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107TH CONGRESS EXEC. RPT.

2nd Session " ! SENATE 107–15

MUTUAL LEGAL ASSISTANCE TREATIES WITH BELIZE,

INDIA, IRELAND, AND LIECHTENSTEIN

OCTOBER 17, 2002.—Ordered to be printed

Mr. BIDEN, from the Committee on Foreign Relations,

submitted the following

REPORT

[To accompany Treaty Docs. 107–13, 107–3, 107–9, and 107–16]

The Committee on Foreign Relations to which were referred the

Treaty Between the Government of the United States of America

and the Government of Belize on Mutual Legal Assistance in

Criminal Matters, signed at Belize, on September 19, 2000, and a

related exchange of notes (Treaty Doc. 107–13); the Treaty Between the Government of the United States of America and the

Government of the Republic of India on Mutual Legal Assistance

in Criminal Matters, signed at New Delhi on October 17, 2001

(Treaty Doc. 107–3); the Treaty Between the Government of the

United States of America and the Government of Ireland on Mutual Legal Assistance in Criminal Matters, signed at Washington

on January 18, 2001 (Treaty Doc. 107–9); and the Treaty Between

the Government of the United States of America and the Principality of Liechtenstein on Mutual Legal Assistance in Criminal

Matters, and a related exchange of notes, signed at Vaduz on July

8, 2002 (Treaty Doc. 107–16) having considered the same, reports

favorably thereon, each subject to an understanding and conditions

indicated in the corresponding resolutions of advice and consent to

ratification, and recommends that the Senate give its advice and

consent to the ratification thereof as set forth in this report and

said resolutions of advice and consent to ratification.

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CONTENTS

Page

I. Purpose ........................................................................................................... 2

II. Background .................................................................................................... 2

III. Summary and Discussion of the Treaties .................................................... 2

IV. Entry Into Force and Termination ............................................................... 4

V. Committee Action .......................................................................................... 4

VI. Committee Recommendation and Comments .............................................. 5

VII. Explanation of the Treaties .......................................................................... 5

VIII. Text of Resolutions of Advice and Consent to Ratification ........................ 30

I. PURPOSE

The treaties are designed to provide a formal basis for mutual cooperation between the respective parties on law enforcement matters.

II. BACKGROUND

The United States currently has mutual legal assistance treaties

(MLATs) in force with over 50 countries. Along with extradition

treaties, these treaties provide a formal means for facilitating and

expanding cooperative law enforcement efforts with other nations.

All four of the treaties discussed in this report were submitted

by President Bush during the 2d session of the 107th Congress.

Two of the treaties were signed, however, during the Clinton Administration.

III. SUMMARY AND DISCUSSION OF THE TREATIES

A. GENERAL

Each of the treaties under consideration has distinct features,

but they follow a common format. In general, they consist of twenty

articles, more or less. They cover essentially the same matter, in

same general order, often with only minor variations of style and

language. The major articles usually address the following:

• the scope of assistance of the Treaty, in the form of a general

statement of purpose and a general inventory of the kinds of

assistance available;

• identification of the Central Authorities responsible for administration of the Treaty;

• the limitations on assistance available at the discretion of the

Central Authority in particular types of cases;

• the form and contents required of any petition for assistance

under the Treaty;

• how the costs associated with a particular request are to be allocated;

• the limitations of use or disclosure of any evidence or information obtained pursuant to a Treaty request;

• the procedure for hearings conducted at the behest of a foreign

country to take testimony or evidence in the Requested State;

• the circumstances under which the parties are to have access

to information found in the records of government agencies of

other countries;

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• the procedure for inviting witnesses to travel abroad and give

testimony in the Requesting State;

• the provisions for the transfer of persons in custody (prisoners)

from one country to the other to permit them to participate in

foreign proceedings;

• the pledge of each party to devote best efforts in response to

a request for the location or identification of a particular person or item;

• the service of documents related to a Treaty request;

• the agreement to execute a search and seizure upon request of

a Treaty partner;

• provisions for the return of property transferred to another

country; and

• assistance in forfeiture proceedings and in proceedings concerning restitution and criminal fines.

B. KEY PROVISIONS

1. Limitations on Assistance

All of the Treaties have an article that describes the circumstances under which assistance may or must be refused. The

most common limitations permit the parties to decline a request for

assistance (1) which involves a purely military offense not ordinarily treated as a criminal offense, (2) which is related to a political offense, (3) whose execution would prejudice a national security

or similar essential interest, or (4) which does not comply with the

procedural requirements of the particular Treaty.

2. Limitations on Use

The MLATs allow the Central Authorities of the country providing evidence or information under the Treaty to prohibit its use

in other investigations or prosecutions without their consent or

until after it has been publicly disclosed as a consequence of the

use for which it was intended. The same article normally includes

confidentiality limitations in addition to use limitations. They permit responding countries to insist that the evidence or information

they provide be kept confidential and to condition their responses

accordingly.

3. Testimony and Evidence in the Requested State

An original purpose of the MLAT program was to permit the

United States to obtain evidence from foreign jurisdictions in a

form admissible in American courts. That remains unchanged.

American courts usually do not have authority to subpoena foreign

nationals living abroad. Even in cases where foreign requirements

can be overcome, U.S. law imposes specific requirements that must

be met before depositions can be taken overseas and the testimony

subsequently introduced in criminal proceedings in this country.

MLATs are designed to overcome these obstacles, in addition to

meeting the practical and diplomatic challenges of taking depositions in a foreign country. They obligate the parties to call witnesses, using compulsory process if necessary.

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4. Records of Government Agencies

MLATs generally divide governmental information available

under their provisions into two categories, namely, publicly available information (which must be provided upon request) and information available to judicial and law enforcement personnel but not

to the general public (which may be provided upon request). The

Treaties contemplate access to material held by any of the three

branches of the U.S. government. The United States is unwilling

to compromise drug trafficking intelligence produced and held by

U.S. law enforcement agencies. Thus, in past MLATs, the Senate

has insisted upon a proviso requiring the Executive Branch to deny

any request that would give corrupt foreign officials information

that might be used to frustrate U.S. efforts to combat drug trafficking.

5. Location and Identification of Persons or Items

The MLAT parties generally pledge their best efforts to ascertain

the location or identity of ‘‘persons or items’’ within their territory

upon request. Effective use of a MLAT often begins by finding an

overseas fugitive or locating and identifying a witness or a custodian of bank records or other physical evidence resident in another

country. The form and content articles of the Treaties instruct Requesting States to provide such information as to the location and

identification of the persons or items as they can.

6. Search and Seizure

The search and seizure articles in the Treaties are similar. They

require execution of any request accompanied by information sufficient to satisfy the legal requirements of the country in which execution is to occur. They generally feature an authentication procedure designed to satisfy U.S. legal requirements for admissibility

of evidence. Finally, each Treaty has a provision authorizing conditions for the protection of third party interests in the property.

IV. ENTRY INTO FORCE AND TERMINATION

The Treaties with Belize, India and Ireland enter into force upon

the exchange of the instruments of ratification. The Treaty with

Liechtenstein enters into force on the first day of the second month

following the month of the exchange of the instruments of ratification.

The clauses on termination are identical in substance, providing

that either party may terminate the Treaty by written notice to the

other party, and that such termination takes effect six months

after the date of the notification.

V. COMMITTEE ACTION

The Committee reviewed the Treaties at a public hearing on September 19, 2002, receiving testimony from representatives of the

Departments of State and Justice (S. Hrg. 107–721). The Committee considered the Treaties on October 8, 2002, and ordered

them favorably reported by voice vote, with the recommendation

that the Senate give its advice and consent to the ratification of the

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Treaties, each subject to an understanding and the conditions set

forth in the resolutions of advice and consent to ratification.

VI. COMMITTEE RECOMMENDATION AND COMMENTS

The Committee recommends favorably the four Treaties. The

Committee believes that these treaties are useful instruments for

facilitating international law enforcement cooperation. The Committee urges that the Senate act promptly to give its advice and

consent to ratification.

As in the case in consideration of mutual legal assistance treaties

in the 105th and 106th Congresses, the Committee again recommends including in the resolutions of advice and consent an understanding related to the International Criminal Court. The understanding is designed to make plain that the United States will

exercise its rights under the treaty provisions to limit the use of

assistance provided to ensure that such assistance is not re-transferred to the International Criminal Court, unless the United

States becomes a party to the Court or ‘‘unless the President has

waived any applicable prohibition on provision of such assistance

in accordance with applicable United States law.’’ Earlier this year,

Congress enacted legislation barring U.S. cooperation with the

Court (Title II of the Supplemental Appropriations Act for Fiscal

Year 2002, P.L. 107–206). The legislation, however, provides waiver

authority for the President under certain conditions.

The conditions set forth in the resolutions of advice and consent

have also been included in such resolutions in recent years. The

first condition requires the United States to deny any request for

assistance if it has specific information that a senior Government

official of the requesting party who will have access to information

to be provided ‘‘is engaged in a felony, including the facilitation of

the production or distribution of illegal drugs.’’ The Committee believes that this language should be construed broadly, and should

apply to officials involved not only in direct involvement in illegal

activity, but should also apply to indirect involvement or intentional acts of omission by senior officials in failing to pursue illegal

activity.

VII. EXPLANATION OF THE TREATIES

What follows are technical analyses of the Treaties with Belize,

India, and Ireland prepared by the Departments of State and Justice.

Technical Analysis of the Treaty Between the Government

of the United States of America and the Government of

Belize on Mutual Legal Assistance in Criminal Matters

On September 19, 2000, the United States signed the Treaty Between the Government of the United States of America and the

Government of Belize on Mutual Legal Assistance in Criminal Matters (‘‘the Treaty’’). In recent years, the United States has signed

similar treaties with a number of countries as part of a highly successful effort to modernize the legal tools available to law enforcement authorities in need of foreign evidence for use in criminal

cases. The Treaty with Belize is a major advance for the United

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States in its efforts to combat criminal activity including organized

crime, terrorism, and international drug trafficking in the Caribbean and Central America.

This Treaty is accompanied by an exchange of diplomatic notes

related to Articles 1 and 9, as was the mutual legal assistance treaty between the United States and Antigua and Barbuda, which entered into force on July 1, 1999. This exchange of notes reflects the

Parties’ understanding, and constitutes an integral part of the

Treaty.

It is anticipated that, for the United States, the Treaty will be

self-executing, and will be implemented pursuant to the procedural

framework provided by Title 28, United States Code, Section 1782.

Belize will enact its own mutual legal assistance laws to implement

the Treaty.

This technical analysis of the Treaty has been prepared by the

United States delegation that conducted the negotiations.

ARTICLE 1—SCOPE OF ASSISTANCE

The first article of the Treaty provides for assistance in all matters involving the investigation, prosecution, and prevention of offenses, and in proceedings related to criminal matters.

The term ‘‘investigations’’ includes grand jury proceedings in the

United States and similar pre-charge proceedings in Belize, and

other legal measures taken prior to the filing of formal charges in

either State. The term ‘‘proceedings’’ is intended to cover the full

range of proceedings in a criminal case, including such matters as

bail and sentencing hearings. Since the phrase ‘‘proceedings related

to criminal matters’’ is broader than the investigation, prosecution,

or sentencing process itself, proceedings covered by the Treaty need

not be strictly criminal in nature. For example, civil forfeiture proceedings are covered by the Treaty.

As confirmed in the accompanying exchange of notes, assistance

under the Treaty includes assistance in criminal tax matters. In

other words, it covers ‘‘pure’’ tax matters; however, it does not extend to civil and administrative enforcement of income tax laws unrelated to any criminal matter.

The second paragraph of this article sets forth a non-exhaustive

list of major types of assistance that were specifically considered by

the Treaty negotiators. The Government of Belize has stated that

Belizean courts currently do not have the authority to enforce forfeiture, restitution, or collection orders of foreign courts, but that

such authority may be legislated.

Extradition treaties sometimes condition the surrender of fugitives upon a showing of ‘‘dual criminality,’’ i.e., proof that the facts

underlying the offense charged in the Requesting State would also

constitute an offense had they occurred in the Requested State.

The third paragraph of this article was intended to make it clear

that there is no general requirement of dual criminality for cooperation. Thus, assistance may be provided even when the criminal matter under investigation in the Requesting State would not

be a crime in the Requested State ‘‘except as otherwise provided in

this treaty,’’ a phrase which refers to Article 3(1)(e), under which

the Requested State may, in its discretion, require dual criminality

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1See United States v. Johnpoll, 739 F.2d 702 (2nd Cir.), cert. denied, 469 U.S. 1075 (1984). 2The Assistant Attorney General for the Criminal Division has in turn redelegated the authority to the Deputy Assistant Attorneys General and to the Director of the Criminal Division’s Office of International Affairs, in accordance with the regulation. Directive No. 81, 44 FR 18661,

March 29, 1979, as amended at 45 FR 6541, January 29, 1980; 48 FR 54595, Dec. 6, 1983. This

authority is further delegated to Deputy Directors.

for a request under Article 14 (involving searches and seizures) or

Article 16 (involving asset forfeiture matters).

The fourth paragraph of the article contains a standard provision

in United States mutual legal assistance treaties 1 which states

that the Treaty is intended solely for government-to-government

mutual legal assistance. The Treaty is not intended to provide to

private persons a means of evidence gathering, nor is it intended

to extend to non-criminal matters. Similarly, the paragraph provides that the Treaty is not intended to create any right in a private person to suppress or exclude evidence thereunder.

ARTICLE 2—CENTRAL AUTHORITIES

Article 2 of the Treaty requires that each party establish a ‘‘Central Authority’’ for transmission, reception, and handling of all

treaty requests.

The Central Authority for the Requesting Party is expected to exercise discretion as to the form and content of requests, and also

as to the number and priority of requests. The Central Authority

of the Requested Party is responsible for receiving each request,

transmitting it to the appropriate federal or state agency, court, or

other authority for execution, and insuring that a timely response

is made.

The second paragraph of the article provides that the Attorney

General or a person designated by the Attorney General will be the

Central Authority for the United States. The Attorney General has

delegated the duties of Central Authority under mutual assistance

treaties to the Assistant Attorney General in charge of the Criminal Division, pursuant to 28 C.F.R. § 0.64–1. 2 The Office of International Affairs, Criminal Division, Department of Justice, will

make all requests on behalf of United States law enforcement, and

receive and review all requests on behalf of Belize. The United

States Attorneys’ Offices and law enforcement agencies will execute

requests on behalf of Belize.

Article 2(2) of the Treaty also states that the Attorney General

of Belize or a person designated by the Attorney General will serve

as the Central Authority for Belize. In practice, we understand that

the Solicitor General of Belize will serve as the Central Authority

for Belize, as well as the executing authority, along with Belizean

police, for requests on behalf of the United States. The police will

be involved in routine matters, such as those involving service of

documents upon entities in Belize. The Solicitor General will be involved in more complex matters, such as those involving the gathering of business or bank records.

The third paragraph states that the Central Authorities shall

communicate directly with one another for the purposes of the

Treaty. It is anticipated that such communication will be accomplished by telephone, telefax, INTERPOL channels, or any other

means, at the option of the Central Authorities themselves.

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3This is consistent with the statements of the Senate in giving its advice and consent to ratification of the mutual legal assistance treaties with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United Kingdom Concerning the Cayman Islands. Cong Rec 13884, October 24,

1989.

ARTICLE 3—LIMITATIONS ON ASSISTANCE

Article 3 specifies the limited classes of cases in which assistance

may be denied under the Treaty. Similar provisions appear in

many other U.S. mutual legal assistance treaties.

One such basis for denial is that execution of the request would

prejudice the security or other essential public interests of that

State. ‘‘Security’’ includes cases where assistance might involve disclosure of information which is classified for national security reasons. It is anticipated that the Department of Justice, in its role

as Central Authority for the United States, will work closely with

the Department of State and other Government agencies to determine whether to execute a request which might fall in this category.

The phrase ‘‘essential interests’’ was intended to limit the class

of cases in which assistance may be denied. It would not be enough

that the Requesting State’s case is one which would be inconsistent

with public policy had it been brought in the Requested State.

Rather, the Requested State must be convinced that execution of

the request would seriously conflict with significant public policy

interests.

‘‘Essential interests’’ could be invoked if the execution of a request would violate essential United States interests related to the

fundamental purposes of the Treaty. For example, one fundamental

purpose of the Treaty is to enhance law enforcement cooperation,

and attaining that purpose would be hampered if sensitive law enforcement information available under the Treaty were to fall into

the wrong hands. Therefore, the United States Central Authority

would invoke Article 3(1)(b) to decline to provide sensitive or confidential drug related information pursuant to a request under this

Treaty if it were to determine, after appropriate consultation with

law enforcement, intelligence, and foreign policy agencies, that a

senior foreign government official who will have access to the information is engaged in or facilitates the production or distribution of

illegal drugs and is using the request to the prejudice of a U.S. investigation or prosecution. 3

In general, the mere fact that the execution of a request would

involve the disclosure of records protected by bank or business secrecy in the Requested State would not justify invocation of the ‘‘essential interests’’ provision. Indeed, a major objective of the Treaty

is to provide a formal, agreed channel for making such information

available for law enforcement purposes.

Article 3(1)(d) permits denial of a request if it relates to a political offense. It is anticipated that the Central Authorities will employ jurisprudence similar to that used in the extradition treaties

for determining what is a ‘‘political offense.’’ Article 3(1)(e) permits denial of a request if there is no ‘‘dual

criminality’’ for a request made under Article 14 (involving

searches and seizures) or Article 16 (involving asset forfeiture matters). However, the Belizean delegation indicated that the GovernVerDate 11-MAY-2000 19:49 Oct 17, 2002 Jkt 000000 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 10715.XYW SFRELA2 PsN: SFRELA2
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ment of Belize intends not to object to such a request even in the

absence of dual criminality.

Article 3(1)(f) permits denial of requests seeking the exercise of

compulsory process if the request does not establish reasonable

grounds for believing that the offense in question occurred. Such a

showing is routinely required by the U.S. Department of Justice before it authorizes the issuance of subpoenas. However, this specific

language was added to provide assurances to the Belizean Government that all requests for such measures would be justified by the

facts reflected on the face of the request.

Article 3(2) obligates the Requested State to consider imposing

appropriate conditions on its assistance in lieu of denying a request

outright pursuant to the first paragraph of the article. For example, a State might request information which could be used either

in a routine criminal case (which would be within the scope of the

Treaty) or in a politically motivated prosecution (which would be

subject to refusal under the Treaty’s terms). This paragraph would

permit the Requested State to provide the information on the condition that it be used only in the routine criminal case. The Requested State would notify the Requesting State of any proposed

conditions before actually delivering the evidence in question,

thereby according the Requesting State an opportunity to indicate

whether it is willing to accept the evidence subject to the conditions. If the Requesting State does accept the evidence subject to

the conditions, it must honor the conditions.

Article 3(3) effectively requires that the Central Authority of the

Requested State promptly notify the Central Authority of the Requesting State of the basis for any denial of assistance. This should

avoid misunderstandings, and enable the Requesting State to improve its requests in the future.

ARTICLE 4—FORM AND CONTENT OF REQUESTS

Article 4(1) requires that requests be in writing, except that the

Central Authority of the Requested State may accept a request in

another form in ‘‘emergency situations.’’ A request in another form

must be confirmed in writing within ten days unless the Central

Authority of the Requested State agrees otherwise.

Article 4(2) lists the four kinds of information deemed crucial to

the efficient operation of the Treaty and which must be included

in each request. Article 4(3) outlines kinds of information which are

important but not always crucial, and should be provided ‘‘to the

extent necessary and possible.’’ In keeping with the intention of the

Parties that requests be as simple and straightforward as possible,

there is no requirement that a request be legalized or certified in

any particular manner.

ARTICLE 5—EXECUTION OF REQUESTS

Article 5 requires each Central Authority promptly to execute a

request or to transmit the request to the appropriate authority.

The Parties contemplate that the Central Authority, upon receiving

a request, will first review the request, then promptly notify the

Central Authority of the Requesting State if the request does not

appear to comply with the Treaty’s terms.

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4This paragraph of the Treaty specifically authorizes United States courts to use all of their

powers to issue subpoenas and other process to satisfy a request under the Treaty.

Where the United States is the Requested Party, it is anticipated

that the Central Authority will transmit most executable requests

to federal investigators, prosecutors, or judicial officials for execution.

The second sentence of the first paragraph authorizes and requires the authority selected by the Central Authority, possibly including federal, state, and local agencies in the United States, to

do everything within its power to execute the request. However,

this provision is neither intended nor understood to authorize the

use of the grand jury in the United States for the collection of evidence pursuant to a request from Belize. Rather, it is anticipated

that when a request from Belize requires compulsory process, the

Department of Justice would ask a federal court to issue the necessary process under Title 28, United States Code, Section 1782,

and the provisions of this Treaty. 4

The third sentence in Article 5(1) reflects an understanding that

the Parties intend to provide each other with every available form

of assistance. The Belizean delegation noted that the Government

of Belize has no power to compel the production of otherwise private information outside of Belizean court proceedings pursuant to

foreign requests. However, the Belizean delegation indicated that it

could attempt to begin its own investigation upon receiving evidence of wrongdoing from the United States, compel production of

records, and then attempt to share those records with the United

States. The success of this method is unknown. The Government of

Belize is taking steps to amend its laws to enable gathering of evidence on the basis of foreign requests. Public records always may

be produced.

Article 5(2) relates to costs of representing the Requesting State

in any proceedings in the Requested State. It is also understood

that should the Requesting State choose to hire private counsel for

a particular request, it is free to do so. It is also anticipated that

the United States will be willing to negotiate, to the extent permissible under U.S. law, regarding extraordinary costs which might be

incurred by Belize.

Paragraph 3 is inspired by Article 5(5) of the U.S.-Jamaican

Treaty. It provides that the method of executing a request for assistance under the Treaty must be in accordance with the Requested State’s internal laws absent specific, contrary requirements

in the Treaty itself.

The same paragraph requires that procedures specified in the request shall be followed in the execution of the request except to the

extent that those procedures cannot lawfully be followed in the Requested State. This provision is necessary for two reasons.

First, significant differences may arise between the procedures

which United States and Belizean authorities must follow in collecting evidence in order to assure the admissibility of that evidence at trial.

Second, the value of forensic examinations could be significantly

lessened—and the Requesting State’s investigation could be impacted—if the Requested State were to insist unnecessarily on hanVerDate 11-MAY-2000 19:49 Oct 17, 2002 Jkt 000000 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 10715.XYW SFRELA2 PsN: SFRELA2
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dling the evidence in a manner usually reserved for evidence to be

presented to its own courts.

Article 5(4) states that execution of a request for assistance may

be postponed where the Central Authority of the Requested State

determines that execution would interfere with an ongoing investigation, prosecution or legal proceeding in the Requested State.

The Central Authority of the Requested State may, in its discretion, take such preliminary action as deemed advisable to obtain or

preserve evidence. The paragraph also allows the Requested State

to provide the information on conditions needed to avoid interference with the Requested State’s proceedings.

It is anticipated that some United States requests for assistance

may contain information which under our law must be kept confidential. For example, it may be necessary to set out information

which is ordinarily protected by Rule 6(e) of the Federal Rules of

Criminal Procedure. Article 5(5) of the Treaty enables the Requesting Party to call upon the Requested Party to keep the information

in the request, including the existence of the request, confidential.

If the Requested Party cannot execute the request without disclosing the information in question (as might be the case if execution requires a public judicial proceeding in the Requested Party),

or if for some other reason this confidentiality cannot be assured,

the Treaty obligates the Requested Party to so indicate, thereby

giving the Requesting Party an opportunity to withdraw the request rather than risk jeopardizing an investigation or proceeding

by public disclosure of the information. The Belizean delegation indicated that the Belizean Central Authority will be able to keep the

information contained in a request confidential until the matter is

brought into court; the United States Central Authority can request that the Belizean Central Authority seek a confidentiality

order from the court in Belize.

Article 5(6) is intended to encourage open communication between the two Central Authorities in monitoring the status of specific requests.

ARTICLE 6—COSTS

Article 6 of the Treaty reflects the increasingly accepted international rule that each State shall bear the expenses incurred

within its territory in executing a legal assistance treaty request.

This is consistent with similar provisions in other United States

mutual legal assistance treaties. Article 6 does oblige the Requesting State to pay fees of expert witnesses, translation and transcription costs, and allowances and expenses related to travel of

persons pursuant to Articles 10 and 11. It is also anticipated that

the United States will be willing to negotiate, to the extent permissible under U.S. law, regarding extraordinary costs which might be

incurred by Belize.

Article 4(2)(d) states that the Requesting State must specify the

purpose for which the information or evidence sought under the

Treaty is needed, and the first paragraph of Article 7 states that

information provided under the Treaty may not be used for any

purpose other than purposes related to the criminal offenses stated

in the request without the prior consent of the Requested State.

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Article 7(2) states that the Requested State may request that the

information it provides to the Requesting State be kept confidential

or subject to other conditions. Under most United States mutual

legal assistance treaties, conditions of confidentiality are imposed

only when necessary, and are tailored to fit the circumstances of

each particular case. The Belizean delegation indicated that the

United States could request that an order of confidentiality be

sought in the courts of Belize. Article 7(2) requires that if conditions are imposed, the Requesting State must make ‘‘best efforts’’ to comply with them. This ‘‘best efforts’’ language was used because

the purpose of the Treaty is the production of evidence for use at

trial, and that purpose would be frustrated if the Requested State

could routinely permit the Requesting State to see valuable evidence but impose confidentiality restrictions which prevent the Requesting State from using it.

If the United States Government were to receive evidence under

the Treaty in one case which proved to be exculpatory evidence to

the defendant in another case, the United States might be constitutionally obliged to share the evidence with the defendant in the

second case. See Brady v. Maryland, 373 U.S. 83 (1963). Therefore,

Article 7(3) states that nothing in Article 7 shall preclude the use

or disclosure of information to the extent that there is an obligation

to do so under the Constitution of the Requesting Party in a criminal prosecution. Any such proposed disclosure shall be noticed by

the Requesting Party to the Requested Party in advance.

Article 7(4) states that once evidence obtained under the Treaty

has been revealed to the public in accordance with Article 7(1) or

7(2) of the Treaty, the Requesting State is free to use the evidence

for any purpose. Once evidence obtained under the Treaty has been

revealed to the public in a trial, that information effectively becomes part of the public domain, and is likely to become a matter

of common knowledge, perhaps even described in the press. Once

this has occurred, it is practically impossible for the Central Authority of the Requesting Party to block the use of that information

by third parties.

It should be noted that under Article 1(4) of the Treaty, the restrictions outlined in Article 7 give rise to no rights on the part of

anyone other than the Parties to the Treaty (the United States and

Belize) and, thus, the invocation and enforcement of these provisions are left entirely to the Parties. If any individual alleges that

an authority in Belize is seeking to use information or evidence obtained from the United States in a manner inconsistent with this

article, the recourse would be for that individual to inform the Central Authority of the United States of the allegations for consideration as a matter between the governments.

ARTICLE 8—TESTIMONY OR EVIDENCE IN THE REQUESTED STATE

The first paragraph of Article 8 states that a person in the Requested State shall be compelled, if necessary, to appear and testify

or produce documents, records, or articles of evidence. The compulsion contemplated by this article can be accomplished by subpoena

or any other means available under the law of the Requested State.

The compulsory process obligation is limited by the Requested

State’s laws. Under current Belizean law, documentary and testiVerDate 11-MAY-2000 19:49 Oct 17, 2002 Jkt 000000 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 10715.XYW SFRELA2 PsN: SFRELA2
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5This is consistent with the approach taken in Title 28, United States Code, Section 1782.

monial evidence may be compelled only in the context of a Belizean

court proceeding. Belize is taking steps to amend its laws in this

regard.

The third paragraph provides that persons specified in the request shall be permitted by the Requested State to be present and

pose questions during the taking of testimony under this article.

Such persons may include the defendant and his or her counsel in

criminal cases.

Article 8(4) requires that if a witness attempts to assert a claim

of immunity, incapacity, or privilege under the laws of the Requesting State, the Requested State will take the desired evidence and

turn it over to the Requesting State along with notice that it was

obtained over such a claim. The applicability of the claim can then

be determined in the Requesting State, where the scope of the immunity or privilege and the underlying legislative and policy reasons are best understood.

Despite Article 8(4), Article 5(3) insures that no person would be

compelled to furnish information if he has a right not to do so

under the law of the Requested State. Thus, a witness questioned

in the United States pursuant to a request from Belize is guaranteed the right to invoke any testimonial privileges (attorney-client

privilege, inter-spousal privilege, etc.) available in the United

States, as well as the constitutional privilege against self-incrimination, to the extent that it might apply in the context of evidence

being taken for foreign proceedings. 5 A witness testifying in Belize

may raise any privileges available under Belizean law, including

the privilege against self-incrimination which exists under that

law.

Article 8(5) establishes a procedure for authenticating records in

a manner essentially similar to Title 18, United States Code, Section 3505. The second sentence of the paragraph provides for the

admissibility of authenticated documents as evidence without additional foundation or authentication. With respect to the United

States, this paragraph is self-executing and does not need implementing legislation. However, admissibility will be finally determined by the judicial authority presiding over the trial. Evidentiary tests other than authentication (such as relevance, materiality, etc.) will still have to be satisfied in each case.

ARTICLE 9—RECORDS OF GOVERNMENT AGENCIES

The first paragraph of the article obliges each Party to furnish

the other with copies of publicly available records possessed by a

governmental department or agency in the Requested State. The

term ‘‘government departments and agencies’’ includes all executive, judicial, and legislative units of the federal, state, and local

level in either country.

Article 9(2), regarding sharing nonpublic information, is discretionary, and requests for such information may be denied in whole

or in part. Moreover, the Requested State may only exercise its discretion to turn over such information ‘‘to the same extent and

under the same conditions’’ as it would to its own law enforcement

or judicial authorities. It is intended that the Central Authority of

14

6Thus, this Treaty, like all of the other U.S. bilateral mutual legal assistance treaties, is understood to authorize the provision of tax return information in appropriate circumstances.

the Requested State will determine that extent and what those

conditions would be.

The discretionary nature of this provision was deemed necessary

because government files in each State contain some kinds of information that would be available to investigative authorities in that

State, but that justifiably would be deemed inappropriate to release

to a foreign government. For example, assistance might be deemed

inappropriate where the information requested would identify or

endanger an informant, prejudice sources of information needed in

future investigations, or reveal information that was given to the

Requested State in return for a promise that it not be divulged. Of

course, a request could be denied under this clause if the Requested State’s law bars disclosure of the information.

The U.S. delegation discussed whether this article could serve as

a basis for exchange of information in tax matters. It was the intention of the U.S. delegation that the United States be able to provide assistance under the Treaty in criminal tax matters, and such

assistance could include tax return information when appropriate.

The Belizean delegation indicated that such tax information could

be obtained from the Belizean Ministry of Finance. Accordingly, the

U.S. delegation is satisfied that this Treaty is a ‘‘convention or bilateral agreement relating to the exchange of tax information’’ for

purposes of Title 26, United States Code, Section 6103(k)(4), and

the United States would have the discretion to provide tax return

information to Belize under this article in appropriate cases. 6 The

accompanying exchange of notes indicates that both Parties recognize the need, in many cases, to restrict access to information collected by revenue authorities.

Article 9(3) establishes a procedure for authenticating official foreign records by certification that is consistent with Rule 902(3) of

the Federal Rules of Evidence and Rule 44 of the Federal Rules of

Civil Procedure.

This provision, like Article 8(5), states that documents authenticated under this paragraph shall be ‘‘admissible.’’ It will, of course,

be up to the judicial authority presiding over the trial to determine

whether the evidence should in fact be admitted. Evidentiary tests

other than authentication (such as relevance or materiality) must

be established in each case.

ARTICLE 10—TESTIMONY IN THE REQUESTING STATE

Article 10 provides that, upon request, the Requested State shall

invite persons to travel to the Requesting State to appear, for example to testify. An appearance in the Requesting State under this

article is not mandatory, and the invitation may be refused by the

invited person. The Requesting State would be expected to pay the

expenses of such an appearance pursuant to Article 6 of the Treaty,

and Article 10(1) provides that the witness shall be informed of the

extent of expenses which the Requesting State will pay in a particular case. It is assumed that such expenses would normally include the costs of transportation, room, and board. When a witness

15

is to appear in the United States, a nominal witness fee would also

be provided.

Article 10(2) provides that the Central Authority of the Requesting State shall inform the Central Authority of the Requested State

whether any decision has been made as to whether a person shall

not be subject to service of process or detention for earlier acts or

convictions. It should be noted that safe conduct is limited to acts

or convictions which preceded the witness’s departure from the Requested State. This provision does not prevent the prosecution of

a person for perjury or any other crime committed while in the Requesting State.

The third paragraph states that the safe conduct provided for by

this article expires seven days after the Central Authority of the

Requesting State has notified the Central Authority of the Requested State that the person’s presence is no longer required, or

when the person leaves the territory of the Requesting Party and

thereafter voluntarily returns to it. However, the competent authorities of the Requesting State may extend the safe conduct up

to fifteen days if it determines that there is good cause to do so.

For the United States, the ‘‘competent authority’’ for these purposes would be the Central Authority; for Belize, the Solicitor General would be the appropriate competent authority.

ARTICLE 11—TRANSFER OF PERSONS IN CUSTODY

In some criminal cases, a need arises for the testimony in the

United States of a witness in the custody of another country. In

some instances, the other country is willing and able to ‘‘lend’’ the

witness to the United States Government, provided that the witness would be carefully guarded while in the United States and returned to the Requested State at the conclusion of the testimony.

On occasion, the Department of Justice has been able to arrange

for consenting federal inmates in the United States to be transported to foreign countries to assist in criminal proceedings. Article

11(1) provides an express legal basis for cooperation in such instances.

There have also been recent situations in which a person in custody on a criminal matter has demanded permission to travel to

another country to be present at a deposition being taken there in

connection with a case. Article 11(2) addresses this situation.

The article’s third paragraph provides the obligation and express

authority for the receiving State to maintain such a person in custody throughout his stay there, unless the sending State specifically authorizes release. The paragraph also authorizes the receiving State to return the person in custody to the sending State. The

initial transfer of a prisoner under this article requires the consent

of the person involved and of both Central Authorities, but the provision does not require that the prisoner consent to be returned to

the sending State.

Once the receiving State has agreed to assist the sending State’s

investigation or proceeding pursuant to this article, it would be inappropriate for the receiving State to hold the person transferred

and require extradition proceedings before allowing him to return

to the sending State as agreed. Therefore, Article 11(3)(c) provides

that extradition proceedings will not be required before the status

16

7 Note that while involuntary confessions are not admissible in evidence under Belizean law,

physical evidence that is illegally obtained is admissible. The party whose rights were violated

may seek only civil relief against the Belizean Government for such action. Also, Belizean authorities may conduct warrantless searches for firearms offenses.

quo is restored by the return of the person transferred. Finally, Article 11(3)(d) states that the prisoner will receive credit for time

served while in the custody of the receiving State. This is consistent with United States practice in these matters.

The article does not provide for any specific ‘‘safe conduct’’ for

prisoners transferred under this article because it is anticipated

that the authorities of the two countries will deal with such situations on a case-by-case basis. If the person in custody is unwilling

to transfer without safe conduct assurances, and the requesting

State is unable or unwilling to provide satisfactory assurances in

this regard, the person is free to decline to travel.

ARTICLE 12—LOCATION OR IDENTIFICATION OF PERSONS OR ITEMS

Article 12 requires that the Requested State make ‘‘best efforts’’ to locate or identify persons (such as witnesses, potential defendants, or experts) or items sought by the Requesting State. The Requesting State would be expected to supply all available information about the last known location of any person or item sought.

ARTICLE 13—SERVICE OF DOCUMENTS

This article creates an obligation on the part of the Requested

State to use its best efforts to effect the service of documents such

as summonses, complaints, subpoenas, or other legal papers relating in whole or in part to a Treaty request.

It is expected that when the United States is the Requested

State, in the absence of any request by Belize to follow a specified

procedure for service, service under the Treaty will be made by registered mail, or by the United States Marshal’s Service in instances

where personal service is requested.

ARTICLE 14—SEARCH AND SEIZURE

It is sometimes in the interests of justice for one State to ask another to search for, secure, and deliver articles or objects needed in

the former State as evidence or for other purposes. This article creates a formal framework for handling such a request. Belize will

require implementing legislation to effectuate this article.

The article requires that the search and seizure request include

‘‘information justifying such action under the laws of the Requested

State.’’ This means that normally a request to the United States

from Belize will have to be supported by probable cause for the

search. A United States request to Belize would have to satisfy the

corresponding evidentiary standard there, which was described by

the Belizean delegation to be one of ‘‘reasonable suspicion.’’ 7

The second paragraph of the article is designed to insure that a

record is kept of articles seized and of articles delivered up under

the Treaty. This provision effectively requires that the Requested

State keep detailed and reliable information regarding the condition of the article at the time of seizure, and the chain of custody

between seizure and delivery to the Requesting State.

17

8The Government of Belize can freeze assets in narcotics-related cases; however, the person

whose assets are frozen must be charged with an offense and convicted, and appeals must be

Continued

The article also provides that the certificates describing continuity of custody will be admissible without additional authentication at trial in the Requesting State, thus relieving the Requested

State of the burden, expense, and inconvenience of having to send

its law enforcement officers to the Requesting State to provide authentication and chain of custody testimony each time the Requesting State uses evidence produced pursuant to this article. Nevertheless, the trier of fact is free to bar use of the evidence itself, notwithstanding the certificate, if there is some other reason to do so

aside from authenticity or chain of custody.

ARTICLE 15—RETURN OF ITEMS

This article provides that the Requested State may require the

return of any documents or items of evidence. It is anticipated that

unless original records or articles of significant intrinsic value are

involved, the Requested State will routinely not request return.

ARTICLE 16—ASSISTANCE IN FORFEITURE PROCEEDINGS

A major goal of the Treaty is to enhance the efforts of both the

United States and Belize in combating narcotics trafficking. One

significant strategy in this effort is action by United States authorities to seize and confiscate the money, property, and other proceeds

of drug trafficking.

Article 16 authorizes the Central Authority of one State to notify

the other of the existence in the latter’s territory of proceeds or instrumentalities of offenses that may be forfeitable or otherwise subject to seizure. The term ‘‘proceeds or instrumentalities’’ is intended

to include things such as money, vessels, or other valuables which

either are being used in the crime or were purchased or obtained

as a result of the crime. Upon receipt of notice under this article,

the Central Authority of the State in which the proceeds or instrumentalities are located may take whatever action is appropriate

under its law.

The second paragraph of Article 16 states that the Parties shall

assist one another to the extent permitted by their laws in proceedings relating to the forfeiture of the proceeds and instrumentalities of offenses, to restitution to crime victims, and to the collection of fines imposed as sentences in criminal prosecutions. It specifically recognizes that the authorities in either state may take immediate action to immobilize the assets pending further proceedings. Thus, if the law of the Requested State enables it to seize

assets in aid of a proceeding in the Requesting State or to enforce

a judgment of forfeiture levied in the Requesting State, the Treaty

encourages the Requested State to do so. However, the language of

the article is carefully selected so as not to require either State to

take any action that would exceed its internal legal authority. It

does not mandate institution of forfeiture proceedings or initiation

of temporary immobilization in either country against property

identified by the other if the relevant prosecuting authorities do

not deem it proper to do so. 8 Note that the Government of Belize

18

exhausted, before assets will be forfeited. For Belize to be able to freeze or forfeit assets in other

types of offenses, implementing legislation would be needed. 9Title 18, United States Code, Section 981(i)(1).

has indicated that Belizean courts do not have the authority to enforce forfeiture orders of foreign courts. Belizean courts may order

the forfeiture of assets in narcotics money laundering and trafficking cases within the jurisdiction of Belize.

United States law permits the Government to transfer a share

of certain forfeited property to other countries that participate directly or indirectly in the seizure or forfeiture of the property. The

amount transferred will generally reflect the contribution of the

foreign government in law enforcement activity which led to the

seizure and forfeiture of the property. The law requires that the

transfer be authorized by an international agreement between the

United States and the foreign country, and be approved by the Secretary of State. 9 Article 16(3) is consistent with this framework,

and will enable either Party to transfer forfeited assets, or the proceeds of the sale of such assets, to the other Party to the extent

permitted by their respective laws.

ARTICLE 17—COMPATIBILITY WITH OTHER ARRANGEMENTS

Because of this article, the Treaty leaves the provisions of United

States and Belizean law on letters rogatory completely undisturbed, and does not alter any pre-existing agreements concerning

investigative assistance.

ARTICLE 18—CONSULTATION

Experience has shown that as the parties to a treaty of this kind

work together over the years, they become aware of various practical ways to make the Treaty more effective and their own efforts

more efficient. This article calls upon the States to share those

ideas with one another, and encourages them to agree on the implementation of such measures. Practical measures of this kind

might include methods of keeping each other informed of the

progress of investigations and cases in which Treaty assistance was

utilized, or the use of the Treaty to obtain evidence which might

otherwise be sought under other methods which might be less acceptable in the Requested State. This article also provides for the

possibility of training and technical assistance, as agreed to by the

Parties’ Central Authorities.

It is anticipated that the Central Authorities will conduct annual

consultations pursuant to this article.

ARTICLE 19—RATIFICATION, ENTRY INTO FORCE, AND TERMINATION

This article contains provisions, common among law enforcement

treaties, for ratification, entry into force, effectiveness regarding

earlier acts, and termination.

19

Technical Analysis of the Treaty Between the Government

of the United States of America and the Government of

the Republic of India on Mutual Legal Assistance in

Criminal Matters

On October 17, 2001, the United States signed a Treaty Between

the Government of the United States and the Government of the

Republic of India on Mutual Legal Assistance in Criminal Matters

(‘‘the Treaty’’). In recent years, the United States has signed similar treaties with many other countries, all as part of a highly successful effort to modernize the legal tools available to law enforcement authorities in need of foreign evidence for use in criminal

cases. It is anticipated that the Treaty will be implemented in the

United States pursuant to the procedural framework provided by

Title 28, United States Code, Section 1782. India will enact the

Treaty pursuant to its own domestic laws.

The Office of International Affairs, Criminal Division, United

States Department of Justice, and the Office of the Legal Adviser,

United States Department of State, prepared the following technical analysis of the new Treaty based on their participation in its

negotiation.

As negotiated, the text of the Mutual Legal Assistance Treaty

(MLAT) between the United States and India is substantially similar to other recent modern MLAT texts negotiated by the United

States. Any significant variations or interpretative understandings

reached during the negotiations are noted below.

PREAMBLE

Usually, the preambles to U.S. MLATs contain a general statement of the desire of the Parties to cooperate, without referencing

any specific categories of criminal offenses. However, the Indian

delegation to the treaty negotiations wanted to highlight the applicability of this MLAT to terrorism and other serious criminal matters-an idea readily accepted by the U.S. delegation. Consequently,

the preamble references specifically the Parties’ desire to cooperate

and provide mutual legal assistance in criminal matters, ‘‘including

those relating to terrorism, narcotics trafficking, economic crimes,

and organized crime.’’

ARTICLE 1—SCOPE OF ASSISTANCE

Paragraph 1 contains standard language making clear that the

Parties shall provide the widest measure of mutual assistance in

connection with the investigation, prosecution, prevention, and suppression of offenses, and in proceedings related to criminal matters.

During the negotiations the Indian delegation confirmed the U.S.

view that the MLAT will be available for making requests for investigations when a criminal referral is possible, but when it is unknown at the time of the request whether the case will ultimately

be pursued criminally (e.g., as is sometimes the case in SEC,

CFTC, or Tax Division investigations). Moreover, the Indian delegation confirmed that even if a matter for which assistance has

been sought ends up being pursued civilly or administratively, so

long as it is in essence the same matter for which the request was

made and for which the criminal route was a possibility at the time

20

of the request, the requesting U.S. entities can then use the evidence India has provided under the MLAT in those civil or administrative proceedings. India will interpret ‘‘proceedings related to

criminal matters’’ as encompassing such civil or administrative proceedings, and no further request or permission is required. Finally,

it is worth noting that, consistent with other MLATs, the negotiators agreed that this Treaty is a ‘‘convention’’ under Title 26,

United States Code, Section 6103(k)(4), pursuant to which the

United States may exchange tax information with treaty partners.

ARTICLE 2—CENTRAL AUTHORITIES

The U.S. delegation agreed to accept the ‘‘Ministry of Home Affairs, or a person designated by the Ministry of Home Affairs’’ as

the Indian Central Authority under the treaty. However, the Indian delegation assured the U.S. delegation that India will designate a particular office within the Ministry to make and receive

requests, and to serve as the primary point of contact for the U.S.

Justice Department’s Office of International Affairs.

ARTICLE 3—LIMITATIONS ON ASSISTANCE

The Indian delegation proposed dropping the entire reference to

‘‘political offenses’’ as a discretionary grounds for the denial of assistance. India wanted to ensure that assistance in a terrorism

matter would never be denied on ‘‘political offense’’ grounds. The

U.S. shared India’s interest in ensuring that assistance in terrorism cases would never be denied on such a basis, and agreed to

address the issue by making it clear in the treaty that crimes covered by a multilateral convention to which both India and the

United States are party shall not be considered political offenses.

Paragraph 2 of this article lists those multilateral conventions to

which both India and the United States are party, and makes clear

that crimes covered by those and future such conventions shall not

be deemed political offenses for purposes of denying assistance.

This language is almost identical to that contained in the recently

approved and now in force extradition treaty with India.

ARTICLE 5—EXECUTION OF REQUESTS

Paragraph 3 of this article, which contains language standard to

many U.S. MLATs, was the basis for extensive discussion between

the U.S. and Indian delegations. That paragraph reads, ‘‘Requests

shall be executed in accordance with the laws of the Requested

State, except to the extent that this Treaty provides otherwise. The

method of execution specified in the request shall be followed except insofar as it is prohibited by the laws of the Requested State.’’

The first sentence of that paragraph is important to the United

States, to ensure that, in the event of a conflict between existing

law and the treaty, the treaty will prevail. That language also prevents India from unilaterally revising the scope of its obligations

under the treaty by simply enacting conflicting legislation at some

later date. However, India did not want to agree to undertake obligations not currently provided for by its domestic laws. After considerable discussion during the negotiations, and an exchange of

21

written correspondence after the face to face talks, India agreed to

the U.S. formulation.

Paragraph 4 of this Article is unusual in a U.S. Mutual Legal Assistance Treaty. It states, ‘‘The Requested State shall not decline

execution of a request on the ground of bank secrecy’’. Bank secrecy

is not a ground for denial of a request in any bilateral U.S. MLAT.

However, normally MLATs state all the bases for denial, and because bank secrecy is never listed as such a basis, it is clear without further reference that a request shall not be denied on the

grounds of bank secrecy. Yet the Indian delegation stated that affirmatively stating this point in the text of the treaty would help

ensure that U.S. requests for assistance would never be denied

based on the grounds of bank secrecy in India. Consequently, the

United States agreed to the inclusion of this provision.

ARTICLE 8—TESTIMONY OR EVIDENCE IN THE REQUESTED STATE

Paragraph 3 states that the Requested State shall permit the

presence of specified persons during the execution of a request, and

shall allow such persons to ‘‘pose questions to be asked of the person giving the testimony or evidence.’’ Despite the U.S. preference

for doing so, the Indian delegation indicated that given current Indian law, U.S. authorities will likely not be permitted to directly

question witnesses in India. However, they agreed that, pursuant

to this provision of the Treaty, questions ‘‘posed’’ by U.S. authorities will be asked by Indian law enforcement or judicial authorities.

ARTICLE 10—APPEARANCE OUTSIDE THE REQUESTED STATE

Paragraph 2 contains a ‘‘safe conduct’’ provision for persons who

appear in the Requesting State pursuant to this Article. Although

it is the preference of the United States to make the granting of

safe conduct a matter of Requesting State discretion, the Indian

delegation indicated that it was extremely important for India that

such safe conduct be mandatory. Consequently, the United States

agreed, as it has in several of our other MLATs in which our treaty

partners have insisted upon mandatory language, to the wording

contained in this paragraph. It reads, ‘‘A person appearing in the

Requesting State pursuant to this article shall not be subject to

service of process, or be detained or subjected to any restriction of

personal liberty, by reason of any acts or convictions which preceded that person’s departure from the Requested State.’’

FORMS

The Indian delegation indicated that while the forms included in

the treaty are acceptable for requests to India from the United

States, it is likely that in requests from India to the United States,

India will specify different procedures, consistent with Indian rules

of evidence and procedure, for authenticating records and demonstrating chain of custody.

22

Technical Analysis of the Treaty Between the Government

of the United States of America and the Government of

Ireland on Mutual Legal Assistance in Criminal Matters

On January 18, 2001, the United States signed a Treaty Between

the Government of the United States of America and the Government of Ireland on Mutual Legal Assistance in Criminal Matters

(‘‘the Treaty’’). In recent years, the United States has signed similar treaties with many other countries, all as part of a highly successful effort to modernize the legal tools available to law enforcement authorities in need of foreign evidence for use in criminal

cases. The Treaty with Ireland is an advance for the United States

in its attempts to win the cooperation of all countries in combating

organized crime, transnational terrorism, international drug trafficking, and other crimes. It is anticipated that the Treaty will be

implemented in the United States pursuant to the procedural

framework provided by Title 28, United States Code, Section 1782.

Ireland will enact the Treaty pursuant to its own domestic laws.

The Office of International Affairs, Criminal Division, United

States Department of Justice, and the Office of the Legal Adviser,

United States Department of State, prepared the following technical analysis of the new Treaty based on their participation in its

negotiation.

ARTICLE 1—SCOPE OF ASSISTANCE

The first Article of the Treaty is a standard provision in United

States mutual legal assistance treaties (MLATs) and provides for

assistance in all matters involving the investigation, prosecution,

and prevention of offenses, and in proceedings relating to criminal

matters. In paragraph 2, the Article sets forth a non-exhaustive list

of major types of assistance specifically considered by the Treaty

negotiators. This list varies from the standard language in some

MLATs in that it does not include a reference to the Parties providing assistance in proceedings related to restitution and the collection of fines. This variance was made because the Irish delegation explained, that although their government can provide assistance in determining the existence or location of assets involving the

collection of fines or the enforcement of restitution orders, they cannot collect fines or restitution on behalf of another country. This

limitation is not uncommon and references to providing assistance

in proceedings related to restitution and the collection of fines is

not included in many MLATs, for example, those with the United

Kingdom and Antigua.

The concluding subparagraph of this list reflects the standard

language in most United States MLATs except that the negative

connotation implied by the use of the word ‘‘not’’ as used in the

phrase ‘‘Assistance shall include . . . any other form of assistance

not prohibited by the laws of the Requested Party,’’ was deleted

and language similar to that used in the corresponding Article in

the MLAT with the United Kingdom was used—‘‘Assistance shall

include . . . such other assistance as may be agreed between Central Authorities.’’

The third paragraph of this Article is intended to make it clear

that there is no general requirement of dual criminality, i.e., proof

23

1The Assistant Attorney General for the Criminal Division has in turn redelegated the authority to the Deputy Assistant Attorneys General and to the Director of the Criminal Division’s Office of International Affairs, in accordance with the regulation. Directive No. 81, 44 FR 18661,

March 29, 1979, as amended at 45 FR 6541, January 29, 1980; 48 FR 54595, Dec. 6, 1983. This

authority is further delegated to Deputy Directors.

that the facts underlying the offense charged under the laws in the

Requesting Party would also constitute an offense had they occurred in the territory of the Requested Party. Thus, the Requested

Party may provide assistance to the Requesting Party even when

the criminal matter under investigation would not be a crime

under the laws of the Requested Party. Although the Irish delegation stated that dual criminality would not be a requirement under

the Treaty, the language ‘‘except when required by the law of the

Requested Party’’ was included to recognize that Irish law requires

a different procedure to execute a request from the United States

on the rare occasions when dual criminality does not exist.

Paragraph four of this Article contains a standard provision of

U.S. MLATs, which states that the Treaty is intended solely for

government-to-government mutual legal assistance. Similarly, the

paragraph provides that the Treaty is not intended to create any

right in a private person to suppress or exclude evidence, or to impede the execution of a request.

ARTICLE 2—CENTRAL AUTHORITIES

Article 2 of the Treaty is a standard provision in United States

MLATs and requires that each Party establish a ‘‘Central Authority.’’ The Central Authority is responsible for the transmission, reception, handling of treaty requests, and insuring that a timely response is made.

The second paragraph of the Article provides that the Attorney

General or a person designated by the Attorney General will be the

Central Authority for the United States. The Attorney General has

delegated the duties of the Central Authority under mutual legal

assistance treaties to the Assistant Attorney General in charge of

the Criminal Division, pursuant to 28 C.F.R. § 0.64–1. 1 The Office

of International Affairs, Criminal Division, Department of Justice,

will make all requests on behalf of the United States, and review

all requests on behalf of Ireland. The United States Attorneys’ Offices and law enforcement agencies will execute requests on behalf

of Ireland.

Article 2(2) of the Treaty also states that the Minister for Justice, Equality and Law Reform of Ireland or the person designated

by him or her will serve as the Central Authority for Ireland.

The third paragraph states that the Central Authorities shall

communicate directly with one another for the purposes of the

Treaty. It is anticipated that such communication will be accomplished by telephone, telefax, law enforcement channels, or any

other means, at the option of the Central Authorities.

ARTICLE 3—LIMITATIONS ON ASSISTANCE

Article 3 specifies the limited classes of cases in which assistance

may be denied under the Treaty.

Article 3(1)(a) permits the Requested Party to deny the request

if execution of the request would prejudice the sovereignty, the seVerDate 11-MAY-2000 19:49 Oct 17, 2002 Jkt 000000 PO 00000 Frm 00023 Fmt 6659 Sfmt 6602 10715.XYW SFRELA2 PsN: SFRELA2
24

curity or other essential interests, or would be contrary to important public policy of the State. The term ‘‘important public policy’’ in Article 3(1)(a) would include a Requested Party’s policy of opposing the exercise of jurisdiction which in its view is extraterritorial

and objectionable. In this regard, the Irish delegation made it clear

that, like the Government of the United Kingdom, the Government

of Ireland may object to certain extraterritorial exercises of United

States jurisdiction, and retains the right to deny, pursuant to Article 3(1)(a) of the Treaty, a United States request for assistance

made in connection with an exercise of extraterritorial jurisdiction.

For example, in what are known as ‘‘re-export cases,’’ (that is,

where companies attempt to avoid export restrictions to a country

by first exporting the goods to a country to which those restrictions

do not apply) the Irish delegation advised that these cases would

be closely scrutinized and it was possible that assistance could be

denied under the ‘‘important public policy’’ clause of 3(1)(a).

Article 3(1)(b) bars assistance under the Treaty if the target of

the investigation or the defendant in the case had previously been

tried and convicted or acquitted on the same facts outlined in the

request. This approach is similar to the concept of non bis in idem

in international extradition treaties. This Article shall not affect

the availability of assistance in respect of other participants in the

offense for which assistance is requested who would not be entitled

to be discharged on the grounds of a previous acquittal or conviction. A similar provision is found in the MLATs with the United

Kingdom and the Bahamas.

Article 3(1)(c)(i), a standard provision in United States MLATs,

permits the Requested Party to deny the request if it relates to a

political offense. Article (3)(1)(c)(ii), also a standard provision, permits denial if the offense is a military offense. These restrictions

are similar to those found in other MLATs. It is anticipated that

the Central Authorities will employ jurisprudence similar to that

used in the extradition context for the application of these provisions.

Article 3(2) obligates the Requested Party to consider imposing

appropriate conditions on providing assistance in lieu of denying a

request outright pursuant to the first paragraph of the Article. For

example, a Party might request information that could be used either in a routine criminal case (which would be within the scope

of the Treaty) or in a case that would be subject to refusal under

the Treaty’s terms. This paragraph would permit the Requested

Party to provide the information on the condition that it be used

only in the routine criminal case. Naturally, the Requested Party

would notify the Requesting Party of any proposed conditions before actually delivering the evidence in question, thereby according

the Requesting Party an opportunity to indicate whether it is willing to accept the evidence subject to the conditions. If the Requesting Party does accept the evidence subject to the conditions, it

must honor the conditions.

ARTICLE 4—FORM AND CONTENTS OF REQUESTS

Article 4(1) is a standard provision in United States MLATs and

requires that requests be made in writing, except that the Central

Authority of the Requested Party may accept a request in another

25

form in ‘‘emergency situations.’’ A request in another form must be

confirmed in writing within ten days unless the Central Authority

of the Requested Party agrees otherwise. Article 4(1) also requires

that requests shall be submitted in ‘‘an official language’’ rather

than in the ‘‘the official language’’ as stated in most MLATs. This

is because Ireland has two official languages. It was agreed that all

requests made to the United States will be made in English and

that all requests made to Ireland will be made in English or Irish,

but in any event, the United States cannot be required to make requests to Ireland in Irish.

Article 4(2) and (3) are standard provisions in United States

MLATs. Article 4(2) lists the four kinds of information that are

deemed crucial to the efficient operation of the Treaty and must be

included in each request. Article 4(3) outlines the kind of information that is important, but not always crucial, and should be provided ‘‘to the extent necessary and possible.’’

Article 4(4) adds the provision that the Requested Party may ask

the Requesting Party to provide any information that appears to

the Requested Party to be necessary to execute the request. This

language also appears in the MLAT with the United Kingdom.

ARTICLE 5—EXECUTION OF REQUESTS

The first paragraph of Article 5 is a standard provision in United

States MLATs and provides that the Central Authorities shall execute promptly requests from the Requesting Party and that the

courts of the Requested Party use their authority to execute those

requests. The first paragraph also provides that ‘‘The Courts of the

Requested Party shall have authority to issue subpoenas, search

warrants, or other orders necessary to execute the request.’’ The

Irish delegation sought to clarify that the language of this paragraph does not purport to bestow powers on Irish courts that they

would not otherwise possess. The U.S. delegation agreed that it did

not.

Articles 5(2) and (3) are standard provisions in United States

MLATs. They provide that the Central Authority of the Requested

Party shall represent in the territory of the Requested Party the

Requesting Party in any proceedings arising out of a request for assistance. In addition, the request will be executed in the manner

specified in the request unless that manner is incompatible with

the laws and practices of the Requested Party.

Article 5(4) is a standard provision in United States MLATs and

provides that the Requested Party may postpone execution or make

execution of a request subject to conditions if the execution of the

request would interfere with an ongoing criminal investigation or

proceeding in the Requested State. The delegations added language

that would also allow the Requested State to postpone the execution of a request, or make the execution of a request subject to conditions, if to not do so would prejudice the safety of any person.

Article 5(5) provides that the presence of persons named in a request shall be facilitated by the Requested Party in accordance

with its law and practice. Similar language appears in the MLAT

with the United Kingdom and is designed to promote the presence

of prosecutors and law enforcement authorities in the Requested

26

State in cases where their presence would assist the Requested

Party in executing the request.

Articles 5(6), (7) and (8) are standard provisions in United States

MLATs. They state that the Requested Party must, upon request,

keep a request made under the Treaty confidential, must respond

to reasonable inquiries from the Requesting Party and may ask the

Requesting Party to provide information in such form as may be

necessary to execute the request.

Articles 5(9), (10) and (11) are also standard provisions in United

States MLATs. Article 5(9) states that the Requesting Party shall

promptly inform the Requested Party of any circumstances that

may make it inappropriate to proceed with the execution of the request. Article 5(10) states that the Requested Party shall promptly

inform the Central Authority of the Requesting Party of any circumstances that may cause a significant delay in executing the request. Article 5(11) states that the Requested Party shall promptly

inform the Requesting Party of the outcome of the execution of the

request, and if the request is denied, the reasons for the denial.

ARTICLE 6—COSTS

Article 6 is consistent with similar provisions in other United

States MLATs and reflects the rule that each Party shall bear the

ordinary expenses of executing legal assistance requests. It also

states that the Parties should consult as to the terms under which

a request should be executed if extraordinary expenses will be incurred.

ARTICLE 7—LIMITATIONS ON USE

Article 7(1) is a standard provision in United States MLATs and

states that the Requesting Party must specify the purpose for

which the information sought under the Treaty is needed, and that

the Requesting Party may not use the information for any other

purpose without the consent of the Requested Party. The language

stating that the Requested Party may impose a limitation that the

Requesting Party may not use the information for any other purpose other than that specified in the request has been used in some

of the newer MLATs.

This language was adopted by the delegations because, under

Irish law, the Irish Central Authority cannot provide information

to a foreign government unless the Treaty provides that the information will not be used for any purpose other than the one for

which it was requested. The Irish delegation assured the United

States delegation that Irish law will not limit subsequent use of information it provides to the United States pursuant to the Treaty

because the Central Authority may give permission for subsequent

use, and would do so in all but the most unusual of cases.

Article 7(2) is a standard provision in United States MLATs and

permits a Requesting Party to disclose information obtained pursuant to the Treaty if there is a requirement to do so by the constitution of the Requesting Party in a criminal prosecution. This provision is designed to permit the United States to provide exculpatory

27

evidence to a defendant in a criminal prosecution. See, Brady v.

Maryland, 373 U.S.83 (1963).

ARTICLE 8—TESTIMONY OR EVIDENCE IN THE REQUESTED PARTY

Article 8 is a standard provision in United States MLATs and

states that a person in the Requested State shall be compelled, if

necessary, to appear and testify or produce evidence. The standard

MLAT language that states that a person shall be compelled has

been modified in this Treaty to state that a person may be compelled. This modification was made because the Irish delegation explained that the word shall could be interpreted to give specific instructions to the Irish Courts. The Irish delegation explained that

this change is necessary even though they have the ability to compel testimony on behalf of the United States and will use this

power, if necessary.

Article 8(2) is a standard procedural provision in United States

MLATs providing that, upon request, the Requested State shall

furnish information in advance about the date and place of the taking of testimony or evidence.

Article 8(3) is also a standard provision in United States MLATs

and permits the presence of persons specified in the request during

the execution of the request, and shall allow such persons to ask

questions directly of the witness or indirectly through a legal representative qualified to appear before the courts of the Requested

Party. The latter clause was added because in certain situations

questions to a witness must be asked by a member of the Irish bar.

The introductory language ‘‘In accordance with its laws and practices’’ was added at the request of the Irish delegation so that the

Treaty cannot be interpreted to infer rights upon United States

representatives who are present at the execution of a request that

would not normally be inferred upon Irish prosecutors and investigators.

Article 8(4) states that if a witness asserts a claim of immunity,

incapacity, or privilege under the laws of the Requesting State, the

Requested State will take the desired evidence and turn it over to

the Requesting State along with notice that it was obtained over

a claim of privilege. The applicability of the privilege can then be

determined in the Requesting State, where the scope of the privilege and the legislative and policy reasons underlying the privilege

are best understood.

Article 8(5) is a standard provision in United States MLATs and

states that evidence produced pursuant to this Treaty may be authenticated by an attestation, and references forms appended to the

Treaty that may be used for this purpose.

ARTICLE 9—RECORDS OF GOVERNMENT AGENCIES

Article 9 is a standard provision in United States MLATs and

states that the Requested Party shall provide the Requesting Party

with copies of publicly available documents and may share with its

Treaty partner copies of nonpublic information in government files

to the same extent it would with its own law enforcement or judicial authorities. Article 9 also states that this information may be

28

authenticated by an attestation, and references the forms appended

to the Treaty that may be used for this purpose.

ARTICLE 10—TESTIMONY IN THE TERRITORY

OF THE REQUESTING PARTY

Article 10 is a standard provision in United States MLATs and

provides for witnesses who are located in the territory of the Requested Party and who are needed to testify in the territory of the

Requesting Party to travel voluntarily to the territory of the Requesting Party for that purpose and to be granted safe passage by

the Requesting Party.

ARTICLE 11—TRANSFER OF PERSONS IN CUSTODY

Article 11 is a standard procedural provision in United States

MLATs that provides for the transfer of persons in custody in the

territory of the Requested Party to the territory of the Requesting

Party to provide assistance under the Treaty.

ARTICLE 12—LOCATION OR IDENTIFICATION OF PERSONS OR ITEMS

Article 12 is a standard provision in United States MLATs and

states that the Requested Party shall use its best efforts to locate

or identify persons or items specified in a request from the Requesting Party.

ARTICLE 13—SERVICE OF DOCUMENTS

Article 13 is a standard provision in United States MLATs and

sets out procedures whereby the Requested Party shall use its best

efforts to effect service of documents pursuant to requests made

under the Treaty.

ARTICLE 14—SEARCH AND SEIZURE

Article 14 is a standard provision in United States MLATs and

obligates the Parties to search for, secure, and deliver items needed

by the other Party as evidence or for other purposes. This Article

requires that a search and seizure request include ‘‘information justifying such action under the laws of the Requested Party.’’ Thus,

a request from Ireland to the United States will have to be supported by probable cause to conduct the search. A request from the

United States will have to satisfy the corresponding Irish evidentiary standard.

The Irish delegation requested that language that states that

searches and seizures be ‘‘carried out in accordance with the law

of that [Requested] Party,’’ be added to reiterate this important requirement, as outlined in Article 5.

The remainder of the Article states that a certificate describing

the continuity of custody will be admissible without further authentication at trial in the court of the Requested Party.

The final paragraph of the Article states that the Requested

Party may require that the Requesting Party agree to terms and

conditions necessary to protect the interests of third parties.

29

ARTICLE 15—RETURN OF ITEMS

This procedural Article provides that any documents or items of

evidence furnished under the Treaty must be returned to the Requested Party as soon as possible. The standard MLAT language

states that this requirement applies only if the Central Authority

of the Requested Party specifically requests it at the time that the

items are delivered to the Requesting Party. However, because

Irish law makes the return of items mandatory unless the Central

Authority provides a waiver, the language of this Article states

that the return of the documents or items is mandatory unless the

requirement is waived by the Requested Party. The Irish delegation explained that they will not usually request the return of bank

documents and the Irish Central Authority will include a standard

waiver when they transmit bank records to the United States.

ARTICLE 16—ASSISTANCE IN FORFEITURE PROCEEDINGS

Article 16 has become a standard provision in United States

MLATs. The first paragraph authorizes the Central Authority of

one Party to notify the Central Authority of the other Party of the

existence in the latter’s territory of proceeds or instrumentalities of

offenses that may be forfeitable or otherwise subject to seizure.

The second paragraph of this Article states that the Parties shall

assist one another to the extent permitted by their law in proceedings related to forfeiture. The standard MLAT language also

requires the Parties to assist one another in proceedings related to

restitution to crime victims or the collection of fines imposed as

sentences in criminal convictions. Because Irish law does not permit Irish authorities to freeze assets to facilitate the recovery of assets for the satisfaction of fines or restitution orders, this language

was not included.

The third paragraph of Article 16 has also become a standard

provision in United States MLATs. It enables the transfer of forfeited assets, or the proceeds of the sale of such assets, to the other

Party, to the extent permitted by the respective laws of the Parties.

ARTICLE 17—COMPATIBILITY WITH OTHER ARRANGEMENTS

This Article is a standard provision in United States MLATs and

states that assistance and procedures provided for by this Treaty

do not prevent the Parties from providing assistance to each other

by other means.

ARTICLE 18—CONSULTATION

Article 18 is a standard provision in United States MLATs and

states that the Parties shall consult with each other to make the

Treaty effective. It is anticipated that consultations will be held annually.

ARTICLE 19—RATIFICATION, ENTRY INTO FORCE, AND TERMINATION

Article 19 is a standard provision in United States MLATs that

outlines the procedures for ratification, entry into force, and termination of the Treaty.

30

VIII. TEXT OF RESOLUTIONS OF ADVICE AND CONSENT TO

RATIFICATION

Treaty with Belize

Resolved (two-thirds of the Senators present concurring therein),

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE TREATY

WITH BELIZE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL

MATTERS, SUBJECT TO AN UNDERSTANDING AND CONDITIONS.

The Senate advises and consents to the ratification of the Treaty

Between the Government of the United States of America and the

Government of Belize on Mutual Legal Assistance in Criminal Matters, signed at Belize, on September 19, 2000, and a related exchange of notes (Treaty Doc. 107–13; in this resolution referred to

as the ‘‘Treaty’’), subject to the understanding in section 2 and the

conditions in section 3.

SEC. 2. UNDERSTANDING.

The advice and consent of the Senate under section 1 is subject

to the following understanding, which shall be included in the instrument of ratification:

PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL CRIMI- NAL COURT.—The United States shall exercise its rights to

limit the use of assistance that it provides under the Treaty so

that any assistance provided by the Government of the United

States shall not be transferred to or otherwise used to assist

the International Criminal Court unless the treaty establishing

the Court has entered into force for the United States by and

with the advice of the Senate in accordance with Article II,

Section 2 of the United States Constitution, or unless the

President has waived any applicable prohibition on provision of

such assistance in accordance with applicable United States

law.

SEC. 3. CONDITIONS.

The advice and consent of the Senate under section 1 is subject

to the following conditions:

(1) LIMITATION ON ASSISTANCE.—Pursuant to the right of the

United States under the Treaty to deny legal assistance that

would prejudice the essential public policy or interests of the

United States, the United States shall deny any request for

such assistance if the Central Authority of the United States

(as designated in Article 2(2) of the Treaty), after consultation

with all appropriate intelligence, anti-narcotic, and foreign policy agencies, has specific information that a senior Government

official of the requesting party who will have access to information to be provided as part of such assistance is engaged in a

felony, including the facilitation of the production or distribution of illegal drugs.

(2) SUPREMACY OF THE CONSTITUTION.—Nothing in the Treaty requires or authorizes legislation or other action by the

United States that is prohibited by the Constitution of the

United States as interpreted by the United States.

31

Treaty with India

Resolved (two-thirds of the Senators present concurring therein),

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE TREATY

WITH INDIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL

MATTERS, SUBJECT TO AN UNDERSTANDING AND CONDITIONS.

The Senate advises and consents to the ratification of the Treaty

Between the Government of the United States of America and the

Government of the Republic of India on Mutual Legal Assistance

in Criminal Matters, signed at New Delhi on October 17, 2001

(Treaty Doc. 107–3; in this resolution referred to as the ‘‘Treaty’’),

subject to the understanding in section 2 and the conditions in section 3.

SEC. 2. UNDERSTANDING.

The advice and consent of the Senate under section 1 is subject

to the following understanding, which shall be included in the instrument of ratification:

PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL CRIMINAL COURT.—The United States shall exercise its rights to

limit the use of assistance that it provides under the Treaty so

that any assistance provided by the Government of the United

States shall not be transferred to or otherwise used to assist

the International Criminal Court unless the treaty establishing

the Court has entered into force for the United States by and

with the advice of the Senate in accordance with Article II,

Section 2 of the United States Constitution, or unless the

President has waived any applicable prohibition on provision of

such assistance in accordance with applicable United States

law.

SEC. 3. CONDITIONS.

The advice and consent of the Senate under section 1 is subject

to the following conditions:

(1) LIMITATION ON ASSISTANCE.—Pursuant to the right of the

United States under the Treaty to deny legal assistance that

would prejudice the essential public policy or interests of the

United States, the United States shall deny any request for

such assistance if the Central Authority of the United States

(as designated in Article 2(2) of the Treaty), after consultation

with all appropriate intelligence, anti-narcotic, and foreign policy agencies, has specific information that a senior Government

official of the requesting party who will have access to information to be provided as part of such assistance is engaged in a

felony, including the facilitation of the production or distribution of illegal drugs.

(2) SUPREMACY OF THE CONSTITUTION.—Nothing in the Treaty requires or authorizes legislation or other action by the

United States that is prohibited by the Constitution of the

United States as interpreted by the United States.

32

Treaty with Ireland

Resolved (two-thirds of the Senators present concurring therein),

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE TREATY

WITH IRELAND ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL

MATTERS, SUBJECT TO AN UNDERSTANDING AND CONDITIONS.

The Senate advises and consents to the ratification of the Treaty

Between the Government of the United States of America and the

Government of Ireland on Mutual Legal Assistance in Criminal

Matters, signed at Washington on January 18, 2001 (Treaty Doc.

107–9; in this resolution referred to as the ‘‘Treaty’’), subject to the

understanding in section 2 and the conditions in section 3.

SEC. 2. UNDERSTANDING.

The advice and consent of the Senate under section 1 is subject

to the following understanding, which shall be included in the instrument of ratification:

PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL CRIMINAL COURT.—The United States shall exercise its rights to

limit the use of assistance that it provides under the Treaty so

that any assistance provided by the Government of the United

States shall not be transferred to or otherwise used to assist

the International Criminal Court unless the treaty establishing

the Court has entered into force for the United States by and

with the advice of the Senate in accordance with Article II,

Section 2 of the United States Constitution, or unless the

President has waived any applicable prohibition on provision of

such assistance in accordance with applicable United States

law.

SEC. 3. CONDITIONS.

The advice and consent of the Senate under section 1 is subject

to the following conditions:

(1) LIMITATION ON ASSISTANCE.—Pursuant to the right of the

United States under the Treaty to deny legal assistance that

would prejudice the essential public policy or interests of the

United States, the United States shall deny any request for

such assistance if the Central Authority of the United States

(as designated in Article 2(2) of the Treaty), after consultation

with all appropriate intelligence, anti-narcotic, and foreign policy agencies, has specific information that a senior Government

official of the requesting party who will have access to information to be provided as part of such assistance is engaged in a

felony, including the facilitation of the production or distribution of illegal drugs.

(2) SUPREMACY OF THE CONSTITUTION.—Nothing in the Treaty requires or authorizes legislation or other action by the

United States that is prohibited by the Constitution of the

United States as interpreted by the United States.

33

Treaty with Liechtenstein

Resolved (two-thirds of the Senators present concurring therein),

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE TREATY

WITH LIECHTENSTEIN ON MUTUAL LEGAL ASSISTANCE IN

CRIMINAL MATTERS, SUBJECT TO AN UNDERSTANDING AND

CONDITIONS.

The Senate advises and consents to the ratification of the Treaty

Between the Government of the United States of America and the

Principality of Liechtenstein on Mutual Legal Assistance in Criminal Matters, and a related exchange of notes, signed at Vaduz on

July 8, 2002 (Treaty Doc. 107–16; in this resolution referred to as

the ‘‘Treaty’’), subject to the understanding in section 2 and the

conditions in section 3.

SEC. 2. UNDERSTANDING.

The advice and consent of the Senate under section 1 is subject

to the following understanding, which shall be included in the instrument of ratification:

PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL CRIMINAL COURT.—The United States shall exercise its rights to

limit the use of assistance that it provides under the Treaty so

that any assistance provided by the Government of the United

States shall not be transferred to or otherwise used to assist

the International Criminal Court unless the treaty establishing

the Court has entered into force for the United States by and

with the advice of the Senate in accordance with Article II,

Section 2 of the United States Constitution, or unless the

President has waived any applicable prohibition on provision of

such assistance in accordance with applicable United States

law.

SEC. 3. CONDITIONS.

The advice and consent of the Senate under section 1 is subject

to the following conditions:

(1) LIMITATION ON ASSISTANCE.—Pursuant to the right of the

United States under the Treaty to deny legal assistance that

would prejudice the essential public policy or interests of the

United States, the United States shall deny any request for

such assistance if the Central Authority of the United States

(as designated in Article 2(2) of the Treaty), after consultation

with all appropriate intelligence, anti-narcotic, and foreign policy agencies, has specific information that a senior Government

official of the requesting party who will have access to information to be provided as part of such assistance is engaged in a

felony, including the facilitation of the production or distribution of illegal drugs.

(2) SUPREMACY OF THE CONSTITUTION.—Nothing in the Treaty requires or authorizes legislation or other action by the

United States that is prohibited by the Constitution of the

United States as interpreted by the United States.

Æ