[Senate Executive Report 107-15]
[From the U.S. Government Publishing Office]



107th Congress                                               Exec. Rpt.
 2nd Session                  SENATE                         107-15
======================================================================
 
   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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \5\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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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