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[Senate Hearing 109-342]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 109-342
 
                                TREATIES

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

                                HEARING

                               BEFORE THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 15, 2005

                               __________

       Printed for the use of the Committee on Foreign Relations

                   Available via the World Wide Web:
      http://www.access.gpo.gov/congress/senate/senate11sh109.html

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                     COMMITTEE ON FOREIGN RELATIONS

                  RICHARD G. LUGAR, Indiana, Chairman

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

                                  (ii)

  
?

                            C O N T E N T S

                              ----------                              
                                                                   Page
Dodd, Hon. Christopher J., U.S. Senator from Connecticut, opening 
  statement......................................................     2
    Prepared statement...........................................     3

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

Warlow, Mary Ellen, director, Office of International Affairs, 
  Criminal Division, Department of Justice.......................    10

    Prepared statement...........................................    11

Witten, Samuel M., deputy legal adviser, Department of State.....     5

    Prepared statement...........................................     7

                               APPENDIXES
APPENDIX I--RESPONSES TO ADDITIONAL QUESTIONS SUBMITTED FOR THE RECORD 
                      BY MEMBERS OF THE COMMITTEE

                     Questions From Chairman Lugar

Responses to Additional Questions Submitted for the Record by 
  Senator Lugar to Samuel Witten, U.S. Department of State, and 
  Mary Ellen Warlow, U.S. Department of Justice..................    27

    Extradition Treaty between the United States of America and 
      the United Kingdom of Great Britain and Northern Ireland 
      (Treaty No. 108-23)........................................    27

    Protocol between the Government of the United States and the 
      Government of the State of Israel Amending the Convention 
      on Extradition (Treaty No. 109-3)..........................    32

    Treaty between the United States of America and Germany on 
      Mutual Legal Assistance in Criminal Matters (Treaty No. 
      108-27)....................................................    32

    Treaty between the United States of America and Japan on 
      Mutual Legal Assistance in Criminal Matters (Treaty No. 
      108-12)....................................................    33

                      Questions From Senator Biden

Responses to Additional Questions Submitted for the Record by 
  Senator Biden to Samuel Witten, U.S. Department of State, and 
  Mary Ellen Warlow, U.S. Department of Justice..................    33

    Extradition Treaty between the United States of America and 
      the United Kingdom of Great Britain and Northern Ireland 
      (Treaty No. 108-23)........................................    33

  

                                 (iii)

Responses to Additional Questions Submitted for the Record by 
  Senator Biden to Samuel Witten, U.S. Department of State, and 
  Mary Ellen Warlow, U.S. Department of Justice--(continued)

    Treaty between the United States of America and Germany on 
      Mutual Legal Assistance in Criminal Matters (Treaty No. 
      108-27); Treaty between the United States of America and 
      Japan on Mutual Legal Assistance in Criminal Matters 
      (Treaty No. 108-12)........................................    43

    Treaty between the United States of America and Japan on 
      Mutual Legal Assistance in Criminal Matters (Treaty No. 
      108-12)....................................................    45

    Treaty between the United States of America and Germany on 
      Mutual Legal Assistance in Criminal Matters (Treaty No. 
      108-27)....................................................    45

Responses to Additional Questions Submitted for the Record by 
  Senator Biden to Samuel Witten, U.S. Department of State.......    47

    Protocol between the Government of the United States and the 
      Government of the State of Israel Amending the Convention 
      on Extradition (Treaty No. 109-3)..........................    47

Responses to Additional Questions Submitted for the Record by 
  Senator Biden to Mary Ellen Warlow, U.S. Department of State...    49

    Protocol between the Government of the United States and the 
      Government of the State of Israel Amending the Convention 
      on Extradition (Treaty No. 109-3)..........................    49

                     Questions From Senator Chafee

Responses to Additional Questions Submitted for the Record by 
  Senator Chafee to Samuel Witten, U.S. Department of State, and 
  Mary Ellen Warlow, U.S. Department of Justice..................    50

    Extradition Treaty Between the United States of America and 
      the United Kingdom of Great Britain and Northern Ireland 
      (Treaty No. 108-23)........................................    50

       APPENDIX II--ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Material Submitted by the Ancient Order of Hibernians, Political 
  Education Committee............................................    52

Material Submitted by the Irish American Unity Conference........    53

Material Submitted by Francis A. Boyle, Professor of Law, 
  University of Illinois at Urbana-Champaign, College of Law.....    54

Statement for the Record Submitted by Timothy H. Edgar, National 
  Security Policy Counsel, American Civil Liberties Union........    60

                                TREATIES

                              ----------                              

                       TUESDAY, NOVEMBER 15, 2005

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:23 a.m. in Room 
SD-419, Dirksen Senate Office Building, Hon. Richard G. Lugar 
[chairman] presiding.
    Present: Senators Lugar [presiding] and Dodd.

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

    The Chairman. This hearing of the Senate Foreign Relations 
Committee is called to order. The committee will begin with an 
opening statement by the chair and then testimony by our 
distinguished witnesses. We are going to commence a few moments 
before 9:30 and that will offer an opportunity for me to give 
my statement and for the witnesses to begin at approximately 
9:30. I mention that because we will have a series of roll call 
votes on the Senate floor, estimated at 10:45. So we will have 
ample time, I believe, for the testimony of the witnesses and 
responses to questions by Senators. At the end of the hearing I 
will ask the witnesses for prompt responses to the questions 
that will be submitted in writing that we have not had an 
opportunity to discuss in public here.
    The committee meets today to hear testimony on four 
bilateral law enforcement treaties. Within the Congress, the 
Senate Foreign Relations Committee is charged with the unique 
responsibility of reviewing treaties negotiated by the 
administration. Our colleagues in the Senate depend on us to 
make timely and judicious recommendations on these treaties.
    We are pleased that administration officials are with us 
today and we look forward to hearing why they believe the 
Senate should approve the four treaties under consideration. In 
advance of this hearing, committee staff members have reviewed 
these treaties very carefully. They have held two formal 
committee briefings covering the treaties, with administration 
representatives available to answer questions. I appreciate the 
support and cooperation of Senator Biden, the distinguished 
ranking member, throughout this process.
    Today we welcome Mr. Samuel Witten, Deputy Legal Adviser at 
the Department of State, and Ms. Mary Ellen Warlow, Director of 
the Office of International Affairs in the Criminal Division in 
the Department of Justice. They will testify on extradition 
treaties with the United Kingdom and Israel and mutual legal 
assistance treaties, or MLATs, with Germany and Japan.
    These four countries are close United States allies, with 
whom the United States enjoys excellent cooperation in the 
areas of law enforcement and anti-terrorism. Extradition and 
mutual legal assistance treaties provide critical tools for 
United States law enforcement authorities as they investigate 
and prosecute transnational crime, including terrorism. 
Extradition treaties ensure that those who commit crimes in the 
United States cannot escape justice by fleeing to other 
countries.
    The extradition treaties with the United Kingdom and Israel 
are designed to update our existing extradition relationships 
with these two countries. Upon entry into force, the treaty 
with the United Kingdom would replace the existing U.S.-UK 
extradition treaty, which dates back to 1972. The protocol with 
Israel would amend an existing agreement that was negotiated in 
1962.
    Among other provisions, both treaties would move away from 
the use of a specified list of offenses that are extraditable 
and toward a modern, dual criminality standard for extradition. 
The dual criminality standard allows perpetrators of serious 
offenses that are a crime in both countries to be extradited.
    The committee is aware that particular interest has been 
expressed about the treaty with the United Kingdom. The 
committee will carefully consider this treaty and expects to 
hold an additional hearing next year to hear from witnesses 
outside our government. Today we want to establish a record of 
the administration's views on the treaty to which the committee 
and all interested parties can refer as we continue our 
deliberations.
    Mr. Witten and Ms. Warlow also will address new mutual 
legal assistance treaties that have been negotiated with 
Germany and Japan. The MLATs commit the signatories to provide 
each other with assistance related to criminal investigations, 
including establishing streamlined mechanisms for sharing 
criminal evidence. The treaties with Germany and Japan are the 
latest in a series of such agreements negotiated by the United 
States over the last couple of decades. They contain many 
provisions similar to those in earlier agreements.
    I commend the American negotiators who have worked on these 
four agreements, some of which are the product of years of 
patient diplomacy, and I look forward to the contributions of 
our witnesses.
    I have been joined by my distinguished colleague Senator 
Dodd of Connecticut. Do you have any opening comments, Senator 
Dodd?

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

    Senator Dodd. Well, Mr. Chairman, thank you. We have got a 
very busy morning and I want to underscore your points as well. 
These are extremely important, and as evidence of the 
tremendous work done by our witnesses and others who I know 
worked with them, we do not have a packed hearing room this 
morning, which is usually good evidence you have done a 
tremendous job. A crowd is usually drawn when there is 
controversy and the fact that you have been able to do such a 
successful amount of work on these is very worthwhile.
    Mr. Chairman, I want to thank you for your opening 
comments, but also in particular the line in your prepared 
statement about the additional hearing on the U.K.-U.S. 
Northern Ireland treaty, if you will, because we would like to 
raise some additional issues with that. That treaty, as you 
point out, was signed on March 31, 2003, and transmitted to the 
Senate in 2004, and if ratified it would replace the 1972 
treaty as modified by a highly controversial 1985 supplementary 
treaty.
    You may recall--I cannot believe it was 20 years--when we 
had these debates in the heat of the matters going on in 
Northern Ireland at the time. That was during President 
Reagan's administration and of course Mrs. Thatcher--and you 
were Chairman, I think, at that point, too. I should say it was 
controversial, but it was not terribly so because it passed 
rather overwhelmingly. The Senator from Connecticut thought it 
was controversial and raised some issues at the time.
    Anyway, I would like to ask unanimous consent for some 
comments here to be included in the record.
    The Chairman. They will be included in the record in full.

    [The prepared statement of Senator Dodd follows:]

           Prepared Statement of Senator Christopher J. Dodd

    Mr. Chairman, this morning the committee on Foreign Relations is 
holding a hearing to review a number of extradition treaties that are 
pending before this committee. Among these treaties is the 2003 U.S.-UK 
Extradition Treaty, which was signed on March 31, 2003 and transmitted 
to the Senate on April 19, 2004. If ratified, this treaty would replace 
a 1972 Treaty as modified by a highly controversial 1985 Supplementary 
Treaty.
    Mr. Chairman, the last time the subject of extradition came before 
this committee relative to the United States and the United Kingdom was 
two decades ago. At that time you were Chairman and I was a freshman 
Senator new to the committee. At that time, the committee's 
consideration of the 1985 Supplementary treaty was the subject of 
intense review and scrutiny. It was the subject of three hearings and 
two markups, over the course of roughly twelve months--with more than 
twenty witnesses heard by the committee. Ultimately the committee gave 
its advice and consent, but not before adopting three amendments and 
declaration relative to the treaty, including an amendment related to a 
political offense exception to extradition.
    Mr. Chairman, I am not suggesting that the Extradition treaty now 
before us need take that amount of the committee's time or is 
necessarily as controversial. However, I do believe that before 
deciding whether to give our advice and consent to this new treaty, and 
under what conditions, we need to fully understand the changes that are 
being proposed to the existing extradition framework.
    I believe that there are a number of important questions raised by 
the pending treaty. Among the most important are why was Article 3 of 
the Supplementary Treaty removed and what is the effect of that change? 
Article 3 was added by this committee in 1986, and was the subject of 
painstaking negotiation. It bars extradition if the person sought 
establishes that the extradition request has been made with a view to 
try him on account of his race, religion, nationality, or political 
opinions, or that if surrendered, he would be prejudiced at trial or 
punished because of those reasons. This provision also provides for 
judicial review of these questions, a provision unique to our bilateral 
extradition treaties. I recognize that it is unique--but there were 
unique reasons for its inclusion twenty years ago.
    I understand that there have been only a handful of cases in which 
Article 3 was invoked, and that none are pending now. But believe that 
before we consider modifying this article we find out whether there any 
cases likely to be filed in the near future that would be affected by 
the changes to Article 3?
    More generally, how do the provisions of the new treaty compare to 
the current treaty with the UK, and why were such changes made?
    Will the treaty have any effect on Americans who have been 
politically active in their opposition to British rule in Northern 
Ireland?
    What benefits will the United States gain, in its effort to obtain 
the extradition of suspects to the United States? In other words, to 
state it plainly, what is in it for us as a nation if we approve this 
treaty?
    Mr. Chairman, I recognize this is only an initial hearing, and that 
there will be more discussion and review in the months ahead. My office 
and I assume other members of the committee have been contacted by 
individuals and organizations, including the ACLU expressing concerns 
and raising questions about the impact of this treaty on individuals 
who may have committed past political crimes that would not have been 
extraditable under existing treaty arrangements, but could be in 
jeopardy under the new one.
    Without doubt, much has changed since the 1985 Supplementary Treaty 
entered into force. First and foremost was the conclusion of the 1998 
Good Friday Accord, which has established a framework for resolving the 
root causes of the political conflict in Northern Ireland. While there 
have been bumps along the road with respect to the full implementation 
of the Accords, I believe that it has been largely effective in ending 
the sectarian conflict that cost so many lives.
    Since the signing of the Good Friday Accords in 1998, British 
authorities have taken a number of legal steps to address legal 
questions related to sectarian conflict. In 1998 the UK introduced an 
early release program whereby IRA and Loyalist prisoners could apply 
for release on license after they had served two years in prison--447 
individuals have been released under this scheme. More recently, on 
November 9 of this year, the Northern Ireland Offense bill was 
introduced in the British Parliament to cover those individuals who do 
not fall within the framework of the 1998 early release program--namely 
those who went ``on the run'' before trial or escaped from prison 
before serving two years of their sentences. Once that bill becomes 
law, I believe that most so called political crimes related to the 
Northern Ireland conflict will be put to rest.
    These are important legal steps that have been taken since the 
committee considered the 1985 Supplementary Treaty. Some of which may 
not yet fully appreciated or understood. Additional hearings where 
expert witnesses can layout these and other facts would enormously help 
this committee in its consideration of the treaty.
    It is my understanding, Mr. Chairman, that you are open to calling 
additional witnesses. Presumably that won't be possible until next 
year.
    I thank you, Mr. Chairman for your willingness to more extensively 
study this treaty, and I look forward to working with you to find the 
kind of witnesses that can best inform the committee as we carry out 
our responsibilities with respect to this treaty. Unfortunately, I will 
not be able to stay for the entire hearing this morning because the 
Banking Committee where I also serve is currently conducting a 
nomination hearing for Chairman Greenspan's replacement on the Federal 
Reserve Board. With your permission I will submit some questions for 
the Record. I would also ask unanimous consent to have several written 
statements that have been prepared for this hearing, printed in the 
record so they can be available for the review of all Senators.
    I look forward to reviewing the hearing record, and to working with 
you, Mr. Chairman, on future hearings on this treaty.

    Senator Dodd. There are a number of important questions 
raised by the pending treaty. Among the most important is why 
was article 3 of the supplementary treaty removed and what is 
the effect of that change. Article 3 was added by this 
committee in 1986 and was the subject of painstaking 
negotiation, I might point out. It bars extradition of the 
person sought establishes that the extradition request is made 
with a view to try him on account of his race, religion, 
nationality, or political opinions, or that if surrendered he 
would be prejudiced at trial or punished because of those 
reasons.
    This provision also provides for judicial review of these 
questions, a provision unique to our bilateral extradition 
treaties. I recognize that it is unique, but there were unique 
reasons for its inclusion some 20 years ago as well.
    I understand that there have been only a handful of cases 
in which article 3 was invoked and that none are now pending. 
But I believe that before we consider modifying this article we 
find out whether there are any cases likely to be filed in the 
near future that would be affected by the changes to article 3, 
more generally how do the provisions of this new treaty compare 
to the current treaty with the United Kingdom, and why such 
changes were made.
    There are some additional comments here, Mr. Chairman, that 
I will submit for the record. But I think the fact that we are 
going to have an additional hearing on the subject matter will 
give us a chance to examine those questions as well, and I am 
very again grateful to you.
    The Chairman. I thank the Senator for his comments. His 
statements will be made a part of the record.
    Senator Dodd. Mr. Chairman, there are some additional 
comments here regarding this point that I would like to have 
included in the record regarding that particular point.
    The Chairman. It will be included in the record.

    [The material to which Senator Dodd referred appears in 
Appendix II of this hearing transcript.]

    Senator Dodd. Thank you very much.
    The Chairman. As I mentioned in my opening statement, and 
as the Senator from Connecticut referenced, we appreciate that 
the treaty, the U.S.-UK treaty, is a controversial area. There 
has been the work that I cited by our mutual staffs, and that 
will need to continue. As the Senator has pointed out, we look 
forward to future witnesses and an additional hearing in the 
coming year.
    Now I would like to recognize our witnesses, and we 
appreciate your coming. I will ask you to testify in the order 
of first of all Mr. Witten and then Ms. Warlow. Let me say that 
your full statements will be made a part of the record and you 
may either deliver those or summarize, and after you have 
concluded, why, then we will ask questions of you.
    Mr. Witten.

      STATEMENT OF SAMUEL M. WITTEN, DEPUTY LEGAL ADVISER,
                      DEPARTMENT OF STATE

    Mr. Witten. Thank you, Mr. Chairman, Senator Dodd. I will 
submit my full statement for the record, and I will give a very 
brief summary here.
    I am pleased to appear before you today to testify in 
support of four bilateral law enforcement instruments, two 
relating to extradition and two relating to mutual legal 
assistance in criminal matters. If approved by the Senate and 
brought into force, these treaties will improve key aspects of 
our bilateral law enforcement relationships with four of our 
most important international partners: the United Kingdom, 
Israel, Germany, and Japan. We understand that all four of 
these countries have completed or nearly completed their 
domestic approval processes and it is important that the United 
States be in a position to bring these treaties into force as 
soon as possible.
    The growth and transport of criminal activity, especially 
violent crime, terrorism, drug trafficking, and the laundering 
of proceeds of organized crime, has confirmed the need for 
increased international law enforcement cooperation. 
Extradition treaties and MLATs are essential tools in that 
effort and their negotiation is an important part of a 
concerted effort by the Departments of State and Justice to 
modernize the legal tools available for the extradition of 
criminal fugitives and in the investigation and prosecution of 
crimes.
    I will highlight several important points and more detail 
will be contained in my lengthier submitted statement. Turning 
first to the proposed new U.S.-UK extradition treaty, I note 
that the United Kingdom is one of the U.S. Government's most 
important allies in the global war against terrorism. The new 
treaty, if approved by the Senate, will substantially improve 
our ability to cooperate together on international extradition 
matters, one of the cornerstones of international law 
enforcement cooperation. The treaty before the Senate updates 
the existing U.S.-UK treaty relationship to make it consistent 
with virtually all of our modern extradition treaties in Europe 
and elsewhere.
    Among other things, the new treaty will incorporate into 
the U.S.-UK extradition relationship modern provisions on key 
extradition issues, such as dual criminality, provisional 
arrest, statutes of limitations, political offense, political 
motivation, and other matters. Consistent with longstanding 
U.S. practice, the treaty would be applicable to offenses 
committed before as well as after the date of entry into force.
    The extradition protocol with Israel would supplement the 
1962 extradition convention currently in force between the 
United States and Israel and would update our existing treaty 
relationship with this very important law enforcement partner 
for the first time in over 40 years. Significantly, the 
protocol would replace the current list of offenses in the 1962 
convention with a dual criminality regime, thus permitting 
extradition for offenses not currently included in the existing 
convention. It also makes helpful changes in areas such as the 
descriptions of the information needed for provisional arrest 
and for extradition, the definition of the political offense 
exception, and the rule of specialty.
    The protocol addresses the issue of extradition of 
nationals in an innovative way intended to build on important 
advances in Israel's domestic extradition law that make the 
extradition of nationals possible for Israel under certain 
circumstances. In short, as the result of this new protocol, 
combined with helpful advances in Israel's domestic extradition 
law, Israel will be able to extradite its nationals who are 
residents of Israel for trial in the United States so long as 
they can be returned to Israel to serve any sentence imposed.
    I will now turn to the two mutual legal assistance treaties 
pending before the committee, with Germany and Japan, two key 
law enforcement partners. The treaties broadly apply to 
criminal investigation and proceedings and also enable certain 
assistance in connection with investigations by regulatory 
agencies.
    I will not go into great detail on these treaties since 
most of their provisions are by and large typical of those 
found in our over 50 existing mutual legal assistance treaties 
and are described in great length in our transmittals of the 
treaties to the Senate and in our prepared testimony. I will 
say, however, that the proposed MLATs with Germany and Japan 
fill a significant gap in our network of MLATs with major law 
enforcement partners. With the new proposed treaties with 
Germany and Japan, the United States will have concluded such 
treaties with all of our partners in the Group of 8, the G-8.
    Mr. Chairman, we very much appreciate the committee's 
decision to consider these important treaties. I will be happy 
to answer any questions the committee may have.

    [The prepared statement of Mr. Witten follows:]

                 Prepared Statement of Samuel M. Witten

    Mr. Chairman and members of the committee. I am pleased to appear 
before you today to testify in support of four bilateral law 
enforcement instruments, two relating to extradition and two relating 
to mutual legal assistance in criminal matters. If approved by the 
Senate and brought into force, these treaties will improve key aspects 
our bilateral law enforcement relationships with four of our most 
important international partners--the United Kingdom, Israel, Germany, 
and Japan. We understand that all four of these countries have 
completed or nearly completed their domestic approval processes, and it 
is important that the United States be in a position to bring these 
treaties into force as soon as possible.
    The Department of State greatly appreciates this opportunity to 
address these treaties. The growth in transborder criminal activity, 
especially violent crime, terrorism, drug trafficking, and the 
laundering of proceeds of organized crime, has confirmed the need for 
increased international law enforcement cooperation. Extradition 
treaties and MLATs are essential tools in that effort, and their 
negotiation is an important part of a concerted effort by the 
Departments of State and Justice to modernize the legal tools available 
for the extradition of criminal fugitives, and in the investigation and 
prosecution of crimes.
    I will address each of the instruments individually.

       EXTRADITION TREATY WITH GREAT BRITAIN AND NORTHERN IRELAND

    Turning first to the proposed new U.S.-UK Extradition treaty, I 
note that the United Kingdom is one of the U.S. Government's most 
important allies in the global war against terrorism. The new treaty, 
if approved by the Senate, will substantially improve our ability to 
cooperate together on international extradition matters, one of the 
cornerstones of international law enforcement cooperation.
    The treaty before the Senate updates the existing U.S.-UK treaty 
relationship to make it consistent with virtually all of our modern 
extradition treaties. It will replace the 1972 extradition treaty and 
1985 supplementary treaty that are currently in force between the two 
countries. Once the treaty is ratified, the United States will be 
positioned to continue to receive the benefits of several recent 
changes in UK law, including the reduction in the evidentiary standard 
that the United States will be required to meet when seeking the 
extradition of a fugitive from the United Kingdom, thereby making it 
easier to bring fugitives to justice in the United States. Among other 
things, the treaty would also streamline the extradition procedures 
regarding requests to and from UK territories, by enabling U.S. 
certification of extradition requests to be made in those territories 
rather than through the United Kingdom's central authority in London.
    The proposed treaty defines conduct as an extraditable offense if 
the conduct on which the offense is based is punishable under the laws 
in both States by deprivation of liberty for a period of one year or 
more or by a more severe penalty. This kind of pure ``dual 
criminality'' clause will be an improvement over the treaty regime 
currently in place, which lists categories of offenses plus other 
offenses listed in relevant UK extradition law and considered felonies 
under U.S. law. As with all of our dual criminality treaties, this 
provision means that the United States would not be required to 
extradite a fugitive where the UK charge would not be a crime if 
committed in the United States, for example, because the underlying 
conduct would be protected by the Constitution and therefore could not 
be criminalized.
    The treaty requires that extradition be denied if the competent 
authority of the Requested State determines that the request is 
politically motivated. Like all other modern U.S. extradition treaties, 
the new treaty grants the executive branch rather than the judiciary 
the authority to determine whether a request is politically motivated. 
This change makes the new treaty consistent with U.S. practice with 
respect to every other country with which we have an extradition 
treaty. Under the new treaty, as under the existing treaty, U.S. courts 
will continue to assess whether an offense for which extradition has 
been requested is a political offense.
    Another helpful improvement in the proposed treaty deals with the 
treatment of the statute of limitations. A decision by the Requested 
State whether to grant the request for extradition shall be made 
without regard to any statute of limitations in either State. This of 
course does not eliminate the application of the statute of limitations 
for either the United States or the United Kingdom once a fugitive has 
been returned. Rather, it reserves the legal determination on the issue 
of the statute of limitations to the courts of the country where the 
criminal charges are pending. This provision is typical of our other 
modern extradition treaties. Similarly, the treaty has a modern 
provision on the provisional arrest of fugitives that is typical of our 
extradition practice and consistent with U.S. law.
    The treaty also provides that the Requested State may, to the 
extent permitted under its law, seize and surrender to the Requesting 
State all items and assets, including proceeds, that are connected with 
the offense in respect of which extradition is granted. This same 
concept, which is contained in the existing treaty and virtually all 
U.S. extradition treaties, is helpful to law enforcement officials in 
some cases in securing evidence related to the offense for which the 
fugitive is sought.
    In addition, the treaty sets forth a clear ``Rule of Specialty'' 
which provides, subject to specific exceptions, that fugitives can only 
be tried for the charges for which they were extradited, absent 
specific consent by the State that has extradited the fugitive. The 
current U.S.-UK treaty does not contain a provision for waiver of the 
rule of specialty, and the proposed provision is substantially the same 
as the parallel provision in our modern extradition treaties.
    Consistent with longstanding U.S. practice, the treaty would be 
applicable to offenses committed before, as well as after, the date of 
entry into force.

                    EXTRADITION PROTOCOL WITH ISRAEL

    The extradition protocol with Israel, signed July 6, 2005, would 
supplement the 1962 extradition convention currently in force between 
the United States and Israel. The protocol would update the existing 
treaty relationship with this very important law enforcement partner in 
a manner consistent with our modern extradition treaties.
    Significantly, the protocol would replace the current list of 
offenses with a ``dual criminality'' regime, thus permitting 
extradition for offenses not currently included in the existing 
convention. The protocol also updates the provision listing the 
exceptions to extradition, including by adding a military offense 
exception; expanding the list of offenses excluded from the political 
offense exception; and modernizing the prior prosecution clause to 
provide that extradition may--as opposed to shall--be denied if the 
person has already been tried and convicted in a third country for the 
offense for which extradition is requested.
    The protocol updates the statute of limitations provision in the 
current convention, which states that extradition shall not be granted 
if an offense or the execution of the penalty is time-barred in either 
the Requested or the Requesting Party. The protocol would limit this 
exception to only those situations where the Requested Party's law 
requires the denial of extradition if the offense or execution of the 
penalty is time-barred in the Requested Party. Although Israeli law 
currently precludes extradition if the offense or execution of the 
penalty is time-barred in Israel, this kind of flexible treaty 
provision will be helpful if Israel were to change its law to permit 
extradition regardless of Israel's statute of limitations.
    Other provisions that would be updated by the protocol include: the 
provision providing for postponement of extradition proceedings or the 
deferral of surrender when a fugitive is already being proceeded 
against or serving a sentence for another offense; the procedures for 
requesting extradition and provisional arrest; the provision providing 
for the transit of a fugitive wanted by a third state; the rule of 
specialty provision; and the expenses provision, which also provides 
that a Requested Party shall represent the Requesting Party in any 
extradition proceedings. As with our other modern treaties, the 
protocol will apply to offenses committed before as well as after the 
date it enters into force.
    The protocol addresses the issue of extradition of nationals in an 
innovative way intended to build on important recent advances in 
Israel's domestic extradition law that make the extradition of 
nationals possible for Israel under certain circumstances. It repeats 
the existing convention's requirement that extradition cannot be denied 
solely on the basis of the nationality of the fugitive. It also 
provides that if required by its law, the Requested Party may condition 
the extradition of a national and resident on the assurance that the 
fugitive shall be returned to serve any sentence of incarceration in 
the Requested Party. The assurance ceases to have effect if the 
fugitive consents to serving his sentence in the Requesting Party or 
refuses to or withdraws his consent. The United States and Israel are 
parties to the Council of Europe Convention on the Transfer of 
Sentenced Persons, which provides the framework for the transfer of 
Israeli citizens back to Israel to serve their sentence. Moreover, the 
protocol requires that Israel enforce, according to its laws, the 
sentence imposed in the United States, even if that sentence exceeds 
the maximum penalty for such offense in Israel. Under Israeli law, 
prisoners are eligible for parole after serving 2/3 of their sentence. 
A returned fugitive would therefore be eligible for parole once he has 
served 2/3 of the term of years imposed in the United States.I will now 
turn to the two mutual legal assistance treaties pending before the 
committee with Germany and Japan, two key law enforcement partners.

              MUTUAL LEGAL ASSISTANCE TREATY WITH GERMANY

    The proposed U.S.-Germany Mutual Legal Assistance Treaty in 
Criminal Matters (MLAT) fills a significant gap in our network of MLATs 
with major European law enforcement partners. Like other recent MLATs 
concluded by the United States, the treaty with Germany broadly applies 
to criminal investigations and proceedings. It enables assistance in 
connection with investigations by regulatory agencies, for example the 
Securities and Exchange Commission, to the extent that they may lead to 
criminal prosecutions. Further, certain antitrust investigations and 
proceedings, even some types which are considered civil matters under 
German law, are within the scope of the MLAT.
    The MLAT with Germany is typical of our over 50 MLATs with 
countries around the world, including most of the countries of Europe. 
It has several innovations, including provisions on special 
investigative techniques, such as telecommunications surveillance, 
undercover investigations, and controlled deliveries. It allows certain 
uses for evidence or information going beyond the particular criminal 
investigation or proceeding, which can include bilateral assistance to 
help prevent serious criminal offenses and the averting of substantial 
danger to public security.
    The treaty identifies the U.S. Attorney General and the German 
federal Ministry of Justice as the central authorities responsible for 
the execution of the treaty. In view of the federal systems in both 
countries, it also lists, in an appendix, those other federal and state 
authorities which are competent to initiate requests for assistance.

               MUTUAL LEGAL ASSISTANCE TREATY WITH JAPAN

    The United States and Japan signed an MLAT on August 5, 2003. While 
the United States has similar treaties in force with over 50 countries, 
this is the first MLAT signed by Japan. With the new proposed treaties 
with Germany and Japan, the United States has now concluded such 
treaties with all of our partners in the Group of Eight (G-8).
    The Japan MLAT will provide an effective tool in the investigation 
and prosecution of a wide variety of offenses of concern to our two 
countries, including terrorism, drug trafficking, fraud and other 
white-collar crimes. The treaty permits assistance both for matters 
already deemed criminal and in connection with an administrative 
investigation of suspected criminal conduct (e.g., an investigation by 
the Securities and Exchange Commission of suspected securities fraud), 
in appropriate cases.
    There is one aspect of this treaty related to the designation of 
Central Authorities that should be mentioned. The Central Authority is 
the entity that performs the functions provided for in the MLAT on 
behalf of each government. For the United States, the Central Authority 
is the Attorney General or a designee, a function that has been 
delegated to the Office of International Affairs in the Criminal 
Division of the Department of Justice. For Japan, on the other hand, 
the Central Authority is either the Minister of Justice or the National 
Public Safety Commission (the National Police) or their designees. The 
authorization for Japan to designate two agencies is necessary because 
of the respective jurisdictions of the two Japanese agencies concerned. 
The MLAT is accompanied by an exchange of diplomatic notes provided to 
the Senate for its information that specifies the kinds of mutual legal 
assistance requests that will be handled by each agency on the Japanese 
side.
    Mr. Chairman, we very much appreciate the committee's decision to 
consider these important treaties.
    I will be happy to answer any questions the committee may have.

    The Chairman. Thank you very much, Mr. Witten.
    Ms. Warlow.

      STATEMENT OF MARY ELLEN WARLOW, DIRECTOR, OFFICE OF 
INTERNATIONAL AFFAIRS, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE

    Ms. Warlow. Thank you, Mr. Chairman, thank you for the 
opportunity to submit my written statement for the record, and 
I will try to briefly summarize that statement. I too am 
pleased to appear before you--I am pleased to appear before the 
committee today to present the views of the Department of 
Justice on these four important law enforcement treaties. As 
you noted, Mr. Chairman, these are treaties with four of our 
most important allies and partners in combatting crime and 
fighting terrorism. Each of these instruments is something that 
will advance the law enforcement interests of the United 
States.
    I would like to turn first briefly to the two extradition 
instruments, with the United Kingdom and Israel. Both contain 
features we regularly seek in order to have modern, effective 
extradition relations. First, as you noted, Mr. Chairman, both 
are dual criminality treaties, that is, extradition is 
dependent solely on whether both countries criminalize the 
conduct at issue as a felony, thus dispensing with the approach 
of list treaties in the two existing instruments. This is 
extremely important to us because it gives us the broadest 
possible range for extraditable offenses and it also allows the 
treaties to keep to date with developments in the law. In the 
decades since these treaties were negotiated, we have seen new 
offenses, such as money laundering, computer crimes, 
trafficking in persons, and crimes such as providing material 
support to terrorism.
    Also, both treaties are very important for practitioners 
because they ease the burdensome evidentiary requirements that 
the United States has had to meet in order to seek extradition. 
Both the United Kingdom and Israel had required presentation 
for purposes of an extradition of a prima facie non-hearsay 
case, and I cannot stress enough how difficult these 
requirements were in complex cases involving multiple victims 
or complex criminal activity.
    However, neither the new treaty with the United Kingdom nor 
the protocol to our treaty with Israel will modify the 
evidentiary standard for extradition proceedings in the United 
States. That is information, information that can include 
hearsay, that is sufficient to meet a standard of probable 
cause when the person is sought for extradition for trial.
    Both treaties contain provisions consistent with modern 
extradition practice and procedure. These include the temporary 
surrender provision that allows us to have someone extradited 
temporarily when they are already serving a sentence in the 
other country. Also, both treaties streamline the procedures 
for requesting provisional arrest, that is the issuance of a 
warrant in urgent circumstances pending the presentation of a 
full extradition hearing and the formal extradition documents. 
Currently these requests have to be made through the diplomatic 
channel and, though our colleagues in the State Department are 
extremely efficient, we also have to deal with our embassies 
abroad and foreign ministries. Under these treaties we can make 
requests directly to our counterparts in the United Kingdom and 
Israel.
    Other procedural improvements in both treaties include 
limiting or eliminating the statute of limitation as a 
consideration in the extradition proceedings. This is a benefit 
that we have sought in many of our modern extradition treaties.
    Other common aspects of both treaties are explicit 
provisions for defendants to waive extradition and thus 
accelerate their return if they so consent and modern 
comprehensive provisions regarding the rule of specialty, a 
principle that bars prosecution of a fugitive for offenses 
other than those for which he has been extradited.
    As Mr. Witten noted, the treaties are somewhat different on 
extradition of nationals with the United Kingdom. Our 
longstanding tradition of extraditing without regard to 
nationality would remain. The protocol with Israel, as Mr. 
Witten has explained quite thoroughly, has a novel approach 
reflecting advancements in the Israeli law. Thus the former bar 
on extradition of nationals from a 1978 law is now changed and 
in a way that we can take advantage of. We have had some 
experience with this provision of the revised Israeli law and 
since 1999 15 Israeli citizens have in fact been extradited to 
the United States.
    Consistent with our modern treaties with countries with 
which we have a long and reliable extradition history, both the 
U.K. extradition treaty and the Israel protocol exclude 
application of the political offense exception where the 
offense at issue is a serious crime of violence, offenses 
including bombs and other destructive devices, irrespective of 
the purported political motivation or justification of the 
defendant. This limitation on the political offense exception 
is not new to our relations to the United Kingdom and indeed 
the 1985 supplementary treaty was the first U.S. extradition 
treaty to specifically exclude the most serious terrorist 
offenses and crimes of violence from consideration as a 
political offense. Thus with the protocol with Israel, Israel 
too will have the benefit of this improvement in our treaty 
practice.
    Very briefly on the MLATs for the committee has assisted us 
in the Department of Justice greatly over the years by 
approving over 50 mutual legal assistance treaties. Let me just 
note a few elements of these treaties.
    Although the treaties are structured somewhat differently, 
in substance they are very much the same. As a general rule, 
there is not a requirement of dual criminality, although that 
does exist to some extent with respect to compulsory measures. 
Both treaties have the advantage of direct contact between 
central authorities. They allow us to take depositions that 
accommodate U.S. requirements of confrontation. They allow us 
to transfer incarcerated witnesses if they agree. We have 
provisions for confidentiality, seizure, and forfeiture of 
assets, and of course residual authority to deny assistance 
where our essential interests are implicated.
    Thank you, Mr. Chairman. I would be happy to respond to 
your questions.

    [The prepared statement of Ms. Warlow follows:]

                Prepared Statement of Mary Ellen Warlow

    Mr. Chairman and members of the committee, I am pleased to appear 
before you today to present the views of the Department of Justice on 
four law enforcement treaties, including one protocol, that have been 
referred to the committee. Each of these instruments will advance the 
law enforcement interests of the United States. They are of particular 
importance as we face an increasing need for cooperation and assistance 
from the international community in the investigation of crimes 
relating to terrorism and other serious violent activity, trafficking 
in persons and drugs, and large-scale financial offenses.
    The updated extradition treaty between the United States and the 
United Kingdom of Great Britain and Northern Ireland modernizes and 
streamlines the 1972 treaty and the 1985 supplementary treaty. The 
protocol to the extradition treaty between the United States and Israel 
amends the terms of the existing treaty. The bilateral mutual legal 
assistance treaties (``MLATs'') with Germany and Japan are the first of 
their kind to be negotiated between the United States and the treaty 
partner.
    The decision to proceed with the negotiation of law enforcement 
treaties such as these is made by the Departments of State and Justice, 
and reflects our international law enforcement priorities. The 
Department of Justice participated in the negotiation of these 
extradition and mutual legal assistance treaties, and we join the 
Department of State today in urging the committee to report favorably 
to the Senate and recommend its advice and consent to ratification of 
each of the treaties. In my testimony today, I will concentrate on why 
these treaties are important for United States law enforcement agencies 
engaged in investigating and prosecuting serious offenses.

                  THE EXTRADITION TREATY AND PROTOCOL

    Modernizing our extradition treaties and, where appropriate, 
establishing new extradition relationships, remain among the top 
priorities of the Justice Department's international law enforcement 
efforts.
    The extradition treaty and protocol being considered by the 
committee replace and update, respectively, the existing treaties that 
govern our extradition relations with two of our most important law 
enforcement partners, the United Kingdom and Israel. Both of the new 
instruments contain features we regularly seek in order to establish or 
augment a modern, effective extradition relationship.

          THE UNITED STATES-UNITED KINGDOM EXTRADITION TREATY

    The new extradition treaty with the United Kingdom of Great Britain 
and Northern Ireland, which will replace the outdated 1972 treaty and 
the supplementary treaty of 1985, was signed on March 31, 2003, and is 
an integral part of the coordinated bilateral commitment to enhancing 
and modernizing the U.S.-U.K. law enforcement relationship. It includes 
a number of improvements to the existing instruments. For instance, it 
is a ``dual criminality'' treaty, expanding the scope of extraditable 
offenses well beyond those specifically recognized in the existing 
treaty's list or in domestic U.K. extradition law and allowing the 
automatic extension of the proposed treaty's provisions to new forms of 
criminality that are made punishable as felonies in both countries in 
the future. It will allow requests for provisional arrest, which are 
used in urgent circumstances to prevent the flight of serious felons or 
protect society from dangerous and violent suspects, to be made 
directly between the Department of Justice and an authority to be 
designated by the United Kingdom, thus obviating the need to go through 
formal diplomatic channels in order to secure emergency assistance. 
Further, it gives clear guidance to the courts on actions not to be 
considered as ``political offenses'' for which extradition is barred 
and redirects decisions on ``political motivation'' to the Executive 
branch, a placement of responsibility that is consistent with all our 
other modern extradition treaties and longstanding United States 
caselaw.
    Another provision in the new treaty of particular significance is 
that authorizing ``temporary surrender.'' Under the current treaty, the 
extradition of an individual who is being prosecuted or serving a 
sentence in one country must be deferred until the completion of the 
trial and any sentence imposed. Such a deferral can have disastrous 
consequences for a later prosecution due to lapse of time, the absence 
or death of witnesses, and the failure of memory. The new provision 
will allow the individual being tried or punished in one country to be 
sent temporarily to the other for purposes of prosecution there and 
then returned to the first country for resumption of the original trial 
or sentence. The availability of ``temporary surrender'' has become 
more and more significant in recent years as international criminals, 
including terrorists, transgress the laws of a number of nations to 
plan and carry out their illegal activities. This particular provision 
has a very real and practical impact on our ability to successfully 
prosecute defendants who have violated the laws of both nations. We 
wish to inform the committee that our government has requested the 
extradition of a defendant who has been indicted in a major terrorism 
case here in the United States. However, that defendant currently 
stands charged with criminal violations in the United Kingdom as well. 
In this scenario, the establishment of a temporary surrender mechanism 
through approval of this new treaty is considered vital to ensuring 
that this defendant--and others similarly situated--ultimately faces 
trial and is broughtto justice in the United States.
    All of these provisions of the new treaty will clearly be of 
benefit to both the United States and the United Kingdom and will serve 
to enhance our efforts to bring fugitives to justice. One of the 
primary United States objectives in negotiating the new treaty was to 
remove the ``prima facie'' evidence requirement imposed by the United 
Kingdom in extradition cases and replace it with a less stringent 
standard being made available under new U.K. domestic extradition laws. 
As events transpired, the government of the United Kingdom undertook to 
designate the United States for favored treatment under the new 
legislation and the lower standard of proof as of January 2004, even 
though the United States ratification process was not yet complete. 
This designation has made the preparation of extradition requests far 
easier and, in some cases, allowed us to proceed with cases that we 
might earlier have declined to pursue. Unfortunately, as time has 
passed, the government of the United Kingdom has been the recipient of 
increasingly sharp criticism in the press and in Parliament over having 
given the United States the beneficial designation without a showing of 
reciprocal support for an improved extradition relationship through 
United States approval of the new treaty. Moreover, a number of 
significant defendants in pending extradition cases from the United 
States are starting to raise the allegation of a ``flawed'' designation 
process in the lower courts and on appeal. We therefore hope that this 
hearing will lead to speedy approval of the new treaty and its entry 
into force in the immediate future.
    We understand that some have raised questions about certain 
provisions of the treaty. We will be pleased to respond to any such 
questions. The Departments of Justice and State believe that this 
treaty will significantly improve our extradition relationship with the 
United Kingdom without undermining in any way the commitment of the 
United States to the protection of individual human rights and the 
fulfillment of our international obligations. As we have emphasized 
earlier, the provisions of the new treaty do no more than place our 
extradition relationship with the U.K. on a par with other nations with 
which we have modern treaties.

             THE UNITED STATES-ISRAEL EXTRADITION PROTOCOL

    The Protocol with Israel, signed on July 6, 2005, amends the 1962 
Convention on Extradition (``Convention'') that is currently in force 
and brings it up to the standards of our modern extradition practice. 
Like the new U.S.-U.K. Treaty, the Protocol establishes a ``dual 
criminality'' approach, carrying the obligation to extradite for all 
offenses that are punishable in both treaty partners' countries by 
imprisonment for a period of one year, or by a more severe penalty. 
This approach replaces the outmoded "list" regime of our current 
Convention, which limits extradition to those crimes enumerated in the 
text. Dual criminality treaties carry the advantage of reaching the 
broadest range of felony offense behavior, without requiring the 
repeated updating of the treaty as new forms of criminality emerge. 
This is particularly important as United States authorities investigate 
and prosecute crimes related to terrorism, trafficking in persons, 
high-tech crimes, and other recent trends. The Protocol will make such 
crimes as material support of terrorism, money laundering, computer 
crimes and a broader range of sex offenses against children 
extraditable.
    Further, the Protocol significantly streamlines the process of 
requesting extradition by establishing that extradition documents 
containing hearsay will be admissible in court. Permitting the formal 
documents in support of extradition requests to contain hearsay 
evidence will alleviate the burden on United States prosecutors of 
preparing often voluminous packages for Israeli courts; United States 
courts have long accepted hearsay in extradition proceedings. The 
Protocol also expands the list of crimes excluded from the political 
offense exception to extradition to bring it into line with our modern 
practice. It establishes that a murder or other of the most serious 
violent crimes shall not constitute a political offense. Likewise, 
offenses as to which we are obligated to extradite or prosecute under 
the terms of a multilateral international agreement--such as offenses 
under ten U.N. anti-terrorism treaties--may not be considered political 
offenses for which extradition is barred.
    The extradition of Israeli nationals has been problematic for the 
United States since Israel enacted a 1978 law that conflicted with the 
Convention and barred the extradition of Israeli citizens. The 1997 
case of United States national Samuel Sheinbein who was charged with 
murder in the State of Maryland, fled to Israel and successfully 
avoided extradition by claiming Israeli citizenship, highlighted the 
issue and led to a change in Israel's extradition law. While the 
Israeli legislation does not entirely eliminate restrictions on the 
extradition of nationals, it provides a much-improved framework for 
dealing with fugitives who claim Israeli citizenship. First, offenders 
are no longer able to avoid extradition by claiming citizenship after 
committing an offense in the United States; limitations on extradition 
apply only if the defendant establishes that he was a citizen and 
resident of Israel at the time of the offense. Second, the limitations 
on extradition are significantly modified: as long as we are able to 
assure that the defendant will be returned to Israel to serve his 
sentence, Israeli citizens may be extradited to stand trial. The 
Protocol accommodates the approach of Israel's legislation.
    We have already had experience in several cases utilizing this 
approach, and found it to be workable. The Council of Europe Convention 
(``COE Convention'') on the Transfer of Sentenced Persons, to which 
both the United States and Israel are parties, provides the framework 
for the transfer of Israeli citizens back to Israel to serve their 
sentences. Specifically, since 1999, the United States has extradited a 
total of 20 fugitives from Israel, of whom 15 were Israeli nationals 
(including dual United States-Israeli nationals). Of those 15 Israelis, 
following their United States trials we have transferred 5 back to 
Israel under the COE Convention; 6 are serving their sentences in the 
United States because Israel determined that they were not residents of 
Israel at the time of their crimes; 1 was not transferred because his 
United States sentence was too short to allow for processing and 
transfer; and 3 cases remain pending in the United States. This 
approach of permitting extradition of nationals on condition of their 
return for service of sentence is similar to that in the 1983 United 
States-Netherlands extradition treaty. However, the Protocol with 
Israel has the significant additional benefit that Israel has 
explicitly agreed to enforce the United States sentence, even if it 
exceeds the maximum penalty under Israeli law.
    The Protocol incorporates a variety of procedural improvements in 
extradition practice. Like the new U.K. treaty, the Protocol 
streamlines the procedures for ``provisional arrest'' by permitting 
such emergency requests to be made directly between the respective 
Justice authorities, without requiring initial resort to the diplomatic 
channel. Another similar provision contained in the Protocol is 
``temporary surrender.'' The Protocol allows a person found 
extraditable, but who is already in custody in the requested State on 
another charge, to be temporarily transferred to the requesting State 
for purposes of trial. As discussed previously, this provision is 
designed to overcome the problem of delaying extradition while a 
fugitive is serving a sentence abroad, during which time the case 
underlying the extradition request may become stale--or completely 
unviable--because of the unavailability of witnesses or other 
evidentiary difficulties.

                  THE MUTUAL LEGAL ASSISTANCE TREATIES

    The two MLATs before this committee will expand the United States's 
complement of law enforcement mechanisms designed to strengthen our 
ability to obtain evidence and other forms of assistance from overseas 
in support of our criminal investigations and prosecutions. I realize 
the committee has become acquainted with the significant benefits MLATs 
provide to the international law enforcement community since the first 
such treaty came into force in 1977. We now have over 50 MLATs in 
force. Accordingly, I will briefly review only some of those benefits 
in this statement.
    Our practical experience with MLATs over the years has demonstrated 
that they are generally more efficient than other formal means of 
international legal assistance, specifically including letters 
rogatory, as MLAT requests do not require a court order and they are 
not routed through diplomatic channels. MLATs establish a direct 
channel of communication between Central Authorities--usually contained 
within the respective treaty partners' Departments of Justice--and they 
confer a binding legal obligation to provide assistance if the 
requirements of the treaty are met. MLATs are broad in scope, and 
provide for assistance at the investigatory stage, usually without the 
requirement of dual criminality. These treaties pierce bank secrecy and 
provide a mechanism for addressing legal and policy issues such as 
confidentiality, admissibility requirements for evidence, allocation of 
costs, confrontation of witnesses at foreign depositions and custodial 
transfer of witnesses. Significantly, MLATs provide a framework for 
cooperating in the tracing, seizure and forfeiture of criminally-
derived assets.
    Despite these and other benefits, we realize that MLATs in 
themselves are not the solution to all aspects of law enforcement 
cooperation. They are similar to extradition treaties in that their 
success depends on our ability to implement them effectively, combining 
comprehensive and updated legal provisions with the competence and 
political will of our treaty partners. Our recognition of the 
importance of effective treaty implementation led to the development of 
a consultation clause that we include in our MLATs, to ensure that we 
will have regular dialogues with our treaty partners on the handling of 
our cases.
    While the two MLATs before the committee share certain standard 
features, their specific provisions vary to some extent. The 
transmittal packages explain these variations, which are the result of 
negotiations over a period of years with countries that have a 
different legal system from that of the United States and represent a 
different law enforcement priority for the United States.
    I would like to highlight how each of the MLATs before the 
committee reflects our international law enforcement priorities:

The United States-Germany MLAT
    The United States-Germany MLAT, signed on October 14, 2003, is the 
first such treaty between our countries and is the culmination of a 
lengthy negotiation. Upon its entry into force, the MLAT will enhance 
the existing mutual assistance relationship characterized by 
longstanding, collegial, but discretionary cooperation, and establish 
an obligation to provide assistance in the investigation and 
prosecution of offenses including terrorism, drug trafficking, fraud, 
and other serious crimes. The treaty provides for a broad range of 
cooperation in criminal matters, including taking the testimony or 
statements of persons; providing documents, records, and articles of 
evidence; locating or identifying persons; serving documents; 
transferring persons in custody for testimony or other purposes; 
executing requests for searches and seizures; assisting in proceedings 
related to immobilization and forfeiture of assets, restitution to the 
victims of crime and collection of fines; and any other form of 
assistance not prohibited by the laws of the State granting the 
assistance. Also, enforcement agencies such as the SEC that have 
authority to refer matters to the Department of Justice for criminal 
prosecution may make requests under the MLAT.
    In addition, this is the first United States MLAT to include 
special investigative techniques among permissible types of assistance. 
Specifically, Article 12 establishes that the Parties may use 
telecommunications surveillance, undercover investigations, and 
controlled deliveries, in accordance with their domestic law, in 
execution of requests for assistance. This provision was included at 
Germany's request, to assert the Federal government's legal authority, 
vis-a-vis the States, to undertake such actions on behalf of foreign 
authorities.

The United States-Japan MLAT
    The United States-Japan MLAT was signed on August 5, 2003, and is 
the result of nearly a decade of negotiations. The treaties with 
Germany and Japan complete our network of MLATs with our partners in 
the Group of Eight (G-8). Japan's legislative body, the Diet, has 
ratified the treaty, which is Japan's first MLAT, and enacted the 
necessary domestic legislation to implement it. The treaty will enhance 
law enforcement cooperation between our countries in the investigation 
and prosecution of a wide variety of crimes, including terrorism, drug 
trafficking, child exploitation and obscenity, antitrust violations, 
fraud, crimes against the environment, and others. Like other treaties 
in force, and the United States-Germany MLAT also presented for the 
committee's consideration today, the United States-Japan MLAT obligates 
the Parties to assist one another in investigations, prosecutions and 
other proceedings in criminal matters through the taking of testimony; 
producing documents and other items of evidence; inviting persons to 
testify in the requesting state; transferring persons in custody for 
testimony and other purposes; assisting in proceedings relating to 
forfeiture and any other assistance permitted under the laws of the 
requested party and agreed upon by the Central Authorities. In 
addition, concerning certain proceedings related to criminal offenses, 
Article 1(3) permits assistance in connection with an administrative 
investigation of suspected criminal conduct (e.g., the Securities and 
Exchange Commission's investigation of suspected securities fraud) in 
appropriate circumstances.
    A salient feature of the MLAT is the designation in Article 2 of 
two Central Authorities for Japan. The Central Authority is a key 
ingredient to the success of any mutual assistance relationship, as it 
is the entity that governs the execution of requests. For the United 
States, the Attorney General or a designee is the Central Authority; 
this duty has been delegated to the Office of International Affairs 
within the Department's Criminal Division. For Japan, the two 
designated Central Authorities are the Minister of Justice and the 
National Public Safety Commission, which oversees Japan's National 
Police Agency. A related Exchange of Notes sets forth the kinds of 
requests that each agency, headed by a co-equal, Cabinet-level 
official, will handle. During the negotiations, the Japanese delegation 
explained that this unusual, dual Central Authority approach will give 
their police the ability, in certain circumstances, to request 
assistance under the MLAT without going through the Ministry of 
Justice. They based their rationale on internal Japanese policies and 
the manner in which criminal cases are investigated and prosecuted in 
the Japanese legal system. This approach will have no negative effect 
on the process of making United States requests to Japan, or on Japan's 
execution of our requests. In fact, it memorializes our current 
practice and, as the Exchange of Notes states, the United States may 
continue to consult directly with the Japanese Ministry of Justice 
concerning any United States request under the treaty. The MLAT follows 
a modern dual criminality approach, with the limited exception of 
requests involving conduct not constituting a criminal offense under 
the laws of the requested Party and requiring compulsory process to 
execute. In such cases, the requested Party may deny assistance.

                               CONCLUSION

    We appreciate the committee's support in our efforts over the years 
to strengthen and enlarge the framework of treaties that assist us in 
combating international crime. We at the Department of Justice view 
extradition and mutual legal assistance treaties as particularly useful 
tools in this regard. In addition, as our network of international law 
enforcement treaties has grown in recent years, we have focused 
increasing efforts on implementing our existing treaties, with a view 
to making them as effective as possible in the investigation and 
prosecution of our most serious crimes, including those related to 
terrorism. We join our colleagues from the Department of State in 
urging the prompt and favorable consideration of these treaties, to 
enhance our ability to fight transnational crime. I will be pleased to 
respond to any questions the committee may have.

    The Chairman. Well, thank you very much, Ms. Warlow, for 
your testimony. As we mentioned, the prepared statements of 
both witnesses will be made a part of our record, in full.
    I have two very lengthy and complex questions with regard 
to the United States-U.K. treaty, so suffer with me through the 
reading of the question, but the questions have been crafted so 
that you will have opportunities to offer the technical 
responses that this hearing tries to bring about, because we 
are attempting to have as comprehensive a view as possible of 
each of the four treaties.
    The first treaty that we are talking about appears to be 
the more complex and more controversial and therefore we will 
work our way through that first of all. My question: There has 
been a great deal of interest in the provision of this new 
treaty relating to political motivation. The existing treaty 
with the United Kingdom as amended in 1986 prohibits 
extradition for political offenses while excluding certain 
violent offenses from being considered to be political 
offenses.
    Individuals whose extradition is requested for an offense 
that has been excluded from the political offense exception may 
raise in court a claim that the extradition request was made in 
order to try or punish them on account of their race, religion, 
nationality, or political opinion. Like the existing treaty, 
the new treaty would bar extradition for political offenses, 
again excluding certain violent crimes from this category. It 
also continues to prohibit extradition where the request for 
extradition is found to be politically motivated. However, in 
the United States such claims would be determined by the 
executive branch rather than by the courts.
    That being the case, let me ask you these questions. First, 
in what types of cases has the current provision permitting 
political motivation claims to be determined by the court been 
invoked in practice over the past 19 years, and with what 
results? Mr. Witten, do you have a response to that?
    Mr. Witten. Mr. Chairman, on this question I will ask my 
colleague Ms. Warlow to discuss some of the developments that 
have occurred since the 1985 supplementary treaty was brought 
into force and I will add any comments at the end.
    The Chairman. Very well. Ms. Warlow?
    Ms. Warlow. Thank you, Mr. Chairman. There have been very 
few cases in which this provision has been invoked. In sum, 
there have only been five persons who have availed themselves 
of this particular provision for judicial review of political 
motivation. The first was a case in which there was an asserted 
claim that the defendant, named Howard, would have suffered 
bias in his trial by virtue of his race. That claim was 
rejected by the First Circuit.
    The following four cases in fact involved offenses relating 
to Northern Ireland, described as terrorist-related or IRA-
related. They all arose in the early 1990s. The first was the 
case of a person named Smith. He was arrested in 1992. There 
was extensive litigation about his case. Ultimately, after a 
long process of litigation, in 1996 he was extradited to 
Ireland. He was released in 1998.
    The next three defendants, whose names were Art, Kirby, and 
Brennan, their cases were consolidated and again there was 
extensive taking of evidence about conditions in Northern 
Ireland. The claims of the defendants were heard exhaustively. 
The case continued on in various stages until the year 2000. So 
we had the first defendants arrested in 1992 until 2000. At 
that point the case was pending rehearing en banc before the 
Ninth Circuit.
    The cases were withdrawn by the United Kingdom in 2000, at 
the end of 2000, consistent with a general statement of policy 
by the United Kingdom that they were no longer seeking 
extradition of such defendants. It has not been invoked in any 
case since.
    The Chairman. Thank you.
    Secondly, is the provision in the new treaty which refers 
such claims to the executive branch consistent with the 
treatment of this issue in other modern U.S. extradition 
treaties?
    Mr. Witten. Mr. Chairman, yes, it is consistent. In fact, 
all of the treaties that this committee has considered over the 
years with the exception of the supplementary treaty with the 
United Kingdom have included a standard provision that the 
issue of political motivation or wrongful motivation would be 
handled by the executive branch. We are in an unusual situation 
here where one of our closest partners in the global war on 
terror has an additional burden of going through the U.S. court 
system on what is essentially an issue of the reasons for the 
extradition request being made, an issue that we would handle 
in all other treaties, including with Europeans and countries 
around the world, as a matter for the executive branch to sort 
through.
    The Chairman. Thirdly, why is it now appropriate in our 
extradition relations with the United Kingdom to remove this 
issue from the purview of the judiciary?
    Mr. Witten. Mr. Chairman, Ms. Warlow has outlined some of 
the difficulties that have transpired over the years as U.S. 
courts have been asked to analyze issues of prejudice to 
position and political motivation. Particularly in the last 4 
years in the aftermath of September 11th, the United States and 
the United Kingdom have had an extraordinarily close law 
enforcement and counterterrorism relationship. It is anomalous 
at this point for there to be a provision in one of our two 
fundamental law enforcement treaty bilateral relationships with 
the United Kingdom where the motivation of the United Kingdom 
is sorted out as a judicial matter rather than a matter for the 
executive branch.
    This administration strongly believes that the treaty with 
the United Kingdom should be rationalized and made equivalent 
to all of our other treaty partners.
    Ms. Warlow. I might just add, Mr. Chairman, that the 1985 
supplementary treaty was the first that had these explicit 
carveouts for certain types of offenses in the sense that they 
could not be considered political offenses. Since that time, 
the Senate has approved a number of treaties which have taken 
exactly the same approach. So there was, I believe, some 
initial concern that this new approach to the political offense 
might require an additional balance or additional inquiry by 
the judiciary.
    In fact, I believe every new treaty that we have concluded 
with a European partner has the same sort of approach with 
respect to political offense, but none of them have adopted 
this shifting of the inquiry to the judiciary rather than the 
executive.
    The Chairman. I thank the witnesses.
    Now, this question really raises a set of issues that have 
come essentially from letters to the committee. Obviously, the 
treaty that we were just discussing, and that you have just 
testified on in these first responses, is controversial and has 
brought much attention throughout now many years, and we have 
recited the history of the situation. The staffs of the 
committee have summarized in these questions some of the 
responses and I would like to ask your comments on these.
    I start by saying the committee has received letters 
expressing concerns regarding several of the treaty's 
provisions, in addition to questions concerning the treatment 
of political motivation, which we just discussed. I am going to 
read to you several excerpts from these letters. I would ask 
you for the administration's response.
    Number one. The first of these excerpts indicates a concern 
regarding the treaty's potential impact on the free speech 
rights of American citizens. It states, ``We are convinced that 
this treaty as it reads will trample on the rights of all 
Americans and especially Irish Americans to speak out on what 
we see as political and human rights violations by the United 
Kingdom in the north of Ireland or anywhere else.''
    Now, to witnesses: Please explain whether or how this new 
treaty could be used to extradite an individual from the United 
States for engaging in speech that would be protected under the 
United States Constitution.
    Mr. Witten. Thank you, Mr. Chairman. Mr. Chairman, the 
treaty could not be used in this manner. The treaty, like all 
of our other extradition treaties, requires a finding that the 
conduct at issue would constitute a criminal offense punishable 
by a sentence of 1 year or more if committed in the United 
States. Since engaging in constitutionally protected free 
speech cannot be punished as a crime in the United States, this 
test of dual criminality would fail and therefore the conduct 
in question would not be extraditable.
    The Chairman. I thank you.
    The second issue. One of the letters asserts that the 
treaty ``allows for extradition even if no American Federal law 
is violated.'' Is that an accurate assumption?
    Ms. Warlow. No, Mr. Chairman, it is not. Again, it is the 
issue of dual criminality which provides the protection. 
Extradition can succeed only if the conduct is criminal, 
recognized as a felony, in the United States. Now, it is not 
the case that it need be a Federal felony, but it can be also a 
State felony. This is an established practice in extradition 
law and of course it makes sense for us because we do not have 
a full Federal criminal code. It is limited.
    The Chairman. The third issue. This third excerpt addresses 
the procedures that may be applied under the new treaty to 
determine whether a person is extraditable. It states, ``The 
treaty would eliminate the need for Britain to present and show 
evidence before U.S. courts that the person requested for 
extradition is guilty of the crime he or she is charged with. 
They would only need to convince a member of the administration 
in office that a crime had been committed. Unsupported 
allegations of wrongdoing could be sufficient cause for 
extraditing law-abiding citizens.''
    What would be the administration's reaction to this 
statement?
    Mr. Witten. Mr. Chairman, the statement is incorrect. The 
treaty does not change the manner in which proceedings that 
would lead to extradition to the United Kingdom would be 
pursued. There would still be the obligation for the U.S. 
executive branch to present to a U.S. court enough evidence to 
satisfy the standard of probable cause. The statement assumes 
that these kinds of decisions would be made by the executive 
branch without the judiciary's involvement and in fact under 
both the new treaty and the existing treaty with the United 
Kingdom, like all of our other extradition partners, the 
executive branch must present sufficient evidence to meet the 
probable cause standard.
    The Chairman. The fourth situation. Another excerpt asserts 
that the treaty, ``allows for provisional arrest and detention 
for 60 days upon request by the United Kingdom without a court 
hearing or a trial, as well as the seizure of assets in the 
United States by the British government.''
    What is the administration's response to this assertion?
    Ms. Warlow. Mr. Chairman, this provision is not novel. It 
is a standard provision regarding provisional arrest and there 
are similar provisions in the existing treaties. In order to 
have someone provisionally arrested, a prosecutor must file a 
complaint with a judge that sets out sufficient information for 
the judge to make a determination that an arrest is warranted. 
Then a decision of whether or not the person is to be held or 
not is for the judge to determine. And the length of time, 60 
days, is a common length of time for provisional arrest.
    As to the question of seizure, in no way does the treaty 
authorize the United Kingdom to seize assets in the United 
States. A request for seizure has to be supported by facts 
sufficient to meet our legal requirements.
    The Chairman. A fifth issue. The letters also raise the 
issue of retroactive application of the treaty. One letter 
states, ``The terms of the proposed treaty will apply 
retroactively for offenses allegedly committed even before the 
treaty's ratification.''
    Is this accurate? And then furthermore, does the treaty 
permit extradition for an offense that was not criminalized in 
both countries at the time the conduct occurred? What would be 
the effect of precluding retroactive application of the treaty?
    Mr. Witten. Mr. Chairman, first, the statement is accurate, 
but there is nothing novel about a provision in an extradition 
treaty that the treaty could be invoked for conduct that took 
place before the treaty enters into force. It is a standard 
provision, and indeed both the existing treaty and the new 
treaty have provisions along these lines. The provision for 
retroactivity is in virtually all, perhaps all, of our modern 
extradition treaties.
    With respect to the aspect of your question, Mr. Chairman, 
about conduct that was not criminalized at the time it took 
place, this treaty would have nothing to do with the standard 
in the U.S. law of ex post facto. For the United States to seek 
extradition for conduct, it would have to be conduct that is 
criminalized under our law, and under our Constitution we would 
not be in a position to make criminal conduct that was not 
criminal at the time it took place.
    I will defer to my colleague for more on that.
    Ms. Warlow. That is fine.
    Mr. Witten. We have nothing further, Mr. Chairman.
    The Chairman. Finally, in this last excerpt I want to raise 
with you, the letter states, ``The treaty would effectively 
eliminate any statute of limitations.'' Now, this statement 
appears to refer to the fact that the new treaty contains a 
provision requiring the requested party to decide whether to 
grant extradition without regard to the statute of limitations 
in either party, which represents a change from the existing 
agreement.
    What was the reason for including this provision in the new 
treaty? Is the provision common in other modern U.S. 
extradition treaties and would extradited individuals be able 
to raise a statute of limitations defense before a competent 
court in the requesting party following their extradition?
    Mr. Witten. I will take that question, Mr. Chairman. The 
treaty does not in any way eliminate application of the statute 
of limitations for either the United States or the United 
Kingdom. What it does is it makes the issue of the statute of 
limitations an issue which we believe is appropriately reserved 
to the courts of the country requesting extradition and 
therefore irrelevant in the extradition proceeding itself.
    In our view it is not appropriate that a foreign court 
should seek to apply our own statute of limitations in an 
extradition proceeding or seek to apply its statute of 
limitations with respect to an offense committed in the United 
States. This is not a novel provision. It is found in several 
of our modern treaties.
    Also, I would have to stress that the person who is 
extradited in no way is inhibited in raising issues of statute 
of limitations in the context of their trial. So the treaty 
does not impinge on those rights or change this in any respect. 
In our view, this provision makes good sense. We have had many 
cases where we have seen courts grapple with trying to apply 
foreign statutes of limitations or their own statute of 
limitations to cases investigated under different procedural 
rules and this is an appropriate and common provision in our 
view.
    The Chairman. I thank you.
    Now, this question is not from writers of letters. This is 
my own. Our extradition relations with the United Kingdom are 
currently governed by a treaty dating back to 1972. Why do we 
need to replace this treaty and in what way will the new treaty 
improve U.S. efforts to obtain extradition of fugitives from 
the United Kingdom?
    Ms. Warlow. I would be happy to respond to your question. 
As you noted, our treaty is more than 30 years old and it is 
important for us, with the United Kingdom, one of our most 
important law enforcement partners, to have a state of the art 
treaty. Our practice under the old treaty was a difficult one 
for the reasons we described in our statements. The old list 
approach was very difficult and limiting. It did not allow us 
to capture modern offenses. The burden of proof was extremely 
difficult and has actually been abandoned by virtually all 
common law countries at this time.
    We need other modern mechanisms. A temporary surrender 
provision is quite important. We have at least two cases 
already on our radar screen that we think would be important 
ones where we would be able to surrender people soon for trial. 
One of them is a murder case. Another one is a case involving 
terrorism.
    This is an important treaty for the United States. I have 
to stress, we have in a sense a rather imbalanced extradition 
relationship with the United Kingdom by way of numbers. Our 
requests to the United Kingdom run five, six times as many as 
the United Kingdom's requests to us and they are a range of 
offenses from murders, narcotics, frauds. We also now have, I 
believe, six individuals now in custody in the United Kingdom 
who we sought the extradition of for terrorist offenses against 
the United States.
    So this is an extremely important relationship. It is a 
good relationship, and we have now come to the point where we 
can take advantage of improvements in UK extradition law that 
are memorialized in this treaty and then will control our 
relationship in the future. So it is a very important 
instrument for us from a law enforcement perspective.
    The Chairman. Are there any extradition requests from the 
United Kingdom now pending that relate to the conflict in 
Northern Ireland? If not, when was the last such extradition 
request received by the administration?
    Ms. Warlow. Mr. Chairman, there are no such requests. The 
last requests we received were the--I forget which of the 
defendants it would have been in the era of 1994. There have 
been none since. And those requests, as I noted, were in fact 
withdrawn in 2000.
    The Chairman. The supplementary treaty of 1985 narrowed the 
political offense exception to exclude certain violent offenses 
such as those covered by multilateral counterterrorism 
conventions to which both the United States and the United 
Kingdom are party. The new treaty would continue this trend. 
Does the United States have any active extradition requests to 
the United Kingdom related to acts of terrorism?
    Ms. Warlow. Yes, Mr. Chairman, we do. We have three older 
cases that involve persons who have been charged for 
involvement in the bombings of the U.S. embassies in Africa. We 
have I believe two cases involving persons who sought to 
establish jihadist camps in the United States. Another case 
involves material support of terrorism, which is from the 
District of Connecticut.
    The Chairman. I thank you.
    Now, this next question deals with the proposal for a 
treaty between the United States and the government of Israel 
amending the convention on extradition. The protocol would 
allow Israel to condition extradition of its resident nationals 
to the United States on assurances that any sentence imposed on 
them in the United States would be carried out in Israel. Do we 
have any other extradition treaties with similar provisions?
    Secondly, how would the provision work in practice? I 
understand that Israeli law has already been amended to include 
such a requirement. What has our experience been with Israel to 
date under this new law?
    Mr. Witten. Mr. Chairman, with respect to your first 
question, do we have any other extradition treaties with 
similar provisions, the answer is yes. The U.S.-Netherlands 
bilateral extradition treaty does have a provision that 
provides for extradition of its nationals with the 
understanding that a Dutch national can then serve his or her 
sentence in The Netherlands if extradited to the United States, 
convicted, and given a term of imprisonment.
    With respect to how this mechanism with Israel has worked 
in practice over the last few years, I will defer to my 
colleague Ms. Warlow. I will just make a brief comment, that in 
the last 5 years there has been tremendously positive 
cooperation between the U.S. and Israel on this very issue. 
This issue became very prominent, as you may remember, in the 
late 90s. The Israeli government was determined to make 
improvements in its domestic law that would facilitate 
extradition of its residents and nationals, and we are now in 
2005 seeing the very positive results of their efforts. We 
commend the Israeli government for all of its hard work in this 
area.
    The Chairman. Ms. Warlow?
    Ms. Warlow. Mr. Chairman, by way of the procedure that we 
use, if the fugitive--there is a reason to believe the fugitive 
is in a position to make a claim of Israeli citizenship, our 
practice is to provide an assurance at the time we seek the 
person's arrest or extradition that if they are found to be, in 
accordance with the Israeli law, both a national and resident 
of Israel at the time of the offense, we will agree that they 
will serve a sentence in Israel. We use the Council of Europe 
prisoner transfer treaty as our mechanism for doing this.
    The Israeli courts are the ones that determine whether or 
not the person is indeed a citizen and resident of Israel. I 
would like to point out that the issue of also finding that the 
person was a resident at the time of the offense significantly 
narrows the extent to which a person might avail themselves of 
this procedure. Of the Israeli nationals, of the 15 returned to 
the United States, 6 were serving, are serving their sentences 
here now because the Israeli courts found they were not 
nationals at the time of the offense.
    Something else that is quite important to us in this scheme 
and is explicitly reflected in the treaty itself is Israel's 
commitment that it will apply the sentence imposed by the 
United States. In other words, it does not use a resentencing 
under Israeli law.
    The Chairman. The 1962 convention currently bars 
extradition for offenses of a political character. The protocol 
would retain this bar, but exclude certain violent offenses 
from being considered political offenses under the treaty. Is 
this new provision consistent with other modern U.S. 
extradition treaties? For example, how does it compare to the 
new extradition treaty with the United Kingdom, which is also 
before us today?
    Mr. Witten. Mr. Chairman, the exclusions to the political 
offense exception in the Israeli and U.K. treaties are 
substantially similar. There are a few minor differences that 
resulted from the fact that these treaties are negotiated 
individually between us and our treaty partners. They each 
exclude from the political offense exception a list of serious 
crimes of violence and crimes relating to explosives and 
destructive devices.
    In addition, as you mentioned, Mr. Chairman, they exclude 
offenses that are covered under the multilateral law 
enforcement conventions to which the U.S. and the UK are party, 
such as the terrorist bombing convention, the terrorism 
financing convention, and other instruments.
    These exceptions are similar to those that are in quite a 
few of our other modern treaties and I will just mention for 
the record a number of important law enforcement partners--
Canada, France, Germany, Lithuania, Luxembourg, Poland, South 
Africa, and Spain. We have done similar narrowings of the scope 
of the political offense exception with all of them.
    Thank you, Mr. Chairman.
    The Chairman. The 1962 convention prohibits extradition 
where the prosecution would be time-barred under the laws of 
either country. Under the protocol, extradition would be 
prohibited only where the law of the requested party requires 
it to apply its own statute of limitations law as a condition 
to extradition and the prosecution would be time-barred under 
that law. How do you expect this provision to be implemented 
and what does Israeli law, in contrast to U.S. law, require on 
this point?
    Ms. Warlow. Thank you, Mr. Chairman. For the United States 
there is no provision of our law that requires us to test 
statute of limitations in the context of extradition. This is 
consistent with our policy, as I noted earlier. We believe that 
this issue is best reserved for the trial court, the court that 
is going to actually hear the case, and defendants are free to 
make any claim as to statute of limitations before the court 
where they are tried.
    We had in the context of the negotiations sought to have a 
complete elimination of the statute of limitations. This is 
very strongly our preferred view. At present Israeli law still 
requires that Israeli courts test the offense under Israeli 
statute of limitations. However, we are hopeful that this might 
change and the treaty is drafted in such a way that if Israel 
were to change its law and eliminate this requirement then 
either country would apply questions of statute of limitations 
in the extradition context.
    The Chairman. I thank you.
    I turn now to the questions on the United States-Federal 
Republic of Germany MLAT treaty. Is the U.S.-Germany MLAT 
consistent with the provisions of the MLAT signed by the United 
States and the European Union in June of 2003, and what is the 
relationship between these two treaties?
    Mr. Witten. Thank you, Mr. Chairman. The two treaties are 
largely consistent. They were actually negotiated in parallel. 
The U.S.-German MLAT negotiations extended back quite a number 
of years. The U.S.-EU negotiations began while the U.S.-German 
bilateral negotiations were in progress.
    In a few respects, the EU treaty will serve to amend or 
supplement the bilateral treaty with Germany and it will do the 
same thing with respect to all other modern MLATs with EU 
member states. We will be doing a short bilateral treaty with 
Germany that will be submitted to the Senate some time in 2006 
along with the U.S.-EU MLAT. Our plans are to submit to the 
Senate at the same time the U.S.-EU framework agreement on 
legal assistance and the bilateral treaties that have been 
negotiated with the individual EU member states that will form 
together, along with the bilateral MLATs, a fairly 
comprehensive and innovative law enforcement relationship for 
legal assistance.
    The Chairman. I thank you.
    Now, article 3 permits a party to deny assistance if a 
request's execution would prejudice the state's sovereignty, 
security, or other essential interests. Do you anticipate that 
Germany may use this provision to deny certain requests for 
business records or other information? Indeed, do the parties 
understand the term, ``essential interests,'' to encompass 
German data protection or privacy concerns?
    Ms. Warlow. Thank you, Mr. Chairman. Under this provision, 
which is common in our MLATs, we actually think it will be very 
rarely invoked and rarely, if at all, invoked with respect to 
business records, the type of information that you referred to. 
One of the reasons for that is that the treaty is very careful 
about providing for confidentiality and use limitations, which 
certainly have been a concern for Germany as to sensitive 
business data, for example, in the antitrust arena or with 
personal data.
    So we have a very rigorous regime that spells out what the 
uses are for information, onward uses, and confidentiality. So 
we think it is unlikely that these issues would rise to the 
basis of denial on an essential interests claim. Thank you.
    The Chairman. A third question. This treaty contains a new 
provision not seen in earlier U.S. MLATs that would permit each 
party, in accordance with its laws and upon the request of the 
other party, to employ certain special investigative techniques 
in its territory on behalf of the other party. These techniques 
are surveillance of telecommunications, controlled deliveries, 
and undercover criminal investigations by law enforcement 
officers of the other party.
    What is the purpose of this provision and how do you 
anticipate that it would be used in practice? Does United 
States law currently regulate or limit the ability of the 
United States to use such techniques on behalf of a treaty 
partner?
    Ms. Warlow. Thank you, Mr. Chairman. This is a newer 
provision and our understanding is that Germany wished to have 
it included. First, there is an increasing interest in Europe 
in setting out issues of what are called special investigative 
techniques in a treaty framework. Also, I believe there may 
have been an issue that Germany wanted to be sure these were 
included in the treaty so they could respond to requests from 
us on a federal level. So by including it in the treaty, it 
allowed them to do so. They have a very strong federalist 
system in Germany.
    In reality, from the perspective of United States practice 
it is not necessary for us to deal with issues of controlled 
delivery or undercover, authorized undercover activity in an 
MLAT itself. These are matters that we generally deal with 
through our police channels. If they are agreed upon at a 
police level by our DEA or FBI, they are somewhat--they do not 
necessarily require an MLAT from our perspective. Many European 
countries do, however, like us to make a request through an 
MLAT, for example, if we were having a controlled delivery.
    As to the issue of electronic surveillance, I would like to 
point out that the clause makes it clear that it is only to the 
extent permissible under our law. At present we do not have the 
authority to conduct electronic surveillance based solely on 
collecting evidence of a foreign crime. So that is not 
something that is in reality permitted under our law.
    The Chairman. I thank you both.
    I want to raise questions finally with regard to the United 
States-Japan MLAT. I understand that this agreement is the 
first mutual legal assistance treaty Japan has negotiated with 
any country. How does this treaty compare with other modern 
U.S. MLATs, and does it provide for all of the forms of 
assistance traditionally included in such agreements?
    Mr. Witten. Thank you, Mr. Chairman. It is our 
understanding that this is the first MLAT that Japan negotiated 
with any other country, and it is a major achievement in what 
is a good, very good law enforcement cooperation with Japan. 
But we are delighted, as the result of extensive and very 
productive negotiations with the Japanese government, to be in 
a position to ask this committee to approve the treaty.
    It compares--it is similar to those other MLATs that this 
treaty--excuse me--that this committee has considered, and it 
does include the essential provisions that are sought by the 
United States. This would include matters such as taking 
testimony, examining persons, inviting persons to testify, 
search and seizure of items, and so forth. While the Japan MLAT 
does not provide for service of judicial documents, that 
service is covered by the 1963 U.S.-Japan consular convention.
    Thank you.
    The Chairman. Under this treaty assistance may be provided 
in connection with administrative investigations of suspected 
criminal conduct at the direction of the requesting party. Does 
this represent an expansion of assistance traditionally 
provided under U.S. MLATs and what types of administrative 
investigations is it intended to cover? Could it be used, for 
example, to obtain assistance from Japan for administrative 
investigations of criminal conduct at the U.S. State level as 
well as at the Federal level?
    Ms. Warlow. Mr. Chairman, the inclusion of this sort of 
provision was an objective of ours in this treaty. We do try to 
make the treaties flexible enough that regulatory agencies that 
have the ability to refer matters for criminal investigation 
and prosecution can avail themselves of the MLATs.
    The types of investigations or agencies I think most 
typically would be the Securities and Exchange Commission, 
which does conduct investigations which often are referred to 
the Department of Justice for prosecution. We have other 
regulators of commodities under the Federal trade laws.
    Also, the treaty would permit State regulators of 
securities and similar agencies to also make requests. As in 
all our MLATs, they are tools available both to Federal and 
State law enforcement authorities.
    The Chairman. Let me ask either of you if you have any 
further comments or testimony on any of the four treaties as we 
attempt to complete this phase of the administration's 
responses?
    Ms. Warlow. No, Mr. Chairman. Just to thank you and the 
members for holding the hearing on these very important 
instruments.
    Mr. Witten. The same here, Mr. Chairman. Thank you very 
much for convening this hearing and considering these treaties.
    The Chairman. Well, we thank both of you for your 
preparation for the hearing and we look forward to continued 
consideration of the treaties. As has been mentioned, with the 
UK-United States-Ireland treaty there will be another hearing 
of the committee, probably in the next year, in calendar 2006, 
at which independent witnesses from outside the administration 
will be called upon for their testimony.
    I appreciate the staff work of Republican and Democratic 
staff members in the panels of discussion they have already 
conducted with you and other administration officials, as well 
as with other parties, to formulate the very best questions 
that we ought to ask prior to Senate consideration of the 
treaties. We thank you for the completeness of your statements 
today. We ask that you be open to questions that might be 
raised by other members of the committee. The schedule, as the 
Senator from Connecticut and I pointed out in our opening 
statements, is rigorous in the windup of some of our other 
issues on the Senate floor, and if you would respond swiftly to 
those inquiries that will help us complete our record.
    We thank you very much and the hearing is adjourned.

    [Whereupon, at 10:26 a.m., the committee was adjourned.]

                            A P P E N D I X

                              ----------                              

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

                     QUESTIONS FROM CHAIRMAN LUGAR

 Responses to Additional Questions Submitted for the Record by Senator 
   Lugar to Samuel Witten, U.S. Department of State, and Mary Ellen 
                   Warlow, U.S. Department of Justice

Extradition Treaty between the United States of America and the United 
        Kingdom of Great Britain and Northern Ireland (Treaty No. 108-
        23)
    Question. Some opponents of the treaty have raised concerns 
regarding Article 22(1), which states that the treaty ``shall apply to 
offenses committed before as well as after the date it enters into 
force.'' In testimony before the Committee on November 15, 2005, you 
indicated that provisions in extradition treaties allowing for 
application to offenses committed before their entry into force are 
standard in U.S. extradition practice. What would be the effect of 
precluding such application of this treaty?

    Answer. The treaty's provision on retroactivity is typical of the 
U.S. Government's extradition practice. If the extradition treaty 
applied only to offenses committed after the treaty entered into force, 
there would be no treaty under which a fugitive who committed an 
offense before the new treaty enters into force could be extradited 
(except, as described in Article 23(3), where documents in support of 
an extradition request have already been submitted to the courts of the 
Requested State).

    Question. Article 16(1) of the treaty provides: ``To the extent 
permitted under its law, the Requested State may seize and surrender to 
the Requesting State all items in whatever form, and assets, including 
proceeds, that are connected with the offense in respect of which 
extradition is granted.'' In testimony before the Committee on November 
15, 2005, you stated that, contrary to an assertion by opponents of the 
treaty, this provision does not authorize the United Kingdom to seize 
assets in the United States.

          (a) Please explain how this provision would work in practice.

          (b) Are such provisions found in other U.S. extradition 
        treaties?

    Answer. (a) Article 16 refers to the Requested State's ability to 
seize items and assets that are connected with the offense for which 
the fugitive is sought and transfer them to the Requesting State. This 
provision will be useful to law enforcement officials in some cases in 
securing evidence related to the offense for which the fugitive is 
sought.
    In practice, this provision would work in the following way: In its 
diplomatic note requesting provisional arrest or extradition, the 
Requesting State would ask the Requested State, pursuant to Article 16, 
to seize items connected with the offense and, if extradition is 
granted, to surrender those items to the Requesting State. In the 
United States, all such seizure and surrender actions would be carried 
out by U.S. authorities and would occur in accordance with U.S. law, 
including prohibitions against unreasonable searches and seizures found 
in the United States Constitution and in various state constitutions, 
and implemented in various federal and state statutes. Typically, law 
enforcement authorities would obtain a warrant from a judge to arrest 
the fugitive and, in executing the arrest warrant, will seize items and 
assets connected with the offense for which extradition is requested. 
If extradition is granted by the judge, and the Secretary of State 
authorizes the extradition, typically the U.S. authorities would turn 
over such items and assets, seized incident to arrest, pursuant to 
Article 16 of the treaty. If U.S. law enforcement authorities are 
unable to seize items incident to the arrest, they will have to obtain 
a seizure warrant, consistent with U.S. law, to seize those items. The 
seizure warrant would typically be obtained pursuant to a formal 
request for assistance under the Mutual Legal Assistance Treaty in 
place between the United States and the United Kingdom.

    (b) There is nothing novel about this provision; this same concept 
is contained in virtually all U.S. extradition treaties, including the 
existing U.S.-UK treaty currently in force between the two countries.

    Question. In testimony before the Committee on November 15, 2005, 
you stated that, in the case of extradition requests from the United 
Kingdom under this treaty, a U.S. court would determine whether there 
was enough evidence to satisfy the probable cause standard.

          (a) Please elaborate on the role U.S. courts would play under 
        this treaty in determining whether an individual may be 
        extradited to the United Kingdom.

          (b) What is the legal basis for the role of U.S. courts in 
        this process?

    Answer. U.S. extradition proceedings are undertaken pursuant to 
Sec. 18 U.S.C. Sec. 3184, which provides that a U.S. judge or 
magistrate judge determine whether there is sufficient evidence to make 
a determination of extraditability. The United States Constitution, 
together with federal case law, provides the standard used by the court 
to evaluate the sufficiency of the foreign evidence provided in support 
of an extradition request--probable cause to believe that the person 
who is before the court is the person charged or convicted in the 
foreign country and, in those cases where the person has not been 
convicted, probable cause to believe that person committed the offenses 
for which extradition is sought. The court also determines whether the 
offense for which extradition is sought is an extraditable offense 
under the treaty. In the case of the new treaty, the relevant question 
would be whether dual criminality exists, i.e. whether the conduct at 
issue is punishable under the laws in both States by deprivation of 
liberty for a period of one year or more or by a more severe penalty. 
In this context, the court would also consider any claims raised by the 
fugitive that the offense is a political offense. If the court issues 
an order of extraditability, the Secretary of State then determines 
whether to issue a surrender warrant.

    Question. In testimony before the Committee on November 15, 2005, 
you stated that the last three extradition requests from the United 
Kingdom for offenses related to the Northern Ireland conflict were 
withdrawn by the United Kingdom In 2000 ``consistent with a general 
statement of policy by the United Kingdom that they were no longer 
seeking extradition of such defendants.''

          (a) Please provide a copy of this UK policy statement.

          (b) Has the United Kingdom taken any other steps in regard to 
        fugitives wanted in connection with offenses related to the 
        Northern Ireland conflict that may be relevant to the potential 
        for extradition requests for such fugitives under this treaty?

    Answer. (a) A copy of a statement dated September 29, 2000, by 
Peter Mendelson, the Secretary State for Northern Ireland at that time, 
is attached. This document can also be accessed on the Internet from 
the UK government's official web site at http://www.nio.gov.uk.

    (b) Following the Belfast Agreement, the U.K. government introduced 
the Northern Ireland (Sentences) Act of 1998. The legislation outlined 
an early release scheme whereby prisoners could apply for ``release on 
licence'' after they had served two years in prison. The scheme covers 
a certain set of terrorist-related offences carrying a sentence of five 
years or more committed before April 10, 1998. ``Release on licence'' 
means that the individual is not in jail but must comply with certain 
conditions. The conditions are that the person does not support certain 
specified organizations (essentially those which are still involved in 
terrorism); does not become involved in the commission, preparation, or 
instigation of acts of terrorism; and, in the case of a life prisoner, 
does not become a danger to the public.
    In September 2000, the U.K. government announced (see the attached 
statement) that it would no longer pursue the extradition of 
individuals who, if they had remained within the Northern Ireland 
prison system, would now be eligible for early release. Kevin John 
Artt, Terrence Damien Kirby, and Pol Brennan (three individuals who 
were the subjects of the U.K. extradition requests to the United States 
in the 1990s) all fell within that category, and the U.K. is no longer 
seeking their extradition. The Government of the United Kingdom has 
informed the United States Government that there has been no change in 
this position since 2000.
    In 2003, the governments of the U.K. and the Republic of Ireland 
published a set of proposals in relation to terrorist suspects who are 
``one the run.'' These proposals were aimed at resolving an anomaly 
which arose from the 1998 early release scheme. The anomaly was that 
individuals who had gone ``one the run'' before the trial or escaped 
from prison before serving two years of their sentence would not be 
eligible for the early release scheme, whereas their counterparts who 
had stayed in prison would have been released on licence.
    Following a statement by the IRA on July 28, 2005, and the 
subsequent decommissioning of its weapons, the U.K. Government 
introduced legislation in November of 2005 to implement those 
proposals. However, the legislation was withdrawn by the Government of 
the United Kingdom from consideration by Parliament on January 11, 
2006. Secretary of State for Northern Ireland Peter Hain indicated in a 
statement to the Parliament that it was withdrawn because of opposition 
from victims' groups and from all Northern Ireland parties, including 
Sinn Fein. Sinn Fein, which had previously not opposed the legislation, 
decided that it could not accept that British military and police 
officials who were involved in criminal acts in connection with ``The 
Troubles'' in Northern Ireland would be eligible to participate in the 
proposed scheme.
    The withdrawal of this legislation does not change the status of 
individuals who have already been convicted and sentenced, including 
Artt, Kirby, and Brennan, in any way.

    [The information referred to above follows:]

----------------------------------------------------------------------------------------------------------------
                          Northern Ireland Office Media Centre Friday 29 September 2000
-----------------------------------------------------------------------------------------------------------------
Statement by Peter Mandelson:

Extradition of Convicted Fugitives

On 28 July, all remaining prisoners eligible under the early release scheme who had completed 2 years of their
 sentences were released as envisaged in the Good Friday Agreement.

The completion of these remaining releases has implications for a number of people who were sentenced to
 imprisonment for offences committed before the Good Friday Agreement, but who failed to complete these
 sentences. In most cases those concerned escaped from custody and fled to other countries up to 20 years ago.
 In many cases, extradition proceedings were initiated and in some of these the government is now being pressed
 by Court authorities to clarify its position.

Whether to pursue an extradition request depends on the public interest at stake, including the remaining
 sentence which the fugitive would stand to serve if he or she were returned. It is clearly anomalous to pursue
 the extradition of people who appear to qualify for early release under the Good Friday Agreement scheme, and
 who would, on making a successful application to the Sentence Review Commissioners, have little if any of their
 original prison sentence to serve.

In view of this and the time that has elapsed, I do not believe that it would now be proportionate or in the
 public interest to continue to pursue such cases.

If these individuals wish to benefit from the early release scheme, they will be able to return to Northern
 Ireland and make an application to the Sentence Review Commissioners. If this is granted, normal licence
 conditions, including liability to recall to prison, will apply. The decision has no implications for the
 prosecution of other offences where sufficient evidence exists. It is not an amnesty.

As with the rest of the early release programme, I do not under-estimate the hurt this decision may cause the
 victims of those whose extradition will no longer be pursued, and the onus it places on all of us to ensure
 that the Good Friday Agreement does result in a permanent peace in which there are no more victims.
----------------------------------------------------------------------------------------------------------------

    Question. Article 2(4) of the treaty provides for extradition for 
offenses committed outside the territory of the requesting party if the 
laws of the requested party similarly criminalize such conduct when 
committed outside of its territory. Where this condition is not met, 
the requested party may, in its discretion, permit extradition.

          (a) Do other U.S. extradition treaties contain similar 
        provisions regarding extraterritorial offenses?

          (b) What specific concerns led to the inclusion of this 
        provision in this treaty?

          (c) Are you aware of particular offenses for which there is 
        extraterritorial application under the law of the United 
        Kingdom, but not under U.S. law?

    Answer. (a) Yes. This type of provision is included in several of 
our modern extradition treaties. For example, our treaties with 
Argentina, Brazil, Canada, Hungary, South Africa, and South Korea, all 
contain similar provisions.

    (b) We seek this sort of provision where there may be a question 
whether extradition will be permitted for particular extraterritorial 
offenses, in light of the fact that U.S. criminal law often has 
extraterritorial application of some kind. For the United Kingdom, the 
dual criminality inquiry in extradition cases extends to the question 
of whether it could also exercise extraterritorial jurisdiction under 
similar circumstances. U.S. law, however, does not require such a 
strict duality of jurisdiction in extradition cases involving 
extraterritorial offenses. This type of provision accommodates both 
legal frameworks while providing as much flexibility as possible with 
respect to extraterritorial offenses.

    (c) As a general matter, the United Kingdom exercises less 
expansive extraterritorial jurisdiction than the United States. We are 
not aware of particular offenses for which there is extraterritorial 
application under the law of the United Kingdom, but not under U.S. 
law.

    Question. Some opponents of the treaty contend that it would 
eliminate the protection traditionally afforded to extradited 
individuals by the rule of specialty, which prohibits their prosecution 
in the requesting state for crimes other than those for which they were 
extradited. What is the Administration's response to this assertion?

    Answer. Both the current and new treaties with the United Kingdom 
contain the rule of specialty. The main difference is that, under the 
new treaty, in keeping with current international extradition practice, 
either party may request that the other party waive the rule of 
specialty. Indeed, provisions similar to the one contained in the new 
treaty with the United Kingdom are contained in virtually all of our 
modem extradition treaties, including Argentina, Belize, Austria, 
India, Peru, and Sri Lanka. In practice, rule of specialty waiver 
provisions are infrequently invoked. However, in certain circumstances, 
these treaty provisions are important, for example, where new 
information regarding criminal conduct surfaces that was not previously 
available to the Requesting State at the time the extradition was 
sought.

    Question. The existing extradition treaty with the United Kingdom 
employs a hybrid approach to determining what offenses are 
extraditable, permitting extradition for listed offenses, as well as 
other offenses that meet certain specified criteria. The new treaty 
would institute a pure dual criminality approach, meaning that offenses 
are extraditable if they are criminalized in both countries and 
punishable for a period of one year or more.

          (a) How do you anticipate that the new dual criminality 
        approach would facilitate U.S. efforts to apprehend fugitives 
        that have fled to theUnited Kingdom?

          (b) Are there particular crimes for which the United States 
        has not been able to obtain extradition under the existing 
        hybrid approach?

    Answer. (a) The new dual criminality approach will make it easier 
to incorporate new criminal offenses into the extradition relationship, 
thereby making it harder for fugitives to escape justice on the basis 
of legal technicalities characteristic of the old ``list'' approach.

    (b) Under the existing treaty's hybrid approach, the United States 
had not been able to obtain extradition for individuals charged with 
offenses such as conspiracy to commit white collar crimes, non-drug 
money laundering, and certain insider trading and antitrust crimes.
    Under new UK extradition legislation, the United States can now 
request extradition for these offenses. However, we understand from our 
UK counterparts that entry into force of the treaty and its new dual 
criminality approach will put an end to arguments from fugitives sought 
for extradition that try to exploit the inconsistency between the 
existing treaty and the UK's domestic law position which, since 2003, 
has employed a pure dual criminality approach when handling extradition 
requests from the United States.

    Question. Article 4(2) of the treaty contains a list of violent 
crimes to be excluded from consideration as political offenses. This 
list differs somewhat from the existing list of such offenses contained 
in the 1985 Supplementary Treaty. Please explain the differences 
between the two lists and the reasons these changes were made.

    Answer. As in other extradition treaties, the new treaty provides 
that certain types of offenses will not be considered to be political 
offenses for the purpose of evaluating a request for extradition. Many 
of these provisions, including (a), (c), (d), (e), and (g), are similar 
to provisions contained in the existing treaty.
    The addition of section (b) (``a murder or other violent crime 
against the person of a Head of State of one of the Parties, or of a 
member of the Head of State's family'') has become a routine provision 
under the political offense exception, in recognition of the inherent 
seriousness of attacks against heads of state.
    The addition of section (f) (``possession of an explosive, 
incendiary, or destructive device capable of endangering life, of 
causing grievous bodily harm or of causing substantial property 
damage''), which is not contained in any other extradition treaty of 
the United States, is designed to address the problem of an extremely 
narrow U.S. judicial interpretation of the more general language of the 
current U.K. supplementary treaty regarding explosives offenses. In the 
extradition case involving Pol Brennan, the United Kingdom sought the 
extradition of Brennan, who was arrested with a companion in downtown 
Belfast on the early afternoon of a business day in possession of an 
armed 23-pound bomb, which they intended to plant in a shop. Brennan 
was subsequently convicted of the offense of possession of explosives 
with intent to endanger life or injure property, escaped from prison, 
and was subsequently arrested in the United States. (Matter of Artt, 
972 F.Supp. 1253, 1260-1262 (N.D.Cal. 1997).) In the course of the U.S. 
extradition case against Brennan, the Court of Appeals for the Ninth 
Circuit held that this offense did not constitute an ``offense 
involving the use of a bomb'' excluded from consideration as a 
protected political offense under Article 1(d) of the Supplementary 
Treaty. Matter of Artt, 158 F.3d 462, 471-473 (9th Cir. 1998). The 
language of the new treaty makes it clear that such an explosives 
offense, like other serious crimes of violence, is not to be considered 
a ``political'' offense for which extradition is barred.
    The use of ``manslaughter'' in section (c) of the new treaty, as 
opposed to ``voluntary manslaughter'' in the 1985 Supplementary Treaty, 
is consistent with the language used in other recent U.S. extradition 
treaties, including Canada, Hungary, Luxembourg, and Poland. The use of 
``any form of unlawful detention'' in section (d) instead of ``serious 
unlawful detention,'' reflects the language used in other extradition 
treaties, including those with Canada, France, and Hungary. The use of 
``an offense involving'' certain acts, in section (d), is not unique to 
the new treaty--it is used in Article 1(d) of the 1985 Supplementary 
treaty. This same language is also used in other of our modern U. S. 
extradition treaties, including those with France, Hungary, and Poland.
    The changes to the wording in section (e) (``placing or using, or 
threatening the placement or use of, an explosive, incendiary, or 
destructive device or firearm capable of endangering life, causing 
grievous bodily harm, or of causing substantial property damage'') 
derive from our decision to have this language track the analogous 
international commitment in the United Nations Intemational Convention 
for the Suppression of Terrorist Bombings, an international law 
enforcement cooperation agreement to which both the United States and 
the United Kingdom are parties. Section (e) also includes unlawful use 
of firearms, which, of course, was beyond the scope of the U.N. 
Convention and, in this respect, is similar to the analogous provision 
in Article 1(d) of the existing treaty.
    The changes to the wording in section (g) (``an attempt or a 
conspiracy to commit, participation in the commission of, aiding or 
abetting, counseling or procuring the commission of, or being an 
accessory before or after the fact to any of the foregoing offenses'') 
closely reflect the wording of U.S. criminal law on principals and 
aiding and abetting, which states, in part, that ``[w]hoever commits an 
offense against the United States or aids, abets, counsels, commands, 
induces or procures its commission, is punishable as a principal.'' 18 
U.S.C. Sec. 2.
Protocol between the Government of the United States and the Government 
        of the State of Israel Amending the Convention on Extradition 
        (Treaty No. 109-3)
    Question. The Protocol would amend the existing 1962 Convention to 
replace the existing list of extraditable offenses with dual 
criminality approach, meaning that offenses would be extraditable if 
they are criminalized in both countries and punishable for a period of 
one year or more.

          (a) How do you anticipate that the new dual criminality 
        approach would facilitate U.S. efforts to apprehend fugitives 
        that have fled to Israel?

          (b) Are there particular crimes for which the United States 
        has not been able to obtain extradition under the existing list 
        approach?

    Answer. (a) The ``dual criminality'' approach facilitates U.S. 
efforts to obtain the extradition of fugitives from Israel by expanding 
the scope of extraditable offenses well beyond those specifically 
recognized in the existing convention's list. It allows the automatic 
extension of the convention's provisions to new forms of criminality 
that are made punishable as felonies in both countries in the future, 
without any need to update the convention as new forms of criminality 
emerge.

    (b) Under the new Protocol, the United States would now be able to 
obtain extradition for conduct not currently included on the list of 
extradition offenses, such as sexual abuse of boys as well as girls, 
money laundering (other than laundering of drug proceeds, which can be 
reached by virtue of application of the 1988 UN Convention against 
Illicit Traffic in Narcotic Drugs and Psychotropic Substances), and 
computer intrusions and hacking.

    Question. Why does Article 5 of the Protocol delete Article IX of 
the 1962 Convention? What was the purpose of Article IX and how has it 
been used?

    Answer. Article IX was originally intended to reflect the fact that 
domestic procedural law governed the extradition process, in the 
absence of specific treaty provisions. After review between the 
governments, we determined that the provision was unnecessary and could 
be misunderstood as permitting unilateral modification of the treaty's 
obligations through enactment of inconsistent domestic law.

Treaty between the United States of America and Germany on Mutual Legal 
        Assistance in Criminal Matters (Treaty No. 108-27)
    Question. Article 15(3) of the treaty would allow each party to use 
evidence or information obtained under the treaty, without the prior 
consent of the other, ``for averting substantial danger, to public 
security.'' This appears to be a new provision in U.S. mutual legal 
assistance treaty practice.

          (a) Why was this provision included in this treaty and under 
        what conditions do you envision that it might be invoked?

          (b) Will the Executive Branch seek to include similar 
        provisions in future mutual legal assistance treaties?

    Answer. (a) Article 15(3) of the MLAT with Germany permits a 
Requesting State, without the prior consent of the Requested State, to 
use evidence or information for certain specified purposes, e.g. 
``averting substantial danger to public security,'' other than for the 
particular criminal investigation or proceeding underlying the request. 
Germany sought this broadening of the strict MLAT use limitation 
article found in approximately half of our MLATs in order to reflect 
corresponding provisions of German privacy law which provide its law 
enforcement agencies additional flexibility to use information received 
from a foreign government. The United States anticipates that Article 
15(3) could be relied upon, for example, where information supplied by 
Germany about an individual who is the subject of a U.S. criminal 
prosecution also is relevant to a separate U.S. criminal investigation 
into threatened terrorist activity. This provision thus is helpful to 
the United States by creating a presumption that information received 
pursuant to an MLAT request can be used for prevention as well as 
prosecution purposes.

    (b) Similar language is included in Article 9(1)(b) of the 2003 
Agreement on Mutual Legal Assistance between the United States and the 
European Union, and in the implementing mutual legal assistance 
instruments currently being completed with each EU member state. The 
U.S.-EU Agreement, together with all implementing instruments, will be 
submitted to the Senate in 2006 for its advice and consent to 
ratification. Once these agreements enter into force, this additional 
flexibility in using information supplied pursuant to an MLAT request 
will be available to the United States in its judicial assistance 
relationships across the EU. Whether such a provision will be included 
in future U.S. MLATs with non-European governments will depend in part 
upon whether they have adopted privacy laws of the type found in 
Europe.

Treaty between the United States of America and Japan on Mutual Legal 
        Assistance in Criminal Matters (Treaty No. 108-12)
    Question. U.S. mutual legal assistance treaties traditionally 
provide for each party to designate a central authority, generally the 
Attorney General in the case of the United States, which will be 
responsible for making and receiving requests under the agreement. In 
this treaty, Japan has designated two central authorities--the Minister 
of Justice and the National Public Safety Commission.

          (a) Please explain how this dual central authority system 
        will work in practice.

          (b) Will it affect the ability of the United States to obtain 
        assistance under the treaty?

    Answer. (a) Japan has designated the Minister of Justice as the 
central authority for all requests made by the United States. In this 
regard, the Japan NH-AT will work the same way as other U.S. MLATs. 
With respect to requests made by Japan, the Minister of Justice will 
serve as the central authority for requests submitted by Japanese 
public prosecutors or the judicial police, or if a request requires 
examination of a witness in a U.S. court. The National Public Safety 
Commission will serve as the central authority for requests submitted 
by the Japanese National Police or imperial guard officers. The two 
Japanese agencies will establish a mechanism to avoid unnecessary 
duplication and facilitate efficient provision of assistance. If 
necessary, the U.S. Department of Justice may consult with the Japanese 
Ministry of Justice regarding the execution of any request, regardless 
of which agency initiated the request on the Japanese side.

    (b) This arrangement is not expected to affect the ability of the 
United States to obtain assistance under the treaty, since the Minister 
of Justice will be the central authority for all requests made by the 
United States. Thus, whenever the United States requests assistance 
under the treaty, the Japan MLAT will work in the same way as other 
MLATs.

                               __________

                      QUESTIONS FROM SENATOR BIDEN

 Responses to Additional Questions Submitted for the Record by Senator 
   Biden to Samuel Witten, U.S. Department of State, and Mary Ellen 
                   Warlow, U.S. Department of Justice

Extradition Treaty between the United States of America and the United 
        Kingdom of Great Britain and Northern Ireland (Treaty No. 108-
        23)
    Question. Are there any diplomatic notes or negotiating statements 
relative to the meaning of treaty terms about which the Committee has 
not been informed?

    Answer. No.

    Question. Has the executive branch prepared a technical analysis of 
the treaty, as was done in connection with consideration of extradition 
treaties in the 105th, 106th, and 107th Congresses (no such treaties 
were considered in the 108th Congress)? If so, please provide it. If 
not, why was such analysis not prepared?

    Answer. No technical analysis of the treaty was prepared. For a 
number of years, the executive branch drafted technical analyses for 
bilateral law enforcement treaties, motivated largely by the need to 
explain mutual legal assistance treaties (which at the time were new 
and innovative types of law enforcement instruments) to U.S. 
prosecutors and the public. After more experience and upon further 
consideration, the executive branch determined that these analyses, 
which are not typically prepared for other treaties, were no longer 
needed. Moreover, the content of such technical analyses of law 
enforcement treaties had become largely duplicative of the section-by-
section analysis provided in the Secretary of State's Report (provided 
to the Foreign Relations Committee as part of the President's 
transmittal package) on each treaty.

    Question. On August 3, 2004, the Department of State issued a 
``Fact Sheet'' on the treaty. Does it provide an authoritative 
representation of the views of the Executive Branch regarding the 
treaty terms that are addressed by the fact sheet?

    Answer. The Fact Sheet was prepared in an effort to address, in 
plain language, questions that had been posed about aspects of the 
proposed new U.S.-UK extradition treaty. It is meant to serve as a 
general guide to the new treaty, but the Administration's definitive 
view of relevant issues is provided in the transmittal documents given 
to the Foreign Relations Committee and in the administration's November 
15, 2005 testimony.

    Question. Please provide data on the following:

          (a) The number of extradition requests made by each party 
        under the current U.S.-U.K. extradition treaty in the last five 
        years (on either a calendar year or fiscal year basis), and 
        information on the number of such requests that were (1) 
        approved, (2) not approved, or (3) withdrawn.

          (b) Of all requests filed by the United States to the United 
        Kingdom since January 1, 2003, provide a general summary of the 
        types of cases (e.g., numbers of cases involving terrorist 
        offenses, number of cases involving violent crimes, number of 
        cases involving narcotics charges, number of cases involving 
        fraud offenses).

    Answer.

    (a) Approximate number of U.S. extradition requests to the United 
Kingdom during calendar years 2001 through 2005: 116. Of these, 
approximately 20 were approved, 2 were not approved, 10 were withdrawn, 
and approximately 36 are currently being litigated in UK courts. 
(Others had dispositions such as: the fugitive died prior to 
disposition; the fugitive waived extradition proceedings; the fugitive 
was subsequently arrested in the United States; the fugitive was 
subsequently located in a third country; the fugitive could not be 
located; or the fugitive has been found extraditable and is in custody 
in the United Kingdom but cannot be surrendered until he has served his 
UK sentence.)
    Approximate number of UK extradition requests to the United States 
during calendar years 2001 through 2005: 33. Of these, approximately 7 
were approved, 2 were not approved, 2 were withdrawn, and approximately 
4 are pending but not yet the subject of judicial proceedings in the 
United States. (Others had dispositions such as: the fugitive was 
deported; the fugitive waived extradition proceedings; the fugitive was 
subsequently located in a third country; the fugitive could not be 
located; or the fugitive has been found extraditable and is in custody 
in the United States but cannot be surrendered until he has served his 
U.S. sentence.)

    (b) A general breakdown of the U.S. extradition requests made to 
the United Kingdom between January 1, 2003, and the present, by types 
of crimes together with their approximate numbers, is as follows:

   Fraud and other white collar crimes (including money 
        laundering, forgery and counterfeiting, and tax offenses): 22

   Terrorism (including supporting terrorist activities and 
        weapons of mass destruction): 8

   Narcotics offenses: 14

   Violent crimes (including homicide, attempted homicide, 
        assault, robbery, burglary, and weapons/firearms offenses): 12

   Kidnapping (including parental abduction): 2

   Sexual offenses (including child molestation/rape and child 
        pornography): 10

    Question. The proposed treaty excludes Article 3 of the 1985 
Supplementary Treaty, which provided that extradition would not occur 
if the fugitive established before a U.S. court, by a preponderance of 
the evidence, that the request for extradition was made on account of 
his race, religion, nationality, or political opinion, or that he would 
be prejudiced at trial by reason of his race, religion, nationality, or 
political opinion. By its terms, this provision from the 1985 
Supplementary Treaty is broader than the political motivation provision 
barring extradition under Article 4(3) of the proposed treaty.

          (a) What was the rationale for eliminating the provisions of 
        Article 3 of the Supplementary Treaty?

          (b) Please describe all instances where a fugitive sought 
        judicial review under Article 3 of the 1985 Supplementary 
        Treaty and extradition was denied on a basis set forth in that 
        article.

    Answer. In U.S. law and practice, the question of ``political 
motivation'' and questions regarding motivation based on similarly 
improper bases such as race or religion, are determined by the 
Secretary of State. This responsibility of the Secretary of State has 
been recognized by U.S. courts in the longstanding ``Rule of Non-
Inquiry,'' whereby courts defer to the Secretary in evaluating the 
motivation of the foreign government. This principle recognizes that 
among the three branches of the U.S. Government, the Executive branch 
is best equipped to evaluate the motivation of a foreign government in 
seeking the extradition of an individual. The U.S. Government's 
extradition treaties reflect the fact that the U.S. Secretary of State 
appropriately makes this judgment, and not the U.S. courts.
    Indeed, until 1985, the issue of motivation of the Government of 
the United Kingdom in making an extradition request of the United 
States was treated the same as in all of our other extradition 
relationships--the courts played no role in reviewing this issue. In 
1985, however, as part of an amendment of other aspects of the UK 
extradition relationship, the U.S. Senate developed what became Art. 
3(a) of the 1972 U.S.-UK extradition treaty, as amended by the 1985 
supplementary treaty, which states that extradition ``shall not occur 
if the person sought establishes to the satisfaction of the competent 
judicial authority by a preponderance of the evidence that the request 
for extradition has in fact been made with a view to try or punish him 
on account of his race, religion, nationality, or political opinions, 
or that he would, if surrendered, be prejudiced at his trial or 
punished, detained or restricted in his personal liberty by reason of 
his race, religion, nationality or political opinions.'' This text was 
added pursuant to the Senate's Resolution regarding advice and consent 
to the 1985 supplementary treaty.
    This anomalous treaty provision has led to long, difficult, and 
inconclusive litigation in several cases, where U.S. courts were thrust 
into the unfamiliar and inappropriate position of addressing motivation 
of a foreign government. The provision for judicial review of political 
motivation claims has been invoked in five cases, all dating from the 
early 1990s. The first involved Curtis Andrew Howard, who claimed he 
would be prejudiced in legal proceedings in the United Kingdom because 
of his race. He was extradited in 1993. The other four of these cases 
involved persons of Irish Catholic background who were convicted of 
crimes of violence in Northern Ireland, and who escaped from prison in 
Northern Ireland in 1983 and fled to the United States.
    The first of these cases involved James Joseph Smyth, who had been 
convicted of the attempted murder of a prison guard. More than 40 
witnesses were heard at his extradition hearing, and a 5-week 
evidentiary hearing was held. (Ultimately, the record in the case 
exceeded 3,000 pages.) In 1996, Smyth was finally extradited from the 
United States to the United Kingdom. He was subsequently released from 
prison in 1998 pursuant to an accelerated release law, the Northern 
Ireland (Sentences) Act 1998, that grew out of the Belfast Agreement. 
The next three cases involved defendants Kevin John Artt, Terence 
Damien Kirby, and Pol Brennan, who were arrested separately in the 
United States between 1992 and 1994. Their extradition cases were 
consolidated for consideration by U.S. courts. All had been convicted 
in the UK judicial system of felonies and sentenced to terms of 
imprisonment. Artt was convicted of murdering a prison official; Kirby 
was convicted of offenses of possession of explosives and a submachine 
gun, false imprisonment, assault, and felony murder arising out of two 
separate incidents; Brennan was convicted of possession of explosives. 
There was extensive litigation and testimony in the U.S. District Court 
regarding their claims of prejudice under Article 3 of the 1985 
supplementary treaty and numerous appeals. This litigation was and is 
unprecedented; as U.S. courts were put in the position of evaluating 
defendants' claims of generalized, systemic bias within a foreign 
system of justice. In 2000, the United Kingdom withdrew its request for 
extradition, consistent with its announcement that it would not be 
seeking the extradition of persons who, if they had remained in prison 
in Northern Ireland, would have benefited from the 1998 early release 
law.

    Question. Article 4(3) of the proposed treaty provides that 
extradition shall not be granted if the competent authority of the 
Requested State determines that the request was politically motivated. 
Please describe the process of review in the Executive Branch when a 
person whose extradition has been certified by a court under 18 U.S.C. 
Sec. 3184 makes such a claim. In the last five calendar years, how 
often has the Secretary of State denied extradition under similar 
provisions in other bilateral extradition treaties?

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

    Question. Please provide information on the number of deportations 
from the United States to the United Kingdom or Ireland in the last 
five years (on either a calendar year or fiscal year basis).

    Answer.

                                  Removals (not including expedited removals):
----------------------------------------------------------------------------------------------------------------
                                                                 FY 2001   FY 2002   FY 2003   FY 2004   FY 2005
----------------------------------------------------------------------------------------------------------------
Ireland.......................................................       50        64        69        63        43

UK............................................................      329       462       430       369       325
----------------------------------------------------------------------------------------------------------------

    Expedited Removals: The following figures for expedited removals 
are not complete because, we understand, these figures were not being 
kept before 2004 and, even then, the figures are not complete even for 
2004 and 2005.

                           Expedited Removals:
------------------------------------------------------------------------
                                                    FY 2004     FY 2005
------------------------------------------------------------------------
Ireland.........................................          4          12

UK..............................................         34          21
------------------------------------------------------------------------

    Question. Please elaborate on how Article 2(4), which permits 
extradition even if the laws of the requested state do not provide for 
punishment of such conduct committed outside its territory, is 
consistent with the requirement of dual criminality in Article 2(1). 
Additionally, please provide information on what crimes might be 
covered by this provision.

    Answer. Article 2(4) addresses a disparity between U.S. and UK 
extradition law and practice regarding extraterritorial offenses.
    For the United States and most other countries, there is no 
requirement of equivalence of extraterritorial jurisdiction in the 
extradition context, and thus provisions such as Article 2(4) do not 
appear at all in many extradition treaties. However, the United Kingdom 
and some other common law countries do condition extradition not only 
on a finding of ``dual criminality'' but also, with respect to 
extraterritorial offenses, on a finding that the United Kingdom could 
also have exercised jurisdiction in similar circumstances. To 
accommodate this difference, Article 2(4) gives the Requested State the 
discretion to deny a request for extradition where it would not have 
had similar authority to exercise extraterritorial jurisdiction. 
(Israel's extradition law is similar to the United Kingdom's in this 
respect, and a similar provision can be found in Article III of the 
1962 U.S.-Israel extradition treaty, which is unchanged by the Protocol 
before the Committee.)
    Thus, Article 2(4) addresses a jurisdictional issue present in the 
law of the United Kingdom and some other countries, whereas Article 
2(1) addresses the criminal nature of the conduct itself.
    Currently, Article 2(4) would potentially cover some types of 
crimes related to sex with children (where the U.S. statute is broader 
than the corresponding UK statute), and certain types of murder (where 
the UK statute is broader than the U.S. statute). At the time the 
treaty was negotiated, Article 2(4) had been relevant to an even wider 
group of offenses, such as some terrorism-related and counterfeiting 
offenses, but UK law is now more flexible in these areas.

    Question. Ms. Warlow testified that in 2000, requests for 
extradition of Artt, Kirby and Brennan were withdrawn by the United 
Kingdom, ``consistent with a general statement of policy by the United 
Kingdom that they were no longer seeking extradition of such 
defendants.'' Does the Executive Branch have any information from the 
government of the United Kingdom that the policy remains in effect? 
Please elaborate.

    Answer. In September 2000, the UK government announced that it 
would no longer pursue the extradition of individuals who, if they had 
remained within the Northern Ireland prison system, would now be 
eligible for early release. Kevin John Artt, Terence Damien Kirby, and 
Pol Brennan, (three individuals who were the subjects of UK extradition 
requests to the United States in the 1990s), all fell within that 
category, and the UK is no longer seeking their extradition. The 
Government of the United Kingdom has informed the United States 
Government that there has been no change in this position since 2000.

    Question. There are several differences between the political 
offense exception set forth in the 1985 Supplementary Treaty and the 
proposed treaty. Please elaborate on the rationale for, and the 
significance of, each the following textual changes:

          (a) In Article 4(2)(c): ``manslaughter'' (proposed treaty) 
        instead of ``voluntary manslaughter'' (1985 Supplementary 
        Treaty);

          (b) In Article 4(2)(d): ``any form of unlawful detention'' 
        (proposed treaty) instead of ``serious unlawful detention'' 
        (1985 Supplementary Treaty);

          (c) In Article 4(2)(d): ``an offense involving'' certain 
        acts, such as kidnaping (proposed treaty) rather than the 
        listing of the acts (1985 Supplementary Treaty);

          (d) In Article 4(2)(f): ``possession of an explosive, 
        incendiary. . . .'' (proposed treaty); the 1985 Supplementary 
        Treaty contains no analogous provision on possession.

    Answer. The words and phrases chosen in Article 4 were negotiated 
between the two governments to ensure that the exceptions to political 
offense were clearly stated in a way that would reflect modern 
extradition practice in the two governments and would also be 
consistent with other modern U.S. treaties. They reflect careful 
consideration by relevant U.S. Government components, including the 
Justice Department's Office of International Affairs, which supervises 
the litigation of extradition cases in U.S. courts and the manner in 
which various phrases in these treaties have been litigated.

    (a) The use of ``manslaughter'' in section (c) of the new treaty, 
as opposed to ``voluntary manslaughter'' in the 1985 Supplementary 
Treaty, reflects the language used in other of our modern extradition 
treaties, including those with Canada, Hungary, Luxembourg, and Poland.

    (b) The use of ``any form of unlawful detention'' in section (d) 
instead of ``serious unlawful detention,'' as in the 1985 Supplementary 
Treaty, reflects the language used in other of our modern extradition 
treaties, including those with Canada, France, and Hungary.
    (c) The use of ``an offense involving'' certain acts, in section 
(d), is not unique to the new treaty--it is used in Article 1(d) of the 
1985 Supplementary treaty. This same language is also used in other of 
our modern extradition treaties, including those with France, Hungary, 
and Poland.

    (d) The addition of section (f) (``possession of an explosive, 
incendiary, or destructive device capable of endangering life, of 
causing grievous bodily harm or of causing substantial property 
damage'') is designed to address the problem of an extremely narrow 
U.S. judicial interpretation of the more general language of the 
current U.K. supplementary treaty regarding explosives offenses. In the 
extradition case involving Pol Brennan, the United Kingdom sought the 
extradition of Brennan, who was arrested with a companion in downtown 
Belfast on the early afternoon of a business day in possession of an 
armed 23-pound bomb, which they intended to plant in a shop. Brennan 
was subsequently convicted of the offense of possession of explosives 
with intent to endanger life or injure property, escaped from prison, 
and was subsequently arrested in the United States. (Matter of Artt, 
972 F.Supp. 1253, 1260-1262 (N.D.Cal. 1997)) In the course of the U.S. 
extradition case against Brennan, the Court of Appeals for the Ninth 
Circuit held that this offense did not constitute an ``offense 
involving the use of a bomb'' excluded from consideration as a 
protected political offense under Article 1(d) of the Supplementary 
Treaty. Matter of Artt, 158 F.3d 462, 471-473 (9th Cir. 1998). The 
language of the new treaty makes it clear that such an explosives 
offense, like other serious crimes of violence, are not to be 
considered ``political'' offenses for which extradition is barred.

    Question. Article 4(2)(f) of the proposed treaty provides that mere 
possession of certain items would not be covered by the political 
offense exception. Of course, the dual criminality provision of Article 
2 would apply.

          (a) Is there such an offense under U.S. law? If so, please 
        elaborate. If not, why is this provision contained in the 
        proposed treaty?

          (b) Is such a provision set forth in any other extradition 
        treaty to which the United States is a party?

    Answer. (a) There are certain offenses under U.S. law that 
criminalize possession of explosives and other dangerous items, 
particularly in settings where danger to public safety is heightened. 
For example, it is a felony to possess an explosive in an airport (18 
U.S.C. Sec. 844(g)) or to transport a hazardous material aboard a civil 
aircraft (49 U.S.C. Sec. 46312). It is also a federal felony to possess 
stolen explosives (18 U.S.C. Sec. 18 U.S.C. 842(h)); to possess 
explosives during the commission of another federal felony (18 U.S.C. 
Sec. 844(h)); to possess explosive or incendiary missiles designed to 
attack aircraft (18 U.S.C. Sec. 2332g); to possess radiological 
dispersal devises (18 U.S.C. Sec. 2332h); or to possess nuclear 
materials (18 U.S.C. Sec. 831)). Possession of explosives or similar 
materials may also be an offense under the laws of individual U.S. 
states. See, for example, Chapter 21, Article 37, Section 3731(a) of 
the Kansas criminal code, which states that ``[c]riminal use of 
explosives is the possession, manufacture or transportation of 
commercial explosives; chemical compounds that form explosives; 
incendiary or explosive material, liquid or solid; detonators; blasting 
caps; military explosive, fuse assemblies; squibs; electric match or 
functional improvised fuse assemblies; or any completed explosive 
devices commonly known as pipe bombs or Molotov cocktails.''
    As discussed in response to the previous question, the addition of 
section (f) (``possession of an explosive, incendiary, or destructive 
device capable of endangering life, of causing grievous bodily harm or 
of causing substantial property damage'') is designed to address the 
problem of an extremely narrow U.S. judicial interpretation, in the 
context of political offense, of the more general language of the 
current UK supplementary treaty regarding explosives offenses, where 
the court focused on the nomenclature of the offense rather than on the 
conduct.

    (b) This provision is not contained in any other extradition treaty 
of the United States. As noted above in subsection ``a'' of this 
answer, the language was negotiated in the aftermath of a judicial 
decision interpreting the relevant language in the current U.S.-UK 
treaty.

    Question. Article 4(2)(e) would seem to be largely covered by 
paragraph 2(a), by virtue of the fact that both the United States and 
the United Kingdom are parties to the International Convention for the 
Suppression of Terrorist Bombings. Are there any material differences 
between the two provisions? What does paragraph 2(e) add that is not 
covered by 2(a)?

    Answer. The changes to the wording in section (e) (``placing or 
using, or threatening the placement or use of, an explosive, 
incendiary, or destructive device or firearm capable of endangering 
life, causing grievous bodily harm, or of causing substantial property 
damage'') derive from our decision to have this language track the 
analogous international commitment in the United Nations International 
Convention for the Suppression of Terrorist Bombings, an international 
law enforcement cooperation agreement to which both the United States 
and the United Kingdom are parties. Section (e) also includes unlawful 
use of firearms, which, of course, was beyond the scope of the U.N. 
Convention and, in this respect, is similar to the analogous provision 
in Article 1(d) of the existing treaty.

    Question. Article VIII(1) of the current treaty governs provisional 
arrest. It provides, inter that the application for provisional arrest 
shall contain ``such further information, if any, as would be necessary 
to justify the issue of a warrant of arrest had the offense been 
committed, or the person sought been convicted, in the territory of the 
requested party.'' This language is omitted from Article 12 of the 
proposed treaty. Why?

    Answer. The provisional arrest language of the 1972 treaty has not 
been continued in this or other modern treaties because it does not 
provide sufficient guidance about what information should be provided 
at the provisional arrest stage--those urgent cases where it is 
appropriate to effect the immediate arrest of the fugitive--as opposed 
to the information that must be submitted with the formal extradition 
request to support a final judicial determination of extraditability.
    The language of Article VIII(1) of the 1972 treaty states that the 
provisional arrest request should contain ``an indication of intention 
to request the extradition of the person sought and a statement of the 
existence of a warrant of arrest or a conviction against that person, 
and, if available, a description of the person sought, and such further 
information, if any, as would be necessary to justify the issue of a 
warrant of arrest had the offense been committed in the territory of 
the requested Party.'' Article VII(3) of the 1972 treaty provides that 
the formal extradition request, in the case of a person not yet 
convicted, must include information that ``would justify [the 
fugitive's] committal for trial if the offense had been committed in 
the territory of the requested Party . . . .'' From the perspective of 
U.S. practitioners, the antiquated language of these two provisions is 
not particularly helpful and would therefore not typically be included 
in a modern extradition treaty.
    The purpose of provisional arrest is to permit, in urgent 
circumstances, the immediate arrest of the fugitive, pending the 
submission of the formal extradition documents which must be sufficient 
to meet all the requirements for extradition under the treaty and the 
domestic law of the requested country. Thus, information submitted in 
the context of provisional arrest is necessarily more abbreviated. The 
provision of the 1972 treaty gave no guidance as to what ``further 
information,'' beyond the existence of a warrant and description of the 
fugitive, might be required and indeed suggested that no further 
information at all might be necessary. Article 12(2) of the new treaty 
makes it clear that more information is required and provides guidance 
as to the several categories of information U.S. courts are likely to 
expect in order to issue a provisional arrest warrant.
    In addition, the language of Articles VII and VIII of the 1972 
treaty is confusing because the distinction it clearly means to draw 
between the abbreviated provisional arrest request made in urgent 
circumstances and the fully documented formal extradition request is 
muddied by referencing standards of proof at two stages in a domestic 
criminal case--arrest and committal for trial--which are not in fact 
different under much of modern U.S. criminal procedure.
    The new treaty resolves these difficulties by requiring more 
information about the offense and offender at the provisional arrest 
stage, and by making clear in Article 8(3)(c) that the formal 
extradition request must include information sufficient for the U.S. 
court to determine probable cause to believe the fugitive committed the 
offense for which extradition is sought.

    Question. The current treaty provides for a probable cause standard 
for extradition. Article 2 of the 1985 Supplementary Treaty explicitly 
states that an individual sought for extradition may present evidence 
whether there is probable cause; Article IX(1) of the 1972 treaty 
provides that extradition shall only be granted if the evidence is 
sufficient ``according to the law of the requested Party'' to ``justify 
the committal for trial of the person sought'' if the offense had been 
committed in the territory of the requested party; and Article VII(3) 
provides that request must be accompanied by ``such evidence as, 
according to the law of the requested Party, would justify his 
committal for trail if the offense had been committed in the territory 
of the requested Party.''
    The proposed treaty contains only the last provision (in Article 
8(3)(c)), requiring that the request for extradition to the United 
States be supported by ``such information as would provide a reasonable 
basis to believe that the person sought committed the offense for which 
extradition is requested.''

          What is the standard for extradition from the United States 
        under the proposed treaty, and upon what specific provisions of 
        the treaty and U.S. law is that standard based?

    Answer. The standard for extradition from the United States under 
Article 8(3)(c) of the proposed treaty and under U.S. law is that of 
probable cause. Under U.S. law, the United States Constitution, 
together with federal case law, provides the standard used by courts to 
evaluate the sufficiency of foreign evidence provided in support of an 
extradition request. The applicable standard requires there be probable 
cause to believe that the person who is before the court is the person 
charged or convicted in the foreign country and, in those cases where 
the person has not been convicted, probable cause to believe that 
person committed the offenses for which extradition is sought. See 
United States v. Wiebe, 733 F.2d 549, 553 (8th Cir. 1984) (``The 
probable cause standard applicable in extradition proceedings is 
defined in accordance with federal law and has been described as 
evidence sufficient to cause a person of ordinary prudence and caution 
to conscientiously entertain a reasonable belief of the accused's 
guilt.'') (internal quotation marks omitted).

    Question. Article 16 of the proposed treaty provides for, ``[t]o 
the extent permitted under its law,'' the seizure and surrender by the 
requested State of assets connected with the offense in respect of 
which extradition is granted.

          (a) Please summarize U.S. law on such seizure and surrender.

          (b) In extradition cases, at what point in time does such 
        seizure occur?

          (c) Most modern U.S. extradition treaties, as well as the 
        1972 treaty with the United Kingdom, contain a statement that 
        the rights of third parties shall be respected. Why is such a 
        statement not included in Article 16 of the proposed treaty?

    Answer. In the United States, all such seizure and surrender 
actions would be carried out by U.S. authorities and would occur in 
accordance with U.S. law, including prohibitions against unreasonable 
searches and seizures found in the United States Constitution and in 
various state constitutions, and implemented in various relevant 
federal and state statutes.
    Like in other U.S. treaty relationships, under the UK treaty in a 
diplomatic note requesting provisional arrest or extradition, the 
Requesting State would ask the Requested State, pursuant to Article 16, 
to seize items connected with the offense and, if extradition is 
granted, to surrender those items to the Requesting State. Typically, 
law enforcement authorities would obtain a warrant from a judge to 
arrest the fugitive and, in executing the arrest warrant, will seize 
items and assets connected with the offense for which extradition is 
requested. If extradition is approved by the judge, and the Secretary 
of State authorizes the extradition, typically the U.S. authorities 
would turn over such items and assets, seized incident to arrest, 
pursuant to Article 16 of the treaty. If U.S. law enforcement 
authorities are unable to seize items incident to the arrest, they will 
have to obtain a seizure warrant, consistent with U.S. law, to seize 
those items. The seizure warrant would typically be obtained pursuant 
to a formal request for assistance under the Mutual Legal Assistance 
Treaty in place between the United States and the United Kingdom.
    There is nothing novel about this provision; this same concept is 
contained in virtually all U.S. extradition treaties, including the 
existing U.S.-UK treaty currently in force between the two countries.
    A statement about the rights of third parties was not necessary in 
this treaty given that the laws of the United States and of the United 
Kingdom on this topic are largely similar and provide adequately for 
the rights of third parties under domestic laws and procedures.

    Question. Article 18 of the proposed treaty authorizes the 
requested state to waive the rule of specialty.

          (a) In an average year, how often does the United States or 
        other treaty partners seek the waiver of the rule of specialty 
        in extradition cases? How often is it granted by the United 
        States? What is the process for reviewing and authorizing such 
        requests in the United States?

          (b) In the view of the Executive Branch, what types of cases 
        are appropriate for waiver of the rule?

    Answer. In practice, rule of specialty waiver provisions are 
infrequently invoked. From 1991 to the present, the Department of State 
has received approximately 30 requests for waiver of the rule of 
specialty. Of these, 17 were granted, 5 were denied, and 8 are pending. 
In the same time period, the United States has made approximately 6 
requests to other countries to waive the rule of specialty.
    Generally, the criteria for evaluating a request from a treaty 
partner to waive the rule of specialty are (1) timeliness, (2) whether 
the justification for the request is sufficient, and (3) whether there 
is sufficient evidence to meet the probable cause standard regarding 
the offense for which the request is made. If the request fails to meet 
any of these criteria, the request is denied.
    The Department of State receives such requests in the form of a 
diplomatic note from the foreign government. The Office of the Legal 
Adviser of the Department of State does a preliminary review of the 
request and then forwards it to the Office of International Affairs of 
the Department of Justice for its review. If these offices agree that 
the request should be granted in whole or in part, the Office of the 
Legal Adviser sends that recommendation to the Secretary of State (or 
other appropriate principal of the Department of State) together with 
the relevant facts and analysis. If the Secretary (or other appropriate 
principal) approves the request in whole or in part, notice of that 
decision is communicated in a diplomatic note to the requesting 
government.
    If, on the other hand, the Department of Justice recommends that 
the request be denied, the Department of State sends a diplomatic note 
to that effect to the requesting government.

    (b) The most common situation in which the Executive Branch waives 
the rule of specialty is when new information regarding criminal 
conduct surfaces that was not previously available to the Requesting 
State at the time the extradition was sought.
    Newly discovered evidence relating to conduct of which the 
Requesting State was aware at the time of its request for extradition 
may also, in some circumstances, warrant a waiver of the rule of 
specialty.
    Additionally, the charging of lesser included offenses and 
additional charges based on the same conduct may warrant a waiver of 
the rule of specialty. (The UK treaty, like several others, makes it 
clear that a waiver need not be obtained if the new charge is simply a 
lesser included offense.)

    Question. Article 23(3) provides that upon entry into force of the 
proposed treaty, the 1972 treaty and the 1985 Supplementary Treaty 
shall cease to have effect, except that the prior treaty shall apply to 
any extradition proceedings in which the extradition documents have 
been submitted to the courts of the requested state. This proviso is 
further qualified, however, by this statement: ``except that Article 18 
of this Treaty shall apply to persons found extraditable under the 
prior Treaty.''

          Is there a temporal limitation to this latter provision? In 
        other words, does Article 18 of the proposed treaty apply only 
        to those extradition cases pending at the time of entry into 
        force, or does it apply to all persons who have heretofore been 
        found extraditable under the prior treaty (as that term is 
        defined in Article 23)?

    Answer. No. Article 18 of the new treaty relating to the rule of 
specialty would apply to persons who have been found extraditable under 
the current treaty.

    Question. Is there a relationship between this treaty and the U.S.-
EU treaty on extradition? Please elaborate.

    Answer. The extradition treaty signed by the United States and the 
United Kingdom on March 31, 2003, would be amended in certain respects 
by the extradition agreement subsequently signed by the United States 
and the European Union on June 25, 2003. The changes to the bilateral 
extradition treaty resulting from the U.S.-EU agreement are identified 
in a bilateral instrument signed by the United States and the United 
Kingdom on December 16, 2004. The resulting amended text of the 
extradition treaty is set out in an annex to the bilateral instrument. 
These agreements will be presented to the Senate for its consideration 
when the final set of negotiations with other EU countries are 
completed, which we expect will be in the near future. The changes to 
the bilateral treaty are as follows.
    Two of the changes serve to expedite extradition procedures. One 
will allow supplementary extradition documents to be sent directly 
between the U.S. Department of Justice and the UK Home Office rather 
than through diplomatic channels (Article 10(2) of the Annex). A second 
procedural improvement--simplifying certification and authentication 
requirements (Article 9 of the Annex)--will be implemented only after 
the United Kingdom enacts implementing legislation, as indicated in an 
exchange of notes accompanying the signing of the bilateral instrument.
    The 2003 extradition treaty also would be supplemented by the 
addition of a provision (Article 15 of the Annex) establishing parity 
between a U.S. extradition request to the UK and a request to the UK 
for the same person made by another ELT member state pursuant to the 
European Arrest warrant mechanism. Finally, the U.S.-EU extradition 
agreement establishes a consultation procedure (Article 8 bis of the 
Annex) which may be employed where the state seeking extradition 
contemplates including particularly sensitive personal information in 
the request.
    Since the geographic extent of the United Kingdom for purposes of 
EU membership is more limited than that ordinarily reflected by the 
United Kingdom in its international agreements with third countries, 
the bilateral extradition instrument implementing the U.S.-EU agreement 
will not apply to the Channel Islands and the Isle of Man. Those 
territories would continue to be subject to the 2003 extradition treaty 
in its original form.

    Question. Does the proposed treaty implicate the President's power 
under Article II of the Constitution as Commander-in-Chief of the Army 
and the Navy? If so, please elaborate.

    Answer. Answer: No.

    Question. Ms. Warlow testified that the proposed treaty eases the 
evidentiary burden the United States has to meet in order to seek 
extradition from the United Kingdom, lowering it from a standard of 
prima facie.

          (a) What is the standard for obtaining extradition in the 
        United Kingdom under the proposed treaty and the Extradition 
        Act 2003 (U.K.)?

          (b) Is it not the case that the United States is already 
        benefiting from the lower standard by virtue of approval in the 
        United Kingdom of the Extradition Act 2003, and the subsequent 
        designation of the United States as a part 2 country pursuant 
        to that Act?

    Answer. The standard for obtaining extradition in the United 
Kingdom is defined under UK domestic law; we understand that this 
evidentiary standard is comparable to the U.S. ``probable cause' 
standard.
    One of the primary benefits of ratification of the new treaty is 
that the United States will be positioned to continue to receive the 
benefits of recent changes in UK extradition law, including the 
reduction in the evidentiary standard that the United States will be 
required to meet when seeking the extradition of a fugitive and the 
ability to submit hearsay evidence.
    In concrete terms, what this favored status means for U.S. requests 
to the United Kingdom is that the United States need not produce first 
person affidavits (witness statements) with regard to each element of 
each offense for which extradition is sought. Thus, to meet the 
evidentiary threshold, the United States must produce only a 
prosecutor's affidavit that outlines the case. Of course, the United 
States will still have to produce the arrest warrant, charging 
documents, and other items as required by Article 8 of the new treaty. 
The United States has been benefiting, since January 1, 2004, from this 
lower standard by virtue of the UK's Extradition Act 2003, and the 
subsequent designation of the United States as a part 2 country under 
that Act.
    We note that some defendants in extradition proceedings in the 
United Kingdom have argued that, under the provisions of the current 
treaty, the UK government could not legally designate the United States 
to receive the benefits of the lower evidentiary standard. We have been 
advised by our counterparts in the United Kingdom that they do not 
believe these arguments will be successful. We also understand from our 
UK counterparts that U.S. non-ratification of the new treaty is now 
attracting considerable parliamentary interest in the UK. Various 
individuals and groups have suggested that the United States be removed 
from this favored category. (If this were to happen, the United States' 
extradition documents would, once again, have to meet an onerous prima 
facie standard.) We think it is unlikely that this idea will gain 
political traction, at least in the near future.

Treaty between the United States of America and Germany on Mutual Legal 
        Assistance in Criminal Matters (Treaty No. 108-27)

Treaty between the United States of America and Japan on Mutual Legal 
        Assistance in Criminal Matters (Treaty No. 108-12)
    Question. Please describe the current state of law enforcement 
cooperation between the United States and Japan and the United States 
and Germany.

    Answer. The United States enjoys excellent law enforcement 
cooperation with both Japan and Germany. It is anticipated that the 
entry into force of a Mutual Legal Assistance Treaty with each country 
will further strengthen our bilateral law enforcement cooperation.

    Question. Article 1(3) of the Treaty with Japan requires a party to 
provide assistance ``in connection with an administrative investigation 
of suspected criminal conduct.'' Article 1(1) of the Treaty with 
Germany contains a similar provision, stating that assistance provided 
for criminal investigations includes investigations and proceedings 
``relating to regulatory offenses to the extent that they may lead to 
court proceedings or be referred for criminal prosecution in the 
Requesting State.'' Is there an understanding between the negotiating 
states about the scope of these provisions?

    Answer. Both provisions were the subject of extensive discussion 
during the negotiations which resulted in a common understanding of 
their scope. Although the provisions of the two treaties vary somewhat, 
they permit requests for assistance from entities such as the 
Securities and Exchange Commission or the Federal Trade Commission, 
which investigate conduct that may also constitute a criminal offense 
and which have authority to refer matters to the Department of Justice 
for prosecution. It was also understood that for the United States' 
assistance also would be available for administrative investigations by 
state authorities, provided the particular conditions described in the 
applicable treaty were met.
    Under the proposed treaty with Japan, the administrative 
investigation must be of ``suspected criminal conduct.'' In addition, 
the Central Authority (for the United States, the Department of 
Justice) must certify that the administrative authority conducting the 
investigation has statutory or regulatory authority to investigate 
facts that could constitute a criminal offense and to refer matters 
investigated and results of its investigations ``to prosecutors for 
criminal prosecution.'' The Central Authority also must certify that 
``the testimony, statements or items to be obtained will be used . . . 
in an investigation, prosecution or other proceeding in criminal 
matters, including the decision whether to prosecute.''
    With respect to the proposed treaty with Germany, the understanding 
was similarly to permit entities such as the Securities and Exchange 
and Federal Trade Commission or similar state authorities to obtain 
investigative information as long as the criteria set out in the treaty 
were met in the particular case. The approach under the proposed treaty 
with Germany is slightly different and reflects the extent to which the 
negotiators explored two areas of potential concern: first, some 
matters that were criminal in one jurisdiction were merely regulatory 
in the other, and, second, the different extents to which entities 
conducting regulatory or administrative investigations were authorized 
by law to refer such matters for criminal prosecution. As a solution, 
the negotiators defined ``criminal investigations and proceedings''--
for which treaty assistance is available--to encompass investigation of 
regulatory matters if (1) such matters could be referred for criminal 
prosecution or could lead to civil court proceedings, and (2) the 
``regulatory offense'' being investigated would constitute a criminal 
offense in the Requested State.
    Thus, through somewhat different formulas, both treaties serve to 
reach a balance so that the MLAT may be used to assist in 
administrative or regulatory investigations that focus on serious and 
potentially criminal conduct, without opening the door to the treaty's 
use as a general instrument of information exchange in the 
administrative and regulatory sphere.

    Question. Article 12(2) of the Treaty with Japan provides that the 
requested Party may provide the requesting Party with items that are in 
the possession of governmental departments of the requested Party to 
the ``same extent and under the same conditions as such items would be 
available to its investigative and prosecuting authorities.'' Article 9 
of the Treaty with Germany contains a similar provision, but applies it 
to ``corresponding authorities'' rather than ``investigative and 
prosecuting authorities.''

          (a) Both provisions are discretionary. Please elaborate on 
        the degree to which the U.S. government intends to provide 
        information under these treaty provisos in light of U.S. 
        federal laws restricting provision of such information (but 
        permitting its provision to certain government agencies), 
        including the Privacy Act of 1974 and Federal Rule of Criminal 
        Procedure 6(e).

          (b) Is there an understanding that these provisions will 
        constitute a ``convention . . . relating to the exchange of tax 
        information'' for the purpose of Title 26, United States Code, 
        Section 6103(k)(4)? Or is such exchange of tax information 
        already provided for under existing bilateral conventions for 
        the avoidance of double taxation?

    Answer. (a) As noted in the question, these provisions of the 
proposed Japanese and German treaties are essentially the same, and 
give the Requested State discretion to provide governmental information 
that is not publicly available to the same extent that it might be 
provided to its own prosecuting or investigating authorities. A similar 
provision is found in virtually all of our bilateral Mutual Legal 
Assistance Treaties.
    The purpose of these treaties is to facilitate cooperation between 
the Parties in the investigation and prosecution of criminal offenses. 
The proposed treaty with Germany specifically states, in Article 1(1), 
that its purpose is ``to afford each [Treaty partner] . . . the widest 
measure of mutual assistance in criminal investigations and proceedings 
. . . It is the intention of the U.S. Government to exercise its 
discretion favorably whenever possible, where information sought by a 
treaty partner will be important to the effective investigation or 
prosecution of a crime. At the same time, the treaties permit the 
Requested State to impose conditions of confidentiality or use 
restrictions equivalent to or greater than those that might apply in a 
domestic context, and such conditions or limitations may be imposed in 
order to meet legal requirements, or even if not legally mandated, as a 
policy choice of the Requested State. These provisions do not, however, 
permit disclosure of information to foreign authorities where such 
disclosure would be prohibited under U.S. law.
    Regarding information in records maintained by a U.S. government 
agency that are covered by the Privacy Act, information could be 
provided under the treaties with Germany and Japan if disclosure of the 
information to foreign law enforcement officials was among the agency's 
published ``routine uses'' for such information (5 U.S.C. 
Sec. 552a(b)(3)), or pursuant to court order (5 U.S.C. 
Sec. 552a(b)(11)).
    Regarding disclosure of grand jury material, it is noteworthy that 
Rule 6(e), F.R.Crim.P. has been amended to permit disclosure of grand 
jury material sought by foreign courts or prosecutors for use in a 
criminal investigation. However, such disclosure must be authorized by 
the court, and the court may impose conditions regarding such 
disclosure. Rule 6(e)(3)(E)(iii). These procedures would govern a 
request for grand jury information made by Germany or Japan under the 
respective Mutual Legal Assistance Treaties.

    (b) The negotiators understood that these provisions would serve as 
a basis for exchange of tax information and that the Treaties with 
Germany and Japan would each constitute a ``convention . . . relating 
to the exchange of tax information'' for purposes of 26 U.S.C. 
Sec. 6103(k)(4). Such understandings are the rule, rather than the 
exception, for mutual legal assistance treaties.
    The negotiators of the Mutual Legal Assistance Treaty with Germany 
agreed to cover assistance for tax offenses, although the United States 
and Germany are parties to a bilateral tax convention (1708 UNTS 3, 
entered into force August 21, 1991). Since investigations regarding tax 
offenses may include other types of crimes such as fraud, money 
laundering, or other unlawful activity which has produced unreported 
illicit income, the United States ordinarily seeks to include tax 
offenses within the scope of its Mutual Legal Assistance Treaties, so 
that investigators and prosecutors can make a single request for 
assistance covering the full range of offenses under investigation.
    Article 25(1) of the MLAT makes it clear that the availability of 
``tax information'' pursuant to its provisions in no way impinges on 
the availability to secure assistance pursuant to the tax convention 
(and vice versa).
    Similarly, the Mutual Legal Assistance Treaty with Japan will cover 
assistance for tax offenses, although the United States and Japan are 
also parties to a bilateral tax convention (23 UST 967, entered into 
force July 9, 1972), for the reasons noted above with respect to the 
Treaty with Germany. Similarly, Article 17 of the MLAT makes it clear 
that the availability of tax information under the MLAT in no way 
impinges on the ability to obtain the same information pursuant to 
another applicable international agreement, such as the bilateral tax 
convention.

Treaty between the United States of America and Japan on Mutual Legal 
        Assistance in Criminal Matters (Treaty No. 108-12)
    Question. Article 7(2) of the Treaty with Japan permits the Central 
Authority of the requested Party to request that testimony or 
statements provided under the treaty be kept confidential or be used 
only subject to specified conditions, and requires the requesting Party 
to comply with such a request if it agrees with it. Paragraph 3 
contains an exception to this requirement ``to the extent that there is 
an obligation under the Constitution of the requesting Party to do so 
in a criminal prosecution.''

          Does the quoted language about an obligation under the 
        Constitution to disclose information in a criminal prosecution 
        cover disclosure of information required under Brady v. 
        Maryland and Jencks v. United States?

    Answer. Article 7(2) recognizes a situation where the Requested 
Party may ask the Requesting Party to keep confidential or limit the 
use of certain testimony, statements, or items that the requested Party 
has an obligation to provide and no basis to deny under Article 3. 
Thus, the Requested Party intends to provide it, but wishes the 
Requesting Party to restrict its use. If the Requesting Party agrees to 
receive the assistance subject to such a restriction, it is obligated 
to comply with that restriction. However, Article 7(3) of the treaty 
provides an exception: U.S. prosecutors may make disclosures, even if 
contrary to restrictions the U.S. has accepted, to the extent required 
by Brady v. Maryland, which articulates a constitutionally based 
disclosure requirement.
    Disclosure required under the Jencks Act, 18 U.S.C. Sec. 3500, 
codifying the disclosure principles articulated in Jencks v. United 
States, is not constitutionally mandated. Therefore, the exception 
under 7(3) is inapplicable. Nonetheless, a restriction on disclosure 
imposed under the treaty does not relieve U.S. prosecutors of any 
disclosure obligations imposed by the Jencks Act or other U.S. law. In 
such a case, the U.S. prosecutor would either need to seek and obtain 
the permission of Japan to make the disclosure or inform the U.S. court 
of the prosecutor's inability to disclose, at which point it would be 
for the court to determine what remedy, if any, would be appropriate.

Treaty between the United States of America and Germany on Mutual Legal 
        Assistance in Criminal Matters (Treaty No. 108-27)
    Question. Article 14 of the Treaty with Germany provides that the 
Central Authority of the Requested State may request that evidence or 
information furnished under the treaty be kept confidential or used 
only subject to specified condition. The Requesting State is then 
required to use its ``best efforts'' to comply with the conditions. 
Article 15 of the Treaty provides a framework for limitation or 
conditions on use of information provided to the Requesting State. 
Article 16 contains restriction on the use of information or evidence 
received by the Requesting State in antitrust cases.

    Please elaborate on the relationship of these three articles with 
the requirements of Brady v. Maryland, Jencks v. United States, the 
Jencks Act (18 U.S.C. 3500), and Federal Rule of Criminal Procedure 
26.2.

    Answer. Article 14(2) recognizes a situation where the Requested 
State may ask the Requesting State to keep confidential or limit the 
use of certain evidence that the Requested State has an obligation to 
provide and no basis to deny providing pursuant to Article 3. In this 
case, the Requested State intends to provide the evidence, but wishes 
the Requesting State to restrict its use (beyond any restriction or 
condition otherwise applicable under the treaty).
    While the Requesting State has no obligation to accept subject to 
such a restriction, if it does so, then the Requesting State is 
obligated to use best efforts to comply. Use of best efforts does not 
permit the Requesting State's prosecutors to avoid compliance with 
Constitutional and statutory disclosure requirements in criminal cases.
    Article 15(1) of the proposed treaty recognizes a situation where 
the Requested State has a basis to deny assistance pursuant to Article 
3 but may choose to provide the assistance subject to disclosure or use 
restrictions. Unlike Article 14(2), where the Requested State has no 
treaty basis to deny assistance and can only ask the Requesting State 
to accept restrictions and use best efforts to keep them, Article 15(1) 
requires that the Requesting State, if it has accepted conditions in 
order to obtain assistance that would otherwise be unavailable under 
the treaty, comply with those restrictions. As Article 15(4) makes 
clear, Article 15(1) does not affect the ability of the Requesting 
State's prosecutors to make disclosures required by Brady v. Maryland. 
However, the restrictions could affect the Requesting State's 
prosecutors' ability to disclose or make other uses in a manner 
inconsistent with the restrictions imposed and accepted (e.g., 
compliance with the Jencks Act or the provisions of Rule 26.2, 
hereinafter referred to generally as ``Jencks-related disclosures''). 
Even so, the restrictions would not relieve U.S. prosecutors of any 
disclosure obligations imposed by U.S. law. In such a case, the U.S. 
prosecutor would either need to seek and obtain the permission of 
Germany to make the disclosure, or inform the U.S. court of the 
prosecutor's inability to disclose, at which point it would be for the 
court to determine what remedy, if any, would be appropriate.
    Article 15(2) sets out a general rule that the Requesting State may 
not use information obtained under the treaty, for a purpose other than 
that for which the information was originally sought, unless it obtains 
the prior consent of the Requested State. Article 15(3) provides 
exceptions when the Requested State's prior consent is unnecessary. 
Again, by virtue of Article 15(4), the general limitation of Article 
15(2) does not apply where disclosure is required under Brady. The 
impact on Jencks-related disclosures may require prior consent where 
(1) the assistance (i.e., witness statement) to be disclosed does not 
relate to the purpose for which the Requesting State sought the 
information or assistance or (2) the disclosure does not fall within 
any of the exceptions set out in Article 15(3). However, since Jencks-
related disclosures arise in the context of criminal prosecutions, and 
assistance, including the production of prior witness statements is 
generally available under the proposed treaty, such disclosures would 
ordinarily be permissible within the first exception under Article 
15(3): ``[t]he Requesting State may use any evidence or information 
obtained under this Treaty . . . . 1. for any other purpose for which 
assistance pursuant to this Treaty would be available. . . .''
    Article 16 applies to antitrust investigations and prosecutions and 
obligates the Requesting State to (I) use assistance provided by the 
Requested State only with respect to antitrust matters and (2) protect 
that assistance in the same manner as evidence obtained under the 
Requesting State's laws. Since Article 15(4), discussed above, also 
applies to information provided under Article 16, a Brady disclosure is 
unaffected.
    Jencks-related disclosures are permitted under Article 16, to the 
extent that they would occur in proceedings arising under the 
prosecution of antitrust offenses. However, where information was 
originally obtained for an antitrust proceeding under Article 16, but 
then became subject to Jencks-related disclosure requirements in the 
context of another prosecution of other offenses, prior consent of the 
Requested State would be required. Moreover, the exceptions under 
Article 15(3) to the prior consent rule, would not be applicable to 
evidence obtained under Article 16. Again, in such a situation the 
prosecutor must either obtain the consent of the Requested Party or 
inform the court of the inability to comply with the disclosure 
requirement, and in the latter case, it will be for the court to 
determine what remedy, if any, is appropriate.

    Question. Article 12(2) of the Treaty with Germany authorizes a 
Party to ``permit the operation in its territory of criminal 
investigations by law enforcement officers of the other Party acting 
under covert or false identity.''

          (a) What domestic U.S. laws govern such operations?

          (b) Do any immunities, such as diplomatic immunity or the 
        qualified immunity doctrine (under Harlow v. Fitzgeraldi), 
        apply to German agents conducting such operations in the United 
        States? Please elaborate.

          (c) Are there any related agreements with the German 
        government on the operation of their agents in the United 
        States?

    Answer. (a) Foreign law enforcement agents are subject to the 
provisions of the Foreign Agents Registration Act (18 U.S.C. Sec. 951), 
which are implemented in part through regulations at 28 C.F.R. 
Sec. 73.3. Subsections (b) and (c) of those regulations provide that 
foreign law enforcement agents must notify U.S. law enforcement 
authorities or the Justice Department's Office of International 
Affairs, with respect to their pursuing investigative or other official 
actions in the United States. As a practical matter, U.S. law 
enforcement authorities would object to German law enforcement 
authorities conducting undercover activities within the United States 
unless such undercover activities were fully approved by and 
coordinated with U.S. law enforcement authorities. To the extent 
foreign law enforcement authorities act within the United States they 
are subject to United States laws.
    (b) It is conceivable that a law enforcement officer of one Party 
accredited to that Party's Embassy or a consulate in the territory of 
the other Party might be authorized by the host state to participate in 
such an operation. In such a situation, immunities accorded to the 
foreign law enforcement officer under the Vienna Convention on 
Diplomatic Relations or the Vienna Convention on Consular Relations may 
be applicable to acts undertaken during the course of such an 
operation.
    It is our understanding that a German officer operating in the 
United States would enjoy any qualified immunity applicable to domestic 
law enforcement officers only to the extent that U.S. law permitted the 
officer to be designated as a U.S. law enforcement official or 
otherwise specifically conveyed law enforcement powers or immunities 
upon such an officer. However, we are aware of only one provision that 
currently permits such designation: 19 U.S.C. Sec. 1401(i), which 
permits foreign law enforcement officers to be designated to perform 
duties of a customs officer.
    (c) We are not aware of any related bilateral agreements regarding 
the operation of German law enforcement agents in the United States or 
the operation of United States law enforcement agents in Germany. There 
is, however, a relevant enabling provision in the 1988 United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, to which both the United States and Germany are Parties. 
Article 9, paragraph 1(c), provides for possible cooperation among 
parties including arrangements ``[in] appropriate cases and if not 
contrary to domestic law, [to] establish joint teams to . . . carry out 
[counternarcotics investigations]. Officials of any Party taking part 
in such teams shall act as authorized by the appropriate authority of 
the Party in whose territory the operation is to take place; in all 
such cases, the Parties involved shall ensure that the sovereignty of 
the Party on whose territory the operation is to take place is fully 
respected.''

                               __________

 Responses to Additional Questions Submitted for the Record by Senator 
            Biden to Samuel Witten, U.S. Department of State

Protocol between the Government of the United States and the Government 
        of the State of Israel Amending the Convention on Extradition 
        (Treaty No. 109-3)
    Question. Article 3 provides for new Article VI bis, which provides 
in paragraph 1(a) that extradition ``shall not be granted'' in one 
circumstance, and in paragraph 1(b) provides that extradition ``may be 
denied'' in another circumstance. Subparagraph (a) appears to be 
mandatory, while subparagraph (b) appears to be discretionary.
    The Secretary's letter of transmittal, as set forth in Treaty Doc. 
109-3, suggests that all of paragraph (I) is mandatory. It says that 
``[n]ew Article VI bis (I) bars extradition when the person sought has 
been convicted or acquitted in the Requested Party or another country 
for the same offense.'' (emphasis added)
          Is subparagraph 1(b) mandatory or discretionary?

    Answer. Subparagraph 1(b) is discretionary. Denial of extradition 
is mandatory under subparagraph 1(a), which addresses the situation 
where a fugitive has already been tried for the same offenses in the 
Requested Party and convicted or acquitted. Subparagraph I(b), however, 
is discretionary, and deals with the rather unusual situation in which 
the fugitive has been convicted in a third state, but has been returned 
to the Requested Party to serve all or part of the sentence resulting 
from that conviction. In this situation, the state receiving an 
extradition request may deny extradition if there has been a prior 
conviction in the third state. It is our understanding that Israel 
views its current laws as ordinarily requiring denial of extradition in 
this circumstance.

    Question. What is the rationale for requiring, in subparagraph 1(b) 
of Article VI bis that the person sought for extradition serve his 
sentence in the Requested Party?

    Answer. Subparagraph 1(b) of Article VI bis does not require the 
person sought for extradition to serve his sentence in the Requested 
Party. This Article generally deals with fact patterns concerning when 
a prior conviction for the same offense by another sovereign could or 
should bar extradition. As noted in response to [the previous question] 
question 1, subparagraph 1(b) deals with what we believe would be the 
rather unusual situation where the person sought had previously been 
convicted in a third state, but had been transferred to the Requested 
Party (which presumably would be his state of nationality) to serve the 
sentence resulting from that conviction. If, thereafter, a request was 
made under the Protocol for the extradition of the person for the same 
offense, the Requested Party would have discretion to deny a request 
pursuant to subparagraph 1 (b) of Article VI bis.

    Question. What is the practical implication of new Article VIII 
bis? In other words, does the law of either party require extradition 
to be denied under the circumstance covered by the provision?

    Answer. The United States does not believe that application of the 
Requested Party's statute of limitation should act to bar extradition 
when the offense remains viable under the Requesting Party's laws 
regarding lapse of time. However, Israel's law currently requires 
extradition to be denied if an offense would have been time-barred 
under Israel's law had it been committed there. Because this is 
unambiguously Israel's current law, the negotiators included a 
provision (Article VIII bis) that explicitly permits Israel to deny 
extradition in such a circumstance, but only to the extent that it 
continues to be required under its law. Since the United States has no 
such legal limitation, Article VIII bis will have no practical 
implication in extradition proceedings within the United States. If 
Israel's law on this subject changes and extradition no longer is 
required to be denied on this basis, the exception in this article will 
no longer apply.

    Question. New Article XI omits the following language set forth in 
Article XI of the current treaty: ``. . . and such further information, 
if any, as would be necessary to justify the issue of a warrant of 
arrest had the offense been committed, or the person sought been 
convicted, in the territory of the requested Party.''
          Why was this language dropped from the proposed protocol?

    Answer. The language referred to in this question is similar to 
that of Article VIII of the 1972 U.S.-UK extradition treaty. In both 
cases, this language was dropped and a more appropriate and detailed 
explanation of the information required for provisional arrest was 
substituted in the new instruments (New Article XI of the proposed 
U.S.-Israel Protocol and Article 12 of the proposed U.S.-UK treaty.) As 
explained in our answer to a question posed by Senator Biden regarding 
the proposed U.S.-UK extradition treaty, the provisional arrest 
language of the 1962 U.S.-Israel treaty has not been continued in this 
Protocol or other modern treaties because it does not provide 
sufficient guidance about what information should be provided at the 
provisional arrest stage--those urgent cases where it is appropriate to 
effect the immediate arrest of the fugitive--as opposed to the 
information that must be submitted with the formal extradition request 
to support a final judicial determination of extraditability.
    The language of Article XI of the 1962 treaty states that the 
provisional arrest request should contain ``an indication of intention 
to request the extradition of the person sought and a statement of the 
existence of a warrant of arrest or a judgment of conviction against 
that person, and such further information, if any, as would be 
necessary to justify the issue of a warrant of arrest had the offense 
been committed . . . in the territory of the requested Party.'' Article 
V of the 1962 treaty provides that extradition shall be granted only 
if, in the case of a person not yet convicted, ``evidence [is] found . 
. . sufficient . . . to justify his committal for trial. . . . '' From 
the perspective of U.S. practitioners, the antiquated language of these 
provisions is not particularly helpful and would therefore not 
typically be included in a modem extradition treaty.
    The purpose of provisional arrest is to permit, in urgent 
circumstances, the immediate arrest of the fugitive, pending the 
submission of the formal extradition documents that must be sufficient 
to meet all the requirements for extradition under the treaty and the 
domestic law of the requested country. Thus, information submitted in 
the context of provisional arrest is necessarily more abbreviated. The 
provision of the 1962 treaty gave no guidance as to what ``further 
information,'' beyond the existence of a warrant and description of the 
fugitive, might be required and indeed suggested that no further 
information at all might be necessary. Article 7 of the Protocol amends 
Article XI of the 1962 treaty to make it clear that more information is 
required and provides guidance as to the several categories of 
information U.S. courts are likely to expect in order to issue a 
provisional arrest warrant.
    In addition, the language of Article XI (provisional arrest) and 
Articles V and X (formal extradition) of the 1962 treaty is confusing 
because the distinction it clearly means to draw between the 
abbreviated provisional arrest request made in urgent circumstances and 
the fully documented formal extradition request is muddied by 
referencing standards of proof at two stages in a domestic criminal 
case--arrest and committal for trial--which are not in fact different 
under much of modem U.S. criminal practice.
    As noted above, the difficulty posed by the 1962 treaty's 
provisional arrest provision is addressed by the Protocol's amending 
Article XI to provide much greater guidance about the information to be 
included in the provisional arrest request. The Protocol also provides 
in new Article X (set out in Article 6 of the Protocol) fuller guidance 
as to what is to be included in the formal extradition request. The 
negotiators, however, retained the 1962 treaty's ``committal for 
trial'' evidentiary standard for the formal extradition proceeding, 
rather than substitute the ``reasonable basis to believe'' standard 
common in our modern treaties. This is because Israel continues to 
require a standard of prima facie evidence--the standard for 
``committal for trial'' in its domestic criminal prosecutions--for 
purposes of formal extradition. (Israel, however, will no longer 
require that extradition documents conform to its hearsay or other 
evidentiary requirements applicable at trial (see new Article X bis, 
paragraph 2).) Retaining this language, however, will not affect U.S. 
extradition practice of requiring extradition evidence to meet a 
``reasonable basis to believe'' or ``probable cause'' standard.

                               __________

 Responses to Additional Questions Submitted for the Record by Senator 
          Biden to Mary Ellen Warlow, U.S. Department of State

Protocol between the Government of the United States and the Government 
        of the State of Israel Amending the Convention on Extradition 
        (Treaty No. 109-3)
    Question. In your prior response to a previous question, you 
discussed Articles XI and V of the 1962 convention with Israel.
    In pertinent part, Article XI of the 1962 Convention provides that 
an application for provisional arrest--

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

    Article V provides that extradition shall be granted ``only if the 
evidence be found sufficient, according to the law of the place where 
the person sought shall be found, either to justify his committal for 
trial if the offense of which he is accused had been committed in that 
place . . .''
    Your prior response states that from the ``perspective of U.S. 
practitioners, the antiquated language of these provisions is not 
particularly helpful and would therefore not typically be included in a 
modern extradition treaty.'' You elaborate by stating that the language 
in the 1962 treaty is confusing because the intended distinction 
between the ``abbreviated'' provisional arrest request made under 
urgent circumstances and the documentation normally accompanying the 
formal extradition request is ``muddied by referencing standards of 
proof at two stages in a domestic criminal case--arrest and committal 
for trial--which are not in fact different under much of modern U.S. 
criminal practice.''

          (a) In the view of the Department of Justice, does the Fourth 
        Amendment to the U.S. Constitution apply to provisional arrest 
        under Article XI of the 1962 Convention with Israel?

          (b) In the view of the Department of Justice, does the Fourth 
        Amendment to the U.S. Constitution apply to provisional arrest 
        under Article XI of the Convention with Israel, as modified by 
        Article 7 of the Protocol?

    Answer. The Department of Justice has taken the position that the 
Fourth Amendment does apply in the context of the issuance of a warrant 
for provisional arrest pending extradition. That principle, applicable 
to requests under the current treaty with Israel, would continue to 
apply under the language of the new protocol.

    Question. Do you expect that the amendment to Article XI of the 
Convention made by Article 7 of the Protocol will result in a 
substantive change in the practice of the Department of Justice with 
regard to the type and quantum evidence it presents to request 
provisional arrest warrants under the Constitution?

    Answer. The Department of Justice does not anticipate any 
substantive change in the type or quantum of evidence that we submit to 
our courts in support of a request for issuance of a provisional arrest 
warrant.

                               __________

                     QUESTIONS FROM SENATOR CHAFEE

 Responses to Additional Questions Submitted for the Record by Senator 
   Chafee to Samuel Witten, U.S. Department of State, and Mary Ellen 
                   Warlow, U.S. Department of Justice

Extradition Treaty Between the United States of America and the United 
        Kingdom of Great Britain and Northern Ireland (Treaty No. 108-
        23)
    Question. I have been hearing from many Rhode Islanders who have 
concerns about this extradition treaty. I recently received a letter 
from the Ancient Order of Hibernians stating, ``The responsibility for 
deciding whether or not an extradition request is politically-motivated 
is transferred from the courts to the Executive Branch of the 
government which we believe violates due process.''
    Their concerns about changes to the current treaty seem to stem 
from the fear that moving the decision about whether an extradition 
request is politically motivated from the Judicial to the Executive 
branch will deny them their ``day in court.''
    Can you please explain this provision in the treaty and comment on 
these concerns?
    Why is it appropriate to remove this decision from the purview of 
the Judiciary at this time?

    Answer. There are two circumstances in which a defendant may assert 
that a purportedly political aspect of the case against him should bar 
his extradition.
    The first concerns a claim that the offense itself for which 
extradition is sought is a ``political offense.'' Under both the 
current and the new treaty between the United States and the United 
Kingdom, as well as under all of the U.S. Government's other 
extradition treaties, such claims are heard by the judiciary. 
(``Political offenses'' could include, for example, non-violent speech 
protesting government action.) Under the current and new treaty with 
the United Kingdom, serious crimes of violence cannot be considered 
political offenses.
    The second kind of ``political'' issue that might arise in the 
context of an extradition case is the ``political motivation'' issue 
referred to in the letter. This could be a claim by a fugitive sought 
for international extradition that he should not be extradited because 
the foreign government's decision to charge him or seek his extradition 
is illegitimate because it is motivated by the requesting country's 
desire to punish the person for his political views.
    In U.S. practice, the question of ``political motivation'' is 
determined by the Secretary of State. This responsibility of the 
Secretary of State has been recognized by U.S. courts in the 
longstanding ``Rule of Non-Inquiry,'' whereby courts defer to the 
Secretary in evaluating the motivation of the foreign government. This 
principle recognizes that among the three branches of the U.S. 
Government, the Executive branch is best equipped to evaluate the 
motivation of a foreign government in seeking the extradition of an 
individual. The U.S. Government's extradition treaties reflect the fact 
that the U.S. Secretary of State appropriately makes this judgment, and 
not the U.S. courts.
    Indeed, until 1985, the issue of motivation of the Government of 
the United Kingdom in making an extradition request of the United 
States was treated the same as in all of our other extradition 
relationships--the courts played no role in reviewing this issue. In 
1985, however, as part of an amendment of other aspects of the UK 
extradition relationship, the U.S. Senate developed what became Art. 
3(a) of the 1972 U.S.-UK extradition treaty, as amended by the 1985 
supplementary treaty, which states that extradition ``shall not occur 
if the person sought establishes to the satisfaction of the competent 
judicial authority by a preponderance of the evidence that the request 
for extradition has in fact been made with a view to try or punish him 
on account of his race, religion, nationality, or political opinions, 
or that he would, if surrendered, be prejudiced at his trial or 
punished, detained or restricted in his personal liberty by reason of 
his race, religion, nationality or political opinions.'' This text was 
added pursuant to the Senate's Resolution regarding advice and consent 
to the 1985 supplementary treaty.
    This anomalous treaty provision has led to long, difficult, and 
inconclusive litigation in several cases, where U.S. courts were thrust 
into the unfamiliar and inappropriate position of addressing motivation 
of a foreign government. The provision for judicial review of political 
motivation claims has been invoked in five cases, all dating from the 
early 1990s. Four of these cases involved persons of Irish Catholic 
background who were convicted of crimes of violence in Northern 
Ireland, and who escaped from prison in Northern Ireland in 1983 and 
fled to the United States.
    The first of these cases involved James Joseph Smyth, who had been 
convicted of the attempted murder of a prison guard. More than 40 
witnesses were heard at his extradition hearing, and a 5-week 
evidentiary hearing was held. Ultimately, the record in the case 
exceeded 3,000 pages. In 1996, Smyth was finally extradited from the 
United States to the United Kingdom. He was subsequently released from 
prison in 1998 pursuant to an accelerated release law, the Northern 
Ireland (Sentences) Act 1998, that grew out of the Belfast Agreement. 
The next three cases involved defendants Kevin John Artt, Terence 
Damien Kirby, and Pol Brennan, who were arrested separately in the 
United States between 1992 and 1994. Their extradition cases were 
consolidated for consideration by U.S. courts. All had been convicted 
in the UK judicial system of felonies and sentenced to terms of 
imprisonment. Artt was convicted of murdering a prison official; Kirby 
was convicted of offenses. of possession of explosives and a submachine 
gun, false imprisonment, assault, and felony murder arising out of two 
separate incidents; Brennan was convicted of possession of explosives. 
There was extensive litigation and testimony in the U.S. District Court 
regarding their claims of prejudice under Article 3 of the 1985 
supplementary treaty and numerous appeals. This litigation was and is 
unprecedented, as U.S. courts were put in the difficult position of 
evaluating defendants' claims of generalized, systemic bias within a 
foreign system of justice. In 2000, the United Kingdom withdrew its 
request for extradition, consistent with its announcement that it would 
not be seeking the extradition of persons who, if they had remained in 
prison in Northern Ireland, would have benefited from the 1998 early 
release law.
    There are no pending extradition requests from the United Kingdom 
in connection with the conflict in Northern Ireland.

       Appendix II--Additional Material Submitted for the Record

       Ancient Order of Hibernians, Political Education Committee

              John E. McInerney, National Chairman,
                                           Largo, Maryland,
                                                     July 22, 2004.

Hon. Richard G. Lugar,
U.S. Senate, Washington, DC.

Re: Proposed USA-UK Extradition Treaty

    Dear Senator Lugar. I urge you to oppose the new extradition treaty 
between Great Britain and the United States which the President 
recently submitted to the United States Senate. The treaty was signed 
in March of 2003. This treaty, negotiated by U.S. Attorney General John 
Ashcroft and British Home Secretary David Blunkett, marks a serious 
unprecedented departure from two centuries of American extradition 
practice.
    Let me assure you Senator Lugar that I read and studied this treaty 
in great detail and I realize that the treaty contains (1) a number of 
ill-considered erosions of judicial review, (2) would threaten the due 
process rights of Americans, and (3) seriously impact on American civil 
rights and civil liberties.
    America has always been a refuge for those fleeing tyranny and 
persecution overseas. A ``political offense'' exception has been an 
essential component of every one of our extradition treaties since 
President Thomas Jefferson refused extradition to France of an 
outspoken opponent of-the French Revolution.
    One of the many serious fatal flaws in this new British-American 
extradition treaty is that it weakens, if not eliminates, the time 
honored extradition safeguards that the current American-British 
extradition treaty includes. This proposed treaty is an unprecedented 
departure from two centuries of American extradition practice as far as 
the ``political offense exception'' is concerned.
    The current extradition treaty, still in force, provides this very 
important safeguard that:

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

    Sadly, this language is missing from the new proposed extradition 
treaty between Britain and the United States. Please compare the above 
language with the language in Article 4 of the proposed treaty.
    I strongly believe this agreement would hinder our First Amendment 
right of free speech. if the new treaty is ratified, an American 
citizen who opposes British policy for example, an investigative 
journalist who wrote of current and past police abuses in the north of 
Ireland for an American newspaper--could face arrest and extradition 
without having any ability to challenge, in an American court before an 
impartial judge, whether the criminal charges are really a pretext for 
the punishment on account of race, religion, nationality or political 
opinion. This denial of due process and of our ``day in court'' is 
something so foreign to our American way of life and a serious erosion 
of over two centuries of freedoms every American takes for granted.
    This new treaty will trample on our civil rights and civil 
liberties as Americans. I wish to further point out a few more major 
flaws in this proposed extradition treaty.

   The proposed extradition treaty transfers responsibility for 
        determining whether the extradition request is politically 
        motivated from the federal courts to the executive branch. 
        (Article 4, #3) Under this provision, a person will not have 
        the right of his or her ``day in court'' before an impartial 
        judge. This will seriously impact the separation of powers that 
        is at the heart of our American system of law.

   It allows for extradition even if no American federal law is 
        violated. (Article 2, #4)

   The treaty will eliminate the need for any showing of the 
        facts by the United Kingdom sufficient that the person 
        requested for extradition to Britain is really guilty of the 
        crime he or she is charged with. The mere unsupported 
        allegations are sufficient for deportation to Great Britain. 
        Never before in our nation's history has the United States 
        government seriously considered subjecting the liberty of 
        American citizens to the whims of a foreign government. 
        (Article 8, #2 (b))

   The new treaty will allow for provisional arrest and 
        detention of Americans for 60 days upon request by Great 
        Britain with no formal extradition request providing supporting 
        details. (Article 12) Under this provision, a person will not 
        have the right of his or her ``day in court'' before an 
        impartial judge.

   The terms of the proposed treaty will apply retroactively 
        for offenses allegedly committed even before the treaty's 
        ratification. No American citizen active in Irish and Irish 
        American affairs who oppose British policy in the north of 
        Ireland will be safe if this treaty comes into force. (Article 
        6)

    For these and other major flaws in the proposed treaty, I strongly 
urge you to vote NO when this treaty comes to the floor of the United 
States Senate for ratification. Our government can negotiate a better 
treaty without signing away to Great Britain some of our basic rights 
and freedoms as American citizens.
    Once again, I urge you to oppose the new extradition treaty and to 
support proper judicial review of extradition requests.
    Finally, I hereby request that full public hearings be held when 
the Committee on Foreign Relations considers this new treaty and that 
this letter be made part of the printed record.
    I look forward to reading your thoughts on this matter.

        Sincerely,
                                          John E. McInerney

P.S.: Those of us who know our proud American history remember the 
story of our patriot, Caesar Rodney. In July of 1776, he was aware of 
the importance of an unanimous vote in the Continental Congress to 
declare our nation's independence from Great Britain. A very sick man, 
he rode through the night from Delaware to Philadelphia to cast the 
crucial vote for Delaware for independence. I am sure if Caesar Rodney 
was alive today he would not cast a vote to curtail or take away the 
rights of American citizens in favor of Great Britain. Nor would he 
approve extradition on demand by Great Britain without due process.

                               __________

                    Irish American Unity Conference

    a threat to irish americans: the new u.s./uk extradition treaty
March 5, 2004

    Honorable members of the United States Senate: On March 31, 2003 
U.S. Attorney John Ashcroft and UK. Home Secretary David Blunkett 
signed a new treaty, providing for extradition between the two 
countries of persons accused of crimes. The new treaty, which has yet 
to be ratified by the U.S. Senate, marks an unprecedented departure 
from two centuries of American extradition practice. America has always 
been a refuge for those fleeing tyranny overseas, and a ``political 
offense exception'' to extradition has been an essential element of 
every one of our extradition treaties since Thomas Jefferson refused 
extradition of an opponent of the French Revolution.
    Although the new treaty pays lip service to the political offense 
exception, it removes that essential protection for those seeking 
refuge on our shores. Worse, it subjects U.S. citizens to extradition 
based solely on unproven allegations by the British government. Any 
American active in Irish affairs faces potential detention and 
transportation to the United Kingdom without any proof of guilt and 
without judicial review. Never before in its history has the United 
States government subjected the liberty of its citizens to the whims of 
a foreign government.
    While the most immediate threat is aimed at those who reject the 
Good Friday Agreement (G.F.A.), this treaty is a threat to political 
activists across the board. In fact, the treaty appears to be an effort 
by the UK government to set the stage for the breakdown, of the G.F.A., 
allowing extradition of former activists for alleged past behavior.
    Irish America strongly opposes this new extradition treaty, As 
professor Boyle states in the accompanying position paper, this treaty 
``is a British dagger pointed at Irish (and American) hearts.''
    We have attached for your review Professor Francis Boyle' s 
position paper as well as the ACLU Letter to the Senate Foreign 
Relations Committee.

                 Andrew L. Somers, Jr., National President,
                                    Irish American Unity Conference

                               __________

Material Submitted by Francis A. Boyle, Professor of Law, University of 
              Illinois at Urbana-Champaign, College of Law

Hon. Richard G. Lugar, Chairman,
Hon. Joseph R. Biden, Jr., Ranking Member,
U.S. Senate Foreign Relations Committee.

Re: Proposed United States-United Kingdom Extradition Treaty

    Dear Senators Lugar and Biden:

                                   I.

    I am in receipt of an undated document entitled ``Response by the 
U.S. Department of State and the U.S. Department of Justice to Points 
Raised by the Irish-Americans Against Extradition Petition.'' I wish to 
thank you for your kind consideration in obtaining this formal Response 
to some of these concerns about the proposed U.S.-UK Extradition Treaty 
from the Department of State and the Department of Justice. As a 
preliminary matter, I fully concur with the 18 December 2003 Letter 
already sent to you by Ms. Laura Murphy, Director of the ACLU 
Washington Legislative Office and Mr. Timothy H. Edgar ACLU Legislative 
Counsel, which was also sent to all Members of the Senate Foreign 
Relations Committee on behalf of the American Civil Liberties Union. 
Articles 2 and 4 of the proposed Treaty will gut, destroy and eliminate 
the longstanding, time-honored, and well-grounded ``political offense'' 
exception to U.S. extradition law and practice in all but the name.
    The United States of America was founded by means of a Declaration 
of Independence and a Revolutionary War fought against the British 
Crown, with which this proposed Treaty is to be concluded. But under 
the terms of this proposed Treaty, our Founding Fathers and Mothers 
such as John Hancock, George Washington, Thomas Jefferson, James 
Madison, Ben Franklin, John Adams, and Dolly Madison, inter alia, would 
be extradited to the British Crown for prosecution of their very 
revolutionary activities that founded the United States of America 
itself, Because of our Republic's unique historical origins and 
background, special care, concern, attention, and consideration must be 
taken with respect to the conclusion of any extradition treaty between 
the United States of America and the British Crown.

                                  II.

    It is obvious from the text of this proposed Treaty that it is 
directed primarily against Irish American citizens engaged in the 
lawful exercise of their constitutional rights under the First 
Amendment to the United States Constitution in order to protest the 
longstanding military occupation of six counties in Ireland by the 
British Crown in violation of the international legal right of the 
Irish People to self-determination as well as of the United Nations 
Declaration on the Granting of Independence to Colonial Countries and 
Territories, Resolution 1 514(XV) of 14 December 1960, which 
constitutes customary international law and jus cogens. See Francis A. 
Boyle, The Decolonization of Northern Ireland, 4 Asian Yearbook of 
International Law 25-46 (1995), a copy of which is attached. In 
particular, the inchoate crimes specified in article 2(2) and article 
4(2)(g) of the proposed Treaty would make extraditable to the British 
Crown Irish American citizens who are exercising their rights under the 
First Amendment to the United States Constitution to protest the 
continued British military occupation of these six counties in Ireland 
as well as the deplorable human rights violations that have 
historically been inflicted by the British Crown upon Irish Catholics 
living in the north of Ireland, in the rest of Ireland, as well as 
within Great Britain itself and elsewhere.
    Moreover, because of the court-stripping provisions found in 
article 2(4), article 2(5), article 4(3), article 4(4), article 5(3), 
article 7, article 18(1)(c), and article 18(2) of the proposed Treaty, 
there would be no judicial review by a U.S. Federal Court of the 
exercise of such First Amendment rights under the U.S. Constitution by 
Irish American citizens, and thus this proposed Treaty would be 
unconstitutional for that reason as well. Under the terms of this 
proposed Treaty, the First Amendment rights of Irish American citizens 
would be subjected to the unfettered discretion and political biases of 
Executive Branch officials who in the past have shown no respect for 
the First Amendment rights of Irish American citizens when it came to 
the former's infiltration, investigation, prosecution, and persecution 
of perfectly lawful Irish American citizens as well as Irish American 
humanitarian organizations and Irish American political groups who were 
only exercising their First Amendment rights under the U.S. 
Constitution in order to protest the longstanding military occupation 
of six counties in Ireland by the British Crown as well as its campaign 
of human rights atrocities against Irish Catholics.
    Moreover, the unconstitutional retroactivity of the proposed Treaty 
as set forth in article 22 would render Irish American citizens subject 
to extradition to the British Crown for their perfectly lawful exercise 
of First Amendment rights under the U.S. Constitution going all the way 
back into the indefinite past to at least the 1916 Irish Revolution for 
Independence against the same British Crown with which this proposed 
Treaty is to be concluded. This conclusion is only further confirmed 
and strengthened by article 6 of the proposed Treaty that 
unconstitutionally purports to eliminate any Statute of Limitations 
requirement for extradition as well.
    Furthermore, such Irish American citizens would be subjected to 
unconstitutional preventative detention under article 12 of the 
proposed Treaty at the behest of the British Crown in violation of the 
Fifth Amendment and the Eighth Amendment to the United States 
Constitution. Furthermore, such Irish American citizens could be 
unconstitutionally seized and incarcerated pursuant to article 8(3)(c) 
and article 12 of the proposed Treaty at the behest of the British 
Crown in violation of the U.S. Constitution's Fourth Amendment 
prohibition on ``unreasonable searches and seizures'' as well as the 
Fourth Amendment requirement of ``probable cause'' for the issue of any 
warrants related thereto. Furthermore, such Irish American citizens 
would have their property unconstitutionally confiscated and 
transferred to the British Crown pursuant to article 16 of the proposed 
Treaty at the behest of the British Crown itself in violation of the 
``due process of law'' requirement of the Fifth Amendment to the United 
States Constitution.
    Furthermore, article 18 of the proposed Treaty eliminates in all 
but name the longstanding, time-honored and well-grounded Rule of 
Specialty for such Irish American citizens. In addition, article 18(2) 
of the proposed Treaty would permit Irish American citizens extradited 
to Britain then to be summarily shipped onward to some undesignated 
third state at the order of the British Crown and the political whim of 
the Department of State, where such Irish American citizens could 
readily be persecuted by that indeterminate third state. It becomes 
crystal clear that the primary purpose of this proposed Treaty is for 
the British Crown to target, threaten, intimidate, harass, persecute 
and terrorize Irish American citizens for exercising their First 
Amendment rights under the United States Constitution.

                                  III.

    Weighing most decisively against approving this proposed Treaty is 
the fact that since the U.S.-UK Supplementary Extradition Treaty came 
into force in 1986, the United States became a contracting party to the 
International Covenant on Civil and Political Rights in 1992, to which 
the United Kingdom is also a contracting party. This proposed U.S.-U.K. 
Extradition Treaty will violate several fundamental provisions of the 
Covenant that are expressly designed to protect the basic human rights 
of Irish American citizens, inter alia. In particular, but not limited 
to, I respectfully call to your attention the following treaty 
obligations and human rights protections under the Covenant that will 
be violated by this proposed Treaty:

          Article 2(1): Each State Party to the present Covenant 
        undertakes to respect and to ensure to all individuals within 
        its territory and subject to its jurisdiction the rights 
        recognized in the present Covenant, without distinction of any 
        kind, such as race, colour, sex, language, religion, political 
        or other opinion, national or social origin, property, birth or 
        other status.

                  Article 2(2): Each State Party to the present 
                Covenant undertakes: (a) To ensure that any person 
                whose rights or freedoms as herein recognized are 
                violated shall have an effective remedy, 
                notwithstanding that the violation has been committed 
                by persons acting in an official capacity;

                  (b) To ensure that any person claiming such a remedy 
                shall have his right thereto determined by competent 
                judicial, administrative or legislative authorities, or 
                by any other competent authority provided for by the 
                legal system of the State, and to develop the 
                possibilities of judicial remedy;

                  (c) To ensure that the competent authorities shall 
                enforce such remedies when granted.

          Article 9(1): Everyone has the right to liberty and security 
        of person.

          Article 9(1): No one shall be subjected to arbitrary arrest 
        or detention.

          Article 9(3): Anyone arrested or detained on a criminal 
        charge shall be brought promptly before a judge or other 
        officer authorized by law to exercise judicial power and shall 
        be entitled to trial within a reasonable time or to release.

          Article 9(3): It shall not be the general rule that persons 
        awaiting trial shall be detained in custody, but release may be 
        subject to guarantees to appear for trial. . . .

          Article 9(4): Anyone who is deprived of his liberty by arrest 
        or detention shall be entitled to take proceedings before a 
        court, in order that the court may decide without delay on the 
        lawfulness of his detention and order his release if the 
        detention is not lawful.

          Article 9(5): Anyone who has been the victim of unlawful 
        arrest or detention shall have an enforceable right to 
        compensation.

          Article 10(1): All persons deprived of their liberty shall be 
        treated with humanity and with respect for the inherent dignity 
        of the human person.

          Article 14(1): All persons shall be equal before the courts 
        and tribunals. In the determination of any criminal charge 
        against him, or of his rights and obligations in a suit at law, 
        everyone shall be entitled to a fair and public hearing by a 
        competent, independent and impartial tribunal established by 
        law.

          Article 14(2): Everyone charged with a criminal offence shall 
        have the right to be presumed innocent until proved guilty 
        according to law.

          Article 14(7): No one shall be liable to be tried or punished 
        again for an offence for which he has already been finally 
        convicted or acquitted in accordance with the law and penal 
        procedure of each country.

          Article 15(1): No one shall be held guilty of any criminal 
        offence on account of any act or omission which did not 
        constitute a criminal offence, under national or international 
        law, at the time when it was committed.

          Article 17(1): No one shall be subjected to arbitrary or 
        unlawful interference with his privacy, family, home, or 
        correspondence, nor to unlawful attacks on his honour and 
        reputation.

          Article 18(1): Everyone shall have the right to freedom of 
        thought, conscience and religion. This right shall include 
        freedom to have or to adopt a religion or belief of his choice, 
        and freedom, either individually or in community with others 
        and in public or private, to manifest his religion or belief in 
        worship, observance, practice and teaching.

          Article 19(1): Everyone shall have the right to hold opinions 
        without interference.

          Article 19(2): Everyone shall have the right to freedom of 
        expression; this right shall include freedom to seek, receive 
        and impart information and ideas of all kinds, regardless of 
        frontiers, either orally, in writing or in print, in the form 
        of art, or through any other media of his choice.

          Article 21: The right of peaceful assembly shall be 
        recognized.

          Article 22(1): Everyone shall have the right to freedom of 
        association with others . . .

    If the Senate were to consent to this proposed Extradition Treaty 
with the British Crown, that would effectively abrogate, violate, and 
set at naught these most basic human rights of Irish American citizens 
under the Covenant, to which the United States is a contracting party. 
Furthermore, Senate consent would also place the United States of 
America in breach of its solemn treaty obligations under these 
provisions of the International Covenant on Civil and Political Rights 
with respect to all the other contracting states parties as well. Such 
violations will render the United States subject to the treaty 
enforcement mechanisms of the Covenant as well as to the other ordinary 
enforcement mechanisms, remedies, and sanctions for violating a 
solemnly concluded international human rights treaty as well as the 
basic principle of customary international law and jus cogens that 
pacta sunt servanda.

                                  IV.

    Most significantly, on 18 December 2001 the British Crown formally 
derogated from its obligations under article 9 of the Covenant, whereas 
the United States of America has not so derogated. So long as that U.K. 
derogation to article 9 of the Covenant remains in force, there is no 
way the United States can lawfully extradite any Irish American citizen 
to the British Crown pursuant to the terms of this proposed Treaty 
without the United States government violating its own obligations 
under article 2(1) of the Covenant: ``Each State Party to the present 
Covenant undertakes to respect and to ensure to all individuals within 
its territory and subject to its jurisdiction the rights recognized in 
the present Covenant. . . .'' The United States cannot lawfully 
extradite Irish American citizens to the British Crown, which has 
derogated from its obligations under Covenant article 9, without the 
United States itself violating Covenant article 2(1) and article 9 with 
respect to its own Irish American citizens and also with respect to all 
the other contracting states parties to the Covenant.
    Furthermore, as a contacting party to the Covenant, the United 
States is currently under an obligation not to extradite Irish American 
citizens to the United Kingdom where they will be subjected to gross 
and repeated violations of their most basic human rights by the British 
Crown. These facts have been most recently documented by the Nobel 
Peace Prize Winning Amnesty International, whose Headquarters and 
International Secretariat are located in London, the capital of the 
United Kingdom. Since Amnesty International is right there on the spot, 
they certainly know of what they speak. See International Secretariat 
of Amnesty International, United Kingdom: Scrap Internment, AI Index: 
EUR 45/008/2004 (23 Feb. 2004); Amnesty International, United Kingdom: 
A Shadow Criminal Justice System, AI Index: EUR 45/030/2003 (Public), 
News Service No: 278 (11 Dec. 2003); Amnesty International, United 
Kingdom: Justice Perverted Under the Anti-Terrorism, Crime and Security 
Act 2001, AI Index: EUR 451 029/2003 (11 Dec. 2003); Amnesty 
International Press Release, UK: Basic Rights Denied After 11 
September, ENGEUR 45019 2002 (25 Feb. 2004); Amnesty International, 
United Kingdom: Rights Denied: The UK's Response to 11 September 2001, 
AI Index: EUR 45/016/2002 (5 Sept. 2002); Amnesty International, United 
Kingdom: Amnesty International's Memorandum to the UK Government on 
Part 4 of the Anti-terrorism, Crime and Security Act 2001, AI Index: 
EUR 45/017/2002 (5 Sept. 2002).
    In light of this most extensive documentation by Amnesty 
International of massive violations of the most basic human rights of 
foreigners by the British Crown under the International Covenant on 
Civil and Political Rights, to which the United States is a contracting 
party, under the European Convention on Human Rights, under the U.N. 
Convention against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment, to which the United States is a contracting 
party, and under other basic sources of both customary and conventional 
international human rights law too numerous to list here but 
identified, analyzed, and condemned authoritatively by the 
International Secretariat of Amnesty International headquartered in 
London itself, now is certainly not the time for the United States to 
conclude this proposed Extradition Treaty with the British Crown. 
According to Amnesty International, there currently exists a grave 
human rights emergency for foreigners in the United Kingdom that is 
quickly degenerating into a human rights catastrophe. Certainly the 
United States Senate must not subject Irish American citizens to these 
massive violations of their most fundamental human rights currently 
being inflicted on a daily basis by the British Crown against 
foreigners, as authoritatively documented by Amnesty International 
itself. And the human rights emergency/catastrophe in the United 
Kingdom for foreigners is getting worse every day. See, e.g., Alan 
Cowell, Britain, Citing Terrorist Threat, Plans to Expand Its Spy 
Agency, New York Times, Feb. 26, 2004 (U.K. government proposals for 
secret trials and reducing the ``proof beyond a reasonable doubt'' 
standard for criminal convictions). The United States Senate must not 
risk subjecting Irish American citizens to secret trials, kangaroo 
courts, and a less-than-reasonable-doubt standard for criminal 
convictions by the British Crown. The odious infamy of Britain's Star-
Chamber and Diplock Courts shall live forever in the annals of American 
Jurisprudence.

                                   V.

    Finally, even if the U.S. Senate were to amend article 3 of the 
proposed Treaty so as to prohibit the extradition of U.S. nationals 
thereunder to the British Crown, the above objections to the proposed 
Treaty would apply pari passu with respect to foreigners present in the 
United States whose extradition night be sought under the terms of the 
new Treaty by the British Crown, and especially for those foreigners of 
Irish Descent. The proposed Treaty would violate the most basic human 
rights of foreigners present in the United States, and especially those 
of Irish Descent, under the International Covenant on Civil and 
Political Rights. Covenant article 2(1) provides that the Covenant 
protects the basic human rights of everyone living in the United 
States, both citizens and foreigners alike: ``Each State Party to the 
present Covenant undertakes to respect and to ensure to all individuals 
within its territory and subject to its jurisdiction the rights 
recognized in the present Covenant, without distinction of any kind, 
such as race, colour, sex, language, religion, political or other 
opinion, national or social origin, property, birth or other status.'' 
The same can be said for those basic protections of the United States 
Constitution mentioned above, which apply equally to U.S. citizens and 
foreigners present in the United States.
    Furthermore, with respect to those foreigners present in the United 
States, and especially those of Irish Descent, the proposed Treaty 
would also violate the solemn U.S. dual obligations of both (1) asylum 
and (2) non-refoulement as required by the 1967 U.N. Refugees Protocol, 
to which the United States is a contracting party, as well as under 
customary international law. We must never forget the grave injustices 
that the British Crown inflicted upon Joe Doherty with the support of 
the Department of State and the Department of Justice. See United 
States and United Kingdom Supplementary Extradition Treaty: Hearings on 
Treaty Doc. 99-8 Before the Senate Committee on Foreign Relations, S. 
Hrg. 99-703, 99th Cong., 1st Sess. 511 (1985). There must be no more 
Joe Dohertys!

                               Conclusion

    For all of these reasons then, the United States Senate must refuse 
to give its advice and consent to the proposed U.S.-UK Extradition 
Treaty for any reason. There is no way this proposed Treaty can be 
salvaged by attaching any package of Amendments, Reservations, 
Declarations, and Understandings. The Senate Foreign Relations 
Committee must reject this Treaty outright. The currently existing 
bilateral and multilateral extradition treaty regime between the United 
States and the British Crown is more than sufficient to secure the 
prosecution or extradition of alleged terrorists. This proposed Treaty 
will only secure and guarantee the persecution of Irish American 
citizens, voters, and tax-payers by the British Crown. This proposed 
Treaty will also secure and guarantee the persecution of foreigners of 
Irish Descent present in the United States by the British Crown. The 
perfidy of this proposed Treaty cannot be overstated or underestimated. 
This Treaty is a British dagger pointed at the heart of Irish America.

            Yours very truly,
                Francis A. Boyle, Professor of Law,
    Board of Directors, Amnesty International USA (1988-92)

                               __________

Testimony in Opposition to the Ratification of the Proposed Extradition 
Treaty Between the United States and the United Kingdom (31 March 2003)

    Good morning. My name is Francis Boyle, professor of law at the 
University of Illinois College of Law in Champaign. I have already 
submitted to the members of this committee a detailed memorandum of law 
against the ratification of this proposed extradition treaty dated 4 
March 2004 that I respectfully request be entered into the formal 
record of these proceedings together with my written comments here 
today.
    The United States of America was founded by means of a declaration 
of independence and a revolutionary war fought against the British 
crown. But under the terms of this proposed treaty, our founding 
fathers and mothers such as John Hancock, George Washington, Thomas 
Jefferson, James Madison, Ben Franklin, John Adams, and Dolly Madison 
would be extradited to the British crown for prosecution and 
persecution for their very revolutionary activities that founded the 
United States of America itself. Because of this American legacy of 
revolution against tyranny, the U.S. has always provided a safe haven 
for those seeking refuge on our shores. We have always been wary of 
efforts by foreign powers to transport Americans and foreigners for 
prosecution abroad on political charges. Indeed, in the declaration of 
independence itself, one of the specific complaints against British 
tyranny made by Thomas Jefferson was directed at the British custom of 
``transporting us beyond seas to be tried for pretended offences.''
    For that reason, several episodes in the early history of our 
republic such as that of citizen genet under Thomas Jefferson laid the 
foundation for the uniquely American notion of the ``political offense 
exception'' to extradition. In essence, the political offense exception 
holds that people in the United States will not be handed over to 
foreign governments for criminal prosecution when the crime alleged is 
political in nature.
    The political offense exception has since become a standard part of 
customary international law. But the political offense exception is not 
some abstract notion created by the world court, or the U.N., or any 
other international body. It began right here in the United States of 
America. And it was created by our founding fathers and mothers, who 
knew from personal experience, that it was outrageously unfair for a 
state to hand a person over to another state for political prosecution. 
It is a bedrock principle of American justice.
    This basic principle of American justice is now under assault by 
means of this treaty which surely has George Washington, Thomas 
Jefferson as well as James and Dolly Madison turning in their graves. 
This new treaty marks an unprecedented departure from two centuries of 
American extradition practice. Although the new treaty pays lip service 
to the political offense exception, it effectively eliminates the 
political offense exception for all practical purposes. For example, 
the political offense exception is eliminated for any offense allegedly 
involving violence or weapons, including any solicitation, conspiracy 
or attempt to commit such crimes. As we have seen in Chicago, Florida, 
and New York, undercover U.S. government agents infiltrate peaceful 
Irish groups, suggest criminal activity, and then falsely claim that 
innocent members of those groups agreed with, or initiated, criminal 
statements. That is all it takes for solicitation or conspiracy to be 
extraditable under this proposed treaty.
    In addition, the treaty wipes out a number of constitutional and 
procedural safeguards. It eliminates any statue of limitations, 
eliminates the need for any showing of probable cause, permits 
indefinite preventive Detention, applies retroactively to offenses 
allegedly committed before the treaty's ratification, eliminates the 
time-honored rule of specialty in all but name, allows for seizure of 
assets, and it does not matter if the behavior you are accused of is 
perfectly legal under united states law. Under this treaty, the heirs 
of George Washington could have their assets seized as proceeds of a 
criminal terrorist conspiracy. Even worse yet, all it would take for 
any of the people in this room to get extradited under this proposed 
treaty is a false allegation from the British government that one of 
its spies overheard them say something reckless about weapons or the 
armed struggle in Ireland that is now over. This treaty is 
unconstitutional under the First Amendment to the United States 
Constitution, which Britain does not have.
    Most outrageously, responsibility for determining whether a 
prosecution is politically motivated is transferred from the U.S. 
federal courts to the executive branch of government. This means that 
instead of having your day in court, before a neutral. Federal judge, 
you will be required to rely on the not so tender mercies of the 
department of state, which historically has always been anglophile, 
pro-British, anti-Irish, and against Irish Americans and Irish America. 
There are now over forty million Irish American citizens, voters, and 
tax-payers, and we all especially like to vote. These court-stripping 
provisions of the treaty are unconstitutional under article iii of the 
United States constitution, which Britain also does not have.
    As the current U.S. Irish deportation cases show, Britain can 
easily return Irish and British citizens to the United Kingdom. So why 
are the British now trying now to shift the extradition decision from 
the courts to the executive branch? Because you cannot deport a U .S. 
citizen. A U.S. citizen has to be extradited. Article 3 of the proposed 
treaty makes it crystal clear that her majesty's government wants to 
target Irish American citizens for prosecution in British courts, which 
have a long history of perpetrating legal atrocities against innocent 
Irish people.
    Finally, for reasons fully explained in my 4 March 2004 memorandum 
to you, if the senate were to consent to this proposed extradition 
treaty, that would effectively abrogate, violate, and set a naught the 
most basic human rights of Irish American citizens under the 
international covenant on civil and political rights to which the 
United States is a contracting party. Furthermore, such senate consent 
to this proposed treaty would also place the United States of America 
in breach of its solemn treaty obligations under numerous provisions of 
that covenant with respect to all the other contracting states parties 
as well. Such violations will render the United States subject to the 
treaty enforcement mechanisms of that covenant as well as to the other 
ordinary enforcement mechanisms, remedies, and sanctions for violating 
a solemnly concluded international human rights treaty as well as the 
basic principle of customary international law and jus cogens that 
pacta sunt servanda.
    For all these reasons the Senate Foreign Relations Committee must 
reject this treaty outright. There is no way this unconstitutional 
treaty can be salvaged by attaching any package of amendments, 
reservations, declarations, and understandings. The currently existing 
bilateral and multilateral extradition treaty regime between the United 
States and the British crown is more than sufficient to secure the 
extradition of alleged terrorists. This proposed treaty will only 
secure and guarantee the persecution of Irish American citizens, tax-
payers, and voters by the British crown. Thank you.

                               __________

   Statement for the Record Submitted by Timothy H. Edgar, National 
        Security Policy Counsel, American Civil Liberties Union

    On behalf of the American Civil Liberties Union and its more than 
400,000 members, we are pleased to submit this statement for the record 
of a hearing on important revisions to the legal regime governing 
bilateral extradition treaties between the United States and the United 
Kingdom (Treaty Doc. 108-23) and between the United States and Israel 
(Treaty Doc. 109-3).
    We urge you to delay consideration of these treaties in order to 
explore more fully the corrosive effect they would have on the role of 
the courts in extradition proceedings. The Senate should reject these 
treaties so they can be renegotiated to preserve the judiciary's proper 
role.
    The new U.S.-UK extradition treaty and the proposed protocol 
amending the 1962 U.S.-Israel extradition treaty contain alarming 
court-stripping provisions, which threaten the fundamental due process 
rights of Americans and others accused of crimes by the British and 
Israeli governments.
    Most troubling, article 4(3) of the proposed U.S.-UK extradition 
treaty and the amendments proposed by Article 3 of the protocol to 
Article 6(3) of the 1962 U.S.-Israel extradition treaty eliminate the 
American judiciary's role in determining whether an extradition request 
should be denied on the basis of the political offense exception. Under 
the treaties, the Executive Branch is given sole discretion to 
determine whether this exception applies.
    The political offense exception to extradition has a centuries-old 
pedigree that protects Americans and others from political, religious 
or other impermissible persecution. The exception ensures that the 
United States does not unwittingly become the agent of punishment for a 
government's political opponents and dissidents. The exception also 
ensures the interests of the United States by safeguarding its 
neutrality in the political affairs of other countries. The exception 
is a general bar on extradition of alleged offenders who are sought for 
protected political activity, regardless of their ideology.
    The ACLU agrees that terrorists and others who use violence against 
innocent civilians should find no haven in the United States. However, 
eliminating judicial review of the political offense exception is not 
necessary to ensure the extradition of suspected terrorists. American 
and international law provide that those who commit war crimes, crimes 
against humanity or who aid or commit terrorist acts against innocent 
civilians for political or ideological ends do not enjoy the benefits 
of the political offense exception.
    The current extradition treaty with the United Kingdom, adopted in 
1972, was amended by a Supplemental Treaty, ratified in 1986, that 
narrowed the political offense exception. The Supplemental Treaty, as 
originally proposed in 1985, would have eliminated any judicial role 
for determining whether any offense was a political offense. A 
firestorm of criticism greeted that proposal as opening the door to 
wholesale harassment of Irish American and other critics of British 
government policies, and the Senate refused to ratify it. Instead, a 
Supplemental Treaty was negotiated that excluded serious violent crimes 
from the political offense exception while ensuring judicial review to 
allow consideration of whether the accused would receive a fair trial 
in the United Kingdom.
    The Senate Foreign Relations Committee described the 1986 
Supplement Treaty as a successful ``effort to balance anti-terrorism 
concerns and the right of due process for individuals.'' \1\ Senator 
Biden explained, in a colloquy with Senators Kerry and Lugar that was 
adopted in the report accompanying the treaty, that the Senate intended 
the Supplemental Treaty to allow for broader judicial review:
---------------------------------------------------------------------------
    \1\ In re Smyth, 61 F.3d 711 (9th Cir. 1995) (quoting S. Exec. Rep. 
No. 17, 99th Cong., 2d Sess., 3 (1986)).

          [T]he defendant will have an opportunity in Federal court to 
        introduce evidence that he or she would personally, because of 
        their race, religion, nationality or political opinion, not be 
        able to get a fair trial because of the court system or any 
        other aspect of the judicial system in a requesting country, or 
        that the person's extradition has been requested with a view to 
        try or punish them on account of their race, their religion, 
        nationality or political opinion. \2\
---------------------------------------------------------------------------
    \2\ Id. (quoting S. Exec. Rept. No. 17 at 4-5).

    The new U.S.-UK treaty would undo this compromise by eliminating 
this review. If the new treaty were ratified, an American who opposed 
British policy--for example, an investigative journalist who wrote of 
police abuses in Northern Ireland for an Irish American newspaper--
could face arrest and extradition without having any ability to 
challenge, in an American court, whether the criminal charges are 
really a pretext for the punishment on account of race, religion, 
nationality or political opinion.
    While both treaties preserve the courts' role in reviewing whether 
there is probable cause that the accused committed the crime, the 
``probable cause'' standard is a low one and depends on information 
supplied by the foreign government. Such information may be difficult 
for the accused to rebut. For an extradition hearing to be meaningful, 
the accused must also be able to submit information about the improper 
political motivation of the extradition request, and an American judge 
must be free to consider such evidence.
    Preservation of the political offense exception is an important 
bulwark for freedom in the world. Since the time of Thomas Jefferson, 
the United States has refused extradition requests for political 
offenses. Indeed, in the Declaration of Independence, the colonists 
accused King George of ``transporting us beyond Seas to be tried for 
pretended offences.'' That principle applies with equal force today, no 
less than in 1776. No one in America should be sent to face trial in 
any foreign country without meaningful judicial review of all aspects 
relevant to extradition.
    Both treaties contain other deeply troubling provisions. These 
include provisions which eliminate the statute of limitations as a 
defense to extradition (article 6 of the U.S.-UK treaty), allow for 
``provisional arrests'' for as long as sixty days with no formal 
extradition request providing supporting details (article 12 of the 
U.S.-UK treaty; also article 7 of the Protocol amending article 9 of 
the 1962 U.S.-Israel treaty), and which allow for the treaty to be 
applied retroactively (article 22 of the U.S.-UK treaty; also article 
11 of the Protocol).
    Attorney General Ashcroft announced at the signing ceremony for the 
new U.S.-UK treaty ``should serve as a model to the world'' and could 
lead to revising other extradition treaties. \3\ As a result, Senate 
approval of these treaties, especially without thorough review and 
hearings, could encourage the Administration to pursue treaties with 
other nations that diminish due process and meaningful judicial review.
---------------------------------------------------------------------------
    \3\ Attorney General Ashcroft's remarks at the signing ceremony are 
available at: http://www.usdoj.gov.
---------------------------------------------------------------------------
    Without a meaningful political offense exception as a part of our 
extradition laws, the United States could well lose its place as a 
haven for the persecuted. In the early days of the Cuban revolution--
before the United States broke off diplomatic relations with Fidel 
Castro--the political offense exception pre-vented the return of Cuban 
dissidents to face criminal charges by the Castro regime. \4\ The 
political offense exception also sheltered a Greek public official from 
being sent back to face corruption allegations that resulted from his 
opposition to the takeover of his town by a Communist party government. 
\5\
---------------------------------------------------------------------------
    \4\ Ramos v. Diaz, 179 F. Supp. 459 (S.D. Fl. 1959).
    \5\ In re Mylonas, 187 F. Supp. 716 (N.D. Ala. 1960).
---------------------------------------------------------------------------
    The Senate should stand in favor of meaningful judicial review of 
political offenses, and should reject these new extradition treaties so 
they may be renegotiated to protect the role of the courts.

                               __________

                                 

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