[Senate Executive Report 112-3]
[From the U.S. Government Publishing Office]


112th Congress                                              Exec. Rept.
                                 SENATE
 1st Session                                                      112-3

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



 
              MUTUAL LEGAL ASSISTANCE TREATY WITH BERMUDA

                                _______
                                

   August 30 (legislative day, August 2), 2011.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                    [To accompany Treaty Doc. 111-6]

    The Committee on Foreign Relations, to which was referred 
the Treaty between the Government of the United States of 
America and the Government of Bermuda Relating to Mutual Legal 
Assistance in Criminal Matters, signed at Hamilton on January 
12, 2009 (the ``Bermuda MLAT'') (Treaty Doc. 111-6), having 
considered the same, reports favorably thereon with one 
declaration, as indicated in the resolution 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 resolution of advice and consent.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................1
III. Major Provisions.................................................2
 IV. Entry Into Force.................................................4
  V. Implementing Legislation.........................................5
 VI. Committee Action.................................................5
VII. Committee Comments...............................................5
VIII.Text of Resolution of Advice and Consent to Ratification.........5


                               I. Purpose

    The purpose of the treaty is to formalize a U.S. mutual 
legal assistance relationship with Bermuda.

                             II. Background

    In order for the United States to successfully prosecute 
criminal cases with transnational aspects, it is often 
necessary to obtain evidence or testimony from a witness in 
another country. While U.S. federal courts may issue subpoenas 
to U.S. nationals overseas, they lack the authority to subpoena 
foreign nationals found in other countries or the authority to 
subpoena evidence in a foreign country. In addition, 
effectuating service of a subpoena to U.S. persons abroad may 
prove difficult. In the absence of an applicable international 
agreement, the customary method for obtaining evidence or 
testimony in another country is via a ``letter rogatory,'' 
which tends to be an unreliable and time-consuming process. 
Furthermore, the scope of foreign judicial assistance might 
also be limited by domestic information-sharing laws, such as 
bank and business secrecy laws, or be confined to evidence 
relating to pending cases rather than preliminary, 
administrative, or grand jury investigations conducted prior to 
the filing of formal charges.
    Mutual Legal Assistance Treaties (``MLATs'') are designed 
to overcome these problems. MLATs are international agreements 
that establish a formal, streamlined process by which States 
may gather information and evidence in other countries for use 
in criminal investigations and prosecutions. While the specific 
provisions of MLATs vary, they generally obligate treaty 
partners to take steps on behalf of a requesting treaty partner 
when certain conditions are met. MLATs typically contain 
provisions concerning the sharing of collected information 
between parties, locating and identifying persons and potential 
witnesses within the parties' territories, the taking of 
depositions and witness testimony, and the serving of subpoenas 
duces tecum on behalf of a requesting treaty party. Such 
provisions provide for more effective acquisition of evidence 
and testimony than letters rogatory and do so in a manner 
designed to be compatible with the admissibility requirements 
of the requesting State's courts. MLATs also typically contain 
provisions concerning the allocation of costs between parties, 
the form and content of requests for legal assistance, the 
designation of national law enforcement agencies or officials 
responsible for treaty administration, and the grounds for 
which a treaty party may refuse to provide legal assistance. 
Increasingly, MLATs have been used as a tool to combat 
terrorism.
    Entry into force of the Bermuda MLAT would formalize the 
U.S.-Bermuda legal assistance relationship and create a binding 
international legal obligation on Bermuda and the United States 
to provide assistance covered by the treaty. The Bermuda MLAT 
closely resembles other legal assistance agreements approved by 
the Senate. Like other MLATs, the treaty would require each 
party, upon request, to assist in: obtaining testimony or other 
forms of evidence; executing searches and seizures; providing 
assistance in forfeiture proceedings; and permitting the 
temporary transfer of persons. The treaty also provides for 
denial of assistance under certain circumstances, and a 
consultation requirement to resolve differences over the 
treaty's interpretation. The treaty is self-executing.

                         III. Major Provisions

    A detailed paragraph-by-paragraph analysis of the treaty 
may be found in the Letter of Submittal from the Secretary of 
State to the President, which is reprinted in full in Treaty 
Document 111-6. Key provisions of the treaty are summarized 
below.

Scope of Assistance

    As with most MLATs, the treaty generally obligates the 
parties to assist each other in criminal investigations, 
prosecutions, and related law enforcement proceedings, as well 
as civil or administrative proceedings that may be related to 
criminal matters, such as forfeiture proceedings. Article 1(2) 
of the treaty provides a non-exhaustive list of assistance to 
be rendered by each Party, which includes the taking of 
evidence, such as testimony, documents, records and items or 
things, on a requesting party's behalf by way of judicial 
process; executing searches and seizures; effecting service of 
judicial documents; freezing and forfeiting assets or property; 
permitting the temporary transfer of persons in custody to the 
requesting party; and other agreed-upon forms of assistance.

Denial of Assistance

    Article 3 of the treaty sets forth a list of circumstances 
under which a requested State may deny legal assistance to the 
requesting State. The majority of grounds listed are commonly 
found in MLATs to which the United States is a party, such as 
the ground in Article 3(1)(a) permitting the denial of a 
request when it would impair the requested State's sovereignty, 
or other essential interests, or would be contrary to public 
policy. The administration advises that Bermuda has indicated 
it intends to interpret this provision as permitting it to deny 
assistance in cases involving capital punishment. While the 
United States has acknowledged Bermuda's intention to interpret 
the provision in this manner, it is also the position of the 
United States, as with other countries where the same issue has 
arisen, that assistance should still be possible on a case-by-
case basis through discussion with Bermuda in relevant cases. 
In response to a question from Senator Cardin concerning 
whether this provision would pose a significant hurdle to 
cooperation, Deputy Assistant Attorney General Bruce Swartz 
provided a written response for the record indicating that this 
issue ``is not unique to Bermuda,'' that ``a number of 
countries in Europe and other parts of the world have raised 
similar concerns about providing mutual legal assistance to the 
United States in cases potentially involving the death 
penalty,'' and that ``in most cases the United States has been 
successful in resolving any concerns about the death penalty 
and obtaining the requested assistance.''

Form and Content of Requests

    Article 4 prescribes the form and contents of requests 
under the treaty. Pursuant to Article 4(1), a request for 
assistance must be in writing; however, there is no limit on 
the means by which written responses are transmitted, for 
example, by mail, fax, or e-mail.

Costs Associated with Assistance

    Article 6 provides that the requested State must pay all 
costs relating to the execution of a request, with certain 
exceptions. For instance, where the requested party incurs 
expenses of an extraordinary nature that were unexpected and 
incurred through no fault of its own, the parties' Central 
Authorities shall consult to determine whether the requesting 
party shall pay some or all of these expenses. According to the 
State Department, the parties during negotiations discussed 
their understanding that the situations contemplated in Article 
6(2)-(3) would occur rarely. These provisions on allocation of 
costs are common in MLATs to which the United States is a 
party.

Procedures To Be Employed

    Articles 8-17 set forth in detail the procedures to be 
employed in the case of specific types of requests for legal 
assistance. Most of these provisions are similar to those in 
other MLATs entered into by the United States. A few provisions 
unique to the Bermuda MLAT are worth noting. First, most MLATs 
to which the United States is a party provide for the safe 
conduct of persons invited to appear before the authorities of 
the requesting party, when such persons are not in the custody 
of the requested party. Article 10(3) of the Bermuda MLAT 
provides that the Central Authority of the requesting party 
may, at its discretion, determine that a person whose 
appearance within its territory is requested shall not be 
subject to service of process, detention, or other restriction 
of liberty on account of acts or convictions preceding the 
person's departure from the requested party. Article 10(4) 
provides that the safe conduct described in Article 10(3) shall 
cease 15 days after the requesting party notifies the requested 
party that the person's presence is no longer required, or the 
person, having left the requesting party, thereafter 
voluntarily returns.
    With regard to search and seizure assistance, under 
Bermudan evidentiary standards, there must be ``reasonable 
grounds for suspecting'' that an offense was committed before 
Bermuda could execute a search and seizure request made by the 
United States. Article 15(2) permits the requested party to 
refuse a request relating to conduct in which the powers of 
search and seizure would not be exercisable in the requested 
party's territory in similar circumstances. According to the 
State Department, Bermuda indicated during MLAT negotiations 
that under its domestic laws, the powers of search and seizure 
are not available with respect to tax crimes.

Treaty as First Resort

    Article 18 of the Bermuda MLAT provides that neither party 
shall enforce any compulsory measure requiring action against a 
person located in the territory of the other party with respect 
to a matter where assistance could be granted under the MLAT, 
unless the party proposing enforcement has first attempted in 
good faith to obtain assistance pursuant to the treaty. This 
provision is fairly unusual in MLATs negotiated by the United 
States, with only a handful containing similar provisions. It 
should be noted that although this provision requires that a 
party first seek assistance under the MLAT through a formal 
request or preliminary consultation to assess the availability 
of assistance under the treaty, it does not preclude 
enforcement of a compulsory measure through other means when 
initial attempts to receive assistance under the treaty reveal 
that an MLAT request would be unsuccessful or result in a delay 
that has the potential to jeopardize the underlying law 
enforcement action.

                          IV. Entry Into Force

    The Treaty will enter into force on the date of the latter 
written notification by the Parties that they have completed 
their internal legal requirements for entry into force. For the 
United States, this means ratification after the advice and 
consent of the Senate. The Treaty expressly applies to past 
conduct--that is, once in force, it shall apply to all requests 
between the Parties regardless of when the acts or omissions 
constituting the offense occurred.

                      V. Implementing Legislation

    The Treaty is self-executing and will not require further 
implementing legislation.

                          VI. Committee Action

    The committee held a public hearing on the Convention on 
June 7, 2011. Testimony was received from Bruce Swartz, Deputy 
Assistant Attorney General (Criminal Division) from the Justice 
Department, and Clifton M. Johnson, Assistant Legal Adviser for 
Law Enforcement and Intelligence at the Department of State. A 
transcript of the hearing is included as Annex 2 to Executive 
Report 112-1.
    On July 26, 2011, the committee considered the Convention 
and ordered it favorably reported by voice vote, with a quorum 
present and without objection.

                        VII. Committee Comments

    The Committee on Foreign Relations believes that the MLAT 
with Bermuda, which would enhance law enforcement cooperation 
between the United States and Bermuda, would further U.S. 
efforts in fighting transnational crime, including money 
laundering and narco-trafficking. Accordingly, the committee 
urges the Senate to act promptly to give advice and consent to 
ratification of this Treaty, as set forth in this report and 
the accompanying resolution of advice and consent.

                  A. DECLARATION ON THE SELF-EXECUTING
                          NATURE OF THE TREATY

    The committee has included one declaration in the 
recommended resolution of advice and consent. The declaration 
states that the Treaty is self-executing, as is the case 
generally with Mutual Legal Assistance Treaties. Prior to the 
110th Congress, the committee generally included such 
statements in the committee's report, but in light of the 
Supreme Court decision in Medellin v. Texas, 128 S. Ct. 1346 
(2008), the committee determined that a clear statement in the 
Resolution is warranted. A further discussion of the 
committee's views on this matter can be found in Section VIII 
of Executive Report 110-12.

     VIII. Text of Resolution of Advice and Consent to Ratification

    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 
Treaty between the Government of the United States of America 
and the Government of Bermuda Relating to Mutual Legal 
Assistance in Criminal Matters, signed at Hamilton on January 
12, 2009 (the ``Treaty'') (Treaty Doc. 111-6), 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:
    The Treaty is self-executing.