[Senate Executive Report 114-12] [From the U.S. Government Publishing Office] 114th Congress } { Exec. Rept. SENATE 2nd Session } { 114-12 ======================================================================= MUTUAL LEGAL ASSISTANCE TREATY WITH THE PEOPLE'S DEMOCRATIC REPUBLIC OF ALGERIA _______ September 13, 2016.--Ordered to be printed _______ Mr. Corker, from the Committee on Foreign Relations, submitted the following REPORT [To accompany Treaty Doc. 114-3] The Committee on Foreign Relations, to which was referred the Treaty between the Government of the United States of America and the Government of the People's Democratic Republic of Algeria on Mutual Legal Assistance in Criminal Matters, signed at Algiers on April 10, 2010 (Treaty Doc. 114-3), having considered the same, reports favorably thereon with one declaration, as indicated in the resolution of advice and consent, and recommends that the Senate give its advice and consent to ratification thereof, as set forth in this report and the accompanying resolution of advice and consent. CONTENTS Page I. Purpose..........................................................1 II. Background.......................................................2 III. Major Provisions.................................................3 IV. Entry Into Force.................................................4 V. Implementing Legislation.........................................4 VI. Committee Action.................................................4 VII. Committee Recommendation and Comments............................5 VIII.Text of Resolution of Advice and Consent to Ratification.........5 I. Purpose The Treaty between the United States of America and Algeria on Mutual Legal Assistance in Criminal Matters (the ``MLAT with Algeria'' or ``Treaty'') is one of a series of modern mutual legal assistance treaties that have been negotiated by the United States and is designed to provide a formal basis for mutual cooperation between the United States and Algeria on law enforcement matters so as to enhance the ability of the United States to investigate and prosecute crimes. II. Background In order for the United States to successfully prosecute criminal activity that is transnational in scope, it is often necessary to obtain evidence or testimony from a witness in another country. While U.S. federal courts may issue subpoenas to U.S. nationals overseas, they lack the authority to subpoena foreign nationals found in other countries or the authority to subpoena evidence in a foreign country. In addition, effectuating service of a subpoena to U.S. persons abroad may prove difficult. In the absence of an applicable international agreement, the customary method for obtaining evidence or testimony in another country is via a ``letter rogatory'' which tends to be an unreliable and time-consuming process. The term ``letter rogatory'' is generally used to refer to a formal communication in writing that is sent by a court in which an action is pending to a court in a foreign country, requesting that certain evidence or the testimony of a person within the latter's jurisdiction be formally obtained for use in the requesting court's pending action. The State Department advises that the letter-rogatory process can often take a year or more and, unless undertaken pursuant to an international agreement, compliance is a matter of judicial discretion. Furthermore, the scope of foreign judicial assistance might also be limited by domestic information-sharing laws, such as bank and business secrecy laws, or be confined to evidence relating to pending cases rather than preliminary, administrative, or grand jury investigations conducted prior to the filing of formal charges. Execution of letters rogatory is usually carried out under the judicial norms of the responding country. However, responding country norms may be insufficiently compatible with U.S. law such that the resulting evidence is rendered inadmissible in a U.S. court. Mutual Legal Assistance Treaties (``MLATs'') are designed to overcome these and similar problems. MLATs are international agreements that establish a formal, streamlined process by which governments may gather information and evidence in other countries for use in criminal investigations and prosecutions. The United States is currently a party to several dozen MLATs. While the specific provisions of MLATs vary, they generally obligate treaty partners to take steps on behalf of a requesting treaty partner when certain conditions are met. MLATs typically contain provisions concerning the sharing of collected information between parties, the location and identification of persons and potential witnesses within the parties' territories, the taking of depositions and witness testimony, and the serving of subpoenas duces tecum on behalf of a requesting treaty party.\1\ Such provisions provide for the easier acquisition of evidence and testimony than via letters rogatory and do so in a manner designed to be compatible with the admissibility requirements of the requesting State's courts. MLATs also typically contain provisions concerning the allocation of costs between parties, the form and content of requests for legal assistance, the designation of national law enforcement agencies or officials responsible for treaty administration, and the grounds for which a treaty party may refuse to provide legal assistance. Increasingly, MLATs have been used as a tool to combat terrorism. --------------------------------------------------------------------------- \1\A subpoena duces tecum is a specific form of subpoena, also called a ``subpoena for the production of evidence.'' It is a subpoena issued by a court ordering the parties named to appear and to produce tangible evidence for use at a hearing or trial. --------------------------------------------------------------------------- The Algeria MLAT is the first such treaty between the United States and Algeria and covers any matter within the jurisdiction of the parties' judicial authorities. In the absence of this Treaty, there is no obligation to provide assistance to the United States and thus this Treaty would substantially enhance the ability of the United States to investigate and prosecute crimes for which such assistance is necessary. A detailed paragraph-by-paragraph analysis of this treaty may be found in the Letter of Submittal from the Secretary of State to the President on this instrument, which is reprinted in full in Treaty Document 114-3. What follows is a brief summary of some key provisions. III. Major Provisions As with most MLATs, the MLAT with Algeria generally obligates the parties to assist each other in criminal investigations, prosecutions, and related law enforcement proceedings, as well as civil or administrative proceedings such as forfeiture proceedings that may be related to criminal matters. Article 1(2) provides a non-exhaustive list of assistance to be rendered by each Party, which includes the taking of evidence, such as testimony, documents, records and items or things, on a requesting party's behalf by way of judicial process; executing requests for searches and seizures; effecting service of judicial documents; sharing certain obtained information or evidence with a requesting State; freezing, forfeiting and recovery of assets or property; permitting the temporary transfer of persons in custody to the requesting party; and other agreed-upon forms of assistance. Article 3 sets forth a list of circumstances under which a requested State may deny legal assistance to the requesting State. Some of the grounds listed are commonly found in MLATs to which the United States is a party, such as the ground in Article 3(1)(c) permitting the denial of a request when it would prejudice the requested State's sovereignty, security, public order, or other essential interest; and the military offense exception in Article 3(1)(a). Although the United States generally does not impose a ``dual criminality'' requirement upon mutual legal assistance requests, Article 3(1)(d) of the Algeria Treaty includes a provision stating that if the Requested state determines that the conduct that is the subject of the request is not a crime in the Requested State and execution of the request would require a court warrant or other compulsory measure as grounds for denial of a request. Before denying assistance under the provisions of Article 3, the Requested Party is obligated to consult with the Requesting Party to consider whether assistance can be given subject to such conditions as the Requested Party may deem necessary. Article 4 prescribes the form and contents of requests under the Treaty. Article 5 generally obligates both Parties' Central Authority (as designated under Article 2) to do everything in their power to execute requests and to respond to reasonable requests by the Central Authority on the progress towards execution of the request. Article 6, which addresses the allocation of costs associated with providing assistance, provides that the requested State must pay all costs relating to the execution of a request, with certain exceptions. Under the Algeria Treaty, these costs include fees of experts and witnesses, the costs of translation, interpretation, and transcription, the costs of utilizing video conferencing, and certain travel expenses. This allocation of costs is common in MLATs to which the United States is a party. Article 7 governs confidentiality and use of the information. The Central Authority of the Requesting Party shall use its best efforts to keep confidential such information provided subject to conditions specified by the Requested Party. Articles 8-16 set forth in detail the procedures to be employed in the case of specific types of requests for legal assistance. Articles 8,9, 10, and 11 govern the control and collection of evidence, such as documents and records and the taking of testimony. Article 11 provides for safe conduct of a person voluntarily appearing in the requesting State. Such person shall not be subject to prosecution, detention or any restriction of personal freedom for conduct that preceded entry into the territory. This guarantee of safe conduct only lasts fifteen days after the person is informed his presence is no longer required. Article 12 provides that, in the case of a transfer of someone in custody, the receiving party has the authority and obligation to keep the transferred person in custody, unless permitted by the sending party to do otherwise. Further, it must return the person back to the custody of the sending party as soon as circumstances permit, unless otherwise agreed between the parties. Article 18 requires the requested State to assist the requesting State with measures to freeze or cause the forfeiture of assets that constitute or are derived from proceeds of a crime or are instrumentalities or intended to be used in the commission of a crime. Article 20 provides for consultations to promote the most effective use and application of the Treaty. IV. Entry Into Force In accordance with Article 22, this Treaty shall enter into force upon the exchange of instruments of ratification between the United States and Algeria. Once in force, however, the Treaty shall apply to all requests presented after the date of entry into force and the Algeria Treaty continues to cover requests made prior to the date of termination.\2\ --------------------------------------------------------------------------- \2\See Articles 22(2) and 23(4). --------------------------------------------------------------------------- V. Implementing Legislation This treaty, which is self-executing, will be implemented by the United States in conjunction with applicable federal statutes, including 18 U.S.C. Sec. 1782. No additional legislation is needed for the United States to fulfill its obligations under this Treaty. VI. Committee Action The Committee reviewed the Treaty at a briefing on May 23, 2016, at which representatives of the Departments of State and Justice were present. The Committee considered the Treaty on June 23, 2016 and ordered it favorably reported by voice vote, with the recommendation that the Senate give its advice and consent to the ratification of the Treaty subject to the declaration set forth in the resolution of advice and consent to ratification. VII. Committee Recommendation and Comments The Committee on Foreign Relations believes that the MLAT with Algeria, which would enhance law enforcement cooperation between the United States and Algeria, would further U.S. efforts in fighting terrorism and transnational crime. Accordingly, the committee urges the Senate to act promptly to give advice and consent to ratification of this Treaty, as set forth in this report and the accompanying resolution of advice and consent. The committee has included a proposed declaration in the resolution of advice and consent, which states that the MLAT with Algeria is self-executing. This declaration is consistent with statements made in the Letter of Submittal from the Secretary of State to the President on this instrument\3\ and with the historical practice of the committee in approving mutual legal assistance treaties.\4\ The Senate continues to include statements regarding the self-executing nature of treaties in resolutions of advice and consent in light of the Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346 (2008). The committee continues to believe that a clear statement in the resolution is warranted. A further discussion of the committee's views on this matter can be found in Section VIII of Executive Report 110-12. --------------------------------------------------------------------------- \3\Treaty Doc. 114-3 at p. V (stating that ``The [MLAT with Algeria] is self-executing. It will not require further implementing legislation.''). \4\The committee has consistently expressed the view that mutual legal assistance treaties are self-executing. See, e.g., Exec. Rept. 107-15 at p. 6 (stating that ``[i]it is anticipated that, for the United States, the [Mutual Legal Assistance Treaty with Belize] will be ``self-executing.''); and Exec. Rept. 109-14 at p. 6 (stating that ``[t]he committee notes that the provisions of the [Mutual Legal Assistance Treaties with Germany and Japan] are self-executing.''). --------------------------------------------------------------------------- VIII. Text of the Resolution of Advice and Consent to Ratification Resolved (two-thirds of the Senators present concurring therein), SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION. The Senate advises and consents to the ratification of the Treaty Between the United States of America and the People's Democratic Republic of Algeria on Mutual Legal Assistance in Criminal Matters, signed at Washington on February 20, 2015 (Treaty Doc. 114-11), subject to the declaration of section 2. SEC. 2. DECLARATION. The advice and consent of the Senate under section 1 is subject to the following declaration: The Treaty is self-executing. [all]