[Senate Executive Report 104-22]
[From the U.S. Government Printing Office]



104th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      104-22
_______________________________________________________________________


 
    TREATY WITH THE REPUBLIC OF KOREA ON MUTUAL LEGAL ASSISTANCE IN 
                            CRIMINAL MATTERS

                                _______
                                

                 July 30, 1996.--Ordered to be printed

_______________________________________________________________________


   Mr. Helms, from the Committee on Foreign Relations, submitted the 
                               following

                              R E P O R T

                    [To accompany Treaty Doc. 104-1]

    The Committee on Foreign Relations, to which was referred 
the Treaty Between the United States of America and the 
Republic of Korea on Mutual Legal Assistance in Criminal 
Matters, signed at Washington on November 23, 1993, together 
with a related exchange of notes signed on the same date, 
having considered the same, reports favorably thereon with two 
provisos and recommends that the Senate give its advice and 
consent to the ratification thereof as set forth in this report 
and the accompanying resolution of ratification.

                               I. Purpose

    Mutual Legal Assistance Treaties (MLATs) provide for the 
sharing of information and evidence related to criminal 
investigations and prosecutions, including drug trafficking and 
narcotics-related money laundering. Both parties are obligated 
to assist in the investigation, prosecution and suppression of 
offenses in all forms of proceedings (criminal, civil or 
administrative). Absent a treaty or executive agreement, the 
customary method of formally requesting assistance has been 
through letters rogatory.

                             II. Background

    On November 23, 1993, the United States signed a treaty 
with the Republic of Korea on mutual assistance in criminal 
matters and the President transmitted the Treaty to the Senate 
for advice and consent to ratification on January 12, 1995. In 
recent years, the United States has signed similar MLATs with 
many other countries as part of an effort to modernize the 
legal tools available to law enforcement authorities in need of 
foreign evidence for use in criminal cases.
    States historically have been reluctant to become involved 
in the enforcement of foreign penal law.\1\ This reluctance 
extended to assisting foreign investigations and prosecutions 
through compelling testimony or the production of documents. 
Even now, the shared interest in facilitating the prosecution 
of transnational crime is viewed as being outweighed at times 
by unwillingness to provide information to those with different 
standards of criminality and professional conduct.
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    \1\ E.g., Restatement (Third) of the Foreign Relations Law of the 
United States Part IV, ch. 7, subch. A, Introductory Note and Sec. 483, 
Reporters' Note 2 (1987); Ellis & Pisani, ``The United States Treaties 
on Mutual Assistance in Criminal Matters: A Comparative Analysis,'' 19 
Int. Lawyer 189, 191-198 (discussing history of U.S. reluctance and 
evolution of cooperation) [hereinafter cited as Ellis & Pisani].
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    Despite these hindrances, the need to obtain the 
cooperation of foreign authorities is frequently critical to 
effective criminal prosecution. Documents and other evidence of 
crime often are located abroad. It is necessary to be able to 
obtain materials and statements in a form that comports with 
U.S. legal standards, even though these standards may not 
comport with local practice. Also, assisting prosecutors for 
trial is only part of how foreign authorities may assist the 
enforcement process. Detecting and investigating transnational 
crime require access to foreign financial records and similar 
materials, while identifying the fruits of crime abroad and 
having them forfeited may deter future criminal activity. It is 
necessary to have the timely and discrete assistance of local 
authorities.
    Still, it was not until the 1960s that judicial assistance 
by means of letters rogatory--requests issuing from one court 
to another to assist in the administration of justice \2\--were 
approved. Even then, the ability of foreign authorities to use 
letters rogatory to obtain U.S. assistance was not established 
firmly in case law until 1975.\3\ By this time, the United 
States had negotiated and signed a mutual legal assistance 
treaty with Switzerland, the first U.S. treaty of its kind. 
This treaty was ratified by both countries in 1976 and entered 
into force in January 1977. Since then, the United States has 
negotiated more than 20 additional bilateral MLATs, 14 of which 
are in force.\4\
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    \2\ See In re Letter Rogatory from the Justice Court, District of 
Montreal Canada, 523 F.2d 562, 564-565 (6th Cir. 1975).
    \3\ Id. at 565-566.
    \4\ According to the August 4, 1995, Letters of Submittal 
accompanying the MLATs with Austria and Hungary, the United States has 
bilateral MLATs in force with Argentina, The Bahamas, Canada, Italy, 
Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland, 
Thailand, Turkey, the United Kingdom concerning the Cayman Islands, and 
Uruguay. MLATs not in force but ratified by the United States include 
those with Belgium, Colombia, and Panama. Signed but unratified MLATs 
include the five addressed in this report--those with Austria, Hungary, 
the Republic of Korea, the Philippines, and the United Kingdom--and one 
with Nigeria. Treaty Doc. 102-21, 104th Cong., 1st Sess. v (1992)
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    Absent a treaty or executive agreement, the customary 
method of formally requesting assistance has been through 
letters rogatory. The Deputy Assistant Attorney General of the 
Criminal Division has summarized the advantages of MLATs over 
letters rogatory to the House Foreign Affairs Committee as 
follows:

          An MLAT or executive agreement replaces the use of 
        letters rogatory. * * * However, treaties and executive 
        agreements provide, from our perspective, a much more 
        effective means of obtaining evidence. First, an MLAT 
        obligates each country to provide evidence and other 
        forms of assistance needed in criminal cases. Letters 
        rogatory, on the other hand, are executed solely as a 
        matter of comity. Second, an MLAT, either by itself or 
        in conjunction with domestic implementing legislation, 
        can provide a means of overcoming bank and business 
        secrecy laws that have in the past so often frustrated 
        the effective investigation of large-scale narcotics 
        trafficking operations. Third, in an MLAT we have the 
        opportunity to include procedures that will permit us 
        to obtain evidence in a form that will be admissible in 
        our courts. Fourth, our MLATs are structured to 
        streamline and make more effective the process of 
        obtaining evidence.\5\
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    \5\ ``Worldwide Review of Status of U.S. Extradition Treaties and 
Mutual Legal Assistance Treaties: Hearings Before the House Committee 
on Foreign Affairs.'' 100th Cong., 1st Sess. 36-37 (1987) (statement of 
Mark M. Richard, Deputy Assistant Attorney General, Criminal Division).

    Letters rogatory and MLATs are not the only means that have 
been used to obtain assistance abroad.\6\ The United States at 
times has concluded executive agreements as a formal means of 
obtaining limited assistance to investigate specified types of 
crimes (e.g., drug trafficking) or a particular criminal scheme 
(e.g., the Lockheed investigations).\7\ A separate, formal 
means of obtaining evidence has been through the subpoena 
power. Subpoenas potentially may be served on a citizen or 
permanent resident of the United States abroad or on a domestic 
U.S. branch of a business whose branches abroad possess the 
desired information.\8\
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    \6\ U.S. Dept. of Justice, United States Attorneys' Manual 
Sec. Sec. 9-13.520 et seq. (October 1, 1988).
    \7\ Id. at Sec. 9-13.523.
    \8\ Id. at Sec. 9-13.525.
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    Additionally, the Office of International Affairs of the 
Criminal Division of the Department of Justice notes several 
informal means of obtaining assistance that have been used by 
law enforcement authorities in particular circumstances. These 
have included informal police-to-police requests (often 
accomplished through law enforcement personnel at our embassies 
abroad), requests through Interpol, requests for readily 
available documents through diplomatic channels, and taking 
depositions of voluntary witnesses. Informal means also have 
included ``[p]ersuading the authorities in the other country to 
open `joint' investigations whereby the needed evidence is 
obtained by their authorities and then shared with us.'' The 
Justice Department also has made ``treaty type requests that, 
even though no treaty is in force, the authorities in the 
requested country have indicated they will accept and execute. 
In some countries (e.g., Japan and Germany) the acceptance of 
such requests is governed by domestic law; in others, by custom 
or precedent.'' \9\
---------------------------------------------------------------------------
    \9\ Id. at Sec. 9-13.524.
---------------------------------------------------------------------------
    Like letters rogatory, executive agreements, subpoenas, and 
informal assistance also have their limitations compared to 
MLATs. Executive agreements have been restricted in scope and 
application. Foreign governments have strongly objected to 
obtaining records from within their territories through the 
subpoena power.\10\ There is no assurance that informal means 
will be available or that information received through them 
will be admissible in court.
---------------------------------------------------------------------------
    \10\ Notwithstanding foreign objections, unilateral methods such as 
issuing subpoenas on domestic branches may actually have promoted the 
negotiation of MLATs. According to one commentator, ``the principal 
incentive for many foreign governments to negotiate MLATs with the 
United States was, and remains, the desire to curtail the resort by 
U.S. prosecutors, police agents, and courts to unilateral, 
extraterritorial means of collecting evidence from abroad.'' E. 
Nadelmann, Cops Across Borders: The Internationalization of U.S. 
Criminal Law Enforcement 315 (1993) [hereinafter cited as Nadelmann].
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                              III. Summary

                               a. general

    Mutual legal assistance treaties generally impose 
reciprocal obligations on parties to cooperate both in the 
investigation and the prosecution of crime. Most, but not all, 
MLATs have covered a broad range of crimes with no requirement 
that a request for assistance relate to activity that would be 
criminal in the requested State. The means of obtaining 
evidence and testimony under MLATs also range broadly. MLATs 
increasingly are extending beyond vehicles for gathering 
information to include ways of denying criminals the fruits and 
the instrumentalities of their crimes.

                     b. section-by-section summary

1. Types of proceedings

    MLATs generally call for assistance in criminal 
investigations and proceedings. This coverage often is broad 
enough to encompass all aspects of a criminal prosecution, from 
investigations by law enforcement agencies to grand jury 
proceedings to trial preparation following formal charges to 
criminal trial. Most recent MLATs also cover civil and 
administrative proceedings--forfeiture proceedings, for 
example--related to at least some types of prosecutions, most 
frequently those involving drug trafficking. However, the scope 
of some MLATs has been more circumscribed than the proposed 
treaty.
    The Korea Treaty states that the parties shall provide 
mutual assistance ``in connection with the prevention, 
investigation and prosecution of offenses, and in proceedings 
related to criminal matters'' (art. 1).

2. Limitations on assistance

    All MLATs except various types of requests from the treaty 
assistance provisions. For example, judicial assistance 
typically may be refused if carrying out a request would 
prejudice the national security or other essential interest of 
the Requested State. Requests related to political offenses 
usually are excepted, as are requests related to strictly 
military offenses. Unlike the extradition treaties, dual 
criminalty--a requirement that a request relate to acts that 
are criminal in both the Requested and Requesting States--
generally is not required. Nevertheless, some treaties do 
contain at least an element of a dual criminality standard. 
Additionally, some treaties go beyond military and political 
offenses to also except requests related to certain other types 
of crimes. Requests related to tax offenses at times have been 
restricted in an MLAT to offenses that are connected to other 
criminal activities. Before a request is denied, a Requested 
State generally is required to determine whether an otherwise 
objectionable request may be fulfilled subject to conditions.
    The Korea Treaty states that assistance may be denied if 
the conduct involved is not an offense in the Requested State, 
but a broad range of criminal conduct is excepted from the dual 
criminality requirement. Excepted conduct includes a long list 
of crimes, among them drug trafficking, racketeering activity, 
money laundering, fraud (including securities fraud), 
immigration crimes, antitrust, bankruptcy, insider trading, 
crime against computer systems, trade laws, tax evasion, crimes 
involving intellectual property, firearms offenses, and certain 
violent crime addressed in multilateral conventions (art. 3 & 
Annex).

3. Transmittal of requests

    Requests under MLATs are conveyed directly through 
designated Competent Authorities, which in the United States 
has been the Criminal Division of the Justice Department. The 
time and paperwork saved in thereby bypassing the courts and 
diplomatic channels are among the main advantages of MLATs. For 
example, a report by the Criminal Justice Section of the 
American Bar Association has stated that the circuitry of the 
channel for transmitting letters rogatory and evidence obtained 
under them often effectively frustrates use of letters rogatory 
as a means of obtaining assistance.\11\
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    \11\ American Bar Association, Criminal Justice Section, Report 
(No. 109) to the House of Delegates 3 (1989 Annual Meeting in Honolulu) 
(hereinafter cited as ABA Report).
---------------------------------------------------------------------------
    The provisions on the form and contents of requests are 
contained in article 4 of the respective treaties. All five of 
the MLATs under consideration require that a request for 
assistance under an MLAT be in writing, except in urgent 
situations (in which case a request must be confirmed in 
writing later, typically within 10 days). Among the information 
usually to be included in a request are (1) the name of the 
authority conducting the investigation, prosecution, or 
proceeding to be assisted by the request; (2) a detailed 
description of the subject matter and nature of the 
investigation, prosecution, or proceeding to which the request 
relates, including, under all of the treaties other than the UK 
treaty, a description of the pertinent offenses; (3) a 
description of the evidence or other assistance being sought; 
and (4) the purpose for which the assistance is being sought.
    To the extent necessary and possible, other information 
that may facilitate carrying out the request also is to be 
provided, including, for example, information on the 
whereabouts of information or persons sought or a description 
of a place or person to be searched and of objects to be 
seized. Additional information may include lists of questions 
to be asked, a description of procedures to be followed, and 
information on allowances and expenses to be provided to an 
individual who is asked to appear in the Requesting State.

4. Execution of requests

    Under the proposed treaties the Competent Authority of a 
Requested State is to execute a request promptly or, when 
appropriate, transmit the request to authorities having 
jurisdiction within the Requested State to execute it. The 
competent authorities of the Requested State are to do 
everything in their power to execute the request.
    Article 5 of the proposed MLAT provides that requests are 
to be executed in accordance with the laws of the Requested 
State, unless the treaties provide otherwise. At the same time, 
the method of execution specified in a request is to be 
followed unless the laws of the Requested State prohibit it. As 
is typical in other MLATs the proposed treaty provides that the 
judicial authorities of the Requested State shall have power to 
issue subpoenas, search warrants, or other orders necessary to 
execute the request.
    The Central Authority of a Requested State may postpone or 
place conditions on the execution of a request if execution in 
accordance with the request would interfere with a domestic 
criminal investigation or proceeding, jeopardize the security 
of a person, or place an extraordinary burden on the resources 
of the Requested State.
    At the request of a Requesting State, a Requested State is 
to use its best efforts to keep a request and its contents 
confidential. If a request cannot be executed without breaching 
confidentiality, the Requested State shall so inform the 
Requesting State, and the Requesting State then is given the 
option to proceed nonetheless. (Provisions on keeping 
information provided to a Requesting State confidential are 
discussed below.)
    Requested States generally bear the costs of executing a 
request other than expert witness fees; interpretation, 
transcription and translation costs; and travel costs for 
individuals whose presence is Requested in the Requesting State 
or a third State.

5. Types of assistance

    In conducting a covered proceeding, a Requesting State 
commonly may obtain assistance from a Requested State that 
includes (1) the taking of testimony or statements of persons 
located there; (2) service of documents; (3) execution of 
requests for searches and seizures; (4) the provision of 
documents and other articles of evidence; (5) locating and 
identifying persons; and (6) the transfer of individuals in 
order to obtain testimony or for other purposes. Also, mutual 
legal assistance treaties increasingly have called for 
assistance in immobilizing assets, obtaining forfeiture, giving 
restitution, and collecting fines.
            Taking testimony and compelled production of documents in 
                    Requested State
    The proposed MLAT permits a State to compel a person in the 
Requested State to testify and produce documents there. Persons 
specified in the request are to be permitted to be present and 
usually have the right to question the subject of the request 
directly or have questions posed in accordance with applicable 
procedures of the Requested State. If a person whose testimony 
is sought objects to testifying on the basis of a privilege or 
other law of the Requesting State, the person nevertheless must 
testify and objections are to be noted for later resolution by 
authorities in the Requesting State.
    With respect to questioning a witness by a person specified 
in the request, though most treaties grant a right to question, 
the proposed Korea MLAT (art. 8) leaves it to the discretion of 
the requested State to allow questioning by a person specified 
in the request.
            Service of documents
    Under an MLAT, a Requesting State may enlist the assistance 
of the Requested State to serve documents related to or forming 
part of a request to persons located in the Requested State's 
territory. This obligation generally is stated as a requirement 
of the Requested State to ``use its best efforts to effect 
service'' (art. 14).
    The treaties require that documents requiring a person to 
appear before authorities be transmitted by a certain time--
usually stated as ``a reasonable time,'' ``30 days'' in the 
case of the Korea MLAT--before the appearance. The service 
provisions of the MLAT under consideration is broader than some 
of those under MLATs currently in force. Provisions under some 
earlier MLATs provide that a Requested State has discretion to 
refuse to serve a document that compels the appearance of a 
person before the authorities of the Requesting State.
            Searches and seizures
    MLATs compel that an item be searched for and seized in the 
Requested State whenever a Requesting State provides 
information that would be sufficient to justify a search and 
seizure under the domestic law of the Requested State. The MLAT 
authorizes conditioning or otherwise modifying compliance to 
assure protection of third parties who have an interest in the 
property seized. The proposed Korean MLAT contains procedures 
for verifying the condition of an item when seized and the 
chain of individuals through whose hands the item passed, but, 
unlike other MLATs, the Korea treaty does not contain a form 
for verifying the condition of an item. No other verification 
is necessary for admissibility in the Requesting State.
            Provision of documents possessed by the Government
    MLATs provide a variety of means for obtaining documents 
abroad. Two means--compelled production in a Requested State by 
an individual there and search and seizure--have been 
mentioned. Additionally, a Requesting State generally may 
obtain publicly available documents. In its discretion, a 
Requested State may provide a Requesting State documents in its 
possession that are not publicly available if the documents 
could be made available to domestic authorities under similar 
circumstances. The proposed MLAT calls for authentication in 
accordance with procedures specified in the request.
            Testimony in Requesting State
    MLATs do not require the compelled appearance of a person 
in a Requesting State, regardless of whether the person is in 
custody or out of custody in the Requested State. Under 
provisions on persons not in custody, a Requesting State may 
ask a Requested State to invite a person to testify or 
otherwise assist an investigation or proceeding in the 
Requesting State. A request to invite a witness generally is 
accompanied by a statement of the degree to which the 
Requesting State will pay expenses. A Requested State is 
required to invite the person Requested to appear in the 
Requesting State and to inform that State promptly of the 
invited witness's response.
    A person in custody may not be transferred to a Requesting 
State under an MLAT unless both the person and the Requested 
State consent. A Requesting State is required to keep a person 
transferred in custody and to return the person as soon as 
possible and without requiring an extradition request for 
return. Persons transferred receive credit for time spent in 
custody in the Requesting State.
    The proposed MLAT makes some express provision for immunity 
from process and prosecution for individuals appearing in the 
Requesting State in accordance with a treaty request. The Korea 
MLAT (art. 12) makes immunity mandatory. Immunity from process 
and prosecution expires if the person appearing in the 
requesting State stays beyond a designated period after the 
person is free to leave or if the person appearing voluntarily 
reenters the requesting State after leaving.
            Immobilization of assets and forfeiture
    The proposed MLAT contains a forfeiture assistance 
provision. A Requesting State is permitted to enlist the 
assistance of a Requested State to forfeit or otherwise seize 
the fruits or instrumentalities of offenses that the Requesting 
State learns are located in the Requested State. A Requested 
State, in turn, may refer information provided it about fruits 
and instrumentalities of crime to its authorities for 
appropriate action under its domestic law and report back on 
action taken by it.
    More generally, the MLATs require the parties to assist 
each other to the extent permitted by their respective laws in 
proceedings on forfeiting the fruits and instrumentalities of 
crime. The proposed MLAT provides that forfeited proceeds are 
to be disposed of under the law of the Requested State, and if 
that law permits, forfeited assets or the proceeds of their 
sale may be transferred to the Requesting State.
            Limitations on use
    To address potential misuse of information provided, MLATs 
restrict how a Requesting State may use material obtained under 
them. States at times have raised concerns that MLATs could be 
used to conduct ``fishing expeditions,'' under which a 
Requesting State could obtain information not otherwise 
accessible to it in search of activity it considers prejudicial 
to its interests. Requested States also are concerned that its 
own enforcement interests may be compromised if certain 
information provided by them is disclosed except as is 
compelled in a criminal trial. As a result, the MLAT contains a 
provision requiring information be kept confidential and 
limited in use to purposes stated in the request.
    Article 7 of the proposed MLAT allows the Requested State 
to place confidentiality and use restrictions on information 
and other material. Typically, a Requested State may require 
that information or evidence not be used in any investigation, 
prosecution, or proceeding other than that described in the 
request. Requested States also may request that information or 
evidence be kept confidential, and Requesting States are to use 
their best efforts to comply with the conditions of 
confidentiality. Nevertheless, once information or evidence has 
been made public in a Requesting State in the normal course of 
the proceeding for which it was provided, it may be used 
thereafter for any other purpose.
            Location of persons or items
    In whole or in part, MLAT requests most often require the 
Requested State to locate a person or item. The proposed MLAT 
requires the Requested State's ``best efforts'' in locating the 
person or item.

6. MLATs and defendants

    International agreements frequently confer benefits on 
individuals who are nationals of the State parties. Investment 
and immigration opportunities, tax benefits, and assistance in 
civil and commercial litigation are but some of the advantages 
an individual may enjoy under an international agreement. 
Nevertheless, it is clear that MLATs are intended to aid law 
enforcement authorities only.
    The resulting disparity between prosecution and defendant 
in access to MLAT procedures had led some to question the 
fairness and even the constitutionality of MLATs denying 
individual rights. (The constitutional provisions most 
immediately implicated by denying a defendant use of MLAT 
procedures are the fifth, sixth, and fourteenth amendments.) At 
the core of the legal objections is the belief that it is 
improper in our adversarial system of justice to deny 
defendants compulsory process and other effective procedures 
for compelling evidence abroad if those procedures are 
available to the prosecution.\12\
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    \12\ In its 1989 report on MLATs, the Criminal Justice Section of 
the American Bar Association both strongly supported MLATs and also 
recommended that ``every future MLAT should expressly permit criminal 
defendants to use the treaty to obtain evidence from the Requested 
country to use in their defense if they can make a showing of necessity 
to the trial court.'' ABA Report at 8.
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    Those opposing defendant use of MLAT procedures fear that 
States would not enter into MLATs if it meant making 
information available to criminals. Also, MLATs do not preclude 
accused persons from using letters rogatory to obtain evidence 
located in the territory of treaty partners, even though the 
non-mandatory nature of letters rogatory may result in 
difficulties in obtaining evidence quickly.
    In its response to a question for the record by Senator 
Helms on this issue the State Department stated:

          There are no legal challenges to any of our existing 
        MLATs. It is the position of the Department of Justice 
        that the MLATs are clearly and unquestionably 
        constitutional.
          In 1992, Michael Abbell, then-counsel to some members 
        of the Cali drug cartel, did suggest to the Committee 
        that MLATs should permit requests by private persons 
        such as defendants in criminal cases. To our knowledge, 
        no court has adopted the legal reasoning at the core of 
        that argument.
          The Department of Justice believes that the MLATs 
        before the Committee strike the right balance between 
        the needs of law enforcement and the interests of the 
        defense. The MLATs were intended to be law enforcement 
        tools, and were never intended to provide benefits to 
        the defense bar. It is not ``improper'' for MLATs to 
        provide assistance for prosecutors and investigators, 
        not defense counsel, any more than it would be improper 
        for the FBI to conduct investigations for prosecutors 
        and not for defendants. The Government has the job of 
        assembling evidence to prove guilt beyond a reasonable 
        doubt, so it must have the tools to do so. The defense 
        does not have the same job, and therefore does not need 
        the same tools.
          None of the MLATs before the Senate provide U.S. 
        officials with compulsory process abroad. None of the 
        treaties require the treaty partner to compel its 
        citizens to come to the United States, and none permit 
        any foreign Government to compel our citizens to go 
        abroad. Rather, the MLATs oblige each country to assist 
        the other to the extent permitted by their laws, and 
        provide a framework for that assistance. Since the 
        Government does not obtain compulsory process under 
        MLATs, there is nothing the defense is being denied.
          The MLATs do not deprive criminal defendants of any 
        rights they currently possess to seek evidence abroad 
        by letters rogatory or other means. The MLATs were 
        designed to provide solutions to problems that our 
        prosecutors encountered in getting evidence from 
        abroad. There is no reason to require that MLATs be 
        made available to defendants, since many of the 
        drawbacks encountered by prosecutors in employing 
        letters rogatory had largely to do with obtaining 
        evidence before indictment, and criminal defendants 
        never had those problems.
          Finally, it should be remembered that the defendant 
        frequently has far greater access to evidence abroad 
        than does the Government, since it is the defendant who 
        chose to utilize foreign institutions in the first 
        place. For example, the Government often needs MLATs to 
        gain access to copies of a defendant's foreign bank 
        records; in such cases, the defendant already has 
        copies of the records, or can easily obtain them simply 
        by contacting the bank.

                  IV. Entry Into Force and Termination

                          a. entry into force

    The Treaty enters into force upon exchange of instruments 
of ratification.

                             b. termination

    The Treaty will terminate six months after notice by a 
Party of an intent to terminate the Treaty.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed treaty on Wednesday, July 17, 1996. The hearing 
was chaired by Senator Helms. The Committee considered the 
proposed treaty on July 24, 1996, and ordered the proposed 
treaty favorably reported with two provisos by voice vote, with 
the recommendation that the Senate give its advice and consent 
to the ratification of the proposed treaty.

                         VI. Committee Comments

    The Committee on Foreign Relations recommended favorably 
the proposed treaty. The Committee believes that the proposed 
treaty is in the interest of the United States and urges the 
Senate to act promptly to give its advice and consent to 
ratification. In 1996 and the years ahead, U.S. law enforcement 
officers increasingly will be engaged in criminal 
investigations that traverse international borders. The 
Committee believes that attaining information and evidence (in 
a form that comports with U.S. legal standards) related to 
criminal investigations and prosecutions, including drug 
trafficking and narcotics-related money laundering, is 
essential to law enforcement efforts.
    To cite an example of how an MLAT can benefit the U.S. 
justice system, the Committee notes the response by the State 
Department to Chairman Helms' question for the record regarding 
how the U.S. had made use of the MLAT with Panama after its 
1995 ratifications:

          One recent case from the Southern District of Texas 
        serves as an example of the usefulness of the treaty in 
        the prosecution of financial crimes. In that case, the 
        Assistant U.S. Attorney urgently needed bank records 
        from Panama to verify the dates and amounts of certain 
        money transfers of the alleged fraud proceeds in order 
        to corroborate the testimony of a principal witness. 
        The U.S. requested the records only a short time before 
        they were needed in the trial, and we were pleased that 
        Panamanian authorities produced the records promptly. 
        The records were described by the prosecutor as ``the 
        crowning blow'' to arguments raised by the defense and 
        indispensable to the Government's ultimate success in 
        the trial.

    The Committee believes that MLATs should not, however, be a 
source of information that is contrary to U.S. legal 
principles. To attempt to ensure the MLATs are not misused two 
provisos have been added to the Committee's proposed resolution 
of ratification. The first proviso reaffirms that ratification 
of this treaty does not require or authorize legislation that 
is prohibited by the Constitution of the United States. 
Bilateral MLATs rely on relationships between sovereign 
countries with unique legal systems. In as much as U.S. law is 
based on the Constitution, this treaty may not require 
legislation prohibited by the Constitution.
    The second proviso--which is now legally binding in 11 
United States MLATs--requires the U.S. to deny any request from 
an MLAT partner if the information will be used to facilitate a 
felony, including the production or distribution of illegal 
drugs. This provision is intended to ensure that MLATs will 
never serve as a tool for corrupt officials in foreign 
governments to gain confidential law enforcement information 
from the United States.

                  VII. Explanation of Proposed Treaty

    The following is the Technical Analysis of the Mutual Legal 
Assistance Treaty submitted to the Committee on Foreign 
Relations by the Departments of State and Justice prior to the 
Committee hearing to consider pending MLATs.

technical analysis of the mlat between the united states of america and 
                         the republic of korea

    On November 23, 1993, the United States and the Republic of 
Korea signed the Treaty on Mutual Legal Assistance in Criminal 
Matters (``the Treaty''). In recent years, the United States 
has signed similar treaties with many other countries as part 
of a highly successful effort to modernize the legal tools 
available to law enforcement authorities in need of foreign 
evidence for use in criminal cases.
    The Treaty, which is the second mutual legal assistance 
treaty the United States has signed with an Asian country, is a 
major advance in United States efforts to gain the cooperation 
of other countries in the region in combatting organized crime.
    It is anticipated that the Treaty will be implemented 
pursuant to the mutual legal assistance legislation currently 
in force in the two Contracting Parties; no new legislation is 
needed. For the United States, the applicable procedural 
framework is Title 28, United States Code, Section 1782. Korea 
has its own mutual legal assistance law\13\ and does not 
anticipate enacting new legislation to implement the Treaty.
---------------------------------------------------------------------------
    \13\ The Republic of Korea International Criminal and Judicial 
Cooperation Act, Law No. 4343, Mar. 8, 1991 (``Korean International 
Cooperation Act'').
---------------------------------------------------------------------------
    The following technical analysis of the Treaty was prepared 
by the United States delegation that conducted the 
negotiations.

Article 1--Scope of assistance

    This article provides for assistance in all matters 
involving the investigation, prosecution and prevention of 
crime, and in proceedings related to criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in Korea, in 
addition to other legal measures taken prior to the filing of 
formal charges in either Contracting Party.\14\ The term 
``proceedings'' is intended to cover the full range of 
proceedings in a criminal case, including such matters as bail 
and sentencing hearings.\15\ It was also agreed that since the 
phrase ``proceedings related to criminal matters'' is broader 
than the investigation, prosecution or sentencing process 
itself, proceedings covered by the Treaty need not be strictly 
criminal in nature. For instance, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature but are still covered under the Treaty.\16\
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    \14\ The requirement that assistance be provided under the Treaty 
at the pre-indictment stage is critical to the United States, as our 
investigators and prosecutors often need to obtain evidence from 
foreign countries in order to determine whether or not to file criminal 
charges. This obligation is a reciprocal one; the United States must 
assist Korea under the Treaty in connection with investigations prior 
to charges being filed in Korea.
    Some United States courts have interpreted Title 18, United States 
Code, Section 1782 to require that assistance be provided in criminal 
matters only if formal charges have already been filed abroad, or are 
``imminent'' or ``very likely.'' McCarthy, ``A Proposed Unified 
Standard for U.S. Courts in Granting Requests for International 
Judicial Assistance,'' 15 Fordham Int'l L.J. 772 (1991). The better 
view is that Section 1782 does not contemplate such restrictions. 
Conway, In re ``Request for Judicial Assistance from the Federal 
Republic of Brazil; Blow to International Judicial Assistance,'' 41 
Catholic U.L. Rev. 545 (1992). The 1996 amendment to the statute 
eliminates this problem.
    In any event, the Treaty was intentionally written to cover 
criminal investigations that have just begun as well as those that are 
nearly completed; it draws no distinction between cases in which 
charges are already pending, ``imminent,'' ``very likely,'' or ``very 
likely, very soon.''
    \15\ One United States court has interpreted Title 28, United 
States Code, Section 1782 as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In re ``Letters Rogatory Issued by Director of Inspection of 
Gov't of India,'' 385 F.2d 1017 (2d Cir. 1967); Fonseca v. Blumenthal, 
620 F.2d 322 (2d Cir. 1980).
    This rule poses an unnecessary obstacle to the execution of 
requests concerning matters at the investigatory stage and matters 
customarily handled by administrative officials in the Requesting 
State. Since this paragraph specifically permits requests to be made in 
connection with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \16\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
---------------------------------------------------------------------------
    Paragraph 2 sets forth a list of the major types of 
assistance specifically considered by the negotiators. Most of 
the items listed in this paragraph are described in further 
detail in subsequent articles. The list is not intended to be 
exhaustive; this is signalled by the word ``include'' in the 
opening clause of the paragraph and is reinforced by the final 
subparagraph.
    Paragraph 3 contains a standard provision in United States 
mutual legal assistance \17\ that the Treaty is intended solely 
for government-to-government mutual legal assistance. The 
Treaty is not intended to provide to private persons a means of 
evidence-gathering or to extend to civil matters. Private 
litigants in the United States may continue to obtain evidence 
from Korea by letters rogatory, an avenue of international 
assistance that the Treaty leaves undisturbed. Similarly, the 
paragraph provides that the Treaty is not intended to create 
any right in a private person to suppress or exclude evidence 
obtained thereunder.
---------------------------------------------------------------------------
    \17\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984).
---------------------------------------------------------------------------

Article 2--Central authorities

    This article requires that each Contracting Party establish 
a ``Central Authority'' for transmission, reception and 
handling of requests. The Central Authority of the United 
States makes all requests to Korea on behalf of federal, state 
and local law enforcement authorities in the United States. The 
Korean Central Authority makes all requests originating from 
officials in Korea.
    The Central Authority of the Requesting State exercises 
discretion as to the form and content of and the number and 
priority of requests. The Central Authority of the Requested 
State is responsible for receiving each request, transmitting 
it to the appropriate federal or state agency, court or other 
authority for execution, and ensuring that a timely response is 
made.
    Paragraph 2 provides that the Attorney General acts as the 
Central Authority for the United States. The Attorney General 
has delegated the duties of Central Authority under mutual 
assistance treaties to the Assistant Attorney General in charge 
of the Criminal Division.\18\ Paragraph 2 also states that the 
Korean Minister of Justice or the persons designated by the 
Minister of Justice serves as the Central Authority for Korea.
---------------------------------------------------------------------------
    \18\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated the authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs in accordance with the regulation. 
Directive No. 58, 44 Fed. Reg. 18,661 (1979), as amended at 45 Fed. 
Reg. 6,541 (1980); 48 Fed. Reg. 54,595 (1983). That delegation 
subsequently was extended to the Deputy Directors of the Office of 
International Affairs. 59 Fed. Reg. 42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another or through the diplomatic 
channel. Our experience has demonstrated that direct 
communication between Central Authorities is essential to the 
prompt, efficient execution of requests. Our treaties therefore 
usually do not provide for transmitting requests via diplomatic 
channels. The Treaty does provide for use of diplomatic 
channels, however, because Korean mutual assistance law 
prescribes such communication as an option.\19\ During the 
negotiations, however, the delegations agreed that after the 
initial implementation of the Treaty, most communications 
regarding the Treaty will be transmitted directly between 
Central Authorities; the diplomatic channel will be reserved 
for unusual situations.
---------------------------------------------------------------------------
    \19\ See Korean International Cooperation Act Sec. 11.
---------------------------------------------------------------------------

Article 3--Limitations on assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph 1(a) permits the Requested State to deny a 
request if it relates to a political offense or an offense 
under military law that is not an offense under ordinary 
criminal law. These restrictions are similar to those found in 
other mutual legal assistance treaties. It is anticipated that 
in applying this provision, the Contracting Parties will employ 
jurisprudence similar to that used in the extradition context.
    Paragraph 1(b) is inspired by article 3(1)(d) of the United 
States-Bahamas Treaty and article 3(1)(d) of the United States-
Panama Treaty. It permits a request to be denied if the 
Requested State determines that there are substantial grounds 
for believing that granting the assistance would facilitate the 
prosecution or punishment of the person identified in the 
request on account of race, religion, nationality or political 
opinions. This provision was of special importance to Korea 
because section 6(2) of its International Cooperation Act 
permits Korean authorities to deny a request for assistance on 
these grounds.\20\ The United States understands the term ``on 
account of '' to limit the application of this provision to 
cases in which the race, religion or political opinion of the 
offender is the governing motive for the prosecution, as 
opposed to the desire to punish criminal offenses. When a 
request to the United States appears to be covered by this 
provision, the United States Central Authority will ask the 
Department of State to assist in determining whether the 
request should be denied on these bases.
---------------------------------------------------------------------------
    \20\ See Korean International Cooperation Act Sec. 6(2).
---------------------------------------------------------------------------
    Paragraph 1(c) permits the Requested State to deny a Treaty 
request if execution of the request would prejudice its 
security or similar essential interests. This includes cases in 
which assistance might involve disclosure of information that 
is classified for national security reasons. It is anticipated 
that the Department of Justice, in its role as Central 
Authority for the United States, will work closely with the 
Department of State and other government agencies to determine 
whether or not to execute requests that might fall in this 
category. All United States mutual legal assistance treaties 
contain provisions allowing the Requested State to decline to 
execute a request if execution would prejudice its essential 
interests.
    The delegations agreed that the phrase ``essential 
interests'' is limited to very serious reasons. However, it was 
agreed that these may include interests unrelated to national 
military or political security.
    This provision may be invoked if the execution of a request 
would violate essential United States interests related to the 
fundamental purposes of the Treaty. One fundamental purpose is 
to enhance law enforcement cooperation. Attaining that purpose 
would be hampered if sensitive law enforcement information 
available under the Treaty were to fall into the wrong hands. 
Therefore, the United States Central Authority may invoke 
paragraph 1(c) to decline to provide sensitive or confidential 
drug-related information pursuant to a Treaty request whenever 
it determines, after appropriate consultation with law 
enforcement, intelligence and foreign policy agencies, that a 
senior foreign government official likely to have access to the 
information is engaged in or facilitates the production or 
distribution of illegal drugs, and is using the request to the 
prejudice of a United States investigation or prosecution.\21\
---------------------------------------------------------------------------
    \21\ This is consistent with the sense of the Senate as expressed 
in its advice and consent to ratification of the mutual legal 
assistance treaties with Mexico, Canada, Belgium, Thailand, the Bahamas 
and the United Kingdom Concerning the Cayman Islands. Cong. Rec. 13,884 
(1989) (treaty citations omitted). See also Staff of Senate Comm. on 
Foreign Relations, 100th Cong., 2d Sess., Mutual Legal Assistance 
Treaty Concerning the Cayman Islands 67 (1988) (testimony of Mark M. 
Richard, Deputy Assistant Attorney General, Criminal Division, 
Department of Justice).
---------------------------------------------------------------------------
    Extradition treaties sometimes condition the surrender of 
fugitives upon a showing of ``dual criminality,'' i.e., proof 
that the facts underlying the offense charged in the Requesting 
State would also constitute an offense in the Requested State. 
Paragraph 1(d) states that the Requested State may deny a 
request for assistance under certain circumstances if the 
conduct that is the subject of the investigation, prosecution 
or proceeding in the Requesting State is not an offense under 
the laws of the Requested State. Although United States mutual 
legal assistance treaties usually do not include dual 
criminality as a basis for denying assistance, it is included 
in the Treaty because Korean mutual assistance law expressly 
authorizes Korean officials to deny assistance on this 
basis.\22\
---------------------------------------------------------------------------
    \22\ Korean International Cooperation Act Sec. 6(4).
---------------------------------------------------------------------------
    In extradition cases, dual criminality can exist even when 
the countries call the crime by different names, place the 
crime in different categories or penalize its commission by 
different punishments. The dual criminality rule ``does not 
require that the name by which the crime is described in the 
two countries shall be the same, nor that the scope of 
liability shall be co-extensive, or in other respects the same. 
* * * '' \23\ The test is whether the conduct committed in the 
Requesting State would constitute some criminal offense if 
committed in the Requested State.\24\ Thus, the dual 
criminality test permits assistance for many United States 
offenses that do not have exact statutory counterparts in 
Korea.\25\ The negotiators agreed to give a liberal 
interpretation to paragraph 1(d) in order to provide assistance 
in as many cases as possible.
---------------------------------------------------------------------------
    \23\ Collins v. Loisel, 259 U.S. 309, 312 (1922); Brauch v. Raiche, 
618 F.2d 843 (1st Cir. 1980); see also Matter of the Extradition of 
Suarez-Mason, 694 F. Supp. 676 (N.D. Cal. 1988); United States v. 
Carlos Lehder-Rivas, 668 F. Supp. 1523 (M.D. Fla. 1987).
    \24\ United States v. McCaffery, 2 All E.R. 570 (1984); Reg. v. 
Governor of Pentonville Prison, ex Parte Budlong, 1 All E.R. 701 
(1980); Shapira v. Ferrandina, 478 F.2d 894 (2d Cir. 1973).
    \25\ For example, racketeering, in violation of Title 18, United 
States Code, Section 1962, does not have a precise counterpart in Korea 
statutory law. Racketeering charges, however, always involve a pattern 
of criminal activity that includes two or more ``predicate acts'' of 
criminal behavior. The Korean delegation assured the United States 
negotiators that any Treaty request for assistance in a racketeering 
case would be granted if the predicate acts are considered criminal 
offenses in Korea. Similarly, United States laws on insider trading 
have no exact counterpart in Korean law, but the United States 
delegation was assured that assistance would be granted if the 
offender's conduct is considered fraudulent in Korea.
---------------------------------------------------------------------------
    One common problem in this area was specifically discussed 
during the negotiations: certain United States federal offenses 
call for proof of certain elements (such as use of the mails or 
interference with interstate commerce) to establish 
jurisdiction in federal courts. Foreign judges generally have 
no similar requirements in their own criminal law and on 
occasion have denied extraditions to the United States on this 
basis. This problem should not occur under paragraph 1(d) 
because it is understood that the Requested State must 
disregard elements required solely for the purpose of 
establishing federal jurisdiction \26\ and must not be misled 
by mere differences in the terminology that defines the 
offenses. It appears that most major criminal prosecutions in 
the United States would qualify for assistance under the dual 
criminality test.
---------------------------------------------------------------------------
    \26\ See United States v. Herbage, 850 F.2d 1463 (11th Cir. 1988); 
McCaffery 2 All E.R. 570.
---------------------------------------------------------------------------
    United States and Korean law differs significantly in some 
respects, however; for this reason, strict adherence to the 
dual criminality rule alone might render assistance unavailable 
to the Requesting State in some areas even though the public 
policy of the Requested State would not call for such a 
restriction. Therefore, in order to accommodate each 
Contracting Party's investigative and prosecution needs, 
paragraph 2 permits assistance to be granted without regard to 
dual criminality for 23 categories of criminal conduct listed 
in the annex to the Treaty. For crimes within these categories, 
assistance must be provided if the conduct under investigation 
constitutes an offense under the laws of the Requesting State.
    Paragraph 3, which is similar to article 3(2) of the United 
States-Switzerland Treaty, obliges the Requested State to 
consider imposing appropriate conditions on its assistance in 
lieu of denying a request outright pursuant to paragrpah 1. For 
example, a Contracting Party might request information that 
could be used either in a routine criminal case (which would 
fall within the scope of the Treaty) or in a political 
prosecution (which would be subject to refusal under the 
Treaty). This paragraph would permit the Requested State to 
provide the information on the condition that it be used only 
in the routine criminal case. Naturally, the Requested State 
would notify the Requesting State of any proposed conditions 
before delivering the evidence in question, thereby according 
the Requesting State an opportunity to decide whether it is 
willing to accept the evidence subject to the conditions. If 
the Requesting State does accept the evidence, it must comply 
with the conditions specified by the Requested State.
    Paragraph 4 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of any reason for denying or postponing 
execution of the request. This ensures that when a request is 
only partly executed, the Requested State will provide some 
explanation for not providing all of the information or 
evidence sought. This provision should prevent 
misunderstandings and enable the Requesting State to better 
prepare its requests in the future.

Article 4--Form and content of requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``urgent situations.'' A request in 
such a situation must be confirmed in writing promptly. Unless 
otherwise agreed to, the request and all documents accompanying 
the request shall be in the language of the Requested State.
    Paragraph 2 lists information deemed crucial to the 
efficient operation of the Treaty that must be included in each 
request. Paragraph 3 outlines the types of information that are 
considered important but not always crucial, which should be 
provided ``to the extent necessary.'' In keeping with the 
intention of the negotiators that requests be as simple and 
straightforward as possible, there is no requirement under the 
Treaty that a request be legalized or certified in any 
particular manner.

Article 5--Execution of requests

    Paragraph 1 requires the Requested State to undertake 
diligent efforts to execute a request promptly. The Central 
Authority of the Requested State reviews the request and 
immediately notifies the Central Authority of the Requesting 
State if the request does not comply with the Treaty's terms. 
If the request does satisfy the Treaty's requirements and the 
assistance sought can be provided by the Central Authority 
itself, the assistance is to be provided promptly. If the 
request meets the Treaty's requirement but its execution 
requires action by another entity in the Requested State, the 
Central Authority promptly transmits the request to the 
appropriate entity for execution. When the United States is the 
Requested State, the Central Authority will transmit most 
request to federal investigators, prosecutors or judicial 
officials for execution.
    Paragraph 1 authorizes and requires the federal, state or 
local authority selected by the Central Authority to take 
whatever action is necessary and within its power to execute 
the request. This provision is not intended or understood to 
authorize the use of the grand jury in the United States for 
the collection of evidence pursuant to a request from Korea. 
Rather, it is anticipated that when a request from Korea 
requires compulsory process for execution, the Department of 
Justice will ask a federal court to issue the necessary process 
under Title 28, United States Code, Section 1782, and under the 
provisions of the Treaty.\27\
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    \27\ Paragraph 1 specifically authorizes United States courts to 
use all of their powers to issue subpoenas and other process to satisfy 
requests under the Treaty.
---------------------------------------------------------------------------
    If execution of the request necessitates action by a 
judicial authority or administrative agency, the Central 
Authority of the Requested State arranges for the presentation 
of the request to that court or agency at no cost to the 
Requesting State. Since the cost of retaining counsel abroad to 
present and process letters rogatory is sometimes rather 
expensive, the provision for reciprocal legal representation in 
paragraph 2 is a significant advance in international legal 
cooperation. It is also understood that, should the Requesting 
State choose to hire private counsel in connection with a 
particular request, it is free to do so.
    Paragraph 2 states that the Central Authority of the 
Requested State shall arrange for requests from the Requesting 
State to be presented to the appropriate authority in the 
Requested State for execution. In practice, the Central 
Authority for the United States will transmit the request with 
instruction for execution to an investigative or regulatory 
agency, the office of a prosecutor, or another governmental 
entity. If execution requires the participation of a court, the 
Central Authority will select an appropriate representative, 
generally a federal prosecutor, to present the matter to a 
court. Thereafter, the prosecutor will represent the United 
States, acting to fulfill its obligations to Korea by executing 
the request. Upon receiving the court's appointment as a 
commissioner, the prosecutor/commissioner will act as the 
court's agent in fulfilling the court's responsibility to do 
``everything in its power'' to execute the request. Thus, the 
prosecutor may only seek compulsory measures after receiving 
permission from the court to do so.
    The situation with respect to Korea is different. Its 
Central Authority will transmit the request to the appropriate 
court with general advice regarding Korea's obligation under 
the Treaty and the general evidentiary and procedural 
requirements of the United States.
    Paragraph 3 provides that all requests shall be executed in 
accordance with the laws of the Requested State except to the 
extent that the Treaty specifically provides otherwise. Thus, 
the method of executing a request for assistance under the 
Treaty must be in accordance with the Requested States' 
internal laws absent specific contrary procedures in the Treaty 
itself. For the United States, the Treaty is intended to be 
self-executing; no new legislation is needed to carry out 
United States obligations under the Treaty.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when execution would interfere with an 
ongoing investigation or legal proceeding in the Requested 
State.\28\ The Central Authority of the Requested State 
determines when to apply this provision. The Central Authority 
of the Requested State may act, in its discretion, to obtain or 
preserve evidence that otherwise might be lost or compromised 
before the conclusion of the investigation or legal proceedings 
in the Requested State.
---------------------------------------------------------------------------
    \28\ See Korean International Cooperation Law Sec. 7.
---------------------------------------------------------------------------
    It is anticipated that some United States requests for 
assistance may contain information that, under our law, must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation or 
proceeding,'' as is required by article 4(2)(b) of the Treaty. 
Therefore, paragraph 5 enables the Requesting State to call 
upon the Requested State to keep the information contained in 
the request confidential.\29\ If the Requested State cannot 
execute the request without disclosing the information in 
question (as may be the case if execution requires a public 
judicial proceeding in the Requested State), or if for some 
other reason this confidentiality cannot be assured, the Treaty 
obliges the Requested State to indicate this to the Requesting 
State. This enables the Requesting State to withdraw the 
request rather than risk jeopardizing its investigation or 
proceeding by public disclosure of the information.
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    \29\ Similar provisions appear in other United States mutual legal 
assistance treaties. See, e.g., U.S.-Mexico Mutual Legal Assistance 
Treaty, Dec. 9, 1987, art. 4(5) T.I.A.S. No. --; U.S.-Canada Mutual 
Legal Assistance Treaty, Mar. 18, 1985, art. 6(5) T.I.A.S. No. --; 
U.S.-Italy Mutual Legal Assistance Treaty, Nov. 13, 1985, art. 8(2), 
T.I.A.S. No. --.
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State as to the progress of the execution of its 
requests. This language is intended to encourage open 
communication between the Central Authorities in monitoring the 
status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the reasons for this 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought cannot be located or the 
witness to be interviewed invokes a privilege under article 
8(4), the Central Authority of the Requested State reports this 
to the Central Authority of the Requesting State.

Article 6--Costs

    This article reflects the increasingly accepted practice 
that each Contracting Party bears the expenses incurred within 
its territory in executing a legal assistance treaty request. 
This is consistent with similar provisions in other United 
States mutual legal assistance treaties.\30\ Article 6 does 
oblige the Requesting State to pay fees of expert witnesses, 
translation and transcription costs, and allowances and 
expenses related to travel of persons pursuant to articles 10 
and 11.
---------------------------------------------------------------------------
    \30\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, Mar. 
18, 1985, art. 8, T.I.A.S. No. --.
---------------------------------------------------------------------------

Article 7--Limitations on use

    Paragraph 1 requires that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
Pursuant to article 4(2)(d), the Requesting State must specify 
the reason why information or evidence sought under the Treaty 
is needed.
    Paragraph 2 provides that the Requested State may request 
that the information it provides to the Requesting State be 
kept confidential. Under most United States mutual legal 
assistance treaties, conditions of confidentiality are imposed 
only when necessary and are tailored to fit the circumstances 
of each particular case. For instance, the Requested State may 
agree to cooperate with an investigation in the Requesting 
State but may choose to limit access to information that might 
endanger the safety of an informant or unduly prejudice the 
interests of persons not connected with the matter being 
investigated.
    Paragraph 2 additionally requires that if conditions of 
confidentiality are imposed, the Requesting State is required 
only to employ its ``best efforts'' to comply with them. The 
``best efforts'' language is intended to provide flexibility in 
order to avoid a breach of the Treaty whenever the Sixth 
Amendment to the United States Constitution requires that the 
defendant be provided access to evidence that was obtained 
under the Treaty subject to confidentiality restrictions. 
Moreover, the purpose of the Treaty--to produce evidence for 
use at trials--would be frustrated if the Requested State 
routinely permitted the Requesting State to see valuable 
evidence but imposed confidentiality restrictions that 
prevented its introduction at trial.
    Once evidence obtained under the Treaty has been revealed 
to the public (as envisioned by the Treaty), paragraph 3 
provides that the Requesting State is free to use the evidence 
for any purpose.
    It should be kept in mind that under article 1(4), the 
restrictions outlined in article 7 are for the benefit of the 
Contracting Parties, and the enforcement of these provisions is 
left entirely to the Contracting Parties. If a person alleges 
that a Korean authority seeks to use information or evidence 
obtained from the United States in a manner inconsistent with 
this article, the person may inform the Central Authority of 
the United States of the allegations, which are to be 
considered as a matter between the Contracting Parties.

Article 8--Taking testimony and evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
shall be compelled, if necessary, to appear and testify or 
produce documents, records or articles of evidence. The 
compulsion contemplated by this article can be accomplished by 
subpoena or by any other means available under the law of 
Requested State. Paragraph 2 requires the Requested State, upon 
request, to furnish logistical information in advance about the 
taking of testimony.
    Paragraph 3 provides that any interested parties, including 
the defendant and defense counsel in criminal cases, may be 
permitted to be present at and to pose questions during the 
taking of testimony under this article. Korean law places 
restrictions on the extent to which witnesses may be questioned 
directly by attorneys and others and leaves the extent of such 
questioning to the discretion of the judge overseeing the 
proceeding. Therefore, the Treaty provides that in the event 
that direct questioning of a witness is not possible, the 
defendant and defense counsel may submit questions for the 
judge to pose to the witness.
    Paragraph 4, read together with article 5(3), ensures that 
a person may not be compelled to furnish information if the 
person has a privilege not to do so under the law of the 
Requested State. Thus, a witness questioned in the United 
States pursuant to a request from Korea is guaranteed the right 
to invoke any of the testimonial privileges (e.g., attorney-
client, interspousal) available in proceedings in the United 
States, as well as the constitutional privilege against self-
incrimination, to the extent that the privilege is 
applicable.\31\ Of course, a witness testifying in Korea may 
raise any applicable privilege available under Korean law.
---------------------------------------------------------------------------
    \31\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 4 further requires that if a witness attempts to 
assert a privilege unique to the Requesting State, the 
authorities in the Requested State will take the desired 
evidence and turn it over to the Requesting State along with 
notification that the evidence was obtained over a claim of 
privilege. The applicability of the privilege can then be 
determined in the Requesting State, where the scope of the 
privilege and the legislative and policy reasons underlying it 
are better understood. A similar provision appears in many 
recent United States mutual legal assistance treaties.\32\
---------------------------------------------------------------------------
    \32\ See, e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 
9(2), T.I.A.S. No. --.; U.S.-Mexico Mutual Legal Assistance Treaty, 
Dec. 9, 1987, art. 7(2), T.I.A.S. No. --.
---------------------------------------------------------------------------
    Paragraph 5 provides that documents, records and articles 
of evidence produced pursuant to the Treaty may be 
authenticated in accordance with the procedures specified in 
the request. The paragraph states that if the evidence is 
certified in this manner, it is ``admissible'' in the 
Requesting State. The judicial authority presiding at the 
trial, of course, determines whether the evidence should in 
fact be admitted. The negotiators anticipated that evidentiary 
tests in addition to authentication (such as relevance and 
materiality) will have to be satisfied in each case.
    Many United States mutual legal assistance treaties specify 
that evidence produced pursuant to a request is admissible in 
the Requesting State if it is authenticated by a custodian of 
records or other qualified person who completes a 
certification, which is usually located in a specified form 
appended to the treaty.\33\ The negotiators agreed that it is 
desirable to have uniform procedures for certifying or 
authenticating evidence obtained under the Treaty. Taking into 
account the internal laws of both Contracting Parties, the 
negotiators developed three certification forms for 
establishing the authenticity of such evidence. The forms are 
appended to the diplomatic notes that were exchanged between 
the Contracting Parties on November 23, 1993. The 
authentication procedure for business records to be employed in 
United States requests is based on Title 18, United States 
Code, Section 3505.
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    \33\ See, e.g., U.S.-Thailand Mutual Legal Assistance Treaty, Mar. 
19, 1986, arts. 8, 9 & 11, T.I.A.S. No. --; U.S.-Cayman Islands Mutual 
Legal Assistance Treaty, July 3, 1986, arts. 8, 9 & 14, T.I.A.S. No. --
; U.S.-Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, 
arts. 9, 13 & 15, T.I.A.S. No. --; U.S.-Spain Mutual Legal Assistance 
Treaty, Nov. 20, 1990, arts. 8, 9 & 14, T.I.A.S. No. --; U.S.-Argentina 
Treaty, Dec. 4, 1990, arts. 8, 9 & 14, T.I.A.S. No. --.
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Article 9--Records of government agencies

    Paragraph 1 obliges each Contracting Party to furnish the 
other with copies of publicly-available records of government 
departments and agencies. The term ``government departments and 
agencies'' includes all executive, judicial and legislative 
units of the federal, state and local levels of government in 
both Contracting Parties.
    Paragraph 2 provides that the Requested State ``may'' share 
with the Requesting State copies of non-public information 
located in its government files. The obligation under this 
provision is discretionary. Moreover, the article states that 
the Requested State may only exercise its discretion to provide 
information in its files ``to the same extent and under the 
same conditions'' as it would reveal the information to its own 
law enforcement or judicial authorities. The Central Authority 
of the Requested State determines to which extent and under 
which conditions disclosure will be permitted.
    The discretionary nature of this provision was deemed 
necessary because some government files may contain information 
that would be available to domestic investigative authorities 
but would be deemed inappropriate for release to a foreign 
government. For example, assistance under the Treaty would be 
considered inappropriate when release of the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request also may be denied under this provision if disclosure 
of the information is barred by the law of the Requested State.
    The United States delegation discussed whether this article 
should serve as a basis for the exchange of information in tax 
matters. It was the intention of the United States delegation 
that the United States be able to provide assistance under the 
Treaty in tax matters and that such assistance include tax 
return information when appropriate. Therefore, the United 
States delegation was satisfied that the Treaty constitutes a 
``convention relating to the exchange of tax information'' \34\ 
for purposes of Title 26, United States Code, Section 
6103(k)(4). The United States has the discretion to provide tax 
return information to Korea under this article in appropriate 
cases.
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    \34\ 26 U.S.C. Sec. 6103(k)(4).
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    Pursuant to the November 23, 1993, exchange of diplomatic 
notes between the Contracting Parties, documents provided under 
this article may be authenticated under the provisions of the 
Hague Convention Abolishing the Requirement of Legalization for 
Foreign Public Documents,\35\ to which both the United States 
and Korea are signatories. Thus, the diplomatic notes 
accompanying the Treaty establish a procedure for 
authenticating official foreign records by certification that 
is consistent with Rule 902(3) of the Federal Rules of Evidence 
and Rule 44, Federal Rules of Civil Procedure.
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    \35\ Oct. 5, 1961, 33 U.S.T. 883, T.I.A.S. No. 10072, 527 U.N.T.S. 
189.
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    Paragraph 3, like article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible'' at 
trial. The judicial authority presiding at the trial, however, 
maintains the authority to determine whether the evidence 
should in fact be admitted. As with article 8, evidentiary 
tests other than authentication (such as relevance and 
materiality) must be established in each case. Appropriate 
forms for certifying the evidence are appended to the 
diplomatic notes exchanged on November 23, 1993.

Article 10--Testimony in the Requesting State

    This article provides that upon request, the Requested 
State shall invite witnesses who are located in its territory 
to travel to the Requesting State. An appearance in the 
Requesting State under this article is not mandatory; the 
invitation may be refused by the prospective witness. The 
Requesting State is expected to pay the expenses of such an 
appearance pursuant to article 6.

Article 11--Transfer of persons in custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, a foreign country involved has been willing and able 
to ``lend'' the witness to the United States, provided the 
witness would be carefully guarded while in the United States 
and would be returned at the conclusion of the testimony. On 
occasion, the Justice Department has arranged for consenting 
federal inmates in the United States to be transported to 
foreign countries to assist in their criminal proceedings.\36\ 
This article provides an express legal basis for cooperation in 
these matters. The provision is based on article 26 of the 
United States-Switzerland Treaty, which in turn is based on 
article 11 of the European Convention on Mutual Assistance in 
Criminal Matters.
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    \36\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for the transfer of four federal prisoners to the United 
Kingdom to testify for the Crown in the case of Regina v. Dye, 
Williamson, Ells, Davies, Murphy and Millard, a major narcotics 
prosecution in ``the Old Bailey'' (Central Criminal Court) in London.
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    There have been recent situations in which a defendant in 
custody in the United States has demanded permission to travel 
to another country to be present at a deposition to be taken 
there in connection with the defendant's criminal case.\37\ 
Paragraph 2 addresses this situation.
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    \37\ See, e.g., United States v. King, 552 F.2d 833 (9th Cir. 1976) 
(defendants insisted on traveling to Japan to be present at deposition 
of certain witnesses in prison).
---------------------------------------------------------------------------
    Paragraph 3 provides express authority for the receiving 
State to maintain the person in custody while in the receiving 
State unless the sending State specifically authorizes release 
of the person. The paragraph also authorizes the receiving 
State to return the person in custody to the sending State as 
soon as circumstances permit, or as otherwise agreed to. The 
transfer of a person in custody under this article requires the 
consent of the person and of the Contracting Parties. The 
provision does not require that the person consent to being 
returned to the sending State.
    It is inappropriate for the receiving State to hold the 
person transferred and require receipt of an extradition 
request in order to return the person transferred to the 
sending State. The paragraph contemplates that extradition 
proceedings are not required before the status quo is restored 
by the return of the person transferred. The person is to 
receive credit for time served while in the custody of the 
receiving State.

Article 12--Safe conduct

    This article, like article 27 of the United States-
Switzerland Treaty, provides that a person who is in the 
Requesting State for testifying or for confrontation purposes 
pursuant to a request under articles 10 or 11 shall be immune 
from criminal prosecution, detention or any restriction on 
personal liberty, or service of process in a civil suit while 
present in the Requesting State. This ``safe conduct'' is 
limited to events arising from acts or convictions that 
preceded the person's departure from the Requested State. This 
provision does not inhibit the prosecution of a person for 
perjury or other crimes committed while in the Requesting 
State.
    Paragraph 2 states that the safe conduct guaranteed expires 
15 days after the Requested State has been officially notified 
and the person's presence is no longer required, or if the 
person leaves the Requesting State and voluntarily returns to 
it thereafter.

Article 13--Location or identification of persons or items

    This article, a standard provision in all United States 
mutual legal assistance treaties, provides for the 
ascertainment of the location or identity of persons (such as 
witnesses, potential defendants or experts) or items believed 
to be in the Requested State. This information must be sought 
in connection with an investigation or proceeding covered by 
the Treaty. The Treaty requires only that the Requested State 
employ its ``best efforts'' to locate the persons or items 
sought by the Requesting State.
    The obligation to locate persons or items is limited to 
persons or items that are or may be located in the territory of 
the Requested State. Thus, the United States is not obliged to 
attempt to find persons or items that might be in third 
countries. In all cases, the Requesting State is expected to 
supply all available information about the last known location 
of any person or item sought.

Article 14--Service of documents

    This article creates an obligation for the Requested State 
to employ its ``best efforts'' to effect the service of 
summonses, complaints, subpoenas and other legal documents on 
behalf of the Requesting State.
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Korea to follow a different 
specified procedure for service) or by the United States 
Marshals Service when personal service is requested.
    Paragraph 2 requires that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents must be received by the Central Authority of the 
Requested State not later than 30 days before the date set for 
any such appearance. The negotiators agreed that this 30-day 
advance notice would be appropriate in most cases, but they 
left open the possibility for the Central Authorities to agree 
to permit service with less advance notice.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State.

Article 15--Search and seizure

    It is sometimes in the interests of justice for one country 
to ask another to search for, secure, and deliver articles or 
objects needed as evidence or for other purposes. United States 
courts can and do execute such requests under Title 28, United 
States Code, Section 1782. \38\
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    \38\ See, e.g., United States ex rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No. 84-67-Misc.-018 (M.D. 
Fla., Orlando Div.).
---------------------------------------------------------------------------
    This article creates a formal framework for handing such 
requests. The article requires that the request include 
``information justifying such action under the laws of the 
Requested State.'' Accordingly, a Korean request to the United 
States must be supported by a showing of probable cause for the 
search and seizure. A United States request to Korea must 
satisfy the corresponding evidentiary standard for a search and 
seizure in Korea. It is contemplated that the search and 
seizure will be carried out in strict accordance with the law 
of the Requested State.
    Paragraph 2 is designed to ensure that a record is kept of 
the chain of custody of articles seized pursuant to the Treaty. 
This provision effectively requires that the Requested State 
keep detailed and reliable records regarding the condition of 
the article at the time of seizure and the chain of custody 
between seizure and delivery to the Requesting State. Paragraph 
2 also provides that the certification is admissible without 
the need for additional authentication at trial in the 
Requesting State, thereby relieving the Requested State of the 
burden and expense of sending its law enforcement officers to 
the Requesting State to testify as to authentication and chain 
of custody. The injunction that the certificates be admissible 
without additional authentication does not preclude the trier 
of fact from finding evidence inadmissable, despite the 
presence of a certificate, for some other reasons besides a 
defect in authenticity or the chain of custody.
    Paragraph 3 states that the Requested State need not 
surrender any articles it has seized unless it is satisfied 
that any interests of third parties in the seized items are 
adequately protected. This permits the Requested State to 
insist, for example, that the Requesting State promise to 
return the article to the Requested State at the conclusion of 
the proceeding in the Requesting State. This article is similar 
to provisions in many United States extradition treaties. \39\
---------------------------------------------------------------------------
    \39\ See, e.g., U.S.-United Kingdom Extradition Treaty, June 8, 
1972, art. 13, 28 U.S.T. 227, T.I.A.S. No. 8468, 1049 U.N.T.S. 167; 
U.S.-Canada Extradition Treaty, Dec. 3, 1971, art. 15, 27 U.S.T. 983, 
T.I.A.S. No. 8237; U.S.-Japan Extradition Treaty, Mar. 3, 1978, art. 
13, 31, U.S.T. 892, T.I.A.S. No. 9625, 1203 U.N.T.S. 225; U.S.-Mexico 
Extradition Treaty, May 4, 1978, art. 19, 31 U.S.T. 5059, T.I.A.S. No. 
9656.
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Article 16--Return of items

    This article requires that any documents, records or 
articles of evidence furnished under the Treaty be returned to 
the Requested State as soon as possible if the Requested State 
requests their return. It is anticipated that unless original 
records or articles of some intrinisic value are provided, the 
Requested State routinely will waive its right to their return.

Article 17--Assistance in forfeiture proceedings

    A major goal of the Treaty is to enhance the effectiveness 
of the Contracting Parties in combatting narcotics trafficking. 
One significant strategy involves the efforts of United States 
authorities in seizing and confiscating money, property and 
other proceeds of drug trafficking.
    This article is similar to article 17 of the United States-
Canada Treaty and article 15 of the United States-Thailand 
Treaty. Paragraph 1 authorizes the Central Authority of each 
Contracting Party to notify the other Central Authority of the 
existence in the latter's territory of proceeds of serious 
offenses such as drug trafficking. The term ``fruits or 
instrumentalities'' is intended to include items such as money, 
vessels or other valuables that either were used in the 
commission of the crime or were purchased or obtained as a 
result of the crime.
    Upon receipt of notification under this article, the 
Central Authority of the Contracting Party in which the fruits 
of instrumentalities are located may take whatever action is 
considered appropriate under its law. For instance, if the 
assets in question are located in the United States and were 
obtained as a result of a fraud in Korea, the assets may be 
seized in aid of a prosecution under Title 18, United States 
Code, Section 2314,\40\ or may be subject to a temporary 
restraining order in anticipation of a civil action for the 
return of the assets to the lawful owner.
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    \40\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad. 18 U.S.C. Sec. 2314.
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, the 
negotiators contemplated that the Contracting Parties will be 
especially willing to help one another pursuant to article 17. 
Title 18, United States Code, Section 981(a)(1)(B) allows for 
the forfeiture to the United States of property

        which represents the proceeds of an offense against a 
        foreign nation involving the manufacture, importation, 
        sale, or distribution of a controlled substance (as 
        such term is defined for the purposes of the Controlled 
        Substance Act) within whose jurisdiction such offense 
        or activity would be punishable by death or 
        imprisonment for a term exceeding one year if such act 
        or activity had occurred within the jurisdiction of the 
        United States.\41\
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    \41\ E.g., 18 U.S.C. Sec. 981(a)(1)(B).

It is anticipated that Korea's assistance in forfeiture actions 
pursuant to article 17 will enable this legislation to be even 
more effectively implemented. Title 18, United States Code, 
Section 981(a)(1)(B) is consistent with laws in other 
countries, such as Switzerland and Canada. There is a growing 
trend among nations toward legislation of this kind in the 
battle against narcotics trafficking.\42\
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    \42\ For example, article 3 of the United Nations Draft Convention 
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 
calls for the signatory nations to enact broad legislation to forfeit 
illicit drug proceeds and to assist one another in such matters. A 
Report on the Status of the Draft, the U.S. Negotiating Position, and 
Issues for the Senate, S. Rpt. No. 100-64, 100th Cong., 1st Sess. 6-11, 
25-26 (1987).
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    Paragraph 2 states that the Contracting Parties shall aid 
one another in proceedings relating to the forfeiture of the 
fruits or instrumentalities of offenses. It specifically 
recognizes that authorities in the Requested State may take 
immediate action to restrain temporarily the disposition of 
assets pending further proceedings. Thus, if the law of the 
Requested State enables it to seize assets in aid of a 
proceeding in the Requesting State or to enforce judgement of 
forfeiture levied in the Requesting State, the Treaty 
encourages the Requested State to do so. The language of this 
article was carefully selected, however, so as not to require 
either Contracting Party to take any action that would exceed 
its internal legal authority. It does not mandate the 
institution of forfeiture proceedings or the initiation of 
temporary restraints by either Contracting Party against 
property identified by the other if the prosecuting authorities 
do not deem it appropriate to do so.\43\
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    \43\ Unlike United States law, Korean law does not allow for 
forfeiture in civil cases. However, Korean law does permit forfeiture 
in criminal cases. Accordingly, a defendant must be convicted in order 
for Korea to confiscate property.
---------------------------------------------------------------------------
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in the law enforcement 
activity that led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country and be agreed to by the Secretary of State.\44\ 
Article 17, which is consistent with this framework, enables 
either Contracting Party to transfer forfeited assets or the 
proceeds of the sale of such assets to the other to the extent 
permitted by its laws.
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    \44\ 18 U.S.C. Sec. 981(i)(1).
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Article 18--Compatibility with other treaties, agreements or 
        arrangements

    This article states that assistance and procedures provided 
for by the Treaty shall not prevent assistance under any other 
international convention or agreement between the Contracting 
Parties. It also provides that the Treaty shall not be deemed 
to prevent recourse to any other assistance available under the 
internal laws of either Contracting Party. Thus, the Treaty 
leaves the provisions of United States and Korean law regarding 
letters rogatory undisturbed and does not alter any pre-
existing agreements concerning investigative assistance, such 
as the Protocol Amending the Single Convention on Narcotic 
Drugs, 1961.\45\
---------------------------------------------------------------------------
    \45\ Mar. 25, 1972, 26 U.S.T. 1439, T.I.A.S. No. 8118.
---------------------------------------------------------------------------

Article 19--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article calls upon the 
Contracting Parties to share those ideas with one another and 
encourages them to agree on the implementation of such 
measures. Practical measures of this kind might include methods 
of keeping each other informed of the progress of 
investigations and cases in which Treaty assistance was 
utilized, and the use of the Treaty to obtain evidence that 
might otherwise be sought via methods less acceptable to the 
Requested State. Very similar provisions are contained in 
recent United States mutual legal assistance treaties.\46\
---------------------------------------------------------------------------
    \46\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, Mar. 
18, 1985, T.I.A.S. No. --; U.S.-Cayman Islands Mutual Legal Assistance 
Treaty, July 3, 1986, T.I.A.S. No. --; U.S.-Argentina Mutual Legal 
Assistance Treaty, Dec. 4, 1990, T.I.A.S. No. --.
---------------------------------------------------------------------------

Article 20--Ratification, entry into force, and termination

    Paragraphs 1 and 2 and standard treaty provisions that set 
forth the procedures for the ratification, exchange of 
instruments of ratification and entry into force of the Treaty.
    Paragraph 3 states that the Treaty shall apply to requests 
presented pursuant to it even if the relevant acts or omissions 
occurred before the date on which the Treaty enters into force. 
Provisions of this kind are common in law enforcement 
agreements, and similar provisions are found in most United 
States extradition treaties.
    Paragraph 4 contains a standard provision for termination 
of the Treaty. A Contracting Party must give three months 
notice of its intent to terminate the Treaty.

              VIII. Text of the Resolution of Ratification

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of The Treaty Between the United States of America 
and the Republic of Korea on Mutual Legal Assistance in 
Criminal Matters, signed at Washington on November 23, 1993, 
together with a Related Exchange of Notes signed on the same 
date. The Senate's advice and consent is subject to the 
following two provisos, which shall not be included in the 
instrument of ratification to be signed by the President:

          Nothing in the Treaty requires or authorizes 
        legislation or other action by the United States of 
        America that is prohibited by the Constitution of the 
        United States as interpreted by the United States.
          Pursuant to the rights of the United States under 
        this Treaty to deny requests which prejudice its 
        essential public policy or interest, the United States 
        shall deny a request for assistance when the Central 
        Authority, after consultation with all appropriate 
        intelligence, anti-narcotic, and foreign policy 
        agencies, has specific information that a senior 
        government official who will have access to information 
        to be provided under this Treaty is engaged in a 
        felony, including the facilitation of the production or 
        distribution of illegal drugs.