[Senate Executive Report 114-14]
[From the U.S. Government Publishing Office]
114th Congress } { Exec. Rept.
SENATE
2nd Session } { 114-14
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MUTUAL LEGAL ASSISTANCE TREATY WITH THE HASHEMITE KINGDOM OF JORDAN
_______
September 13, 2016.--Ordered to be printed
_______
Mr. Corker, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 114-4]
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 Hashemite Kingdom of Jordan
on Mutual Legal Assistance in Criminal Matters, signed at
Washington on October 1, 2013 (Treaty Doc. 114-4), 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.................................................5
V. Implementing Legislation.........................................5
VI. Committee Action.................................................5
VII. Committee Recommendation and Comments............................5
VIII.Text of Resolution of Advice and Consent to Ratification.........6
I. Purpose
The Treaty between the Government of the United States of
America and the Government of the Hashemite Kingdom of Jordan
on Mutual Legal Assistance in Criminal Matters (the ``MLAT with
Jordan'' 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 Government of the United States
and the Government of the Hashemite Kingdom of Jordan 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 U.S. 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.
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\1\1AA subpoena duces tecum is a specific form of subpoena, also
called a ``subpoena for the production of evidence.'' It is a subpoena
issued by a court ordering the parties named to appear and to produce
tangible evidence for use at a hearing or trial.
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The Jordanian MLAT is the first such treaty between the
United States and the Hashemite Kingdom of Jordan, 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-
4. What follows is a brief summary of some key provisions.
III. Major Provisions
As with most MLATs, the MLAT with Jordan generally
obligates the parties to assist each other in criminal
investigations, prosecutions, and related law enforcement
proceedings, as well as civil or administrative proceedings
such as forfeiture proceedings that may be related to criminal
matters. Article 1(2) provides a non-exhaustive list of
assistance to be rendered by each Party, which includes the
taking of evidence, such as testimony, documents, records and
items or things, on a requesting Party's behalf by way of
judicial process; executing searches and seizures; effecting
service of judicial documents; sharing certain obtained
information or evidence with a requesting State; freezing and
forfeiting assets or property; permitting the temporary
transfer of persons in custody to the requesting Party; and
other agreed-upon forms of assistance.
Article 1(3) provides that, with the exception of where it
is specifically required by the laws of the Requested State,
``dual criminality'' is not a prerequisite for assistance under
the Treaty.
Article 3 sets forth a short 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)(b) permitting the denial of a request
when it would prejudice the requested State's sovereignty,
security, public order, or other essential interest. In
accordance with Article 3(3), a request for assistance under
the MLAT with Jordan may be refused when it relates to an
offense punishable by a deprivation of liberty for less than
one year or does not give rise to a significant material loss
compared to the resources deemed required to provide the
assistance.
Article 4 prescribes the form and contents of requests
under the Treaty. Article 5 generally obligates both Parties'
competent authorities to promptly execute requests; and to
promptly inform the competent authority of the requesting state
of the outcome of the execution of a 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, unless it is a
case where extraordinary expenses arise, in which event the
Parties will consult with each other to determine which Party
should pay the cost. This allocation of costs is common in
MLATs to which the United States is a Party.
Article 7 sets forth limitations on the usage or disclosure
of information acquired pursuant to MLAT requests. The Central
Authority of the requested State may ask that the requesting
party refrain from using or disclosing information or evidence
acquired under the MLAT for purposes other than the proceedings
stated in the request; if such a request is made, compliance
with the request is mandatory. However, nothing in Article 7
precludes, to the extent required under the constitution of the
requesting party, the disclosure or use of information or
evidence in a criminal proceeding.
Articles 8-16 set forth in detail the procedures to be
employed in the case of specific types of requests for legal
assistance. In Article 10, the Central Authority of the
requesting Party may, at its discretion, determine that a
person whose appearance within its territory is requested shall
not be subject to service of process, detention, or other
restriction of liberty on account of acts or convictions
preceding the person's departure from the requested Party. This
safe conduct ceases 15 days after the requesting Party notifies
the requested Party that the person's presence is no longer
required or if the person leaves the requesting Party and
voluntarily returns afterwards. The Central Authority of the
requesting Party may extend the period an additional 7 days
beyond the initial 15-day limit.
Article 11 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. The Jordan MLAT provides the same safe
conduct requirements in Article 10 for temporarily transferred
prisoners under Article 11.
Article 13 provides that the requested Party shall use its
best efforts to effect service of any document relevant to a
request under the MLAT. The requesting Party must transmit any
request for the service of a document requiring the appearance
of a person before an authority in the requesting Party within
a reasonable period before the scheduled appearance. The
requested Party is to return proof of service in a manner
mutually agreed by the parties, and if it fails to effect
service, must provide a prompt explanation.
Article 14 requires the requested Party to execute a
request for the search, seizure, and transfer of any item to
the requesting Party if the request includes information
justifying such action under the laws of the requested Party
and the request is executed in accordance with the requested
Party's laws. A search warrant issued by a U.S. court to
execute a request pursuant to the MLAT would require a showing
of probable cause, in accordance with the Fourth Amendment.
Article 14(2) makes provision for maintaining a chain of
custody for seized evidence, certification of relevant
officials removing the need for further authentication.
Article 16 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, whether directly or indirectly; are
instrumentalities or intended to be used in the commission of a
crime; or is equivalent in value to such property. The
requirement to provide assistance arises with respect to both
criminal conviction-based forfeitures and non-criminal
forfeitures and other restraints of assets premised on
underlying criminal conduct.
IV. Entry Into Force
In accordance with Article 18, this Treaty shall enter into
force upon the exchange of instruments of ratification between
the Government of the United States and the Government of the
Hashemite Kingdom of Jordan. Either party may terminate by
means of a written notice communicated through diplomatic
channels, with termination taking effect six months thereafter.
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. On June 23, 2016, the committee
considered this treaty and ordered it favorably reported by
voice vote, with a quorum present and without objection.
VII. Committee Recommendation and Comments
The Committee on Foreign Relations believes that the MLAT
with the Hashemite Kingdom of Jordan, which would enhance law
enforcement cooperation between the United States and Jordan,
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 in its resolution of advice and
consent one declaration, which is discussed below.
Declaration
The committee has included a proposed declaration in the
resolution of advice and consent, which states that the MLAT
with the Hashemite Kingdom of Jordan 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\2\ and with the historical practice of the committee
in approving mutual legal assistance treaties.\3\ The Senate
has rarely included statements regarding the self-executing
nature of treaties in resolutions of advice and consent, but in
light of the recent Supreme Court decision, Medellin v. Texas,
128 S.Ct. 1346 (2008), the committee has determined that a
clear statement in the resolution is warranted. A further
discussion of the committee's views on this matter can be found
in Section VIII of Executive Report 110-12.
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\2\Treaty Doc. 114-4, letter from the Secretary of State to the
President (stating that ``The [MLAT with Jordan] is self-executing and
will not require further implementing legislation.'').
\3\The committee has consistently expressed the view that mutual
legal assistance treaties are self-executing. See, e.g., Exec. Rept.
107-15 at p. 6 (stating that ``[i]it is anticipated that, for the
United States, the [Mutual Legal Assistance Treaty with Belize] will be
``self-executing.''); and Exec. Rept. 109-14 at p. 6 (stating that
``[t]he committee notes that the provisions of the [Mutual Legal
Assistance Treaties with Germany and Japan] are self-executing.'').
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VIII. 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 Government of the United States of America
and the Government of the Hashemite Kingdom of Jordan, signed
at Washington on October 1, 2013 (Treaty Doc. 114-4), 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]