[Senate Executive Report 110-14]
[From the U.S. Government Publishing Office]
110th Congress Exec. Rept.
SENATE
2d Session 110-14
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TREATY WITH MALAYSIA ON MUTUAL
LEGAL ASSISTANCE
_______
September 11, 2008.--Ordered to be printed
_______
Mr. Dodd, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 109-22]
The Committee on Foreign Relations, to which was referred
the Treaty between the United States of America and Malaysia on
Mutual Legal Assistance in Criminal Matters, signed at Kuala
Lumpur on July 28, 2006 (Treaty Doc. 109-22), having considered
the same, reports favorably thereon with one declaration, as
indicated in the resolution 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 resolution of advice and consent.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Major Provisions.................................................3
IV. Entry Into Force.................................................4
V. Implementing Legislation.........................................5
VI. Committee Action.................................................5
VII. Committee Recommendation and Comments............................5
VIII.Resolution of Advice and Consent to Ratification.................6
I. Purpose
The Treaty between the United States of America and
Malaysia on Mutual Legal Assistance in Criminal Matters (the
``MLAT with Malaysia'' or ``Treaty'') is one of a series of
modern mutual legal assistance treaties that have been
negotiated by the United States and is designed to provide a
formal basis for mutual cooperation between the United States
and Malaysia on law enforcement matters so as to enhance the
ability of the United States to investigate and prosecute
crimes.
II. Background
In order for the United States to successfully prosecute
criminal activity that is transnational in scope, it is often
necessary to obtain evidence or testimony from a witness in
another country. While U.S. federal courts may issue subpoenas
to U.S. nationals overseas, they lack the authority to subpoena
foreign nationals found in other countries or the authority to
subpoena evidence in a foreign country. In addition,
effectuating service of a subpoena to U.S. persons abroad may
prove difficult.
In the absence of an applicable international agreement,
the customary method for obtaining evidence or testimony in
another country is via a ``letter rogatory,'' which tends to be
an unreliable and time-consuming process. The term ``letter
rogatory'' is generally used to refer to a formal communication
in writing that is sent by a court in which an action is
pending to a court in a foreign country, requesting that
certain evidence or the testimony of a person within the
latter's jurisdiction be formally obtained for use in the
requesting court's pending action. The State Department advises
that the letter-rogatory process can often take a year or more
and, unless undertaken pursuant to an international agreement,
compliance is a matter of judicial discretion. Furthermore, the
scope of foreign judicial assistance might also be limited by
domestic information-sharing laws, such as bank and business
secrecy laws, or be confined to evidence relating to pending
cases rather than preliminary, administrative, or grand jury
investigations conducted prior to the filing of formal charges.
Mutual Legal Assistance Treaties (``MLATs'') are designed to
overcome these and similar problems.
MLATs are international agreements that establish a formal,
streamlined process by which governments may gather information
and evidence in other countries for use in criminal
investigations and prosecutions. While the specific provisions
of MLATs vary, they generally obligate treaty partners to take
steps on behalf of a requesting treaty partner when certain
conditions are met. MLATs typically contain provisions
concerning the sharing of collected information between
parties, the location and identification of persons and
potential witnesses within the parties' territories, the taking
of depositions and witness testimony, and the serving of
subpoenas duces tecum on behalf of a requesting treaty
party.\1\ Such provisions provide for the easier acquisition of
evidence and testimony than via letters rogatory and do so in a
manner designed to be compatible with the admissibility
requirements of the requesting State's courts. MLATs also
typically contain provisions concerning the allocation of costs
between parties, the form and content of requests for legal
assistance, the designation of national law enforcement
agencies or officials responsible for treaty administration,
and the grounds for which a treaty party may refuse to provide
legal assistance. Increasingly, MLATs have been used as a tool
to combat terrorism.
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\1\A subpoena duces tecum is a specific form of subpoena, also
called a ``subpoena for the production of evidence.'' It is a subpoena
issued by a court ordering the parties named to appear and to produce
tangible evidence for use at a hearing or trial.
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The Malaysia MLAT is the first such treaty between the
United States and 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, and thus this Treaty would substantially
enhance the ability of the United States to investigate and
prosecute crimes for which such assistance is necessary. A
detailed paragraph-by-paragraph analysis of this treaty may be
found in the Letter of Submittal from the Secretary of State to
the President on this instrument, which is reprinted in full in
Treaty Document 109-22. What follows is a brief summary of some
key provisions.
III. Major Provisions
As with most MLATs, the MLAT with Malaysia generally
obligates the parties to assist each other in criminal
investigations, prosecutions, and related law enforcement
proceedings, as well as civil or administrative proceedings
such as forfeiture proceedings that may be related to criminal
matters. Article 1(2) provides a non-exhaustive list of
assistance to be rendered by each Party, which includes the
taking of evidence, such as testimony, documents, records and
items or things, on a requesting party's behalf by way of
judicial process; executing searches and seizures; effecting
service of judicial documents; sharing certain obtained
information or evidence with a requesting State; freezing and
forfeiting assets or property; permitting the temporary
transfer of persons in custody to the requesting party; and
other agreed-upon forms of assistance.
Article 3 sets forth an extensive list of circumstances
under which a requested State may deny legal assistance to the
requesting State. Some of the grounds listed are commonly found
in MLATs to which the United States is a party, such as the
ground in Article 3(1)(f) permitting the denial of a request
when it would prejudice the requested State's sovereignty,
security, public order, or other essential interest; and the
political offense exception in Article 3(1)(a).
Some of the grounds listed in Article 3 for denying
assistance are not commonly found in MLATs to which the United
States is a party. For example: the MLAT with Malaysia would
expressly permit the denial of assistance when there are
substantial grounds for believing that a request was made for
the purpose of investigating, prosecuting, or punishing a
person on account of the person's race, religion, sex, ethnic
origin, nationality, or political opinions;\2\ the Treaty would
permit the denial of requests relating to the investigation or
prosecution of a person for an offense in a case in which that
person has already been convicted or acquitted by a court in
the requested State for the same offense;\3\ and the Treaty
would permit the denial of assistance on the grounds that the
offense does not appear to be of ``sufficient gravity''\4\ or
relates to an item of ``insufficient importance''\5\ to an
investigation. According to the State Department, the
negotiators of the MLAT with Malaysia believe that these
grounds for refusal would rarely, if ever, be employed.\6\
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\2\See Article 3(1)(c). A similar ground for denying assistance can
be found in Article 3(1)(b) of the Treaty between the United States and
South Korea on Mutual Legal Assistance in Criminal Matters, Treaty Doc.
104-1, approved by the Senate on August 2, 1996. See also Article
3(1)(d) of the Treaty with the Bahamas on Mutual Assistance in Criminal
Matters, Treaty Doc. 100-17, approved by the Senate on October 24, 1989
(assistance may be denied by the Requested State on the grounds that
``there are substantial grounds leading the Central Authority of the
Requested State to believe that compliance would facilitate the
prosecution or punishment of the person to whom the request refers on
account of his race, religion, nationality or political opinions.'').
\3\See Article 3(1)(d). A similar ground for denying assistance can
be found in Article 10(1)(c) of the Treaty between the United States
and the Kingdom of the Netherlands on Mutual Assistance in Criminal
Matters, together with an exchange of notes, Treaty Doc. 97-16,
approved by the Senate on December 2, 1981.
\4\See Article 3(1)(h).
\5\See Article 3(1)(i).
\6\See the Secretary of State's Letter of Submittal, Treaty Doc.
109-22 at p. VIII.
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Finally, in accordance with Article 3(1)(e) a request for
assistance under the MLAT with Malaysia may be refused when it
relates to an act or omission that, if it had occurred in the
requested State, would not constitute an offense punishable by
either a deprivation of liberty for a period of at least one
year or a more severe penalty. According to the State
Department, although the United States generally does not
impose a ``dual criminality'' requirement upon mutual legal
assistance requests, Malaysian law prohibits the providing of
assistance in support of an investigation or prosecution of an
offense that is not recognized in Malaysia.\7\ The State
Department has indicated, however, that a review by negotiators
of the criminal codes of the United States and Malaysia
``revealed broad areas of commonality ... establishing that a
dual criminality refusal ground would not unduly restrict the
ability of U.S. authorities to obtain assistance.''\8\
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\7\ Id. at p. VII.
\8\ Ibid.
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Article 3 additionally includes provisions designed to
limit the use of grounds for refusing assistance. Article 3(2)
refers to a non-exclusive list in the Annex of offenses that
satisfy the treaty's dual criminality requirement and for which
assistance shall not be refused pursuant to Article 3(1)(e), as
described above. Article 3(3) states that ``[a]ssistance shall
not be refused solely on the ground of secrecy of banks and
similar financial institutions or that the offence is also
considered to involve fiscal matters.''
Articles 4 and 5 prescribe the form and contents of
requests under the Treaty. Article 6 generally obligates both
Parties' competent authorities to promptly execute requests; to
respond within a reasonable period of time to reasonable
inquiries by the competent authority of the requesting State;
and to promptly inform the competent authority of the
requesting state of the outcome of the execution of a request.
Articles 8-17 set forth in detail the procedures to be employed
in the case of specific types of requests for legal assistance.
Article 19, which addresses the allocation of costs associated
with providing assistance, provides that the requested State
must pay all costs relating to the execution of a request, with
certain exceptions. This allocation of costs is common in MLATs
to which the United States is a party.
IV. Entry Into Force
In accordance with Article 22, this Treaty shall enter into
force upon the exchange of instruments of ratification between
the United States and Malaysia. Once in force, however, the
Treaty shall apply to all requests presented between the
Parties regardless of when the acts or omissions constituting
the offense occurred.\9\
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\9\See Article 22(3).
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V. Implementing Legislation
This treaty, which is self-executing, will be implemented
by the United States in conjunction with applicable federal
statutes, including 18 U.S.C. Sec. 1782. No additional
legislation is needed for the United States to fulfill its
obligations under this Treaty.
VI. Committee Action
The committee held a public hearing on this Treaty 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 in the Criminal Division at
the Department of Justice. A transcript of this hearing is
annexed to Executive Report 110-12.
On July 29, 2008, the committee considered this treaty and
ordered it favorably reported by voice vote, with a quorum
present and without objection.
VII. Committee Recommendation and Comments
The Committee on Foreign Relations believes that the MLAT
with Malaysia, which would enhance law enforcement cooperation
between the United States and Malaysia, would further U.S.
efforts in fighting terrorism and transnational crime.
Accordingly, the committee urges the Senate to act promptly to
give advice and consent to ratification of this Treaty, as set
forth in this report and the accompanying resolution of advice
and consent.
A. AMENDMENTS TO THE ANNEX
In an effort to provide certainty to U.S. and Malaysian
authorities seeking assistance, an Annex was included that
provides a non-exclusive list of offenses for which the Parties
have already established that dual criminality exists. In
accordance with Article 3(2) of the MLAT with Malaysia, a
request that relates to an offense identified in the Annex
cannot be refused for a lack of dual criminality pursuant to
Article 3(1)(e) of the Treaty. A similar Annex was included in
the 1993 Treaty with the Republic of Korea on Mutual Legal
Assistance in Criminal Matters.\10\
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\10\Treaty Doc. 104-1.
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An amendment simply adding an offense, or several offenses,
to the Treaty's Annex that both Parties have established meets
the dual criminality requirement should not, in the normal
course, rise to the level of an amendment that requires the
advice and consent of the Senate. If, however, an amendment to
the Annex goes beyond the addition of an offense or offenses
that both Parties have established meet the dual criminality
requirement, the committee expects the executive branch to
consult with the committee in a timely manner in order to
determine whether advice and consent is necessary.
B. RESOLUTION
The committee has included in its resolution of advice and
consent one declaration, which is discussed below.
Declaration
The committee has included a proposed declaration in the
resolution of advice and consent, which states that the MLAT
with Malaysia is self-executing. This declaration is consistent
with statements made in the Letter of Submittal from the
Secretary of State to the President on this instrument\11\ and
with the historical practice of the committee in approving
mutual legal assistance treaties.\12\ The Senate has rarely
included statements regarding the self-executing nature of
treaties in resolutions of advice and consent, but in light of
the recent Supreme Court decision, Medellin v. Texas, 128 S.Ct.
1346 (2008), the committee has determined that a clear
statement in the resolution is warranted. A further discussion
of the committee's views on this matter can be found in Section
VIII of Executive Report 110-12.
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\11\ Treaty Doc. 109-22 at p. V (stating that ``The [MLAT with
Malaysia] is self-executing ... .'').
\12\The committee has consistently expressed the view that mutual
legal assistance treaties are self-executing. See, e.g., Exec. Rept.
107-15 at p. 6 (stating that ``[i]it is anticipated that, for the
United States, the [Mutual Legal Assistance Treaty with Belize] will be
``self-executing.''); and Exec. Rept. 109-14 at p. 6 (stating that
``[t]he committee notes that the provisions of the [Mutual Legal
Assistance Treaties with Germany and Japan] are self-executing.'').
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VIII. Resolution of Advice and Consent to Ratification
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
Treaty between the United States of America and Malaysia on
Mutual Legal Assistance in Criminal Matters, signed at Kuala
Lumpur on July 28, 2006 (Treaty Doc. 109-22), 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.