```

[Senate Hearing 109-570]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 109-570
 
                      U.S.-U.K. EXTRADITION TREATY

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

                                HEARING

                               BEFORE THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 21, 2006

                               __________

       Printed for the use of the Committee on Foreign Relations

                   Available via the World Wide Web:
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                     COMMITTEE ON FOREIGN RELATIONS

                  RICHARD G. LUGAR, Indiana, Chairman

CHUCK HAGEL, Nebraska                JOSEPH R. BIDEN, Jr., Delaware
LINCOLN CHAFEE, Rhode Island         PAUL S. SARBANES, Maryland
GEORGE ALLEN, Virginia               CHRISTOPHER J. DODD, Connecticut
NORM COLEMAN, Minnesota              JOHN F. KERRY, Massachusetts
GEORGE V. VOINOVICH, Ohio            RUSSELL D. FEINGOLD, Wisconsin
LAMAR ALEXANDER, Tennessee           BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire        BILL NELSON, Florida
LISA MURKOWSKI, Alaska               BARACK OBAMA, Illinois
MEL MARTINEZ, Florida
                 Kenneth A. Myers, Jr., Staff Director
              Antony J. Blinken, Democratic Staff Director

                                  (ii)

  
?

                            C O N T E N T S

                              ----------                              
                                                                   Page

Dodd, Hon. Christopher J., U.S. Senator from Connecticut, opening 
  statement......................................................     3

Linnon, Professor Robert C., Ph.D., Irish American Unity 
  Conference, Washington, DC.....................................    10
      Prepared statement.........................................    12

Lugar, Hon. Richard G., U.S. Senator from Indiana, opening 
  statement......................................................     1

McNulty, Paul J., Deputy Attorney General, U.S. Department of 
  Justice, Washington, DC........................................    35
      Prepared statement.........................................    38

Meehan, John J., Jr., National President of the Ancient Order of 
  Hibernians, Quincy, Massachusetts..............................     5
      Prepared statement.........................................     8

Morris, Madeline, Professor, Duke University Law School, Durham, 
  North Carolina.................................................    14
      Prepared statement.........................................    19

Witten, Samuel M., Deputy Legal Adviser, U.S. Department of 
  State, Washington, DC..........................................    41
      Prepared statement.........................................    44

                               Appendixes

Appendix I: Responses to Additional Questions Submitted for the 
  Record by Members of the Committee.............................    65

Appendix II: Statement Submitted by Professor Francis A. Boyle...    89

                                 (iii)

  

                      U.S.-U.K. EXTRADITION TREATY

                              ----------                              

                         FRIDAY, JULY 21, 2006

                                       U.S. Senate,
                               Foreign Relations Committee,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:00 a.m. in 
Room SD-419, Dirksen Senate Office Building, Honorable Richard 
G. Lugar, chairman of the committee, presiding.
    Present: Senators Lugar and Dodd.

        OPENING STATEMENT OF HONORABLE RICHARD G. LUGAR,
                   U.S. SENATOR FROM INDIANA

    The Chairman. This hearing of the Senate Foreign Relations 
Committee is called to order. The committee meets today to hear 
testimony on the Extradition Treaty between the United States 
and the United Kingdom.
    Within the Congress, the Senate Foreign Relations Committee 
is charged with the unique responsibility of reviewing treaties 
negotiated by the administration. Our colleagues in the Senate 
depend on us to make timely and judicious recommendations on 
treaties. In addition to the treaty before us today, the 
committee is working hard to advance several other important 
treaties, including the Cybercrime Convention, the Corruption 
Convention, the Israel Extradition Protocol, the Convention on 
Supplementary Compensation for Nuclear Damage and the Uruguay 
Bilateral Investment Treaty. I'm hopeful the Senate will be 
able to act on these measures this year.
    The United Kingdom is one of this country's closest allies, 
with them we enjoy a deep cultural affinity and an excellent 
partnership. The British Government and people have taken a 
leadership role on numerous foreign policy challenges, 
including stabilizing Iraq, protecting democracy and pluralism 
in Afghanistan, working for nuclear non-proliferation in Iran, 
fighting disease and poverty in Africa, and improving global 
cooperation on climate change. These contributions and many 
others have been crucial to international security and order.
    This new extradition treaty with the United Kingdom is 
designed to update our existing extradition relationship, 
bringing it into line with other modern U.S. extradition 
treaties. Upon entry into force, the new treaty would replace a 
treaty that dates back to 1972. Extradition treaties are 
critical tools for United States law enforcement in combating 
transnational crime, as they ensure that those who commit 
crimes in this country cannot escape justice by fleeing to 
other countries.
    Among other provisions, the new treaty would adopt a modern 
dual criminality standard for extradition, allowing extradition 
for offenses that are punishable by one year or more in both 
countries. It would also ensure the continued application of a 
new, less burdensome evidentiary standard for extradition 
requests by the United States to the United Kingdom. Moreover, 
it would permit the temporary surrender for trial of fugitives 
who are serving sentences in the requested state.
    The committee held a first hearing on the treaty on 
November 15 of last year, at which time we heard from the 
administration. Today, the committee is joined by three 
witnesses from outside of our government. We welcome Mr. Jack 
Meehan, President of the Ancient Order of Hibernians; Dr. 
Robert Linnon, President of the Irish American Unity 
Conference, and Professor Madeline Morris of Duke University 
Law School. Professor Francis Boyle of the University of 
Illinois College of Law at Urbana-Champaign was also invited to 
testify--we've been informed that the sudden thunderstorms that 
hit the Midwest yesterday resulted in numerous canceled 
flights, and as a result he has not been able to reach 
Washington this morning. He has provided extensive written 
testimony in advance of the hearing which will be made 
available to members, and it will be included in the hearing 
record in full.

    [The information referred to appears in Appendix II of this 
hearing print.]

    The Chairman. Following the first panel, the administration 
will have an opportunity to update the information it provided 
to the committee in November. We also want to give members who 
were not present at the first hearing a second opportunity to 
question the administration about the treaty or to raise 
concerns about individual provisions. We are pleased to welcome 
Deputy Attorney General Paul McNulty, representing the 
Department of Justice, and Deputy Legal Adviser Samuel Witten, 
representing the Department of State.
    We look forward to the contributions of all of our 
witnesses today, as the committee continues its consideration 
of this treaty. I will ask the witnesses to deliver the 
statements in the order that I have mentioned them in this 
introduction. If you are summarizing your statement, let me 
simply state the entire text of your presentation will be 
included in the hearing record in full, and so you need not ask 
for permission, that will be granted in advance, and you will 
be asked to proceed however you would wish.
    So I note that our colleague, Senator Dodd is on the way 
and we waited a few moments, and when he comes we will 
recognize him for an opening statement, if he has one, so that 
our record will be complete with that testimony. But at this 
point, we would like to proceed.
    Well, Senator Dodd has arrived, just at the right time. 
Senator Dodd, I just indicated that we were anticipating your 
presence and I would recognize you for an opening statement, 
just having delivered one myself.

   OPENING STATEMENT OF HONORABLE CHRISTOPHER J. DODD, U.S. 
                    SENATOR FROM CONNECTICUT

    Senator Dodd. Very good, Mr. Chairman, my apologies to all 
of you for being a couple of minutes late, but I'm very 
grateful to the Chairman for his willingness to reschedule this 
morning's hearing on the 2003 U.S.-U.K. Extradition Treaty. It 
was originally scheduled--as all of you are probably aware--to 
be held earlier this week so that I am able to actually attend 
that. I'm grateful to you, again, Mr. Chairman for that.
    Recognizing that the committee has already held one hearing 
on this treaty--last November--I'm very grateful that the 
Chairman decided to hold a second hearing on the treaty so that 
the committee can have an opportunity to hear from additional 
witnesses, including representatives of certain Irish-American 
organizations.
    The 2003 U.S.-U.K. Extradition Treaty was signed on March 
31, 2003 and transmitted to the Senate on April 19, 2004. If 
ratified, this treaty would replace a 1972 treaty as modified 
by the highly controversial 1985 Supplementary Treaty.
    Other than last year's hearing on the proposed treaty, the 
last time the subject of extradition came before this committee 
relative to the United States and the United Kingdom was two 
decades ago. At that time, you were Chairman, Mr. Chairman, and 
I was a freshman United States Senator, new to the committee. 
And I had black hair in those days, as I recall.
    The committee's consideration of the 1985 Supplementary 
Treaty was the subject of intense review and scrutiny. It was 
the subject of three hearings and two markups, over the course 
of roughly twelve months--with more than twenty witnesses heard 
by this committee. Ultimately, of course, this body gave its 
advice and consent, but not before adopting three amendments 
and a declaration relative to the treaty, including an 
amendment related to the political offense exception to 
extradition.
    Mr. Chairman, I am not suggesting that the Extradition 
Treaty now before us needs that amount of the committee's time 
or is it necessarily as controversial. However, I do believe 
that before deciding whether to give our advice and consent to 
this new treaty, and under what conditions, we need to fully 
understand the changes that are being proposed to the existing 
extradition framework.
    In addition to our public panel, I believe is was extremely 
wise of you to invite the administration witnesses--and I thank 
you for doing that--back to testify again after the public 
panel, so that they will have an opportunity to comment on 
their testimony. I believe there are a number of very important 
questions raised by the pending treaty.
    Among the most important are why was Article 3 of the 
Supplementary Treaty removed? And what is the cumulative effect 
of that change coupled with the elimination of the statute of 
limitations requirements related to extraditable offenses that 
exists in the current treaty?
    Article 3 was added by this committee in 1986, and was the 
subject of painstaking negotiations. It bars extradition if the 
person sought establishes that the extradition request has been 
made with a view to try an individual on account of race, 
religion, nationality or political opinions, or that if 
surrendered, that individual would be prejudiced at trial or 
punished because of those reasons. This provision also provides 
for judicial review of these questions, a provision unique to 
our bilateral extradition treaties. I recognize that it is 
unique proviso--but there were unique reasons for its inclusion 
twenty years ago.
    I understand that there have been only a handful of cases 
in which Article 3 of the treaty has been invoked related to 
incidents involving the Northern Ireland conflict, and that 
none are pending now.
    Without a doubt, much has changed since 1985 and the 1985 
Supplementary Treaty entered into force. First and foremost was 
the conclusion of the 1998 Good Friday Accords, which has 
established a framework for resolving the root causes of the 
political conflict in Northern Ireland. While there have been 
bumps along the road, obviously, with respect to the full 
implementation of the Accords, I believe very deeply that it 
has been largely effective in ending the sectarian conflict 
that had cost so many lives in Northern Ireland.
    Since the signing of the Good Friday Accords in 1998, the 
British authorities have taken a number of legal steps to 
address legal questions related to that sectarian conflict. In 
1998 the U.K. introduced an early release program whereby IRA 
and Loyalist prisoners could apply for release on probation 
after they had served two years in prison. Four hundred and 
forty seven individuals have been released under this scheme; 
however, some fugitives remain outside the early release 
program--namely those who went ``on the run'' before trial or 
escaped from prison before serving two years of their 
sentences. Legislative efforts to deal with these individuals 
have thus far been unsuccessful and therefore at least some 
remain in limbo despite the Good Friday Accords. These are 
important legal steps that have been taken since the committee 
considered the 1985 Supplementary Treaty.
    Full implementation of the Good Friday Accords is still a 
work in progress. As many in this room, I'm sure, are aware, 
Northern Ireland is once again being governed from London 
following the suspension of the Northern Ireland Assembly in 
2003. Efforts to stand up that assembly and select an executive 
directorate are now ongoing. I'm very hopeful that those 
efforts will be successful by the November deadline set by the 
British and Irish Governments, however, absent full 
implementation of the peace process, past grievances, fears and 
suspicions will remain fresh in the minds of Irish activists on 
both sides of the Atlantic.
    So it is in this context and climate that we must review 
the proposed treaty. Our administration witnesses need to help 
this committee and the public at large understand how the 
provisions of the new treaty compare to the new treaty with the 
United Kingdom, why changes were made, and whether those 
changes will create new potential legal jeopardy for Americans 
who have been politically active in their opposition to the 
British rule in Northern Ireland should the treaty be ratified 
in its current form.
    What benefits will the United States gain, in its effort to 
obtain the extradition of suspects to the United States? In 
other words, to state it plainly, what is in it for this Nation 
if we approve this treaty? All of this information will be of 
enormous help to this committee in its consideration of the 
treaty.
    I apologize for taking so much time, Mr. Chairman, to raise 
these issues, and again let me express my deep gratitude to you 
on a Friday here, when we're out of session, the Chairman of 
this committee holding this special hearing and allowing us to 
hear these witnesses and the administration to comment on that 
is something that I'm very, very grateful to Dick Lugar for. 
He's been a great Chairman of this committee, we've served 
together now for a quarter of a century, and I'm not surprised 
he would do this, but I want all of this room to know what a 
special debt of thanks we owe to Dick Lugar, the Chairman of 
this committee.
    The Chairman. Well, Chris, you're most generous and I 
appreciate that, but I'm very glad we had your important 
opening statement, because it does set historical record as we 
listen to our witnesses.
    Now, we appreciate very much your coming and accommodating 
the change of schedule of the committee. I would like to now 
call upon Mr. Jack Meehan for his testimony, to be followed by 
Dr. Linnon, and then Professor Boyle. Mr. Meehan?

  STATEMENT OF JOHN J. MEEHAN, JR., NATIONAL PRESIDENT OF THE 
       ANCIENT ORDER OF HIBERNIANS, QUINCY, MASSACHUSETTS

    Mr. Meehan. Distinguished members of the U.S. Senate 
Foreign Relations Committee, guests, and others present.
    My name is John Meehan, I reside at 60 Longwood Road, 
Quincy, Massachusetts. I am the National President of the 
Ancient Order of Hibernians in America, the oldest, largest, 
and only nationally represented Irish Catholic fraternal 
organization in the United States. The Ancient Order of 
Hibernians is widely recognized as the quintessential Irish 
American organization and the most highly respected voice of 
the Irish in America. As National President, I am authorized to 
speak on behalf of the approximately 80,000 members of our 
noble order, the vast majority of whom are American citizens 
and voters in the 46 states in which we are represented. 
Thousands of our members are also veterans of the United States 
armed forces.
    Although I have a deep and abiding love for Ireland and her 
people as evidenced by the fact that I am also a citizen of 
Ireland, a property owner there, and a speaker of the Irish 
language, whose late wife and current wife were both born 
there, there is no doubt that my first allegiance is to the 
country of my birth and in whose armed forces I very proudly 
served. That country is, of course, the United States of 
America.
    And now, if I may, let me cut right to the chase and give 
you some background on what we, the members of the Ancient 
Order of Hibernians, do. Are we primarily activists in issues 
that affect Irish Americans and Catholics? The answer is 
clearly yes. Have we spoken out in opposition to documented 
human rights violations by the British Government in the North 
of Ireland throughout the recent conflict from 1968 to the 
present? The answer is clearly yes.
    The human rights violations to which I refer were 
perpetrated on the Catholic Nationalist minority community on a 
regular basis during the conflict and verified by such 
respected human rights advocacy groups as Amnesty 
International, the European Court of Human Rights, and Human 
Rights Watch.
    Do we advocate violence? The answer is absolutely not. As a 
matter of fact, we are bound by the Preamble to our National 
Constitution which requires us to, and I quote, ``to aid and 
advance by all legitimate means the aspirations and endeavors 
of the Irish people for complete and absolute independence, 
while promoting peace, justice, and unity for all of the people 
of Ireland.''
    We are on record as solidly supporting the full 
implementation of the Good Friday Agreement including all of 
the policing reforms recommended by the Patten Commission. We 
are also on record as having recommended complete disarmament 
by the Irish Republican Army long before that became a reality.
    Now let me give you some reasons why we, as American 
citizens and voters, vehemently oppose the acceptance of this 
treaty by our government. We can not overemphasize the fact 
that contrary to the opinion of some persons who should know 
better, this is not an Irish issue. Our position is that any 
treaty which negatively impacts American citizens is an 
American issue, pure and simple.
    There is already an extradition treaty in existence between 
the United States of American and the British Government. It 
has, for all intents and purposes, served both nations well for 
quite some time, while at the same time, not sacrificing the 
rights guaranteed to American citizens in our most cherished 
document, the Constitution of the United States of America. The 
proposed treaty does not include these constitutional 
guarantees.
    Why would the United States Government need this proposed 
treaty in order to extradite anyone we seek in fighting the war 
on terror? Have we not already extradited a number of people 
under the British Extradition Act of 2003? It would appear then 
that the only logical reason for ratification of this proposed 
treaty is to make it easier for the British Government to 
extradite American citizens. Are we wrong in making this 
assumption? We don't believe that we are.
    Further, British subjects extradited to the United States 
are guaranteed the right to a trial, the right to remain 
silent, the presumption of innocence and all of the other 
rights guaranteed to American citizens by our Constitution. 
However, if this proposed treaty is ratified, American citizens 
extradited to Britain are not guaranteed those same rights that 
we grant to British subjects. Is this not a true statement?
    Why, then, would the United States Senate, a legislative 
body elected by the citizens of the United States, even 
consider ratification of a treaty which ensures our 
constitutional rights to persons from foreign countries that 
are extradited here, while denying those same rights to United 
States citizens who face trial overseas?
    Is it not a true statement that this treaty proposes 
surrendering the constitutional rights of United States 
citizens for the sole purpose of avoiding political 
embarrassment for the British Government ahead of their 
upcoming elections?
    At the prior hearing on this treaty which was held on 
November 15, 2005, Senator Lugar, the chairman of the committee 
clearly stated that: ``The committee will consider this treaty 
and expects to hold an additional hearing next year from 
witnesses outside our government. Today we want to establish a 
record of the administration's views on the treaty to which the 
committee and all interested parties can refer as we continue 
our deliberations.'' With all due respect to Chairman Lugar, I 
certainly hope that the good citizens giving testimony today, 
in opposition to the administration's position on ratification 
of this treaty are not considered ``witnesses outside our 
government.'' If so, one would have to wonder what became of 
the phrase we all learned as schoolchildren, ``government of, 
for, and by the people.''
    Can we live with a document between our country and Britain 
that transfers the sole responsibility for determining whether 
an extradition request is politically motivated, or not, from 
the Federal courts to the executive branch thereby denying 
American citizens their right to have their day in court before 
an impartial judge? The answer is clearly no. Never before in 
our Nation's history has our government even considered 
subjecting the liberty of American citizens to the whims of a 
foreign government.
    Can we live with a document that allows for the provisional 
arrest and detention of American citizens for 60 days upon 
request by the British Government without even submitting a 
formal extradition request providing the details supporting the 
reason for their request? The answer is clearly no.
    The proposed treaty permits retroactive application. Simply 
stated, this means that the terms of the proposed treaty will 
apply retroactively for offenses allegedly committed before the 
treaty's ratification. It also provides that American law need 
not have been violated in order for extradition to take place.
    If this treaty is ratified, no American citizen who is or 
ever has been active in Irish political affairs and who has 
publicly spoken in opposition to British governmental policy in 
the North of Ireland will be safe from the possibility of being 
extradited to Britain for merely exercising his right to free 
speech guaranteed under the First Amendment of the Constitution 
of the United States of America.
    It is a sad day, indeed, when the United States of America, 
the greatest democracy the world has ever known, would allow 
the pacification of any foreign government, regardless of how 
close an ally they may be perceived to be, to take precedence 
over protecting the constitutional rights of American citizens.
    Whether one agrees or disagrees with our country's 
involvement in the war in Iraq and Afghanistan, the fact is 
that thousands of true American heroes are over there fighting 
to protect our beloved country and the cherished ideals 
enshrined in our United States Constitution. It is 
incomprehensible to me that we, the beneficiaries of their 
sacrifice, could even think of compromising those time honored 
ideals when these valiant young men and women are sacrificing 
so much to protect them and our American way of life.
    It is worthy to note upon closing that over the last few 
weeks there has been a hue and cry by rank and file British 
citizens and voters urging their government to scrap this 
treaty as they have determined that it unfairly impacts on 
their citizenry. Perhaps it is time that we adopt this same 
conclusion with regard to the potentially devastating effect 
that this proposed treaty could have on our American citizens 
who have rightfully criticized the many documented human rights 
violations perpetrated by the British Government and their 
military units on the Catholic Nationalist minority community 
in the North of Ireland.
    We urge the members of the United States Senate to very 
carefully study the possible detrimental effects that this 
proposed treaty might impose on United States citizens and vote 
to soundly reject the acceptance of Treaty Document 108-23.
    May I take this opportunity to extend my personal thanks, 
as well as those of the entire membership of the Ancient Order 
of Hibernians to the United States Foreign Relations Committee 
for allowing me to express our opposition to the acceptance of 
this very dangerous treaty in this open forum.
    Distinguished members of the committee, as a footnote to my 
statement, I believe I should tell you very frankly, that 
unlike some of the other persons giving testimony here today, I 
am neither a professor, nor an attorney. I am a person who is 
fiercely proud of his heritage and deeply concerned about the 
human rights violations that have taken place in Ireland over 
the last 35 years. But more importantly than that, I am an 
American citizen, a veteran, and a political activist. As such, 
I believe I have every right to express my opinion, whether or 
not it is in concert with that of the British Government in 
their policies with regard to the North of Ireland, without 
fear of reprisal. That right is guaranteed me in the United 
States Constitution. Under no circumstances will I stand idly 
by, and watch the rights and privileges that are guaranteed to 
American citizens in the Constitution of the United States to 
be eroded, in order to pacify a foreign government.
    Thank you very much, Mr. Chairman, thank you very much, Mr. 
Dodd.

    [The prepared statement of Mr. Meehan follows:]

               Prepared Statement of John J. Meehan, Jr.

    Distinguished members of the U.S. Senate Foreign Relations 
Committee, guests, and others present, my name is John J. Meehan Jr. I 
reside at 60 Longwood Road Quincy, MA. I am the National President of 
the Ancient Order of Hibernians in America, the oldest, largest, and 
only nationally represented Irish Catholic fraternal organization in 
the United States. The Ancient Order of Hibernians is widely recognized 
as the quintessential Irish American organization and the most highly 
respected voice of the Irish in America. As National President, I am 
authorized to speak on behalf of the approximately 80,000 members of 
our noble Order, the vast majority of whom are American citizens and 
voters in the 46 states in which we are represented. Thousands of our 
members are also veterans of the United States armed forces.
    Although I have a deep and abiding love for Ireland and her people 
as evidenced by the fact that I am also a citizen of Ireland, a 
property owner there, and a speaker of the Irish language, whose late 
wife and current wife were both born there, there is no doubt that my 
first allegiance is to the country of my birth and in whose armed 
forces I very proudly served. Thaw country is, of course, the United 
States of America.
    And now if I may, let me cut right to the chase and give you some 
background on what we, the members of the Ancient Order of Hibernians, 
do.
    Are we primarily activists in issues that affect Irish Americans 
and Catholics? The answer is clearly yes.
    Have we spoken out in opposition to documented human rights 
violations by the British Government in the North of Ireland throughout 
the recent conflict from 1968 to the present? The answer is clearly 
yes.
    The human rights violations to which I refer were perpetrated on 
the Catholic Nationalist minority community on a regular basis during 
the conflict and verified by such respected human rights advocacy 
groups as Amnesty International, the European Court of Human Rights, 
and Human Rights Watch.
    Do we advocate violence? The answer is absolutely not.
    As a matter of fact we are bound by the Preamble to our National 
Constitution which requires us ``to aid and advance by all legitimate 
means the aspirations and endeavors of the Irish people for complete 
and absolute independence, while promoting peace, justice, and unity 
for all of the people of Ireland.''
    We are on record as solidly supporting the full implementation of 
the Good Friday Agreement including all of the policing reforms 
recommended by the Patten Commission. We are also on record as having 
recommended complete disarmament by the Irish Republican Army long 
before that became a reality.
    Now let me give you some of the reasons why we, as American 
citizens and voters, vehemently oppose the acceptance of this treaty by 
our government.
    We can not overemphasize the fact that contrary to the opinion of 
some persons who should know better this is not an Irish issue. Our 
position is that any treaty which negatively impacts American citizens 
is an American issue, pure and simple.
    There is already an extradition treaty in existence between the 
United States of America and the British Government. It has for all 
intents and purposes served both nations well for quite some time 
while, at the same time, not sacrificing the rights guaranteed to 
American citizens in our most cherished document, the Constitution of 
the United States of America. The proposed treaty does not include 
these constitutional guarantees.
    Why would the United States government need this proposed treaty in 
order to extradite anyone we seek in fighting the war on terror? Have 
we not already extradited a number of people under the ``British 
Extradition Act of 2003?''
    It would appear then that the only logical reason for the 
ratification of this proposed treaty is to make it easier for the 
British Government to extradite American citizens. Are we wrong in 
making this assumption? We don't believe that we are.
    Further, British subjects extradited to the United States are 
guaranteed the right to a trial by jury, the right to remain silent, 
the presumption of innocence, and all other rights guaranteed to 
American citizens by our Constitution.
    However, if this proposed treaty is ratified, American citizens 
extradited to Britain are not guaranteed those same rights that we 
grant to British subjects. Is this not a true statement?
    Why then would the United States Senate, a legislative body elected 
by the citizens of the United States, even consider ratification of a 
treaty which ensures our constitutional rights to persons from foreign 
countries that are extradited to our country, while denying these same 
rights to United States citizens sent to face trial overseas?
    Is it not a true statement that this treaty proposes surrendering 
the constitutional rights of United States citizens for the sole 
purpose of avoiding political embarrassment for the British Government 
ahead of their upcoming elections?
    At the prior hearing on this treaty which was held on November 15, 
2005, Senator Lugar, the Chairman of the committee clearly stated that: 
``The committee will consider this treaty and expects to hold an 
additional hearing next year from witnesses outside our government. 
Today we want to establish a record of the administration's views on 
the treaty to which the committee and all interested parties can refer 
as we come continue our deliberations.''
    With all due respect to Chairman Lugar, I certainly hope that the 
good citizens giving testimony today, in opposition to the 
administration's position on ratification of this treaty are not 
considered ``witnesses outside our government.'' If so, one would have 
to wonder what became of the phrase we all learned as school children, 
``government of, for, and by the people.''
    Can we live with a document between our country and Britain that 
transfers the sole responsibility for determining whether an 
extradition request is politically motivated, or not, from the federal 
courts to the executive branch thereby denying American citizens their 
right to have their day in court before an impartial judge? The answer 
is clearly no.
    Never before in our Nation's history has our government even 
considered subjecting the liberty of American citizens to the whims of 
a foreign government.
    Can we live with a document that allows for the provisional arrest 
and detention of American citizens for 60 days upon request by the 
British Government without even submitting a formal extradition request 
providing details supporting the reason for the request. The answer is 
clearly no.
    The proposed treaty permits Retroactive Application. Simply stated 
this means that the terms of the proposed treaty will apply 
retroactively for offenses allegedly committed before the treaty's 
ratification. It also provides that American law need not have been 
violated in order for extradition to take place.
    If this treaty is ratified, no American citizen who is or ever has 
been active in Irish political affairs and who has publicly spoken in 
opposition to British governmental policy in the North of Ireland will 
be safe from the possibility of being extradited to Britain for merely 
exercising his right to free speech guaranteed under the First 
Amendment of the Constitution of the United States of America.
    It is a sad day, indeed, when the United States of America, the 
greatest democracy the world has ever known, would allow the 
pacification of any foreign government, regardless of how close an ally 
they may be perceived to be, to take precedence over protecting the 
constitutional rights of American citizens.
    Whether one agrees or disagrees with our country's involvement in 
the war in Iraq and Afghanistan, the fact is that thousands of true 
American heroes are over there fighting to protect our beloved country 
and the cherished ideals enshrined in our United States Constitution. 
It is incomprehensible to me that we, the beneficiaries of their 
sacrifice, could even think of compromising those time honored ideals 
when these valiant young men and women are sacrificing so much to 
protect them and our American way of life.
    It is worth noting, upon closing, that over the last few weeks 
there has been a hue and cry by rank and file British citizens and 
voters urging their government to scrap this treaty as they have 
determined that it unfairly impacts on their citizenry.
    Perhaps it is time that we adopt this same conclusion with regard 
to the potentially devastating effect that this proposed treaty could 
have on our own American citizens who have rightfully criticized the 
many documented human rights violations perpetrated by the British 
Government and their militant units on the Catholic Nationalist 
minority community in the North of Ireland.
    We urge the members of the United States Senate to very carefully 
study the possible detrimental effects that this proposed treaty might 
impose on United States citizens and vote to soundly reject the 
acceptance of Treaty Document 108-23.
    May I take this opportunity to extend my personal thanks as well as 
those of the entire membership of the Ancient Order of Hibernians to 
the U.S. Senate Foreign Relations Committee for allowing me to express 
our opposition to the acceptance of this very dangerous treaty in this 
open forum.

    The Chairman. Well, thank you very much, Mr. Meehan, we 
appreciate your testimony and your thoughtfulness as you've 
proceeded. We look forward, now, to hearing from Dr. Robert 
Linnon. Would you please proceed, doctor?

STATEMENT OF PROFESSOR ROBERT C. LINNON, Ph.D., IRISH AMERICAN 
               UNITY CONFERENCE, WASHINGTON, D.C.

    Dr. Linnon. Thank you, Mr. Chairman. I'd like to express my 
greetings to all of the other members of the committee who are 
here, to other witnesses, and especially to the audience, which 
includes my wife. So, I had to make sure I included her.
    Now, what is the Irish American Unity Conference? It's 
devoted to a peace and justice in the United Ireland, through 
non-violent means. We send no money to Ireland, and we have 
never done that. We never want to be accused of supporting the 
armed conflict in Ireland, we simply don't do it.
    Now, I was informed that you'd let me just summarize my 
written testimony. And I can do that in two words: grossly 
unfair. These are the points in my written testimony.
    It ignores the separation of powers, which is at the heart 
of our Constitution. It's supposed to keep things balanced. And 
yet, some presidents, I've been led to believe, abuse their 
presidential powers. I'm not referring, of course, to the 
current administration, but it is something that has to be 
considered in the approval of this treaty. It denies those 
charged with having a day in court. That is so fundamental to 
our basic way of life here in America. I can't conceive of why 
the United States Senate would even consider any treaty which 
denies the right of an American citizen to go before an 
impartial judge and make his case.
    Thirdly, it allows for provisional arrest of up to 60 days. 
Do you know what can happen when you arrest a person for 60 
days? Put him in jail, his reputation is ruined. Secondly, he 
could lose his job in that time, it can cause many financial 
problems, and it's simply unfair without just cause. And just 
cause comes from the supposition of a foreign government. 
Which, incidentally, has no Constitution, and no Bill of 
Rights. That's the government that's asking us to take rights 
away from our own citizens for their benefit. Very important 
consideration.
    It also provides that American law need not be violated, 
which impacts on our First Amendment rights of free speech. 
And, the retroactive application. If that is approved, it can 
even apply to activity before the approval of this treaty. I 
mean, that's grossly wrong.
    And I do want to stress that our testimony here today is 
simply an effort to preserve our basic Constitutional rights 
and civil liberties.
    I want to tell you, when I graduated from high school in 
1955, the United States was in an international conflict to 
preserve all of the freedoms that we enjoy. I volunteered for 
service in the United States Navy and I served two years and 
never, never in my wildest imagination would I dream that the 
United States Senate would consider taking away such basic 
rights. That's the way I feel about this treaty.
    The United Kingdom in Northern Ireland has a terrible, 
atrocious record of human and civil rights violations. I could 
enumerate them, but surely you're aware of them. And I know 
many of those subjected to those abuses personally. I mean, I 
don't speak in an abstract sort of way here. I know what goes 
on in Northern Ireland, I've seen it so many times, and it's 
essentially wrong.
    Now, one of our members wrote to a member of this committee 
some time ago, and the Senator wrote back. And I will read you 
part of his letter to his constituents. He says, ``The United 
States has a long history of protecting persons within its 
borders from extradition for politically motivated crimes. It 
is important to me that the proposed treaty with the United 
Kingdom continues this tradition.'' It doesn't. It doesn't, and 
it frightens me to think that the United States Senator and 
this committee wrote that to one of his constituents. I find 
that very difficult to understand.
    I'd just like to point out a couple of other things. The 
United Kingdom recently sent two females over to this country 
to address many of you Senators and this committee. And I can 
understand what happens there, women with a charming British 
accent, and the epitome of respectability appeal to the 
Senators, and the basic facts are overlooked, and that's why 
we're here today--to make sure that they are not overlooked. I 
was President of the Irish American Unity Conference in 1985 
when the previous Supplemental Extradition Treaty was approved. 
And at that time, I thought we conceded many points we didn't 
want to concede, but we were convinced that maybe as a tradeoff 
there was a balance, and we should go with it. Senator Lugar, 
I'm sure that you remember all of that.
    Now, here we are again, facing further erosion of our basic 
rights. I beg you, I beg you not to approve this treaty. Even 
right now, what's happening in Northern Ireland is, it's just 
so typical of the way the United Kingdom has treated one of its 
colonies, that it prefers to keep as a colony for numerous 
reasons.
    The Good Friday Agreement was mentioned earlier, approved 
in 1998--where is it now? In limbo. Why is it in limbo? Because 
the British Government accused the IRA of having a spy ring in 
the assembly. And so it suspended the Good Friday Agreement. 
Was anyone ever prosecuted or charged with that crime? All 
charges were dropped. And it turns out later that one of their 
key witnesses in that debacle was a spy for the British 
Government. I mean, does it appear like an inside job to have 
this spy ring revealed and exposed so that the assembly could 
be dissolved? Subsequent to that there was, I guess you could 
say, a bar fight, and a couple of members of the IRA who were 
there--not in the capacity of being an IRA member, but simply 
for a few drinks--got in a fight and they killed another bar 
patron. That also became a reason to, not to reinstall the Good 
Friday Agreement, and the assembly and the executive. Did the 
IRA have anything to do with that? No, absolutely not.
    This--all these years now since that spy ring case about 8 
years ago--the assembly has not been operating again. I mean, 
we asked for our own government--I won't say we as in me--but 
that's our position. Every state, whatever you want to call it, 
it's only six counties, would like to have their own 
government. But because of gerrymandering and manipulating, 
they haven't got it. Even--and this came as a complete shock to 
me--my first trip to Northern Ireland was 1973. I found out at 
that time that if you didn't own property in Northern Ireland, 
you couldn't vote. And if you were a Catholic, you couldn't get 
a good job, you were hired occasionally, low man on thetotem 
pole, and when things got tough, you were let go.
    Now, how can you buy a home, how can you buy a piece of 
property when you can't even get a job? And so therefore, they 
couldn't vote. The city of Derry has had a Catholic majority 
forever. They never had a Catholic mayor until just very 
recently. Because of the gerrymandering that took place.
    Those are the things that are grossly unfair, and they have 
all been perpetrated by this United Kingdom, the government 
that is asking our United States Senate to relinquish our 
Constitutional rights. Thank you, gentlemen.

    [The prepared statement of Dr. Linnon follows:]

        Prepared Statement of Professor Robert C. Linnon, Ph.D.

    I am very grateful for the opportunity to express my concerns with 
the pending United States-United Kingdom Extradition Treaty now being 
considered for ratification by the United States Senate. I am here 
today to express my opposition to the proposed treaty for a variety of 
reasons. Since I don't want to speak in generalities I would now like 
to enumerate those objections.
    Article 2, section 4, page 4 allows for extradition even if no 
United States federal law has been violated.
    Article 4, pages 5 and 6, basically removes the political exception 
protections. The current extradition treaty, still in force, provides 
the very important safeguard that:

           . . . extradition shall not occur if the person sought 
        establishes to the satisfaction of the competent judicial 
        authority by a preponderance of the evidence that the request 
        for extradition has in fact been made with a view to try or 
        punish him on account of his race, religion, nationality, or 
        political opinions. . . . (Article 3(a), U.K.-U.S. Supplemental 
        Treaty, 1986)

    This protective language is missing from the new proposed 
extradition treaty between the United States and Great Britain.
    This agreement would hinder our First Amendment right of free 
speech. If the new treaty is ratified, an American citizen who opposes 
British policy--for example, an investigative journalist who wrote of 
current and past police abuses in the north of Ireland for an American 
newspaper--could face arrest and extradition without having any ability 
to challenge, in an American court before an impartial judge, whether 
the criminal charges are really a pretext for the punishment on account 
of race, religion, nationality or political opinion. This denial of due 
process and our ``day in court'' is something totally foreign to our 
American way of life and a serious erosion of over two centuries of 
freedoms every American takes for granted.
    Article 4, sections 3 and 4, page 6. The last two sentences of 
these sections remove the role of the judiciary from the extradition 
process. These sentences transfer responsibility for determining 
whether the extradition request is politically motivated from the 
federal courts to the executive branch. Under this provision a person 
will not have the right of his or her ``day in court'' before an 
impartial judge. This will seriously impact the separation of powers 
that is at the very heart of our American system of law.
    Article 6, page 6. The terms of the proposed treaty will apply 
retroactively for offenses allegedly committed even before the treaty's 
ratification. No American citizen active in Irish and Irish American 
affairs who oppose British policy in the north of Ireland will be safe 
if this treaty comes into force.
    Article 12, page 9. The new treaty will allow for provisional 
arrest and detention of Americans for 60 days upon request by Great 
Britain with no formal extradition request providing supporting 
details. Under this provision, a person will not have the right of his 
or her ``day in court'' before an impartial judge.
    Article 16, page 11 and 12. The new treaty allows for the seizure 
of our assets in the United States by the British Government.
    In conclusion I am strongly opposed to this treaty because so much 
of what is being proposed ignores and rebuts our Constitution and the 
Bill of Rights. It is suspected that this treaty is, in large part, 
intended to stifle Irish-American support for the full and rapid 
implementation of the Good Friday Agreement which could facilitate a 
full democracy in the partitioned six counties and for any active 
support for a united Ireland.
    This treaty:

          1. Ignores the separation of powers because it transfers 
        responsibility from the federal courts to the executive branch;

          2. Denies those charged with having a day in court;

          3. Allows for provisional arrest;

          4. Provides that American law need not be violated; and

          5. Permits retroactive application to alleged activity 
        conducted even before the treaty's ratification.

    This effort on our part has nothing to do with Homeland Security or 
partisan politics. It is solely an effort to preserve our basic 
constitutional rights and civil liberties.
    This treaty could, and undoubtedly will release American citizens 
to a government with no constitution and no bill of rights, and with a 
terrible record of human and civil rights. There are numerous cases on 
record of confessions being extracted by torture or threats to one's 
family if the suspect would not confess. These are not from the time of 
our American Revolution against the very same country that is now 
trying to gain by diplomacy what they could not gain by force, they are 
of very recent vintage.
    I implore you not to open this door to gross injustices. I implore 
you to defeat this treaty.

    The Chairman. Thank you very much, Dr. Linnon, for your 
testimony. I'd like to call now on Professor Morris. Please 
proceed.

 STATEMENT OF MADELINE MORRIS, PROFESSOR, DUKE UNIVERSITY LAW 
                 SCHOOL, DURHAM, NORTH CAROLINA

    Professor Morris. I must say, and I wasn't planning to say, 
that I've been very moved by the testimony that I've heard so 
far, and by the enormous recognition given to the value of our 
basic rights and our Constitution and protections that we enjoy 
under it--I just couldn't possibly agree more and I felt very, 
very, as I said, touched in hearing that. And I would oppose 
the treaty if I had the view of it at all that it put into 
question or into any kind of jeopardy those rights that we all 
do value.
    I think there are misunderstandings about the effects of 
the treaty and about what the treaty does and doesn't do. And 
for that reason, and only that reason, I don't think that it 
ought to be rejected on the grounds that have been raised, and 
I will explain why, of course.
    Before doing that, I need to correct one point on the 
record. It's been suggested by Professor Boyle in various 
contexts that I work for the State Department. I do not have 
that honor, and I've never had that honor, and so that is a 
mistake that ought to be recognized as such.
    In the brief time that we do have, I'd like to address two 
of the concerns that have been voiced, or two sets of concerns, 
about rights Constitutional and other general human rights 
internationally, that it is said would be violated by adoption 
and ratification of this treaty.
    It's been suggested first that the treaty violates rights 
that are protected under the International Covenant on Civil 
and Political Rights, the ICCPR. And second, it's said that the 
treaty would violate the prohibition against the retroactive 
application of criminal laws. That has been posed in a number 
of different ways, and I will address each of the different 
scenarios that are presented for how we would end up with--if 
we were to have this treaty in force, with retroactive 
criminalization.
    First, the treaty as I've said, is purported to be unlawful 
under the International Covenant on Civil and Political Rights. 
For example, one of the documents that you have before you for 
this hearing is a letter by Professor Boyle, who unfortunately 
is not with us, dated March 4, 2004 to Senators Lugar and Biden 
stating that the proposed treaty would violate 19 specified 
provisions of the ICCPR. Exactly how or in just what ways the 
treaty would violate those provisions isn't addressed in the 
letter.
    Also not addressed in the letter is the complex and just 
fundamental threshold question of which ICCPR provisions would 
obligate, or states which of the parties in an international 
extradition proceeding would be bound by which of the Covenant 
provisions. Obviously that question would need to be answered 
before we could determine whether the treaty would violate any 
U.S. obligations under the ICCPR. If we look at the ICCPR 
carefully, we see that some of the provisions are, in there 
terms, applicable to only the requested state or to only the 
requesting state, so we would have to sort out which 
obligations fall to which states before even producing a 
genuine analysis of whether and when this treaty would violate 
the provisions of the ICCPR.
    That said, I'm going to--in order to fully address the 
substantive concerns, the concerns going to the basic 
fundamental rights--I'm going to proceed as though all of the 
ICCPR provisions did apply to this treaty, because again the 
rights that are implicated are what need to be addressed, even 
without regard to whether U.S. obligations under the ICCPR 
specifically are violated from a legal point of view.
    It appears to me that even if we assume, for argument, that 
the 19 cited provisions allegedly violated by the new treaty, 
that those provisions actually would not be violative of the 
ICCPR and not unlawful under the ICCPR in any way. My analysis 
that leads me to that conclusion is as follows: Five of the 19 
ICCPR provisions purportedly violated by the treaty concern the 
rights of freedom of religion, opinion, expression, assembly 
and association. Obviously the rights also protected by our own 
first amendment to the U.S. Constitution. Nothing in the 
proposed treaty threatens or impinges on the peaceful exercise 
of those civil and political rights. To the contrary, the 
treaty provides explicit protection of those rights in the 
context of extradition. Article 4 of the treaty states that, 
``extradition shall not be granted if the offense for which 
extradition is requested is a political offense.'' By doing 
that, the treaty prohibits extradition for political crimes 
such as treason or sedition--again, crimes constituted by their 
political content.
    Article 5 of the treaty further protects those rights by 
requiring ``extradition shall not be granted if the competent 
authority of the requested state determines that the result was 
politically motivated.'' So that even in a situation like the 
one described, in which there was a bar fight, a regular common 
crime of murder was committed, that crime would not have been 
considered a political crime and therefore exempted from 
extradition, because it wasn't committed for political 
purposes, however, after the treaty gets through the question 
of if it's a political offense, the treaty then also has 
provision for a questioning of the political motivation for the 
prosecution. So that if it were the case that those 
prosecutions that you spoke of were motivated because of the 
fact that thee were IRA members, that also would be looked at. 
So, you have two different kinds of protection if the offense 
itself is political, or if the prosecution decision is 
politicized. Both of those protect the underlying civil and 
political rights at issue here, and they need to be understood 
as distinct protections and protections that provide for a 
sophisticated political analysis as well, to be provided as 
another part of the protection against violation in the 
extradition context of the principles covered by the First 
Amendment.
    Even while providing those protections for the peaceful 
exercise of civil and political rights, the treaty explicitly 
excludes from the definition of ``political crimes'' grave 
violent crimes and weapons offenses. Under the treaty, those 
crimes are recognized for their violent nature regardless of 
whether that violence was driven by political beliefs or 
otherwise. Fully in accordance with the ICCPR and other 
multilateral conventions, the U.S.-U.K. Extradition Treaty does 
not accord to alleged perpetrators of alleged serious violent 
crimes, the protections afforded to those accused of political 
crimes that are a peaceful, if forceful, exercise of political 
rights. As the ICCPR itself states: ``Nothing in the present 
Covenant may be interpreted as implying for any State, group or 
person any right to engage in any activity or perform any act 
aimed at the destruction of any of the rights and freedoms 
recognized herein. . . '' Similarly, under the multilateral 
conventions on hijacking and other crimes on aircraft, hostage-
taking and other violent crimes that typically are committed 
for political purposes, the covered crimes are subject to 
prosecution ``without exception whatsoever'' and they're not 
considered political offenses.
    In the same vein, the U.N. General Assembly in its 1986 
resolution asks states to ``cooperate in combating terrorism 
through the apprehension and prosecution or extradition of 
terrorists, and the conclusion of treaties regarding the 
extradition or prosecution of terrorists.'' And it provides no 
protection in terms of treating violent crime as a political--
coming under the political exception to extradition, and 
therefore as an exception to these provisions that require 
states to extradite or prosecute individuals suspected of 
terrorist offenses. And so the treaty before you does not 
violate the protected civil or political rights reflected in 
our First Amendment or our International Covenant by excluding 
crimes of the greatest violence from the political offense 
classification.
    Also among the rights provisions that this treaty 
purportedly would violate are provisions articulating a set of 
rights protecting criminal suspects and defendants. Of course, 
extradition proceedings aren't criminal proceedings, and so the 
rights applicable to criminal proceedings don't properly apply 
to this extradition treaty, but nonetheless if we were to 
entertain an analogy between extradition proceedings and 
criminal proceedings it is not clear how the treaty would 
violate the rights in question: rights to a speedy, fair, 
public trial or extradition hearing; to a presumption of 
innocence; to freedom from arbitrary arrest and the like. The 
treaty--especially when put together with the body of U.S. law 
governing extradition--provide multiple safeguards going to due 
process, sufficiency of the evidence, authentic documentation 
and the like. And then to foster the efficacy of those 
safeguards, habeas corpus review is available to detainees 
pending extradition. For those reasons, if the rights 
applicable to criminal proceedings were, in fact, applicable to 
this treaty--which they are not--nevertheless the treaty would 
satisfy them, and the treaty satisfies the underlying 
principles embodied in the ICCPR provisions.
    There's also complained of, a violation of the general rule 
of the ICCPR favoring the pre-trial release of individuals 
subject to guarantees to appear for trial. Again, that refers 
to a criminal trial--not an extradition proceeding--but using 
our analogy, it's important to note that in the United States, 
U.S. courts can and sometimes do grant bail pending extradition 
hearings, and U.S. Supreme Court has indeed upheld the right of 
courts to grant bail in that context.
    The other rights, the other main rights objection or 
complaint that has been raised about the proposed treaty goes 
to the idea that the treaty would criminalize conduct 
retroactively, and that is an important point that has been 
raised in a number of different--with reference to a number of 
different treaty provisions--and so I would like to go through 
those separately in order to address them. It's a terribly 
fundamental concept for a constitutional system that we can't 
have conduct criminalized after it's already been performed. 
And so I will address the three ways that this treaty would 
purportedly permit that, but where I don't think that is 
actually the case.
    The ICCPR provision on retroactivity--just to lay out the 
rule--is that ``no one shall be held guilty of any criminal 
offense . . . which did not constitute a crime at the time when 
it was committed.'' The principle is well known and is 
embodied, of course, in the ex post facto clause of the U.S. 
Constitution.
    Now it's claimed that articles 2, 6 and 22 of the proposed 
treaty each violate this rule against retroactivity. In fact I 
believe that none of those provisions do violate the 
retroactivity rule.
    Article 2(4) of the treaty governs cases in which the 
substantive elements of a crime meet the dual criminality 
standard, but the jurisdictional elements differ in that the 
law of the requesting state provides for extraterritorial 
jurisdiction over that crime, while the law of the requested 
state does not. Article 2(4) provides that under those 
circumstances, the requested state may, at its discretion, 
grant extradition.
    It's asserted that that permits retroactive 
criminalization. The assertion in the documents I've read is 
not accompanied by a fully articulated argument, but my 
understanding is that the outline of that argument would be 
something like the following: First, the argument is 
necessarily premised on the proposition that jurisdictional 
differences defeat dual criminality, which is inaccurate. 
States are very different in their treatment of jurisdictional 
provisions when they evaluate the, when they try to equate or 
find different, the criminal statutes of two different states 
in order to make a dual criminality determination. The practice 
of the United States has tended to consider dual criminality 
requirements satisfied, notwithstanding differences in the 
scope of jurisdiction exercised over that crime by the 
respective states. Even within the treaty we're looking at that 
you have before you, in which Article 2(4) is being questioned 
in this respect, if you look at the preceding paragraph, under 
Article 2(3), we say there that we will consider dual 
criminality to be met even if the U.S. Federal law in question 
requires use of the Federal mails or other hooks with Federal 
jurisdiction, even if those jurisdictional provisions aren't in 
place in our extradition partner's law. Nevertheless, we say 
that's merely jurisdictional, just as Article 2(3) says here, 
and we nevertheless find that dual criminality is met. And in 
the domestic context in the U.S. we do the same.
    So, jurisdictional differences don't necessarily defeat 
dual criminality, but nevertheless, based on that premise, the 
argument seems to go forward that if we then allow extradition 
in that context, where jurisdictional differences exist between 
the two criminal statutes in the two states, that then somehow 
that means that conduct that was, that the conduct being 
prosecuted is being retroactively criminalized in the requested 
state, and that's simply flawed in its logic regardless of 
differing jurisdictional scope, and regardless of whether dual 
criminality is met or not.
    Under Article 2(4) of the treaty, the alleged perpetrator 
is held liable only if he committed the conduct while in the 
jurisdiction in which he committed that conduct, that conduct 
constituted a crime at the time of its commission. He is only 
being extradited for having committed a crime that, where he 
committed it was indeed a crime at the time of its commission. 
As long as that's so in the requesting state, the state where 
the crime occurred, extradition by the requested state does not 
retroactively criminalize the conduct--the requested state is 
not prosecuting, and has therefore not imposed any criminal 
liability at all. The requesting state is prosecuting based 
upon criminal provisions that were in place at the time of the 
conduct, so that neither state violates the retroactivity rule.
    It's claimed that Article 6 of the treaty constitutes yet 
another violation of the rule against retroactive 
criminalization, by saying that ``The decision by the requested 
state whether to grant the request for extradition shall be 
made without regard to any statute of limitations in other 
State.'' But Article 6 doesn't criminalize anything, 
retroactively or prospectively.
    Now, as it happens, Article 6 also doesn't abolish statues 
of limitations. The statutes of limitations in the requesting 
state, the place where the prosecution will occur remain in 
place just as they normally would in any prosecution. All the 
treaty says is that it is that state that will make a 
determination of the application of the statute of limitations 
in that particular instance.
    But even if it did eliminate a statute of limitations, even 
if Article 6 were to have said ``whenever we extradite under 
this treaty, no statutes of limitations will apply,'' it still 
wouldn't retroactively criminalize any conduct in each case--
the conduct in question has to have been in place at the time 
that the conduct was committed.
    Article 22 of the treaty, which is the last of the three 
articles which it is said leads to a retroactivity violation 
states, ``this treaty shall apply to offenses committed before, 
as well as after, the date it enters into force.'' It is said 
that by applying the treaty retroactively, as it were, somehow 
this is criminalizing conduct retroactively. That is not the 
case. Article 22 presents and refers to a framework to govern 
extradition for crimes that were committed when they were 
already criminalized in the jurisdiction where they were 
committed, so the conduct was criminal at the time, and the 
treaty applies a framework for extraditing only for conduct 
that was criminal at the it was committed.
    And so in my view, no article of this treaty violates the 
rule against retroactive criminalization. I understand the 
various ways that it has been said to do that, but in my view, 
and on serious consideration, I don't think that it does that, 
and I don't think that it, therefore, suffers from various 
serious constitutional impediment that would exist if it did.
    In my view, also, as I went through at the beginning of my 
remarks, no article of the treaty indeed violates the other 
rights protected by the ICCPR and our Constitution that have 
been the articles that have been called into scrutiny in that 
respect in the context of this treaty.
    Thank you for the opportunity to address these matters, and 
of course, I welcome your questions.

    [The prepared statement of Ms. Morris follows:]

    Prepared Statement of Professor Madeline Morris, Duke Law School

    Mr. Chairman, ranking member Biden, and other members of the 
committee:
    In the brief time that we have, I would like to address two 
concerns that have been voiced with respect to the lawfulness of the 
proposed U.S.-U.K. Extradition Treaty.\1\
---------------------------------------------------------------------------
    \1\ Extradition Treaty Between the United States and the United 
Kingdom, 31 March 2003 (Treaty Doc. 108-23).
---------------------------------------------------------------------------
    It has been suggested: first, that the treaty violates rights that 
are protected under the International Covenant on Civil and Political 
Rights (``ICCPR''); \2\ and second, that the treaty violates the 
prohibition against the retroactive application of criminal laws.\3\
---------------------------------------------------------------------------
    \2\ International Covenant on Civil and Political Rights, G.A. Res. 
2200A (XXI) of 16 Dec. 1966 (hereinafter ``ICCPR'').
    \3\ See, e.g., ICCPR, supra note 2, art. 15; U.S. Constitution, 
art. 1, sec. 9 (ex post facto clause).
---------------------------------------------------------------------------
    It is suggested that the treaty is unlawful under the International 
Covenant on Civil and Political Rights. For example, Professor Boyle's 
March 4, 2004 letter to Senators Lugar and Biden states that the 
proposed extradition treaty would violate nineteen specified provisions 
of the ICCPR.\4\ How or in what ways the new treaty would violate those 
provisions is not addressed in the letter.
---------------------------------------------------------------------------
    \4\ Letter from Prof. Francis Boyle to senators Lugar and Biden, 3/
4/04 (on file with author).
---------------------------------------------------------------------------
    The May 4, 2004 letter does not raise the complex threshold 
question of which ICCPR provisions obligate which state or states in 
the course of an international extradition. That question, obviously, 
would need to be answered before determining whether the treaty would 
violate any U.S. obligations under the ICCPR. For today, I will only 
note that critical issue in passing. In order to address fully the 
substantive concerns that have been raised, I will proceed as if each 
of the nineteen ICCPR provisions cited were in fact relevant to U.S. 
obligations under the ICCPR in the context of international 
extradition. It appears to me that, even if we were to assume arguendo 
that the nineteen cited provisions do apply, the treaty would not be 
unlawful under the ICCPR. My analysis is as follows.
    Five of the nineteen ICCPR provisions purportedly violated by the 
treaty concern the freedoms of religion, opinion, expression, assembly, 
and association \5\--rights also protected under the First Amendment to 
the U.S. Constitution. Nothing in the proposed treaty threatens or 
impinges upon the peaceful exercise of those civil and political 
rights. To the contrary, the treaty provides explicit protection of 
those rights in the context of extradition. Article 4 states that 
``[extradition shall not be granted if the offense for which 
extradition is requested is a political offense.'' The treaty thereby 
prohibits extradition for political crimes such as treason or sedition. 
Article 5 of the treaty provides further protection of those rights by 
requiring that ``extradition shall not be granted if the competent 
authority of the requested state determines that the result was 
politically motivated.''
---------------------------------------------------------------------------
    \5\ ICCPR, supra note 2, arts. 18, 19, 21, 22.
---------------------------------------------------------------------------
    Even while providing those protections for the peaceful exercise of 
civil and political rights, the treaty explicitly excludes from the 
definition of ``political crimes'' grave violent crimes and weapons 
offenses. Under the treaty, those crimes are recognized for their 
violent nature regardless of whether that violence was driven by 
political beliefs or otherwise. Fully in accordance with the ICCPR and 
other multilateral conventions, the U.S.-U.K. Extradition Treaty does 
not accord to alleged perpetrators of serious violent crimes the 
protections afforded to those accused of political crimes that are a 
peaceful, if forceful, exercise of civil and political rights. As the 
ICCPR states: ``Nothing in the present Covenant may be interpreted as 
implying for any State, group or person any right to engage in any 
activity or perform any act aimed at the destruction of any of the 
rights and freedoms recognized herein . . .'' \6\ Similarly, under the 
multilateral conventions on hijacking and other crimes on aircraft,\7\ 
hostage-taking,\8\ and other violent crimes that typically are 
committed for political purposes, the covered crimes are subject to 
prosecution ``without exception whatsoever'' and are not considered 
political offenses. In the same vein, the U.N. General Assembly in its 
1986 resolution asks states to ``cooperate in combating terrorism 
through the apprehension and prosecution or extradition of terrorists, 
and the conclusion of treaties regarding the extradition or prosecution 
of terrorists.'' \9\ The treaty before you thus does not violate 
protected civil or political rights by excluding crimes of the gravest 
violence from the political offense classification.
---------------------------------------------------------------------------
    \6\ ICCPR, supra note 2, arts 5.
    \7\ Convention for the Suppression of Unlawful Seizure of Aircraft, 
Dec, 16, 1970, 22 U.S.T. 1641, 860 U.N.T.S. 105; Montreal Convention 
for the Suppression of Unlawful Acts Against the Safety of Civil 
Aviation, Sept. 23, 1971, 24 U.S.T. 564, 974, U.N.T.S. 177.
    \8\ International Convention Against the Taking of Hostages, Dec. 
17, 1979, TIAS No. 11, 081, 1316 U.N.T.S. 205.
    \9\ G.A. Res. 61, 40 U.N. GAOR Supp. No. 53 (1986).
---------------------------------------------------------------------------
    Also among the nineteen ICCPR provisions that this treaty 
purportedly would violate are the provisions articulating a set of 
rights protecting criminal suspects and defendants.\10\ Extradition 
proceedings, of course, are not criminal proceedings. So the rights 
applicable to criminal proceedings do not apply to this extradition 
treaty.
---------------------------------------------------------------------------
    \10\ ICCPR, supra note 2, arts. 9, 10, 14, 15.
---------------------------------------------------------------------------
    If we were, nevertheless, to entertain an analogy between 
extradition proceedings and criminal proceedings, it is not apparent 
how the treaty would violate the rights to a speedy, fair, and public 
trial hearing, to a presumption of innocence, or to freedom from 
arbitrary arrest.\11\ The treaty and the U.S. law governing extradition 
\12\ provide multiple safeguards going to due process, sufficiency of 
the evidence, authentic documentation, and the like. To foster the 
efficacy of those safeguards, habeas corpus review is available to 
detainees pending extradition.\13\ For these reasons, if the rights 
applicable to criminal proceedings were applicable to this treaty--
which they are not--the treaty would satisfy them.
---------------------------------------------------------------------------
    \11\ These rights appear in ICCPR, supra note 2, arts. 9, 14.
    \12\ See 18 U.S.C. Sec. 3181 et seq.
    \13\ See Restatement of the Law 3d, The Foreign Relations Law of 
the United States, Sec. 478, Comment C; id. at Reporters' Note 2 
(1987).
---------------------------------------------------------------------------
    The availability of habeas review satisfies another of the nineteen 
ICCPR provisions cited as being violated by the treaty. This provision 
articulates the right ``to take proceedings before a court [to] decide 
without delay the lawfulness of [one's] detention. . . .'' \13\ Habeas 
review, clearly, is precisely what is required.
---------------------------------------------------------------------------
    \14\ ICCPR, supra note 2, art. 9(4).
---------------------------------------------------------------------------
    The list of nineteen also includes an ICCPR provision that 
recommends a ``general rule'' permitting pre-trial release ``subject to 
guarantees to appear for trial.'' \15\ Again, an extradition is not a 
criminal trial and so this ICCPR provision is, in fact, inapplicable.
---------------------------------------------------------------------------
    \15\ ICCPR, supra note 2, art. 9(3).
---------------------------------------------------------------------------
    Nevertheless, it is worth noting that U.S. courts can and sometimes 
do grant release on bail pending extradition hearings. Indeed, the U.S. 
Supreme Court has specifically upheld the courts' authority to do 
so.\16\
---------------------------------------------------------------------------
    \16\ Wright v. Henkel, 190 U.S. 40, 63 (1903).
---------------------------------------------------------------------------
    It also has been asserted that, in violation of the ICCPR, this 
treaty would criminalize conduct retroactively. This brings me to the 
second issue that I will address: retroactive criminalization. It is 
claimed that the treaty would violate the rule against retroactive 
criminalization in three separate ways.
    The ICCPR provision on retroactivity states that, ``[n]o one shall 
be held guilty of any criminal offense . . . which did not constitute a 
crime at the time when it was committed.'' \17\ The principal is well 
known and is embodied, of course, in the ex post facto clause of the 
U.S. Constitution.\18\
---------------------------------------------------------------------------
    \17\ ICCPR, supra note 2, art. 15.
    \18\ U.S. Constitution, supra note 3, art. 1, sec. 9.
---------------------------------------------------------------------------
    It is claimed that articles 2, 6 and 22 of the proposed treaty each 
violate this rule against retroactivity in criminal law. In fact, I 
believe, none of those provisions violates the retroactivity rule.
    Article 2(4) of the treaty governs cases in which the substantive 
elements of a crime meet the dual criminality standard but the 
jurisdictional elements differ in that the law of the requesting state 
provides for extraterritorial jurisdiction over that crime while the 
law of the requested state does not. Article 2(4) provides that, under 
these circumstances, the requested state may, at its discretion, grant 
extradition.
    It is asserted that this provision permits retroactive 
criminalization. The assertion is not accompanied by a fully 
articulated argument. It seems, though, that the outlines of the 
argument are as follows.
    First, the argument is necessarily premised on the proposition that 
jurisdictional differences defeat dual criminality. That premise is 
inaccurate in many or most cases. States vary in their treatment of 
jurisdictional differences in evaluating dual criminality. The practice 
of the United States has tended to consider the dual-criminality 
requirement satisfied notwithstanding differences in the scope of 
jurisdiction exercised over the crime by the respective states. The 
paragraph preceding article 2(4) (article 2(3)) is typical of U.S. 
treaties on this issue. Article 2(3)(b) provides that an offense shall 
be extraditable ``whether or not the offense is one for which United 
States federal law requires the showing of such matters as interstate 
transportation, or use of the mails or of other facilities affecting 
interstate or foreign commerce, such matters being jurisdictional 
only.''
    In the domestic context as well, U.S. law typically treats 
jurisdictional provisions very differently from the other elements of a 
crime. Mens rea requirements provide a good example. U.S. courts have 
frequently held that the mens rea (mental state) requirement for 
conviction of a given crime (i.e., negligence, recklessness, knowledge 
or purpose) applies to all of the elements of a crime except the 
jurisdictional elements. Those are frequently described as 
``jurisdictional only.'' \19\
---------------------------------------------------------------------------
    \19\ See Wayne R, LaFave, Vol. 1 Substantive Criminal Law, Sec. 
4.1(b); id. at Sec. 5.1(b) n. 13 (2d ed. 2003).
---------------------------------------------------------------------------
    Notwithstanding its flawed premise, the retroactivity argument 
concerning art. 2(4) goes on from here. It appears to reason, 
implicitly, that if, because of jurisdictional differences in the two 
states' statutes on the crime, the requested state would not have 
jurisdiction to prosecute but the requesting state would, then 
extradition for that crime retroactively creates criminal liability for 
that crime in the requested state.
    That reasoning is flawed. It conflates the dual-criminality 
requirement with the non-retroactivity requirement. It does so by, 
first, assuming that dual-criminality is not met if there are 
jurisdictional differences in the two states' provisions and then by 
further assuming that, if dual-criminality is not met, then extradition 
constitutes retroactive criminalization in the requested state. Neither 
assumption is correct. Regardless of differing jurisdictional scope, 
and regardless of whether dual criminality is met or not, under article 
2(4) of the treaty, the alleged perpetrator is held liable only if he 
committed the conduct while in the jurisdiction in which that conduct 
constituted the crime at that time. As long as that is so in the 
requesting state, extradition by the requested state does not 
retroactively criminalize the conduct, The requested state is not 
prosecuting and has, therefore, not imposed any criminal liability at 
all. The requesting state is prosecuting based on criminal provisions 
that were in place at the time of the conduct. Neither state violates 
the retroactivity rule.
    It is claimed that article 6 of the treaty constitutes yet another 
violation of the rule against retroactive criminalization. Article 6 
reads: ``The decision by the requested state whether to grant the 
request for extradition shall be made without regard to any statute of 
limitations in either State.'' Article 6 criminalizes nothing, 
retroactively or prospectively. As a matter of fact, Article 6 does not 
abolish the operation of the applicable statutes of limitations; it 
merely leaves to the prosecuting state the application of the statute 
of limitations required under its own laws. But even if article 6 did 
abolish a statute of limitations, it still would not violate the 
prohibition against criminalizing conduct that did not constitute a 
criminal offense at the time the conducted occurred.
    Article 22 of the treaty states: ``This treaty shall apply to 
offenses committed before as well as after the date it enters into 
force.'' This article too is asserted to violate the rule against 
retroactive criminalization. But Article 22, like Article 6, 
criminalizes nothing, retrospectively or prospectively. Article 22 
concerns the framework governing extradition for crimes that 
constituted crimes at the time of their commission. Article 22 in no 
way conflicts with the rule against retroactive criminalization.
    In sum, no article of the new treaty violates the rule against 
retroactive criminalization articulated in the ICCPR and in the U.S. 
Constitution. And no article of the treaty violates the other rights 
protected by the ICCPR that have come under scrutiny in this context.
    I thank for the opportunity to address these matters and welcome 
your questions.

    The Chairman. Well, thank you very much, Professor Morris. 
I will now proceed to questions of the panel of witnesses. At 
our first hearing on this treaty, the committee heard testimony 
from the administration, and used that opportunity to seek the 
administration's views regarding several concerns that have 
been raised by opponents of the treaty. There are a number of 
points on which the testimony the committee has received from 
the panel today diverges from the testimony the committee 
received from the administration. In order to ensure a 
comprehensive record for the committee's consideration, I'm 
going to use much of our time here today to explore these areas 
of divergence with our witnesses. Many of the areas for 
discussion today are raised by the written testimony of 
Professor Boyle. Unfortunately, as I mentioned in my opening 
statement, Professor Boyle is not able to join us. In order to 
make good use of the hearing, however, I will take up issues 
raised in his written testimony, and seek the views of our 
other witnesses on these points.
    Let me just say that we will alternate between my 
questions--and they are extensive, simply to make certain that 
our record is complete as possible--and questions that Senator 
Dodd may raise, and after I've proceeded for awhile, Chris, I 
will defer to you to take up the slack, and then I will be back 
at it again.
    Now, for all three of the witnesses, I have this question. 
Mr. Meehan has testified that the proposed treaty ``provides 
that American law need not have been violated in order for 
extradition to take place.'' Likewise, Dr. Linnon has indicated 
in his testimony that the treaty ``allows for extradition even 
if no United States federal law has been violated.'' The 
administration has testified that extradition could only take 
place under the proposed treaty for conduct that is 
criminalized in the United States. However, given the Federal 
system in the United States, the conduct could be criminalized 
under either U.S. Federal law or state law. The administration 
further noted that ``this is an established practice in 
extradition law . . . because we do not have a full Federal 
criminal code.''
    Now, Mr. Meehan, or Dr. Linnon, do either of you wish to 
respond to the administration's testimony on this issue? And 
then, following Mr. Meehan and Dr. Linnon's comments, Dr. 
Morris, would you care to comment?
    Mr. Meehan. Mr. Chairman, I've asked for permission to 
utilize the services of our national legal counsel, Mr. Jim 
Magee, to answer questions of a legal nature. He is eminently 
more qualified to do so than I am, and I thank you for the 
opportunity to allow him to do that.
    The Chairman. Yes, sir.
    Mr. Magee. Thank you, Mr. Chairman. I believe your question 
was, the treaty as we understand it proposes to allow for 
criminality in the United Kingdom where criminality would not 
exist in this country. And I think that position has been 
addressed fairly well by Professor Boyle in both his March 4 
letter, as well as his statement that would have been presented 
here today where he talks specifically--I believe we're talking 
about the concept of conspiracy that would not have otherwise 
been included in this country in reference to prior acts--that 
existed prior to the treaty. Whether it be criminalization in 
the United Kingdom would not be criminal here, and would in 
fact require this country to extradite a United States citizen.
    The Chairman. Thank you. Dr. Linnon, do you have a further 
comment on this issue?
    Dr. Linnon. Not on this issue, sir, thank you.
    Senator Dodd. I have sort of a similar question, and maybe 
if we could move this along a little bit.
    The Chairman. Very well.
    Senator Dodd. Just as a practical matter, let me raise this 
with you, because this is a concern. Because this has been the 
answer I think the administration's response to a question 
regarding the earlier testimony suggested that, in fact, that 
if a state law--was not Federal law--but was a state law 
created a certain crime that would qualify, then as an 
extraditable offense, we agree on that point. We have 
situations, for instance, where the District of Columbia--
possession of a firearm you get, is it 12 years? Twelve months 
in jail. Britain has a similar provision. Now, presumably, 
someone that was apprehended in the District of Columbia where 
that statute existed, or that ordinance exists, would then be 
qualified as an extraditable offense. And that's where the 
concern comes in here--that you would be using a jurisdictional 
provision which may not, in fact very limited in the United 
States, may only exist in certain areas. In fact, this 
particular provision, I know, that is something that was highly 
objected to by the National Rifle Association--you can imagine, 
then, the suggestion that someone would be extraditable in some 
of the states where a provision in North Carolina, for 
instance, might have different views on the possession of a 
firearm than they do in the District of Columbia. Yet, if a 
person were here in the District of Columbia where that was an 
offense, that would become an extraditable offense, because 
Britain has a similar national law in that regard. That is a 
concern that people have about this. How do you address that?
    Professor Morris. Yes, I'd be happy to address it.
    Senator Dodd. Did you understand the point that I made?
    The Chairman. I think that I do, perhaps Professor Morris 
does. Would you please proceed?
    Professor Morris. Thank you. There are two ways in which 
that potential problem is eliminated, or virtually eliminated. 
One is by operation of law itself. It is not necessarily the 
case that the law of the state or jurisdiction where the 
suspect is found, not necessarily the case that that's the law 
that will then be compared with foreign law in order to 
determine dual criminality.
    Senator Dodd. The residence?
    Professor Morris. It may not necessarily be the state with 
which the subject has nexus, if the state with which the 
suspect has nexus is, if that state's law on the subject is in 
some sense anomalous, another option which is sometimes applied 
is to look at the laws that exist in most, or many, states. And 
that is a choice to be made.
    Senator Dodd. Isn't that an unequal application of law? I 
mean, if I live in the District of Columbia, I'm extraditable, 
if I live in Maryland or Virginia, I'm not.
    Professor Morris. Well, that's what I'm saying is remedied. 
I'm sorry, I haven't been clear enough. The point, precisely, 
is that it need not necessarily be the law in the District of 
Columbia that is applied, it's sometimes, it's the law where 
there's, the place where there is nexus, and sometimes instead, 
a general survey of state law on the subject is undertaken and 
some rough estimation of what most U.S. law is with reference 
to this crime is what is used instead as the baseline for a 
number of reasons, including to avoid anomalous situations 
where you have a suspect that is unfortunate enough to have 
showed upon the wrong jurisdiction.
    Senator Dodd. Doesn't this raise the problem, potentially, 
of forum-shopping by the Justice Department, in a sense? Where 
you go around in order to get an extraditable offense, you 
would find a state that had an extraditable offense that the 
U.K. would have as well and the danger of forum-shopping for 
that purpose? I don't want to dwell on it, I think it's an 
interesting point, but it just raises concerns with me about an 
unequal application of law here.
    Professor Morris. I guess that would be true of any 
extradition treaty.
    Senator Dodd. Thanks. Indeed, did you want to comment on 
that? Did you have any comments on this?
    Dr. Linnon. I see your point, Senator, but I don't see how 
it's easily resolved if the legislation is different in 
different jurisdictions.
    The Chairman. Very well. We'll try another question. Mr. 
Meehan explained in his testimony that he opposes the treaty in 
part because he believes it would allow persons to be 
extradited to the United Kingdom, and I quote ``for merely 
exercising their right to free speech, guaranteed under the 
First Amendment of the Constitution.'' Professor Boyle has 
similarly asserted in his written testimony that this treaty 
would violate the United States Constitution by permitting the 
extradition of U.S. citizens for conduct protected under the 
First Amendment.
    The committee raised this very serious matter with the 
administration witnesses at the November hearing. The 
administration explained as follows, and I quote, ``the treaty 
requires the finding that the conduct at issue would constitute 
a criminal offense punishable by a sentence of one year or more 
if committed in the United States. Since engaging in 
constitutionally-protected free speech cannot be punished in 
the United States, this test of dual criminality would fail, 
and therefore the conduct in question would not be 
extraditable.''
    Now, Mr. Meehan, how do you respond to the administration's 
statement?
    Mr. Meehan. Mr. Chairman, my understanding is that any 
speech, any opposition to British policy in the North of 
Ireland would be extraditable under this new treaty. That's the 
understanding that I have, and that is why I made that 
statement. I hope that answers your question.
    The Chairman. Well, it explains at least your view, and 
your belief about the subject. I'm not here to argue with you, 
we're really trying to establish----
    Mr. Meehan. Absolutely not, Mr. Chairman, I'm not trying to 
be argumentative, I'm merely stating my position.
    The Chairman. I understand, and I asked you to do that. Dr. 
Linnon, would you like to comment further on this issue?
    Dr. Linnon. No, thank you, Senator.
    The Chairman. Professor Morris, what is your view of the 
issue? Do you believe the dual criminality test adequately 
shields conduct that is protected by the First Amendment from 
being extraditable under this treaty? And what other 
protections does the treaty provide for such conduct?
    Professor Morris. The dual criminality requirement provides 
enormous protection for First Amendment rights, and maybe alone 
would be enough. But it is not alone. There are protections for 
the same principles embodied in the political offense exception 
and the political motivation enquiry. The dual criminality 
requirement, in effect, prohibits extradition for prosecution 
of conduct that would receive protection under the U.S. 
Constitution, in other words, under dual criminality, the U.S. 
can only extradite if we would be able to prosecute here for 
the conduct in question. We can't prosecute here for conduct 
that is protected by the First Amendment, so the dual 
criminality requirement provides enormous, virtually complete 
protection in that way.
    But then there is the possibility of manipulation of 
exceptions, and so the political offense exception to 
extraditability takes up the slack there.
    The Chairman. Now, specifically, if Mr. Meehan was in a 
public forum in the United States as a citizen, he makes some 
comments about Northern Ireland, about politics, about the 
administration of justice, about whatever--now he's concerned, 
and we would be too, that these comments about Northern 
Ireland, about politics, about British administration of 
justice or whatever would lead him to potentially being 
extradited to the United Kingdom for prosecution. Now, that is 
the concern as I understand it, and now you're asserting that 
he could not be extradited--do I hear you correctly?
    Professor Morris. Yes, he absolutely could not be 
extradited under American law in those circumstances, if the 
supposed crime were limited to political speech, to an 
expression of opinion about a political topic with regard to 
the United States or anywhere else in the world. If that were 
the conduct constituting the purported crime, then that 
individual could not be under U.S. Constitution and statutory 
law, extradited for that offense for the reasons both that they 
couldn't be prosecuted here for saying that, and so dual 
criminality is not met, and also because, if the offense were 
limited to political speech, does it include violence and so 
on? And then it would be a political offense under the treaty, 
and therefore, not be subject to extradition.
    If all of that failed, and somehow there were some prospect 
of extradition, then presumably a political motivation would be 
identified that would also provide discretion, at least, to 
prevent that extradition. But it wouldn't get that far. The 
fact of the matter is that if we couldn't prosecute here 
because of the First Amendment, then we can't extradite for 
that very conduct because of the First Amendment.
    The Chairman. Mr. Meehan?
    Mr. Meehan. Excuse me, Mr. Chairman, but I seem to 
understand that these determinations up to this point have been 
made in a court of law. And the new treaty removes that 
determination factor from a court of law and turns it over to 
the executive branch, who is to determine whether the executive 
branch follows through on the rule of law in the same way that 
a court would follow through on a question of this nature? 
These are some of the things that scare us.
    The Chairman. Does anyone have a response?
    Dr. Linnon. If I could make a comment, Mr. Chairman. 
Article 4, sections 3 and 4--the last two sentences of these 
sections remove the role of the judiciary, and it turns it over 
to the executive branch, so Professor Boyle is talking about 
current law, the law is going to change when this treaty is 
approved--that is my concern.
    The Chairman. Well, we probably should raise that later 
with the administration. Is the executive branch not subject to 
the law and to the courts? My guess is, as an American citizen, 
probably so. But nevertheless, it's important, the binding 
aspects of the treaty. Yes, Professor Morris?
    Professor Morris. I think this is one of the points that 
requires clarification. The determination of extradition, the 
determination of whether there is sufficient evidence, the 
determination of whether the offense is political, remains with 
the courts. That was true before, that is true now. The 
Judiciary conducts a hearing in which those conditions are 
addressed. If we look at the conditions for the political 
offense exception under Article 4, we see that it is the judge 
or magistrate carrying out the hearing that determines not only 
whether there is sufficient evidence presented, but whether the 
offense was political, and therefore exempt from extradition. 
Where the Executive comes in and why this treaty is different 
from the Supplementary Treaty of 1985 is that it is the 
Secretary of State and the judge that determines the political 
motivation. Where there is no political exception for 
extradition, the person would be perfectly extraditable, the 
only remaining protection is the question, is the requesting 
state doing this in order to prosecute this person for 
political purposes? That question has been taken from the 
judicial realm to the Secretary of State where it is for all 
other U.S. extradition treaties. I understand the argument that 
this is different, but it's been taken there, not in order to 
limit the judicial. Well, what it doesn't do is to limit the 
judicial inquiry, but it adds another level of inquiry that 
brings to bear the resources of the U.S. State Department--its 
expertise, its access to intelligence information, the entire 
Executive apparatus for understanding the motivations of a 
foreign government, which presumably can't be well-analyzed by 
a judge or a magistrate after hearing witnesses at an 
extradition hearing. So, it doesn't diminish, I believe, the 
judicial goal in an inappropriate way, but does bring in the 
resources of the executive branch to evaluate again whether 
this is a proper extradition request or prosecution-based 
extradition request.
    The Chairman. Mr. Meehan?
    Mr. Meehan. Under Article 4, item 3 it clearly states 
``notwithstanding the terms of paragraph 2 of this article, 
extradition shall not be granted if the competent authority of 
the requested state determines that the request was politically 
motivated.'' In the United States, the executive branch is the 
competent authority for purposes of this article, that is, in 
the new proposed reading, it clearly removes the determination 
as to whether an offense is politically motivated from the 
courts to the executive branch. That scares me, I don't know 
about anybody else.
    Dr. Linnon. That's my position also, Senator.
    The Chairman. Ms. Morris?
    Professor Morris. There's a difference between a crime's 
political character--whether something is a political offense 
and whether it is a perfectly common crime, something that 
someone would be extradited for in any other circumstance, 
except that the requesting state is motivated by political 
persecution motives in its request. So that when we look at 
Article 4, first we see that the judge may not extradite if the 
offense is one of the ones listed as a political offense, or 
rather, pardon me--if the judge determined, pardon me--that the 
crime is a political offense. Article 4 goes on to say that if 
it involves this kind of violence, it's not a political offense 
but the judge determines, other than the excluded violent 
crimes here, whether the crime is the basis for the extradition 
request is a political offense. The judge did that before, the 
judge does that in the new treaty. The judge cannot extradite 
if he determines the offense in question is a political one. 
That's Article 4(1) and (2).
    And then as you refer us to Article 3, Article 3 adds yet 
another layer of review. It says that after the judge has 
finished with that inquiry and has said ``No, the crime charged 
is not a political offense.'' If he says it's a political 
offense, the inquiry is over. If he says it's not a political 
offense, if he says, ``This person can be extradited'' in terms 
of those aspects of the question, then the Secretary of State 
takes another look at it and determines another separate 
questions which is, ``Well, even if it's not a political 
offense, even if this involved killing someone, nevertheless, 
is the requesting state asking for this person to be extradited 
because they want to persecute the person?'' They have some 
other agenda going for asking for this extradition.
    The Chairman. Let me just say, the purpose of the hearing 
is to get these views in front of us. The Senate is finally 
going to have to make a decision. While we're attempting to get 
informed views, and we'll have some more, and maybe perhaps 
Senators will want to discuss this particular issue at greater 
length, and I think you illuminated it--I don't want to cut off 
the debate on this particular issue, but I would just say that 
we're not going to try to resolve this between Senator Dodd and 
myself today. We will make this hearing record available to all 
of our colleagues, as well as to staff and to others, to 
examine carefully, but obviously the issue has been raised and 
views have been expressed about it. Yes, Senator Dodd?
    Senator Dodd. Yes, what I hear you saying, Ms. Morris, is 
actually what this provision is is a protection against those 
people who might otherwise be extraditable because a court has 
ruled them not to qualify under the political exception, and 
that by providing a provision that would then turn it over to 
the Secretary of State that actually provides some protection. 
If the reverse were true that the court has ruled that the 
political exception applies--is there, can they then, the 
government in this case, appeal to the Secretary of State to 
reverse the decision by the court, to conclude in fact that it 
is not politically motivated? And thus make the person 
extraditable?
    Professor Morris. That would not be possible, the terms of 
the treaty give that power to the judiciary. If the judiciary 
at the hearing, if the judge or magistrate determines that it 
is a political offense, that is the end of the matter.
    Senator Dodd. So, it's really only designed to provide a 
protection from the person being extradited when the courts 
have ruled that they are extraditable, in your opinion?
    Professor Morris. Precisely. One way to look at it is to 
say that as a matter of law, they are extraditable. Now we're 
going to look at it from a political point of view, is there 
something going on that is wrong here? And that is best done by 
the Secretary of State, and not by a magistrate in an 
extradition hearing.
    Dr. Linnon. But if the Secretary of State has the right to 
overturn an extraditable offense, wouldn't he also have the 
same right to overturn a non-extraditable offense?
    Senator Dodd. That was my question, and she says no.
    The Chairman. Apparently the Secretary of State, at least 
from Senator Dodd's questioning, is another court of appeal. In 
other words, you're protected by the court and if you win 
there, that is it. Now, if you lose in the court, the Secretary 
of State can still say, ``No, we're not going to extradite you, 
Mr. Meehan, because we suspect that the reason for this request 
for you to go somewhere is political. And that's my 
understanding, is that is an extra protection for you, rather 
than one in which you overturn the court with the Secretary. 
But I appreciate Senator Dodd raising the question, we will all 
circle around that again, because it's a very important issue 
which is raised quite correctly.
    Dr. Linnon. Senator? The thing that bothers me about this, 
first of all, Professor Morris talked about the intent--is it 
the intent of the requesting state--intent is an extremely 
difficult thing to prove, legally, as any attorney knows. And 
secondly, as I mentioned before, Sections 3 and 4, the last two 
sentences transfer responsibility for determining whether the 
extradition request is politically motivated to the Executive. 
Well, that takes the judge out of it. That takes the judge out 
of it, and that's frightening.
    The Chairman. What we're hearing, Dr. Linnon, is the judge 
is very much in it. If the judge has made a determination that 
the person can't be extradited, now that's the end of the 
affair. Now let's say the judge has ruled that a person can be 
extradited, then the question is, can the Secretary of State 
then overrule the judge to prevent the person from being 
extradited? And that is the issue.
    Dr. Linnon. Senator, remember the case of Joe Dougherty?
    The Chairman. I don't remember the case.
    Senator Dodd. I remember the case.
    Dr. Linnon. The judge ruled he was not extraditable. He was 
sent back to Northern Ireland. He wasn't extradited back there, 
he was sent back there as an illegal immigrant. So, you see, 
there's a way around it. He had such a marvelous case, every 
aspect of it was justifiable, but he went back anyway. That's 
the sort of thing that frightens me.
    Senator Dodd. Let me just, if I can, I've raised the issue 
one way, but let me raise it another way, because I think it's 
important. Under the existing treaty, of course, the 
Supplemental Treaty of 1985, we don't go to the Secretary of 
State, appeal matters, even to the fact situation I've 
described, when determined by a court of law, appealed 
judicially. There is the issue--and I don't deny this at all--
but once you get into the, move into the ``political realm'' of 
the decision-making process here, even under a fact situation 
that the courts have ruled that someone is extraditable, that 
when you go up to the political world, the Secretary of State, 
in deciding whether or not a matter between our country and 
other countries is going to be determined has to consider a lot 
of factors. There are a lot of things going on--who's an ally 
in our present conflict? Whose not? What are the considerations 
on trade? There are all sorts of things, like you're getting 
advice from a lot of people telling you what the implications 
are going to be--politically--of your decision. Whereas, in 
court of law, we like to think of a judge making a decision 
based upon strictly what the law is, regardless of what the 
other implications may be. While it may be offensive to the 
country who is seeking extradition, while it may hurt your 
trade politics and may cause you to lose a vote in the United 
Nations because they're upset about it, a judge will make a 
decision based upon what they think the law is. There is a 
danger, and I'll say this to the Chairman, once you've asked 
someone whose portfolio is much larger than just deciding what 
the law is, then you run into the further complications in 
making that decision, and these are matters of law as to 
whether or not these person's rights, their rights and 
liberties are being violated. And therefore, I think that more 
thought needs to be given to this question.
    I wonder if you want to comment on this, I don't want to 
delay this, we have a lot of questions, but there is the 
problem--do you understand? That when you're asking the 
Secretary of State, and I'm not talking about Condoleezza Rice, 
but any Secretary of State, and the question of Great Britain--
Great Britain is a great ally, in many cases they were one of 
the few countries that supported the United States in Iraq. 
There are all sorts of votes that come up in the United 
Nations, and we're not unmindful of those considerations when 
the Secretary of State is making decisions, and so even though 
the courts have said someone is extraditable, and even though 
the Secretary of State may think, ``You know, I think that was 
a bad decision, but I've got all of these other matters in 
front of me, I've got the President telling me how important 
this relationship is, I've got everyone else telling me how 
important it is, maybe my decision on this matter is going to 
be colored by other factors other than just what these 
individual's rights are, as I understand them to be.'' That's 
the danger, I think, about moving from the court of law to an 
otherwise political position to make a determination, I think 
that is the concerning thing expressed, if I may say so, by 
others.
    Dr. Linnon. That is correct.
    The Chairman. Professor Morris?
    Professor Morris. My point is only that each of these 
provisions within Article 4 is a negative--is a showstopper. 
First, the judiciary has a crack at it in a context in which 
the judicial function is best exercised. If the judiciary says, 
``It ends here.'' It ends there. It's not that the Secretary of 
State can reverse that. Then we have another negative 
provision, that extradition shall not be granted if, in each 
case ``extradition shall not be granted'' so if it goes from 
the judiciary to the Secretary of State, as we've said, the 
Secretary of State can't then, for political reasons, 
nevertheless extradite, so the only slippage, the only 
conceivable loss, I think, in judicial power that you're 
talking about is, if the judiciary said, ``Well, it's not a 
political offense, but now it's our job to decide whether it's 
politically motivated.'' Then I suppose you're suggesting that 
the judiciary might have a lesser set of factors of political 
considerations that would be applied than the Secretary of 
State, but that has to be balanced against the fact that the 
judiciary has a less perspicacious view about politics so that, 
the Judiciary is not in much of a position to make that 
evaluation, the Secretary of State is in a better position, it 
is conceivable, that the Secretary of State would 
inappropriately ask a different question. Ask the question of 
what was good with regard to some other political matter, but 
under the treaty, the question is supposed to be, this 
particular extradition request isn't motivated for reasons of 
political persecution.
    Senator Dodd. Thank you.
    The Chairman. Very well. Yes?
    Mr. Magee. If I could just interject briefly, Article 8 of 
the treaty provides for the extradition procedures and required 
documents and as I read the treaty from cover to cover, maybe 
Professor Morris will be able to help me understand where the 
judiciary is interjected into this procedure at all. It's 
purely a State Department function when it makes reference to 
extradition requests being supported, they're talking in terms 
of the requesting State would need a request, or an arrest 
issued by a judge or other competent authority. Well, that 
order of arrest coming our way would be from somebody in the 
United Kingdom that would come through diplomatic channels and 
be acted upon by the State Department. I don't see where we 
have the judicial safeguards that are guaranteed in the 
Constitution anywhere in this Article. And that's the main 
concern that we have as American citizens, is that when you 
take in whether you're looking at the retroactivity, the 
removal of the statute of limitations, Joe Dougherty was 
mentioned briefly, there's a big hurrah ten, fifteen or twenty 
years ago, actually, back during the time of the 1985, 1987, 
1990 hearings. As I read this treaty, if I aided and abetted 
and assisted Joe Dougherty in avoiding British authorities, 
with the passage of this treaty, I could now be extradited to 
the United Kingdom for something that occurred more than 20 
years ago. Again, without any judicial determination.
    The Chairman. Professor Morris?
    Professor Morris. When an extradition request is received 
by the United States through diplomatic channels, it goes 
through the following process: the State Department checks it 
for compliance with the treaty, if it's in compliance with the 
treaty, it's then sent to the Justice Department to check for 
the legality of whether everything is in order with regard to 
the lawfulness of the request. If the Justice Department 
determines the request is lawful, it's passed through a judge 
or magistrate. A judge or magistrate in a judicial forum, to 
then hold an extradition hearing in a judicial manner, in which 
it will be determined whether the evidence is sufficient and 
whether the crime that the person is accused of is a political 
offense. That takes place in a judicial context, and only after 
that determination is made in the judiciary, does it then go 
back to a final check with the Secretary of State. That is the 
operation of this treaty, together with the provisions of the 
United States extradition law, which unfortunately do not 
appear in this treaty.
    The Chairman. Very well. Well, we'll leave it at that, that 
there is a body of law, and there is this treaty, but now we'll 
all circle around and make certain that the safeguards that are 
being asserted here, in fact appear to work that way.
    Let me ask another question--Professor Boyle has asserted 
in written testimony that under the proposed treaty the 
Department of State, not a U.S. Federal judge, would adjudicate 
First Amendment issues. We're back to this problem again, in a 
way. However, the administration has testified the U.S. Federal 
courts will determine both whether the dual criminality 
requirement is satisfied and whether the political offense 
exception is applicable. The administration stated in its 
testimony, ``U.S. extradition proceedings are undertaken 
pursuant to Title 18 of the United States Code, Section 3184, 
which provides that a U.S. judge or magistrate judge determines 
whether there is sufficient evidence to make a finding of 
extraditability. . . . The Court also determines whether the 
offense for which extradition is sought is an extraditable 
offense under the treaty. In the case of the new treaty, the 
relevant question would be whether dual criminality exists. 
That is, whether the conduct at issue is punishable under the 
laws in both states by deprivation of liberty by a period of 
one year or more, or by a more severe penalty. In this context, 
the court would also consider any claims raised by the fugitive 
that the offense is a political offense.'' End of quote from 
the administration. Now, this explores much the same territory 
we've just been talking about. On the other hand, I would ask 
once again to Mr. Meehan and Dr. Linnon--do you have comment, 
or your attorney, on this point?
    Mr. Magee. If I can, I think again this is just what we've 
been addressing, as this treaty is read in its four corners, 
there is no safeguard, there are no safeguards which may or may 
not be provided under Section 18, I believe it's Section 18 
that's reciting Title 18, and I think the concern that we have 
is that, does this treaty, in fact, override the provisions 
once it is passed into law, so that we will have a situation 
where there's now a conflict between the treaty and the 
statute?
    Dr. Linnon. Senator, my only concern is that the provisions 
that Professor Morris mentions are not in the treaty when I 
look at this. And I'm not an attorney, but when I look at this, 
and they are absent, and it says, ``The decision will remain 
with the executive branch,'' that, to me, is frightening.
    The Chairman. Well, without re-writing the treaty, it seems 
what we all are saying is that essentially--and the 
administration has testified that we have a body of law now--
that extradition proceedings, Title 18 and so forth that 
governs extraditions now the treaty is on top of this. You 
mentioned, however, you look at the treaty by itself, you don't 
find Title 18 and therefore how do you know that Title 18 and 
all of this pertains to this. Now, maybe they are all good 
answers to this, and it's an interesting question, as a layman, 
and I'm not an attorney either, and we're all thinking about 
this together today, but I understand your concern, and there 
may be a good answer to that. But that seems to be a question--
how do you take this block of law as to how you are to be 
extradited into consideration of the treaty?
    Mr. Meehan. I think, Mr. Chairman, we've all at one time or 
another heard the statement ``Show it to me in writing.'' Would 
that not apply here? If we don't see it in writing, it is not 
there.
    The Chairman. Fair enough, we're just sort of wandering 
around. Now let me ask another question. Professor Boyle has 
provided testimony that the proposed treaty would ``effectively 
eliminate the political offense exception for all practical 
purposes'' and I quote, ``the political offense assumption is 
eliminated for any offense allegedly involving violence or 
weapons, including any solicitation, conspiracy or attempt to 
commit such crimes.'' Mr. Meehan, Dr. Linnon, Professor Morris, 
do you have any comments about that idea of Professor Boyle's?
    Mr. Meehan. I have nothing to say about that, sir.
    Dr. Linnon. The only thing I would like to say with regard 
to that, Senator, is that is there a possibility that written 
questions could be put to Professor Boyle, since these are his 
comments and he could answer them for the committee?
    The Chairman. We could do that, and we should do that, 
we're attempting to get as complete a record as we can, and 
that is why we're exhausting all of you. Not to be tedious, but 
this is an attempt, really, to make a comprehensive search.
    Dr. Linnon. And we appreciate it, don't get me wrong.
    The Chairman. Good point. So we will ask Professor Boyle to 
respond to his own question, but he will say, ``Well, I have in 
my testimony.'' that is the reason that I raise his quote. 
Nevertheless, good point. Now finally, Professor Boyle has 
offered testimony that the proposed treaty would, ``eliminate 
the need for any showing of probable cause.'' However, the 
administration testifies as follows, ``The United States 
constitution, together with Federal case law, provides the 
standard used by the court to evaluate the sufficiency of 
foreign evidence provided in support of an extradition 
request--probable cause to believe the person who is before the 
court is the person charged or convicted in the foreign country 
and in those cases where the person has not been convicted, 
probable cause to believe that person committed the offenses 
for which the extradition is sought,'' end of quote by the 
administration.
    Once again, I suppose we have a question of what the treaty 
has to say and what the Constitution has to say and how the two 
are melded and how they're referred to that they may be too 
oversimplifying the case, but it appears once again that we 
have a disconnect in terms of our thinking today, thinking 
about the law, Title 18 to begin with, of the Constitution 
here. I don't mean to oversimplify it, but do any of you have 
further comment on Professor Boyle's statements in this 
respect, or the administration's response?
    Senator Dodd. I was going to suggest, Mr. Chairman, in this 
regard what we may want to do at the appropriate time, I think 
all of us probably agree this treaty should not, in any way, 
supersede first of all, the Constitution, and secondly, 
statutory law, at least that is my view. I can't imagine us 
adopting a treaty that would undermine Title 18. It might be 
important to adopt an understanding to the resolution of 
ratification to clarify that the nothing in this treaty would, 
in any way, subvert or whatever the proper language of Title 
18, the language to that effect, nor the Constitution, for that 
matter. That may help any future adjudication here to make it 
quite clear that none of us on this committee nor the Senate 
would be ratifying a treaty that in any way undermined Title 18 
or the Constitution of the United States. That's just an idea 
we might want to consider.
    The Chairman. Do you have an idea about that, Professor 
Morris?
    Professor Morris. I have an idea about that idea. 
Congressional legislation about how to implement a treaty is 
dispositive as to the way that treaty will be implemented. And 
so if there is legislation in Title 18 about what we do when we 
are acting pursuant to an extradition treaty, then that tells 
us what we do when we're going to implement an extradition 
treaty. It is not in conflict with the treaty, but it does 
answer a lot of questions along the way about exactly how we're 
going to do this, and under Title 18, we're going to do it in 
that very way. So, the treaty doesn't provide the details for 
its own implementation, but the Congressional legislation is 
binding on that. Certainly one could add a proviso that this 
treaty will not be interpreted or applied to be violative of 
the United States Constitution or Title 18, maybe you want to 
say Title 18 as it exists, or may be amended in the future.
    The Chairman. All right, well that's roughly what Senator 
Dodd, I think, is saying.
    Senator Dodd. Are you saying it's self-executing?
    Professor Morris. I'm saying it's not self-executing, 
that's exactly what I'm saying, I'm saying implementing the 
legislation in Title 18 is binding.
    Senator Dodd. That is the point, you want to make it clear, 
then. That is my point, that it isn't self-executing, therefore 
you'd be avoiding Title 18.
    Professor Morris. You could say that this treaty is not 
self-executing, as Congress has done so many times, so there 
would be no harm in that.
    The Chairman. Very well. Well, than Senator Dodd and I will 
be so advised, and sort of think our way through how we may 
clear what I think is the evident unanimity of our panel here 
today, however we approach this, that the Constitution applies, 
Title 18 applies and then finally we get to this treaty, but we 
still have those basic elements of Constitutional law and 
statutory law.
    Thanks, Senator Dodd for making that very wise suggestion, 
thank you, Senator.
    Senator Dodd. As a fellow Irishman, I appreciate that.
    [Laughter.]
    Senator Dodd. We don't often compliment one another. George 
Mitchell once said we're the only race that would go 50 miles 
out of our way to receive an insult.
    [Laughter.]
    The Chairman. I will second the commendation to my 
colleague.
    Well, we thank this panel very much, you've been most 
patient.
    Senator Dodd. Just one basic question, and I thank the 
Chairman, I'm going to address some of the questions that have 
been raised here to our administration witnesses, but as I hear 
the panel here--aside from the obvious questions, the legal 
question that has been raised here is--and correct me if I'm 
wrong--but the fear, I think, aside from Professor Morris, is 
that this treaty is going to be used to go back and deal with 
past offenses. Sort of disregarding the Good Friday Accords and 
other things that have been adopted by the United Kingdom since 
1985. That the fear is this is going to be a reaching back, Mr. 
Chairman. Am I articulating that fear? Is that the basic 
concern?
    Mr. Meehan. Yes, it is.
    Senator Dodd. You're not objecting, necessarily, although 
obviously from other places to future matters in light of 
what's been adopted by the United Kingdom as a result of 
certain actions that have been taken over the last 20 years, 
it's really more of a concern about reaching back.
    Mr. Meehan. Correct.
    Senator Dodd. We'll be looking at, there are a series of 
steps that have been taken, some which I mentioned in my 
opening statement, which have released programs and the like, 
which we applaud and we commend, but they raise certain other 
issues as well about reaching back. So that is a worthwhile 
document to have as a part of this record, I think.
    Mr. Meehan. I would have to respond to that, Senator, by 
saying that if this is true, then why is there a hue and cry by 
the British public? Ordinary rank and file voters in Britain 
are screaming for the scrapping of this treaty. They feel that 
their citizenry is being adversely affected by it as well?
    Senator Dodd. I raise the issue, the only other point I 
wanted to raise with you, Professor Morris, is this--and that 
is clearly the 1985--and I just ask you whether or not you 
agree or disagree, I don't want to get into a long answer here, 
but clearly there were--we went through elaborate processes, as 
we mentioned, to get through that 1985 agreement, the Chairman 
was tremendously forthcoming, and many members who were 
involved here in the crafting of that agreement. Would you not 
agree that this agreement, what we're about to adopt here or 
may adopt here, certainly is going to retreat from the rights 
that were extended in the 1985 agreement? There are fewer 
rights extended under this proposal then exist in the 1985 
agreement, is that not true?
    Professor Morris. That is not true, I don't agree with 
that.
    Senator Dodd. You don't agree with that?
    Professor Morris. No. We could go through point by point 
where that is supposed to have happened, and in each case, I 
would disagree.
    Senator Dodd. I was just curious.
    Professor Morris. May I address the ``hue and cry'' point 
for one moment?
    The Chairman. Fine.
    Professor Morris. The hue and cry, as I understand it, 
arising in the U.K. about this treaty, is that we have been in 
the U.S. receiving the benefit of the treaty, even though the 
U.S. hasn't ratified it yet, and as time has gone on, that has 
been viewed as unfair and unequal and disadvantageous to the 
U.K. that they're giving us the benefit of a treaty that we 
haven't ratified and therefore, are not providing the benefit 
of, that I understand to be the basis of the debate in the U.K. 
Not that, if ratified, this treaty works some injustice on U.K. 
citizens or persons present in the U.K. Many of the newspaper 
articles that I've read recently would fly in the face of that 
opinion, I would say.
    Senator Dodd. By the way, would you address the question 
I've raised with Professor Morris, it is the opinion of you, 
Mr. Meehan, and Professor Linnon, that in fact the protections 
that were provided in the 1985 have been eroded with this 
proposal, that is your conclusion?
    Dr. Linnon. That's correct, yes sir. I would just like to 
say that even though Professor Morris states that it's the 
feeling it's unfair and that's why they're opposed to it. 
There's currently an extradition request of a United States 
citizen by the United Kingdom, so I mean, they're not totally 
inactive about it.
    The Chairman. Thank you. Well, we thank you all three, very 
much.
    Dr. Linnon. Thank you, Senator.
    Mr. Meehan. Thank you, Mr. Chairman, thank you, Senator 
Dodd.
    The Chairman. We would like to call our second panel of 
witnesses, the Honorable Paul McNulty, Deputy Attorney General, 
United States Department of Justice, and Mr. Samuel M. Witten, 
Deputy Legal Adviser of the Department of State.
    Gentlemen, we welcome you to the Senate Foreign Relations 
Committee hearing today, and I want to ask that you testify in 
the order that I introduced you, and that would be, first of 
all, Deputy Attorney General, Mr. McNulty, and then Mr. Witten. 
Will you please proceed, Mr. McNulty?

  STATEMENT OF PAUL J. McNULTY, DEPUTY ATTORNEY GENERAL, U.S. 
            DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. McNulty. Good morning, Mr. Chairman, Senator Dodd. I'm 
pleased to appear before you today to present the views of the 
administration and the Department of Justice regarding the 2003 
U.S.-U.K. Extradition Treaty.
    Mr. Chairman, I'm here to reiterate the importance of this 
treaty to U.S. national security and law enforcement. And I 
also would like to briefly rebut some of the statements which I 
believe are misleading, and inaccurate, as criticisms of this 
important treaty.
    Mr. Chairman, Senator Dodd, approval of this treaty is an 
urgent priority for the administration. As the Deputy Attorney 
General, I know firsthand that we face increasing need for 
cooperation and assistance from the international community in 
the investigation of terrorism, violent crime, trafficking in 
persons, drugs and firearms, large-scale financial crimes and 
other offenses. This treaty would further the goal by 
modernizing our extradition relationship with the United 
Kingdom.
    On the other hand, failing to approve this treaty will have 
serious negative consequences for the American people. The 
United Kingdom House of Lords last week overwhelmingly voted to 
rescind its designation of the U.S. under the U.K.'s 2003 
Extradition Act for relief from the onerous prima facie 
evidence standard for extradition. The House of Commons has 
also begun to take steps in that regard. This action is in 
response to increasing pressure in the U.K.--in some political 
circles, the business community and the press--to correct a 
perceived ``imbalance'' in the current U.S.-U.K. extradition 
relationship resulting from the fact that the U.K. has approved 
the treaty, but the U.S. has not. If this rescission ultimately 
were to take effect, it would mean, among other things, that 
the United States would be subject to the pre-2003 extradition 
requirements of submitting prima facie evidence of guilt in our 
extradition applications. As a result, it would be much harder 
to extradite terrorists, violent criminals, drug traffickers, 
white collar criminals and others. We would be forced to meet a 
very high standard.
    Now, this is something that I personally experienced as a 
United States Attorney in Eastern Virginia from 2001 to 2006. 
We had cases in our jurisdiction involving individuals in the 
U.K., in one case in particular, the case began, the largest 
hacking case in United States' history began prior to 2003. And 
to meet the standard at that time required a stack of documents 
at least this tall or higher [indicating]. We had to basically 
prepare the entire case as though it was going to court.
    After 2003, that extradition process was reduced 
substantially in terms of burden, where we now meet the 
probably cause standard, rather than the prima facie standard. 
And what was lost in perhaps the previous discussion was this: 
the benefits of this treaty are enormous for the United States 
because we have to meet a burden over there. And while the U.K. 
has enacted the treaty there, and we can now enjoy those 
benefits, and are enjoying it through the extradition of 
terrorists back to the United States, we stand a real 
possibility of losing that benefit if we do not carry through 
on our end of ratifying this treaty.
    Even if the United Kingdom does not ultimately rescind its 
favorable designation of the U.S. under its Extradition Act, 
continuing delay in the United States' approval of this treaty 
would still have serious consequences in our law enforcement 
cooperation, particularly in terrorism cases. For example, the 
United States is seeking the extradition from the U.K. of Abu 
Hamza on charges of kidnapping U.S. and other Western tourists 
in Yemen, sending recruits to Afghanistan for terrorist 
training, and conspiring to establish a jihad training came in 
the United States. Abu Hamza is currently serving a sentence in 
the U.K. for incitement of racial hatred. If the new treaty 
were in effect, the U.K. would be able to send Hamza to the 
U.S. for trial under the treaty provision permitting 
``temporary surrender.''
    Absent temporary surrender, we will have to wait to try him 
until he completes his sentence in the United Kingdom, and 
there are real risks in substantially delaying a trial of this 
nature.
    Mr. Chairman, over the past two decades, this committee has 
approved a series of new extradition treaties that have 
significantly improved our ability to deny terrorists and 
criminals safe haven from facing justice in U.S. courts. 
Surely, our law enforcement relationship with the U.K., one of 
the most critical and most successful partners in preventing 
and prosecuting terrorism and other crimes, should benefit from 
the same extradition regime, the same modern regime that we 
share with so many other countries.
    As I noted earlier, one of the primary benefits of the new 
treaty is that it removes the prima facie evidence requirement 
imposed by the U.K. in extradition cases and replaces it with a 
less stringent standard under the U.K. extradition laws. In 
addition, the treaty is a dual criminality treaty, which is a 
significant improvement over the pre-2003 treaty. As a result, 
the treaty expands the scope of extraditable offenses well 
beyond those specifically recognized in the existing treaty's 
list, or in domestic U.K. extradition law.
    Accordingly, the treaty automatically applies to new 
felonies enacted into law. The new treaty will allow us a 
faster, more direct channel for requests for provisional 
arrests. Provisional arrests are used in urgent circumstances 
to prevent the flight of serious felons, or to promptly detain 
dangerous and violent suspects. These requests can be made 
directly between the Department of Justice and an authority 
designated by the United Kingdom, thus obviating the need to go 
through formal diplomatic channels in order to secure emergency 
assistance.
    Mr. Chairman, those provisions and others will 
significantly advance the law enforcement interests of the 
United States. I would, however, like to rebut briefly the 
primary objections that have been put before this committee by 
various groups and individuals, including the witnesses who 
appeared before this committee this morning.
    I must refute in unequivocal terms the suggestion of the 
opponents that the United States has entered into this treaty 
in order to collude with the United Kingdom in a campaign of 
retaliation against Irish-American citizens. The heated 
rhetoric, the idea that this would strip away Constitutional 
rights, is simply not true. It is not at all accurate. The 
purpose of this treaty is to enhance law enforcement 
cooperation between the U.S. and the U.K. for the benefit of 
the American and the British people. There is no erosion of 
rights.
    Mr. Chairman, as this committee well knows, we face an 
increasing need for cooperation and assistance from the 
international community in the investigation of terrorism, 
violent crime and other offenses. This treaty would further 
that important national security and law enforcement goal by 
modernizing our extradition relationship with the United 
Kingdom, while protecting the Constitutional rights of all 
Americans. In the end, the harm that the opponents say will 
occur if the committee approves this treaty are illusory and 
purely hypothetical. In fact, every one of the provisions in 
this treaty has an analog in other modern extradition treaties 
that this committee has approved and which have been 
administered consistent with the United States Constitution.
    There's a well-established framework already in existence 
that allows for the application of these treaties, with the 
working of the United States Code for the implementation of 
those treaties. As I have emphasized today, the new treaty with 
the United Kingdom is entirely consistent with other modern 
extradition treaties. Our law enforcement relationship with the 
United Kingdom is one of our most important, and it should 
benefit from the same sort of modern extradition treaty that we 
have with so many other of our significant allies is in 
combating terrorism and crime. Yet, we're not at the stage 
where further delay in approving this treaty is threatening an 
unnecessary strain if not a step backwards in our critical law 
enforcement dealings with the United Kingdom.
    Mr. Chairman, Senator Dodd, just about a month ago I was in 
London meeting with my law enforcement counterparts there. And 
this concern was expressed repeatedly to me, and as you know, 
the Deputy Secretary, Home Secretary was in the country last 
week, met with the Attorney General and myself to discuss this 
concern. And I saw firsthand the concern that's in existence 
now that there will be a movement backwards if we are not able 
to ratify this treaty.
    The Department of Justice believes this treaty will improve 
our extradition relationship with the United Kingdom and 
protect our citizens without undermining in any way the 
commitment of the United States to the protection of 
Constitutional rights for all Americans. The Department, 
therefore, respectfully urges this committee to approve the 
treaty as soon as possible.
    I would be happy to answer any questions the committee has 
for me. Thank you very much.

    [The prepared statement of Mr. McNulty follows:]

                   Prepared Statement of Paul McNulty

                            I. INTRODUCTION

    Mr. Chairman and members of the committee, I am pleased to appear 
before you today to present the views of the administration and the 
Department of Justice regarding the 2003 United States-United Kingdom 
Extradition Treaty. This morning, I would like to reiterate the 
importance of this treaty to U.S. national security and law enforcement 
interests. I would also like to rebut some of the false and inaccurate 
criticisms that have been leveled against this important treaty.
    Approval of this treaty is an urgent priority for President Bush 
and the Attorney General. I do not need to tell this committee that we 
face an increasing need for cooperation and assistance from the 
international community in the investigation of terrorism, violent 
crime, trafficking in persons, drugs and firearms, large-scale 
financial crimes and other offenses. This treaty would further that 
goal by modernizing our extradition relationship with the U.K.
    On the other hand, failing to approve this treaty will have serious 
negative consequences. For example, the U.K. House of Lords last week 
overwhelmingly voted to rescind its designation of the U.S. under the 
U.K.'s 2003 Extradition Act for relief from the onerous prima facie 
evidence standard for extradition, The House of Commons has also begun 
to take steps in that regard. This action is in response to increasing 
pressure in the U.K.--in some political circles, the business community 
and the press--to correct a perceived ``imbalance'' in the current 
U.S.-U.K. extradition relationship resulting from the fact that the 
U.K. has approved the treaty but the U.S. has not. If this rescission 
ultimately were to take effect, it would mean, among other things, that 
the U.S. would be subject to the pre-2003 extradition requirements of 
submitting prima facie evidence of guilt in our extradition 
applications. As a result, it would be much harder to extradite 
terrorists, violent criminals, drug traffickers, white collar criminals 
and others.
    Even if the U.K. Government does not ultimately rescind its 
favorable designation of the U.S. under its Extradition Act, continuing 
delay in the United States' approval of this treaty would still have 
serious consequences in our law enforcement cooperation, particularly 
in terrorism cases. For example, the United States is seeking the 
extradition from the U.K. of Abu Hamza on charges of kidnapping U.S. 
and other western tourists in Yemen, sending recruits to Afghanistan 
for terrorist training, and conspiring to establish a jihad training 
camp in the United States. Abu Hamza is currently serving a sentence in 
the U.K. for incitement of racial hatred. If the new treaty were in 
effect, the U.K. would be able to provide Hamza to the U.S. for trial 
under the treaty provision permitting ``temporary surrender.''
    In the absence of the new treaty, however, the U.K. Home Office has 
indicated that the U.K. will refuse to extradite Abu Hamza based on 
their view that, although the U.K. could ``temporarily surrender'' Abu 
Hamza to the U.S. prior to the expiration of his U.K. sentence (because 
they have ratified the treaty), the U.S. could not return him to the 
U.K. to finish serving his U.K. sentence after his U.S. trial (because 
we have not yet ratified the treaty). The result is that the U.S. will 
not be able to try Hamza until he is extradited following his U.K. 
sentence. This delay, which is likely to be for several years, may have 
serious consequences: it will render it more difficult for the U.S. to 
try an individual who has been charged as a dangerous terrorist.
    Mr. Chairman, over the past two decades, this committee has 
approved a series of new extradition treaties that have significantly 
improved our ability to deny terrorists and other criminals safe haven 
from facing justice in U.S. courts. Surely, our law enforcement 
relationship with the U.K.--one of our most critical and successful 
partners in preventing and prosecuting terrorism and other crimes--
should benefit from the same modern extradition regime. That is why 
approval of this treaty is such an urgent national security and law 
enforcement priority for the administration. On behalf of the 
administration and the Department of Justice, I respectfully urge this 
committee to approve this treaty as soon as possible.

               II. LAW ENFORCEMENT BENEFITS OF THE TREATY

    Before I address the inaccurate assertions about this treaty, let 
me briefly reiterate how the treaty improves law enforcement 
cooperation with the U.K.
    One of the primary benefits of the new treaty is that it removes 
the ``prima facie'' evidence requirement imposed by the U.K. in 
extradition cases and replaces it with a less stringent standard under 
new U.K. domestic extradition laws. After the treaty was signed, the 
Government of the United Kingdom undertook as of January 2004 to 
designate the United States for favored treatment under its domestic 
legislation--in particular, to permit the United States to meet the 
lower standard of proof--even though the United States ratification 
process was not yet complete. This designation has made the preparation 
of extradition requests far easier and, in some cases, allowed us to 
proceed with cases that we might earlier have declined to pursue.
    Unfortunately, as time has passed since the administration first 
presented this treaty to the committee, the Government of the United 
Kingdom has been the recipient of increasingly sharp criticism in the 
press and in Parliament over having given the United States the 
beneficial designation without a showing of reciprocal support for an 
improved extradition relationship through United States approval of the 
new treaty.
    Additionally, a number of significant defendants in pending 
extradition cases from the United States are starting to raise the 
allegation of a ``flawed'' designation process in the lower courts and 
on appeal. Most notably, three U.K. bankers who are defendants in 
Enron-related proceedings opposed extradition on those grounds, among 
others. The so-called ``NatWest 3'' were extradited to the U.S. last 
week, but their case has received significant attention in the British 
press and has stirred up significant support for suspending the U.K.'s 
current extradition relationship with the U.S.
    In addition to eliminating the prima facie requirement, the treaty 
is a ``dual criminality'' treaty, which is a significant improvement 
over the pre-2003 treaty. As a result, the treaty expands the scope of 
extraditable offenses well beyond those specifically recognized in the 
existing treaty's list or in domestic U.K. extradition law. 
Additionally, the treaty automatically applies to new felonies enacted 
into law.
    The new treaty will also allow a faster, more direct channel for 
requests for provisional arrest. Provisional arrests are used in urgent 
circumstances to prevent the flight of serious felons or to detain 
promptly dangerous and violent suspects. These requests can be made 
directly between the Department of Justice and an authority to be 
designated by the United Kingdom, thus obviating the need to go through 
formal diplomatic channels in order to secure emergency assistance.
    As noted above, another provision in the new treaty of particular 
significance is that authorizing ``temporary surrender.'' Under the 
current treaty, the extradition of an individual who is being 
prosecuted or serving a sentence in one country must be deferred until 
the completion of the trial and any sentence imposed. Such a deferral 
can have disastrous consequences for a later prosecution due to lapse 
of time, the absence or death of witnesses, and the failure of memory. 
The new provision will allow the individual being tried or punished in 
one country to be sent temporarily to the other for purposes of 
prosecution there and then returned to the first country for resumption 
of the original trial or sentence.

              III. CRITICISMS OF THE TREATY ARE UNFOUNDED

    I would, however, like to rebut briefly the primary objections that 
have been put before this committee by various groups and individuals, 
including objections Professor Boyle expressed in his March 2004 letter 
to the committee and which I understand are reiterated in his testimony 
today.
    At the outset, I must refute in unequivocal terms the suggestion of 
Professor Boyle and others that the United States has entered into this 
treaty in order to collude with the United Kingdom in a campaign of 
retaliation against Irish American citizens. This is false. This is a 
treaty, like all other extradition treaties to which the United States 
is a party, concerned with crimes recognized as such under the laws of 
the United States, The United States has entered into this treaty 
because it benefits the law enforcement interests of the United States, 
and those interests extend to protecting all our citizens who may fall 
victim to crime. Every one of its provisions has an analogue in other 
modern extradition treaties that this committee has approved, and which 
have been administered in conformity with United States laws and the 
United States Constitution. There is no basis for Professor Boyle's 
claims to the contrary.

A. Political Speech, Political Offense and Political Motivation
    One of Professor Boyle's central criticisms of the treaty has been 
his view, as articulated in his March 2004 letter, that it is 
``directed primarily against Irish American citizens engaged in the 
lawful exercise of their constitutional rights under the First 
Amendment'' and that it would make them ``extraditable to the British 
Crown . . . [for] exercising their rights under the First Amendment . . 
.'' The treaty does no such thing. Speech protected by the First 
Amendment is not, and cannot be, recognized as a criminal offense under 
U.S. law. Conduct that does not constitute an offense under U.S. law 
fails the core dual criminality test of the new treaty, the current 
treaty, and all other extradition treaties to which the United States 
is a party. Therefore, extradition simply is not permitted with respect 
to speech protected under the First Amendment.
    Critics also claim that the new treaty with the U.K. represents a 
dramatic departure in the treatment of political offenses, for which 
extradition is barred, and of assertions that a particular request for 
extradition is motivated by a desire to punish an individual for his or 
her political beliefs. Contrary to these claims, the new treaty is 
completely in accord with other modern extradition treaties, and U.S. 
law.
    First, the new treaty, like the 1985 Supplementary Treaty now in 
force, makes it clear that persons engaged in serious crimes of 
violence, including crimes involving explosives and firearms, may not 
avoid extradition by invoking the political offense doctrine. As the 
committee well knows, this provision, which has now become a standard, 
was a reaction to terrorism and the potential for abuse of the 
political offense doctrine by terrorists as a means to avoid 
extradition. Put simply, this treaty, like so many others, does not 
countenance a terrorist asserting that he can evade justice because his 
designs of murder and mayhem were motivated by his political 
objectives. Other than these specific exclusions, however, it will 
remain for the courts to determine whether the offense constitutes a 
political offense for which extradition is barred.
    Second, the treaty deals with the question of ``political 
motivation''--a claim that a request for extradition is in fact 
motivated by the Requesting State's desire to punish the person for his 
political views--in the same manner as virtually every other 
extradition treaty, and in the same manner specified by longstanding 
U.S. court decisions, All U.S. courts, and every extradition treaty 
that addresses the issue, adhere to the rule of ``judicial non-
inquiry,'' reserving such questions for decision by the executive 
branch. The only departure, and one never repeated since, was the 1985 
Supplementary Treaty with the U.K.
    Although no defendant has ever succeeded under the current treaty 
in defeating his extradition to the U.K. on the basis of political 
motivation, the years of litigation generated as our courts grappled 
with these claims demonstrated that under the U.S. system, such issues 
are better reserved, as for all other treaty partners, for decision by 
our Secretary of State. Thus, it is wrong to suggest that the 2003 
treaty somehow reverses ``centuries'' of treaty precedent. It does 
nothing of the kind--the new treaty will simply restore the legal 
standard applicable in every other U.S. extradition treaty.

B. Other Objections
    I would like to address, briefly, a number of other criticisms of 
the treaty. First, there is no basis for claims that the provisional 
arrest provisions of the treaty either violate the Fourth Amendment or 
provide for indefinite detention. As the Department of Justice has made 
clear in prior testimony and questions for the record, the Fourth 
Amendment does apply to the issuance of a warrant for provisional 
arrest. The provisional arrest language of the new treaty is entirely 
consistent with that of numerous extradition treaties that have been 
approved by the committee and that have been applied by U.S. courts in 
conformity with constitutional requirements. Moreover, the provisional 
arrest article, like that in all other treaties, sets a time frame in 
which the formal request for extradition must be submitted. Should that 
fail to be done, the U.S. court may then release the defendant. This is 
not indefinite detention.
    There is no basis for the claim that the treaty eliminates statutes 
of limitation. The treaty has no impact on application of statutes of 
limitations. Rather, it preserves for the courts where the case is to 
be tried the determination whether the applicable statue of limitations 
would bar the prosecution, rather than calling on the extradition court 
to interpret a foreign statute of limitations, or to try to en graft 
its domestic statute of limitations on the foreign charge. This 
approach is reflected in many of our modern extradition treaties.
    There is no basis for the claim that the treaty eliminates the 
necessity of a showing of probable cause. Both the treaty and 
longstanding U.S. law make it clear that a U.S. court must make a 
determination that there is sufficient information in the extradition 
request to find probable cause that a crime has been committed and that 
the fugitive committed that crime before the fugitive may be ordered 
surrendered to face trial in the foreign country.
    There is no basis for the claim that the treaty permits prosecution 
in violation of the ex post facto clause of the Constitution. This 
treaty, like the 1985 Supplementary Treaty, makes it clear that the 
treaty may apply to offenses committed before it enters into force. 
This is a standard treaty provision, and it does not permit a 
retroactive application of the underlying criminal statute for which 
the fugitive has been charged or convicted.
    There is no basis for the claim that the treaty permits extradition 
for conduct that is not considered an offense in the United States. 
Article 2 of the treaty makes it clear, as do all other treaties, that 
extradition is permitted only if the conduct charged in the U.K. would 
also constitute an offense under U.S. law. Because federal criminal 
jurisdiction is limited, many common offenses, such as murder, sexual 
assault, burglary and theft are ordinarily punishable under State law, 
rather than federal criminal law. Thus, for purposes of assessing the 
core requirement of dual criminality, U.S. courts have long held that 
they may look to state law as well as federal law to assess this 
requirement. This approach, which is simply reflective of the United 
States' unique federal system, in no way undermines the fundamental 
requirement of dual criminality that is enshrined in this and other 
U.S. extradition treaties.
    Finally, as explained in our prior submissions to the committee, 
the treaty does not eliminate the rule of specialty. To the contrary, 
this principle, which limits the prosecution of a person for offenses 
other than those for which he or she has been extradited, is fully 
preserved in Article 18 of the treaty. The only substantive variation 
from the current treaty is that it provides an explicit provision for 
the extraditing state to waive the rule of specialty, if in its 
discretion and considering the particular circumstances of the case, it 
deems it appropriate to do so, This sort of clause has been a standard 
treaty provision for years. And although such an explicit provision for 
waiver is not necessary for the United States, it was necessary for the 
United Kingdom.

                             IV. CONCLUSION

    Mr. Chairman, as I have emphasized today, the new treaty with the 
United Kingdom is entirely consistent with other modern extradition 
treaties. Our law enforcement relationship with the United Kingdom is 
one of our most important, and it should benefit from the same sort of 
modern extradition treaty that we have with so many other of our 
significant allies in combating terrorism and crime. We are now at the 
stage where further delay in approving this treaty is threatening an 
unnecessary strain, if not steps backward, in our critical law 
enforcement dealings with the United Kingdom.
    We have appreciated the opportunity--in the prior hearing, in our 
responses to the thoughtful questions for the record posed by members 
of the committee, and in my testimony today--to respond to the various 
objections and criticisms of the treaty. I believe that each of these 
has now been addressed, and should not prevent this committee from 
approving the treaty. The Department of Justice believes that this 
treaty will significantly improve our extradition relationship with the 
United Kingdom--and protect our citizens--without undermining in any 
way the commitment of the United States to the protection of 
constitutional rights for all Americans. The Department therefore 
respectfully urges this committee to approve the treaty as soon as 
possible.
    I would be happy to answer any questions the committee may have.

    The Chairman. Thank you very much for that testimony. Mr. 
Witten, we would like to hear from you now.

   STATEMENT OF SAMUEL M. WITTEN, DEPUTY LEGAL ADVISER, U.S. 
             DEPARTMENT OF STATE, WASHINGTON, D.C.

    Mr. Witten. Thank you very much, Mr. Chairman.
    Mr. Chairman, and Senator Dodd, I'm pleased to appear 
before you today to testify once again in support of Senate's 
advice and consent to ratification of the U.S.-U.K. Extradition 
Treaty. I till take the opportunity today to bring to the 
committee's attention developments that make entry into force 
of this key law enforcement treaty a matter of even greater 
urgency than when I testified in favor of Senate approval on 
November 15, 2005.
    As reflected in Mr. McNulty's comments, the United Kingdom 
of course is one of our closest partners in the war on 
terrorism. The new, modern treaty before the Senate has the key 
provisions found in virtually all of our modern treaties and 
reflects this close relationship. I will discuss briefly in 
this testimony the key benefits that will accrue to the United 
States from this treaty, but before doing so, I need to 
highlight for the committee several additional challenges that 
have emerged from the delay in entry into force of this treaty.
    In 2003, the U.K. adopted domestic legislation simplifying 
its extradition practice, and in a show of good faith in 
anticipation of this new treaty coming into force, it applied 
the benefits of its new domestic law to the United States. The 
British Government was accused in Parliament of acting 
prematurely, with critics saying that this change should wait 
until the Senate ratified the Extradition Treaty. The British 
Government answered that criticism by stating that it 
anticipated quick ratification by the United States.
    Our delay in ratification has become a major political 
issue in the United Kingdom. The issue is being seen by the 
British media and public as a question of good faith on the 
part of the United States. Inaction on our part now not only 
threatens the favorable treatment we receive in extradition 
matters, but it is undermining British public opinion that we 
are a reliable ally. Recent editorials and articles in the 
London Times, for example, reflect the sentiment held by many 
in the U.K. that justice is not being done for the United 
Kingdom. A June 28, 2006 London Times article notes that the 
treaty has been cited by Prime Minister Blair's critics as an 
example of U.S. government indifference to the United Kingdom.
    Under the changes to the U.K. domestic law brought about by 
the 2003 U.K. Extradition Act, the U.S. received preferential 
designation in the British system as a ``part 2 country.'' The 
most significant result of this favorable designation is that, 
when seeking the extradition of a fugitive, we benefit from an 
evidentiary standard that is analogous to the U.S. probably 
cause standard that is imposed on the United Kingdom for 
requests to the United States. The United States also can use 
hearsay evidence in British courts. This change greatly 
facilitates the presentation of extradition request from the 
United States to the U.K., and enhances our ability to obtain 
fugitives wanted for trial in the United States on a range of 
serious offenses.
    Recently, however, the U.K. executive branch has been 
facing increasing pressure from those who complain of a lack of 
``reciprocity'' in the U.S.-U.K. extradition relationship 
because the U.S. Senate still has not approved this treaty and 
the executive branch has therefore not been able to bring it 
into force. As a result of this criticism, amendments have been 
proposed to the U.K. Extradition Act that would remove the 
preferential treatment currently afforded the United States in 
advance of the treaty's entry into force, and the good faith of 
the United States has been called into question by members of 
the British Parliament. Indeed, as Mr. McNulty mentioned, just 
last week, the House of Lords voted by a wide margin to strip 
the United States of its preferred status under the Extradition 
Act. It was a source of sadness that one of the members voting 
to restore the more burdensome extradition arrangements with 
the U.S. was former Prime Minister Margaret Thatcher, a staunch 
ally of the United States. Following the vote in the House of 
Lords, an equally fierce debate on the issue took place is the 
House of Commons. A binding vote on the proposed amendments may 
take place later this year, and could undermine major interests 
of the United States and erode our credibility further in the 
United Kingdom. The risk of this adverse result increases with 
each passing week and month of inaction on the part of the 
United States, and debate in the United Kingdom about the good 
faith of the United States is doing immeasurable harm to our 
reputation and standing.
    In addition to these potential adverse changes in U.K. law 
and ongoing criticism of the United States that result from our 
delay, the U.S. of course can not benefit from the provisions 
of the new treaty not otherwise addressed in U.K. law that, 
once in force, would meaningfully advance some of our most 
important law enforcement efforts. For example, the new treaty 
has, like most modern extradition treaties, a provision 
allowing for the temporary surrender for prosecution in the 
Requesting State of a fugitive who has already been proceeded 
against, or is serving a sentence in the Requested State. 
There's no such provision in the current treaty. Temporary 
surrender would be critical to many of our terrorism-related 
prosecutions and would allow us to try expeditiously fugitives 
such as Abu Hamza, who is currently serving a prison sentence 
in the U.K. but is wanted to stand trial in the U.S. on a range 
of charges, including providing material support to terrorist 
organizations and attempting to set up a terrorist training 
camp in the U.S. Without the new treaty, there is no mechanism 
for the United States to obtain custody of individuals like 
Hamza for the purpose of prosecution until they have completed 
their sentence in the U.K.
    The importance of improving our law enforcement 
relationship with the United Kingdom is therefore even more 
pressing now than it was when we testified in November, 2005. 
The United States should benefit from the best possible 
extradition relationship with the United Kingdom. Ratification 
of this treaty would significantly further such efforts.
    As I noted in my prior testimony to this committee, and in 
my responses to the committee's questions for the record. This 
new treaty will strengthen and modernize our extradition 
relationship with the U.K. and will bring significant advantage 
to U.S. and U.S. law enforcement efforts. Among the other 
provisions in the treaty that will benefit the United States 
are provisions on dual criminality, temporary surrender, the 
U.S. will not have to face the more onerous prima facie 
standard when submitting extradition requests to the U.K. These 
and other improvements in the treaty will enhance the efforts 
of the United States as it confronts increasing transnational 
criminal threats, including those related to international 
terrorist activities.
    For these reasons, entry into force of this treaty is one 
of the administration's highest law enforcement priorities. 
Finally, I think it is very important to address the unfounded 
claims made by some groups and that we've noted, we've heard 
today that this new treaty with the United Kingdom is somehow 
specifically targeted to the Irish-American community. These 
arguments are simply not accurate. There's nothing in this 
treaty that justifies these misinterpretations that have been 
thrust upon it by these critics. To the contrary, this treaty 
is no different in its scope of application than any of our 
other extradition treaties, and it is entirely consistent with 
U.S. obligations under relevant law. It applies to a full range 
of criminal conduct and crimes, it does not target any 
particular group, and contains all of the protections that are 
expected under U.S. law and practice, including the fundamental 
protections contained in the Bill of Rights.
    The treaty modernizes one of our most important law 
enforcement relationships. It's critical to the continued 
efforts of the United States in the global war on terrorism and 
should be ratified forthwith.
    Mr. Chairman and Senator Dodd, we very much appreciate the 
committee's decision to consider this important treaty, I will 
also be happy to answer any questions the committee may have.

    [The prepared statement of Mr. Witten follows:]

                 Prepared Statement of Samuel M. Witten

    Mr. Chairman and members of the committee: I am pleased to appear 
before you today to testify once again in support of Senate advice and 
consent to ratification of the U.S.-U.K. Extradition Treaty. I will 
take the opportunity today to bring to the committee's attention 
developments that make entry into force of this key law enforcement 
treaty a matter of even greater urgency than when I testified in favor 
of Senate approval on November 15, 2005.
    The United Kingdom is of course one of our closest partners in the 
war on terrorism. The new, modern treaty before the Senate has the key 
provisions found in virtually all of our modern treaties and reflects 
this close relationship. I will discuss briefly in this testimony the 
key benefits that will accrue to the United States from this treaty, 
but before doing so, I need to highlight for the committee several 
additional challenges that have emerged from the delay in entry into 
force of this treaty.
    In 2003, the U.K. adopted domestic legislation simplifying its 
extradition practice, and in a show of good faith in anticipation of 
this new treaty coming into force, it applied the benefits of the new 
law to the United States. The British Government was accused in 
Parliament of acting prematurely, with critics saying that this change 
should wait until the Senate ratified the extradition treaty. The 
British Government answered that criticism by stating that it 
anticipated quick ratification by the United States.
    Our delay in ratification has become a major political issue in the 
U.K. The issue is being seen by the British media and public as a 
question of good faith on the part of the United States. Inaction on 
our part now not only threatens the favorable treatment we receive in 
extradition matters, but it is undermining British public opinion that 
we are a reliable ally. Recent editorials and articles in the London 
Times, for example, reflect the sentiment held by many in the U.K. that 
justice is not being done for the United Kingdom. A June 28, 2006 
London Times article notes that the treaty has been cited by Prime 
Minister Blair's critics as an example of U.S. government indifference 
to the U.K.
    Under the changes to U.K. domestic law brought about by the 2003 
U.K. Extradition Act, the U.S. received preferential designation in the 
British system as a ``part 2 country.'' The most significant result of 
this favorable designation is that, when seeking the extradition of a 
fugitive, we benefit from an evidentiary standard that is analogous to 
the U.S. probable cause standard that is imposed on the United Kingdom 
for requests to the United States, The United States also can use 
hearsay evidence in British courts. This change greatly facilitates the 
presentation of extradition requests from the United States to the 
U.K., and enhances our ability to obtain fugitives wanted for trial in 
the United States on a range of serious offenses.
    Recently, however, the U.K. executive branch has been facing 
increasing pressure from those who complain of a lack of 
``reciprocity'' in the U.S.-U.K. extradition relationship because the 
U.S. Senate still has not approved this treaty and the executive branch 
has therefore not been able to bring it into force. As a result of this 
criticism, amendments have been proposed to the U.K. Extradition Act 
that would remove the preferential treatment currently afforded the 
United States in advance of the treaty's entry into force, and the good 
faith of the United States has been called into question by members of 
the British Parliament. Indeed, we understand that just last week the 
House of Lords voted by a wide margin to strip the United States of its 
preferred status under the Extradition Act. It was a source of sadness 
that one of the members voting to restore the more burdensome 
extradition arrangements with the U.S. was former Prime Minister 
Margaret Thatcher, a staunch ally of the United States. Following the 
vote in the House of Lords, an equally fierce debate on the issue took 
place in the House of Commons. A binding vote on the proposed 
amendments may take place later this year, and could undermine major 
interests of the United States and erode our credibility further in the 
United Kingdom. The risk of this adverse result increases with each 
passing week and month of inaction on the part of the United States, 
and debate in the United Kingdom about the good faith of the United 
States is doing immeasurable harm to our reputation and standing.
    In addition to these potential adverse changes in U.K. law and 
ongoing criticism of the United States that result from our delay in 
bringing the treaty into force, the U.S. of course cannot benefit from 
provisions of the new treaty not otherwise addressed in U.K. law that, 
once in force, would meaningfully advance some of our most important 
law enforcement efforts. For example, the new treaty has, like most 
modern extradition treaties, a provision allowing for the temporary 
surrender for prosecution in the Requesting State of a fugitive who is 
already being proceeded against or serving a sentence in the Requested 
State. There is no such provision in the treaty currently in force. 
Temporary surrender would be critical to many of our terrorism-related 
prosecutions and would allow us to try expeditiously fugitives such as 
Abu Hamza, who is currently serving a prison sentence in the U.K. but 
is wanted to stand trial in the U.S. on a range of charges, including 
providing material support to terrorist organizations and attempting to 
set up a terrorist training camp in the U.S. Without the new treaty, 
there is no mechanism for the United States to obtain custody of 
individuals like Hamza for the purpose of prosecution until they have 
completed their sentences in the U.K.
    The importance of improving our law enforcement relationship with 
the United Kingdom is therefore even more pressing now than it was when 
we testified in November, 2005. The United States should benefit from 
the best possible extradition relationship with the United Kingdom. 
Ratification of the U.S.-U.K. Extradition Treaty would significantly 
further such efforts.
    Turning to the treaty itself, in my testimony before this committee 
in November of last year, I emphasized the very strong interest of the 
administration in bringing this treaty into force quickly. I have 
testified in detail to this committee already on the importance of this 
treaty and therefore will just highlight several key reasons here.

   Once the treaty is ratified, the United States will be 
        certain to receive the benefits of the 2003 changes in U.K. 
        law, including the reduction in the evidentiary standard that 
        the United States is required to meet when seeking the 
        extradition of a fugitive from the United Kingdom, thereby 
        making it easier to bring fugitives to justice in the United 
        States. The new treaty makes the evidentiary standard required 
        by both sides broadly comparable.

   The proposed treaty defines conduct as an extraditable 
        offense if the conduct on which the offense is based is 
        punishable under the laws in both States by deprivation of 
        liberty for a period of one year or more or by a more severe 
        penalty. This kind of pure ``dual criminality'' clause will be 
        an improvement over the treaty regime currently in place, which 
        lists categories of offenses plus other offenses listed in 
        relevant U.K. extradition law and considered felonies under 
        U.S. law. It will put the U.S.-U.K. relationship on a par with 
        virtually all of our other major extradition relationships that 
        have been updated in the last thirty years. As with all of our 
        dual criminality treaties, this provision means that the United 
        States would not be required to extradite a fugitive where the 
        U.K. charge would not be a crime if committed in the United 
        States. Because of the protections of dual criminality, it is 
        simply not possible, as some opponents of the treaty have 
        argued, that an individual could be extradited from the United 
        States if the conduct for which extradition is sought is 
        protected by the U.S. Constitution.

   The treaty requires that extradition be denied if the 
        competent authority of the Requested State determines that the 
        request is politically motivated. Like all other modern U.S. 
        extradition treaties, the new treaty grants the executive 
        branch rather than the judiciary the authority to determine 
        whether a request is politically motivated. This change makes 
        the new treaty consistent with U.S. practice with respect to 
        every other country with which we have an extradition treaty. 
        U.S. courts will of course continue to assess whether an 
        offense for which extradition has been requested is a political 
        offense. The proposed treaty deals with the treatment of the 
        statute of limitations in away that is consistent with most of 
        our new extradition treaties. The party that receives an 
        extradition request does not decide on the statute of 
        limitations that applies to the crime, but leaves that to the 
        courts and legal system of the state that has brought the 
        criminal charges. Contrary to the claims of some, therefore, 
        the proposed treaty does not eliminate statutes of limitations, 
        but rather reserves their interpretation to the courts most 
        equipped to do so.

   The treaty sets forth a clear ``Rule of Specialty'' which 
        provides, subject to specific exceptions, that fugitives can 
        only be tried for the charges for which they were extradited, 
        absent specific consent by the State that has extradited the 
        fugitive. The current U.S.-U.K. treaty does not contain a 
        provision for waiver of the rule of specialty, and the proposed 
        provision is substantially the same as the parallel provision 
        in our modern extradition treaties. It serves an important 
        purpose in rare cases where, for example, evidence of other 
        extraditable offenses surfaces after extradition.

   The treaty also includes modern provisions on provisional 
        arrest, which is limited to a specific period of time during 
        which a formal extradition request is to be submitted, and 
        application of the treaty to conduct prior to entry into force 
        that, contrary to the claims of critics, does not allow the 
        United States to seek extradition for conduct that was not 
        criminalized in the U.S. at the time it took place. These 
        provisions will put our relationship with the United Kingdom on 
        a par with our other major allies and treaty partners.

    After the hearing before this committee in November 2005, the 
committee submitted certain questions for the record to me and to the 
Department of Justice witness, Mary Ellen Warlow. We were pleased to 
provide answers to all of those important questions and, in doing so, 
address particular concerns of the committee in relation to the treaty. 
For example, we explained the reasons for modifying the exceptions to 
the political offense clause under the new treaty.
    We also explained why the new treaty does not include Article 3 of 
the 1985 supplementary treaty, which allowed fugitives to avoid 
extradition if they could establish before a U.S. court that the 
request for extradition was politically motivated. We explained that, 
in U.S. law and practice, questions of political motivation are 
determined by the Secretary of State, in recognition of the principle 
that the executive branch is best equipped to evaluate the motivation 
of a foreign government in seeking an individual's extradition. Article 
3 of the supplementary treaty, which undermined this longstanding Rule 
of Non-Inquiry, led to long, difficult, and inconclusive litigation in 
several cases where U.S. courts were thrust into the unfamiliar and 
inappropriate position of addressing the motivation of a foreign 
government, as well as claims of generalized bias within a foreign 
system of justice. We explained in detail the circumstances of each of 
those cases, and noted that none remained pending at this time. Our 
experience with Article 3 of the supplementary treaty confirmed the 
need to exclude this anomalous provision from our bilateral extradition 
treaties.
    We also explained provisions in the treaty relating to 
extraterritorial jurisdiction, provisional arrest, probable cause, and 
the search and seizure of items. We further explained the circumstances 
making it appropriate to include in the treaty the possibility of 
waiver of the rule of specialty. As we explained in detail in our 
responses to the committee's questions, all of these changes were meant 
to modernize and strengthen the ability of the United States to seek 
and grant the extradition of fugitives wanted for serious crimes, all 
within the framework of well-established U.S. law and procedure.
    Finally, I note that in addition to the matters addressed in our 
questions for the record, there have been some unfounded claims that 
this new treaty with the United Kingdom is somehow specifically 
targeted to the Irish-American community. These arguments are simply 
not accurate. There is nothing in this treaty that justifies these 
misinterpretations that have been thrust upon it by these critics. To 
the contrary, this treaty is no different in its scope of application 
than any of our other modern treaties, and it is entirely consistent 
with U.S. obligations under relevant law. It applies to a full range of 
criminal conduct and crimes, does not target any particular group, and 
contains all of the protections that are expected under U.S. law and 
practice. The treaty modernizes one of our most important law 
enforcement relationships, is critical to the continued efforts of the 
United States in the global war on terrorism, and should be ratified 
forthwith.
    Mr. Chairman, we very much appreciate the committee's decision to 
consider this important treaty.
    I will be happy to answer any questions the committee may have.

    The Chairman. Well, thank you very much for that testimony, 
Mr. Witten. The committee has invited testimony from the 
administration today in order to create a full record for the 
committee's consideration, including the administration's views 
on recent developments in the United Kingdom related to the 
treaty.
    Before we get to that issue, we will ask witnesses to 
comment on some of the same issues we discussed with the first 
panel of witnesses.
    First of all, Professor Boyle has indicated in his written 
testimony his view that transferring to the executive branch 
the authority to determine whether an extradition request is 
politically motivated would be unconstitutional. What is the 
administration's reaction to this assertion?
    Mr. McNulty. Mr. Chairman, thank you.
    We would strongly disagree with that characterization. In 
fact, the only treaty in U.S. history to ever have given that 
authority to the U.S. District Courts was the 1985 Supplemental 
Treaty with the United Kingdom, and it did so for a specific 
set of offenses. The suggestion that this treaty somehow 
reverses centuries of precedent is completely wrong. In 
reality, it follows the longstanding U.S. judicial precedent 
and treaty practice.
    It's important to note that while no defendant has ever 
succeeded in defeating his extradition to the United Kingdom, 
in the judicial process, we can see from those that have 
occurred the difficulty and the length of time that is involved 
in watching courts grapple with this kind of question. The 
issue is better reserved, that is the question of political 
motivation, just as you and Senator Dodd sorted it out with the 
previous panel--it's better reserved for the Secretary of 
State. Now, Senator Dodd, in your questions to the panel, you 
noted that there was an issue of a question of law that the 
court might be the appropriate body to deal with.
    And I think that's why this provision again, consistent 
with all of the other modern extradition treaties is the way it 
is, because it recognizes this isn't a question of law, this is 
really a question of fact. It's a factual issue concerning 
whether or not political motivation does play a role in the 
requesting country's request for extradition, and that 
question--after all of the other judicial process has taken 
place, which was laid out quite nicely by Professor Morris--
after all of that judicial process has taken place, including 
the issue of the political offense defense, now you get to the 
question of appealing to the Secretary of State on political of 
motivation, and that--the Secretary of State is in a better 
position from a factual basis--to be able to know all of the 
circumstances which exist that would shed any light on the 
question of whether or not such an objection or a defense is 
valid.
    And so I think that the concerns about this not being a 
judicial process were certainly not a constitutional question, 
but as a policy matter, it's much better to have the Secretary 
of State do it, as in all of the other cases.
    And finally, I would say this relates to the larger issue 
of having a day in court, and it's clear through what has been 
said so far today that there is a day in court, this is all 
about the judicial process. But you finally get to this one 
question at the end of that lengthy judicial process that does 
exist.
    The Chairman. Senator Dodd?
    Senator Dodd. Just to follow up, and I appreciate it, I 
agree, this was an unusual provision included in the 1985 
agreement. No one has suggested that this was a decades-old 
precedent, but what we're suggesting, what's been suggested in 
this treaty was an exception to what has historically been the 
rule, but I think it is worthy of note, and you suggested as 
much in your comments here--I went back over and reviewed the 
times that this matter in the last 21 years, that people have 
invoked the Article 3 claim. And last time it was invoked was 
sometime in the 1990's. I think there have been about three 
cases, and of the 33 matters--and correct me if I'm wrong--
among the 33 cases for a request from the United Kingdom to the 
United States for extradition, Article 3 claims were made in 
not a single one of those cases.
    Now granted, it is unusual, but I don't understand what the 
problem has been. It seems to me you have to make a better case 
of changing this than the fact that it's a little different. We 
understood it was a little different, but in the 20 years it's 
been in existence, in the 33 cases brought by the U.K. in not a 
single one of those cases has anyone used the Article 3 claim, 
so what is the problem? Practically, what is the problem? 
That's 33 cases in the last five years, I'm corrected.
    Mr. Witten. Well, Senator Dodd, I will address this 
question.
    There are really two parts to your question of what is the 
problem here. One part is that there is a history here of years 
and years of litigation in which fugitives accused of crimes 
that would fall within Article 3 of the Supplementary Treaty 
sought to impugn the motives of the United Kingdom in seeking 
their extradition by resorting to U.S. courts admitting 
evidence. These cases were in litigation at the District Court 
level, the appellate court level, ultimately the individuals 
were not extradited, and after the Good Friday Agreement----
    Senator Dodd. You're suggesting that all of those judges 
were politically motivated in all of the decisions they made on 
those cases?
    Mr. Witten. No, I didn't say that at all. What I'm saying 
is that judges were put in the unfamiliar and inappropriate 
place because of Article 3 of the Supplementary Treaty of 
having to judge issues within the United Kingdom that in every 
one of our other 125-130 extradition treaty relationships all 
reserve to the executive branch. It's not that the judges were 
politically motivated and taking their time, the judges were 
faced with a decision that is not a decision--it was a matter 
of inquiring into the conditions of prisons outside of the 
United States, it was a matter of examining how and why the 
British Government believed that these individuals should be 
returned for extradition. The Justice Department had teams of 
people that had to present and defend, had to present evidence 
and defend the United Kingdom against claims of unfairness and 
it's so anomalous and it's so inappropriate for one government 
to be. The second part is, so that answers the question about 
what's the big deal, the big deal is that our courts were put 
in this position, and individuals were not extradited for 
crimes for which they should have been extradited.
    But then there's the broader issue, Senator Dodd, of the 
U.K. Government being put in this difficult and anomalous 
position, and the United States, frankly, being put in an 
anomalous position vis-a-vis the U.K. that we don't subject all 
of our other extradition partners to this additional level of 
judicial scrutiny.
    As reflected in the Deputy Attorney General's comments, and 
in Professor Morris's comments earlier today, the U.S. courts 
have a vital role to play, they filter out cases based on dual 
criminality, they filter out cases based on political offense 
and quantity of evidence and quality of evidence----
    Senator Dodd. Do you know how many cases we're talking 
about here in 21 years?
    Mr. Witten. I know that the number is not huge.
    Senator Dodd. Five fugitive cases, two were extradited, 
three people in one case took years then reviewed their request 
after the Good Friday Accords--I just think you could make a 
better case, here, you have to make a better case for the 
problem. I realize it was different, there's no question about 
it--it was different. If there's a case to be made----
    Mr. Witten. Let me posit an example of the problem. Let's 
say that this next week there were to be a horrible terrorist 
attack in London, akin to the July 2005 subway bombings. This 
is all hypothetical, fortunately, but let's say next week 
there's another Al Qaeda attack. You have fugitives from that 
attack that find their way into the United States, the British 
Government seeks their extradition. The British Government 
supplies all of the necessary documentation and satisfies the 
State and Justice Departments that there is a quantum of 
evidence relative to the standards of the treaty and applicable 
to U.S. law. And then the individuals are arrested, and are 
brought before the courts and begin litigating before our 
courts the motivation of the U.K. Government. ``Their coming 
after me because I'm Muslim, because I'm of a certain ethnic 
character, because they don't like something about me, because 
conditions there are discriminatory,'' all of those issues 
would be handled by U.S. courts for the U.K., but if the same 
events had happened in Spain, in Madrid, for example, another 
treaty partner, in Paris--U.S. courts would not have to be 
seized of these dramatic issues of the motivation of the 
requesting country.
    Mr. McNulty can address the practical consequences of 
having to litigate this, but when you think about it, it is 
striking and frankly inappropriate that the United Kingdom, 
after an Al Qaeda attack, would have to have this additional 
layer and burden in order to show justice to their people.
    Senator Dodd. I hear you, I don't want to dwell on it, I 
hear you. The problem is, I know, and I appreciate it--we all 
are doing everything we can to defeat terrorism here. But we 
are a nation of laws, we're a nation of laws, and we have a 
great ally and a great friend in Great Britain, but we need to 
remind ourselves in all of this that we are a nation of laws. 
And while people may be wrong and may have done terrible 
things, the idea of presenting evidence and so forth is 
something we kind of cherish in this country. We better be 
careful as we go forward here that we don't just abandon, in a 
sense, I'm more than anxious to find out ways to make this 
work, and work well, but I get uneasy when I hear people 
suggest somehow that those provisions ought to be sort of set 
aside because of the allegations made here, and you can create 
a fact situation hypothetically that could certainly make all 
of us very uneasy, but I think we ought to be careful about 
creating hypotheticals which would suggest, somehow, that 
people's rights in this country are somehow going to be 
abdicated because of the nature of the alleged crime committed 
here. So, I think there is an argument to be made here, but be 
careful. And all I'm trying to raise with you here is--what is 
the problem with this, in effect, based on 21 years of 
experience? And I don't see much. Now, you can hypothetically 
go forward and create situations, but that's the only question 
I have here.
    Mr. McNulty. Senator, can I make one more response?
    We talked here about the fact that on this question--so, 
you first make a point about the rights--we're all in agreement 
with that. That we all have to proceed under the rule of law, 
and that we're not going to affect rights of anyone. The 
question we're dealing with right now is whether or not after 
all the procedures are followed and all of the rule of law is 
adhered to, whether or not a person can then still get relieved 
from extradition based on political motivation, and how that 
should be done. And you've made the point--and I understand 
it--it's a fair question, but there has been a limited number 
of cases where this special, anomalous situation that the U.K. 
faces where their requests to us would go before--and the issue 
of political motivation--would go before a judge rather than 
the executive branch. That in that one case, that's it's only 
been a certain number, the judges eventually find their way 
through it or change it.
    Senator Dodd. But the political motivation works both ways, 
I just listened to Mr. Witten give a very strong argument, the 
bulk of his argument was our friends in Parliament over there 
are upset with us, and that the political dimension of this 
debate gets highlighted by the argument presented--with all due 
respect to Maggie Thatcher and so forth--I've got to all of a 
sudden adopt a treaty here and ratify it because some members 
of the House of Lords dislike Tony Blair and want to embarrass 
him to some degree. There's a political motivation behind the 
pressure here for us to ratify something.
    Now, I'm anxious to hear what they have to say, but as one 
member of this body, I'm not going to ratify a treaty--with all 
due respect to my friends in the British Parliament--because 
they want me to. I've got an obligation to my constituents and 
my Constitution which is different then theirs. They can say 
all they want, but in the final analysis, I have an obligation 
to people here. I have an obligation to people here--the 
political dimension to this, you've highlighted the problem in 
a sense--if our argument is we ought to do this because our 
friends in Great Britain are demanding it of us, then that in 
fact corroborates the concern being raised by people that if, 
in fact, it ends up being a political question in the end, the 
motivation, we're more apt to make a decision in favor of them, 
and WINPACs may point otherwise.
    Mr. McNulty. It's that obligation that you have that brings 
me here today. Because it's the obligation to protect the 
American people and to have treaty obligations in place in the 
United Kingdom affecting our request for extraditions from the 
United Kingdom back here, that is the whole reason why we're 
doing this. This anomalous situation involving political 
motivation is a piece of a larger agreement, and to treat this 
country the way we treat all of the others is a necessary step 
in order for us to enjoy the benefits of this treaty, first and 
foremost being return of terrorists who have attacked Americans 
without having to go through years of litigation in the United 
Kingdom. And that is what we at the Department of Justice faced 
before 2003. Apart from the question of what litigation goes on 
here, but it's the litigation we face there that changed so 
dramatically by not having to have a prima facie standard.
    Senator Dodd. That's a good point, and I hear you, and I'll 
move on here. But we can't go over how we're sort of tailoring 
our own laws because other countries are threatening us with 
actions they may take that may make it more difficult for us--
that's a dangerous precedent to set around the world, and if it 
becomes well-established that that is how we write our laws 
based upon whether or not we're going to get cooperation 
elsewhere, we could find ourselves doing some things here we 
might regret. I hear what you're saying.
    Mr. McNulty. I fully agree with you, Senator, if I thought 
that was true, but we're not talking about tailoring our own 
laws, but bring the one particular provision in conformity with 
our laws that we have with every other country.
    Senator Dodd. Thanks.
    The Chairman. Let me just add something that is not as 
potent as the argument about terrorists, but as I heard in our 
first panel, the gentleman suggesting that if he had made 
comments in a public forum with regard to Northern Ireland and 
Great Britain and these sorts of things, that he might be 
extradited for that. Essentially, we tried to establish in the 
first panel that there's a lot of protections because the case 
of extradition goes through Title 18, through the judicial 
system--therefore if a court of law indicates that he is not 
going to be extradited there is not any additional review by 
the Secretary of State that says you are going to be 
extradited. In other words, there's not double jeopardy. That 
was, I think, the concern of the gentleman who believed he 
might have made some comments in the course of the last 20 
years about problems in Ireland and the United Kingdom as many, 
many others have in the United States.
    So, I think Senator Dodd suggested perhaps that we may make 
a statement or have an addendum or something that indicates 
that that is clearly, the Constitution applies, so does Title 
18--it's not been stripped away and that, in fact, this 
gentleman has an extra appeal in this case through the 
Secretary of State who may say, ``Well, the court didn't 
understand, but in fact, this is a politically motivated thing, 
and therefore we're not going to extradite.'' And I mention 
that simply because that is one whole raft of concerns, I 
believe, that come along through this debate.
    Well, let me go on to question two--Professor Boyle has 
offered testimony the United States would violate its 
obligations under the International Covenant on Civil and 
Political Rights if it were to ratify the proposed treaty. 
Professor Morris has addressed this issue in her testimony in 
some detail earlier this morning. What is the administration's 
view on the potential violation of the International Covenant 
on Civil and Political Rights?
    Mr. Witten. Mr. Chairman, we have reviewed these 
allegations, which were set forth in a letter that Professor 
Boyle sent to the Foreign Relations Committee in, I believe, 
April of 2004, where he lists a series of provisions from the 
International Covenant on Civil and Political rights, and 
asserts that entering the treaty would violate them. We've 
reviewed this issue, and as you noted, Professor Morris has 
addressed it in great technical detail, so I'll just really 
summarize.
    The United States would not violate its obligations under 
the International Covenant on Civil and Political rights if it 
were to ratify the proposed Extradition Treaty with the United 
Kingdom. We agree with the testimony you've already heard that 
the proposed treaty and U.S. extradition procedures, as you've 
noted, Mr. Chairman, in Title 18 are entirely consistent with 
the protections enshrined in the International Covenant.
    Second, we note that some critics have suggested--without 
basis or explanation--that the U.K. is in violation of its 
obligations. We do not see merit in those claims, but even if 
there were a claim that the U.K. were somehow in violation of 
its ICCPR duties, U.S. obligations under this covenant would 
still not be implicated for two reasons.
    First, as reflected in the negotiating history of the 
Covenant, and consistent positions taken by the United States 
in all of the years since, our obligations relate to conduct by 
the U.S. solely in its territory.
    Second, our obligations under the covenant certainly do not 
apply to the conduct of other sovereign governments within 
their own territory. So I guess, to summarize, Mr. Chairman, we 
of course take any allegation of a treaty violation very 
seriously. We've reviewed it, we've read Professor Boyle's 
letter carefully, we simply don't see merit to it and Professor 
Morris went into it at great detail, and I understand her 
testimony is part of the record.
    The Chairman. Senator Dodd, do you have any comment on this 
issue?
    Senator Dodd. Well, no, I think it is a good point--I 
wonder if you might just go on to a related matter, because it 
gets to this question--kind of two issues. One has to do with 
the double jeopardy provision, I presume you're both aware of 
this thing that recently the U.K. enacted a law, a Criminal 
Justice Act 2003, provides in part for the re-trial in certain 
cases--even though there's been an acquittal--I wonder how that 
would comport with U.S. standards of due process, and whether 
or not that raises the questions about the duality issue where 
you would have had a case, I presume, and I'm trying to imagine 
a fact situation where they would have tried a case that, for 
whatever reason, the matter would have been acquitted because 
new evidence emerges, they re-try the case, and therefore you 
could end up with a duality--does that pose any issues that you 
think ought to raise concerns with members of this committee?
    Mr. Witten. Mr. Chairman, we are aware of the law, I'm not 
an expert in U.K. domestic law, so I don't know how that 
provision will actually be construed, I know that in some 
systems, jeopardy attaches at different times in the process, 
so I don't know in the hypothetical case how it could come up. 
In any case, we would evaluate any extradition request to be 
sure that they meet the requirements of the treaty.
    Senator Dodd. Let me--on a related matter, and again, this 
gets very technical and esoteric to some degree, but they are 
important questions to people--the Rule of Specialty, which is 
another matter of concern. And for those--and believe me, until 
I got into this I wasn't sure what the Rule of Specialty is 
aside from what I have in front of me--but apparently it is a 
time-honored tradition of extradition practice designed to 
ensure that a fugitive surrendered for one event is not tried 
for other crimes. And to ensure that the request is not used as 
a subterfuge, many recent treaties--including this one, 
however, allow for waivers of the rule if the Executive 
requested State consents. I understand from a prior answer this 
is rarely done since 1991, the Department of State has received 
thirty requests for waivers, and of these 17 requests were 
granted, five were denied and eight are pending. I wonder if 
you might share with us a little more what sort of cases are 
these where the rule is waived and will the request of waiver 
usually related to the same offense or act in some way, can you 
comment on this?
    Mr. Witten. I can, Senator. First, in a general sense, 
you're accurate--this is a typical provision in modern 
treaties. The older U.S. treaties dating back to the first part 
of the century, or even the 1972 U.K. treaty has a Rule of 
Specialty provision, but it doesn't explicitly state that it 
can be waived by the requested state. This treaty provision in 
the 2003 treaty brings the U.K. standard the same as a number 
of other countries, and I would just note, Argentina and 
Austria are some recent treaties that the committee has 
approved, that it has the waiver clause, but more generally, 
the treaties in the past ten or fifteen years have had that in 
terms of how it works, the requesting state--after an 
extradition request has been made and acted on, then gets 
custody of the fugitive through the extradition process. It may 
be the case that other conduct came to light after the 
extradition had taken place and there could be--in the U.S. 
there's a District Court case called Berenger v. Vance where 
the issue was litigated and there are certain standards to U.S. 
law that set the parameters to when the State Department will 
consent to a request to a waiver of the Rule of Specialty. 
Typically, I remember the banner requirement being that at the 
time the initial request was made, the government did not have 
in its possession information, the ability to request 
extradition at the time, and it had--I think it's phrased as 
``just cause'' for failing to make the request. For example, if 
they were in the middle of the investigation of the other 
conduct, and then the person is extradited, and then the state 
that then has custody of the fugitive following the extradition 
seeks a waiver of the Rule of Specialty, it will present 
evidence sufficient to convince the requested state that it 
will, that extradition would have met the requirements of the 
treaty had it been made. And the purpose of the protection, as 
you may know, is to be sure that Country A doesn't ask Country 
B for extradition for one crime, but secretly they have 
indictments for 10 others, and they didn't want to mention it 
because there would be a concern there would be a problem with 
extradition for the others.
    The Chairman. Thank you very much. Now, let me just ask the 
general question--where I turn to current events to interview 
and to comment on any other issues discussed with the first 
panel, I think we've touched upon several of those, but if you 
have any additional comment, this would be an appropriate time 
to make that comment.
    Senator Dodd. I have a couple of specific questions maybe 
at the appropriate time, Mr. Chairman. I'd just like to raise 
the issue of the dual criminality issue--you heard us discuss 
awhile ago and I raised a fact situation and Ms. Morris 
responded to me by saying there would more, but better, rather 
than picking out one statute in one place I used the District 
of Columbia possession of a firearm law as an example of where 
duality of criminality might raise some concerns, when you're 
looking at a State or in this case the District of Columbia 
having a provision not typical in the majority of jurisdictions 
in the country, but would I presume, qualify for dual 
criminality for purposes of extradition. And it seems to me 
this needs some clarity because if it's just one jurisdiction, 
it could be a city ordinance of the same and it might qualify. 
As for dual criminality, I don't know if we were specific about 
state and Federal--I presume Federal--to what extent do you 
have to have a pattern, and to what extent this contributes to 
forum shopping in a sense by the Justice Department looking to 
find some place that would qualify for duality in terms of 
qualifying for political motivations, let's say here, and that 
worries me here a little bit. Federal law, I have no problem 
with that, that seems to be the natural one where the United 
Kingdom is seeking extradition from the United States--duality, 
I presume, would apply to the national laws of the United 
Kingdom alongside the national laws of the United States. If it 
comes down to some local jurisdiction's criminal statute--and I 
guess you would have to be a state to have a criminal statute, 
I don't know if a city can have a criminal statute or criminal 
ordinance--you understand the hypothetical I'm engaging in and 
suggesting to you here, and what is the answer to it? We 
obviously know the issue--how does it work?
    Mr. McNulty. We both can respond on this. First I want to 
say that initially, of course, the Federal law is going to 
govern, and Federal law is broad in many ways, and so it's 
going to cover, as you know that even Federal laws applied to 
lands like Indian reservations, so we have several laws on the 
books that cover murder and kidnapping and other violent 
crimes, so that is the first requirement.
    Secondly, when the hearing occurs, the action of the court 
takes place, it occurs in the jurisdiction where the person is 
found so that the government can not--as you have said, I think 
earlier in the other panel, some concerns about choosing a 
forum that might be favorable to the dual criminality test--and 
that is not going to be possible, it's going to be based, 
again, on where that individual is.
    Of course the defendant will have--or the person being 
requested--will have the right to raise any appropriate defense 
in the course of the extradition process, and could challenge 
this question on the dual criminality issue, which is one of 
the key things the court must look at for purposes of making 
the determination of extradition.
    Mr. Witten. Senator Dodd, I think the question came up in 
an unusual way, and I'll try to address that, but let me talk 
for just a minute about dual criminality and the way it works 
in practice, in my experience, with the extradition practice of 
the United States. Often the issue is not at all hard--if it is 
a list treaty, you look to the list to see if the conduct is 
criminalized and subject to the list. The U.K., as you know, 
the current treaty does have a list of offenses, and it has an 
additional provision at the end which indicates that 
extradition is also possible for conduct that is a felony, or 
punishable by more than a year in prison. The old treaty, 
before the 1970's, our extradition practice just listed 
offenses, so the test between the governments was the list.
    This treaty with the U.K. is a dual criminality, it's what 
we call a ``pure dual criminality'' treaty so we don't have to 
go through the list of offenses and worry about, is it 
criminalized here or there--you have a different test, and 
whether it's criminalized in both systems, and I'll try to 
address that, although as I say, in my twelve years of dealing 
with this issue in the U.S. extradition program, the issues are 
generally pretty straightforward. Our Federal law is so 
comprehensive that we rarely have to look at the laws of 
individual states to see if conduct is dually criminal--most of 
our extraditions are for crimes of violence that are 
criminalized at the Federal level. Issues have come up through 
the years with issues like the word ``kidnapping'' doesn't 
include parental kidnapping and so forth. But by and large, 
it's a straightforward Federal law, typically that would 
address the crimes for which extradition is sought, or 
extradition is requested.
    The cases that, I think, the first panel got into a little 
bit involves the rare case where a foreign government has a 
crime on its books, there is no Federal parallel to that crime, 
to the conduct--it is not necessarily the term of years, but 
what is the conduct for which they're seeking extradition. And 
then there's no U.S. Federal law, someone is held for 
extradition, and then litigates--there's no Federal law. And 
then there are some Federal court cases and perhaps we should 
prepare a paragraph or two for the record to address this 
question, because I don't know that I'll get it all right but I 
think there's a multitude test where the jurisdiction where the 
fugitive is located would look to a majority of U.S. states, or 
possibly the state where the fugitive was arrested to see if 
there's no federal law that matches up with the foreign 
jurisdiction's law--what would happen in that court? And let me 
suggest, if it's all right with you and the Chairman, that 
maybe we'll do a paragraph on this rare case where there's no 
Federal law, and that extradition is sought from the United 
States and you have to look at state laws.
    Senator Dodd. It needs some clarity, I think. And we're 
setting some precedents here, and I presume we're going to be 
applying this to other treaties that may come along with 
extradition, and I think clarity on this or you're going to run 
into a buzz saw, I can tell you, just on the issue of the 
possession of firearms, I cited one organization that I suspect 
may have some real concerns about a provision like that and 
whether it applies, but that situation I'm talking about, where 
they arrest someone in Texas for extradition. There's a law in 
Oklahoma on the possession of explosives that would comply with 
the duality of criminality. In the fact situation--could you 
take the Oklahoma law and apply it to the standard of dual 
criminality even though the person wasn't from Oklahoma, wasn't 
in Oklahoma when they were arrested, but the statute exists in 
Oklahoma, does that meet the standard?
    Mr. Witten. I want to clarify one point, and then I would 
like to submit something for the record.
    Senator Dodd. We appreciate that.
    The Chairman. We would be pleased to have that for the 
record.
    Mr. Witten. Why don't we prepare something on this rare 
issue of where extradition is sought and you have to look at 
the non-Federal information.
    Mr. Witten. I just want to clarify one point--we are 
setting a precedent within the U.S.-U.K. context, this will be 
new for that. But I just want to return to the theme that this 
treaty with the United Kingdom is substantially the same as all 
of our modern treaties--it has a unique history because of the 
1985 Supplementary Treaty, but what we're doing here is nothing 
more than attempting to bring the U.K. relationship in line 
with other modern treaties.
    Senator Dodd. I appreciate that, and I would appreciate 
having something submitted on it and you understand I'm not 
trying to create totally bizarre--but you can understand how 
this might happen under a different year's--someone looking 
ahead and forum-shopping.
    Mr. Witten. We will submit something on this.
    Senator Dodd. Let me if I just can, just quickly raise two 
other questions, if I can. And one has to do with the Northern 
Ireland justice system, and it's of course very similar to that 
of England and Wales--most lesser offenses are prosecuted by 
the police in Northern Ireland, serious crimes are prosecuted 
by the Director of Public Prosecution, jury trials are normal 
practice except for offenses involving terrorism or allegations 
of terrorism under the Northern Ireland Emergency Provisions 
Act of 1996 and deliberating offenses covered by Schedule One 
of that Act, judges sit alone without juries in the so-called 
Diplock courts, and I'm just curious--do provisions of the 
Northern Ireland Act of 1996 still apply with respect to 
individuals charged with offenses under Schedule One of that 
Act being denied jury trials? Number two, have any human rights 
organizations criticized this practice? I presume some have. 
And was the issue of the Diplock courts a subject of U.S. court 
deliberations in considering the U.K. extradition requests for 
Kevin Art, Paul Brennan, Clarence Kirby--which dragged on for 
years until the U.K. withdrew its extradition request in the 
year 2000. And under the proposed treaty, would it be 
appropriate for U.S. courts to look at the issue of the Diplock 
courts in determining whether to approve extradition, or would 
that be a goal for the Secretary of State--I guess in this case 
it would be under, it would be proper--there are about three or 
four questions there.
    Mr. Witten. Senator Dodd, of the questions you asked, 
actually it may be prudent for me to work with the Justice 
Department and submit information. On the last of your 
questions, would it be appropriate for the U.S. to extradite 
into a particular court system? I think the premise there is 
sort of the same as some of the other discussions that we've 
had in that the question of conditions in a certain 
jurisdiction or the motivation of those seeking, or what will 
happen after extradition, and in the view of the administration 
should be handled by the Secretary of State and by the 
executive branch as opposed to the courts. So, the answer is, 
would it be appropriate to review those issues? I think we need 
a little more--we look into the first two or three questions 
and get you a more structured answer about the generic issue of 
conditions and motivations and things like that, we would view 
as something that could be considered, but not in the way it is 
now available to be considered in U.S. Courts.
    Senator Dodd. Take a look at that one, too, and I'll give 
you a chance to maybe give me a more concise and direct answer 
on that one, too.
    Mr. Witten. So, you'll be rephrasing?
    Senator Dodd. I will give you the questions, I'll submit 
the questions to you. I realize that--I don't expect you to, 
I'd like you to go back and review, and make sure the policy--
I'm very interested in this, because it is a process, it is a 
procedure and I would presume if we weren't talking about the 
United Kingdom where there's a certain high degree of respect 
for processes and procedure, we're talking about some other 
place, how people would be tried, under what circumstances 
would be a very important matter.
    Mr. Witten. We will answer any questions.
    Senator Dodd. So, I'd be interested in that.
    The last issue I want to raise with you is the statute of 
limitations as a bar to extradition under the current treaty--
of course extradition should not be granted or barred by the 
statute of limitations according to the laws requesting all 
requested parties, and that's in 1985--in other words, statute 
of limitations of other courts would apply, the proposed treaty 
Article 6 provides the decision to grant extradition ``shall be 
made without regard to any statute of limitations in other 
states.'' And I recognize a lot of treaties have included this 
provision, again this has been sort of more of the norm and yet 
the statute still applies in the country where the person will 
be tried. But numerous treaties approved by the Senate in the 
last decade, including such countries as France, Hungary, 
Poland and South Africa, have included some kind of provisions 
on statute of limitations in both states makes it more 
difficult, obviously, for those with concerns about the 
proposed treaty to accept the removal of a role for the United 
States' judiciary to make a determination about political 
motivations, in a sense. I'm just curious why the statute of 
limitations was excluded altogether, again going back, because 
that's where most of them are, that is the precedent, and I 
wonder if you might talk about the statute of limitations in 
the United Kingdom, particularly on the Northern Ireland law 
and what it is, because that still would apply, obviously, 
whatever the statute of limitations would be in the requesting 
country would apply. What is it in the United Kingdom? I don't 
know what it is in Northern Ireland, and what protections 
against politically motivated extradition requests under the 
proposed treaty would insist in the proposed treaty?
    Mr. McNulty. Let me take on at least two-thirds of that 
question.
    First of all, with regard to the statute of limitations, 
it's not at all eliminated by this treaty with regard to its 
being a defense, what the treaty seeks to do, as you say, as 
with the case of other treaties is to put that question as to 
whether or not the statute of limitations is a factor in going 
forward in the appropriate tribunal. So, it says that the 
decision by the requesting, or the requested, excuse me, the 
requested country, will not turn on whether or not the 
requesting country's statute has a statute of limitations 
issue, or there is a question of a statute of limitations, but 
instead, it will be decided based upon the dual criminality 
standard we've talked about today.
    Once the individual is returned, and that's the appropriate 
place for the statute of limitation issue to be raised, and it 
puts that in the appropriate tribunal, the appropriate court, 
where the expertise on whether or not there is a statute of 
limitations issue there will be resolved and litigated.
    So, that's the thinking behind how the statute of 
limitations issue will be addressed, and making the court that 
is best equipped to interpret the issue the one that will 
consider it.
    As to--I can't speak to the particular issues involving 
Northern Ireland, but I will be able to provide that 
information to you as a part of the information that is coming 
forward--the last point is----
    Senator Dodd. What is it in the United Kingdom?
    Mr. McNulty. It would differ with every different offense, 
like our statute of limitations work.
    Senator Dodd. Do they have, are there statutes of 
limitations under British law?
    Mr. McNulty. I'm not positive about that. I would have to 
get back to you on that.
    Senator Dodd. There's a woman behind you, I think, who has 
that.
    Mr. McNulty. We're going to check it before we say 
anything.
    Senator Dodd. Can you tell me why in the other cases of 
Poland and France and Hungary and so forth why we retained 
provisions dealing with the statute of limitations in those 
particular treaties, and here is, this is apparently the case 
again. I don't claim personal knowledge of those treaties, I'm 
being told that language exists in those treaties, and they're 
fairly recent. Once we've ratified, why we've retained it there 
and not here? Using precedent and so forth as our argument, 
we're taking it out of here, why do we keep it there?
    Mr. Witten. Our preferred provision on statute of 
limitations is the one in the U.K. treaty where there is not an 
adjudication--as Mr. McNulty mentioned--there's not an 
adjudication in the courts of the requested state on the 
statute of limitations in the requesting state when it may have 
been tolled, how it would work in practice, when does it start, 
when does it end and so forth? Simply because that is not an 
issue in the expertise of the requested state. I have several 
examples, there are examples in all different directions, 
Senator, you're exactly right, and that's a function because 
each of these treaties are negotiated individually. And we come 
to the table--I've come to the table many times in extradition 
bilateral negotiations with a preferred provision, sometimes 
other countries have domestic laws that prevent them from 
agreeing with us, but from our perspective the rest of the 
treaty is good, and we're willing to live with some 
adjudication of statute of limitations. In this case, in the 
other examples--Lithuania, Sri Lanka, Belize are three that we 
just found this morning in anticipation of a possible 
question--so our preferred provision, as explained by Justice, 
is clear and it fits that and it is appropriate in this 
relationship. Thank you.
    Senator Dodd. I will submit for the record here, we have 
Hungary which was approved in the 104th Congress, France in the 
105th Congress, Poland in the 105th, India in the 105th, 
Austria in the 105th, South Korea in the 106th Congress, South 
Africa in the 106th--all have statute of limitations bars on 
extradition.
    Mr. Witten. Senator Dodd, can I just add one brief comment, 
and I know that we've gone on a long time. I just want to make 
clear that in a treaty like the U.K. and the several others 
that I've mentioned where this treaty doesn't have anything on 
statute of limitations, that of course, doesn't mean that the 
individual can't raise statute of limitations claims when they 
are returned, if they are returned to the country seeking 
extradition.
    Senator Dodd. This goes right to the heart when I asked the 
question, and why I'm dwelling on this. When I asked the first 
panel ``What are you really worried about here?'' And what 
they're really worried about is that this treaty is going to be 
used to reach back despite the efforts that's been made after 
the Good Friday Accords to move beyond that. You might say, 
listen, that's a totally legitimate concern, you've read the 
letter from the home Secretary and others on this point--she's 
listed out the various things and I hear you say that.
    But I think it's fair to also take into consideration 
people who've been through an experience where it's very rough 
on them and they want to know that this is prospective, we're 
not looking back, and so the statute of limitations issue can 
really reassure constituency here that are very worried about 
what may happen. Even though all of us are saying--this is not 
going to happen, don't worry about it, it's not going to be the 
case--we ratify this and find out it happens. And then if we're 
taking statute of limitations provisions and other matters, how 
much of a problem is it really here, and I would like you to 
address that at some point, because it's an issue, I think 
colleagues are going to raise. Again, if you sat here and told 
me, ``Look, we don't want to apply this anymore, anywhere at 
all,'' but if you've got seven or eight treaties that have been 
ratified with it here, we need to take that into consideration. 
If it does nothing else but allay the fears that this is not 
going to be a reaching back to the 70's and 80's, to twenty-
five, thirty years ago. That's all of the concern.
    Mr. McNulty. Two quick points, Senator and Mr. Chairman. 
First of all, the reason why, as a former Federal prosecutor on 
the front line as opposed to being Deputy Attorney General, we 
have issues where this issue of statute of limitations gets a 
little complicated even when everybody in the jurisdiction 
thinks they know the law. And you'll charge someone, and 
they'll come forward and say, ``I've got a statute of 
limitations defense,'' and the government will have a different 
way of reading the application of that, and it will be 
litigated, the court will decide.
    So, if the question is going to be resolved, it's best to 
have it resolved by the court that has this expertise, rather 
than trying to decipher it from the requested country as to 
what the requesting country's statute of limitations are. And 
in the case of the U.K., we talked about how this is dealt with 
in regard to other countries. We have seen, in the recent years 
in terms of the terrorist cases and some significant white 
collar crime cases that there's a lot of activity here in terms 
of extradition requests.
    And so if there's ever a place where we would want to be 
able to not create more confusion, delay and litigation over 
statute of limitations arguments, it's in the relationship with 
a country where we have seen criminals flee or the other 
jurisdiction that we're trying to get them back from for trial.
    So, I think there's an argument for it's being--and this 
one in particular.
    Senator Dodd. That's a good case for a prosecutor to make--
I'm a Senator, I have to vote on ratification of treaties, I 
have to listen to what you're saying, but also have to listen 
to what is on the other side of this. I appreciate your point.
    Mr. McNulty. And finally, just on this----
    Senator Dodd. Just tell me what's going on here, I don't 
claim to know, but it is a mixed bag, and if we kind of lay the 
concerns--as I mentioned earlier, and it doesn't complicate 
your life too much--then I'd be interested in doing something 
about it.
    Mr. McNulty. The last point I would be able to make is they 
would be able to make that statute of limitations argument when 
they're in the requesting country.
    The Chairman. I would concur with Senator Dodd--I think a 
couple of points, just as a layperson looking at this--when is 
the reaching back, a history not of terrorists in the current 
era, but of Irish and British conflict, and difficulties that 
have come over here. So as a practical matter, as a political 
matter, this sort of thing that comes before Senators that 
really has to be met, and we're trying to do that in a common 
sense way. So I think Senator Dodd and I--we don't want a 
reaching back for 20 years of some such situation with somebody 
who is a person in the United States now feels they made some 
statement with regard to Irish-American affairs or Irish-
British affairs a long time ago, and somehow he goes back for 
trial.
    The other point is that the Constitution still applies, and 
the relevant law, Title 18, still applies. That this is not now 
an arbitrary affair of the Secretary of State--this making 
political, discretionary arguments to humor either Great 
Britain or somebody else. And these are two practical items 
that I hope we can address. And where Senator Dodd's questions 
to you on the technical matters as well as these broad concerns 
I'm talking about in terms on some sort of a statement of how 
we feel about this, maybe we can do that. But I think the 
hearing has been useful in bringing to the fore if we need to 
allay concerns in these areas that is something to do about the 
history of Great Britain and Ireland and the United States and 
how we get to that point.
    But now let me just finally say, that now the recent 
history--and I don't want to dwell on this--is that a lot of 
attention, as you pointed out in the British press, generated 
by the high-profile extradition of three British bankers in the 
Enron case, and the House of Lords and the House of Commons 
debated that business. And they have brought to the fore some 
issues.
    Now, let me just say that among the issues--it's been 
alleged, is it true that the conduct alleged in the case, that 
is the Enron case--took place solely in the United Kingdom? 
And, if so, how is the issue handled by the United Kingdom in 
this case? Explain how the proposed treaty would address 
offenses over which a party exerts extra-territorial 
jurisdiction--would such offenses be extraditable and under 
what circumstances, and how does dual criminality apply in such 
cases?
    Finally, the British case of the bankers has brought 
forward quite a debate about whether the proposed treaty is 
unbalanced or asymmetrical with regard to standards of evidence 
applicable to extradition cases in the United States and the 
United Kingdom. Can you talk about the evidentiary standards in 
addition to the question of what happened in Great Britain with 
regard to the Enron people, and why are they being extradited 
to the United States?
    Mr. McNulty. Yes, Mr. Chairman. With regard to that 
particular case, I'm going to have to limit what I have to say 
just because it is an ongoing matter and don't want to get into 
the specific facts of what we call the Nat West case. I can, 
however, tell you that this was litigated extensively in the 
United Kingdom courts, and they ultimately found that there was 
a sufficient nexus to U.S., I mean to the United States and 
conduct committed in the United States, and that's why the 
United Kingdom did extradite those individuals to the U.S. And 
that they found that they would have jurisdiction to prosecute 
the alleged crimes under similar circumstances. So it satisfied 
the tests that exist pursuant to the 2003 treaty that has been 
ratified in the United Kingdom. And they specifically had to 
litigate and deal with the question of the jurisdictional issue 
in the United States. So we believe that extradition was proper 
and that is now proceeding forward here.
    On the question you raise about the extraterritorial 
jurisdiction. This provides for extraterritorial jurisdiction 
and it works in such a way that the requested country would 
have to have jurisdiction over the matter according to its 
laws, just as the requesting country would have jurisdiction 
over the matter.
    So, for example, suppose an individual was kidnapped in a 
third country, and U.S. law covers that conduct, and there is a 
basis for jurisdiction over the kidnapping, and bringing those 
individuals back to the United States for prosecution. So long 
as the United Kingdom which would allow for the prosecution of 
an individual who kidnapped a British citizen in the third 
country, and to bring that person back to the U.K. for 
prosecution, then it would meet the standard in this treaty 
with regard to extraterritorial jurisdiction.
    As a general matter, the United States exercises, I mean, 
excuse me, the United Kingdom exercises a somewhat less 
expansive extraterritorial jurisdiction than the United States 
and we're not aware of any particular offenses for which there 
is extraterritorial application under the law of the United 
Kingdom, but not under the United States law.
    And I think your third question was in the are of the 
larger issue of balance or asymmetrical--the issue that is, in 
some ways, being addressed right now in the United Kingdom. I 
defer to the State Department on that issue.
    Mr. Witten. Thank you, Mr. Chairman.
    I think the best way to think about the claims of imbalance 
are to take the chronology of prior to the 2003 U.K. law there 
was an imbalance in favor of the United Kingdom. They had to 
show probable cause for purposes of arrest and extradition, we 
had to show the higher prima facie standard, and Mr. McNulty 
has outlined in the case, I think, of a computer crime case. 
What that meant in practice for him as a prosecutor--much more 
substantial evidence, much more difficult to make the case.
    In 2003 we signed this treaty--the British Government in 
that year effective, I think, the first part of 2004 gave us a 
favored status in that, even though the treaty had not yet 
entered into force on this aspect of the treaty--obviously not 
the whole treaty, but this aspect of the treaty we had, we were 
able to benefit from a standard that is substantially similar 
to the probable cause. And the recent debate in the United 
Kingdom on imbalance, as I understand it, and I haven't seen 
all of the transcripts of what has been said by particular 
parliamentarians, but I believe the concern is that the British 
Government--after the 2003 law, was enacted and made a choice, 
they didn't have to--under their law--give us this preferred 
status to have the lower evidentiary standard from prima facie, 
but they chose to and the government defended it on the grounds 
that the new treaty could be enforced and there would be parity 
under the treaty. So the claims, I think a lot of the 
complaints in the U.K. aren't so much about the substance of 
the treaty, but the fact that we haven't brought the treaty 
into force, and they chose as a matter of discretion, to give 
us the benefit.
    The Chairman. Thank you very much, Senator Dodd, do you 
have any further comment?
    Senator Dodd. I would just thank our witnesses and thank 
the earlier panel. I'm sorry Professor Boyle could not make it 
in, I guess there was a flight problem, but I thought the 
Chairman handled it well by raising the issues raised in his 
testimony with the witnesses. I might suggest, Mr. Chairman, 
this has taken a long time here, and I'm very grateful to you 
for doing this. I know there's some interest on the panel, we 
might leave the record open for some additional questions for a 
few days so that we can have a complete, the fullness of the 
record. I know we're going to give some response to issues that 
I've raised, which will be helpful as well, so if we could at 
least avoid, for a few days, moving on the committee until 
we've had a chance to respond to that, I think we'd all have a 
chance to respond to that, I think we would all be appreciative 
of that.
    The Chairman. Let us keep the record open for the coming 
week, that is through business on next Friday, for additional 
questions and answers, to try to perfect and complete our 
record. Yes, Mr. Witten?
    Mr. Witten. Senator, Mr. Chairman, I just wanted to make a 
very brief comment. In the earlier panel there was some 
discussion of the word ``self-executing'' and Title 18 and how 
it all fit together. I think in the end it became a little 
clearer, it's complicated, the relationship with the treaty and 
Title 18, but let me just clarify that the Title 18 provisions 
on extradition are very generally worded. They have a series of 
provisions and identify the role of the courts. What our 
treaties do is fill in, by explaining what crimes are covered, 
and procedures and what documents are to be submitted and so 
forth. And the word ``self-executing'' came in--it's a term 
that has various meanings, but because of the way our 
extradition act is in Title 18, we do view these treaties as 
self-executing--in other words, no additional act by the two 
houses of Congress would have to take place for this as in any 
other treaty. It in itself is the overlay that would go on the 
Title 18 section 3181 and subsequent provisions.
    The Chairman. That's a good point. And my point in raising 
this, and I think Senator Dodd's, is that we wanted to educate 
ourselves and maybe our colleagues and the public as to how our 
extradition policy works. Many of us, prior to getting into 
these treaties, were not aware of Title 18 and all that that 
provides, and we come to this committee with a treaty, 
obviously there's a context of American law, and our 
constitution that is important, and we've been sort of filling 
in the blanks of our own understanding, and hopefully helping 
others to do that, too.
    But your point is well-taken and we appreciate very much 
your testimony--both of you, and so saying, the hearing is 
adjourned.

    [Whereupon, at 1:12 p.m. the hearing was adjourned]

                          A P P E N D I X E S

                              ----------                              

Appendix I: Responses to Additional Questions Submitted for the Record 
                      by Members of the Committee

 Questions for the Record Submitted to Deputy Attorney General Paul J. 
    McNulty and Deputy Legal Adviser Samuel Witten by Chairman Lugar

    Question. Why is the administration urging Senate approval of the 
U.S.-U.K. Extradition Treaty now? Is it because of political pressure 
from the United Kingdom?

    Answer. Entry into force of this treaty is a priority for the 
administration because the treaty offers significant benefits to the 
United States and not because of political pressure from the Government 
of the United Kingdom. The arrests last week by the United Kingdom of 
more than twenty persons allegedly planning coordinated in-flight 
bombings of multiple passenger aircraft en route to the U.S. illustrate 
the critical nature of our law enforcement partnership and the 
importance of having a modern extradition relationship with the United 
Kingdom that incorporates the same strengths as our other modern 
treaties with so many other partners abroad.
    The treaty will provide a full array of measures designed to combat 
crime with international implications, including terrorism, narcotics 
trafficking, and serious organized crime. Benefits of the new treaty 
include a lower standard of proof for the U.S. Government's extradition 
requests to the United Kingdom, dual criminality, temporary surrender 
of fugitives for trial in U.S. courts, a new ability to submit 
provisional arrest requests directly between the Department of Justice 
and the relevant authority in the United Kingdom, and a clear ability 
for the United States to seek a waiver of the rule of specialty in 
appropriate cases.
    The United States seeks these types of provisions in all of our 
modern extradition treaties precisely because they enhance U.S. law 
enforcement efforts. We have comparable modern provisions in most of 
our major extradition relationships, and it is anomalous that we do not 
benefit from such a modern treaty with our close ally the United 
Kingdom.
    The administration witnesses noted in their testimony to the 
committee some recent political developments in the United Kingdom that 
relate to extradition of fugitives to the U.S. from the United Kingdom. 
Specifically, a majority in the House of Lords reacted to the delay in 
U.S. approval of this treaty by voting on July 12 to rescind certain 
benefits the United Kingdom had provided to the United States in 
advance of our ratification on the assumption that we would approve the 
treaty promptly. If the United Kingdom were to remove the preferential 
designation that the United States currently has under U.K. law, the 
United States would once again have to meet the more onerous prima 
facie evidentiary standard in our extradition requests to the United 
Kingdom. Such a change would impede our ability to obtain fugitives 
wanted for serious offenses in the United States.
    The administration witnesses also described increasing public 
criticism in the United Kingdom regarding the absence of U.S. 
ratification because our inaction is now threatening what is perhaps 
the strongest international partnership of the United States on law 
enforcement issues at a time when transnational criminal threats are on 
the rise throughout the world. Through inaction on updating this basic 
tool of international law enforcement cooperation, the United States 
runs the risk of weakening this steadfast partnership by failing to 
ratify an important, and frankly typical, modern treaty on extradition. 
Our good faith as an ally has been called into question on the basis of 
misinformed fears and misleading assertions. Thus, the administration 
urges Senate approval of the treaty because of its substantive benefits 
to the United States, and the administration urges the Senate to act 
now because the situation in the United Kingdom, and the world, counsel 
against further delay.

    Question. Critics of the proposed treaty have asserted that it 
would allow the United Kingdom to obtain extradition of persons from 
the United States for publicly speaking in opposition to British policy 
in Northern Ireland. How does the proposed treaty ensure that the 
United States would not extradite individuals to the United Kingdom for 
political speech? Please be specific, and include descriptions of any 
relevant treaty provisions.

    Answer. Several provisions in the treaty would preclude extradition 
where the conduct for which extradition is sought constitutes political 
speech.
    First, Article 2 of the treaty contains a standard ``dual 
criminality'' clause, which provides that offenses are extraditable 
only if the conduct on which they are based is punishable in both 
States by imprisonment for a period of at least one year. In the United 
States, conduct protected as political speech by the First Amendment to 
the U.S. Constitution cannot be criminalized, and, as a result, there 
would be no dual criminality and the United States could not extradite 
someone to the United Kingdom on the basis of such conduct.
    Second, political speech would also be protected as a political 
offense under Article 4 of the treaty. Extradition could not be granted 
if the conduct for which extradition was sought consisted of non-
violent political speech. Under both the current and the proposed 
extradition treaty, U.S. federal courts are responsible for enforcing 
this mandatory bar to extradition.
    Finally, even if the dual criminality standard were met, and the 
conduct for which extradition was sought did not constitute a political 
offense under the treaty, the Secretary of State would have the ability 
to refuse to surrender the individual if she determined that a 
particular request for extradition were politically motivated. Although 
the Supplementary Treaty of 1985 provided that courts would make this 
determination in some cases, Article 3(b) of that treaty specified that 
judicial review could be invoked only in cases involving certain 
violent offenses, such as murder, kidnapping, and offenses involving 
the use of a bomb. Thus, any assertion of political motivation with 
respect to an offense involving political speech, which by definition 
is a non-violent activity, would be determined by the Secretary of 
State under the proposed treaty in the same manner as it would be under 
the current 1972 treaty and 1985 Supplementary Treaty.
    In sum, the proposed treaty's dual criminality requirement provides 
complete protection from extradition for political speech that is 
protected by the First Amendment. Moreover, even if we assume for the 
sake of argument that there could be a case involving protected 
political speech that passed the dual criminality requirement, the 
political offense bar to extradition would apply. The executive 
branch's discretionary power to refuse surrender in cases where a 
request is politically motivated supplies additional protection for 
other crimes.

    Question. During the committee hearing on July 21, 2006, certain 
witnesses expressed concern regarding the lack of an explicit reference 
in the proposed treaty to the role of the judiciary. Please explain in 
detail the functions that the judiciary would perform under the 
proposed treaty in determining whether individuals may be extradited, 
as well as the legal basis for this role.

    Answer. The treaty will not alter longstanding U.S. law, including 
the provisions of Title 18, Chapter 209 of the U.S. Code relating to 
extradition (18 U.S.C. Sec. Sec. 3181 et seq.), which provide for 
judicial determinations at successive steps in the extradition process:

          Arrest: A judge must determine whether there is a sufficient 
        basis to issue a warrant for the arrest of the person sought 
        for extradition.

          Bail: The person sought may apply to the court for release 
        pending the extradition hearing. It is for the judge to 
        determine whether release is appropriate under U.S. law and the 
        circumstances of the case, and if so what conditions of release 
        may be appropriate.

          The extradition hearing: The extradition hearing is before a 
        judge, who must, in order to find the person extraditable, 
        determine that there is probable cause to believe the crime for 
        which extradition is sought has been committed and that the 
        person sought committed that crime; that the offense is one for 
        which extradition is provided under the treaty; that the 
        conduct charged would also constitute an offense in the United 
        States (dual criminality); and that, if raised by the fugitive, 
        there is no defense to extradition under the applicable treaty. 
        If the judge so finds, then he or she ``certifies'' that the 
        person is extraditable. While the final decision to surrender a 
        fugitive rests with the Secretary of State, such a judicial 
        certification of extraditability is required before the 
        Secretary may act to surrender the fugitive.

          Review of the finding of extraditability: If the person 
        sought has been found extraditable by the judge at the 
        extradition hearing, he or she may seek judicial review of that 
        decision in the District Court through habeas corpus 
        proceedings. If the District Court denies the habeas petition, 
        then the person sought may seek further judicial review by 
        appealing the decision of the District Court.

    Question. Would the proposed treaty be subject to the U.S. 
Constitution? Would the proposed treaty alter the U.S. legal 
requirement, set forth in 18 U.S.C. Sec. 3184, of a judicial hearing to 
determine extraditability?

    Answer. As is the case with any treaty, the proposed treaty with 
the United Kingdom is subject to the U.S. Constitution. In the U.S. 
domestic system, the U.S. Constitution takes precedence over treaties, 
as it does over statutes. Thus, a treaty cannot authorize an action 
that would violate the U.S. Constitution.
    The legal requirement set forth in 18 U.S.C. Sec. 3184 of a 
judicial hearing to determine extraditability is not altered by the 
proposed treaty.

    Question. Article 18 of the proposed treaty, regarding the rule of 
specialty, differs from the treatment of the rule of specialty in 
Article XII of the existing U.S.-U.K. extradition treaty. How is the 
new article beneficial to the United States?

    Answer. By expressly allowing a waiver of the rule of specialty in 
Article 18, the proposed treaty provides the United States a treaty 
basis on which to request that the United Kingdom waive the rule of 
specialty in appropriate cases. The United States might seek waiver, 
for example, in cases where it learned after extradition of additional 
conduct that is subject to U.S. criminal laws and sought to try the 
extradited individual for those additional offenses. Because the United 
States is already prepared to waive the rule of specialty in 
appropriate cases upon requests from our treaty partners under our 
standard practice, this change would benefit the United States.

    Question. Please clarify the testimony provided by Mr. McNulty at 
the hearing on July 21, 2006, regarding the treatment under the 
proposed treaty of crimes for which there is extraterritorial 
jurisdiction.

    Answer. The proposed treaty permits a two-pronged approach with 
respect to offenses that are applied extraterritorially. As with all 
offenses, there must first be a finding of dual criminality. Thus, for 
example, in the case of an offense involving kidnapping, the 
requirement of dual criminality would be fulfilled since the law of 
both the United States and the United Kingdom punish kidnapping as a 
serious criminal offense. If, however, the kidnapping has occurred 
outside the territory of the Requesting State, then there can be a 
further inquiry as to whether the Requested State would be able to 
exercise extraterritorial jurisdiction in similar circumstances. The 
United States and the United Kingdom approach this issue differently 
and the language of Article 2, paragraph 4, is specifically intended to 
accommodate the different approaches.
    Where the United Kingdom is the requested state, i.e., the State 
considering an extradition request from the United States, current U.K. 
extradition law requires, with respect to extraterritorial offenses, 
that in addition to a finding of dual criminality there also be a 
finding that U.K. law would permit an exercise of extraterritorial 
jurisdiction in similar circumstances. In our experience, the United 
Kingdom is among the limited number of countries that require this 
additional finding with respect to extraterritorial jurisdiction. 
(Another is Israel, and a similar provision regarding extraterritorial 
jurisdiction is set out in the 1962 U.S.-Israel extradition treaty; 
this provision is unchanged by the Protocol to that treaty that was 
recently approved by the Foreign Relations Committee.)
    The majority of countries, including the United States, do not 
require such a finding of duality of jurisdiction with respect to 
extraterritorial. offenses. Thus, for the United States, if the United 
Kingdom were to seek extradition for an offense committed outside its 
territory for which the United States would not be able to exercise 
extraterritorial jurisdiction, the United States would have the 
discretion to deny extradition, but it would not be required to do so. 
We note, however, that as a general matter, the current approach of 
U.S. and U.K. criminal law to extraterritorial jurisdiction is similar 
and remains relatively more restrictive than that of countries with a 
civil law tradition.

                               __________

 Questions for the Record Submitted to Deputy Attorney General Paul J. 
    McNulty and Deputy Legal Advisor Samuel Witten by Senator Biden

    Question. Your testimony today referenced the case of Abu Hamza. In 
what district has he been charged, and what are the precise charges in 
the indictment? Have extradition proceedings commenced in the United 
Kingdom, and what is the current status of the case?

    Answer. Mustafa Kamel Mustafa, also known as Abu Hamza, is wanted 
in the Southern District of New York on various charges including (1) 
conspiring to take sixteen hostages in Yemen in 1998; (2) conspiring to 
create a jihad training camp in Oregon; and (3) conspiring to send one 
of his supporters to Afghanistan to engage in violent jihad training 
and fighting.

    Specifically, Hamza is charged as follows:

          Count One: Conspiracy to take hostages (the attack in Yemen), 
        in violation of Title 18, United States Code, Section 1203; 
        Count Two: Hostage-Taking (the attack in Yemen), in violation 
        of Title 18, United States Code, Sections 1203 and 2; Count 
        Three: Conspiracy to provide and conceal material support and 
        resources to terrorists (the Bly, Oregon Jihad Training Camp), 
        in violation of Title 18, United States Code, Section 371; 
        Count Four: Providing and concealing material support and 
        resources to terrorists (the Bly, Oregon Jihad Training Camp), 
        in violation of Title 18, United States Code, Sections 2339A 
        and 2; Count Five: Conspiracy to provide material support and 
        resources to a foreign terrorist organization (the Bly, Oregon 
        Jihad Training Camp), in violation of Title 18, United States 
        Code, Section 2339B(a)(1); Count Six: Providing material 
        support and resources to a foreign terrorist organization (the 
        Bly, Oregon Jihad Training Camp), in violation of Title 18, 
        United States Code, Sections 2339B(a)(1) and 2; Count Seven: 
        Conspiracy to provide and conceal material support and 
        resources to terrorists (facilitating violent jihad in 
        Afghanistan), in violation of Title 18, United States Code, 
        Section 2339A; Count Eight: Providing and concealing material 
        support and resources to terrorists (facilitating violent jihad 
        in Afghanistan), in violation of Title 18, United States Code, 
        Sections 2339A and 2; Count Nine: Conspiracy to provide 
        material support and resources to a foreign terrorist 
        organization (facilitating violent jihad in Afghanistan) in 
        violation of Title 18, United States Code, Section 2339B(a)(1); 
        Count Ten: Providing material support and resources to a 
        foreign terrorist organization (facilitating violent jihad in 
        Afghanistan), in violation of Title 18, United States Code, 
        Sections 2339B(a)(1) and 2; Count Eleven: Conspiracy to supply 
        goods and services to the Taliban (IEEPA violations), in 
        violation of Title 18, United States Code, Section 371; Title 
        50, United States Code, Section 1705(b); and Title 31, Code of 
        Federal Regulations, Sections 545.204 and 545.206(b).

    In 2004, the United States sought Abu Hamza's extradition but, just 
before the extradition hearing date, the United Kingdom brought 
domestic criminal charges against Abu Hamza. He has been found guilty 
in the United Kingdom of offenses relating to incitement to commit 
terrorist acts and sentenced to seven years in prison. Abu Hamza is 
appealing his conviction, and the appeal in his case has been scheduled 
for October 2006. The extradition process has been placed on hold, 
pursuant to U.K. law, until the domestic case has concluded. Under the 
current treaty, Abu Hamza cannot be extradited, even temporarily, to 
the United States until he has completed his U.K. sentence.

    Question. Mr. Witten discussed the case of Berenguer v. Vance, 473 
F. Supp. 1195 (M.D. Pa 1979), with regard to the rule of specialty. 
Please elaborate on how this case is applied by the Department of State 
in reviewing requests to waive the rule of specialty.

    Answer. In Berenguer v. Vance, 473 F. Supp. 1195, 1197 (D.D.C. 
1979), the U.S. District Court for the District of Columbia upheld the 
power of the U.S. executive branch to consent, without a subsequent 
judicial hearing, to the prosecution of an extradited individual for a 
crime other than that for which he was surrendered. The court noted 
that the rule of specialty is not a right of the defendant, but rather 
a privilege of the requested state by which its interests are 
protected. Id. at 1197.
    Generally, the factors to be taken into account in evaluating a 
request from a treaty partner to waive the rule of specialty are 
whether the failure to include an offense in the original extradition 
request is justified because it was not previously possible to do so 
for legal or practical reasons, and whether there is sufficient 
evidence to meet the probable cause standard regarding the offense for 
which the request is made. If the request fails to meet these criteria, 
the request is denied.

    Question. Please provide data on the number of pending extradition 
requests submitted by each party under the current extradition treaty.

    Answer. a. There are approximately 33 pending U.S. extradition 
requests to the United Kingdom. (This does not include cases where the 
U.S. has made a request but the fugitive could not be located.) Three 
of these cases have been deferred pending the disposition of U.K. 
charges and/or the completion of a U.K. sentence.

    b. There are approximately 6 pending U.K. extradition requests to 
the United States. (This does not include cases where the U.K. has made 
a request but the fugitive could not be located.) Of the 6 cases, 3 are 
not yet the subject of judicial proceedings in the United States and 3 
are for fugitives who are in custody pending disposition of U.S. 
charges and/or the completion of a U.S. sentence.
    c. A general breakdown of pending U.S. extradition requests to the 
United Kingdom by types of crimes, together with their approximate 
numbers, is as follows:

          Fraud, theft, and tax offenses: 14

          Terrorism, homicides, and robberies: 13

          Narcotics offenses: 4

          Sex offenses: 2

    Question. Please update your answer to question 16 submitted after 
the November 2005 hearing with regard to waivers of the rule of 
specialty. That is, at that time there were 8 cases pending. How many 
of them have since been resolved? How many were granted and how many 
were denied? How many new requests have been submitted to the 
Department?

    Answer. Since our response to question 16 after the November 2005 
hearing, the United States has received 5 requests for waiver of the 
rule of specialty. These 5, and the 8 requests noted in our prior 
response, remain pending. Thus, from 1991 to the present, the 
Department of State has received 35 requests for waiver of the rule of 
specialty. Of these, 17 were granted, 5 were denied, and 13 are 
pending.

    Question. In the United Kingdom, Part 10 of the Criminal Justice 
Act 2003 provides for retrial in some cases where there has been an 
acquittal. Article 5(1) of the proposed treaty bars extradition where 
the person sought has been convicted or acquitted in the Requested 
State for the offense for which extradition is requested. Paragraph 2 
of Article 5 permits the requested state to refuse extradition when the 
person sought has been convicted or acquitted in a third state in 
respect of the conduct for which extradition is requested. But there is 
no provision that addresses the possibility of a case in which the 
person sought for extradition has been acquitted in the requesting 
state of the same offense.

          a. Why is there not such a provision?

          b. If a person is [sic] sought for extradition by the United 
        Kingdom has been acquitted, and such a person is being sought 
        for retrial pursuant to Part 10 of the Criminal Justice Act 
        2003, would the United States be justified in denying 
        extradition? What treaty or other basis would there be to do 
        so?

    Answer. a. All of our modern extradition treaties contain 
provisions comparable to Article 5(1) of the proposed U.S.-U.K. 
extradition treaty, which bars extradition if the person has been 
convicted or acquitted in the requested state. The issue of whether a 
person sought for extradition has a valid defense to criminal 
prosecution based on a prior conviction or acquittal in the requesting 
state is appropriately adjudicated in the courts of that state.
    Generally, U.S. extradition courts do not inquire into questions of 
application and propriety of foreign procedural laws and rights or 
require that they comport with our own. This is true even with respect 
to procedural guarantees, such as our double jeopardy rules. See Neely 
v. Henkel, 180 U.S. 109 (1901). Moreover, it would be both difficult 
and inappropriate to strictly apply U.S. law regarding double jeopardy 
in the extradition context because there is considerable variation 
among nations in how and when double jeopardy concepts may apply. For 
example, while U.S. double jeopardy concepts bar the government from 
appealing a judgment of acquittal, such appeals by the prosecution are 
in fact quite common abroad, particularly among countries with a civil 
law tradition. See, e.g., Sidali v. Immigration & Naturalization 
Service, 107 F.3d 191 (3d Cir. 1997). Thus, U.S. courts have held that 
even where foreign procedures would have violated our double jeopardy 
bar had they occurred in the context of a U.S. criminal prosecution, 
this was not a basis for denying extradition. U.S. ex rel. Bloomfield 
v. Gengler, 507 F.2d 925, 927-28 (2d Cir. 1974) (affirming extradition 
to Canada where Canadian trial court had dismissed charges against 
defendants after presentation of all evidence, but prosecution appealed 
and appellate court entered judgment of conviction).
    Thus, neither the terms of the proposed treaty or any other U.S. 
extradition treaty, nor U.S. caselaw, would per se bar extradition 
because procedures in the U.K. (or other foreign state) would not 
comport with U.S. double jeopardy requirements. On the other hand, a 
fugitive may always raise for consideration by the Secretary of State a 
significant concern about improper motivation for the extradition 
request or fundamental unfairness in the criminal procedures he may 
face.
    The treaty, of course, in no way eliminates or alters in any way a 
defendant's ability to raise the defense of a prior prosecution or 
acquittal in the courts of the requesting state after he or she has 
been extradited.

    b. The United States has not received an extradition request from 
the United Kingdom for a person who has been acquitted but is being 
sought for retrial pursuant to Part 10 of the Criminal Justice Act 
2003. We understand that the provision has been invoked by the U.K. 
only one time, in a case still pending in U.K. courts. It is difficult 
to speculate on how the United States would handle such a request. In 
all cases, the executive branch retains the authority, as reflected in 
Title 18 of the U.S. Code and relevant federal case law, to determine 
whether a fugitive who has been found extraditable by a U.S. court 
should or should not be surrendered to the requesting state. The 
Department of State considers the entire record of the judicial 
proceedings, the documentation submitted by the requesting state, and 
any arguments made by the defendant, his counsel, and other interested 
parties in determining what recommendation to make to the Secretary of 
State with respect to a possible extradition. As part of this 
determination, the Secretary of State would also consider any claim of 
fundamental unfairness regarding the criminal procedures in the state 
seeking extradition.

    Question. In the prior response to question # 13 (posed after the 
November 2005 hearing), the executive branch discussed Article VIII(1) 
and Article VII(3) of the current treaty.
    In pertinent part, Article VIII(1) of the current treaty provides 
that an application for provisional arrest--

          shall contain a description of the person sought, an 
        indication of intention to request the extradition of the 
        person sought and a statement of the existence of a warrant of 
        arrest or a judgment of conviction against that person and such 
        further information, if any, as would be necessary to justify 
        the issue of a warrant of arrest had the offense been 
        committed, or the person sought been convicted, in the 
        territory of the requested party.

    Article VII(3) provides that extradition shall be granted ``only if 
the evidence be found sufficient according to the law of the requested 
Party either to justify the committal for trial of the person sought if 
the offense of which he is accused had been committed in the territory 
of the requested Party . . .''
    The prior response states that from the ``perspective of U.S. 
practitioners, the antiquated language of these provisions is not 
particularly helpful and would therefore not typically be included in a 
modern extradition treaty.'' You elaborate by stating that the language 
in the current treaty is confusing because the intended distinction 
between the ``abbreviated'' provisional arrest request made under 
urgent circumstances and the documentation normally accompanying the 
formal extradition request is ``muddied by referencing standards of 
proof at two stages in a domestic criminal case--arrest and committal 
for trail [sic]--which are not in fact different under much of modern 
U.S. criminal practice.''

          a. In the view of the Department of Justice, does the Fourth 
        Amendment to the U.S. Constitution apply to provisional arrest 
        under Article VIII of the current treaty with the United 
        Kingdom?

          b. In the view of the Department of Justice, does the Fourth 
        Amendment to the U.S. Constitution apply to provisional arrest 
        under Article 12 of the proposed treaty?

    2. Do you expect that the change in the language on provisional 
arrest will result in a substantive change in the practice of the 
Department of Justice with regard to the type and quantum evidence it 
presents to request provisional arrest warrants under the Convention?

    Answer. The Department of Justice has taken the position that the 
Fourth Amendment does apply in the context of the issuance of a warrant 
for provisional arrest pending extradition. That principle, applicable 
to requests under the current treaty with the United Kingdom, would 
continue to apply under the language of the new treaty.
    The Department of Justice does not anticipate any substantive 
change in the type or quantum of evidence that we submit to our courts 
in support of a request for issuance of a provisional arrest warrant.

                               __________

 Questions for the Record Submitted to Deputy Attorney General Paul J. 
     McNulty and Deputy Legal Advisor Samuel Witten by Senator Dodd

Article 2(4)--How is it Consistent with Dual Criminality?
    Question. Article 2(4) grants discretion to the United States and 
the U.K. to approve extraditions for offenses committed outside the 
territory of the requesting state in third countries under certain 
circumstances, even if the laws of the requested state do not provide 
for the punishment of such conduct committed outside of its territory 
in similar circumstances.
    How does this provision comply with the dual criminality 
requirement in paragraph 1 of Article 2?

    Answer. The principle of dual criminality requires that both States 
would view the conduct at issue as a criminal offense; it does not 
require that both States would exercise jurisdiction over that offense 
in exactly the same circumstances. For the United States and most other 
countries, there is no requirement in the extradition context of a 
finding, in addition to a finding of dual criminality, of equivalence 
of extraterritorial jurisdiction. Thus, provisions such as Article 2(4) 
do not appear at all in many extradition treaties. However, the United 
Kingdom and some other countries do condition extradition not only on a 
finding of dual criminality but also, with respect to extraterritorial 
offenses, on a finding that the United Kingdom could also have 
exercised jurisdiction in similar circumstances.
    To accommodate this difference, Article 2(4) gives the Requested 
State the discretion to deny a request for extradition where it would 
not have had similar authority to exercise extraterritorial 
jurisdiction. (Israel's extradition law is similar to the United 
Kingdom's in this respect, and a similar provision can be found in 
Article III of the 1962 U.S.-Israel extradition treaty, which is 
unchanged by the Protocol recently approved by the Foreign Relations 
Committee.)
    Thus, Article 2(4) addresses a jurisdictional issue that may be 
considered pursuant to the extradition law of the United Kingdom, 
whereas Article 2(1) addresses dual criminality, i.e., the criminal 
nature of the conduct itself.

Article 3 of the Supplementary Treaty
    Question. Article 3 of the 1985 Supplementary Treaty provided for 
judicial review of the political motivation question. Many senators on 
this committee worked together--at that time, also under the 
Chairmanship of Senator Lugar--to draft this provision.
    I understand it has been used in only three cases involving five 
fugitives.
    I realize it was an unusual provision, but the supplementary treaty 
was itself unusual. And I am just a little bit surprised that you chose 
to dispense with this provision in the new treaty without having 
bothered to consult closely with this committee before you did so.

          a. When was the last time that the provision was invoked?

          b. In the last five years, you have indicated to us that 
        there were 33 requests from the U.K. to the United States. Was 
        the Article 3 claim made in any of these cases?

          c. So what is the problem that you were trying to solve?

    Answer. a. The provision was last invoked by Terence Damien Kirby, 
who was arrested in the United States in 1994. His case was 
consolidated with two previously arrested defendants who also invoked 
this provision, Kevin John Artt and Pol Brennan.
    b. The Article 3 claim was not raised in any cases where a 
fugitive's extradition was sought by the United Kingdom from the United 
States in the last five years.
    c. In U.S. practice, questions of ``political motivation'' and 
questions regarding motivation based on similarly improper bases such 
as race or religion are determined by the Secretary of State. This 
responsibility of the Secretary of State has been recognized by U.S. 
courts in the longstanding ``Rule of Non-Inquiry,'' whereby courts 
defer to the Secretary in evaluating the motivation of the foreign 
government. This principle recognizes that among the three branches of 
the U.S. Government, the Executive branch is best equipped to evaluate 
the motivation of a foreign government in seeking the extradition of an 
individual. The U.S. Government's extradition treaties reflect the fact 
that the U.S. Secretary of State appropriately makes this judgment, and 
not the U.S. courts.
    Indeed, until 1985, the issue of motivation of the Government of 
the United Kingdom in making an extradition request of the United 
States was treated the same as in all of our other extradition 
relationships--the courts played no role in reviewing this issue. In 
1985, however, as part of an amendment of other aspects of the U.K. 
extradition relationship, the U.S. Senate developed what became Article 
3(a) of the 1972 U.S.-U.K. Extradition Treaty, as amended by the 1985 
Supplementary Treaty, which states that extradition ``shall not occur 
if the person sought establishes to the satisfaction of the competent 
judicial authority by a preponderance of the evidence that the request 
for extradition has in fact been made with a view to try or punish him 
on account of his race, religion, nationality, or political opinions, 
or that he would, if surrendered, be prejudiced at his trial or 
punished, detained or restricted in his personal liberty by reason of 
his race, religion, nationality or political opinions.'' This text was 
added pursuant to the Senate's Resolution regarding advice and consent 
to the 1985 Supplementary Treaty. Since that time, the Senate has 
approved thirty new extradition treaties or protocols to existing 
extradition treaties, but none has included a provision similar to 
Article 3 of the 1985 Supplementary Treaty with the United Kingdom.
    This anomalous treaty provision has led to long, difficult, and 
inconclusive litigation, where U.S. courts were thrust into the 
unfamiliar and inappropriate position of addressing the motivation of a 
foreign government. The provision for judicial review of political 
motivation claims has been invoked in five cases, all dating from the 
early 1990s. The first involved Curtis Andrew Howard, who claimed he 
would be prejudiced in legal proceedings in the United Kingdom because 
of his race. He was extradited in 1993. The other four cases involved 
persons of Irish Catholic background who were convicted of crimes of 
violence in Northern Ireland, and who escaped from prison in Northern 
Ireland in 1983 and fled to the United States.
    The first of these cases involved James Joseph Smyth, who had been 
convicted of the attempted murder of a prison guard. More than 40 
witnesses were heard at his extradition hearing, and a 5-week 
evidentiary hearing was held. (Ultimately, the record in the case 
exceeded 3,000 pages.) In 1996, Smyth was finally extradited from the 
United States to the United Kingdom. He was subsequently released from 
prison in 1998 pursuant to an accelerated release law, the Northern 
Ireland (Sentences) Act 1998, that grew out of the Belfast Agreement. 
The next three cases involved defendants Kevin John Artt, Terence 
Damien Kirby, and Pol Brennan, who were arrested separately in the 
United States between 1992 and 1994. Their extradition cases were 
consolidated for consideration by U.S. courts. All had been convicted 
in the U.K. judicial system and sentenced to terms of imprisonment. 
Artt was convicted of murdering a prison official; Kirby was convicted 
of offenses of possession of explosives and a submachine gun, false 
imprisonment, assault, and felony murder arising out of two separate 
incidents; Brennan was convicted of possession of explosives. There was 
extensive litigation and testimony in U.S. District Court regarding 
their claims of prejudice under Article 3 of the 1985 Supplementary 
Treaty and numerous appeals.
    This litigation was and is unprecedented, as U.S. courts were put 
in the difficult position of evaluating defendants' claims of 
generalized, systemic bias within a foreign system of justice. In 2000, 
the United Kingdom withdrew its request for extradition, consistent 
with its announcement that it would not be seeking the extradition of 
persons convicted of offenses committed before 1998 who, if they 
returned to Northern Ireland and made a successful application under 
the 1998 early release law, would have little if any of their time left 
to serve.
    The extraordinary litigation generated by Article 3 demonstrated 
the difficulty presented to our courts in adjudicating allegations of 
improper motivation or prejudice by the government requesting 
extradition. Moreover, the other key aspect of the 1985 Supplementary 
Treaty, excluding serious crimes of violence from being considered 
protected ``political offenses,'' was at that time a novel provision 
for a U.S. extradition treaty. It was in that setting, combined with 
other circumstances of the era, that the committee considered that it 
might be appropriate to shift to the judiciary review of questions of 
political motivation or prejudice that had traditionally been reserved 
to the Secretary of State. However, in the ensuing twenty years, years 
in which international terrorism has unfortunately burgeoned as a 
threat to the United States and its allies, excluding violent crimes 
from consideration as protected ``political offenses'' has become 
increasingly common in our bilateral extradition treaties and in 
multilateral counterterrorism treaties. During the same period, the 
longstanding division of responsibility between the judiciary and the 
Secretary of State that applies in all our other extradition 
relationships has operated well. Thus, the experience of more than two 
decades demonstrates that the approach of Article 3 is neither helpful 
nor necessary, and that this anomaly, unique to our extradition 
relationship with the United Kingdom, one of our most important and 
reliable allies and law enforcement partners, should end.

Article 4--Exceptions to the Political Offense Exception
    Question. Article 4(2)(f) of the proposed treaty indicates that 
possession of certain explosive devices would not be considered a 
political offense. In response to an earlier question for the record to 
Senator Biden, you indicated that there is no such provision in any 
other extradition treaty of the United States. You further indicated 
that it was designed to address the problem of an extremely narrow U.S. 
judicial interpretation of the more general language of the current 
U.S. treaty. But the opinion you cited in the case--the Artt case in 
the 9th Circuit--was withdrawn, and the entire case was later dismissed 
as moot. So the opinion that supposedly led to this provision has no 
precedential effect. Why then, is this provision necessary?

    Answer. In the extradition case involving Pol Brennan, the United 
Kingdom sought the extradition of Brennan, who was arrested with a 
companion in downtown Belfast on the early afternoon of a business day 
in possession of an armed 23 pound bomb, which they intended to plant 
in a shop. Brennan was subsequently convicted in the United Kingdom of 
the offense of possession of explosives with intent to endanger life or 
injure property, escaped from prison and was subsequently arrested in 
the United States. Matter of Artt, 972 F. Supp. 1253, 1260-62 (N.D. 
Cal. 1997). In the course of the U.S. extradition case against Brennan, 
the Court of Appeals fro the Ninth Circuit reversed the decision of the 
District Court and held that this offense did not constitute an 
``offense involving the use of a bomb'' excluded from consideration as 
a protected political offense under Article 1(d) of the Supplementary 
Treaty. Matter of Artt, 158 F.3d 462, 471-73 (9th Cir. 1998). Although 
the decision was dismissed when the U.K. withdrew its extradition 
requests and it therefore cannot be cited as controlling precedent in 
future cases, this result only emphasizes the fact that the argument 
can be raised again in other extradition cases. The language of the new 
treaty is necessary because it makes clear that such an explosive 
offense is not to be considered a ``political'' offense for which 
extradition is barred.

    Question. To be specific, among the offenses excluded from the 
political offense exception in Article 4(2)(f) ``possession of an 
explosive, incendiary, or destructive device capable of endangering 
life, of causing grievous bodily harm, or of causing substantial 
property damage.''

          i. Is simple possession of such devices a felony offense 
        under U.S. law? If not, why would it be an extraditable 
        offense?

          ii. Is it your position that if the offense is a crime in any 
        one state of the United States, that suffices for dual 
        criminality?

          iii. Does the individual who is being sought for extradition 
        have to reside in the State where the felony exists for this to 
        meet test?

          iv. Under British law, is simple possession of a firearm the 
        equivalent of a felony offense?

          v. Based upon Ms. Warlow's testimony, wouldn't that make 
        simple possession of a firearm an extraditable offense in the 
        United States in the case of the proposed treaty because the 
        dual criminality test could be met by reference to District of 
        Columbia law which makes possession of a firearm within the 
        city limits punishable by up to a year in jail?

    Answer. i. There are certain offenses under U.S. law that 
criminalize possession of explosives and other dangerous items, 
particularly in settings where danger to public safety is heightened. 
For example, it is a felony to possess an explosive in an airport (18 
U.S.C. Sec. 844(g)), or to transport a hazardous material aboard a 
civil aircraft (49 U.S.C. Sec. 46312). It is also a felony to possess 
stolen explosives (18 U.S.C. Sec. 842(h)); to possess explosives during 
the commission of another federal felony (18 U.S.C. Sec. 844(h); to 
possess explosive or incendiary missiles designed to attack aircraft 
(18 U.S.C. Sec. 2332(g); to possess radiological dispersal devises (18 
U.S.C. Sec. 2332h); or to possess nuclear materials (18 U.S.C. 
Sec. 831). Possession of explosives or similar materials may also be an 
offense under the laws of individual U.S. states. See, for example, 
Chapter 21, Article 37, Section 3731(a) of the Kansas criminal code, 
which states that ``[c]riminal use of explosives is the possession, 
manufacture or transportation of commercial explosives; chemical 
compounds that form explosives; incendiary or explosive material, 
liquid or solid; detonators; blasting caps; military explosive fuse 
assemblies; squibs; electric match or functional improvised fuse 
assemblies; or any completed explosive devices commonly known as pipe 
bombs or Molotov cocktails.''

    ii. Under U.S. law, courts, in assessing dual criminality, consider 
whether acts are ``unlawful under federal statutes, the law of the 
state where the accused is found, or the law of the preponderance of 
the states.'' DeSilva v. DiLeonardi, 125 F.3d 1110, 1114 (7th Cir. 
1997); see also Brauch v. Raiche, 618 F.2d 843 (1st Cir. 1980). Thus, 
if the offense is not a federal offense and is a crime in only one 
state, the dual criminality test can be satisfied if the fugitive is 
located in that one state.

    iii. The dual criminality test will be satisfied if the conduct for 
which extradition is sought is a felony in the state where the fugitive 
is located. Even if the conduct is not a crime in that state, the test 
will also be satisfied if the conduct is a felony under either (1) 
federal law or (2) the law of a preponderance of states. (See answer to 
ii above.)

    iv. We have been advised by the U.K. that, under Article 3(1)(a) of 
the Firearms Northern Ireland Order 2004, it is an offense to possess a 
firearm without a Firearms Certificate. Pursuant to Article 70 of the 
2004 Order, the penalty is as follows: for someone over the age of 
twenty-one, there is a minimum sentence of 5 years and an unlimited 
fine, and in the case of someone under twenty-one but over sixteen, 
there is a minimum sentence of 3 years and an unlimited fine.

    v. As noted above, under U.S. law, there are three situations in 
which the dual criminality test can be satisfied: if there is an 
analogous crime under federal law, if the majority of states 
criminalize the conduct, or if the conduct is criminalized in the State 
where the fugitive is found. Thus, in the example given, if a fugitive 
charged with simple possession of a firearm is located in the District 
of Columbia, where such conduct is an offense punishable as a felony, 
dual criminality can be satisfied, even if the same conduct would not 
be similarly punishable under the law of a preponderance of the states. 
(We note this would be the same result under all of our extradition 
treaties where dual criminality is the test for whether conduct 
constitutes an extraditable offense, and thus would be the result for 
all of the dozens of extradition treaties approved by the U.S. Senate 
in recent years.) However, if the fugitive is located in another state 
that does not so criminalize simple possession of a firearm, then dual 
criminality cannot be satisfied by recourse to the law of the District 
of Columbia.
    If the majority of states were to punish simple possession of a 
firearm by imprisonment of a year or more, dual criminality would be 
met even if the state where the fugitive was found did not so 
criminalize firearm possession. In this regard, we understand from 
information provided by the Bureau of Alcohol, Tobacco, Firearms and 
Explosives, that only the District of Columbia bans simple possession 
as a felony. Several other jurisdictions punish carrying a concealed 
firearm without a permit or license by a maximum punishment of a year 
or more of imprisonment (e.g., Delaware, Maryland, Massachusetts, New 
Jersey, New York, Pennsylvania, Rhode Island, Connecticut, Nebraska, 
Kansas and Iowa), but as of now they do not constitute a majority of 
the states.
    Thus, the law of the District of Columbia penalizing simple 
possession of a firearm as a felony, which does not reflect the law in 
the majority of states, can be relied on to satisfy a dual criminality 
requirement only as to fugitives who are found in the District of 
Columbia; it may not be imported to satisfy the dual criminality 
requirement as to fugitives found in other jurisdictions.

State of Justice System in Northern Ireland
    Question. The Northern Ireland Justice system is very similar to 
that of England and Wales. Most lesser offenses are prosecuted by the 
police. Serious crimes are prosecuted by the Director of Public 
Prosecution. Jury trials are normal practice except for offences 
involving terrorism. Under the Northern Ireland (Emergency Provisions) 
Act of 1996, in deliberating offenses covered by Schedule One of that 
Act (terrorism related offenses) judges sit alone, without juries, in 
so called diplock courts.
    Do provisions of the Northern Ireland (Emergency Provisions) Act of 
1996 still apply with respect to individuals charged with offenses 
under Schedule One of that act being denied jury trials?
    Have human rights organizations criticized this practice?
    Was the issue of the diplock courts a subject of U.S. court 
deliberations in considering the U.K. extradition requests for Kevin 
Artt, Paul Brennan and Terence Kirby which dragged on for years until 
the U.K. withdrew its extradition requests in 2000?
    Under the proposed treaty would it be appropriate for the U.S. 
courts to look at the issue of the diplock courts in determining 
whether to approve extradition or would that be the role of the 
Secretary of State to make a judgment on?

    Answer. We note for clarification that we have been informed by the 
Government of the United Kingdom that the police do not prosecute 
lesser offenses in the U.K.; all prosecutions are now conducted by the 
Public Prosecution Service.
    We have been advised by the Government of the United Kingdom that 
the current statutory provisions underlying the ``Diplock Court'' 
system--the system of non jury trials for certain specified offenses--
are set out in sections 65 to 80 of the Terrorism Act of 2000 (and its 
Schedule 9), which repealed the Northern Ireland (Emergency Provisions) 
Act of 1996. The legislation establishes a system of non-jury trials 
for a specified list of offenses, unless the Attorney General directs 
that the case be tried by a jury. The system of non-jury trials arose 
from concern that, with respect to certain offenses committed in 
Northern Ireland, the integrity of the jury process could be seriously 
undermined by risk of juror intimidation or partisanship. Although the 
procedures for Diplock Courts have been modified over the years, the 
courts continue to sit, now hearing around 60 cases a year. This 
reflects a continuing trend away from use of the Diplock Court system: 
more than 300 cases a year were heard in Diplock Courts in the mid 
1980s; today, the Attorney General ``deschedules'' 85-90% of eligible 
cases so that they are removed from the Diplock system. In addition, 
each year, there is a review of whether there continues to be a need 
for the Diplock system by both the Government and an Independent 
Reviewer.
    The Government of the United Kingdom has further advised us that on 
August 1, 2005, the Secretary of State for Northern Ireland announced a 
program of security normalization that includes a commitment to repeal 
all counterterrorism legislation particular to Northern Ireland, 
including the Diplock Court system, by July 31, 2007. As part of this 
process and the ongoing review of the potential for juror intimidation, 
the Secretary of State for Northern Ireland, on August 10th of this 
year, published for ``consultation'' (what we would call public 
comment) proposals for a program that would presumptively favor jury 
trials, although permit a non-jury trial in specific circumstances and 
pursuant to a procedure subject to judicial review, coupled with 
measures to reduce the potential for juror intimidation. The 
``Consultation Paper,'' which describes these proposals and solicits 
comment, and provides background on the Diplock Court system over the 
years, as well as the most recent report of the Independent Reviewer, 
is attached for the committee's reference. We understand it is also 
available on the Northern Ireland Office website (www.nio.gov.UK). \1\
---------------------------------------------------------------------------
    \1\ A copy of the report has been maintained in the committee's 
permanent files.
---------------------------------------------------------------------------
    As to the second part of the question, we understand that the 
Diplock Courts have been the subject of criticism by some human rights 
organizations in the past, particularly by organizations that object to 
the lack of a trial by jury.
    We note that the fact that a foreign jurisdiction does not provide 
for trial by jury is not a bar to extradition from the United States. 
See Neely v. Henkel, 180 U.S.C. 109, 122-23 (1901). Indeed, many 
foreign countries with which the United States has extradition treaties 
do not have trial by jury at all, or include a limited number of ``lay 
judges'' to serve with professional judges as triers of fact only with 
respect to the most serious offenses.
    Artt, Brennan, and Kirby were all convicted in Diplock Courts, and 
we understand that Artt and Kirby, and to a lesser extent Brennan, 
raised the procedures of the Diplock Court system, as well as claims 
that they would suffer abuse or other forms of persecution by the 
government on account of religious or political factors. A discussion 
of the issues raised is set out in Matter of Artt, 158 F.3d 462 (9th 
Cir. 1998).
    Under the new treaty, the Secretary of State, and not U.S. courts, 
would review issues about the particular court systems where a fugitive 
might be tried after extradition. This would be consistent with the 
current allocation of responsibility among the branches of the federal 
government under longstanding U.S. law and other extradition treaties. 
Thus, if, for example, a fugitive sought by the United Kingdom for 
extradition were to raise concerns or questions about Diplock Courts, 
these matters would be considered by the Secretary of State.

Removal of the Statute of Limitations as a Bar to Extradition
    Question. The current U.S.-U.K. treaty provides, in Article 
5(l)(b), that extradition shall not be granted if barred by the statute 
of limitations according to the law of the ``requesting or requested 
party.'' In other words, the statute of limitations of either country 
would apply. The proposed treaty, in Article 6, provides that the 
decision to grant extradition shall be made without regard to any 
statute of limitations in either State.
    I recognize that a lot of recent treaties have included this 
provision, and that the statute still applies in the country where the 
person will be tried. But numerous treaties approved by the Senate in 
the last decade--including with such countries as France, Hungary, 
Poland, and South Africa--have included some kind of provision on 
statutes of limitation.
    The absence of the requirement that an offense must be within the 
statute of limitations of both states makes it more difficult for those 
with concerns about the proposed treaty to accept the removal of a role 
for the U.S. judiciary in making a determination about the political 
motivations of the requesting state.
    Irish Americans have expressed concerns that the removal of the 
statute of limitations provision puts them in jeopardy to be prosecuted 
for political acts dating back to the 1970s and 1980s when the criminal 
justice system in Northern Ireland was terribly flawed and biased 
against Catholics.

          a. Why was the statute of limitations provision excluded 
        altogether? Which country sought it?

          b. Tell me about the statute of limitations in the United 
        Kingdom, particularly under Northern Ireland law.

          c. What protection exists against politically motivated 
        extradition requests under the proposed treaty?

          d. How often does the Secretary deny a request based on 
        political motivation?

    Answer. a. The United States sought the deletion of the provision 
on statute of limitations, as we do in all of our modern extradition 
treaties. We believe that the issue of whether a person sought for 
extradition has a valid defense to criminal prosecution based on the 
passage of time is appropriately adjudicated only in the courts of the 
country seeking extradition. It is inherently difficult for the courts 
of one nation to adjudicate the technical foreign law and factual 
issues of when the statute of limitations in another country has been 
tolled, or when relevant time frames begin and end in a foreign 
jurisdiction. While not every country agrees to the preferred 
formulation on this issue that is found in Article 6 of the new U.S.-
U.K. extradition treaty, obtaining this provision is a negotiating 
objective for the United States and we seek it in every bilateral 
negotiation. Several other treaties recently approved by the Senate and 
now in force for the United States, including our extradition treaties 
with Sri Lanka, Belize, and Lithuania, have a provision analogous to 
the provision in Article 6 of the new U.S.-U.K. treaty.

    b. We are advised that statutory limitations exist under U.K. law 
and are applicable to Northern Ireland, but apply only to less serious 
offenses, where complaints must be made within 6 months of when the 
offense was committed. In the case of more serious offenses (such as 
rape, murder, and grievous bodily harm) there is no statute of 
limitations.
    Notwithstanding the lack of a statute of limitations for these 
serious criminal offenses, we understand there are protections under 
U.K. law that could apply in a case where there was an unjustifiable 
delay in prosecuting an individual. First, the U.K. Government has 
advised us that the right to a fair trial under Article 6 of the 
European Convention on Human Rights (to which the U.K. is a party and 
the provisions of which are legally binding on the U.K.) entitles a 
person charged to a fair and public trial within a reasonable time, and 
that the right to a trial within a reasonable time would be implicated 
where the delay was of such an order as to make it unfair that the 
proceedings should continue. Second, the U.K. Government has indicated 
that the more general protection against ``abuse of process'' could 
apply. It is our understanding that the ``abuse of process'' protection 
prevents a person from being prosecuted in circumstances where it would 
be seriously unjust to do so, and that it applies both where the 
defendant did not receive a fair trial and where it would be unfair for 
the defendant to be tried. The latter application would include cases 
where the prosecution may have manipulated or misused the process of 
the court in such a way that it would be contrary to the public 
interest and the integrity of the criminal justice system that a trial 
should take place. Our colleagues in the United Kingdom were not aware 
of any case in which there had been a delay of prosecution to which the 
abuse of process principle had been applied, but indicated that this 
principle could also offer a remedy were there a claim of unfairness by 
the defendant of serious, unjustifiable delay by the prosecution in 
bringing a case.

    c. Consideration of whether a request for extradition is 
politically motivated begins when it is first received by the 
Department of State from the foreign government. We have found that 
requests that the Department of State believes my be politically 
motivated are generally also insufficient as a technical matter, for 
example, the facts and evidence provided by the Requesting State do not 
meet the probable cause standard, the proper documentation has not been 
provided, the papers have not been appropriately certified, or the dual 
criminality requirement is not met. This circumstance is not surprising 
given that these types of requirements in extradition treaties are 
designed, in part, to ensure a robust level of integrity in the 
extradition process.
    If, at any time in the extradition process prior to the signing of 
the surrender warrant by the Secretary of State (or other appropriate 
principal of the Department of State), the U.S. executive branch became 
aware of facts or circumstances that suggested a request might be 
politically motivated, the Department of State would explore that 
possibility through the diplomatic channel and otherwise until fully 
satisfied that the request is not politically motivated.
    After a fugitive has been found extraditable and committed to the 
custody of the U.S. Marshal, and all appeals in U.S. courts have been 
exhausted, the Department of State reviews the record of the case as 
certified by the District Court to the Secretary of State. This record 
normally consists of the Magistrate's Certification of Extraditability 
and Order of Commitment, any related orders or memoranda issued by the 
Magistrate, all court orders issued in the course of any appellate 
proceedings, the transcript of the extradition proceedings before the 
Magistrate, and the documents submitted by the requesting State. In 
addition, it is the Department of State's policy to accept and review 
written argumentation against extradition submitted by the fugitive or 
his counsel if received in time to be included with the Department's 
final review of the case. Also, members of the fugitive's family or 
other interested parties may make written representations, which are 
usually of a humanitarian nature, on behalf of the fugitive. All are 
taken into consideration by the Department of State with a view to 
determining what recommendation to make to the Secretary of State with 
respect to a possible extradition.

    d. In recent years, the Secretary of State has not denied 
extradition on the basis that the request was politically motivated. As 
noted above, some requests are not processed through the U.S. court 
system because they are based on summary assertions of culpability with 
inadequate evidence, or for other reasons that could be indicative of 
political motivation.

Double Jeopardy
    Question. A recently-enacted law in the United Kingdom, the 
Criminal Justice Act 2003, provides in Part 10 for retrial in certain 
cases, even though there has been an acquittal. How does this comport 
with U.S. standards of due process, including the double jeopardy 
clause of the Fifth Amendment to the Constitution? What is your 
understanding of the degree to which this provision for retrial has 
been used in the United Kingdom?

    Answer. In the United States, the re-prosecution of an individual 
after he or she had been acquitted would be barred by the double 
jeopardy clause of the Fifth Amendment. The Government of the United 
Kingdom has advised us that the cited provision of the 2003 Criminal 
Justice Act permitting retrial has been invoked only once. However, we 
understand that that case is still pending, so there has been no 
judicial decision on the use of that provision.
    Generally, U.S. extradition courts do not inquire into questions of 
application and propriety of foreign procedural laws and rights or 
require that they comport with our own. This is true even with respect 
to procedural guarantees, such as our double jeopardy rules. See Neely 
v. Henkel, 180 U.S. 109 (1901). Moreover, it would be both difficult 
and inappropriate to strictly apply U.S. law regarding double jeopardy 
in the extradition context because there is considerable variation 
among nations in how and when double jeopardy concepts may apply. For 
example, while U.S. double jeopardy concepts bar the government from 
appealing a judgment of acquittal, such appeals by the prosecution are 
in fact quite common abroad, particularly among countries with a civil 
law tradition. See, e.g., Sidali v. Immigration & Naturalization 
Service, 107 F.3d 191 (3d Cir. 1997). Thus, U.S. courts have held that 
even where foreign procedures would have violated our double jeopardy 
bar had they occurred in the context of a U.S. criminal prosecution, 
this was not a basis for denying extradition. U.S. ex rel. Bloomfield 
v. Gengler, 507 F.2d 925, 927-28 (2d Cir. 1974) (affirming extradition 
to Canada where Canadian trial court had dismissed charges against 
defendants after presentation of all evidence, but prosecution appealed 
and appellate court entered judgment of conviction).
    Thus, neither the terms of the proposed treaty or any other U.S. 
extradition treaty, nor U.S. caselaw, would per se bar extradition 
because procedures in the U.K. (or other foreign state) would not 
comport with U.S. double jeopardy requirements. On the other hand, a 
fugitive may always raise for consideration by the Secretary of State a 
significant concern about improper motivation for the extradition 
request or fundamental unfairness in the criminal procedures he may 
face.
    The treaty, of course, in no way eliminates or alters in any way a 
defendant's ability to raise the defense of a prior prosecution or 
acquittal in the courts of the requesting state after he or she has 
been extradited.

Waiver of Rule of Specialty
    Question. The ``Rule of Specialty'' is time-honored provision in 
extradition practice, designed to ensure that a fugitive surrendered 
for one offense is not tried for other crimes, and to ensure that the 
request is not used as a subterfuge.
    Many recent treaties, including this one, however, allows for the 
waiver of the rule if the executive of the requested state consents. I 
understand from a prior answer that this is rarely done. Since 1991, 
the Department of State has received 30 requests for waiver, and of 
these, 17 requests were granted, 5 were denied, and 8 are still 
pending.
    What kinds of cases are these where the rule is waived? Do the 
requests for waiver always relate to the same offense or act, or do 
they sometimes involve a new offense or act?

    Answer. Since our responses to the committee's questions for the 
record after the November 2005 hearing, the United States has received 
5 requests for waiver of the rule of specialty. Thus, from 1991 to the 
present, the Department of State has received 35 requests for waiver, 
and, of these, 17 were granted, 5 were denied, and 13 are pending.
    When the State Department receives a request for a waiver of the 
rule of specialty, it will take into consideration the following 
factors in determining whether to grant the waiver: whether the failure 
to include an offense in the original extradition request is justified 
because it was not previously possible to do so for legal or practical 
reasons, and whether there is sufficient evidence to meet the probable 
cause standard regarding the offense for which the request is made. Our 
experience is that in some cases the request for waiver relates to the 
same offense or act, and in other cases the request may apply to a new 
offense or act. In either event, the factors identified above would be 
taken into account.
    As an example of the kinds of cases in which waivers are sought, we 
have granted a request from Germany for waiver of the rule of specialty 
in a case where an individual was extradited for robbery. Based on 
testimony provided in the subsequent trial, which revealed that the 
defendant may have been involved in two additional, separate robberies, 
Germany requested that the United States waive the rule of specialty so 
that the defendant could be prosecuted for those additional crimes. 
Because the German authorities did not know of the two additional 
robberies until after the defendant was extradited, and because we were 
satisfied that probable cause existed, we consented to waiver of the 
rule of specialty.

Extradition Treaty with the European Union
    Question. In a response to a prior written question, you stated 
that the 2003 Extradition Treaty will be supplemented, pursuant to the 
new treaty on extradition between the United States and the European 
Union. One addition will involve the addition of a provision 
establishing parity between a U.S. extradition request to the United 
Kingdom, and a request United Kingdom [sic] for the same person made by 
another EU member state pursuant to the European Arrest Warrant 
mechanism.

          a. Please elaborate on what this means. Does it alter the 
        standard for the amount of evidence the United States must 
        present in an extradition request to the United Kingdom?

          b. Can you provide the bilateral instrument on this issue 
        that the United State and the United Kingdom signed on December 
        16, 2004? Does that treaty involve an amendment to this treaty 
        now before the Senate?

          c. When do you expect to submit the U.S.-EU treaty to the 
        Senate?

    Answer. a. On December 16, 2004, the United States and the United 
Kingdom signed a bilateral extradition instrument that would implement 
the provisions of the 2003 United States-European Union Extradition 
Agreement. Article 10(2) and (3) of the U.S.-EU Agreement specifies a 
procedure for an EU member state to follow if it receives competing 
requests from the United States pursuant to the bilateral extradition 
treaty and from an EU member state pursuant to the European Arrest 
Warrant (EAW). The effect of this provision is to create parity, as a 
matter of international law, between a U.S. extradition request to an 
EU member state and an EAW request. Neither Article 10 nor any other 
provision of the U.S.-EU Agreement would have an effect on the quantum 
of evidence required to support an extradition request made under the 
2003 U.S.-U.K. bilateral extradition treaty currently under 
consideration by the Senate.

    b. A copy of the 2004 U.S.-U.K. bilateral extradition instrument is 
attached for the committee's information. The effect of the bilateral 
extradition instrument would be to supplement and, in certain 
instances, to amend the 2003 U.S.-U.K. bilateral extradition treaty 
currently under consideration by the Senate. In addition to the 
provision on competing requests described above, there would be new 
provisions relating to: mode of transmission of requests for 
extradition and provisional arrest; certification, authentication or 
legalization requirements; channel for submission of supplementary 
information; and submission of sensitive information in a request.

    c. The U.S.-EU Extradition Agreement, together with bilateral 
instruments with all 25 member states, is expected to be submitted to 
the Senate in the near future. (The submittal of the related U.S.-EU 
Mutual Legal Assistance Agreement and its implementing bilateral 
instruments will occur at the same time.)

                               __________

    Instrument as contemplated by Article 3(2) of the Agreement on 
Extradition between the United States of America and the European Union 
 signed 25 June 2003, as to the application of the Extradition Treaty 
    between the Government of the United States of America and the 
Government of the United Kingdom of Great Britain and Northern Ireland 
                          signed 31 March 2003

    1. As contemplated by Article 3(2) of the Agreement on Extradition 
between the United States of America and the European Union signed 25 
June 2003 (hereafter ``the Extradition Agreement''), the Governments of 
the United States of America and the United Kingdom of Great Britain 
and Northern Ireland acknowledge that, in accordance with the 
provisions of this Instrument, the Extradition Agreement is applied in 
relation to the bilateral Extradition Treaty between the Government of 
the United States of America and the Government of the United Kingdom 
of Great Britain and Northern Ireland signed 31 March 2003 (hereafter 
``the 2003 Extradition Treaty'') under the following terms:

          (a) Article 5(1) of the Extradition Agreement shall be 
        applied as set forth in Article 8(1) and 12(4) of the Annex to 
        this Instrument to provide for the mode of transmission of the 
        extradition request and supporting documents;

          (b) Article 5(2) of the Extradition Agreement shall be 
        applied as set forth in Article 9 of the Annex to this 
        Instrument to provide for the requirements concerning 
        certification, authentication or legalization of the 
        extradition request and supporting documents;

          (c) Article 7(1) of the Extradition Agreement shall be 
        applied as set forth in Article 12(4) of the Annex to this 
        Instrument to provide for an alternative method for 
        transmission of the request for extradition and supporting 
        documents following provisional arrest;

          (d) Article 8(2) of the Extradition Agreement shall be 
        applied as set. forth in Article 10(2) of the Annex to this 
        Instrument to provide for the channel to be used for submitting 
        supplementary information;

          (e) Article 10 of the Extradition Agreement shall be applied 
        as set forth in Article 15 of the Annex to this Instrument to 
        provide for the decision on requests made by several States for 
        the extradition or surrender of the same person; and

          (f) Article 14 of the Extradition Agreement shall be applied 
        as set forth in Article S bis of the Annex to this Instrument 
        to provide for consultations where the Requesting State 
        contemplates the submission of particularly sensitive 
        information in support of a request for extradition.

    2. The Annex reflects the integrated text of the operative 
provisions of the 2003 Extradition Treaty and the Extradition Agreement 
that shall apply upon entry into force of this Instrument.

    3. (a) This Instrument shall apply to the United States of America 
and to Great Britain and Northern Ireland. Subject to subparagraph (b), 
the application of the 2003 Extradition Treaty to the Channel Islands, 
the Isle of Man, and any other territory of the United Kingdom to which 
the 2003 Extradition Treaty may apply in accordance with its terms, 
shall remain unaffected by the Extradition Agreement and this 
Instrument.

    (b) This Instrument shall not apply to any territory for whose 
international relations the United Kingdom is responsible unless the 
United States of America and the European Union, by exchange of 
diplomatic notes duly confirmed by the United Kingdom in accordance 
with Article 20(1) (b) of the Extradition Agreement, agree to extend 
its application thereto. The exchange of notes shall specify the 
authority in the territory responsible for the measure set forth in 
Article 9 of the Annex and the channels between the United States of 
America and the territory for transmissions pertaining to the 
extradition process, in lieu of those designated in the Annex. Such 
application may be terminated by either the United States of America or 
the European Union by giving six months' written notice to the other 
through the diplomatic channel, where duly confirmed between the United 
States of America and the United Kingdom in accordance with Article 
20(2) of the Extradition Agreement.

    4. In accordance with Article 16 of the Extradition Agreement, this 
Instrument shall apply to offenses committed before as well as after it 
enters into force.

    5. This Instrument shall not apply to requests for extradition made 
prior to its entry into force.

    6. (a) This Instrument shall be subject to the completion by the 
United States of America and the United Kingdom of Great Britain and 
Northern Ireland of their respective applicable internal procedures for 
entry into force. The Governments of the United States of America and 
the United Kingdom of Great Britain and Northern Ireland shall 
thereupon exchange instruments indicating that such measures have been 
completed. This Instrument shall enter into force an the date of entry 
into force of the Extradition Agreement.

    (b) In the event of termination of the Extradition Agreement, this 
Instrument shall be terminated and the 2003 Extradition Treaty shall be 
applied. The Governments of the United States of America and the United 
Kingdom of Great Britain and Northern Ireland nevertheless may agree to 
continue to apply some or all of the provisions of this Instruments

IN WITNESS WHEREOF, the undersigned, being duly authorized by their 
respective Governments, have signed this Instrument.

DONE at London, in duplicate, this 16th day of December 2004.

            FOR THE GOVERNMENT OF UNITED STATES OF AMERICA:
                               Hon. John Ashcroft, Attorney General

 FOR THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN 
                                      AND NORTHERN IRELAND:
       Rt. Hon. David Blunket, MP, Secretary of State for the Home 
                                                         Department

                                 ______
                                 

                                 ANNEX

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

                               Article 1

                        OBLIGATION TO EXTRADITE

    The Parties agree to extradite to each other, pursuant to the 
provisions of this treaty, persons sought by the authorities in the 
Requesting State for trial or punishment for extraditable offenses.

                               Article 2

                         EXTRADITABLE OFFENSES

  1. An offense shall be an extraditable offense if the conduct on 
which the offense is based is punishable under the laws in both States 
by deprivation of liberty for a period of one year or more or by a more 
severe penalty.

  2. An offense shall also be an extraditable offense if it consists of 
an attempt or a conspiracy to commit, participation in the commission 
of, aiding or abetting, counseling or procuring the commission of, or 
being an accessory before or after the fact to any offense described in 
paragraph 1 of this Article.

  3. For the purposes of this Article, an offense shall be an 
extraditable offense:

          (a) whether or not the laws in the Requesting and Requested 
        States place the offense within the same category of offenses 
        or describe the offense by the same terminology; or

          (b) whether or not the offense is one for which United States 
        federal law requires the showing of such matters as interstate 
        transportation, or use of the mails or of other facilities 
        affecting interstate or foreign commerce, such matters being 
        jurisdictional only.

  4. If the offense has been committed outside the territory of the 
Requesting State, extradition shall be granted in accordance with the 
provisions of the treaty if the laws in the Requested State provide for 
the punishment of such conduct committed outside its territory in 
similar circumstances. If the laws in the Requested State do not 
provide for the punishment of such conduct committed outside of its 
territory in similar circumstances, the executive authority of the 
Requested State, in its discretion, may grant extradition provided that 
all other requirements of this treaty are met.

  5. If extradition has been granted for an extraditable offense, it 
may also be granted for any other.offense specified in the request if 
the latter offense is punishable by less than one year's deprivation of 
liberty, provided that all other requirements for extradition are met.

                               Article 3

                              NATIONALITY

    Extradition shall not be refused based on the nationality of the 
person sought.

  1. Extradition shall not be granted if the offense for which 
extradition is requested is a political offense.

  2. For the purposes of this treaty, the following offenses shall not 
be considered political offenses:

          (a) an offense for which both Parties have the obligation 
        pursuant to a multilateral international agreement to extradite 
        the person sought or to submit the case to their competent 
        authorities for decision as to prosecution;

          (b) a murder or other violent crime against the person of a 
        Head of State of one of the Parties, or of a member of the Head 
        of State's family;

          (c) murder, manslaughter, malicious wounding, or inflicting 
        grievous bodily harm;

          (d) an offense involving kidnapping, abduction, or any form 
        of unlawful detention, including the taking of a hostage;

          (e) placing or using, or threatening the placement or use of, 
        an explosive, incendiary, or destructive device or firearm 
        capable of endangering life, of causing grievous bodily harm, 
        or of causing substantial property damage;

          (f) possession of an explosive, incendiary, or destructive 
        device capable of endangering life, of causing grievous bodily 
        harm, or of causing substantial property damage;

          (g) an attempt or a conspiracy to commit; participation in 
        the commission of, aiding or abetting, counseling or procuring 
        the commission of, or being an accessory before or after the 
        fact to any of the foregoing offenses.

  3. Notwithstanding the terms of paragraph 2 of this Article, 
extradition shall not be granted if the competent authority of the 
Requested State determines that the request was politically motivated. 
In the United States, the executive branch is the competent authority 
for the purposes of this Article.

  4. The competent authority of the Requested State may refuse 
extradition for offenses under military law that are not offenses under 
ordinary criminal law. In the United States, the executive branch is 
the competent authority for the purposes of this Article.

                               Article 5

                           PRIOR PROSECUTION

  1. Extradition shall not be granted when the person sought has been 
convicted or acquitted in the Requested State for the offense for which 
extradition is requested.

  2. The Requested State may refuse extradition when the person sought 
has been convicted or acquitted in a third state in respect of the 
conduct for which extradition is requested.

  3. Extradition shall not be precluded by the fact that the competent 
authorities of the Requested State:

          (a) have decided not to prosecute the person sought for the 
        acts for which extradition is requested;

          (b) have decided to discontinue any criminal proceedings 
        which have been instituted against the person sought for those 
        acts; or

          (c) are still investigating the person sought for the same 
        acts for which extradition is sought.

                               Article 6

                         STATUTE OF LIMITATIONS

    The decision by the Requested State whether to grant the request 
for extradition shall be made without regard to any statute of 
limitations in either State.

                               Article 7

                           CAPITAL PUNISHMENT

    When the offense for which extradition is sought is punishable by 
death under the laws in the Requesting State and, is not punishable by 
death under the laws in the Requested State, the executive authority in 
the Requested State may refuse extradition unless the Requesting State 
provides an assurance that the death penalty will not be imposed, or, 
if imposed, will not be carried out.

                               Article 8

             EXTRADITION PROCEDURES AND REQUIRED DOCUMENTS

  1. All requests for extradition shall be submitted through the 
diplomatic channel.

  2. All requests for extradition shall be supported by:

          (a) as accurate a description as possible of the person 
        sought, together with any other information that would help to 
        establish identity and probable location;

          (b) a statement of the facts of the offense(s);

          (c) the relevant text of the law(s) describing the essential 
        elements of the offense for which extradition is requested;

          (d) the relevant text of the law(s) prescribing punishment 
        for the offense for which extradition is requested; and

          (e) documents, statements, or other types of information 
        specified in paragraphs 3 or 4 of this Article, as applicable.

  3. In addition to the requirements in paragraph 2 of this Article, a 
request for extradition of a person who is sought for prosecution shall 
be supported by:

          (a) a copy of the warrant or order of arrest issued by a 
        judge or other competent authority;

          (b) a copy of the charging document, if any; and

          (c) for requests to the United States, such information as 
        would provide a reasonable basis to believe that the person 
        sought committed the offense for which extradition is 
        requested.

  4. In addition to the requirements in paragraph 2 of this Article, a 
request for extradition relating to a person who has been convicted of 
the offense for which extradition is sought shall be supported by:

          (a) information that the person sought is the person to whom 
        the finding of guilt refers;

          (b) a copy of the judgment or memorandum of conviction or, if 
        a copy is not, available, a statement by a judicial authority 
        that the person has been convicted;

          (c) a copy of the sentence imposed, if the person sought has 
        been sentenced, and a statement establishing to what extent the 
        sentence has been carried out; and

          (d) in the case of a person who has been convicted in 
        absentia, information regarding the circumstances under which 
        the person was voluntarily absent from the proceedings.

                             Article 8 bis

                   SENSITIVE INFORMATION IN A REQUEST

    Where the Requesting State contemplates the submission of 
particularly sensitive information in support of its request for 
extradition, it may consult the Requested State to determine the extent 
to which the information can be protected by the Requested State. If 
the Requested State cannot protect the information in the manner sought 
by the Requesting State, the Requesting State shall determine whether 
the information shall nonetheless be submitted.

                               Article 9

                      AUTHENTICATION OF DOCUMENTS

    Documents that bear the certificate or seal of the Ministry of 
Justice, or Ministry or Department responsible for foreign affairs, of 
the Requesting State shall be admissible in extradition proceedings in 
the Requested State without further certification, authentication, or 
other legalization. ``Ministry of Justice'' shall mean, for the United 
States, the United States Department of Justice; and, for the United 
Kingdom, the Home Office.

                               Article 10

                         ADDITIONAL INFORMATION

  1. If the Requested State requires additional information to enable a 
decision to be taken on the request for extradition, the Requesting 
State shall respond to the request within such time as the Requested 
State requires.

  2. Such additional information may be requested and furnished 
directly between the United States Department of Justice and the Home 
Office.

                               Article 11

                              TRANSLATION

    All documents submitted under this treaty by the Requesting State 
shall be in English or accompanied by a translation into English.

                               Article 12

                           PROVISIONAL ARREST

  1. In an urgent situation, the Requesting State may request the 
provisional arest of the person sought pending presentation of the 
request for extradition. A request for provisional arrest may be 
transmitted through the diplomatic channel or directly between the 
United States Department of Justice and such competent authority as the 
United Kingdom may designate for the purposes of this Article.

  2. The application for provisional arrest shall contain:

          (a) a description of the person sought;

          (b) the location of the person sought, if known;

          (c) a brief statement of the facts of the case including, if 
        possible, the date and location of the offense(s);

          (d) a description of the law(s) violated;

          (e) a statement of the existence of a warrant or order of 
        arrest or a finding of guilt or judgment of conviction against 
        the person sought; and

          (f) a statement that the supporting documents for the person 
        sought will follow within the time specified in this treaty.

  3. The Requesting State shall be notified without delay of the 
disposition of its request for provisional arrest and the reasons for 
any inability to proceed with the request.

  4. A person who is provisionally arrested may be discharged from 
custody upon the expiration of sixty (60) days from the date of 
provisional west pursuant to this treaty if the executive authority of 
the Requested State has not received the formal request for extradition 
and the documents supporting the extradition request as required in 
Article 8. For this purpose, receipt of the formal request for 
extradition and supporting documents by the Embassy of the Requested 
State in the Requesting State shall constitute receipt by the executive 
authority of the Requested State.

  5. The fact that the person sought has been discharged from custody 
pursuant to paragraph 4 of this Article shall not prejudice the 
subsequent re-arrest and extradition of that person if the extradition 
request and supporting documents are delivered at a later date.

                               Article 13

                         DECISION AND SURRENDER

  1. The Requested State shall promptly notify, the Requesting State of 
its decision on the request for extradition. Such notification should 
be transmitted directly to the competent authority designated by the 
Requesting State to receive such notification and through the 
diplomatic channel.

  2. If the request is denied in whole or in part, the Requested State 
shall provide reasons for the denial. The Requested State shall provide 
copies of pertinent judicial decisions upon request.

  3. If the request for extradition is granted, the authorities of the 
Requesting and Requested States shall agree on the time and place for 
the surrender of the person sought.

  4. If the person sought is not removed from the territory of the 
Requested State within the time period prescribed by the law of that 
State, that person maybe discharged from custody, and the Requested 
State, in its discretion, may subsequently refuse extradition for the 
same offense(s).

                               Article 14

                    TEMPORARY AND DEFERRED SURRENDER

  1. If the extradition request is granted for a person who is being 
proceeded against or is serving a sentence in the Requested State, the 
Requested State may temporarily surrender the person sought to the 
Requesting State for the purpose of prosecution. If the Requested State 
requests, the Requesting State shall keep the person so surrendered in 
custody and shall return that person to the Requested State after the 
conclusion of the proceedings against that person, in accordance with 
conditions to be determined by mutual agreement of the States.

  2. The Requested State may postpone the extradition proceedings 
against a person who is being prosecuted or who is serving a sentence 
in that State. The postponement may continue until the prosecution of 
the person sought has been concluded or until such person has served 
any sentence imposed.

                               Article 15

      REQUESTS FOR EXTRADITION OR SURRENDER MADE BY SEVERAL STATES

  1. If the Requested State receives requests from the Requesting State 
and from any other State or States for the extradition of the same 
person, either for the same offense or for different offenses, the 
executive authority of the Requested State shall determine to which 
State, if any, it will surrender the person.

  2. If the United Kingdom receives an extradition request from the 
United States and a request for surrender pursuant to the European 
arrest warrant for the same person, either for the same offense or for 
different offenses, its executive authority shall determine to which 
State, if any, it will surrender the person.

  3. In making its decision under paragraphs 1 and 2 of this Article, 
the Requested State shall consider all of the relevant factors, 
including, but not limited to, the following:

          (a) whether the requests were made pursuant to a treaty;

          (b) the places where each of the offenses was committed;

          (c) the respective interests of the requesting States;

          (d) the seriousness of the offenses;

          (e) the nationality of the victim;

          (f) the possibility of any subsequent extradition between the 
        requesting States; and

          (g) the chronological order in which the requests were 
        received from the requesting States.

                               Article 16

                   SEIZURE AND SURRENDER OF PROPERTY

  1. To the extent permitted under its law, the Requested State may 
seize and surrender to the Requesting State all items in whatever form, 
and assets, including proceeds, that are connected with the offense in 
respect of which extradition is granted. The items and assets mentioned 
in this Article may be surrendered even when the extradition cannot be 
effected due to the death, disappearance, or escape of the person 
sought.

  2. The Requested State may condition the surrender of the items upon 
satisfactory assurances from the Requesting State that the property 
will be returned to the Requested State as soon as practicable. The 
Requested State may also defer the surrender of such items if they are 
needed as evidence in the Requested State.

                               Article 17

                         WAIVER OF EXTRADITION

    If the person sought waives extradition and agrees to be 
surrendered to the Requesting State, the Requested State may surrender 
the person as expeditiously as possible without further proceedings.

                               Article 18

                           RULE OF SPECIALTY

  1. A person extradited under this treaty may not be detained, tried, 
or punished in the Requesting State except for:

          (a) any offense for which extradition, was granted, or a 
        differently denominated offense based on the same facts as the 
        offense on which extradition was granted, provided such offense 
        is extraditable, or is a lesser included offense;

          (b) any offense committed after the extradition of the 
        person; or

          (c) any offense for which the executive authority of the 
        Requested State waives the rule of specialty and thereby 
        consents to the person's detention, trial, or punishment. For 
        the purpose of this subparagraph:

                  (i) the executive authority of the Requested State 
                may require the submission of the documentation called 
                for in Article 8; and

                  (ii) the person extradited maybe detained by the 
                Requesting State for 90 days, or for such longer period 
                of time as the Requested State may authorize, while the 
                request for consent is being processed.

  2. A person extradited under this treaty may not be the subject of 
onward extradition or surrender for any offense committed prior to 
extradition to the Requesting State unless the Requested State 
consents.

  3. Paragraphs 1 and 2 of this Article shall not prevent the 
detention, trial, or punishment of an extradited person, or the 
extradition of the person to a third State, if the person:

          (a) leaves the territory of the Requesting State after 
        extradition and voluntarily returns to it; or

          (b) does not leave the territory of the Requesting State 
        within 20 days of the day on which that person is free to 
        leave.

  4. If the person sought waives extradition pursuant to Article 17, 
the specialty provisions in this Article shall not apply.

                               Article 19

  1. Either State may authorize transportation through its territory of 
a person surrendered to the other State by a third State or from the 
other State to a third State. A request for transit shall contain a 
description of the person being transported and a brief statement of 
the facts of the case. A person in transit shall be detained in custody 
during the period of transit.

  2. Authorization is not required when air transportation is used by 
one State and no landing is scheduled on the territory of the other 
State. If an unscheduled landing does occur, the State in which the 
unscheduled landing occurs may require a request for transit pursuant 
to paragraph 1 of this Article, and it may detain the person until the 
request for transit is received and the transit is effected, as long as 
the request is received within 96 hours of the unscheduled landing.

                               Article 20

                      REPRESENTATION AND EXPENSES

  1. The Requested State shall advise, assist, and appear on behalf of, 
the Requesting State in any proceedings in the courts of the Requested 
State arising out of a request for extradition or make all necessary 
arrangements for the same.

  2. The Requesting State shall pay all the expenses related to the 
translation of extradition documents and the transportation of the 
person surrendered. The Requested State shall pay all other expenses 
incurred in that State in connection with the extradition proceedings.

  3. Neither State shall make any pecuniary claim against the other 
State arising out of the arrest, detention, examination, or surrender 
of persons under this treaty.

                               Article 21

                              CONSULTATION

    The Parties may consult with each other in connection with the 
processing of individual cases and in furtherance of efficient 
implementation of this treaty.

                               Article 22

                              TERMINATION

    Either State may terminate this treaty at any time by giving 
written notice to the other State through the diplomatic channel, and 
the termination shall be effective six months after the date of receipt 
of such notice.

                                 ______
                                 

                Embassy of the United States of America

No. 120

    The Embassy of the United States of America at London, England, 
presents its compliments to Her Majesty's Principal Secretary of State 
for Foreign and Commonwealth Affairs and has the honor to refer to the 
Instrument as contemplated by Article 3(2) of the Agreement on 
Extradition between the United States of America and the European Union 
signed June 25, 2003, as to the application of the Extradition Treaty 
between the Government of the United States of America and the 
Government of the United Kingdom of Great Britain and Northern Ireland 
signed March 31, 2003 (the ``2003 Extradition Treaty'').
    Having been informed by the Government of the United Kingdom of 
Great Britain and Northern Ireland that it will be unable to apply 
Article 5(2) of the Agreement on Extradition between the United States 
of America and the European Union, as set forth in Article 9 of the 
Annex to the Instrument, relating to authentication of extradition 
documents, until a corresponding change is made in its domestic law 
governing extradition, the Embassy has the honor to propose on behalf 
of the United States Government as follows:
    Article 5(2) of the Agreement can Extradition between the United 
States of America and the European Union, as set forth in Article 9 of 
the Annex to the Instrument, shall not be applied until the Government 
of the United States of America and the Government of the United 
Kingdom of Great Britain and Northern Ireland indicate in a subsequent 
exchange of notes that the required internal procedures have been 
completed. Until that time, the parties agree to apply the procedure 
for authentication of extradition documents set forth in Article 9 of 
the Extradition Treaty between the Government of.the United States of 
America and the Government of the United Kingdom of Great Britain and 
Northern Ireland signed March 31, 2003, upon its entry into force. The 
Government of the United Kingdom of Great Britain and Northern Ireland 
shall undertake to seek the necessary legislation at the earliest 
possible time.
    The Embassy also wishes to confirm that two exchanges of letters 
related to the 2003 Extradition Treaty and done simultaneous with its 
signature shall remain the understandings of the Governments with 
respect to this Instrument, until such time as they may agree 
otherwise.
    If the foregoing is acceptable to your Government, the Embassy has 
the honor to propose that this Note and your Note in reply shall 
constitute an agreement between our two Governments, which shall enter 
into force on the date of entry into force of the Instrument.
    The Embassy avails itself of the opportunity to express to Her 
Majesty's Principal Secretary of State for Foreign and Commonwealth 
Affairs the renewed assurance of its highest consideration.
                   Embassy of the United States of America,
                                London, England. December 16, 2004.

                                 ______
                                 

      Consular Directorate of the Foreign and Commonwealth Office

          UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

    The Consular Directorate of the Foreign and Commonwealth Office 
presents its compliments to the Embassy of the United States of America 
and has the honour to refer to the Embassy's Note No. 120 of 16 
December 2004 which reads as follows:

          ``The Embassy of the United States of America at London, 
        England, presents its compliments to Her Majesty's Principal 
        Secretary of State for Foreign and Commonnwealth Affairs and 
        has the honour to refer to the Instrument as contemplated by 
        Article 3(2) of the Agreement on Extradition between the United 
        States of America and the European Union signed June 25, 2003, 
        as to the application of the Extradition Treaty between the 
        Government of the United States of America and the Government 
        of the United Kingdom of Great Britain and Northern Ireland 
        signed March 31, 2003 (the ``2003 Extradition Treaty'').
          ``Having been informed by the Government of the United 
        Kingdom of great Britain and Northern Ireland that it will be 
        unable to apply Article 5(2) of the Agreement on Extradition 
        between the United States of America and the European Union, as 
        set forth in Article 9 of the Annex to the Instrument, relating 
        to authentication of extradition documents, until a 
        corresponding change is made in, its domestic law governing 
        extradition, the Embassy has the honour to propose on behalf of 
        the United States Government as follows:
          ``Article 5(2) of the Agreement on Extradition between the 
        United States of America and the European Union, as set forth 
        in Article 9 of the Annex to the Instrument, shall not be 
        applied until the United States of America and the Government 
        of Great Britain and Northern Ireland indicate in a subsequent 
        exchange of notes that the required internal procedures have 
        been completed. Until that time, the parties agree to apply the 
        procedure for authentication of extradition documents set forth 
        in Article 9 of the Extradition Treaty between the Govemment of 
        the United States of America and the Government of the United 
        Kingdom of Great Britain and Northern Ireland signed March 31, 
        2003, upon its entry into force. The Government of the United 
        Kingdom of Great Britain and Northern Ireland shall undertake 
        to seek the necessary legislation at the earliest possible 
        time.
          ``The Embassy also wishes to confirm that two exchanges of 
        letters related to the 2003 Extradition Treaty and done 
        simultaneous with its signature shall remain the understandings 
        of the Governments with respect to this Instrument, until such 
        time as they may agree otherwise.
          ``If the foregoing is acceptable to your Government, the 
        Embassy has the honour to propose that this Note and your Note 
        in reply shall constitute an agreement between our two 
        Governments, which shall enter into force on the date of entry 
        into force of the Instrument.
          ``The Embassy avails itself of this opportunity to express to 
        Her Majesty's Principal Secretary of State for Foreign and 
        Commonwealth Affairs the renewed assurance of its highest 
        consideration.''

    In reply, the Foreign and Commonwealth Office has the honour to 
confirm that the proposal set out in the Embassy's Note is acceptable 
to the Government of the United Kingdom of Great Britain and Northern 
Ireland and that the Embassy's Note, and this Reply, shall constitute 
an agreement between the two Governments which shall enter into force 
on the date of entry into force of the Instrument.
    The Consular Directorate of the Foreign and Commonwealth Office 
avails itself of this opportunity to renew to the Embassy of the United 
States the assurances of its highest consideration.

                                                    London,
                                                  16 December 2004.

                               __________

     Appendix II: Statement Submitted by Professor Francis A. Boyle

    Good day. My name is Francis A. Boyle, Professor of Law at the 
University of Illinois College of Law in Champaign. I have already 
submitted to the members of this committee a detailed memorandum of Law 
against the ratification of this proposed extradition treaty dated 4 
March 2004 that I respectfully request be entered into the formal 
record of these proceedings together with my written comments here 
today.
    The United States of America was founded by means of a declaration 
of independence and a revolutionary war fought against the British 
Monarchy. But under the terms of this proposed extradition treaty, our 
Founding Fathers and Mothers such as John Hancock, George Washington, 
Thomas Jefferson, James and Dolly Madison would be extradited to the 
British Monarchy for prosecution, persecution, and execution for the 
very revolutionary activities that . founded the United States of 
America itself.
    Because of this American legacy of revolution against British 
tyranny, the U.S. has always provided a safe haven for those seeking 
refuge on our shores. We have always been wary of efforts by foreign 
powers to transport Americans and foreigners for prosecution abroad on 
political charges. Indeed, in the Declaration of Independence, one of 
the specific complaints against British tyranny made by Thomas 
Jefferson himself was directed at the British outrage of ``transporting 
us beyond seas to be tried for pretended offences.'' Such is the case 
for this treaty.
    For that reason, several episodes in the early history of our 
Republic, such as that of Citizen Genet under Thomas Jefferson, laid 
the foundation for the uniquely American notion of the ``political 
offense exception'' to extradition. In essence, the political offense 
exception holds that people in the United States will not be handed 
over to foreign governments for criminal prosecution when the crime 
alleged is political in nature.
    The political offense exception has since become a standard part of 
public international law. But the political offense exception is not 
some abstract notion created by the World Court, or the United Nations, 
or any other international body. It began right here in the United 
States of America--``.  .  . the land of the free, and the home of the 
brave.'' And it was created by our Founding Fathers and Mothers who 
knew, from personal experience, that it was outrageously unfair for a 
state to hand a person over to another state for political prosecution 
and persecution. It is a bedrock principle of American justice.
    This basic principle of American justice is now under assault by 
means of this treaty which surely has George Washington, Thomas 
Jefferson as well as James and Dolly Madison turning over in their 
graves. This new treaty marks an unprecedented departure from two 
centuries of American extradition practice. Although the new treaty 
pays lip-service to the political offense exception, it effectively 
eliminates the political offense exception for all practical purposes.
    For example, the political offense exception is eliminated for any 
offense allegedly involving violence or weapons, including any 
solicitation, conspiracy, or attempt to commit such crimes, As we have 
repeatedly seen in Chicago, Florida, and New York, inter aria., 
undercover government agents infiltrate peaceful Irish American groups, 
suggest criminal activity to them, and then falsely claim that innocent 
members of these groups agreed with their suggestions. That is all it 
takes for a conspiracy to be extraditable under this proposed treaty.
    Even worse yet, all it would take for any of the people in this 
room to get extradited under this proposed treaty is a false allegation 
from the British Monarchy that one of its spies overheard them say 
something reckless about weapons or the armed struggle in Ireland. This 
treaty is unconstitutional under the First Amendment to the United 
States Constitution, which Britain does not have. Indeed, we Americans 
fought a bitter revolutionary War against the British Monarchy in order 
to establish our own Constitution and Bill of Rights, neither of which 
Britain has.
    Under the terms of this proposed treaty, it would be the 
politicians and diplomats at the U.S. Department of State, not a United 
States Federal judge, who would be adjudicating the First Amendment 
rights of Irish American citizens, voters, and taxpayers. My 4 March 
2004 memorandum to you has already identified several other 
constitutional protections set forth in our American Bill of Rights 
that will be violated by this proposed extradition treaty with the 
British Monarchy that I will not review now but respectfully 
incorporate by reference.
    In addition, this proposed treaty wipes out a number of 
constitutional and procedural safeguards. It eliminates any statue of 
limitations, unconstitutionally eliminates the need for any showing of 
probable cause, permits unconstitutional indefinite preventive 
detention, applies retroactively to offenses allegedly committed before 
the treaty's ratification, eliminates the time--honored Rule of 
Specialty in all but name, allows for the unconstitutional seizure of 
assets, and permits extradition under Article 2(4) for conduct that is 
perfectly lawful in the United States. This treaty retroactively 
criminalizes perfectly lawful conduct in violation of the 
constitutional prohibition on Ex Post Facto laws set forth in Article 
I, Section 9 of the U.S. Constitution as well as the basic principles 
of public international law and human rights and jus cogens known as 
nullum crimen sine lege, nulla poena sine lege--no crime without law, 
no punishment without law. Under this treaty, the heirs of George 
Washington could have their assets seized as proceeds of a criminal 
terrorist conspiracy.
    Most outrageously, responsibility for determining whether a 
prosecution is politically motivated is transferred from the U.S. 
Federal courts to the executive branch of government. This means that 
instead of having your day in court, before a neutral Federal judge, 
you will be required to rely on the not-so-tender mercies of the 
Department of State, which historically has always been soundly 
anglophile, pro-British, anti-Irish, and against Irish Americans and 
Irish America. There are now over twenty million Irish American 
citizens, voters, and taxpayers, and we all especially like to vote. 
These and the several other court-stripping provisions of this proposed 
treaty are unconstitutional under Article III of the United States 
Constitution.
    As the current U.S. Irish deportation cases show, Britain can 
easily return Irish and British citizens to Britain. So why is the 
British Monarchy now trying now to shift the extradition decision from 
the U.S. Federal courts to the executive branch? Because you cannot 
deport a U.S. citizen. A U.S. citizen has to be extradited. Article 3 
of the proposed treaty makes it crystal clear that the British Monarchy 
wants to target Irish American citizens for persecution in Crown 
courts, which have a long history of perpetrating legal atrocities 
against innocent Irish people. That is precisely why the U.S. Senate 
deliberately put the so-called Rule of Inquiry by a U.S. Federal judge 
into Article 3 of the 1986 Supplementary Extradition Treaty with 
Britain. This proposed treaty eliminates the Senate's well-grounded 
Rule of Inquiry to prevent British Crown courts mistreating Irish 
people.
    Furthermore, unlike Article VIIIbis of the proposed extradition 
protocol with Israel, for some mysterious and unexplained reason 
Article 6 of the proposed extradition treaty with the British Monarchy 
eliminates any statute of limitations requirements. So citizens of 
Israel get to benefit from a statute of limitations, but Irish American 
citizens of the United States do not. Why this differential treatment 
on behalf of foreigners and against Irish American citizens in these 
two simultaneously proposed extradition treaties?
    The answer to this question becomes quite clear in Article 2(2) and 
Article 4(2)(g) of the proposed extradition treaty with the British 
Monarchy, which renders extraditable an accessory after the fact to an 
extraditable offense. Since there are no statute of limitations 
requirements and the proposed treaty is retroactive, any Irish American 
citizen who provided assistance to Joe Doherty would today be 
extraditable under this proposed treaty as an accessory after the fact 
to Mr. Doherty. In addition, such Irish American Doherty supporters 
would be provisionally arrested and indefinitely detained under Article 
12 of the proposed treaty. Finally, according to Article 16 of the 
proposed treaty, such Irish American Doherty supporters would have 
their homes, businesses, cars, and other property seized, sold and 
surrendered to the British Monarchy.
    That is the real agenda behind this proposed extradition treaty 
with the British Monarchy: British retaliation against Irish American 
citizens, voters and taxpayers because of our near universal support 
for Joe Doherty and other I.R.A. soldiers who fled to the United States 
of America seeking refuge from fighting their own revolution against 
British tyranny in Ireland since the Proclamation of the Irish Republic 
on Easter Sunday 1916. This proposed treaty has been designed by the 
British Government to eviscerate, overturn, and reverse the delicately 
crafted human rights compromises that were deliberately built into the 
1986 Supplementary Extradition Treaty by the Senate Foreign Relations 
Committee and other concerned members of the United States Senate. Will 
the United States Senate and this committee permit the British Monarchy 
to traduce its previous handiwork? I certainly trust not.
    Next, for reasons fully explained in my 4 March 2004 memorandum to 
you, if the Senate were to consent to this proposed extradition treaty, 
that would effectively abrogate the most basic human rights of Irish 
American citizens under the International Covenant on Civil and 
Political Rights to which the United States is a contracting party. 
Furthermore, such Senate consent to this proposed treaty would also 
place the United States of America in breach of its solemn treaty 
obligations under numerous provisions of that human rights Covenant 
with respect to all the other contracting states parties. Such 
violations will render the United States subject to the treaty 
enforcement mechanisms of that Covenant as well as to the other 
ordinary enforcement mechanisms, remedies, and sanctions for violating 
a solemnly concluded international human rights treaty as well as the 
basic principle of customary international law and jus cogens that 
pacta suet servanda: i.e., treaties must be obeyed.
    My 4 March 2004 memorandum to you established that the proposed 
extradition treaty will grossly violate this solemn International Human 
Rights Covenant that has received the advice and consent of 2/3rds of 
the Members of the United States Senate and is thus ``the supreme Law 
of the Land'' under Article VI of the United States Constitution. 
Nevertheless, the two lawyers from the Departments of State and Justice 
who appeared before this committee on 15 November 2005 did not even 
bother to address these weighty issues of international law, U.S. 
constitutional law, U.S. treaty law, and basic human rights 
protections. With all due respect, this committee must uphold the 
Senate's constitutional responsibilities and prerogatives under the 
Treaties Clause in Article II, Section 2 of the U.S. Constitution by 
demanding that both the Departments of State and Justice formally 
respond in writing to my 4 March 2004 Memorandum's arguments that this 
proposed extradition treaty will violate the International Covenant on 
Civil and Political Rights, to which both the United States and the 
United Kingdom are contracting parties.
    Finally, the British Monarchy has continued to maintain a colonial 
military occupation regime consisting in part of about 15,000 soldiers 
in the six northeast counties of Ireland in gross violation of the 
right of the Irish People to self-determination under both customary 
and conventional international law, including but not limited to 
Article 1(1) of the International Covenant on Civil and Political 
Rights to which the Republic of Ireland, the United States, and the 
British Monarchy are all contracting parties, This longstanding 
instance of British criminality has been analyzed in great detail by my 
article The Decolonization of Northern Ireland, 4 Asian Yearbook of 
International Law 25-46 (1995), a copy of which is attached. I 
respectfully request that this article be submitted into the formal 
record of these proceedings.
    All of the above incontestable historical facts provide proof-
positive of precisely why this proposed treaty of extradition with the 
British Monarchy must be treated completely differently from any other 
extradition treaty that the United States of America might have or 
propose to have with any other country in the world. All of these other 
so-called modern extradition treaties are historically, politically, 
and legally inapposite to this proposed extradition treaty with the 
British Monarchy, which obstinately continues illegally to occupy 
Ireland militarily and to maintain a colony there in blatant violation 
of the United Nations' seminal Decolonization Resolution of 1960. 
Furthermore, this extradition treaty with the British Monarchy must 
stand alone and apart from all other modern U.S. extradition treaties 
precisely because we Americans fought a bitter revolutionary war 
against the British Monarchy to found this Republic. We Americans did 
not fight a Revolutionary war against any other state in the world. So 
it is axiomatic that this proposed treaty with the British Monarchy 
must be quite carefully distinguished from all of our extradition 
treaties with every other country in the world--and rejected.
Conclusion
    For all these reasons the Senate Foreign Relations Committee must 
reject this treaty outright. There is no way this unconstitutional and 
illegal treaty can be salvaged by attaching any package of amendments, 
reservations, declarations, or understandings. The currently existing 
bilateral and multilateral extradition treaty regime between the United 
States and the British Monarchy is more than sufficient to secure the 
extradition of alleged terrorists. This proposed treaty will only 
secure and guarantee the persecution of Irish American Citizens, 
Voters, and Taxpayers by the British Monarchy.
    Thank you.

                                 

      
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