[Senate Executive Report 110-12]
[From the U.S. Government Publishing Office]



110th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      110-12

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



 
              EXTRADITION TREATIES WITH THE EUROPEAN UNION

                                _______
                                

               September 11, 2008.--Ordered to be printed

                                _______
                                

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

                                 REPORT

[To accompany Treaty Docs. 109-14, 109-15, 109-16, 109-17, 110-11, and 
                                110-12]

    The Committee on Foreign Relations, to which was referred 
the Agreement on Extradition between the United States of 
America and the European Union, signed at Washington on June 
25, 2003 (Treaty Doc. 109-14), together with 27 bilateral 
extradition instruments subsequently signed with the Republic 
of Austria on July 20, 2005 (Treaty Doc. 109-14), the Kingdom 
of Belgium on December 16, 2004 (Treaty Doc. 109-14), the 
Republic of Bulgaria on September 19, 2007 (Treaty Doc. 110-
12), the Republic of Cyprus on January 20, 2006 (Treaty Doc. 
109-14), the Czech Republic on May 16, 2006 (Treaty Doc. 109-
14), the Kingdom of Denmark on June 23, 2005 (Treaty Doc. 109-
14), the Republic of Estonia on February 8, 2006 (Treaty Doc. 
109-16), the Republic of Finland on December 16, 2004 (Treaty 
Doc. 109-14), France on September 30, 2004 (Treaty Doc. 109-
14), the Federal Republic of Germany on April 18, 2006 (Treaty 
Doc. 109-14), the Hellenic Republic on January 18, 2006 (Treaty 
Doc. 109-14), the Republic of Hungary on November 15, 2005 
(Treaty Doc. 109-14), Ireland on July 14, 2005 (Treaty Doc. 
109-14), the Italian Republic on May 3, 2006 (Treaty Doc. 109-
14), the Republic of Latvia on December 7, 2005 (Treaty Doc. 
109-15), the Republic of Lithuania on June 15, 2005 (Treaty 
Doc. 109-14), the Grand Duchy of Luxembourg on February 1, 2005 
(Treaty Doc. 109-14), Malta on May 18, 2006, with a related 
exchange of letters signed the same date (Treaty Doc. 109-17), 
the Kingdom of the Netherlands on September 29, 2004, with a 
related exchange of notes signed the same date (Treaty Doc. 
109-14), the Republic of Poland on June 9, 2006 (Treaty Doc. 
109-14), the Portuguese Republic on July 14, 2005 (Treaty Doc. 
109-14), Romania on September 10, 2007 (Treaty Doc. 110-11), 
the Slovak Republic on February 6, 2006 (Treaty Doc. 109-14), 
the Republic of Slovenia on October 17, 2005 (Treaty Doc. 109-
14), the Kingdom of Spain on December 17, 2004 (Treaty Doc. 
109-14), the Kingdom of Sweden on December 16, 2004 (Treaty 
Doc. 109-14), and the United Kingdom of Great Britain and 
Northern Ireland on December 16, 2004, with a related exchange 
of notes signed the same date (Treaty Doc. 109-14), having 
considered the same, reports favorably thereon with one 
condition and a declaration made with respect to each treaty, 
as indicated in the resolutions of advice and consent, and 
recommends that the Senate give its advice and consent to 
ratification thereof, as set forth in this report and the 
accompanying resolutions of advice and consent.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................2
 II. Background.......................................................2
III. Major Provisions.................................................3
 IV. Bilateral Instruments With 27 EU Members.........................5
  V. Entry Into Force.................................................7
 VI. Implementing Legislation.........................................7
VII. Committee Action.................................................7
VIII.Committee Recommendation and Comments............................7

 IX. Resolutions of Advice and Consent to Ratification...............10
  X. Annex.--Treaty Hearing of May 20, 2008..........................21

                               I. Purpose

    The purpose of these treaties is to modernize, strengthen, 
and expand on the extradition relationship as between the 
United States, and the European Union and its Member States.

                             II. Background

    Extradition is the formal process by which one nation 
requests and obtains from another nation the surrender of a 
suspected or convicted criminal. The United States will 
ordinarily only grant extradition pursuant to a treaty. The 
United States has in force a bilateral extradition treaty with 
each of the European Union (EU) Member States. These treaties 
account for over twenty percent of U.S. extradition treaties 
and a significantly higher percentage of U.S. extradition 
requests.\1\ Nevertheless, many of these treaties are quite old 
and some of their provisions are not in accord with modern 
extradition practice. The oldest of our existing extradition 
treaties with EU Member States dates back over a century ago\2\ 
and most were concluded over twenty years ago, such that most 
if not all are in need of modernizing. In addition, as EU law 
enforcement institutions have evolved over the last few 
decades, it has become clear that developing a more formal 
basis for cooperation on such matters with the EU itself would 
be useful.
---------------------------------------------------------------------------
    \1\Michael Abbell, Extradition to and from the United States, 
Chapter 3, Sec. 3-4, p.120 (2007).
    \2\1901 Treaty on Extradition between the United States and the 
Kingdom of Servia (12 Bevans 1238).
---------------------------------------------------------------------------
    These extradition treaties, of which there are 28, would 
modernize our existing extradition treaties with the Member 
States of the EU\3\ and strengthen an emerging institutional 
relationship on law enforcement matters between the United 
States and the European Union itself. The framework agreement 
on extradition with the EU (the ``EU Framework Agreement'') 
essentially requires EU Member States to amend and supplement 
their existing bilateral extradition treaties with the United 
States to include certain modern provisions on extradition if 
they have not already done so. Each bilateral instrument 
implements the EU Framework Agreement by amending or replacing 
an existing bilateral extradition treaty so that every U.S. 
bilateral extradition treaty with a Member State of the EU will 
be uniformly updated to conform to the provisions in the EU 
Framework Agreement.
---------------------------------------------------------------------------
    \3\Listed by accession date, Member States of the European Union 
are as follows: Belgium (1952 (ECSC)), France (1952 (ECSC)), Italy 
(1952 (ECSC)), Luxembourg (1952 (ECSC)), the Netherlands (1952 (ECSC)), 
West Germany (1952 (ECSC)), Denmark (1973), Ireland (1973), the United 
Kingdom (1973), Greece (1981), Portugal (1986), Spain (1986), Austria 
(1995), Finland (1995), Sweden (1995), Cyprus (2004), Czech Republic 
(2004), Estonia (2004), Hungary (2004), Latvia (2004), Lithuania 
(2004), Malta (2004), Poland (2004), Slovakia (2004), Slovenia (2004), 
Bulgaria (2007), and Romania (2007).
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                         III. Major Provisions

    A detailed paragraph-by-paragraph analysis of each treaty 
may be found in the Letters of Submittal from the Secretary of 
State to the President on these instruments, which are 
reprinted in full in Treaty Documents 109-14, 109-15, 109-16, 
109-17, 110-11, and 110-12. What follows is a brief summary of 
some of the key provisions that would be incorporated into our 
bilateral treaty relationships with every EU Member State if 
not already contained in existing treaties pursuant to the EU 
Framework Agreement.

Extraditable Offenses: Modern Dual-Criminality Provisions

    Early U.S. extradition treaties confined extraditable 
offenses to those specifically listed in the treaty itself. 
Such an approach limits extradition for newly emerging forms of 
criminality that the United States has a strong interest in 
pursuing, such as antitrust, cybercrime, and environmental 
offenses. Modern extradition treaties, however, have developed 
a new approach, which is frequently referred to as the 
principle of ``dual criminality.'' Dual criminality provides 
that a crime is extraditable if it is punishable as a crime 
under the criminal law of both parties to the treaty. Pursuant 
to Article 4 of the EU Framework Agreement, outdated lists of 
extraditable offenses would be replaced with this modern ``dual 
criminality'' standard, which would enable our extradition 
treaties to cover new offenses as they develop in the criminal 
legal systems of the United States and its partner country 
without having to amend the treaty each time. Article 4 
additionally contemplates extradition for extraterritorial 
offenses, which are particularly useful when pursuing 
terrorists and persons involved in drug trafficking.

Streamlined Authentication and Transmission of Documents

    Treaty requests for extradition from other countries are 
generally submitted to the Department of State and forwarded to 
the Department of Justice, which then initiates a judicial 
proceeding for the arrest of the fugitive and an extradition 
hearing before the court to determine if the fugitive is 
extraditable. Treaty requests for extradition from the United 
States to other countries generally travel from prosecutors to 
the Department of State to foreign diplomatic officials, who in 
turn have their own equivalent of the Department of Justice 
that handles the foreign extradition proceeding. The EU 
Framework Agreement would authorize communications directly 
between prosecutors, as well as other departures from the 
current norm, that are intended to make the process more 
efficient. For example, under Article 6, requests for 
provisional arrest prior to the receipt of a formal extradition 
request may be communicated directly between the Justice 
Department and its foreign equivalents. In addition, under 
Article 5(2), the Justice Department and its counterparts in EU 
Member States can certify extradition documents, when 
ordinarily this has been a task reserved for diplomatic 
officials. In sum, with the new EU Framework Agreement as 
implemented through the associated bilateral instruments, the 
process of authenticating documents and the transmission of 
provisional arrest and extradition requests would be 
streamlined. See Articles 5, 6 and 7 of the EU Framework 
Agreement.

Temporary Transfer of Persons

    Fugitives sometimes face criminal charges or have been 
convicted for other offenses in the countries to which they 
have fled. Traditionally, U.S. extradition treaties have 
allowed the requested State to defer action on an extradition 
request until the fugitive could be surrendered unencumbered. 
More modern agreements afford the requested State the option of 
temporarily surrendering the individual under a promise for his 
return when proceedings in the requesting State have been 
completed. Without the option of a temporary transfer, the case 
against a fugitive can become stale while the fugitive is 
serving a sentence in another country. Article 9 of the new EU 
Framework Agreement, as incorporated into the various bilateral 
instruments, would provide authority for the temporary transfer 
to the requesting State of persons who are being prosecuted or 
are serving a sentence in the requested State. Any person so 
surrendered would be held in custody by the requesting State 
and would be returned to the requested State at the conclusion 
of proceedings against that person, as mutually agreed upon by 
the parties.

Modern Approach to Competing Extradition Requests/Parity with the 
        European Arrest Warrant

    Older U.S. extradition treaties obligate parties that 
receive competing extradition requests for the same fugitive to 
surrender the fugitive on a first come, first served basis. 
More modern extradition treaties often obligate the requested 
State to consider a list of relevant factors when weighing 
competing requests. Pursuant to Article 10 of the EU Framework 
Agreement, the requested State is to consider all relevant 
factors, including the following: 1) whether the requests were 
each made pursuant to a treaty; 2) the locations where each of 
the offences were committed; 3) the respective interests of the 
requesting States; 4) the seriousness of the offenses; 5) the 
nationality of the victim; 6) the possibility of any subsequent 
extradition between the requesting States; and 7) the 
chronological order in which the requests were received from 
the requesting States.
    Article 10 of the EU Framework Agreement makes clear that 
extradition requests from the United States and competing 
requests for surrender made pursuant to a European Arrest 
Warrant (which is the internal EU mechanism for effectively 
extraditing individuals) will be evaluated using the same 
approach, including the list of factors described above. As a 
result, U.S. requests for extradition sent to EU Member States 
would have the same status as competing requests submitted by 
other EU Member States.

Simplified Extradition Procedures if Extradition is Not Contested

    Article 11 of the EU Framework Agreement would authorize a 
simplified extradition process in cases in which the person 
sought does not contest extradition. Older U.S. extradition 
treaties do not include such a provision; this is a modern 
development. While such a scenario is the exception rather than 
the rule, under certain circumstances it may be to the 
fugitive's benefit to seek an expedited extradition. For 
example, a fugitive may decide not to contest extradition 
because of a concern that with the passage of time, a witness 
for the defense may die or exculpatory evidence may be lost.

Transit Authority

    Article 12 of the EU Framework Agreement provides a process 
through which consent can be obtained for the transportation of 
a person through the United States or any EU Member State who 
is being ``surrendered'' to or from the United States or any EU 
Member State. In addition, Article 12 provides that 
authorization is not required when air transportation is used 
and no landing is scheduled on the territory of the transit 
State. In sum, with the new EU Framework Agreement, transit 
authority would be provided in order to facilitate the 
transportation of persons surrendered to a State Party by a 
third country when that person has to travel through another 
State Party in order to be surrendered. See Article 12 of the 
EU Framework Agreement.

Death Penalty Assurances

    With the new EU Framework Agreement, a uniform mechanism 
would be provided by which States Parties can condition 
extradition on an assurance that the death penalty shall not be 
imposed, or shall not be carried out, if the offense for which 
extradition is sought is punishable by death under the laws in 
the requesting State and not punishable by death under the laws 
of the requested State. See Article 13 of the EU Framework 
Agreement. Variations of this provision are already provided 
for in most U.S. extradition treaties with EU Member States 
because all EU Member States have effectively abolished the 
death penalty.\4\
---------------------------------------------------------------------------
    \4\The only country of the European Union that still retains 
capital punishment in its law is Latvia, but Latvia joined Protocol 6 
of the European Convention on Human Rights (the ``ECHR'') in 1999, 
which restricts the application of the death penalty to times of war or 
``imminent threat of war.'' Moreover, in 2002, Latvia signed Protocol 
13 of the ECHR, which abolishes the death penalty under all 
circumstances. Latvia has yet to ratify Protocol 13, but has 
nevertheless imposed a moratorium on capital punishment.
---------------------------------------------------------------------------

                    IV. Bilateral Instruments With 
                          27 EU Member States

    There are 22 bilateral instruments with EU Member States 
that amend and supplement existing bilateral extradition 
treaties to include the modern provisions on extradition 
described above. These are as follows: Austria (amending the 
1998 U.S.-Austria Extradition Treaty);\5\ Belgium (amending the 
1987 U.S.-Belgium Extradition Treaty);\6\ Cyprus (amending the 
1996 U.S.-Cyprus Extradition Treaty);\7\ Czech Republic 
(amending the 1925 U.S.-Czechoslovak Extradition Treaty along 
with the 1935 Supplementary Extradition Treaty);\8\ Denmark 
(amending the 1972 U.S.-Denmark Extradition Treaty);\9\ Finland 
(amending the 1976 U.S.-Finland Extradition Treaty);\10\ France 
(amending the 1996 U.S.-France Extradition Treaty);\11\ Germany 
(amending the 1978 U.S.-Germany Extradition Treaty along with 
the 1986 Supplementary Treaty with Germany);\12\ Greece 
(amending the 1931 U.S.-Greece Extradition Treaty and its 1937 
Protocol);\13\ Hungary (amending the 1994 U.S.-Hungary 
Extradition Treaty);\14\ Ireland (amending the 1983 U.S.-
Ireland Extradition Treaty);\15\ Italy (amending the 1983 U.S.-
Italy Extradition Treaty);\16\ Lithuania (amending the 2001 
U.S.-Lithuania Extradition Treaty);\17\ Luxembourg (amending 
the 1996 U.S.-Luxembourg Extradition Treaty);\18\ The 
Netherlands (amending the 1980 U.S.-Netherlands Extradition 
Treaty);\19\ Poland (amending the 1996 U.S.-Poland Extradition 
Treaty);\20\ Portugal (amending the 1908 U.S.-Portugal 
Extradition Treaty);\21\ Slovak Republic (amending the 1925 
U.S. Czechoslovakia Extradition Treaty and the 1935 
Supplementary Extradition Treaty currently in force and 
applicable to the Slovak Republic);\22\ Slovenia (amending the 
1901 U.S.-Serbia Extradition Treaty currently in force and 
applicable to Slovenia);\23\ Spain (amending the 1970 U.S.-
Spain Extradition Treaty along with three supplementary 
treaties done in 1975, 1988, and 1996);\24\ Sweden (amending 
the 1961 U.S.-Sweden Extradition Treaty along with the 1983 
Supplementary Extradition Treaty);\25\ the United Kingdom 
(amending the 2003 U.S.-U.K. Extradition Treaty).\26\
---------------------------------------------------------------------------
    \5\Treaty Doc. 105-50.
    \6\Treaty Doc. 104-7.
    \7\Treaty Doc. 105-16
    \8\Exec. C, 69-1 and Exec. K, 74-1.
    \9\Treaty Doc. 93-21.
    \10\Treaty Doc. 95-9.
    \11\Treaty Doc. 105-13.
    \12\Ex. A. 96-1 and Treaty Doc. 100-6.
    \13\Ex. D, 72-1 and Executive Agreement Series, No. 114.
    \14\Treaty Doc. 104-5.
    \15\Treaty Doc. 98-19.
    \16\Treaty Doc. 98-20.
    \17\Treaty Doc. 107-4.
    \18\Treaty Doc. 105-10.
    \19\Treaty Doc. 97-7.
    \20\Treaty Doc. 105-14.
    \21\Ex. JJ, 60-1.
    \22\Ex. C 69-1 and Ex. K, 74-1.
    \23\Ex. E, 57-1.
    \24\Treaty Doc. 91-24; Treaty Doc. 94-13; Treaty Doc. 102-24; and 
Treaty Doc. 105-15.
    \25\Ex. E, 87-2 and Treaty Doc. 97-15.
    \26\Treaty Doc. 108-23.
---------------------------------------------------------------------------
    The five remaining bilateral instruments with EU Member 
States were concluded as stand-alone extradition treaties (as 
opposed to amendments) that would supersede existing 
extradition treaties with each country. Each of the five new 
extradition treaties is a modernized version of the older 
treaty, which conforms to the provisions of the EU Framework 
Agreement. These five treaties were submitted to the Senate in 
separate treaty documents, which are as follows: 1) The U.S.-
Latvia Extradition Treaty, which would replace an existing 
extradition treaty from 1923 with Latvia;\27\ 2) The U.S.-
Estonia Extradition Treaty, which would replace an existing 
extradition treaty from 1923 with Estonia;\28\ 3) The U.S.-
Malta Extradition Treaty, which would replace an existing 
extradition treaty from 1931;\29\ 4) The U.S.-Romania 
Extradition Treaty, which would replace an existing extradition 
treaty from 1924, along with a 1936 supplementary treaty;\30\ 
and 5) The U.S.-Bulgaria Extradition Treaty, which would 
replace an existing extradition treaty from 1924.\31\
---------------------------------------------------------------------------
    \27\Ex. F, 68-1.
    \28\Ex. C, 68-1.
    \29\Ex. E, 72-1.
    \30\Ex. D, 75-1.
    \31\Ex. X, 68-1.
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                          V. Entry Into Force

    In accordance with Article 22, the EU Framework Agreement 
shall enter into force on the first day following the third 
month after the date on which the United States and the EU have 
indicated that they have completed their internal procedures 
for this purpose. Each bilateral instrument with an EU Member 
State shall enter into force on the date of entry into force of 
the EU Framework Agreement.

                      VI. Implementing Legislation

    The legal procedures for extradition are governed by both 
federal statute and self-executing treaties. Subject to a 
contrary treaty provision, existing federal law implements 
aspects of these treaties. See 18 U.S.C. Sec. Sec. 3181 to 
3196. No additional legislation is needed for the United States 
to fulfill its obligations under these treaties.

                         VII. Committee Action

     The committee held a public hearing on these treaties on 
May 20, 2008. Testimony was received from Susan Biniaz, Deputy 
Legal Adviser at the Department of State and Bruce Swartz, 
Deputy Assistant Attorney General for the Criminal Division at 
the Department of Justice. A transcript of this hearing can be 
found in the Annex to this report.
    On July 29, 2008, the committee considered these treaties 
and ordered them favorably reported by voice vote, with a 
quorum present and without objection.

              VIII. Committee Recommendation and Comments

     The Committee on Foreign Relations believes that these 
treaties, if ratified, would facilitate U.S. efforts in 
fighting terrorism and transnational crime. In particular, 
these treaties would eliminate obsolete provisions in existing 
U.S. extradition treaties with EU Member States and replace 
them with more effective, efficient, and modern provisions. 
This will enable the United States to, among other things, 
pursue extradition in cases involving serious crimes, such as 
money laundering, antitrust, cybercrime, and environmental 
offenses in situations in which the United States is now unable 
to seek extradition. Accordingly, the committee urges the 
Senate to act promptly to give advice and consent to 
ratification of these treaties, as set forth in this report and 
the accompanying resolution of advice and consent.

                         A. PROVISIONAL ARREST

    Extradition treaties with Member States of the EU generally 
provide a mechanism for provisional arrest, which allows for 
the arrest and detention of a person on the basis of certain 
information, including an arrest warrant from the requesting 
State, for a period of time pending a formal extradition 
request.
    An issue that has received increasing attention in U.S. 
courts is whether or not the magistrate who issues a 
provisional arrest warrant in the United States must find 
probable cause to believe that the person for whom the arrest 
warrant is sought committed the crime underlying the 
extradition request or whether it is enough to simply find 
probable cause that the person at issue has been charged with 
an extraditable crime by the requesting country. In response to 
questions from the committee, the Department of Justice has 
indicated that although the Fourth Amendment of the 
Constitution applies, ``[e]xactly what categories and quantum 
of information are sufficient to meet Fourth Amendment 
requirements in the context of provisional arrest pending 
extradition is not well settled.'' The EU Framework Agreement 
provides no guidance on this matter, as it does not specify the 
standard of proof that an EU Member State must satisfy in order 
to obtain the provisional arrest of a fugitive in the United 
States pending transmission of a formal extradition request.
    While the committee takes no position as to what standard 
of proof must be met in order to meet Fourth Amendment 
requirements in the context of provisional arrest, the 
committee does have concerns regarding the length of time an 
individual may be detained pursuant to a provisional arrest 
warrant without the United States having yet received a formal 
extradition request that would establish probable cause to 
believe that the person has committed a crime. Several 
extradition treaties with EU Member States limit the number of 
days that a person who has been provisionally arrested can be 
detained by the requested State without a formal extradition 
request having been submitted by the requesting State.\32\ For 
example, Article 11(4) of the extradition treaty with the 
Netherlands states as follows: ``Provisional arrest shall be 
terminated if, within a period of 60 days after the 
apprehension of the person sought, the Requested State has not 
received the formal request for extradition and the supporting 
documents mentioned in Article 9.'' Many EU Member State 
extradition treaties, however, require each party to hold a 
person who has been provisionally arrested for a certain 
minimum period of time, but leave to each party's discretion 
whether to hold that person longer without having yet received 
the formal extradition request.\33\ For example, Article 10(4) 
of the extradition treaty with Belgium states as follows: ``A 
person who is provisionally arrested may be discharged from 
custody upon the expiration of 75 days from the date of 
provisional arrest pursuant to this Treaty if the executive 
authority of the Requested State has not received the formal 
request for extradition and the supporting documents required 
in Article 7.''
---------------------------------------------------------------------------
    \32\See, e.g., U.S. bilateral extradition treaties with the Czech 
Republic, the Republic of Finland, the Federal Republic of Germany, the 
Hellenic Republic, the Italian Republic, and the Kingdom of Spain.
    \33\See, e.g., U.S. bilateral extradition treaties with the 
Republic of Austria, the Kingdom of Belgium, the Republic of Cyprus, 
the Kingdom of Denmark, the Republic of Estonia, France, the Republic 
of Hungary, the Republic of Latvia, the Republic of Lithuania, the 
Grand Duchy of Luxembourg, Malta, and the United Kingdom of Great 
Britain and Northern Ireland.
---------------------------------------------------------------------------
    In response to questions asked by the committee, the 
Department of Justice has explained that ``[i]t is rare for 
extradition treaty partners to miss the treaty deadline for the 
presentation of documents in support of extradition.'' The 
Department of Justice also noted that because it is so rare, 
the Department ``does not track statistics to demonstrate how 
long a person who was provisionally arrested was held beyond 
the treaty mandated deadline absent presentation of the formal 
extradition documents.''
    While the committee recognizes the value of a mechanism for 
provisional arrest when trying to detain a fugitive from 
justice, the committee is also concerned that such a mechanism 
be subject to appropriate limits in light of the liberty 
interests at stake. Thus, in the committee's view, the 
Department of Justice should monitor the length of time that 
individuals are detained pursuant to a provisional arrest 
warrant pending an extradition request and thus has conditioned 
its approval of the EU Framework Agreement on a report that 
would provide such information. In addition, the committee 
encourages the Department of State and the Department of 
Justice, when negotiating such mechanisms in future treaties, 
to include language, such as in the extradition treaty with the 
Netherlands, that the provisional arrest ``shall be 
terminated'' if the requested State has not received a formal 
extradition request within a specified time period that is long 
enough to satisfy the legitimate requirements of law 
enforcement officials in making the request. Such language 
would avoid the potential for provisional arrest procedures to 
be used to detain an individual indefinitely.

                             B. RESOLUTIONS

    The committee has included in the resolutions of advice and 
consent one condition, which is a report on provisional arrest 
discussed above, and one declaration, which is the same for 
each treaty and is discussed below.

Declaration

    In every resolution of advice and consent, the committee 
has included a proposed declaration that states that each 
treaty is self-executing. This declaration is consistent with 
statements made in the Letters of Submittal from the Secretary 
of State to the President on each of these instruments\34\ and 
with the historical practice of the committee in approving 
extradition treaties.\35\ Such a statement, while generally 
included in the documents associated with treaties submitted to 
the Senate by the executive branch and in committee reports, 
has not generally been included in Resolutions of advice and 
consent. The committee, however, proposes making such a 
declaration in the Resolution of advice and consent in light of 
the recent Supreme Court decision, Medellin v. Texas, 128 S.Ct. 
1346 (2008), which has highlighted the utility of a clear 
statement regarding the self-executing nature of treaty 
provisions.
---------------------------------------------------------------------------
    \34\See Treaty Doc. 109-14 at p. VI (stating that ``[t]he U.S.-E.U. 
Extradition Agreements and bilateral instruments are regarded as self-
executing treaties under U.S. law . ...''); Treaty Doc. 109-15 at p. V 
(stating that the ``[t]reaty is self-executing and will not require 
implementing legislation.''); Treaty Doc. 109-16 at p. V (stating that 
the ``[t]reaty is self-executing and will not require implementing 
legislation''); Treaty Doc. 109-17 at p. V (stating that the ``[t]reaty 
is self-executing and will not require implementing legislation.''); 
Treaty Doc. 110-11 at p. V (stating that the instrument is ``self-
executing and will not require implementing legislation.''); and Treaty 
Doc. 110-12 at p. V (stating that the instrument is ``self-executing 
and will not require implementing legislation.'')
    \35\The committee has consistently expressed the view that 
extradition treaties are self-executing. See, e.g., Exec. Rept. 106-24 
at p. II (stating with regard to the U.S.-Belize, the U.S.-Republic of 
Paraguay, the U.S.-South African, and the U.S.-Sri Landa Extradition 
Treaties that ``the legal procedures for extradition are governed by 
both federal statutes and self-executing treaties'').
---------------------------------------------------------------------------
    The committee believes it is of great importance that the 
United States complies with the treaty obligations it 
undertakes. In accordance with the Constitution, all treaties--
whether self-executing or not--are the supreme law of the land, 
and the President shall take care that they be faithfully 
executed. In general, the committee does not recommend that the 
Senate give advice and consent to treaties unless it is 
satisfied that the United States will be able to implement 
them, either through implementing legislation, the exercise of 
relevant constitutional authorities, or through the direct 
application of the treaty itself in U.S. law. While situations 
may arise that were not contemplated when the treaty was 
concluded and ratified that raise questions about the authority 
of the United States to comply, the committee expects that such 
cases will be rare. Accordingly, in the committee's view, a 
strong presumption should exist against the conclusion in any 
particular case that the United States lacks the necessary 
authority in U.S. law to implement obligations it has assumed 
under treaties that have received the advice and consent of the 
Senate.

         IX. Resolutions of Advice and Consent to Ratification


 AGREEMENT ON EXTRADITION BETWEEN THE UNITED STATES OF AMERICA AND THE 
                             EUROPEAN UNION

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION AND A 
                    CONDITION

    The Senate advises and consents to the ratification of the 
Agreement on Extradition between the United States of America 
and the European Union, signed at Washington on June 25, 2003, 
with a related Explanatory Note (Treaty Doc. 109-14), subject 
to the declaration of section 2 and the condition of section 3.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

SECTION 3. CONDITION

    The advice and consent of the Senate under section 1 is 
subject to the following condition:

          Report on Provisional Arrests. No later than February 
        1, 2010, and every February 1 for an additional four 
        years thereafter, the Attorney General, in coordination 
        with the Secretary of State, shall prepare and submit a 
        report to the Committee on Foreign Relations and the 
        Committee on the Judiciary of the Senate that contains 
        the following information:

                  1) The number of provisional arrests made by 
                the United States during the previous calendar 
                year under each bilateral extradition treaty 
                with a Member State of the European Union, and 
                a summary description of the alleged conduct 
                for which provisional arrest was sought;

                  2) The number of individuals who were 
                provisionally arrested by the United States 
                under each such treaty who were still in 
                custody at the end of the previous calendar 
                year, and a summary description of the alleged 
                conduct for which provisional arrest was 
                sought;

                  3) The length of time between each 
                provisional arrest listed under paragraph (1) 
                and the receipt by the United States of a 
                formal request for extradition; and

                  4) The length of time that each individual 
                listed under paragraph (1) was held by the 
                United States or an indication that they are 
                still in custody if that is the case.

                              ----------                              


PROTOCOL TO THE EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA 
                      AND THE REPUBLIC OF AUSTRIA

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Protocol to the Extradition Treaty between the Government of 
the United States of America and the Government of the Republic 
of Austria signed January 8, 1998, as contemplated by Article 3 
(2) of the Agreement on Extradition between the United States 
of America and the European Union signed June 25, 2003, signed 
at Vienna on July 20, 2005 (Treaty Doc. 109-14), subject to the 
declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
                           KINGDOM OF BELGIUM

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument as contemplated by Article 3 (2) of the Agreement on 
Extradition between the United States of America and the 
European Union signed June 25, 2003, as to the application of 
the Extradition Treaty between the United States of America and 
the Kingdom of Belgium signed April 27, 1987, signed at 
Brussels on December 16, 2004 (Treaty Doc. 109-14), subject to 
the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


    EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE 
                          REPUBLIC OF BULGARIA

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Extradition Treaty between the Government of the United States 
of America and the Government of the Republic of Bulgaria, 
signed at Sofia on September 19, 2007 (Treaty Doc. 110-12), 
subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
                           REPUBLIC OF CYPRUS

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument as contemplated by Article 3 (2) of the Agreement on 
Extradition between the United States of America and the 
European Union signed June 25, 2003, as to the application of 
the Extradition Treaty between the Government of the United 
States of America and the Government of the Republic of Cyprus 
signed June 17, 1996, signed at Nicosia on January 20, 2006 
(Treaty Doc. 109-14), subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


SECOND SUPPLEMENTARY TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF 
                     AMERICA AND THE CZECH REPUBLIC

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Second Supplementary Treaty on Extradition between the United 
States of America and the Czech Republic, signed at Prague on 
May 16, 2006 (Treaty Doc. 109-14), subject to the declaration 
of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
                           KINGDOM OF DENMARK

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument as contemplated by Article 3 (2) of the Agreement on 
Extradition between the United States of America and the 
European Union signed June 25, 2003, as to the application of 
the Treaty on Extradition between the United States of America 
and the Kingdom of Denmark signed June 22, 1972, signed at 
Copenhagen on June 23, 2005 (Treaty Doc. 109-14), subject to 
the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


    EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE 
                          REPUBLIC OF ESTONIA

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Extradition Treaty between the Government of the United States 
of America and the Government of the Republic of Estonia, 
signed at Tallinn on February 8, 2006 (Treaty Doc. 109-16), 
subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


PROTOCOL TO THE EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA 
                      AND THE REPUBLIC OF FINLAND

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Protocol to the Extradition Treaty between the United States of 
America and Finland signed June 11, 1976, signed at Brussels on 
December 16, 2004 (Treaty Doc. 109-14), subject to the 
declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


 EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND FRANCE

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument as contemplated by Article 3, paragraph 2, of the 
Agreement on Extradition between the United States of America 
and the European Union signed June 25, 2003, as to the 
application of the Extradition Treaty between United States of 
America and France signed April 23, 1996, signed at The Hague 
on September 30, 2004 (Treaty Doc. 109-14), subject to the 
declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


SECOND SUPPLEMENTARY TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF 
              AMERICA AND THE FEDERAL REPUBLIC OF GERMANY

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Second Supplementary Treaty to the Treaty between the United 
States of America and the Federal Republic of Germany 
Concerning Extradition, signed at Washington on April 18, 2006 
(Treaty Doc. 109-14), subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  PROTOCOL TO THE TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF 
                   AMERICA AND THE HELLENIC REPUBLIC

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Protocol to the Treaty on Extradition between the United States 
of America and the Hellenic Republic, signed May 6, 1931, and 
the Protocol thereto signed September 2, 1937, as contemplated 
by Article 3 (2) of the Agreement on Extradition between the 
United States of America and the European Union, signed June 
25, 2003, signed at Washington on January 18, 2006 (Treaty Doc. 
109-14), subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  PROTOCOL TO THE TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF 
                  AMERICA AND THE REPUBLIC OF HUNGARY

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Protocol to the Treaty between the Government of the United 
States of America and the Government of the Republic of Hungary 
on Extradition signed December 1, 1994, as contemplated by 
Article 3 (2) of the Agreement on Extradition between the 
United States of America and the European Union, signed June 
25, 2003, signed at Budapest on November 15, 2005 (Treaty Doc. 
109-14), subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND IRELAND

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument as contemplated by Article 3 (2) of the Agreement on 
Extradition between the United States of America and the 
European Union signed June 25, 2003, as to the application of 
the Treaty on Extradition between the United States of America 
and Ireland signed July 13, 1983, signed at Dublin on July 14, 
2005 (Treaty Doc. 109-14), subject to the declaration of 
section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
                            ITALIAN REPUBLIC

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument as contemplated by Article 3 (2) of the Agreement on 
Extradition between the United States of America and the 
European Union signed June 25, 2003, as to the application of 
the Extradition Treaty between the Government of the United 
States of America and the Government of the Italian Republic 
signed October 13, 1983, signed at Rome on May 3, 2006 (Treaty 
Doc. 109-14), subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


    EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE 
                           REPUBLIC OF LATVIA

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Extradition Treaty between the Government of the United States 
of America and the Government of the Republic of Latvia, signed 
at Riga on December 7, 2005 (Treaty Doc. 109-15), subject to 
the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


PROTOCOL TO THE EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA 
                     AND THE REPUBLIC OF LITHUANIA

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Protocol on the application of the Agreement on Extradition 
between the United States of America and the European Union to 
the Extradition Treaty between the Government of the United 
States of America and the Government of the Republic of 
Lithuania, signed at Brussels on June 15, 2005 (Treaty Doc. 
109-14), subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
                       GRAND DUCHY OF LUXEMBOURG

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument as contemplated by Article 3, paragraph 2 (a) of the 
Agreement on Extradition between the United States of America 
and the European Union signed June 25, 2003, as to the 
application of the Extradition Treaty between the Government of 
the United States of America and the Government of the Grand 
Duchy of Luxembourg signed October 1, 1996, signed at 
Washington on February 1, 2005 (Treaty Doc. 109-14), subject to 
the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


             EXTRADITION TREATY BETWEEN THE UNITED STATES 
                          OF AMERICA AND MALTA

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Extradition Treaty between the Government of the United States 
of America and the Government of Malta, signed at Valletta on 
May 18, 2006, with a related exchange of letters signed the 
same date (Treaty Doc. 109-17), subject to the declaration of 
section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
                       KINGDOM OF THE NETHERLANDS

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Agreement comprising the Instrument as contemplated by Article 
3 (2) of the Agreement on Extradition between the United States 
of America and the European Union signed at Washington on June 
25, 2003, as to the application of the Extradition Treaty 
between the United States of America and the Kingdom of the 
Netherlands signed at The Hague on June 24, 1980, signed at The 
Hague on September 29, 2004, with a related exchange of notes 
signed the same date (Treaty Doc. 109-14), subject to the 
declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
                           REPUBLIC OF POLAND

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Agreement between the United States of America and the Republic 
of Poland on the application of the Extradition Treaty between 
the United States of America and the Republic of Poland signed 
July 10, 1996, pursuant to Article 3 (2) of the Agreement on 
Extradition between the United States of America and the 
European Union signed at Washington June 25, 2003, signed at 
Warsaw on June 9, 2006 (Treaty Doc. 109-14), subject to the 
declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
                          PORTUGUESE REPUBLIC

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument between the United States of America and the 
Portuguese Republic as contemplated by Article 3 (2) of the 
Agreement on Extradition between the United States of America 
and the European Union signed June 25, 2003, signed at 
Washington on July 14, 2005 (Treaty Doc. 109-14), subject to 
the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND ROMANIA

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Extradition Treaty between the United States of America and 
Romania, signed at Bucharest on September 10, 2007 (Treaty Doc. 
110-11), subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
                            SLOVAK REPUBLIC

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument on Extradition between the United States of America 
and the Slovak Republic, as contemplated by Article 3 (2) of 
the Agreement on Extradition between the United States of 
America and the European Union signed June 25, 2003, signed at 
Bratislava on February 6, 2006 (Treaty Doc. 109-14), subject to 
the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
                          REPUBLIC OF SLOVENIA

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Agreement between the Government of the United States of 
America and the Government of the Republic of Slovenia 
comprising the Instrument as contemplated by Article 3 (2) of 
the Agreement on Extradition between the United States of 
America and the European Union signed June 25, 2003, as to the 
Application of the Treaty on Extradition between the United 
States and the Kingdom of Serbia, signed October 25, 1901, 
signed at Ljubljana on October 17, 2005 (Treaty Doc. 109-14), 
subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

  EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
                            KINGDOM OF SPAIN

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument as contemplated by Article 3 (2) of the Agreement on 
Extradition between the United States of America and the 
European Union signed June 25, 2003, as to the application of 
the Treaty on Extradition between the United States of America 
and Spain signed May 29, 1970, and the Supplementary Treaties 
on Extradition signed January 25, 1975, February 9, 1988 and 
March 12, 1996, signed at Madrid on December 17, 2004 (Treaty 
Doc. 109-14), subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND KINGDOM 
                               OF SWEDEN

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument as contemplated by Article 3 (2) of the Agreement on 
Extradition between the United States of America and the 
European Union signed June 25, 2003, as to the application of 
the Convention on Extradition between the United States of 
America and Sweden signed October 24, 1961 and the 
Supplementary Convention on Extradition between the United 
States of America and the Kingdom of Sweden signed March 14, 
1983, signed at Brussels on December 16, 2004 (Treaty Doc. 109-
14), subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.

                              ----------                              


  EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE 
          UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Instrument as contemplated by Article 3 (2) of the Agreement on 
Extradition between the United States of America and the 
European Union signed June 25, 2003, as to the application of 
the Extradition Treaty between the Government of the United 
States and the Government of the United Kingdom of Great 
Britain and Northern Ireland signed March 31, 2003, signed at 
London on December 16, 2004, with a related exchange of notes 
signed the same date (Treaty Doc. 109-14), subject to the 
declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing.
                X. Annex--Treaty Hearing of May 20, 2008



                                TREATIES

                              ----------                              


                         TUESDAY, MAY 20, 2008

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:32 a.m., in 
room SD-419, Dirksen Senate Office Building, Hon. Benjamin L. 
Cardin, presiding.
    Present: Senator Cardin.

         OPENING STATEMENT OF HON. BENJAMIN L. CARDIN,
                   U.S. SENATOR FROM MARYLAND

    Senator Cardin. The committee will come to order.
    First, let me thank Senator Biden for allowing me to chair 
today's hearing. It is a very important hearing dealing with 
important business on extradition treaties and mutual 
assistance agreements that are critically important to law 
enforcement in the United States and with our friends around 
the globe.
    Today the committee meets to review 28 extradition treaties 
and 30 mutual legal assistance treaties with the European 
Union, all 27 European Union Member States, and Malaysia. These 
treaties are intended to modernize and improve the scope and 
operation of our existing international law enforcement 
framework while, nevertheless, maintaining a legal framework 
for the cooperation that is efficient, fair, and effective. The 
committee recognizes the necessity and the benefits that are 
derived from such treaties, which enhance cooperation between 
nations especially at this critical time in our history.
    The United States has entered into over 100 bilateral 
extradition and mutual legal assistance treaties. Extradition 
treaties are important agreements that ensure, for example, 
that those who commit crimes in the United States cannot flee 
to another nation in order to escape justice and punishment. 
Mutual legal assistance treaties strengthen our ability to 
obtain evidence and other forms of assistance from overseas in 
support of our criminal investigations and prosecutions.
    The structure of these treaties reflect the consistent 
evolution we have been observing in Europe over the last 
several decades. Instead of negotiating a separate and 
different agreement with each country in Europe, as we have 
done in the past, there is now one overarching agreement on 
extradition and another on mutual legal assistance concluded 
with the European Union, which harmonizes the content of the 
bilateral agreements with every Member State.
    First, there is a package of extradition agreements. Key 
provisions of the new extradition agreements implementing the 
U.S.-EU extradition agreement are as follows.
    Outdated lists of extraditable offenses would be replaced 
with a modern dual criminality standard, which would enable our 
extradition treaties to cover new offenses, such as money 
laundering or cybercrime, as they develop in the criminal legal 
systems of both countries without having to amend the treaty 
each time.
    The process of authenticating documents and transmission of 
provisional arrests and extradition requests would be 
streamlined.
    Clear authority for the temporary transfer of persons to 
the requesting state that are being prosecuted or serving a 
sentence in the requesting state would be provided.
    A uniform approach to handling competing requests for 
extradition or surrender of the same fugitive from every EU 
Member State and the United States would be established. 
Moreover, the United States requests for extradition put 
forward to a EU Member State would have the same status as 
competing requests submitted by another EU Member State.
    Simplified extradition procedures would be provided in 
cases in which the person sought does not contest extradition.
    Transit authority would be provided in order to facilitate 
the transportation of persons surrendered to a state by a third 
country when that person has to travel through another State 
Party in order to be surrendered.
    In addition to these treaties on extradition matters, we 
are also considering today 30 mutual legal assistance treaties, 
also known as MLATs.
    The United States has bilateral MLATs in force with 17 of 
the 27 EU Member States and has signed three bilateral MLATs 
with EU Member States that had not yet entered into force, 
including the 2001 MLAT with Sweden, which we are considering 
today. Many of the MLATs in force with EU Member States are out 
of date and thus need to be modernized. Moreover, the United 
States does not have MLATs in force with the remaining seven 
states of Bulgaria, Denmark, Finland, Malta, Portugal, 
Slovakia, and Slovenia. If the treaties we are considering 
today are approved by the Senate, the United States would have, 
for the first time, at least a partial or treaty-based mutual 
legal assistance relationship with these seven states.
    Key provisions and mechanisms in the U.S.-EU framework 
agreement, which will be included in the EU Member State 
instruments are as follows.
    A mechanism through which it would be possible to identify 
bank accounts and transactions relating to persons and entities 
under criminal investigation, as specified in the individual 
bilateral agreements.
    States would be authorized to create and operate joint 
investigative teams comprised of investigating authorities for 
treaty partner countries for the purpose of facilitating 
criminal investigations or prosecutions involving one or more 
EU Member States and the United States where deemed appropriate 
by relevant parties.
    A mechanism that would facilitate the use of video 
transmission technology to take witness testimony and for other 
law enforcement purposes.
    States Parties would be authorized to use modern 
technology, such as fax and e-mail, in making requests for 
legal assistance so that the transmission of requests can be 
expedited.
    States Parties would be authorized to provide legal 
assistance to administrative authorities conducting 
investigations with a view to criminal prosecution.
    The final MLAT is the one law enforcement treaty under 
consideration with a state outside of the EU, and that is 
Malaysia. As with most MLATs, the agreement generally obligates 
the Parties to assist each other in criminal investigations, 
prosecutions, and related law enforcement proceedings, as well 
as civil and administrative proceedings that may be related to 
criminal matters.
    I, particularly, want to thank our two administration 
witnesses that are with us today. I know this is technical 
information and it is a formal process that we go through on 
the constitutional responsibilities of the United States Senate 
on treaties. But these are very important issues, and I know 
they just did not come about quickly. It took a lot of work--a 
lot of hard work--and we appreciate the work that our two 
witnesses have done in making it possible for the United States 
Senate to take up these treaties today.
    Susan Biniaz is a Deputy Legal Adviser of the Department of 
State, and Bruce Swartz, the Deputy Assistant Attorney General 
for the Criminal Division at the Department of Justice. It is 
nice to have both of the Department of Justice and the 
Department of State represented today at our hearing.
    We will start with Ms. Biniaz.

STATEMENT OF SUSAN BINIAZ, DEPUTY LEGAL ADVISER, DEPARTMENT OF 
                     STATE, WASHINGTON, DC

    Ms. Biniaz. Thank you, Mr. Chairman. I am pleased to 
testify, along with my colleague from the Justice Department, 
to express the strong support of the State Department and the 
administration for the Senate's prompt provision of advice and 
consent to the ratification of 58 new agreements for 
international law enforcement cooperation.
    The agreements fall into three categories. First, there are 
two agreements with the European Union (EU), one each on 
extradition and mutual legal assistance. Second, there are 54 
bilateral instruments, one on extradition and one on mutual 
legal assistance, with each of the 27 EU Member States. Third 
there are mutual legal assistance treaties, or MLATs, with 
Malaysia and Sweden.
    Mr. Chairman, the extradition and mutual legal assistance 
agreements with the European Union and the individual Member 
States are the concrete results of a dialogue that began in the 
immediate aftermath of the September 11 terrorist attacks. From 
these discussions came a decision to modernize and expand 
existing law enforcement treaties between the U.S. and the EU 
Member States. The modernization was pursued initially through 
the negotiation of agreements with the EU itself, followed by 
the negotiation of instruments with the individual Member 
States. Both features, modernization of existing treaties and 
widening the net of bilateral treaty coverage, became 
particularly important when the EU in 2004 and 2007 expanded to 
admit new countries, primarily from Central and Eastern Europe. 
In that region, a number of U.S. extradition treaties were 
antiquated and mutual legal assistance treaties were in some 
cases nonexistent.
    The extradition and mutual legal assistance agreements with 
the EU were signed in June 2003. Thereafter, the U.S. pursued 
bilateral implementing instruments, one each on extradition and 
mutual legal assistance. These instruments were negotiated 
first with each of the European Union's then-15 Member States 
and thereafter with the 12 additional states.
    We concluded individual bilateral instruments for a number 
of reasons. As a matter of international law, the bilateral 
instruments reflect direct sovereign consent by each EU Member 
State to the changes set forth in the U.S.-EU Agreements to the 
preexisting bilateral extradition or mutual legal assistance 
treaty between the United States and that Member State. As a 
matter of domestic law, the bilateral instruments should ensure 
application of the revised extradition treaties and MLATs by 
practitioners and the judiciary, both in the United States and 
abroad.
    Most of the bilateral extradition instruments simply 
reflect the modernizing provisions contained in the U.S.-EU 
Agreement. However, five of the bilateral extradition 
instruments being considered by the committee today, those with 
Bulgaria, Estonia, Latvia, Malta, and Romania, take the form of 
comprehensive new extradition treaties. These five treaties 
were transmitted to the Senate separately. Since the prior 
extradition treaties with each of these countries had become 
outdated, it made sense to incorporate the provisions required 
by the U.S.-EU Extradition Agreement into fully modernized new 
extradition treaties instead of amendments to old treaties.
    As a matter of substance, what is particularly notable in 
each of the comprehensive new treaties is the obligation to 
extradite nationals. These five countries have become the most 
recent European countries to overcome the historic obstacle 
that nationality has posed in extradition relations between 
much of Europe and the United States.
    The bilateral mutual legal assistance instruments, like the 
extradition instruments, reflect the scope of the U.S.-EU 
Agreement. It should be noted that where no bilateral mutual 
legal assistance treaty previously existed between the United 
States and an EU Member State, as was the case with seven 
Member States (Bulgaria, Denmark, Finland, Malta, Portugal, 
Slovakia, and Slovenia), the new mutual legal assistance 
agreements will now serve that role.
    Ratification processes for both the U.S.-EU Agreements and 
the individual bilateral instruments are approaching completion 
in Europe. I am pleased to report that 22 of the 27 EU Member 
States have completed their domestic procedures to bring the 
agreements into force. We expect the remainder to do so in the 
coming months, and prompt Senate action on this package of 
agreements would be very helpful in accelerating the process of 
ratification in European Union Member States. The U.S.-EU 
Agreements and the completed bilateral instruments may enter 
into force only following completion of all ratification 
procedures by all national governments.
    In conclusion, Mr. Chairman, the U.S.-EU Agreements and 
related bilateral instruments before the committee today would 
result in a historic and comprehensive modernization of the 
U.S. law enforcement relationship with the 27 members of the 
EU, and would create an institutional relationship with the EU 
itself in the law enforcement area. These agreements represent 
an opportunity to bring an important area of trans-Atlantic 
cooperation into the 21st century.
    Now, turning to the Mutual Legal Assistance Treaty with 
Malaysia, while this agreement may not have the historic 
significance and law enforcement impact of the U.S.-EU 
agreements, it is, nonetheless, an important and necessary tool 
to help authorities in the United States and Malaysia 
investigate and prosecute terrorism and organized crime. I have 
addressed this treaty more fully in my written testimony and 
would be happy to address any questions you may have on this or 
on any of the other agreements before the committee.
    Thank you.
    [The prepared statement of Ms. Biniaz follows:]

    Prepared Statement of Susan Biniaz, Deputy Legal Adviser, U.S. 
                  Department of State, Washington, DC

    Mr. Chairman, I am pleased to testify, along with my colleague from 
the Department of Justice, to express the strong support of the 
Department of State and the administration for the Senate's prompt 
provision of advice and consent to ratification of 57 new agreements 
for international law enforcement cooperation. The agreements fall into 
three categories:

   Two agreements with the European Union (EU), one each on 
        extradition and mutual legal assistance;
   Fifty-four bilateral instruments, done pursuant to the U.S.-
        EU Agreements, one on extradition and one on mutual legal 
        assistance, with each of the 27 EU Member States; and
   A mutual legal assistance treaty (MLAT) with Malaysia.

    The Department of State greatly appreciates this opportunity to 
move toward ratification of these important treaties. I will address 
the extradition and mutual legal assistance agreements with the 
European Union and the bilateral instruments with EU Member States 
first, followed by the MLAT with Malaysia.

 EXTRADITION AND MUTUAL LEGAL ASSISTANCE AGREEMENTS WITH THE EUROPEAN 
                                 UNION

    Mr. Chairman, the extradition and mutual legal assistance 
agreements between the United States and the European Union are the 
first law enforcement treaties our government has ever concluded with 
this important international body. They are concrete results of a 
dialogue that began between our government and the EU in the immediate 
aftermath of the September 11, 2001, attacks, as part of a wide-ranging 
exploration of ways of improving trans-Atlantic cooperation against 
terrorism.
    From these discussions came a decision to modernize and expand 
existing law enforcement treaties between the United States and the 
Member States of the European Union. It was agreed to pursue this 
modernization initially through the negotiation of agreements with the 
EU itself, to be followed by instruments with the individual Member 
States. Both features--modernization of existing treaties and widening 
the net of bilateral treaty coverage--became particularly important 
when the EU in 2004 and 2007 expanded to admit new countries primarily 
from Central and Eastern Europe, a region where a number of U.S. 
extradition treaties were antiquated and mutual legal assistance 
treaties, in some cases, were nonexistent.
    Among the most important features of the U.S.-EU Extradition 
Agreement is a provision replacing outdated ``lists'' of extraditable 
offenses with the ``dual criminality'' approach. This modern approach 
will now apply to our extradition relations with all the countries of 
the European Union. It allows extradition for a broader range of 
offenses, and also will encompass newer ones, e.g. cybercrime, as they 
develop, without the need to amend the underlying treaties. The 
Extradition Agreement additionally contains a series of significant 
improvements to expedite the extradition process, which will be 
described by my Department of Justice colleague.
    The U.S.-EU Mutual Legal Assistance Agreement likewise contains 
several innovations that should prove of value to U.S. prosecutors and 
investigators. It creates an improved mechanism for obtaining bank 
information from an EU Member State, delineates a legal framework for 
the use of new techniques such as joint investigative teams, and 
establishes a comprehensive and uniform framework for limitations on 
the use of personal data. The Department of Justice testimony also will 
describe these features in greater detail.

  EXTRADITION AND MUTUAL LEGAL ASSISTANCE INSTRUMENTS WITH EU MEMBER 
                                 STATES

    The Extradition and Mutual Legal Assistant Agreements with the EU 
were signed in June 2003. Thereafter, the United States pursued 
bilateral implementing instruments, one each on extradition and mutual 
legal assistance. These instruments were negotiated first with each of 
the European Union's then-15 Member States and thereafter with the 12 
additional states that joined in two groups, in 2004 and in 2007.
    The conclusion of individual bilateral instruments was undertaken 
for important reasons. As a matter of international law, the bilateral 
instruments reflect direct sovereign consent by each EU Member State to 
the changes required by the U.S.-EU Agreements to the preexisting 
bilateral extradition or mutual legal assistance treaty between the 
United States and that Member State. As a matter of domestic law, the 
bilateral instruments should ensure application of the revised 
extradition treaties and MLATs by practitioners and the judiciary, both 
in the United States and abroad.
    Most of the bilateral extradition instruments simply reflect the 
modernizing provisions contained in the U.S.-EU Agreement. However, 
five of the bilateral extradition instruments being considered by the 
committee today--those with Bulgaria, Estonia, Latvia, Malta, and 
Romania--take the form of comprehensive new extradition treaties. 
(These were transmitted to the Senate separately.) Since the prior 
extradition treaties with each of these countries had become outdated, 
it made sense to incorporate the provisions required by the U.S.-EU 
Extradition Agreement into fully modernized new extradition treaties 
instead of amendments to the existing treaties.
    As a matter of substance, what is particularly notable in each of 
the comprehensive new treaties is the obligation undertaken to 
extradite nationals. With respect to Estonia and Romania, this 
obligation is unqualified. In the case of Latvia, its government may 
request that a Latvian national serve a U.S.-imposed sentence in a 
Latvian prison, pursuant to a prisoner transfer treaty. With regard to 
Malta and Bulgaria, their nationals may be extradited for 30 specified 
offenses corresponding essentially to those offenses for which they 
also may be surrendered for trial to European Union Member States. 
These countries thus have become the most recent European countries to 
overcome the historic obstacle that nationality has posed in 
extradition relations between much of Europe and the United States.
    The bilateral mutual legal assistance instruments, like the 
extradition instruments, reflect the scope of the U.S.-EU MLA 
Agreement. Notably, where no bilateral law enforcement treaty 
previously existed between the United States and the EU Member State--
as is the case with seven Member States in the mutual legal assistance 
area (Bulgaria, Denmark, Finland, Malta, Portugal, Slovakia, and 
Slovenia)--the mutual legal assistance instruments, while not serving 
as comprehensive MLATs, will ensure that the obligations arising from 
the U.S.-EU Agreement are applied between the United States and the EU 
Member State.
    Ratification processes for both the U.S.-EU Agreements and for the 
bilateral instruments are approaching completion in Europe. While the 
foreign party to the U.S.-EU Agreements is the European Union itself, 
most EU Member States nonetheless are required or have chosen under 
their domestic constitutional laws to ratify both the U.S.-EU 
Agreements and the applicable bilateral instruments. I am pleased to 
report that 22 of the 27 EU Member States have completed their domestic 
procedures to bring the agreements into force. We expect the remainder 
to do so in coming months, and prompt Senate action on this package of 
agreements would be very helpful in accelerating the process of 
ratifications in European Union Member States. The U.S.-EU Agreements 
and the completed bilateral instruments may enter into force only 
following completion of all ratification procedures by all national 
governments.

              MUTUAL LEGAL ASSISTANCE TREATY WITH MALAYSIA

    The Mutual Legal Assistance Treaty with Malaysia does not have the 
historic significance and law enforcement impact of the U.S.-EU 
agreements, but it is nonetheless important. Malaysia is located at the 
heart of a region of the world where our law enforcement authorities 
are working every day in partnership with local governments to combat 
terrorism and organized crime. The MLAT will be a useful tool to help 
authorities in both the United States and Malaysia investigate and 
prosecute those offenses. It also will serve--indeed, it has already 
served--as a model for ongoing negotiations between the United States 
and other nations in that crucial region.
    For the most part, the content of the MLAT with Malaysia is similar 
to that of the many other MLATs that this committee has reviewed in 
recent decades. It provides broad authority for each party to assist 
the other in gathering evidence necessary for criminal investigations 
and prosecutions.
    One of the less common features of this MLAT is the provision 
allowing either party to refuse assistance in the absence of so-called 
``dual criminality''--in other words, if the conduct being investigated 
or prosecuted would not also constitute an offense in the state 
receiving the request punishable by a maximum sentence of at least 1 
year's imprisonment. Unlike extradition treaties, most MLATs do not 
have, and do not require, such a provision, but it is not unprecedented 
and we view it as a workable approach. To provide sufficient certainty 
that cooperation will be available for the range of requests we are 
likely to submit, our negotiators undertook two important steps: First, 
they conducted a review and comparison of the criminal codes of the two 
countries and concluded that there was sufficient commonality between 
the two that U.S. authorities would be able to obtain assistance in a 
broad range of matters. In addition, the negotiators prepared and 
included an annex to the treaty that outlines a set of offenses for 
which assistance will not be denied on the ground of absence of dual 
criminality. This annex includes the types of offenses for which U.S. 
prosecutors generally seek assistance abroad.
    Mr. Chairman, I urge that the committee give prompt and favorable 
consideration to these agreements.

    Senator Cardin. Thank you, Ms. Biniaz.
    Mr. Swartz.

 STATEMENT OF BRUCE SWARTZ, DEPUTY ASSISTANT ATTORNEY GENERAL, 
    CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Mr. Swartz. Mr. Chairman and members of the committee, 
thank you for this opportunity to present the views of the 
Department of Justice on the U.S.-EU extradition and mutual 
legal assistance treaties, the instruments that implement each 
of those treaties at a bilateral level with each EU Member 
State, and the mutual legal assistance treaty with Malaysia.
    As you note, Mr. Chairman, these are critically important 
treaties. Each one of them directly advances the national 
security and law enforcement interests of the United States.
    Turning first to the U.S.-EU extradition framework decision 
and the framework treaty and the mutual legal assistance treaty 
that follows. With regard to the extradition treaty and the 
bilateral instruments under that treaty, as you note, Mr. 
Chairman, this treaty represents three key advances.
    First, it replaces the older-list treaty approach found in 
many of our older extradition treaties with the European Union 
and substitutes in its place a dual criminality approach, which 
means, as you note, that we will be able to go forward with the 
extraditions on crimes such as cybercrime, intellectual 
property offenses, and importantly, counterterrorism offenses 
that might not have been possible under the old-list treaty 
approach.
    Second, the EU-U.S. Extradition Treaty replaces the 
antiquated competing extradition request provisions and 
substitutes in its place an analysis that will consider all 
relevant factors. And this is particularly important, as you 
note, with regard to the European arrest warrant since it makes 
clear that United States requests will be on a par with 
European arrest warrant requests as between European Member 
States and will not be automatically subordinated to them.
    And third, the extradition framework treaty puts in place a 
number of procedural improvements that will help ensure that 
extraditions are not denied on purely procedural grounds. And 
those include, as you note, temporary surrender provisions, 
waiver of extradition, transitive prisoners, a streamlining of 
provisional arrest, particularly through Justice Ministry and 
Interpol channels, and transmission and authentication of 
documents.
    In addition to all of these features, as my colleague from 
the State Department has noted, we have also negotiated five 
new bilateral extradition treaties, each of which accomplishes 
the U.S. priority of ensuring that nationals can be extradited 
from those countries.
    Turning next to the U.S.-EU Mutual Legal Assistance Treaty 
and the bilateral instruments under that, here, too, there are 
important advances. As you note, we had mutual legal assistance 
treaties with all but seven of the EU Member States. Our 
objective here was to ensure that we supplemented the treaties 
that we had and established relationships with the countries 
where we did not have treaties with regard to new forms of 
cooperation and that we improve the modalities under the 
existing forms of cooperation. And here, too, there are three 
important new advances represented by the framework U.S.-EU 
Mutual Legal Assistance Treaty. Each of these will aid our 
counterterrorism and law enforcement efforts.
    The first of these is the identification, as you note, of 
previously unknown bank accounts and related financial 
information, a significant advance we expect that will be 
extremely useful in terrorism and money laundering 
investigations.
    The second is the possibility of the creation of joint 
investigative teams which we expect will advance and expedite 
our criminal investigations and our counterterrorism 
investigations.
    The third is the possibility for videoconferencing in 
criminal investigations and proceedings, a step that we think 
will greatly expedite the transmission of evidence and 
investigative information.
    In addition to those three advances, as I noted, the 
framework treaty also establishes modalities that will improve 
our existing cooperation, including making clear that the 
assistance can be provided with regard to regulatory agencies 
insofar as they have statutory authority to conduct 
investigations with a view toward criminal referrals and are 
doing so with regard to the request in issue.
    Second, in this regard in terms of improving modalities, it 
is made clear that information that is provided could be used 
at a minimum in connection with criminal proceedings and where 
appropriate to ensure that public safety is secured, if there 
is an immediate threat, and finally with regard to 
administrative proceedings under the same conditions regarding 
possible referral for criminal prosecution.
    And finally under modalities, the framework treaty makes 
clear that expedition of transmission of requests by fax and e-
mail is also possible, again speeding the vital transmission of 
this information.
    Finally, turning to the Malaysia Mutual Legal Assistance 
Treaty, as you note, this is also a critically important treaty 
precisely because it involves an important partner in a very 
important part of the world. Under Malaysian law, no mutual 
legal assistance was possible for a criminal investigation 
prior to the beginning of court proceedings, that is, prior to 
this treaty. Therefore, this treaty has now secured the 
possibility of cooperation with Malaysia on critical 
counterterrorism and transnational crime investigations.
    In sum then, we appreciate, Mr. Chairman, the committee's 
support for these important treaties. We urge that advice and 
consent be given to them.
    And I look forward to answering any questions you might 
have.
    Thank you.
    [The prepared statement of Mr. Swartz follows:]

   Prepared Statement of Bruce C. Swartz, Deputy Assistant Attorney 
   General, Criminal Division, Department of Justice, Washington, DC

    Mr. Chairman and members of the committee, I am pleased to appear 
before you today to present the views of the Department of Justice on 
the extradition and mutual legal assistance agreements between the 
United States and the European Union (EU), the instruments that 
implement them at the bilateral level with each EU Member State, and a 
mutual legal assistance treaty with Malaysia. These historic treaties 
directly advance the interests of the United States in fighting 
terrorism and transnational crime.
    At the outset, I wish to note that the decision to proceed with the 
negotiation of law enforcement treaties such as these is made jointly 
by the Departments of State and Justice, after careful consideration of 
our international law enforcement priorities. The Departments of 
Justice and State also participated together in the negotiation of each 
of these treaties, and we worked closely with the Department of the 
Treasury, the Securities and Exchange Commission (SEC) and the Federal 
Trade Commission (FTC) in negotiating the articles of the U.S.-EU 
Mutual Legal Assistance Agreement that relate to their respective 
functions. We join the Department of State and these other agencies 
today in urging the committee to report favorably to the Senate and 
recommend its advice and consent to ratification.
    The Departments of Justice and State have prepared and submitted to 
the committee detailed analyses of the mutual legal assistance and 
extradition treaties in the Letter of Submittal. In my testimony today, 
I will concentrate on why these extradition and mutual legal assistance 
treaties are important instruments for United States law enforcement 
agencies engaged in investigating and prosecuting terrorism and other 
serious criminal offenses.
    My colleague from the Department of State, Ms. Biniaz, has already 
touched upon the principal benefits flowing from the U.S.-EU 
Agreements. I will go into greater detail in describing the objectives 
of the United States in negotiating the agreements with the EU, and the 
provisions that resulted.

   THE U.S.-EU EXTRADITION AGREEMENT AND ITS BILATERAL IMPLEMENTING 
                              INSTRUMENTS

    With respect to the extradition agreement, at this moment, prior to 
the entry into force of the U.S.-EU Agreement and bilateral 
implementing treaties with the 27 EU Member States, the oldest of our 
existing extradition treaties with EU Member States are 100 years old 
or older (Slovenia, which dates to 1901 and Portugal, signed in 1908). 
Ten others signed in the 1920s through 1970s (Bulgaria, the Czech 
Republic, Denmark, Finland, Greece, Romania, and the Slovak Republic) 
also contain a significant number of antiquated provisions. As a 
result, one of the principal negotiating objectives of the United 
States was to arrive--in a single negotiation--at an extradition treaty 
governing EU Member States that would eliminate obsolete provisions in 
favor of more effective, modern provisions.
    At the same time, many of our existing bilateral extradition 
treaties with EU Member States were more modern treaties that did not 
require major revision, and which already reflected the particular 
needs of the U.S. and the Member State concerned. What is more, the 
existing bilateral extradition treaties had been negotiated 
individually with each Member State and, naturally, were not identical; 
some contained variations that were more progressive than others. 
Therefore, another negotiating objective for the United States was to 
ensure that the process of negotiating with the European Union as a 
whole did not result in provisions that, while reaching consensus among 
all EU Member States, who were being consulted regularly during the 
negotiation, might undermine stronger existing provisions between the 
United States and some Member States.
    The third principal objective was to obtain agreement with the 
European Union on provisions that would represent advances over the 
provisions of even our most modern bilateral extradition treaties with 
Member States. I will discuss the manner in which these objectives were 
reached in turn.
    The updating of our oldest extradition treaties was accomplished in 
large part by replacing out-of-date provisions with more modern 
formulations contained in the U.S.-EU Agreement. In particular, the 
oldest treaties define extraditable offenses by reference to a list of 
crimes enumerated in the treaty itself. Such an approach limits 
extradition for newly emerging forms of criminality that the United 
States has a strong interest in pursuing, such as antitrust offenses, 
cybercrime, and environmental offenses. Through application of the 
Agreement and the subsequently concluded implementation instruments 
that directly amend the bilateral treaties, these old provisions are 
replaced by modern ``dual criminality'' provisions. This means that the 
obligation to extradite applies to all offenses that are punishable in 
both countries by a maximum term of imprisonment of more than 1 year; 
which is a significant improvement since extradition will be possible 
in future with respect to the broadest possible range of serious 
offenses, without the need to repeatedly update treaties as new forms 
of criminality are recognized. The dual criminality provision also 
contemplates extradition for extraterritorial offenses. For the United 
States, extraterritorial jurisdiction is important in two areas of 
particular concern: Drug trafficking and terrorism.
    The Extradition Agreement also incorporates a variety of procedural 
improvements that update not only the oldest extradition treaties, but 
also a number of more recent treaties that do not already contain such 
provisions. For example, the Agreement contains a ``temporary 
surrender'' provision, which allows a person found extraditable, but 
already in custody abroad on another charge, to be temporarily 
surrendered for purposes of trial. Absent temporary surrender 
provisions, we face the problem of delaying the fugitive's surrender, 
sometimes for many years, while the fugitive serves out a sentence in 
another country. During this time, the case against the fugitive 
becomes stale, and the victims await vindication for the crimes against 
them.
    The Extradition Agreement also allows the fugitive to waive 
extradition, or otherwise agree to immediate surrender, thereby 
substantially speeding up the fugitive's return in uncontested cases. 
It provides for transit of prisoners through the United States and EU 
Member States, a provision that can be of great practical importance 
where a surrendered fugitive must be transported to the United States 
from a country in Africa or Asia and commercial airlines only offer 
flights transiting Europe, or where the surrendered fugitive is being 
transported from Latin America to an European Union Member State 
through the United States. It also streamlines the channels for seeking 
``provisional arrest''--the process by which a fugitive can be 
immediately detained while the documents in support of extradition are 
prepared, translated, and submitted through the diplomatic channel--and 
the procedures for supplementing an extradition request that already 
has been presented.
    To reach the second objective I mentioned--ensuring that the 
provisions of the U.S.-EU Agreement do not inadvertently weaken 
existing bilateral treaties which go farther than the provisions in the 
Extradition Agreement--U.S. negotiators carefully reviewed existing 
bilateral treaties with Member States and drafted the scope provision 
of article 3(1) to ensure that the substantive articles apply only in 
order to either replace outmoded provisions, add useful provisions to 
treaties that did not already have them, or be even more advantageous 
than the modern provisions currently in place. As to replacing outmoded 
provisions, for example, article 3(1)(a) provides that article 4's 
``dual criminality'' requirement replaces the provisions of antiquated 
``list'' treaties; dual criminality provisions in modern U.S. 
extradition treaties with EU Member States remain unaffected. As to 
adding useful provisions, for instance, article 3(1)(f) adds the 
possibility of temporary surrender to those treaties that do not 
already permit it.
    Finally, article 3(1)'s terms provide that certain provisions that 
are more favorable than those found in our current treaties replace the 
prior formulation. For example, article 10(2) provides that where an EU 
Member State receives a request for extradition from the United States 
as well as a request for surrender of the same fugitive from another EU 
Member State pursuant to the European Arrest Warrant, the EU Member 
State holding the fugitive shall make its determination as to which 
request should receive priority based on a consideration of all 
relevant factors, rather than giving automatic precedence to the 
request from the EU Member State. This was a very important point for 
the U.S., because many EU Member States do not extradite their 
nationals. Were the EU to decide that, as an internal matter, European 
Arrest Warrant requests from other Member States should receive 
priority over foreign extradition requests, a fugitive who is a 
national of another EU Member State could be surrendered to his country 
of nationality--even for less serious charges than those for which the 
U.S. might seek his extradition--and we would not be able to 
subsequently extradite him from the country of nationality. This 
provision, in combination with article 3(1)(g), makes clear that such a 
result would not be consistent with the international obligations set 
forth in the Agreement.
    Another provision that represents an advance over many modern 
treaties is article 7, which addresses transmission of documents 
following provisional arrest of a fugitive, an event that triggers a 
treaty deadline for receipt of the documents in support of extradition, 
which, if not met, will result in the fugitive's release. The Agreement 
provides that once the extradition documents have been received by the 
Member State's embassy in the U.S., the treaty deadline for receipt of 
the documents is considered satisfied. This is the same standard that 
the United States already applies when receiving extradition documents 
from other countries, and we will now benefit from the same treatment 
when we make extradition requests. Pursuant to article 3(1)(d), this 
provision is added to all U.S. extradition treaties with EU Member 
States.
    Last, articles 3(1)(b) and 5(2) of the Agreement greatly simplify 
the authentication requirements for extradition documents to enable 
them to be admitted in evidence at extradition hearings. Over the 
years, the authentication requirements of extradition treaties, 
requiring extradition documents to be certified at embassies to permit 
them to be admitted in evidence in extradition hearings, had become 
increasingly time consuming to satisfy, to the point that doing so 
entailed some risk that the fugitive might be released or flee during 
the time it took to complete these requirements. The new U.S.-EU 
provision specifies that documents bearing the seal or certificate of 
the justice or foreign ministry of the State seeking extradition are 
admissible in extradition proceedings, thereby significantly 
streamlining the process, yet retaining sufficient assurance of the 
reliability of the documentation received.
    Of course, in the case of Bulgaria, Estonia, Latvia, Malta, and 
Romania with whom we have negotiated completely new bilateral 
extradition treaties, the provisions of the U.S.-EU Extradition 
Agreement are incorporated. All five of these complete treaties also 
provide for the extradition of nationals, a U.S. negotiating priority.

    THE U.S.-EU MUTUAL LEGAL ASSISTANCE AGREEMENT AND ITS BILATERAL 
                        IMPLEMENTING INSTRUMENTS

    With respect to mutual legal assistance, the situation at the 
outset of negotiations was somewhat different from that of extradition. 
We have a Mutual Legal Assistance Treaty (MLAT) either signed or 
already in force with all but seven EU Member States (the seven being 
Bulgaria, Denmark, Finland, Malta, Portugal, the Slovak Republic, and 
Slovenia). Where we have not concluded an MLAT, cooperation is being 
provided pursuant to domestic mutual legal assistance statutes. The 20 
MLATs signed or already in force are modern instruments, with the 
oldest being our 1981 treaty with the Netherlands. Thus, in the mutual 
legal assistance area, the principal objective was not to update out-
of-date treaties, but rather to supplement our MLATs with new forms of 
cooperation not expressly provided for to date, and, in some cases, to 
provide more flexible and beneficial modalities in carrying out 
cooperation.
    Accordingly, the U.S.-EU Agreement contains three new types of 
provisions not previously set forth in U.S. MLATs, meaning that, while 
these forms of assistance might be possible as long as the domestic law 
of the U.S. and the EU Member State do not prohibit the assistance, 
there was previously no specific obligation to make such assistance 
available.
    The first of these provisions is the identification of bank 
information pursuant to article 4. While our existing MLATs already 
provide for the production of bank records needed in money laundering, 
terrorism financing and many other kinds of investigations, as well as 
for the identification, freezing, and forfeiture of proceeds of crime 
laundered through banks, MLATs do not currently provide a procedure for 
locating previously unidentified bank accounts, on the basis of, for 
example, the name and date of birth of the account holder. Authority to 
identify such banking information for terrorism and money laundering 
investigations was established for the United States in the USA PATRIOT 
Act of 2001, and for the European Union in its 2000 MLAT among EU 
Member States. The U.S. and EU both having established this power, we 
were able to formulate a provision that will facilitate the 
identification of such information in requests for cooperation made 
between us. Experience has shown that terrorists and money launderers 
often use U.S. and European banks for their purposes. Article 4, 
therefore, provides a powerful law enforcement tool that will greatly 
aid us in identifying where terrorists and money launderers are 
secreting their funds, following which we can take appropriate action 
using existing international cooperation treaties and laws. While the 
assistance the U.S. provides to EU Member States will--in accordance 
with the USA PATRIOT Act's limited grant of authority--be restricted to 
cases involving terrorism and money laundering activities, a number of 
EU Member States agreed to make this form of cooperation available to 
the U.S. with respect to an even broader range of criminal activities.
    Second, article 5 of the Agreement authorizes the establishment of 
joint investigative teams for purposes of coordinating closely in the 
ever increasing number of international terrorism and organized crime 
investigations that require simultaneous action in more than one 
country. While U.S. investigative agencies have long worked 
cooperatively with their foreign counterparts in investigations having 
international aspects, the extent of joint activity has at times been 
limited absent this kind of provision. Once the Agreement enters into 
force, we will have a framework that will enable a fuller integration 
of investigative activities with our European partners where we deem it 
important to do so.
    Finally, article 6 facilitates the use of modern video-conferencing 
technology in criminal investigations and proceedings, authorizing its 
use for taking testimony or other investigative uses. Already in use 
regularly in domestic U.S. criminal cases for some pre and post-trial 
hearings, to take witness statements, and for other investigative 
actions, video-conferencing technology is used less frequently at the 
international level, where many countries have more limited experience 
with it. Its increased use will benefit the United States, by 
permitting investigative statements to be taken abroad, with 
investigators and prosecutors, or even incarcerated defendants in the 
U.S., being able to participate more meaningfully via use of video-
conferencing technology if participation in person is not feasible. In 
this area as well, in the past, the United States has facilitated the 
taking of testimony via video link from witnesses in the United States 
for use in foreign criminal proceedings. However, absent a specific 
provision of this type, some EU Member States would not be able to 
authorize a video feed to the United States during witness questioning. 
This provision will therefore provide greater flexibility in 
international criminal cases.
    I also mentioned that a number of provisions of the U.S.-EU 
Agreement provide more favorable modalities to be applied in carrying 
out cooperation than were previously available under some of our MLATs. 
I would like to mention the two principal articles in this regard, 
pertaining to administrative authorities and use limitations.
    First, pursuant to article 8 of the Agreement, the U.S. and EU 
Member States must provide assistance to regulatory agencies with 
statutory authority to conduct investigations with a view to referral 
for purposes of prosecution. To an increasing extent, Federal agencies 
such as the SEC, the Commodity Futures Trading Commission, and the FTC 
are conducting the initial investigation in serious fraud cases. While 
some prior MLATs permit agencies such as these to receive assistance, 
some foreign law enforcement partners have declined to entertain 
requests which do not originate from criminal courts, prosecutors or 
criminal investigative agencies. As a result of this provision, U.S. 
regulatory agencies engaged in investigations that could result in 
referral to the Department of Justice for criminal prosecution will be 
entitled to cooperation from all EU Member States and, likewise, will 
be able to use the information obtained in their regulatory enforcement 
proceedings even if the case does not ultimately result in criminal 
referral. Of course, to the extent EU Member States have administrative 
components engaged in analogous investigations they will receive 
reciprocal cooperation.
    Second, article 9 of the MLAT allows the information and evidence 
provided in response to a mutual legal assistance request to be used, 
at a minimum, for any criminal investigation or proceeding, for the 
purpose of preventing immediate and serious threats to public security, 
and for use in the regulatory proceedings I just described. This 
formulation is an advance over some older use limitation formulations, 
which often set out a cumbersome procedure by which use was initially 
limited to the purposes set forth in the request, and permission for 
any other subsequent use had to be sought and granted. The new 
formulation recognizes that in cases involving immediate threats to 
public security, there is not sufficient time to ask permission for a 
different use, and there is no sound reason to deny permission where 
the evidence and information provided is pertinent to other criminal 
conduct not known at the time the MLAT request was drafted.

              MUTUAL LEGAL ASSISTANCE TREATY WITH MALAYSIA

    In addition to the treaties with the EU, the Department of Justice 
urges the committee to give favorable consideration to the Mutual Legal 
Assistance Treaty with Malaysia. Under Malaysian law, in the absence of 
this treaty, there is no obligation to provide assistance to the United 
States in investigations prior to the initiation of court proceedings. 
With the entry into force of the MLAT, there will be a mutual 
obligation to provide assistance similar to what is found in other U.S. 
MLATs.

                               CONCLUSION

    In conclusion, Mr. Chairman, we appreciate the committee's support 
in our efforts to strengthen the framework of treaties that assist us 
in combating international crime. For the Department of Justice, modern 
extradition and mutual assistance treaties are particularly critical 
law enforcement tools. Moreover, EU Member States are among our closest 
law enforcement partners, and we are seeing a continual increase in the 
number and complexity of mutual legal assistance requests flowing 
between us. To the extent that we can update our existing cooperation 
agreements and arrangements in a way that enables cooperation to be 
more efficient and effective, we are doing ourselves, and each other, a 
great service. Accordingly, we join the State Department in urging the 
prompt and favorable consideration of these law enforcement treaties.

    Senator Cardin. Well, again, let me thank both of you for 
your testimony.
    Ms. Biniaz, you indicated that, I think, 22 of the 27 
European countries have taken steps to implement these 
agreements. Is there a problem in the other five states? Are 
there any anticipated issues that we should be aware of--of 
controversy surrounding the approvals among the 27 European 
countries?
    Ms. Biniaz. I do not think we anticipate any problems. I 
can give a quick rundown of the countries and where things 
stand.
    The first one would be Belgium. Belgium required 
implementing legislation in order to ratify this package, and 
as of mid-February, it was being reviewed by the Conseil d'Etat 
prior to being sent to Parliament. The prediction by the EU 
Presidency is that the legislation will pass by June, and 
Belgium would then be in a position to ratify the package.
    The next country is Cyprus. The ratification package or 
instruments are with the Parliament's legal affairs committee. 
There was a second reading of the bill a couple of weeks ago, 
and we anticipate further action in the near future. In fact, 
it may have happened over the weekend. We need to check that.
    Greece is the next country. The Justice Ministry has begun 
drafting the implementing legislation that is necessary to be 
submitted to Parliament after a lengthy review by parliamentary 
experts. On that one, we do not have any sort of indication of 
timing, but do not anticipate any particular problem.
    The fourth country is Italy. As you know, a new government 
was formed in April, so the ratification process is not 
expected to be imminent but it is on track.
    Finally, the Netherlands. The package is scheduled for 
plenary debate before the lower House of Parliament during the 
week of May 26. There are some smaller opposition parties which 
will raise questions at that time, but those questions are not 
expected to be about the package itself. They are expected to 
be raising concerns about aspects of U.S. foreign policy 
related to the war on terror, and this is just an opportunity 
to raise those questions. But they do not relate to the package 
of treaties before the Parliament.
    In sum, we do not expect a problem with any of the five 
remaining countries.
    Thank you.
    Senator Cardin. And with the new government in Italy, have 
you gotten any indication of any concerns about perhaps 
reopening this agreement?
    Ms. Biniaz. I am told we have no indication of any 
problems. If we do, we will get back to you.
    Senator Cardin. So you anticipate that these agreements 
will be approved in all the European countries.
    Now, what is the status of Malaysian support for the MLAT?
    Ms. Biniaz. They are already in a position to exchange 
instruments of ratification. So my understanding is that they 
are just waiting for us.
    Senator Cardin. Both of you mentioned the extradition of 
nationals, and I know it applies in Estonia, Romania, and 
Latvia. Is there a concern that American nationals may be 
subject to this extradition which may not be in what the United 
States would otherwise want to see happen to American 
nationals?
    Ms. Biniaz. I can give an answer and it can be elaborated 
by Justice.
    We do not generally conclude extradition treaties unless we 
have fully examined the country's legal system and ensured that 
human rights issues, including due process issues, are up to 
our standards, and that we would be comfortable sending U.S. 
nationals to those countries.
    In an extreme case, it is always at the discretion of the 
Secretary of State whether to extradite persons from the United 
States. So I think we have no reason to be concerned.
    Senator Cardin. So you are saying that even with the 
countries that we do have these agreements with, there is no 
100 percent guarantee that those countries would extradite 
their nationals to the United States. Is that also true?
    Ms. Biniaz. Well, it depends on the terms of the given 
extradition treaty.
    Senator Cardin. In regards to Romania or Latvia or Estonia?
    Ms. Biniaz. Yes. There is an obligation in those new 
treaties to extradite regardless of nationality.
    Senator Cardin. Would that also not be true then with the 
United States? You indicated the Secretary could prevent the 
extradition of an American to Latvia.
    Ms. Biniaz. I was giving an example of an extreme case 
where there happened to be an issue, but my general point was 
that we would not enter into an extradition treaty unless we 
were comfortable with sending U.S. nationals there, and the 
other country, obviously, has to be comfortable sending its 
nationals to the United States because those are the terms of 
the treaty.
    Senator Cardin. So the bottom line is that an American 
national would be subject to extradition.
    Ms. Biniaz. Yes; which is the way it is generally under our 
extradition treaties.
    Senator Cardin. And you feel comfortable with the systems 
today in Romania and Latvia and Estonia that Americans would be 
protected against the concerns we have in extradition.
    Ms. Biniaz. Yes.
    Senator Cardin. Thank you.
    Mr. Swartz, you mentioned joint investigations, which I 
find intriguing. We will be taking up on Thursday in the 
Judiciary Committee giving the Justice Department additional 
tools in dealing with exploiting of children, which is 
legislation that has strong bipartisan support. I looked at 
offering amendments to give the Justice Department more 
authority to deal with other countries because a lot of the 
exploitation issues are international. Under these agreements, 
would it be easier for you to work joint investigations on 
exploitation issues with the European countries?
    Mr. Swartz. Mr. Chairman, we believe that it would be 
easier. The United States has long favored the creation, on an 
ad hoc basis, of joint investigative teams. The great advantage 
of having this provision in the framework treaty is that it 
authorizes EU Member States, some of whom have felt that they 
needed such authorization in terms of having it on a treaty 
basis, to go forward as well. But we believe that our work has 
always benefited by the possibility of working jointly and 
engaging in the informal sharing of information that can then 
be followed up with the formal request through the mutual legal 
assistance process. So we look forward to any opportunity to 
engage in joint work with our colleagues on cases that are of 
joint importance.
    Senator Cardin. And we do have international commitments in 
regards to trafficking which, I take it, the Justice Department 
is working in cooperation with other countries. The Internet 
issues involve more complicated issues because the legal 
systems are different as to the protection of the Internet. 
Actually there is probably more protection in the United States 
than in most of the European countries. I am just trying to get 
a grip as to whether these agreements will have any impact on 
trying to deal with those international forces that are preying 
on our children.
    Mr. Swartz. Mr. Chairman, we expect that it will. We have 
worked quite closely on child exploitation cases with European 
partners already, and as the chairman is aware, we have engaged 
in joint arrests, coordinated takedowns of organizations 
involving child exploitation. We expect that this particular 
agreement, by making it clear that such joint investigative 
teams are not only permissible on an ad hoc basis but to be 
encouraged and are now incorporated in the treaty framework, 
will make countries that might have otherwise found it more 
difficult to cooperate or to form such teams willing to do so. 
But we are fully committed as a Department to the pursuit of 
such cases and to continue our work singly and jointly with 
other countries to try and deal with the very serious problem 
of child exploitation.
    Senator Cardin. Thank you.
    I want to get a better understanding on the transport 
through one of these states when the surrender occurred 
outside. What I am thinking about is circumstances where 
perhaps we have a person who has surrendered in the Middle East 
and we are trying to bring the person back to the United States 
and we have to travel through several European countries' 
airspace that are subject to these agreements.
    Can you just explain to me whether we are protected? Do we 
preauthorization in order to do that under these agreements, or 
is there still a process it needs to go through in order to 
transport someone who has surrendered in the Middle East to the 
United States to travel through air to our country?
    Mr. Swartz. Mr. Chairman, Article 12 of the extradition 
agreement between the United States and the European Union 
covers the question of transit and establishes both the 
principle of transit but also a procedure to be followed to 
ensure that transit is permissible. In particular, Article 12.2 
states that a request for transit shall be made through the 
diplomatic channel or directly through the Justice Ministry of 
the Member State, and Interpol can also be used to facilitate 
such a request. And the request itself makes clear that it is 
identifying not only the person being transited but the 
description of the facts of the case, and that essentially that 
he or she is detained in custody during the period of transit. 
So, yes; there is a procedure, and there is also a procedure in 
12.3 when there is an unscheduled landing that takes place.
    Senator Cardin. I understand notification, but would these 
agreements provide preauthorization so that we have their 
permission to do it? I understand we may have to follow certain 
guidelines in order to achieve and notify what we are doing and 
we may have an issue of landing in their country. But is there 
an implied authorization if we have to transport over their 
airspace?
    Mr. Swartz. Only in the cases in which an individual is 
being transited and lands in that country. The unauthorized 
landings--we have a separate procedure for that.
    Senator Cardin. So if they travel over the airspace, you do 
have preauthorization? No; you do not. Yes, no?
    Mr. Swartz. For traveling through the airspace, you do not 
need preauthorization.
    Senator Cardin. You do not. Thank you for that.
    Let me talk a little bit about the bank information, which 
is new. Certainly I think we all understand how important 
information is in investigations concerning bank accounts. But 
as you know, there is a concern in Congress on privacy, and I 
just would like to know a little bit more about how you 
envision this provision being implemented, particularly 
respecting the legitimate privacy rights of Americans to know 
that their bank records are not being just shared 
inappropriately. Whoever feels like answering that.
    Mr. Swartz. I guess I feel like answering that.
    Mr. Chairman, I am happy to say that the concerns with 
regard to privacy were certainly taken into account in the 
negotiation of this provision on both the United States and the 
European Union side. As you are aware, the EU is concerned 
about data protection. We are as well. And there are several 
aspects of the bank identification provision of the mutual 
legal assistance treaty that help cure privacy.
    In the first place, the request will go to our 
investigative agencies, if they are coming from abroad, either 
the FBI attache or DEA or ICE, as appropriate. And there has to 
be sufficient information provided to allow basically a 
reasonable conclusion that there is a crime involved, that the 
information being sought exists in a bank, and that there is a 
relationship between the crime and the information being 
sought. That is a determination that our law enforcement 
agencies will make before submitting this to FINCEN, the 
Treasury Department's Financial Crimes Enforcement Network.
    And a further protection is provided by the fact that all 
that goes back through these channels is an indication that 
there is an account or other information, not the actual 
information itself. That information then has to be obtained 
through mutual legal assistance with all of the protections and 
assurance that the central authority, in this case, the 
Department of Justice, will review any such request for mutual 
legal assistance.
    Senator Cardin. This is a sensitive area, as I am sure you 
are aware. Once again, I think it is extremely important that 
information that is needed in the investigation, legitimately 
entitled to if it were in the United States, that that 
cooperation be provided to the countries in which we have 
entered into these agreements. But I am also concerned that we 
have in place the adequate oversight to make sure that the type 
of determinations that you just quickly went through are being 
done so that Americans have the protection for privacy that 
they are entitled to. It is one thing when the initiation comes 
from American sources. We have jurisdiction over those entities 
and can take action that there is abuse. The problem is the 
information made available from foreign sources. We do not have 
the same degree of oversight--the same degree of accountability 
and jurisdiction.
    So I think it is critically important that the procedures 
in place in this country are checking and making sure that the 
information made available is accurate and that there is some 
degree of ability to hold the other country accountable in the 
event that information proves to have been provided that was 
inaccurate.
    Mr. Swartz. Mr. Chairman, we take that very seriously, and 
we will certainly, in terms of the review of this procedure, 
ensure that that is the case. As I have noted, we really have 
checks built into it at three levels: First, when our law 
enforcement attaches receive the request; second, when it goes 
to the Financial Crimes Enforcement Network at Treasury; and 
then finally, through our central authority at the Department 
of Justice when the request is followed up with a mutual legal 
assistance request.
    But that said, we recognize the importance of ensuring that 
this process is used for the purposes for which it is intended, 
and in the United States case, that will be for terrorism and 
money laundering offenses. And we will certainly review the 
process as it goes forward. In fact, Article 4 expects there 
will be a review, and if there is a burden or other issues, we 
expect that that would be a subject of further consultation.
    Senator Cardin. And I noticed it was restricted to those 
two areas of money laundering and terrorism. Was there 
discussion of using it in a broader context, or is there 
anticipation that that may follow, that there may be a broader 
use of this power?
    Mr. Swartz. The bilateral instruments make clear that it is 
possible, should the United States expand its legislation in 
this regard, that there might be a reciprocal expansion with 
regard to requests from other countries. And several other 
countries--EU Member States--have already made clear that it 
can be used for their purposes for offenses beyond money 
laundering and terrorism.
    Our use of money laundering and terrorism was based on the 
existing legislation under the PATRIOT Act, under section 314 
in particular, which focuses on exactly this kind of procedure 
for money laundering and terrorism within the United States. So 
for the present, we believe that that addresses, particularly 
given the extensive predicate offenses for money laundering in 
the United States, the range of offenses that gives us a chance 
to see how this procedure works, helps focus it in the way that 
you suggest, Mr. Chairman. And then if Congress determines to 
expand this approach, we can seek similar expansion from our 
European partners.
    Senator Cardin. I think that is reasonable.
    Let me just make a strong suggestion, and that is that the 
appropriate committees in Congress are kept well informed on 
the use of this particular authority within these agreements so 
that there are no surprises as to how it is being utilized, the 
volume of requests that are being made, how they are being 
screened, how you are following up to make sure that it was 
appropriate. I think if you do that, you can avoid a future 
problem, particularly when you come for perhaps expansion of 
the power, which again I think is a reasonable request, but 
there is going to be a desire to see how it has been applied.
    So I would urge you, rather than wait for congressional 
hearings or for something perhaps that comes out in the 
newspaper that causes a reaction by Congress, that you work 
with Congress on these powers because I think there is a 
genuine understanding of the need to get these records, and we 
just want to make sure it is done in the appropriate way and 
that we just do not give carte blanche to other countries that 
may have different tolerance than we do for protecting the 
right of privacy.
    Mr. Swartz. Mr. Chairman, we will be glad to work with 
Congress in that regard.
    Senator Cardin. Thank you.
    Now that we have finished banking records, let me talk 
about capital punishment, another subject, of course, that has 
a little bit of controversy surrounding it. By way of 
background, I serve as the Senate chair of the Helsinki 
Commission and am well aware of the European concerns about 
capital punishment in the United States. As I understand these 
agreements, extradition can be conditioned upon certain 
assurances given on capital punishment not being applied in a 
particular case. I have a couple questions here.
    The first is, Can a country that we have an agreement with 
use that provision to deny the extradition of someone to the 
United States even though the United States has indicated it 
would not seek capital punishment?
    Mr. Swartz. Mr. Chairman, I think it is fair to say that 
under any extradition agreement in which such provisions 
appear, including the current ones under consideration by the 
committee, the requested state can decide not to grant 
extradition and could do so notwithstanding the conditions 
being given by the United States with regard to the death 
penalty.
    Were that to happen, however--that is, were the United 
States to have indicated that the conditions under Article 13 
of the U.S.-EU Extradition Treaty would be met by the United 
States--we would certainly strongly take issue with the 
country's refusal to extradite the individual precisely 
because, as the chairman is well aware, the reason that we have 
such a provision is to ensure that a fugitive cannot escape 
punishment entirely by fleeing to a nondeath penalty 
jurisdiction. We have never in this country failed to meet our 
obligations with regard to assurances or conditions that have 
been set with regard to the death penalty, and we would 
certainly urge that point with regard to any country were it to 
decide not to go forward, notwithstanding our agreement to meet 
the conditions.
    Senator Cardin. So what you are saying is that under the 
exception for capital punishment, there would be a requirement 
to extradite someone where assurances have been given, but that 
there is enough discretion remaining that it could be a factor 
in the denial of a country extraditing to the United States, 
although we would raise serious concerns about that and use our 
best efforts to make sure that does not happen. Is that a fair 
assessment?
    Mr. Swartz. Yes, Mr. Chairman. We would certainly make 
certain that our best efforts were extended to make clear to 
the country that we had agreed to the conditions set forth in 
Article 13 and therefore there was no basis for refusing 
extradition. But the request of State is always the final 
arbiter with regard to decisions to extradite.
    Senator Cardin. So now let me put it on the other side. The 
country has decided to extradite the individual to the United 
States. We now have custody of the individual and we are ready 
to pursue the criminal matters with the restrictions that we 
placed about no capital punishment. We have codefendants that 
are in the United States for which the prosecutor would like to 
see the capital punishment considered.
    What type of dilemma do we have on constitutional rights 
for equal justice and just the fairness of our system where we 
have codefendants, one of which could be subject to capital 
punishment, the other not, for committing the same crimes?
    Mr. Swartz. Mr. Chairman, I would be glad to take that 
question more fully for the record, but I can state that, of 
course, it does present a difference with regard to those two 
individuals. As the chairman is aware, oftentimes a variety of 
factors can lead to different codefendants facing different 
penalties even for the same crime. Nonetheless, it is the case, 
as you say, that an individual who has been successful in 
fleeing to a nondeath penalty jurisdiction can take advantage 
of that fact to when he comes back to the United States subject 
to conditions that the death penalty will not be imposed.
    Senator Cardin. I will take that answer, but if you have 
additional information you would like to make available to the 
committee, we would appreciate that.
    It is a serious problem for the United States. Capital 
punishment--the use in the United States is not consistent with 
our allies in Europe. They have a different standard for the 
use of capital punishment. And it presents real problems for 
law enforcement. And I do think there--I do not know if it is 
constitutional. It might be a problem that we have when we have 
different restrictions on different criminals that are 
unrelated to the crime that they committed and the impact it 
has certainly on the fairness of our system. I have concerns as 
to how we deal with it under our current capital punishment 
laws and would appreciate your adding to that weight of 
discussion perhaps by expanding on your answer going forward.
    Let me bring up another area that I would like to have a 
little bit of understanding as to how you expect to use this 
authority, and that is dealing with administrative authorities. 
Perhaps you could tell us exactly what agencies you think are 
involved and what type of requests you anticipate might be 
made. As I read the agreements, there is a provision where you 
can tailor the response based upon the burden of the agency. I 
guess that is the best way of saying it. There is a safety 
valve here that you could argue pragmatic reasons for not fully 
complying with the request.
    My question is, Was that put in at the request of the 
United States or our European friends? Is there a concern that 
there will be more requests coming to us or more requests 
coming to them? Have you heard from the regulatory agencies as 
to their concerns? Can you just fill us in a little bit more as 
to that provision and how it will be implemented?
    Mr. Swartz. Mr. Chairman, with regard to the investigative 
agencies, the administrative agencies would have the power to 
refer matters criminally. We would expect this likely to be 
used on the U.S. side by entities such as the SEC, the 
Commodities Futures Trading Commission, and perhaps the FTC as 
three examples.
    And we did consult with our administrative agencies in this 
regard. We think this is an important advance certainly from 
the United States perspective since our regulatory agencies do 
have that power to engage in criminal referrals and do work 
closely with us in that context when criminal referrals are 
made. So we think this is a significant step forward from the 
point of view of the United States.
    In terms of, as you say, of the safety valve, because this 
is a new provision, we, and perhaps the European Union as well, 
felt that it was wise to have the possibility of determining in 
the future if this becomes a burden on either side of the 
Atlantic simply because this is basically a new approach we are 
taking in this regard, but we expect the advantage to the 
United States to be significant. We trust that the burdens will 
not be that burdensome, but should they be so, we would have 
the ability to reconsider how this should go forward in the 
future.
    Senator Cardin. So the provision that says ``shall take 
measures to avoid the imposition of extraordinary burdens on 
requests to states through application of this article'' was 
suggested by the United States?
    Mr. Swartz. I am informed, Mr. Chairman, that it was a U.S. 
suggestion in this regard.
    Senator Cardin. Well, it could work both ways. If we are 
more aggressive in these areas, then it could be used by our 
European friends to deny us some information. Of course, one of 
the areas that we have been actively involved with the agencies 
that you refer to in regards to criminal matters--I might 
suggest that you keep us closely informed as to how this new 
authority is working to see whether it has been useful in going 
after the types of criminal activities that we are concerned 
about and whether this provision is, in fact, being used to 
filter the type of information we otherwise would be receiving 
and, on the reverse side, how many requests we are getting from 
other countries to give information. So I think particularly in 
regards to the regulatory agencies, as well as the financial 
information, they are sensitive matters that I would appreciate 
you keeping us all informed.
    Mr. Swartz. Mr. Chairman, we will certainly do that.
    Senator Cardin. Thank you.
    If you will bear with me for just one moment.
    [Pause.]
    Senator Cardin. There may be some additional questions for 
the record. We would ask if they are made, that you would try 
to supplement that within the next few days if possible because 
I know we are trying to expedite the Senate considerations of 
these treaties and agreements so that we can get the benefits 
as quickly as possible.
    With that, I thank again both of you for being here, and 
the committee will stand adjourned.
    Thank you very much.
    [Whereupon, at 11:20 a.m., the hearing was adjourned.]
                              ----------                              


              Additional Material Submitted for the Record


 Responses of Deputy Legal Adviser Susan Biniaz to Questions Submitted 
                    for the Record by Senator Biden

    Question. Please explain whether a breach by an EU Member State of 
a provision of the U.S.-EU extradition agreement that has been 
incorporated into a bilateral instrument would be considered a breach 
by both the European Union and the Member State, or just the Member 
State.

    Answer. We would ordinarily expect that a breach by an EU Member 
State of a provision of a bilateral instrument derived from the U.S.-EU 
Extradition Agreement would be considered a breach only by that Member 
State. Article 3 of the U.S.-EU Extradition Agreement requires the EU 
to ``ensure that provisions of this Agreement are applied in relation 
to bilateral extradition treaties'' between the individual Member 
States and the United States. The EU's responsibility therefore relates 
to ensuring that specified provisions are reflected in individual 
bilateral instruments, while the Member States remain responsible for 
carrying out the content of such provisions under their respective 
bilateral agreements with the United States. Thus, even where a Member 
State breach related to a provision that derived from the U.S.-EU 
Agreement, it would be the Member State that would ordinarily be in 
breach, rather than the EU. Having said that, we do not rule out a 
situation in which a breach might be of such a character or magnitude 
that it might implicate the EU's own responsibility for ensuring the 
application of certain provisions with respect to an individual 
bilateral instrument.

    Question. What would be, if any, the surviving treaty-based 
extradition relationship between the United States and an EU Member 
State if that EU Member State were to terminate its bilateral 
extradition treaty with the United States, but the U.S.-EU Extradition 
Agreement remained in force? What recourse would the United States have 
under such circumstances?

    Answer. Under those circumstances, there would no longer be a 
treaty-based extradition relationship between that Member State and the 
United States. The key provisions of the Agreement with the European 
Union apply, as Article 3 stipulates, ``in relation to bilateral 
extradition treaties'' between the United States and the individual 
Member States and do not constitute a free-standing extradition treaty 
relationship. In any event, the Agreement does not contain such 
fundamental extradition treaty provisions as the obligation to 
extradite. Thus, if an EU Member State were to terminate its bilateral 
extradition treaty with the United States, the provisions in the U.S.-
EU Agreement contained in a bilateral instrument would not suffice to 
constitute a free-standing legal basis for bilateral extradition 
relations.
    At the same time, the institutional relationship with the EU 
created by the U.S.-EU Agreement would remain. In addition to whatever 
bilateral diplomatic discussions the United States were to undertake 
with the terminating Member State, it could also utilize the treaty 
relationship with the European Union, as well as take steps outside the 
Agreement framework, to express its views and seek, as appropriate, EU 
intervention and assistance in the matter.
                                 ______
                                 

   Responses of Deputy Assistant Attorney General Bruce C. Swartz to 
                  Questions Submitted by Senator Biden

    Question 1. How would Article 4 of the U.S.-EU Mutual Legal 
Assistance Agreement operate in practice? Please work through an 
example of when you would hope to rely on this provision and explain 
exactly what information you would give to the relevant EU Member State 
in your request, what information you would receive in exchange, and 
how you would use that information in prosecuting an individual for a 
specific crime in a U.S. court.

    Answer. U.S. agents conducting a criminal investigation in the 
United States may learn that subjects of the investigation are using 
banks or other financial institutions to further their illegal 
activities, but may not know which foreign banks or institutions and 
which accounts are being used. To further the investigation, the agents 
would prepare a request directed to an appropriate EU Member State, 
transmitted through one of the designated U.S. law enforcement agencies 
(FBI, DEA, or ICE), requesting information as to whether the subject of 
the investigation maintains accounts at, or has conducted financial 
transactions unrelated to accounts through, banks or financial 
institutions in the EU Member State.
    The request for information would specify the identity of the 
subject and the nature of the investigation. If the request is directed 
to an EU Member State that has limited the scope of its assistance 
under this provision to terrorism and money laundering offenses (to 
correspond with the limits of U.S. assistance in reciprocal cases), 
then the U.S. request must relate to an investigation into terrorism or 
money laundering activities. If the request is directed to an EU Member 
State that has defined its obligations to assist more broadly, then the 
U.S. investigation may be related to a broader scope of criminal 
conduct, as permitted by the agreement with that particular EU Member 
State. The request would also provide factual information concerning 
the investigation sufficient to lead the competent authority in the EU 
Member State to reasonably suspect that the subject of the 
investigation has engaged in the criminal activity under investigation, 
that the information sought relates to the matter under investigation 
and that the banks or financial institutions in the requested state may 
have the information sought. To assist the EU Member State to narrow 
the breadth of the inquiry, the U.S. request would provide any specific 
information available to investigators that identifies the relevant 
banks or financial institutions or the transactions at issue.
    If the EU Member State concludes that it is appropriate and 
possible to comply with the request, it would undertake an inquiry 
through its financial sector to retrieve the information sought and 
respond to the request by either confirming that the suspected 
transactions took place or that the suspected accounts exist. They may 
also provide information identifying the specific banks where the 
accounts are held, the name of account holders and the corresponding 
account numbers. No records of accounts or transactions would be 
provided pursuant to this process. Because the response received would 
only be information concerning the existence of relevant accounts or 
transactions and not records themselves, if the U.S. agents and 
prosecutors conducting the investigation conclude that the information 
is relevant and probative, they would prepare a formal mutual legal 
assistance request seeking the production of certified copies of the 
relevant banking or financial records, so that the records may be used 
at trial. This request for record production would be submitted through 
the usual mutual legal assistance channels in place between the United 
States and the particular EU Member State (i.e., through the applicable 
Mutual Legal Assistance Treaty (MLAT) or by letter rogatory, if no MLAT 
is in force). The MLAT or letter rogatory request would be reviewed by 
the competent authority in the requested state to determine whether the 
request meets the legal standards for the production of the records 
sought. It is the certified copies of the records received through the 
MLAT process, rather than the information received through Article 4 of 
the U.S.-EU Mutual Legal Assistance Agreement, that will be used to 
prosecute a defendant.

    Question 2. You addressed in part at the hearing how the Department 
of Justice would treat requests made by our treaty partners under 
Article 4 of the U.S.-EU Mutual Legal Assistance Agreement so as to 
ensure that any privacy concerns would be minimized for U.S. citizens. 
Can you expand on this point and confirm that you will keep the 
committee informed regarding the implementation of this provision and 
any problems that develop, should these treaties be approved and 
ratified?

    Answer. Requests directed to the United States by EU Member States 
pursuant to Article 4 of the U.S.-EU Mutual Legal Assistance Agreement 
would be handled in a similar fashion as discussed above in the 
response to question 1. Upon receipt of a request from an EU Member 
State, the receiving agency (FBI, DEA, or ICE) would review it for 
conformity with the requirements of Article 4 and, only when satisfied 
that the request provides sufficient information that there is an 
ongoing investigation into terrorism or money laundering activity that 
there is sufficient factual information to reasonably suspect that the 
subjects of the investigation engaged in the criminal activity and that 
there may be information in U.S. banks or financial institutions that 
is relevant to the investigation, would refer the request to the 
Treasury Department's Financial Crimes Enforcement Network (FINCEN) to 
conduct the inquiry through the U.S. financial sector.
    As previously noted, information confirming the existence and 
identification of accounts or transactions in the United States would 
be provided pursuant to the mechanism established by Article 4 of the 
U.S.-EU Mutual Legal Assistance Agreement. However, the corresponding 
bank or financial records would not be available through this 
mechanism. Should the requesting state seek production of the 
corresponding bank or financial records for use in the foreign 
investigation or prosecution, the United States may produce the records 
upon receipt of an MLAT request or letter rogatory and after a U.S. 
Federal court orders their production, pursuant to the MLAT and Title 
28 United States Code, section 1782. This is the same procedure used 
currently with respect to foreign requests for records from U.S. 
banking and financial institutions. The U.S.-EU Mutual Legal Assistance 
Agreement makes no changes to this process. Both the information 
provided pursuant to Article 4 and any records produced subsequently, 
through the usual mutual legal assistance channels, may be used only as 
authorized by Article 9 of the U.S.-EU Mutual Legal Assistance 
Agreement, addressing limitations on use to protect personal and other 
data.
    The United States and the European Union have the obligation to 
take measures to avoid extraordinary burdens as the result of 
application of Article 4, and in cases in which such burdens 
nonetheless may result, they must consult immediately with a view to 
facilitating the application of the provision. To comply with these 
obligations, the Justice Department would monitor the implementation of 
this provision and would also report any problems to this committee.

    Question 3. In the bilateral MLATs between the United States and EU 
Member States, U.S. assistance with respect to the identification of 
bank information is limited to terrorism and money laundering activity, 
consistent with the scope of section 314(a) of the USA Patriot Act. 
Would it be possible for the United States to notify our treaty 
partners of additional crimes for which we would provide assistance 
with respect to the identification of bank information, without 
additional U.S. domestic legislation?

    Answer. As explained in the executive branch's report to the Senate 
on the Agreement, the United States, consistent with the scope of 
section 314(a) of the USA Patriot Act, chose to limit application of 
this measure to terrorist and money laundering activity punishable in 
both the requesting and requested States. The language permitting the 
scope of the article to be expanded to further activity at a later time 
was intended to expand the scope of assistance in the future in a 
manner corresponding to any future expansion of the scope of the 
measure under U.S. domestic legislation.

    Question 4. Paragraph 3 of Article 8 of the U.S.-EU Mutual Legal 
Assistance Agreement provides that States Parties ``shall take measures 
to avoid the imposition of extraordinary burdens on requested States 
through application of this Article.'' Please describe the sorts of 
measures the United States intends to take, and what measures other 
parties are expected to take, when complying with this article.

    Answer. An increasing number of MLATs permit requests for 
assistance to be made on behalf of regulatory agencies investigating 
activity with a view to referral for criminal prosecution. In our 
experience, there has not been a precipitous rise in the volume of 
requests as a result of the adoption of such provisions. Nonetheless, 
this article expands this approach to all 27 EU Member States at once, 
and while the U.S. and EU negotiators did not believe that 
extraordinary burdens would result through the application of the 
article, the actual effect could not be known with certainty at that 
time. Accordingly, we believed it would be prudent to include the same 
kind of safeguard clause that was included in the bank information 
article.

    Question 5. The Convention with Belgium for the Avoidance of Double 
Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on 
Income, and accompanying Protocol (Treaty Doc. 110-3), like the new 
Belgium MLAT, contains provisions regarding the sharing of information 
held by financial institutions.

    a. Can you explain to what extent, if any, the scope of these two 
            treaties' information-sharing provisions overlap?

    b. Please compare and contrast these two information-sharing 
            mechanisms. In what ways is the tax treaty mechanism more 
            effective and in what ways is the MILAT mechanism more 
            effective?

    c. Assuming there is some overlap in these provisions' scope of 
            application, in circumstances in which it is possible to 
            use either treaty mechanism, can you explain how government 
            officials will choose between these two mechanisms?

    Answer to 5a. The Convention with Belgium for the Avoidance of 
Double Taxation and the Prevention of Fiscal Evasion with Respect to 
Taxes on Income (the Double Taxation Treaty) is available for 
assistance (including the exchange of financial information) only with 
respect to those matters specified in that instrument (i.e., matters 
involving the administration of tax, including the prosecution of tax 
evasion). The MLAT between the United States and Belgium facilitates 
assistance--including obtaining records from banks and other financial 
institutions--in investigations and prosecutions of a broad range of 
criminal matters, including but not limited to tax offenses. 
Accordingly, to a minor extent, the Double Taxation Treaty and the 
United States-Belgium MLAT may overlap.
    With respect to the identification of previously unknown bank 
accounts and transactions set forth in Article 4 of the U.S.-EU Mutual 
Legal Assistance Agreement and Article 12 bis of the United States-
Belgium bilateral implementing instrument, the potential area of 
overlap, if any, would be extremely minor, given that both the United 
States and Belgium limited the banking information provision applied by 
operation of Article 4 of the U.S.-EU Mutual Legal Assistance Agreement 
to information exchange with regard to terrorism and money laundering 
activities.

    Answer to 5b. The two information sharing mechanisms are mutually 
exclusive in all respects except with regard to the investigation and 
prosecution of tax matters, which could be pursued under either treaty. 
The Double Taxation Treaty will be more effective in all noncriminal 
tax administration matters, inasmuch as the MLAT would not be available 
in those instances. The bilateral MLAT will be the more effective 
mechanism in criminal tax matters inasmuch as assistance in such cases 
is usually sought with a view to criminal prosecution and may involve 
assistance beyond the competence of the tax authorities designated to 
execute requests under the Double Taxation Treaty. For example, in 
addition to the tax offenses, the criminal investigation also may 
involve violations of Law beyond those covered by the Double Taxation 
Treaty.

    Answer to 5c. As noted above, the Double Taxation Treaty is 
applicable only with respect to matters of tax administration and 
investigations into tax offenses. The MLAT is an assistance mechanism 
with a broader scope. Whether it is appropriate to use one mechanism or 
the other might depend on whether the matter involves possible 
violations of law beyond the scope of the Double Taxation Treaty. If 
so, it may prove more efficient to make one request pursuant to the 
MLAT that covers all possible criminal violations.

    Question 6. In the 109th Congress, in connection with the 
consideration of several extradition treaties, the Department of 
Justice stated that ``[t]he Department of Justice has taken the 
position that the Fourth Amendment does apply in the context of the 
issuance of a warrant for provisional arrest pending extradition.''

    a. Is it the position of the Department of Justice that in issuing 
            a warrant for the provisional arrest of an individual 
            pending an extradition request, the fourth amendment of the 
            Constitution requires an independent judicial determination 
            of probable cause prior to issuing such a warrant?

    b. In making such a probable cause determination, is the proper 
            question whether there is probable cause to believe the 
            accused committed the offense(s) at issue in the request? 
            If not, what is the proper probable cause determination?

    c. In making the decision to enter into extradition treaties that 
            authorize provisional arrest, such as the ones now pending 
            before the committee, does the executive branch examine the 
            process by which our potential treaty partners issue arrest 
            warrants? If so, is a determination made in each case as to 
            whether the prospective treaty partner's process requires 
            an evidentiary showing that is equivalent to demonstrating 
            probable cause to believe a crime has been committed, 
            before issuing a warrant for an individual's arrest?

    Answer to 6a. The U.S.-EU Extradition Agreement does not contain an 
article regulating the standard of proof an EU Member State must 
satisfy in order to obtain the provisional arrest of a fugitive in the 
United States pending transmission of the full extradition request. As 
a result, the bilateral instruments implementing the U.S.-EU 
Extradition Agreement apply the standard set forth in the extradition 
treaty currently in force with the Member State concerned. The language 
in these treaties describing the information to be submitted in support 
of a request for provisional arrest varies. However, irrespective of 
the particular language of the treaty, it remains the case that the 
fourth amendment of the Constitution does apply.
    Exactly what categories and quantum of information are sufficient 
to meet fourth amendment requirements in the context of provisional 
arrest pending extradition is not well settled, and in particular, U.S. 
jurisprudence has articulated no uniform response to the question of 
whether probable cause that the person committed the offense must be 
provided at the provisional arrest stage. The law, however, is well 
established in holding that a standard of probable cause must be met at 
the subsequent stage of the extradition hearing, where the formal 
extradition request and the certified documents in support of the 
request are submitted. At the formal extradition hearing, in a case 
where the fugitive is sought for prosecution, the U.S. court must be 
satisfied, among other things, that there is sufficient evidence to 
find there is probable cause to believe the fugitive committed the 
crime at issue before the judge may certify that the fugitive is 
extraditable. Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir. 2006); Sindona 
v. Grant, 619 F.2d 167 (2d Cir. 1980). However, if the person has been 
convicted at a trial at which he was present, proof of the conviction 
itself satisfies the probable cause requirement and an independent 
review of the evidence of criminality is not required. See, e.g,. 
Spatula v. United States, 925 F.2d 615, 618 (2d Cir. 1991).
    Thus, the purpose of provisional arrest--detaining a fugitive for a 
limited period while the Requesting State amasses the documentation 
required to sustain a finding of probable cause at the extradition 
hearing--as well as existing case law affirming an abbreviated probable 
cause determination for extraditability where the fugitive has already 
been convicted, suggests that probable cause at the provisional arrest 
stage can be met with less than a full-blown determination of probable 
cause as to evidence of the criminality of the fugitive. That being 
said, however, in practice, the Department of Justice seeks as much 
information as possible to support a provisional arrest request, 
bearing in mind that foreign law enforcement officials are not expert 
in U.S. criminal procedure, and that information submitted in the 
context of an urgent provisional arrest is necessarily more abbreviated 
than in the context
of the full extradition request submitted to support a final judicial 
determination of extraditability.
    Our approach has been to present, at a minimum, information 
sufficient for a court to find probable cause to believe that the 
elements for extradition will be satisfied at the extradition hearing, 
such elements generally being that the person has been charged or 
convicted in the foreign jurisdiction, that the person before the court 
is the person so charged or convicted, that the offense is one for 
which extradition is provided under the applicable treaty (which 
necessarily also entails a finding that the conduct at issue would be 
an offense under U.S. law), and in the case of a person sought for 
trial, that the information provided by the treaty partner establishes 
probable cause to believe the person committed the offense. Thus this 
information should include information to identify the fugitive, 
particulars about the foreign charge or conviction and arrest warrant, 
a clear description of the offenses for which the fugitive is sought, 
and a summary of the facts of the case and, to extent possible, an 
indication of the evidence relied upon. But ultimately it is for the 
cowl to decide whether the information submitted is sufficient to 
justify the issuance of a warrant for provisional arrest, and we will 
strive to obtain as much information as possible so that the court will 
be satisfied that a warrant should issue.

    Answer to 6b. See above.

    Answer to 6c. Prior to and during treaty negotiations, the 
executive branch examines a number of questions, including the process 
by which our negotiating partner issues arrest orders. Our experience 
has shown that the U.S. probable cause standard is a unique outgrowth 
of the fourth amendment and the body of jurisprudence interpreting it. 
While some foreign legal systems come closer to considering the same 
factors than others, no foreign system adopts the same standard. 
Therefore, to ensure that there is sufficient indicia of a person's 
involvement in the crimes alleged prior to being extradited for trial 
from the United States, our treaties require that the Requesting 
State's extradition request include a description of the evidence that 
provides a reasonable basis to believe that he or she committed the 
offense for which extradition is sought, in addition to a copy of the 
arrest warrant. The phrase ``reasonable basis'' is commonly used in our 
modern treaties and is more easily understood by foreign prosecutors 
and judges, but it is meant to be the equivalent of the U.S. ``probable 
cause'' standard and is understood as such by our courts.

    Question 7. Several extradition treaties with EU Member States 
limit the number of days that a person who has been provisionally 
arrested can be detained without a formal extradition request having 
been submitted. For example, Article 11(4) of the extradition treaty 
with the Netherlands states as follows: ``Provisional arrest shall be 
terminated if, within a period of 60 days after the apprehension of the 
person sought, the Requested State has not received the formal request 
for extradition and the supporting documents mentioned in Article 9.'' 
The majority of EU Member State extradition treaties, however, appear 
to require each party to hold a person who has been provisionally 
arrested for a certain minimum period of time, but leave to each 
party's discretion whether to hold that person longer without having 
yet received the formal extradition request. For example, Article 10(4) 
of the extradition treaty with Belgian states as follows: ``A person 
who is provisionally arrested may be discharged from custody upon the 
expiration of 75 days from the date of provisional arrest pursuant to 
this Treaty if the executive authority of the Requested State has not 
received the formal request for extradition and the supporting 
documents required in Article 7.''

    a. What is the longest period of time the United States has held 
            someone who was provisionally arrested without having 
            received a formal extradition request from the country that 
            requested the person's provisional arrest?

    b. In the last 5 fiscal years (through FY 2007), how many people 
            have been detained on provisional arrest warrants, and what 
            has been the average length of time that a person has been 
            held under provisional arrest without receipt by the United 
            States of a formal extradition request?

    c. In the Department of Justice's view, what is the maximum length 
            of time that the United States can or should hold a person 
            who has been provisionally arrested, without a formal 
            extradition request from the country that requested the 
            person's provisional arrest?

    Answer to 7a. It is rare for extradition treaty partners to miss 
the treaty deadline for the presentation of documents in support of 
extradition. Because the fugitive is put on notice of the foreign 
country's intent to seek extradition when he or she is provisionally 
arrested, it is in the foreign country's best interest to present the 
supporting documentation within the treaty prescribed deadline or risk 
the possibility that the fugitive will flee once again, upon being 
released from custody. Because missed deadlines are rare, the 
Department of Justice does not track statistics to demonstrate how long 
a person who was provisionally arrested was held beyond the treaty 
mandated deadline absent presentation of the formal extradition 
documents.

    Answer to 7b. The Department of Justice does not have the 
statistics requested. Persons provisionally arrested are detained prior 
to receipt of the formal extradition request for no longer than the 
duration of time prescribed by the treaty. If the treaty specifies that 
a person shall be released after expiration of that time period without 
receipt of the documents, then the person would be released. If the 
treaty specifies that the person may be released after expiration of 
the treaty prescribed period if the formal extradition request is not 
received, then the person may petition the district court for release 
from custody. In such case, the Department of Justice either would 
oppose the petition for release if all indications were that receipt of 
the extradition documents was imminent, or not oppose the release if 
the available information suggested that the formal extradition request 
would not be forthcoming in the near future. It would be within the 
judge's discretion whether to release the person or maintain the 
detention. If the person is released, the extradition treaties usually 
specify that a subsequent re-arrest may be requested if the formal 
extradition request arrives at a later time.

    Answer to 7c. The Department of Justice takes the position that it 
is appropriate to hold persons in accordance with the provisions of the 
particular treaty; and the maximum length of detention depends on the 
provisions of the particular treaty. Rarely does this time period 
exceed 60 days, although a few treaties do specify slightly longer 
periods. In such cases, the longer time period is intended to make 
special accommodation for translation of potentially voluminous 
extradition documents into the language of the arresting country; which 
must be accomplished, together with certification and transmission, 
within the time specified by the treaty. Whether it is appropriate to 
exceed the treaty specified maximum would depend on whether the treaty 
envisions a discretionary extension of that time and the circumstances 
in a particular case. For example, if the formal extradition documents 
have been transmitted but unavoidably delayed and it appears that they 
will be presented within a short period of time (days), then a court 
might conclude that extension of the person's detention for a few days 
is appropriate when balanced against the fact that re-arrest may be 
sought when the documents arrive and there is a significant risk that 
the fugitive would flee in the interim. However, it is worth restating 
that missed treaty deadlines are relatively rare and persons are rarely 
held beyond the treaty prescribed time periods.

    Question 8. The United States has an existing extradition treaty 
with each EU Member State. In the last 5 years, have there been any 
diplomatic or legal problems with regard to the implementation of any 
of these treaties? In other words, are the treaties operating as 
intended, or have there been significant problems in securing 
extradition of fugitives to or from the United States?

    Answer. In general, the treaties are operating as intended, in an 
atmosphere of mutual cooperation, and there have not been significant 
legal or diplomatic problems. We expect that the streamlined and 
updated provisions of the U.S.-EU Extradition Agreement will further 
improve the extradition relationship of the United States with the EU 
Member States.

                                 

      
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