[Senate Executive Report 114-12]
[From the U.S. Government Publishing Office]


114th Congress       }                            {        Exec. Rept.
                                 SENATE
 2nd Session         }                            {          114-12

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



 
MUTUAL LEGAL ASSISTANCE TREATY WITH THE PEOPLE'S DEMOCRATIC REPUBLIC OF 
                                ALGERIA

                                _______
                                

               September 13, 2016.--Ordered to be printed

                                _______
                                

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

                                 REPORT

                    [To accompany Treaty Doc. 114-3]

    The Committee on Foreign Relations, to which was referred 
the Treaty between the Government of the United States of 
America and the Government of the People's Democratic Republic 
of Algeria on Mutual Legal Assistance in Criminal Matters, 
signed at Algiers on April 10, 2010 (Treaty Doc. 114-3), 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.......................................................2
III. Major Provisions.................................................3
 IV. Entry Into Force.................................................4
  V. Implementing Legislation.........................................4
 VI. Committee Action.................................................4
VII. Committee Recommendation and Comments............................5
VIII.Text of Resolution of Advice and Consent to Ratification.........5


                               I. Purpose

    The Treaty between the United States of America and Algeria 
on Mutual Legal Assistance in Criminal Matters (the ``MLAT with 
Algeria'' or ``Treaty'') is one of a series of modern mutual 
legal assistance treaties that have been negotiated by the 
United States and is designed to provide a formal basis for 
mutual cooperation between the United States and Algeria on law 
enforcement matters so as to enhance the ability of the United 
States to investigate and prosecute crimes.

                             II. Background

    In order for the United States to successfully prosecute 
criminal activity that is transnational in scope, 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. The term ``letter 
rogatory'' is generally used to refer to a formal communication 
in writing that is sent by a court in which an action is 
pending to a court in a foreign country, requesting that 
certain evidence or the testimony of a person within the 
latter's jurisdiction be formally obtained for use in the 
requesting court's pending action. The State Department advises 
that the letter-rogatory process can often take a year or more 
and, unless undertaken pursuant to an international agreement, 
compliance is a matter of judicial discretion. 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. 
Execution of letters rogatory is usually carried out under the 
judicial norms of the responding country. However, responding 
country norms may be insufficiently compatible with U.S. law 
such that the resulting evidence is rendered inadmissible in a 
U.S. court. Mutual Legal Assistance Treaties (``MLATs'') are 
designed to overcome these and similar problems.
    MLATs are international agreements that establish a formal, 
streamlined process by which governments may gather information 
and evidence in other countries for use in criminal 
investigations and prosecutions. The United States is currently 
a party to several dozen MLATs. 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, the location and identification of 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.\1\ Such provisions provide for the easier acquisition of 
evidence and testimony than via 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.
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    \1\A subpoena duces tecum is a specific form of subpoena, also 
called a ``subpoena for the production of evidence.'' It is a subpoena 
issued by a court ordering the parties named to appear and to produce 
tangible evidence for use at a hearing or trial.
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    The Algeria MLAT is the first such treaty between the 
United States and Algeria and covers any matter within the 
jurisdiction of the parties' judicial authorities. In the 
absence of this Treaty, there is no obligation to provide 
assistance to the United States and thus this Treaty would 
substantially enhance the ability of the United States to 
investigate and prosecute crimes for which such assistance is 
necessary. A detailed paragraph-by-paragraph analysis of this 
treaty may be found in the Letter of Submittal from the 
Secretary of State to the President on this instrument, which 
is reprinted in full in Treaty Document 114-3. What follows is 
a brief summary of some key provisions.

                         III. Major Provisions

    As with most MLATs, the MLAT with Algeria generally 
obligates the parties to assist each other in criminal 
investigations, prosecutions, and related law enforcement 
proceedings, as well as civil or administrative proceedings 
such as forfeiture proceedings that may be related to criminal 
matters. Article 1(2) 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 requests for searches and seizures; 
effecting service of judicial documents; sharing certain 
obtained information or evidence with a requesting State; 
freezing, forfeiting and recovery of assets or property; 
permitting the temporary transfer of persons in custody to the 
requesting party; and other agreed-upon forms of assistance.
    Article 3 sets forth a list of circumstances under which a 
requested State may deny legal assistance to the requesting 
State. Some of the grounds listed are commonly found in MLATs 
to which the United States is a party, such as the ground in 
Article 3(1)(c) permitting the denial of a request when it 
would prejudice the requested State's sovereignty, security, 
public order, or other essential interest; and the military 
offense exception in Article 3(1)(a).
    Although the United States generally does not impose a 
``dual criminality'' requirement upon mutual legal assistance 
requests, Article 3(1)(d) of the Algeria Treaty includes a 
provision stating that if the Requested state determines that 
the conduct that is the subject of the request is not a crime 
in the Requested State and execution of the request would 
require a court warrant or other compulsory measure as grounds 
for denial of a request. Before denying assistance under the 
provisions of Article 3, the Requested Party is obligated to 
consult with the Requesting Party to consider whether 
assistance can be given subject to such conditions as the 
Requested Party may deem necessary.
    Article 4 prescribes the form and contents of requests 
under the Treaty. Article 5 generally obligates both Parties' 
Central Authority (as designated under Article 2) to do 
everything in their power to execute requests and to respond to 
reasonable requests by the Central Authority on the progress 
towards execution of the request.
    Article 6, which addresses the allocation of costs 
associated with providing assistance, provides that the 
requested State must pay all costs relating to the execution of 
a request, with certain exceptions. Under the Algeria Treaty, 
these costs include fees of experts and witnesses, the costs of 
translation, interpretation, and transcription, the costs of 
utilizing video conferencing, and certain travel expenses. This 
allocation of costs is common in MLATs to which the United 
States is a party. Article 7 governs confidentiality and use of 
the information. The Central Authority of the Requesting Party 
shall use its best efforts to keep confidential such 
information provided subject to conditions specified by the 
Requested Party.
    Articles 8-16 set forth in detail the procedures to be 
employed in the case of specific types of requests for legal 
assistance. Articles 8,9, 10, and 11 govern the control and 
collection of evidence, such as documents and records and the 
taking of testimony. Article 11 provides for safe conduct of a 
person voluntarily appearing in the requesting State. Such 
person shall not be subject to prosecution, detention or any 
restriction of personal freedom for conduct that preceded entry 
into the territory. This guarantee of safe conduct only lasts 
fifteen days after the person is informed his presence is no 
longer required.
    Article 12 provides that, in the case of a transfer of 
someone in custody, the receiving party has the authority and 
obligation to keep the transferred person in custody, unless 
permitted by the sending party to do otherwise. Further, it 
must return the person back to the custody of the sending party 
as soon as circumstances permit, unless otherwise agreed 
between the parties.
    Article 18 requires the requested State to assist the 
requesting State with measures to freeze or cause the 
forfeiture of assets that constitute or are derived from 
proceeds of a crime or are instrumentalities or intended to be 
used in the commission of a crime.
    Article 20 provides for consultations to promote the most 
effective use and application of the Treaty.

                          IV. Entry Into Force

    In accordance with Article 22, this Treaty shall enter into 
force upon the exchange of instruments of ratification between 
the United States and Algeria. Once in force, however, the 
Treaty shall apply to all requests presented after the date of 
entry into force and the Algeria Treaty continues to cover 
requests made prior to the date of termination.\2\
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    \2\See Articles 22(2) and 23(4).
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                      V. Implementing Legislation

    This treaty, which is self-executing, will be implemented 
by the United States in conjunction with applicable federal 
statutes, including 18 U.S.C. Sec. 1782. No additional 
legislation is needed for the United States to fulfill its 
obligations under this Treaty.

                          VI. Committee Action

    The Committee reviewed the Treaty at a briefing on May 23, 
2016, at which representatives of the Departments of State and 
Justice were present. The Committee considered the Treaty on 
June 23, 2016 and ordered it favorably reported by voice vote, 
with the recommendation that the Senate give its advice and 
consent to the ratification of the Treaty subject to the 
declaration set forth in the resolution of advice and consent 
to ratification.

               VII. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that the MLAT 
with Algeria, which would enhance law enforcement cooperation 
between the United States and Algeria, would further U.S. 
efforts in fighting terrorism and transnational crime. 
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.
    The committee has included a proposed declaration in the 
resolution of advice and consent, which states that the MLAT 
with Algeria is self-executing. This declaration is consistent 
with statements made in the Letter of Submittal from the 
Secretary of State to the President on this instrument\3\ and 
with the historical practice of the committee in approving 
mutual legal assistance treaties.\4\ The Senate continues to 
include statements regarding the self-executing nature of 
treaties in resolutions of advice and consent in light of the 
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346 
(2008). The committee continues to believe 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.
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    \3\Treaty Doc. 114-3 at p. V (stating that ``The [MLAT with 
Algeria] is self-executing. It will not require further implementing 
legislation.'').
    \4\The committee has consistently expressed the view that mutual 
legal assistance treaties are self-executing. See, e.g., Exec. Rept. 
107-15 at p. 6 (stating that ``[i]it is anticipated that, for the 
United States, the [Mutual Legal Assistance Treaty with Belize] will be 
``self-executing.''); and Exec. Rept. 109-14 at p. 6 (stating that 
``[t]he committee notes that the provisions of the [Mutual Legal 
Assistance Treaties with Germany and Japan] are self-executing.'').
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              VIII. Text of the 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 United States of America and the People's 
Democratic Republic of Algeria on Mutual Legal Assistance in 
Criminal Matters, signed at Washington on February 20, 2015 
(Treaty Doc. 114-11), subject to the declaration of section 2.

SEC. 2. DECLARATION.

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:
          The Treaty is self-executing.

                                  [all]