TESTIMONY OF

SAMUEL M. WITTEN

ASSISTANT LEGAL ADVISER FOR

LAW ENFORCEMENT AND INTELLIGENCE

U.S. DEPARTMENT OF STATE

BEFORE THE COMMITTEE ON FOREIGN RELATIONS

UNITED STATES SENATE

ON EXTRADITION TREATIES WITH BELIZE, PARAGUAY,

SOUTH AFRICA, AND SRI LANKA,

MUTUAL LEGAL ASSISTANCE TREATIES WITH CYPRUS, EGYPT, FRANCE, GREECE,
NIGERIA, ROMANIA, THE RUSSIAN FEDERATION, SOUTH AFRICA, AND UKRAINE,

THE INTER-AMERICAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
WITH RELATED OPTIONAL PROTOCOL,

STOLEN VEHICLE TREATIES WITH BELIZE, COSTA RICA, DOMINICAN REPUBLIC,
GUATEMALA, AND PANAMA,

THE INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD, AND

PROTOCOL AMENDING THE 1950 U.S.-IRELAND CONSULAR CONVENTION

SEPTEMBER 12, 2000

Mr. Chairman and members of the Committee:

I am pleased to appear before you today to testify in support of 21
treaties for international law enforcement cooperation, as well as a
protocol to the 1950 Consular Convention between the United States and
Ireland. The treaties, which have been transmitted to the Senate for
advice and consent to ratification, fall into five categories:

‑‑ extradition treaties with Belize, Paraguay, South Africa, and Sri
Lanka.

> ‑‑ bilateral mutual legal assistance treaties ‑‑ or \"MLATs\" ‑‑ with
> Cyprus, Egypt, France, Greece, Nigeria, Romania, the Russian
> Federation, South Africa, Ukraine, and a multilateral Inter-American
> MLAT and related protocol negotiated under the auspices of the
> Organization of American States.
>
> \-- treaties for the return of stolen vehicles with Belize, Costa
> Rica, Dominican Republic, Guatemala and Panama. The treaties with
> Costa Rica, Guatemala and Panama also cover the return of stolen
> aircraft.
>
> \-- a multilateral Inter-American prisoner transfer treaty negotiated
> under the auspices of the Organization of American States; and
>
> \-- a Protocol amending the 1950 Consular Convention Between the
> United States and Ireland to provide exemption from all taxes on
> purchases by diplomatic and consular missions, members of such
> missions and their families.

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 treaties first, followed by the
treaties covering stolen vehicles, the transfer of prisoners, and the
consular convention.

The growth in transborder criminal activity, especially violent crime,
terrorism, drug trafficking, arms trafficking, trafficking in persons,
the laundering of proceeds of criminal activity, including organized
crime and corruption, generally has confirmed the need for increased
international law enforcement cooperation. Extradition treaties and
MLATs are essential tools in that effort.

The negotiation of new extradition and mutual legal assistance treaties
is an important part of the Administration's many efforts to address
international crime, as reflected in the International Crime Control
Strategy, which was promulgated in May of 1998. That Strategy recognizes
the increasing threat of international crime to our national security.
One important measure to better address this threat is to enhance the
ability of U.S. law enforcement officials to cooperate effectively with
their overseas counterparts in investigating and prosecuting
international criminal cases. Replacing outdated extradition treaties
with modern ones and negotiating extradition treaties with new treaty
partners is necessary to create a seamless web of mutual obligations to
facilitate the prompt location, arrest and extradition of international
fugitives. Similarly, mutual legal assistance treaties are vitally
needed to provide witness testimony, records and other evidence in a
form admissible in criminal prosecutions. The instruments before you
today will be important tools in achieving this goal.

[EXTRADITION TREATIES]{.underline}

I will first address the extradition treaties currently before the
Committee. As you know, under U.S. law, fugitives can only be extradited
from the United States pursuant to authorization granted by statute or
treaty. The treaties pending before the Committee will update our
existing treaty relationships with four important law enforcement
partners. These updated treaties are part of the Administration\'s
ongoing program to review and revise older extradition treaty
relationships, many of which are extremely outdated and do not include
many modern crimes or modern procedures.

Two of these treaties, with Belize and Sri Lanka, will replace existing
treaty relationships between the United States and these former British
territories. The U.S. extradition relationship with Belize is currently
governed by a 1972 treaty between the United States and United Kingdom
and the relationship with Sri Lanka is governed by a 1931 U.S.-U.K.
treaty. The other two treaties will also replace existing relationships
-- the South Africa treaty updates a treaty from 1947 and the Paraguay
treaty modernizes a relationship from 1973. With the passage of time,
these older treaties are not as effective as the modern treaties before
the Committee today in ensuring that all fugitives may be brought to
justice.

All four extradition treaties contain several noteworthy provisions that
will substantially serve our law enforcement objectives.

First, these treaties define extraditable offenses to include conduct
that is punishable by imprisonment or deprivation of liberty for a
specified minimum period, typically more than one year, in both states.
This is the so‑called \"dual criminality\" approach. Our older treaties,
including those in force with Paraguay, South Africa, and Sri Lanka,
provide for extradition only for offenses appearing on a list contained
in the instrument. As time passes, these lists have grown increasingly
out of date. The dual criminality approach obviates the need to
renegotiate treaties to cover new offenses in instances in which both
states pass laws to address new types of criminal activity.

Second, these four treaties expressly permit extraditions whether the
extraditable offense is committed before or after their entry into
force. This provision is particularly useful and important, since it
will ensure that persons who have already committed crimes can be
extradited under the new treaties from each of the new treaty partners
after the treaty enters into force.

Third, these treaties all contain a provision not contained in the
current treaty relationships that permits the temporary surrender of a
fugitive to the Requesting State when that person is facing prosecution
for, or serving a sentence on, charges within the Requested State. This
provision can be important to the Requesting State so that, for
example: 1) charges pending against the person can be resolved earlier
while the evidence is fresh; or 2) where the person sought is part of a
criminal enterprise, he can be made available for assistance in the
investigation and prosecution of other participants in the enterprise.

These treaties also address two of the most difficult issues in our
extradition treaty negotiations ‑‑ extradition of nationals of the
Requested State and extraditions where the fugitives may be subject to
the death penalty in the Requesting State.

As a matter of longstanding policy, the U.S. Government extradites
United States nationals and strongly encourages other countries to
extradite their nationals. All four of the treaties before the Committee
contemplate the unrestricted extradition of nationals by providing that
nationality is not a basis for denying extradition.

The treaty with Paraguay is in this respect particularly significant.
Article III of the Paraguay extradition treaty provides that
\"\[e\]xtradition shall not be refused on the ground that the person
sought is a national of the Requested State.\" This provision is
especially useful since it is likely that a relatively large percentage
of fugitives wanted by the United States in that country would be of
Paraguayan nationality. This treaty, and our treaties with Bolivia and
Argentina, which also permit extradition of nationals, and to which the
Senate gave advice and consent in 1996 and 1998, represent an important
breakthrough in our efforts to convince civil law countries in the
Western Hemisphere to oblige themselves to extradite their nationals to
the United States. We are already using these treaties as precedents in
our efforts with other nations in Latin America and elsewhere. In
practical terms, these treaties should help the United States to bring
to justice narcotics traffickers, regardless of nationality, who reside
or are found in these countries.

A second issue that often arises in modern extradition treaties involves
extraditions in cases in which the fugitive may be subject to the death
penalty in the Requesting State. A number of countries that have
prohibited capital punishment domestically, also, as a matter of law or
policy, prohibit the extradition of persons to face the death penalty.
To deal with this situation, or to address the possibility that in some
cases the United States might want to seek such assurances, a number of
recent U.S. extradition treaties have contained provisions under which a
Requested State may request an assurance from the Requesting State that
the fugitive will not face the death penalty. Provisions of this sort
appear in the extradition treaties with Paraguay, South Africa and Sri
Lanka. In our negotiations with Belize, it was agreed that the
possibility of the death penalty would not serve as a basis for the
denial of extradition.

# MUTUAL LEGAL ASSISTANCE TREATIES

[Overview]{.underline}

I will now comment briefly on the mutual legal assistance treaties with
Cyprus, Egypt,

France, Greece, Nigeria, Romania, the Russian Federation, South Africa,
and Ukraine, as well as the Inter-American Convention on Mutual
Assistance in Criminal Matters with Related Optional Protocol. The
Department of Justice will speak on these treaties at greater length.

These mutual legal assistance treaties before the Committee are similar
to thirty-six bilateral MLATs that have entered into force with
countries throughout the world. The U.S. Government\'s mutual legal
assistance treaty program is relatively new when compared with
extradition, but has fast become a central aspect of our international
law enforcement cooperation program. As a general matter, MLATs obligate
the Requested State to provide the Requesting State with certain kinds
of evidence, such as documents, records, and testimony, provided that
treaty requirements are met. Ratification of the MLATs under
consideration today will enhance our ability to investigate and
prosecute a variety of crimes, including violent crime, drug
trafficking, terrorism, and money laundering and other financial crimes.

All of the bilateral MLATs require the Contracting Parties to assist
each other in proceedings related to the forfeiture of the proceeds and
instrumentalities of criminal activity, to the extent such assistance is
permitted by their respective laws. Such assistance may prove invaluable
insofar as it is used to deprive criminals, including international drug
traffickers and members of organized crime, of the benefits of their
criminal activity. The bilateral MLATs also provide that forfeited and
seized assets or the proceeds of their sale may be transferred to the
other Party.

As is the case with all MLATs currently in force, there are exceptions
in all of these instruments to the obligation to provide assistance.
Although the language varies to a certain extent among the treaties, all
of the pending MLATs provide that requests for assistance may be denied
if their execution would prejudice the essential interests of the
Requested State. All of them also contain a useful provision that
ensures that our obligations under the treaty do not interfere with our
own domestic law enforcement efforts by providing that the Requested
State may postpone assistance if it determines that execution of a
request would interfere with an ongoing criminal investigation or
proceeding. For all of the treaties, the provisions relating to
procedures to be followed in making requests and the type of assistance
to be provided are similar to the other MLATs currently in force.

[Inter-American Convention and Related Optional Protocol]{.underline}

The Inter-American Convention on Mutual Assistance in Criminal Matters
will serve as a legal basis for mutual assistance in criminal matters
between the United States and any state that also becomes a party. This
Convention was negotiated at the Organization of American States
beginning in the mid-1980's, and was adopted and opened for signature by
the OAS General Assembly on May 23, 1992. It was signed on behalf of the
United States on January 10, 1995. The Convention was shaped largely
with the assistance of the United States, and is therefore in essential
ways similar to the U.S. Government's typical modern bilateral MLATs.
For example, it requires each party to identify a Central Authority for
issuing and receiving requests of assistance; details a broad range of
assistance that may be provided between the law enforcement authorities
of parties, such as taking testimony and serving legal documents; and
provides a list of bases for denial of assistance, such as where the
public policy or basic public interests of the requested state would be
prejudiced by granting the assistance. Unlike our typical modern mutual
legal assistance treaties, however, it will not serve as the legal basis
for asset sharing, such as the sharing of forfeited assets, which the
negotiators determined was best left for bilateral agreements.

We also recommend Senate advice and consent to the Optional Protocol
related to the Inter-American Convention on Mutual Assistance in
Criminal Matters. This Protocol was negotiated at the Organization of
American States in the early 1990's, was adopted and opened for
signature by the OAS General Assembly on June 11, 1993, and was signed
by the United States on January 10, 1995. While the OAS Convention will
be a valuable tool for obtaining assistance in a wide variety of
criminal matters, it contains certain limitations regarding assistance
in cases involving tax offenses. Most significantly, under Article 9(f)
of the Convention, a party may decline assistance in investigations and
proceedings involving certain tax offenses. While the United States
delegation consistently opposed this provision during the negotiation of
the Convention, it ultimately joined consensus on the Article as a
whole, but at the same time proposed an additional protocol to enable
assistance in tax matters. The United States considers criminal tax
investigations to be an important aspect of a State\'s overall strategy
for combating crime, and believes that such investigations are also an
increasingly important weapon in the battle against offenses such as
drug trafficking and organized crime. The first article of the Protocol
removes the discretion of Protocol signatories to refuse assistance on
the grounds that a tax offense is involved. The second article clarifies
that the limited dual criminality provision in Article 5 of the
Convention should be interpreted liberally in cases involving tax
offenses.

[Recommended Understandings Related to Inter-American Convention and
Related Optional Protocol]{.underline}

The Administration recommends that the United States include two
Understandings in its instrument of ratification for the Convention, and
one Understanding in its instrument of ratification for the Related
Optional Protocol. These Understandings, the proposed texts of which
were included in the Administration's transmittal of the Convention and
Related Optional Protocol to the Senate, would clarify the views of the
United States about certain provisions of the Convention and Protocol.

First, regarding Article 25 of the Convention (on limitations on the use
of information or evidence), we recommend an Understanding be included
in the United States instrument of ratification that the disclosure and
use limitations stated in Article 25 shall no longer apply if such
information or evidence is made public in a manner consistent with the
Article. When evidence obtained under the Convention has been revealed
publicly, in court records or otherwise, that information effectively
becomes part of the public domain and can be obtained by anyone. This
principle is explicit in most of our bilateral MLATs, and implicit in
the operation of the Convention, but since it was not addressed in the
text of the Convention we have determined it would be advisable to
include an Understanding to this effect in the U.S. instrument of
ratification.

Second, we recommend an Understanding be included in the United States
instrument of ratification for the Convention and the Protocol,
regarding Article 36 of the Convention and Article 3(5) of the Protocol.
These provisions make clear that the assistance and procedures set forth
in these instruments shall not prevent any of the Contracting Parties
from granting assistance to another Party through the provisions of
other international agreements, or bilateral treaties, or through the
provisions of national laws. The Parties also may provide assistance
pursuant to any bilateral arrangement, agreement, or practice that may
be applicable. The Understanding that would be included in each
instrument of ratification reaffirms these points.

A key provision of all MLATs is the creation of "Central Authorities" to
coordinate requests for assistance. For the United States, the Attorney
General or her designee is the Central Authority. Since the Department
of Justice implements these treaties, I will defer to Deputy Assistant
Attorney General Swartz in describing the other specific provisions of
these instruments and issues related to their implementation.

# STOLEN VEHICLE TREATIES 

Also before the Committee are stolen vehicle treaties with Belize, Costa
Rica, the Dominican Republic, Guatemala and Panama.

The U.S. stolen vehicle treaty program seeks to eliminate the
difficulties faced by owners of vehicles that have been stolen and
transported across international borders. Generally speaking, these
treaties establish procedures for the recovery and return of vehicles
that are documented in the territory of one party, stolen within its
territory or from one of its nationals, and found in the territory of
the other party. Many countries lack a sufficient institutional and
procedural framework for the repatriation of vehicles that were stolen
in other countries, and the stolen vehicle treaties remedy this
deficiency.

The United States currently has one such treaty in force, the Convention
between the United States of America and the United Mexican States for
the Recovery and Return of Stolen or Embezzled Vehicles and Aircraft of
1981. That treaty entered into force between the United States and
Mexico in 1983 and according to insurance industry estimates prompts the
return to the United States of approximately two thousand vehicles
annually. The five treaties currently before the Committee build on the
precedent with Mexico, and will create a legal basis for the return of
stolen vehicles from several other nearby countries. Like the 1981
treaty with Mexico, the treaties with Costa Rica, Guatemala, and Panama
also provide for the return of stolen aircraft.

We relied heavily on our experience under the 1981 Mexico treaty in
developing these new treaties with neighboring countries. Thus, all of
the new treaties contain provisions similar to those in the Mexico
treaty by providing procedures for the country that finds a vehicle
covered by the treaty to notify the other country that the vehicle has
been located and to provide an opportunity for the vehicle to be
returned once the owner has made a request. The treaties set deadlines
for action by the party receiving a request for the return of a vehicle
and give owners more time to claim vehicles than is provided for under
the U.S.-Mexico treaty. The treaties also provide that if the U.S.
government learns that the other party may have seized or impounded a
stolen vehicle but has failed to provide notification, the U.S.
government may seek official confirmation of the seizure or impoundment,
and request formal notification under the treaty. The other party is
then required to submit such notification or explain why notification is
not necessary.

The United States insurance industry strongly supports these treaties,
since it is typically subrogated to the ownership interests of U.S.
citizens or businesses whose vehicles have been stolen and taken
overseas. In fact, insurance industry representatives have informed us
that the mere negotiation and signature of several of the treaties now
before the Senate has already brought discernible improvements in the
cooperation of the foreign authorities abroad. Ratification and full
implementation of the treaties should significantly improve the return
of U.S. vehicles from the countries concerned.

# INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD 

The Committee also has before it the Inter-American Convention on
Serving Criminal Sentences Abroad. The purpose of this instrument is to
facilitate the transfer of persons sentenced in the United States and in
other states parties to their own nations to serve their sentences. The
Convention achieves this purpose by establishing procedures that can be
initiated by sentenced persons who prefer to serve their sentences in
their own countries. The means employed to achieve this purpose are
similar to those embodied in existing bilateral prisoner transfer
treaties in force between the United States and eight other countries
and Hong Kong, and the Council of Europe Convention, which now has over
40 parties.

The major advantages of concluding a multilateral convention with the
OAS member States are the establishment of uniform procedures and the
saving of resources that would be required to negotiate and bring into
force bilateral treaties with a large number of countries in the
hemisphere. Immediately upon U.S. ratification, this Convention would
establish a prisoner transfer relationship between the United States and
Venezuela, which has already ratified the Convention. Brazil, Ecuador
and Paraguay have all signed the Convention but have not ratified. Once
each of them completes its domestic ratification processes and becomes a
party, we would have new prisoner transfer relationships with them as
well. This would further enhance our ability to seek the return of
American citizen prisoners who want to serve their sentences in more
familiar surroundings and to return foreign prisoners who are in the
custody of U.S. prisons to other countries to serve their sentences,
subject to the consent of both parties and the prisoner. As other OAS
member States join the Convention, the number of countries with whom we
have prisoner transfer relationships will further expand and could
include countries such as Colombia, the Dominican Republic, Jamaica,
Haiti, El Salvador, and Guatemala.

The United States can become a party to the Convention without any
additional legislation. However, to clarify our interpretation of
certain provisions of the Convention, and to ensure that documents for
the United States are provided in English, we recommend that the U.S.
instrument of ratification include one Understanding and one
Reservation. The proposed texts of the Understanding and Reservation
were included in the Administration\'s transmittal of the Convention to
the Senate.

The proposed Understanding, which relates to Articles III, IV, V and VI,
would ensure that the Convention may be implemented consistent with
existing legislation pertaining to prisoner transfer, by clarifying that
the consent of all parties \-- the prisoner, the sentencing state, the
receiving state, and, where applicable, the sub-federal state or
province \-- is required prior to the transfer. Although this
requirement is implied by the Convention text, consent by all parties is
such a fundamental feature of our prisoner transfer regime that we
believe it is appropriate to clarify the text in this manner.

The proposed Reservation relates to Article V(7) and sets forth a
requirement that before a U.S. national may be returned, the sentencing
state must provide English language versions of a certified copy of the
sentence, including information on the amount of time already served and
the time off that could be credited, and any other information the
receiving state deems necessary. These documents must also be provided
in the language of the sentencing state. The reservation further
provides that the United States would do the same for the benefit of the
requesting state in like circumstances. This Reservation will greatly
facilitate U.S. implementation of the Convention.

# PROTOCOL TO 1950 U.S.-IRELAND CONSULAR CONVENTION

Finally, also before the Committee is a Protocol to amend the 1950
Consular Convention Between the United States of America and Ireland.
The Protocol will expand the scope of tax exemption under the Consular
Convention to provide for reciprocal exemption from all taxes, including
Value Added Taxes (VAT) on goods and services for the official use of
the mission or for the personal use of mission members and families. It
will provide financial benefit to the United States, both through direct
savings on embassy purchases of goods and services as well as through
lowering the cost of living for United States Government employees
assigned to the U.S. Embassy in Dublin.

Mr. Chairman, we very much appreciate the Committee\'s decision to
consider these important treaties.

I will be happy to answer any questions the Committee may have.