114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

INTERNATIONAL COOPERATION IN FIGHTING
TRANSNATIONAL ORGANIZED CRIME: SPECIAL EMPHASISON MUTUAL LEGAL ASSISTANCE AND EXTRADITIONJohn E. Harris *I. INTRODUCTION
I should like to start my examination of
the major features of international
cooperation by sharing with you some
information about my organization. The
Office of International Affairs (OIA) in the
Criminal Division of the United States
Department of Justice was establishedtwenty one years ago this week, and we
specialize in processing requests to andfrom the United States for extradition andmutual legal assistance. We also
participate with the State Department in
the drafting of new extradition and mutual
legal assistance treaties, the negotiation ofinternational conventions, and engaging in
general efforts to improve international law
enforcement cooperation. The staff of OIA
consists of nearly eighty men and womenin our Washington, D.C. headquarters aswell as attorneys and associated staff insix foreign countries. On any given day,
we are in the process of handling about
6,000 requests to and from the U.S., forextradition and mutual assistance, and thenumber of cases grows every year, due inlarge part to the growth of transnationalorganized crime.
For purposes of our discussion today, I
will use the phrase “transnationalorganized crime” to include offenses
committed by organized bands or groupsof criminal in which national borders arecrossed in connection with the crime. Thus,
it covers the most familiar operations of the* Director, Office of International Affairs, Criminal
Division, U.S. Department of Justice, United Statesof America

traditional organized crime gang, or
Mafias, including terrorist attacks, drugtrafficking, money laundering,counterfeiting, financial fraud, aliensmuggling, and trafficking in women andchildren. Offenses falling within thisdefinition would include many of thesecrime are carried out daily by organizedcrime groups Russia, Asia, the Middle East,
Mexico, Colombia, and Nigeria — and theUnited States. In addition, transnationalorganized crime includes crimes committed
wholly within one country by an organizedcriminal group and the defendant flees toa foreign country to avoid prosecution orpunishment. For example, in a recent casein Florida, the assassin for a drugtrafficking ring, who committed several
cold-blooded murders of several membersof a rival drug ring. Although the killer
committed all of his murders within thestate of Florida, where his drug ring
operated, he fled to England as soon as he
was identified. After lengthy efforts, theman was finally extradited back to the U.S.,
pleaded guilty, and is serving a life
sentence. This is an example of a localorganized crime matter that acquired
international connections andcomplications through the flight of thecriminal.
We all know that the world is becoming
smaller and more inter-related every day.
Advances in telecommunications,transportation, and technology make itpossible for people in every nation to feel
more interconnected than at any time inhistory. The same breakthroughs intelecommunications (including the growthof the Internet and the development of133

RESOURCE MATERIAL SERIES No. 57
advanced new systems of wireless andsatellite-based communications) allow
virtually every person on the planet to haveaccess to anyone else. These advances thathave so greatly facilitated trade, travel, andtelecommunications have also benefitedinternational criminal activity. In addition,
the breakdown of the former Soviet Union
has created a number of new nations thatare still striving to develop truly effective
law enforcement systems.
With this in mind, how significant is the
problem of transnational organized crime?
Let me offer some facts that illustrate thematter for you.
— All $48 billion worth of cocaine andheroin in the United States each year
originates abroad, and is brought hereby transnational organized crimegroups.
— Two thirds of all counterfeit currency
detected in the U.S. is actually createdoutside of the United States.
— About 200,000 of the automobiles
stolen in the U.S. each year, worth
over a billion dollars, are taken
outside our borders for sale abroad.
— Theft of trade secrets from U.S.
companies by their foreign businesscompetitors resulted in losses to the
U.S. economy estimated at $18 billion
in 1997.
— The production and sale of counterfeit
products and other forms of copyright,
trademark, and patent infringement
cost U.S. companies over $23 billion
annually.
— Organized terrorist groups continue
to maim and kill the innocent andunsuspecting. Americans seem to bea favorite target, and the recent, tragic

134

bombing of our Embassies in Kenya
and Tanzania, in which hundreds ofinnocent people lost their lives, show
clearly that the work of theseorganized terrorist groups can bedeadly.
In response to this growing threat fromtransnational organized crime, manynations have stepped up their efforts toconfront and contain transnationalorganized crime. You have already heard
from Mr. Nilsson about the response by theEuropean Union and the Council of Europe
to this problem, and Dr. Plachta will tell
you more about the efforts of the United
Nations to develop a global treaty in thisarea. The United States has supported allof these efforts.
I would like to take just a moment tomention the scope of the United States’internal response to the problem.
President Clinton announced at the United
Nations in 1995 that internationalorganized crime groups pose not just a law
enforcement problem, but a threat to ournational security. He also issued
Presidential Decision Directive 42, which
directs government agencies to use allavailable legal means to attack
international crime. The Directive alsocommands U.S. law enforcement,
diplomatic, intelligence, and defense
agencies to work together with othergovernments to identify and punishtransnational criminnal, to eliminate
sanctuaries for international criminals.
There have been a number of importantchanges within the U.S. Government, ande v e n w i t h i n m y o w n a g e n c y, t h e
Department of Justice, in recent years dueto this heightened emphasis on
strengthening our cooperative
relationships with foreign law enforcement.
— Attorney General Janet Reno meets

114TH INTERNATIONAL TRAINING COURSE
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foreign officials virtually every week
to discuss ways to improve efforts tocombat international crime. In justthe last ten days, for instance,
Attorney General Reno met with the
Minister of Justice of Argentina andagreed to identify high-priority
mutual legal assistance matters forexpedited handling. She held similar
meetings with the Minister of Justiceof Indonesia and the Minister ofJustice of Latvia, and, at her
direction, other Justice Department
officials met with high level officials
from Mexico, Colombia, and othercountries. She is deeply committed
to this issue, and has made it a highpriority within the JusticeDepartment.
Developing
relationships with other countries
traditionally was the job of the State
Department, but in recent years thegrowth of transnational organizedcrime has made it essential that wein law enforcement work directly andcooperatively with foreign
governments to build these
relationships ourselves.
— The U.S. law enforcement agencies
all have expanded their operations
overseas. The FBI now has 32
overseas offices, and JusticeDepartment law enforcement
agencies have nearly 7,000 active
investigations at their overseas
offices.
— The Justice Department has
increased the number of senior
attorneys to U.S. embassies in orderto provide advice on specificorganized crime investigations and toassist in negotiating andimplementing mutual legal
assistance and extradition treaties
and other international instruments.
These attorneys, who report to me,

work closely with both the U.S, law
enforcement agency representatives
at the embassy and with the lawyers
in the Ministry of Justice or Attorney
General’s Office of the host country.
— The Justice Department’s Criminal
Division, which traditionally focusedon crimes occurring inside the U.S.,
now spends a very significant portionof its time working on international
criminal cases, such as international
terrorism, drug trafficking, money
laundering, export control, andcomputer crimes. OIA has rapidly
become one of the largest componentsof the Criminal Division, and thenegotiation and implementation of
extradition and mutual legal
assistance agreements has become
our largest activity.
We know, however, that no single nation
can successfully combat internationalorganized crime alone. Therefore, in
addition to negotiating bilateral treaties
and agreements, Justice Department
lawyers have been actively working withmultilateral organizations to agree on
procedures and instruments to combat
transnational organized crime.
— We have been very active in the G8(Canada, the United Kingdom, Italy,
Japan, France, Germany, the UnitedStates, and Russia) which is chaired
this year by Japan. The G8’s Senior
Expert Group on Transnational
Organized Crime, also known as the
Lyons Group, has developed 40 anticrime recommendations, and is
working to implement them globally.
This group will meet in Tokyo next
week, to continue its efforts.
— We have also been active in the
Organization of American States(where we helped develop OAS

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RESOURCE MATERIAL SERIES No. 57
conventions against corruption andfirearms trafficking), at theOrganization for Economic
Cooperation and Development(where we helped in negotiation of anOECD convention requiring states topunish the payment of bribes toforeign government officials ininternational business transactions),
at the Council of Europe (where weare working on COE conventions on
computer crime and on public
corruption) and at the United
Nations, where the UN Organized
Crime Convention is being developed.
These negotiation initiatives are very
important, and show us what the future
may hold for transnational law
enforcement. Let me mention, however,two or three recent cases that illustrate
how the Justice Department’s efforts
involve practical measures in actual
criminal investigations as well as global
negotiations.
II. BOMBINGS IN AFRICA
In 1998, truck bombs destroyed the U.S.
Embassies in Nairobi, Kenya, Dar Es
Salaam, Tanzania, and in the process
dozens of Americans and hundreds of
Kenyan and Tanzanian citizens were killed
or injured. Within hours of the bombings,
the first of nearly 300 FBI agents flew toAfrica to begin intensive investigation,
alongside their Kenyan and Tanzaniancounterparts. Forensic examinations andinterviews of suspects were conductedalmost around the clock. Federalp r o s e c u t o r s f r o m N e w Yo r k a n d
Washington were on the ground withindays to help direct the U.S. investigators
in Nairobi and Dar Es Salaam. Today,
hundreds of FBI agents continue to workon the investigation, both in the U.S. andabroad, and their efforts have been helped
tremendously by leads from the136

intelligence community. Recently, formal
criminal charges were filed in the U.S.
courts against several members of the
Usama bin Laden criminal organization
responsible for the bombings, and one
suspect is now in custody in the United
Kingdom awaiting extradition to the U.S.
Many of you know that investigators
recently discovered links between theorganization and efforts to commit
additional acts of terror, this time on U.S.
soil. In December, 1999, the FBI arrested
a member of this organization who had
smuggled explosives into the U.S. from
Canada. U.S. and Canadian investigators,
working closely together under our mutual
legal assistance treaty with that country,
uncovered additional information about theorganization, and at our request Canada
has arrested another suspect, who is being
held for extradition.
III. DRUG TRAFFICKING
In late 1999, U.S. Drug Enforcement
Administration agents, working closelywith police in Colombia and Mexico,completed an extensive investigation of
cocaine and heroin trafficking cartels. As
a result, the three Governments
simultaneously arrested dozens of suspects
in the U.S., Mexico, and Colombia, andseized drug proceeds and properties worth
millions of dollars. As a result of thisoperation, about thirty of Colombia’s mostpowerful drug traffickers are currently injail awaiting extradition to the U.S. Using
the applicable mutual legal assistancetreaties and agreements, the three
countries will share with each other theevidence needed to convict the offenders
and to prove in court that the assets seized
are subject to confiscation.
In these two cases, you can see both thecurrent nature of the threat posed byinternational crime, and the corresponding
globalization of the law enforcement

114TH INTERNATIONAL TRAINING COURSE
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response. None of these investigations
could have been successful had not thepolice and investigators in the affected
countries worked together.
IV. MECHANISM FOR
INTERNATIONAL COOPERATION
I would now like to describe the key
features of modern mechanisms forinternational law enforcement cooperation.
A. Police to Police Assistance
Most international cooperation isconducted by direct liaison between police
in the requesting and requested state. Thisis sometimes referred to as “cop to cop”
cooperation, and is usually predicated not
on a specific treaty or international
agreement, but rather on the basis of good
will, mutual respect, and shared interestin combating crime. A good example ofsuccessful “cop to cop” cooperation is theinvestigation of the Kenyan and Tanzanianembassy bombings that I mentioned
earlier.
It is largely to facilitate this kind ofcooperation that the United States has
stationed law enforcement agents at its
embassies in other countries, positioned to
conduct ongoing and close liaison with theircounterparts in those countries. The FBI
has agents, called “legal attaches” or“legats,” in 32 countries. The Drug
Enforcement Administration and theCustoms Service have their agents in aneven larger number of countries. Similarly,
a number of foreign countries havestationed their law enforcement agents in
the United States for the same purpose.
For example, the National Police Agencyof Japan has agents posted in Washington
who have been quite effective in advancing
the interests of Japanese police in criminal
investigations.
A major vehicle for advancing “cop tocop” cooperation is the International
Criminal Police Organization, or
INTERPOL. This organization iscomprised of “National Central Bureaus”
in each of its members state’s police
apparatus, and it serves as a conduit for
the rapid and secure transmission ofinternational criminal investigative
information.
When it works, “cop to cop” cooperation
can be fast, efficient, and refreshingly freeof formalities. However, there are many
instances in which a request for assistancethat relies solely on the generosity and good
will of the requested state’s police simply
goes unanswered.
B. Letters Rogatory
While police to police liaison can be
extremely useful, there are many instancesin which the police of the requested state
can do little without obtaining a court orderor other compulsory process. In these
instances, the police will need theassistance of a judge.
A letter rogatory is a request from ajudge in one country to a judge in anotherin which the former asks the latter to use
the requested state’s judicial power toassist the requesting judge. While theletter rogatory process was developed toenable judges to aid judges, a judge in therequesting state may issue letters rogatory
on behalf of the police or prosecutors in thatcountry. Virtually every country has
legislation for execution of letters rogatory,or permits its judges to execute them as amatter of comity. In the United States, theapplicable legislation is Title 28, UnitedStates Code, Section 1782, a copy of which
is attached to this paper.
Once the requesting state’s judge signs
the letter rogatory, it is transmitted via
diplomatic channels, a process that cantake many weeks or months. Upon arrival,

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it first is reviewed by the requested state’s
Ministry of Foreign Affairs. This process
which can add a degree of uncertainty tothe process, because the diplomatic corps
is generally considered free to refuse to act
on a letter rogatory if it feels that theassistance sought would be inconsistent
with the requested state’s public policy. If
the request is accepted by the Ministry ofForeign Affairs, it usually is thenforwarded to the Ministry of Justice orAttorney General’s chambers in therequested state, which transmits therequest to a judge for execution. The judge
generally is under no obligation to executethe request, and if he or she does executethe request it will be done in strict
compliance with the law of the requested
state. This can add another level of
uncertainty to the process, because the lawof the requested state may be very different
from the law of the requesting state withrespect to such matters as theauthentication of evidence, the manner inwhich evidence is taken or preserved, theprivileges that witnesses may raise to block
execution of the request. In someinstances, the law of the requested state
may contain restrictions on cooperationthat seriously impede efforts to execute therequest. For example, some countries do
not execute letters rogatory prior to thefiling of formal criminal charges in therequesting state — a serious limitation,
since sometimes the requesting state needs
the evidence sought to determine whether
charges should be filed. Another example:
in some countries, the bank secrecy laws
do not empower a judge to obtain bankrecords sought in a letter rogatory. Oncethe request has been executed (or the judge
has decided not to execute it), the results
are usually sent back to the requesting
judge via diplomatic channels.
The letter rogatory process has
occasionally produced spectacularly
successful results for us. In some cases in138

which letters rogatory were issued, therequested judge successfully executed it
immediately, and bank records or otherevidence sought in the request wereavailable in as little as one week. One
successful example is the case many years
ago of Roger FRY and Sicilia FALCONE,
two men who operated a marijuana andcocaine smuggling ring so huge that it
garnered $60 million in two years. Close
cooperation between narcotics
investigators in the U.S. and Mexico
resulted in FALCONE’S arrest in Mexicoand FRY’s simultaneous arrest in Detroit,
Michigan. Records seized during Falcone’sarrest showed that he and FRY had several
bank accounts in Switzerland, so U.S. sent
a letter rogatory to Switzerland for recordsof the accounts. The Swiss provided therecords, which proved the movement of
hundreds of thousands of dollars in drugmoney and the Swiss to seize the money.
FRY learned, on the morning that his trial
was to start, that U.S. prosecutors had
obtained copies of his Swiss bank records,
and he immediately agreed to plead guilty
to all charges.
More often, however, the letter process
is not very successful, and the prosecutor
or police officer who generates a letter
rogatory may wait many frustrating
months, or years, only to find that therequested evidence is not produced. We
have many cases in which evidence soughtby letters rogatory was not supplied untillong after the trial has been completed.
There have been some recent efforts tomake the letters rogatory system work
more efficiently and effectively. The
Council of Europe has negotiated a treaty
that updates its 1957 convention on themutual execution of letters rogatory. The
European Union has begun discussions on
establishing a “judicial network” which, it
is hoped, will expedite execution of lettersrogatory between European nations

114TH INTERNATIONAL TRAINING COURSE
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covered by the network. We are monitoringthese efforts closely, but it does not appear
that these efforts have yet borne fruit.

negotiations that were initiated in largepart through the wisdom and hard work of
UNAFEI Director Kitada.

C. Mutual Legal Assistance Treaties
An alternative to letters rogatory isprovided by the development of mutual
legal assistance treaties (MLATs). The
United States has thirty-one (31) MLATs
in force, with the following countries:
S w i t z e r l a n d , Tu r k e y, I t a l y, t h eNetherlands, Canada, Mexico, theBahamas, the United Kingdom (regarding
the Cayman Islands and other Caribbean
dependent territories), Thailand, Morocco,
Spain, Argentina, Jamaica, Uruguay,
Panama, the Philippines, the United
Kingdom, Hungary, Korea, Austria, Israel,
Antigua, Lithuania, St. Vincent and the
Grenadines, Grenada, Latvia, Poland,
Australia, Trinidad, Belgium, and mostr e c e n t l y, t h e H o n g K o n g S p e c i a l
Administrative Region. We have signed
MLATs with another twenty-three (23)countries, and these treaties will enter into
force in the next few months. These fiftyfour treaties cover most European
countries and many of the world’s the major“bank secrecy” jurisdictions. Of course,many other countries have begun active
campaigns to negotiate MLATs, too,
notably the Philippines, Korea, Canada,
Australia, and the United Kingdom. The
rapidly expanding network of bilateral
MLATs will soon rival the network of
extradition treaties.

Each MLAT places an unambiguous
obligation on each party to provide
assistance in criminal investigations in theother party. MLATs entitle the requestingstate to assistance in:

The United States has made thenegotiation of MLATs in Asia a particularhigh priority, in part to maximize ourability to address transnational organizedcrime problems, such as the Chinese
Triads. For that reason, we have MLATs
in force with Thailand, the Philippines, theRepublic of Korea, Australia, and the Hong
Kong Special Administration Region. The
United States is currently in the processof negotiating an MLAT with Japan —(1) acquiring bank records and otherfinancial information;(2) questioning witnesses and taking
statements or testimony;(3) obtaining copies of government
records, including police reports;(4) serving documents; transferring
persons in custody for purposes ofcooperation;(5) conducting searches and seizures;and(6) freezing and repatriating stolen
property or proceeds of crime.
Each MLAT also permits any other formof assistance not prohibited under the lawof the requested state, and we successfullyu s e d t h e M L ATs t o h a n d l e m o r esophisticated and difficult requests. For
example, we have made or received
requests under MLATs to take thetestimony of witnesses via real-timesatellite videolink; to search for and seize
information from computer hard drives, orInternet Service Providers; to conduct
undercover operations, or conduct
wiretaps, where permitted by law; to seize
and repatriate stolen artwork or
archeological treasures worth millions ofdollars; or to place threatened persons in
our witness protection programmes.
While some MLATs differ a bit fromothers, most of them have five key
components that make the processing of
M L AT r e q u e s t s e a s i e r a n d m o r e
predictable than other mechanisms forcooperation:

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RESOURCE MATERIAL SERIES No. 57
1. Scope - Each MLAT specifies thescope of the obligation to provide
assistance. All require thatcooperation must be provided at theearliest stage of the investigation,prior to the filing of formal charges,
thus eliminating one problem withsome letters rogatory.

early stages of an investigation it isdifficult to predict what crime
ultimately will be charged.
Accordingly, the majority of our
MLATs do not require dual criminality
unless the request is for a search andseizure or for the confiscation ofassets.

2. Bases for Denial - Each MLAT
specifies the grounds on whichassistance can be denied. MLATs
typically allow denial of requests thatappear to involve a political offenses
or a military offense not recognizedunder the ordinary criminal law, or if
the request would violate theconstitution of the requested state. All
MLATs permit denial of requests thatwould violate the “essential interests”
of the requested state interests suchas national security or basic public
policy. By specifying the grounds onwhich requests can be denied, theMLATs bring predictability to theinternational cooperation process.

3. Use limitations - All of the MLATs
contain a very clear obligation not to
use information or evidence supplied
under the MLAT for any case orinvestigation other than that for
which the information or evidence wasrequested. This kind of provision issimilar to the rule of specialty inextradition matters, and helps assure
the requested state that the
information provided will be used only
for proper purposes.

It should be noted that some of ourearliest MLATs (with Switzerland andthe Netherlands) contained a list of
the crimes for which assistance could
be granted, and permitted denial of
the request if the case involved acrime not on the list. We quickly
learned that this list approach was not
helpful, and impeded cooperation in
major cases in which the laws of thetwo countries were different but there
was no “essential interest” served byrefusal to grant the aid. Therefore,s u b s e q u e n t M L ATs p e r m i t t e d
assistance to be granted for any crimefor which there is “dual criminality,”i.e., that it is an offense in bothrequesting and requested state. We
soon concluded that even that is too
restrictive a rule for mutual legal
assistance, particular because in the140

4. Central Authority - One key
innovation of the MLATs is that they
oblige each party to name a “Central
Authority” i.e., an agency or person
designated to see to the prompt
execution requests from the otherparty. In virtually every MLAT, theCentral Authority is the Ministry ofJustice or the Attorney General ofeach state.
A good Central Authority cannot be
merely a “mailbox” through which
requests are transmitted. On thecontrary, the Central Authority is
expected to take an active role ininsuring the each request is executed.
Our practical experience has beenthat a good Central Authority is a key
part of to the success or failure of an
MLAT.
5. Asset Forfeiture - The mostsuccessful MLATs all make provision
for cooperation in cases in which
unlawfully obtained assets are located114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
in the requested state. Many of these
MLATs also provide for sharing theconfiscated assets between the parties
to the treaty. The United States has
used the MLATs to recover well over$300 million in drug proceeds andother illegally acquired funds. I
should point out that we do not keep
all of this money. Instead, our practiceis to share confiscated funds with our
MLAT partners who assisted us in
obtaining the evidence needed toprosecute the case.
All of our most recent MLATs containthese five ingredients, and these elements,
among other, help make the MLAT process
an especially effective mechanism fortransnational cooperation. In the twentyy e a r s s i n c e o u r f i r s t M L AT, w i t h
Switzerland, entered into force, the UnitedStates had made and received several
thousand requests under MLATs fromvarious countries. We in OIA have madeand executed these requests at the sametime that we processed hundreds ofrequests for evidence by letters rogatory
and other processes, so we have had a good
opportunity to see and compare theoperation of the various processes. Thereis no doubt in my mind that MLATs provide
a more efficient and more reliable basis forinternational cooperation in evidencegathering than many of the othermechanisms available. It is of course
possible that the United Nations
Tr a n s n a t i o n a l O r g a n i z e d C r i m e
Convention currently being negotiated in
Vienna will provide an even more efficient
vehicle for managing international
cooperation. Only time will tell us whether
that is true or not.
V. INTERNATIONAL EXTRADITION
I would like to say a word or two about
the role of international extradition in thebattle against transnational organizedcrime.

The applicable United States legislation
on international extradition is found at
Title 18, United States Code, Section 31813196. These statutes are attached to thisarticle.
Our laws require that there be an
extradition treaty in force before
extradition can take place. We haveextradition treaties with about one
hundred and eleven (111) countries. In thepast few years, we have signed new treaties
with about forty (40) countries in Asia andelsewhere, including Australia, the Hong
Kong Special Administrative Region, India,
Korea, Malaysia, the Philippines, and Sri
Lanka. We also have treaties in force withJapan, Thailand, and other important
Asian nations.
There are three issues that typicallyarise regarding these extradition treaties:
1. Extraditable offenses: Our older
extradition treaties each contain a list of
the crimes for which extradition can besought or granted. Newer treaties define
extraditable offenses as any crime that is
punishable in both states by more than one
year ’s imprisonment. During treaty
negotiation, we sought and received
assurances that the new treaty will permit
extradition for organized crime related
crimes.
2. Evidence Needed: Common law
countries, like the United Kingdom andCanada, traditionally refused to extradite
unless the request was accompanied by“such evidence as would justify committal
for trial in the requested state.” Therequesting state must show sufficientevidence to establish a “prima facie case”
against the offender, i.e., enough evidence
to persuade a judge in the requested statethat the offender could have been convictedin that state. Civil law countries, such as
France and Germany, usually did not deem141

RESOURCE MATERIAL SERIES No. 57
it necessary or proper to review the weightof the evidence against the offender, andare satisfied that a properly certified
warrant for arrest is outstanding. Civil law
states often had difficulty meeting the“prima facie case” standard, and criticized
the common law states for this rule.
Recently, some common law countries suchas the U.K. have amended their law toeliminate the prima facie case rule andadopt the civil law approach, at least in
dealings with European Union countries.
The U.S., however, is one common law
country that never followed the “prima
facie case rule” in the first place. Our
extradition jurisprudence requires only
“probable cause,” or just enough evidence
to issue an arrest warrant. This is a very
low standard, equivalent to what is needed
to issue a search warrant. Most of ournewest extradition treaties use thisprobable cause standard.

strongly that criminals should never escapepunishment solely because of nationality,
and that generally offenders should be triedin the community most affected by thecrime.
We are gratified to see many civil law
countries coming to the same conclusion.
In 1996, Mexico extradited one its citizens
to the U.S. for the first time in history, andin 1999, Colombia resumed extraditing its
nationals to us after a hiatus of nearly adecade. Bolivia, Argentina, Uruguay all
signed extradition treaties with the U.S.
that require extradition of nationals to agreater or lesser degree. Mandatory
extradition of nationals is provided for inmost new U.S. extradition treaties, and weare currently negotiating several treaties
with European countries that will containsuch provisions.
VI. CONCLUSION

3. Extradition of nationals: One of themost troubling issues in modern
extradition practice is the question of theextent to which states extradite their own
citizens. Common law countries
traditionally draw no distinction between
their nationals and others for purposes ofextradition. Many civil law countries,
however, either bar themselves fromextraditing their citizens altogether, or
permit such extradition only in exceptional
cases. Nations that refuse to extradite
their citizens become safe havens for theircitizens who commit crimes in othercountries. Sometimes, nations that refuse
to extradite their citizens offer to prosecute
these offenders in lieu of extradition, butsuch prosecutions have proven to be
extremely difficult as a practical matter,extremely expensive. These prosecutions
also tend to impose heavy, unfair burdens
on the victims of the crime, who arecompelled to travel great distances atconsiderable expense and inconvenience inorder to see justice done. The U.S. feels

142

In conclusion, please allow me to pointout that the global battle to confront anddestroy transnational organized crime is acontest that demands the best of all of us,
as participants in the criminal justicesystem. The stakes are enormous.
President Clinton has said that“[International criminals] jeopardize theglobal trend toward peace and freedom,
undermine the fragile new democracies,
sap the strength from developing countries,[and] threaten our efforts to build a safer,more prosperous world.” For these reasons,
it is important that we make the most ofopportunities like this conference, to learn
all we can about the tools available forinternational cooperation, and take theselessons with us to our homes for use inbuilding the brighter future we and ourfamilies deserve.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS§1782. Assistance to foreign andinternational tribunals and tolitigants before such tribunals(a) The district court of the district inwhich a person resides or is found mayorder him to give his testimony orstatement or to produce a document orother thing for use in a proceeding in aforeign or international tribunal,
including criminal investigations
conducted before formal accusation.
The order may be made pursuant to aletter rogatory issued, or request made,by a foreign or international tribunal
or upon the application of any
interested person and may direct thatthe testimony or statement be given,or the document or other thing be
produced, before a person appointed by
the court. By virtue of his appointment,
the person appointed has power toadminister any necessary oath andtake the testimony or statement. The
order may prescribe the practice andprocedure, which may be in whole orpart the practice and procedure of theforeign country or the international
tribunal, for taking the testimony orstatement or producing the document
or other thing. To the extent that theorder does not prescribe otherwise, thetestimony or statement shall be taken,
and the document or other thing
produced, in accordance with theFederal Rules of Civil Procedure.
A person may not be compelled to give
his testimony or statement or to
produce a document or other thing inviolation of any legally applicableprivilege.
(b) This chapter does not preclude a person
within the United States fromvoluntarily giving his testimony orstatement, or producing a document orother thing, for use in a proceeding in
a foreign or international tribunal

before any person and in any manner
acceptable to him.
(June 25, 1948, c. 646, 62 Stat. 949;
May 24, 1949, c. 139, § 93, 68 Stat. 103;
Oct. 3, 1964, Pub.L. 88-619, § 9(a), 78
Stat. 997; Feb. 10, 1996, Pub.L. 104106, Div. A, Title XIII, § 1342(b), 110
Stat. 486.)§ 3181. Scope and limitation ofchapter(a) The provisions of this chapter relating
to the surrender of persons who havecommitted crimes in foreign countries
shall continue in force only during theexistence of any treaty of extradition
with such foreign government.
(b) The provisions of this chapter shall be
construed to permit, in the exercise ofcomity, the surrender of persons, otherthan citizens, nationals, or permanent
residents of the United States, whohave committed crimes of violenceagainst nationals of the United States
in foreign countries without regard to
the existence of any treaty of
extradition with such foreign
government if the Attorney Generalcertifies, in writing, that —(1) evidence has been presented by
the foreign government thatindicates that had the offenses
been committed in the UnitedStates, they would constitutecrimes of violence as defined
under section 16 of this title; and(2) the offenses charged are not of apolitical nature.
(c) As used in this section, the term
“national of the United States” has themeaning given such term in section
101(a)(22) of the Immigration andNationality Act (8 U.S.C. 1101(a)(22)).
(June 25, 1948, c. 645, 62 Stat. 822; Apr.
24, 1996, Pub.L. 104-132, Title IV,§443(a), 110 Stat. 1280.)

143

RESOURCE MATERIAL SERIES No. 57§ 3182. Fugitives from State or
Territory to State, District, orTerritory
Whenever the executive authority of any
State or Territory demands any person asa fugitive from justice, of the executive
authority of any State, District, or Territory
to which such person has fled, and producesa copy of an indictment found or anaffidavit made before a magistrate of any
State or Territory, charging the person
demanded with having committed treason,
felony, or other crime, certified as authentic
by the governor or chief magistrate of theState or Territory from whence the person
so charged has fled, the executive authorityof the State, District, or Territory to whichsuch person has fled shall cause him to bearrested and secured, and notify the
executive authority making such demand,or the agent of such authority appointed
to receive the fugitive, and shall cause thefugitive to be delivered to such agent when
he shall appear. If no such agent appears
within thirty days from the time of thearrest, the prisoner may be discharged.
(June 25, 1948, c. 645, 62 Stat. 822; Oct.
11, 1996, Pub.L. 104-294, Title VI,§601(f)(9), 110 Stat. 3500.)§ 3183. Fugitives from State,
Territory, or Possession into
extraterritorial jurisdiction ofUnited States
Whenever the executive authority of any
State, Territory, District, or possession of
the United States or the Panama Canal
Zone, demands any American citizen or
national as a fugitive from justice who has
fled to a country in which the United Statedexercises extraterritorial jurisdiction, andproduces a copy of an indictment found oran affidavit made before a magistrate ofthe demanding jurisdiction, charging the
fugitive so demanded with having
committed treason, felony, or other offense,
certified as authentic by the Governor or
chief magistrate of such demanding144

jurisdiction, or other person authorized toact, the officer or representative of theUnited States vested with judicial
authority to whom the demand has been
made shall cause such fugitive to bearrested and secured, and notify the
executive authorities making suchdemand, or the agent of such authority
appointed to receive the fugitive, and shallcause the fugitive to be delivered to suchagent when he shall appear.
If no such agent shall appear within
three months from the time of the arrest,
the prisoner may be discharged.
The agent who receives the fugitive into
his custody shall be empowered totransport him to the jurisdiction fromwhich he has fled.
(June 25, 1948, c. 645, 62 Stat. 822.)§ 3184. Fugitives from foreigncountry to United States
Whenever there is a treaty or convention
for extradition between the United States
and any foreign government, or in cases
arising under section 3181(b), any justiceor judge of the United States, or any
magistrate authorized so to do by a courtof the United States, or any judge of a courtof record of general jurisdiction of any
State, may, upon complaint made underoath, charging any person found within his
jurisdiction, with having committed within
the jurisdiction of any such foreign
government any of the crimes provided forby such treaty or convention, or provided
for under section 3181(b), issue his warrant
for the apprehension of the person socharged, that he may be brought before
such justice, judge, or magistrate, to theend that the evidence of criminality may
be heard and considered. Such complaint
may be filed before and such warrant may
be issued by a judge or magistrate of theUnited States District Court for the Districtof Columbia if the whereabouts within the

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
United States of the person charged are notknown or, if there is reason to believe theperson will shortly enter the United States.
If, on such hearing, he deems the evidence
sufficient to sustain the charge under theprovisions of the proper treaty or
convention, or under section 3181(b), heshall certify the same, together with a copyof all the testimony taken before him, to
the Secretary of State, that a warrant may
issue upon the requisition of the proper
authorities of such foreign government, forthe surrender of such person, according to
the stipulations of the treaty or convention;and he shall issue his warrant for thecommitment of the person so charged to theproper jail, there to remain until such
surrender shall be made.
(June 25, 1948, c. 645, 62 Stat. 822; Oct.
17, 1968, Pub.L. 90-578, Title III, §301(a)(3),
82 Stat. 1115; Nov. 18, 1988, Pub.L. 100-690,
Title VII, § 7087, 102 Stat. 4409; Nov. 29,
1990, Pub.L. 101-647, Title XVI, § 1605, 104
Stat. 4843; Apr. 24, 1996, Pub.L. 104-132,
Title IV, § 443(b), 110 Stat. 1281.)§ 3185. Fugitives from country undercontrol of United States into
the United States
Whenever any foreign country or
territory, or any part thereof, is occupied
by or under the control of the United States,
any person who, having violated thecriminal laws in force therein by thecommission of any of the offenses
enumerated below, departs or flees fromjustice therein to the United States, shall,when found therein, be liable to arrest anddetection by the authorities of the UnitedStates, and on the written request or
requisition of the military governor or otherchief executive officer in control of suchforeign country or territory shall be
returned and surrendered as hereinafter
provided to such authorities for trial under
the laws in force in the place where suchoffense was committed.

(1)

Murder d assault with intent tocommit murder;(2) Counterfeiting or altering money,or uttering or bringing into
circulation counterfeit or alteredmoney;(3) Counterfeiting certificates or
coupons of public indebtedness,bank notes, or other instrumentsof public credit, and the utterance
or circulation of the same;(4) Forgery or altering and uttering
what is forged or altered;(5) E m b e z z l e m e n t o r c r i m i n a lmalversation of the public funds,
committed by public officers,
employees, or depositaries;(6) Larceny or embezzlement of anamount not less than $100 invalue;(7) Robbery;(8) Burglary, defined to be thebreaking and entering by
nighttime into the house ofanother person with intent tocommit a felony therein;(9) Breaking and entering the houseor building of another, whether inthe day or nighttime, with theintent to commit a felony therein;(10) E n t e r i n g , o r b r e a k i n g a n dentering the offices of theGovernment and publicauthorities, or the offices of banks,
banking houses, savings banks,
trust companies, insurance orother companies, with the intent
to commit a felony therein;(11) Perjury or the subornation of
perjury;(12) A felony under chapter 109A of
this title;(13) Arson;(14) Piracy by the law of nations;145

RESOURCE MATERIAL SERIES No. 57(15) Murder, assault with intent to kill,and manslaughter, committed on
the high seas, on board a ship
owned by or in control of citizens
or residents of such foreigncountry or territory and not under
the flag of the United States, or ofsome other government;(16) Malicious destruction of or
attempt to destroy railways,
trams, vessels, bridges, dwellings,
public edifices, or other buildings,
when the act endangers humanlife.
This chapter, so far as applicable, shallgovern proceedings authorized by thissection. Such proceedings shall be had
before a judge of the courts of the UnitedStates only, who shall hold such person onevidence establishing probable cause that
he is guilty of the offense charged.
No return or surrender shall be made ofany person charge with the commission of
any offense of a political nature.
If so held, such person shall be returnedand surrendered to the authorities incontrol of such foreign country or territoryon the order of the Secretary of State of
the United States, and such authorities
shall secure to such a person a fair andimpartial trial.
(June 25, 1948, c. 645, 62 Stat. 823; May
24, 1949, C. 139, § 49, 63 Stat. 96; Nov. 10,
1986, Pub.L. 99-646, § 87(c)(6), 100 Stat.
3623; Nov. 14, 1986, Pub.L. 99-654, § 3(a)(6),
100 Stat. 3663.)§ 3186. Secretary of State tosurrender fugitive
The Secretary of state may order the
person committed under sections 3184 or
3185 of this title to be delivered to any
authorized agent of such foreign
government, to be tried for the offense ofwhich charged.

146

Such agent may hold such person incustody, and take him to the territory ofsuch foreign government, pursuant to suchtreaty.
A person so accused who escapes may
be retaken in the same manner as any
person accused of any offense.
(June 25, 1948, c. 645, 62 Stat. 824.)§ 3187. Provisional arrest anddetention within
extraterritorial jurisdiction
The Provisional arrest and detention ofa fugitive, under sections 3042 and 3183 ofthis title, in advance of the presentation offormal proofs, may be obtained bytelegraph upon the request of the authority
competent to request the surrender of such
fugitive addressed to the authority
competent to grant such surrender. Such
request shall be accompanied by an express
statement that a warrant for the fugitive’sarrest has been issued within thejurisdiction of the authority making such
request charging the fugitive with thecommission of the crime for which his
extradition is sought to be obtained.
No person shall be held in custody undertelegraphic request by virtue of this section
for more than ninety days.
(June 25, 1948, c.645, 62 Stat. 824.)§ 3188. Time of commitment pending
extradition
Whenever any person who is committed
for rendition to a foreign government toremain until delivered up in pursuance ofa requisition, is not so delivered up andconveyed out of the United States within
two calendar months after suchcommitment, over and above the time
actually required to convey the prisoner
from the jail to which he was committed,
by the readiest way, out, of the UnitedStates, any judge of the United States, orof any State, upon application made to him

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
by or on behalf of the person so committed,
and upon proof made to him thatreasonable notice of the intention to makesuch application has been given to theSecretary of State, may order the person
so committed to be discharged out custody,
unless sufficient cause is shown to suchjudge why such discharge ought not to beordered.
(June 25, 1948, C. 645, 62 Stat. 824)

to pay the fees of such witnesses, the judge
or magistrate hearing the matter mayorder that such witnesses be subpenaed;
and the costs incurred by the process, andthe fees of witnesses, shall be paid in thesame manner as in the case of witnesses
subpenaed in behalf of the United States.
(June 25, 1948, c. 645, 62 Stat. 825; Oct.
17, 1968,Pub.L. 90-578, Title III, § 301(a)(3),
82 Stat. 1115.)§ 3189. Place and character ofhearing
Hearings in cases of extradition under
treaty stipulation or convention shall beheld on land, publicly, and in a room or
office easily accessible to the public(June 25, 1948, c. 645, 62 Stat. 824.)§ 3192. Protection of accused
Whenever any person is delivered by any
foreign government to an agent of theUnited States, for the purpose of beingbrought within the United States and tried
for any offense of which he is duly accused,
the President shall have power to take allnecessary measures for the transportationand safekeeping of such accused person,
and for his security against lawlessviolence, until the final conclusion of histrial for the offenses specified in thewarrant of extradition, and until his final
discharge from custody or imprisonment
for or on account of such offenses, and for areasonable time thereafter, and may
employ such portion of the land or naval
forces of the United States, or of the militia
there of, as may be necessary for the safekeeping and protection of the accused.
(June 25, 1948, c. 645, 62 Stat. 825.)§ 3190. Evidence on hearing
Depositions, warrants, or other papers
or copies thereof offered in evidence upon
the hearing of any extradition case shallbe received and admitted as evidence onsuch hearing for all the purposes of such
hearing if they shall be properly and legallyauthenticated so as to entitle them to bereceived for similar purposes by thetribunals of the foreign country from which
the accused party shall have escaped, andthe certificate of the principal diplomaticor or consular officer of the United States
resident in such foreign country shall be
proof that the same, so offered, areauthenticated in the manner required.
(June 25, 1948, c. 645, 62 Stat. 824.)§ 3191. Witnesses for indigent
fugitives
On the hearing of any case under a claimof extradition by a foreign government,
upon affidavit being filed by the person
charged setting forth that there arewitnesses whose evidence is material to his
defense, that he cannot safely go to trial
without them, what he expects to prove by
each of them, and that he is not possessedof sufficient means, and is actually unable§ 3193. Receiving agent’s authority
over offenders
A duly appointed agent to receive, inbehalf of the United States, the delivery,
by a foreign government, of any person
accused of crime committed within the
United States, and to convey him to theplace of his trial, shall have all the powers
of a marshal of the United States, in theseveral districts through which it may benecessary for him to pass with such
prisoner, so far as such power is requisite
for the prisoner’s safe-keeping.
(June 25, 1948, c. 645, 62 Stat. 825.)

147

RESOURCE MATERIAL SERIES No. 57§ 3194. Transportation of fugitive byreceiving agent
Any agent appointed as provided in
section 3182 of this title who receives the
fugitive into his custody is empowered totransport him to the State or Territory fromwhich he has fled.
(June 25, 1948, c. 645, 62 Stat 825.)§ 3195. Payment of fees and costs
All costs or expenses incurred in any
extradition proceeding in apprehending,securing, and transmitting a fugitive shallbe paid by the demanding authority.
All witness fees and costs of every nature
in cases of international extradition,
including the fees of the magistrate, shallbe certified by the judge or magistrate
before whom the hearing shall take place
to the Secretary of State of the UnitedStates, and the same shall be paid out ofappropriations to defray the expenses of the
judiciary or the Department of Justice as
the case may be.
The Attorney General shall certify to theSecretary of State the amounts to be paid
to the United States on account of said fees
and costs in extradition cases by the foreign
government requesting the extradition,and the Secretary of State shall cause said
amounts to be collected and transmitted
to the Attorney General for deposit in the
Treasury of the United States.
(June 25, 1948, c. 645, 62 Stat. 825; Oct.
17, 1968, Pub.L. 90-578, Title III, §301(a)(3), 82 Stat. 1115.)§ 3196. Extradition of United States
citizens
If the applicable treaty or convention
does not obligate the Unites States toextradite its citizens to a foreign country,
the Secretary of State may, nevertheless,order the surrender to that country of a
United States citizen whose extradition has
been requested by that country if the other148

requirements of that treaty or convention
are met.
(Added Pub.L. 101-623, §11(a), Nov. 21,
1990, 104 Stat. 3356.)