69–115 

110TH CONGRESS EXEC. REPT. " ! SENATE 2d Session 110–12 

EXTRADITION TREATIES WITH THE EUROPEAN UNION 

SEPTEMBER 11, 2008.—Ordered to be printed 

Mr. DODD, from the Committee on Foreign Relations, 

submitted the following 

R E P O R T 

[To accompany Treaty Docs. 109–14, 109–15, 109–16, 109–17, 110–11, and 110–12] 

The Committee on Foreign Relations, to which was referred the 

Agreement on Extradition between the United States of America 

and the European Union, signed at Washington on June 25, 2003 

(Treaty Doc. 109–14), together with 27 bilateral extradition instruments subsequently signed with the Republic of Austria on July 20, 

2005 (Treaty Doc. 109–14), the Kingdom of Belgium on December 

16, 2004 (Treaty Doc. 109–14), the Republic of Bulgaria on September 19, 2007 (Treaty Doc. 110–12), the Republic of Cyprus on 

January 20, 2006 (Treaty Doc. 109–14), the Czech Republic on May 

16, 2006 (Treaty Doc. 109–14), the Kingdom of Denmark on June 

23, 2005 (Treaty Doc. 109–14), the Republic of Estonia on February 

8, 2006 (Treaty Doc. 109–16), the Republic of Finland on December 

16, 2004 (Treaty Doc. 109–14), France on September 30, 2004 

(Treaty Doc. 109–14), the Federal Republic of Germany on April 18, 

2006 (Treaty Doc. 109–14), the Hellenic Republic on January 18, 

2006 (Treaty Doc. 109–14), the Republic of Hungary on November 

15, 2005 (Treaty Doc. 109–14), Ireland on July 14, 2005 (Treaty 

Doc. 109–14), the Italian Republic on May 3, 2006 (Treaty Doc. 

109–14), the Republic of Latvia on December 7, 2005 (Treaty Doc. 

109–15), the Republic of Lithuania on June 15, 2005 (Treaty Doc. 

109–14), the Grand Duchy of Luxembourg on February 1, 2005 

(Treaty Doc. 109–14), Malta on May 18, 2006, with a related exchange of letters signed the same date (Treaty Doc. 109–17), the 

Kingdom of the Netherlands on September 29, 2004, with a related 

exchange of notes signed the same date (Treaty Doc. 109–14), the 

Republic of Poland on June 9, 2006 (Treaty Doc. 109–14), the Portuguese Republic on July 14, 2005 (Treaty Doc. 109–14), Romania 

on September 10, 2007 (Treaty Doc. 110–11), the Slovak Republic 

on February 6, 2006 (Treaty Doc. 109–14), the Republic of Slovenia 

on October 17, 2005 (Treaty Doc. 109–14), the Kingdom of Spain 

on December 17, 2004 (Treaty Doc. 109–14), the Kingdom of Sweden on December 16, 2004 (Treaty Doc. 109–14), and the United 

2 

1Michael Abbell, Extradition to and from the United States, Chapter 3, § 3–4, p.120 (2007). 

2 1901 Treaty on Extradition between the United States and the Kingdom of Servia (12 

Bevans 1238). 3Listed by accession date, Member States of the European Union are as follows: Belgium 

(1952 (ECSC)), France (1952 (ECSC)), Italy (1952 (ECSC)), Luxembourg (1952 (ECSC)), the 

Netherlands (1952 (ECSC)), West Germany (1952 (ECSC)), Denmark (1973), Ireland (1973), the 

United Kingdom (1973), Greece (1981), Portugal (1986), Spain (1986), Austria (1995), Finland 

(1995), Sweden (1995), Cyprus (2004), Czech Republic (2004), Estonia (2004), Hungary (2004), 

Latvia (2004), Lithuania (2004), Malta (2004), Poland (2004), Slovakia (2004), Slovenia (2004), 

Bulgaria (2007), and Romania (2007). 

Kingdom of Great Britain and Northern Ireland on December 16, 

2004, with a related exchange of notes signed the same date (Treaty Doc. 109–14), having considered the same, reports favorably 

thereon with one condition and a declaration made with respect to 

each treaty, as indicated in the resolutions of advice and consent, 

and recommends that the Senate give its advice and consent to 

ratification thereof, as set forth in this report and the accompanying resolutions of advice and consent. 

CONTENTS 

Page 

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

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

III. Major Provisions ............................................................................................ 3 

IV. Bilateral Instruments With 27 EU Members .............................................. 5 

V. Entry Into Force ............................................................................................ 7 

VI. Implementing Legislation ............................................................................. 7 

VII. Committee Action .......................................................................................... 7 

VIII. Committee Recommendation and Comments .............................................. 7 

IX. Resolutions of Advice and Consent to Ratification ..................................... 10 

X. Annex.—Treaty Hearing of May 20, 2008 ................................................... 21 

I. PURPOSE

The purpose of these treaties is to modernize, strengthen, and expand on the extradition relationship as between the United States, 

and the European Union and its Member States. 

II. BACKGROUND

Extradition is the formal process by which one nation requests 

and obtains from another nation the surrender of a suspected or 

convicted criminal. The United States will ordinarily only grant extradition pursuant to a treaty. The United States has in force a bilateral extradition treaty with each of the European Union (EU) 

Member States. These treaties account for over twenty percent of 

U.S. extradition treaties and a significantly higher percentage of 

U.S. extradition requests.1 Nevertheless, many of these treaties are 

quite old and some of their provisions are not in accord with modern extradition practice. The oldest of our existing extradition treaties with EU Member States dates back over a century ago2 and 

most were concluded over twenty years ago, such that most if not 

all are in need of modernizing. In addition, as EU law enforcement 

institutions have evolved over the last few decades, it has become 

clear that developing a more formal basis for cooperation on such 

matters with the EU itself would be useful. 

These extradition treaties, of which there are 28, would modernize our existing extradition treaties with the Member States of 

the EU3 and strengthen an emerging institutional relationship on 

3 

law enforcement matters between the United States and the European Union itself. The framework agreement on extradition with 

the EU (the ‘‘EU Framework Agreement’’) essentially requires EU 

Member States to amend and supplement their existing bilateral 

extradition treaties with the United States to include certain modern provisions on extradition if they have not already done so. Each 

bilateral instrument implements the EU Framework Agreement by 

amending or replacing an existing bilateral extradition treaty so 

that every U.S. bilateral extradition treaty with a Member State of 

the EU will be uniformly updated to conform to the provisions in 

the EU Framework Agreement. 

III. MAJOR PROVISIONS

A detailed paragraph-by-paragraph analysis of each treaty may 

be found in the Letters of Submittal from the Secretary of State to 

the President on these instruments, which are reprinted in full in 

Treaty Documents 109–14, 109–15, 109–16, 109–17, 110–11, and 

110–12. What follows is a brief summary of some of the key provisions that would be incorporated into our bilateral treaty relationships with every EU Member State if not already contained in existing treaties pursuant to the EU Framework Agreement. 

Extraditable Offenses: Modern Dual-Criminality Provisions 

Early U.S. extradition treaties confined extraditable offenses to 

those specifically listed in the treaty itself. Such an approach limits 

extradition for newly emerging forms of criminality that the United 

States has a strong interest in pursuing, such as antitrust, 

cybercrime, and environmental offenses. Modern extradition treaties, however, have developed a new approach, which is frequently 

referred to as the principle of ‘‘dual criminality.’’ Dual criminality 

provides that a crime is extraditable if it is punishable as a crime 

under the criminal law of both parties to the treaty. Pursuant to 

Article 4 of the EU Framework Agreement, outdated lists of extraditable offenses would be replaced with this modern ‘‘dual criminality’’ standard, which would enable our extradition treaties to 

cover new offenses as they develop in the criminal legal systems of 

the United States and its partner country without having to amend 

the treaty each time. Article 4 additionally contemplates extradition for extraterritorial offenses, which are particularly useful 

when pursuing terrorists and persons involved in drug trafficking. 

Streamlined Authentication and Transmission of Documents 

Treaty requests for extradition from other countries are generally 

submitted to the Department of State and forwarded to the Department of Justice, which then initiates a judicial proceeding for the 

arrest of the fugitive and an extradition hearing before the court 

to determine if the fugitive is extraditable. Treaty requests for extradition from the United States to other countries generally travel 

from prosecutors to the Department of State to foreign diplomatic 

officials, who in turn have their own equivalent of the Department 

of Justice that handles the foreign extradition proceeding. The EU 

Framework Agreement would authorize communications directly 

between prosecutors, as well as other departures from the current 

norm, that are intended to make the process more efficient. For example, under Article 6, requests for provisional arrest prior to the 

4 

receipt of a formal extradition request may be communicated directly between the Justice Department and its foreign equivalents. 

In addition, under Article 5(2), the Justice Department and its 

counterparts in EU Member States can certify extradition documents, when ordinarily this has been a task reserved for diplomatic 

officials. In sum, with the new EU Framework Agreement as implemented through the associated bilateral instruments, the process of authenticating documents and the transmission of provisional arrest and extradition requests would be streamlined. See 

Articles 5, 6 and 7 of the EU Framework Agreement. 

Temporary Transfer of Persons 

Fugitives sometimes face criminal charges or have been convicted 

for other offenses in the countries to which they have fled. Traditionally, U.S. extradition treaties have allowed the requested State 

to defer action on an extradition request until the fugitive could be 

surrendered unencumbered. More modern agreements afford the 

requested State the option of temporarily surrendering the individual under a promise for his return when proceedings in the requesting State have been completed. Without the option of a temporary transfer, the case against a fugitive can become stale while 

the fugitive is serving a sentence in another country. Article 9 of 

the new EU Framework Agreement, as incorporated into the various bilateral instruments, would provide authority for the temporary transfer to the requesting State of persons who are being 

prosecuted or are serving a sentence in the requested State. Any 

person so surrendered would be held in custody by the requesting 

State and would be returned to the requested State at the conclusion of proceedings against that person, as mutually agreed upon 

by the parties. 

Modern Approach to Competing Extradition Requests/Parity with 

the European Arrest Warrant 

Older U.S. extradition treaties obligate parties that receive competing extradition requests for the same fugitive to surrender the 

fugitive on a first come, first served basis. More modern extradition 

treaties often obligate the requested State to consider a list of relevant factors when weighing competing requests. Pursuant to Article 10 of the EU Framework Agreement, the requested State is to 

consider all relevant factors, including the following: 1) whether the 

requests were each made pursuant to a treaty; 2) the locations 

where each of the offences were committed; 3) the respective interests of the requesting States; 4) the seriousness of the offenses; 5) 

the nationality of the victim; 6) the possibility of any subsequent 

extradition between the requesting States; and 7) the chronological 

order in which the requests were received from the requesting 

States. 

Article 10 of the EU Framework Agreement makes clear that extradition requests from the United States and competing requests 

for surrender made pursuant to a European Arrest Warrant (which 

is the internal EU mechanism for effectively extraditing individuals) will be evaluated using the same approach, including the list 

of factors described above. As a result, U.S. requests for extradition 

sent to EU Member States would have the same status as competing requests submitted by other EU Member States. 

5 

4The only country of the European Union that still retains capital punishment in its law is 

Latvia, but Latvia joined Protocol 6 of the European Convention on Human Rights (the ‘‘ECHR’’) 

in 1999, which restricts the application of the death penalty to times of war or ‘‘imminent threat 

of war.’’ Moreover, in 2002, Latvia signed Protocol 13 of the ECHR, which abolishes the death 

penalty under all circumstances. Latvia has yet to ratify Protocol 13, but has nevertheless imposed a moratorium on capital punishment. 5Treaty Doc. 105–50. 

6Treaty Doc. 104–7. 

7Treaty Doc. 105–16 

Simplified Extradition Procedures if Extradition is Not Contested 

Article 11 of the EU Framework Agreement would authorize a 

simplified extradition process in cases in which the person sought 

does not contest extradition. Older U.S. extradition treaties do not 

include such a provision; this is a modern development. While such 

a scenario is the exception rather than the rule, under certain circumstances it may be to the fugitive’s benefit to seek an expedited 

extradition. For example, a fugitive may decide not to contest extradition because of a concern that with the passage of time, a witness for the defense may die or exculpatory evidence may be lost. 

Transit Authority 

Article 12 of the EU Framework Agreement provides a process 

through which consent can be obtained for the transportation of a 

person through the United States or any EU Member State who is 

being ‘‘surrendered’’ to or from the United States or any EU Member State. In addition, Article 12 provides that authorization is not 

required when air transportation is used and no landing is scheduled on the territory of the transit State. In sum, with the new EU 

Framework Agreement, transit authority would be provided in 

order to facilitate the transportation of persons surrendered to a 

State Party by a third country when that person has to travel 

through another State Party in order to be surrendered. See Article 

12 of the EU Framework Agreement. 

Death Penalty Assurances 

With the new EU Framework Agreement, a uniform mechanism 

would be provided by which States Parties can condition extradition on an assurance that the death penalty shall not be imposed, 

or shall not be carried out, if the offense for which extradition is 

sought is punishable by death under the laws in the requesting 

State and not punishable by death under the laws of the requested 

State. See Article 13 of the EU Framework Agreement. Variations 

of this provision are already provided for in most U.S. extradition 

treaties with EU Member States because all EU Member States 

have effectively abolished the death penalty.4

IV. BILATERAL INSTRUMENTS WITH

27 EU MEMBER STATES

There are 22 bilateral instruments with EU Member States that 

amend and supplement existing bilateral extradition treaties to include the modern provisions on extradition described above. These 

are as follows: Austria (amending the 1998 U.S.-Austria Extradition Treaty);5 Belgium (amending the 1987 U.S.-Belgium Extradition Treaty);6 Cyprus (amending the 1996 U.S.-Cyprus Extradition Treaty);7 Czech Republic (amending the 1925 U.S.-CzechoVerDate Aug 31 2005 07:47 Sep 12, 2008 Jkt 000000 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 H:\DOCS\EXEC~1.REP\EX110-12.TXT sfrela2 PsN: MIKEB
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8 Exec. C, 69–1 and Exec. K, 74–1. 

9Treaty Doc. 93–21. 

10Treaty Doc. 95–9. 11Treaty Doc. 105–13. 12 Ex. A. 96–1 and Treaty Doc. 100–6. 13 Ex. D, 72–1 and Executive Agreement Series, No. 114. 14Treaty Doc. 104–5. 15Treaty Doc. 98–19. 16Treaty Doc. 98–20. 17Treaty Doc. 107–4. 18Treaty Doc. 105–10. 19Treaty Doc. 97–7. 20Treaty Doc. 105–14. 21 Ex. JJ, 60–1. 22 Ex. C 69–1 and Ex. K, 74–1. 23 Ex. E, 57–1. 24Treaty Doc. 91–24; Treaty Doc. 94–13; Treaty Doc. 102–24; and Treaty Doc. 105–15. 25 Ex. E, 87–2 and Treaty Doc. 97–15. 26Treaty Doc. 108–23. 27 Ex. F, 68–1. 28 Ex. C, 68–1. 29 Ex. E, 72–1. 

slovak Extradition Treaty along with the 1935 Supplementary Extradition Treaty);8 Denmark (amending the 1972 U.S.-Denmark 

Extradition Treaty);9 Finland (amending the 1976 U.S.-Finland Extradition Treaty);10 France (amending the 1996 U.S.-France Extradition Treaty);11 Germany (amending the 1978 U.S.-Germany Extradition Treaty along with the 1986 Supplementary Treaty with 

Germany);12 Greece (amending the 1931 U.S.-Greece Extradition 

Treaty and its 1937 Protocol);13 Hungary (amending the 1994 U.S.- 

Hungary Extradition Treaty);14 Ireland (amending the 1983 U.S.- 

Ireland Extradition Treaty);15 Italy (amending the 1983 U.S.-Italy 

Extradition Treaty);16 Lithuania (amending the 2001 U.S.-Lithuania Extradition Treaty);17 Luxembourg (amending the 1996 U.S.- 

Luxembourg Extradition Treaty);18 The Netherlands (amending the 

1980 U.S.-Netherlands Extradition Treaty);19 Poland (amending 

the 1996 U.S.-Poland Extradition Treaty);20 Portugal (amending 

the 1908 U.S.-Portugal Extradition Treaty);21 Slovak Republic 

(amending the 1925 U.S. Czechoslovakia Extradition Treaty and 

the 1935 Supplementary Extradition Treaty currently in force and 

applicable to the Slovak Republic);22 Slovenia (amending the 1901 

U.S.-Serbia Extradition Treaty currently in force and applicable to 

Slovenia);23 Spain (amending the 1970 U.S.-Spain Extradition 

Treaty along with three supplementary treaties done in 1975, 1988, 

and 1996);24 Sweden (amending the 1961 U.S.-Sweden Extradition 

Treaty along with the 1983 Supplementary Extradition Treaty);25

the United Kingdom (amending the 2003 U.S.-U.K. Extradition 

Treaty).26

The five remaining bilateral instruments with EU Member 

States were concluded as stand-alone extradition treaties (as opposed to amendments) that would supersede existing extradition 

treaties with each country. Each of the five new extradition treaties 

is a modernized version of the older treaty, which conforms to the 

provisions of the EU Framework Agreement. These five treaties 

were submitted to the Senate in separate treaty documents, which 

are as follows: 1) The U.S.-Latvia Extradition Treaty, which would 

replace an existing extradition treaty from 1923 with Latvia; 27 2) 

The U.S.-Estonia Extradition Treaty, which would replace an existing extradition treaty from 1923 with Estonia; 28 3) The U.S.-Malta 

Extradition Treaty, which would replace an existing extradition 

treaty from 1931; 29 4) The U.S.-Romania Extradition Treaty, which 

7 

30 Ex. D, 75–1. 31 Ex. X, 68–1. 

would replace an existing extradition treaty from 1924, along with 

a 1936 supplementary treaty; 30 and 5) The U.S.-Bulgaria Extradition Treaty, which would replace an existing extradition treaty 

from 1924.31

V. ENTRY INTO FORCE

In accordance with Article 22, the EU Framework Agreement 

shall enter into force on the first day following the third month 

after the date on which the United States and the EU have indicated that they have completed their internal procedures for this 

purpose. Each bilateral instrument with an EU Member State shall 

enter into force on the date of entry into force of the EU Framework Agreement. 

VI. IMPLEMENTING LEGISLATION

The legal procedures for extradition are governed by both federal 

statute and self-executing treaties. Subject to a contrary treaty provision, existing federal law implements aspects of these treaties. 

See 18 U.S.C. §§ 3181 to 3196. No additional legislation is needed 

for the United States to fulfill its obligations under these treaties. 

VII. COMMITTEE ACTION

The committee held a public hearing on these treaties on May 

20, 2008. Testimony was received from Susan Biniaz, Deputy Legal 

Adviser at the Department of State and Bruce Swartz, Deputy Assistant Attorney General for the Criminal Division at the Department of Justice. A transcript of this hearing can be found in the 

Annex to this report. 

On July 29, 2008, the committee considered these treaties and 

ordered them favorably reported by voice vote, with a quorum 

present and without objection. 

VIII. COMMITTEE RECOMMENDATION AND COMMENTS

The Committee on Foreign Relations believes that these treaties, 

if ratified, would facilitate U.S. efforts in fighting terrorism and 

transnational crime. In particular, these treaties would eliminate 

obsolete provisions in existing U.S. extradition treaties with EU 

Member States and replace them with more effective, efficient, and 

modern provisions. This will enable the United States to, among 

other things, pursue extradition in cases involving serious crimes, 

such as money laundering, antitrust, cybercrime, and environmental offenses in situations in which the United States is now unable to seek extradition. Accordingly, the committee urges the Senate to act promptly to give advice and consent to ratification of 

these treaties, as set forth in this report and the accompanying resolution of advice and consent. 

A. PROVISIONAL ARREST

Extradition treaties with Member States of the EU generally provide a mechanism for provisional arrest, which allows for the arrest 

and detention of a person on the basis of certain information, inVerDate Aug 31 2005 07:47 Sep 12, 2008 Jkt 000000 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 H:\DOCS\EXEC~1.REP\EX110-12.TXT sfrela2 PsN: MIKEB
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32See, e.g., U.S. bilateral extradition treaties with the Czech Republic, the Republic of Finland, the Federal Republic of Germany, the Hellenic Republic, the Italian Republic, and the 

Kingdom of Spain. 33See, e.g., U.S. bilateral extradition treaties with the Republic of Austria, the Kingdom of 

Belgium, the Republic of Cyprus, the Kingdom of Denmark, the Republic of Estonia, France, 

the Republic of Hungary, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy 

of Luxembourg, Malta, and the United Kingdom of Great Britain and Northern Ireland. 

cluding an arrest warrant from the requesting State, for a period 

of time pending a formal extradition request. 

An issue that has received increasing attention in U.S. courts is 

whether or not the magistrate who issues a provisional arrest warrant in the United States must find probable cause to believe that 

the person for whom the arrest warrant is sought committed the 

crime underlying the extradition request or whether it is enough 

to simply find probable cause that the person at issue has been 

charged with an extraditable crime by the requesting country. In 

response to questions from the committee, the Department of Justice has indicated that although the Fourth Amendment of the 

Constitution applies, ‘‘[e]xactly what categories and quantum of information are sufficient to meet Fourth Amendment requirements 

in the context of provisional arrest pending extradition is not well 

settled.’’ The EU Framework Agreement provides no guidance on 

this matter, as it does not specify the standard of proof that an EU 

Member State must satisfy in order to obtain the provisional arrest 

of a fugitive in the United States pending transmission of a formal 

extradition request. 

While the committee takes no position as to what standard of 

proof must be met in order to meet Fourth Amendment requirements in the context of provisional arrest, the committee does have 

concerns regarding the length of time an individual may be detained pursuant to a provisional arrest warrant without the United 

States having yet received a formal extradition request that would 

establish probable cause to believe that the person has committed 

a crime. Several extradition treaties with EU Member States limit 

the number of days that a person who has been provisionally arrested can be detained by the requested State without a formal extradition request having been submitted by the requesting State.32

For example, Article 11(4) of the extradition treaty with the Netherlands states as follows: ‘‘Provisional arrest shall be terminated if, 

within a period of 60 days after the apprehension of the person 

sought, the Requested State has not received the formal request for 

extradition and the supporting documents mentioned in Article 9.’’ 

Many EU Member State extradition treaties, however, require each 

party to hold a person who has been provisionally arrested for a 

certain minimum period of time, but leave to each party’s discretion whether to hold that person longer without having yet received 

the formal extradition request.33 For example, Article 10(4) of the 

extradition treaty with Belgium states as follows: ‘‘A person who is 

provisionally arrested may be discharged from custody upon the expiration of 75 days from the date of provisional arrest pursuant to 

this Treaty if the executive authority of the Requested State has 

not received the formal request for extradition and the supporting 

documents required in Article 7.’’ 

In response to questions asked by the committee, the Department of Justice has explained that ‘‘[i]t is rare for extradition treaty partners to miss the treaty deadline for the presentation of docuVerDate Aug 31 2005 07:47 Sep 12, 2008 Jkt 000000 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 H:\DOCS\EXEC~1.REP\EX110-12.TXT sfrela2 PsN: MIKEB
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34See Treaty Doc. 109–14 at p. VI (stating that ‘‘[t]he U.S.-E.U. Extradition Agreements and 

bilateral instruments are regarded as self-executing treaties under U.S. law . . . .’’); Treaty Doc. 

109–15 at p. V (stating that the ‘‘[t]reaty is self-executing and will not require implementing 

legislation.’’); Treaty Doc. 109–16 at p. V (stating that the ‘‘[t]reaty is self-executing and will 

not require implementing legislation’’); Treaty Doc. 109–17 at p. V (stating that the ‘‘[t]reaty 

is self-executing and will not require implementing legislation.’’); Treaty Doc. 110–11 at p. V 

(stating that the instrument is ‘‘self-executing and will not require implementing legislation.’’); 

and Treaty Doc. 110–12 at p. V (stating that the instrument is ‘‘self-executing and will not require implementing legislation.’’) 35The committee has consistently expressed the view that extradition treaties are self-executing. See, e.g., Exec. Rept. 106–24 at p. II (stating with regard to the U.S.-Belize, the U.S.- 

Republic of Paraguay, the U.S.-South African, and the U.S.-Sri Landa Extradition Treaties that 

‘‘the legal procedures for extradition are governed by both federal statutes and self-executing 

treaties’’). 

ments in support of extradition.’’ The Department of Justice also 

noted that because it is so rare, the Department ‘‘does not track 

statistics to demonstrate how long a person who was provisionally 

arrested was held beyond the treaty mandated deadline absent 

presentation of the formal extradition documents.’’ 

While the committee recognizes the value of a mechanism for 

provisional arrest when trying to detain a fugitive from justice, the 

committee is also concerned that such a mechanism be subject to 

appropriate limits in light of the liberty interests at stake. Thus, 

in the committee’s view, the Department of Justice should monitor 

the length of time that individuals are detained pursuant to a provisional arrest warrant pending an extradition request and thus 

has conditioned its approval of the EU Framework Agreement on 

a report that would provide such information. In addition, the committee encourages the Department of State and the Department of 

Justice, when negotiating such mechanisms in future treaties, to 

include language, such as in the extradition treaty with the Netherlands, that the provisional arrest ‘‘shall be terminated’’ if the requested State has not received a formal extradition request within 

a specified time period that is long enough to satisfy the legitimate 

requirements of law enforcement officials in making the request. 

Such language would avoid the potential for provisional arrest procedures to be used to detain an individual indefinitely. 

B. RESOLUTIONS

The committee has included in the resolutions of advice and consent one condition, which is a report on provisional arrest discussed 

above, and one declaration, which is the same for each treaty and 

is discussed below. 

Declaration 

In every resolution of advice and consent, the committee has included a proposed declaration that states that each treaty is selfexecuting. This declaration is consistent with statements made in 

the Letters of Submittal from the Secretary of State to the President on each of these instruments34 and with the historical practice 

of the committee in approving extradition treaties.35 Such a statement, while generally included in the documents associated with 

treaties submitted to the Senate by the executive branch and in 

committee reports, has not generally been included in Resolutions 

of advice and consent. The committee, however, proposes making 

such a declaration in the Resolution of advice and consent in light 

of the recent Supreme Court decision, Medellı ́n v. Texas, 128 S.Ct. 

10 

1346 (2008), which has highlighted the utility of a clear statement 

regarding the self-executing nature of treaty provisions. 

The committee believes it is of great importance that the United 

States complies with the treaty obligations it undertakes. In accordance with the Constitution, all treaties—whether self-executing 

or not—are the supreme law of the land, and the President shall 

take care that they be faithfully executed. In general, the committee does not recommend that the Senate give advice and consent to treaties unless it is satisfied that the United States will be 

able to implement them, either through implementing legislation, 

the exercise of relevant constitutional authorities, or through the 

direct application of the treaty itself in U.S. law. While situations 

may arise that were not contemplated when the treaty was concluded and ratified that raise questions about the authority of the 

United States to comply, the committee expects that such cases will 

be rare. Accordingly, in the committee’s view, a strong presumption 

should exist against the conclusion in any particular case that the 

United States lacks the necessary authority in U.S. law to implement obligations it has assumed under treaties that have received 

the advice and consent of the Senate. 

IX. RESOLUTIONS OF ADVICE AND CONSENT TO RATIFICATION

AGREEMENT ON EXTRADITION BETWEEN THE UNITED STATES OF

AMERICA AND THE EUROPEAN UNION

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION AND A CONDITION 

The Senate advises and consents to the ratification of the Agreement on Extradition between the United States of America and the 

European Union, signed at Washington on June 25, 2003, with a 

related Explanatory Note (Treaty Doc. 109–14), subject to the declaration of section 2 and the condition of section 3. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

SECTION 3. CONDITION 

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

to the following condition: 

REPORT ON PROVISIONAL ARRESTS. No later than February 1, 

2010, and every February 1 for an additional four years thereafter, the Attorney General, in coordination with the Secretary 

of State, shall prepare and submit a report to the Committee 

on Foreign Relations and the Committee on the Judiciary of 

the Senate that contains the following information: 

1) The number of provisional arrests made by the United 

States during the previous calendar year under each bilateral extradition treaty with a Member State of the European Union, and a summary description of the alleged conduct for which provisional arrest was sought; 

2) The number of individuals who were provisionally arrested by the United States under each such treaty who 

11 

were still in custody at the end of the previous calendar 

year, and a summary description of the alleged conduct for 

which provisional arrest was sought; 

3) The length of time between each provisional arrest 

listed under paragraph (1) and the receipt by the United 

States of a formal request for extradition; and 

4) The length of time that each individual listed under 

paragraph (1) was held by the United States or an indication that they are still in custody if that is the case. 

PROTOCOL TO THE EXTRADITION TREATY BETWEEN THE UNITED

STATES OF AMERICA AND THE REPUBLIC OF AUSTRIA

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Protocol to the Extradition Treaty between the Government of the 

United States of America and the Government of the Republic of 

Austria signed January 8, 1998, as contemplated by Article 3 (2) 

of the Agreement on Extradition between the United States of 

America and the European Union signed June 25, 2003, signed at 

Vienna on July 20, 2005 (Treaty Doc. 109–14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE KINGDOM OF BELGIUM

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument as contemplated by Article 3 (2) of the Agreement on Extradition between the United States of America and the European 

Union signed June 25, 2003, as to the application of the Extradition Treaty between the United States of America and the Kingdom of Belgium signed April 27, 1987, signed at Brussels on December 16, 2004 (Treaty Doc. 109–14), subject to the declaration of 

section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND

THE REPUBLIC OF BULGARIA

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

12 

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Extradition Treaty between the Government of the United States of 

America and the Government of the Republic of Bulgaria, signed 

at Sofia on September 19, 2007 (Treaty Doc. 110–12), subject to the 

declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE REPUBLIC OF CYPRUS

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument as contemplated by Article 3 (2) of the Agreement on Extradition between the United States of America and the European 

Union signed June 25, 2003, as to the application of the Extradition Treaty between the Government of the United States of 

America and the Government of the Republic of Cyprus signed 

June 17, 1996, signed at Nicosia on January 20, 2006 (Treaty Doc. 

109–14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

SECOND SUPPLEMENTARY TREATY ON EXTRADITION BETWEEN THE

UNITED STATES OF AMERICA AND THE CZECH REPUBLIC

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Second 

Supplementary Treaty on Extradition between the United States of 

America and the Czech Republic, signed at Prague on May 16, 

2006 (Treaty Doc. 109–14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE KINGDOM OF DENMARK

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

13 

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument as contemplated by Article 3 (2) of the Agreement on Extradition between the United States of America and the European 

Union signed June 25, 2003, as to the application of the Treaty on 

Extradition between the United States of America and the Kingdom of Denmark signed June 22, 1972, signed at Copenhagen on 

June 23, 2005 (Treaty Doc. 109–14), subject to the declaration of 

section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND

THE REPUBLIC OF ESTONIA

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Extradition Treaty between the Government of the United States of 

America and the Government of the Republic of Estonia, signed at 

Tallinn on February 8, 2006 (Treaty Doc. 109–16), subject to the 

declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

PROTOCOL TO THE EXTRADITION TREATY BETWEEN THE UNITED

STATES OF AMERICA AND THE REPUBLIC OF FINLAND

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Protocol to the Extradition Treaty between the United States of America and Finland signed June 11, 1976, signed at Brussels on December 16, 2004 (Treaty Doc. 109–14), subject to the declaration of 

section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND FRANCE

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

14 

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument as contemplated by Article 3, paragraph 2, of the Agreement 

on Extradition between the United States of America and the European Union signed June 25, 2003, as to the application of the Extradition Treaty between United States of America and France 

signed April 23, 1996, signed at The Hague on September 30, 2004 

(Treaty Doc. 109–14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

SECOND SUPPLEMENTARY TREATY ON EXTRADITION BETWEEN THE

UNITED STATES OF AMERICA AND THE FEDERAL REPUBLIC OF GERMANY

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Second 

Supplementary Treaty to the Treaty between the United States of 

America and the Federal Republic of Germany Concerning Extradition, signed at Washington on April 18, 2006 (Treaty Doc. 109– 

14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

PROTOCOL TO THE TREATY ON EXTRADITION BETWEEN THE UNITED

STATES OF AMERICA AND THE HELLENIC REPUBLIC

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Protocol to the Treaty on Extradition between the United States of 

America and the Hellenic Republic, signed May 6, 1931, and the 

Protocol thereto signed September 2, 1937, as contemplated by Article 3 (2) of the Agreement on Extradition between the United 

States of America and the European Union, signed June 25, 2003, 

signed at Washington on January 18, 2006 (Treaty Doc. 109–14), 

subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

15 

PROTOCOL TO THE TREATY ON EXTRADITION BETWEEN THE UNITED

STATES OF AMERICA AND THE REPUBLIC OF HUNGARY

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Protocol to the Treaty between the Government of the United States 

of America and the Government of the Republic of Hungary on Extradition signed December 1, 1994, as contemplated by Article 3 (2) 

of the Agreement on Extradition between the United States of 

America and the European Union, signed June 25, 2003, signed at 

Budapest on November 15, 2005 (Treaty Doc. 109–14), subject to 

the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND IRELAND

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument as contemplated by Article 3 (2) of the Agreement on Extradition between the United States of America and the European 

Union signed June 25, 2003, as to the application of the Treaty on 

Extradition between the United States of America and Ireland 

signed July 13, 1983, signed at Dublin on July 14, 2005 (Treaty 

Doc. 109–14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE ITALIAN REPUBLIC

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument as contemplated by Article 3 (2) of the Agreement on Extradition between the United States of America and the European 

Union signed June 25, 2003, as to the application of the Extradition Treaty between the Government of the United States of 

America and the Government of the Italian Republic signed October 13, 1983, signed at Rome on May 3, 2006 (Treaty Doc. 109–14), 

subject to the declaration of section 2. 

16 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND

THE REPUBLIC OF LATVIA

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Extradition Treaty between the Government of the United States of 

America and the Government of the Republic of Latvia, signed at 

Riga on December 7, 2005 (Treaty Doc. 109–15), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

PROTOCOL TO THE EXTRADITION TREATY BETWEEN THE UNITED

STATES OF AMERICA AND THE REPUBLIC OF LITHUANIA

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Protocol on the application of the Agreement on Extradition between 

the United States of America and the European Union to the Extradition Treaty between the Government of the United States of 

America and the Government of the Republic of Lithuania, signed 

at Brussels on June 15, 2005 (Treaty Doc. 109–14), subject to the 

declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE GRAND DUCHY OF LUXEMBOURG

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument as contemplated by Article 3, paragraph 2 (a) of the Agreement on Extradition between the United States of America and the 

European Union signed June 25, 2003, as to the application of the 

Extradition Treaty between the Government of the United States 

of America and the Government of the Grand Duchy of Luxembourg signed October 1, 1996, signed at Washington on February 

17 

1, 2005 (Treaty Doc. 109–14), subject to the declaration of section 

2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION TREATY BETWEEN THE UNITED STATES

OF AMERICA AND MALTA

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Extradition Treaty between the Government of the United States of 

America and the Government of Malta, signed at Valletta on May 

18, 2006, with a related exchange of letters signed the same date 

(Treaty Doc. 109–17), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION AGREEMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE KINGDOM OF THE NETHERLANDS

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Agreement comprising the Instrument as contemplated by Article 3 (2) 

of the Agreement on Extradition between the United States of 

America and the European Union signed at Washington on June 

25, 2003, as to the application of the Extradition Treaty between 

the United States of America and the Kingdom of the Netherlands 

signed at The Hague on June 24, 1980, signed at The Hague on 

September 29, 2004, with a related exchange of notes signed the 

same date (Treaty Doc. 109–14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION AGREEMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE REPUBLIC OF POLAND

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

18 

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Agreement between the United States of America and the Republic of Poland on the application of the Extradition Treaty between the 

United States of America and the Republic of Poland signed July 

10, 1996, pursuant to Article 3 (2) of the Agreement on Extradition 

between the United States of America and the European Union 

signed at Washington June 25, 2003, signed at Warsaw on June 9, 

2006 (Treaty Doc. 109–14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE PORTUGUESE REPUBLIC

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument between the United States of America and the Portuguese 

Republic as contemplated by Article 3 (2) of the Agreement on Extradition between the United States of America and the European 

Union signed June 25, 2003, signed at Washington on July 14, 

2005 (Treaty Doc. 109–14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND

ROMANIA

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Extradition Treaty between the United States of America and Romania, 

signed at Bucharest on September 10, 2007 (Treaty Doc. 110–11), 

subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE SLOVAK REPUBLIC

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

19 

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument on Extradition between the United States of America and the 

Slovak Republic, as contemplated by Article 3 (2) of the Agreement 

on Extradition between the United States of America and the European Union signed June 25, 2003, signed at Bratislava on February 

6, 2006 (Treaty Doc. 109–14), subject to the declaration of section 

2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION AGREEMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE REPUBLIC OF SLOVENIA

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Agreement between the Government of the United States of America and 

the Government of the Republic of Slovenia comprising the Instrument as contemplated by Article 3 (2) of the Agreement on Extradition between the United States of America and the European 

Union signed June 25, 2003, as to the Application of the Treaty on 

Extradition between the United States and the Kingdom of Serbia, 

signed October 25, 1901, signed at Ljubljana on October 17, 2005 

(Treaty Doc. 109–14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE KINGDOM OF SPAIN

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument as contemplated by Article 3 (2) of the Agreement on Extradition between the United States of America and the European 

Union signed June 25, 2003, as to the application of the Treaty on 

Extradition between the United States of America and Spain 

signed May 29, 1970, and the Supplementary Treaties on Extradition signed January 25, 1975, February 9, 1988 and March 12, 

1996, signed at Madrid on December 17, 2004 (Treaty Doc. 109– 

14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

20 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND KINGDOM OF SWEDEN

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument as contemplated by Article 3 (2) of the Agreement on Extradition between the United States of America and the European 

Union signed June 25, 2003, as to the application of the Convention on Extradition between the United States of America and Sweden signed October 24, 1961 and the Supplementary Convention on 

Extradition between the United States of America and the Kingdom of Sweden signed March 14, 1983, signed at Brussels on December 16, 2004 (Treaty Doc. 109–14), subject to the declaration of 

section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Instrument as contemplated by Article 3 (2) of the Agreement on Extradition between the United States of America and the European 

Union signed June 25, 2003, as to the application of the Extradition Treaty between the Government of the United States and 

the Government of the United Kingdom of Great Britain and 

Northern Ireland signed March 31, 2003, signed at London on December 16, 2004, with a related exchange of notes signed the same 

date (Treaty Doc. 109–14), subject to the declaration of section 2. 

SECTION 2. DECLARATION 

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

to the following declaration: 

This Treaty is self-executing. 

(21) 

X. ANNEX—TREATY HEARING OF MAY 20, 2008 

TREATIES 

TUESDAY, MAY 20, 2008 

U.S. SENATE, 

COMMITTEE ON FOREIGN RELATIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:32 a.m., in room 

SD–419, Dirksen Senate Office Building, Hon. Benjamin L. Cardin, 

presiding. 

Present: Senator Cardin. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, 

U.S. SENATOR FROM MARYLAND 

Senator CARDIN. The committee will come to order. 

First, let me thank Senator Biden for allowing me to chair today’s hearing. It is a very important hearing dealing with important business on extradition treaties and mutual assistance agreements that are critically important to law enforcement in the 

United States and with our friends around the globe. 

Today the committee meets to review 28 extradition treaties and 

30 mutual legal assistance treaties with the European Union, all 

27 European Union Member States, and Malaysia. These treaties 

are intended to modernize and improve the scope and operation of 

our existing international law enforcement framework while, nevertheless, maintaining a legal framework for the cooperation that is 

efficient, fair, and effective. The committee recognizes the necessity 

and the benefits that are derived from such treaties, which enhance cooperation between nations especially at this critical time 

in our history. 

The United States has entered into over 100 bilateral extradition 

and mutual legal assistance treaties. Extradition treaties are important agreements that ensure, for example, that those who commit crimes in the United States cannot flee to another nation in 

order to escape justice and punishment. Mutual legal assistance 

treaties strengthen our ability to obtain evidence and other forms 

of assistance from overseas in support of our criminal investigations and prosecutions. 

The structure of these treaties reflect the consistent evolution we 

have been observing in Europe over the last several decades. Instead of negotiating a separate and different agreement with each 

country in Europe, as we have done in the past, there is now one 

overarching agreement on extradition and another on mutual legal 

22 

assistance concluded with the European Union, which harmonizes 

the content of the bilateral agreements with every Member State. 

First, there is a package of extradition agreements. Key provisions of the new extradition agreements implementing the U.S.–EU 

extradition agreement are as follows. 

Outdated lists of extraditable offenses would be replaced with a 

modern dual criminality standard, which would enable our extradition treaties to cover new offenses, such as money laundering or 

cybercrime, as they develop in the criminal legal systems of both 

countries without having to amend the treaty each time. 

The process of authenticating documents and transmission of 

provisional arrests and extradition requests would be streamlined. 

Clear authority for the temporary transfer of persons to the requesting state that are being prosecuted or serving a sentence in 

the requesting state would be provided. 

A uniform approach to handling competing requests for extradition or surrender of the same fugitive from every EU Member 

State and the United States would be established. Moreover, the 

United States requests for extradition put forward to a EU Member 

State would have the same status as competing requests submitted 

by another EU Member State. 

Simplified extradition procedures would be provided in cases in 

which the person sought does not contest extradition. 

Transit authority would be provided in order to facilitate the 

transportation of persons surrendered to a state by a third country 

when that person has to travel through another State Party in 

order to be surrendered. 

In addition to these treaties on extradition matters, we are also 

considering today 30 mutual legal assistance treaties, also known 

as MLATs. 

The United States has bilateral MLATs in force with 17 of the 

27 EU Member States and has signed three bilateral MLATs with 

EU Member States that had not yet entered into force, including 

the 2001 MLAT with Sweden, which we are considering today. 

Many of the MLATs in force with EU Member States are out of 

date and thus need to be modernized. Moreover, the United States 

does not have MLATs in force with the remaining seven states of 

Bulgaria, Denmark, Finland, Malta, Portugal, Slovakia, and Slovenia. If the treaties we are considering today are approved by the 

Senate, the United States would have, for the first time, at least 

a partial or treaty-based mutual legal assistance relationship with 

these seven states. 

Key provisions and mechanisms in the U.S.–EU framework 

agreement, which will be included in the EU Member State instruments are as follows. 

A mechanism through which it would be possible to identify bank 

accounts and transactions relating to persons and entities under 

criminal investigation, as specified in the individual bilateral 

agreements. 

States would be authorized to create and operate joint investigative teams comprised of investigating authorities for treaty partner 

countries for the purpose of facilitating criminal investigations or 

prosecutions involving one or more EU Member States and the 

United States where deemed appropriate by relevant parties. 

23 

A mechanism that would facilitate the use of video transmission 

technology to take witness testimony and for other law enforcement 

purposes. 

States Parties would be authorized to use modern technology, 

such as fax and e-mail, in making requests for legal assistance so 

that the transmission of requests can be expedited. 

States Parties would be authorized to provide legal assistance to 

administrative authorities conducting investigations with a view to 

criminal prosecution. 

The final MLAT is the one law enforcement treaty under consideration with a state outside of the EU, and that is Malaysia. As 

with most MLATs, the agreement generally obligates the Parties to 

assist each other in criminal investigations, prosecutions, and related law enforcement proceedings, as well as civil and administrative proceedings that may be related to criminal matters. 

I, particularly, want to thank our two administration witnesses 

that are with us today. I know this is technical information and it 

is a formal process that we go through on the constitutional responsibilities of the United States Senate on treaties. But these are 

very important issues, and I know they just did not come about 

quickly. It took a lot of work—a lot of hard work—and we appreciate the work that our two witnesses have done in making it possible for the United States Senate to take up these treaties today. 

Susan Biniaz is a Deputy Legal Adviser of the Department of 

State, and Bruce Swartz, the Deputy Assistant Attorney General 

for the Criminal Division at the Department of Justice. It is nice 

to have both of the Department of Justice and the Department of 

State represented today at our hearing. 

We will start with Ms. Biniaz. 

STATEMENT OF SUSAN BINIAZ, DEPUTY LEGAL ADVISER, 

DEPARTMENT OF STATE, WASHINGTON, DC 

Ms. BINIAZ. Thank you, Mr. Chairman. I am pleased to testify, 

along with my colleague from the Justice Department, to express 

the strong support of the State Department and the administration 

for the Senate’s prompt provision of advice and consent to the ratification of 58 new agreements for international law enforcement 

cooperation. 

The agreements fall into three categories. First, there are two 

agreements with the European Union (EU), one each on extradition 

and mutual legal assistance. Second, there are 54 bilateral instruments, one on extradition and one on mutual legal assistance, with 

each of the 27 EU Member States. Third there are mutual legal assistance treaties, or MLATs, with Malaysia and Sweden. 

Mr. Chairman, the extradition and mutual legal assistance 

agreements with the European Union and the individual Member 

States are the concrete results of a dialogue that began in the immediate aftermath of the September 11 terrorist attacks. From 

these discussions came a decision to modernize and expand existing 

law enforcement treaties between the U.S. and the EU Member 

States. The modernization was pursued initially through the negotiation of agreements with the EU itself, followed by the negotiation of instruments with the individual Member States. Both features, modernization of existing treaties and widening the net of 

24 

bilateral treaty coverage, became particularly important when the 

EU in 2004 and 2007 expanded to admit new countries, primarily 

from Central and Eastern Europe. In that region, a number of U.S. 

extradition treaties were antiquated and mutual legal assistance 

treaties were in some cases nonexistent. 

The extradition and mutual legal assistance agreements with the 

EU were signed in June 2003. Thereafter, the U.S. pursued bilateral implementing instruments, one each on extradition and mutual legal assistance. These instruments were negotiated first with 

each of the European Union’s then-15 Member States and thereafter with the 12 additional states. 

We concluded individual bilateral instruments for a number of 

reasons. As a matter of international law, the bilateral instruments 

reflect direct sovereign consent by each EU Member State to the 

changes set forth in the U.S.–EU Agreements to the preexisting bilateral extradition or mutual legal assistance treaty between the 

United States and that Member State. As a matter of domestic law, 

the bilateral instruments should ensure application of the revised 

extradition treaties and MLATs by practitioners and the judiciary, 

both in the United States and abroad. 

Most of the bilateral extradition instruments simply reflect the 

modernizing provisions contained in the U.S.–EU Agreement. However, five of the bilateral extradition instruments being considered 

by the committee today, those with Bulgaria, Estonia, Latvia, 

Malta, and Romania, take the form of comprehensive new extradition treaties. These five treaties were transmitted to the Senate 

separately. Since the prior extradition treaties with each of these 

countries had become outdated, it made sense to incorporate the 

provisions required by the U.S.–EU Extradition Agreement into 

fully modernized new extradition treaties instead of amendments 

to old treaties. 

As a matter of substance, what is particularly notable in each of 

the comprehensive new treaties is the obligation to extradite nationals. These five countries have become the most recent European countries to overcome the historic obstacle that nationality 

has posed in extradition relations between much of Europe and the 

United States. 

The bilateral mutual legal assistance instruments, like the extradition instruments, reflect the scope of the U.S.–EU Agreement. It 

should be noted that where no bilateral mutual legal assistance 

treaty previously existed between the United States and an EU 

Member State, as was the case with seven Member States (Bulgaria, Denmark, Finland, Malta, Portugal, Slovakia, and Slovenia), 

the new mutual legal assistance agreements will now serve that 

role. 

Ratification processes for both the U.S.–EU Agreements and the 

individual bilateral instruments are approaching completion in Europe. I am pleased to report that 22 of the 27 EU Member States 

have completed their domestic procedures to bring the agreements 

into force. We expect the remainder to do so in the coming months, 

and prompt Senate action on this package of agreements would be 

very helpful in accelerating the process of ratification in European 

Union Member States. The U.S.–EU Agreements and the completed bilateral instruments may enter into force only following 

25 

completion of all ratification procedures by all national governments. 

In conclusion, Mr. Chairman, the U.S.–EU Agreements and related bilateral instruments before the committee today would result in a historic and comprehensive modernization of the U.S. law 

enforcement relationship with the 27 members of the EU, and 

would create an institutional relationship with the EU itself in the 

law enforcement area. These agreements represent an opportunity 

to bring an important area of trans-Atlantic cooperation into the 

21st century. 

Now, turning to the Mutual Legal Assistance Treaty with Malaysia, while this agreement may not have the historic significance 

and law enforcement impact of the U.S.–EU agreements, it is, 

nonetheless, an important and necessary tool to help authorities in 

the United States and Malaysia investigate and prosecute terrorism and organized crime. I have addressed this treaty more fully 

in my written testimony and would be happy to address any questions you may have on this or on any of the other agreements before the committee. 

Thank you. 

[The prepared statement of Ms. Biniaz follows:] 

PREPARED STATEMENT OF SUSAN BINIAZ, DEPUTY LEGAL ADVISER, U.S. DEPARTMENT

OF STATE, WASHINGTON, DC 

Mr. Chairman, I am pleased to testify, along with my colleague from the Department of Justice, to express the strong support of the Department of State and the 

administration for the Senate’s prompt provision of advice and consent to ratification of 57 new agreements for international law enforcement cooperation. The agreements fall into three categories: 

• Two agreements with the European Union (EU), one each on extradition and 

mutual legal assistance; 

• Fifty-four bilateral instruments, done pursuant to the U.S.–EU Agreements, one 

on extradition and one on mutual legal assistance, with each of the 27 EU 

Member States; and 

• A mutual legal assistance treaty (MLAT) with Malaysia. 

The Department of State greatly appreciates this opportunity to move toward ratification of these important treaties. I will address the extradition and mutual legal 

assistance agreements with the European Union and the bilateral instruments with 

EU Member States first, followed by the MLAT with Malaysia. 

EXTRADITION AND MUTUAL LEGAL ASSISTANCE AGREEMENTS WITH THE EUROPEAN

UNION

Mr. Chairman, the extradition and mutual legal assistance agreements between 

the United States and the European Union are the first law enforcement treaties 

our government has ever concluded with this important international body. They 

are concrete results of a dialogue that began between our government and the EU 

in the immediate aftermath of the September 11, 2001, attacks, as part of a wideranging exploration of ways of improving trans-Atlantic cooperation against 

terrorism. 

From these discussions came a decision to modernize and expand existing law enforcement treaties between the United States and the Member States of the European Union. It was agreed to pursue this modernization initially through the negotiation of agreements with the EU itself, to be followed by instruments with the 

individual Member States. Both features—modernization of existing treaties and 

widening the net of bilateral treaty coverage—became particularly important when 

the EU in 2004 and 2007 expanded to admit new countries primarily from Central 

and Eastern Europe, a region where a number of U.S. extradition treaties were antiquated and mutual legal assistance treaties, in some cases, were nonexistent. 

Among the most important features of the U.S.–EU Extradition Agreement is a 

provision replacing outdated ‘‘lists’’ of extraditable offenses with the ‘‘dual criminality’’ approach. This modern approach will now apply to our extradition relations 

26 

with all the countries of the European Union. It allows extradition for a broader 

range of offenses, and also will encompass newer ones, e.g. cybercrime, as they develop, without the need to amend the underlying treaties. The Extradition Agreement additionally contains a series of significant improvements to expedite the extradition process, which will be described by my Department of Justice colleague. 

The U.S.–EU Mutual Legal Assistance Agreement likewise contains several innovations that should prove of value to U.S. prosecutors and investigators. It creates 

an improved mechanism for obtaining bank information from an EU Member State, 

delineates a legal framework for the use of new techniques such as joint investigative teams, and establishes a comprehensive and uniform framework for limitations 

on the use of personal data. The Department of Justice testimony also will describe 

these features in greater detail. 

EXTRADITION AND MUTUAL LEGAL ASSISTANCE INSTRUMENTS WITH EU MEMBER STATES

The Extradition and Mutual Legal Assistant Agreements with the EU were 

signed in June 2003. Thereafter, the United States pursued bilateral implementing 

instruments, one each on extradition and mutual legal assistance. These instruments were negotiated first with each of the European Union’s then-15 Member 

States and thereafter with the 12 additional states that joined in two groups, in 

2004 and in 2007. 

The conclusion of individual bilateral instruments was undertaken for important 

reasons. As a matter of international law, the bilateral instruments reflect direct 

sovereign consent by each EU Member State to the changes required by the U.S.– 

EU Agreements to the preexisting bilateral extradition or mutual legal assistance 

treaty between the United States and that Member State. As a matter of domestic 

law, the bilateral instruments should ensure application of the revised extradition 

treaties and MLATs by practitioners and the judiciary, both in the United States 

and abroad. 

Most of the bilateral extradition instruments simply reflect the modernizing provisions contained in the U.S.–EU Agreement. However, five of the bilateral extradition instruments being considered by the committee today—those with Bulgaria, 

Estonia, Latvia, Malta, and Romania—take the form of comprehensive new extradition treaties. (These were transmitted to the Senate separately.) Since the prior 

extradition treaties with each of these countries had become outdated, it made sense 

to incorporate the provisions required by the U.S.–EU Extradition Agreement into 

fully modernized new extradition treaties instead of amendments to the existing 

treaties. 

As a matter of substance, what is particularly notable in each of the comprehensive new treaties is the obligation undertaken to extradite nationals. With respect 

to Estonia and Romania, this obligation is unqualified. In the case of Latvia, its government may request that a Latvian national serve a U.S.-imposed sentence in a 

Latvian prison, pursuant to a prisoner transfer treaty. With regard to Malta and 

Bulgaria, their nationals may be extradited for 30 specified offenses corresponding 

essentially to those offenses for which they also may be surrendered for trial to 

European Union Member States. These countries thus have become the most recent 

European countries to overcome the historic obstacle that nationality has posed in 

extradition relations between much of Europe and the United States. 

The bilateral mutual legal assistance instruments, like the extradition instruments, reflect the scope of the U.S.–EU MLA Agreement. Notably, where no bilateral law enforcement treaty previously existed between the United States and the 

EU Member State—as is the case with seven Member States in the mutual legal 

assistance area (Bulgaria, Denmark, Finland, Malta, Portugal, Slovakia, and Slovenia)—the mutual legal assistance instruments, while not serving as comprehensive MLATs, will ensure that the obligations arising from the U.S.–EU Agreement 

are applied between the United States and the EU Member State. 

Ratification processes for both the U.S.–EU Agreements and for the bilateral instruments are approaching completion in Europe. While the foreign party to the 

U.S.–EU Agreements is the European Union itself, most EU Member States nonetheless are required or have chosen under their domestic constitutional laws to ratify both the U.S.–EU Agreements and the applicable bilateral instruments. I am 

pleased to report that 22 of the 27 EU Member States have completed their domestic procedures to bring the agreements into force. We expect the remainder to do 

so in coming months, and prompt Senate action on this package of agreements 

would be very helpful in accelerating the process of ratifications in European Union 

Member States. The U.S.–EU Agreements and the completed bilateral instruments 

may enter into force only following completion of all ratification procedures by all 

national governments. 

27 

MUTUAL LEGAL ASSISTANCE TREATY WITH MALAYSIA

The Mutual Legal Assistance Treaty with Malaysia does not have the historic significance and law enforcement impact of the U.S.–EU agreements, but it is nonetheless important. Malaysia is located at the heart of a region of the world where our 

law enforcement authorities are working every day in partnership with local governments to combat terrorism and organized crime. The MLAT will be a useful tool to 

help authorities in both the United States and Malaysia investigate and prosecute 

those offenses. It also will serve—indeed, it has already served—as a model for 

ongoing negotiations between the United States and other nations in that crucial 

region. 

For the most part, the content of the MLAT with Malaysia is similar to that of 

the many other MLATs that this committee has reviewed in recent decades. It provides broad authority for each party to assist the other in gathering evidence necessary for criminal investigations and prosecutions. 

One of the less common features of this MLAT is the provision allowing either 

party to refuse assistance in the absence of so-called ‘‘dual criminality’’—in other 

words, if the conduct being investigated or prosecuted would not also constitute an 

offense in the state receiving the request punishable by a maximum sentence of at 

least 1 year’s imprisonment. Unlike extradition treaties, most MLATs do not have, 

and do not require, such a provision, but it is not unprecedented and we view it 

as a workable approach. To provide sufficient certainty that cooperation will be 

available for the range of requests we are likely to submit, our negotiators undertook two important steps: First, they conducted a review and comparison of the 

criminal codes of the two countries and concluded that there was sufficient commonality between the two that U.S. authorities would be able to obtain assistance 

in a broad range of matters. In addition, the negotiators prepared and included an 

annex to the treaty that outlines a set of offenses for which assistance will not be 

denied on the ground of absence of dual criminality. This annex includes the types 

of offenses for which U.S. prosecutors generally seek assistance abroad. 

Mr. Chairman, I urge that the committee give prompt and favorable consideration 

to these agreements. 

Senator CARDIN. Thank you, Ms. Biniaz. 

Mr. Swartz. 

STATEMENT OF BRUCE SWARTZ, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Mr. SWARTZ. Mr. Chairman and members of the committee, 

thank you for this opportunity to present the views of the Department of Justice on the U.S.–EU extradition and mutual legal assistance treaties, the instruments that implement each of those 

treaties at a bilateral level with each EU Member State, and the 

mutual legal assistance treaty with Malaysia. 

As you note, Mr. Chairman, these are critically important treaties. Each one of them directly advances the national security and 

law enforcement interests of the United States. 

Turning first to the U.S.–EU extradition framework decision and 

the framework treaty and the mutual legal assistance treaty that 

follows. With regard to the extradition treaty and the bilateral 

instruments under that treaty, as you note, Mr. Chairman, this 

treaty represents three key advances. 

First, it replaces the older-list treaty approach found in many of 

our older extradition treaties with the European Union and substitutes in its place a dual criminality approach, which means, as 

you note, that we will be able to go forward with the extraditions 

on crimes such as cybercrime, intellectual property offenses, and 

importantly, counterterrorism offenses that might not have been 

possible under the old-list treaty approach. 

28 

Second, the EU–U.S. Extradition Treaty replaces the antiquated 

competing extradition request provisions and substitutes in its 

place an analysis that will consider all relevant factors. And this 

is particularly important, as you note, with regard to the European 

arrest warrant since it makes clear that United States requests 

will be on a par with European arrest warrant requests as between 

European Member States and will not be automatically subordinated to them. 

And third, the extradition framework treaty puts in place a number of procedural improvements that will help ensure that extraditions are not denied on purely procedural grounds. And those 

include, as you note, temporary surrender provisions, waiver of extradition, transitive prisoners, a streamlining of provisional arrest, 

particularly through Justice Ministry and Interpol channels, and 

transmission and authentication of documents. 

In addition to all of these features, as my colleague from the 

State Department has noted, we have also negotiated five new 

bilateral extradition treaties, each of which accomplishes the U.S. 

priority of ensuring that nationals can be extradited from those 

countries. 

Turning next to the U.S.–EU Mutual Legal Assistance Treaty 

and the bilateral instruments under that, here, too, there are important advances. As you note, we had mutual legal assistance 

treaties with all but seven of the EU Member States. Our objective 

here was to ensure that we supplemented the treaties that we had 

and established relationships with the countries where we did not 

have treaties with regard to new forms of cooperation and that we 

improve the modalities under the existing forms of cooperation. 

And here, too, there are three important new advances represented 

by the framework U.S.–EU Mutual Legal Assistance Treaty. Each 

of these will aid our counterterrorism and law enforcement efforts. 

The first of these is the identification, as you note, of previously 

unknown bank accounts and related financial information, a significant advance we expect that will be extremely useful in terrorism and money laundering investigations. 

The second is the possibility of the creation of joint investigative 

teams which we expect will advance and expedite our criminal investigations and our counterterrorism investigations. 

The third is the possibility for videoconferencing in criminal investigations and proceedings, a step that we think will greatly expedite the transmission of evidence and investigative information. 

In addition to those three advances, as I noted, the framework 

treaty also establishes modalities that will improve our existing 

cooperation, including making clear that the assistance can be provided with regard to regulatory agencies insofar as they have statutory authority to conduct investigations with a view toward criminal referrals and are doing so with regard to the request in issue. 

Second, in this regard in terms of improving modalities, it is 

made clear that information that is provided could be used at a 

minimum in connection with criminal proceedings and where appropriate to ensure that public safety is secured, if there is an immediate threat, and finally with regard to administrative proceedings under the same conditions regarding possible referral for 

criminal prosecution. 

29 

And finally under modalities, the framework treaty makes clear 

that expedition of transmission of requests by fax and e-mail is also 

possible, again speeding the vital transmission of this information. 

Finally, turning to the Malaysia Mutual Legal Assistance Treaty, 

as you note, this is also a critically important treaty precisely because it involves an important partner in a very important part of 

the world. Under Malaysian law, no mutual legal assistance was 

possible for a criminal investigation prior to the beginning of court 

proceedings, that is, prior to this treaty. Therefore, this treaty has 

now secured the possibility of cooperation with Malaysia on critical 

counterterrorism and transnational crime investigations. 

In sum then, we appreciate, Mr. Chairman, the committee’s support for these important treaties. We urge that advice and consent 

be given to them. 

And I look forward to answering any questions you might have. 

Thank you. 

[The prepared statement of Mr. Swartz follows:] 

PREPARED STATEMENT OF BRUCE C. SWARTZ, DEPUTY ASSISTANT ATTORNEY

GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, DC 

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 the extradition and mutual legal assistance agreements between the United States and the European 

Union (EU), the instruments that implement them at the bilateral level with each 

EU Member State, and a mutual legal assistance treaty with Malaysia. These historic treaties directly advance the interests of the United States in fighting terrorism and transnational crime. 

At the outset, I wish to note that the decision to proceed with the negotiation of 

law enforcement treaties such as these is made jointly by the Departments of State 

and Justice, after careful consideration of our international law enforcement priorities. The Departments of Justice and State also participated together in the negotiation of each of these treaties, and we worked closely with the Department of the 

Treasury, the Securities and Exchange Commission (SEC) and the Federal Trade 

Commission (FTC) in negotiating the articles of the U.S.–EU Mutual Legal Assistance Agreement that relate to their respective functions. We join the Department 

of State and these other agencies today in urging the committee to report favorably 

to the Senate and recommend its advice and consent to ratification. 

The Departments of Justice and State have prepared and submitted to the committee detailed analyses of the mutual legal assistance and extradition treaties in 

the Letter of Submittal. In my testimony today, I will concentrate on why these extradition and mutual legal assistance treaties are important instruments for United 

States law enforcement agencies engaged in investigating and prosecuting terrorism 

and other serious criminal offenses. 

My colleague from the Department of State, Ms. Biniaz, has already touched upon 

the principal benefits flowing from the U.S.–EU Agreements. I will go into greater 

detail in describing the objectives of the United States in negotiating the agreements with the EU, and the provisions that resulted. 

THE U.S.–EU EXTRADITION AGREEMENT AND ITS BILATERAL IMPLEMENTING

INSTRUMENTS

With respect to the extradition agreement, at this moment, prior to the entry into 

force of the U.S.–EU Agreement and bilateral implementing treaties with the 27 EU 

Member States, the oldest of our existing extradition treaties with EU Member 

States are 100 years old or older (Slovenia, which dates to 1901 and Portugal, 

signed in 1908). Ten others signed in the 1920s through 1970s (Bulgaria, the Czech 

Republic, Denmark, Finland, Greece, Romania, and the Slovak Republic) also contain a significant number of antiquated provisions. As a result, one of the principal 

negotiating objectives of the United States was to arrive—in a single negotiation— 

at an extradition treaty governing EU Member States that would eliminate obsolete 

provisions in favor of more effective, modern provisions. 

At the same time, many of our existing bilateral extradition treaties with EU 

Member States were more modern treaties that did not require major revision, and 

which already reflected the particular needs of the U.S. and the Member State conVerDate Aug 31 2005 07:47 Sep 12, 2008 Jkt 000000 PO 00000 Frm 00029 Fmt 6601 Sfmt 6621 H:\DOCS\EXEC~1.REP\EX110-12.TXT sfrela2 PsN: MIKEB
30 

cerned. What is more, the existing bilateral extradition treaties had been negotiated 

individually with each Member State and, naturally, were not identical; some contained variations that were more progressive than others. Therefore, another negotiating objective for the United States was to ensure that the process of negotiating 

with the European Union as a whole did not result in provisions that, while reaching consensus among all EU Member States, who were being consulted regularly 

during the negotiation, might undermine stronger existing provisions between the 

United States and some Member States. 

The third principal objective was to obtain agreement with the European Union 

on provisions that would represent advances over the provisions of even our most 

modern bilateral extradition treaties with Member States. I will discuss the manner 

in which these objectives were reached in turn. 

The updating of our oldest extradition treaties was accomplished in large part by 

replacing out-of-date provisions with more modern formulations contained in the 

U.S.–EU Agreement. In particular, the oldest treaties define extraditable offenses 

by reference to a list of crimes enumerated in the treaty itself. Such an approach 

limits extradition for newly emerging forms of criminality that the United States 

has a strong interest in pursuing, such as antitrust offenses, cybercrime, and environmental offenses. Through application of the Agreement and the subsequently 

concluded implementation instruments that directly amend the bilateral treaties, 

these old provisions are replaced by modern ‘‘dual criminality’’ provisions. This 

means that the obligation to extradite applies to all offenses that are punishable in 

both countries by a maximum term of imprisonment of more than 1 year; which is 

a significant improvement since extradition will be possible in future with respect 

to the broadest possible range of serious offenses, without the need to repeatedly 

update treaties as new forms of criminality are recognized. The dual criminality provision also contemplates extradition for extraterritorial offenses. For the United 

States, extraterritorial jurisdiction is important in two areas of particular concern: 

Drug trafficking and terrorism. 

The Extradition Agreement also incorporates a variety of procedural improvements that update not only the oldest extradition treaties, but also a number of 

more recent treaties that do not already contain such provisions. For example, the 

Agreement contains a ‘‘temporary surrender’’ provision, which allows a person found 

extraditable, but already in custody abroad on another charge, to be temporarily 

surrendered for purposes of trial. Absent temporary surrender provisions, we face 

the problem of delaying the fugitive’s surrender, sometimes for many years, while 

the fugitive serves out a sentence in another country. During this time, the case 

against the fugitive becomes stale, and the victims await vindication for the crimes 

against them. 

The Extradition Agreement also allows the fugitive to waive extradition, or otherwise agree to immediate surrender, thereby substantially speeding up the fugitive’s 

return in uncontested cases. It provides for transit of prisoners through the United 

States and EU Member States, a provision that can be of great practical importance 

where a surrendered fugitive must be transported to the United States from a country in Africa or Asia and commercial airlines only offer flights transiting Europe, 

or where the surrendered fugitive is being transported from Latin America to an 

European Union Member State through the United States. It also streamlines the 

channels for seeking ‘‘provisional arrest’’—the process by which a fugitive can be immediately detained while the documents in support of extradition are prepared, 

translated, and submitted through the diplomatic channel—and the procedures for 

supplementing an extradition request that already has been presented. 

To reach the second objective I mentioned—ensuring that the provisions of the 

U.S.–EU Agreement do not inadvertently weaken existing bilateral treaties which 

go farther than the provisions in the Extradition Agreement—U.S. negotiators carefully reviewed existing bilateral treaties with Member States and drafted the scope 

provision of article 3(1) to ensure that the substantive articles apply only in order 

to either replace outmoded provisions, add useful provisions to treaties that did not 

already have them, or be even more advantageous than the modern provisions currently in place. As to replacing outmoded provisions, for example, article 3(1)(a) provides that article 4’s ‘‘dual criminality’’ requirement replaces the provisions of antiquated ‘‘list’’ treaties; dual criminality provisions in modern U.S. extradition treaties 

with EU Member States remain unaffected. As to adding useful provisions, for instance, article 3(1)(f) adds the possibility of temporary surrender to those treaties 

that do not already permit it. 

Finally, article 3(1)’s terms provide that certain provisions that are more favorable than those found in our current treaties replace the prior formulation. For example, article 10(2) provides that where an EU Member State receives a request for 

extradition from the United States as well as a request for surrender of the same 

31 

fugitive from another EU Member State pursuant to the European Arrest Warrant, 

the EU Member State holding the fugitive shall make its determination as to which 

request should receive priority based on a consideration of all relevant factors, 

rather than giving automatic precedence to the request from the EU Member State. 

This was a very important point for the U.S., because many EU Member States do 

not extradite their nationals. Were the EU to decide that, as an internal matter, 

European Arrest Warrant requests from other Member States should receive priority over foreign extradition requests, a fugitive who is a national of another EU 

Member State could be surrendered to his country of nationality—even for less serious charges than those for which the U.S. might seek his extradition—and we would 

not be able to subsequently extradite him from the country of nationality. This provision, in combination with article 3(1)(g), makes clear that such a result would not 

be consistent with the international obligations set forth in the Agreement. 

Another provision that represents an advance over many modern treaties is article 7, which addresses transmission of documents following provisional arrest of a 

fugitive, an event that triggers a treaty deadline for receipt of the documents in support of extradition, which, if not met, will result in the fugitive’s release. The Agreement provides that once the extradition documents have been received by the Member State’s embassy in the U.S., the treaty deadline for receipt of the documents is 

considered satisfied. This is the same standard that the United States already applies when receiving extradition documents from other countries, and we will now 

benefit from the same treatment when we make extradition requests. Pursuant to 

article 3(1)(d), this provision is added to all U.S. extradition treaties with EU Member States. 

Last, articles 3(1)(b) and 5(2) of the Agreement greatly simplify the authentication 

requirements for extradition documents to enable them to be admitted in evidence 

at extradition hearings. Over the years, the authentication requirements of extradition treaties, requiring extradition documents to be certified at embassies to permit them to be admitted in evidence in extradition hearings, had become increasingly time consuming to satisfy, to the point that doing so entailed some risk that 

the fugitive might be released or flee during the time it took to complete these requirements. The new U.S.–EU provision specifies that documents bearing the seal 

or certificate of the justice or foreign ministry of the State seeking extradition are 

admissible in extradition proceedings, thereby significantly streamlining the process, yet retaining sufficient assurance of the reliability of the documentation 

received. 

Of course, in the case of Bulgaria, Estonia, Latvia, Malta, and Romania with 

whom we have negotiated completely new bilateral extradition treaties, the provisions of the U.S.–EU Extradition Agreement are incorporated. All five of these complete treaties also provide for the extradition of nationals, a U.S. negotiating 

priority. 

THE U.S.–EU MUTUAL LEGAL ASSISTANCE AGREEMENT AND ITS BILATERAL

IMPLEMENTING INSTRUMENTS

With respect to mutual legal assistance, the situation at the outset of negotiations 

was somewhat different from that of extradition. We have a Mutual Legal Assistance Treaty (MLAT) either signed or already in force with all but seven EU Member 

States (the seven being Bulgaria, Denmark, Finland, Malta, Portugal, the Slovak 

Republic, and Slovenia). Where we have not concluded an MLAT, cooperation is 

being provided pursuant to domestic mutual legal assistance statutes. The 20 

MLATs signed or already in force are modern instruments, with the oldest being 

our 1981 treaty with the Netherlands. Thus, in the mutual legal assistance area, 

the principal objective was not to update out-of-date treaties, but rather to supplement our MLATs with new forms of cooperation not expressly provided for to date, 

and, in some cases, to provide more flexible and beneficial modalities in carrying 

out cooperation. 

Accordingly, the U.S.–EU Agreement contains three new types of provisions not 

previously set forth in U.S. MLATs, meaning that, while these forms of assistance 

might be possible as long as the domestic law of the U.S. and the EU Member State 

do not prohibit the assistance, there was previously no specific obligation to make 

such assistance available. 

The first of these provisions is the identification of bank information pursuant to 

article 4. While our existing MLATs already provide for the production of bank 

records needed in money laundering, terrorism financing and many other kinds of 

investigations, as well as for the identification, freezing, and forfeiture of proceeds 

of crime laundered through banks, MLATs do not currently provide a procedure for 

locating previously unidentified bank accounts, on the basis of, for example, the 

32 

name and date of birth of the account holder. Authority to identify such banking 

information for terrorism and money laundering investigations was established for 

the United States in the USA PATRIOT Act of 2001, and for the European Union 

in its 2000 MLAT among EU Member States. The U.S. and EU both having established this power, we were able to formulate a provision that will facilitate the identification of such information in requests for cooperation made between us. Experience has shown that terrorists and money launderers often use U.S. and European 

banks for their purposes. Article 4, therefore, provides a powerful law enforcement 

tool that will greatly aid us in identifying where terrorists and money launderers 

are secreting their funds, following which we can take appropriate action using existing international cooperation treaties and laws. While the assistance the U.S. provides to EU Member States will—in accordance with the USA PATRIOT Act’s 

limited grant of authority—be restricted to cases involving terrorism and money 

laundering activities, a number of EU Member States agreed to make this form of 

cooperation available to the U.S. with respect to an even broader range of criminal 

activities. 

Second, article 5 of the Agreement authorizes the establishment of joint investigative teams for purposes of coordinating closely in the ever increasing number of 

international terrorism and organized crime investigations that require simultaneous action in more than one country. While U.S. investigative agencies have long 

worked cooperatively with their foreign counterparts in investigations having international aspects, the extent of joint activity has at times been limited absent this 

kind of provision. Once the Agreement enters into force, we will have a framework 

that will enable a fuller integration of investigative activities with our European 

partners where we deem it important to do so. 

Finally, article 6 facilitates the use of modern video-conferencing technology in 

criminal investigations and proceedings, authorizing its use for taking testimony or 

other investigative uses. Already in use regularly in domestic U.S. criminal cases 

for some pre and post-trial hearings, to take witness statements, and for other investigative actions, video-conferencing technology is used less frequently at the 

international level, where many countries have more limited experience with it. Its 

increased use will benefit the United States, by permitting investigative statements 

to be taken abroad, with investigators and prosecutors, or even incarcerated defendants in the U.S., being able to participate more meaningfully via use of video-conferencing technology if participation in person is not feasible. In this area as well, in 

the past, the United States has facilitated the taking of testimony via video link 

from witnesses in the United States for use in foreign criminal proceedings. However, absent a specific provision of this type, some EU Member States would not 

be able to authorize a video feed to the United States during witness questioning. 

This provision will therefore provide greater flexibility in international criminal 

cases. 

I also mentioned that a number of provisions of the U.S.–EU Agreement provide 

more favorable modalities to be applied in carrying out cooperation than were previously available under some of our MLATs. I would like to mention the two 

principal articles in this regard, pertaining to administrative authorities and use 

limitations. 

First, pursuant to article 8 of the Agreement, the U.S. and EU Member States 

must provide assistance to regulatory agencies with statutory authority to conduct 

investigations with a view to referral for purposes of prosecution. To an increasing 

extent, Federal agencies such as the SEC, the Commodity Futures Trading Commission, and the FTC are conducting the initial investigation in serious fraud cases. 

While some prior MLATs permit agencies such as these to receive assistance, some 

foreign law enforcement partners have declined to entertain requests which do not 

originate from criminal courts, prosecutors or criminal investigative agencies. As a 

result of this provision, U.S. regulatory agencies engaged in investigations that 

could result in referral to the Department of Justice for criminal prosecution will 

be entitled to cooperation from all EU Member States and, likewise, will be able to 

use the information obtained in their regulatory enforcement proceedings even if the 

case does not ultimately result in criminal referral. Of course, to the extent EU 

Member States have administrative components engaged in analogous investigations they will receive reciprocal cooperation. 

Second, article 9 of the MLAT allows the information and evidence provided in 

response to a mutual legal assistance request to be used, at a minimum, for any 

criminal investigation or proceeding, for the purpose of preventing immediate and 

serious threats to public security, and for use in the regulatory proceedings I just 

described. This formulation is an advance over some older use limitation formulations, which often set out a cumbersome procedure by which use was initially limited to the purposes set forth in the request, and permission for any other subseVerDate Aug 31 2005 07:47 Sep 12, 2008 Jkt 000000 PO 00000 Frm 00032 Fmt 6601 Sfmt 6621 H:\DOCS\EXEC~1.REP\EX110-12.TXT sfrela2 PsN: MIKEB
33 

quent use had to be sought and granted. The new formulation recognizes that in 

cases involving immediate threats to public security, there is not sufficient time to 

ask permission for a different use, and there is no sound reason to deny permission 

where the evidence and information provided is pertinent to other criminal conduct 

not known at the time the MLAT request was drafted. 

MUTUAL LEGAL ASSISTANCE TREATY WITH MALAYSIA

In addition to the treaties with the EU, the Department of Justice urges the committee to give favorable consideration to the Mutual Legal Assistance Treaty with 

Malaysia. Under Malaysian law, in the absence of this treaty, there is no obligation 

to provide assistance to the United States in investigations prior to the initiation 

of court proceedings. With the entry into force of the MLAT, there will be a mutual 

obligation to provide assistance similar to what is found in other U.S. MLATs. 

CONCLUSION

In conclusion, Mr. Chairman, we appreciate the committee’s support in our efforts 

to strengthen the framework of treaties that assist us in combating international 

crime. For the Department of Justice, modern extradition and mutual assistance 

treaties are particularly critical law enforcement tools. Moreover, EU Member 

States are among our closest law enforcement partners, and we are seeing a continual increase in the number and complexity of mutual legal assistance requests 

flowing between us. To the extent that we can update our existing cooperation 

agreements and arrangements in a way that enables cooperation to be more efficient 

and effective, we are doing ourselves, and each other, a great service. Accordingly, 

we join the State Department in urging the prompt and favorable consideration of 

these law enforcement treaties. 

Senator CARDIN. Well, again, let me thank both of you for your 

testimony. 

Ms. Biniaz, you indicated that, I think, 22 of the 27 European 

countries have taken steps to implement these agreements. Is there 

a problem in the other five states? Are there any anticipated issues 

that we should be aware of—of controversy surrounding the approvals among the 27 European countries? 

Ms. BINIAZ. I do not think we anticipate any problems. I can give 

a quick rundown of the countries and where things stand. 

The first one would be Belgium. Belgium required implementing 

legislation in order to ratify this package, and as of mid-February, 

it was being reviewed by the Conseil d’Etat prior to being sent to 

Parliament. The prediction by the EU Presidency is that the legislation will pass by June, and Belgium would then be in a position 

to ratify the package. 

The next country is Cyprus. The ratification package or instruments are with the Parliament’s legal affairs committee. There was 

a second reading of the bill a couple of weeks ago, and we anticipate further action in the near future. In fact, it may have happened over the weekend. We need to check that. 

Greece is the next country. The Justice Ministry has begun drafting the implementing legislation that is necessary to be submitted 

to Parliament after a lengthy review by parliamentary experts. On 

that one, we do not have any sort of indication of timing, but do 

not anticipate any particular problem. 

The fourth country is Italy. As you know, a new government was 

formed in April, so the ratification process is not expected to be imminent but it is on track. 

Finally, the Netherlands. The package is scheduled for plenary 

debate before the lower House of Parliament during the week of 

May 26. There are some smaller opposition parties which will raise 

questions at that time, but those questions are not expected to be 

34 

about the package itself. They are expected to be raising concerns 

about aspects of U.S. foreign policy related to the war on terror, 

and this is just an opportunity to raise those questions. But they 

do not relate to the package of treaties before the Parliament. 

In sum, we do not expect a problem with any of the five remaining countries. 

Thank you. 

Senator CARDIN. And with the new government in Italy, have 

you gotten any indication of any concerns about perhaps reopening 

this agreement? 

Ms. BINIAZ. I am told we have no indication of any problems. If 

we do, we will get back to you. 

Senator CARDIN. So you anticipate that these agreements will be 

approved in all the European countries. 

Now, what is the status of Malaysian support for the MLAT? 

Ms. BINIAZ. They are already in a position to exchange instruments of ratification. So my understanding is that they are just 

waiting for us. 

Senator CARDIN. Both of you mentioned the extradition of nationals, and I know it applies in Estonia, Romania, and Latvia. Is there 

a concern that American nationals may be subject to this extradition which may not be in what the United States would otherwise 

want to see happen to American nationals? 

Ms. BINIAZ. I can give an answer and it can be elaborated by 

Justice. 

We do not generally conclude extradition treaties unless we have 

fully examined the country’s legal system and ensured that human 

rights issues, including due process issues, are up to our standards, 

and that we would be comfortable sending U.S. nationals to those 

countries. 

In an extreme case, it is always at the discretion of the Secretary 

of State whether to extradite persons from the United States. So 

I think we have no reason to be concerned. 

Senator CARDIN. So you are saying that even with the countries 

that we do have these agreements with, there is no 100 percent 

guarantee that those countries would extradite their nationals to 

the United States. Is that also true? 

Ms. BINIAZ. Well, it depends on the terms of the given extradition treaty. 

Senator CARDIN. In regards to Romania or Latvia or Estonia? 

Ms. BINIAZ. Yes. There is an obligation in those new treaties to 

extradite regardless of nationality. 

Senator CARDIN. Would that also not be true then with the 

United States? You indicated the Secretary could prevent the extradition of an American to Latvia. 

Ms. BINIAZ. I was giving an example of an extreme case where 

there happened to be an issue, but my general point was that we 

would not enter into an extradition treaty unless we were comfortable with sending U.S. nationals there, and the other country, 

obviously, has to be comfortable sending its nationals to the United 

States because those are the terms of the treaty. 

Senator CARDIN. So the bottom line is that an American national 

would be subject to extradition. 

35 

Ms. BINIAZ. Yes; which is the way it is generally under our extradition treaties. 

Senator CARDIN. And you feel comfortable with the systems 

today in Romania and Latvia and Estonia that Americans would be 

protected against the concerns we have in extradition. 

Ms. BINIAZ. Yes. 

Senator CARDIN. Thank you. 

Mr. Swartz, you mentioned joint investigations, which I find intriguing. We will be taking up on Thursday in the Judiciary Committee giving the Justice Department additional tools in dealing 

with exploiting of children, which is legislation that has strong 

bipartisan support. I looked at offering amendments to give the 

Justice Department more authority to deal with other countries because a lot of the exploitation issues are international. Under these 

agreements, would it be easier for you to work joint investigations 

on exploitation issues with the European countries? 

Mr. SWARTZ. Mr. Chairman, we believe that it would be easier. 

The United States has long favored the creation, on an ad hoc 

basis, of joint investigative teams. The great advantage of having 

this provision in the framework treaty is that it authorizes EU 

Member States, some of whom have felt that they needed such authorization in terms of having it on a treaty basis, to go forward 

as well. But we believe that our work has always benefited by the 

possibility of working jointly and engaging in the informal sharing 

of information that can then be followed up with the formal request 

through the mutual legal assistance process. So we look forward to 

any opportunity to engage in joint work with our colleagues on 

cases that are of joint importance. 

Senator CARDIN. And we do have international commitments in 

regards to trafficking which, I take it, the Justice Department is 

working in cooperation with other countries. The Internet issues involve more complicated issues because the legal systems are different as to the protection of the Internet. Actually there is probably more protection in the United States than in most of the European countries. I am just trying to get a grip as to whether these 

agreements will have any impact on trying to deal with those international forces that are preying on our children. 

Mr. SWARTZ. Mr. Chairman, we expect that it will. We have 

worked quite closely on child exploitation cases with European 

partners already, and as the chairman is aware, we have engaged 

in joint arrests, coordinated takedowns of organizations involving 

child exploitation. We expect that this particular agreement, by 

making it clear that such joint investigative teams are not only 

permissible on an ad hoc basis but to be encouraged and are now 

incorporated in the treaty framework, will make countries that 

might have otherwise found it more difficult to cooperate or to form 

such teams willing to do so. But we are fully committed as a 

Department to the pursuit of such cases and to continue our work 

singly and jointly with other countries to try and deal with the 

very serious problem of child exploitation. 

Senator CARDIN. Thank you. 

I want to get a better understanding on the transport through 

one of these states when the surrender occurred outside. What I 

am thinking about is circumstances where perhaps we have a perVerDate Aug 31 2005 07:47 Sep 12, 2008 Jkt 000000 PO 00000 Frm 00035 Fmt 6601 Sfmt 6602 H:\DOCS\EXEC~1.REP\EX110-12.TXT sfrela2 PsN: MIKEB
36 

son who has surrendered in the Middle East and we are trying to 

bring the person back to the United States and we have to travel 

through several European countries’ airspace that are subject to 

these agreements. 

Can you just explain to me whether we are protected? Do we 

preauthorization in order to do that under these agreements, or is 

there still a process it needs to go through in order to transport 

someone who has surrendered in the Middle East to the United 

States to travel through air to our country? 

Mr. SWARTZ. Mr. Chairman, Article 12 of the extradition agreement between the United States and the European Union covers 

the question of transit and establishes both the principle of transit 

but also a procedure to be followed to ensure that transit is permissible. In particular, Article 12.2 states that a request for transit 

shall be made through the diplomatic channel or directly through 

the Justice Ministry of the Member State, and Interpol can also be 

used to facilitate such a request. And the request itself makes clear 

that it is identifying not only the person being transited but the description of the facts of the case, and that essentially that he or she 

is detained in custody during the period of transit. So, yes; there 

is a procedure, and there is also a procedure in 12.3 when there 

is an unscheduled landing that takes place. 

Senator CARDIN. I understand notification, but would these 

agreements provide preauthorization so that we have their permission to do it? I understand we may have to follow certain guidelines 

in order to achieve and notify what we are doing and we may have 

an issue of landing in their country. But is there an implied authorization if we have to transport over their airspace? 

Mr. SWARTZ. Only in the cases in which an individual is being 

transited and lands in that country. The unauthorized landings— 

we have a separate procedure for that. 

Senator CARDIN. So if they travel over the airspace, you do have 

preauthorization? No; you do not. Yes, no? 

Mr. SWARTZ. For traveling through the airspace, you do not need 

preauthorization. 

Senator CARDIN. You do not. Thank you for that. 

Let me talk a little bit about the bank information, which is new. 

Certainly I think we all understand how important information is 

in investigations concerning bank accounts. But as you know, there 

is a concern in Congress on privacy, and I just would like to know 

a little bit more about how you envision this provision being implemented, particularly respecting the legitimate privacy rights of 

Americans to know that their bank records are not being just 

shared inappropriately. Whoever feels like answering that. 

Mr. SWARTZ. I guess I feel like answering that. 

Mr. Chairman, I am happy to say that the concerns with regard 

to privacy were certainly taken into account in the negotiation of 

this provision on both the United States and the European Union 

side. As you are aware, the EU is concerned about data protection. 

We are as well. And there are several aspects of the bank identification provision of the mutual legal assistance treaty that help 

cure privacy. 

In the first place, the request will go to our investigative agencies, if they are coming from abroad, either the FBI attache ́ or DEA 

37 

or ICE, as appropriate. And there has to be sufficient information 

provided to allow basically a reasonable conclusion that there is a 

crime involved, that the information being sought exists in a bank, 

and that there is a relationship between the crime and the information being sought. That is a determination that our law enforcement agencies will make before submitting this to FINCEN, the 

Treasury Department’s Financial Crimes Enforcement Network. 

And a further protection is provided by the fact that all that goes 

back through these channels is an indication that there is an account or other information, not the actual information itself. That 

information then has to be obtained through mutual legal assistance with all of the protections and assurance that the central authority, in this case, the Department of Justice, will review any 

such request for mutual legal assistance. 

Senator CARDIN. This is a sensitive area, as I am sure you are 

aware. Once again, I think it is extremely important that information that is needed in the investigation, legitimately entitled to if 

it were in the United States, that that cooperation be provided to 

the countries in which we have entered into these agreements. But 

I am also concerned that we have in place the adequate oversight 

to make sure that the type of determinations that you just quickly 

went through are being done so that Americans have the protection 

for privacy that they are entitled to. It is one thing when the initiation comes from American sources. We have jurisdiction over 

those entities and can take action that there is abuse. The problem 

is the information made available from foreign sources. We do not 

have the same degree of oversight—the same degree of accountability and jurisdiction. 

So I think it is critically important that the procedures in place 

in this country are checking and making sure that the information 

made available is accurate and that there is some degree of ability 

to hold the other country accountable in the event that information 

proves to have been provided that was inaccurate. 

Mr. SWARTZ. Mr. Chairman, we take that very seriously, and we 

will certainly, in terms of the review of this procedure, ensure that 

that is the case. As I have noted, we really have checks built into 

it at three levels: First, when our law enforcement attache ́s receive 

the request; second, when it goes to the Financial Crimes Enforcement Network at Treasury; and then finally, through our central 

authority at the Department of Justice when the request is followed up with a mutual legal assistance request. 

But that said, we recognize the importance of ensuring that this 

process is used for the purposes for which it is intended, and in the 

United States case, that will be for terrorism and money laundering offenses. And we will certainly review the process as it goes 

forward. In fact, Article 4 expects there will be a review, and if 

there is a burden or other issues, we expect that that would be a 

subject of further consultation. 

Senator CARDIN. And I noticed it was restricted to those two 

areas of money laundering and terrorism. Was there discussion of 

using it in a broader context, or is there anticipation that that may 

follow, that there may be a broader use of this power? 

Mr. SWARTZ. The bilateral instruments make clear that it is possible, should the United States expand its legislation in this regard, 

38 

that there might be a reciprocal expansion with regard to requests 

from other countries. And several other countries—EU Member 

States—have already made clear that it can be used for their purposes for offenses beyond money laundering and terrorism. 

Our use of money laundering and terrorism was based on the existing legislation under the PATRIOT Act, under section 314 in 

particular, which focuses on exactly this kind of procedure for 

money laundering and terrorism within the United States. So for 

the present, we believe that that addresses, particularly given the 

extensive predicate offenses for money laundering in the United 

States, the range of offenses that gives us a chance to see how this 

procedure works, helps focus it in the way that you suggest, Mr. 

Chairman. And then if Congress determines to expand this approach, we can seek similar expansion from our European partners. 

Senator CARDIN. I think that is reasonable. 

Let me just make a strong suggestion, and that is that the appropriate committees in Congress are kept well informed on the use 

of this particular authority within these agreements so that there 

are no surprises as to how it is being utilized, the volume of requests that are being made, how they are being screened, how you 

are following up to make sure that it was appropriate. I think if 

you do that, you can avoid a future problem, particularly when you 

come for perhaps expansion of the power, which again I think is 

a reasonable request, but there is going to be a desire to see how 

it has been applied. 

So I would urge you, rather than wait for congressional hearings 

or for something perhaps that comes out in the newspaper that 

causes a reaction by Congress, that you work with Congress on 

these powers because I think there is a genuine understanding of 

the need to get these records, and we just want to make sure it is 

done in the appropriate way and that we just do not give carte 

blanche to other countries that may have different tolerance than 

we do for protecting the right of privacy. 

Mr. SWARTZ. Mr. Chairman, we will be glad to work with Congress in that regard. 

Senator CARDIN. Thank you. 

Now that we have finished banking records, let me talk about 

capital punishment, another subject, of course, that has a little bit 

of controversy surrounding it. By way of background, I serve as the 

Senate chair of the Helsinki Commission and am well aware of the 

European concerns about capital punishment in the United States. 

As I understand these agreements, extradition can be conditioned 

upon certain assurances given on capital punishment not being applied in a particular case. I have a couple questions here. 

The first is, Can a country that we have an agreement with use 

that provision to deny the extradition of someone to the United 

States even though the United States has indicated it would not 

seek capital punishment? 

Mr. SWARTZ. Mr. Chairman, I think it is fair to say that under 

any extradition agreement in which such provisions appear, including the current ones under consideration by the committee, the requested state can decide not to grant extradition and could do so 

notwithstanding the conditions being given by the United States 

with regard to the death penalty. 

39 

Were that to happen, however—that is, were the United States 

to have indicated that the conditions under Article 13 of the U.S.– 

EU Extradition Treaty would be met by the United States—we 

would certainly strongly take issue with the country’s refusal to extradite the individual precisely because, as the chairman is well 

aware, the reason that we have such a provision is to ensure that 

a fugitive cannot escape punishment entirely by fleeing to a 

nondeath penalty jurisdiction. We have never in this country failed 

to meet our obligations with regard to assurances or conditions 

that have been set with regard to the death penalty, and we would 

certainly urge that point with regard to any country were it to decide not to go forward, notwithstanding our agreement to meet the 

conditions. 

Senator CARDIN. So what you are saying is that under the exception for capital punishment, there would be a requirement to extradite someone where assurances have been given, but that there is 

enough discretion remaining that it could be a factor in the denial 

of a country extraditing to the United States, although we would 

raise serious concerns about that and use our best efforts to make 

sure that does not happen. Is that a fair assessment? 

Mr. SWARTZ. Yes, Mr. Chairman. We would certainly make certain that our best efforts were extended to make clear to the country that we had agreed to the conditions set forth in Article 13 and 

therefore there was no basis for refusing extradition. But the request of State is always the final arbiter with regard to decisions 

to extradite. 

Senator CARDIN. So now let me put it on the other side. The 

country has decided to extradite the individual to the United 

States. We now have custody of the individual and we are ready 

to pursue the criminal matters with the restrictions that we placed 

about no capital punishment. We have codefendants that are in the 

United States for which the prosecutor would like to see the capital 

punishment considered. 

What type of dilemma do we have on constitutional rights for 

equal justice and just the fairness of our system where we have codefendants, one of which could be subject to capital punishment, 

the other not, for committing the same crimes? 

Mr. SWARTZ. Mr. Chairman, I would be glad to take that question more fully for the record, but I can state that, of course, it does 

present a difference with regard to those two individuals. As the 

chairman is aware, oftentimes a variety of factors can lead to different codefendants facing different penalties even for the same 

crime. Nonetheless, it is the case, as you say, that an individual 

who has been successful in fleeing to a nondeath penalty jurisdiction can take advantage of that fact to when he comes back to the 

United States subject to conditions that the death penalty will not 

be imposed. 

Senator CARDIN. I will take that answer, but if you have additional information you would like to make available to the committee, we would appreciate that. 

It is a serious problem for the United States. Capital punishment—the use in the United States is not consistent with our allies 

in Europe. They have a different standard for the use of capital 

punishment. And it presents real problems for law enforcement. 

40 

And I do think there—I do not know if it is constitutional. It might 

be a problem that we have when we have different restrictions on 

different criminals that are unrelated to the crime that they committed and the impact it has certainly on the fairness of our system. I have concerns as to how we deal with it under our current 

capital punishment laws and would appreciate your adding to that 

weight of discussion perhaps by expanding on your answer going 

forward. 

Let me bring up another area that I would like to have a little 

bit of understanding as to how you expect to use this authority, 

and that is dealing with administrative authorities. Perhaps you 

could tell us exactly what agencies you think are involved and 

what type of requests you anticipate might be made. As I read the 

agreements, there is a provision where you can tailor the response 

based upon the burden of the agency. I guess that is the best way 

of saying it. There is a safety valve here that you could argue pragmatic reasons for not fully complying with the request. 

My question is, Was that put in at the request of the United 

States or our European friends? Is there a concern that there will 

be more requests coming to us or more requests coming to them? 

Have you heard from the regulatory agencies as to their concerns? 

Can you just fill us in a little bit more as to that provision and how 

it will be implemented? 

Mr. SWARTZ. Mr. Chairman, with regard to the investigative 

agencies, the administrative agencies would have the power to 

refer matters criminally. We would expect this likely to be used on 

the U.S. side by entities such as the SEC, the Commodities Futures 

Trading Commission, and perhaps the FTC as three examples. 

And we did consult with our administrative agencies in this regard. We think this is an important advance certainly from the 

United States perspective since our regulatory agencies do have 

that power to engage in criminal referrals and do work closely with 

us in that context when criminal referrals are made. So we think 

this is a significant step forward from the point of view of the 

United States. 

In terms of, as you say, of the safety valve, because this is a new 

provision, we, and perhaps the European Union as well, felt that 

it was wise to have the possibility of determining in the future if 

this becomes a burden on either side of the Atlantic simply because 

this is basically a new approach we are taking in this regard, but 

we expect the advantage to the United States to be significant. We 

trust that the burdens will not be that burdensome, but should 

they be so, we would have the ability to reconsider how this should 

go forward in the future. 

Senator CARDIN. So the provision that says ‘‘shall take measures 

to avoid the imposition of extraordinary burdens on requests to 

states through application of this article’’ was suggested by the 

United States? 

Mr. SWARTZ. I am informed, Mr. Chairman, that it was a U.S. 

suggestion in this regard. 

Senator CARDIN. Well, it could work both ways. If we are more 

aggressive in these areas, then it could be used by our European 

friends to deny us some information. Of course, one of the areas 

that we have been actively involved with the agencies that you 

41 

refer to in regards to criminal matters—I might suggest that you 

keep us closely informed as to how this new authority is working 

to see whether it has been useful in going after the types of criminal activities that we are concerned about and whether this provision is, in fact, being used to filter the type of information we 

otherwise would be receiving and, on the reverse side, how many 

requests we are getting from other countries to give information. 

So I think particularly in regards to the regulatory agencies, as 

well as the financial information, they are sensitive matters that 

I would appreciate you keeping us all informed. 

Mr. SWARTZ. Mr. Chairman, we will certainly do that. 

Senator CARDIN. Thank you. 

If you will bear with me for just one moment. 

[Pause.] 

Senator CARDIN. There may be some additional questions for the 

record. We would ask if they are made, that you would try to supplement that within the next few days if possible because I know 

we are trying to expedite the Senate considerations of these treaties and agreements so that we can get the benefits as quickly as 

possible. 

With that, I thank again both of you for being here, and the committee will stand adjourned. 

Thank you very much. 

[Whereupon, at 11:20 a.m., the hearing was adjourned.] 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

RESPONSES OF DEPUTY LEGAL ADVISER SUSAN BINIAZ TO QUESTIONS SUBMITTED FOR

THE RECORD BY SENATOR BIDEN

Question. Please explain whether a breach by an EU Member State of a provision 

of the U.S.–EU extradition agreement that has been incorporated into a bilateral 

instrument would be considered a breach by both the European Union and the 

Member State, or just the Member State. 

Answer. We would ordinarily expect that a breach by an EU Member State of a 

provision of a bilateral instrument derived from the U.S.–EU Extradition Agreement 

would be considered a breach only by that Member State. Article 3 of the U.S.–EU 

Extradition Agreement requires the EU to ‘‘ensure that provisions of this Agreement 

are applied in relation to bilateral extradition treaties’’ between the individual Member States and the United States. The EU’s responsibility therefore relates to ensuring that specified provisions are reflected in individual bilateral instruments, while 

the Member States remain responsible for carrying out the content of such provisions under their respective bilateral agreements with the United States. Thus, 

even where a Member State breach related to a provision that derived from the 

U.S.–EU Agreement, it would be the Member State that would ordinarily be in 

breach, rather than the EU. Having said that, we do not rule out a situation in 

which a breach might be of such a character or magnitude that it might implicate 

the EU’s own responsibility for ensuring the application of certain provisions with 

respect to an individual bilateral instrument. 

Question. What would be, if any, the surviving treaty-based extradition relationship between the United States and an EU Member State if that EU Member State 

were to terminate its bilateral extradition treaty with the United States, but the 

U.S.–EU Extradition Agreement remained in force? What recourse would the United 

States have under such circumstances? 

Answer. Under those circumstances, there would no longer be a treaty-based extradition relationship between that Member State and the United States. The key 

provisions of the Agreement with the European Union apply, as Article 3 stipulates, 

‘‘in relation to bilateral extradition treaties’’ between the United States and the individual Member States and do not constitute a free-standing extradition treaty relationship. In any event, the Agreement does not contain such fundamental extraVerDate Aug 31 2005 07:47 Sep 12, 2008 Jkt 000000 PO 00000 Frm 00041 Fmt 6601 Sfmt 6621 H:\DOCS\EXEC~1.REP\EX110-12.TXT sfrela2 PsN: MIKEB
42 

dition treaty provisions as the obligation to extradite. Thus, if an EU Member State 

were to terminate its bilateral extradition treaty with the United States, the provisions in the U.S.–EU Agreement contained in a bilateral instrument would not suffice to constitute a free-standing legal basis for bilateral extradition relations. 

At the same time, the institutional relationship with the EU created by the U.S.– 

EU Agreement would remain. In addition to whatever bilateral diplomatic discussions the United States were to undertake with the terminating Member State, it 

could also utilize the treaty relationship with the European Union, as well as take 

steps outside the Agreement framework, to express its views and seek, as appropriate, EU intervention and assistance in the matter. 

RESPONSES OF DEPUTY ASSISTANT ATTORNEY GENERAL BRUCE C. SWARTZ TO

QUESTIONS SUBMITTED BY SENATOR BIDEN

Question 1. How would Article 4 of the U.S.–EU Mutual Legal Assistance Agreement operate in practice? Please work through an example of when you would hope 

to rely on this provision and explain exactly what information you would give to the 

relevant EU Member State in your request, what information you would receive in 

exchange, and how you would use that information in prosecuting an individual for 

a specific crime in a U.S. court. 

Answer. U.S. agents conducting a criminal investigation in the United States may 

learn that subjects of the investigation are using banks or other financial institutions to further their illegal activities, but may not know which foreign banks or 

institutions and which accounts are being used. To further the investigation, the 

agents would prepare a request directed to an appropriate EU Member State, transmitted through one of the designated U.S. law enforcement agencies (FBI, DEA, or 

ICE), requesting information as to whether the subject of the investigation maintains accounts at, or has conducted financial transactions unrelated to accounts 

through, banks or financial institutions in the EU Member State. 

The request for information would specify the identity of the subject and the nature of the investigation. If the request is directed to an EU Member State that has 

limited the scope of its assistance under this provision to terrorism and money laundering offenses (to correspond with the limits of U.S. assistance in reciprocal cases), 

then the U.S. request must relate to an investigation into terrorism or money laundering activities. If the request is directed to an EU Member State that has defined 

its obligations to assist more broadly, then the U.S. investigation may be related to 

a broader scope of criminal conduct, as permitted by the agreement with that particular EU Member State. The request would also provide factual information concerning the investigation sufficient to lead the competent authority in the EU Member State to reasonably suspect that the subject of the investigation has engaged 

in the criminal activity under investigation, that the information sought relates to 

the matter under investigation and that the banks or financial institutions in the 

requested state may have the information sought. To assist the EU Member State 

to narrow the breadth of the inquiry, the U.S. request would provide any specific 

information available to investigators that identifies the relevant banks or financial 

institutions or the transactions at issue. 

If the EU Member State concludes that it is appropriate and possible to comply 

with the request, it would undertake an inquiry through its financial sector to retrieve the information sought and respond to the request by either confirming that 

the suspected transactions took place or that the suspected accounts exist. They 

may also provide information identifying the specific banks where the accounts are 

held, the name of account holders and the corresponding account numbers. No 

records of accounts or transactions would be provided pursuant to this process. Because the response received would only be information concerning the existence of 

relevant accounts or transactions and not records themselves, if the U.S. agents and 

prosecutors conducting the investigation conclude that the information is relevant 

and probative, they would prepare a formal mutual legal assistance request seeking 

the production of certified copies of the relevant banking or financial records, so that 

the records may be used at trial. This request for record production would be submitted through the usual mutual legal assistance channels in place between the 

United States and the particular EU Member State (i.e., through the applicable Mutual Legal Assistance Treaty (MLAT) or by letter rogatory, if no MLAT is in force). 

The MLAT or letter rogatory request would be reviewed by the competent authority 

in the requested state to determine whether the request meets the legal standards 

for the production of the records sought. It is the certified copies of the records received through the MLAT process, rather than the information received through 

43 

Article 4 of the U.S.–EU Mutual Legal Assistance Agreement, that will be used to 

prosecute a defendant. 

Question 2. You addressed in part at the hearing how the Department of Justice 

would treat requests made by our treaty partners under Article 4 of the U.S.–EU 

Mutual Legal Assistance Agreement so as to ensure that any privacy concerns 

would be minimized for U.S. citizens. Can you expand on this point and confirm 

that you will keep the committee informed regarding the implementation of this 

provision and any problems that develop, should these treaties be approved and 

ratified? 

Answer. Requests directed to the United States by EU Member States pursuant 

to Article 4 of the U.S.–EU Mutual Legal Assistance Agreement would be handled 

in a similar fashion as discussed above in the response to question 1. Upon receipt 

of a request from an EU Member State, the receiving agency (FBI, DEA, or ICE) 

would review it for conformity with the requirements of Article 4 and, only when 

satisfied that the request provides sufficient information that there is an ongoing 

investigation into terrorism or money laundering activity that there is sufficient factual information to reasonably suspect that the subjects of the investigation engaged 

in the criminal activity and that there may be information in U.S. banks or financial 

institutions that is relevant to the investigation, would refer the request to the 

Treasury Department’s Financial Crimes Enforcement Network (FINCEN) to conduct the inquiry through the U.S. financial sector. 

As previously noted, information confirming the existence and identification of accounts or transactions in the United States would be provided pursuant to the 

mechanism established by Article 4 of the U.S.–EU Mutual Legal Assistance Agreement. However, the corresponding bank or financial records would not be available 

through this mechanism. Should the requesting state seek production of the corresponding bank or financial records for use in the foreign investigation or prosecution, the United States may produce the records upon receipt of an MLAT request 

or letter rogatory and after a U.S. Federal court orders their production, pursuant 

to the MLAT and Title 28 United States Code, section 1782. This is the same procedure used currently with respect to foreign requests for records from U.S. banking 

and financial institutions. The U.S.–EU Mutual Legal Assistance Agreement makes 

no changes to this process. Both the information provided pursuant to Article 4 and 

any records produced subsequently, through the usual mutual legal assistance channels, may be used only as authorized by Article 9 of the U.S.–EU Mutual Legal 

Assistance Agreement, addressing limitations on use to protect personal and other 

data. 

The United States and the European Union have the obligation to take measures 

to avoid extraordinary burdens as the result of application of Article 4, and in cases 

in which such burdens nonetheless may result, they must consult immediately with 

a view to facilitating the application of the provision. To comply with these obligations, the Justice Department would monitor the implementation of this provision 

and would also report any problems to this committee. 

Question 3. In the bilateral MLATs between the United States and EU Member 

States, U.S. assistance with respect to the identification of bank information is limited to terrorism and money laundering activity, consistent with the scope of section 

314(a) of the USA Patriot Act. Would it be possible for the United States to notify 

our treaty partners of additional crimes for which we would provide assistance with 

respect to the identification of bank information, without additional U.S. domestic 

legislation? 

Answer. As explained in the executive branch’s report to the Senate on the Agreement, the United States, consistent with the scope of section 314(a) of the USA 

Patriot Act, chose to limit application of this measure to terrorist and money laundering activity punishable in both the requesting and requested States. The language permitting the scope of the article to be expanded to further activity at a later 

time was intended to expand the scope of assistance in the future in a manner corresponding to any future expansion of the scope of the measure under U.S. domestic 

legislation. 

Question 4. Paragraph 3 of Article 8 of the U.S.–EU Mutual Legal Assistance 

Agreement provides that States Parties ‘‘shall take measures to avoid the imposition 

of extraordinary burdens on requested States through application of this Article.’’ 

Please describe the sorts of measures the United States intends to take, and what 

measures other parties are expected to take, when complying with this article. 

Answer. An increasing number of MLATs permit requests for assistance to be 

made on behalf of regulatory agencies investigating activity with a view to referral 

for criminal prosecution. In our experience, there has not been a precipitous rise in 

44 

the volume of requests as a result of the adoption of such provisions. Nonetheless, 

this article expands this approach to all 27 EU Member States at once, and while 

the U.S. and EU negotiators did not believe that extraordinary burdens would result 

through the application of the article, the actual effect could not be known with certainty at that time. Accordingly, we believed it would be prudent to include the 

same kind of safeguard clause that was included in the bank information article. 

Question 5. The Convention with Belgium for the Avoidance of Double Taxation 

and the Prevention of Fiscal Evasion with Respect to Taxes on Income, and accompanying Protocol (Treaty Doc. 110–3), like the new Belgium MLAT, contains provisions regarding the sharing of information held by financial institutions. 

a. Can you explain to what extent, if any, the scope of these two treaties’ information-sharing provisions overlap? 

b. Please compare and contrast these two information-sharing mechanisms. In 

what ways is the tax treaty mechanism more effective and in what ways is 

the MILAT mechanism more effective? 

c. Assuming there is some overlap in these provisions’ scope of application, in 

circumstances in which it is possible to use either treaty mechanism, can you 

explain how government officials will choose between these two mechanisms? 

Answer to 5a. The Convention with Belgium for the Avoidance of Double Taxation 

and the Prevention of Fiscal Evasion with Respect to Taxes on Income (the Double 

Taxation Treaty) is available for assistance (including the exchange of financial information) only with respect to those matters specified in that instrument (i.e., matters involving the administration of tax, including the prosecution of tax evasion). 

The MLAT between the United States and Belgium facilitates assistance—including 

obtaining records from banks and other financial institutions—in investigations and 

prosecutions of a broad range of criminal matters, including but not limited to tax 

offenses. Accordingly, to a minor extent, the Double Taxation Treaty and the United 

States-Belgium MLAT may overlap. 

With respect to the identification of previously unknown bank accounts and transactions set forth in Article 4 of the U.S.–EU Mutual Legal Assistance Agreement 

and Article 12 bis of the United States-Belgium bilateral implementing instrument, 

the potential area of overlap, if any, would be extremely minor, given that both the 

United States and Belgium limited the banking information provision applied by operation of Article 4 of the U.S.–EU Mutual Legal Assistance Agreement to information exchange with regard to terrorism and money laundering activities. 

Answer to 5b. The two information sharing mechanisms are mutually exclusive 

in all respects except with regard to the investigation and prosecution of tax matters, which could be pursued under either treaty. The Double Taxation Treaty will 

be more effective in all noncriminal tax administration matters, inasmuch as the 

MLAT would not be available in those instances. The bilateral MLAT will be the 

more effective mechanism in criminal tax matters inasmuch as assistance in such 

cases is usually sought with a view to criminal prosecution and may involve assistance beyond the competence of the tax authorities designated to execute requests 

under the Double Taxation Treaty. For example, in addition to the tax offenses, the 

criminal investigation also may involve violations of Law beyond those covered by 

the Double Taxation Treaty. 

Answer to 5c. As noted above, the Double Taxation Treaty is applicable only with 

respect to matters of tax administration and investigations into tax offenses. The 

MLAT is an assistance mechanism with a broader scope. Whether it is appropriate 

to use one mechanism or the other might depend on whether the matter involves 

possible violations of law beyond the scope of the Double Taxation Treaty. If so, it 

may prove more efficient to make one request pursuant to the MLAT that covers 

all possible criminal violations. 

Question 6. In the 109th Congress, in connection with the consideration of several 

extradition treaties, the Department of Justice stated that ‘‘[t]he 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.’’ 

a. Is it the position of the Department of Justice that in issuing a warrant for 

the provisional arrest of an individual pending an extradition request, the 

fourth amendment of the Constitution requires an independent judicial determination of probable cause prior to issuing such a warrant? 

b. In making such a probable cause determination, is the proper question 

whether there is probable cause to believe the accused committed the offense(s) at issue in the request? If not, what is the proper probable cause determination? 

45 

c. In making the decision to enter into extradition treaties that authorize provisional arrest, such as the ones now pending before the committee, does the 

executive branch examine the process by which our potential treaty partners 

issue arrest warrants? If so, is a determination made in each case as to 

whether the prospective treaty partner’s process requires an evidentiary 

showing that is equivalent to demonstrating probable cause to believe a crime 

has been committed, before issuing a warrant for an individual’s arrest? 

Answer to 6a. The U.S.–EU Extradition Agreement does not contain an article 

regulating the standard of proof an EU Member State must satisfy in order to obtain the provisional arrest of a fugitive in the United States pending transmission 

of the full extradition request. As a result, the bilateral instruments implementing 

the U.S.–EU Extradition Agreement apply the standard set forth in the extradition 

treaty currently in force with the Member State concerned. The language in these 

treaties describing the information to be submitted in support of a request for provisional arrest varies. However, irrespective of the particular language of the treaty, 

it remains the case that the fourth amendment of the Constitution does apply. 

Exactly what categories and quantum of information are sufficient to meet fourth 

amendment requirements in the context of provisional arrest pending extradition is 

not well settled, and in particular, U.S. jurisprudence has articulated no uniform 

response to the question of whether probable cause that the person committed the 

offense must be provided at the provisional arrest stage. The law, however, is well 

established in holding that a standard of probable cause must be met at the subsequent stage of the extradition hearing, where the formal extradition request and the 

certified documents in support of the request are submitted. At the formal extradition hearing, in a case where the fugitive is sought for prosecution, the U.S. court 

must be satisfied, among other things, that there is sufficient evidence to find there 

is probable cause to believe the fugitive committed the crime at issue before the 

judge may certify that the fugitive is extraditable. Hoxha v. Levi, 465 F.3d 554, 561 

(3d Cir. 2006); Sindona v. Grant, 619 F.2d 167 (2d Cir. 1980). However, if the person has been convicted at a trial at which he was present, proof of the conviction 

itself satisfies the probable cause requirement and an independent review of the evidence of criminality is not required. See, e.g,. Spatula v. United States, 925 F.2d 

615, 618 (2d Cir. 1991). 

Thus, the purpose of provisional arrest—detaining a fugitive for a limited period 

while the Requesting State amasses the documentation required to sustain a finding 

of probable cause at the extradition hearing—as well as existing case law affirming 

an abbreviated probable cause determination for extraditability where the fugitive 

has already been convicted, suggests that probable cause at the provisional arrest 

stage can be met with less than a full-blown determination of probable cause as to 

evidence of the criminality of the fugitive. That being said, however, in practice, the 

Department of Justice seeks as much information as possible to support a provisional arrest request, bearing in mind that foreign law enforcement officials are not 

expert in U.S. criminal procedure, and that information submitted in the context of 

an urgent provisional arrest is necessarily more abbreviated than in the context 

of the full extradition request submitted to support a final judicial determination 

of extraditability. 

Our approach has been to present, at a minimum, information sufficient for a 

court to find probable cause to believe that the elements for extradition will be satisfied at the extradition hearing, such elements generally being that the person has 

been charged or convicted in the foreign jurisdiction, that the person before the 

court is the person so charged or convicted, that the offense is one for which extradition is provided under the applicable treaty (which necessarily also entails a finding that the conduct at issue would be an offense under U.S. law), and in the case 

of a person sought for trial, that the information provided by the treaty partner establishes probable cause to believe the person committed the offense. Thus this information should include information to identify the fugitive, particulars about the 

foreign charge or conviction and arrest warrant, a clear description of the offenses 

for which the fugitive is sought, and a summary of the facts of the case and, to extent possible, an indication of the evidence relied upon. But ultimately it is for the 

cowl to decide whether the information submitted is sufficient to justify the issuance 

of a warrant for provisional arrest, and we will strive to obtain as much information 

as possible so that the court will be satisfied that a warrant should issue. 

Answer to 6b. See above. 

Answer to 6c. Prior to and during treaty negotiations, the executive branch examines a number of questions, including the process by which our negotiating partner 

issues arrest orders. Our experience has shown that the U.S. probable cause standard is a unique outgrowth of the fourth amendment and the body of jurisprudence 

46 

interpreting it. While some foreign legal systems come closer to considering the 

same factors than others, no foreign system adopts the same standard. Therefore, 

to ensure that there is sufficient indicia of a person’s involvement in the crimes 

alleged prior to being extradited for trial from the United States, our treaties require that the Requesting State’s extradition request include a description of the 

evidence that provides a reasonable basis to believe that he or she committed the 

offense for which extradition is sought, in addition to a copy of the arrest warrant. 

The phrase ‘‘reasonable basis’’ is commonly used in our modern treaties and is more 

easily understood by foreign prosecutors and judges, but it is meant to be the equivalent of the U.S. ‘‘probable cause’’ standard and is understood as such by our courts. 

Question 7. Several extradition treaties with EU Member States limit the number 

of days that a person who has been provisionally arrested can be detained without 

a formal extradition request having been submitted. For example, Article 11(4) of 

the extradition treaty with the Netherlands states as follows: ‘‘Provisional arrest 

shall be terminated if, within a period of 60 days after the apprehension of the person sought, the Requested State has not received the formal request for extradition 

and the supporting documents mentioned in Article 9.’’ The majority of EU Member 

State extradition treaties, however, appear to require each party to hold a person 

who has been provisionally arrested for a certain minimum period of time, but leave 

to each party’s discretion whether to hold that person longer without having yet received the formal extradition request. For example, Article 10(4) of the extradition 

treaty with Belgian states as follows: ‘‘A person who is provisionally arrested may 

be discharged from custody upon the expiration of 75 days from the date of provisional arrest pursuant to this Treaty if the executive authority of the Requested 

State has not received the formal request for extradition and the supporting documents required in Article 7.’’ 

a. What is the longest period of time the United States has held someone who 

was provisionally arrested without having received a formal extradition request from the country that requested the person’s provisional arrest? 

b. In the last 5 fiscal years (through FY 2007), how many people have been detained on provisional arrest warrants, and what has been the average length 

of time that a person has been held under provisional arrest without receipt 

by the United States of a formal extradition request? 

c. In the Department of Justice’s view, what is the maximum length of time that 

the United States can or should hold a person who has been provisionally arrested, without a formal extradition request from the country that requested 

the person’s provisional arrest? 

Answer to 7a. It is rare for extradition treaty partners to miss the treaty deadline 

for the presentation of documents in support of extradition. Because the fugitive is 

put on notice of the foreign country’s intent to seek extradition when he or she is 

provisionally arrested, it is in the foreign country’s best interest to present the supporting documentation within the treaty prescribed deadline or risk the possibility 

that the fugitive will flee once again, upon being released from custody. Because 

missed deadlines are rare, the Department of Justice does not track statistics to 

demonstrate how long a person who was provisionally arrested was held beyond the 

treaty mandated deadline absent presentation of the formal extradition documents. 

Answer to 7b. The Department of Justice does not have the statistics requested. 

Persons provisionally arrested are detained prior to receipt of the formal extradition 

request for no longer than the duration of time prescribed by the treaty. If the 

treaty specifies that a person shall be released after expiration of that time period 

without receipt of the documents, then the person would be released. If the treaty 

specifies that the person may be released after expiration of the treaty prescribed 

period if the formal extradition request is not received, then the person may petition 

the district court for release from custody. In such case, the Department of Justice 

either would oppose the petition for release if all indications were that receipt of 

the extradition documents was imminent, or not oppose the release if the available 

information suggested that the formal extradition request would not be forthcoming 

in the near future. It would be within the judge’s discretion whether to release the 

person or maintain the detention. If the person is released, the extradition treaties 

usually specify that a subsequent re-arrest may be requested if the formal extradition request arrives at a later time. 

Answer to 7c. The Department of Justice takes the position that it is appropriate 

to hold persons in accordance with the provisions of the particular treaty; and the 

maximum length of detention depends on the provisions of the particular treaty. 

Rarely does this time period exceed 60 days, although a few treaties do specify 

slightly longer periods. In such cases, the longer time period is intended to make 

47 

special accommodation for translation of potentially voluminous extradition documents into the language of the arresting country; which must be accomplished, together with certification and transmission, within the time specified by the treaty. 

Whether it is appropriate to exceed the treaty specified maximum would depend on 

whether the treaty envisions a discretionary extension of that time and the circumstances in a particular case. For example, if the formal extradition documents 

have been transmitted but unavoidably delayed and it appears that they will be presented within a short period of time (days), then a court might conclude that extension of the person’s detention for a few days is appropriate when balanced against 

the fact that re-arrest may be sought when the documents arrive and there is a significant risk that the fugitive would flee in the interim. However, it is worth restating that missed treaty deadlines are relatively rare and persons are rarely held beyond the treaty prescribed time periods. 

Question 8. The United States has an existing extradition treaty with each EU 

Member State. In the last 5 years, have there been any diplomatic or legal problems 

with regard to the implementation of any of these treaties? In other words, are the 

treaties operating as intended, or have there been significant problems in securing 

extradition of fugitives to or from the United States? 

Answer. In general, the treaties are operating as intended, in an atmosphere of 

mutual cooperation, and there have not been significant legal or diplomatic problems. We expect that the streamlined and updated provisions of the U.S.–EU Extradition Agreement will further improve the extradition relationship of the United 

States with the EU Member States. 

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