[Senate Hearing 107-721]
[From the U.S. Government Publishing Office]
S. Hrg. 107-721
LAW ENFORCEMENT TREATIES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 19, 2002
__________
Printed for the use of the Committee on Foreign Relations
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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COMMITTEE ON FOREIGN RELATIONS
JOSEPH R. BIDEN, Jr., Delaware, Chairman
PAUL S. SARBANES, Maryland JESSE HELMS, North Carolina
CHRISTOPHER J. DODD, Connecticut RICHARD G. LUGAR, Indiana
JOHN F. KERRY, Massachusetts CHUCK HAGEL, Nebraska
RUSSELL D. FEINGOLD, Wisconsin GORDON H. SMITH, Oregon
PAUL D. WELLSTONE, Minnesota BILL FRIST, Tennessee
BARBARA BOXER, California LINCOLN D. CHAFEE, Rhode Island
ROBERT G. TORRICELLI, New Jersey GEORGE ALLEN, Virginia
BILL NELSON, Florida SAM BROWNBACK, Kansas
JOHN D. ROCKEFELLER IV, West MICHAEL B. ENZI, Wyoming
Virginia
Antony J. Blinken, Staff Director
Patricia A. McNerney, Republican Staff Director
(ii)
C O N T E N T S
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Page
Biden, Hon. Joseph R., Jr., responses received to additional
questions submitted for the record............................. 15
Boxer, Hon. Barbara, responses received to additional questions
submitted for the record....................................... 25
Cooley, Steve, Los Angeles County District Attorney, letter to
Senator Barbara Boxer, regarding Mexican extradition matters... 29
Helms, Hon. Jesse, responses received to additional questions
submitted for the record....................................... 21
Johnson, Thomas A., letter to Senator Barbara Boxer, regarding
Swedish MLAT................................................... 32
Swartz, Bruce C., Deputy Assistant Attorney General, Criminal
Division, Department of Justice, Washington, DC................ 5
Prepared statement........................................... 7
Witten, Samuel M., Deputy Legal Advisor, Department of State,
Washington, DC................................................. 2
Prepared statement........................................... 3
(iii)
LAW ENFORCEMENT TREATIES
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THURSDAY, SEPTEMBER 19, 2002
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 11:10 a.m., in
room SD-419, Dirksen Senate Office Building, Hon. Barbara
Boxer, presiding.
Present: Senator Boxer.
Senator Boxer. The committee will come to order. Today, the
Senate Foreign Relations Committee meets to review nine law
enforcement treaties. These bilateral agreements include three
extradition treaties between the United States and the nations
of Canada, Lithuania, and Peru, five mutual U.S. assistance
treaties between the United States and the nations of Belize,
India, Liechtenstein, Ireland, and Sweden, and one treaty with
Honduras on the return of stolen, robbed, or embezzled vehicles
and aircraft.
The committee would like to welcome our witnesses joining
us today, Mr. Samuel Witten, Deputy Legal Adviser at the
Department of State, and Mr. Bruce Swartz, Deputy Assistant
Attorney General at the Department of Justices' Criminal
Division. Welcome.
In 2000, Mr. Witten and Mr. Swartz testified before the
committee when it considered 20 separate law enforcement
treaties. Both witnesses before us today are experts in
international law enforcement, and understand the necessity and
benefits of cooperation between all nations, especially at this
critical time in our history. The United States has entered
into more than 100 bilateral treaties, extradition treaties.
These treaties are important agreements that ensure that those
who commit crimes in the United States cannot flee to other
nations to escape justice and punishment.
I want to take a moment to clarify the need for a second
extradition treaty with Canada. An important reason is to
incorporate a temporary surrender mechanism into the current
agreement between our two nations. As stated in the President's
letter of submittal, this has become a standard provision in
recent bilateral treaties, and allows for an extraditable
person to stand trial while they are still serving sentences in
another State.
The other two extradition treaties with Peru and Lithuania
replace treaties signed in 1899 and 1924 respectively. I think
the time has come to do this. In each of the new treaties
before us today, extraditable offenses are determined by the
method of dual criminality. Dual criminality covers offenses
that are punishable by imprisonment of at least 1 year by both
the requesting State and the requested State. This is an
improvement over the list treaties of the past, which simply
listed covered crimes.
A second type of treaty before us today, mutual legal
assistance treaties [MLATs], are designed to enhance
cooperation between countries in the area of law enforcement
through the sharing of evidence, information, and other
assistance. The United States has entered into these treaties
with more than 50 countries. The committee has heard concerns
about the administration's proposal to enter into a mutual
legal assistance treaty with Sweden because of that nation's
unwillingness to fully comply with the Hague Treaty on
International Abduction.
I understand these serious concerns. In fact, in 1998, I
intervened on behalf of a California father who had a son
abducted to Sweden. I hope that our witnesses will be able to
address some of these concerns during the hearing.
Finally, the committee will also be considering a treaty
with Honduras on the return of stolen vehicles, which addresses
this growing international problem.
So I want to thank you for being here, and I would ask Mr.
Witten, would you like to start?
STATEMENT OF SAMUEL M. WITTEN, DEPUTY LEGAL ADVISER, DEPARTMENT
OF STATE, WASHINGTON, DC
Mr. Witten. Thank you, Senator.
Madam Chairman, with your permission, I will submit the
full statement for the record and just summarize several key
points. The Department of State greatly appreciates the
opportunity to move toward ratification of these important
treaties. I will focus on the extradition treaties and protocol
and the stolen vehicle treaty, and Mr. Swartz will focus on the
mutual legal assistance treaties.
The growth in transnational criminal activity, especially
terrorism, violent crime, drug trafficking, arms trafficking,
trafficking in persons, the laundering of proceeds of criminal
activity, including terrorist financing, organized crime, and
corruption generally has confirmed the need for increased
international law enforcement cooperation. The treaties before
the Senate Foreign Relations Committee are essential tools in
that effort.
I will turn first to the extradition treaties. The two new
treaties and one protocol pending before the committee will
update our existing treaty relationships with two law
enforcement partners and create a new treaty relationship with
one partner, Canada, by way of updating the underlying treaty
and protocol between the United States and Canada. This is part
of the administration's ongoing program to review and revise
older extradition treaty relationships, many of which are
seriously outdated and do not include many modern crimes or
modern procedures.
The new extradition treaty with Peru will replace an
outdated treaty signed in 1899. The new treaty represents a
major step forward in law enforcement cooperation between our
two countries. It obligates each country to extradite its own
nationals, which is a high priority for U.S. law enforcement
authorities. For many years, Peruvian law prohibited the
extradition of Peruvian nationals.
Second, the new treaty will replace the old list of
extraditable offenses with the modern dual criminality
approach. Extraditable offenses are defined as those punishable
under the laws in both countries by a sentence of more than one
year or a more severe penalty. This modern approach allows
extradition for a broader range of offenses, and encompasses
new crimes such as cyber crime as they develop in the two
countries, without having to amend the treaty.
The new treaty with Lithuania is the first such treaty
concluded with one of the Baltic States since the dissolution
of the Soviet Union a decade ago. The new extradition treaty
and an MLAT with Lithuania that entered into force in 1999
together constitute a fully modernized bilateral law
enforcement relationship between the United States and
Lithuania that will be particularly valuable in combatting
organized crime.
Like the Peru treaty, the treaty with Lithuania contains an
obligation on each party to extradite nationals to face justice
in each other's courts, thereby overcoming the preexisting bar
in Lithuania's criminal code. Lithuania is to be commended for
becoming the most recent European country to recognize that the
time has come to remove this obstacle in extradition relations
with the United States. The protocol to the extradition treaty
with Canada, as you mentioned, Senator, allows for the
temporary surrender of persons to stand trial in one State
while still serving a sentence in the other State. My prepared
testimony will give more details, and I will not repeat it
here.
And finally, Madam Chairman, the stolen vehicle treaty with
Honduras is substantially the same as the five similar stolen
vehicle treaties this committee approved 2 years ago in October
2000. We had hoped to include the Honduras treaty in that group
of treaties, but its negotiation had not been completed in
time, and so it is a stand-alone treaty substantially identical
to those that have previously been approved by the committee.
The U.S. insurance industry strongly supports these
treaties, since U.S. insurers are typically subrogated to the
ownership interests of U.S. citizens or businesses whose
vehicles have been stolen and taken overseas. Insurance
industry representatives have informed us the stolen vehicle
treaties provide discernible improvements in the cooperation of
foreign authorities. The treaty should significantly improve
and facilitate the return of U.S. vehicles from Honduras.
Thank you, Madam Chairman. I will be pleased to answer any
questions.
[The prepared statement of Mr. Witten follows:]
Prepared Statement of Samuel M. Witten, Deputy Legal Adviser,
Department of State
Madam Chairman and Members of the Committee:
I am pleased to appear before you today to testify in support of
nine new treaties for international law enforcement cooperation,
including a protocol to the U.S.-Canada Extradition Treaty. The
treaties, which have been transmitted to the Senate for advice and
consent to ratification, fall into three categories:
extradition treaties with Lithuania and Peru and a Second
Protocol amending the U.S.-Canada Extradition Treaty;
mutual legal assistance treaties--or ``MLATs''--with Belize,
India, Ireland, Liechtenstein and Sweden;
a treaty for the return of stolen vehicles and aircraft with
Honduras.
The Department of State greatly appreciates this opportunity to
move toward ratification of these important assistance treaties first,
followed by the stolen vehicle and aircraft treaty.
The growth in transborder criminal activity, especially terrorism,
violent crime, drug trafficking, arms trafficking, trafficking in
persons, the laundering of proceeds of criminal activity, including
terrorist financing, organized crime and corruption, generally has
confirmed the need for increased international law enforcement
cooperation. Extradition treaties and MLATs are essential tools in that
effort.
The negotiation of new extradition and mutual legal assistance
treaties is an important part of the Administration's many efforts to
address international crime, and in particular the heightened incidents
of international terrorism. One important measure to better address
this threat is to enhance the ability of U.S. law enforcement officials
to cooperate effectively with their overseas counterparts in
investigating and prosecuting international criminal cases. Replacing
outdated extradition treaties with modern ones and negotiating such
treaties with new partners is necessary to create a seamless web of
mutual obligations to facilitate the prompt location, arrest and
extradition of international fugitives. Similarly, mutual legal
assistance treaties are needed to provide witness testimony, records
and other evidence in a form admissible in criminal prosecutions. The
instruments before you today will be important tools in achieving this
goal.
extradition treaties
I will first address the pending extradition treaties. As you know,
under U.S. law, fugitives can only be extradited from the United States
pursuant to authorization granted by statute or treaty. The two new
treaties and one protocol pending before the Committee will update our
existing treaty relationships with two law enforcement partners and
create a new treaty relationship with one partner. This is part of the
Administration's ongoing program to review and revise older extradition
treaty relationships, many of which are seriously outdated and do not
include many modern crimes or modern procedures.
The new extradition treaty with Peru, signed at Lima July 26, 2001,
will replace an outdated treaty signed in 1899. The new treaty
represents a major step forward in law enforcement cooperation between
the two countries. Certain features of the treaty are worth noting.
First, the new treaty obligates each country to extradite its own
nationals, a high priority for U.S. law enforcement authorities. For
many years, Peruvian law prohibited the extradition of Peruvian
nationals. Second, the new treaty replaces the old ``list'' of
extraditable offenses with the modern ``dual criminality'' approach.
Extraditable offenses are defined as those punishable under the laws in
both countries by a sentence of more than one year or a more severe
penalty. This modern approach allows extradition for a broader range of
offenses and encompasses new ones, e.g., cyber crime, as they develop
in the two countries, without having to amend the treaty.
The new extradition treaty with Lithuania, signed in October, 2001,
is the first such treaty concluded with one of the Baltic states since
the dissolution of the Soviet Union a decade ago. The new extradition
treaty, and an MLAT with Lithuania that entered into force in 1999,
together constitute a fully-modernized bilateral law enforcement
relationship that will be particularly valuable in combating organized
crime.
Like the Peru treaty, the new treaty with Lithuania contains an
obligation to extradite nationals to face justice in each other's
courts, thereby overcoming the preexisting bar in Lithuania's criminal
code. Lithuania is to be commended for becoming the most recent
European country to recognize that the time has come to remove this
historic obstacle in extradition relations with the United States.
The second protocol to the extradition treaty with Canada, signed
at Ottawa January 12, 2001, allows for the temporary surrender of
persons to stand trial in one State while still serving a sentence in
the other State. This mechanism can be an important law enforcement
tool in cases where an individual has committed serious crimes in both
countries. Temporary surrender allows for the prompt trial of an
accused person while witnesses and evidence are still available. Such a
mechanism has become a standard feature in recent U.S. bilateral
extradition treaties, and will be a useful addition to the 1971 treaty
with Canada and the 1988 protocol, which addresses other issues. The
second protocol will also streamline authentication requirements to
take advantage of changes in Canadian law regarding the admissibility
of extradition documents.
mlats
Also before you today are five mutual legal assistance treaties.
The MLATs with Ireland and Sweden, both signed in 2001, are standard in
content. They reflect the importance of a modern, treaty-based
framework for mutual legal assistance with important West European
partners. With these treaties the United States will have MLATs in
place with 11 of the 15 member states of the European Union. The MLAT
with India, which is also standard in content, will improve our ability
to cooperate in law enforcement matters with that country, and will
complement the new extradition treaty we brought into force with India
in 1999.
The MLAT with Liechtenstein, signed this summer, represents the
first ever concluded by that country. Conclusion of this treaty is a
significant step by Liechtenstein, a bank secrecy jurisdiction, to
improve its cooperation with foreign criminal tax investigations and
prosecutions. Through this treaty, Liechtenstein has for the first time
agreed to provide a foreign country with assistance in pursuing tax
fraud offenses. An exchange of diplomatic notes forming a part of the
treaty makes clear that assistance also would be made available to U.S.
authorities for conduct that would be considered tax evasion under U.S.
law.
The MLAT with Belize, signed in 2000, together with the new
extradition treaty also signed that year, represents the culmination of
our efforts to modernize law enforcement treaty relations with this
Central American country. Belize, like Liechtenstein, is an off-shore
financial jurisdiction. The treaty includes an exchange of diplomatic
notes reflecting the Parties' understanding that assistance includes
criminal tax matters. This treaty closely resembles the seven MLATs
concluded in the late 1990's with the English-speaking countries of the
Eastern Caribbean, with which Belize shares a British legal heritage.
stolen vehicle treaty
The stolen vehicle treaty with Honduras is substantially the same
as the five similar stolen vehicle treaties approved by this Committee
two years ago in October 2000. Its negotiation had not yet been
completed when those treaties--with Belize, Costa Rica, the Dominican
Republic, Guatemala and Panama--were approved, so it could not be
considered at that time.
Like those treaties, the Honduras treaty establishes procedures
that can be used for the recovery and return of vehicles that are
documented in the territory of one party, stolen within its territory
or from one of its nationals, and found in the territory of the other
party. Like the parallel treaties already in force with Mexico, Costa
Rica, Guatemala, and Panama, the Honduran treaty also provides for the
return of stolen aircraft.
The U.S. insurance industry strongly supports these treaties, since
U.S. insurers are typically subrogated to the ownership interests of
U.S. citizens or businesses whose vehicles have been stolen and taken
overseas. In fact, insurance industry representatives have informed us
that these stolen vehicle treaties provide discernible improvements in
the cooperation of the foreign authorities. The treaty should
significantly improve and facilitate the return of U.S. vehicles from
Honduras.
Thank you, Madam Chairman. I will be pleased to answer any
questions you or other members of the Committee may have.
Senator Boxer. Thank you, Mr. Witten.
Mr. Swartz.
STATEMENT OF BRUCE C. SWARTZ, DEPUTY ASSISTANT ATTORNEY
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON,
DC
Mr. Swartz. Thank you, Madam Chairman. I am pleased to
appear today before the committee to present the views of the
Department of State with regard to the nine law enforcement
treaties that have been referred to the committee.
The extradition and mutual legal assistance agreements that
are before the committee today represent the next stage in the
ongoing creation of our country's international law enforcement
network with regard to agreements with our foreign
counterparts. The importance of that network has been once
again demonstrated in the months since September 11, 2001. Our
extradition and mutual legal assistance agreements have played
a vital role in the war on terrorism. They have played an
equally important role in our efforts to fight international
organize crime, to deal with complex financial fraud, and to
address trafficking in persons and in narcotics.
With the committee's permission, I will submit my full
statement for the record and simply address some of the
features of mutual legal assistance treaties that are before
the committee today.
Senator Boxer. Without objection, so ordered.
Mr. Swartz. Thank you. The committee is fully aware from
its past experience of the benefits that mutual legal
assistance treaties provide over other forms of formal legal
assistance. Those benefits include a more efficient approach,
certainly more efficient than letters rogatory, since they do
not require court orders. They allow us to process these
requests not through diplomatic channels but from central
authority to central authority.
They also create a binding obligation to provide assistance
if the terms of the treaty are met. They allow assistance in an
investigatory stage, which therefore advances our interest in
being able to move quickly with regard to criminal cases. They
allow us to pierce bank secrecy. They establish a framework for
addressing a number of issues, including admissibility of
evidence, confrontation of witnesses, foreign depositions, and
confidentiality. Finally, they establish a framework for
freezing and seizing and forfeiting criminally derived assets.
I would like to briefly look at some of the features of the
treaties that are before us today with regard to mutual legal
assistance. The Belize treaty creates a now fully modern law
enforcement relationship with Belize, following the entering
into force of our extradition treaty with Belize, that will
allow us to combat narcotics trafficking. It will also allow us
to engage in freezing and seizure of assets with regard to
narcotics trafficking and other offenses.
Since Belize is also a significant off-shore financial
jurisdiction, the mutual legal assistance treaty is important
with regard to the ability to deal with financial crimes,
including tax matters.
India. The MLAT with India will allow us to create a modern
law enforcement relationship thanks to entry into force of our
extradition treaty. The India treaty, as itself makes clear in
its terms, allows us to deal with terrorism, narcotics,
economic crime, and organized crime offenses in addition to
other offenses.
The Ireland mutual legal assistance treaty will allow us to
enhance our network of treaties with the EU countries. It will
allow us to deal with money laundering, international
terrorism, and organized crime.
Liechtenstein represents an important breakthrough with
regard to our ability to pierce bank secrecy. Liechtenstein is,
of course, a major off-shore financial center. This is the
first mutual legal assistance treaty that Liechtenstein has
entered into, and as a result of this Liechtenstein will
provide assistance to the United States with regard to tax law
offenses, including tax evasion.
Sweden, which, Madam Chairman, you have referred to, is
another important EU State. We recognize, of course, the issues
that you have suggested with regard to parental abduction, and
would be glad to address those at greater length, but we would
like to point out that this treaty will allow us assistance in
a number of matters, including matters involving terrorism,
fraud, tax, computer crime, and money laundering.
We appreciate the committee's support over the years to
strengthen and enlarge this framework of international
agreements. This is an important next step in going forward
with these treaties, and we join with our colleagues in the
Department of State in urging the prompt and favorable
consideration of these.
Thank you again.
[The prepared statement of Mr. Swartz follows:]
Prepared Statement of Bruce C. Swartz, Deputy Assistant Attorney
General, Criminal Division, Department of Justice
Madam Chairman and members of the Committee, I am pleased to appear
before you today to present the views of the Department of Justice on
nine law enforcement treaties, including one protocol, that have been
referred to the Committee. Each of these instruments will advance the
law enforcement interests of the United States. They are of particular
importance as we face an increasing need for cooperation and assistance
from the international community in the investigation of crimes
relating to terrorism and other serious violent activity, trafficking
in persons and drugs, and large-scale financial offenses.
Two of the treaties--with Lithuania and Peru--replace old, outdated
extradition treaties. The second protocol to the extradition treaty
between the United States and Canada amends the terms of the existing
treaty. Five treaties are bilateral mutual legal assistance treaties
(``MLATs'')--with Belize, India, Ireland, Liechtenstein and Sweden--
each of which is the first of its kind to be negotiated between the
United States and the treaty partner. The final instrument is a treaty
for the return of stolen vehicles and aircraft with Honduras.
The decision to proceed with the negotiation of law enforcement
treaties such as these is made by the Departments of State and Justice,
and reflects our international law enforcement priorities. The
Department of Justice participated in the negotiation of these
extradition and mutual legal assistance treaties, and we join the
Department of State today in urging the Committee to report favorably
to the Senate and recommend its advice and consent to ratification of
all of the treaties.
The Departments of Justice and State have prepared and submitted to
the Committee technical analyses of seven of the treaties. In my
testimony today, I will concentrate on why these treaties are important
for United States law enforcement agencies engaged in investigating and
prosecuting serious offenses.
the extradition treaties and protocol
Modernizing our extradition treaties and, where appropriate,
establishing new extradition relationships, are among the top
priorities of the Justice Department's international law enforcement
efforts.
The two extradition treaties and one protocol being considered by
the Committee replace or update the following, existing treaties: the
1924 treaty and the 1934 supplement that currently govern our
extradition relations with Lithuania; the U.S.-Peru extradition treaty
of 1899; and the 1971 extradition treaty between the U.S. and Canada,
as amended by an exchange of notes of June 28 and July 9, 1974, and a
first protocol in 1988. Each of the new instruments contains features
we regularly seek in order to establish a modern, effective extradition
relationship.
Most notably, the new extradition treaties with Lithuania and Peru
establish that extradition shall not be refused on the basis of the
nationality of the person sought. This provision overcomes legal
barriers to the extradition of Lithuanian and Peruvian citizens in the
respective, existing treaties, and provides an affirmative obligation
for the extradition of nationals. Non-extradition of nationals remains
among the most serious obstacles to bringing fugitives to justice, and
so whenever possible, we include in our treaties an explicit obligation
to extradite nationals. Most countries with a common law tradition,
including the United States, extradite their citizens, provided there
is a treaty in force and evidence to support the criminal charges. Many
countries with a civil law tradition, however, historically have
refused to extradite their nationals. In this regard, the treaty with
Peru continues the modern trend in Latin American countries of
abandoning the bar on extradition of nationals and denying safe haven
to fugitives. Peru omitted this bar when it updated its extradition law
in 1987, but neither the new law nor the 1899 extradition treaty
provides any affirmative basis for the extradition of Peruvian
nationals. That basis is now contained in the new extradition treaty.
Similarly, the new United States-Lithuania treaty enables Lithuania to
extradite its citizens.
Both extradition treaties contain features that are standard to our
modern extradition practice. Each is a ``dual criminality'' treaty,
carrying the obligation to extradite for all offenses that are
punishable in both treaty partners' countries by imprisonment for a
period of more than one year, or by a more severe penalty. This
approach replaces the outmoded ``list'' regime of our current treaties
with Lithuania and Peru, which limits extradition to those crimes
enumerated in the treaties. Dual criminality treaties carry the
advantage of reaching the broadest range of felony offense behavior,
without requiring the repeated updating of the treaty as new forms of
criminality emerge. This is particularly important as United States
authorities investigate and prosecute crimes related to terrorism,
trafficking in persons, money laundering, computer crime and other
recent trends.
The treaties with Lithuania and Peru incorporate a variety of
procedural improvements in extradition practice. Both clarify the
procedures for ``provisional arrest,'' the process by which a fugitive
can be detained immediately in exigent circumstances, for a specified
period of time, pending the preparation and submission of formal
documents in support of extradition.
Both treaties contain ``temporary surrender'' provisions, which
allow a person found extraditable, but who is already in custody in the
requested State on another charge, to be temporarily transferred to the
requesting State for purposes of trial. This provision is designed to
overcome the problem of delaying extradition while a fugitive is
serving a sentence abroad, during which time the case underlying the
extradition request may become stale--or completely unviable--because
of the unavailability of witnesses or other evidentiary difficulties.
The treaties permit an individual to waive extradition or otherwise
agree to immediate surrender to the requesting State, thereby
expediting the extradition process in uncontested cases. Both treaties
contemplate extradition for extraterritorial offenses, which is
particularly important to the United States in terrorism and drug
trafficking cases. The two treaties are explicitly retroactive, so
their terms also will apply to crimes committed before the treaties
entered into force.
Both treaties give the requested State the standard discretion to
refuse extradition in cases in which the offense for which extradition
is sought is punishable by death in the requesting State, but is not
punishable by such penalty in the requested State, unless the
requesting State provides an assurance that the person sought will not
be executed.
The treaties with Peru and Lithuania contain standard language
concerning the political offense exception to extradition. Both
treaties establish that a murder or other violent crime against a Head
of State of the requesting or requested State, or a member of that
person's family, shall not constitute a political offense. Likewise, an
offense for which both States are obligated pursuant to a multilateral
international agreement to extradite the person sought or submit the
case to their competent authorities for decision as to prosecution is
not a political offense. The treaty with Lithuania includes additional
crimes of violence that shall not be considered political offenses and
is similar to several other modern treaties.
The second protocol amending the United States-Canada extradition
treaty is very limited in scope. It authorizes the temporary
extradition to the requesting State of individuals charged with crimes
there who are serving sentences in the requested State, and contains
modifications to the authentication requirements for U.S. documents
submitted in support of extradition from Canada. It serves as a
supplement to, and is incorporated as a part of, the existing
extradition treaty, which we already have modernized in other respects,
through the first protocol. The second protocol takes advantage of
extradition legislation that Canada enacted in 1999, including a
provision on temporary surrender. Absent the authorization provided by
the second protocol, surrender through the extradition process of
persons already convicted and sentenced in the country from which
extradition is sought must generally be deferred until the completion
of their sentence, by which time the evidence in the other country may
no longer be compelling or available. Pursuant to the second protocol,
such individuals, upon the granting of requests for their extradition,
can be surrendered temporarily to the requesting State for purposes of
immediate prosecution and then returned to the requested State for the
completion of their original sentences. Given the high volume of
extradition work between the United States and Canada, we anticipate
that the ability to grant temporary surrender will facilitate the
efficient administration of justice on both sides of the border.
The second protocol also makes several technical changes that will
streamline the extradition treaty's authentication provisions, which
govern the admissibility of extradition documents in the courts of the
requested State. These changes also came about as a result of Canada's
amendments to its extradition legislation, and accrue to the benefit of
the United States. The protocol eliminates the need for Department of
State and diplomatic or consular authentication for documents submitted
in support of U.S. extradition requests. Instead, the protocol allows
for a judicial authority or prosecutor in the United States to provide
the necessary certification when the person is sought for prosecution.
When an individual already has been convicted, documents supporting the
U.S. extradition request may be certified by a judicial, correctional
or prosecuting authority. Although the protocol retains the existing
authentication provisions for extradition documents from Canada, it
provides the alternative that documents may be certified or
authenticated in any other manner accepted by the law of the requested
State. This alternative enables both countries to take advantage of any
future changes to their laws.
the mutual legal assistance treaties
The five MLATs before this Committee will expand the United States'
complement of law enforcement mechanisms designed to strengthen our
ability to obtain evidence and other forms of assistance from overseas
in support of our criminal investigations and prosecutions. I realize
the Committee has become acquainted with the significant benefits MLATs
provide to the international law enforcement community since the first
such treaty came into force in 1977. Accordingly, I will briefly review
only some of those benefits in this statement.
Our practical experience with MLATs over the years has demonstrated
that they are far more efficient than other formal means of
international legal assistance, specifically including letters
rogatory, as MLAT requests do not require a court order and they are
not routed through diplomatic channels. MLATs establish a direct
channel of communication between Central Authorities--usually contained
within the respective treaty partners' Departments of Justice--and they
confer a binding legal obligation to provide assistance if the
requirements of the treaty are met. MLATs are broad in scope, and
provide for assistance at the investigatory stage, usually without the
requirement of dual criminality. These treaties pierce bank secrecy and
provide a mechanism for addressing legal and policy issues such as
confidentiality, admissibility requirements for evidence, allocation of
costs, confrontation of witnesses at foreign depositions and custodial
transfer of witnesses. Significantly, MLATs provide a framework for
cooperating in the tracing, seizure and forfeiture of criminally-
derived assets.
Despite these and other benefits, we realize that MLATs in
themselves are not the solution to all aspects of law enforcement
cooperation. They are similar to extradition treaties in that their
success depends on our ability to implement them effectively, combining
comprehensive and updated legal provisions with the competence and
political will of our treaty partners. Our recognition of the
importance of effective treaty implementation led to the development of
a consultation clause that we include in our MLATs, to ensure that we
will have regular dialogues with our treaty partners on the handling of
our cases.
While all the MLATs before the Committee share certain standard
features, the specific provisions vary to some extent. The technical
analyses and transmittal packages explain these variations, which are
the result of negotiations over a period of years with a range of
countries, each of which has a different legal system and each of which
represents a different law enforcement priority for the United States.
I would like to highlight how each of the MLATs before the
Committee reflects our international law enforcement priorities:
Belize MLAT: The MLAT will join the new extradition treaty
with Belize to form the basis of a modern law enforcement
relationship between our two countries. Both U.S. and Belizean
negotiators viewed the MLAT as an instrument to enhance efforts
to combat narcotics trafficking, which efforts will be carried
out, in part, through assistance in freezing and seizing
criminally-derived assets. In addition, as Belize is an off-
shore financial jurisdiction, an exchange of diplomatic notes
accompanies the treaty to memorialize the parties' intent to
cover assistance in criminal tax matters.
India MLAT: The MLAT with India will, similarly, join with a
new extradition treaty to update and enhance our law
enforcement relationship. We expect the MLAT to be of
particular assistance in investigating and prosecuting criminal
matters relating to terrorism, narcotics trafficking, economic
crimes and organized crime.
Ireland MLAT: The Ireland MLAT will enhance our network of
such treaties with member states of the European Union and will
facilitate our requests to Ireland for assistance in a variety
of cases, including those related to money laundering,
transnational terrorism and organized crime.
Liechtenstein MLAT: This treaty represents an important
breakthrough in our ability to pierce bank secrecy laws in
Liechtenstein, a major off-shore financial center, and is the
first MLAT for Liechtenstein. Liechtenstein has agreed to
provide assistance in investigations and prosecutions involving
tax fraud offenses and, through an exchange of notes
accompanying the treaty, conduct which is deemed tax evasion
under U.S. law clearly will be covered.
Sweden MLAT: This MLAT will facilitate our requests to
Sweden--another European Union state--for assistance in a
variety of criminal cases, including those related to
terrorism, fraud, tax, computer crime, money laundering and
homicide.
the stolen vehicle treaty
The Department of Justice supports the stolen vehicle treaty with
Honduras, which is similar to the other such treaties in force with
Belize, the Dominican Republic, Mexico and Panama. I endorse Mr.
Witten's testimony on behalf of this treaty, and join him in urging the
Committee to recommend its advice and consent to ratification.
conclusion
We appreciate the Committee's support in our efforts over the years
to strengthen and enlarge the framework of treaties that assist us in
combating international crime. We at the Department of Justice view
extradition and mutual legal assistance treaties as particularly useful
tools in this regard. In addition, as our network of international law
enforcement treaties has grown in recent years, we have focused
increasing efforts on implementing our existing treaties, with a view
to making them as effective as possible in the investigation and
prosecution of our most serious crimes, including those related to
terrorism. We join our colleagues from the Department of State in
urging the prompt and favorable consideration of these treaties, to
enhance our ability to fight transnational crime. I will be pleased to
respond to any questions the Committee may have.
Senator Boxer. Thank you very much, Mr. Witten and Mr.
Swartz. Having you there is a comfort to us, because you
clearly know what you are doing, and that is a comfort to us.
Here is what I am going to do. I have a number of
questions, and I am going to tell you what they are and then I
am going to submit them for the record in the hopes that--I do
not think any of them will stump you, but I need to have the
answers in writing before we take this to the committee, so I
am hoping you will be able to get to these immediately and then
if you have any problem with that, let us know, because we want
to get these through as much as you do, so I am going to kind
of lay out the questions in an abbreviated form, but you will
get them all in writing, so not to worry, and I am going to ask
you about the one issue about Sweden here, but on the
extradition treaties, does the dual criminality provision in
the treaties before us today ensure that child abduction is a
covered crime? Is the United States making an effort to update
aged extradition treaties with those nations where child
abduction problems are most common?
The second question, if confidence among the Peruvian
public and the judiciary is low, why should the United States
have confidence that a subject extradited to Peru will have a
fair trial? Doesn't Peru's appeal of the commission's decision
to the Inter-American Court show an unwillingness to
acknowledge problems with its judicial system?
The third question deals with a treaty that is not before
us today, but I recently received a letter from a district
attorney in California who was concerned about a decision by
the Mexican Supreme Court that has resulted in the refusal to
extradite Mexican nationals charged with serious offenses that
carry a potential life sentence.
On October 2, 2001, Mexico's Supreme Court of Justice ruled
that in order for any extradition to proceed, the requesting
State must provide assurances that life imprisonment will not
be imposed. The ruling has the potential to impact all
extradition cases between the United States and Mexico, and
this seriously and severely impacts my State of California. Is
this a problem that is limited to Mexico, or the beginning of a
larger trend?
And while, again, the treaty is not before us today, I will
submit the letter from my California constituent for the record
and let you see it, and ask that you get back to me and my
constituent about this serious concern.
[The letter referred to is on page 29.]
Senator Boxer. A fourth question, are you aware of any
significant outstanding cases pending between the United States
and either Lithuania or Peru which would be impacted by the
approval of either of these extradition treaties?
Then on the mutual legal assistance treaties, this is the
one I am going to ask you to answer now, but the other
questions you will receive in written form.
As I mentioned in my opening statement, serious concerns
have been raised about Sweden's failure to meet its obligations
under the Hague Convention on the Civil Aspects of
International Child Abduction. In 1998, Paul Marikovich, a
constituent of mine from California, testified before this
committee on the issue of parental abduction. He spoke about
his own painful and personal experience of having a son
abducted and taken to Sweden by his ex-wife.
While father and son are now together, it is not because of
any assistance provided by the Swedish Government, that
actually did nothing to find the abducted child or the
kidnaper. According to the most recent report to Congress,
``the Department of State remains concerned about the
commitment of Swedish authorities to act promptly to locate
children and to force return on access orders issued under the
convention.''
Now, I also have another statement I am going to place in
the record without objection. A gentleman from Alexandria,
Virginia, writes regarding a request for denial of Senate
advice and consent to ratification of the Swedish mutual legal
assistance treaty, and he basically says: this gentleman has
had a painful situation, as well as a child abducted, and it is
not resolved, and he goes on for quite a while, and again I
would ask that you write to him and let us know.
[The statement referred to is on page 32.]
Senator Boxer. In any event, why should the United States
enter into this mutual legal assistance treaty relationship
with Sweden when it is not living up to its commitments under
other treaties? I think that is a fair question for my
constituent to ask as well as this gentleman. I would ask it on
their behalf.
Mr. Swartz. Thank you, Madam Chairman. We certainly
understand the importance of asking this question and, as I
mentioned in my opening statement, we certainly recognize the
seriousness of this issue. My colleague, Mr. Witten, will
address a number of steps that the State Department is taking
to deal with the child abduction issue.
From the perspective of the Department of Justice, child
abduction is a serious problem. We, in fact, did seek mutual
legal assistance from Sweden with regard to the case of your
constituent, and were active in trying to pursue that matter
and, of course, as you know, there was a criminal prosecution
as well in connection with that case.
We believe, however, from the Department of Justice
perspective that we look at the broader picture with regard
both to the child abduction issue as it plays out in other
countries and the mutual legal assistance treaty involving
Sweden. It, of course, is well-known that Sweden is not the
only country, unfortunately, in which there have been problems
in dealing with child abduction matters. These are always
difficult and very painful cases.
We take an interest in trying to ensure that proper steps
are taken, but the sad fact remains that a number of countries,
including countries we have treaty relationships with, have
presented issues in this regard. Sweden is not the only
country, and the treaty, of course, extends far beyond child
abduction issues. Its importance to the United States that it
runs from organized crime to money laundering to, more
recently, terrorism.
Sweden, of course, as you know, Madam Chairman, has taken
into custody an individual who tried to board a plane with a
weapon. It is that kind of case, kind of situation we have had
with terrorism financing, that we believe makes it particularly
important to move forward now, while at the same time seeking
to ensure that we push Sweden and all other countries to comply
with the Hague Convention.
Senator Boxer. Thank you.
Mr. Witten.
Mr. Witten. Thank you, Senator. First, the State Department
fully shares the comments made by Mr. Swartz about the
importance of the treaty. The treaty is of general and broad
application, and has been sought by the Justice Department for
some years. We are very conscious, though, of the concerns that
you stated back in 1998, when Senator Helms raised similar
questions. We spent a fair amount of time with the committee
and the committee staff discussing these issues, and we
continue to work with Sweden and other countries to improve
their compliance with the Hague Convention, notwithstanding
certain longstanding cases, including the ones that you
mentioned that continue to be of concern.
Sweden's performance is steadily improving. More needs to
be done. Its current performance exceeds or is similar to other
European countries, and is similar to the performance of the
United States vis-a-vis Sweden in these cases.
The United States, through the Consular Affairs Bureau and
through our Childrens Issues Office, works closely with
American parents, does what it can to assist them in pursuit of
these cases. As Mr. Swartz' comments reflect, this is an issue
that the State Department works on both on its own and with the
Justice Department in connection with the criminal aspects of
child abduction, be they extradition matters or framework
agreements like the Sweden MLAT that, in addition to applying
to all of the crimes that Mr. Swartz mentioned, could be used
to seek assistance in connection with the criminal aspects of
parental child abduction. As a result, there are distinct
advantages to going forward with the treaty.
We will be pleased to lay this out in greater detail for
you and the committee in writing when we get your written
questions, but that is the thrust of what we will say.
Senator Boxer. Let me just respond to you and say that I
think we need to speak out a little stronger on this issue, if
I might say. This is not just a criticism of this
administration. My criticism goes way back, it does not matter,
and I think that there is a lot of bigger fish to fry in your
minds. You said that, Mr. Swartz. I understand it, but let me
just say--I want to read to you from this letter from Thomas
Johnson. He says, ``it has been my privilege to serve my
country for more than 33 years of active and reserve Marine
Corps duty, retiring as a colonel in 1999, and for more than 23
years with the Department of State, primarily as an attorney,
including extensive experience concerning law enforcement
treaties.''
He says, ``I have no complaints about the manner in which I
have been treated and, in fact, owe the Marine Corps far more
in many ways than I can ever repay. As you undoubtedly know,
one point emphasized from the outset at Quantico and the
recruit depots is that marines never leave anyone behind,
including the bodies of our dead.''
Not surprisingly, therefore, he writes, ``I have major
complaints about the manner in which the executive branch,
despite the absence of any possible justification or excuse,
has badly let down and then abandoned thousands of our youngest
citizens who have been abducted and retained abroad and are, of
course, victims of Federal and State felonies. This abandonment
includes the State Department practice of, `writing off'
American children by asserting an American child's case is
resolved--for purposes of the annual Hague child abduction
convention report to Congress--as soon as the foreign country
concerned definitively refuses to return the child.
``The many years of congressional efforts to help abducted
American children and their left-behind parents have, in
varying degrees, been opposed, weakened, undermined, ignored,
or violated.
``As all of us were forcefully reminded last week, there is
probably no greater loss than the loss of a child. We all know
there are many ways to lose a child. None of them is acceptable
. . .'' and this whole letter will be included in the record.
I have to say, my experience tells me--and again, this is
not a matter of just this administration in particular--that
other issues trump this issue, and it is very disturbing. What
I hope that you can do before we vote on this treaty is to give
me, as you answer these questions in writing, the steps the
State Department is taking today to resolve these issues, and I
would also like to see us address this on a very high level to
the Government of Sweden and all other governments that are
known to sweep these issues under the rug, despite promises to
the contrary, and I understand what you are saying to me, but I
translate it as, this is not as important as other things.
Now, my view is that we need to fight for this a little
more than we do, and we need to call attention to it, because
my view is that world opinion is important to these countries,
and if we just try to be very quiet about this--it is like my
efforts when I worked to free refuseniks in the old Soviet
Union.
I was so afraid in the beginning. I said, well, if I
mention their names, if I highlight them, won't they be
jeopardized, and I was told by the people who knew best, the
people who knew how to get these people out, shine the light of
day, so we need to shine the light of truth on these cases,
despite the fact that we may embarrass some of our friends. It
is not right, and God knows, I have seen too many of these
things, and we mourn for our children that are abducted and
lost, and kidnaped here. Why don't we mourn for the ones that
wind up over there?
So I would like to see in your answer some very concrete
steps that you plan to take, and if we are not taking them,
that you will consider taking, that otherwise we are going to
have to pass some laws, and it is going to get confused here,
so I would rather see it done through your good offices than we
get into some legislative infrastructure.
Senator Helms and others are very concerned about this
matter, so we have concerns across party lines here, which I
think is an indication to you that this is not something we
want to sweep under the rug.
Would you like to respond?
Mr. Witten. Yes, Senator. I will address your comments, and
then I think my colleague, Bruce Swartz will as well.
First, we will certainly answer in detail the questions you
have raised and the concerns. The issue of parental child
abduction does not get swept under the rug. It is true that it
is one of a number of issues, but it is a very high priority
for us. We have worked with respect to Sweden, and the Swedish
Central Authority has recently arranged the return of an
abducted child, and we will lay that out for you. While
progress has been made, the State Department stands firm and
strong in its commitment to help families, and we will continue
to do so.
We will lay this out in detail for you, Senator, but I just
want to be sure you understand that this is not being swept
under the rug by anybody. We are totally committed to this
issue.
Senator Boxer. I am glad to hear that.
Mr. Swartz. And Madam Chairman, if I may for a moment, I
certainly did not want to leave the impression by my testimony
that the Department of Justice believes that other law
enforcement considerations trump this important issue of child
abduction. It is the case that we do feel strongly about those
abduction matters. We work closely with the State Department in
that regard.
The mutual legal assistance treaty with Sweden is important
for the American public for a variety of reasons. It is not
being suggested that we enter into this treaty to reward
Sweden. It is simply to allow us to do a better job of
protecting American citizens against international terrorism.
Senator Boxer. Thank you, and I look forward to your
responses in addition to this particular case, if you can, and
then we will also ask you to let us know in writing how will
ratification--and you have touched on this a little bit, I
think, and expansion would be good. How will ratification of
these and future mutual legal assistance treaties help in
fighting the war on terrorism? I assume it is very important.
There are outstanding cases in which quick passage of these
five treaties is necessary. That would be helpful, too.
In general terms, please describe the volume of requests
that normally result following entry into force of an MLAT. Do
the Departments of State and Justice have adequate resources to
implement requests in a timely fashion, so let us know that.
And then on the stolen vehicle treaty with Honduras, what
is the current state of law enforcement cooperation in general
with Honduras? What has been the experience to date under the
stolen vehicle treaties which entered into force since the
Senate approved such treaties in 2000?
So that will be the questions that we ask you. I want to
thank you both very, very much, and I really look forward to
getting your answers, and will present them to Senator Biden
and to our Ranking Member, Senator Helms, and hope that we can
move forward with these, and at that time, if I have some good
answers to this question regarding these kidnapings it would be
very helpful in pushing that particular treaty forward, because
I know several colleagues have concerns, but I do have a lot of
faith in your expertise.
And again, I want to thank you both for being here, and
this meeting stands adjourned.
[Whereupon, at 11:40 a.m., the committee adjourned, to
reconvene subject to the call of the Chair.]
----------
Responses to Additional Questions for the Record
Responses From the Department of State to Additional Questions for the
Record Submitted by Senator Joseph R. Biden, Jr.
Question. Are there any related exchange of notes, official
communications, or statements of the negotiating delegations not
submitted to the Senate with regard to any of the treaties which would
provide additional clarification of the meaning of treaty terms?
Answer. No additional exchanges of notes, official communications
or statements of the negotiating delegations exist that would provide
additional clarification of the meaning of any of the treaties and that
have not already been submitted to the Senate.
u.s.-canada protocol
Question. Why is the provision on crediting of sentences in new
Article 7bis(3) discretionary?
Answer. The provision on crediting of sentences in Article 7bis(3)
is discretionary to allow the Requested State the flexibility to
accommodate different approaches, particularly as among U.S. states and
between U.S. state and federal authorities.
Question. The discussion of new Article 7 bis(3) (page vi of Treaty
Doc. 107-1) indicates that ``credit for time served by a person
surrendered to Canadian authorities may differ among U.S. state and
federal authorities.'' Please provide some examples of such
differences.
Answer. There are variations in state law with respect to credit
for time served. In addition, in drafting this permissive provision,
the negotiators wanted to preserve the Requesting State's flexibility
to accommodate possible future changes to relevant law. For instance,
there has been consideration at the federal level in the United States
of a legislative change that would disallow credit against a U.S.
sentence for time spent in foreign custody fighting extradition to the
United States.
extradition treaty with peru
Question. Please provide the following information with regard to
extradition requests by each country under the existing extradition
treaty in each of the last three calendar years: the number of
requests; the types of offense involved in the requests; the number of
requests granted; and the number of requests denied and the stated
reason for denial.
Answer. Peru made two requests in 2000, ten requests in 2001 and
six requests in 2002 (year to date) in cases involving bribery, drug
trafficking, embezzlement, extortion, fraud, forgery, money laundering,
official corruption and theft. The United States made no requests in
2000, three requests in 2001 and one request in 2002 (year to date) in
cases involving narcotics and money laundering. During this period, the
United States has granted two of Peru's requests and denied 14 requests
for insufficiency of the evidence or non-extraditable offenses. One
case remains pending before U.S. courts and one fugitive was arrested
outside the United States and returned to Peru. Peru has granted three
U.S. requests (two fugitives approved for extradition are awaiting
surrender, one is at large). One other fugitive that is the subject of
an U.S. request is also at large. Peru denied one request (submitted in
1999) in 2002 due to expiration of the Peruvian statute of limitations
for the offense charged (DUI homicide).
Question. The most recent Country Report on Human Rights Practices
(2001) for Peru states that ``[t]he Constitution provides for an
independent judiciary; however, in practice the judiciary has been
subject to interference from the executive. It is also subject to
corruption and is notably inefficient. Public confidence in the
judiciary remains low.''
If confidence among the Peruvian public in the judiciary is low,
why should the United States have confidence that a suspect extradited
by the United States to Peru will receive a fair and speedy trial?
Answer. Since the downfall of the Fujimori government in November
2000, Peru has made many strides to correct deficiencies in its
judicial system. At the end of 2000, Peru abolished the executive
committees through which former president Fujimori had exercised
control over the judiciary, restored the powers of the National
Magistrates Council (CNM) to evaluate judges and prosecutors, and
created transitory councils to remove corrupt judges. In late 2000, the
Peruvian government established a new Pardons Commission to examine the
cases of persons imprisoned for terrorism under the Fujimori
government. As of October 2001, 90 persons had been released from
prison. Along with over 600 persons pardoned between 1996 and 2000, a
total of over 700 persons were pardoned and released after being
accused unjustly of terrorism. In August 2001, President Toledo nearly
doubled the salaries of tenured judges and prosecutors to make working
in the judiciary more attractive and to reduce corruption incentives.
Thus, while much work remains to be done, Peru is taking active steps
to reform its judicial system.
Under U.S. extradition law and practice, once a fugitive has been
found extraditable by a U.S. court, the Secretary of State (or Deputy
Secretary) must review the case and issue a surrender warrant before
that person could be extradited to Peru or any other country with which
we have an extradition treaty. As part of that review and decision-
making process, the Secretary takes into account any information
available that may affect the defendant's ability to receive a fair
trial.
Question. With regard to Article IV(5):
please summarize the concerns of the U.S. delegation that
led to the conclusion of this paragraph;
what laws or practices in Peru does the United States
consider to constitute ``extraordinary laws and procedures'';
did the two sides reach a common understanding with regard
to the meaning of ``extraordinary criminal laws or procedures,
and if so, what was it;
did the Peruvian delegation indicate that it had any
concerns about existing U.S. law or practices that it
considered to constitute ``extraordinary criminal laws or
procedures''; and
have there been any discussions with Peru regarding this
paragraph since signature of the treaty?
Answer. This provision was included at the instance of the United
States based on particular concerns at the time of the negotiations
over due process issues in cases that were brought before Peru's
special terrorism tribunals. During the Fujimori administration (1990-
2000), military courts tried civilian (as well as military) defendants
in cases of treason or aggravated terrorism. Certain procedures before
those tribunals did not provide sufficient due process protection for
the accused. During the negotiations, the two sides understood that the
phrase ``extraordinary criminal laws or procedures'' was specifically
intended to refer to proceedings before Peru's special terrorism
tribunals. The Peruvian delegation did not express any concerns about
U.S. law or practice. Since the negotiations, the U.S. concerns have
been assuaged considerably by the departure of former president
Fujimori, subsequent reforms to the Peruvian legal system, and the
decline in the use of such special terrorism tribunals in Peru. In
fact, some cases originally tried in special terrorism tribunals have
been retried recently in the civilian court system. There have not been
any discussions with Peru regarding this paragraph since the treaty was
signed.
Question. Article X(2) does not indicate whether a person serving
in the Requested State who is temporarily surrendered to the Requesting
State for prosecution in another matter will be eligible for credit for
time served (as does the Canada Protocol). Why is that issue not
addressed? Is such granting of credit for time served precluded?
Answer. Article X(2) of the Peru extradition treaty is similar to
the temporary surrender provision in the Lithuania extradition treaty
and is typical of those found in recent U.S. extradition treaties
generally. The Canada Extradition Protocol specifically addresses the
question of credit for time served because that was a particular
concern of the Canadian delegation at the time of the negotiations. The
lack of treatment of this issue in the Peru treaty or in other U.S.
bilateral extradition treaties does not preclude the granting of credit
by the Requested State for time served in the Requesting State.
Question. Does the use of the term ``agreement'' in the last
sentence of Article X(2) imply that a formal agreement will be reached
governing all such transfers, or are agreements negotiated in
connection with each individual surrender?
Answer. The term ``agreement'' in this instance generally refers to
informal agreements or arrangements concerning the conditions of a
transfer that are made in connection with each individual surrender.
Normally, such informal agreements or arrangements are made by the law
enforcement authorities that have custody of the person being
surrendered.
extradition treaty with lithuania
Question. Please provide the following information with regard to
extradition requests by each country under the existing extradition
treaty in each of the last three calendar years: the number of
requests; the types of offense involved in the requests; the number of
requests granted; the number of requests denied and the stated reason
for denial.
Answer. Lithuania made two requests in 2001 and three requests in
2002 (year to date) in cases involving attempted homicide,
embezzlement, fraud, forgery, narcotics and theft. The United States
has not made any requests in the last three years. With respect to the
requests from Lithuania, the United States has not yet granted or
denied those requests.
Question. Please summarize the degree and nature of cooperation
with Lithuania under the Mutual Legal Assistance Treaty with Lithuania.
Answer. Since entry into force of the MLAT with Lithuania on August
8, 1999, the U.S. Government has made four requests for assistance to
Lithuania. Two requests were granted and have been fully executed. Two
requests are pending. All the cases involved fraud offenses. Two cases
also involved money laundering. One case also involved copyright
infringement. In the cases in which Lithuania provided assistance, that
assistance was timely and complete.
In the same time frame, Lithuania has submitted assistance requests
to the United States in approximately 82 cases, of which 46 cases are
pending. The U.S. granted complete or partial assistance in a vast
majority of the closed cases. The requests arise in investigations or
prosecutions for a wide range of criminal offenses, including, but not
limited to: assault, homicide, narcotics trafficking, money laundering,
fraud, embezzlement, extortion, computer crimes, tax offenses, weapons
violations (firearms and explosives), immigration and customs
violations and official corruption.
The type of assistance sought by both countries has generally
involved the interview of witnesses and the production of official and
business records.
Question. Article 13(1) does not indicate whether a person serving
in the Requested State who is temporarily surrendered to the Requesting
State for prosecution in another matter will be eligible for credit for
time served (as does the Canada Protocol). Why is that issue not
addressed? Is such granting of credit for time served precluded?
Answer. Article 13(1) of the Lithuania extradition treaty is
similar to the temporary surrender provision in the Peru extradition
treaty and is typical of those found in recent U.S. extradition
treaties generally. The Canada Extradition Protocol specifically
addresses the question of credit for time served because that was a
particular concern of the Canadian delegation. The lack of treatment of
this issue in the Lithuania treaty or in other U.S. bilateral
extradition treaties does not mean that the granting of credit by a
requested state for time served in the requesting state prior to
temporary surrender is precluded.
mlat with belize
Question. Please summarize the nature and extent of law enforcement
cooperation between the United States and Belize in recent years.
Answer. The current extradition treaty with Belize entered into
force in March 2001. Cooperation under this treaty and its predecessor
has generally been good. Since 1998, we have submitted ten extradition
requests to Belize, and Belize has turned over four fugitives whose
extradition we requested.
In recent years, the United States has formally (outside of police-
to-police, informal channels) sought the assistance of the Government
of Belize in several criminal cases involving fraud, money laundering,
and narcotics trafficking. These requests have sought official/
governmental records, bank records, and asset seizure.
The Department of Justice initially had problems securing bank
records from Belize. The Government of Belize, through its Solicitor
General, informed the Department of Justice that bank records could not
be obtained in the absence of an MLAT and a change to Belize's domestic
law. Since that time, the Department has developed contacts within the
Central Bank of Belize who are able to obtain such authenticated
records for use in U.S. criminal investigations and prosecutions.
The United States also has encountered problems trying to freeze
assets in Belize due to the absence of an MLAT. Because of this
problem, the Department of Justice utilized the USA Patriot Act to this
end. Belize now has amended its laws, thereby potentially permitting
such assistance at this time.
Although the United States has developed contacts and procedures
enabling us to obtain assistance once not available, the MLAT will
greatly enhance our ability to continue to receive assistance, and it
will create a central authority for the receipt of all types of
requests for mutual legal assistance.
Question. What does ``compulsory measures,'' as used in Article
3(1)(f), contemplate?
Answer. The United States and Belize contemplate that subpoenas
will be issued by the Requested State in order to satisfy many requests
made pursuant to the MLAT. In some situations, requested assistance is
readily available, such as when governmental records are sought or when
a witness agrees to voluntarily give testimony. However, compulsory
process is sometimes required, such as when a witness must be compelled
to testify and when bank records are sought and a subpoena is required
before they can be released. The Requested State should be satisfied
that compulsory process is sought in connection with a criminal
investigation or prosecution, and that the treaty provisions are not
being abused.
Question. Why is Article 3(1)(e) necessary?
Answer. Article 3(1)(e) gives the Requested State the discretion to
deny a request for search and seizure and asset forfeiture if the
conduct under investigation or being prosecuted is not criminal in both
countries. It is not unusual for MLATs to require dual criminality in
such circumstances.
mlat with sweden
Question. Please summarize the nature and extent of law
enforcement cooperation between the United States and Sweden in recent
years.
Answer. Sweden has a proven track record in cooperating with us in
connection with our existing law enforcement treaty--the Extradition
Treaty between the United States and Sweden--has been in force since
1963. In the last two years, Sweden has extradited three defendants to
the United States (one wanted for rape, one for fraud, and the other
for narcotics offenses). All were provisionally arrested promptly at
our request. In the same period, we have extradited two fugitives to
Sweden (one was an accused murderer, the other was wanted for parental
child kidnapping and requested that she be extradited after she was
arrested). We have provisionally arrested another fugitive from Sweden
for serious narcotics offenses.
In connection with mutual assistance requests, during this same
time period, we have assisted Sweden in a number of fraud, computer
crime, murder (3 cases), official corruption, and narcotics cases, as
well as in a tax case. We have denied two of their requests, however,
because they sought tax returns. Without the treaty, we cannot give tax
returns to Sweden.
In recent years, Sweden has acted promptly and professionally to
assist us in cases involving pornography, weapons and explosives,
computer hacking (including an attack on U.S. government computers),
tax, and fraud.
Question. What is the value of this treaty to U.S. law enforcement
interests?
Answer. The proposed MLAT with Sweden will enhance bilateral
cooperation in law enforcement matters. The Administration plans to use
this treaty to obtain assistance in connection with our efforts to
fight terrorism, narcotics trafficking, organized crime, violent crime,
money laundering, and terrorist financing and other crimes where Sweden
has evidence that could assist us in our criminal investigations and
prosecutions.
The United States and Sweden already cooperate on a broad range of
law enforcement issues, and we have received assistance from Sweden on
judicial assistance requests on a case-by-case basis. However, formal
requests may require the burdensome and time-consuming process of
letters rogatory, and there is no binding obligation on Sweden's part
to assist the United States. The proposed MLAT will require Sweden to
provide us assistance and only permits Sweden to decline to assist us
in very specific instances. The treaty also designates a central
authority to facilitate action under such requests, thereby improving
the ability of both countries to obtain the necessary judicial
assistance to prosecute and investigate crimes.
Question. Are there any significant pending cases in the United
States, the investigation or prosecution of which will be facilitated
by the entry into force of this treaty?
Answer. In recent years, Sweden has acted promptly and
professionally to assist us in cases involving pornography, weapons and
explosives, computer hacking (including an attack on U.S. government
computers), tax, and fraud cases. The proposed MLAT would strengthen
the legal foundation for such assistance and obligate Sweden to
maintain this close and cooperative relationship on all criminal cases
within the scope of the treaty.
mlat with india
Question. Please summarize the nature and extent of law
enforcement cooperation between the United States and India in recent
years.
Answer. Indo-U.S. cooperation on law enforcement has improved over
the past few years. We now have a legal attache's office in New Delhi,
and shortly will open an office of the Customs Service. These offices
have developed excellent relations with their local counterparts.
The practical indications of the new relationship can be seen since
the extradition treaty entered into force in July 1999. After a history
of lengthy delays, most recently in 2002, an individual was extradited
from India to the United States for fraud and stolen property charges--
within one year of the initial request. With respect to the United
States, we most recently extradited two individuals to India in 2000 in
connection with homicide and robbery charges. We expect this pattern to
continue in the future.
We receive a number of mutual assistance requests from India each
year, which usually require execution in multiple judicial districts.
For the most part, these requests relate to economic crimes committed
in India, although more recently we have been receiving requests
relating to Indian investigations of terrorist crimes. The United
States sends a smaller number of requests to India that relate mainly
to white collar and violent crimes. Similar to the extradition treaty,
we expect the level of cooperation to improve with the entry into force
of the MLAT.
mlat with ireland
Question. Please summarize the nature and extent of law
enforcement cooperation between the United States and Ireland in recent
years.
Answer. Under the current extradition treaty with Ireland, Ireland
follows the treaty strictly as Irish law and courts are very exacting.
Ireland did not make any extradition requests this past year, but the
United States did extradite one person wanted on a murder charge to
Ireland in connection with a previous request. This past year, the
United States made two provisional arrest requests, which were executed
by Ireland. The extradition proceedings in connection with these
provisional arrests are ongoing.
On mutual assistance requests, Irish police cooperate extensively
with U.S. law enforcement agents, including FBI, DEA and Customs agents
based at our embassy in London. Their cooperation often occurs on an
informal basis and covers a wide variety of cases, and in particular,
fraud.
mlat with liechtenstein
Question. Please summarize the nature and extent of law
enforcement cooperation between the United States and Liechtenstein in
recent years.
Answer. Even in the absence of a treaty, Liechtenstein has begun to
establish a track record for providing assistance in a number of our
criminal investigations and prosecutions. Changes in their domestic
legislation, both with respect to their criminal code and their legal
assistance law, have made it possible for them to overcome challenges
by defendants to the providing of legal assistance to foreign
governments.
Question. What is the value of this treaty to U.S. law enforcement
interests?
Answer. This treaty is of significant value to U.S. law enforcement
interests. The U.S. makes a respectable number of assistance requests
to Liechtenstein in very important investigations. As a prominent
financial center, Liechtenstein has been an attractive destination for
offshore deposits of illegal proceeds. While Liechtenstein has assisted
U.S. authorities in the absence of a treaty, that assistance has not
been consistently complete or timely. In recent years, however,
political pressure placed on Liechtenstein through institutions such as
the Financial Action Task Force and other fora has contributed to
marked improvement in Liechtenstein's cooperation with the U.S. We
believe the obligations Liechtenstein has undertaken in this treaty
will continue and further bolster the improved cooperation we have seen
in recent years.
This cooperation is important to the U.S. because the cases for
which the U.S. has sought assistance from Liechtenstein are often of
national importance. They include, but are not limited to,
investigations and prosecutions of such offenses as: large-scale fraud,
narcotics trafficking, money laundering, securities fraud, extortion,
racketeering, customs violations, and tax offenses. Moreover,
Liechtenstein has sought assistance from the U.S. in cases involving
similar offenses and, most recently, in investigations of terrorist
financing and providing material support to terrorists. As a banking
center, Liechtenstein runs the risk of having its financial
institutions used by terrorists and other criminals to facilitate their
operations and to conceal or launder their finances. The MLAT will
facilitate U.S. law enforcement's access to potentially critical
banking information.
stolen vehicle treaty with honduras
Question. What is the current state of law enforcement cooperation,
in general, with Honduras?
Answer. Our law enforcement cooperation relationship with Honduras
is functional, and we hope it becomes more extensive in the future.
The extradition treaty between the United States and Honduras was
signed in 1909, entered into force in 1912, and was modified by a
supplementary convention of 1927. Although Honduras' recent record with
respect to extradition under the treaty leaves room for improvement,
the country has responded to U.S. requests by deporting fugitives to
the United States where possible. We have as a long-term goal the
negotiation of a modern extradition treaty with that country. Honduras
does not have an MLAT relationship with the United States, but
cooperates with U.S. law enforcement agencies on law enforcement
matters in the absence of an MLAT.
Question. What has been the experience to date under the stolen
vehicle treaties which entered into force since the Senate approved
several such treaties in 2000?
Answer. In 2000, the Senate gave its advice and consent to
ratification of five stolen vehicle treaties. Three of the five
treaties have entered into force: the Dominican Republic treaty
(entered into force August 3, 2001), the Panama treaty (entered into
force September 13, 2001), and the Belize treaty (entered into force
August 16, 2002). The Costa Rica and Guatemala treaties are in the
final stages of approval and entry into force, and we hope to bring
them into force soon.
The Belize treaty only came into force on August 16, and we have
not yet had any experience under that treaty. We have begun making
requests for the return of vehicles from Panama and Belize. We have
thus far only made one request to Panama and are awaiting action on
that request. Our Embassy in the Dominican Republic has made
approximately 10 requests for the return of U.S. stolen vehicles.
Dominican officials have already made six of these vehicles available
for return, and the Embassy expects the remaining four vehicles to be
available for return next month.
Question. Which of the countries concerned by these law enforcement
treaties have concluded so-called Article 98 bilateral agreements with
the United States to protect American officials and service members
from surrender to the International Criminal Court? For those which
have not, when will such agreements be concluded?
Answer. The United States and Honduras concluded an Article 98
agreement on September 19. We are continuing our efforts to conclude
Article 98 Agreements with as many countries as possible, including
with the countries concerned by these law enforcement treaties.
______
Responses From the Department of State to Pre-hearing questions on MLAT
and Extradition Treaties Submitted by Senator Jesse Helms
Question. Have any of these countries (Belize, Canada, India,
Ireland, Liechtenstein, and Sweden) ever declined officially or
informally to provide law enforcement assistance of any kind to the
United States in a terrorism case without assurance that the death
penalty or life imprisonment would not be imposed?
Answer. No, none of these countries has refused for any reason to
assist the United States in terrorism-related extradition or mutual
assistance cases.
Question. Do any of the indicated treaties explicitly require that
the requested law enforcement assistance be provided to the United
States, without ``assurances'', in a terrorism case even if the death
penalty or life imprisonment could be imposed?
Answer. Both the Lithuania and Peru extradition treaties, like most
recent extradition treaties, allow requests for assurances that the
death penalty will not be imposed or carried out. The United States
agrees to include such a provision because in many countries, including
Lithuania and Peru, the death penalty has been outlawed, and
extradition to the United States in some extremely serious cases would,
as a practical matter, be impossible unless there is a mechanism for
assurances. The Second Protocol to the Canada extradition treaty does
not address these kinds of issues. The existing extradition treaty with
Canada, however, also allows for death penalty assurances, in cases
where the offense involved is not punishable by death in the Requested
State.
Neither these extradition treaties nor the Canada extradition
treaty contemplate the possibility of assurances that life imprisonment
will not be imposed or carried out.
Unlike extradition treaties, U.S. mutual legal assistance treaties
in general, including the five (Belize, India, Ireland, Liechtenstein
and Sweden) before the Senate, do not include death penalty assurance
provisions. The issue of death penalty assurances has rarely arisen in
this context, but a small number of countries recently have raised the
potential of capital punishment for crimes as in connection with U.S.
requests for legal assistance (whether the requests are made under
treaty or as a matter of international comity and reciprocity). In
these cases we have argued that the potential punisbment in a U.S.
proceeding should not be a factor in whethe assistance should be
granted.
The issue of U.S. life imprisonment provisions has not arisen to
our knowledge in the mutual assistance context.
______
Responses From the Department of State to Additional Questions for the
Record Submitted by Senator Jesse Helms
On Monday, September 16, 2002, the State Department received
fifteen questions from the Senate Foreign Relations Committee
specifically directed at the proposed Mutual Legal Assistance Treaty
(MLAT) with Sweden. Many of these questions addressed related aspects
of the same issues. Because of this close relationship among many of
the questions, and with the concurrence of the Senate Foreign Relations
Committee staff, we have developed a single narrative reply to all of
the questions. Set forth below are (i) the questions presented on
September 16 and (ii) the consolidated answer.
Questions:
1. The Swedish MLAT was negotiated and initialed roughly seven
years ago. Why did the Department wait so long to submit it to the
Senate?
2. Provisions in the Swedish Penal Code have been used to imprison
American citizens in Sweden, but in the United States would be
considered unconstitutional (e.g., interference with freedom of speech
or expression) or contrary to human rights or public policy standards
(e.g., legislation originally intended for use against African or Arab
``fathers from the south'' but utilized against Americans and any non-
Swedish fathers for attempting to exercise sole or joint child custody
rights even under Swedish law). Will the Department help the Swedes
enforce such provisions?
3. Should the U.S. enter into the proposed MLAT before Sweden
agrees to extradite its nationals for parental child abduction, to
consistently return American children under the Hague Convention, and
before Sweden reforms its child custody system to provide enforceable
access and visitation for American parents to children held in Sweden?
4. As a practical matter, an MLAT with Sweden would put the U.S.
Government in the position of: (a) being obligated to assist Sweden
(e.g., concerning an alleged effort to re-abduct an American child
being held in Sweden) in cases involving ongoing felonies against
American citizens by Swedish citizens receiving financial support
(especially payment of legal fees in Sweden and the U.S.) and other
assistance from the Swedish government, and (b) being obligated, in
cases where a Swedish custody order eventually appears for an abducted
American child, to respect and enforce such orders against the left-
behind American parents (under the extradition treaty, MLAT, and/or
Hague Convention), despite the facts that Sweden will not respect any
U.S. court orders in the case (owing to the absence of comity from the
Swedish legal system) and cannot enforce any custody or visitation
rights for the American parent even under the Swedish custody order
(owing to the absence of anything comparable to contempt of court in
the Swedish legal system). How can (a), (b), or both, be justified?
5. An MLAT with Sweden would constitute one more element in the
two-front war faced by the victims of Swedish child abductors, in view
of the willingness of the U.S. to extradite Americans who recover their
abducted children from abductors enjoying a safe haven in Sweden,
combined with the inability of the Swedish courts either to control the
conduct of Swedish parents or enforce/protect the parental rights of
non-Swedish parents through contempt of court or other means. How can
this be justified?
6. What is your assessment as to the quality of due process of law
in the Swedish criminal justice system (e.g., in terms of hearsay and
other rules of evidence, right to confront witnesses, authentication of
documents, etc.)?
7. What is your assessment of Sweden's tactics (arguably mail
fraud, attempted extortion, and possibly RICO violations) in demanding
that left-behind American parents reimburse the Swedish government for
legal fees, maintenance, and child support it pays to Swedish child
abductors?
8. What comments do you have on Sweden's general level of respect
for U.S. law, as reflected by Swedish conduct in assisting an accused
Swedish murderer to escape from the U.S. (Per Strom case in the late
1980s), engaging in diplomatic visa fraud (Franzen case in the early
1990s), and in instructing the Swedish police that U.S. child custody
orders ``have no validity in Sweden'' even in the absence of any
Swedish order (Foreign Ministry memorandum in 1996)?
9. In view of the generally one-way nature of our current
extradition and Hague child abduction convention relationships with
Sweden, and Sweden's violations of its treaty obligations to the United
States under those treaties (e.g., Sweden's failure in certain cases to
extradite even American citizens from Sweden), why should the United
States enter into another law enforcement treaty with Sweden and
undertake new obligations to a country that frequently has not met its
existing obligations to us?
10. In view of Sweden's refusal to extradite its own citizens to
the United States or effectively prosecute them with U.S. evidence,
Sweden's frequent failure to return abducted American children under
the Hague Convention, the absence of comity from the Swedish legal
system resulting in U.S. court orders receiving no respect, and the
inability and/or unwillingness of the Swedish legal system to enforce
any access or visitation for left-behind American parents (owing to the
absence of anything remotely comparable to contempt of court, how will
the Swedish MLAT improve this situation?
11. Since American citizens have no effective remedy of any kind
when they are victims of crimes by Swedish citizens who are not
apprehended in the United States and then use Sweden as a safe haven,
what is the justification for the recent extradition of an American
mother to Sweden for parental child abduction (when there is no
enforceable access or visitation in Sweden for non-Swedish parents)?
Why increase the one-sided nature of this bilateral law enforcement
treaty relationship with an MLAT?
12. In view of the fact that the Hague child abduction convention
is an attempt to remedy criminal conduct by civil means (since even
extradition and prosecution of a child abductor does not bring about
return of the child), do you agree that the interrelated civil and
criminal nature of international parental child abduction makes it
impossible to separate Sweden's Hague Convention violations and
tangible support for child abductions by its citizens on the one hand
from the question of its reliability in law enforcement matters on the
other?
13. Should any promise by Sweden of meaningful assistance under an
MLAT to U.S. law enforcement authorities in child abduction cases
involving Swedish citizens be taken seriously?
14. When Sweden considers it in its interest to do so, doesn't
Sweden already provide assistance in criminal matters without an MLAT?
15. In view of Sweden's poor record of compliance with the
extradition treaty and Hague child abduction convention, what is the
basis to conclude that its level of compliance would be better under an
MLAT?
Answer:
Summary
This responds to the questions received by the State Department on
Monday, September 16, 2002, regarding Sweden and the mutual legal
assistance treaty (MLAT) between the United States and Sweden. The
questions raise the issue of whether Sweden's record of compliance
under the Hague Convention on the Civil Aspects of International Child
Abduction (Hague Convention) should be a basis for the Committee to
refuse approval of the MLAT with Sweden that the President has
submitted for the Senate's advice and consent.
It is the Administration's position that the MLAT is a valuable law
enforcement tool, and that it should be approved on its merits as such.
The experience of this last year has only underscored the international
character of the crimes most threatening to our citizens, and thus our
responsibility to provide U.S. prosecutors and investigators the means
to secure evidence from abroad. Our experience with Sweden under our
extradition treaty, and in obtaining evidence even absent a treaty, has
generally been good, and gives us confidence that an MLAT with Sweden--
like the more than forty MLATs already in force with other countries
around the world--will assist our law enforcement authorities in
preventing, investigating and prosecuting serious crimes.
The problem of international parental child abduction, and of
compliance with the Hague Convention by treaty partners including
Sweden, are matters of serious concern to the State and Justice
Departments. As discussed more fully below, while certain long-standing
cases remain troubling, we believe Sweden's record under the Hague
Convention--a convention governing the civil aspects of international
parental abduction--has been steadily improving. The positive trend has
been noted in our compliance reports to Congress and has been
reinforced by recent experience involving Sweden. Notwithstanding these
encouraging developments, we will continue to seek further improvement
with Sweden, as with other countries, because compliance with the Hague
Convention is a serious matter in its own right. However, these
concerns need not and should not be linked to questions relating to the
MLAT.
The MLAT is a law enforcement tool. The wisdom of the Foreign
Relations Committee in approving dozens of similar treaties over the
years has been well illustrated by the numerous cases--now including
investigations related to the attacks of September 11th--in which the
Department of Justice has been able to use MLATs to obtain evidence
critical to the investigation and prosecution of serious crimes against
the United States and its citizens. Accordingly, we urge the Committee
to recommend advice and consent to ratification of the MLAT with
Sweden.
The MLAT Is An Important Law Enforcement Tool
The proposed MLAT with Sweden will enhance bilateral cooperation in
law enforcement matters. The Administration plans to use this treaty to
obtain assistance in connection with our efforts to fight terrorism,
narcotics trafficking, organized crime, violent crime, money
laundering, and terrorist financing and other crimes where Sweden has
evidence that could assist us in our criminal investigations and
prosecutions.
The United States and Sweden already cooperate on a broad range of
law enforcement issues, and we have received assistance from Sweden on
judicial assistance requests on a case-by-case basis. However, formal
requests may require the burdensome and time-consuming process of
letters rogatory, and there is no binding obligation on Sweden's part
to assist the United States. The proposed MLAT will require Sweden to
provide us assistance and only permits Sweden to decline to assist us
in very specific instances. The treaty also designates central
authorities to facilitate action under such requests, thereby improving
the ability of both countries to obtain the necessary judicial
assistance to prosecute and investigate crimes.
Sweden's Record of Cooperation
Sweden has a proven track record in cooperating with us in
connection with our existing law enforcement treaty--the Extradition
Treaty between the United States and Sweden--has been in force since
1963. On October 1, 2000, new legislation entered into force in Sweden
that transferred traditional authority to handle international criminal
judicial cooperation (mutual assistance, extradition, transfer of
prisoners, and service of documents) from the Ministry of Foreign
Affairs to the Ministry of Justice. This has enhanced Sweden's ability
to work effectively and expeditiously with the United States on law
enforcement matters.
In the last two years, Sweden has extradited three defendants to
the United States (one wanted for rape, one for fraud, the other for
narcotics offenses). All were provisionally arrested promptly at our
request. In the same period, we have extradited two fugitives to Sweden
(one was an accused murderer, the other was wanted for parental child
kidnapping and requested that she be extradited after she was
arrested). We have provisionally arrested another fugitive from Sweden
for serious narcotics offenses.
The questions also raise the issue of Sweden's extradition of its
own nationals. Over time, we have come to support strongly the practice
of a country extraditing its own nationals, and we now take every
opportunity to encourage this change in practice by making it one of
our highest priorities when negotiating new or updated extradition
treaty relationships. We, therefore, strongly encourage Sweden to
extradite its nationals. Sweden, however, is not obligated to do so
under the existing extradition treaty. As a result, when it declines to
extradite its nationals, Sweden is not only acting according to Swedish
law, which bars extradition of its nationals, but completely consistent
with its treaty obligations to the United States.
In connection with mutual assistance requests, during this same
time period, we have assisted Sweden in a number of fraud, computer
crime, murder (3 cases), official corruption, and narcotics cases, as
well as in a tax case. We have denied two of their requests, however,
because they sought tax returns. Without the treaty, we cannot give tax
returns to Sweden.
In recent years, Sweden has acted promptly and professionally to
assist us in cases involving pornography, weapons and explosives,
computer hacking (including an attack on U.S. government computers),
tax, and fraud cases. The proposed MLAT would strengthen the legal
foundation for such assistance and obligate Sweden to maintain this
close and cooperative relationship on all criminal cases within the
scope of the treaty.
With respect to child abduction matters, a number of the questions
address Sweden's compliance with the Hague Convention and related
issues. The Department of State continues to work with Sweden and other
countries to improve their compliance with the Hague Convention.
Notwithstanding certain long-standing cases that continue to be of
concern to us, we believe that Sweden's performance under the Hague
Convention has steadily improved, as reflected in our past annual
compliance reports. Sweden's current performance exceeds or is similar
to that of other European Hague Convention countries, and it is similar
to the performance of the United States vis a vis Sweden.
Recently, for example, we worked closely with the Swedish Central
Authority in an abduction case in which the Swedish Central Authority
responded promptly to the left-behind parent's application for return,
in accordance with Hague procedures. We believe the Swedish judiciary
decided the case consistently with the Hague Convention, and the child
was ordered returned to the United States. The return order was
enforced, despite a lack of cooperation by the taking parent. The child
returned to the United States in the spring of this year.
Our Hague Convention dialogue with Sweden is ongoing, and we have
raised concerns we have had about their compliance directly with them.
We will certainly continue to do so.
Conclusion
The U.S. Government took each action in connection with the
proposed MLAT (i.e., the decisions to negotiate, sign, and submit this
treaty to the Senate for its advice and consent to ratification) after
considering the benefits to U.S. law enforcement interests and the
American people of improving and solidifying our law enforcement
relationship with Sweden. Through this treaty, the U.S. law enforcement
community will be able to obtain crucial evidence to assist in the
investigation and prosecution of criminals in the courts of the United
States. We, therefore, ask that the Senate give early advice and
consent to ratification of this treaty.
______
Responses From the Department of State to Additional Questions for the
Record Submitted by Senator Barbara Boxer
extradition treaties
Question. Does the dual criminality provision in the treaties
before us today ensure that child abduction is a covered crime? Is the
U.S. making an effort to update aged extradition treaties with those
nations where child abduction problems are most common?
Answer. We expect that parental child abduction will be an
extraditable offense under these two new treaties. Extradition is
required under the new treaties with Lithuania and Peru if the offense
is punishable by a period of more than one year or by a more severe
penalty. (Lithuania Treaty, Art. 2(1); Peru Treaty, Art. II(1)).
Parental child abduction is punishable in the United States by a period
of more than one year. Because we understand that the conduct
constituting parental child abduction is also punishable in both
Lithuania and Peru by more than one year, we expect it will be an
extraditable offense under both of these treaties.
With respect to other U.S. extradition treaties, all of the U.S.
Government's extradition treaties agreed upon since 1980 are dual
criminality treaties similar to the Lithuania and Peru treaties.
Parental child abduction is thus an extraditable offense under these
treaties if our treaty partner has also criminalized the conduct. While
many countries still treat parental child abduction solely as a civil
and family law matter, an increasing number are providing for serious
criminal penalties.
As noted in the question, our older extradition treaties (generally
those signed before 1980) are most typically ``list'' treaties that did
not include ``parental child abduction'' or ``parental kidnapping'' or
a similar phrase or concept among the list of extraditable offenses.
This is because at the time the treaties were negotiated parental child
abduction was not a criminal offense, including in the United States.
Normally, the interpretation of ``list'' treaties would simply evolve
to reflect the evolution of new aspects of crimes that are identified
in the list treaties. In this instance, however, the U.S. view that
extradition list treaties did not include parental child abduction had
been widely disseminated, including by publication in the Federal
Register of the United States in 1976.
To remedy this situation, the State and Justice Departments brought
this issue to the attention of Congress in 1997. These consultations
led to Public Law 105-323 (The Extradition Treaties Interpretation Act
of 1998), which addresses the matter by clarifying that ``kidnapping''
in extradition list treaties may include parental kidnapping, thus
reflecting the major changes that have occurred in this area of
criminal law in the last 20 years. With this clarification, the
Executive Branch is now in a position to make and act upon the full
range of possible extradition requests dealing with parental kidnapping
under list treaties that include the word ``kidnapping'' on such lists.
This will help achieve the goal of enhancing international law
enforcement in this area. The United States would, however, adopt this
broader interpretation only once it has confirmed with respect to a
given treaty that this would be a shared understanding of the parties
regarding the interpretation of the treaty in question. In this
respect, as other countries criminalize parental child abduction, we
will have an increasing number of extradition treaty relationships that
cover this offense.
After Public Law 105-323 was enacted, this change in the U.S.
practice of interpreting extradition list treaties was announced in the
Federal Register on January 25, 1999 (Vol. 64, No. 15, pages 3735-36).
As Senator Boxer's question reflects, however, the relevant passage
discussing extradition list treaties in the State Department's web site
and in the State Department's brochure on parental child abduction
similarly needs to be updated to reflect this change in practice. We
will change the relevant sentences in the web site and in future
editions of the print version of the brochure. We appreciate the
Committee's bringing this issue to our attention.
Question. If confidence among the Peruvian public in the judiciary
is low, why should the United States have confidence that a suspect
extradited by the United States to Peru will receive a fair trial?
Doesn't Peru's appeal of the Commission's decision to the Inter-
American Court show an unwillingness to acknowledge problems with its
judicial system?
Answer. Since the downfall of the Fujimori government in November
2000, Peru has made many strides to correct deficiencies in its
judicial system. At the end of 2000, Peru abolished the executive
committees through which former president Fujimori had exercised
control over the judiciary, restored the powers of the National
Magistrates Council (CNM) to evaluate judges and prosecutors, and
created transitory councils to remove corrupt judges. In late 2000, the
Peruvian government established a new Pardons Commission to examine the
cases of persons imprisoned for terrorism under the Fujimori
government. As of October 2001, 90 persons had been released from
prison. Along with over 600 persons pardoned between 1996 and 2000, a
total of over 700 persons were pardoned and released after being
accused unjustly of terrorism. In August 2001, President Toledo nearly
doubled the salaries of tenured judges and prosecutors to make working
in the judiciary more attractive and to reduce corruption incentives.
Thus, while much work remains to be done, Peru is taking active steps
to reform its judicial system.
Under U.S. extradition law and practice, once a fugitive has been
found extraditable by a U.S. court, the Secretary of State (or Deputy
Secretary) must review the case and issue a surrender warrant before
that person could be extradited to Peru or any other country with which
we have an extradition treaty. As part of that review and decision-
making process, the Secretary takes into account any information
available that may affect the defendant's ability to receive a fair
trial.
With respect to the case of Lori Berenson, Peru's Supreme Court in
2001, in an unprecedented action, nullified Ms. Berenson's original
conviction by a military court and ordered a civilian re-trial. During
her civilian trial, Ms. Berenson was allowed to confront the witnesses
against her and present evidence in her defense. The civilian court
found Ms. Berenson guilty of terrorist collaboration. She appealed her
sentence, which was upheld by the Peruvian Supreme Court. The case is
now in the Inter-American Human Rights system. The Inter-American
Commission on Human Rights, based here in Washington, issued non-
binding recommendations finding Ms. Berenson had not received due
process. As a party to the American Convention on Human Rights, Peru
exercised its right under Article 51 to ask the Inter-American Court of
Human Rights, in San Jose, Costa Rica, to review the case. The
decisions of the Court are legally binding, and we have every
expectation that Peru will comply with whatever decision the Court
renders.
Meanwhile, U.S. consular officials continue to monitor the
situation closely and visit Ms. Berenson regularly. They will continue
to make every effort to ensure that the Government of Peru provides her
with humane living conditions and appropriate medical care while she is
in confinement.
Question. On October 2, 2001 Mexico's Supreme Court of Justice
ruled that in order for any extradition to proceed, the Requesting
State must provide assurances that life imprisonment will not be
imposed. The ruling has the potential to impact all extradition cases
between the U.S. and Mexico-and this severely impacts California. Is
this a problem that is limited to just Mexico or the beginning of a
larger trend?
Answer. A worldwide trend does not appear to exist with respect to
seeking life imprisonment assurances. In addition to Mexico, a handful
of other countries have raised life imprisonment assurances issues
(e.g., Colombia, where extradition takes place under its national
extradition law), but as to those other countries, there has not been a
significant adverse effect on our ability to extradite fugitives. This
is not the case with Mexico, where we have experienced a severe impact
on our ability to secure the surrender of our most serious criminal
offenders.
The Department of Justice has corresponded with Los Angeles
District Attorney Steve Cooley concerning his Mexican extradition
cases, as well. We continue to work closely with D.A. Cooley's office,
as well as with federal and state prosecutors throughout the country,
in an attempt to provide Mexico with assurances that are consistent
with U.S. law and serve the ends of justice. In addition, we continue
to raise the assurances issue with the Government of Mexico. In fact,
Secretary Powell explicitly raised the issue in his meeting on
September 30, 2002 with Mexican Foreign Minister Jorge Castaneda. We
will also raise the issue again at a meeting of senior U.S. and Mexican
law enforcement officials at the end of October.
Question. Are you aware of any significant outstanding cases
pending between the United States and either Lithuania or Peru which
would be impacted by the approval of either of these extradition
treaties?
Answer. The improved terms and procedures of the two treaties will
help in all future cases in which the United States is seeking the
return of fugitives from Lithuania and Peru. In coming years, we can
anticipate requests to and from both countries on a broad range of
extradition cases, including narcotics and violent crime cases.
According to Article 22, the new Lithuania Extradition Treaty will
apply to any extradition proceedings in which the request for
extradition was received by the Requested State but not submitted to
its courts before the entry into force of the treaty. Also, Articles 16
and 17 of the treaty will be applicable to any pending extradition
requests even if they have been submitted to the courts of the
Requested State. As of this date, there are five Lithuanian cases
pending with the United States that potentially could be affected. The
new Peru Extradition Treaty, per Article XVIII, will apply to pending
extradition requests for which a final decision has not yet been
rendered on the date the treaty enters into force. As of this date,
there is one Peruvian case pending before the U.S. courts and one U.S.
request pending in Peru that could be affected by this provision.
Whether the handful of cases pending with Lithuania and Peru will come
within the terms of the new extradition treaties will depend on when
the treaties actually enter into force and the timing of the final
decisions on pending extradition requests.
mutual legal assistance treaties (mlats)
Question. Why should the United States enter into an MLAT
relationship with Sweden when it is not living up to its commitments
under other treaties?
Answer. The United States should enter into this MLAT relationship
because it is in the United States' interest to do so. Moreover, Sweden
is in fact generally living up to its commitments under other treaties.
It is the Administration's position that the MLAT is a valuable law
enforcement tool, and that it should be approved on its merits as such.
The experience of this last year has only underscored the international
character of the crimes most threatening to our citizens, and thus, our
responsibility to provide U.S. prosecutors and investigators the means
to secure evidence from abroad.
The proposed MLAT with Sweden will enhance bilateral cooperation in
law enforcement matters. The Administration plans to use this treaty to
obtain assistance in connection with our efforts to fight terrorism,
narcotics trafficking, organized crime, violent crime, money
laundering, and terrorist financing and other crimes where Sweden has
evidence that could assist us in our criminal investigations and
prosecutions.
The United States and Sweden already cooperate on a broad range of
law enforcement issues, and we have received assistance from Sweden on
judicial assistance requests on a case-by-case basis. However, formal
requests may require the burdensome and time-consuming process of
letters rogatory, and there is no binding obligation on Sweden's part
to assist the United States. The proposed MLAT will require Sweden to
provide us assistance and only permits Sweden to decline to assist us
in very specific instances. The treaty also designates a central
authority to facilitate action under such requests, thereby improving
the ability of both countries to obtain the necessary judicial
assistance to prosecute and investigate crimes.
Moreover, although no relationship with any country is without its
disagreements, we consider Sweden a good treaty partner that generally
complies with its treaty obligations. In fact, the United States and
Sweden have many bilateral treaties and agreements in force. According
to the January 1, 2002 Treaties in Force, we currently have in force
over 45 bilateral treaties or agreements with Sweden on a wide variety
of topics including with respect to atomic energy, aviation, customs,
defense, environmental cooperation, scientific cooperation, social
security, space cooperation and taxation--the most recent agreement
being a defense agreement that entered into force on December 20, 1999,
and the earliest an agreement with respect to mapping entered into
force on April 1, 1885.
In the area of law enforcement in particular, Sweden has a proven
track record in cooperating with us in connection with our existing law
enforcement treaty--the Extradition Treaty between the United States
and Sweden--has been in force since 1963. In the last two years, Sweden
has extradited three defendants to the United States (one wanted for
rape, one for fraud, and the other for narcotics offenses). All were
provisionally arrested promptly at our request. In the same period, we
have extradited two fugitives to Sweden (one was an accused murderer,
the other was wanted for parental child kidnapping and requested that
she be extradited after she was arrested). We have provisionally
arrested another fugitive from Sweden for serious narcotics offenses.
To the extent the question is directed at Sweden's compliance under
the Hague Convention, the problem of international parental child
abduction, and of compliance with the Hague Convention by treaty
partners including Sweden, are matters of serious concern to the State
and Justice Departments.
Assisting the victims of international parental child abduction has
long been a priority for the Department of State and is an important
activity of State's Bureau of Consular Affairs. In 1994, the Bureau
created the Office of Children's Issues. The Abduction Unit of this
office now employs 17 officers and staff devoted exclusively to working
with parents to resolve the cases of their abducted children. The
Office currently handles approximately 1,100 international parental
child abduction cases yearly, including abductions to and from the
United States. We have active child abduction cases in many countries
and in every region of the world.
We have designated a specific point of contact at each of our
Embassies and Consulates worldwide to facilitate our work on abduction
cases. Additionally, in 1998 the Secretary of State and Attorney
General established an inter-agency policy group to improve the federal
response to this issue. This policy group created a specific action
plan and established an inter-agency working group, chaired by the
Director of the Office of Children's Issues to implement this plan.
In connection with Sweden in particular, as discussed more fully in
our response to the September 16 questions, while certain long-standing
cases remain troubling, we believe Sweden's record under the Hague
Convention--a convention governing the civil aspects of international
parental abduction--has been steadily improving. The positive trend has
been noted in our compliance reports to Congress and has been
reinforced by recent experience involving Sweden. Notwithstanding these
encouraging developments, we will continue to seek further improvement
with Sweden, as with other countries, because compliance with the Hague
Convention is a serious matter in its own right. However, these
concerns need not and should not be linked to questions relating to the
MLAT. The MLAT is a law enforcement tool.
The wisdom of the Foreign Relations Committee in approving dozens
of similar MLATs over the years has been well illustrated by the
numerous cases--now including investigations related to the attacks of
September 11th--in which the Department of Justice has been able to use
MLATs to obtain evidence critical to the investigation and prosecution
of serious crimes against the United States and its citizens.
Accordingly, we urge the Committee to recommend advice and consent to
ratification of the MLAT with Sweden.
Question. How will ratification of these and future mutual legal
assistance treaties help in fighting the war on terrorism? Are there
outstanding cases in which quick passage of these 5 treaties is
necessary?
Answer. The ratification and effective implementation of the five
MLATs pending before the Committee, as well as such action on future
MLATs, will increase the number of countries with which the United
States Government can rely on the existence of a binding legal
obligation to provide assistance in support of our criminal
investigations and prosecutions. Since September 11, 2001, our existing
MLATs have enabled us to make requests on behalf of federal terrorism
prosecutors to approximately 17 foreign countries, in connection with a
variety of investigations and cases, including Zacarias Moussaoui and
Richard Reid. These requests have sought a broad spectrum of
assistance, from physical evidence to documents to witness statements.
Likewise, our MLATs have enabled us to assist a number of foreign
countries by providing evidence for use in their terrorism
investigations and prosecutions.
In addition to the types of assistance noted above, MLATs provide
access to bank and other corporate records that could support terrorist
financing cases, telephone and cell phone toll and subscriber
information to help in identifying suspected terrorists, and enable us
to effect searches and seizures, including providing a framework for
cooperation in the tracing, seizure and forfeiture of criminally-
derived assets. The terms of these treaties contemplate procedures for
ensuring the admissibility of foreign evidence in the courts of the
requesting state, as well as for asking that the request or the
evidence be kept confidential. All of the benefits conferred by MLATs
are available for assistance in terrorism cases, as well as in the full
range of investigations and prosecutions of other forms of serious
criminal activity.
While we are not aware of any pending cases in which quick entry
into force of these five treaties is necessary, we want to be in a
position to use the treaties whenever such need arises in the future.
Question. In general terms, please describe the volume of requests
that normally results following entry into force of an MLAT. Do the
Departments of State and Justice have adequate resources to implement
requests in a timely manner?
Answer. Because each treaty relationship is country-specific, it is
difficult to generalize in terms of the volume of requests that follow
the entry into force of an MLAT. At this point, we can anticipate that
we may receive a number of requests from U.S. prosecutors when the
MLATs with Belize and Liechtenstein enter into force, as those treaties
will allow us to request assistance in criminal tax matters--an area of
heightened concern with respect to those two jurisdictions. We may also
see an initial increase in requests for bank records from
Liechtenstein, because the MLAT will pierce bank secrecy laws there.
As the central authority under U.S. MLATs, the Department of
Justice is responsible for implementing these treaties. The increasing
number of MLATs in recent years has significantly increased the
Department's volume of casework, and the Department of Justice has not
always been in a position to handle requests as expeditiously as it
would like. In the fiscal year 2002 budget, Congress gave the
Department of Justice an allocation for additional positions which it
hopes will assist in handling MLAT requests (as well as extradition
requests) more quickly and efficiently.
The State Department is fully committed to supporting the Justice
Department whenever necessary in the implementation of MLATs. If
additional resources are needed beyond our current staffing and
appropriations, the Department of State will seek those resources
through the legislative process.
stolen vehicle treaty with honduras
Question. What is the current state of law enforcement cooperation,
in general, with Honduras?
Answer. Our law enforcement cooperation relationship with Honduras
is functional, and we hope it becomes more extensive in the future.
The extradition treaty between the United States and Honduras was
signed in 1909, entered into force in 1912, and was modified by a
supplementary convention of 1927. Although Honduras' recent record with
respect to extradition under the treaty leaves room for improvement,
the country has responded to U.S. requests by deporting fugitives to
the United States where possible. We have as a long-term goal the
negotiation of a modern extradition treaty with that country. Honduras
does not have a MLAT relationship with the United States, but
cooperates with U.S. law enforcement agencies on law enforcement
matters in the absence of an MLAT.
Question. What has been the experience to date under the stolen
vehicle treaties which entered into force since the Senate approved
several such treaties in 2000.
Answer. In 2000, the Senate gave its advice and consent to
ratification of five stolen vehicle treaties. Three of the five
treaties have entered into force: the Dominican Republic treaty
(entered into force August 3, 2001), the Panama treaty (entered into
force September 13, 2001), and the Belize treaty (entered into force
August 16, 2002). The Costa Rica and Guatemala treaties are in the
final stages of approval and entry into force, and we hope to bring
them into force soon.
The Belize treaty only came into force on August 16, and we have
not yet had any experience under that treaty. We have begun making
requests for the return of vehicles from Panama and Belize. We have
thus far only made one request to Panama and are awaiting action on
that request. Our Embassy in the Dominican Republic has made
approximately 10 requests for the return of U.S. stolen vehicles.
Dominican officials have already made six of these vehicles available
for return, and the Embassy expects the remaining four vehicles to be
available for return next month.
----------
Additional Submissions for the Record
Steve Cooley,
Los Angeles County District Attorney,
Los Angeles, CA, June 6, 2002.
The Honorable Barbara Boxer
United States Senate,
112 Hart Senate Office Building,
Washington, DC.
Dear Senator Boxer:
As the District Attorney of Los Angeles County, consistent with the
spirit of the Extradition Treaty and the Mutual Legal Assistance
Treaty, I am requesting your immediate assistance in urging the federal
government to obtain cooperation from the Republic of Mexico to
extradite Mexican nationals in exceptional circumstances.
Historically, the Mexican government refused to extradite Mexican
nationals who committed crimes in the United States and fled to Mexico
unless there were assurances that the death penalty would not be
sought. Now, as a result of a recent decision by the Mexican Supreme
Court, the Mexican government refuses to extradite Mexican nationals
charged with serious offenses if the offense carries a potential
``life'' sentence. In California, all murders and certain specified
serious crimes call for indeterminate life sentences. Such sentences
cannot be converted to ``determinate sentences'' by either a prosecutor
or a judge. The actions by the Mexican government have greater impact
on California than many other states because of California's sentencing
scheme and its proximity to Mexico.
California prosecutors are faced with four unsatisfactory options:
1) Refuse to seek extradition and allow murderers, rapists,
child molesters, and other very serious criminals to escape
justice by fleeing to Mexico.
2) Seek extradition and give the requested assurances
guaranteeing that a person charged with a crime carrying a
potential life sentence would be extradited on a reduced or
lesser charge for which a determinate sentence would be
imposed.
3) Seek extradition, refuse assurances, and have the matter
convert to an Article IV prosecution under the penal laws of
Mexico. Such a prosecution is subject to the rules and
regulations of the Mexican legal system with no guarantee of
aggressive apprehension efforts, actual prosecution, or an
adequate sentence. If an Article IV is accomplished, jeopardy
attaches barring future domestic prosecution.
4) Seek prosecution under Article IV as described above in
3).
Last March, I met with Attorney General John Ashcroft and Assistant
Attorney General Michael Chertoff in Washington, D.C. and urged them to
address this issue. Recently, the Attorneys General from all 50 states
and the territories of the District of Columbia and the Virgin Islands
wrote to Attorney General Ashcroft and Secretary of State Colin Powell
demanding action in this area.
To illustrate the urgency of this matter, I have attached histories
of several serious cases now pending in Los Angeles County where a
grave miscarriage of justice has occurred or will inevitably occur
without immediate action. Federal and state governments should possess
the absolute sovereign right to prosecute and punish according to their
laws for cases occurring in their jurisdictions. No foreign nation
should be allowed to dictate the terms of our criminal justice system
and prevent legitimate and appropriate prosecutions.
I request that you immediately cause congressional committees and
caucuses to conduct hearings to address this issue, an issue that only
the federal government can resolve.
Very truly yours,
Steve Cooley, District Attorney.
[Enclosure.]
Case Histories--Extradition From Mexico
los angeles county district attorney's office
People v. Armando Garcia (Pending Filing/Los Angeles County)
On April 29, 2002, 33-year-old Los Angeles County Deputy Sheriff
David March was shot and killed, execution-style, during a routine
traffic stop in Irwindale, California. Suspect Armando Garcia, a
Mexican national, is believed to have fled to Mexico. He previously had
been charged in an unrelated case involving two counts of attempted
murder. A warrant for his arrest has been issued on that case. If
extradition is sought solely on the filed case, Article 17 of the
Extradition Treaty would prevent extradition on the attempted murder
case and on any future prosecution in the United States for the murder
of Deputy March. The Mexican government can waive Article 17. However,
the American Consulate in Mexico City and the Office of International
Affairs have advised that no waiver will be granted without assurances
that the death penalty or a life sentence will not be sought in either
case. A filing of murder charges for the slaying of Deputy March and a
request for extradition on both cases concurrently would likely result
in the same refusal of the Mexican government to extradite Garcia. In
order to extradite Garcia and prosecute him in California for the
murder of Deputy March, under the current Mexican Supreme Court ruling,
this office would be required to charge a lesser offense such as
manslaughter or assault with a deadly weapon to avoid a potential life
sentence. Even with such assurances, it is unclear whether or not the
Mexican government would extradite Garcia since recent court rulings
have indicated that only a judge can give sufficient assurances--a
legal impossibility under California's judicial system.
People v. Daniel Perez (Case No. VA035691/Los Angeles County & San
Bernardino County)
In August of 1999, Defendant Daniel Perez was convicted in absentia
by a jury for the crimes of attempted first degree murder, use of a
firearm, spousal battery, kidnapping, false imprisonment and stalking
his estranged wife. The defendant and the 21-year-old victim, Anabella
Vara, were separated. They met at a pizza place where the defendant
kidnapped her at gunpoint. After terrorizing her for two hours,
Anabella finally convinced Perez that she would return home with him.
He drove Anabella to her car and she attempted to drive away from him.
The defendant chased the victim in his car, while she was in her car,
ramming her vehicle and forcing her to run red lights through the
streets of Southgate, California. Ultimately, Anabella was caught in
traffic and had to abandon her car. The defendant caught her at a gas
station and shot her in the head. Miraculously, she survived. During
the trial and while out on bail, the defendant drove to the victim's
father's home in Fontana, California and in front of his children,
Anabella's siblings, the defendant shot and killed Anabella's father.
The victim's father was a key witness against Perez. The defendant, a
Mexican national, has allegedly fled to Mexico. He was sentenced in
absentia on the attempted murder case to a term of 33 years to life,
plus an additional life term. The San Bernardino County District
Attorney's Office has charged Perez with the murder of the victim's
father and the special circumstance of killing a witness. The charges
carry a potential punishment of life in prison without the possibility
of parole or death. Extradition solely on the sentenced case and later
local prosecution of the murder requires an Article 17 waiver and
accompanying assurances to satisfy the Mexican government--a legal
impossibility under the current law. Extradition for prosecution on
both cases concurrently would have the same result.
People v. Alvaro Luna Jara (Case No. BA174264/Los Angeles County)
Defendant Jara is charged with the special circumstances murder of
a 12-year-old boy and the attempted murder of three others. On August
29, 1998, at approximately 7:15 p.m., the deceased victim was playing
with several other children in front of their apartment adjacent to the
children were three members of a local street gang. As the defendant
was driving by, he and the three gang members exchanged hand gestures.
The defendant extended his ann out of the car window and fired three
rounds into the crowd killing 12-year-old Steven Morales with a gunshot
to his head. The defendant, who is not a Mexican national, fled to
Mexico. The Mexican government refused to deport the defendant because
his parents are Mexican nationals. Formal extradition proceedings are
pending, but assurances will have to be given to the Mexican
government.
People v. Casillas (Case No. BA188561/Los Angeles County)
On June 8, 1999, Defendant Casillas, a Mexican national, shot and
killed his 17-year-old ex-girlfriend and her 15-year-old female cousin
as they walked to Lynwood High School in Lynwood, California. Olivia
Zavala Muniga, the defendant's ex-girlfriend, was shot multiple times
in the back with a 9 millimeter handgun. Her young cousin, Jessica
Yvette Zavala, was shot once in the back. Olivia had recently broken
off her relationship with Casillas and he had been threatening her. On
January 8, 2001, the Los Angeles County District Attorney agreed to
waive the death penalty and requested extradition of the defendant. On
September 5, 2001, the defendant was arrested in Mexico on a
Provisional Arrest Warrant. On October 2, 2001, the Mexican Supreme
Court ruled in an unrelated case that a life sentence was ``cruel and
unusual'' punishment. After refusing to give assurances that a life
sentence would not be sought, the Los Angeles County District
Attorney's Office was notified that the extradition request had been
converted to anArticle IV prosecution in Mexico. The trial is in
progress in Mexico and jeopardy has attached barring any future
prosecution in California.
People v. Rivera (Case No. A967075/Los Angeles County)
On May 7, 1988, Father Nicholas Aguilar Rivera, a Catholic priest,
was charged with 19 counts of child molestation. The day after he was
charged, Father Rivera fled to Mexico. The case was submitted to the
Mexican government for an Article IV prosecution. Following a series of
dilatory tactics, Mexican prosecutors failed to submit the case for
prosecution until 1995. The Mexican court dismissed the matter as
untimely and entered an acquittal. Now, both countries are barred from
further prosecution.
People v. Evelio Rivera Zacarias (Case No. BA190892/Los Angeles County)
Defendant Zacarias is charged with the special circumstances murder
of four members of a Rosemead, California family and the attempted
murder, kidnapping, sodomy and rape of a family member of the
defendant's ex-girlfriend's new boyfriend. The defendant stormed into
the family's home and opened fire in a fit of jealousy. He fled to
Mexico. The Los Angeles County District Attorney agreed to waive the
death penalty and requested extradition on July 11, 2001. An unlawfull
flight warrant was issued on August 15, 2001, however, the suspect has
not been arrested. If he is arrested in Mexico, the Mexican government
will require assurances that a life or death sentence will not be
sought.
______
907 Dalebrook Drive,
Alexandria, VA, September 19, 2002.
The Honorable Barbara Boxer, Chairman,
Subcommittee on International Operations and Terrorism,
Committee on Foreign Relations,
United States Senate,
Washington, DC.
Re: Request for Denial of Senate Advice and Consent to Ratification of
the Swedish Mutual Legal Assistance Treaty (Swedish MLAT)
Dear Madame Chairman:
Thank you for the opportunity to submit a statement in opposition
to the Swedish MLAT. This statement is made solely in my personal
capacity as a private citizen and as the parent of an internationally
abducted American child (Amanda Kristina Johnson) who remains a hostage
in Sweden. Many of my points are expressed in far greater detail (and
documented) in my testimony before the full Committee on Foreign
Relations (October 1, 1998) and the full House International Relations
Committee (October 14, 1999), as well as in my article in the Fall 2000
edition of the New York University Journal of International Law and
Politics that has been provided to your staff. I hope that you will
permit me to supplement this statement if any information supplied to
you by the government witnesses or their agencies is incomplete,
inaccurate, intentionally misleading, or false.
As your constituent and a witness in the previous hearings
mentioned above (Paul Marinkovich of Simi Valley) could explain far
more effectively if given the opportunity, both the Swedish MLAT and
the overall Swedish law enforcement system are deeply flawed, and the
proposed treaty could thus be rejected outright or tabled indefinitely
for reasons unrelated to the direct, institutionalized support by the
Swedish Government (and its legal and social welfare systems) for the
abduction and permanent retention in Sweden of American children. The
Swedish MLAT could certainly be denied advice and consent because it is
in fact a proposed law enforcement treaty with a country that provides
a safe haven for criminals, contrary to the U.S. Government's no safe
haven policy, in that Sweden will not extradite Swedish nationals or
effectively prosecute and punish them for crimes subject to U.S.
jurisdiction, and has even denied U.S. extradition requests for
American citizens.
But, as Congress recognized in its concurrent resolution in 2000
(H.R. Con. Res. 293), Sweden is in fact one of the worst offenders
concerning the abduction and retention abroad of American (and other)
children, including some of your constituents (e.g., the two children
of Greg O'Donoghue of Burbank, the four children of Greg Benson of San
Diego). No thanks to the Swedish Government or its legal system that
cannot enforce civil court orders, some sort of arrangement for access
may be worked out privately (as may have happened in the Benson case),
or the child may be rescued from a third country (as with the child of
your constituent Paul Marinkovich, who asserts that Sweden deserves no
credit in the case). However, Sweden's citizens who abduct and retain
American children generally succeed completely and could not do so
without the extensive direct and indirect support of the Swedish
Government, including the Swedish law enforcement system that would be
embraced by the Swedish MLAT.
It has been a privilege for me to serve my country, for more than
33 years of active and reserve Marine Corps duty (retiring as a colonel
in 1999) and for more than 23 years with the Department of State
(primarily as an attorney, including extensive experience concerning
law enforcement treaties). I have no complaints about the manner in
which I have been treated, and in fact owe the Marine Corps far more in
many ways than I can ever repay. As you undoubtedly know, one point
``emphasized'' from the outset at Quantico and the recruit depots is
that Marines never leave anyone behind, including the bodies of our
dead.
Not surprisingly, therefore, I have major complaints about the
manner in which the Executive Branch, despite the absence of any
possible justification or excuse, has badly let down and then abandoned
thousands of our youngest citizens who have been abducted and retained
abroad, and are, of course, victims of Federal and state felonies. This
abandonment includes the State Department practice of ``writing off''
American children by asserting that an American child's case is
``resolved'' (for purposes of the annual Hague child abduction
convention report to Congress) as soon as the foreign country concerned
definitively refuses to return the child. The many years of
Congressional efforts to help abducted American children and their
left-behind parents have, in varying degrees, been opposed, weakened,
undermined, ignored, or violated.
As all of us were forcefully reminded last week, there is probably
no greater loss than the loss of a child. We all know that there are
many ways to lose a child, none of them acceptable. It is ironic that
the Swedish MLAT may be touted as important in the war against
terrorism. Under any circumstances, child abduction constitutes
unending terrorism and torture for its victims. Governmental support
for, and involvement in, such terrorism is particularly reprehensible.
The Swedish Government is engaged in such support and involvement, and
a new law enforcement treaty with such a regime should not even be
considered until Sweden extradites its own citizens for parental child
abduction and other offenses, consistently returns children under the
Hague Convention (as does the United States at a 90-100 percent rate
with Sweden), ensures substantial enforceable access and visitation in
the United States for children not returned under the Hague Convention,
ceases the payment of legal fees to its abductors and the financing of
abusive appellate litigation in U.S. courts when it has no intention of
respecting the results if adverse to the Swedish citizen, and carries
out various other reforms.
Whatever token returns of American children from Sweden or
``improvements'' may be claimed, there has been no significant change
in the Swedish Government Child Abduction Support System described in
my previous testimony and NYU article. That governmental system is the
most sophisticated and well-financed in the world, and guarantees
successful felonies against American children and their left-behind
parents. No one was fooled by the sudden return of the daughter of Ian
McAnich of Dallas in May 2000. After two years of claims by Swedish law
enforcement that they were unable to find the abducting Swedish mother
and the child, both were magically located within 48 hours of the House
unanimously passing the concurrent resolution, while at the same time a
Swedish damage control team was in Washington experiencing very
unsuccessful meetings with Congress and the media. The relevance to the
MLAT, as in the Marinkovich case, is that Swedish law enforcement was
either corrupt or incompetent in the McAnich case, combined with the
usual Swedish sexism and ultra-nationalism in these cases. None of
these ``qualities'' are acceptable in Western European law enforcement
``partners'' of the United States.
According to the aforementioned Swedish team in May 2000, Sweden
has more parental child abduction cases with the United States than
with the rest of the world combined. Most of those American children,
who are the victims of Federal and state felonies, remain in Sweden and
are totally lost to their American parents because the Swedish legal
system has nothing comparable to contempt of court to enforce access or
visitation even under a Swedish custody order. The process of losing an
American child that is begun by a Swedish citizen committing a felony
with impunity against American citizens due to the support of the
Swedish Government is, of course, completed within the child by the
very aptly-named Stockholm Syndrome, followed at some point by the
Parental Alienation Syndrome. In terms of experiencing the latter, you
may be familiar with the testimony before this Committee (and the
HIRC), as well as a book, by Lady Catherine Meyer, wife of the British
ambassador in Washington.
Even if the Justice Department would enforce (and make extradition
requests under) the International Parental Kidnapping Crimes Act of
1993 (18 USC 1204), which it generally refuses to do, the Swedish MLAT
would provide no meaningful assistance in cases involving Swedish
abductors, and almost certainly not in cases involving American
abductors in Sweden (as shown by the Marinkovich case).
To avoid Congressional, media, or other scrutiny, this proposed
treaty was very quietly signed in Stockholm late last year, more than
six years after its negotiation. Those who were fearful that the Senate
would rightly have denied advice and consent to this treaty before 9/11
apparently saw that tragedy as an opportunity for anything with a ``law
enforcement'' or ``anti-terrorism'' label. In the advice and consent
process for the Swedish MLAT, the Senate also has an opportunity: to
show that there is in fact a lower limit beneath which the United
States should not go even if an effort is made to cloak something with
one of those labels. The ``quiet'' approach by the State Department
concerning the Swedish MLAT has continued in connection with this
hearing. And there is something to hide: the fact that the Swedish MLAT
is a proposed law enforcement treaty with a country that is directly
involved in facilitating, financing, rewarding, and otherwise
supporting the commission of Federal and state felonies by its citizens
against American citizens through a legal and social welfare system
that is utterly incompatible with the status of U.S. law enforcement
treaty partner.
In addition, the Swedish MLAT should be rejected outright or not
acted upon by the Senate because:
It is unlikely that either the Secretary of State (in
authorizing signature and forwarding of the treaty to the
Senate) or the Senate itself has been provided with complete
and accurate information on this proposed treaty, which is not
in the best interests of the United States,
It is unlikely that any proponents of the Swedish MLAT have
more than the most rudimentary knowledge of the Swedish legal
system in general and its criminal ``justice'' system in
particular, both of which are extraordinarily primitive by U.S.
standards and lack some of the most minimal standards of due
process, including the absence of hearsay and other rules of
evidence, no right to confront witnesses, and no authentication
of documentary evidence, all of which is combined with ultra-
nationalist bias in Swedish courts, and
MLATs lack basic safeguards to protect the rights of
American citizens and, like other law enforcement treaties,
depend on an international ``honor system,'' with which an
unscrupulous government like Sweden that aggressively ``takes
care of its own'' at all costs cannot and will not comply.
In short, the Swedish MLAT is a proposed law enforcement treaty
with:
a foreign government whose citizens commit crimes with
impunity against American citizens because every element of the
Swedish legal and social welfare systems works for Swedish
citizens and against their non-Swedish victims (including
payment of the legal fees of Swedish abductors both in Sweden
and the U.S.),
a foreign government that is actively engaged in systematic
and institutionalized human rights abuses against American
citizens (e.g., the human rights cited by the U.S. Government
in the Elian Gonzalez case but ignored in the annual U.S. human
rights reports, as well as those regarding access to both
parents in the Convention on the Rights of the Child that
Sweden violates as a State Party and the U.S. respects even as
a non-Party), and
a foreign government that prevents or blocks any adequate or
effective remedies for American citizens who are the victims of
crimes committed by Swedish citizens.
Moreover, the Swedish MLAT is a proposed law enforcement treaty
that has serious technical flaws in several respects that almost
certainly will NOT vanish in day-to-day implementation at the working
level of the Justice Department whatever ``safeguards'' are claimed:
1) The U.S. obligation under the treaty to provide assistance
for everything in the Swedish penal code (``non-dual
criminality'') means that the U.S. would be obligated to assist
with Swedish criminal laws that would be unconstitutional in
the U.S. or that deny constitutionally protected activities.
Your staff has an example of American citizens being jailed in
Sweden under such laws.
2) With regard to child abduction, the U.S. obligation to
provide assistance for the entire Swedish Penal Code includes a
law (your staff has a copy) designed and utilized to protect
Swedish child abductors and to intimidate and ultimately
prosecute non-Swedish parents attempting to exercise their
joint or even sole child custody rights in Sweden even under
Swedish law. This ultra-nationalist and racist law was,
according to senior Swedish prosecutors, originally intended to
deal with ``fathers from the South'' in their words (i.e.,
Africans, Arabs, or anyone with a dark skin). But it has been
used very effectively and wrongly against Americans, including
your constituent Greg O'Donoghue of Burbank (six months in a UK
prison awaiting extradition to Sweden), Mark Larson of Utah
(issuance of arrest warrant prevented any access to his
abducted daughter for a lengthy period), and me (2 days in a
Swedish jail, with eventual compensation by the Swedish
Government for false arrest).
3) Sweden cannot meet the standard in the Senate proviso that
has previously conditioned advice and consent to MLATs, namely
that no senior foreign government official who will have access
to information under the MLAT is engaged in a felony. The
central authority for the MLAT would be in the same part of the
Swedish Foreign Ministry as the existing central authority for
the Hague child abduction convention (which is actively engaged
in perpetuating ongoing Federal and state felonies against
American citizens, and does far more to support Swedish child
abductors than the U.S. central authority does to assist their
victims).
Some final points against the Swedish MLAT:
It is a proposed law enforcement treaty with an
historically unreliable treaty ``partner'' that has violated its
existing law enforcement (extradition treaty) and related (Hague child
abduction convention--a convention with civil remedies for criminal
conduct) treaty obligations to the United States and others (Convention
on the Rights of the Child).
It is a proposed treaty that the United States does not
need because Sweden considers its treaty obligations to be optional and
only complies when convenient or in its interest to do so (meaning that
Sweden will provide assistance on its own terms with or without a
treaty, as it does now).
It is a proposed treaty with a country that has no
principle of comity in its legal system, which has frequently shown its
lack of respect for U.S. laws and court orders, declaring that U.S.
orders ``have no validity in Sweden,'' and which has abused the U.S.
legal process by financing costly appellate litigation against American
citizens with no intention of respecting or enforcing the results in
Sweden if adverse to the Swedish citizen concerned.
Senate advice and consent to the Swedish MLAT would send the wrong
signal to Sweden, a country that has shown longstanding contempt for
U.S. law and policy generally, to the extreme detriment of many
American citizens (i.e., abducted American children and their American
parents who lose them forever. An MLAT with Sweden would put the entire
U.S. law enforcement system at the disposal of Swedish law enforcement,
the shortcomings of which have been amply discussed above. It would be
wrong from a law enforcement standpoint, a human rights standpoint, and
an American standpoint. It is not possible to compartmentalize the
Swedish Government's direct support for felonies by its citizens
against Americans on the one hand from the question of its worthiness
as a U.S. law enforcement treaty partner on the other hand.
Sincerely,
Thomas A. Johnson.
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