the 
Requesting State may request the presence of persons who are 
technicians (e.g., court reporters or stenographers, video 
technicians). The costs for the services of technicians is 
covered in Article 23.
    Because extant French procedures in the area of taking 
testimony are different from U.S. procedures and the legal 
implications of procedures currently being utilized in other 
jurisdictions are untested in France, the negotiators 
anticipated the need for substantial consultation to implement 
this article. See discussion under Article 2, paragraph 2, 
supra.
    Paragraph 3 provides, that upon request, the Requested 
State shall provide original documents or records, if possible. 
The negotiators intended that the Requested State would make 
every reasonable effort to comply with such a request. However, 
the Requested State normally will provide true copies of the 
documents or records.
    Paragraph 4 deals with evidentiary foundation requirements 
for business records. The negotiators discussed the fact that 
business records produced pursuant to this Treaty in the 
Requested State must be admissible in proceedings in the courts 
of the Requesting State for the Treaty to serve its intended 
purpose. To address this evidentiary need, the negotiators 
agreed that, upon request, the Requested State will secure 
either a certificate (such as Form A appended to the Treaty) or 
a proces-verbal (containing the same essential information as 
is contained in Form A) to accompany the business records. The 
contents of Form A are consistent with and meet the 
requirements of Title 18, United States Code, Section 3505. 
Consequently, foreign business records produced and accompanied 
by a certificate or proces-verbal produced in compliance with 
the Treaty are admissible in a criminal proceeding in the 
United States as evidence. While such evidence is admissible, 
the judicial authority presiding over the U.S. trial must 
determine whether the evidence, in fact, should be admitted. 
The negotiators intended that evidentiary tests such as 
relevance and materiality would still have to be satisfied in 
each case.

                     Article 10--Search and Seizure

    Because the purpose of a mutual legal assistance treaty is 
to enable each treaty partner to use mechanisms available under 
its domestic laws to provide assistance to the treaty partner, 
most U.S. mutual legal assistance treaties contain a provision 
authorizing the use of search warrants to execute requests.\7\ 
This Treaty is no exception. Thus, this article provides a 
framework pursuant to which U.S. courts may issue search 
warrants in execution of French requests.
---------------------------------------------------------------------------
    \7\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 15(3).
---------------------------------------------------------------------------
    Paragraph 1 provides that the Requested State ``shall 
execute a request for search, seizure, and delivery of items'' 
to the Requesting State if the request includes ``information 
justifying such search under the laws of the Requested State.'' 
This means that a French request to the United States must be 
supported by a showing of probable cause for the search. 
Likewise, a U.S. request to France would have to satisfy the 
corresponding evidentiary standard there.
    Paragraph 2 is designed to produce a record of the chain of 
custody of items seized and delivered up under the Treaty. This 
provision requires that, upon request, a competent authority 
certify the (1) identity of the item seized, (2) identity of 
every official who had custody of the item, and (3) the 
circumstances (i.e., continuity) of its custody. The competent 
authority is further required to certify any additional change 
in custody or in condition of the item seized. If properly 
prepared, the certificate or certificates from the competent 
authority in the Requested State ``shall be admissible in 
evidence in the Requesting State as proof'' of chain of custody 
and integrity of condition of an item seized pursuant to a 
request. While the certificates will be ``admissible'' without 
additional authentication, the trier of fact is free to bar use 
of the evidence itself, in spite of the certificates, if some 
reason to do so exists other than authenticity or chain of 
custody.

                    Article 11--Proceeds of Offenses

    A major goal of the Treaty is to enhance the efforts of 
both the United States and France in combating narcotics 
trafficking. One aspect of this effort is action by authorities 
of both Treaty partners to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    Paragraph 1 obligates the Parties to assist one another in 
``proceedings related to the forfeiture of proceeds or 
instrumentalities of criminal offenses.'' Such assistance may 
include locating assets (see paragraph 2), immobilizing assets 
(see paragraph 3), or executing forfeiture judgments (see 
paragraph 4).\8\
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    \8\ The paragraph does not obligate the States to initiate 
forfeiture proceedings. Nonetheless, if the assets are the proceeds of 
drug trafficking, Title 18, United States Code, Section 981(a)(1)(B), 
allows for the forfeiture to the United States of property ``which 
represents the proceeds of an offense against a foreign nation 
involving the manufacture, importation, sale, or distribution of a 
controlled substance (as such term is defined for the purposes of the 
Controlled Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a term 
exceeding one year if such act or activity had occurred within the 
jurisdiction of the United States.'' This is consistent with the laws 
in other countries, such as Switzerland and Canada; there is a growing 
trend among nations toward enacting legislation of this kind in the 
battle against narcotics trafficking. Article 5 of the United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, calls for the States that are party to enact legislation to 
forfeit illicit drug proceeds and to assist one another in such 
matters. United Nations Convention Against Illicit Traffic in Narcotic 
Drugs and Psychotropic Substances, with annex and final act, done at 
Vienna, December 20, 1988.
---------------------------------------------------------------------------
    Paragraph 2 requires the Parties to assist each other, in 
accordance with their respective laws, in locating and 
identifying proceeds and instrumentalities of offenses that are 
believed to be located in the Requested State. The Requesting 
State must articulate a basis for believing that the assets 
being sought are located in the Requested State.
    Paragraph 3 allows each State, in an exercise of its 
discretion, to assist the other, to the extent permitted by its 
laws, by immobilizing proceeds and instrumentalities where the 
request for immobilization contains ``facts that would 
constitute an offense under the laws of both States.'' This 
provision is the exception to the general principle in the 
Treaty that each State shall provide assistance to the other 
without regard to whether the matter for which assistance is 
requested is a criminal matter in the Requested State. As 
suggested by the text, the purpose of immobilization is to 
protect the asset against dissipation and ensure its 
availability for forfeiture (or restitution). For instance, if 
the assets obtained by fraud in France are located in the 
United States, U.S. authorities could act to seize them under 
Title 18, United States Code, Section 981 in aid of a 
prosecution under Title 18, United States Code, Section 
2314.\9\ U.S. authorities could also seek to secure a temporary 
restraining order in anticipation of a civil action for the 
return of the assets to the lawful owner. Proceeds of a foreign 
kidnaping, robbery, extortion or a fraud by or against a 
foreign bank are civilly and criminally forfeitable in the 
United States since these offenses are predicate offenses under 
U.S. money laundering laws.\10\ Thus, it is a violation of U.S. 
criminal law to launder the proceeds of these foreign fraud or 
theft offenses when such proceeds are brought into the United 
States.
---------------------------------------------------------------------------
    \9\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad. Proceeds of such 
activity become subject to forfeiture pursuant to Title 18, United 
States Code, Section 981 by way of Title 18, United States Code, 
Section 1956 and Title 18, United States Code, Section 1961. The 
forfeiture statute applies to property involved in transactions in 
violation of section 1956, which covers any activity constituting an 
offense defined by section 1961(1), which includes, among others, Title 
18, United States Code, Section 2314.
    \10\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    Paragraph 4 authorizes each State, in an exercise of its 
discretion, to execute final forfeiture judgments of the other 
State in accordance with the laws of the Requested State.
    Paragraph 5 further authorizes a State that executes a 
final forfeiture decision to dispose of the forfeited asset 
``in accordance with its laws.'' One possible disposition 
specifically envisioned by the negotiators is to share 
forfeited assets with the treaty partner.\11\
---------------------------------------------------------------------------
    \11\ U.S. law permits the government to transfer a share of certain 
forfeited property to other countries that participate directly or 
indirectly in the seizure or forfeiture of the property. Under 
regulations promulgated by the Attorney General, the amount transferred 
generally reflects the contribution of the foreign government in law 
enforcement activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by an 
international agreement between the United States and the foreign 
country, and be approved by the Secretary of State. See, Title 18, 
United States Code, Section 981(i)(1). Paragraph 5 is consistent with 
this framework and will enable a State having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or the 
proceeds of the sale of such assets, to the other State, at the 
former's discretion and to the extent permitted by their respective 
laws.
---------------------------------------------------------------------------

                     Article 12--Return of Evidence

    Paragraph 1 provides that any evidence furnished pursuant 
to the Treaty ``shall be retained by the Requesting State 
unless the Requested State asks at the time of transmission for 
its return.'' The negotiators believed that this practice was 
the most effective way to deal with the evidence provided, most 
of which would consist of true copies of documents that the 
Requested State would not require to be returned.
    Paragraph 2 provides a Treaty basis for the Requested State 
to protect the interests of third parties in an item 
transmitted to the Requesting State. The Requesting States, in 
order to receive such item, would be required to agree to terms 
and conditions necessary to either care for the item or secure 
third party interests in the item to be transferred. This 
article is similar to provisions in other U.S. mutual legal 
assistance treaties.\12\
---------------------------------------------------------------------------
    \12\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 15(3).
---------------------------------------------------------------------------

                        Article 13--Restitution

    This article commits the Parties to assist each other to 
the extent permitted by their respective laws to ``facilitate 
restitution.'' The negotiators agreed, first, that the assets 
to which the restitution article will apply are assets 
wrongfully taken from a victim (e.g., stolen property) and not 
the damages that a court could award for injury or the like 
caused by an offense. Second, the obligation to facilitate 
contemplated by this article does not include an obligation to 
pursue litigation on behalf of the other State to recover the 
assets. The Requested State may be able, in accordance with its 
laws, to immobilize assets. However, the Requesting State or 
the victims then have the obligation to pursue recovery.

                      Article 14--Confidentiality

    Paragraph 1 anticipates the situation in which the 
Requesting State provides information in its request that is 
either sensitive to the investigation or proceeding in the 
Requesting State, or protected against disclosure by domestic 
laws in the Requesting State, or both. For example, in order 
for the United States to provide ``a description of the nature 
of the investigation or proceeding, including the facts on 
which the request is based,'' as required by Article 4(1)(b) of 
the Treaty, the request may disclose information protected by 
Rule 6(e), Federal Rules of Criminal Procedure. This paragraph 
enables the United States to formally ask France to use ``best 
efforts'' to keep the information in the request confidential. 
If the Requested State cannot execute the request without 
disclosing the information in question (as might be the case if 
execution requires a public judicial proceeding in the 
Requested State), or if for some other reason confidentiality 
cannot be assured, the Treaty obliges the Requested State to so 
indicate, thereby giving the Requesting State an opportunity to 
withdraw the request rather than risk jeopardizing an 
investigation or proceeding by public disclosure of the 
information.
    Whereas paragraph 1 concerns information provided by the 
Requesting State in its request, paragraph 2 concerns 
information provided by the Requested State in response to a 
request.
    This paragraph envisions a situation where the Requested 
State has information to provide in execution of a request, but 
considers that information to be sensitive and would prefer to 
limit its disclosure. Because no basis for denial under Article 
6 exists, the Requested State cannot justifiably impose 
confidentiality restrictions as a precondition to production. 
However, this paragraph allows the Requested State to formally 
request that the Requesting State honor certain confidentiality 
restrictions. This ``best efforts'' language was used because 
the purpose of the Treaty is the production of evidence for use 
at trial, and that purpose would be frustrated if the Requested 
State could routinely permit the Requesting State to see 
valuable evidence, but impose confidentiality restrictions that 
prevent the Requesting State from using it.
    Article 4(1)(b) requires that the Requesting State specify 
``the purpose for which the assistance is sought'' in its 
request. Paragraph 3 of this article provides the Central 
Authority of the Requested State with the discretion to require 
that the Requesting State use the executed results provided 
under the Treaty only for the purpose specified in the request 
without the prior consent of the Requested State. Where the 
Central Authority of the Requested State imposes a subsequent 
use limitation, the Requesting State must comply with such a 
condition.
    To the extent that France does impose a subsequent use 
limitation on assistance provided, that assistance would become 
unavailable for disclosure pursuant to the Freedom of 
Information Act. A FOIA disclosure would constitute a 
disclosure for a purpose other than that for which the 
assistance was requested.
    It should be noted that under Article 1(3), the 
restrictions outlined in Article 14 are for the benefit of the 
Parties, and the invocation and enforcement of these provisions 
are left entirely to the Parties. If a person alleges that a 
French authority has used information or evidence obtained from 
the United States in a manner inconsistent with this article, 
the person can inform the Central Authority of the United 
States of the allegations for consideration as a matter between 
the Parties.
    Paragraph 4 anticipates a situation where confidentiality 
restrictions or use limitations conflict with constitutional 
obligations. To the extent such a conflict arises, the 
constitutional obligation controls. Paragraph 4 provides that 
nothing in Article 14 ``shall preclude the use or disclosure of 
information or evidence'' in a criminal proceeding to the 
extent that there is an obligation to do so, with respect to 
the United States, under its Constitution.\13\ For France, this 
extends to its Constitution and general principles of its law 
having Constitutional value. The State confronted with the need 
to make such a disclosure has an obligation ``to the extent 
possible'' to notify the other State in advance.
---------------------------------------------------------------------------
    \13\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    Paragraph 5 states that once assistance provided subject to 
conditions imposed pursuant to paragraphs 2 or 3 has been used 
for the purpose for which it was provided and, in the course of 
such use, has been made public, the Requesting State is 
thereafter free to use the assistance for any purpose.

   Article 15--Service of Procedural Documents and Judicial Decisions

    Paragraph 1 imposes an obligation on the Requested State to 
effect service of ``procedural documents and judicial 
decisions'' on parties located in that State. Similar 
provisions appear in most other U.S. mutual legal assistance 
treaties. Items to be served include summons, complaints, 
subpoenas, or other legal papers relating in whole or in part 
to a Treaty request.
    Paragraph 2 describes the method of service. When the 
United States is the Requested State, service will be made by 
registered mail (in the absence of any request by France to 
follow a specified procedure for service) or by the United 
States Marshal's Service in instances in which personal service 
is requested.
    Paragraph 3 provides for the form of proof of service. It 
also specifies that, if service cannot be effected, the 
Requested State will so notify the Requesting State and specify 
the reason.
    Paragraph 4 deals with the service of documents that call 
for the appearance of a person in the Requesting State. The 
documents to be served are to be transmitted to the Central 
Authority of the Requesting State 50 days before the date of 
the scheduled appearance. Upon request, this requirement may be 
waived for persons other than defendants.

             Article 16--Appearance in the Requesting State

    Paragraph 1 provides a formal mechanism for inviting a 
person located in the Requested State to appear elsewhere and 
transmitting the person's responses to the Requesting State. 
The invitation to appear outside the Requested State may be for 
any appropriate purpose under the Treaty. An appearance 
pursuant to such an invitation is voluntary and may be refused 
by the prospective witness.
    Paragraph 2 deals with financial arrangements for the 
person's appearance. The request must indicate the approximate 
amount of the invited person's travel and subsistence costs 
that will be reimbursed. It is assumed that such expenses would 
normally include the costs of transportation, as well as room 
and board. When the person is to appear in the United States, a 
nominal witness fee would also be provided. If the person so 
requests, the Requesting State may arrange for monetary 
advances to the traveler through the diplomatic or consular 
missions in the Requested State.
    Paragraph 3 covers the situation where a person fails to 
appear in the Requesting State after his appearance in the 
Requesting State has been ordered by means of a document served 
by authorities of the Requested State pursuant to a request. As 
the provision makes clear, the person failing to appear as a 
result of service perfected pursuant to a request cannot be 
penalized for that failure. The provision does not affect any 
applicable penalty imposed for failure to appear where service 
was perfected by other than the Treaty route.

                        Article 17--Safe Conduct

    Paragraph 1 provides a guarantee of ``safe conduct'' for a 
witness or expert whose appearance is sought in the Requesting 
State. Safe conduct means that a person appearing in the 
Requesting State pursuant to a request ``shall not be subject 
to service of process, prosecuted, detained or subjected to any 
other restriction of personal liberty'' in the Requesting State 
by reason of any acts or convictions that preceded the person's 
departure to travel to that State. It is understood that safe 
conduct would not protect a person from prosecution for perjury 
or for any other crime committed while in the Requesting State. 
Furthermore, the Central Authority of the Requesting State has 
discretion to limit the safe conduct, but must notify the 
Central Authority of the Requested State and any such 
limitation of safe conduct must be communicated to the witness 
or expert at the time that person is invited to appear. After 
receiving the invitation and notice regarding safe conduct, the 
person invited must decide whether to appear in view of the 
limited safe conduct.
    Paragraph 2 establishes a mechanism whereby a person in the 
Requested State who is charged with a criminal offense in the 
Requesting State, and is served with notice of that charge, may 
voluntarily travel to the Requesting State (1) for the sole 
purpose of resolving the matter charged (2) with immunity from 
prosecution for acts or convictions that preceded the person's 
departure from the Requested State other than those specified 
in the document served. The delegations agreed that if the 
person is convicted of the matter charged, then he may be 
incarcerated for the length of the sentence imposed as a result 
of that conviction. However, he may not be incarcerated for 
service of any other sentence.
    Paragraph 3 states that safe conduct expires if the person 
with the guarantee, being ``free to leave,'' has not left 
within a period of fifteen consecutive days after receiving 
notice that his presence is no longer required, or if the 
person leaves the territory of the Requesting State and 
thereafter returns to it.

                     Article 18--Temporary Transfer

    Sometimes in the course of a criminal investigation or 
proceeding the need arises for assistance from a person in 
custody in another country. In some instances, a foreign 
country has been willing and able to ``lend'' witnesses to the 
U.S. Government provided the witnesses would be carefully 
guarded while in the United States and returned to the foreign 
country at the conclusion of the testimony. On other occasions, 
the U.S. Justice Department has arranged for consenting federal 
inmates in the United States to be transported to foreign 
countries to assist in criminal proceedings.\14\ On a few 
occasions, a person in custody in the United States on a 
criminal matter has sought permission to travel to another 
country to be present at the deposition of a witness whose 
testimony may subsequently be introduced into evidence at the 
defendant's criminal trial in the United States.\15\ This 
article provides a formal mechanism to accomplish these 
objectives.
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    \14\ For example, in September, 1986, the U.S. Justice Department 
and the U.S. Drug Enforcement Administration arranged for four federal 
prisoners to be transported to the United Kingdom to testify for the 
Crown in Regina v. Dye, Williamson, Ells, Davies, Murphy, and Millard, 
a major narcotics prosecution in ``the Old Bailey'' (Central Criminal 
Court) in London.
    \15\ See, also, United States v. King, 552 F.2d 833 (9th Cir. 
1976), cert. denied, 430 U.S. 966 (1977), where the defendants insisted 
on traveling to Japan to be present at the deposition of certain 
witnesses in prison there.
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    Paragraph 1 authorizes either State, in an exercise of its 
discretion, to temporarily transfer a prisoner to the other 
State to ``give testimony or evidence or otherwise provide 
assistance'' in a criminal matter.
    Paragraph 2 provides that such transfer may be denied for 
the following reasons:

          (a) the person in custody does not consent;
          (b) the person's period of detention might be 
        extended as a result of the temporary transfer;
          (c) the person's presence is required in the sending 
        State for an ongoing criminal proceeding;
          (d) safety or security is a concern, or other 
        ``imperative'' concerns exist.

    The negotiators intended that this form of assistance be 
readily available if the person in custody consents, but also 
understood that the sending State may have an overriding 
interest in not permitting the temporary transfer.
    Paragraph 3 establishes the obligation and authority of the 
receiving State to maintain custody. For the United States, 
this is consistent with Title 18, United States Code, Section 
3508, which provides for the transfer of witnesses in custody 
in other States whose testimony is needed at a federal criminal 
trial.
    In keeping with the fact that a transfer under this article 
is intended to be temporary, Paragraph 4 provides that the 
receiving State shall require no proceeding to effect the 
return of the person transferred to the sending State. The 
return must occur by the date specified by the sending State, 
although that period may be extended by agreement between the 
States.
    Paragraph 5 obligates the sending State to credit the 
person temporarily transferred for time served while in the 
custody of the receiving State.
    Paragraph 6 authorizes safe conduct pursuant to Article 17.

                          Article 19--Transit

    Article 18 of this Treaty and similar articles in other 
mutual legal assistance treaties provide for persons in custody 
to be moved from State to State for purposes of mutual 
assistance. In anticipation of situations in which one State 
may need to bring persons in custody through the other on the 
way to or from third States, this article provides the legal 
framework for such transit.
    Paragraph 1 authorizes the Requested State, in an exercise 
of discretion, to permit the transit through its territory of a 
person in custody whose personal appearance has been requested 
to provide assistance in a criminal matter.
    Paragraph 2 imposes the obligation on and provides the 
authority to the State permitting transit to maintain custody 
of the person in custody during transit. The negotiators 
anticipated that the normal transit situation would involve a 
temporary stop at an international airport to change airplanes.

                      Article 20--Official Records

    Paragraph 1 obliges each State to furnish to the other 
copies of publicly available records, including documents or 
information in any form, possessed by its executive or judicial 
authorities. For the United States, this includes federal, 
state and local levels of government.
    Paragraph 2 provides that the Requested State may share 
with its Treaty partner copies of nonpublic information in 
government files. The undertaking under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, to the extent that competent authorities in the 
Requested State may gain access to such information, the 
Requested State will exercise its best efforts to provide the 
information only ``to the same extent and under the same 
conditions'' to the Requesting State. The Central Authority of 
the Requested State, in close consultation with the interested 
law enforcement authorities of that State, will determine that 
extent and those conditions.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The negotiators discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the U.S. delegation that the United States be 
able to provide assistance under the Treaty for tax offenses, 
as well as to provide information in the custody of the 
Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The U.S. delegation was 
satisfied after discussion that this Treaty, like most U.S. 
bilateral mutual legal assistance treaties is a ``convention 
relating to the exchange of tax information'' for purposes of 
Title 26, United States Code, Section 6103(k)(4), and the 
United States would have the discretion to provide tax return 
information to France under this article in appropriate cases.
    Paragraph 3 provides that official records produced 
pursuant to this article shall be certified by a competent 
authority of the Requested State and that such certification 
shall render the records admissible in evidence in the 
Requesting State. The negotiators intended that the 
certification of official records by French competent 
authorities would be consistent with Rule 902(3) and (4) of the 
Federal Rules of Evidence and Rule 44, Federal Rules of Civil 
Procedure with respect to authentication. As the provision 
states, ``no further authentication shall be necessary.'' The 
certification that self-authenticates the records is also 
intended to meet the requirements of Rule 803(8), Federal Rules 
of Evidence, with the result that the records shall be 
admissible as ``proof of the truth of the matters set forth 
therein.'' Although records properly certified in this manner 
shall be ``admissible,'' whether the records are actually 
admitted into evidence will remain within the province of the 
judicial authority presiding over the proceedings. Evidentiary 
requirements, including relevance and materiality, must be 
established in each case.

                        Article 21--Translation

    This article requires the Requesting State to provide a 
translation of the request and any supporting documents into 
the language of the Requested State.

                        Article 22--Legalization

    This article specifies that evidence transmitted pursuant 
to this Treaty, in whatever form, shall be ``exempt'' from all 
legalization formalities, except as otherwise provided in the 
Treaty. The only exceptions are provided at Articles 9(4), 
10(2), and 20(3), which the French delegation agreed to include 
to meet a major objective of the United States, that is, to 
secure evidence in a form admissible in a U.S. proceeding.

                           Article 23--Costs

    Paragraph 1 reflects the general proposition that each 
State shall bear expenses incurred within its territory in 
executing legal assistance treaty requests for the other State, 
with certain exceptions.
    Subparagraph (a) requires the Requesting State to pay for 
travel and travel-related expenses incurred for witnesses and 
experts pursuant to Articles 16 and for persons in custody 
pursuant to Articles 18 and 19.
    Subparagraph (b) requires the Requesting State to pay for 
costs of interpreters and translators. In France, such services 
are often furnished by government employees, whereas in the 
United States such services are generally retained from private 
service providers.
    Subparagraph (c) requires the Requesting State to pay for 
the costs of services provided by private parties at the 
request of the Requesting State. This includes many of the 
costs involved in taking depositions (e.g., court reporter, 
sound or video technician). As a result of the discussion with 
respect to this subparagraph, the negotiators included in the 
explanatory note a clarification that, for depositions 
requested by France in the United States, (1) the United States 
would arrange and pay for audio recordings of testimony, and 
(2) the United States would use the procedure set out in the 
note for transmitting the audio recording to France in a manner 
that would allow the testimony to be used in a French judicial 
proceeding. However, to the extent that private service 
providers became involved in the execution of a request, France 
would pay the costs. See Explanatory Note on the Treaty, 
Article 23(1).
    Subparagraph (d) requires the Requesting State to pay for 
the fees of experts needed to fulfill a request.
    Paragraph 2 provides that if it becomes apparent during the 
execution of a request that complete execution of a request 
would require expenses of an extraordinary nature, then the 
Central Authorities shall consult to determine the terms and 
conditions under which execution may continue.

 Article 24--Initiation of Criminal Proceedings in the Requested State

    This article establishes a formal mechanism whereby either 
State may refer ``information and evidence relating to criminal 
acts'' to the other for prosecutorial consideration by its 
competent authorities. The matter must appear to fall within 
the jurisdiction of both Parties.
    The obligation of the Requested State is only to consider 
initiating an investigation or prosecution ``as appropriate 
under its laws.''
    The Requested State is to inform the Requesting State of 
``any action taken'' and, where a proceeding ensues, transmit a 
copy of the decision rendered.

                      Article 25--Entry Into Force

    This article specifies that the Treaty shall enter into 
force on the first day of the second month after both Parties 
have notified each other that the procedures for entry of the 
Treaty into force have been completed in each State.
    The negotiators agreed that any request presented after 
this Treaty enters into force shall be executed pursuant to the 
Treaty even if the underlying acts or omissions occurred before 
that date.

                        Article 26--Termination

    This article provides that either State may terminate this 
Treaty via written notice to the other State through the 
diplomatic channel. Termination shall take effect six months 
after the date of receipt of written notification. Similar 
termination provisions are included in other U.S. mutual legal 
assistance treaties.
                                ------                                


 Technical Analysis of the Treaty Between the Government of the United 
States of America and the Government of the Hellenic Republic on Mutual 
                  Legal Assistance in Criminal Matters

    On May 26, 1999, the United States signed a Treaty Between 
the Government of the United States of America and the 
Government of the Hellenic Republic on Mutual Legal Assistance 
in Criminal Matters (``the Treaty'').\1\ In recent years, the 
United States has signed similar treaties with a number of 
countries as part of a highly successful effort to modernize 
the legal tools available to law enforcement authorities in 
need of foreign evidence for use in criminal cases.
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    \1\ The ``Hellenic Republic'' is hereafter referred to as 
``Greece.''
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    The Treaty is expected to be a valuable weapon for the 
United States in efforts to combat organized crime, 
transnational terrorism, international drug trafficking and 
other crimes.
    It is anticipated that the Treaty will be implemented in 
the United States largely pursuant to the procedural framework 
provided by Title 28, United States Code, Section 1782. No 
implementing legislation will be necessary to bring the Treaty 
into force in Greece. Greece will implement the treaty pursuant 
to the provisions of its international assistance law found at 
articles 458-461 of the Greek Code of Criminal Procedure. For 
Greece, the Treaty creates new law and supersedes inconsistent 
provisions in domestic legislation.
    The following technical analysis 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 history. The technical 
analysis includes a discussion of United States 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--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance ``in connection with the investigation, prosecution 
and prevention of offenses, and in proceedings related to 
criminal matters.'' The negotiators specifically agreed to 
provide Treaty assistance at any stage of a criminal matter. 
For the United States, this includes cooperation before a crime 
is committed, a grand jury investigation, a criminal trial and 
related proceedings.\2\ The term ``proceedings'' was intended 
to cover the full range of proceedings in a criminal case, 
including such matters as bail and sentencing hearings.\3\ The 
Treaty also covers any proceeding, whether labeled civil or 
administrative, which may not be criminal in nature but is 
``related to criminal matters.'' Thus, the Treaty may be 
invoked to provide assistance for an administrative inquiry by 
an agency with investigative authority for the purpose of 
determining whether to refer the matter to the Department of 
Justice for criminal prosecution, a civil forfeiture proceeding 
against instrumentalities or proceeds of crime (e.g., drug 
trafficking),\4\ or for disgorgement proceedings brought by an 
administrative agency (e.g., the Securities and Exchange 
Commission) to recover the profits from illegal practices.
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    \2\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the United States, as our 
investigators and prosecutors often need to obtain evidence from 
foreign countries in order to determine whether or not to file criminal 
charges. This obligation is a reciprocal one; the United States must 
assist Greece under the Treaty in connection with investigations prior 
to charges being filed in Greece.
    \3\ One U.S. court has interpreted Title 28, United States Code, 
Section 1782, as permitting the execution of a request for assistance 
from a foreign country only if the evidence sought is for use in 
proceedings before an adjudicatory ``tribunal'' in the foreign country. 
In Re Letters Rogatory Issued by the Director of Inspection of the 
Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. Blumenthal, 
620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary obstacle to 
the execution of requests concerning matters at the investigatory 
stage, or customarily handled by administrative officials in the 
Requesting State. Since this paragraph of the Treaty specifically 
permits requests to be made in connection with matters not within the 
jurisdiction of an adjudicatory ``tribunal'' in the Requesting State, 
this paragraph accords the courts broader authority to execute requests 
than does Title 28, United States Code, Section 1782, as interpreted in 
the India and Fonseca cases.
    \4\ See, Title 21, United States Code, Section 881; Title 18, 
United States Code, Section 1964.
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    Paragraph 2 lists the types of assistance that were 
specifically considered by the negotiators. Most of the items 
are described in greater detail in subsequent articles. The 
list is not exhaustive, as is indicated by the language 
``assistance will include'' in the paragraph's opening clause 
and is reinforced by the final subparagraph indicating that the 
Treaty covers ``any other form of assistance not prohibited by 
the laws of the Requested State.''
    Paragraph 3 makes it clear that there is no requirement of 
dual criminality for cooperation under this Treaty. Thus, 
assistance is to be provided even when the criminal matter 
under investigation in the Requesting State would not be a 
crime in the Requested State. Nevertheless, the negotiators 
discussed the offenses for which dual criminality exists and 
concluded that it exists for all major U.S. crimes.\5\
---------------------------------------------------------------------------
    \5\ For example, both the United States and Greece criminalize 
terrorism, narcotics offenses, money laundering, fraud, organized 
crime, tax violations, securities violations, antitrust violations, and 
environmental crimes.
---------------------------------------------------------------------------
    Paragraph 4 contains a standard provision in U.S. mutual 
legal assistance treaties \6\ stating that the Treaty is 
intended solely for government-to-government mutual legal 
assistance and not intended to provide private persons a means 
of evidence gathering or to extend generally to civil matters. 
Private litigants in the United States may continue to seek 
evidence from Greece by letters rogatory, an avenue of 
international assistance that the Treaty leaves undisturbed. 
Further, the paragraph provides that the Treaty is not intended 
to create any right in a private person to suppress or exclude 
evidence provided pursuant to the Treaty, or to impede the 
execution of a request.
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    \6\ See, United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
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                      Article 2--Central Authority

    Paragraph 1 requires that each Party \7\ designate a 
``Central Authority'' to implement the provisions of the 
Treaty, including making and receiving requests. The Central 
Authority of the United States would make all requests to 
Greece on behalf of federal agencies, state agencies, and local 
law enforcement authorities in the United States. The Central 
Authority of Greece would make all requests emanating from 
prosecutors and investigating magistrates in Greece.
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    \7\ The terms ``Party'' and ``State'' are used interchangeably in 
the Treaty and have the same meaning.
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    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the proper agency, court, or other 
authority (which, in the United States may be federal or state) 
for execution, and ensuring that a timely response is made.
    Paragraph 2 states that the Central Authority for the 
United States is the Attorney General or a person designated by 
the Attorney General. The Attorney General has delegated the 
authority to handle the duties of Central Authority under 
mutual legal assistance treaties to the Assistant Attorney 
General in charge of the Criminal Division.\8\ For Greece, the 
Ministry of Justice or a person designated by the Minister of 
Justice will be the Central Authority.\9\
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    \8\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorney General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
    \9\ Under Greek law, the Minister of Justice is responsible for 
international legal assistance. Greek Code of Criminal Procedure, art. 
458.
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    Paragraph 3 provides that the Central Authorities will 
communicate directly with each other for the purposes of the 
treaty. It is anticipated that such communication will be 
accomplished by telephone, facsimile or any other means agreed 
to by the Central Authorities.

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty. These 
restrictions are similar to those found in other mutual legal 
assistance treaties.
    Paragraph (1)(a) permits the denial of a request if 
execution of the request relates to an offense that is 
considered by the Requested State to be a political offense or 
an offense under military law that would not be an offense 
under ordinary criminal law.
    Paragraph (1)(b) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or similar essential interests of 
that State. All United States mutual legal assistance treaties 
contain provisions allowing the Requested State to decline to 
execute a request if execution would prejudice its essential 
interests.
    The delegations agreed that the phrase ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the U.S. Department of Justice, as 
Central Authority for the United States, will work closely with 
the Department of State and other government agencies to 
determine whether to execute a request that might fall in this 
category.
    The phrase ``similar essential interests'' was intended to 
narrowly limit the class of cases in which assistance may be 
denied. It would not be enough that the Requesting State's case 
is one that would be inconsistent with public policy had it 
been brought in the Requested State. Rather, the Requested 
State must be convinced that execution of the request would 
seriously conflict with significant public policy. An example 
might be a request involving prosecution by the Requesting 
State of conduct that occurred in the Requested State and is 
constitutionally protected in that State.
    ``Similar essential interests'' could also be invoked if 
the execution of a request would violate essential interests 
related to the fundamental purposes of the Treaty. For example, 
one fundamental purpose of the Treaty is to enhance law 
enforcement cooperation, and attaining that purpose would be 
hampered if sensitive law enforcement information available 
under the Treaty were to fall into the wrong hands. Therefore, 
the U.S. Central Authority may invoke paragraph 1(b) to decline 
to provide information pursuant to a request under this Treaty 
if it determines, after appropriate consultation with law 
enforcement, intelligence, and foreign policy agencies, that a 
senior foreign government official who will have access to the 
information is engaged in a felony, including facilitation of 
the production or distribution of illegal drugs.\10\
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    \10\ This is consistent with the Senate resolution of advice and 
consent to ratification of other recent mutual legal assistance 
treaties with e.g., Luxembourg, Hong Kong, Poland and Barbados. See 
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal 
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy 
Assistant Attorney General, Criminal Division, United States Department 
of Justice).
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    Paragraph (1)(d) permits a request to be denied if it is 
not made in conformity with the Treaty.
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty,\11\ and obligates 
the Requested State to consider imposing appropriate conditions 
on its assistance in lieu of denying a request outright 
pursuant to the first paragraph of the article. For example, a 
State might request information that could be used either in a 
routine criminal case (which would be within the scope of the 
Treaty) or in a prosecution of a political offense (which would 
be subject to refusal). This paragraph would permit the 
Requested State to provide the information on the condition 
that it be used only in the routine criminal case. It is 
contemplated that the Requested State will notify the 
Requesting State of any proposed conditions before actually 
delivering the evidence in question, thereby giving the 
Requesting State a chance to indicate whether it is willing to 
accept the evidence subject to the conditions. If the 
Requesting State accepts the evidence subject to the 
conditions, it must honor the conditions.
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    \11\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at 
Bern May 25, 1973, entered into force January 23, 1977, art. 26, 27 
U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
    Paragraph 3 requires the Central Authority of the Requested 
State to promptly notify the Central Authority of the 
Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all the assistance sought. This should avoid misunderstandings 
and enable the Requesting State to better prepare future 
requests.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that Treaty requests be in writing. 
This provision is consistent with Greek law, which requires 
assistance requests to leave a written trace or imprint. In 
cases of urgency, requests may be transmitted by the most rapid 
means available, including facsimile or cable, but verbal 
requests will not be accepted. Cases of ``urgency'' may 
include, for example, an effort to impede the imminent transfer 
of illegal proceeds from the Requested State to a third state. 
If necessary, the emergency request is to be confirmed within 
20 days. A request will be in the language of the Requested 
State unless otherwise agreed. This language contemplates the 
acceptance of a request in the language of the Requesting State 
under some circumstances, for example, in a case of urgency.
    Paragraphs 2 and 3 are similar to provisions in other 
United States mutual legal assistance treaties specifying the 
contents of a request. Paragraph 2 identifies four categories 
of information that must be included in each request deemed 
crucial to the efficient operation of the Treaty. Paragraph 3 
describes eight other categories of information that are 
important but not always crucial and therefore must be provided 
``[t]o the extent necessary and possible.''
    In keeping with the intention of the Parties that requests 
pass between the Central Authorities with as little 
administrative formality as possible, the Treaty contains no 
requirement that a request be legalized or certified.

                    Article 5--Execution of Requests

    Paragraph 1 requires the Parties to promptly execute 
requests. The negotiators intended that the Central Authority, 
upon receiving a request, will first review the request, then 
promptly notify the Central Authority of the Requesting State 
if the request does not appear to comply with the Treaty's 
terms. If the request does satisfy the Treaty's requirements 
and the assistance sought can be provided by the Central 
Authority itself, the request will be fulfilled immediately. If 
the request meets the Treaty's requirements but its execution 
requires action by some other entity in the Requested State, 
the Central Authority will promptly transmit the request to the 
correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the competent 
authorities to do everything within their power to execute the 
request. This provision is not intended or understood to 
authorize the use of the grand jury in the United States for 
the collection of evidence pursuant to a request from Greece. 
Rather, it is anticipated that when a request from Greece 
requires compulsory process for execution, the U.S. Department 
of Justice will ask a federal court to issue the necessary 
process under Title 28, United States Code, Section 1782, and 
the provisions of the Treaty.
    The third sentence in Article 5(1) reads ``[t]he competent 
judicial or other authorities of the Requested State shall have 
power to issue subpoenas, search warrants, or other orders 
necessary to execute the request.'' This language specifically 
authorizes U.S. courts to use all of their powers to issue 
subpoenas and other process to satisfy a request under the 
Treaty. It also reflects an understanding that the Parties 
intend to provide each other with every available form of 
assistance from judicial and executive branches of government 
in the execution of mutual assistance requests.
    Paragraph 2 states that the Central Authority of the 
Requested State will make all necessary arrangements for the 
execution of a request for assistance on behalf of the 
Requesting State. Thus, it is understood that if execution of 
the request entails action by a judicial authority or 
administrative agency, the Central Authority of the Requested 
State shall arrange for the presentation of the request to that 
court or agency at no cost to the Requesting State.
    Paragraph 3 provides that ``[r]equests shall be executed 
according to the internal laws and procedures of the Requested 
State except to the extent that this Treaty provides 
otherwise.'' For both the United States and Greece, the Treaty 
is intended to be self-executing; no new or additional 
legislation will be needed to carry out the obligations 
undertaken. In both countries, the Treaty supersedes prior, 
inconsistent domestic legislation.
    The same paragraph requires that ``[p]rocedures specified 
in the request shall be followed except to the extent that 
those procedures cannot lawfully be followed by the Requested 
State.'' This provision is necessary for two reasons. First, 
there are significant differences between the procedures that 
must be followed by U.S. and Greek authorities in collecting 
evidence in order to assure the admissibility of that evidence 
at trial. Second, the evidence in question could be needed for 
forensic examination, and sometimes the procedures that must be 
followed to enhance the scientific accuracy of such tests do 
not coincide with those utilized in assembling evidence for 
admission into evidence at trial. The value of such forensic 
examinations could be significantly lessened--and the 
Requesting State's investigation could be retarded--if the 
Requested State were to insist unnecessarily on handling the 
evidence in a manner usually reserved for evidence to be 
presented to its own courts. Nevertheless, in instances in 
which neither the Treaty nor the request specify a particular 
procedure, the Treaty provides that the request shall be 
executed pursuant to the procedures and laws applicable to 
criminal investigations or proceedings in the Requested State.
    Paragraph 4 provides that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ``ongoing criminal investigation, prosecution, or 
proceeding'' in the Requested State. This language does not 
contemplate delay as a result of an administrative or civil 
proceeding or a closed criminal matter in the Requested State. 
The Central Authority of the Requested State may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence that might otherwise be lost or 
destroyed before the conclusion of the investigation or legal 
proceedings in that state. The paragraph also permits the 
Requested State to provide the assistance to the Requesting 
State subject to conditions needed to prevent interference with 
the Requested State's investigation or proceedings.
    It is anticipated that some U.S. requests for assistance 
may contain information that under our law must be kept 
confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation, 
prosecution, or proceeding'' as required by Article 4(2)(b). 
Therefore, paragraph 5 enables the Requesting State to call 
upon the Requested State to use its best efforts to keep the 
information in the request confidential.\12\ If the Requested 
State cannot execute the request without disclosing the 
information in question (as might be the case if execution 
requires a public judicial proceeding in the Requested State), 
or if for some other reason this confidentiality cannot be 
assured, the Treaty obliges the Requested State to so indicate, 
thereby giving the Requesting State an opportunity to withdraw 
the request rather than risk jeopardizing an investigation or 
proceeding by public disclosure of the information.
---------------------------------------------------------------------------
    \12\ This provision is similar to language in other mutual legal 
assistance treaties. See, e.g., U.S.-Lithuania Mutual Legal Assistance 
Treaty, signed at Washington January 16, 1998, entered into force 
August 26, 1999, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Central Authority of the Requesting State concerning progress 
in execution of its request. This is to encourage open 
communication between the Central Authorities in monitoring the 
status of specific requests.
    Paragraph 7 obligates the Central Authority of the 
Requested State to notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each state shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other U.S. mutual legal assistance treaties.\13\ Article 6 does 
assume that the Requesting State will pay fees of expert 
witnesses, translation, interpretation and transcription costs, 
and allowances and expenses related to travel of persons 
pursuant to Articles 10 and 11. During the negotiations, it was 
discussed and agreed that this provision also obligates the 
Requested State to assume the costs of representation. Since 
the cost of retaining counsel abroad to present and process 
letters rogatory is sometimes quite high, this provision for 
reciprocal legal representation is a significant advance in 
international legal cooperation between the United States and 
Greece. It is also understood that should the Requesting State 
choose to hire private counsel for a particular request, it is 
free to do so at its own expense.
---------------------------------------------------------------------------
    \13\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty, 
signed at Washington February 4, 1998, entered into force May 7, 2000, 
art. 6.
---------------------------------------------------------------------------

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that the Requesting State not use 
any information or evidence provided under the Treaty in any 
investigation, prosecution, or proceeding other than that 
described in the request without the prior consent of the 
Central Authority of the Requested State. If such a use 
limitation is required, the Requesting State must comply with 
the requirement. It is noted that Article 4(2)(d) states that 
the Requesting State must specify the purpose for which the 
information or evidence is sought.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 permits the Central Authority of the Requested 
State to request that specific information or evidence 
furnished to the Requesting State be kept confidential or be 
used subject to specified conditions. Conditions of 
confidentiality would be imposed only when necessary and would 
be tailored to fit the circumstances of each particular case. 
For instance, the Requested State may wish to cooperate with 
the investigation in the Requesting State but choose to limit 
access to information that might endanger the safety of an 
informant or unduly prejudice the interests of persons not 
connected in any way with the matter being investigated in the 
Requesting State. This paragraph requires that if the 
Requesting State accepts conditions of confidentiality, it 
shall make ``best efforts'' to comply with them. This ``best 
efforts'' language was used because the purpose of the Treaty 
is the production of evidence for use at trial, and that 
purpose would be frustrated if the Requested State could 
routinely permit the Requesting State to see valuable evidence, 
but impose confidentiality restrictions that prevent the 
Requesting State from using it.
    Paragraph 3 provides that Article 7 will not hamper the use 
or disclosure in a criminal prosecution of information or 
evidence obtained pursuant to the Treaty, to the extent that 
there is an obligation to make such disclosure under the 
Constitution of the Requesting State.\14\ Nothing in this 
Treaty would preclude such disclosure. The paragraph requires 
the Requesting State to notify the Requested State prior to 
making such use or disclosure.
---------------------------------------------------------------------------
    \14\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    Paragraph 4 provides that information or evidence made 
public in the Requesting State in accordance with paragraph 1 
or 2 may, thereafter, be used for any purpose. Once evidence 
obtained under the Treaty has been revealed to the public in a 
trial, that information effectively becomes part of the public 
domain, and is likely to become a matter of common knowledge, 
perhaps even be described in the press. The negotiators noted 
that once this has occurred, it is practically impossible for 
the Central Authority of the Requesting State to control the 
use of that information by third parties.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or give statements or 
produce items, including documents and records and articles of 
evidence. The compulsion contemplated by this article can be 
accomplished by subpoena or any other means available under the 
law of the Requested State.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 states that the Requested State shall permit 
the presence of such persons as specified in the request during 
the execution of the request and shall allow such persons to 
question the person giving testimony or producing evidence. 
This provision is the result of extensive discussion and 
careful negotiation because it is inconsistent with Greece's 
usual practice regarding the taking of witness testimony. The 
provision is intended to accommodate the confrontation clause 
of the U.S. Constitution's Sixth Amendment and is a standard 
provision in other mutual legal assistance treaties. For 
Greece, however, this provision is inconsistent with domestic 
law and with its other international obligations since Greece 
has taken reservations in all other international treaties and 
conventions that contain provisions similar to Article 8(3). 
This Treaty will supersede inconsistent domestic Greek law and 
create new law with regard to Greece's assistance to the United 
States. For this reason, and in order to provide guidance to 
Greek authorities executing U.S. requests for deposition 
testimony in Greece, Article 8(3) provides a list of persons 
specifically authorized by law to be present and to question 
witnesses.\15\
---------------------------------------------------------------------------
    \15\ While the list of persons authorized to be present and/or 
participate in the taking of testimony describes general categories of 
people, the delegations agreed that the Parties would use their best 
efforts to limit the number of participants to those persons who are 
absolutely indispensable to the proceeding, in an effort to maintain 
the decorum of that proceeding.
---------------------------------------------------------------------------
    Subparagraph 3(a) authorizes the participation of ``two 
representatives of the Requesting State.'' This clause would 
allow the participation of officials who will represent the 
Requesting State, including law enforcement and/or diplomatic 
agents.
    Subparagraph 3(b) authorizes the participation of ``all 
parties to the criminal proceeding that is the basis for the 
request.'' The term ``parties'' refers to the defense and the 
prosecution and in particular the presence of the defendant in 
the taking of deposition testimony.
    Subparagraph 3(c) authorizes the participation of the 
attorneys for the parties. This includes the attorney(s) for 
the defendant and those for the prosecution. Since the 
prosecution is also a ``party'' under subparagraph 3(b), this 
provision would allow the participation of another prosecution 
attorney.
    Subparagraph 3(d) authorizes the participation of support 
personnel necessary to the proceeding. These include, but are 
not limited to, court reporters or other transcribers of the 
testimony, interpreters (as many as may be necessary), and 
guards (if the defendant is in custody).
    Paragraph 4 states that if a witness asserts a claim of 
immunity, incapacity, or privilege under the laws of the 
Requesting State, the Requested State may take the evidence and 
turn it over to the Requesting State along with notice that it 
was obtained over a claim of privilege. The applicability of 
the privilege can then be determined in the Requesting State, 
where the scope of the privilege and the legislative and policy 
reasons underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties.\15\ It is understood that when a person asserts a 
claim of immunity, incapacity, or privilege under the laws of 
the Requested State, that claim shall be resolved in accordance 
with the law of the Requested State. This is consistent with 
Article 5(3) and ensures that no person will be compelled to 
furnish information if he has a right not to do so under the 
law of the Requested State. Thus, a witness questioned in the 
United States pursuant to a request from Greece is guaranteed 
the right to invoke any of the testimonial privileges (e.g., 
attorney-client, inter-spousal) available in the United States 
as well as the constitutional privilege against self-
incrimination, to the extent that it might apply in the context 
of evidence being taken for foreign proceedings.\17\ A witness 
testifying in Greece may raise any of the similar privileges 
available under the law of Greece.
---------------------------------------------------------------------------
    \16\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty, 
signed at Bridgetown February 28, 1996 and entered into force March 3, 
2000, art. 8(4).
    \17\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 5 contains authentication and certification 
requirements for evidence furnished to the United States by 
Greece. This paragraph specifies that information or evidence 
provided pursuant to Article 8 (business records) shall be 
authenticated or certified using Form A. Thus, the provision 
establishes a procedure for authenticating business records in 
a manner essentially similar to Title 18, United States Code, 
Section 3505. The absence or nonexistence of a business record 
may be certified on Form B. Paragraph 1(c) states that evidence 
authenticated or certified by Forms A or B shall be admissible 
in evidence in the Requesting State.\18\
---------------------------------------------------------------------------
    \18\ Article 8(5) provides that the evidence authenticated by Form 
A or Form B certifying the absence or nonexistence of such records 
shall be ``admissible'' but, of course, it will be up to the judicial 
authority presiding over the trial to determine whether the evidence 
should, in fact, be admitted. The negotiators intended that evidentiary 
tests other than authentication (such as relevance and materiality) 
would still have to be satisfied in each case.
---------------------------------------------------------------------------

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each State to furnish to the other 
copies of publicly available records, including documents or 
information in any form, in the possession of government 
departments and agencies in the Requested State. The term 
``government departments and agencies'' includes all executive, 
judicial and legislative units of the federal, state and local 
level in each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The obligation under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would disclose such information to its own law enforcement 
or judicial authorities. It is intended that the Central 
Authority of the Requested State, in close consultation with 
the interested law enforcement authorities of that State, will 
determine that extent and what those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State but that, justifiably, would be 
deemed inappropriate to release to a foreign government. For 
example, assistance might be deemed inappropriate where the 
information requested would identify or endanger an informant, 
prejudice sources of information needed in future 
investigations, or reveal information that was given to the 
Requested State in return for a promise that it not be 
divulged. Of course, a request could be denied under this 
clause if the Requested State's law bars disclosure of the 
information.
    The delegations discussed whether tax offenses would be 
covered by this treaty and concluded that assistance would be 
available for such matters. It was the intention of the U.S. 
delegation that the United States be able to provide assistance 
under the Treaty for tax offenses, as well as to provide 
information in the custody of the Internal Revenue Service for 
both tax offenses and non-tax offenses under circumstances 
where such information would be available to U.S. law 
enforcement authorities. The U.S. delegation was satisfied 
after discussion that this Treaty, like most other U.S. mutual 
legal assistance treaties, is a ``convention for the exchange 
of tax information'' for purposes of Title 26, United States 
Code, Section 6103(k)(4), and the United States would have the 
discretion to provide tax return information to Greece under 
this article in appropriate cases.
    Paragraph 3 states that, upon request, the records which 
are produced pursuant to this article shall be authenticated 
under the provisions of the Convention Abolishing the 
Requirement of Legalisation for Foreign Public Documents, of 
October 5, 1961, (the Hague Convention) or by an official 
responsible for maintaining them through the use of Form C 
appended to the Treaty. Thus, the Treaty establishes a 
procedure for authenticating official foreign documents that is 
consistent with Rule 902(3) and (4) of the Federal Rules of 
Evidence and Rule 44, Federal Rules of Civil Procedure. The 
absence or nonexistence of such records shall, upon request, be 
certified by an official responsible for maintaining similar 
records through the use of Form D appended to the Treaty. The 
paragraph states that no additional authentication will be 
necessary and the records authenticated under this paragraph or 
Form C, or Form D certifying the absence or nonexistence of 
such records, shall be admissible in evidence in the Requesting 
State.\19\
---------------------------------------------------------------------------
    \19\ Like Article 8(5), the records authenticated and certified 
under Article 9(3) are ``admissible'' but the judicial authority 
presiding over the trial still must consider other evidentiary tests 
(such as relevance and materiality) to determine whether the evidence 
should be admitted.
---------------------------------------------------------------------------

         Article 10--Appearances Outside of the Requested State

    Paragraph 1 of this article provides that, upon request, 
the Requested State shall invite a person located in its 
territory to travel and appear outside the Requested State and 
that the Central Authority of the Requested State shall 
promptly inform the Central Authority of the Requesting State 
of the invitee's response. The intention is to establish a 
formal mechanism for inviting, but not compelling, an 
appearance outside the Requested State; the invitation may be 
refused by the prospective witness. Typically, when the United 
States is the Requesting State, it seeks the appearance of a 
person in Greece before a grand jury or trial in the United 
States, and it is anticipated that the United States will make 
such traditional use of this language. However, this text is 
written to permit an invitation to appear at any location, 
including a location in a third State, to provide assistance 
under the treaty.
    The Requesting State would be expected to pay the expenses 
of such an appearance pursuant to Article 6. Therefore, 
paragraph 2 requires that the Requesting State indicate the 
extent to which the person's expenses will be paid. It also 
permits the person who agrees to appear to request advance 
payment of the expenses and allows the Requesting State to pay 
such expenses through its embassy or consulate. It is 
anticipated that such expenses would normally include the costs 
of transportation, room and board. When the person is to appear 
in the United States, a nominal witness fee would also be 
provided.
    Paragraph 3 protects the individual who appears in the 
Requesting State from service of process, detention, or any 
restrictions of personal liberty, by reason of any acts or 
convictions that preceded the person's departure from the 
Requested State. The mandatory safe conduct provision in this 
article is consistent with Greek practice and similar language 
appears in other U.S. treaties of this kind.\20\ It is 
understood that this provision would not prevent the 
prosecution of a person for perjury or any other crime 
committed while in the Requesting State pursuant to this 
article or at a later time.
---------------------------------------------------------------------------
    \20\ See, e.g., U.S.-Switzerland Mutual Legal Assistance Treaty, 
signed at Bern May 25, 1973, entered into force January 23, 1977, art. 
27, 27 U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61; U.S.-Netherlands 
Mutual Legal Assistance Treaty, signed at the Hague June 12, 1981, 
entered into force September 15, 1983, art. 9, TIAS No. 10734, 1359 
UNTS 209; U.S.-Italy Mutual Legal Assistance Treaty, signed at Rome 
November 9, 1982, entered into force November 13, 1985, art. 17.
---------------------------------------------------------------------------
    Paragraph 4 states that the safe conduct guaranteed in this 
article expires seven days after the Central Authority of the 
Requesting State has notified the Central Authority of the 
Requested State that the person's presence is no longer 
required, or if the person leaves the territory of the 
Requesting State and, thereafter, returns to it voluntarily. 
However, the Central Authority of the Requesting State may 
extend the safe conduct up to 15 days if it determines that 
there is good cause to do so.

               Article 11--Transfer of Persons in Custody

    In criminal cases, a need sometimes arises for the 
testimony in one country of a witness in custody in another 
country. In some instances, a foreign country has been willing 
and able to ``lend'' witnesses to the U.S. Government provided 
the witnesses would be carefully guarded while in the United 
States and returned to the foreign country at the conclusion of 
the testimony. On other occasions, the U.S. Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings.\21\
---------------------------------------------------------------------------
    \21\ For example, in September, 1986, the U.S. Justice Department 
and the U.S. Drug Enforcement Administration arranged for four federal 
prisoners to be transported to the United Kingdom to testify for the 
Crown in Regina v. Dye, Williamson, Ells, Davies, Murphy, and Millard, 
a major narcotics prosecution in ``the Old Bailey'' (Central Criminal 
Court) in London.
---------------------------------------------------------------------------
    Article 11 provides an express legal basis for cooperation 
in these matters. Paragraph 1 provides that persons in custody 
in the Requested State whose presence outside of that State 
(i.e., to the Requesting State or to a third state) is sought 
for purposes of assistance under this Treaty, such as 
testifying in a criminal prosecution, shall be transferred in 
custody for that purpose if the person consents and the Central 
Authorities of both states agree.
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State 
for that purpose if the person consents and if the Central 
Authorities of both States agree. This would also cover 
situations in which a person in custody in the United States on 
a criminal matter has sought permission to travel to another 
country to be present at a deposition being taken there in 
connection with the case.\22\
---------------------------------------------------------------------------
    \22\ See, also, United States v. King, 552 F.2d 833 (9th Cir. 
1976), cert. denied, 430 U.S. 966 (1977), where the defendants insisted 
on traveling to Japan to be present at the deposition of certain 
witnesses in prison there.
---------------------------------------------------------------------------
    Paragraph 3 provides express authority, and the obligation, 
for the receiving State to keep such a person in custody 
throughout the person's stay there, unless the sending State 
specifically authorizes release. This paragraph also authorizes 
and obligates the receiving State to return the person in 
custody to the sending State as soon as circumstances permit or 
as otherwise agreed. The initial transfer of a prisoner under 
this article requires the consent of the person involved and of 
both Central Authorities, but the provision does not require 
that the person consent to be returned to the sending State.
    In keeping with the obligation to return a person 
transferred under this article, paragraph (3)(c) explicitly 
prohibits the State to whom a person is transferred from 
requiring the transferring State to initiate extradition or any 
other proceedings before the status quo is restored by the 
return of the person transferred. Paragraph (3)(d) states that 
the person is to receive credit for time served while in the 
custody of the receiving State. This is consistent with United 
States practice in these matters.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the receiving state is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred. The language makes clear 
that such transfers are discretionary.
    Greece currently has the ability to transfer persons in 
custody to another country or to hold such persons if 
transferred to it. The United States has similar authority to 
maintain the custody of persons transferred to the United 
States whose testimony is needed at a federal criminal 
trial.\23\ Article 11(3)(a) creates further, explicit authority 
for transfer and for maintaining such custody.
---------------------------------------------------------------------------
    \23\ See, Title 18 United States Code, Section 3508.
---------------------------------------------------------------------------

               Article 12--Transit of Persons in Custody

    Article 11 contemplates that persons in custody may be 
moved from State to State for purposes of mutual assistance, 
and it is reasonable to anticipate situations in which one 
State may need to bring persons in custody through the other on 
the way to or from third States. Article 12 provides the legal 
framework for such transit. A similar article appears in other 
recent U.S. mutual legal assistance treaties.\24\
---------------------------------------------------------------------------
    \24\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 11.  /
---------------------------------------------------------------------------
    Paragraph 1 states that a Requested State may authorize the 
transit through its territory of a person whose personal 
appearance has been requested by the Requesting State in an 
investigation, prosecution, or proceeding. Paragraph 2 provides 
that where such transit is authorized, the Requested State 
shall have the authority and obligation to keep the person in 
custody during transit.

       Article 13--Location or Identification of Persons or Items

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

                    Article 14--Service of Documents

    This article requires the Requested State to use its ``best 
efforts'' to effect the service of documents such as summonses, 
complaints, subpoenas, or other legal papers relating to an 
investigation, prosecution or other proceeding covered by the 
Treaty. Identical provisions appear in other U.S. mutual legal 
assistance treaties.\25\
---------------------------------------------------------------------------
    \25\ See, U.S.-Lithuania Mutual Legal Assistance Treaty, signed at 
Washington January 16, 1998, entered into force August 26, 1999, art. 
13./
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Greece to follow a specified 
procedure for service) or by the United States Marshal's 
Service in instances in which personal service is requested. As 
of the date of the negotiations, legislation that would allow 
service by mail was pending in Greece.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents are to be transmitted by the Central Authority of 
the Requesting State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 15--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver items needed 
in the former as evidence or for other purposes. U.S. courts 
can and do execute such requests under Title 28, United States 
Code, Section 1782.\26\ This article creates a formal framework 
for handling such requests and is similar to provisions in 
other U.S. mutual legal assistance treaties.\27\
---------------------------------------------------------------------------
    \26\ For example, in United States Ex Rel Public Prosecutor of 
Rotterdam, Netherlands v. Richard Jean Van Aalst, Case No. 84-52-M-01 
(M.D. Fla., Orlando Div.), a search warrant was issued on February 24, 
1984, based on a request under Title 28, United States Code, Section 
1782.
    \27\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 15.
---------------------------------------------------------------------------
    Article 15 requires that the request for a search, seizure 
and transfer of items justify such action under the laws of the 
Requested State. This means that a request to the United States 
from Greece will have to be supported by a showing of probable 
cause for the search. A U.S. request to Greece would have to 
satisfy the corresponding evidentiary standard there, similar 
to probable cause. Further, the matter for which the search and 
seizure is requested must involve a ``serious offense'' for 
which a search would be authorized under Greek law.
    Paragraph 2 is intended to ensure that a record is kept of 
items seized and delivered up under the Treaty. This provision 
requires that, upon request, every official who has custody of 
a seized item shall certify, through use of Form E appended to 
the Treaty, the identity of the item, the continuity of 
custody, and any changes in its condition. The paragraph 
further states that no additional certification is required and 
Form E shall be admissible in evidence in the Requesting State.
    Paragraph 3 establishes that the Central Authority of the 
Requested State may require that the Requesting State agree to 
terms and conditions necessary to protect the interests of 
third parties in the item to be transferred.

                      Article 16--Return of Items

    This article provides that any documents, records, or items 
furnished under the Treaty must be returned to the Requested 
State as soon as possible. The delegations understood that this 
requirement would be invoked only if the Central Authority of 
the Requested State specifically requests it at the time that 
the items are delivered to the Requesting State. It is 
anticipated that unless original records or articles of 
significant intrinsic value are involved, the Requested State 
will not usually request return of the items, but this is a 
matter best left to development in practice.

         Article 17--Proceeds and Instrumentalities of Offenses

    This article is similar to a number of U.S. mutual legal 
assistance treaties, including Article 16 of the U.S.-Barbados 
Mutual Legal Assistance Treaty and Article 17 of the U.S.-
Latvia Mutual Legal Assistance Treaty. Paragraph 1 authorizes 
the Central Authority of one Party to inform the Central 
Authority of the other of the existence in the latter's 
territory of proceeds or instrumentalities of offenses that may 
be subject to forfeiture or seizure. The term ``proceeds or 
instrumentalities of offenses'' was intended to include things 
such as money, vessels, vehicles, or other valuables either 
used in the commission of the crime or purchased or obtained as 
a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the Party in which the proceeds or 
instrumentalities are located may present this information to 
its authorities for a determination whether any action is 
appropriate. For instance, if the assets obtained by fraud in 
Greece are located in the United States, U.S. authorities could 
act to seize them under 18 U.S.C. 981 in aid of a prosecution 
under Title 18, United States Code, Section 2314.\28\ U.S. 
authorities could also seek to secure a temporary restraining 
order in anticipation of a civil action for the return of the 
assets to the lawful owner. Proceeds of a foreign kidnaping, 
robbery, extortion or a fraud by or against a foreign bank are 
subject to civil and criminal forfeiture in the United States 
since these offenses are predicate offenses under U.S. money 
laundering laws.\29\ Thus, it is a violation of U.S. criminal 
law to launder the proceeds of these foreign fraud or theft 
offenses when such proceeds are brought into the United States. 
The Greek delegation explained that while, currently, Greece 
has forfeiture legislation that covers drug offenses, 
legislation has been proposed to extend the coverage of 
offenses for which forfeiture may be possible. In the future, 
this same legislation may make it possible for Greece to 
enforce foreign criminal forfeiture judgments.
---------------------------------------------------------------------------
    \28\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad. Proceeds of such 
activity become subject to forfeiture pursuant to Title 18, United 
States Code, Section 981 by way of Title 18, United States Code, 
Section 1956 and Title 18, United States Code, Section 1961. The 
forfeiture statute applies to property involved in transactions in 
violation of section 1956, which covers any activity constituting an 
offense defined by section 1961(1), which includes, among others, Title 
18, United States Code, Section 2314.
    \29\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the States will be able and willing to 
help one another. Similar to the Greek statute, Title 18, 
United States Code, Section 981(a)(1)(B), allows for the 
forfeiture to the United States of property ``which represents 
the proceeds of an offense against a foreign nation involving 
the manufacture, importation, sale, or distribution of a 
controlled substance (as such term is defined for the purposes 
of the Controlled Substance Act) within whose jurisdiction such 
offense or activity would be punishable by death or 
imprisonment for a term exceeding one year if such act or 
activity had occurred within the jurisdiction of the United 
States.'' This is consistent with the laws in other countries, 
such as Switzerland and Canada; there is a growing trend among 
nations toward enacting legislation of this kind in the battle 
against narcotics trafficking.\30\ The U.S. delegation expects 
that Article 17 of the Treaty will enable this legislation to 
be even more effective.
---------------------------------------------------------------------------
    \30\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, December 20, 
1988. Both the United States and Greece are parties to this Convention.
---------------------------------------------------------------------------
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds and 
instrumentalities of offenses; restitution to the victims of 
crime; and the collection of fines imposed as sentences in 
criminal prosecutions. This assistance may include the 
temporary immobilization of the proceeds or instrumentalities 
pending further proceedings. Thus, if the law of a Requested 
Party enables it to seize assets in aid of a proceeding in the 
Requesting Party or to enforce a judgment of forfeiture levied 
in the Requesting Party, the Treaty provides that the Requested 
Party shall do so. The language of the article is carefully 
selected, however, so as not to require either Party to take 
any action that would exceed its internal legal authority. It 
does not, for instance, mandate institution of forfeiture 
proceedings or initiation of temporary immobilization in either 
country against property identified by the other if the 
relevant prosecution officials do not deem it proper to do so.
    U.S. law permits the government to transfer a share of 
certain forfeited property to other countries that participate 
directly or indirectly in the seizure or forfeiture of the 
property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity that led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country and be approved by the Secretary of State.\31\ 
Paragraph 3 is consistent with this framework and will enable a 
Party having custody over proceeds or instrumentalities of 
offenses to transfer forfeited assets, or the proceeds of the 
sale of such assets, to the other Party, at the former's 
discretion and to the extent permitted by their respective 
laws. The Greek delegation explained that Greece's legislation 
does not prohibit international sharing and, therefore, in 
future, Greece will rely on Article 17(3) as the legal basis to 
share with the United States property forfeited in Greece with 
U.S. assistance.
---------------------------------------------------------------------------
    \31\ See, Title 18, United States Code, Section 981(i)(1).
---------------------------------------------------------------------------

           Article 18--Compatibility with Other Arrangements

    This article states that assistance and procedures set 
forth in this Treaty shall not prevent either Party from 
granting assistance to the other Party through the provisions 
of other applicable international agreements or through the 
provisions of its national laws. Article 18 also states that 
the Parties may provide assistance pursuant to any bilateral 
arrangement or practice that may be applicable. The Treaty 
would leave the provisions of U.S. and Greek law on letters 
rogatory completely undisturbed, and would not alter any pre-
existing agreements concerning investigative assistance.\32\
---------------------------------------------------------------------------
    \32\ See, e.g., Agreement on the Procedures for Mutual Legal 
Assistance in the Administration of Justice in Connection with the 
Lockheed Aircraft Corporation Matter, May 20, 1976, 27 U.S.T. 2006, 
T.I.A.S. 8300, 1052 U.N.T.S. 349.
---------------------------------------------------------------------------

                        Article 19--Consultation

    Experience has shown that as the Central Authorities work 
together, they become aware of various practical ways to make 
implementation of the Treaty more effective and their own 
efforts more efficient. Periodic or regular consultations 
provide a forum for initiating improvements in the Treaty's 
implementation. This article states that the Central 
Authorities will share those ideas with one another, and will 
agree on the implementation of such measures. Practical 
measures of this kind might include methods for keeping each 
other informed of the progress of investigations and cases in 
which treaty assistance was utilized. Similar provisions are 
contained in recent U.S. mutual legal assistance treaties.

      Article 20--Ratification, Entry Into Force, and Termination

    Paragraph 1 states that the Treaty is subject to 
ratification and that the instruments of ratification shall be 
exchanged as soon as possible.
    Paragraph 2 states that the Treaty shall enter into force 
60 days after the exchange of instruments of ratification. The 
Greek delegation requested this 60 day period between the 
exchange of instruments of ratification and entry into force in 
order to publish the text and provide guidance concerning the 
new law (e.g., authorized presence of specific persons during 
the taking of witness testimony) and procedure (e.g., 
authentication by use of forms) adopted by the Treaty. The 
exchange of instruments will take place through the diplomatic 
channels.
    Like many other U.S. mutual legal assistance treaties 
negotiated in the past two decades, Article 20(3) expressly 
makes this Treaty retroactive, and covers requests presented 
after entry into force whether the relevant acts or omissions 
occurred before, on, or after the date upon which the Treaty 
entered into force.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect one year after receipt of written notification.
                                ------                                


 Technical Analysis of the Mutual Legal Assistance Treaty Between the 
      United States of America and the Federal Republic of Nigeria

    On September 13, 1989, the United States and Nigeria signed 
a Treaty Between the Government of the United States of 
American and the Federal Republic of Nigeria on Mutual Legal 
Assistance in Criminal Matters (``the Treaty''). This Treaty 
grew out of a successful executive agreement between the United 
States Department of Justice and the Nigerian Ministry of 
Justice, signed at Washington November 2, 1987. The Treaty is 
quite similar to the mutual legal assistance treaties which the 
United States has signed with other countries. The Treaty is 
expected to be a valuable weapon for the United States in its 
efforts to combat organized crime, transnational terrorism, 
international drug trafficking and other offenses. The Treaty 
is also a major step forward in the improvement of general 
relations between the United States and Nigeria.
    It is anticipated that the Treaty will be implemented in 
the United States largely pursuant to the procedural framework 
provided by Title 28, United States Code, Section 1782. During 
the negotiations, Nigeria told the United States that it does 
not have any specific law on mutual legal assistance, but that 
Nigeria anticipates enacting implementing legislation for the 
Treaty before that country in a position to exchange 
instruments of ratification and bring the Treaty into force.
    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 
history. 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 I--Scope of Assistance

    The first article of the Treaty provides for assistance in 
all matters involving the investigation, prosecution and 
suppression of offenses and in proceedings related to criminal 
matters.
    The negotiators specifically agreed that the term 
``proceedings'' includes grand jury proceedings in the United 
States. Similarly, the Treaty covers other legal measures taken 
prior to the filing of formal charges in either State and the 
full range of proceedings in a criminal case, include such 
matters as bail and sentencing hearings.\1\ It was also agreed 
that since the phrase ``proceedings connected therewith'' is 
rather broader than the investigation, prosecution or 
sentencing process itself, proceedings covered by the treaty 
need not be strictly criminal in nature. For instance, 
proceedings to forfeit to the Government the proceeds of 
illegal drug trafficking are sometimes civil in nature.\2\ The 
Treaty could be invoked in matters where no criminal 
prosecution or investigation is pending, such as a civil 
forfeiture proceeding involving assets acquired through a 
criminal offense covered by the Treaty.
---------------------------------------------------------------------------
    \1\ One U.S. court has interpreted Title 28, United States Code, 
Section 1782, as permitting the execution of a request for assistance 
from a foreign country only if the evidence sought is for use in 
proceedings before an adjudicatory ``tribunal'' in the foreign country. 
In Re Letters Rogatory Issued by the Director of Inspection of the 
Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. Blumenthal, 
620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary obstacle to 
the execution of requests concerning matters at the investigatory 
stage, or customarily handled by administrative officials in the 
Requesting State. Since this paragraph of the Treaty specifically 
permits requests to be made in connection with matters not within the 
jurisdiction of an adjudicatory ``tribunal'' in the Requesting State, 
this paragraph accords the courts broader authority to execute requests 
than does Title 28, United States Code, Section 1782, as interpreted in 
the India and Fonseca cases.
    \2\ Title 21, United States Code, Section 881; Title 18, United 
States Code, Secton 1964.
---------------------------------------------------------------------------
    The second paragraph of the article sets forth a list of 
the major types of assistance specifically considered by the 
Treaty negotiators. Most of the items listed in the second 
paragraph are described in further detail in subsequent 
articles. The second paragraph's list of kinds of assistance is 
not intended to be exclusive, a fact which is indicated by the 
word ``include'' in the opening clause of the paragraph and 
reinforced by the final subparagraph.
    The third paragraph is self-explanatory and permits 
assistance to be granted even if the conduct which is the 
subject of a request does not constitute a crime under the laws 
of the Requested State.
    The fourth paragraph provides that the Treaty is intended 
solely for government to government mutual legal assistance.\3\ 
The Treaty is not intended to be utilized by individuals or 
non-governmental entities in either State. Thus, private 
parties may not invoke the Treaty in order to obtain evidence 
from the other country. The Nigerian delegation stressed that 
the obligations in the Treaty run from government to 
government, and that in several parts of the Treaty the balance 
struck regarding the obligations of the Parties was influenced 
by the United States delegation's assurance that the rather 
substantial degree of government assistance called for by the 
Treaty would be available only to the U.S. Government, not to 
any person in the United States who happens to be a defendant 
in a criminal case or have some other non-prosecutorial 
interest. Private litigants in the United States may continue 
to obtain evidence from Nigeria by letters rogatory, an avenue 
of international assistance which this Treaty leaves 
undisturbed. Similarly, the Treaty is not intended to create 
any right in a private person to suppress or exclude evidence 
thereunder.
---------------------------------------------------------------------------
    \3\ See, United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                    Article II--Central Authorities

    Article II of the Treaty requires that each party shall 
establish a ``Central Authority.'' The Central Authority of the 
United States would make all requests to Nigeria on behalf of 
federal agencies, state agencies, and local law enforcement 
authorities in the United States. The Nigerian Central 
Authority will make all requests emanating from the authorities 
there. The Central Authority for the Requesting State of course 
will exercise some discretion as to the form and contents of 
requests, and also to the number and priority of requests.
    The Central Authority of the Requested State is also 
responsible for receiving each request from the other, 
transmitting it to the appropriate federal or state agency, 
court or other authority for execution, with a view to insuring 
that a timely response is made.
    The second paragraph of the article provides that the 
Attorney General will be the Central Authority for the United 
States, as is the case under all other U.S. mutual legal 
assistance treaties. The Attorney General has delegated his 
duties as Central Authority under mutual assistance treaties to 
the Assistant Attorney General in charge of the Criminal 
Division, pursuant to 28 C.F.R. Section 0.64-1.\4\ This 
paragraph also states that the Attorney General of the 
Federation of Nigeria or a person designated by him will serve 
as the Central Authority for Nigeria.
---------------------------------------------------------------------------
    \4\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------

                 Article III--Limitations on Assistance

    Article III specifies the classes of cases in which 
assistance may be denied under the Treaty. Article III(1)(a) is 
self-explanatory, and permits denial of assistance where the 
request fails to conform to the Treaty's requirements. Articles 
III(1)(b) and III(1)(c) permit the Central Authority of the 
Requested State to deny a request if the request relates to a 
political offense or to a strictly military offense. These 
restrictions are similar to those found in our other mutual 
legal assistance treaties.
    Article III(1)(d) permits assistance to be refused if 
execution of the request would be contrary to the Constitution 
of the Requested State or would adversely affect the security 
or other essential national interests of the Requested State. 
All United States mutual legal assistance treaties contain 
provisions allowing the Requested State to decline to execute a 
request if execution would prejudice its essential interests. 
The United States intends to interpret this provision 
sparingly.
    For the United States, the phrase ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the U.S. Department of Justice, as 
Central Authority for the United States, will work closely with 
the Department of State and other government agencies to 
determine whether to execute a request that might fall in this 
category.
    ``Essential national interests'' could also be invoked if 
the execution of a request would violate essential interests 
related to the fundamental purposes of the Treaty. For example, 
one fundamental purpose of the Treaty is to enhance law 
enforcement cooperation, and attaining that purpose would be 
hampered if sensitive law enforcement information available 
under the Treaty were to fall into the wrong hands. Therefore, 
the U.S. Central Authority may invoke paragraph 1(d) to decline 
to provide information pursuant to a request under this Treaty 
if it determines, after appropriate consultation with law 
enforcement, intelligence, and foreign policy agencies, that a 
senior foreign government official who will have access to the 
information is engaged in a felony, including facilitation of 
the production or distribution of illegal drugs.\5\
---------------------------------------------------------------------------
    \5\ This is consistent with the Senate resolution of advice and 
consent to ratification of other recent mutual legal assistance 
treaties with, e.g., Luxembourg, Hong Kong, Poland and Barbados. See, 
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal 
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy 
Assistant Attorney General, Criminal Division, United States Department 
of Justice).
---------------------------------------------------------------------------
    The negotiators had discussed placing a provision in this 
article which would have barred assistance under the Treaty if 
the Central Authority of the Requested State had a reasonable 
basis to believe that compliance with the request would 
facilitate the prosecution or punishment of any person on 
account of his race, religion, nationality or political 
opinions, or would cause prejudice for these reasons to any 
person affected by the request. The Nigerian delegation felt 
that the Nigerian Constitution may require some cognizance of 
this concept in the case of a United States request to Nigeria. 
This concern was addressed through the inclusion of the portion 
of Article III(1)(d) which permits the Central Authority of the 
Requested State to deny assistance if the execution of the 
request would be contrary to the Constitution of that State. 
This enables the Central Authority to deal with cases in which 
it must consider the possibility of political persecution (or 
consider any other constitutionally mandated principle). The 
clause permitting denial if the request would violate the 
Constitution of the Requested State is similar to language that 
appears in several other mutual legal assistance treaties.\6\
---------------------------------------------------------------------------
    \6\ E.g., U.S.-Jamaica Mutual Legal Assistance Treaty, signed at 
Kingston July 7, 1989, entered into force July 25, 1995, art. 2(1)(e).
---------------------------------------------------------------------------
    The second paragraph of this article permits the Requested 
State to impose appropriate conditions on its assistance in 
lieu of denying a request outright pursuant to the first 
paragraph of this article. For example, a State might request 
information which could be used either in a routine criminal 
case (which would be within the scope of the Treaty) or in a 
prosecution of a political offense (which could be refused 
under the Treaty's terms). This paragraph would permit the 
Requested State to provide the information on the condition 
that it be used only in the routine criminal case. It is 
anticipated that the Requested State would notify the 
Requesting State of proposed conditions before actually 
delivering the evidence in question, thereby according the 
Requesting State an opportunity to indicate whether it is 
willing to accept the evidence subject to the conditions. If it 
does accept the evidence, it must respect the conditions 
specified by the Requested State with respect to the evidence.
    The third paragraph of Article III states that a request 
for assistance need not be executed immediately where execution 
would interfere with an investigation or legal proceeding in 
progress in the Requested State, or it may be executed subject 
to conditions determined to be necessary after consultations 
with the Central Authority of the Requesting State. It is 
understood that the Central Authority of the Requested State 
will determine when to apply this provision and may, in his 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence which might otherwise be lost 
before the conclusion of the investigation or legal proceeding 
taking place in that State.
    The fourth paragraph of the article requires that the 
Central Authority of the Requested State promptly notify the 
Central Authority of the Requesting State of the reason for 
denying or postponing execution of the request. This assures 
that when a request is denied or only partly executed the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This will eliminate 
misunderstandings which can arise in the operation of the 
agreement, and enable the Requesting State to better prepare 
its requests in the future.

               Article IV--Form and Contents of Requests

    The first paragraph requires that requests be in writing, 
except that the Central Authority of the Requested State may 
accept a request in another form in emergency situations. An 
oral request must be confirmed in writing ``as soon as 
practicable.''
    The second paragraph lists information which is deemed 
crucial to efficient operation of the agreement, and so must be 
included in each request. The third paragraph outlines kinds of 
information which should be provided ``when appropriate.''
    In keeping with the intention of the parties that requests 
be as simple and straightforward as possible, there is no 
requirement under the Treaty that a request be legalized or 
certified.

                    Article V--Execution of Requests

    The first paragraph of Article V requires each Central 
Authority ``as expeditiously as practicable'' to execute a 
request or, when appropriate, to transmit it to the authority 
having jurisdiction to do so. The Treaty contemplates that the 
Central Authority which receives a request will first review 
the request and immediately notify the Central Authority of the 
Requesting State if it is of the opinion that the request does 
not comply with the Treaty's terms. If the request does satisfy 
the Treaty's requirements and the assistance sought can be 
provided by the Central Authority itself, the request will be 
fulfilled immediately. If the request meets the Treaty's 
requirements but its execution requires action by some other 
agency in the Requested State, the Central Authority will see 
to it that the request is promptly transmitted to the correct 
agency for execution.
    Where the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution. However, a request may be transmitted 
to state officials for execution if the Central Authority deems 
it more appropriate to do so.
    The second sentence of the first paragraph authorizes and 
requires the federal, state, or local agency or authority 
selected by the Central Authority to take whatever action would 
be necessary and within its power to execute the request. This 
provision is not intended or understood to authorize the use of 
the grand jury in the United States for the collection of 
evidence pursuant to a request from Nigeria. Rather, it is 
anticipated that when a request from Nigeria requires 
compulsory process for execution, the U.S. Department of 
Justice would ask a federal court to issue the necessary 
process under Title 28, United States Code, Section 1782 and 
the provisions of the Treaty. The third sentence provides that 
the ``the courts of the Requested State shall have authority to 
issue subpoenas, search warrants, or other orders necessary to 
execute the request.'' This language specifically authorizes 
U.S. courts to use all of their powers to issue subpoenas and 
other process to satisfy a request under the Treaty.
    It is understood that if execution of the request entails 
action by a judicial or administrative agency, the Central 
Authority of the Requested State shall arrange for the 
presentation of the request to that court or agency at no cost 
to the other State. Since the cost of retaining counsel abroad 
to present and process letters rogatory is sometimes quite 
high, this provision for reciprocal legal representation should 
be a significant advance in international legal cooperation. It 
is also understood that should the Requesting State choose to 
hire private counsel in connection with a particular request, 
it is free to do so, at its own expense.
    The third paragraph of the article provides that all 
requests shall be executed in accordance with the laws of the 
Requested State except to the extent that the Treaty 
specifically provides otherwise. For the United States, the 
Treaty is intended to be self-executing, and no new or 
additional legislation apart from Title 28, United States Code, 
Section 1782, is needed to carry out the obligations 
undertaken.
    The same paragraph requires that procedures specified in 
the request be followed in the execution of the request except 
insofar as those procedures are prohibited by the law of the 
Requested State. This provision is necessary both because (1) 
there may be significant differences between procedures that 
must be followed by U.S. and Nigerian authorities in collecting 
evidence in order to assure the admissibility of that evidence 
at trial and (2) the evidence in question could be needed for 
forensic examination, and sometimes the procedures that must be 
followed to enhance the scientific accuracy of such tests do 
not coincide with those utilized in assembling evidence for 
admission into evidence at trial. The value of such forensic 
examinations could be significantly lessened--and the 
Requesting State's investigation could be retarded--if the 
Requested State were to insist unnecessarily on handling the 
evidence in a manner usually reserved for evidence to be 
presented to its own courts.
    The fourth and fifth paragraphs of the article require that 
the Central Authority of the Requested State respond to 
inquiries and promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of the 
request. This assures that when a request is only partly 
executed, the Requested State will provide some explanation for 
not providing all of the information or evidence sought.
    Paragraph six requires, unless otherwise agreed, that the 
Requested State return the original request with information 
and evidence obtained, indicating the place and time of 
execution. The final paragraph of the article provides that 
requests shall be furnished in complete and unedited form and 
that the Requested State will make every effort to furnish 
original documents and records if requested by the Requesting 
State.

                      Article VI--Confidentiality

    The first paragraph of Article VI requires that neither a 
request nor the information provided under the Treaty be 
disclosed by one Contracting Party to a third State except as 
authorized by the Central Authority of the other Contracting 
Party.
    Article VI(2) establishes an obligation to use best efforts 
to keep a request and its contents confidential, but only when 
requested to do so by the Central Authority of the Requesting 
State.\7\ If the Requested State cannot execute the request 
without disclosing the information in question (as may be the 
case if execution requires a public judicial proceeding in the 
Requested State), the Treaty obliges the Requested State to so 
indicate, thereby giving the Requesting State an opportunity to 
withdraw the request rather than risk jeopardizing its 
investigation or proceeding by disclosure of the information. 
The third paragraph of the article requires the State which has 
obtained evidence to use its best efforts to keep the evidence 
confidential or use it only subject to terms and conditions it 
may specify, if requested by the Central Authority of the 
Requested State. It is anticipated that in this Treaty, as 
under most United States mutual legal assistance treaties, 
conditions of confidentiality will be imposed only when 
necessary, and will be tailored to fit the circumstances of 
each particular case. For instance, the Requested State may 
wish to cooperate with the investigation in the Requesting 
State but choose to limit access to information which might 
endanger the safety of an informant, or unduly prejudice the 
interests of persons not connected in any way with the matter 
being investigated in the Requesting State. The term ``best 
efforts'' is used because the purpose of the Treaty is the 
production of evidence for use at trial, and that purpose would 
be frustrated if the Requested State can let the Requesting 
State see valuable evidence but impose confidentiality 
restrictions which effectively prevent the Requesting State 
from ever using the evidence. In the event that disclosure of 
evidence obtained under the Treaty might be required in a 
proceeding involving a matter other than that described in the 
request,\8\ the United States would consult with the Government 
of Nigeria in order to fashion a method of disclosure 
consistent with the requirements of both States.
---------------------------------------------------------------------------
    \7\ This provision is similar to language in other U.S. mutual 
legal assistance treaties. See, e.g., U.S.-Lithuania Mutual Legal 
Assistance Treaty, signed at Washington January 16, 1998, entered into 
force August 26, 1999, art. 5(5).
    \8\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    It should be kept in mind that under Article I(4) of the 
Treaty, the restrictions outlined in Article VI are for the 
benefit of the parties to the Treaty--the United States and 
Nigerian governments--and the enforcement of these provisions 
is left entirely to the parties. Whenever there is an 
allegation that an authority or individual in the United States 
is seeking to use information or evidence obtained from Nigeria 
in a manner inconsistent with this article, the complainant's 
recourse would be to inform the Central Authority of Nigeria of 
the allegations, for consideration only as a matter between the 
governments.

                         Article VII--Expenses

    Article VII of the Treaty is largely self-explanatory and 
proceeds from the basic principle that the Requested State 
should bear all expenses incurred in the execution of the 
request, but obliges the Requesting State to pay fees of 
private experts, costs of translations, transcriptions and 
allowances and expenses related to travel, unless otherwise 
mutually decided in a particular case. This is consistent with 
similar provisions in other U.S. mutual legal assistance 
treaties.\9\
---------------------------------------------------------------------------
    \9\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty, 
signed at Washington February 4, 1998, entered into force May 7, 2000, 
art. 6.
---------------------------------------------------------------------------

                    Article VIII--Limitations on Use

    Article IV of the Treaty states that the Requesting State 
must specify the reason why information or evidence sought 
under the Treaty is needed. The first paragraph of Article VIII 
requires that information provided under the Treaty will not be 
used for any purpose other than that stated in the request 
without the consent of the Central Authority of the Requested 
State.
    The second paragraph of the article provides that once 
information or evidence becomes public, the Requesting State is 
free to use it for any purpose. When evidence obtained under 
the Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain. The 
information is likely to become a matter of common knowledge, 
perhaps even cited or described in the press. When that occurs, 
it is practically impossible for the Central Authority of the 
Requesting State to block the use of that information by third 
parties.

         Article IX--Obtaining Evidence in the Requested State

    The first paragraph of Article IX states that a person in 
the Requested State shall be compelled, if necessary,\10\ to 
appear and testify or produce documents, records, or articles 
of evidence. The compulsion contemplated by this article can be 
accomplished by subpoena or any other means available under the 
law of that party. The second and third paragraphs provide that 
any interested parties, including the defendant and his counsel 
in criminal cases, may be permitted to be present and pose 
questions during the taking of testimony under this article and 
require the Requested State to provide information about the 
date and place of the taking of the testimony or evidence in 
advance, if requested.
---------------------------------------------------------------------------
    \10\ The use of the words ``if necessary'' appears at first glance 
to make the obligation to execute a request for testimony 
discretionary. However, the words ``if necessary'' were used in the 
Treaty in order to make it clear that compulsory process is not 
required in every case. For instance, a witness may be perfectly 
willing to provide the needed testimony voluntarily. Use of the words 
``shall be compelled'' without the words ``if necessary'' might appear 
to oblige the Requested State to issue a subpoena or other compulsory 
process even if it were not necessary. The United States and Nigerian 
delegations fully intended that the Treaty establish a mandatory 
obligation to arrange the production of the requested testimony, 
leaving it to the Requested State's discretion whether or not to use 
compulsory judicial process to fulfill that obligation.
---------------------------------------------------------------------------
    Paragraph 4 states that if a witness asserts a claim of 
immunity, incapacity, or privilege under the laws of the 
Requesting State, the Requested State will take the evidence 
and turn it over to the Requesting State along with notice that 
it was obtained over a claim of privilege. The applicability of 
the privilege can then be determined in the Requesting State, 
where the scope of the privilege and the legislative and policy 
reasons underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties.\11\ It is understood that when a person asserts a 
claim of immunity, incapacity, or privilege under the laws of 
the Requested State, that claim shall be resolved in accordance 
with the law of the Requested State. This is consistent with 
Article V(3) and ensures that no person will be compelled to 
furnish information if he has a right not to do so under the 
law of the Requested State. Thus, a witness questioned in the 
United States pursuant to a request from Nigeria is guaranteed 
the right to invoke any of the testimonial privileges (e.g., 
attorney-client, inter-spousal) available in the United States 
as well as the constitutional privilege against self-
incrimination, to the extent that it might apply in the context 
of evidence being taken for foreign proceedings.\12\ A witness 
testifying in Nigeria may raise any of the similar privileges 
available under the law of Nigeria.
---------------------------------------------------------------------------
    \11\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty, 
signed at Bridgetown February 28, 1996, and entered into force March 3, 
2000, art. 8(4).
    \12\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Article IX(5) states that documents, records and articles 
of evidence produced pursuant to the Treaty may be 
authenticated by having a custodian of the records or other 
qualified person complete, under oath, a certification in a 
specified form. A model of the form to be used by the United 
States and the form to be used by Nigeria is appended to this 
Treaty as Forms A-1 and A-2. Thus, the provision establishes a 
procedure for authenticating Nigerian records for use in the 
United States in a manner essentially similar to that followed 
in Title 18, United States Code, Section 3505.
    Although the article states that the evidence is 
``admissible'' when accompanied by the appropriate form, it 
will of course be up to the judicial authority presiding over 
the trial to determine whether the evidence should in fact be 
admitted. The negotiators anticipate that the evidentiary tests 
other than authentication--such as relevance, materiality, and 
the like--would still have to be satisfied in each case.

         Article X--Obtaining Evidence in the Requesting State

    This article provides that upon request the Requested State 
shall invite witnesses who are located in its territory and 
needed in the Requesting State to travel to the Requesting 
State to testify there. An appearance in the Requesting State 
under this article is not mandatory, and the invitation may be 
refused by the prospective witness. The Treaty requires that 
the Requesting State indicate the extent to which the expenses 
will be paid.
    Paragraph two of this article, like Article 27 of the U.S.-
Switzerland Mutual Legal Assistance Treaty, provides that a 
person who is in the Requesting State to testify or for 
confrontation purposes pursuant to the Treaty shall be immune 
from criminal prosecution, detention, or any restriction of 
personal liberty, or from the service of process in civil suit 
while he is in the Requesting State. This ``safe conduct'' is 
limited to acts or convictions which preceded the witness' 
departure from the Requested State. It is understood that this 
provision does not, of course, prevent the prosecution of a 
person for perjury or any other crime committed while in the 
Requesting State under this article or later.
    The third paragraph states that the safe conduct guaranteed 
in this article expires fifteen days after the person has been 
officially notified that his presence is no longer required, or 
if he leaves the territory of the Requesting State and 
thereafter returns to it.

               Article XI--Records of Government Agencies

    Article XI serves to insure speedy access to government 
records, including records of the executive, judicial, and 
legislative units at the federal, state, and local levels in 
either country.
    The first paragraph of the article obliges each country to 
furnish the other copies of publicly available records of a 
government agency. The term ``government departments and 
agencies'' includes executive, judicial, and legislative units 
at the federal, state, and local level in either country.
    The second paragraph provides that the Requested State 
``may'' share with its Treaty partner copies of nonpublic 
information in government files. The article states that the 
Requested State may only utilize its discretion to turn over 
information in its files ``to the same extent and under the 
same conditions'' as it would to its own law enforcement or 
judicial authorities. It is the intention of the negotiators 
that the Central Authority of the Requested State determine 
what the extent and what those conditions would be. The 
discretionary nature of this provision was deemed necessary 
because government files in each State contain some kinds of 
information which would be available to investigative 
authorities in that State, but which would justifiably be 
deemed inappropriate to release to a foreign government. 
Examples of instances in which assistance might be denied under 
this provision would be where disclosure of the information is 
barred by law in the Requested State or where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information which was made available to the Requested 
State in return for a promise that it not be divulged to 
anyone.
    The third paragraph states that documents provided under 
this Article will be authenticated pursuant to a certificate in 
a form appended to the Treaty. Thus, the authentication will be 
conducted in a manner similar to that required by Rule 902(3), 
Federal Rules of Evidence, and the records will be admissible 
into evidence without additional foundation or authentication. 
There are two forms, B-1 for use with evidence obtained in 
Nigeria and intended for use in the United States, and B-2 for 
evidence obtained in the United States and destined for use in 
Nigeria.
    The article refers to the provision of copies of government 
records, but the Requested State would not be precluded from 
delivering the original of the government records to the 
Requesting State, upon request, if the law in the Requested 
State permits it and if it is essential to do so.

         Article XII--Temporary Transfer of Persons in Custody

    In some criminal cases, a arises for the testimony at a 
trial in one country of a witness serving a sentence in another 
country. In some instances, the country involved was willing 
and able to ``lend'' the witness to the U.S. Government, 
provided the witness would be carefully guarded while here and 
returned at the conclusion of his testimony.\13\ On other 
occasions, the U.S. Government was able to arrange for federal 
inmates here to be transported to foreign countries to assist 
in criminal proceedings there.\14\ Article XII calls for mutual 
assistance in situations of this kind, and thereby provides an 
express legal basis for cooperation in these matters. The 
provision is based on Article 26 of the U.S.-Switzerland Mutual 
Legal Assistance Treaty, which is in turn based on Article 11 
of the European Convention on Mutual Assistance in Criminal 
Matters.
---------------------------------------------------------------------------
    \13\ Title 18, United States Code, Section 3508, provides for the 
transfer to the United States of witnesses in custody in other States 
whose testimony is needed at a federal criminal trial.
    \14\ For example, on September 13, 1986, the Justice Department and 
the Drug Enforcement Administration arranged for four federal prisoners 
to be transported to the United Kingdom to testify for the Crown in the 
case of Regina v Dye, et al., a major narcotics case in Central 
Criminal Court--``the Old Bailey''--in London.
---------------------------------------------------------------------------
    Paragraphs 1 and 2 provide that persons in custody in the 
Requested State whose presence in the Requesting State is 
sought for purposes of assistance under this Treaty, such as 
testifying in a criminal prosecution, shall be transferred in 
custody for that purpose if the person consents and the Central 
Authorities of both states agree. Paragraph 3 provides that a 
person in the custody of the Requesting State whose presence in 
the Requested State is sought for purposes of assistance under 
this Treaty may be transferred from the Requesting State to the 
Requested State for that purpose if the person consents and if 
the Central Authorities of both States agree. This would also 
cover situations in which a person in custody in the United 
States on a criminal matter has sought permission to travel to 
another country to be present at a deposition being taken there 
in connection with the case.\15\
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    \15\ See, also, United States v. King, 552 F.2d 833 (9th Cir. 
1976), cert. denied, 430 U.S. 966 (1977), where the defendants insisted 
on traveling to Japan to be present at the deposition of certain 
witnesses in prison there.
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    The article's fourth paragraph provides express authority 
and the obligation for the receiving State to maintain the 
person in custody throughout his stay there, unless the other 
State specifically authorizes release. The paragraph also 
authorizes the receiving State to return the person in custody 
to the other State, and provides that this return will occur as 
soon as circumstances permit, or as otherwise agreed. The 
transfer of a prisoner under this article requires the consent 
of the person involved and of the Parties, but the provision 
does not require that the prisoner consent again to his return 
to the State where the transfer began.
    In keeping with the obligation to return a person 
transferred under this article, paragraph (3)(c) explicitly 
prohibits the State to whom a person is transferred from 
requiring the transferring State to initiate extradition or any 
other proceedings before the status quo is restored by the 
return of the person transferred. It also prohibits the 
receiving State from declining to return a person transferred 
on the basis of nationality. Finally, the prisoner will receive 
credit for time served while in the custody of the receiving 
State. This is consistent with United States practice in these 
matters.

             Article XIII--Identifying and Locating Persons

    Article XIII provides that the Requested State is to 
ascertain the whereabouts in the Requested State of persons 
(such as witnesses, potential defendants, or experts) where 
such information is of importance in connection with an 
investigation or proceeding covered by the treaty. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the person and would not be obliged to attempt to locate 
persons that may be in third countries.

                   Article XIV--Service of Documents

    Article XIV creates an obligation on the part of the 
Central Authority of the Requested State to arrange for or 
effect the service of summons, complaints, subpoenas, or other 
legal documents at the request of the Central Authority of the 
other State. Similar provisions appear in other U.S. mutual 
legal assistance treaties.\16\
---------------------------------------------------------------------------
    \16\ See, e.g., U.S.-Lithuania Mutual Legal Assistance Treaty, 
signed at Washington January 16, 1998, entered into force August 26, 
1999, art. 13.
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Nigeria to follow any 
specified procedure for service) and by the United States 
Marshal's Service in instances where personal service is 
requested.
    The second paragraph of the article states that where the 
document to be served calls for the appearance of a person in 
the Requesting State the document must be transmitted by the 
Requesting State to the Requested State a reasonable time 
before the scheduled appearance. Thus, if the United States 
were to ask Nigeria to serve a subpoena issued pursuant to 
Title 28, United States Code, Section 1783 on a United States 
citizen in Nigeria, the request would have to be submitted well 
in advance of the hearing or trial at which the respondent is 
expected to appear. This is to allow sufficient time for 
service to be effected and for the respondent to make 
arrangements for his appearance.
    The third paragraph is self-explanatory and requires proof 
of service returned to the Requesting State.

                     Article XV--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
United States courts can and do execute such requests now under 
Title 28, United States Code, Section 1782,\17\ Article XV of 
the Treaty creates a reciprocal framework for handling such a 
request, similar to provisions in many other U.S. mutual legal 
assistance treaties.\18\
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    \17\ See, e.g., United States Ex Rel Public Prosecutor of 
Rotterdam, Netherlands v. Richard Jean Van Aalst, Case No 84-52-Misc-01 
(M.D. Fla, Orlando Div.) search warrant issued February 24, 1984.
    \18\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 15.
---------------------------------------------------------------------------
    Pursuant to Article XV(1)'s requirement that the request 
include ``information justifying such action under the laws of 
the Requested State,'' a request to the United States from 
Nigeria will have to be supported by probable cause for the 
search. A U.S. request to Nigeria would have to satisfy the 
corresponding evidentiary standard there. It is contemplated 
that the request would be carried out in strict accordance with 
the law of the country in which the search is being conducted.
    Article XV(2) is designed to insure that a record is kept 
of articles seized and of articles delivered up under the 
Treaty through use of Form C appended to the Treaty. This 
provision effectively requires that detailed and reliable 
information be kept regarding the condition of the article at 
the time of the seizure, and the chain of custody between the 
time of seizure and time of delivery to the Requesting State.
    The article also requires that the certificates prepared 
for this purpose will be admissible without additional 
authentication at trial in the Requesting State and is intended 
to avoid the burden, expense, and inconvenience to the 
Requested State of sending its officials to the Requesting 
State to provide authentication and chain of custody testimony 
each time evidence produced pursuant to this article is used. 
The fact that the certificates are admissible without 
additional authentication at trial leaves the trier of fact 
free to accord the certificate only such weight as it is due.
    The final paragraph of the article states that the 
Requested State need not surrender any articles it has seized 
unless it is satisfied that any interests third parties may 
have in the seized items are adequately protected. This article 
is similar to provisions in many United States extradition 
treaties.

  Article XVI--Return of Documents, Records, and Articles of Evidence

    This procedural article provides that any documents, 
records or articles of evidence furnished under the Treaty must 
be returned to the Requested State upon request. It is 
anticipated that unless original records or articles of some 
intrinsic value are provided, the Requested State will not 
routinely request return, but this is a matter best left to 
development of practice.

Article XVII--Tracing, Seizing, and Forfeiture of Proceeds of Criminal 
                               Activities

    A primary goal of the Treaty is to enhance the efforts of 
both States in the war against narcotics trafficking and 
financial fraud. One major strategy in that war is to seize and 
confiscate the money, property, and other proceeds of such 
crimes. Article XVII is designed to further that strategy.
    In the first paragraph of the article, the Parties to this 
Treaty assume an obligation to aid one another, on request, in 
proceedings for the forfeiture of illegally obtained assets, in 
restoring illegally obtained funds or articles to their 
rightful owners, and in collecting fines imposed as sentences 
in criminal prosecutions. The term ``proceeds and 
instrumentalities'' would include things such as money, 
vessels, or other valuables either being used in the crime or 
obtained as a result of the offense.
    Thus, if the law of the Requested State enables it to seize 
assets in aid of a proceeding in the Requesting State or 
enforce a judgment of forfeiture or fine levied in the 
Requesting State, the Treaty provides that the Requested State 
shall do so. The language of the article is carefully selected, 
however, to not require either State to take any action which 
would go beyond ``the extent permitted by (its) laws.'' It 
therefore does not mandate institution of forfeiture 
proceedings in either country against property identified by 
the other if the relevant prosecutorial authorities do not deem 
it proper to do so.
    The second and third paragraphs contain procedural 
information regarding each party's obligation to assist the 
other in seizing and forfeiting of proceeds of criminal 
activities.
    Title 18, United States Code, Section 981(a)(1)(B) also 
allows the forfeiture to the United States of property ``which 
represents the proceeds of an offense against a foreign nation 
involving the manufacture, importation, sale, or distribution 
of a controlled substance (as such term is defined for the 
purposes of the Controlled Substances Act) within whose 
jurisdiction such offense or activity would be punishable by 
death or imprisonment for a term exceeding one year and which 
would be punishable by imprisonment for a term exceeding one 
year if such act or activity had occurred within the 
jurisdiction of the United States.''\19\ The United States 
delegation expects that Article XVII of the Treaty will enable 
full use to be made of this legislation.
---------------------------------------------------------------------------
    \19\ The U.S. legislation is consistent with the laws in other 
countries, such as Switzerland, Canada, and the United Kingdom, and the 
movement among States is toward legislation of this kind for use in 
drug enforcement.
---------------------------------------------------------------------------
    The fourth paragraph states that a party which has been 
requested to take action under this article shall apply its 
laws to the disposition of property it confiscates as a result 
of a request. United States law permits the Government to 
transfer a share of certain forfeited property to other 
countries pursuant to a bilateral agreement authorizing such 
transfers.\20\ Under regulations promulgated by the Attorney 
General, the amount reflects the direct or indirect 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. Article XVII(4) is consistent with this framework and 
will enable a Party having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other Party, at 
the former's discretion and to the extent permitted by their 
respective laws.
---------------------------------------------------------------------------
    \20\ Title 18, United States Code, Sec. 981(i)(1)(B).
---------------------------------------------------------------------------
    The fifth paragraph states that either party may notify the 
other of the location of assets which may be forfeitable or 
otherwise subject to seizure. Upon receipt of notice under this 
article, the Central Authority of the State in which the 
proceeds are located may take whatever action is appropriate 
under the law in that State. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Nigeria, they could be seized in aid of 
a prosecution under Title 18, United States Code, Section 
2314,\21\ or be made subject to a temporary restraining order 
in anticipation of a civil action for the return of the assets 
to the lawful owner. If the assets are located in Nigeria, we 
expect similar action could be taken pursuant to Nigerian law. 
Proceeds of a foreign kidnaping, robbery, extortion or a fraud 
by or against a foreign bank are subject to civil and criminal 
forfeiture in the United States since these offenses are 
predicate offenses under U.S. money laundering laws.\22\ Thus, 
it is a violation of U.S. criminal law to launder the proceeds 
of these foreign fraud or theft offenses when such proceeds are 
brought into the United States. If the assets in question are 
the fruit of drug trafficking, it is anticipated that the 
parties will move quickly and expeditiously to freeze them and 
ensure confiscation.
---------------------------------------------------------------------------
    \21\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud here or abroad.
    \22\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------

    Article XVIII--Information on Crimes, Arrests, Convictions, and 
                              Deportations

    Paragraph 1 of this article of the Treaty provides that the 
Central Authority of one Party may inform his counterpart in 
the other Party if he becomes aware of criminal activities 
which are or may be committed within the jurisdiction of that 
other Party. The Central Authority receiving such information 
may, of course, deal with it as he deems most appropriate. This 
provision was included in the Treaty because the Nigerian 
delegation felt that Nigerian police occasionally acquire 
information in Nigeria about crimes taking place in the United 
States, and they wanted the Treaty to be available as a secure 
channel for transmitting information to appropriate United 
States authorities.
    Paragraph 2 provides that the Central Authority of one 
Party may request information regarding the other Party's 
arrest, conviction or deportation of a national of the 
Requesting State. This article was proposed by the Nigerian 
delegation, which initially wanted the mutual legal assistance 
treaty to contain an alternative method for arranging the 
prompt provisional arrest of fugitives for extradition. The 
United States delegation insisted that provisional arrest can 
only be addressed in an extradition treaty, and the final text 
of this article focuses on a slightly different problem.
    Nigerian law enforcement authorities sometimes seek 
information from the United States about a Nigerian national 
arrested in the United States. For instance, when United States 
authorities arrest a drug courier who is a Nigerian national, 
Nigerian police may well request full details on the arrest in 
order to investigate and apprehend those who supplied the drugs 
to the courier. The second paragraph enables the Central 
Authorities under the Treaty to assist in such situations. 
Finally, the Nigerian delegation indicated that sometimes 
convicted felons who are Nigerian nationals are deported from 
the United States to Nigeria without United States officials 
fully advising their Nigerian counterparts of the person's 
criminal history--information which Nigerian police could find 
very helpful in investigating crimes there. This article is 
intended to facilitate requests where the Requesting State's 
authorities have a law enforcement purpose for the request.

                      Article XIX--Other Treaties

    This article states that assistance and procedures provided 
by this treaty shall not prevent assistance under any other 
international convention or agreement between the two 
countries. It also provides that the Treaty shall not be deemed 
to prevent recourse to any assistance available under the 
internal laws of either country. Thus, the Treaty leaves the 
provisions of United States and Nigerian law on letters 
rogatory completely undisturbed, and does not alter any pre-
existing agreements concerning investigative assistance.\23\
---------------------------------------------------------------------------
    \23\ See, e.g., the Agreement on Procedures for Mutual Assistance 
in Law Enforcement Matters, signed at Washington November 2, 1987, 
entered into force Nov. 2, 1987 (TIAS 11540).
---------------------------------------------------------------------------

                        Article XX--Consultation

    The conclusion of this agreement is rather more than the 
simple signing of a Treaty. It is the beginning of a new, 
better, and more cooperative relationship between the United 
States and Nigerian law enforcement communities. It is the 
establishment of a framework within which the investigative and 
prosecutorial authorities of the two countries can work 
together more effectively. The first paragraph of the article 
encourages both parties to be aware of the opportunity 
presented by this agreement to ensure that other aspects of our 
bilateral relations benefit from the same kind of flexibility 
and mutual understanding that this Treaty reflects, 
particularly in the area of mutual legal assistance. For 
example, the Nigerian delegation specifically requested that 
the United States consider negotiation of an updated 
extradition treaty.
    The U.S. experience has shown that as the parties to a 
treaty of this kind work together over the years, they become 
aware of various practical ways to make the Treaty more 
effective and their own efforts more efficient. The second 
paragraph of the article calls upon the States to share those 
ideas with one another and encourages them to agree on the 
implementation of such measures. Practical measures of this 
kind might include methods of keeping each other informed of 
the progress of investigations and cases in which treaty 
assistance was used.

                         Article XXI--Amendment

    This article provides for amendments to the Treaty by 
agreement.

            Article XXII--Ratification and Entry Into Force

    This article contains standard language concerning the 
procedure for exchange of the instruments of ratification, and 
the coming into force of the Treaty.

                       Article XXIII--Termination

    The final article contains the standard provision 
concerning the procedure for terminating the Treaty. The 
requirement that either State give six months notice to the 
other of an intent to terminate the Treaty is not unusual in a 
treaty of this kind, and is similar to the requirement 
contained in many of our mutual legal assistance treaties.
                                ------                                


 Technical Analysis of The Treaty Between The United States of America 
       And Romania on Mutual Legal Assistance in Criminal Matters

    On May 26, 1999, the United States signed a Treaty Between 
the United States of America and Romania on Mutual Legal 
Assistance in Criminal Matters (``the Treaty''). In recent 
years, the United States has signed similar treaties with a 
number of countries as part of a highly successful effort to 
modernize the legal tools available to law enforcement 
authorities in need of foreign evidence for use in criminal 
cases.
    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, international drug trafficking, and 
other offenses.
    It is anticipated that the Treaty will be implemented in 
the United States largely pursuant to the procedural framework 
provided by Title 28, United States Code, Section 1782. Romania 
currently does not have any specific law on mutual legal 
assistance, but it is considering proposing new legislation to 
assist in implementation of the Treaty.\1\
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    \1\ During the negotiations, the U.S. delegation asked the Romanian 
delegation to explain the relationship between treaties and legislation 
under Romanian law. The Romanian delegation told the U.S. delegation 
that in Romania treaties do not take precedence over legislation, and 
in the event of conflict the legislation prevails.
---------------------------------------------------------------------------
    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 
history. 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--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of offenses, and in proceedings relating to 
criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in Romania, 
and other legal measures taken prior to the filing of formal 
charges in either State.\2\ The term ``proceedings'' was 
intended to cover the full range of proceedings in a criminal 
case, including such matters as bail and sentencing 
hearings.\3\ It was also agreed that since the phrase 
``proceedings related to criminal matters'' is broader than the 
investigation, prosecution or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature,\4\ but such proceedings are covered by the 
Treaty.
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    \2\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the United States, as our 
investigators and prosecutors often need to obtain evidence from 
foreign countries in order to determine whether or not to file criminal 
charges. This obligation is a reciprocal one; the United States must 
assist Romania under the Treaty in connection with investigations prior 
to charges being filed in Romania.
    \3\ One United States court has interpreted Title 28, United States 
Code, Section 1782, as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary 
obstacle to the execution of requests concerning matters which are at 
the investigatory stage, or which are customarily handled by 
administrative officials in the Requesting State. Since this paragraph 
of the Treaty specifically permits requests to be made in connection 
with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \4\ See, Title 21, United States Code, Section 881; Title 18, 
United States Code, Section 1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Paragraph 3 of this article makes it clear that there is no 
requirement of dual criminality under this Treaty for 
cooperation. Thus, assistance is to be provided even when the 
criminal matter under investigation in the Requesting State 
would not be a crime in the Requested State. Article 1(3) is 
important because United States and Romania criminal law differ 
significantly, and a general dual criminality rule would make 
assistance unavailable in many significant areas. During the 
negotiations, the Romania delegation gave assurances that 
assistance would be available under the Treaty to the United 
States in investigations of major crimes such as conspiracy; 
drug trafficking, including operating a continuing criminal 
enterprise (Title 21, United States Code, Section 848); 
offenses under the racketeering statutes (Title 18, United 
States Code, Section 1961-1968); money laundering; Export 
Control Act violations; criminal tax; securities fraud and 
insider trading; crimes against the environmental; or antitrust 
offenses.
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \5\ which states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Romania by letters 
rogatory, an avenue of international assistance that the Treaty 
leaves undisturbed. Similarly, the paragraph provides that the 
Treaty is not intended to create any right in a private person 
to suppress or exclude evidence provided pursuant to the 
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
    \5\ See, United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Contracting Party designate 
a ``Central Authority'' to make and receive Treaty requests. 
The Central Authority of the United States would make all 
requests to Romania on behalf of federal agencies, state 
agencies, and local law enforcement authorities in the United 
States. The Central Authority of Romania would make all 
requests emanating from officials in Romania.
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the proper federal or state agency, 
court, or other authority for execution, and ensuring that a 
timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division.\6\ Article 
2(2) of the Treaty also states that the Minister of Justice of 
Romania will serve as the Central Authority for Romania.
---------------------------------------------------------------------------
    \6\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or any other means, 
including use of the facilities of the International Criminal 
Police Organisation (INTERPOL), at the option of the Central 
Authorities themselves.

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty. These 
restrictions are similar to those found in other mutual legal 
assistance treaties.
    Paragraph (1)(a) permits the denial of a request if it 
relates to an offense under military law that would not be an 
offense under ordinary criminal law. Romania has no separate 
code of military laws.
    Paragraph (1)(b) permits the Central Authority of the 
Requested States to deny a request if execution of the request 
would prejudice the security or similar essential interests of 
that State. All United States mutual legal assistance treaties 
contain provisions allowing the Requested State to decline to 
execute a request if execution would prejudice its essential 
interests.
    The delegations agreed that the word ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the United States Department of Justice, 
as Central Authority for the United States, would work closely 
with the Department of State and other government agencies to 
determine whether to execute a request that might fall in this 
category.
    The delegations also agreed that the phrase ``essential 
interests'' was intended to narrowly limit the class of cases 
in which assistance may be denied. It would not be enough that 
the Requesting State's case is one that would be inconsistent 
with public policy had it been brought in the Requested State. 
Rather, the Requested State must be convinced that execution of 
the request would seriously conflict with significant public 
policy. An example might be a request involving prosecution by 
the Requesting State of conduct which occurred in the Requested 
State and is constitutionally protected by that State.
    However, it was agreed that ``essential interests'' could 
also be invoked if the execution of a request would violate 
essential interests related to the fundamental purposes of the 
Treaty. For example, one fundamental purpose of the Treaty is 
to enhance law enforcement cooperation, and attaining that 
purpose would be hampered if sensitive law enforcement 
information available under the Treaty were to fall into the 
wrong hands. Therefore, the U.S. Central Authority may invoke 
paragraph 1(b) to decline to provide information pursuant to a 
request under this Treaty whenever it determines, after 
appropriate consultation with law enforcement, intelligence, 
and foreign policy agencies, that a senior foreign government 
official who will have access to the information is engaged in 
a felony, including the facilitation of the production or 
distribution of illegal drugs.\7\
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    \7\ This is consistent with the Senate resolution of advice and 
consent to ratification of other recent mutual legal assistance 
treaties with, e.g., Luxembourg, Hong Kong, Poland and Barbados. See, 
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal 
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy 
Assistant Attorney General, Criminal Division, United States Department 
of Justice).
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    Paragraph (1)(c) permits the denial of a request if 
execution of the request relates to an offense that is 
considered by the Requested State to be a political offense. It 
is anticipated that the Central Authorities will employ 
jurisprudence similar to that used in extradition treaties for 
determining what is a ``political offense.'' Paragraph (1)(d) 
permits a request to be denied if it is not made in conformity 
with the Treaty.
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty,\8\ and obliges the 
Requested State to consider imposing appropriate conditions on 
its assistance in lieu of denying a request outright pursuant 
to the first paragraph of the article. For example, a 
Contracting Party might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a prosecution of a political offense 
(which would be subject to refusal). This paragraph would 
permit the Requested State to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested State would notify the Requesting 
State of any proposed conditions before actually delivering the 
evidence in question, thereby giving the Requesting State a 
chance to indicate whether it is willing to accept the evidence 
subject to the conditions. If the Requesting State does accept 
the evidence subject to the conditions, it must honor the 
conditions.
---------------------------------------------------------------------------
    \8\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at Bern 
May 25, 1973, entered into force January 23, 1977, art. 26, 27 U.S.T. 
2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.
    Paragraph 4 states that a request may not be denied on the 
ground of bank secrecy. This language, taken from the UN Model 
MLAT, was included in response to concerns by the U.S. 
delegation based on reports that Romanian bank secrecy was so 
stringent that prosecutors in Romania must obtain authorization 
from a committee composed of bank officials prior to issuing a 
subpoena for bank records, and that this requirement would also 
apply to issuance of a Romanian subpoena for bank records on 
behalf of the United States. The Romanian delegation explained 
that Article 37 of Romania's Banking Law does require that a 
bank's board of directors agree to the disclosure of bank 
records, but that this rule was intended to bar disclosures to 
civilians, not to law enforcement, and does not apply to 
disclosures in response to judicial process. They foresee no 
problem in getting bank records for the United States under the 
MLAT if the U.S. request shows that the account holder is 
implicated in the U.S. investigation in any way,\9\ either as a 
suspect or merely as someone ``withholding evidence'' from our 
investigators. They also said that Romanian prosecutors have 
the power to issue search warrants for bank records, and will 
do so on behalf of the United States if the requirements for a 
search warrant are present. Romania suggested that Article 3(4) 
be included in the MLAT to assure us that it would not allow 
bank secrecy laws to interfere with implementation of the 
Treaty.
---------------------------------------------------------------------------
    \9\ In discussing Article 37, the Romanians concluded that a bank's 
concurrence is not needed if criminal charges have been filed against 
the account holder or if a criminal investigation has begun. When the 
United States delegation indicated that this was still too narrow 
because we often need records of persons who are neither charged nor 
suspected of criminal wrongdoing themselves, the Romanian delegation 
indicated that they still believed they could find a way to get bank 
records in response to a U.S. request.
---------------------------------------------------------------------------

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``urgent situations.'' If the 
request is not in writing, it must be confirmed in writing 
within ten days unless the Central Authority of the Requested 
State agrees otherwise. Paragraph 2 provides that each request 
shall be translated into the language of the Requested State 
unless otherwise agreed. Supporting documentation is also to be 
translated, if necessary, upon request by the Requested State.
    Paragraph 3 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 lists ten kinds of 
information that are important but not always crucial, and must 
be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the States that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority to promptly 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the competent 
authorities to do everything within its power to execute the 
request. This provision is not intended or understood to 
authorize the use of the grand jury in the United States for 
the collection of evidence pursuant to a request from Romania. 
Rather, it is anticipated that when a request from Romania 
requires compulsory process for execution, the United States 
Department of Justice would ask a federal court to issue the 
necessary process under Title 28, United States Code, Section 
1782, and the provisions of the Treaty.
    The third sentence in Article 5(1) reads ``[t]he competent 
judicial or other authorities of the Requested State shall have 
power to issue subpoenas, search warrants, or other orders 
necessary to execute the request.'' This language specifically 
authorizes United States courts to use all of their powers to 
issue subpoenas and other process to satisfy a request under 
the Treaty. It also reflects an understanding that the States 
intend to provide each other with every available form of 
assistance from judicial and executive branches of government 
in the execution of mutual assistance requests. The phrase 
refers to ``judicial or other authorities'' to include all 
those officials authorized to issue compulsory process that 
might be needed in executing a request.
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for 
representing the Requesting State in the execution of a request 
for assistance. Thus, it is understood that if execution of the 
request entails action by a judicial authority or 
administrative agency, the Central Authority of the Requested 
State shall arrange for the presentation of the request to that 
court or agency at no cost to the Requesting State.
    Paragraph 3 provides that ``[r]equests shall be executed 
according to the laws and procedures of the Requested State 
except to the extent that this Treaty provides otherwise.'' 
Thus, the method of executing a request for assistance under 
the Treaty must be in accordance with the Requested State's 
internal laws absent specific contrary procedures in the Treaty 
itself. The delegations discussed the fact that neither State 
anticipates taking actions pursuant to a treaty request that 
would be prohibited under its internal laws. For the United 
States, the Treaty is intended to be self-executing; no new or 
additional legislation will be needed to carry out the 
obligations undertaken.
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by U.S. and Romanian 
authorities in collecting evidence in order to assure the 
admissibility of that evidence at trial. For instance, United 
States law permits documents obtained abroad to be admitted in 
evidence if they are duly certified and the defendant has been 
given fair opportunity to test its authenticity.\10\ Since 
Romania's law contains no similar provision, documents acquired 
in Romania in strict conformity with Romanian procedures might 
not be admissible in United States courts. Furthermore, United 
States courts use procedural techniques such as videotape 
depositions that simply are not used in Romania even though 
they are not forbidden there.
---------------------------------------------------------------------------
    \10\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    Both delegations agreed that the Treaty's primary goal of 
enhancing law enforcement in the Requesting State could be 
frustrated if the Requested State were to insist on producing 
evidence in a manner which renders the evidence inadmissible or 
less persuasive in the Requesting State. For this reason, 
Paragraph 3 requires the Requested State to follow the 
procedure outlined in the request to the extent that it can, 
even if the procedure is not that usually employed in its own 
proceedings. However, if the procedure called for in the 
request is unlawful in the Requested State (as opposed to 
simply unfamiliar there), the appropriate procedure under the 
law applicable for investigations or proceedings in the 
Requested State will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The Central Authority of the Requested State may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence that might otherwise be lost before 
the conclusion of the investigation or legal proceedings in 
that State. The paragraph also allows the Requested State to 
provide the information to the Requesting State subject to 
conditions needed to prevent interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation, 
prosecution, or proceeding'' as required by Article 4(2)(b). 
Therefore, Paragraph 5 of Article 5 enables the Requesting 
State to call upon the Requested State to use its best efforts 
to keep the information in the request confidential.\11\ If the 
Requested State cannot execute the request without disclosing 
the information in question (as might be the case if execution 
requires a public judicial proceeding in the Requested State), 
or if for some other reason this confidentiality cannot be 
assured, the Treaty obliges the Requested State to so indicate, 
thereby giving the Requesting State an opportunity to withdraw 
the request rather than risk jeopardizing an investigation or 
proceeding by public disclosure of the information.
---------------------------------------------------------------------------
    \11\ This provision is similar to language in other United States 
mutual legal assistance treaties. See, e.g., U.S.-Lithuania Mutual 
Legal Assistance Treaty, signed at Washington January 16, 1998, entered 
into force August 26, 1999, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress toward execution of its 
request. This is to encourage open communication between the 
Central Authorities in monitoring the status of specific 
requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties.\12\ Since 
the cost of retaining counsel abroad to present and process 
letters rogatory is sometimes quite high, this provision for 
reciprocal legal representation is a significant advance in 
international legal cooperation. It is also understood that 
should the Requesting State choose to hire private counsel for 
a particular request, it is free to do so at its own expense. 
Article 6 does obligate the Requesting State to pay fees of 
expert witnesses, translation,\13\ interpretation and 
transcription costs, and allowances and expenses related to 
travel of persons pursuant to Articles 10, 11 and 12.
---------------------------------------------------------------------------
    \12\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty, 
signed at Washington February 4, 1998, entered into force May 7, 2000, 
art. 6.
    \13\ The Romanian delegation stated that in Romania translations 
are routinely paid for by the State, so the United States ordinarily 
would not be charged for translations conducted there.
---------------------------------------------------------------------------
    Paragraph 2 of this article provides that if it becomes 
apparent during the execution of a request that complete 
execution of a request would require extraordinary expenses, 
then the Central Authorities shall consult to determine the 
terms and conditions under which execution may continue.

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that the Requesting State not use 
any information or evidence provided under the Treaty in any 
investigation, prosecution, or proceeding other than that 
described in the request without the prior consent of Central 
Authority of the Requested State. If such a use limitation is 
required, the Requesting State must comply with the 
requirement. It will be recalled that Article 4(3)(d) states 
that the Requesting State must specify the purpose for which 
the information or evidence is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it furnishes to the Requesting 
State be kept confidential. The delegations agreed that 
conditions of confidentiality would be imposed only when 
necessary, and would be tailored to fit the circumstances of 
each particular case. For instance, the Requested State may 
wish to cooperate with the investigation in the Requesting 
State but choose to limit access to information which might 
endanger the safety of an informant, or unduly prejudice the 
interests of persons not connected in any way with the matter 
being investigated in the Requesting State. Paragraph 2 
requires that if conditions of confidentiality are imposed, the 
Requesting State must make ``best efforts'' to comply with 
them. This ``best efforts'' language was used because the 
purpose of the Treaty is the production of evidence for use at 
trial, and that purpose would be frustrated if the Requested 
State could routinely permit the Requesting State to see 
valuable evidence, but impose confidentiality restrictions 
which prevent the Requesting State from using it.
    The Romanian delegation expressed concern that information 
it might supply in response to a request by the United States 
under the Treaty not be disclosed under the Freedom of 
Information Act. Both delegations agreed that since this 
article permits the Requested State to prohibit the Requesting 
State's disclosure of information for any purpose other than 
that stated in the request, a Freedom of Information Act 
request that seeks information that the United States obtained 
under the Treaty would have to be denied if the United States 
received the information on the condition that it be kept 
confidential.
    Paragraph 3 states that nothing in Article 7 shall preclude 
the use or disclosure of information to the extent that there 
is an obligation to do so under the Constitution of the 
Requesting State in a criminal prosecution.\14\ Any such 
proposed disclosure and the provision of the Constitution under 
which such disclosure is required shall be notified by the 
Requesting State to the Requested State in advance.
---------------------------------------------------------------------------
    \14\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed to the public in a manner consistent 
with Paragraph 1 or 2, the Requesting State is free to use the 
evidence.\15\ When evidence obtained under the Treaty has been 
revealed to the public in a trial, that information effectively 
becomes part of the public domain, and is likely to become a 
matter of common knowledge, perhaps even be described in the 
press. The negotiators noted that once this has occurred, it is 
practically impossible for the Central Authority of the 
Requesting State to block the use of that information by third 
parties.
---------------------------------------------------------------------------
    \15\ Many U.S. MLATs state that information that has been made 
public in the requesting state may be used ``for any purpose'' 
thereafter. Romania requested that the phrase ``for any purpose'' not 
appear in this Treaty because it might be read to authorize the use of 
the information or evidence for illegal purposes, but Romania fully 
agreed that the information or evidence can be used for any lawful 
purpose or in any investigation, prosecution, or proceeding, whether or 
not the matter is related to the matter identified in the request.
---------------------------------------------------------------------------
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 7 are for the benefit of the 
Contracting Parties, and the invocation and enforcement of 
these provisions are left entirely to the Contracting Parties. 
If a person alleges that a Romania authority has used 
information or evidence obtained from the United States in a 
manner inconsistent with this article, the person can inform 
the Central Authority of the United States of the allegations 
for consideration as a matter between the Contracting Parties.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or give statements, or 
produce items, including documents and records and articles of 
evidence.
    The compulsion contemplated by this article can be 
accomplished in the United States by subpoena under Title 28, 
United States Code, Section 1782 or any other means available 
under the law of the Requested State. The Romanian delegation 
predicted that when the Treaty is in force Romania will use a 
combination of subpoenas, search warrants, and other measures 
to compel witnesses to provide information in response to U.S. 
requests. The Romanian delegation explained that in Romania, 
prosecutors usually employ a search warrant to obtain 
information from a bank or other institution that is needed in 
criminal investigations. It is possible to issue a subpoena, 
but evidently that is not done often, primarily because the 
penalty for noncompliance with a subpoena is such a small fine 
that subpoenas have little coercive effect. A similar problem 
emerged in discussions regarding obtaining documents, records 
or physical evidence from private citizens. The Romanian 
delegation indicated that its Central Authority could issue a 
subpoena for such items, but this may not be effective because 
the fines for noncompliance are very small. Alternatively, 
Romanian prosecutors could issue search warrants and seize the 
items, but only if the person with the item is the target of 
the investigation. In both cases the Romanian delegation 
ultimately concluded that Romania probably will need to 
consider new legislation to carry out its obligations under the 
Treaty.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request, including the defendant and his counsel in criminal 
cases, shall be permitted by the Requested State to be present 
and question the person giving the testimony or evidence. 
Persons present at the execution of a request will also be 
permitted to make a verbatim record, using technical means.
    Paragraph 4 states that if a witness asserts a claim of 
immunity, incapacity, or privilege that is unique to the 
Requesting State, the Requested State will take the evidence 
and turn it over to the Requesting State along with notice that 
it was obtained over a claim of privilege. The applicability of 
the privilege can then be determined in the Requesting State, 
where the scope of the privilege and the legislative and policy 
reasons underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties.\16\ It is understood that when a person asserts a 
claim of immunity, incapacity, or privilege under the laws of 
the Requested State, that claim shall be resolved in accordance 
with the law of the Requested State. This is consistent with 
Article 5(3), and ensures that no person will be compelled to 
furnish information if he has a right not to do so under the 
law of the Requested State. Thus, a witness questioned in the 
United States pursuant to a request from Romania is guaranteed 
the right to invoke any of the testimonial privileges (e.g., 
attorney client, inter-spousal) available in the United States 
as well as the constitutional privilege against self-
incrimination, to the extent that it might apply in the context 
of evidence being taken for foreign proceedings.\17\ A witness 
testifying in Romania may raise any of the similar privileges 
available under the law of Romania.
---------------------------------------------------------------------------
    \16\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty, 
signed at Bridgetown February 28, 1996, and entered into force March 3, 
2000, art. 8(4)).
    \17\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 5 states that evidence produced pursuant to this 
article may be authenticated by an attestation, including, in 
the case of business records, authentication in the manner 
indicated in Form A appended to the Treaty. The absence or 
nonexistence of such evidence will be authenticated on Form B. 
The attestation will be given under oath, before a judge 
magistrate, or judicial officer, and any false statements made 
in the attestation will be subject to prosecution in Romania as 
a false oath or declaration in violation of Article 292 of 
Romania's Criminal Code. Thus, the provision establishes a 
procedure for authenticating records in a manner essentially 
similar to Title 18, United States Code, Section 3505. It is 
understood that this paragraph provides for the admissibility 
of authenticated documents as evidence without additional 
foundation or authentication. With respect to the United 
States, this paragraph is self-executing, and does not need 
implementing legislation.
    Article 8(5) provides that the evidence authenticated by 
Form A, or Form B, is ``admissible,'' but of course, it will be 
up to the judicial authority presiding over the trial to 
determine whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (such as relevance, and materiality) would still 
have to be satisfied in each case.

                      Article 9--Official Records

    Paragraph 1 obliges each State to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a governmental or 
judicial authority in the Requested State. The term 
``governmental or judicial authority'' includes all executive, 
judicial, and legislative units of the Federal, State, and 
local level in each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The undertaking under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over such information in 
its files ``to the same extent and under the same conditions'' 
as it would to its own law enforcement or judicial authorities. 
It is intended that the Central Authority of the Requested 
State, in close consultation with the interested law 
enforcement authorities of that State, will determine that 
extent and what those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty, 
like most other U.S. bilateral mutual legal assistance 
treaties, is a ``convention relating to the exchange of tax 
information'' for purposes of Title 26, United States Code, 
Section 6103(k)(4), and the United States would have the 
discretion to provide tax return information to Romania under 
this article in appropriate cases.
    Paragraph 3 states that records provided under this article 
may be authenticated by the officials responsible for 
maintaining them through the use of Form C appended to the 
Treaty. No further authentication is required. If authenticated 
in this manner, the records shall be admissible in evidence in 
the Requesting State. The paragraph also provides for the 
appropriate officials to certify the absence or nonexistence of 
records, through Form D appended to the Treaty. Thus, the 
Treaty establishes a procedure for authenticating official 
foreign documents that is consistent with Rule 902(3) of the 
Federal Rules of Evidence and Rule 44, Federal Rules of Civil 
Procedure.
    Paragraph 3, similar to Article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible'' but 
it will, of course, be up to the judicial authority presiding 
over the trial to determine whether the evidence should in fact 
be admitted. The evidentiary tests other than authentication 
(such as relevance or materiality) must be established in each 
case.

         Article 10--Appearance Outside of the Requested State

    This article provides that upon request, the Requested 
State shall invite persons in the Requested State to travel 
outside of the Requested State to appear in the Requesting 
State or in a third state for purposes of assistance under this 
Treaty. An appearance outside of the Requested State under this 
article is not mandatory, and the invitation may be refused by 
the prospective witness. The first paragraph states that the 
Central Authority of the Requested State shall promptly inform 
the Central Authority of the Requesting State of the person's 
response. The paragraph also states that if the appearance is 
in a third state, the Requesting State shall be responsible for 
obtaining any necessary authorization from that third state.
    Paragraph 2 provides that the Requesting State must 
indicate to the Requested State the extent to which the 
person's expenses will be paid, pursuant to Article 6. It is 
assumed that such expenses would normally include the costs of 
transportation, and room and board. When the person is to 
appear in the United States, a nominal witness fee would also 
be provided. The paragraph provides that the person may ask 
that the Requesting State advance the money to pay these 
expenses, and that this advance may be handled through the 
Embassy or consulate of the Requesting State in the Requested 
State.
    Paragraph 3 provides that the Central Authority of the 
Requesting State may, in its discretion, determine that a 
person appearing in the Requesting State under this Article 
shall not be subject to service of process, or be detained or 
subjected to any restriction of personal liberty by reason of 
acts or convictions which preceded the person's departure for 
the Requesting State from the Requested State. It is understood 
that this provision would not prevent the prosecution of a 
person for perjury or any other crime committed while in the 
Requesting State.
    Paragraph 4 states that any safe conduct provided under 
this article expires seven days after the Central Authority of 
the Requesting State has notified the Central Authority of the 
Requested State that the person's presence is no longer 
required, or if the person leaves the territory of the 
Requesting State and thereafter returns to it. However, the 
Central Authority of the Requesting State may extend the safe 
conduct up to fifteen days if it determines that there is good 
cause to do so.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings.\18\
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    \18\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Article 11 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty,\19\ which in 
turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters.\20\ It provides that 
persons in custody in the Requested State, whose presence 
outside of that State (i.e., to the Requesting State or to a 
third state) is sought for purposes of assistance under the 
Treaty, may be transferred in custody for that purpose if the 
person consents and the Central Authorities of both states 
agree. The paragraph also states that if the transfer of the 
person outside the Requested State is to a third state rather 
than to the Requesting State, it is the Requesting State that 
must be responsible for obtaining any necessary authorizations 
from that third state. Indeed, it is understood that the 
Requesting State must make all arrangements with the third 
state to meet the requirements of this paragraph, including the 
requirements that the person be kept in custody and returned to 
the Requested State.
---------------------------------------------------------------------------
    \19\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at 
Bern May 25, 1973, entered into force January 23, 1977, art. 26.
    \20\ It is also consistent with Title 18, United States Code, 
Section 3508, which provides for the transfer to the United States of 
witnesses in custody in other States whose testimony is needed at a 
federal criminal trial.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State 
for that purpose if the person consents and if the Central 
Authorities of both States agree. This would also cover 
situations in which a person in custody in the United States on 
a criminal matter has sought permission to travel to another 
country to be present at a deposition being taken there in 
connection with the case.\21\
---------------------------------------------------------------------------
    \21\ See, also, United States v. King, 552 F.2d 833 (9th Cir. 
1976), cert. denied, 430 U.S. 966 (1977), where the defendants insisted 
on traveling to Japan to be present at the deposition of certain 
witnesses in prison there.
---------------------------------------------------------------------------
    Paragraph 3 provides express authority for the receiving 
State to keep such a person in custody throughout the person's 
stay there, unless the sending State specifically authorizes 
release. This paragraph also requires and authorizes the 
receiving State to return the person in custody to the sending 
State as soon as circumstances permit or as otherwise agreed, 
and provides that this return will occur in accordance with 
terms and conditions agreed upon by the Central Authorities. 
The initial transfer of a prisoner under this article requires 
the consent of the person involved and of both Central 
Authorities, but the provision does not require that the person 
consent to be returned to the sending State.
    In keeping with the obligation to return a person 
transferred under this article, paragraph (3)(c) explicitly 
prohibits the Party to whom a person is transferred from 
requiring the transferring Party to initiate extradition or any 
other proceedings before the status quo is restored by the 
return of the person transferred. Paragraph (3)(d) states that 
the person is to receive credit for time served while in the 
custody of the receiving State. This is consistent with United 
States practice in these matters.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the Receiving State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

               Article 12--Transit of Persons in Custody

    Article 11 contemplates that persons in custody will be 
moved from State to State for purposes of mutual assistance, 
and it is reasonable to anticipate situations in which one 
State may need to bring persons in custody through the other on 
the way to or from third States. Article 12 provides the legal 
framework for such transit. Similar articles appear in other 
recent U.S. mutual legal assistance treaties.\22\
---------------------------------------------------------------------------
    \22\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 11.
---------------------------------------------------------------------------
    Paragraph 1 states that a Requested State may authorize the 
transit through its territory of a person whose personal 
appearance has been requested in investigations, prosecutions, 
or proceedings in the Requesting State.\23\
---------------------------------------------------------------------------
    \23\ The Romanian delegation indicated that there is some question 
whether Romania would exercise its discretion to authorize the transit 
in custody of a Romanian national because of the potential for 
litigation attempting to apply its constitutional ban on extradition of 
nationals to such transit.
---------------------------------------------------------------------------
    Paragraph 2 states that the Requested State shall have the 
authority and obligation to keep the person in custody in its 
territory.

       Article 13--Location or Identification of Persons or Items

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

                    Article 14--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers 
relating in whole or in part to a Treaty request. Identical 
provisions appear in most U.S. mutual legal assistance 
treaties.\24\
---------------------------------------------------------------------------
    \24\ See, e.g., U.S.-Lithuania Mutual Legal Assistance Treaty, 
signed at Washington, January 16, 1998, entered into force August 26, 
1999, art. 13.
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Romania to follow a specified 
procedure for service) or by the United States Marshal's 
Service in instances in which personal service is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents are to be transmitted by the Central Authority of 
the Requesting State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 15--Search and Seizure

    It sometimes serves the interests of justice for one State 
to ask another to find, secure, and deliver articles or objects 
needed in the former as evidence or for other purposes. United 
States courts can and do execute such requests under Title 28, 
United States Code, Section 1782.\25\ Article 15 creates a 
formal framework for handling such requests and resembles 
provisions in other United States mutual legal assistance 
treaties.\26\
---------------------------------------------------------------------------
    \25\ See, e.g., United States Ex Rel Public Prosecutor of 
Rotterdam, Netherlands v. Richard Jean Van Aalst, Case No 84-52-M-01 
(M.D. Fla., Orlando Div.) (Search warrant issued February 24, 1984).
    \26\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 15(3).
---------------------------------------------------------------------------
    Article 15 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Romania will have to be supported by a 
showing of probable cause for the search. A United States 
request to Romania would have to contain all the details 
concerning the action in the U.S. and satisfy the corresponding 
evidentiary standard there, contained in Article 100 of the 
Romanian Penal Procedure Code.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision requires that, upon request, every official who 
has custody of a seized item shall certify, through the use of 
Form E appended to this Treaty, the continuity of custody, the 
identity of the item, and any changes in its condition.
    The article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the Requesting State, thus relieving 
the Requesting State of the burden, expense, and inconvenience 
of having to send its law enforcement officers to the Requested 
State to provided authentication and chain of custody testimony 
each time the Requesting State uses evidence produced under 
this article. As in Articles 8(5) and 9(3), the injunction that 
the certificates be admissible without additional 
authentication leaves the trier of fact free to bar use of the 
evidence itself, in spite of the certificate, if there is some 
reason to do so other than authenticity or chain of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred.

                      Article 16--Return of Items

    This article provides that any documents or items of 
evidence furnished under the Treaty must be returned to the 
Requested State as soon as possible. The delegations understood 
that this requirement would be invoked only if the Central 
Authority of the Requested State specifically requests it at 
the time that the items are delivered to the Requesting State. 
It is anticipated that unless original records or articles of 
significant intrinsic value are involved, the Requested State 
will not usually request return of the items, but this is a 
matter best left to development in practice.

         Article 17--Proceeds and Instrumentalities of Offenses

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Romania in combating narcotics 
trafficking. One significant strategy in this effort is action 
by United States authorities to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    This article is similar to a number of United States mutual 
legal assistance treaties, including Article 16 in the U.S.-
Barbados Mutual Legal Assistance Treaty and Article 17 of the 
U.S.-Latvia Mutual Legal Assistance Treaty. Paragraph 1 
authorizes the Central Authority of one State to notify the 
other of the existence in the latter's territory of proceeds or 
instrumentalities of offenses that may be forfeitable or 
otherwise subject to seizure. The term ``proceeds or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables either used in the crime or 
purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Romania, they could be seized under 
Title 18, United States Code, Section 981 in aid of a 
prosecution under Title 18, United States Code, Section 
2314,\27\ or be subject to a temporary restraining order in 
anticipation of a civil action for the return of the assets to 
the lawful owner. Proceeds of a foreign kidnaping, robbery, 
extortion or a fraud by or against a foreign bank are civilly 
and criminally forfeitable in the United States since these 
offenses are predicate offenses under U.S. money laundering 
laws.\28\ Thus, it is a violation of U.S. criminal law to 
launder the proceeds of these foreign fraud or theft offenses, 
when such proceeds are brought into the United States.
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    \27\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad. Proceeds of such 
activity become subject to forfeiture pursuant to Title 18, United 
States Code, Section 981 by way of Title 18, United States Code, 
Section 1956 and Title 18, United States Code, Section 1961. The 
forfeiture statute applies to property involved in transactions in 
violation of section 1956, which covers any activity constituting an 
offense defined by section 1961(1), which includes, among others, Title 
18, united States Code, Section 2314.
    \28\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be able and 
willing to help one another. Title 18, United States Code, 
Section 981(a)(1)(B), allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada; there is a growing trend among nations 
toward enacting legislation of this kind in the battle against 
narcotics trafficking.\29\ The United States delegation expects 
that Article 16 of the Treaty will enable this legislation to 
be even more effective.
---------------------------------------------------------------------------
    \29\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, December 20, 
1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds or instrumentalities 
of offenses, to restitution to crime victims, or to the 
collection of fines imposed as sentences in criminal 
convictions.\30\ It specifically recognizes that the 
authorities in the Requested State may take immediate action to 
temporarily immobilize the assets pending further 
proceedings.\31\ Thus, if the law of the Requested State 
enables it to seize assets in aid of a proceeding in the 
Requesting State or to enforce a judgment of forfeiture levied 
in the Requesting State, the Treaty provides that the Requested 
State shall do so. The language of the article is carefully 
selected, however, so as not to require either State to take 
any action that would exceed its internal legal authority. It 
does not, for instance, mandate institution of forfeiture 
proceedings or initiation of temporary immobilization in either 
country against property identified by the other if the 
relevant prosecution officials do not deem it proper to do 
so.\32\
---------------------------------------------------------------------------
    \30\ See, Article 519-522 of the Romanian Penal Procedure Code on 
enforcement of foreign judgments.
    \31\ The Romanian delegation said that this could be done pursuant 
to Article 163 et seq. of the Penal Procedure Code.
    \32\ In Romania, unlike in the United States, the law does not 
allow for civil forfeiture. However, Romanian law permits forfeiture in 
criminal cases, and ordinarily a defendant must be convicted in order 
for Romania to confiscate the defendant's property.
---------------------------------------------------------------------------
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State.\33\ 
Paragraph 3 is consistent with this framework, and will enable 
a Contracting Party having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other 
Contracting Party, at the former's discretion and to the extent 
permitted by their respective laws.
---------------------------------------------------------------------------
    \33\ See, Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------

           Article 18--Compatibility with Other Arrangements

    This article states that assistance and procedures set 
forth in this Treaty shall not prevent either Party from 
granting assistance to the other Party through the provisions 
of other applicable international agreements. Article 18 also 
states that the Parties may provide assistance pursuant to any 
bilateral arrangement, agreement, or practice that may be 
applicable.\34\
---------------------------------------------------------------------------
    \34\ See, e.g., the Agreement for the Direct Exchange of Certain 
Information Regarding the Trafficking in Narcotic Drugs, Exchange of 
Notes at Bucharest February 4, 1928 and April 7, 1929, entered into 
force April 17, 1929 (11 Bevans 414).
---------------------------------------------------------------------------
    The Treaty would leave the provisions of United States and 
Romania law on letters rogatory completely undisturbed, and 
would not alter any pre-existing agreements concerning 
investigative assistance.

                        Article 19--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting Parties will share those ideas with one 
another, and encourages them to agree on the implementation of 
such measures. Practical measures of this kind might include 
methods of keeping each other informed of the progress of 
investigations and cases in which treaty assistance was 
utilized. Similar provisions are contained in other recent 
United States mutual legal assistance treaties. It is 
anticipated that the Central Authorities will conduct regular 
consultations pursuant to this article.

      Article 20--Ratification, Entry Into Force, and Termination

    Paragraph 1 provides that the Treaty shall be subject to 
ratification, with the instruments of ratification to be 
exchanged as soon as possible. Paragraph 2 provides that the 
Treaty shall enter into force immediately upon the exchange of 
instruments of ratification. Paragraph 3, like many recent U.S. 
mutual legal assistance treaties, provides that the Treaty 
shall apply to any request presented after the date of the 
Treaty's entry into force, without regard to whether the 
relevant acts or omissions under investigation occurred prior 
to or after the date on which the Treaty entered into force. 
Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of receipt of written 
notification. Similar termination provisions are included in 
other United States mutual legal assistance treaties.
                                ------                                


 Technical Analysis of the Treaty Between the United States of America 
and the Republic of South Africa on Mutual Legal Assistance in Criminal 
                                Matters

    On September 16, 1999, the United States signed a Treaty 
Between the Government of the United States of America and the 
Government of the Republic of South Africa on Mutual Legal 
Assistance in Criminal Matters (``the Treaty''). In recent 
years, the United States has signed similar treaties with a 
number of countries as part of a highly successful effort to 
modernize the legal tools available to law enforcement 
authorities in need of foreign evidence for use in criminal 
cases.
    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, international drug trafficking, and 
other offenses.
    It is anticipated that the Treaty will be implemented in 
the United States largely pursuant to the procedural framework 
provided by Title 28, United States Code, Section 1782. South 
Africa currently has its own legislation on mutual legal 
assistance,\1\ but it anticipates enacting additional 
legislation to implement the Treaty.\2\
---------------------------------------------------------------------------
    \1\ The ``International Co-operation in Criminal Matters Act, 1996 
(Act No. 75 of 1996).'' The key sections of this law that are germane 
to the interpretation and implementation of the Treaty are discussed in 
more detail in this technical analysis.
    \2\ The South African delegation said that under Article 231 of 
South Africa's Constitution, a mutual assistance treaty as normally 
brought into force has the force and effect of law in South Africa 
unless it is inconsistent with the Constitution or an Act of 
Parliament. Thus, the terms of this Treaty would be overridden by any 
inconsistent internal law, apparently including pre-existing law, 
unless the treaty is enacted into law in national legislation. (Such 
enactment would be the functional equivalent of the enactment of 
implementing legislation identical to the Treaty's terms.) The U.S. 
delegation made it clear that the United States would consider it a 
breach of the Treaty if South Africa were to rely on internal statutes 
to deny assistance on grounds that are not contained in the Treaty. The 
South African delegation assured the U.S. delegation that South Africa 
takes its treaty obligations seriously, and agreed to consider the U.S. 
recommendation that this Treaty be brought into force by enactment into 
law to ensure that this Treaty would supersede any earlier, 
inconsistent legislation.
---------------------------------------------------------------------------
    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 
history. 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--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of offenses, and in proceedings relating to 
criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in South 
Africa, and other legal measures taken prior to the filing of 
formal charges in either State.\3\ The term ``proceedings'' was 
intended to cover the full range of proceedings in a criminal 
case, including such matters as bail and sentencing 
hearings.\4\ It was also agreed that since the phrase 
``proceedings related to criminal matters'' is broader than the 
investigation, prosecution, or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature,\5\ but the treaty covers such proceedings.
---------------------------------------------------------------------------
    \3\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the United States inasmuch as 
U.S. investigators and prosecutors often need to obtain evidence from 
foreign countries in order to determine whether or not to file criminal 
charges. This obligation is a reciprocal one; the United States must 
assist South Africa under the Treaty in connection with investigations 
prior to charges being filed in South Africa.
    \4\ One U.S. court has interpreted Title 28, United States Code, 
Section 1782, as permitting the execution of a request for assistance 
from a foreign country only if the evidence sought is for use in 
proceedings before an adjudicatory ``tribunal'' in the foreign country. 
In Re Letters Rogatory Issued by the Director of Inspection of the 
Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. Blumenthal, 
620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary obstacle to 
the execution of requests concerning matters at the investigatory 
stage, or customarily handled by administrative officials in the 
Requesting State. Since this paragraph of the Treaty specifically 
permits requests to be made in connection with matters not within the 
jurisdiction of an adjudicatory ``tribunal'' in the Requesting State, 
this paragraph accords the courts broader authority to execute requests 
than does Title 28, United States Code, Section 1782, as interpreted in 
the India and Fonseca cases.
    \5\ See, Title 21, United States Code, Section 881; Title 18, 
United States Code, Section 1964. The U.S. and South African 
delegations also discussed the fact that some U.S. agencies such as the 
Securities and Exchange Commission have both criminal and civil 
responsibilities, and occasionally must investigate activity thoroughly 
before deciding whether to pursue the matter by civil or administrative 
sanctions or refer it for criminal prosecution. The delegations agreed 
that in such cases the matter could be considered ``proceedings related 
to criminal matters'' if the investigating agency and the Central 
Authority in the Requesting State believe, in good faith, that a 
criminal prosecution is a possibility.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Paragraph 3 makes it clear that there is no requirement of 
dual criminality under this Treaty for cooperation. Thus, 
assistance is to be provided even when the criminal matter 
under investigation in the Requesting State would not be a 
crime in the Requested State. Article 1(3) is important because 
United States and South Africa criminal laws differ 
significantly, and a dual criminality rule would make 
assistance unavailable in many significant areas.
    Paragraph 4 contains a standard provision in U.S. mutual 
legal assistance treaties \6\ which states that the Treaty is 
intended solely for government-to-government mutual legal 
assistance. The Treaty is not intended to provide to private 
persons a means of evidence gathering, or to extend generally 
to civil matters. Private litigants in the United States may 
continue to obtain evidence from South Africa by letters 
rogatory, an avenue of international assistance that the Treaty 
leaves undisturbed. Similarly, the paragraph provides that the 
Treaty is not intended to create any right in a private person 
to suppress or exclude evidence provided pursuant to the 
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
    \6\ See, United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party designate a ``Central 
Authority'' to make and receive Treaty requests. The Central 
Authority of the United States would make all requests to South 
Africa on behalf of federal agencies, state agencies, and local 
law enforcement authorities in the United States. The Central 
Authority of South Africa would make all requests emanating 
from officials in South Africa.
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the proper agency, court, or other 
authority (which in the United States may be federal or state) 
for execution, and ensuring that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual legal assistance treaties to the 
Assistant Attorney General in charge of the Criminal 
Division.\7\ Article 2(2) of the Treaty also states that ``the 
Director-General: Department of Justice'' of South Africa or a 
person designated by that official will serve as the Central 
Authority for South Africa.\8\
---------------------------------------------------------------------------
    \7\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
    \8\ The Director General is designated Central Authority under the 
International Co-operation in Criminal Matters Act, 1996 (Act No. 75 of 
1996), but the South African delegation anticipated that new 
legislation will be needed to implement this treaty, which might 
transfer the Central Authority function to another office.
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, facsimile, or any other means, at 
the option of the Central Authorities themselves. The paragraph 
also states that in exceptional circumstances the Central 
Authorities may effect communication with each other through 
diplomatic channels or through the International Criminal 
Police Organisation (INTERPOL). Similar provisions appear in 
some other recent U.S. mutual legal assistance treaties.\9\ The 
delegations agreed that while use of diplomatic channels may be 
useful in rare cases involving requests of extraordinary 
diplomatic sensitivity, it is not anticipated that this option 
would be utilized routinely, or often, since an important goal 
of this Treaty is to encourage direct communication between the 
law enforcement communities of the two Parties.
---------------------------------------------------------------------------
    \9\ See, e.g., U.S.-Korea Mutual Legal Assistance Treaty, signed at 
Washington November 23, 1993, entered into force May 23, 1997, art. 
2(2).
---------------------------------------------------------------------------

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty. These 
restrictions are similar to those found in other mutual legal 
assistance treaties.
    Paragraph (1)(a) permits the denial of a request if 
execution of the request relates to an offense that is 
considered by the Requested State to be a political offense.
    Paragraph (1)(b) permits the Central Authority of the 
Requested State to deny a request if it relates to an offense 
under military law that would not be an offense under ordinary 
criminal law.
    Paragraph (1)(c) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the national security or any other essential 
interests of that State. All United States mutual legal 
assistance treaties contain provisions allowing the Requested 
State to decline to execute a request if execution would 
prejudice its essential interests.
    The delegations agreed that the phrase ``national 
security'' would include cases in which assistance might 
involve disclosure of information that is classified for 
national security reasons. It is anticipated that the U.S. 
Department of Justice, as Central Authority for the United 
States, will work closely with the Department of State and 
other government agencies to determine whether to execute a 
request that might fall in this category.
    The delegations also agreed that the phrase ``essential 
interests'' was intended to narrowly limit the class of cases 
in which assistance may be denied. It would not be enough that 
the Requesting State's case is one that would be inconsistent 
with public policy had it been brought in the Requested State. 
Rather, the Requested State must be convinced that execution of 
the request would seriously conflict with significant public 
policy. An example might be a request involving prosecution by 
the Requesting State of conduct that occurred in the Requested 
State and is constitutionally protected in that State.
    However, it was agreed that ``essential interests'' could 
also be invoked if the execution of a request would violate 
essential interests related to the fundamental purposes of the 
Treaty. For example, one fundamental purpose of the Treaty is 
to enhance law enforcement cooperation, and attaining that 
purpose would be hampered if sensitive law enforcement 
information available under the Treaty were to fall into the 
wrong hands. Therefore, the U.S. Central Authority may invoke 
paragraph 1(b) to decline to provide information pursuant to a 
request under this Treaty if it determines, after appropriate 
consultation with law enforcement, intelligence, and foreign 
policy agencies, that a senior foreign government official who 
will have access to the information is engaged in a felony, 
including facilitation of the production or distribution of 
illegal drugs.\10\
---------------------------------------------------------------------------
    \10\ This is consistent with the Senate resolution of advice and 
consent to ratification of other recent mutual legal assistance 
treaties with, e.g., Luxembourg, Hong Kong, Poland and Barbados. See, 
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal 
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy 
Assistant Attorney General, Criminal Division, United States Department 
of Justice).
---------------------------------------------------------------------------
    Paragraph (1)(d) permits a request to be denied if it is 
not made in conformity with the Treaty.
    Paragraph 2 is similar to Article 4(2) of the U.S.-South 
Africa Extradition Treaty signed September 16, 1999, and 
identifies five categories of offenses that are not to be 
considered ``political offenses'' for which assistance can be 
denied under this Article.
    First, the political offense exception does not apply where 
there is a murder or other violent crime against the person of 
a Head of State or Deputy Head of State of the Requesting or 
Requested States, or a member of such persons'' family. This 
clause covers a Deputy Head of State because in South Africa 
the Deputy Head of State acts as Head of State in the Head of 
State's absence or incapacity.
    Second, the political offense exception does not apply to 
offenses included in a multilateral treaty, convention, or 
international agreement that requires the parties to either 
extradite the person sought or submit the matter for 
prosecution, such as, for instance, the Convention for the 
Suppression of Unlawful Seizures of Aircraft, done at the Hague 
on 16 December 1970 (entered into force for South Africa 29 
June 1972), 22 UST 1641, TIAS 7192.
    Third, the political offense exception does not apply to 
any offense that constitutes murder.
    Fourth, the political offense exception does not apply to 
an offense involving kidnaping, abduction, or any form of 
unlawful detention, including the taking of a hostage.
    Finally, the political offense exception does not apply to 
conspiring or attempting to commit, or aiding, abetting, 
inducing, counseling, or procuring the commission of, or being 
an accessory before or after the fact to such an offense.
    Paragraph 3 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty,\11\ and obliges the 
Requested State to consider imposing appropriate conditions on 
its assistance in lieu of denying a request outright pursuant 
to the first paragraph of the article. For example, a Party 
might request information that could be used either in a 
routine criminal case (which would be within the scope of the 
Treaty) or in a prosecution of a political offense (which would 
be subject to refusal). This paragraph would permit the 
Requested State to provide information on the condition that it 
be used only in the routine criminal case. It is contemplated 
that the Requested State will notify the Requesting State of 
any proposed conditions before actually delivering the evidence 
in question, thereby giving the Requesting State a chance to 
indicate whether it is willing to accept the evidence subject 
to the conditions. If the Requesting State accepts the evidence 
subject to the conditions, it must honor the conditions.
---------------------------------------------------------------------------
    \11\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at 
Bern May 25, 1973, entered into force January 23, 1977, art. 26, 27 
U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
    Paragraph 4 requires the Central Authority of the Requested 
State to promptly notify the Central Authority of the 
Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings and enable the Requesting State thereafter to 
better prepare its requests.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``emergency situations.'' If the 
request is not in writing, it must be confirmed in writing 
within 10 days unless the Central Authority of the Requested 
State agrees otherwise. Each request shall be in English.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty that must be 
included in each request. Paragraph 3 lists 11 kinds of 
information that are important but not always crucial and that 
must be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority to promptly 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the competent 
authorities to do everything within their power to execute the 
request. This provision is not intended or understood to 
authorize the use of the grand jury in the United States for 
the collection of evidence pursuant to a request from South 
Africa. Rather, it is anticipated that when a request from 
South Africa requires compulsory process for execution, the 
U.S. Department of Justice will ask a federal court to issue 
the necessary process under Title 28, United States Code, 
Section 1782, and the provisions of the Treaty.
    The third sentence in Article 5(1) reads ``[t]he Courts of 
the Requested State have authority to issue subpoenas, search 
warrants, or other orders necessary to execute the request.'' 
This language specifically authorizes U.S. courts to use all of 
their powers to issue subpoenas and other process to satisfy a 
request under the Treaty. It also reflects an understanding 
that the Parties intend to provide each other with every 
available form of assistance from judicial and executive 
branches of government in the execution of mutual assistance 
requests. Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for 
representing the Requesting State in the execution of a request 
for assistance. Thus, it is understood that if execution of the 
request entails action by a judicial authority or 
administrative agency, the Central Authority of the Requested 
State shall arrange for the presentation of the request to that 
court or agency at no cost to the Requesting State.
    Paragraph 3, the subject of extensive discussion, provides 
that ``[r]equests shall be executed in accordance with the laws 
of the Requested State, including the terms of this Treaty.'' 
For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to 
carry out the obligations undertaken.
    The same paragraph requires that procedures specified in 
the request be followed in the execution of the request except 
insofar as those procedures are prohibited by the law of the 
Requested State. This provision is necessary for two reasons.
    First, there are significant differences between procedures 
that must be followed by U.S. and South African authorities in 
collecting evidence in order to assure the admissibility of 
that evidence at trial. For instance, under U.S. law documents 
obtained abroad may be admitted in evidence if they are duly 
certified and the defendant has been given fair opportunity to 
test their authenticity.\12\ Since South African law contains 
no similar provision, documents acquired in South Africa in 
strict conformity with South African procedures might not be 
admissible in U.S. courts. Furthermore, U.S. courts use 
procedural techniques such as videotape depositions that simply 
are not used in South Africa even though they are not forbidden 
there.
---------------------------------------------------------------------------
    \12\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
forensic examination, and sometimes the procedures that must be 
followed to enhance the scientific accuracy of such tests do 
not coincide with those utilized in assembling evidence for 
admission into evidence at trial. The value of such forensic 
examinations could be significantly lessened--and the 
Requesting State's investigation could be retarded--if the 
Requested State were to insist unnecessarily on handling the 
evidence in a manner usually reserved for evidence to be 
presented to its own courts.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing criminal investigation, prosecution, or proceeding 
in the Requested State. The Central Authority of the Requested 
State may, in its discretion, take such preliminary action as 
deemed advisable to obtain or preserve evidence that might 
otherwise be lost before the conclusion of the investigation or 
legal proceedings in that State. The paragraph also allows the 
Requested State to provide the information to the Requesting 
State subject to conditions needed to prevent interference with 
the Requested State's proceedings.
    It is anticipated that some U.S. requests for assistance 
may contain information that under our law must be kept 
confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation, 
prosecution, or proceeding'' as required by Article 4(2)(b). 
Therefore, Paragraph 5 enables the Requesting State to call 
upon the Requested State to use its best efforts to keep the 
information in the request confidential.\13\ If the Requested 
State cannot execute the request without disclosing the 
information in question (as might be the case if execution 
requires a public judicial proceeding in the Requested State), 
or if for some other reason this confidentiality cannot be 
assured, the Treaty obliges the Requested State to so indicate, 
thereby giving the Requesting State an opportunity to withdraw 
the request rather than risk jeopardizing an investigation or 
proceeding by public disclosure of the information.
---------------------------------------------------------------------------
    \13\ This provision is similar to language in other U.S. mutual 
legal assistance treaties. See, e.g., U.S.-Lithuania Mutual Legal 
Assistance Treaty, signed at Washington January 16, 1998, entered into 
force August 26, 1999, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Central Authority of the Requesting State concerning progress 
in execution of its request. This is to encourage open 
communication between the Central Authorities in monitoring the 
status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

               Article 6--Authentication or Certification

    Most mutual legal assistance treaties contain provisions on 
the proper procedure for authenticating evidence supplied by 
one State in response to requests by the other. Article 6 of 
the South Africa treaty consolidates the provisions on 
authentication and certification in a single article.
    Paragraph 1 contains the authentication and certification 
requirements for evidence furnished to the United States by 
South Africa. Most U.S. treaties contain references to forms 
for authenticating and certifying business records in the 
article that discusses obtaining testimony or evidence, for 
authenticating official government records in the article on 
obtaining government records, and for certifying chain of 
custody in the article on conducting searches and seizures 
conducted pursuant to requests under the Treaty. Paragraph 1 of 
this Article specifies that information or evidence provided 
pursuant to Article 9 (business records) shall be authenticated 
or certified using Form A;\14\ information or evidence 
furnished pursuant to Article 10 (government records) shall be 
authenticated using Form B;\15\ and information or evidence 
provided pursuant to Article 16 (search and seizures) shall be 
authenticated pursuant to Form E.\16\ In each case, the 
information or evidence may also be authenticated in any other 
manner that the U.S. Central Authority requests. The absence or 
nonexistence of a business record or a government record may be 
certified on Form C or Form D, respectively. The authentication 
and certification requirements in Paragraph 1 are consistent 
with U.S. law and the provisions of other U.S. treaties of this 
kind. Paragraph 1(c) states that evidence authenticated or 
certified by Forms A or B or certified by Form E shall be 
admissible in evidence in the United States as proof of the 
truth of the matters set forth therein.\17\
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    \14\ Thus, the provision establishes a procedure for authenticating 
business records in a manner essentially similar to Title 18, United 
States Code, Section 3505.
    \15\ Similarly, the Treaty establishes a procedure for 
authenticating official foreign documents that is consistent with Rule 
902(3) and (4) of the Federal Rules of Evidence and Rule 44, Federal 
Rules of Civil Procedure.
    \16\ By providing that the certificates describing continuity of 
custody will be admissible without additional authentication at trial 
in the Requesting State, the article relieves the Requested State of 
the burden, expense, and inconvenience of having to send its law 
enforcement officers to the Requesting State to provide authentication 
and chain of custody testimony each time the Requesting State uses 
evidence produced under this article.
    \17\ Article 6(1)(c) provides that the evidence authenticated by, 
e.g., Form A, is ``admissible'' but, of course, it will be up to the 
judicial authority presiding over the trial to determine whether the 
evidence should in fact be admitted. The negotiators intended that 
evidentiary tests other than authentication (such as relevance and 
materiality) would still have to be satisfied in each case.
---------------------------------------------------------------------------
    Paragraph 2 outlines the authentication and certification 
requirements that will apply upon request by the Republic of 
South Africa to documents or articles of evidence furnished to 
South Africa by the United States. It provides that the 
substantive form of such authentication and certification is to 
be communicated by the Central Authority of the Republic of 
South Africa from time to time. It also requires that all 
documents provided by the United States to the Republic of 
South Africa be accompanied by an apostille, set forth as Form 
F.

                            Article 7--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other U.S. mutual legal assistance treaties.\18\ Article 7 does 
obligate the Requesting State to pay fees of expert witnesses, 
translation, interpretation and transcription costs, and 
allowances and expenses related to travel of persons pursuant 
to Articles 11, 12 and 13. During the negotiations, it was 
discussed and agreed that this provision obligates the 
Requested State to assume the costs of representation. Since 
the cost of retaining counsel abroad to present and process 
letters rogatory is sometimes quite high, this provision for 
reciprocal legal representation is a significant advance in 
international legal cooperation between the United States and 
South Africa. It is also understood that should the Requesting 
State choose to hire private counsel for a particular request, 
it is free to do so at its own expense.
---------------------------------------------------------------------------
    \18\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty, 
signed at Washington February 4, 1998, entered into force May 7, 2000, 
art. 6.
---------------------------------------------------------------------------
    Paragraph 2 of this Article provides that if it becomes 
apparent during the execution of a request that complete 
execution of a request would require extraordinary expenses, 
then the Central Authorities shall consult to determine the 
terms and conditions under which execution may continue.

                     Article 8--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that the Requesting State not use 
any information or evidence provided under the Treaty in any 
investigation, prosecution, or proceeding other than that 
described in the request without the prior consent of the 
Central Authority of the Requested State. If such a use 
limitation is required, the Requesting State must comply with 
the requirement. It will be recalled that Article 4(2)(d) 
states that the Requesting State must specify the purpose for 
which the information or evidence is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it furnishes to the Requesting 
State be kept confidential. The delegations agreed that 
conditions of confidentiality would be imposed only when 
necessary and would be tailored to fit the circumstances of 
each particular case. For instance, the Requested State may 
wish to cooperate with the investigation in the Requesting 
State but choose to limit access to information that might 
endanger the safety of an informant, or unduly prejudice the 
interests of persons not connected in any way with the matter 
being investigated in the Requesting State. Paragraph 2 
requires that if the Requesting State accepts conditions of 
confidentiality, it shall make ``best efforts'' to comply with 
them. This ``best efforts'' language was used because the 
purpose of the Treaty is the production of evidence for use at 
trial, and that purpose would be frustrated if the Requested 
State could routinely permit the Requesting State to see 
valuable evidence, but impose confidentiality restrictions that 
prevent the Requesting State from using it.
    The South Africa delegation expressed concern that 
information it might supply in response to a request by the 
United States under the Treaty not be disclosed under the 
Freedom of Information Act. Both delegations agreed that since 
this Article permits the Requested State to prohibit the 
Requesting State's disclosure of information for any purpose 
other than that stated in the request, a Freedom of Information 
Act request that seeks information that the United States 
obtained under the Treaty would have to be denied if the United 
States received the information on such a condition.
    Paragraph 3 states that nothing in Article 7 shall preclude 
the use or disclosure of information to the extent that there 
is an obligation to do so under the Constitution of the 
Requesting State in criminal proceedings.\19\ During the 
negotiations, the South African delegation indicated that its 
courts might discern a similar obligation in South Africa's 
constitution. The Requesting State shall notify the Requested 
State of any such proposed disclosure in advance thereof.
---------------------------------------------------------------------------
    \19\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed to the public in accordance with 
Paragraph 1 or 2, the Requesting State is free to use the 
evidence for any purpose. When evidence obtained under the 
Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain, and 
is likely to become a matter of common knowledge, perhaps even 
be described in the press. The negotiators noted that once this 
has occurred, it is practically impossible for the Central 
Authority of the Requesting Party to block the use of that 
information by third parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 8 are for the benefit of the 
two nations that are the parties to the Treaty, and the 
invocation and enforcement of these provisions are left 
entirely to the Parties. If a person alleges, for instance, 
that a South African authority has used information or evidence 
obtained from the United States in a manner inconsistent with 
this Article, the person can inform the Central Authority of 
the United States of the allegations for consideration as a 
matter between the Parties.

        Article 9--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or give statements or 
produce items, including documents and records and articles of 
evidence. The compulsion contemplated by this article can be 
accomplished by subpoena or any other means available under the 
law of the Requested State.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request (e.g., the defendant and his counsel in criminal cases) 
shall be permitted by the Requested State to be present and 
allowed to question the person giving the testimony or 
evidence.
    Paragraph 4 states that if a witness asserts a claim of 
immunity, incapacity, or privilege under the laws of the 
Requesting State, the Requested State will take the evidence 
and turn it over to the Requesting State along with notice that 
it was obtained over a claim of privilege. The applicability of 
the privilege can then be determined in the Requesting State, 
where the scope of the privilege and the legislative and policy 
reasons underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties.\20\ It is understood that when a person asserts a 
claim of immunity, incapacity, or privilege under the laws of 
the Requested State, that claim shall be resolved in accordance 
with the law of the Requested State. This is consistent with 
Article 5(3) and ensures that no person will be compelled to 
furnish information if he has a right not to do so under the 
law of the Requested State. Thus, a witness questioned in the 
United States pursuant to a request from South Africa is 
guaranteed the right to invoke any of the testimonial 
privileges (e.g., attorney-client, inter-spousal) available in 
the United States as well as the constitutional privilege 
against self-incrimination, to the extent that it might apply 
in the context of evidence being taken for foreign 
proceedings.\21\ A witness testifying in South Africa may raise 
any of the similar privileges available under the law of South 
Africa.
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    \20\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty, 
signed at Bridgetown February 28, 1996, and entered into force March 3, 
2000, art. 8(4).
    \21\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
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                      Article 10--Official Records

    Paragraph 1 obliges each State to furnish the other with 
copies of publicly available records, including documents or 
information in any form, in the possession of organs of State 
and government departments and agencies in the Requested State. 
The term ``organs of State and government departments and 
agencies'' includes all executive, judicial, and legislative 
units of the federal, state, and local level in each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The undertaking under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over such information in 
its files ``to the same extent and under the same conditions'' 
as it would to its own law enforcement or judicial authorities. 
It is intended that the Central Authority of the Requested 
State, in close consultation with the interested law 
enforcement authorities of that State, will determine that 
extent and what those conditions would be. The South African 
delegation stated that, as a general proposition, the United 
States can expect to receive nonpublic information in 
government files if South African law enforcement authorities 
have access to it.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the U.S. delegation that the United States be 
able to provide assistance under the Treaty for tax offenses, 
as well as to provide information in the custody of the 
Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances where such information would be 
available to U.S. law enforcement authorities. The South 
African delegation stated that although the treaty provided for 
assistance with respect to tax offenses, South Africa would not 
provide the United States with records from South African tax 
officials for any offenses pursuant to the Treaty. They 
explained that their tax authorities take a very narrow view of 
their legal ability to share information with other agencies 
and steadfastly refuse to share tax records with South African 
prosecutors or investigators pursuing non-tax cases, much less 
with U.S. prosecutors or investigators under the MLAT. 
Therefore, the delegations did not view this Treaty as a 
``convention for the exchange of tax information'' for purposes 
of Title 26, United States Code, Section 6103(k)(4), and the 
United States would not have the discretion to provide tax 
return information to South Africa under this article in 
appropriate cases.\22\
---------------------------------------------------------------------------
    \22\ Thus, this Treaty is unlike any of the other U.S. bilateral 
mutual legal assistance treaties in that it does not authorize the 
Parties to provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------

             Article 11--Testimony in the Requesting State

    This article provides that upon request, the Requested 
State shall invite persons in the Requested State to travel to 
the Requesting State to appear before an appropriate authority 
in that State. The Central Authority of the Requested State 
shall inform the Central Authority of the Requesting State of 
the invitee's response. An appearance in the Requesting State 
under this article is not mandatory, and the invitation may be 
refused by the prospective witness.
    The Requesting State would be expected to pay the expenses 
of such an appearance pursuant to Article 7. Therefore, 
paragraph 1 provides that the Requesting State must indicate to 
the Requested State the extent to which the person's expenses 
will be paid. It is assumed that such expenses would normally 
include the costs of transportation, room, and board. When the 
person is to appear in the United States, a nominal witness fee 
would also be provided.
    Paragraph 2 provides that the Central Authority of the 
Requesting State may, in its discretion, determine that a 
person appearing in the Requesting State under this article 
shall not be subject to service of process, or be detained or 
subjected to any restriction of personal liberty by reason of 
acts or convictions that preceded the person's departure for 
the Requesting State from the Requested State. It is understood 
that this provision would not prevent the prosecution of a 
person for perjury or any other crime committed while in the 
Requesting State under this article or at a later time.
    Paragraph 3 states that any safe conduct provided under 
this article expires seven days after the Central Authority of 
the Requesting State has notified the Central Authority of the 
Requested State that the person's presence is no longer 
required, or if the person leaves the territory of the 
Requesting State and thereafter returns to it. However, the 
Central Authority of the Requesting State may extend the safe 
conduct up to fifteen days if it determines that there is good 
cause to do so.

               Article 12--Transfer of Persons in Custody

    In criminal cases, a need sometimes arises for the 
testimony in one country of a witness in custody in another 
country. In some instances, a foreign country has been willing 
and able to ``lend'' witnesses to the U.S. Government provided 
the witnesses would be carefully guarded while in the United 
States and returned to the foreign country at the conclusion of 
the testimony. On other occasions, the U.S. Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings.\23\ On a few occasions, a person in 
custody in the United States on a criminal matter has sought 
permission to travel to another country to be present at the 
deposition of a witness whose testimony may subsequently be 
introduced into evidence at the defendant's criminal trial in 
the United States.\24\
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    \23\ For example, in September, 1986, the U.S. Justice Department 
and the U.S. Drug Enforcement Administration arranged for four federal 
prisoners to be transported to the United Kingdom to testify for the 
Crown in Regina v. Dye, Williamson, Ells, Davies, Murphy, and Millard, 
a major narcotics prosecution in ``the Old Bailey'' (Central Criminal 
Court) in London.
    \24\ See, also, United States v. King, 552 F.2d 833 (9th Cir. 
1976), cert. denied, 430 U.S. 966 (1977), where the defendants insisted 
on traveling to Japan to be present at the deposition of certain 
witnesses in prison there.
---------------------------------------------------------------------------
    Article 12 provides an express legal basis for cooperation 
in these matters. Upon request, a person in custody in either 
State whose presence is requested for purposes of assistance 
under this Treaty may be transferred from the custody of one 
State to the custody of the other State for that purpose 
provided that the person and the Central Authorities of both 
States agree, and that the receiving State agrees to adhere to 
any terms and conditions set by the transferring State. These 
terms and conditions may include: (1) that the receiving State 
have the authority and the obligation to keep the person 
transferred in custody unless authorized to release the person 
by the sending State; (2) that the receiving State return the 
person to the sending State's custody as soon as circumstances 
permit or as otherwise agreed by both Central Authorities; (3) 
that the receiving State not require the sending State to 
initiate extradition proceedings to recover custody of the 
person; and (4) that any time the person transferred spends in 
the receiving State will be credited against the sentence 
remaining to be served in the sending State.
    Article 12 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the receiving state is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.
    South Africa does not currently have the ability to 
transfer persons in custody to another country or to hold such 
persons if transferred to it. The delegations agreed to include 
this provision in the event that South Africa develops such 
authority in the future. The language makes clear that such 
transfers are discretionary.

               Article 13--Transit of Persons in Custody

    Article 12 contemplates that persons in custody may be 
moved from State to State for purposes of mutual assistance, 
and it is reasonable to anticipate situations in which one 
State may need to bring persons in custody through the other on 
the way to or from third States. Article 13 provides the legal 
framework for such transit. Similar articles appear in other 
recent U.S. mutual legal assistance treaties.\25\
---------------------------------------------------------------------------
    \25\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 11.
---------------------------------------------------------------------------
    Paragraph 1 states that a Requested State may authorize the 
transit through its territory of a person whose personal 
appearance has been requested in investigations, prosecutions, 
or proceedings in the Requesting State. Paragraph 2 provides 
that where such transit is authorized, the Requested State 
shall have the authority and obligation to keep the person in 
custody during transit in accordance with the laws of the 
Requested State, including the terms of this Treaty. As with 
Article 12, this article is included in the event that South 
Africa develops authority to transfer and hold such persons.

       Article 14--Location or Identification of Persons or Items

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

                    Article 15--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers 
relating in whole or in part to a Treaty request. Identical 
provisions appear in most U.S. mutual legal assistance 
treaties.\26\
---------------------------------------------------------------------------
    \26\ See, e.g., U.S.-Lithuania Mutual Legal Assistance Treaty, 
signed at Washington January 16, 1998, entered into force August 26, 
1999, art. 13.
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by South Africa to follow a 
specified procedure for service) or by the United States 
Marshal's Service in instances in which personal service is 
requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents must be transmitted by the Central Authority of 
the Requesting State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 16--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver items needed 
in the former as evidence or for other purposes. U.S. courts 
can and do execute such requests under Title 28, United States 
Code, Section 1782.\27\ This article creates a formal framework 
for handling such requests similar to provisions in many other 
U.S. mutual legal assistance treaties.\28\
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    \27\ For example, in United States Ex Rel Public Prosecutor of 
Rotterdam, Netherlands v. Richard Jean Van Aalst, Case No. 84-52-M-01 
(M.D. Fla., Orlando Div.), a search warrant was issued on February 24, 
1984, based on a request under Title 28, United States Code, Section 
1782.
    \28\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 15.
---------------------------------------------------------------------------
    Article 16 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from South Africa will have to be supported 
by a showing of probable cause for the search. A U.S. request 
to South Africa would have to satisfy the corresponding 
evidentiary standard there, which is ``a reasonable basis to 
believe'' that the specified premises contains items likely to 
be evidence of the commission of an offense.
    Paragraph 2 is designed to ensure that a record is kept of 
items seized and delivered up under the Treaty. This provision 
requires that, upon request, every official who has custody of 
a seized item shall certify the continuity of custody, the 
identity of the item, and any changes in its condition.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred.

                      Article 17--Return of Items

    This article provides that any documents, records, or items 
furnished under the Treaty may be required to be returned to 
the Requested State as soon as possible. The delegations 
understood that this requirement would be invoked only if the 
Central Authority of the Requested State specifically requests 
it at the time that the items are delivered to the Requesting 
State. It is anticipated that unless original records or 
articles of significant intrinsic value are involved, the 
Requested State will not usually require return of the items, 
but this is a matter best left to development in practice.

            Article 18--Assistance in Forfeiture Proceedings

    A major goal of the Treaty is to enhance the efforts of 
both the United States and South Africa in combating narcotics 
trafficking. One significant strategy in this effort in the 
United States is action by authorities to seize and confiscate 
money, property, and other proceeds of drug trafficking.
    This article is similar to a number of U.S. mutual legal 
assistance treaties, including Article 16 of the U.S.-Barbados 
Mutual Legal Assistance Treaty and Article 17 of the U.S.-
Latvia Mutual Legal Assistance Treaty. Paragraph 1 authorizes 
the Central Authority of one State to inform the other of the 
existence in the latter's territory of proceeds of crimes or 
instrumentalities that may be forfeitable or otherwise subject 
to seizure. The term ``proceeds of crimes or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables either used in the crime or 
purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may present this information to 
its authorities for a determination whether an action is 
appropriate. For instance, if the assets obtained by fraud in 
South Africa are located in the United States, U.S. authorities 
could act to seize them under Title 18, United States Code, 
Section 981 in aid of a prosecution under Title 18, United 
States Code, Section 2314.\29\ U.S. authorities could also seek 
to secure a temporary restraining order in anticipation of a 
civil action for the return of the assets to the lawful owner. 
Proceeds of a foreign kidnaping, robbery, extortion or a fraud 
by or against a foreign bank are civilly and criminally 
forfeitable in the United States since these offenses are 
predicate offenses under U.S. money laundering laws.\30\ Thus, 
it is a violation of U.S. criminal law to launder the proceeds 
of these foreign fraud or theft offenses when such proceeds are 
brought into the United States. South Africa too has 
legislation on this issue that enables it to seize and 
confiscate assets in criminal cases.\31\
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    \29\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad. Proceeds of such 
activity become subject to forfeiture pursuant to Title 18, United 
States Code, Section 981 by way of Title 18, United States Code, 
Section 1956 and Title 18, United States Code, Section 1961. The 
forfeiture statute applies to property involved in transactions in 
violation of section 1956, which covers any activity constituting an 
offense defined by section 1961(1), which includes, among others, Title 
18, United States Code, Section 2314.
    \30\ Title 18, United States Code, Section 1956(c)(7)(B).
    \31\ South Africa Proceeds of Crime Act, 1996.
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the States will be able and willing to 
help one another. Title 18, United States Code, Section 
981(a)(1)(B), allows for the forfeiture to the United States of 
property ``which represents the proceeds of an offense against 
a foreign nation involving the manufacture, importation, sale, 
or distribution of a controlled substance (as such term is 
defined for the purposes of the Controlled Substance Act) 
within whose jurisdiction such offense or activity would be 
punishable by death or imprisonment for a term exceeding one 
year if such act or activity had occurred within the 
jurisdiction of the United States.'' This is consistent with 
the laws in other countries, such as Switzerland and Canada; 
there is a growing trend among nations toward enacting 
legislation of this kind in the battle against narcotics 
trafficking.\32\ The U.S. delegation expects that Article 18 of 
the Treaty will enable this legislation to be even more 
effective.
---------------------------------------------------------------------------
    \32\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, December 20, 
1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the States shall assist one another 
to the extent permitted by their laws in proceedings relating 
to (a) restraining or immobilizing proceeds of crimes or 
instrumentalities or objects used in the commission of crimes; 
(b) confiscation or forfeiture of such items; (c) recovery or 
collection of fines imposed as sentences in criminal 
proceedings; and (d) compensation or restitution to victims of 
crime. The language of the article is carefully selected so as 
not to require either State to take any action that would 
exceed its internal legal authority. It does not, for instance, 
mandate institution of forfeiture proceedings or initiation of 
temporary immobilization in either country against property 
identified by the other if the relevant prosecution officials 
do not deem it proper to do so.\33\
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    \33\ In South Africa, unlike the United States, the law does not 
allow for civil forfeiture. However, South Africa law permits 
forfeiture in criminal cases, and ordinarily a defendant must be 
convicted in order for South Africa to confiscate the defendant's 
property.
---------------------------------------------------------------------------
    U.S. law permits the government to transfer a share of 
certain forfeited property to other countries that participate 
directly or indirectly in the seizure or forfeiture of the 
property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity that led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country and be approved by the Secretary of State.\34\ 
Paragraph 3 is consistent with this framework and will enable a 
State having custody over proceeds or instrumentalities of 
offenses to transfer forfeited assets, or the proceeds of the 
sale of such assets, to the other State, at the former's 
discretion and to the extent permitted by their respective 
laws. The South African delegation assured the United States 
that South Africa would also share with the United States a 
portion of assets confiscated there with U.S. assistance.
---------------------------------------------------------------------------
    \34\ See, Title 18, United States Code, Section 981(i)(1).
---------------------------------------------------------------------------

           Article 19--Compatibility with Other Arrangements

    This article states that assistance and procedures set 
forth in this Treaty shall not prevent either State from 
granting assistance to the other State through the provisions 
of other applicable international agreements. Article 18 also 
states that the States may provide assistance pursuant to any 
bilateral arrangement, agreement, or practice that may be 
applicable. The Treaty would leave the provisions of U.S. and 
South African law on letters rogatory completely undisturbed, 
and would not alter any pre-existing agreements concerning 
investigative assistance.

                        Article 20--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article states that the 
Central Authorities will share those ideas with one another, 
and will agree on the implementation of such measures. 
Practical measures of this kind might include methods of 
keeping each other informed of the progress of investigations 
and cases in which treaty assistance was utilized. Similar 
provisions are contained in recent U.S. mutual legal assistance 
treaties. It is anticipated that the Central Authorities will 
conduct regular consultations pursuant to this article.

                        Article 21--Application

    This Treaty, like many other U.S. mutual legal assistance 
treaties negotiated in the past two decades, is expressly made 
retroactive, and covers assistance contemplated in Article 1 
whether the acts occurred before, on, or after the date upon 
which the Treaty entered into force. At South Africa's request, 
Article 21 also states that nothing in the treaty shall be 
deemed to require or authorize action by the Requested State 
contrary to the constitution of that State. Somewhat similar 
provisions appear in many U.S. treaties of this kind, and the 
provision is consistent with the Understanding routinely 
included in Senate resolutions of advice and consent to 
ratification of mutual legal assistance and extradition 
treaties.

      Article 22--Ratification, Entry Into Force, and Termination

    Paragraph 1 states that the Treaty is subject to 
ratification and that the instruments of ratification are to be 
exchanged as soon as possible.
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of receipt of written 
notification. Similar termination provisions are included in 
other U.S. mutual legal assistance treaties.
                                ------                                


 Technical Analysis of the Treaty Between the United States of America 
       and Ukraine on Mutual Legal Assistance in Criminal Matters

    On July 22, 1998, the United States signed a Treaty Between 
the United States of America and Ukraine on Mutual Legal 
Assistance in Criminal Matters (``the Treaty''). The Treaty 
with Ukraine is a major advance in the formal law enforcement 
relationship between the two countries, and is expected to be a 
valuable weapon for the United States in its efforts to combat 
transnational terrorism, international drug trafficking, and 
Russian organized crime. Due to the urgent need for immediate 
transnational law enforcement cooperation, on September 30, 
1999, the U.S. and Ukraine exchanged diplomatic notes pledging 
that until such time as the Treaty enters into force the terms 
of the Treaty will be applied, provisionally, to the extent 
permitted under the laws of the respective States.
    In recent years, the United States has signed treaties with 
a number of countries as part of a highly successful effort to 
modernize the legal tools available to law enforcement 
authorities in need of foreign evidence for use in criminal 
cases.
    It is anticipated that the Treaty will be implemented in 
the United States largely pursuant to the procedural framework 
provided by Title 28, United States Code, Section 1782. Ukraine 
currently has no specific mutual legal assistance law. 
Ukraine's delegation advised us that under Ukraine 
jurisprudence, the terms of the Treaty would take precedence 
over the silence in Ukrainian domestic law and, in case of a 
conflict between the Treaty and future Ukraine domestic law, 
the Treaty would control.
    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 
history. 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--Scope of Assistance

    Paragraph 1 requires the Contracting States to provide 
mutual assistance in connection with the investigation, 
prosecution, and prevention of offenses, and in proceedings 
relating to criminal matters.
    The negotiators specifically agreed that the term 
``investigation'' includes a grand jury proceeding in the 
United States and any similar pre-charge proceedings in 
Ukraine, and other legal measures taken prior to the filing of 
formal charges in either State.\1\ The term ``proceeding'' was 
intended to cover the full range of proceedings in a criminal 
case, including such matters as bail and sentencing 
hearings.\2\ It was also agreed that since the phrase 
``proceedings related to criminal matters'' is broader than the 
investigation, prosecution or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature;\3\ yet such proceedings are covered by the 
Treaty.
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    \1\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., as our investigators 
and prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the United States must assist Ukraine 
under the Treaty in connection with investigations prior to charges 
being filed in Ukraine.
    \2\ One U.S. court has interpreted Title 28, United States Code, 
Section 1782, as permitting the execution of a request for assistance 
from a foreign country only if the evidence sought is for use in 
proceedings before an adjudicatory ``tribunal'' in the foreign country. 
In Re Letters Rogatory Issued by the Director of Inspection of the 
Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. Blumenthal, 
620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary obstacle to 
the execution of requests concerning matters which are at the 
investigatory stage, or which are customarily handled by administrative 
officials in the Requesting State. Since this paragraph of the Treaty 
specifically permits requests to be made in connection with matters not 
within the jurisdiction of an adjudicatory ``tribunal'' in the 
Requesting State, this paragraph accords the courts broader authority 
to execute requests than does Title 28, United States Code, Section 
1782, as interpreted in the India and Fonseca cases.
    \3\ See, Title 21 United States Code, Section 881; Title 18 United 
States Code, Section 1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Paragraph 3 specifies that there is no requirement of dual 
criminality under this Treaty for cooperation. In other words, 
the obligation to provide assistance upon request arises 
irrespective of whether the offense for which assistance is 
requested is a crime in the Requested State. During the 
negotiations, Ukraine provided assurances that assistance would 
be available under the Treaty to the United States in criminal 
matters involving such offenses as conspiracy; drug 
trafficking, including continuing criminal enterprise (Title 
21, United States Code, Section 848); offenses under the 
racketeering statutes (Title 18, United States Code, Sections 
1961-1968); money laundering; terrorism; tax crimes, including 
tax evasion and tax fraud; crimes against environmental 
protection laws; and antitrust violations.
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties,\4\ which states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Ukraine by letters 
rogatory, an avenue of international assistance that the Treaty 
leaves undisturbed. Similarly, the paragraph provides that the 
Treaty is not intended to create any right in a private person 
to suppress or exclude evidence provided pursuant to the 
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
    \4\ See, United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    Article 2(1) requires that each State shall have a Central 
Authority to make and receive requests pursuant to the Treaty. 
Article 2(4) states that the Central Authorities shall 
communicate directly with one another.
    Article 2(2) designates the Attorney General of the U.S. as 
the Central Authority for the United States. The Attorney 
General has delegated the authority to handle the duties of 
Central Authority under mutual assistance treaties to the 
Assistant Attorney General in charge of the Criminal 
Division.\5\ The Central Authority of the United States would 
make all requests to Ukraine on behalf of federal agencies, 
state agencies, and local law enforcement authorities in the 
United States. It would also be responsible for receiving each 
request, transmitting it to the proper agency, court or other 
authority (which, in the United States, may be federal or 
state) for execution, and ensuring that a timely response is 
made.
---------------------------------------------------------------------------
    \5\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Article 2(2) also states that the Central Authority for 
Ukraine shall be the Ministry of Justice and the Office of the 
Prosecutor General.\6\ This dual Central Authority arrangement 
for Ukraine was requested by Ukraine because its constitution 
and law prescribe distinct and separate responsibilities to the 
Office of the Prosecutor General and the Ministry of 
Justice.\7\ The Ukraine delegation explained that the Office of 
the Prosecutor General is empowered to make requests from 
Ukraine to foreign authorities for assistance in criminal 
investigations, but a court in Ukraine could also seek foreign 
evidence in connection with a criminal trial, and in such cases 
requests would be made through the Ministry of Justice. The 
Ministry of Justice in Ukraine is also responsible for handling 
requests from foreign authorities for assistance that involve 
documents or evidence located exclusively in a Ukrainian court, 
e.g., an authenticated copy of the sentence imposed on a 
convicted person. Other requests from outside Ukraine would be 
handled by the Office of the Prosecutor General, without 
distinction between whether the request involves a matter at 
the investigation or prosecution stage. The Ukrainian 
delegation told the U.S. delegation that, in practice, the U.S. 
Central Authority should send all requests to the Office of the 
Prosecutor General, and if the matter is one that Ministry of 
Justice should handle, the Office of the Prosecutor General 
will promptly forward the request to the Ministry and inform 
the United States that it has done so.
---------------------------------------------------------------------------
    \6\ This is similar to Article 2(2) of the U.S.-Hungary Mutual 
Legal Assistance Treaty, December 1, 1994, which provides that the 
Hungarian Minister of Justice and Office of the Chief Public Prosecutor 
will serve as a dual Central Authority, and Article 2(1) of the U.S.-
Lithuania Mutual Legal Assistance Treaty, signed at Washington January 
16, 1998, entered into force August 26, 1999, which provides that the 
Lithuanian Central Authority will be the Office of the Prosecutor 
General and the Ministry of Justice.
    \7\ The International Affairs Department of Ukraine's Ministry of 
Justice and the International Legal Relations Department of Ukraine's 
Office of the Prosecutor General were both represented during the 
negotiations.
---------------------------------------------------------------------------
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. Specifically, Article 2(3) 
states that each Central Authority shall only make requests 
that it has considered and approved, and that the Central 
Authority of the Requesting State shall use its ``best 
efforts'' to ensure that no request is made where, in its view: 
(1) the offense on which the request is based does not have 
serious consequences, or (2) the assistance requested is 
disproportionate to the sentence expected upon conviction. This 
provision is intended to give the Central Authorities a firm 
basis on which to refuse to submit a request on behalf of a 
competent authority because of the insignificance or 
inappropriateness of the request.
    Paragraph 4 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, facsimile, INTERPOL channels or any 
other means, at the option of the Central Authorities 
themselves.

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty. These 
restrictions are similar to those found in other mutual legal 
assistance treaties.
    Paragraph (1)(a) permits the Central Authority of the 
Requested State to deny a request that relates to an offense 
under military law that would not be an offense under ordinary 
criminal law. Paragraph 1(b) permits denial of a request if it 
involves a political offense. It is anticipated that the 
Central Authorities will employ jurisprudence similar to that 
used in the extradition treaties for determining what is a 
``political offense.'' \8\
---------------------------------------------------------------------------
    \8\ Although there is no extradition treaty in force between the 
United States and Ukraine, this same principle has been incorporated in 
many U.S. Mutual legal assistance treaties, and it is anticipated that 
the jurisprudence on political offense developed under other treaties 
would be applicable.
---------------------------------------------------------------------------
    Paragraph (1)(c) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or similar essential interests of 
that State. All U.S. mutual legal assistance treaties contain 
provisions allowing the Requested State to decline to execute a 
request if execution would prejudice its essential interests.
    The delegations agreed that the word ``security'' would 
include cases where assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the Department of Justice, in its role 
as Central Authority for the United States, would work closely 
with the Department of State and other Government agencies to 
determine whether to execute a request that falls into this 
category.
    The delegations agreed that the phrase ``essential 
interests'' is intended to limit narrowly the class of cases in 
which assistance may be denied. It is not enough that the 
Requesting State's case is one that would be inconsistent with 
public policy had it been brought in the Requested State. 
Rather, the Requested State must be convinced that execution of 
the request would seriously conflict with significant public 
policy. An example is a request involving prosecution by the 
Requesting State of conduct that occurred in the Requested 
State that is constitutionally protected in the Requested 
State.
    It also was agreed that ``essential interests'' could be 
invoked if the execution of a request would violate essential 
interests related to the fundamental purposes of the Treaty. 
For example, one fundamental purpose of the Treaty is to 
enhance law enforcement cooperation. The attainment of that 
goal would be hampered if sensitive law enforcement information 
available under the Treaty were to fall into the wrong hands. 
Accordingly, the U.S. Central Authority may invoke Paragraph 
1(c) to decline to provide information pursuant to a Treaty 
request if it determines, after appropriate consultation with 
law enforcement, intelligence, and foreign policy agencies, 
that a senior foreign government official who likely will have 
access to the information is engaged in a felony, including the 
facilitation of the production or distribution of illegal 
drugs.\9\
---------------------------------------------------------------------------
    \9\ This is consistent with the Senate resolution of advice and 
consent to ratification of other recent mutual legal assistance 
treaties with e.g. Luxembourg, Hong Kong, Poland and Barbados. See, 
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal 
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 
100th Cong., 2d Sess., 67 (1988) (testimony of Mark M. Richard, Deputy 
Assistant Attorney General, Criminal Division, Department of Justice).
---------------------------------------------------------------------------
    Paragraph 1(d) permits the denial of a request if it does 
not conform to the requirements of the Treaty. This was 
intended to refer to the requirements of Article 4 of the 
Treaty.
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty,\10\ and obligates 
the Requested State to consider imposing appropriate conditions 
on its assistance in lieu of denying a request outright 
pursuant to the first paragraph of the article. For example, a 
Contracting State might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a prosecution of a political offense 
(which would be subject to refusal). This paragraph would 
permit the Requested State to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested State would notify the Requesting 
State of any proposed conditions before actually delivering the 
evidence in question, thereby according the Requesting State an 
opportunity to indicate whether it is willing to accept the 
evidence subject to the conditions. If the Requesting State 
does accept the evidence subject to the conditions, it must 
honor the conditions.
---------------------------------------------------------------------------
    \10\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at 
Bern May 25, 1973, entered into force January 23, 1977, art. 26, 27 
U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    Paragraph 3 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the grounds for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``urgent situations.'' A request in 
another form must be confirmed in writing within ten days 
unless the Central Authority of the Requested State agrees 
otherwise, and the request shall be in the language of the 
Requested State unless otherwise agreed.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty that must be 
included in each request. Paragraph 3 outlines kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the States that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified.

                    Article 5--Execution of Requests

    Paragraph 1 requires that each Central Authority promptly 
execute requests, or, where appropriate, transmit them to the 
authority having jurisdiction to do so. The negotiators 
intended that the Central Authority, upon receiving a request, 
will first review the request, then promptly notify the Central 
Authority of the Requesting State if the request does not 
appear to comply with the Treaty's terms. If the request does 
satisfy the Treaty's requirements and the assistance sought can 
be provided by the Central Authority itself, the request will 
be fulfilled immediately. If the request meets the Treaty's 
requirements but its execution requires action by some other 
entity in the Requested State, the Central Authority will 
promptly transmit the request to the correct entity for 
execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the competent 
authorities within the Requested State to do everything within 
their power to execute the request. This provision is not 
intended or understood to authorize the use of the grand jury 
in the United States for the collection of evidence pursuant to 
a request from Ukraine. Rather, it is anticipated that when a 
request from Ukraine requires compulsory process for execution, 
the United States Department of Justice would ask a federal 
court to issue the necessary process under Title 28, United 
States Code, Section 1782, and the provisions of the Treaty.
    The third sentence in Article 5(1) reads ``[t]he competent 
authorities of the Requested State shall have authority to 
issue subpoenas, search and arrest warrants, or other orders 
necessary to execute the request.'' This language specifically 
authorizes United States courts to use all of their powers to 
issue subpoenas and other process to satisfy a request under 
the Treaty. The Ukraine delegation said that in Ukraine, public 
prosecutors as well as courts are empowered to ``issue 
subpoenas, search warrants, or other orders necessary to 
execute the request,'' and this provision was intended to 
insure that those prosecutors can and do use that power to 
execute requests from the United States. The language reflects 
an understanding that the Parties intend to provide each other 
with every available form of assistance from judicial and 
executive branches of government in the execution of mutual 
assistance requests.
    Paragraph 2 provides that the Central Authority of the 
Requested State shall arrange for requests from the Requesting 
State to be presented to the appropriate authority in the 
Requested State for execution. Thus, it is understood that if 
execution of the request entails action by a judicial authority 
or administrative agency, the Central Authority of the 
Requested State shall arrange for the presentation of the 
request to that court or agency at no cost to the Requesting 
State. In practice, the Central Authority for the United States 
will transmit the request with instructions for execution to an 
investigative or regulatory agency, the office of a prosecutor, 
or another governmental entity. If execution requires the 
participation of a court, the Central Authority will select an 
appropriate representative, generally a federal prosecutor, to 
present the matter to a court. Thereafter, the prosecutor will 
represent the United States, acting to fulfill its obligations 
to Ukraine under the Treaty by executing the request. Upon 
receiving the court's appointment as a commissioner, the 
prosecutor/commissioner will act as the court's agent in 
fulfilling the court's responsibility to do ``everything in 
[its] power'' to execute the request.
    Paragraph 3 provides that requests shall be executed in 
accordance with the laws of the Requested State except to the 
extent that the Treaty provides otherwise. Thus, the method of 
executing a request for assistance under the Treaty must be in 
accordance with the Requested State's internal laws absent 
specific procedures in the Treaty itself. For the United 
States, the Treaty is intended to be self-executing; no new 
legislation is needed to carry out U.S. obligations under the 
Treaty.
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons:
    First, there are significant differences between the 
procedures which must be followed by U.S. and Ukraine 
authorities in collecting evidence in order to assure the 
admissibility of that evidence at trial. For instance, United 
States law permits documents obtained abroad to be admitted in 
evidence if they are duly certified and the defendant has been 
given fair opportunity to test its authenticity.\11\ Since 
Ukraine's law contains no similar provision, documents acquired 
in Ukraine in strict conformity with Ukrainian procedures might 
not be admissible in United States courts. Furthermore, United 
States courts use procedural techniques such as videotape 
depositions that simply are not used in Ukraine even though 
they are not forbidden there.
---------------------------------------------------------------------------
    \11\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    The negotiators discussed the procedures applicable in 
their respective States in executing requests for legal 
assistance from the other and agreed to accommodate any 
specific procedure requested by the other to the extent 
permitted under the laws of the Requested State or as discussed 
with respect to specific treaty provisions.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The paragraph also allows the Requested State to provide 
information sought to the Requesting State subject to 
conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some U.S. requests for assistance 
may contain information that under our law must be kept 
confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the facts of the offenses and the procedural history of the 
case'' as required by Article 4(2)(b). Therefore, Paragraph 5 
of Article 5 enables the Requesting State to call upon the 
Requested State to keep the information in the request 
confidential.\12\ If the Requested State cannot execute the 
request without disclosing the information in question (as 
might be the case if execution requires a public judicial 
proceeding in the Requested State), or if for some other reason 
this confidentiality cannot be assured, the Treaty obliges the 
Requested State to so indicate, thereby giving the Requesting 
State an opportunity to withdraw the request rather than risk 
jeopardizing an investigation or proceeding by public 
disclosure of the information.
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    \12\ This provision is similar to language in other U.S. mutual 
legal assistance treaties. See, e.g., U.S.-Lithuania Mutual Legal 
Assistance Treaty, signed at Washington January 16, 1998, entered into 
force August 26, 1999, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Central Authority of the Requesting State concerning progress 
of its request. This is to encourage open communication between 
the Central Authorities in monitoring the status of specific 
requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly inform the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is denied, delayed, or postponed, the 
Central Authority of the Requested State must also explain the 
reasons to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other U.S. mutual legal assistance treaties.\13\ Article 6 
does, however, oblige the Requesting State to pay fees of 
experts, translation, interpretation and transcription costs, 
and allowances and expenses related to travel of persons 
traveling either in the Requested State for the convenience of 
the Requesting State (i.e., in transit under Article 12) or 
pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
    \13\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty, 
signed at Washington February 4, 1998, entered into force May 7, 2000, 
art. 6.
---------------------------------------------------------------------------
    During the negotiations it was discussed and agreed that 
this provision obligates the Requested State to assume the 
costs of representation. Since the cost of retaining counsel 
abroad to present and process letters rogatory is sometimes 
high, this provision for reciprocal legal representation is a 
significant advance in international legal cooperation between 
the United States and Ukraine. It is also understood that 
should the Requesting State choose to hire private counsel for 
a particular request, it is free to do so at its own expense.
    Paragraph 2 of this article provides that if it becomes 
apparent during the execution of a request that complete 
execution of a request would require extraordinary expenses, 
then the Central Authorities shall consult to determine the 
terms and conditions under which execution may continue.

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
If such a use limitation is requested, the Requesting State 
must comply with the conditions. It will be recalled that 
Article 4(2)(d) requires the Requesting State to specify the 
purpose for which information or evidence sought under the 
Treaty is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it provides to the Requesting 
State be kept confidential. Conditions of confidentiality would 
be imposed only when necessary, and would be tailored to fit 
the circumstances of each particular case. For instance, the 
Requested State may wish to cooperate with the investigation in 
the Requesting State but choose to limit access to information 
that might endanger the safety of an informant, or unduly 
prejudice the interests of persons not connected in any way 
with the matter being investigated in the Requesting State. 
Paragraph 2 requires that if the Requesting State accepts 
conditions of confidentiality, it shall make ``best efforts'' 
to comply with them. This ``best efforts'' language was used 
because the purpose of the Treaty is the production of evidence 
for use at trial, and that purpose would be frustrated if the 
Requested State could routinely permit the Requesting State to 
see valuable evidence, but impose confidentiality restrictions 
which prevent the Requesting State from using it.
    Paragraph 3 provides that nothing in Article 7 would 
preclude the use or disclosure of information or evidence to 
the extent that such information or evidence is exculpatory to 
a defendant in a criminal prosecution.\14\ The paragraph also 
states that the Requesting State shall notify the Requested 
State in advance of any such use or disclosure.
---------------------------------------------------------------------------
    \14\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed to the public in a manner consistent 
with paragraphs 1 or 2, the Requesting State is free to use the 
evidence for any purpose. When evidence obtained under the 
Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain, and 
is likely to become a matter of common knowledge, perhaps even 
be described in the press. The negotiators recognized that once 
this has occurred, it is practically impossible for the Central 
Authority of the Requesting State to block the use of that 
information by third parties.
    It should be noted that under Article 1(4), the 
restrictions in Article 7 are for the benefit of the 
Contracting States, and the invocation and enforcement of these 
provisions are left entirely to the Contracting States. Thus, 
if a person alleges that U.S. authority seeks to use 
information or evidence obtained from Ukraine in a manner 
inconsistent with this article, the allegations would be a 
matter for consideration as between the Contracting States.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or produce items, including 
documents and records. The compulsion contemplated by this 
article can be accomplished by subpoena or any other means 
available under the law of the Requested State.
    The second sentence of Paragraph 1 explicitly states that a 
person who gives false testimony, either orally or in writing, 
in execution of a request shall be subject to prosecution in 
the Requested State in accordance with the criminal laws in 
that State.\15\
---------------------------------------------------------------------------
    \15\ See, Title 18, United States Code, Section 1621.
---------------------------------------------------------------------------
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request, shall be permitted by the Requested State to be 
present during the execution of the request, and such person 
shall be allowed to question the person during the giving of 
testimony under this article. The Ukraine delegation explained 
that when a deposition is taken in Ukraine pursuant to a 
request from the United States, the U.S. prosecutor, the 
defendant, the defense counsel, and any technical staff needed 
to conduct the questioning (e.g., court reporter, videotape 
machine operator) would be permitted to be present at the 
proceedings. Neither the U.S. prosecutor or the defense can 
directly question witnesses during such proceedings in Ukraine, 
but they would be permitted to propose questions to be posed to 
the witness by Ukrainian law enforcement. The official record 
of the deposition would usually be prepared by Ukraine 
officials, and it would reflect the role played by U.S. 
officials during the deposition.
    Paragraph 4 states that if a witness whose testimony or 
evidence is sought asserts a claim of immunity, incapacity, or 
privilege under the laws of the Requesting State, the Requested 
State will nonetheless take the testimony or evidence and 
notify the Central Authority of the Requesting State in writing 
of the claim for resolution by the competent authorities of 
that State. The applicability of the privilege can then be 
determined in the Requesting State, where the scope of the 
privilege and the legislative and policy reasons underlying the 
privilege are best understood. A similar provision appears in 
many of our recent mutual legal assistance treaties.\16\ The 
taking of testimony or evidence thus can continue in the 
Requested State without delaying or postponing the proceeding 
whenever issues involving the law of the Requesting State 
arise. It is understood that when a person asserts a claim of 
immunity, incapacity, or privilege under the laws of the 
Requested State, that claim shall be resolved in accordance 
with the law of the Requested State. This is consistent with 
Article 5(3) and ensures that no person will be compelled to 
furnish information if he has a right not to do so under the 
law of the Requested State. Thus, a witness questioned in the 
United States pursuant to a request from Ukraine is guaranteed 
the right to invoke any of the testimonial privileges (e.g., 
attorney-client, inter-spousal) available in the United States 
as well as the constitutional privilege against self-
incrimination, to the extent that it might apply in the context 
of evidence being taken for foreign proceedings.\17\ Both 
States recognize the privilege of witnesses against self-
incrimination. The Ukraine delegation also indicated that 
privileges available under Ukraine law include a doctor-patient 
privilege and an attorney-client privilege.
---------------------------------------------------------------------------
    \16\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty, 
signed at Bridgetown February 28, 1996, and entered into force March 3, 
2000, art. 8(4).
    \17\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    The United States would probably invoke Article 8 of the 
Treaty to obtain copies of bank or business records in Ukraine. 
One controversial issue encountered during the negotiations 
involved the ability of U.S. authorities to gain access to bank 
records in Ukraine under this Treaty. The Ukraine delegation 
assured the United States that Ukraine would honor U.S. 
requests under the Treaty for bank records to the extent 
possible under Ukraine law. While the talks were underway, 
however, Ukraine enacted regulations that authorized the 
establishment of anonymous bank accounts.\18\ Since the 
beneficial owners of such accounts could keep their true 
identity hidden from the officials at the bank where the 
account is maintained, it would be virtually impossible for 
Ukraine law enforcement to investigate suspicious transactions 
or effectively aid U.S. investigations involving Ukraine banks. 
These regulations on anonymous accounts undermined joint 
efforts to combat transnational crime because bank account 
information is frequently essential in the investigation of 
drug trafficking, money laundering, financial offenses, and 
other major crimes, and anonymous bank accounts deprive law 
enforcement officials of critically important information that 
is needed in order to trace the proceeds of illegal activity to 
reliably identify those who commit crime. For these reasons, 
the U.S. refused to sign the Mutual Legal Assistance Treaty 
until Ukraine repealed its anonymous bank secrecy 
regulations.\19\ On July 21, 1998, Ukraine President Kuchma 
issued a new decree forbidding anonymous bank accounts,\20\ and 
the Mutual Legal Assistance Treaty was signed the following 
day, on July 22, 1998. The U.S. delegation anticipates no 
difficulty in obtaining access to bank and business records in 
Ukraine pursuant to this Treaty.
---------------------------------------------------------------------------
    \18\ Decree of the President of Ukraine #679 on the Opening of 
Anonymous Hard Currency Accounts of Physical Persons (Resident and Non-
resident), September 1, 1995.
    \19\ The United States also postponed exchanging instruments of 
ratification on the U.S.-Ukraine Convention for the Avoidance of Double 
Taxation on Income and Capital, with Protocol, March 4, 1994 (approved 
by the U.S. Senate August 1995).
    \20\ Decree of the President of Ukraine #805 On Some Issues 
Pertaining to the Protection of Banking Secrets, July 21, 1998. This 
decree also repealed the prior decree that authorized the establishment 
of secret accounts, note 18, supra.
---------------------------------------------------------------------------
    Paragraph 5 is primarily for the benefit of the United 
States. The United States evidentiary system requires that 
evidence that is to be used as proof in a legal proceeding be 
authenticated as a precondition to admissibility. This 
paragraph provides that evidence produced in the Requested 
State pursuant to Article 8 shall be certified by the 
appropriate form attached to the request. To authenticate 
business records, the delegations agreed to use Form A, 
included in the Annex to the Treaty. Thus, the provision 
establishes a procedure for authenticating records in a manner 
essentially similar to Title 18, United States Code, Section 
3505, the foreign business records authentication statute. The 
absence or nonexistence of such records will be certified 
through the use of Form B, also included in the Annex. This 
paragraph also provides that records authenticated by Form A, 
or Form B certifying the absence or non-existence of business 
records shall be admissible in evidence in U.S. courts. With 
respect to the United States, this paragraph is self-executing, 
and does not need implementing legislation.
    The admissibility provided by this paragraph extends only 
to authenticity and not to matters such as relevance and 
materiality; whether the evidence is, in fact, admitted is a 
determination within the province of the judicial authority 
presiding over the proceeding for which the evidence is 
provided.

                      Article 9--Official Records

    Paragraph 1 obliges each State to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by an executive, legislative 
or judicial authority in the Requested State. Such authorities 
include units of the federal, state, and local level in each 
country.
    Paragraph 2 provides that the Requested State may also 
provide copies of any records, including documents or 
information in any form, that are in the possession of an 
executive, legislative, or judicial authority in that State, 
but that are not publicly available. The undertaking to share 
such information is only ``to the same extent and under the 
same conditions as such copies would be available to its own 
law enforcement or judicial authorities.'' Furthermore, the 
Requested State may in its discretion deny a request under this 
paragraph entirely or in part. It is intended that the Central 
Authority of the Requested State, in close consultation with 
the interested law enforcement authorities of that State, will 
determine the extent to which such information will be shared 
and under what conditions.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty, 
like most other U.S. mutual legal assistance treaties, is a 
``convention relating to the exchange of tax information'' for 
purposes of Title 26, United States Code, Section 6103(k)(4), 
and the United States would have the discretion to provide tax 
return information to Ukraine under this article in appropriate 
cases.\21\
---------------------------------------------------------------------------
    \21\ Under Title 26, United States Code, Section 6103(i), 
information in the files of the Internal Revenue Service (generally 
protected from disclosure under Title 26, United States Code, Section 
6103) may be disclosed to federal law enforcement personnel in the 
United States for use in non-tax criminal investigations or 
proceedings, under certain conditions and pursuant to certain 
procedures. The negotiators agreed that this Treaty (which provides 
assistance both for tax offenses and in the form of information in the 
custody of tax authorities of the Requested State) is a ``convention . 
. . relating to the exchange of tax information'' under Title 26, 
United States Code, Section 6103(k)(4), pursuant to which the United 
States may exchange tax information with treaty partners. Thus, the 
Internal Revenue Service may provide tax returns and return information 
to Ukraine through this Treaty when, in a criminal investigation or 
prosecution, the Ukrainian authority on whose behalf the request is 
made can meet the same conditions required of United States law 
enforcement authorities under Title 26, United States Code, Sections 
6103 (h) and (i). As an illustration, a Ukraine request for tax returns 
to be used in a non-tax criminal investigation, in accordance with 
Title 26, United States Code, Section 6103((i)1)(A), would have to 
specify that the Ukraine law enforcement authority is:

---------------------------------------------------------------------------
    personally and directly engaged in

          (i) preparation for any judicial or administrative proceeding 
        pertaining to the enforcement of a specifically designated 
        Ukraine criminal statute (not involving tax administration) to 
        which Ukraine is or may be a party.
          (ii) any investigation which may result in such a proceeding, 
        or
          (iii) any Ukraine proceeding pertaining to enforcement of 
        such a criminal statute to which Ukraine is or may be a party. 
        (See Title 26, United States Code, Section 6103(i)(1)(A))

  Any request for such documents would have to be presented to a 
federal district court judge or magistrate for an order directing the 
Internal Revenue Service to disclose the tax returns as specified at 
Title 26, United States Code, Section 6103(i)(1)(B). Before issuing 
such an order, the judge or magistrate would have to determine, also in 
accordance with Title 26, United States Code, Section 6103(i)(1)(B), 
that:

          (i) there is reasonable cause to believe, based upon 
        information believed to be reliable, that a specific criminal 
        act has been committed,
          (ii) there is reasonable cause to believe that the return or 
        return information is or may be relevant to a matter relating 
        to the commission of such act, and
          (iii) the return or return information is sought exclusively 
        for use in a Ukrainian criminal investigation or proceeding 
        concerning such act, and the information sought to be disclosed 
        cannot reasonably be obtained, under the circumstances, from 
        another source.

In other words, Ukraine law enforcement authorities seeking tax returns 
would be treated as if they were United States law enforcement 
authorities, including the same access procedure where they would be 
held to the same standards.
    Paragraph 3 is primarily for the benefit of the United 
States. It provides for the authentication of records produced 
pursuant to this article, if specified in a request, through 
the use of the appropriate form attached to the request. The 
delegations agreed that, in response to a request by the United 
States, records provided would be certified using Form C, 
included in the Annex to the Treaty and the absence or 
nonexistence of such records through the use of Form D, also 
included in the Annex. Records authenticated under this 
paragraph or the form certifying the absence or non-existence 
of such records shall be admissible in evidence in the 
Requesting State. Thus, the Treaty establishes a procedure for 
authenticating official foreign documents that is consistent 
with Rule 902(3) of the Federal Rules of Evidence and Rule 44, 
Federal Rules of Civil Procedure. The admissibility provided by 
this paragraph extends only to authenticity and not to matters 
such as relevance and, materiality. Whether the evidence is, in 
fact, admitted is a determination within the province of the 
judicial authority presiding over the proceeding for which the 
evidence is provided.

     Article 10--Testimony or Evidence Outside the Requested State

    This article provides that, upon request, the Requested 
State shall invite persons who are located in its territory to 
travel to the Requesting State or to a third State to appear 
before an appropriate authority there. It shall notify the 
Requesting State of the invitee's response. An appearance in 
the Requesting State or in a third State under this article is 
not mandatory, and the invitation may be refused by the 
prospective witness.
    The Requesting State would be expected to pay the expenses 
of such an appearance pursuant to Article 6. Therefore, 
paragraph 2 provides that the person shall be informed of the 
amount and kind of expenses which the Requesting State will 
provide in a particular case. It is assumed that such expenses 
would normally include the costs of transportation and room and 
board. When the person is to appear in the United States, a 
nominal witness fee would also be provided. Paragraph 2 also 
provides that the person who agrees to travel to the Requesting 
State may request and receive an advance for expenses. The 
paragraph also specifies that the advance may be provided 
through the embassy or a consulate of the Requesting State.
    Paragraph 3 provides that the Central Authority of the 
Requesting State may, in its discretion, determine that a 
person appearing in the Requesting State pursuant to this 
Article shall not be subject to service of process, or be 
detained or subjected to any restriction of personal liberty, 
by reason of any acts or convictions that preceded the person's 
departure from the Requested State. This ``safe conduct'' is 
limited to acts or convictions that preceded the witness's 
departure from the Requested State. It is understood that this 
provision would not prevent the prosecution of a person for 
perjury or any other crime committed while in the Requesting 
State under this article or thereafter.
    Paragraph 4 states that any safe conduct provided under 
this article shall cease after a competent authority of the 
Requesting State has notified the person appearing pursuant to 
the Treaty that the person's presence is no longer required and 
that person, being free to leave, has not left within seven 
days or, having left, has voluntarily returned.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the U.S. Justice Department has 
arranged for consenting federal inmates in the United States to 
be transported to foreign countries to assist in criminal 
proceedings.\22\
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    \22\ For example, in September, 1986, the United States Justice 
Department and the U.S. Drug Enforcement Administration arranged for 
four federal prisoners to be transported to the United Kingdom to 
testify for the Crown in Regina v. Dye, Williamson, Ells, Davies, 
Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Article 11 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the U.S.-
Switzerland Mutual Legal Assistance Treaty,\23\ which in turn 
is based on Article 11 of the European Convention on Mutual 
Assistance in Criminal Matters.\24\ It is anticipated that, 
where the receiving State is a third state, the Requesting 
State will make all arrangements necessary to meet the 
requirements of this paragraph.
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    \23\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at 
Bern May 25, 1973, entered into force January 23, 1977, art. 26.
    \24\ It is also consistent with Title 18, United States Code, 
Section 3508, which provides for the transfer to the United States of 
witnesses in custody in other States whose testimony is needed at a 
federal criminal trial.
---------------------------------------------------------------------------
    Paragraph 1 provides that persons in custody in the 
Requested State whose presence outside of that State is sought 
for purposes of assistance under this Treaty, such as providing 
testimony in a criminal prosecution, may be transferred in 
custody for that purpose if the person consents and the Central 
Authorities of both states agree.
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State if 
the person consents and if the Central Authorities of both 
States agree. This would also cover situations in which a 
person in custody in the United States on a criminal matter has 
sought permission to travel to another country to be present at 
a deposition being taken there in connection with the case.\25\
---------------------------------------------------------------------------
    \25\ See, also, United States v. King, 552 F.2d 833 (9th Cir. 
1976), cert. denied, 430 U.S. 966 (1977), where the defendants insisted 
on traveling to Japan to be present at the deposition of certain 
witnesses in prison there.
---------------------------------------------------------------------------
    Paragraph 3(a) provides express authority for, and imposes 
an obligation upon, the receiving State to maintain the person 
in custody until the purpose of the transfer is accomplished, 
unless otherwise agreed by both Central Authorities.
    Paragraph 3(b) provides that the receiving State must 
return the transferred person to the custody of the sending 
State as soon as circumstances permit or as otherwise agreed by 
the Central Authorities. The initial transfer of a prisoner 
under this article requires the consent of the person involved 
and of both Central Authorities, but the provision does not 
require that the person consent to being returned to the 
sending State.
    In keeping with the obligation to return a person 
transferred under this article, paragraph 3(c) explicitly 
prohibits the State to whom a person is transferred from 
requiring the transferring State to initiate extradition or any 
other proceedings before the status quo is restored by the 
return of the person transferred.
    Paragraph 3(d) states that the person transferred will 
receive credit in the sending State for the time in custody in 
the receiving State. This is consistent with United States 
practice in these matters.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the Receiving State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

               Article 12--Transit of Persons in Custody

    Article 11 contemplates that persons in custody will be 
moved from State to State for purposes of mutual assistance, 
and it is reasonable to anticipate situations in which one 
State may need to bring persons in custody through the other on 
the way to or from third States. Article 12 provides the legal 
framework for such transit. Similar provisions appear in other 
recent U.S. mutual legal assistance treaties.\26\
---------------------------------------------------------------------------
    \26\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 11.
---------------------------------------------------------------------------
    Paragraph 1 gives each State the power to authorize transit 
through its territory of a person being transferred to the 
other State by a third state. Paragraph 2 obligates and 
authorizes each State to keep in custody a person during the 
transit period. It is expected that requests for transit would 
contain a description of the person being transported and a 
brief statement of the facts of the case for which the person 
is sought. While transit authorization under this article is 
always discretionary, Paragraph 3 specifically states that each 
State may refuse transit of its nationals.

       Article 13--Location or Identification of Persons or Items

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

                    Article 14--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers 
relating in whole or in part to a Treaty request. Identical 
provisions appear in most U.S. mutual legal assistance 
treaties.\27\
---------------------------------------------------------------------------
    \27\ U.S.-Lithuania Mutual Legal Assistance Treaty, signed at 
Washington January 16, 1998, entered into force August 26, 1999, art. 
13.
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Ukraine to follow a specified 
procedure for service) or by the United States Marshal's 
Service in instances in which personal service is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be transmitted by the Central Authority of 
the Requesting State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 15--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
United States courts can and do execute such requests under 
Title 28, United States Code, Section 1782.\28\ This article 
creates a formal framework for handling such requests and is 
similar to provisions in many other United States mutual legal 
assistance treaties.\29\
---------------------------------------------------------------------------
    \28\ See, e.g., United States ex Rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla., 
Orlando Div.) (search warrant issued February 24, 1984 based on a 
request under Title 28, United States Code, Section 1782).
    \29\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 15.
---------------------------------------------------------------------------
    Article 15 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Ukraine will have to be supported by a 
showing of probable cause for the search. A U.S. request to 
Ukraine would have to satisfy the corresponding evidentiary 
standard there, which is ``a reasonable basis to believe'' that 
the specified premises contains articles likely to be evidence 
of the commission of an offense.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and delivered up under the Treaty. This 
provision requires that, upon request, every official who has 
custody of a seized item shall certify, through the use of a 
form attached to the request, the identity of the item, the 
continuity of custody, and any changes in its condition. The 
delegations agreed that, at least for requests by the United 
States, the form will be as set forth in Form E in the Annex to 
the Treaty.
    The article also provides that the certificates describing 
continuity of custody will be admissible in evidence in the 
Requesting State as proof of the truth of the matters set forth 
therein, thus relieving the Requesting State of the burden, 
expense, and inconvenience of having to send its law 
enforcement officers to the Requested State to provide 
authentication and chain of custody testimony each time the 
Requesting State uses evidence produced under this article. As 
in Articles 8(5) and 9(3), the injunction that the certificates 
be admissible without additional authentication leaves the 
trier of fact free to bar use of the evidence itself, in spite 
of the certificate, if there is some reason to do so other than 
authenticity or chain of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred.
    During the negotiations, the delegations discussed 
including a fourth paragraph in this article that would 
obligate the Central Authority of the Requested State to use 
its best efforts to obtain any necessary approval for the 
transfer of items where such approval is required under the 
laws of that State concerning import, export, or other transfer 
of items.\30\ It was concluded that a specific provision was 
unnecessary, but both delegations agreed that the Requested 
State would be expected to use its best efforts to assist the 
Requesting State's authorities in obtaining the transfer of 
items without unnecessary delays that might otherwise be 
encountered under the Requested State's import and export laws.
---------------------------------------------------------------------------
    \30\ Cf. U.S.-Lithuania Mutual Legal Assistance Treaty, signed at 
Washington January 16, 1998, entered into force August 26, 1999, art. 
15(4).
---------------------------------------------------------------------------

                      Article 16--Return of Items

    This article provides that any documents or items of 
evidence furnished under the Treaty must be returned to the 
Requested State as soon as possible. The delegations understood 
that this requirement would be invoked only if the Central 
Authority of the Requested State specifically requests it at 
the time that the items are delivered to the Requesting State. 
It is anticipated that unless original records or articles of 
significant intrinsic value are involved, the Requested State 
will not usually request return of the items, but this is a 
matter best left to development in practice.

            Article 17--Assistance in Forfeiture Proceedings

    The Treaty will enhance the efforts of both the United 
States and Ukraine in combating narcotics trafficking. One 
significant strategy in this effort by United States 
authorities is action to seize and confiscate money, property, 
and other proceeds of drug trafficking.
    This article is similar to a number of United States mutual 
legal assistance treaties, including Article 16 of the U.S.-
Barbados Mutual Legal Assistance Treaty and Article 17 of the 
U.S.-Latvia Mutual Legal Assistance Treaty. Paragraph 1 
authorizes the Central Authority of one State to notify the 
other of the existence in the latter's territory of proceeds or 
instrumentalities of offenses that may be forfeitable or 
otherwise subject to seizure. The term ``proceeds or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables either used in the crime or 
purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Ukraine, they could be seized under 
Title 18, United States Code, Section 981 in aid of a 
prosecution under Title 18, United States Code, Section 
2314,\31\ or be subject to a temporary restraining order in 
anticipation of a civil action for the return of the assets to 
the lawful owner. Proceeds of a foreign kidnaping, robbery, 
extortion or a fraud by or against a foreign bank are civilly 
and criminally forfeitable in the U.S. since these offenses are 
predicate offenses under U.S. money laundering laws.\32\ Thus, 
it is a violation of United States criminal law to launder the 
proceeds of these foreign fraud or theft offenses, when such 
proceeds are brought into the United States.
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    \31\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad.
    \32\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting States will be able and 
willing to help one another. Title 18, United States Code, 
Section 981(a)(1)(B) allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada; there is a growing trend among nations 
toward enacting legislation of this kind in the battle against 
narcotics trafficking.\33\ The U.S. delegation expects that 
Article 16 of the Treaty will enable this legislation to be 
even more effective.
---------------------------------------------------------------------------
    \33\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, December 20, 
1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the States shall assist one another 
to the extent permitted by their laws in proceedings relating 
to the forfeiture of the proceeds and instrumentalities of 
offenses, to restitution to crime victims, and to the 
collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested State may take immediate action to temporarily 
immobilize the assets pending further proceedings. The language 
of the article is carefully selected, however, so as not to 
require either State to take any action that would exceed its 
internal legal authority. It does not, for instance, mandate 
institution of forfeiture proceedings or initiation of 
temporary immobilization in either country against property 
identified by the other if the relevant prosecution authorities 
do not deem it proper to do so.\34\
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    \34\ In Ukraine, unlike the United States, the law does not 
currently allow for civil forfeiture. However, Ukraine law does permit 
forfeiture in criminal cases, and ordinarily a defendant must be 
convicted in order for Ukraine to confiscate the defendant's property.
---------------------------------------------------------------------------
    U.S. law permits the government to transfer a share of 
certain forfeited property to other countries that participate 
directly or indirectly in the seizure or forfeiture of the 
property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State.\35\ 
Paragraph 3 is consistent with this framework, and will enable 
a Contracting State having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other 
Contracting State, at the former's discretion and to the extent 
permitted by their respective laws.
---------------------------------------------------------------------------
    \35\ See, Title 18, United States Code, Section 981(i)(1).
---------------------------------------------------------------------------
    Ukraine's delegation stated that Ukrainian law allows the 
Government to dispose of proceeds of most crimes, or valuables 
obtained through illegal activities, and nothing in the law 
prohibits sharing such crime proceeds with foreign governments. 
Proceeds of drug offenses, however, ordinarily go into the 
state treasury. Ukraine's delegation was confident, however, 
that Ukraine would share a percentage of forfeited proceeds 
with the United States, on a case-by-case basis.

             Article 18--Compatibility with Other Treaties

    This article states that assistance and procedures provided 
by this Treaty shall not prevent assistance under any other 
applicable international agreements through the internal laws 
of either country. It also provides that the States may provide 
assistance pursuant to any bilateral arrangement, agreement or 
practice that may be applicable. Thus, the Treaty would leave 
the provisions of U.S. and Ukrainian law on letters rogatory 
completely undisturbed, and would not alter any pre-existing 
agreements concerning investigative assistance.\36\
---------------------------------------------------------------------------
    \36\ See, e.g., the U.S.-Ukraine Memorandum of Understanding 
Concerning Cooperation in the Pursuit of Nazi War Criminals, signed at 
Washington August 26, 1993, entered into force August 26, 1993; U.S.-
U.S.S.R. Agreement Relating to Procedure to be Followed on the 
Execution of Letters Rogatory, signed at Moscow Nov. 22, 1935, entered 
in force Nov. 22, 1935, 49 Stat. 3840, 11 Bevans 1262, 167 LNTS 303./
---------------------------------------------------------------------------

                        Article 19--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting States will share those ideas with one another, 
and encourages them to agree on the implementation of such 
measures. Practical measures of this kind might include methods 
of keeping each other informed of the progress of 
investigations and cases in which treaty assistance was 
utilized, or the use of the Treaty to obtain evidence that 
otherwise might be sought via methods less acceptable to the 
Requested State. Similar provisions are contained in recent 
United States mutual legal assistance treaties. It is 
anticipated that the Central Authorities will conduct regular 
consultations pursuant to this article.

      Article 20--Ratification, Entry Into Force, and Termination

    This article concerns the procedures for the ratification, 
exchange of instruments of ratification, and entry into force 
of the Treaty.
    Paragraph 1 states that the Treaty is subject to 
ratification and that the instruments of ratification are to be 
exchanged at Washington as soon as possible.
    Paragraph 2 provides that this Treaty shall enter into 
force upon the exchange of instruments of ratification.
    Paragraph 3 provides that the Treaty will be terminated six 
months from the date that one Contracting State receives 
written termination notification from the other. Similar 
requirements are contained in our treaties with other 
countries.
                                ------                                


  Technical Analysis of the Inter-American Convention on Mutual Legal 
                     Assistance in Criminal Matters

    On January 10, 1995, the United States signed the 
Organization of American States (``OAS'') Inter-American 
Convention on Mutual Legal Assistance in Criminal Matters 
(``Convention''). This Convention was the first multilateral 
treaty on mutual legal assistance signed by the United States. 
It is similar to the bilateral mutual legal assistance treaties 
which the United States has concluded with other countries in 
this region and elsewhere.
    This Convention grew out of [put in background about 
Cartagena, Bush/Reagan, etc. 3 treaties--OAS Prisoner Transfer, 
OAS MLAT, and OAS preventative measures, in return for 
extraditions] a need to strengthen law enforcement cooperation 
among members of the OAS, and to support the provisions of the 
1988 United Nations Convention Against Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances.1
---------------------------------------------------------------------------
    \1\ United Nations Convention Against Illicit Traffic in Narcotic 
Drugs and Psychotropic Substances, with annex and final act, done at 
Vienna, December 20, 1988, and entered into force for the United States 
November 11, 1990, 28 I.L.M. 493 (March 1989). Article 7 of that 
Convention obligates the parties to provide ``the widest measure of 
mutual legal assistance in investigations, prosecutions and judicial 
proceedings'' related to offenses established under the Convention.
---------------------------------------------------------------------------
    The negotiation of the OAS Convention began in 1986, when 
the OAS Committee on Juridical and Political Affairs 
established a Working Group to draft an Inter-American 
Convention on Judicial Assistance. The Working Group's initial 
draft of a convention was limited to mutual execution of 
letters rogatory, and while a treaty with this limited approach 
was acceptable to civil law Latin American countries, it was of 
little value to common law countries. In 1988, the United 
States delegation persuaded the Working Group to rewrite the 
draft convention along the lines of the U.S.'s bilateral mutual 
legal assistance treaties (MLATs) to make it more useful to all 
nations in the hemisphere. The U.S. also encouraged common law 
countries like Canada and Jamaica to become involved. As a 
result, the draft was extensively revised, with representatives 
of countries which have signed bilateral MLATs with the United 
States (principally Canada, Mexico, Uruguay, Jamaica, and 
Argentina) taking the lead in formulating provisions for the 
convention consistent with the terms of the various bilateral 
MLATs in the region.
    The General Assembly of the OAS approved the text of the 
Convention during its regular session in The Bahamas on May 23, 
1993 (Resolution AG/RES. 1168 (XXII-0/92)and opened it for 
signature at that time. The United States supported the treaty, 
but would not sign it until a Protocol mandating assistance for 
all tax offenses was also opened for signature. The Protocol to 
this effect was approved by the General Assembly of the OAS 
during the regular session in Managua, Nicaragua June 6, 1993 
and was opened it for signature on January 1, 1994. The 
Convention entered into force on April 4, 1996. As of August 
21, 2000, the Protocol has not yet entered into force.
    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 
history. 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.

              CHAPTER I--GENERAL PROVISIONS (Article 1-9)


                  Article 1--Purpose of the Convention

    Article 1 obligates the states parties to render mutual 
assistance in criminal matters.

           Article 2--Scope and Application of the Convention

    Paragraph one obligates States to provide assistance in 
investigations, prosecutions and proceedings that pertain to 
crimes over which the requesting State has jurisdiction at the 
time the assistance was requested. The term ``investigation'' 
was understood to encompass grand jury proceedings in the 
United States and the equivalent pre-charge proceedings in 
other States, as well as committal proceedings and other legal 
measures taken prior to the filing of formal 
charges.2 The term ``proceedings that pertain to 
crimes'' was intended to cover assistance in the full range of 
proceedings related to criminal charges, including such matters 
as bail and sentencing hearings.3 Furthermore, the 
phrase ``proceedings that pertain to crimes'' is broader than 
the investigation, prosecution or sentencing process itself, 
and thus proceedings covered by the Treaty need not be strictly 
criminal in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature,4 but such proceedings are covered 
by the Treaty.
---------------------------------------------------------------------------
    \2\ The requirement that assistance be provided under the 
Convention at the pre-indictment stage is very useful to the United 
States, as our investigators and prosecutors often need to obtain 
evidence from foreign countries in order to determine whether or not to 
file criminal charges. This obligation is a reciprocal one, and the 
United States must assist other States under the Convention in 
connection with investigations prior to charges being filed abroad.
    \3\ One U.S. court has interpreted Title 28, United States Code, 
Section 1782 as permitting the execution of a request for assistance 
from a foreign country only if the evidence sought is for use in 
proceedings before an adjudicatory ``tribunal'' in the foreign country. 
In Re Letters Rogatory Issued by the Director of Inspection of the 
Government of India, 385 F.2d 1016 (2nd Cir. 1976); Fonseca v. 
Blumenthal, 620 F.2d 322 (2nd Cir. 1980). This rule poses an 
unnecessary obstacle to the execution of requests concerning matters 
which are at the investigatory stage, or which are customarily handled 
by administrative officials in the Requesting Party. Since this 
paragraph of the treaty specifically permits requests to be made in 
connection with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28 United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \4\ See Title 21, United States Code, Section 881; Title 18, United 
States Code, Section 1964.
---------------------------------------------------------------------------
    Paragraph two states that the Convention does not create 
any new jurisdiction or operational authority on the part of 
one Party to undertake actions in the territory of the other. 
This provision is based on Article 2(3) of the 1988 United 
Nations Convention Against Illicit Traffic in Narcotic Drugs 
and Psychotropic Substances, and is similar to language found 
in other U.S. MLATs.5
---------------------------------------------------------------------------
    \5\ U.S.-Mexico Mutual Legal Assistance Treaty, signed at Mexico 
December 9, 1987, entered into force May 3, 1991, art. 1(2); U.S.-
Uruguay Mutual Legal Assistance Treaty, signed at Montevideo May 6, 
1991, entered into force April 15, 1994, art. 1(3).
---------------------------------------------------------------------------
    Paragraph three contains a standard provision in United 
States mutual legal assistance treaties providing that the 
Convention is intended solely for government-to-government 
mutual legal assistance. The Convention is not intended to 
provide a means for private persons to gather evidence abroad. 
Private litigants in the United States may continue to obtain 
evidence from other countries by letters rogatory, an avenue of 
international assistance which the Convention leaves 
undisturbed. Similarly, this Convention is not intended to 
create any new right in a private person to suppress or exclude 
evidence thereunder.

                      Article 3--Central Authority

    Article 3 of the Convention requires that each party 
designate a ``Central Authority'' at the time of signature or 
ratification of this Convention. The Central Authority will be 
responsible for issuing and receiving requests for assistance. 
The Central Authority of the United States will make all 
requests under the Convention on behalf of federal agencies, 
state agencies and local law enforcement authorities in the 
United States. Early drafts of the convention did not contain 
the concept of central authority at all, and this article was 
one of the U.S. delegation's major contributions to the 
negotiations.
    The final paragraph establishes that the central 
authorities shall communicate directly with one another for all 
purposes of the Convention.
    Although this Convention does not specifically designate 
the Attorney General as Central Authority, the United States 
and other delegations intended and understood that the U.S. 
Attorney General would be the U.S. Central Authority, as is the 
case under all other United States mutual legal assistance 
treaties. The Attorney General has delegated authority as 
Central Authority under mutual legal assistance treaties to the 
Assistant Attorney General in charge of the Criminal 
Division.6
---------------------------------------------------------------------------
    \6\ 28 C.F.R Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------

                   Article 4--Appropriate Authorities

    This article recognizes that while the Central Authority 
will formally make and receive all requests, the information in 
the requests, and the impetus for the invocation of the 
Convention, will be coming from elsewhere within the Requesting 
State's government. Since there are basic differences in the 
structure of the legal systems of the Parties, a request for 
assistance from one Party may have a different point of origin 
than a request for assistance from the other Party. For 
example, the majority of U.S. requests will be initially 
brought to the Central Authority's attention by prosecutors or 
investigators, whereas requests in civil law countries will 
often first be suggested to the Central Authority by judges or 
investigating magistrates. This is because in civil law 
countries, a judge or magistrate directly oversees many of the 
duties in connection with criminal investigations which in the 
United States are performed by prosecutors or law enforcement 
agents.7
---------------------------------------------------------------------------
    \7\ See generally Pahl, Wanted: Criminal Justice--Colombia's 
Adoption of a Prosecutorial System of Criminal Procedure, 16 Fordham 
Int'l Law Rev 608 (1992); Ploscowe, The Investigating Magistrate (Juge 
d'instruction) in European Criminal Procedure, 33 Mich. L. Rev. 1010 
(1935); Keedy, The Preliminary Investigation of Crime in France, 88 U. 
Pa. L. Rev. 385 (1940).
---------------------------------------------------------------------------
    It should be noted that while the fundamental differences 
between the civil law and common law systems were accommodated 
by this clause in this treaty, it is also the anticipation of 
the negotiators that in any event the ``party in interest'' who 
motivates the request must be one with responsibility for 
criminal investigations. It was not the anticipation of the 
negotiators that a Central Authority will seek to invoke the 
Convention on behalf of legislative investigations, independent 
Commissions of Inquiry unable to institute prosecutions, or 
private parties.

                     Article 5--Double Criminality

    Extradition treaties often condition the surrender of 
fugitives upon a showing of ``double criminality'', i.e., proof 
that the facts underlying the offense charged in the Requesting 
State would also constitute an offense had they occurred in the 
Requested State. The first paragraph of this article 
establishes the general principle that there is no requirement 
of double criminality for cooperation under this Convention, 
and that assistance must be provided even when the criminal 
matter under investigation in the Requesting State would not be 
a crime in the Requested State. This paragraph is important 
because there are significant differences in the laws of the 
various countries in the region, and the double criminality 
rule would make assistance unavailable in many significant 
areas.
    The second paragraph specifies two measures (sequestration 
of property, and searches and seizures, including house 
searches, provided for in Articles 13, 14 and 15) in which the 
Requested State has the discretion to decline to render 
assistance unless double criminality is shown. Similar 
exceptions appear in the European Convention on Judicial 
Assistance in Penal Matters, and are intended to emphasize that 
in these cases the procedural and substantive law of the 
Requested State must be taken into account, e.g., that there 
may be a requirement of double criminality to effect a warrant 
to search and/or seize. A similar provision is found in Article 
1(2) of the U.S.-Uruguay MLAT.

                               Article 6

    This article requires that the crime giving rise to the 
request be punishable by one year or more of imprisonment in 
the requesting state.

                    Article 7--Scope of Application

    This article sets forth a list of the major types of 
assistance specifically considered by the negotiators. Most of 
the items listed in this article are described in further 
detail in subsequent articles. This article's list of kinds of 
assistance is not intended to be exhaustive, a fact which is 
signaled by the word ``include'' in the opening clause and 
reinforced by the final subparagraph.

                       Article 8--Military Crimes

    This article permits a Requested State to deny a request if 
the request relates to a strictly military offense. A similar 
restriction is found in many of our bilateral mutual legal 
assistance treaties,8 and is also in Article 1(2) of 
the European Convention on Mutual Assistance in Criminal 
Matters.9
---------------------------------------------------------------------------
    \8\ See U.S.-Mexico Mutual Legal Assistance Treaty, signed at 
Mexico December 9, 1987, entered into force May 3, 1991, art. 1(3)(d); 
U.S.-Uruguay Mutual Legal Assistance Treaty, signed at Montevideo May 
6, 1991, entered into force April 15, 1994, art. 5(1)(a).
    \9\ Done at Strasbourg April 20, 1959, European Treaty Series No. 
30.
---------------------------------------------------------------------------

                    Article 9--Refusal of Assistance

    Article 9 outlines the circumstances under which a request 
for assistance may be denied. It should be noted that the 
Requested State has the discretion to deny assistance on these 
grounds, but is also free to grant assistance if it wishes. 
Nevertheless, this article is an important one because it 
reflects the limitations on each Party's obligation to provide 
assistance.
    It should also be noted that the grounds for denying 
assistance under this convention are more numerous and a bit 
broader than the grounds contained in the bilateral mutual 
legal assistance treaties the United States has signed. This is 
because the convention is a multilateral agreement, designed to 
accommodate the varying legal systems of a number of different 
States in the region. The United States, as only one of the 
States involved in the negotiations, could not successfully 
insist that this provision of the treaty reflect U.S. policies 
alone. Thus, some of the provisions in this article were 
insisted upon by some OAS States whose internal legislation and 
jurisprudence place restrictions on international assistance 
which are not maintained by other OAS states. Other provisions 
reflect long-standing policies one or two states maintain with 
respect to cooperation with other states, policies which are 
not shared generally but which had to be accommodated in order 
for those states to accede to the convention. In short, the 
bases for denying assistance found in this provision, while 
appropriate given the convention's multilateral context, do not 
necessarily reflect those which the United States would demand 
in a bilateral mutual legal assistance treaty.
    Article 9(a) permits the Requested State to deny a request 
if the evidence requested is to be used to try a person in the 
Requesting State on a charge for which that person has already 
been sentenced or acquitted in the Requesting or Requested 
State. This paragraph makes it clear that the denial must be 
specific to the person who is the subject of the request, and 
may not be applied to deny assistance related to other persons 
charged with the same offense but not yet sentenced or 
acquitted.
    Article 9(b) permits denial of assistance if the Requested 
State finds that the investigation has been initiated for the 
purpose of prosecuting, punishing or discriminating against an 
individual or group of persons for reason of sex, race, social 
status, nationality, religion, or ideology. This language comes 
from the American Convention on Human Rights, adopted by the 
OAS November 22, 1969, entered into force July 18, 1978; United 
States signed June 1, 1977. The United States delegation did 
not initially support this broad provision but accepted it as 
part of an overall agreement on an appropriate text for Article 
9.
    Article 9(c) permits the Central Authority of the Requested 
State to deny a request if it relates to an offense considered 
to be political, to be related to a political offense, or to be 
prosecuted for political reasons. This is a somewhat more 
broadly worded political offense limitation clause than those 
found in most United States bilateral mutual legal assistance 
treaties, in that it allows (but, on the other hand, does not 
mandate) the denial of assistance for offenses which are not 
political in themselves but the requested states concludes that 
the prosecution is for political reasons. The determination of 
what is a political offense is to be made by the Requested 
State, and the United States delegation understood and intended 
that, for the United States, the Central Authority will make 
this determination, in consultation with other relevant 
executive branch agencies.
    Article 9(d) permits the Requested State to deny assistance 
requested by special or ad hoc tribunals. This provision was 
included because some special or ad hoc tribunals have been 
implicated in human rights violations.10 Article 
9(d) permits the Requested State to determine, on a case by 
case basis, whether to provide the same assistance to foreign 
special or ad hoc tribunals which would be supplied to an 
ordinary criminal court.
---------------------------------------------------------------------------
    \10\ See, e.g., Article 8, The American Convention on Human Rights, 
adopted by the OAS November 22, 1969; entered into force July 18, 1978, 
signed by the United States on June 1, 1977.
---------------------------------------------------------------------------
    Article 9(e) permits assistance to be refused if the 
assistance would prejudice the public policy (ordre public), 
security sovereignty, or basic public interests of the 
Requested State. All U.S. mutual legal assistance treaties 
contain provisions allowing the Requested State to decline to 
execute a request if execution would prejudice the essential 
interests of that Party.
    The delegations agreed that the phrase ``basic public 
interests'' was intended to be limited to very serious reasons 
for denial. However, it was agreed that these could include 
interests unrelated to national military or political security. 
This provision would, for instance, be invoked if the execution 
of a request would violate essential United States interests 
related to the fundamental purposes of the Convention. One 
fundamental purpose of the Convention is to enhance law 
enforcement cooperation, and attaining that purpose would be 
hampered if sensitive law enforcement information available 
under the Convention were to fall into the wrong hands. The 
United States Central Authority would invoke Article 9(e) to 
decline to provide information pursuant to a request under this 
Convention whenever it determines, after appropriate 
consultation with law enforcement, intelligence, and foreign 
policy agencies, that a senior foreign government official who 
will have access to the information is engaged in a felony, 
including the facilitation or the production or distribution of 
illegal drugs.11
---------------------------------------------------------------------------
    \11\ This is consistent with the Senate resolution of advice and 
consent to ratification of other recent mutual legal assistance 
treaties with e.g., Luxembourg, Hong Kong, Poland and Barbados. See 
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal 
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy 
Assistant Attorney General, Criminal Division, United States Department 
of Justice).
---------------------------------------------------------------------------
    Article 9(f) permits the Requested State to deny a request 
related to a tax offense, with one very important exception: 
assistance shall be provided if the tax offense is ``committed 
by way of an intentionally incorrect statement'' or ``by way of 
an intentional failure to declare income from any other offense 
covered by this Convention.''
    The United States considers criminal tax investigations to 
be an important aspect of a State's overall strategy for 
combating crime, and believes that an exception like Article 
9(f) is unwise and unnecessary. Tax investigations are an 
important weapon in the battle against offenses such as drug 
trafficking and organized crime. There is a provision like 
Article 9(f) in the United States' bilateral treaty with 
Uruguay, where we were assured that it would be interpreted as 
a very narrow exception to a general obligation to provide 
assistance, but no similar clause appears in the other mutual 
legal assistance treaties which we have signed, including 
treaties with other countries in the region such as Jamaica, 
Argentina, Colombia, and Mexico.12 Moreover, the 
clear trend in international legal cooperation matters has been 
to provide greater assistance in criminal tax investigations 
and prosecutions,13 a trend underscored by the many 
bilateral treaties and agreements on mutual assistance in tax 
matters in force between the United States and other States in 
the region. For these reasons, the United States delegation 
consistently opposed Article 9(f) during the negotiations, and 
would not sign the Convention until the Optional Protocol 
requiring assistance for tax offenses was developed and opened 
for signature.
---------------------------------------------------------------------------
    \12\ A few of our bilateral mutual legal assistance treaties do 
contain provisions allowing the Requested State to deny assistance for 
requests relating to certain tax offenses. See U.S.-Bahamas Mutual 
Legal Assistance Treaty, signed at Nassau March 9, 1990, entered into 
force September 22, 1994, art. 2(2); U.S.-U.K. Treaty Concerning the 
Cayman Islands, signed at Grand Cayman July 3, 1986, entered into force 
March 19, 1990, art. 3(1)(a).
    \13\ For example, the European Convention on Mutual Assistance, 
opened for signature on 20 April 1959, had a provision similar to 9(f), 
making assistance in tax crimes discretionary. However, a Protocol to 
this multilateral convention was agreed to and opened for signature on 
17 March 1978, making assistance for tax offenses mandatory.
---------------------------------------------------------------------------

CHAPTER II--REQUESTS FOR ASSISTANCE, PROCESSING AND EXECUTION (Articles 
                                 10-16)


                  Article 10--Requests for Assistance

    The first paragraph requires that requests be in writing 
and that requests be executed in accordance with the domestic 
law of the Requested State. This provision is intended to 
emphasize that the law of the Requested State is the 
controlling law in executing a request under the Convention. 
For the United States, the Convention is intended to be self-
executing, and no new legislation is needed to carry out its 
obligations.
    The second paragraph requires that procedures specified in 
the request be fulfilled insofar as the law of the Requested 
State is not violated. Unless the requested procedures are 
incompatible with the Requested State's law, those procedures 
must be used to execute the request. However, neither Party is 
expected to take any action pursuant to a request which would 
be prohibited under its laws. It is contemplated that forms for 
authentication, for example, or specific procedures in taking 
testimony or collecting or verifying evidence may be required 
by the Requesting State to ensure the admissibility and 
usefulness of the evidence in court proceedings in the 
Requesting State. A similar provision is found in several other 
U.S. Mutual Legal Assistance Treaties.14 It is also 
similar to provisions in other mutual legal assistance treaties 
that provide for the use of specific forms to authenticate 
requested documents as well as following the method of 
execution specified in the request, if not prohibited by the 
laws of the Requested State.
---------------------------------------------------------------------------
    \14\ See, e.g., U.S.-Argentina Mutual Legal Assistance Treaty, 
signed at Buenos Aires December 4, 1990, entered into force February 9, 
1993, art. 5(3).
---------------------------------------------------------------------------

                               Article 11

    This article allows the Requested State to postpone the 
execution of a request, with an explanation of the grounds for 
doing so if necessary in certain circumstances. It is 
understood that the Central Authority of the Requested State 
will determine when to apply this provision.
    For example, a request for assistance need not be executed 
immediately if execution would interfere with an ongoing 
investigation, prosecution, or proceeding in the Requested 
State. It is understood that the Central Authority of the 
Requested State will determine when to apply this provision. 
The Central Authority of the Requested State may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence which might otherwise be lost 
before the conclusion of the investigation or legal proceeding 
taking place in that State. The fact that this is authorized 
only ``if necessary,'' indicates that the Central Authority of 
the Requested State is also obliged to consider granting 
assistance immediately but subject to appropriate conditions 
(e.g., that the evidence provided be kept confidential) rather 
than postponed.

                               Article 12

    This procedural article provides that any documents or 
objects furnished under the Convention must be returned to the 
Requested State as soon as possible, unless that State decides 
otherwise. It is anticipated that the Requested State will 
usually waive return unless original records or objects of 
value are involved, but this is a matter best left to the 
development of practice.Article 13--Search, Seizure, Attachment 
and Surrender of Property
    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence, or for other 
purposes. U.S. courts can execute such requests now, under 
Title 28, United States Code, Section 1782.15 
Article 13 creates a formal framework for reciprocal assistance 
in such matters.
---------------------------------------------------------------------------
    \15\ See, e.g., United States Ex Rel Public Prosecutor of 
Rotterdam, Netherlands v. Richard Jean Van Aalst, Case No 84-67-Misc-
018 (M.D. Fla., Orlando Div.) (search warrant issued February 24, 1984 
based on a request under Title 28, United States Code, Section 1782).
---------------------------------------------------------------------------
    In this respect, the United States very rarely finds it 
necessary to conduct a search and seizure at the request of 
foreign law enforcement authorities, and, of course, we would 
not seek to do so unless it were necessary. In some foreign 
states, evidence is routinely obtained by searches and seizures 
rather than subpoena duces tecum. Thus, the U.S. delegations 
anticipates that this provision will be considerably more 
valuable to the U.S. than it is to the other parties, as it 
ensures that our treaty partner will have authority can obtain 
for U.S. law enforcement authorities what they need from abroad 
even if the provision is rarely used here on behalf of foreign 
law enforcement authorities.
    The article requires that the search and seizure request 
include ``information that justifies the proposed action. That 
action shall be subject to the procedural and substantive law 
of the requested state.'' This means that normally a request to 
the United States from another State will have to be supported 
by probable cause for the search. A United States request to 
another State would have to satisfy the corresponding 
evidentiary standard there. The request would be carried out in 
strict accordance with the law of the State in which the search 
is being conducted.16
---------------------------------------------------------------------------
    \16\ The United States delegation had United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990), in mind as Article 13(1) was being 
negotiated. In that case, the U.S. Supreme Court ruled that the Fourth 
Amendment did not apply to a search by U.S. investigators of property 
located in Mexico and owned by a person with no close ties to the 
United States. The opinion overruled a lower court decision which had 
excluded evidence obtained during the search because the investigators 
did not obtain a U.S. search warrant before asking Mexican police for 
permission to conduct the search.
---------------------------------------------------------------------------
    Under the second paragraph of the article, the Requested 
State need not surrender any articles it has seized unless it 
is satisfied that any interests that third parties may have in 
the seized items are adequately protected. This permits the 
Requested State, for instance, to insist that the Requesting 
State promise that the article will be returned to the 
Requested State at the conclusion of the proceedings. This 
article is similar to articles in many of the United States' 
extradition treaties.17
---------------------------------------------------------------------------
    \17\ U.S.-Canada Extradition Treaty, signed at Washington December 
3, 1971, entered into force March 22, 1976, art. 15; U.S.-Mexico 
Extradition Treaty, signed at Mexico City May 4, 1978, entered into 
force January 25, 1980, art. 19. See also U.S.-U.K. Extradition Treaty, 
signed at London June 8, 1972, entered into force January 21, 1977, 
art. XIII.
---------------------------------------------------------------------------

                Article 14--Measures For Securing Assets

    A major goal of the Convention is to enhance the efforts of 
both the United States and other countries in the region in 
combating narcotics trafficking. One significant strategy in 
this effort is action by U.S. authorities to seize and 
confiscate the money, property, and proceeds of drug 
trafficking.
    Article 14 authorizes the Central Authority of one State to 
notify the other of the existence in the latter's territory of 
proceeds, fruits or instrumentalities of a serious offense 
including drug trafficking. These terms were intended to 
include money, vessels, or other valuables which are either 
being used in the crime or which were purchased or obtained as 
a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds are located may 
take whatever action is appropriate under the law in that 
State. For instance, if the assets in question are located in 
the United States and were obtained as a result of a fraud in 
another State, they could be seized in aid of prosecution under 
Title 18, United States Code, Section 2314,18 or be 
made subject to a temporary restraining order in anticipation 
of a civil action for the return of the assets to the lawful 
owner.
---------------------------------------------------------------------------
    \18\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad.
---------------------------------------------------------------------------
    If the assets in question are the fruits of drug 
trafficking, the Contracting Parties will be especially willing 
to help one another. Legislation in the United States expands 
the authority of law enforcement officials to seize the 
proceeds of drug trafficking. Title 18, United States Code, 
Section 981(a)(1)(B) also authorizes the forfeiture to the 
United States of property which represents proceeds obtained 
directly or indirectly from an offense against a foreign nation 
involving the manufacture, importation, sale, or distribution 
of a controlled substance (as such term is defined for the 
purposes of the Controlled Substance Act), within whose 
jurisdiction such offense would be punishable under the laws of 
the United States by imprisonment for a term exceeding one year 
if such act or activity constituting the offense against the 
foreign nation had occurred within the jurisdiction of the 
United States.19 There is a growing trend among 
nations toward enacting legislation of this kind in the battle 
against narcotics trafficking.20
---------------------------------------------------------------------------
    \19\ For example, Section 981(a)(1)(B) was among the grounds argued 
in an action to forfeit a bank account in the United States containing 
funds generated by a Peruvian drug trafficking organization. United 
States v. All Monies ($477,048.62) in Account No. 90-3617-3, 754 F. 
Supp. 1467 (D. Ha. 1991). In that case, the United States produced a 
declaration from an informant alleging, that, inter alia, money had 
been exchanged for coca paste in Peru. Also submitted was a declaration 
from a legal expert stating that the activities described by the 
informant constituted both a violation of Peruvian law and a foreign 
drug felony for purposes of Section 981(a)(1)(B). However, the court 
relied on other grounds to forfeit the accounts.
    \20\  Many OAS members, including the United States, have signed 
and ratified the United Nations Convention Against the Illicit Traffic 
in Narcotic Drugs and Psychotropic Substances, with annex and final 
act, Done at Vienna December 20, 1988, and entered into force for the 
United States November 11, 1990, 28 I.L.M. 493 (March 1989), and 
Article 3 of that Convention obliges the parties to enact legislation 
to confiscate drug proceeds.
---------------------------------------------------------------------------

                               Article 15

    Article 15 states that the Parties to this Convention may 
aid one another in proceedings leading to the forfeiture of the 
proceeds of crime. The Parties also assume an obligation to aid 
one another, on request, in proceedings leading to the 
forfeiture of illegally obtained assets, restoring illegally 
obtained funds or articles to their rightful owners.
    Thus, if the law of the Requested State enables it to seize 
assets in aid of a proceeding in the Requesting State or to 
enforce a judgment of forfeiture in the Requesting State, the 
Convention encourages the Requested State to do so. The 
language of the article is carefully selected, however, so as 
not to require any State to take any action which would go 
beyond ``the extent permitted by their respective laws.'' It 
does not, for instance, mandate institution of forfeiture 
proceedings in either country against property identified by 
the other if the relevant prosecuting authorities do not deem 
it proper to do so.
    It was anticipated that the parties would apply this 
provision in any case ``permitted by their respective laws,'' 
including money laundering and racketeering offenses for the 
United States.
    Although asset sharing has become a critically important 
area for the United States, the U.S. delegation decided not to 
propose language in the Convention to cover asset sharing, 
because it was felt that the sharing of assets is best worked 
out on a country by country basis. Therefore, the language 
``measures for securing . . .'' was not intended to include 
asset sharing without other relevant intergovernmental 
arrangements.

 Article 16--Date, Place and Modality of the Execution of the Request 
                             for Assistance

    This article authorizes the requested state to furnish 
information about the execution of a request for assistance.
    The second paragraph of this article allows representatives 
of the Requesting State to be present at and participate in the 
execution of the request to the extent not prohibited by the 
laws of the Requested State so long as the Requested State 
expressly consents. For example, a United States request might 
ask that the government and defense attorneys from the United 
States, and perhaps the defendant, be present for the taking of 
the testimony. A request to the United States may ask that the 
judge from the Requesting State be present for the taking of 
testimony in the United States. The phrase ``be present at and 
participate in the execution of the request for assistance, to 
the extent not prohibited by the law of the requested state, 
and provided that the authorities of the requested state have 
give their express consent thereto'' (emphasis added) was 
included to provide for restrictions on direct questioning of 
witnesses under the law of some member countries.21 
Thus, the law of the Requested State controls the manner in 
which questions are posed and the procedure for taking the 
requested testimony.
---------------------------------------------------------------------------
    \21\ While restrictions under the laws of some countries require a 
lawyer of that country to propound the questions to the witness, it is 
understood that U.S. lawyers may be present and may pose questions, if 
not directly to the witness, then in accordance with the legal 
procedure of that country, either through a lawyer or judge of that 
country.
---------------------------------------------------------------------------

 CHAPTER III--SERVICE OF JUDICIAL DECISIONS, JUDGMENTS, AND VERDICTS, 
   AND APPEARANCE OF WITNESSES AND EXPERT WITNESSES (Articles 17-23)


Article 17--Service of Judicial Decisions, Judgments, And Verdicts, and 
              Appearance of Witnesses and Expert Witnesses

    Article 17 requires the Central Authority of the Requested 
State to arrange for or effect the service of notice of 
decisions, judgments, or other documents issued by competent 
authorities of the Requesting State, at the request of the 
Central Authority of the Requesting State.
    It is expected that when the United States is the Requested 
State, the Central Authority will arrange to execute requests 
for service under the Convention by registered mail (in absence 
of any request to follow a specified procedure for service) or 
by the United States Marshals Service when personal service is 
requested.

              Article 18--Testimony in the Requested State

    Article 18 states that a person in the Requested State 
shall be summoned to appear, in accordance with the law of the 
Requested State to give testimony or provide documents, records 
or evidence.
    Under most U.S. MLATs, the person questioned in the 
Requested State is entitled to raise any evidentiary privileges 
normally available under the law of that State. However, if the 
witness attempts to invoke evidentiary privileges available 
only under the law of the Requesting State, the evidence shall 
nonetheless be taken, and transmitted to the Requesting State 
along with notice that it was obtained over a claim of 
privilege.22 Some OAS delegations felt that the 
privileges of both Requesting and Requested State should apply 
in such proceedings. Others, like the United States, did not 
agree. The United States delegation did not want the Convention 
to require U.S. authorities to adjudicate questions of the 
applicability of foreign privileges in foreign requests to the 
United States. The consensus reached was that the Convention 
would be silent on this point, allowing each Party to follow 
whatever approach its implementing legislation directs on this 
matter, which means that the United States would neither be 
forbidden from nor obliged to recognize privileges which exist 
only under foreign law.
---------------------------------------------------------------------------
    \22\ This approach enables the execution of the request to move 
forward swiftly and efficiently, and allows the applicability of the 
privilege to be determined in the Requesting State, where the scope of 
the privilege and the policy reasons underlying it are best understood.
---------------------------------------------------------------------------

             Article 19--Testimony in the Requesting State

    Article 19 provides that upon request, the Requested State 
shall invite witnesses who are located in its territory to 
travel to the Requesting State to testify. An appearance in the 
Requesting State under this article is not mandatory, and the 
invitation may be refused by the prospective witness. The 
Requested State is obliged to inform the Requesting State 
promptly of the response of the witness.

    Article 20--Transfer of Persons Subject to Criminal Proceedings

    In some recent criminal cases, a need has arisen for the 
testimony at a trial in one country of a witness serving a 
sentence in another country. In some instances, the country 
involved has been willing to ``lend'' the witness to the United 
States Government, provided the witness would be carefully 
guarded while in the United States and returned at the 
conclusion of his testimony. In several situations, the Justice 
Department has been able to arrange for federal inmates in the 
United States to be transported to foreign countries to assist 
in criminal proceedings.23 Article 20 provides an 
express legal basis for cooperation in these matters.
---------------------------------------------------------------------------
    \23\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Paragraph one states that if both the person whose presence 
is requested and the Requested State consent, the person in 
custody ``shall be transferred'' for the purpose articulated in 
the request for assistance from the Requesting State.
    There have also been recent situations in which a person in 
custody in the United States on a criminal matter has demanded 
permission to travel to another country to be present at a 
deposition being taken there in connection with the case. The 
second paragraph of Article 20 addresses this 
situation.24
---------------------------------------------------------------------------
    \24\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976), 
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on 
traveling to Japan to be present at the deposition of certain witnesses 
in prison there.
---------------------------------------------------------------------------
    A request for transfer may be denied if the individual 
refuses to consent to the transfer, if the individual's 
presence is needed for an investigation or criminal proceeding, 
or for other considerations of a legal or another nature.
    This article contains the express authority and obligation 
for the receiving State to maintain the person in custody 
throughout his stay there, unless the other State specifically 
authorizes release. This is consistent with current Federal law 
on this subject, found in Title 18, United States Code, Section 
3508. The article also requires the receiving State to return 
the person in custody to the other State, and provides that 
this return will occur as soon as circumstances permit, or as 
otherwise agreed. The transfer of a prisoner under this article 
requires the consent of the person involved and of both States, 
but the provision does not require that the prisoner consent 
again to his return to the State where the transfer began.
    Given the obligation to return a person so transferred, the 
article also provides that the sending state shall not be 
required to initiate extradition proceedings before the status 
quo is restored by the return of the person transferred. The 
prisoner will receive credit for time served while in the 
custody of the receiving State.
    Finally, the article requires that the stay in the 
Requesting State shall not exceed the lesser of either the time 
remaining of the sentence or 60 days. This time can be extended 
only if the individual and both States agree.

                          Article 21--Transit

    This article gives each country the power to authorize 
transit through its territory of persons being transferred to 
or from a third State. Notice of transit is to be made in 
advance of travel and agents of the Requesting State are to 
maintain custody of the person traveling.
    Paragraph 2 provides that when air transportation is used 
and no landing is scheduled on the territory of the other 
country, no advance transit authorization is necessary.

                        Article 22--Safe Conduct

    This article provides ``safe conduct'' for a person who is 
in the Requesting State to testify pursuant to this Convention, 
upon advance request by the person or the sending State. Under 
this safe conduct, the person shall be immune from criminal 
prosecution and detention for acts or convictions which 
preceded the witness' departure from the Requested State, and 
shall not be required to make statements or give testimony in 
proceedings not mentioned in the request while he is in the 
Requesting State. Furthermore, the person is not to be detained 
or prosecuted on the basis of any statement he makes, except 
for contempt of court or perjury. The safe conduct would not 
prevent prosecution for any other crime committed while in the 
Requesting State pursuant to the Convention or thereafter.
    This article's applicability to a person transferred under 
Article 21 is necessarily limited, since Article 21 requires 
that a person be kept in custody unless the State from which he 
was transferred has consented to his release.
    The final paragraph states that the safe conduct guaranteed 
in this article expires ten days after the sending State has 
been notified that his presence is no longer required. It is 
also understood that it would not apply if he leaves the 
Requesting State and thereafter returns to it.

  CHAPTER IV--TRANSMITTAL OF INFORMATION AND RECORDS (Articles 23-25)


                               Article 23

    This article requires that the request for testimony be 
accompanied with written questions or interrogatories to the 
extent possible or necessary.

           Article 24--Transmittal of Information and Records

    This article describes the obligation to produce and 
provide information from the files of its government 
departments and agencies. The term ``government departments and 
agencies'' includes executive, judicial, and legislative units 
at the Federal, State and local level in the Requested State.
    The first paragraph of this article obliges each State to 
furnish the other, upon request, with copies of publicly 
available records of its government agencies or departments.
    The second paragraph provides that the Requested State may 
share with its treaty partner copies of non-public information 
in government files. The undertaking under this provision is 
discretionary. Moreover, this subsection states that the 
Requested State may utilize its discretion to turn over 
information in the files of its government departments or 
agencies only ``to the same extent as and subject to the same 
conditions'' as it would impose in providing such documents to 
its own authorities. It is intended that the Central Authority 
of the Requested State determines to what extent and under what 
conditions the information will be provided. The discretionary 
nature of this provision was deemed necessary because 
government files in each State contain certain types of 
information which would be available to investigative 
authorities in that State, but which would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information which was given to the Requested State in 
return for a promise that it not be divulged. Therefore, 
assistance can be denied under this paragraph and the Requested 
State is not required to give the reasons for the denial.
    The U.S. delegation specifically discussed whether this 
article should serve as a basis for exchange of tax information 
under Title 26 United States Code, Section 6103(k)(4). It was 
the intention of the U.S. delegation that the United States be 
able to provide assistance under the Convention in tax matters 
and such assistance would include tax return information when 
appropriate. Therefore, the U.S. delegation was satisfied that 
this Convention is a ``convention relating to the exchange of 
tax information'' for purposes of Title 26, United States Code, 
Section 6103(k)(4), and the United States would have the 
discretion under this article to provide tax return information 
to other States.

     Article 25--Limitations on the Use of Information or Evidence

    The first paragraph of Article 25 requires that information 
provided under the Convention not be used for any purpose other 
than that stated in the request (as required under Article 
26(b)) without the prior consent of the Requested State. When 
the requesting State needs to disclose and use the information 
or evidence, in whole or in part, for purposes other than those 
specified, the second paragraph requires it to request 
authorization to do so from the requested State. The Requested 
State may accede to or deny the request, in whole or in part.
    The overall purpose of the Convention is the production of 
evidence for trial, which would be frustrated if the Requested 
Party could let the Requesting Party see valuable evidence but 
could impose restrictions preventing the Requesting Part from 
using the evidence. For this reason, the third paragraph of 
this article contains an exception to these limitations for 
evidence ``that must be disclosed and used to the extent 
necessary for proper fulfillment of the procedure or 
formalities specified in the request. . . .'' This also 
includes some situations in which the due process guarantees of 
the U.S. Constitution would require disclosure of information 
exculpatory to the accused.25 In the event that 
disclosure of evidence obtained under the Convention is 
required in a proceeding involving a matter other than that 
described in the request, the United States would consult in 
advance with the Requested State in order to seek to fashion a 
method of disclosure consistent with the requirements of both 
States.
---------------------------------------------------------------------------
    \25\ See Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    The final paragraph states that the Requested State may 
request that information it provides to the Requesting State be 
kept confidential. Conditions of confidentiality are to be 
imposed only when necessary, and are to be tailored to fit the 
circumstances of each particular case. For instance, the 
Requested State may wish to cooperate with the investigation in 
the Requesting State but may choose to limit access to 
information which might endanger the safety of an informant, or 
unduly prejudice the interests of persons not connected in any 
way with the matter being investigated in the Requesting State. 
This provision would also permit imposition of conditions of 
confidentiality required by the law of the Requested State. For 
instance, information obtained from a grand jury might be 
provided to OAS members only upon agreement by the latter to 
maintain the same degree of secrecy to which the information 
would be entitled in the United States.
    Similar to the exception set forth in the third paragraph 
of this Article, the second sentence of this final paragraph 
recognizes that the requesting State may not always be able to 
maintain such confidentiality. In the event that the requesting 
State cannot accede to such a request, the Central Authorities 
shall confer in order to define mutually acceptable terms of 
confidentiality.
    The U.S. delegation understood that this article of the 
Convention was not intended to apply to information which has 
been revealed to the public in the course of a trial or other 
proceeding in the requesting state, in good faith compliance 
with the terms of the Convention. When evidence obtained under 
the Convention has been revealed to the public, that 
information effectively becomes part of the public domain. The 
information is likely to become a matter of wide and common 
knowledge; it may be cited or described in the press and can be 
obtained by anyone from the court record. When that occurs, it 
is impossible as a practical matter for the Central Authority 
of the Requesting State to block the use of that information. 
Indeed, any effort to interfere with the use of information 
which is in the public domain could raise serious 
Constitutional problems in the United States, and that was not 
the intention of the negotiators. Because this issue was not 
formally addressed in the Convention, however, an Understanding 
has been proposed for inclusion in the U.S. instrument of 
ratification stating that the limitation will no longer apply 
if information or evidence is made public, in a manner 
consistent with Article 25, in the course of proceedings in the 
Requesting State.

                 CHAPTER V--PROCEDURE (Articles 26-31)


                               Article 26

    This article outlines the specific information which must 
be included in each request. It also provides that the 
Requested State may request additional information when 
necessary for fulfillment of the request and requires that, if 
the Requested State cannot comply with a request, it must 
return the request with an explanation.

                               Article 27

    This article states that in keeping with the intention of 
the Parties that requests be as simple and straightforward as 
possible, there is no requirement under the Convention that a 
request be legalized or certified.

                               Article 28

    This article requires that requests be translated into an 
official language of the Requested State. It is understood that 
requests to the United States will be translated into English.

                               Article 29

    Article 29 of the Convention proceeds from the basic 
principle that the Requested State should bear all expenses 
incurred in the execution of a request. However, the Requesting 
State is to pay fees of expert witnesses and travel costs 
related to transportation of persons. If it appears that 
execution may entail unusual costs, the Parties are to confer.

                               Article 30

    Experience has shown that as the Parties to a Convention of 
this kind work together over the years, they become aware of 
various practical ways to make the Convention more effective 
and their own efforts more efficient. This article encourages 
States to share those ideas with one another. It is anticipated 
that the Central Authorities for the respective parties will 
work closely together and that consultation between the Central 
Authorities is to be especially encouraged.

                         Article 31--Liability

    Some countries impose personal liability on their judges 
for damages resulting from action that was taken in the 
execution of official duties, such as freezing bank accounts, 
seizing records, etc. Some foreign judges do not enjoy as broad 
protection for official acts as that which exists for U.S. 
judges and prosecutors under U.S. law. Because of this 
potential liability, some foreign judges may hesitate to 
execute requests from the United States. Therefore, this 
article was included to shield authorities in the requested 
state from liability when properly executing a request under 
the Convention in which an inadvertent error (e.g., transposed 
numbers in a bank account) may have been made by an official in 
the requesting state. Consequently, the second paragraph of 
this article provides that neither Party is liable for damages 
that may arise from acts committed by the other Party in the 
formulation or execution of a request.
    This article in no way creates additional liability for any 
official of the United States or for the United States 
Government, and does not alter current U.S. law in any 
way.26
---------------------------------------------------------------------------
    \26\ See U.S.-Uruguay Mutual Legal Assistance Treaty, signed at 
Montevideo May 6, 1991, entered into force April 15, 1994, art. 26.
---------------------------------------------------------------------------

               CHAPTER VI--FINAL CLAUSES (Articles 32-40)


                               Article 32

    This article contains standard language on signature by 
members.

                               Article 33

    This article contains standard language providing for 
ratification by OAS member States.

                               Article 34

    This article contains standard language on accession by 
other States.

                               Article 35

    This article allows reservations to be made at the time of 
signature, approval, ratification or accession. Reservations 
must concern at least one specific provision and may not be 
incompatible with the object and purpose of the Convention.

                               Article 36

    Article 36 provides that this Convention shall not be 
interpreted as affecting or restricting obligations in effect 
under any other international, bilateral or multilateral 
convention with clauses governing specific aspects of 
international criminal judicial assistance, or more favorable 
practices of the States. This provision is important to the 
United States, which has signed bilateral mutual legal 
assistance treaties with numerous States in the region. The 
United States has found bilateral treaties to be especially 
useful instruments for bilateral law enforcement cooperation, 
and anticipate the negotiation of additional bilateral treaties 
in the future. The United States is also a party to several 
important multilateral conventions such as the 1988 United 
Nations Convention on Narcotic Drugs and Psychotropic 
Substances,27 which provide for or affect 
international assistance.
---------------------------------------------------------------------------
    \27\ Done at Vienna December 20, 1988, and entered into force for 
the United States November 11, 1990, 28 I.L.M. 493 (March 1989).
---------------------------------------------------------------------------
    Article 36 makes clear that the assistance and procedures 
set forth in this Inter-American Convention on Mutual 
Assistance in Criminal Matters shall not prevent any of the 
Contracting Parties from granting assistance to another Party 
through the provisions of other international agreements, or 
bilateral treaties, or through the provisions of national laws. 
The Parties also may provide assistance pursuant to any 
bilateral arrangement, agreement, or practice which may be 
applicable. Thus, the Convention is not intended to replace, 
supersede, obviate, or otherwise interfere in any way with any 
other bilateral or multilateral conventions on this topic which 
are currently in force or which may be negotiated in the 
future.

                               Article 37

    This article contains standard language on entry in force 
of the Convention.

                               Article 38

    This article provides that each Party with two or more 
territorial units in which different systems of law govern 
matters addressed in this convention must state whether the 
Convention applies to all its territorial units.

                               Article 39

    This article contains the standard provision concerning the 
procedure for denouncing the Convention. The requirement that a 
State must give one year's notice of intent to denounce the 
Convention is not unusual in multilateral conventions, and is 
consistent with other international conventions such as the 
1988 Vienna Convention on Narcotic and Psychotropic Substances.

                               Article 40

    This article contains language on procedures for deposits 
of instruments of ratification, accession, denunciation as well 
as reservations.
                                ------                                


   Technical Analysis of the Optional Protocol Related to the Inter-
   American Convention on Mutual Legal Assistance in Criminal Matters

    In May of 1992, the OAS opened for signature the Inter-
American Convention on Mutual Legal Assistance in Criminal 
Matters (the ``OAS MLAT''). The United States delegation 
supported the conclusion of the OAS MLAT, but also publicly 
expressed the view that the United States government would be 
unlikely to become a party unless a protocol providing for 
assistance in tax proceedings was agreed upon and also opened 
for signature.
    While the OAS MLAT would be a valuable tool for obtaining 
assistance in a wide variety of criminal matters, it contains 
certain limitations regarding assistance in cases involving tax 
offenses. Most significantly, under Article 9(f) of the MLAT, a 
party may decline assistance in investigations and proceedings 
involving certain tax offenses. The United States delegation 
consistently opposed this provision during negotiations of the 
MLAT, but ultimately joined consensus on the Article as a 
whole. The United States considers criminal tax investigations 
to be an important aspect of a State's overall strategy for 
combating crime. Such investigations are also an increasingly 
important weapon in the battle against offenses such as drug 
trafficking and organized crime. As discussed below, the first 
article of the Protocol removes the discretion of Protocol 
signatories to refuse assistance on the grounds that a tax 
offense is involved. The second article clarifies that the 
limited dual criminality provision in Article 5 of the OAS MLAT 
should be interpreted liberally in cases involving tax 
offenses.
    This Protocol follows a trend in international legal 
cooperation matters to provide greater assistance in criminal 
tax cases and investigations. For example, the European 
Convention on Mutual Assistance, opened for signature on April 
20, 1959, had a provision similar to Article 9(f), making 
assistance in tax crimes discretionary. However, a Protocol to 
this multilateral convention was agreed to and opened for 
signature on March 17, 1978, making assistance for tax offenses 
mandatory.
    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 
history.

                               Article 1

    Article 1 obligates parties to the Protocol to forego the 
exercise of the discretion provided to parties in the OAS MLAT 
to refuse assistance solely on the grounds that a tax offense 
is involved. Thus, those States which are parties both to the 
OAS MLAT and the Protocol may not deny assistance solely 
because the matter under investigation is a tax offense in the 
Requesting State or would be a tax offense in the Requested 
State. Of course, each State retains any other lawful basis for 
denying assistance, which is contained in the OAS MLAT or in 
its internal law.

                               Article 2

    Article 2 provides that the limited dual criminality 
provision in Article 5 of the OAS MLAT should not be 
interpreted in an unduly narrow manner in cases involving tax 
offenses. This article mandates that parties to the Protocol 
not decline assistance based on dual criminality if ``the act 
specified in the request corresponds to a tax crime of the same 
nature under the law of the Requested State.''

                               Article 3

    Paragraph one through four of this article contain standard 
final clauses on issues such as signature, accession, 
ratification and reservations.
    Paragraph five of this article contains language that is 
particularly important to the United States. The U.S. has 
signed bilateral mutual legal assistance treaties with numerous 
States in the region, with fourteen such treaties currently in 
force. The United States has found bilateral treaties to be 
especially useful instruments for bilateral law enforcement 
cooperation, and anticipates the negotiation of additional 
bilateral treaties in the future. The United States is also a 
party to several important multilateral conventions such as 
United Nations Convention Against Illicit Traffic in Narcotic 
Drugs and Psychotropic Substances, with annex and final act, 
done at Vienna, December 20, 1988, and entered into force for 
the United States November 11, 1990, 28 I.L.M. 493 (March 
1989), which provide for or otherwise enhance international 
judicial assistance.
    Therefore, it the understanding of the United States that 
the assistance and procedures set forth in this Protocol shall 
not prevent any of the Contracting Parties from granting 
assistance to another Party through the provisions of other 
international agreements, or bilateral treaties, or through the 
provisions of national laws. The Parties also may provide 
assistance pursuant to any bilateral arrangement, agreement, or 
practice which may be applicable. Thus, the Protocol is not 
intended to replace, supersede, obviate, or otherwise interfere 
in any way with any other bilateral or multilateral conventions 
on this topic which are currently in force or which may be 
negotiated in the future.
    Paragraphs six and seven of this article contain standard 
language on entry in force of the Protocol. Paragraphs eight 
provides that if a state party has two or more territorial 
units in which different systems of law govern matters 
addressed in the Protocol, it shall state at the time of 
signature, ratification or accession whether this Protocol 
shall apply to all of its territorial units or only to one or 
more of them. Paragraph nine on statements made by parties 
pursuant to paragraph eight is thus also not relevant to the 
United States.

                               Article 4

    This article contains a standard provision concerning the 
procedure for denouncing the Protocol and states that the 
Protocol shall remain in force as long as the Convention 
remains in force. The requirement that a State must give one 
year notice of intent to terminate the effectiveness of the 
Protocol is not unusual and is consistent with the Convention 
and other international conventions such as the 1988 Vienna 
Convention on Narcotic and Psychotropic Substances.

                               Article 5

    This article contains language on procedures for deposits 
of the Protocol with the General Secretariat of the OAS and 
notifications to Parties of signatures and deposits of 
instruments of ratification, accession, denunciation as well as 
reservations.

             VIII. Text of the Resolutions of Ratification


Agreement with Cyprus

      Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Treaty Between the Government of the United 
States of America and the Government of the Republic of Cyprus 
on Mutual Legal Assistance in Criminal Matters, signed at 
Nicosia on December 20, 1999 (Treaty Doc. 106-35), subject to 
the understanding of subsection (a), the declaration of 
subsection (b) and the provisos 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 Assistance to the International 
        Criminal Court.--The United States shall exercise its 
        rights to limit the use of assistance it provides under 
        the Treaty so that any assistance provided by the 
        Government of the United States shall not be 
        transferred to or otherwise used to assist the 
        International Criminal Court contemplated in the 
        Statute adopted in Rome, Italy, on July 17, 1998, 
        unless the Statute 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) Provisos.--The resolution of ratification is subject 
to the following provisos, which shall not be included in the 
instrument of ratification:
            (1) Limitation on assistance.--Pursuant to the 
        rights of the United States under this Treaty to deny 
        requests which prejudice its essential public policy or 
        interests, the United States shall deny a request for 
        assistance when the Central Authority, after 
        consultation with all appropriate intelligence, anti-
        narcotic, and foreign policy agencies, has specific 
        information that a senior government official who will 
        have access to information to be provided under this 
        Treaty is engaged in a felony, including the 
        facilitation of the production or distribution of 
        illegal drugs.
            (2) Supremacy of the constitution.--Nothing in this 
        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.

Agreement with Egypt

      Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Treaty Between the Government of the United 
States of America and the Government of the Arab Republic of 
Egypt on Mutual Legal Assistance in Criminal Matters, signed at 
Cairo on May 3, 1998 (Treaty Doc. 106-19), subject to the 
understanding of subsection (a), the declaration of subsection 
(b) and the provisos 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 assistance to the international 
        criminal court.--The United States shall exercise its 
        rights to limit the use of assistance it provides under 
        the Treaty so that any assistance provided by the 
        Government of the United States shall not be 
        transferred to or otherwise used to assist the 
        International Criminal Court contemplated in the 
        Statute adopted in Rome, Italy, on July 17, 1998, 
        unless the Statute 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) Provisos.--The resolution of ratification is subject 
to the following provisos, which shall not be included in the 
instrument of ratification:
            (1) Limitation on Assistance.--Pursuant to the 
        rights of the United States under this Treaty to deny 
        requests which prejudice its essential public policy or 
        interests, the United States shall deny a request for 
        assistance when the Central Authority, after 
        consultation with all appropriate intelligence, anti-
        narcotic, and foreign policy agencies, has specific 
        information that a senior government official who will 
        have access to information to be provided under this 
        Treaty is engaged in a felony, including the 
        facilitation of the production or distribution of 
        illegal drugs.
            (2) Supremacy of the Constitution.--Nothing in this 
        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.

Agreement with France

      Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Treaty Between the United States of America 
and France on Mutual Legal Assistance in Criminal Matters, with 
an explanatory note, signed at Paris on December 10, 1998 
(Treaty Doc. 106-17), subject to the understanding of 
subsection (a), the declaration of subsection (b) and the 
provisos 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 Assistance to the International 
        Criminal Court.--The United States shall exercise its 
        rights to limit the use of assistance it provides under 
        the Treaty so that any assistance provided by the 
        Government of the United States shall not be 
        transferred to or otherwise used to assist the 
        International Criminal Court contemplated in the 
        Statute adopted in Rome, Italy, on July 17, 1998, 
        unless the Statute 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) Provisos.--The resolution of ratification is subject 
to the following provisos, which shall not be included in the 
instrument of ratification:
            (1) Limitation on Assistance.--Pursuant to the 
        rights of the United States under this Treaty to deny 
        requests which prejudice its essential public policy or 
        interests, the United States shall deny a request for 
        assistance when the Central Authority, after 
        consultation with all appropriate intelligence, anti-
        narcotic, and foreign policy agencies, has specific 
        information that a senior government official who will 
        have access to information to be provided under this 
        Treaty is engaged in a felony, including the 
        facilitation of the production or distribution of 
        illegal drugs.
            (2) Supremacy of the Constitution.--Nothing in this 
        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.

Agreement with Greece

      Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Treaty Between the Government of the United 
States of America and the Government of the Hellenic Republic 
on Mutual Legal Assistance in Criminal Matters, signed at 
Washington on May 26, 1999 (Treaty Doc. 106-18), subject to the 
understanding of subsection (a), the declaration of subsection 
(b) and the provisos 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 Assistance to the International 
        Criminal Court.--The United States shall exercise its 
        rights to limit the use of assistance it provides under 
        the Treaty so that any assistance provided by the 
        Government of the United States shall not be 
        transferred to or otherwise used to assist the 
        International Criminal Court contemplated in the 
        Statute adopted in Rome, Italy, on July 17, 1998, 
        unless the Statute 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) Provisos.--The resolution of ratification is subject 
to the following provisos, which shall not be included in the 
instrument of ratification:
            (1) Limitation on Assistance.--Pursuant to the 
        rights of the United States under this Treaty to deny 
        requests which prejudice its essential public policy or 
        interests, the United States shall deny a request for 
        assistance when the Central Authority, after 
        consultation with all appropriate intelligence, anti-
        narcotic, and foreign policy agencies, has specific 
        information that a senior government official who will 
        have access to information to be provided under this 
        Treaty is engaged in a felony, including the 
        facilitation of the production or distribution of 
        illegal drugs.
            (2) Supremacy of the Constitution.--Nothing in this 
        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.

Agreement with Nigeria

      Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Treaty Between the Government of the United 
States of America and the Federal Republic of Nigeria on Mutual 
Legal Assistance in Criminal Matters, signed at Washington on 
September 13, 1989 (Treaty Doc. 102-26), subject to the 
understanding of subsection (a), the declaration of subsection 
(b) and the provisos 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 Assistance to the International 
        Criminal Court.--The United States shall exercise its 
        rights to limit the use of assistance it provides under 
        the Treaty so that any assistance provided by the 
        Government of the United States shall not be 
        transferred to or otherwise used to assist the 
        International Criminal Court contemplated in the 
        Statute adopted in Rome, Italy, on July 17, 1998, 
        unless the Statute 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) Provisos.--The resolution of ratification is subject 
to the following provisos, which shall not be included in the 
instrument of ratification:
            (1) Limitation on Assistance.--Pursuant to the 
        rights of the United States under this Treaty to deny 
        requests which prejudice its essential public policy or 
        interests, the United States shall deny a request for 
        assistance when the Central Authority, after 
        consultation with all appropriate intelligence, anti-
        narcotic, and foreign policy agencies, has specific 
        information that a senior government official who will 
        have access to information to be provided under this 
        Treaty is engaged in a felony, including the 
        facilitation of the production or distribution of 
        illegal drugs.
            (2) Supremacy of the Constitution.--Nothing in this 
        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.

Agreement with Romania

      Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Treaty Between the United States of America 
and Romania on Mutual Legal Assistance in Criminal Matters, 
signed at Washington on May 26, 1999 (Treaty Doc. 106-20), 
subject to the understanding of subsection (a), the declaration 
of subsection (b) and the provisos 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 Assistance to the International 
        Criminal Court.--The United States shall exercise its 
        rights to limit the use of assistance it provides under 
        the Treaty so that any assistance provided by the 
        Government of the United States shall not be 
        transferred to or otherwise used to assist the 
        International Criminal Court contemplated in the 
        Statute adopted in Rome, Italy, on July 17, 1998, 
        unless the Statute 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) Provisos.--The resolution of ratification is subject 
to the following provisos, which shall not be included in the 
instrument of ratification:
            (1) Limitation on Assistance.--Pursuant to the 
        rights of the United States under this Treaty to deny 
        requests which prejudice its essential public policy or 
        interests, the United States shall deny a request for 
        assistance when the Central Authority, after 
        consultation with all appropriate intelligence, anti-
        narcotic, and foreign policy agencies, has specific 
        information that a senior government official who will 
        have access to information to be provided under this 
        Treaty is engaged in a felony, including the 
        facilitation of the production or distribution of 
        illegal drugs.
            (2) Supremacy of the Constitution.--Nothing in this 
        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.

Agreement with South Africa

      Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Treaty Between the Government of the United 
States of America and the Government of the Republic of South 
Africa on Mutual Legal Assistance in Criminal Matters, signed 
at Washington on September 16, 1999 (Treaty Doc. 106-36), 
subject to the understanding of subsection (a), the declaration 
of subsection (b) and the provisos 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 Assistance to the International 
        Criminal Court.--The United States shall exercise its 
        rights to limit the use of assistance it provides under 
        the Treaty so that any assistance provided by the 
        Government of the United States shall not be 
        transferred to or otherwise used to assist the 
        International Criminal Court contemplated in the 
        Statute adopted in Rome, Italy, on July 17, 1998, 
        unless the Statute 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) Provisos.--The resolution of ratification is subject 
to the following provisos, which shall not be included in the 
instrument of ratification:
            (1) Limitation on Assistance.--Pursuant to the 
        rights of the United States under this Treaty to deny 
        requests which prejudice its essential public policy or 
        interests, the United States shall deny a request for 
        assistance when the Central Authority, after 
        consultation with all appropriate intelligence, anti-
        narcotic, and foreign policy agencies, has specific 
        information that a senior government official who will 
        have access to information to be provided under this 
        Treaty is engaged in a felony, including the 
        facilitation of the production or distribution of 
        illegal drugs.
            (2) Supremacy of the Constitution.--Nothing in this 
        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.

Agreement with Ukraine

      Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Treaty Between the United States of America 
and Ukraine on Mutual Legal Assistance in Criminal Matters, 
with Annex, signed at Kiev on July 22, 1998 (Treaty Doc. 106-
16), subject to the understanding of subsection (a), the 
declaration of subsection (b) and the provisos 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 Assistance to the International 
        Criminal Court.--The United States shall exercise its 
        rights to limit the use of assistance it provides under 
        the Treaty so that any assistance provided by the 
        Government of the United States shall not be 
        transferred to or otherwise used to assist the 
        International Criminal Court contemplated in the 
        Statute adopted in Rome, Italy, on July 17, 1998, 
        unless the Statute 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) Provisos.--The resolution of ratification is subject 
to the following provisos, which shall not be included in the 
instrument of ratification:
            (1) Limitation on Assistance.--Pursuant to the 
        rights of the United States under this Treaty to deny 
        requests which prejudice its essential public policy or 
        interests, the United States shall deny a request for 
        assistance when the Central Authority, after 
        consultation with all appropriate intelligence, anti-
        narcotic, and foreign policy agencies, has specific 
        information that a senior government official who will 
        have access to information to be provided under this 
        Treaty is engaged in a felony, including the 
        facilitation of the production or distribution of 
        illegal drugs.
            (2) Supremacy of the Constitution.--Nothing in this 
        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.

Inter-American Convention on Mutual Assistance in Criminal Matters with 
        Related Protocol

      Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Inter-American Convention on Mutual 
Assistance in Criminal Matters (``the Convention''), adopted at 
the Twenty-Second Regular Session of the Organization of 
American States (``OAS'') General Assembly meeting in Nassau, 
The Bahamas, on May 23, 1992, and the Optional Protocol Related 
to the Inter-American Convention on Mutual Assistance in 
Criminal Matters (``the Optional Protocol''), adopted at the 
Twenty-Third Regular Session of the OAS General Assembly 
meeting in Managua, Nicaragua, on June 11, 1993, both 
instruments signed on behalf of the United States at OAS 
Headquarters in Washington on January 10, 1995 (Treaty Doc. 
105-25), subject to the understandings of subsection (a), the 
declaration of subsection (b) and the proviso of subsection 
(c).
      (a) Understandings.--The Senate's advice and consent is 
subject to the following understandings, which shall be 
included in the instrument of ratification:
            (1) In General.--The United States understands that 
        the Convention and Optional Protocol are not intended 
        to replace, supersede, obviate or otherwise interfere 
        with any other existing bilateral or multilateral 
        treaties or conventions, including those that relate to 
        mutual assistance in criminal matters.
            (2) Article 25.--The United States understands that 
        Article 25 of the Convention, which limits disclosure 
        or use of information or evidence obtained under the 
        Convention, shall no longer apply if such information 
        or evidence is made public, in a manner consistent with 
        Article 25, in the course of proceedings in the 
        Requesting State.
            (3) Prohibition on Assistance to the International 
        Criminal Court.--The United States shall exercise its 
        rights to limit the use of assistance it may provide 
        under the Convention or the Optional Protocol so that 
        any assistance provided by the Government of the United 
        States shall not be transferred to or otherwise used to 
        assist the International Criminal Court contemplated in 
        the Statute adopted in Rome, Italy, on July 17, 1998, 
        unless the Statute 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 
upon 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:
            Supremacy of the Constitution.--Nothing in this 
        Convention or the Optional Protocol 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.

                                  
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