[Senate Executive Report 107-15]
[From the U.S. Government Publishing Office]
107th Congress Exec. Rpt.
2nd Session SENATE 107-15
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MUTUAL LEGAL ASSISTANCE TREATIES WITH BELIZE, INDIA, IRELAND, AND
LIECHTENSTEIN
_______
October 17, 2002.--Ordered to be printed
_______
Mr. Biden, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Docs. 107-13, 107-3, 107-9, and 107-16]
The Committee on Foreign Relations to which were referred
the Treaty Between the Government of the United States of
America and the Government of Belize on Mutual Legal Assistance
in Criminal Matters, signed at Belize, on September 19, 2000,
and a related exchange of notes (Treaty Doc. 107-13); the
Treaty Between the Government of the United States of America
and the Government of the Republic of India on Mutual Legal
Assistance in Criminal Matters, signed at New Delhi on October
17, 2001 (Treaty Doc. 107-3); the Treaty Between the Government
of the United States of America and the Government of Ireland
on Mutual Legal Assistance in Criminal Matters, signed at
Washington on January 18, 2001 (Treaty Doc. 107-9); and the
Treaty Between the Government of the United States of America
and the Principality of Liechtenstein on Mutual Legal
Assistance in Criminal Matters, and a related exchange of
notes, signed at Vaduz on July 8, 2002 (Treaty Doc. 107-16)
having considered the same, reports favorably thereon, each
subject to an understanding and conditions indicated in the
corresponding resolutions of advice and consent to
ratification, and recommends that the Senate give its advice
and consent to the ratification thereof as set forth in this
report and said resolutions of advice and consent to
ratification.
CONTENTS
Page
I. Purpose..........................................................2
II. Background.......................................................2
III. Summary and Discussion of the Treaties...........................2
IV. Entry Into Force and Termination.................................4
V. Committee Action.................................................4
VI. Committee Recommendation and Comments............................5
VII. Explanation of the Treaties......................................5
VIII.Text of Resolutions of Advice and Consent to Ratification.......30
I. Purpose
The treaties are designed to provide a formal basis for
mutual cooperation between the respective parties on law
enforcement matters.
II. Background
The United States currently has mutual legal assistance
treaties (MLATs) in force with over 50 countries. Along with
extradition treaties, these treaties provide a formal means for
facilitating and expanding cooperative law enforcement efforts
with other nations.
All four of the treaties discussed in this report were
submitted by President Bush during the 2d session of the 107th
Congress. Two of the treaties were signed, however, during the
Clinton Administration.
III. Summary and Discussion of the Treaties
A. GENERAL
Each of the treaties under consideration has distinct
features, but they follow a common format. In general, they
consist of twenty articles, more or less. They cover
essentially the same matter, in same general order, often with
only minor variations of style and language. The major articles
usually address the following:
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
assistance 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 obtained 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 best efforts in
response to a request for the location or
identification of a particular person or item;
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; and
assistance in forfeiture proceedings and in
proceedings concerning restitution and criminal fines.
B. KEY PROVISIONS
1. Limitations on Assistance
All of the Treaties have an article that describes the
circumstances under which assistance may or must be refused.
The most common 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 procedural requirements of
the particular Treaty.
2. Limitations on Use
The MLATs allow the Central Authorities of the country
providing evidence or information under the Treaty to prohibit
its use in other investigations or prosecutions without their
consent or until after it has been publicly disclosed as a
consequence of the use for which it was intended. 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.
3. 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.
American courts usually do not have authority to subpoena
foreign nationals living abroad. Even in cases where foreign
requirements can be overcome, U.S. law imposes specific
requirements that must be met before depositions can be taken
overseas and the testimony subsequently introduced in criminal
proceedings in this country. MLATs are designed 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.
4. Records of Government Agencies
MLATs generally 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 the U.S. government. The United
States is unwilling to compromise drug trafficking intelligence
produced and held by U.S. law enforcement agencies. Thus, in
past MLATs, the Senate has insisted upon a proviso requiring
the Executive Branch to deny any request that would give
corrupt foreign officials information that might be used to
frustrate U.S. efforts to combat drug trafficking.
5. 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
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. The form and
content articles of the Treaties instruct Requesting States to
provide such information as to the location and identification
of the persons or items as they can.
6. Search and Seizure
The search and seizure articles in the Treaties are
similar. 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 U.S. legal
requirements for admissibility of evidence. Finally, each
Treaty has a provision authorizing conditions for the
protection of third party interests in the property.
IV. Entry Into Force and Termination
The Treaties with Belize, India and Ireland enter into
force upon the exchange of the instruments of ratification. The
Treaty with Liechtenstein enters into force on the first day of
the second month following the month of the exchange of the
instruments of ratification.
The clauses on termination are identical in substance,
providing that either party may terminate the Treaty by written
notice to the other party, and that such termination takes
effect six months after the date of the notification.
V. Committee Action
The Committee reviewed the Treaties at a public hearing on
September 19, 2002, receiving testimony from representatives of
the Departments of State and Justice (S. Hrg. 107-721). The
Committee considered the Treaties on October 8, 2002, and
ordered them favorably reported by voice vote, with the
recommendation that the Senate give its advice and consent to
the ratification of the Treaties, each subject to an
understanding and the conditions set forth in the resolutions
of advice and consent to ratification.
VI. Committee Recommendation and Comments
The Committee recommends favorably the four Treaties. The
Committee believes that these treaties are useful instruments
for facilitating international law enforcement cooperation. The
Committee urges that the Senate act promptly to give its advice
and consent to ratification.
As in the case in consideration of mutual legal assistance
treaties in the 105th and 106th Congresses, the Committee again
recommends including in the resolutions of advice and consent
an understanding related to the International Criminal Court.
The understanding is designed to make plain that the United
States will exercise its rights under the treaty provisions to
limit the use of assistance provided to ensure that such
assistance is not re-transferred to the International Criminal
Court, unless the United States becomes a party to the Court or
``unless the President has waived any applicable prohibition on
provision of such assistance in accordance with applicable
United States law.'' Earlier this year, Congress enacted
legislation barring U.S. cooperation with the Court (Title II
of the Supplemental Appropriations Act for Fiscal Year 2002,
P.L. 107-206). The legislation, however, provides waiver
authority for the President under certain conditions.
The conditions set forth in the resolutions of advice and
consent have also been included in such resolutions in recent
years. The first condition requires the United States to deny
any request for assistance if it has specific information that
a senior Government official of the requesting party who will
have access to information to be provided ``is engaged in a
felony, including the facilitation of the production or
distribution of illegal drugs.'' The Committee believes that
this language should be construed broadly, and should apply to
officials involved not only in direct involvement in illegal
activity, but should also apply to indirect involvement or
intentional acts of omission by senior officials in failing to
pursue illegal activity.
VII. Explanation of the Treaties
What follows are technical analyses of the Treaties with
Belize, India, and Ireland prepared by the Departments of State
and Justice.
Technical Analysis of the Treaty Between the Government of the United
States of America and the Government of Belize on Mutual Legal
Assistance in Criminal Matters
On September 19, 2000, the United States signed the Treaty
Between the Government of the United States of America and the
Government of Belize 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 with Belize is a
major advance for the United States in its efforts to combat
criminal activity including organized crime, terrorism, and
international drug trafficking in the Caribbean and Central
America.
This Treaty is accompanied by an exchange of diplomatic
notes related to Articles 1 and 9, as was the mutual legal
assistance treaty between the United States and Antigua and
Barbuda, which entered into force on July 1, 1999. This
exchange of notes reflects the Parties' understanding, and
constitutes an integral part of the Treaty.
It is anticipated that, for the United States, the Treaty
will be self-executing, and will be implemented pursuant to the
procedural framework provided by Title 28, United States Code,
Section 1782. Belize will enact its own mutual legal assistance
laws to implement the Treaty.
This technical analysis of the Treaty has been prepared by
the United States delegation that conducted the negotiations.
Article 1--Scope of Assistance
The first article of the Treaty provides for assistance in
all matters involving the investigation, prosecution, and
prevention of offenses, and in proceedings related to criminal
matters.
The term ``investigations'' includes grand jury proceedings
in the United States and similar pre-charge proceedings in
Belize, and other legal measures taken prior to the filing of
formal charges in either State. The term ``proceedings'' is
intended to cover the full range of proceedings in a criminal
case, including such matters as bail and sentencing hearings.
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, civil forfeiture
proceedings are covered by the Treaty.
As confirmed in the accompanying exchange of notes,
assistance under the Treaty includes assistance in criminal tax
matters. In other words, it covers ``pure'' tax matters;
however, it does not extend to civil and administrative
enforcement of income tax laws unrelated to any criminal
matter.
The second paragraph of this article sets forth a non-
exhaustive list of major types of assistance that were
specifically considered by the Treaty negotiators. The
Government of Belize has stated that Belizean courts currently
do not have the authority to enforce forfeiture, restitution,
or collection orders of foreign courts, but that such authority
may be legislated.
Extradition treaties sometimes condition the surrender of
fugitives upon a showing of ``dual criminality,'' i.e., proof
that the facts underlying the offense charged in the Requesting
State would also constitute an offense had they occurred in the
Requested State. The third paragraph of this article was
intended to make it clear that there is no general requirement
of dual criminality for cooperation. Thus, assistance may be
provided even when the criminal matter under investigation in
the Requesting State would not be a crime in the Requested
State ``except as otherwise provided in this treaty,'' a phrase
which refers to Article 3(1)(e), under which the Requested
State may, in its discretion, require dual criminality for a
request under Article 14 (involving searches and seizures) or
Article 16 (involving asset forfeiture matters).
The fourth paragraph of the article contains a standard
provision in United States mutual legal assistance treaties \1\
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 non-criminal
matters. Similarly, the paragraph provides that the Treaty is
not intended to create any right in a private person to
suppress or exclude evidence thereunder.
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\1\ See United States v. Johnpoll, 739 F.2d 702 (2nd Cir.), cert.
denied, 469 U.S. 1075 (1984).
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Article 2--Central Authorities
Article 2 of the Treaty requires that each party establish
a ``Central Authority'' for transmission, reception, and
handling of all treaty requests.
The Central Authority for the Requesting Party is expected
to 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 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.
The second paragraph of the article 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 assistance treaties to the Assistant Attorney
General in charge of the Criminal Division, pursuant to 28
C.F.R. Sec. 0.64-1. \2\ The Office of International Affairs,
Criminal Division, Department of Justice, will make all
requests on behalf of United States law enforcement, and
receive and review all requests on behalf of Belize. The United
States Attorneys' Offices and law enforcement agencies will
execute requests on behalf of Belize.
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\2\ The Assistant Attorney General for the Criminal Division has in
turn redelegated 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, 44 FR 18661, March 29, 1979, as amended at 45 FR 6541, January 29,
1980; 48 FR 54595, Dec. 6, 1983. This authority is further delegated to
Deputy Directors.
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Article 2(2) of the Treaty also states that the Attorney
General of Belize or a person designated by the Attorney
General will serve as the Central Authority for Belize. In
practice, we understand that the Solicitor General of Belize
will serve as the Central Authority for Belize, as well as the
executing authority, along with Belizean police, for requests
on behalf of the United States. The police will be involved in
routine matters, such as those involving service of documents
upon entities in Belize. The Solicitor General will be involved
in more complex matters, such as those involving the gathering
of business or bank records.
The third paragraph 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. Similar provisions
appear in many other U.S. mutual legal assistance treaties.
One such basis for denial is that execution of the request
would prejudice the security or other essential public
interests of that State. ``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, will 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 phrase ``essential interests'' was intended to 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 interests.
``Essential interests'' could be invoked if the execution
of a request would violate essential United States interests
related to the fundamental purposes of the Treaty. For example,
one fundamental purpose of the Treaty is to enhance law
enforcement cooperation, 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 United States Central Authority would invoke Article
3(1)(b) to decline to provide sensitive or confidential drug
related information pursuant to a request under this Treaty if
it were to determine, 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 or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a U.S. investigation or prosecution. \3\
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\3\ This is consistent with the statements of the Senate in giving
its advice and consent to ratification of the mutual legal assistance
treaties with Mexico, Canada, Belgium, Thailand, the Bahamas, and the
United Kingdom Concerning the Cayman Islands. Cong Rec 13884, October
24, 1989.
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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, agreed
channel for making such information available for law
enforcement purposes.
Article 3(1)(d) permits denial of a request if it relates
to 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.''
Article 3(1)(e) permits denial of a request if there is no
``dual criminality'' for a request made under Article 14
(involving searches and seizures) or Article 16 (involving
asset forfeiture matters). However, the Belizean delegation
indicated that the Government of Belize intends not to object
to such a request even in the absence of dual criminality.
Article 3(1)(f) permits denial of requests seeking the
exercise of compulsory process if the request does not
establish reasonable grounds for believing that the offense in
question occurred. Such a showing is routinely required by the
U.S. Department of Justice before it authorizes the issuance of
subpoenas. However, this specific language was added to provide
assurances to the Belizean Government that all requests for
such measures would be justified by the facts reflected on the
face of the request.
Article 3(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 politically
motivated prosecution (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. 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.
Article 3(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 should avoid misunderstandings, and enable
the Requesting State to improve its requests in the future.
Article 4--Form and Content of Requests
Article 4(1) requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``emergency situations.'' A request
in another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Article 4(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
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
that a request be legalized or certified in any particular
manner.
Article 5--Execution of Requests
Article 5 requires each Central Authority promptly to
execute a request or to transmit the request to the appropriate
authority. The Parties contemplate 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.
Where the United States is the Requested Party, it is
anticipated that the Central Authority will transmit most
executable requests to federal investigators, prosecutors, or
judicial officials for execution.
The second sentence of the first paragraph authorizes and
requires the authority selected by the Central Authority,
possibly including federal, state, and local agencies in the
United States, to do everything within its power to execute the
request. However, 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 Belize. Rather, it is anticipated that when a request from
Belize requires compulsory process, 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. \4\
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\4\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
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The third sentence in Article 5(1) reflects an
understanding that the Parties intend to provide each other
with every available form of assistance. The Belizean
delegation noted that the Government of Belize has no power to
compel the production of otherwise private information outside
of Belizean court proceedings pursuant to foreign requests.
However, the Belizean delegation indicated that it could
attempt to begin its own investigation upon receiving evidence
of wrongdoing from the United States, compel production of
records, and then attempt to share those records with the
United States. The success of this method is unknown. The
Government of Belize is taking steps to amend its laws to
enable gathering of evidence on the basis of foreign requests.
Public records always may be produced.
Article 5(2) relates to costs of representing the
Requesting State in any proceedings in the Requested State. It
is also understood that should the Requesting State choose to
hire private counsel for a particular request, it is free to do
so. It is also anticipated that the United States will be
willing to negotiate, to the extent permissible under U.S. law,
regarding extraordinary costs which might be incurred by
Belize.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Treaty. It provides that 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 requirements in the Treaty itself.
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, significant differences may arise between the
procedures which United States and Belizean authorities must
follow in collecting evidence in order to assure the
admissibility of that evidence at trial.
Second, the value of forensic examinations could be
significantly lessened--and the Requesting State's
investigation could be impacted--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.
Article 5(4) states that execution of a request for
assistance may be postponed where the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation, prosecution 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. The paragraph
also allows the Requested State to provide the information 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. Article 5(5) of the Treaty
enables the Requesting Party to call upon the Requested Party
to keep the information in the request, including the existence
of the request, confidential. If the Requested Party 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 Party), or if for some
other reason this confidentiality cannot be assured, the Treaty
obligates the Requested Party to so indicate, thereby giving
the Requesting Party an opportunity to withdraw the request
rather than risk jeopardizing an investigation or proceeding by
public disclosure of the information. The Belizean delegation
indicated that the Belizean Central Authority will be able to
keep the information contained in a request confidential until
the matter is brought into court; the United States Central
Authority can request that the Belizean Central Authority seek
a confidentiality order from the court in Belize.
Article 5(6) is intended to encourage open communication
between the two Central Authorities in monitoring the status of
specific requests.
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. 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. It is also anticipated that the United States will
be willing to negotiate, to the extent permissible under U.S.
law, regarding extraordinary costs which might be incurred by
Belize.
Article 4(2)(d) states that the Requesting State must
specify the purpose for which the information or evidence
sought under the Treaty is needed, and the first paragraph of
Article 7 states that information provided under the Treaty may
not be used for any purpose other than purposes related to the
criminal offenses stated in the request without the prior
consent of the Requested State.
Article 7(2) states that the Requested State may request
that the information it provides to the Requesting State be
kept confidential or subject to other conditions. 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. The
Belizean delegation indicated that the United States could
request that an order of confidentiality be sought in the
courts of Belize. Article 7(2) requires that if conditions 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.
If the United States Government were to receive evidence
under the Treaty in one case which proved to be exculpatory
evidence to the defendant in another case, the United States
might be constitutionally obliged to share the evidence with
the defendant in the second case. See Brady v. Maryland, 373
U.S. 83 (1963). Therefore, Article 7(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 Party in a criminal prosecution.
Any such proposed disclosure shall be noticed by the Requesting
Party to the Requested Party in advance.
Article 7(4) states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
Article 7(1) or 7(2) of the Treaty, the Requesting State is
free to use the evidence 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 described in the press. 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) of the Treaty,
the restrictions outlined in Article 7 give rise to no rights
on the part of anyone other than the Parties to the Treaty (the
United States and Belize) and, thus, the invocation and
enforcement of these provisions are left entirely to the
Parties. If any individual alleges that an authority in Belize
is seeking to use information or evidence obtained from the
United States in a manner inconsistent with this article, the
recourse would be for that individual to inform the Central
Authority of the United States of the allegations for
consideration as a matter between the governments.
Article 8--Testimony or Evidence in the Requested State
The first paragraph of Article 8 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 compulsory process obligation
is limited by the Requested State's laws. Under current
Belizean law, documentary and testimonial evidence may be
compelled only in the context of a Belizean court proceeding.
Belize is taking steps to amend its laws in this regard.
The third paragraph provides that persons specified in the
request shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article. Such persons may include the defendant and his or her
counsel in criminal cases.
Article 8(4) requires 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 desired
evidence and turn it over to the Requesting State along with
notice that it was obtained over such a claim. The
applicability of the claim can then be determined in the
Requesting State, where the scope of the immunity or privilege
and the underlying legislative and policy reasons are best
understood.
Despite Article 8(4), Article 5(3) insures that no person
would 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
Belize is guaranteed the right to invoke any testimonial
privileges (attorney-client privilege, inter-spousal privilege,
etc.) 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. \5\ A witness testifying in
Belize may raise any privileges available under Belizean law,
including the privilege against self-incrimination which exists
under that law.
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\5\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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Article 8(5) establishes a procedure for authenticating
records in a manner essentially similar to Title 18, United
States Code, Section 3505. The second sentence of the 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. However,
admissibility will be finally determined by the judicial
authority presiding over the trial. Evidentiary tests other
than authentication (such as relevance, materiality, etc.) will
still have to be satisfied in each case.
Article 9--Records of Government Agencies
The first paragraph of the article obliges each Party to
furnish the other with copies of publicly available records
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.
Article 9(2), regarding sharing nonpublic information, is
discretionary, and requests for such information may be denied
in whole or in part. Moreover, the Requested State may only
exercise its discretion to turn over such information ``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 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 article 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 criminal tax
matters, and such assistance could include tax return
information when appropriate. The Belizean delegation indicated
that such tax information could be obtained from the Belizean
Ministry of Finance. Accordingly, the U.S. delegation is
satisfied that this Treaty is a ``convention or bilateral
agreement 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 Belize under this article in appropriate
cases. \6\ The accompanying exchange of notes indicates that
both Parties recognize the need, in many cases, to restrict
access to information collected by revenue authorities.
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\6\ Thus, this Treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, is understood to authorize the provision of
tax return information in appropriate circumstances.
---------------------------------------------------------------------------
Article 9(3) 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.
This provision, like Article 8(5), states that documents
authenticated under this paragraph 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 persons to travel to the Requesting State to
appear, for example to testify. An appearance in the Requesting
State under this article is not mandatory, and the invitation
may be refused by the invited person. The Requesting State
would be expected to pay the expenses of such an appearance
pursuant to Article 6 of the Treaty, and Article 10(1) provides
that the witness shall be informed of the extent of expenses
which the Requesting State will pay in a particular case. It is
assumed that such expenses would normally include the costs of
transportation, room, and board. When a witness is to appear in
the United States, a nominal witness fee would also be
provided.
Article 10(2) provides that the Central Authority of the
Requesting State shall inform the Central Authority of the
Requested State whether any decision has been made as to
whether a person shall not be subject to service of process or
detention for earlier acts or convictions. It should be noted
that safe conduct is limited to acts or convictions which
preceded the witness's 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.
The third paragraph states that the safe conduct provided
for by 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 Party and thereafter voluntarily returns to it.
However, the competent authorities of the Requesting State may
extend the safe conduct up to fifteen days if it determines
that there is good cause to do so. For the United States, the
``competent authority'' for these purposes would be the Central
Authority; for Belize, the Solicitor General would be the
appropriate competent authority.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
the United States of a witness in the custody of another
country. In some instances, the other country 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 Requested State 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. Article 11(1) provides an
express legal basis for cooperation in such instances.
There have also been recent 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 a case. Article 11(2) addresses this
situation.
The article's third paragraph provides the obligation and
express authority for the receiving State to maintain such a
person in custody throughout his stay there, unless the sending
State specifically authorizes release. The paragraph also
authorizes the receiving State to return the person in custody
to the sending State. The initial transfer of a prisoner under
this article requires the consent of the person involved and of
both Central Authorities, but the provision does not require
that the prisoner consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Article 11(3)(c) provides that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Finally,
Article 11(3)(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
assurances, 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
Article 12 requires that the Requested State make ``best
efforts'' to locate or identify persons (such as witnesses,
potential defendants, or experts) or items sought by the
Requesting State. 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.
It is expected that when the United States is the Requested
State, in the absence of any request by Belize to follow a
specified procedure for service, service under the Treaty will
be made by registered mail, or by the United States Marshal's
Service in instances where personal service is requested.
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. This article creates a formal framework for handling
such a request. Belize will require implementing legislation to
effectuate this article.
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 Belize will have to be supported by
probable cause for the search. A United States request to
Belize would have to satisfy the corresponding evidentiary
standard there, which was described by the Belizean delegation
to be one of ``reasonable suspicion.'' \7\
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\7\ Note that while involuntary confessions are not admissible in
evidence under Belizean law, physical evidence that is illegally
obtained is admissible. The party whose rights were violated may seek
only civil relief against the Belizean Government for such action.
Also, Belizean authorities may conduct warrantless searches for
firearms offenses.
---------------------------------------------------------------------------
The second paragraph of the article is designed to insure
that a record is kept of articles seized and of articles
delivered up under the Treaty. This provision effectively
requires that the Requested State keep detailed and reliable
information regarding the condition of the article at the time
of seizure, and the chain of custody between seizure and
delivery to the Requesting State.
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. Nevertheless, the trier of fact is
free to bar use of the evidence itself, notwithstanding the
certificate, if there is some other reason to do so aside from
authenticity or chain of custody.
Article 15--Return of Items
This article provides that the Requested State may require
the return of any documents or items of evidence. It is
anticipated that unless original records or articles of
significant intrinsic value are involved, the Requested State
will routinely not request return.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Belize in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate the money,
property, and other proceeds of drug trafficking.
Article 16 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'' is intended to include things
such as money, vessels, or other valuables which either are
being 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.
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 and
instrumentalities of offenses, to restitution to crime victims,
and to the collection of fines imposed as sentences in criminal
prosecutions. It specifically recognizes that the authorities
in either state may take immediate action to 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
encourages the Requested State to 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 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. \8\ Note that the Government of Belize has indicated that
Belizean courts do not have the authority to enforce forfeiture
orders of foreign courts. Belizean courts may order the
forfeiture of assets in narcotics money laundering and
trafficking cases within the jurisdiction of Belize.
---------------------------------------------------------------------------
\8\ The Government of Belize can freeze assets in narcotics-related
cases; however, the person whose assets are frozen must be charged with
an offense and convicted, and appeals must be exhausted, before assets
will be forfeited. For Belize to be able to freeze or forfeit assets in
other types of offenses, implementing legislation 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. 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. \9\
Article 16(3) is consistent with this framework, and will
enable either Party to transfer forfeited assets, or the
proceeds of the sale of such assets, to the other Party to the
extent permitted by their respective laws.
---------------------------------------------------------------------------
\9\ Title 18, United States Code, Section 981(i)(1).
---------------------------------------------------------------------------
Article 17--Compatibility with Other Arrangements
Because of this article, the Treaty leaves the provisions
of United States and Belizean law on letters rogatory
completely undisturbed, and does not alter any pre-existing
agreements concerning investigative assistance.
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
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 utilized, or the use of the Treaty
to obtain evidence which might otherwise be sought under other
methods which might be less acceptable in the Requested State.
This article also provides for the possibility of training and
technical assistance, as agreed to by the Parties' Central
Authorities.
It is anticipated that the Central Authorities will conduct
annual consultations pursuant to this article.
Article 19--Ratification, Entry Into Force, and Termination
This article contains provisions, common among law
enforcement treaties, for ratification, entry into force,
effectiveness regarding earlier acts, and termination.
----------
Technical Analysis of the Treaty Between the Government of the United
States of America and the Government of the Republic of India on Mutual
Legal Assistance in Criminal Matters
On October 17, 2001, the United States signed a Treaty
Between the Government of the United States and the Government
of the Republic of India on Mutual Legal Assistance in Criminal
Matters (``the Treaty''). In recent years, the United States
has signed similar treaties with many other countries, all 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 pursuant to the
procedural framework provided by Title 28, United States Code,
Section 1782. India will enact the Treaty pursuant to its own
domestic laws.
The Office of International Affairs, Criminal Division,
United States Department of Justice, and the Office of the
Legal Adviser, United States Department of State, prepared the
following technical analysis of the new Treaty based on their
participation in its negotiation.
As negotiated, the text of the Mutual Legal Assistance
Treaty (MLAT) between the United States and India is
substantially similar to other recent modern MLAT texts
negotiated by the United States. Any significant variations or
interpretative understandings reached during the negotiations
are noted below.
PREAMBLE
Usually, the preambles to U.S. MLATs contain a general
statement of the desire of the Parties to cooperate, without
referencing any specific categories of criminal offenses.
However, the Indian delegation to the treaty negotiations
wanted to highlight the applicability of this MLAT to terrorism
and other serious criminal matters-an idea readily accepted by
the U.S. delegation. Consequently, the preamble references
specifically the Parties' desire to cooperate and provide
mutual legal assistance in criminal matters, ``including those
relating to terrorism, narcotics trafficking, economic crimes,
and organized crime.''
Article 1--Scope of Assistance
Paragraph 1 contains standard language making clear that
the Parties shall provide the widest measure of mutual
assistance in connection with the investigation, prosecution,
prevention, and suppression of offenses, and in proceedings
related to criminal matters. During the negotiations the Indian
delegation confirmed the U.S. view that the MLAT will be
available for making requests for investigations when a
criminal referral is possible, but when it is unknown at the
time of the request whether the case will ultimately be pursued
criminally (e.g., as is sometimes the case in SEC, CFTC, or Tax
Division investigations). Moreover, the Indian delegation
confirmed that even if a matter for which assistance has been
sought ends up being pursued civilly or administratively, so
long as it is in essence the same matter for which the request
was made and for which the criminal route was a possibility at
the time of the request, the requesting U.S. entities can then
use the evidence India has provided under the MLAT in those
civil or administrative proceedings. India will interpret
``proceedings related to criminal matters'' as encompassing
such civil or administrative proceedings, and no further
request or permission is required. Finally, it is worth noting
that, consistent with other MLATs, the negotiators agreed that
this Treaty is a ``convention'' under Title 26, United States
Code, Section 6103(k)(4), pursuant to which the United States
may exchange tax information with treaty partners.
Article 2--Central Authorities
The U.S. delegation agreed to accept the ``Ministry of Home
Affairs, or a person designated by the Ministry of Home
Affairs'' as the Indian Central Authority under the treaty.
However, the Indian delegation assured the U.S. delegation that
India will designate a particular office within the Ministry to
make and receive requests, and to serve as the primary point of
contact for the U.S. Justice Department's Office of
International Affairs.
Article 3--Limitations on Assistance
The Indian delegation proposed dropping the entire
reference to ``political offenses'' as a discretionary grounds
for the denial of assistance. India wanted to ensure that
assistance in a terrorism matter would never be denied on
``political offense'' grounds. The U.S. shared India's interest
in ensuring that assistance in terrorism cases would never be
denied on such a basis, and agreed to address the issue by
making it clear in the treaty that crimes covered by a
multilateral convention to which both India and the United
States are party shall not be considered political offenses.
Paragraph 2 of this article lists those multilateral
conventions to which both India and the United States are
party, and makes clear that crimes covered by those and future
such conventions shall not be deemed political offenses for
purposes of denying assistance. This language is almost
identical to that contained in the recently approved and now in
force extradition treaty with India.
Article 5--Execution of Requests
Paragraph 3 of this article, which contains language
standard to many U.S. MLATs, was the basis for extensive
discussion between the U.S. and Indian delegations. That
paragraph reads, ``Requests shall be executed in accordance
with the laws of the Requested State, except to the extent that
this Treaty provides otherwise. The method of execution
specified in the request shall be followed except insofar as it
is prohibited by the laws of the Requested State.''
The first sentence of that paragraph is important to the
United States, to ensure that, in the event of a conflict
between existing law and the treaty, the treaty will prevail.
That language also prevents India from unilaterally revising
the scope of its obligations under the treaty by simply
enacting conflicting legislation at some later date. However,
India did not want to agree to undertake obligations not
currently provided for by its domestic laws. After considerable
discussion during the negotiations, and an exchange of written
correspondence after the face to face talks, India agreed to
the U.S. formulation.
Paragraph 4 of this Article is unusual in a U.S. Mutual
Legal Assistance Treaty. It states, ``The Requested State shall
not decline execution of a request on the ground of bank
secrecy''. Bank secrecy is not a ground for denial of a request
in any bilateral U.S. MLAT. However, normally MLATs state all
the bases for denial, and because bank secrecy is never listed
as such a basis, it is clear without further reference that a
request shall not be denied on the grounds of bank secrecy. Yet
the Indian delegation stated that affirmatively stating this
point in the text of the treaty would help ensure that U.S.
requests for assistance would never be denied based on the
grounds of bank secrecy in India. Consequently, the United
States agreed to the inclusion of this provision.
Article 8--Testimony or Evidence in the Requested State
Paragraph 3 states that the Requested State shall permit
the presence of specified persons during the execution of a
request, and shall allow such persons to ``pose questions to be
asked of the person giving the testimony or evidence.'' Despite
the U.S. preference for doing so, the Indian delegation
indicated that given current Indian law, U.S. authorities will
likely not be permitted to directly question witnesses in
India. However, they agreed that, pursuant to this provision of
the Treaty, questions ``posed'' by U.S. authorities will be
asked by Indian law enforcement or judicial authorities.
Article 10--Appearance Outside the Requested State
Paragraph 2 contains a ``safe conduct'' provision for
persons who appear in the Requesting State pursuant to this
Article. Although it is the preference of the United States to
make the granting of safe conduct a matter of Requesting State
discretion, the Indian delegation indicated that it was
extremely important for India that such safe conduct be
mandatory. Consequently, the United States agreed, as it has in
several of our other MLATs in which our treaty partners have
insisted upon mandatory language, to the wording contained in
this paragraph. It reads, ``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 which preceded that person's departure from the
Requested State.''
Forms
The Indian delegation indicated that while the forms
included in the treaty are acceptable for requests to India
from the United States, it is likely that in requests from
India to the United States, India will specify different
procedures, consistent with Indian rules of evidence and
procedure, for authenticating records and demonstrating chain
of custody.
----------
Technical Analysis of the Treaty Between the Government of the United
States of America and the Government of Ireland on Mutual Legal
Assistance in Criminal Matters
On January 18, 2001, the United States signed a Treaty
Between the Government of the United States of America and the
Government of Ireland on Mutual Legal Assistance in Criminal
Matters (``the Treaty''). In recent years, the United States
has signed similar treaties with many other countries, all 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 Ireland is
an advance for the United States in its attempts to win the
cooperation of all countries 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 pursuant to the procedural
framework provided by Title 28, United States Code, Section
1782. Ireland will enact the Treaty pursuant to its own
domestic laws.
The Office of International Affairs, Criminal Division,
United States Department of Justice, and the Office of the
Legal Adviser, United States Department of State, prepared the
following technical analysis of the new Treaty based on their
participation in its negotiation.
Article 1--Scope of Assistance
The first Article of the Treaty is a standard provision in
United States mutual legal assistance treaties (MLATs) and
provides for assistance in all matters involving the
investigation, prosecution, and prevention of offenses, and in
proceedings relating to criminal matters. In paragraph 2, the
Article sets forth a non-exhaustive list of major types of
assistance specifically considered by the Treaty negotiators.
This list varies from the standard language in some MLATs in
that it does not include a reference to the Parties providing
assistance in proceedings related to restitution and the
collection of fines. This variance was made because the Irish
delegation explained, that although their government can
provide assistance in determining the existence or location of
assets involving the collection of fines or the enforcement of
restitution orders, they cannot collect fines or restitution on
behalf of another country. This limitation is not uncommon and
references to providing assistance in proceedings related to
restitution and the collection of fines is not included in many
MLATs, for example, those with the United Kingdom and Antigua.
The concluding subparagraph of this list reflects the
standard language in most United States MLATs except that the
negative connotation implied by the use of the word ``not'' as
used in the phrase ``Assistance shall include . . . any other
form of assistance not prohibited by the laws of the Requested
Party,'' was deleted and language similar to that used in the
corresponding Article in the MLAT with the United Kingdom was
used--``Assistance shall include . . . such other assistance as
may be agreed between Central Authorities.''
The third paragraph of this Article is intended to make it
clear that there is no general requirement of dual criminality,
i.e., proof that the facts underlying the offense charged under
the laws in the Requesting Party would also constitute an
offense had they occurred in the territory of the Requested
Party. Thus, the Requested Party may provide assistance to the
Requesting Party even when the criminal matter under
investigation would not be a crime under the laws of the
Requested Party. Although the Irish delegation stated that dual
criminality would not be a requirement under the Treaty, the
language ``except when required by the law of the Requested
Party'' was included to recognize that Irish law requires a
different procedure to execute a request from the United States
on the rare occasions when dual criminality does not exist.
Paragraph four of this Article contains a standard
provision of U.S. MLATs, which states that the Treaty is
intended solely for government-to-government mutual legal
assistance. 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.
Article 2--Central Authorities
Article 2 of the Treaty is a standard provision in United
States MLATs and requires that each Party establish a ``Central
Authority.'' The Central Authority is responsible for the
transmission, reception, handling of treaty requests, and
insuring that a timely response is made.
The second paragraph of the Article 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 the Central
Authority under mutual legal assistance treaties to the
Assistant Attorney General in charge of the Criminal Division,
pursuant to 28 C.F.R. Sec. 0.64-1. \1\ The Office of
International Affairs, Criminal Division, Department of
Justice, will make all requests on behalf of the United States,
and review all requests on behalf of Ireland. The United States
Attorneys' Offices and law enforcement agencies will execute
requests on behalf of Ireland.
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\1\ The Assistant Attorney General for the Criminal Division has in
turn redelegated 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, 44 FR 18661, March 29, 1979, as amended at 45 FR 6541, January 29,
1980; 48 FR 54595, Dec. 6, 1983. This authority is further delegated to
Deputy Directors.
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Article 2(2) of the Treaty also states that the Minister
for Justice, Equality and Law Reform of Ireland or the person
designated by him or her will serve as the Central Authority
for Ireland.
The third paragraph 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, law enforcement channels,
or any other means, at the option of the Central Authorities.
Article 3--Limitations on Assistance
Article 3 specifies the limited classes of cases in which
assistance may be denied under the Treaty.
Article 3(1)(a) permits the Requested Party to deny the
request if execution of the request would prejudice the
sovereignty, the security or other essential interests, or
would be contrary to important public policy of the State. The
term ``important public policy'' in Article 3(1)(a) would
include a Requested Party's policy of opposing the exercise of
jurisdiction which in its view is extraterritorial and
objectionable. In this regard, the Irish delegation made it
clear that, like the Government of the United Kingdom, the
Government of Ireland may object to certain extraterritorial
exercises of United States jurisdiction, and retains the right
to deny, pursuant to Article 3(1)(a) of the Treaty, a United
States request for assistance made in connection with an
exercise of extraterritorial jurisdiction. For example, in what
are known as ``re-export cases,'' (that is, where companies
attempt to avoid export restrictions to a country by first
exporting the goods to a country to which those restrictions do
not apply) the Irish delegation advised that these cases would
be closely scrutinized and it was possible that assistance
could be denied under the ``important public policy'' clause of
3(1)(a).
Article 3(1)(b) bars assistance under the Treaty if the
target of the investigation or the defendant in the case had
previously been tried and convicted or acquitted on the same
facts outlined in the request. This approach is similar to the
concept of non bis in idem in international extradition
treaties. This Article shall not affect the availability of
assistance in respect of other participants in the offense for
which assistance is requested who would not be entitled to be
discharged on the grounds of a previous acquittal or
conviction. A similar provision is found in the MLATs with the
United Kingdom and the Bahamas.
Article 3(1)(c)(i), a standard provision in United States
MLATs, permits the Requested Party to deny the request if it
relates to a political offense. Article (3)(1)(c)(ii), also a
standard provision, permits denial if the offense is a military
offense. These restrictions are similar to those found in other
MLATs. It is anticipated that the Central Authorities will
employ jurisprudence similar to that used in the extradition
context for the application of these provisions.
Article 3(2) obligates the Requested Party to consider
imposing appropriate conditions on providing 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 case that
would be subject to refusal under the Treaty's terms. This
paragraph would permit the Requested Party to provide the
information on the condition that it be used only in the
routine criminal case. Naturally, the Requested Party would
notify the Requesting Party of any proposed conditions before
actually delivering the evidence in question, thereby according
the Requesting Party an opportunity to indicate whether it is
willing to accept the evidence subject to the conditions. If
the Requesting Party does accept the evidence subject to the
conditions, it must honor the conditions.
Article 4--Form and Contents of Requests
Article 4(1) is a standard provision in United States MLATs
and requires that requests be made in writing, except that the
Central Authority of the Requested Party may accept a request
in another form in ``emergency situations.'' A request in
another form must be confirmed in writing within ten days
unless the Central Authority of the Requested Party agrees
otherwise. Article 4(1) also requires that requests shall be
submitted in ``an official language'' rather than in the ``the
official language'' as stated in most MLATs. This is because
Ireland has two official languages. It was agreed that all
requests made to the United States will be made in English and
that all requests made to Ireland will be made in English or
Irish, but in any event, the United States cannot be required
to make requests to Ireland in Irish.
Article 4(2) and (3) are standard provisions in United
States MLATs. Article 4(2) lists the four kinds of information
that are deemed crucial to the efficient operation of the
Treaty and must be included in each request. Article 4(3)
outlines the kind of information that is important, but not
always crucial, and should be provided ``to the extent
necessary and possible.''
Article 4(4) adds the provision that the Requested Party
may ask the Requesting Party to provide any information that
appears to the Requested Party to be necessary to execute the
request. This language also appears in the MLAT with the United
Kingdom.
Article 5--Execution of Requests
The first paragraph of Article 5 is a standard provision in
United States MLATs and provides that the Central Authorities
shall execute promptly requests from the Requesting Party and
that the courts of the Requested Party use their authority to
execute those requests. The first paragraph also provides that
``The Courts of the Requested Party shall have authority to
issue subpoenas, search warrants, or other orders necessary to
execute the request.'' The Irish delegation sought to clarify
that the language of this paragraph does not purport to bestow
powers on Irish courts that they would not otherwise possess.
The U.S. delegation agreed that it did not.
Articles 5(2) and (3) are standard provisions in United
States MLATs. They provide that the Central Authority of the
Requested Party shall represent in the territory of the
Requested Party the Requesting Party in any proceedings arising
out of a request for assistance. In addition, the request will
be executed in the manner specified in the request unless that
manner is incompatible with the laws and practices of the
Requested Party.
Article 5(4) is a standard provision in United States MLATs
and provides that the Requested Party may postpone execution or
make execution of a request subject to conditions if the
execution of the request would interfere with an ongoing
criminal investigation or proceeding in the Requested State.
The delegations added language that would also allow the
Requested State to postpone the execution of a request, or make
the execution of a request subject to conditions, if to not do
so would prejudice the safety of any person.
Article 5(5) provides that the presence of persons named in
a request shall be facilitated by the Requested Party in
accordance with its law and practice. Similar language appears
in the MLAT with the United Kingdom and is designed to promote
the presence of prosecutors and law enforcement authorities in
the Requested State in cases where their presence would assist
the Requested Party in executing the request.
Articles 5(6), (7) and (8) are standard provisions in
United States MLATs. They state that the Requested Party must,
upon request, keep a request made under the Treaty
confidential, must respond to reasonable inquiries from the
Requesting Party and may ask the Requesting Party to provide
information in such form as may be necessary to execute the
request.
Articles 5(9), (10) and (11) are also standard provisions
in United States MLATs. Article 5(9) states that the Requesting
Party shall promptly inform the Requested Party of any
circumstances that may make it inappropriate to proceed with
the execution of the request. Article 5(10) states that the
Requested Party shall promptly inform the Central Authority of
the Requesting Party of any circumstances that may cause a
significant delay in executing the request. Article 5(11)
states that the Requested Party shall promptly inform the
Requesting Party of the outcome of the execution of the
request, and if the request is denied, the reasons for the
denial.
Article 6--Costs
Article 6 is consistent with similar provisions in other
United States MLATs and reflects the rule that each Party shall
bear the ordinary expenses of executing legal assistance
requests. It also states that the Parties should consult as to
the terms under which a request should be executed if
extraordinary expenses will be incurred.
Article 7--Limitations on Use
Article 7(1) is a standard provision in United States MLATs
and states that the Requesting Party must specify the purpose
for which the information sought under the Treaty is needed,
and that the Requesting Party may not use the information for
any other purpose without the consent of the Requested Party.
The language stating that the Requested Party may impose a
limitation that the Requesting Party may not use the
information for any other purpose other than that specified in
the request has been used in some of the newer MLATs.
This language was adopted by the delegations because, under
Irish law, the Irish Central Authority cannot provide
information to a foreign government unless the Treaty provides
that the information will not be used for any purpose other
than the one for which it was requested. The Irish delegation
assured the United States delegation that Irish law will not
limit subsequent use of information it provides to the United
States pursuant to the Treaty because the Central Authority may
give permission for subsequent use, and would do so in all but
the most unusual of cases.
Article 7(2) is a standard provision in United States MLATs
and permits a Requesting Party to disclose information obtained
pursuant to the Treaty if there is a requirement to do so by
the constitution of the Requesting Party in a criminal
prosecution. This provision is designed to permit the United
States to provide exculpatory evidence to a defendant in a
criminal prosecution. See, Brady v. Maryland, 373 U.S.83
(1963).
Article 8--Testimony or Evidence in the Requested Party
Article 8 is a standard provision in United States MLATs
and states that a person in the Requested State shall be
compelled, if necessary, to appear and testify or produce
evidence. The standard MLAT language that states that a person
shall be compelled has been modified in this Treaty to state
that a person may be compelled. This modification was made
because the Irish delegation explained that the word shall
could be interpreted to give specific instructions to the Irish
Courts. The Irish delegation explained that this change is
necessary even though they have the ability to compel testimony
on behalf of the United States and will use this power, if
necessary.
Article 8(2) is a standard procedural provision in United
States MLATs providing that, upon request, the Requested State
shall furnish information in advance about the date and place
of the taking of testimony or evidence.
Article 8(3) is also a standard provision in United States
MLATs and permits the presence of persons specified in the
request during the execution of the request, and shall allow
such persons to ask questions directly of the witness or
indirectly through a legal representative qualified to appear
before the courts of the Requested Party. The latter clause was
added because in certain situations questions to a witness must
be asked by a member of the Irish bar. The introductory
language ``In accordance with its laws and practices'' was
added at the request of the Irish delegation so that the Treaty
cannot be interpreted to infer rights upon United States
representatives who are present at the execution of a request
that would not normally be inferred upon Irish prosecutors and
investigators.
Article 8(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.
Article 8(5) is a standard provision in United States MLATs
and states that evidence produced pursuant to this Treaty may
be authenticated by an attestation, and references forms
appended to the Treaty that may be used for this purpose.
Article 9--Records of Government Agencies
Article 9 is a standard provision in United States MLATs
and states that the Requested Party shall provide the
Requesting Party with copies of publicly available documents
and may share with its Treaty partner copies of nonpublic
information in government files to the same extent it would
with its own law enforcement or judicial authorities. Article 9
also states that this information may be authenticated by an
attestation, and references the forms appended to the Treaty
that may be used for this purpose.
Article 10--Testimony in the Territory
of the Requesting Party
Article 10 is a standard provision in United States MLATs
and provides for witnesses who are located in the territory of
the Requested Party and who are needed to testify in the
territory of the Requesting Party to travel voluntarily to the
territory of the Requesting Party for that purpose and to be
granted safe passage by the Requesting Party.
Article 11--Transfer of Persons in Custody
Article 11 is a standard procedural provision in United
States MLATs that provides for the transfer of persons in
custody in the territory of the Requested Party to the
territory of the Requesting Party to provide assistance under
the Treaty.
Article 12--Location or Identification of Persons or Items
Article 12 is a standard provision in United States MLATs
and states that the Requested Party shall use its best efforts
to locate or identify persons or items specified in a request
from the Requesting Party.
Article 13--Service of Documents
Article 13 is a standard provision in United States MLATs
and sets out procedures whereby the Requested Party shall use
its best efforts to effect service of documents pursuant to
requests made under the Treaty.
Article 14--Search and Seizure
Article 14 is a standard provision in United States MLATs
and obligates the Parties to search for, secure, and deliver
items needed by the other Party as evidence or for other
purposes. This Article requires that a search and seizure
request include ``information justifying such action under the
laws of the Requested Party.'' Thus, a request from Ireland to
the United States will have to be supported by probable cause
to conduct the search. A request from the United States will
have to satisfy the corresponding Irish evidentiary standard.
The Irish delegation requested that language that states
that searches and seizures be ``carried out in accordance with
the law of that [Requested] Party,'' be added to reiterate this
important requirement, as outlined in Article 5.
The remainder of the Article states that a certificate
describing the continuity of custody will be admissible without
further authentication at trial in the court of the Requested
Party.
The final paragraph of the Article states that the
Requested Party may require that the Requesting Party agree to
terms and conditions necessary to protect the interests of
third parties.
Article 15--Return of Items
This procedural Article provides that any documents or
items of evidence furnished under the Treaty must be returned
to the Requested Party as soon as possible. The standard MLAT
language states that this requirement applies only if the
Central Authority of the Requested Party specifically requests
it at the time that the items are delivered to the Requesting
Party. However, because Irish law makes the return of items
mandatory unless the Central Authority provides a waiver, the
language of this Article states that the return of the
documents or items is mandatory unless the requirement is
waived by the Requested Party. The Irish delegation explained
that they will not usually request the return of bank documents
and the Irish Central Authority will include a standard waiver
when they transmit bank records to the United States.
Article 16--Assistance in Forfeiture Proceedings
Article 16 has become a standard provision in United States
MLATs. The first paragraph authorizes the Central Authority of
one Party to notify the Central Authority of the other Party of
the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure.
The second paragraph of this Article states that the
Parties shall assist one another to the extent permitted by
their law in proceedings related to forfeiture. The standard
MLAT language also requires the Parties to assist one another
in proceedings related to restitution to crime victims or the
collection of fines imposed as sentences in criminal
convictions. Because Irish law does not permit Irish
authorities to freeze assets to facilitate the recovery of
assets for the satisfaction of fines or restitution orders,
this language was not included.
The third paragraph of Article 16 has also become a
standard provision in United States MLATs. It enables 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.
Article 17--Compatibility with Other Arrangements
This Article is a standard provision in United States MLATs
and states that assistance and procedures provided for by this
Treaty do not prevent the Parties from providing assistance to
each other by other means.
Article 18--Consultation
Article 18 is a standard provision in United States MLATs
and states that the Parties shall consult with each other to
make the Treaty effective. It is anticipated that consultations
will be held annually.
Article 19--Ratification, Entry Into Force, and Termination
Article 19 is a standard provision in United States MLATs
that outlines the procedures for ratification, entry into
force, and termination of the Treaty.
VIII. Text of Resolutions of Advice and Consent to Ratification
Treaty with Belize
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE TREATY WITH BELIZE
ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS,
SUBJECT TO AN UNDERSTANDING AND CONDITIONS.
The Senate advises and consents to the ratification of the
Treaty Between the Government of the United States of America
and the Government of Belize on Mutual Legal Assistance in
Criminal Matters, signed at Belize, on September 19, 2000, and
a related exchange of notes (Treaty Doc. 107-13; in this
resolution referred to as the ``Treaty''), subject to the
understanding in section 2 and the conditions in section 3.
SEC. 2. UNDERSTANDING.
The advice and consent of the Senate under section 1 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 that 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 unless the treaty
establishing the Court has entered into force for the
United States by and with the advice of the Senate in
accordance with Article II, Section 2 of the United
States Constitution, or unless the President has waived
any applicable prohibition on provision of such
assistance in accordance with applicable United States
law.
SEC. 3. CONDITIONS.
The advice and consent of the Senate under section 1 is
subject to the following conditions:
(1) Limitation on Assistance.--Pursuant to the right
of the United States under the Treaty to deny legal
assistance that would prejudice the essential public
policy or interests of the United States, the United
States shall deny any request for such assistance if
the Central Authority of the United States (as
designated in Article 2(2) of the Treaty), after
consultation with all appropriate intelligence, anti-
narcotic, and foreign policy agencies, has specific
information that a senior Government official of the
requesting party who will have access to information to
be provided as part of such assistance is engaged in a
felony, including the facilitation of the production or
distribution of illegal drugs.
(2) Supremacy of the Constitution.--Nothing in the
Treaty requires or authorizes legislation or other
action by the United States that is prohibited by the
Constitution of the United States as interpreted by the
United States.
Treaty with India
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE TREATY WITH INDIA
ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS,
SUBJECT TO AN UNDERSTANDING AND CONDITIONS.
The Senate advises and consents to the ratification of the
Treaty Between the Government of the United States of America
and the Government of the Republic of India on Mutual Legal
Assistance in Criminal Matters, signed at New Delhi on October
17, 2001 (Treaty Doc. 107-3; in this resolution referred to as
the ``Treaty''), subject to the understanding in section 2 and
the conditions in section 3.
SEC. 2. UNDERSTANDING.
The advice and consent of the Senate under section 1 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 that 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 unless the treaty
establishing the Court has entered into force for the
United States by and with the advice of the Senate in
accordance with Article II, Section 2 of the United
States Constitution, or unless the President has waived
any applicable prohibition on provision of such
assistance in accordance with applicable United States
law.
SEC. 3. CONDITIONS.
The advice and consent of the Senate under section 1 is
subject to the following conditions:
(1) Limitation on Assistance.--Pursuant to the right
of the United States under the Treaty to deny legal
assistance that would prejudice the essential public
policy or interests of the United States, the United
States shall deny any request for such assistance if
the Central Authority of the United States (as
designated in Article 2(2) of the Treaty), after
consultation with all appropriate intelligence, anti-
narcotic, and foreign policy agencies, has specific
information that a senior Government official of the
requesting party who will have access to information to
be provided as part of such assistance is engaged in a
felony, including the facilitation of the production or
distribution of illegal drugs.
(2) Supremacy of the Constitution.--Nothing in the
Treaty requires or authorizes legislation or other
action by the United States that is prohibited by the
Constitution of the United States as interpreted by the
United States.
Treaty with Ireland
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE TREATY WITH
IRELAND ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL
MATTERS, SUBJECT TO AN UNDERSTANDING AND
CONDITIONS.
The Senate advises and consents to the ratification of the
Treaty Between the Government of the United States of America
and the Government of Ireland on Mutual Legal Assistance in
Criminal Matters, signed at Washington on January 18, 2001
(Treaty Doc. 107-9; in this resolution referred to as the
``Treaty''), subject to the understanding in section 2 and the
conditions in section 3.
SEC. 2. UNDERSTANDING.
The advice and consent of the Senate under section 1 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 that 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 unless the treaty
establishing the Court has entered into force for the
United States by and with the advice of the Senate in
accordance with Article II, Section 2 of the United
States Constitution, or unless the President has waived
any applicable prohibition on provision of such
assistance in accordance with applicable United States
law.
SEC. 3. CONDITIONS.
The advice and consent of the Senate under section 1 is
subject to the following conditions:
(1) Limitation on Assistance.--Pursuant to the right
of the United States under the Treaty to deny legal
assistance that would prejudice the essential public
policy or interests of the United States, the United
States shall deny any request for such assistance if
the Central Authority of the United States (as
designated in Article 2(2) of the Treaty), after
consultation with all appropriate intelligence, anti-
narcotic, and foreign policy agencies, has specific
information that a senior Government official of the
requesting party who will have access to information to
be provided as part of such assistance is engaged in a
felony, including the facilitation of the production or
distribution of illegal drugs.
(2) Supremacy of the Constitution.--Nothing in the
Treaty requires or authorizes legislation or other
action by the United States that is prohibited by the
Constitution of the United States as interpreted by the
United States.
Treaty with Liechtenstein
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE TREATY WITH
LIECHTENSTEIN ON MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTERS, SUBJECT TO AN UNDERSTANDING AND
CONDITIONS.
The Senate advises and consents to the ratification of the
Treaty Between the Government of the United States of America
and the Principality of Liechtenstein on Mutual Legal
Assistance in Criminal Matters, and a related exchange of
notes, signed at Vaduz on July 8, 2002 (Treaty Doc. 107-16; in
this resolution referred to as the ``Treaty''), subject to the
understanding in section 2 and the conditions in section 3.
SEC. 2. UNDERSTANDING.
The advice and consent of the Senate under section 1 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 that 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 unless the treaty
establishing the Court has entered into force for the
United States by and with the advice of the Senate in
accordance with Article II, Section 2 of the United
States Constitution, or unless the President has waived
any applicable prohibition on provision of such
assistance in accordance with applicable United States
law.
SEC. 3. CONDITIONS.
The advice and consent of the Senate under section 1 is
subject to the following conditions:
(1) Limitation on Assistance.--Pursuant to the right
of the United States under the Treaty to deny legal
assistance that would prejudice the essential public
policy or interests of the United States, the United
States shall deny any request for such assistance if
the Central Authority of the United States (as
designated in Article 2(2) of the Treaty), after
consultation with all appropriate intelligence, anti-
narcotic, and foreign policy agencies, has specific
information that a senior Government official of the
requesting party who will have access to information to
be provided as part of such assistance is engaged in a
felony, including the facilitation of the production or
distribution of illegal drugs.
(2) Supremacy of the Constitution.--Nothing in the
Treaty requires or authorizes legislation or other
action by the United States that is prohibited by the
Constitution of the United States as interpreted by the
United States.
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