[DOCID: f:er024.106]
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106th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      106-24

======================================================================



 
MUTUAL LEGAL ASSISTANCE TREATIES WITH CYPRUS, EGYPT, FRANCE, GREECE, 
  NIGERIA, ROMANIA, SOUTH AFRICA, UKRAINE AND THE INTER-AMERICAN 
  CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS WITH RELATED 
  PROTOCOL

                                _______
                                

October 4 (legislative day, September 22), 2000.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

[To accompany Treaty Docs. 106-35; 106-19; 106-17; 106-18; 102-26; 106-
                    20; 106-36; 106-16; and 105-25]

    The Committee on Foreign Relations, to which were referred 
the Treaty Between the Government of the United States of 
America and the Government of the Republic of Cyprus on Mutual 
Legal Assistance in Criminal Matters, signed at Nicosia on 
December 20, 1999 (Treaty Doc. 106-35); the Treaty Between the 
Government of the United States of America and the Government 
of the Arab Republic of Egypt on Mutual Legal Assistance in 
Criminal Matters, signed at Cairo on May 3, 1998, and a related 
Exchange of Diplomatic Notes (Treaty Doc. 106-19); the Treaty 
Between the Government of the United States of America and the 
Government of France on Mutual Legal Assistance in Criminal 
Matters, signed at Paris on December 10, 1998 (Treaty Doc. 106-
17); the Treaty Between the Government of the United States of 
America and the Government of the Hellenic Republic on Mutual 
Legal Assistance in Criminal Matters, signed at Washington on 
May 25, 1999 (Treaty Doc. 106-18); the Treaty Between the 
Government of the United States of America and the Federal 
Republic of Nigeria on Mutual Legal Assistance in Criminal 
Matters, signed at Washington on September 13, 1989 (Treaty 
Doc. 102-26); the Treaty Between the Government of the United 
States of America and the Government of Romania on Mutual Legal 
Assistance in Criminal Matters, signed at Washington on May 26, 
1999 (Treaty Doc. 106-20); the Treaty Between the Government of 
the United States of America and the Government of the Republic 
of South Africa on Mutual Legal Assistance in Criminal Matters, 
signed at Washington on September 16, 1999 (Treaty Doc. 106-
36); the Treaty Between the Government of the United States of 
America and Ukraine on Mutual Legal Assistance in Criminal 
Matters, signed at Kiev on July 22, 1998, and with an Exchange 
of Notes signed on September 30, 1999, which provides for its 
provisional application (Treaty Doc. 106-16); and the Inter-
American Convention on Mutual Assistance in Criminal Matters, 
adopted at the Twenty-Second Regular Session of the 
Organization of American States (``OAS'') General Assembly 
meeting in Nassau, The Bahamas, on May 23, 1992, and the 
Optional Protocol Related to the Inter-American Convention on 
Mutual Assistance in Criminal Matters, adopted at the Twenty-
Third Regular Session of the OAS General Assembly meeting in 
Managua, Nicaragua, on June 11, 1993, both instruments signed 
on behalf of the United States at OAS Headquarters in 
Washington on January 10, 1995 (Treaty Doc. 105-25), having 
considered the same, reports favorably thereon, each with the 
understandings, declarations and provisos indicated in the 
corresponding resolutions of ratification, infra, and 
recommends that the Senate give its advice and consent to the 
ratification thereof as set forth in this report and said 
resolutions of ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................2
 II. Background.......................................................2
III. Summary..........................................................2
 IV. Entry Into Force and Termination.................................9
  V. Committee Action................................................10
 VI. Committee Recommendation and Comments...........................10
VII. Explanation of Proposed Treaties................................12
VIII.Text of the Resolutions of Ratification........................181


                               I. Purpose

    Bilateral and multilateral mutual legal assistance treaties 
are intended to establish a formal basis for cooperative law 
enforcement efforts.

                             II. Background

    Eight mutual legal assistance treaties (``MLATs'') were 
submitted to the Senate during the 106th Congress. They include 
agreements with Cyprus, Egypt, France, Greece, Romania, South 
Africa, and Ukraine. The Inter-American Convention on Mutual 
Assistance in Criminal Matters and its Optional Protocol were 
submitted to the Senate during the 105th Congress. The MLAT 
with Nigeria was submitted to the Senate during the 102d 
Congress. If the agreements described in this report enter into 
force, they will join thirty-six existing MLATs already in 
force for the United States.

                              III. Summary


                               A. GENERAL

    Each of the treaties discussed in this report has 
distinctive features. All of them, however, including the 
multilateral Inter-American Convention (``OAS MLAT''), follow a 
common format and as a group exhibit more similarities than 
differences. In general, they consist of twenty articles, more 
or less. They cover essentially the same matter, in the same 
general order, often with only minor variations of style and 
language. Typically their texts are arranged as follows:

  <bullet> the scope of assistance of the Treaty, in the form 
        of a general statement of purpose and a general 
        inventory of the kinds of assistance available;

  <bullet> identification of the Central Authorities 
        responsible for administration of the Treaty;

  <bullet> the limitations on assistance available at the 
        discretion of the Central Authority in particular types 
        of cases;

  <bullet> the form and contents required of any petition for 
        help under the Treaty;

  <bullet> the general responsibilities and prerogatives of 
        those called upon to execute requests under the Treaty;

  <bullet> how the costs associated with a particular request 
        are to be allocated;

  <bullet> the limitations of use or disclosure of any evidence 
        or information secured pursuant to a Treaty request;

  <bullet> the procedure for hearings conducted at the behest 
        of a foreign country to take testimony or evidence in 
        the Requested State;

  <bullet> the circumstances under which the Parties are to 
        have access to information found in the records of 
        government agencies of other countries;

  <bullet> the procedure for inviting witnesses to travel 
        abroad and give testimony in the Requesting State;

  <bullet> the provisions for the transfer of persons in 
        custody (prisoners) from one country to the other to 
        permit them to participate in foreign proceedings;

  <bullet> the pledge of each Party to devote their best 
        efforts in response to a request for the location or 
        identification of a particular person or item;

  <bullet> the commitment of each Party for the service of 
        documents related to a Treaty request;

  <bullet> the agreement to execute a search and seizure upon 
        request of a Treaty partner;

  <bullet> provisions for the return of property transferred to 
        another country pursuant to a Treaty request;

  <bullet> bilateral assistance in forfeiture proceedings and 
        in proceedings concerning restitution and criminal 
        fines;

  <bullet> compatibility with other arrangements, that is, the 
        fact that the Treaty is not intended to preempt other 
        legal grounds for cooperative law enforcement efforts;

  <bullet> consultation among the agencies responsible for 
        implementation of the Treaty; and

  <bullet> the particulars of ratification, termination and 
        effective dates.

    Parties to the Optional Protocol to the OAS MLAT would 
agree not to reject certain requests for assistance relating to 
tax crimes. The Optional Protocol was negotiated at the request 
of the United States out of concern that the OAS MLAT itself 
allowed assistance to be denied in certain cases in which the 
underlying offense was considered a ``fiscal'' offense. The 
Executive Branch also desires ratification of the Optional 
Protocol to improve cooperation in a wide range of tax 
offenses.

                           B. KEY PROVISIONS

1. Scope of Assistance

    In general, the MLATs begin with an article that addresses 
the scope of the assistance available under the Treaty. The 
article usually consists of four components: a statement of 
purpose, an inventory of some of the types of assistance 
available under the agreement, a statement on dual criminality 
and a disclaimer of any intent to give defendants additional 
rights.

2. Central Authorities

    The Treaties all require the designation of a Central 
Authority that is vested with exclusive authority to send and 
receive treaty requests, and that often has broad 
administrative authority to make the treaties work. In most 
cases, the Central Authority is the country's attorney general. 
For the United States, actual treaty administration is 
delegated to the Department of Justice's Office of 
International Affairs which provides sufficiency review and 
traffic control over requests under the treaty. Central 
Authorities enjoy considerable authority and flexibility over 
dispatch and receipt of Treaty requests in order to ensure 
efficient implementation of the treaty.
    The MLAT with Egypt is typical and permits the Central 
Authorities to set or agree to any conditions necessary for 
approval of requests that might otherwise be denied; to waive 
the requirement, in emergency situations, that requests be 
submitted in writing; to postpone or condition execution of a 
request for assistance that might interfere with a criminal 
investigation, prosecution or proceeding of its own; and to 
determine whether requests should be kept confidential and 
whether the information secured may be used for other purposes.

3. Limitations on Assistance

    All of the Treaties have an article that describes the 
circumstances under which assistance may or must be refused. 
They help define the MLATs' outer limits, but seldom surface in 
practice. The four most recurrent limitations permit the 
parties to decline a request for assistance (1) which involves 
a purely military offense not ordinarily treated as a criminal 
offense, (2) which is related to a political offense, (3) whose 
execution would prejudice a national security or similar 
essential interest, or (4) which does not comply with the 
MLATs' procedural prerequisites.
    The provision on purely military offenses and political 
offenses is drawn from extradition practice. The purely 
military offense exception covers things like mutiny and 
desertion, is fairly self-evident, and rarely claimed. In an 
extradition context, the political offense exception, on the 
other hand, is neither so evident nor so rare. It clearly 
includes purely political crimes like treason, espionage, and 
sedition. Under U.S. law it also extends to crimes that are 
relatively political, that is, offenses ``committed in the 
course of and incidental to a violent political disturbance 
such as a war, revolution or rebellion.'' Under the laws of 
various other nations it has sometimes been thought to 
encompasses either politically motivated offenses or offenses 
whose prosecution is politically motivated or both.
    Although the essential interests clause is almost always 
couched with national security, it is generally understood to 
be more inclusive than the language alone might suggest. The 
most commonly cited examples are (1) requests ``involving 
prosecution by the Requesting State of conduct that occurred in 
the Requested State that is constitutionally protected in the 
Requested State'' and (2) requests for sensitive law 
enforcement information where the ``senior foreign government 
official who likely will 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.''
    MLATs not infrequently join other restriction clauses with 
one or more of the usual four limitation clauses. Requests 
involving a prosecution based on race, religion, nationality, 
or political opinion may be singled out for possible rejection. 
Search and seizure and forfeiture assistance may be limited if 
dual criminality requirements are not met. Double jeopardy or 
the prospect of a constitutional violation may also be 
explicitly mentioned as a ground for denying a MLAT request.
    Among the pacts under consideration, the denial clause of 
the French MLAT is the most abbreviated, and the denial clause 
of the OAS MLAT is the most expansive. The Optional Protocol to 
the OAS MLAT was negotiated at the request of the United States 
out of concern that the OAS MLAT itself allowed assistance to 
be denied in certain cases in which the underlying offense was 
considered a ``fiscal'' offense. The Executive Branch believes 
ratification of the Optional Protocol will improve cooperation 
with OAS MLAT parties over a wide range of tax offenses.

4. Form and Content of Requests

    The form and content demands of most MLATs have been 
formulated to streamline the request process, to prevent 
denials based on misunderstandings, and to keep requests within 
the confines of the Treaty. Under normal circumstances, 
requests must be written in the language of the requested 
country. Certain basic information must be provided for all 
requests and other information requirements are tailored to 
requests for particular kinds of assistance. Search and seizure 
requests, for instances, are expected to include a 
particularized description of the place to be searched and the 
items to be seized. The provision in the Treaty with Cyprus is 
representative in both type and content.

5. Execution of Requests

    Contemporary MLATs generally merge several provisions 
concerning treaty administration using similar if not identical 
language for matters such as:

  <bullet> general obligations of the Central Authorities;

  <bullet> representation of the foreign country placing the 
        request;

  <bullet> the law governing the manner in which requests will 
        be answered;

  <bullet> the obligation when a request relates to a matter 
        pending in both countries;

  <bullet> confidentiality requirements;

  <bullet> the rights of requesters to be informed of the 
        status of performance on their requests; and

  <bullet> the rights of requesters to be informed of the 
        outcome of the execution of their requests.

6. Costs

    The Treaties handle associated costs primarily as incidents 
of domestic law enforcement responsibilities. The country 
providing assistance is expected to bear the expense. 
Requesting countries are responsible for the costs of 
translations, transcriptions, expert witness fees, and the 
expenses associated with the foreign travel of witnesses. The 
approach prevents countries from claiming reimbursement for 
excessive costs to discourage requests or to mask a refusal to 
provide assistance. In exceptional cases, however, the Parties 
may agree to share costs and to modify the assistance provided 
for fiscal reasons.

7. Limitations on Use

    Most MLATs allow the Central Authorities of the country 
providing evidence or information under the Treaty to prohibit 
its use in other investigations, prosecutions, or proceedings 
without their consent or until after it has been publicly 
disclosed as a consequence of the use for which it was 
intended. The provision is sometimes worded as a prohibition 
(``the Requesting State shall not * * *'') and sometimes as a 
prerogative (``the Requested State may require * * *''). In 
either case, it is designed to ensure that information will not 
be used for purposes for which it could not have been obtained 
directly under the MLAT. Consequently, its invocation can be 
anticipated, is apparently relatively uncommon, and can be 
tailored to minimal adverse effect. In this country, the 
limitation places the MLAT information and evidence initially 
beyond the reach of a Freedom of Information Act request.
    The same article normally includes confidentiality 
limitations in addition to use limitations. They permit 
responding countries to insist that the evidence or information 
they provide be kept confidential and to condition their 
responses accordingly. News of the results of a MLAT request 
may be just as damaging as word of the fact a request has been 
made. Premature disclosure could result in flight; destruction 
of evidence; concealment of assets; harm, intimidation, 
corruption, or obstruction of witnesses or officials; and 
embarrassment of the innocent. The cloak tends to be fairly 
tightly drawn.

8. Testimony and Evidence in the Requested State

    An original purpose of the MLAT program was to permit the 
United States to obtain evidence from foreign jurisdictions in 
a form admissible in American courts. That remains unchanged. 
There are alternative procedures for any type of assistance 
that a MLAT enables, but the Treaties make it possible to 
overcome real and practical problems.
    American courts usually have no authority to subpoena 
foreign nationals living abroad. Although Americans living 
overseas can be subpoenaed, to do so in many countries is 
considered both diplomatically and legally offensive. Even when 
foreign resistance can be overcome, U.S. law imposes formidable 
requirements that must be met before depositions can be taken 
overseas and the testimony subsequently introduced in criminal 
proceedings in this country.
    MLATs are crafted to overcome these obstacles, in addition 
to meeting the practical and diplomatic challenges of taking 
depositions in a foreign country. They obligate the parties to 
call witnesses, using compulsory process if necessary.

9. Records of Government Agencies

    The majority of MLATs divide governmental information 
available under their provisions into two categories, namely, 
publicly available information (which must be provided upon 
request) and information available to judicial and law 
enforcement personnel but not to the general public (which may 
be provided upon request). The Treaties contemplate access to 
material held by any of the three branches of government. The 
United States is unwilling to compromise drug trafficking 
intelligence produced and held by our various law enforcement 
agencies. Thus, as in some past MLATs, the Senate has insisted 
upon a resolution of ratification proviso instructing the 
Administration to deny any MLAT request that would give corrupt 
foreign officials information that might be used to frustrate 
our efforts to combat drug trafficking.
    The Technical Analyses accompanying in many of these 
Treaties have noted that the provision permits access by both 
the law enforcement and tax enforcement authorities of our MLAT 
Treaty partners to tax information held by the Internal Revenue 
Service to the same extent that access is available to federal 
officials.

10. Appearances Outside the Requested State

    Foreign witnesses can not be compelled to travel to the 
United States to testify nor can a witness in this country be 
compelled to travel overseas to testify, but as the Treaties 
observe they may be invited to do so. The invitations are 
extended by the nation in which the witness is found. The 
country seeking assistance must indicate the extent to which 
the witnesses' expenses will be paid. These elements are common 
to all of the Treaties. There is greater diversity over whether 
witnesses may request reimbursement in advance, whether 
witnesses may be invited to appear in third countries, and the 
extent to which safe conduct will be offered. The advance 
reimbursement stipulations, where they appear, are cast in 
discretionary terms and likely reflect general practice. 
Guarantees of safe conduct assure invited witnesses that, 
during their visit, the host country will not arrest, charge, 
or sue them for any past conduct.

11. Transfer of Persons in Custody

    The Treaties anticipate situations where prisoners are 
sought as participants in proceedings in another country. The 
Treaties overcome the dual problem that the country where the 
proceedings are to be conducted will frequently be unwilling to 
allow foreign officials to maintain custody of a prisoner 
within its territory but will lack the authority under its laws 
to accept custody on its own.
    With the consent of the prisoner and each of the States, 
the Treaties allow a transfer of custody to provide law 
enforcement assistance. The Treaties uniformly authorize the 
receiving State to accept custody, instruct the receiving State 
to return the prisoner without the necessity of extradition, 
and credit the prisoner with time spent in the receiving State.

12. Location and Identification of Persons or Items

    The MLAT parties generally pledge their best efforts to 
ascertain the location or identity of ``persons or items'' 
within their territory upon request. Effective use of a MLAT or 
an extradition treaty often begins by finding an overseas 
fugitive or locating and identifying a witness or a custodian 
of bank records or other physical evidence resident in another 
country.

13. Service of Documents

    In American criminal cases, service of documents consists 
most often of the service of subpoenas. Foreign nationals 
living abroad are ordinarily beyond the reach of American 
courts, but Congress has long authorized federal courts to 
subpoena Americans residing overseas. The existing statute, 28 
U.S.C. 1783, permits subpoenas ordering an American to return 
to this country to testify as well as subpoenas ordering an 
appearance in the country where the American witness resides. 
For purposes of American law, section 1783 requires no Treaty 
reenforcement to be effective. In some countries, however, its 
use may be offensive to notions of sovereignty and illegal in 
few instances. Letters rogatory may be an available 
alternative, but they come with their own shortcomings. Beyond 
a pledge of best efforts, the Treaties commit the Parties to 
provide advance notice in connection with any documents calling 
for an appearance abroad. They also demand that the country 
serving the documents provide evidence of service in the manner 
requested.

14. Search and Seizure

    The search and seizure articles in the Treaties are 
generally uniform. They require execution of any request 
accompanied by information sufficient to satisfy the legal 
requirements of the country in which execution is to occur. 
They generally feature an authentication procedure designed to 
satisfy American legal requirements for admissibility of 
evidence. Finally, each of the Treaties has a provision 
authorizing conditions for the protection of third party 
interests in the property. Although broadly cast as ``search 
and seizure'' provisions, the Treaty articles are rather 
clearly limited to searches and seizures of property; they 
neither authorize nor anticipate the search for nor the seizure 
of individuals.

15. Assistance in Forfeiture, Restitution and Fine Collection 
        Proceedings

    The forfeiture articles in most contemporary MLATs address 
forfeiture, restitution, and the collection of criminal fines. 
Forfeiture is the confiscation of the fruits and 
instrumentalities of criminal activity.
    In the United States, there are over one hundred federal 
forfeiture laws, but the most heavily used are those enacted to 
fight drug trafficking, money laundering and organized crime. 
The proceeds resulting from cooperative federal-state 
investigations are shared with participating state law 
enforcement agencies. Both the money laundering and drug 
forfeiture provisions make the same benefit available to 
foreign countries. The United States will enforce foreign 
forfeiture judgments and may confiscate any property located in 
the United States but derived from, or traceable to, a serious 
violation of a foreign controlled substances law.
    Forfeiture varies from one jurisdiction to another and as a 
consequence the impact of MLAT forfeiture provisions vary a 
great deal from one treaty to the next. Experience under the 
United Nations Convention Against Illicit Traffic in Narcotic 
Drugs and Psychotropic Substances has made forfeiture easier in 
drug-related cases. Article 5 of the Convention requires the 
parties: to adopt forfeiture laws with respect to proceeds 
generated by drug trafficking; to establish the procedures to 
identify, trace and freeze or seize proceeds, property, 
instrumentalities and other forfeitable items; to permit 
judicial access to bank, financial and other commercial 
records; and to establish confiscation procedures for property 
located within their territory but subject to confiscation as a 
consequence of drug trafficking elsewhere.
    MLAT forfeiture assistance articles are generally similar 
to the U.N. Convention. They encourage the parties to give aid 
where their laws permit, but they do not contemplate conforming 
amendments within the parties' domestic law.

16. Fine Collection and Restitution

    The Treaties in most instances include only passing 
references to fine collection and restitution: ``The 
Contracting Parties shall assist each other to the extent 
permitted by their respective laws in proceedings relating to 
the forfeiture of the proceeds and instrumentalities of 
offenses, restitution to the victims of crime, and the 
collection of fines imposed as sentences in criminal 
prosecutions.'' With exception of forfeiture judgments, courts 
in the United States will not ordinarily enforce foreign 
restitution orders or collect foreign criminal fines.

                  IV. Entry Into Force and Termination


                          A. ENTRY INTO FORCE

    The Treaties generally provide for the entry into force of 
the treaty either on the date of, or shortly after, the 
exchange of instruments of ratification.

                             B. TERMINATION

    The Treaties generally provide for the Parties to withdraw 
from the treaty by means of written notice to the other Party. 
Termination would take place six months to a year after the 
date of notification. Some of the treaties make clear that 
requests for assistance prior to notification of termination 
shall be honored.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
these treaties on September 12, 2000, (a transcript of the 
hearing and questions for the record can be found in Senate 
hearing 106-660 entitled, ``Consideration of Pending 
Treaties''). The Committee considered the treaties on September 
27, 2000, and ordered them favorably reported by voice vote, 
with the recommendation that the Senate give its advice and 
consent to the ratification of the proposed Treaties subject to 
the understandings, declarations and provisos indicated in 
section VIII, below.

               VI. Committee Recommendation and Comments

    The Committee recommends favorably the proposed treaties. 
On balance, the Committee believes that the proposed treaties 
are in the interest of the United States and urges the Senate 
to act promptly to give its advice and consent to ratification. 
The Committee believes that the following comments may be 
useful to the Senate in its consideration of the proposed 
treaties and to the Departments of State and Justice.

  A. RESTRICTION ON COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT

    As discussed in Exec. Rpt. 105-23, on July 17, 1998, a 
majority of nations at the United Nations Diplomatic Conference 
on the Establishment of an International Criminal Court (Rome, 
Italy) approved a treaty that would, upon entry into force, 
establish an International Criminal Court. The Court would be 
empowered to investigate and prosecute war crimes, crimes 
against humanity, genocide and aggression. The United States 
voted against this treaty.
    Because of the implications for Americans involved in 
formulation and execution of our foreign policy, several 
members of the Committee remain deeply concerned by the 
prospect of an International Criminal Court empowered to 
investigate the matters referred to above that is permanent, 
could become politicized, and over which there would be limited 
international political control. This concern is magnified by 
events since adoption of Exec. Rpt. 105-23, namely, 
International Criminal Tribunal for the Former Yugoslavia 
Prosecutor Carla del Ponte's claim of jurisdiction over United 
States and other NATO forces for their conduct during 1999 
Kosovo combat operations.
    In light of the Secretary of State's expressed desire that 
the United States become a ``good neighbor'' to the Court if it 
enters into being, and if certain safeguards designed to 
protect U.S. officials and soldiers from prosecution are 
approved, as well as other factors, several members of this 
Committee are concerned that United States bilateral MLATs 
could become conduits for transferring information or for 
assistance from the United States to the Court even though the 
United States voted against its establishment.
    Accordingly, the Committee has decided once again to insert 
a related understanding into each of the Resolutions of 
Ratification accompanying the MLATs discussed in this report. 
Specifically, this provision is designed to make clear that 
information shared with a party by the United States pursuant 
to the MLAT shall not be forwarded to the International 
Criminal Court. The Committee recognizes that the terms of the 
treaties will not give the United States, as the Requested 
State, total control over the Requesting State's use of 
assistance provided under the MLAT.
    For instance, under the article on use limitations, 
information provided under the MLAT that has become public in 
the Requesting State may be used for any purpose. The Committee 
does expect and intend, however, that the United States will 
exercise its rights under each MLAT to prevent any assistance 
or information provided by the United States from being 
transferred to the International Criminal Court.
    The Committee intends that this restriction is binding on 
the President, and would be removed only in the event that the 
United States ratifies the treaty establishing the Court 
pursuant to the procedures stated in Article II, section 2, of 
the United States Constitution.
    Lastly, Members of the Committee were troubled to learn at 
the September 12, 2000, hearing on the MLATs covered in this 
report that the Department of Justice does not at present 
routinely include in all MLAT transmittal letters language 
which forbids MLAT treaty partners from passing U.S.-provided 
information to the International Criminal Court. While the 
Committee recognizes that the Court does not yet exist, there 
is nonetheless significant concern that information which is 
made available today to treaty partners whose MLATs do not 
contain the Senate's use limitation restriction (e.g., Spain) 
may conclude that they are free, in the future, to share U.S.-
provided information with the International Criminal Court if 
it comes into existence. Consequently, the Committee strongly 
recommends--even if a given MLAT was ratified without the 
Senate understanding--that the Department of Justice routinely 
include an International Criminal Court use prohibition clause 
when it transmits information or provides assistance to any 
MLAT treaty partner.

  B. USE OF MLATS TO AGGRESSIVELY PURSUE INTERNATIONAL PARENTAL CHILD 
                               ABDUCTORS

    The Committee remains concerned about the serious problem 
of international parental child abduction. Notably, a September 
2000 General Accounting Office report (GAOP/GAO/NSIAD-00-226BR) 
reveals that an estimated 1,000 children are abducted by one of 
their parents from the United States annually. Between January 
1995 and May 15, 2000, ``left behind'' American parents 
initiated nearly 300 cases under the 1980 Hague Convention on 
the Civil Aspects of International Child Abduction involving 
just three countries: Germany, Sweden and Austria. Well over 
half of those cases are unresolved.
    The Committee reiterates its grave concern over this 
troubling issue. Under current practice, MLATs provide for 
cooperation between law enforcement officials. Although the 
Hague Treaty addresses civil aspects of this issue, the act of 
international parental abduction is a Federal crime. The 
Committee believes that care should be taken to ensure that 
MLATs will be useful tools for attaining information and other 
cooperation to assist in the return of abducted or wrongfully 
retained children. The Committee anticipates that the Executive 
Branch will consider terminating MLATs or taking other measures 
in the event that the Central Authority of a given party 
consistently fails to adequately provide assistance under the 
respective MLAT. The Committee is especially concerned that the 
proposed MLATs discussed in this report be monitored to ensure 
cooperation in the exchange of information related to 
international parental child abduction.
    The Departments of State and Justice testified on September 
12, 2000, that these treaties are essential to ensuring that 
criminals do not evade prosecution. This same principle should 
be true for the crime of parental child abduction in violation 
of the 1993 International Parental Kidnaping Act. The Committee 
expects, therefore, that officials of the Departments of State 
and Justice will seek law enforcement cooperation in all cases 
unless it will hinder U.S. law enforcement efforts. The 
Committee also expects these officials to raise this issue in 
the course of negotiation of all bilateral law enforcement 
treaties and in other bilateral diplomatic exchanges.

                          C. MLAT WITH NIGERIA

    The Executive Branch testified on September 12, 2000, 
before the Committee that the MLAT with Nigeria will be ``an 
effective tool in the investigation and prosecution of a wide 
variety of modern crimes of concern to the U.S. and Nigeria.'' 
The Committee notes that the MLAT with Nigeria was concluded in 
1989, and received in the Senate in 1992. The treaty has 
languished owing in part to United States concerns about the 
lack of a democratic government in Nigeria. The return of 
democratic government in Nigeria now makes it possible to 
proceed with consideration of this agreement. Sophisticated 
international criminality originating in Nigeria in narcotics 
trafficking, wire fraud and other areas are imperatives which 
also led the Committee to move forward with this MLAT.

                 VII. Explanation of Proposed Treaties

    The following are the article-by-article technical analyses 
provided by the Departments of State and Justice for each of 
the mutual legal assistance treaties covered by this Report.

 Technical Analysis of the Treaty Between The Government of the United 
   States of America And The Government of the Republic of Cyprus on 
              Mutual Legal Assistance in Criminal Matters

    On December 21, 1999, the United States signed a Treaty 
Between the Government of the United States of America and the 
Government of the Republic of Cyprus on Mutual Legal Assistance 
in Criminal Matters (``the Treaty''). In recent years, the 
United States has signed similar treaties with a number of 
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 is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, international drug trafficking and 
other offenses.
    It is anticipated that the Treaty will be implemented in 
the United States largely pursuant to the procedural framework 
provided by Title 28, United States Code, Section 1782. Cyprus 
currently does not have any specific law on mutual legal 
assistance, but it assured the United States that it will enact 
new legislation to implement the Treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
history. The technical analysis includes a discussion of U.S. 
law and relevant practice as of the date of its preparation, 
which are, of course, subject to change. Foreign law 
discussions reflect the current state of that law, to the best 
of the drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of offenses, and in proceedings relating 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 Cyprus, and 
other legal measures taken prior to the filing of formal 
charges in either State.\1\ The term ``proceedings'' was 
intended to cover the full range of proceedings in a criminal 
case, including such matters as bail and sentencing 
hearings.\2\ 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 example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature,\3\ but such proceedings are covered by the 
Treaty.
---------------------------------------------------------------------------
    \1\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., 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 U.S. must assist Cyprus under the 
Treaty in connection with investigations prior to charges being filed 
in Cyprus.
    \2\ One U.S. 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 the Director of Inspection of the 
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 which are at the 
investigatory stage, or which are customarily handled by administrative 
officials in the Requesting State. Since this paragraph of the Treaty 
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 the courts broader authority to execute 
requests than does Title 28, United States Code, Section 1782, as 
interpreted in the India and Fonseca cases.
    \3\ See, Title 21, United States Code, Section 881; Title 18, 
United States Code, Section 1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Paragraph 3 of this article makes it clear that there is no 
requirement of dual criminality under this Treaty for 
cooperation. Thus, assistance is to be provided even when the 
criminal matter under investigation in the Requesting State 
would not be a crime in the Requested State. Article 1(3) is 
important because United States and Cyprus criminal law differ 
significantly, and a general dual criminality rule would make 
assistance unavailable in many significant areas. During the 
negotiations, the Cyprus delegation gave assurances that 
assistance would be available under the Treaty to the United 
States in investigations of major crimes such as conspiracy; 
drug trafficking, including operating a continuing criminal 
enterprise (Title 21, United States Code, Section 848); 
offenses under the racketeering statutes (Title 18, United 
States Code, Section 1961-1968); money laundering; Export 
Control Act violations; criminal tax; securities fraud and 
insider trading, environmental protection, and antitrust 
offenses.
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \4\ which states 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 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Cyprus 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 provided pursuant to the 
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
    \4\ See, United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party \5\ establish a 
``Central Authority'' to make and receive Treaty requests. The 
Central Authority of the United States would make all requests 
to Cyprus on behalf of federal agencies, state agencies, and 
local law enforcement authorities in the United States. The 
Central Authority of Cyprus would make all requests emanating 
from officials in Cyprus.
---------------------------------------------------------------------------
    \5\ The terms ``Party'' and ``State'' are used interchangeably in 
the Treaty and have the same meaning.
---------------------------------------------------------------------------
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the proper 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 or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual legal assistance treaties to the 
Assistant Attorney General in charge of the Criminal 
Division.\6\ Article 2(2) of the Treaty also states that the 
Attorney General of Cyprus or a person designated by the 
Attorney General will serve as the Central Authority for 
Cyprus.
---------------------------------------------------------------------------
    \6\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently 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 for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or any other means, at the 
option of the Central Authorities themselves.
    Paragraph 4 states explicitly that in urgent cases the 
Central Authorities may transmit requests through the 
International Criminal Police Organisation (INTERPOL). Although 
no mutual legal assistance treaty now in force explicitly 
provides for requests to be made through INTERPOL, it is 
usually anticipated that the Central Authorities may select any 
means of communication that they find convenient, including 
INTERPOL. Many recent U.S. extradition treaties explicitly 
permit provisional arrest requests to be submitted through the 
INTERPOL channel,\7\ and the use by the Central Authorities of 
INTERPOL's communication facilities for urgent mutual 
assistance requests should prove equally valuable. The 
negotiators agreed that this paragraph does not authorize 
INTERPOL to participate substantively in its implementation.
---------------------------------------------------------------------------
    \7\ See, e.g., U.S.-Cyprus Extradition Treaty, signed at Washington 
June 17, 1996, entered into force September 14, 1999, art. 11(1).
---------------------------------------------------------------------------

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty. These 
restrictions are similar to those found in other mutual legal 
assistance treaties.
    Paragraph (1)(a) permits the denial of a request if it 
relates to a political offense or an offense under military law 
that would not be an offense under ordinary criminal law. It is 
anticipated that the Central Authorities will employ 
jurisprudence similar to that used in the extradition treaties 
for determining what is a ``political offense.''
    Paragraph (1)(b) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or similar essential interests of 
that State. 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 word ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the United States Department of Justice, 
as Central Authority for the United States, would work closely 
with the Department of State and other government agencies to 
determine whether to execute a request that might fall in this 
category.
    The delegations also agreed that the phrase ``essential 
interests'' was intended to narrowly limit the class of cases 
in which assistance may be denied. It would not be enough that 
the Requesting State's case is one that would be inconsistent 
with public policy had it been brought in the Requested State. 
Rather, the Requested State must be convinced that execution of 
the request would seriously conflict with significant public 
policy. An example might be a request involving prosecution by 
the Requesting State of conduct which occurred in the Requested 
State and is constitutionally protected in that State.
    However, it was agreed that ``essential interests'' could 
be invoked if the execution of a request would violate 
essential interests related to the fundamental purposes of the 
Treaty. For example, one fundamental purpose of the Treaty is 
to enhance law enforcement cooperation, and attaining that 
purpose would be hampered if sensitive law enforcement 
information available under the Treaty were to fall into the 
wrong hands. Therefore, the U.S. Central Authority may invoke 
paragraph 1(b) to decline to provide information pursuant to a 
request under this Treaty if it determines, after appropriate 
consultation with law enforcement, intelligence, and foreign 
policy agencies, that a senior foreign government official who 
will have access to the information is engaged in a felony, 
including the facilitation of the production or distribution of 
illegal drugs.\8\
---------------------------------------------------------------------------
    \8\ This is consistent with the Senate resolution of advice and 
consent to ratification of other recent mutual legal assistance 
treaties with, e.g., Luxembourg, Hong Kong, Poland and Barbados. See, 
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual legal 
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark Mr. Richard, 
Deputy Assistant Attorney General, Criminal Division, United States 
Department of Justice).
---------------------------------------------------------------------------
    Paragraph (1)(c) permits the denial of a request if 
execution of the request would violate the Constitution of the 
Requested State or the obligations of the Requested State under 
any international multilateral treaty relating to human rights. 
The clause permitting denial if the request would violate the 
Constitution of the requested state is self-explanatory, and is 
similar to provisions that appear in several other treaties.\9\ 
The clause permitting denial if the request would violate a 
human rights convention was requested by Cyprus' delegation.
---------------------------------------------------------------------------
    \9\ U.S.-Jamaica Mutual Legal Assistance Treaty, signed at Kingston 
July 7, 1989, entered into force July 25, 1995, art. 2(1)(e).
---------------------------------------------------------------------------
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty,\10\ and obliges the 
Requested State to consider imposing appropriate conditions on 
its assistance in lieu of denying a request outright pursuant 
to the first paragraph of the article. For example, a State 
might request information that could be used either in a 
routine criminal case (which would be within the scope of the 
Treaty) or in a prosecution of a political offense (which would 
be subject to refusal). 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 actually delivering the evidence in 
question, thereby giving the Requesting State a chance to 
indicate whether it is willing to accept the evidence subject 
to the conditions. If the Requesting State does accept the 
evidence subject to the conditions, it must honor the 
conditions.
---------------------------------------------------------------------------
    \10\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at 
Bern May 25, 1973, entered into force January 23, 1977, art. 26, 27 
U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
    Paragraph 3 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the basis for any denial of assistance. 
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 should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Contents 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.'' If the 
request is not in writing, it must be confirmed in writing 
within ten days unless the Central Authority of the Requested 
State agrees otherwise. Each request shall be in the language 
of the Requesting State accompanied by a translation in the 
language of the Requested State (i.e., English for the United 
States and Greek for Cyprus) unless otherwise agreed.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 lists nine kinds of 
information that are important but not always crucial, and must 
be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority to promptly 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to 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 request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the competent 
judicial or other authorities to do everything 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 Cyprus. Rather, it is anticipated that when a request from 
Cyprus requires compulsory process for execution, the United 
States Department of Justice would ask a federal court to issue 
the necessary process under Title 28, United States Code, 
Section 1782, and the provisions of the Treaty. Similarly, 
Cyprus' delegation informed the U.S. delegation that this 
general language should not be understood to authorize the use 
of the Treaty to conduct criminal proceedings in Cyprus for the 
U.S. (e.g., the accepting of guilty pleas from defendants).
    The third sentence in Article 5(1) reads ``[t]he competent 
judicial or other authorities of the Requested State shall have 
power to issue subpoenas, search warrants, or other orders 
necessary to execute the request.'' This language specifically 
authorizes United States courts to use all of their powers to 
issue subpoenas and other process to satisfy a request under 
the Treaty. It also reflects an understanding that the Parties 
intend to provide each other with every available form of 
assistance from judicial and executive branches of government 
in the execution of mutual assistance requests. The phrase 
refers to ``judicial or other authorities'' to include all 
those officials authorized to issue compulsory process that 
might be needed in executing a request.
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for 
representation of the Requesting State in the execution of a 
request for assistance. Thus, it is understood that if 
execution of the request entails action by a judicial or 
administrative agency, the Central Authority of the Requested 
State shall arrange for the presentation of the request to that 
court or agency at no cost to the Requesting State.
    Paragraph 3 provides that ``[r]equests shall be executed 
according to the internal laws and procedures of the Requested 
State except to the extent that this Treaty provides 
otherwise.'' Thus, the method of executing a request for 
assistance under the Treaty must be in accordance with the 
Requested State's internal laws absent specific contrary 
procedures in the Treaty itself. For the United States, the 
Treaty is intended to be self-executing; no new or additional 
legislation will be needed to carry out the obligations 
undertaken.
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by U.S. and Cyprus 
authorities in collecting evidence in order to assure the 
admissibility of that evidence at trial. For instance, United 
States law permits documents obtained abroad to be admitted in 
evidence if they are duly certified and the defendant has been 
given fair opportunity to test its authenticity.\11\ Since 
Cyprus' law contains no similar provision, documents acquired 
in Cyprus in strict conformity with Cyprus procedures might not 
be admissible in United States courts. Furthermore, United 
States courts use procedural techniques such as videotape 
depositions that simply are not used in Cyprus even though they 
are not forbidden there.
---------------------------------------------------------------------------
    \11\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    Both delegations agreed that the Treaty's primary goal of 
enhancing law enforcement in the Requesting State could be 
frustrated if the Requested State were to insist on producing 
evidence in a manner which renders the evidence inadmissible or 
less persuasive in the Requesting State. For this reason, 
Paragraph 3 requires the Requested State to follow the 
procedure outlined in the request to the extent that it can, 
even if the procedure is not that usually employed in its own 
proceedings. However, if the procedure called for in the 
request is unlawful in the Requested State (as opposed to 
simply unfamiliar there), the appropriate procedure under the 
law applicable for investigations or proceedings in the 
Requested State will be utilized.
    Finally, Paragraph 3 provides that where neither the Treaty 
or the request specifies a particular procedure to be followed, 
the request shall be executed in accordance with the 
appropriate procedure under the laws applicable to criminal 
investigations and proceedings in the Requested State.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing criminal investigation or legal proceeding in the 
Requested State. The paragraph also allows the Requested State 
to provide the information to the Requesting State subject to 
conditions needed to prevent interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which 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, 
prosecution, or proceeding'' as required by Article 4(2)(b). 
Therefore, Paragraph 5 of Article 5 enables the Requesting 
State to call upon the Requested State to use its best efforts 
to keep the information in the request confidential.\12\ If the 
Requested State cannot execute the request without disclosing 
the information in question (as might 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 so indicate, 
thereby giving the Requesting State an opportunity to withdraw 
the request rather than risk jeopardizing an investigation or 
proceeding by public disclosure of the information.
---------------------------------------------------------------------------
    \12\ This provision is similar to language in other mutual legal 
assistance treaties. See, e.g., U.S.-Lithuania Mutual Legal Assistance 
Treaty, signed at Washington January 16, 1998, entered into force 
August 26, 1999, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is 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 cannot be provided immediately, the 
Central Authority of the Requested State must also explain the 
basis for the outcome to the Central Authority of the 
Requesting State. For example, if the evidence sought could not 
be located, the Central Authority of the Requested State would 
report that fact to the Central Authority of the Requesting 
State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear 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.\13\ Since 
the cost of retaining counsel abroad to present and process 
letters rogatory is sometimes quite high, this provision is a 
significant advance in international legal cooperation. It is 
also understood that should the Requesting State choose to hire 
private counsel for a particular request, it is free to do so 
at its own expense. Article 6 does provide that the Requesting 
State will pay fees of expert witnesses, translation, 
interpretation and transcription costs, and allowances and 
expenses related to travel of persons pursuant to Articles 10 
and 11.
---------------------------------------------------------------------------
    \13\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty, 
signed at Washington February 4, 1998, entered into force May 7, 2000, 
art. 6.
---------------------------------------------------------------------------
    Paragraph 2 of this article provides that if it becomes 
apparent during the execution of a request that complete 
execution of a request would require extraordinary expenses, 
then the Central Authorities shall consult to determine the 
terms and conditions under which execution may continue.

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that the Requesting State not use 
any information or evidence provided under the Treaty in any 
investigation, prosecution, or proceeding other than that 
described in the request without the prior consent of Central 
Authority of the Requested State. If such a use limitation is 
required, the Requesting State must comply with the 
requirement. It will be recalled that Article 4(2)(d) states 
that the Requesting State must specify the purpose for which 
the information or evidence is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it furnishes 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 wish to cooperate with the investigation in 
the Requesting State but choose to limit access to information 
which might endanger the safety of an informant, or unduly 
prejudice the interests of persons not connected in any way 
with the matter being investigated in the Requesting State. 
Paragraph 2 requires that if the Requesting State accepts the 
evidence subject to conditions of confidentiality, the 
Requesting State must make ``best efforts'' to comply with 
them. This ``best efforts'' language was used because the 
purpose of the Treaty is the production of evidence for use at 
trial, and that purpose would be frustrated if the Requested 
State could routinely permit the Requesting State to see 
valuable evidence, but impose confidentiality restrictions 
which prevent the Requesting State from using it.
    The Cyprus delegation expressed concern that information it 
might supply in response to a request by the United States 
under the Treaty not be disclosed under the Freedom of 
Information Act. Both delegations agreed that since this 
article permits the Requested State to prohibit the Requesting 
State's disclosure of information for any purpose other than 
that stated in the request, a Freedom of Information Act 
request that seeks information that the United States obtained 
under the Treaty would have to be denied if the United States 
received the information on such a condition.
    Paragraph 3 states that nothing in Article 7 shall preclude 
the use or disclosure of information to the extent that there 
is an obligation to do so under the Constitution of the 
Requesting State in a criminal prosecution.\14\ Any such 
proposed disclosure shall be notified by the Requesting State 
to the Requested State in advance.
---------------------------------------------------------------------------
    \14\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed to the public in a manner consistent 
with Paragraph 1 or 2, the Requesting State is free to use the 
evidence for any purpose. When evidence obtained under the 
Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain, and 
is likely to become a matter of common knowledge, perhaps even 
be described in the press. The negotiators noted that once this 
has occurred, it is practically impossible for the Central 
Authority of the Requesting State to block the use of that 
information by third parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 7 are for the benefit of the 
Contracting Parties, and the invocation and enforcement of 
these provisions are left entirely to the Contracting Parties. 
If a person alleges that a Cyprus authority has used 
information or evidence obtained from the United States in a 
manner inconsistent with this article, the person can inform 
the Central Authority of the United States of the allegations 
for consideration as a matter between the Contracting Parties.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or give statements \15\ or 
produce items, including documents and records and articles of 
evidence. The compulsion contemplated by this article can be 
accomplished by subpoena or any other means available under the 
law of the Requested State.
---------------------------------------------------------------------------
    \15\ The Treaty draws a distinction between taking ``testimony'' 
and taking ``statements'' because under Cyprus' law ``testimony'' can 
only be given after formal charges have been filed.
---------------------------------------------------------------------------
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request (e.g., the defendant and his counsel in criminal cases) 
shall be permitted by the Requested State to be present and 
question the person giving the testimony or evidence.
    Paragraph 4 states that when a person asserts a claim of 
immunity, incapacity, or privilege under the laws of the 
Requested State, that claim shall be resolved in accordance 
with the law of the Requested State. This is consistent with 
Article 5(3), and ensures that no person will be compelled to 
furnish information if he has a right not to do so under the 
law of the Requested State. Thus, a witness questioned in the 
United States pursuant to a request from Cyprus is guaranteed 
the right to invoke any of the testimonial privileges (e.g., 
attorney-client, inter-spousal) available in the United States 
as well as the constitutional privilege against self-
incrimination, to the extent that it might apply in the context 
of evidence being taken for foreign proceedings.\16\ A witness 
testifying in Cyprus may raise any of the similar privileges 
available under the law of Cyprus.
---------------------------------------------------------------------------
    \16\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 4 also states that if a witness attempts to 
assert a claim of immunity, incapacity, or privilege under the 
laws of the Requesting State, the Requested State will take the 
evidence and turn it over to the Requesting State along with 
notice that it 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 the privilege are 
best understood. A similar provision appears in many of our 
recent mutual legal assistance treaties.\17\
---------------------------------------------------------------------------
    \17\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty, 
signed at Bridgetown February 28, 1996, and entered into force March 3, 
2000, art. 8(4).
---------------------------------------------------------------------------
    Paragraph 5 states that evidence produced pursuant to this 
article shall, upon request, be authenticated by an 
attestation, including, in the case of business records, 
authentication in the manner indicated in Form A appended to 
the Treaty. In Cyprus, the attestation will be given under 
oath, before a judge magistrate, or judicial officer, and any 
false statements made in the attestation will be subject to 
prosecution in Cyprus as a ``false oath or declaration'' in 
violation of Article 117 of Cyprus' Criminal Code. Thus, the 
provision establishes a procedure for authenticating records in 
a manner essentially similar to Title 18, United States Code, 
Section 3505. The absence or nonexistence of such records 
shall, upon request, be certified through the use of Form B, 
also appended to the treaty. Records authenticated by Form A, 
or Form B certifying the absence or nonexistence of such 
records, shall be admissible in evidence in the Requesting 
State. With respect to the United States, this paragraph is 
self-executing, and does not need implementing legislation.
    Article 8(5) provides that the evidence authenticated by 
Form A is ``admissible,'' but of course, it will be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (such as relevance, and materiality) would still 
have to be satisfied in each case.

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each State to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a government department 
or agency in the Requested State. The term ``government 
departments and agencies'' includes all executive, judicial, 
and legislative units of the federal, state, and local level in 
each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The undertaking under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own law enforcement or judicial authorities. It 
is intended that the Central Authority of the Requested State, 
in close consultation with the interested law enforcement 
authorities of that State, will determine that extent and what 
those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where 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 could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for 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 for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty, 
like most other U.S. bilateral mutual legal assistance 
treaties, is a ``convention relating to the exchange of tax 
information'' for purposes of Title 26, United States Code, 
Section 6103(k)(4), and the United States would have the 
discretion to provide tax return information to Cyprus under 
this article in appropriate cases.
    Paragraph 3 states that records provided under this article 
may be authenticated by the officials responsible for 
maintaining them through the use of Form C appended to the 
Treaty. No further authentication is required. If authenticated 
in this manner, the records shall be admissible in evidence in 
the Requesting State. The paragraph also provides for the 
appropriate officials to certify the absence or nonexistence of 
records, through Form D appended to the Treaty. Thus, the 
Treaty establishes a procedure for authenticating official 
foreign documents that is consistent with Rule 902(3) of the 
Federal Rules of Evidence and Rule 44, Federal Rules of Civil 
Procedure.
    Paragraph 3, similar to Article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible'' in 
the Requesting State but it will, of course, be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
evidentiary tests other than authentication (such as relevance 
or materiality) must be established in each case.

         Article 10--Appearance Outside of the Requested State

    This article provides that upon request, the Requested 
State shall invite persons in the Requested State to travel 
outside of the Requested State (i.e., to the Requesting State 
or to a third state) to appear. The Central Authority of the 
Requested State shall inform the Central Authority of the 
Requesting State of the invitee's response. An appearance in 
the Requesting State under this article is not mandatory, and 
the invitation may be refused by the prospective witness.
    The Requesting State would be expected to pay the expenses 
of such an appearance pursuant to Article 6. Therefore, 
paragraph 2 provides that the Requesting State must indicate to 
the Requested State the extent to which the person's expenses 
will be paid. It is assumed that such expenses would normally 
include the costs of transportation, and room and board. When 
the person is to appear in the United States, a nominal witness 
fee would also be provided. The paragraph provides that the 
person may ask that the Requesting State advance the money to 
pay these expenses, and that this advance may be handled 
through the Embassy or consulate of the Requesting State.
    Paragraph 3 provides that the Central Authority of the 
Requesting State may, in its discretion, determine that a 
person appearing in the Requesting State under this Article 
shall not be subject to service of process, or be detained or 
subjected to any restriction of personal liberty by reason of 
acts or convictions which preceded the person's departure for 
the Requesting State from the Requested State. It is understood 
that this provision would not prevent the prosecution of a 
person for perjury or any other crime committed while in the 
Requesting State.
    Paragraph 4 states that any safe conduct provided under 
this article expires seven days after the Central Authority of 
the Requesting State has notified the Central Authority of the 
Requested State that the person's presence is no longer 
required, or if the person leaves the territory of the 
Requesting State and thereafter returns to it. However, the 
Central Authority of the Requesting State may extend the safe 
conduct for up to fifteen days if it determines that there is 
good cause to do so.

               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, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings.\18\
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    \18\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Article 11 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty,\19\ which in 
turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters.\20\ Paragraph 1 provides 
that persons in custody in the Requested State whose presence 
outside of that State (i.e., to the Requesting State or to a 
third state) is sought for purposes of assistance under this 
Treaty, such as providing testimony in a criminal prosecution, 
shall be transferred in custody for that purpose if the person 
consents and the Central Authorities of both states agree.
---------------------------------------------------------------------------
    \19\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at 
Bern May 25, 1973, entered into force January 23, 1977, art. 26.
    \20\ It is also consistent with Title 18, United States Code, 
Section 3508, which provides for the transfer to the United States of 
witnesses in custody in other States whose testimony is needed at a 
federal criminal trial.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State 
for that purpose if the person consents and if the Central 
Authorities of both States agree. This would also cover 
situations in which a person in custody in the United States on 
a criminal matter has sought permission to travel to another 
country to be present at a deposition being taken there in 
connection with the case.\21\
---------------------------------------------------------------------------
    \21\ See, also, United States v. King, 552 F.2d 833 (9th Cir. 
1976), cert. denied, 430 U.S. 966 (1977), where the defendants insisted 
on traveling to Japan to be present at the deposition of certain 
witnesses in prison there.
---------------------------------------------------------------------------
    Paragraph 3 provides express authority, and the obligation, 
for the receiving State to keep such a person in custody 
throughout the person's stay there, unless the sending State 
specifically authorizes release. This paragraph also authorizes 
and obligates the receiving State to return the person in 
custody to the sending State as soon as circumstances permit or 
as otherwise agreed, and provides that this return will occur 
in accordance with terms and conditions agreed upon by the 
Central Authorities. The initial transfer of a prisoner under 
this article requires the consent of the person involved and of 
both Central Authorities, but the provision does not require 
that the person consent to be returned to the sending State.
    In keeping with the obligation to return a person 
transferred under this article, paragraph (3)(c) explicitly 
prohibits the Party to whom a person is transferred from 
requiring the transferring Party to initiate extradition or 
other proceedings before the status quo is restored by the 
return of the person transferred. Paragraph (3)(d) states that 
the person is to receive credit for time served while in the 
custody of the receiving State. This is consistent with United 
States practice in these matters. Finally, Paragraph 3(e) 
states that if the transfer of the person outside the Requested 
State is to a third state rather than to the Requesting State, 
it is the Requesting State that nevertheless must be 
responsible for making all arrangements to meet the 
requirements of this paragraph, including the requirements that 
the person be kept in custody and returned to the Requested 
State.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the Receiving State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

               Article 12--Transit of Persons in Custody

    Article 11 contemplates that persons in custody will be 
moved from State to State for purposes of mutual assistance, 
and it is reasonable to anticipate situations in which one 
State may need to bring persons in custody through the other on 
the way to or from third States. Article 12 provides the legal 
framework for such transit. Similar articles appear in other 
recent U.S. mutual legal assistance treaties.\22\
---------------------------------------------------------------------------
    \22\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force, September 17, 1990, 
art. 11.
---------------------------------------------------------------------------
    Paragraph 1 states that a Requested State may authorize the 
transit through its territory of a person whose personal 
appearance has been requested in investigations, prosecutions, 
or proceedings in the Requesting State. Despite the 
discretionary nature of such transit, an explicit reference to 
constitutional limitations was included because at the request 
of the Cyprus delegation because of its concerns about 
potential litigation attempting to apply its constitutional ban 
on extradition of nationals to such transit.
    Paragraph 2 provides the Requested State with express 
authority to keep a person in custody during transit and 
imposes an obligation to do so.

       Article 13--Location or Identification of Persons or Items

    This article provides for ascertaining the whereabouts in 
the Requested State of persons (such as witnesses, potential 
defendants, or experts) or items if the Requesting State seeks 
such information. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the persons or items sought by the Requesting State. The 
extent of such efforts will vary, of course, depending on the 
quality and extent of the information provided by the 
Requesting State concerning the suspected location and last 
known location.
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States would not be obliged 
to attempt to locate persons or items which may be in third 
countries. In all cases, the Requesting State would be expected 
to supply all available information about the last known 
location of the persons or items sought.

                    Article 14--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers 
relating in whole or in part to a Treaty request. Identical 
provisions appear in most U.S. mutual legal assistance 
treaties.\23\
---------------------------------------------------------------------------
    \23\ See, e.g., U.S.-Lithuania Mutual Legal Assistance Treaty, 
signed at Washington January 16, 1998, entered into force August 26, 
1999, art. 13.
---------------------------------------------------------------------------
    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 Cyprus to follow a specified 
procedure for service) or by the United States Marshal's 
Service in instances in which personal service is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents must be transmitted by the Central Authority of 
the Requesting State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 15--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
U.S. courts can and do execute such requests under Title 28, 
United States Code, Section 1782.\24\ This article creates a 
formal framework for handling such requests and is similar to 
provisions in many other U.S. mutual legal assistance 
treaties.\25\
---------------------------------------------------------------------------
    \24\ For example, in United States Ex Rel Public Prosecutor of 
Rotterdam, Netherlands v. Richard Jean Van Aalst, Case No 84-52-M-01 
(M.D. Fla., Orlando Div.), a search warrant was issued February 24, 
1984, based on a request under Title 28, United States Code, Section 
1782.
    \25\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 15.
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    Article 15 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Cyprus will have to be supported by a 
showing of probable cause for the search. A U.S. request to 
Cyprus would have to satisfy the corresponding evidentiary 
standard there, which is ``a reasonable basis to believe'' that 
the specified premises contains articles likely to be evidence 
of the commission of an offense.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision requires that, upon request, every official who 
has custody of a seized item shall certify, through the use of 
Form E appended to this Treaty, the continuity of custody, the 
identity of the item, and any changes in its condition.
    The article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the Requesting State, thus relieving 
the Requesting State of the burden, expense, and inconvenience 
of having to send its law enforcement officers to the Requested 
State to provide authentication and chain of custody testimony 
each time the Requesting State uses evidence produced under 
this article. As in Articles 8(5) and 9(3), the injunction that 
the certificates be admissible without additional 
authentication leaves the trier of fact free to bar use of the 
evidence itself, in spite of the certificate, if there is some 
reason to do so other than authenticity or chain of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred.

                      Article 16--Return of Items

    This article provides that any documents or items of 
evidence furnished under the Treaty must be returned to the 
Requested State as soon as possible. The delegations understood 
that this requirement would be invoked only if the Central 
Authority of the Requested State specifically requests it at 
the time that the items are delivered to the Requesting State. 
It is anticipated that unless original records or articles of 
significant intrinsic value are involved, the Requested State 
will not usually request return of the items, but this is a 
matter best left to development in practice.

         Article 17--Proceeds and Instrumentalities of Offenses

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Cyprus in combating narcotics 
trafficking. One significant strategy in this effort is action 
by United States authorities to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    This article is similar to a number of United States mutual 
legal assistance treaties, including Article 16 of the U.S.-
Barbados Mutual Legal Assistance Treaty and Article 17 of the 
U.S.-Latvia. Paragraph 1 authorizes the Central Authority of 
one Party to notify the other of the existence in the latter's 
territory of proceeds or instrumentalities of offenses that may 
be forfeitable or otherwise subject to seizure. The term 
``proceeds or instrumentalities'' was intended to include 
things such as money, vessels, or other valuables either used 
in the crime or purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the Party in which the proceeds or 
instrumentalities are located may take whatever action is 
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 Cyprus, they could be seized under Title 
18, United States Code, Section 981 in aid of a prosecution 
under Title 18, United States Code, Section 2314,\26\ or be 
subject to a temporary restraining order in anticipation of a 
civil action for the return of the assets to the lawful owner. 
Proceeds of a foreign kidnaping, robbery, extortion or a fraud 
by or against a foreign bank are civilly and criminally 
forfeitable in the United States since these offenses are 
predicate offenses under U.S. money laundering laws. \27\ Thus, 
it is a violation of United States criminal law to launder the 
proceeds of these foreign fraud or theft offenses, when such 
proceeds are brought into the United States.
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    \26\ 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. Proceeds of such 
activity become subject to forfeiture pursuant to Title 18, United 
States Code, Section 981 by way of Title 18, United States Code, 
Section 1956 and Title 18, United States Code, Section 1961. The 
forfeiture statute applies to property involved in transactions in 
violation of section 1956, which covers any activity constituting an 
offense defined by section 1961(1), which includes, among others, Title 
18, United States Code, Section 2314.
    \27\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be able and 
willing to help one another. 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.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada; there is a growing trend among nations 
toward enacting legislation of this kind in the battle against 
narcotics trafficking.\28\ The U.S. delegation expects that 
Article 16 of the Treaty will enable this legislation to be 
even more effective.
---------------------------------------------------------------------------
    \28\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, December 20, 
1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds or instrumentalities 
of offenses, to restitution to crime victims, or to the 
collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested Party may take immediate action to temporarily 
immobilize the 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 a judgment 
of forfeiture levied in the Requesting State, the Treaty 
provides that the Requested State shall do so. The language of 
the article is carefully selected, however, so as not to 
require either Party to take any action that would exceed its 
internal legal authority. It does not, for instance, mandate 
institution of forfeiture proceedings or initiation of 
temporary immobilization in either country against property 
identified by the other if the relevant prosecution officials 
do not deem it proper to do so.\29\
---------------------------------------------------------------------------
    \29\ In Cyprus, unlike the United States, the law does not allow 
for civil forfeiture. However, Cyprus law permits forfeiture in 
criminal cases, and ordinarily a defendant must be convicted in order 
for Cyprus to confiscate the defendant's property.
---------------------------------------------------------------------------
    U.S. 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 law enforcement 
activity which 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 approved by the Secretary of State.\30\ 
Paragraph 3 is consistent with this framework, and will enable 
a Party having custody over proceeds or instrumentalities of 
offenses to transfer forfeited assets, or the proceeds of the 
sale of such assets, to the other Party, at the former's 
discretion and to the extent permitted by their respective 
laws.
---------------------------------------------------------------------------
    \30\ See, Title 18, United States Code, Section 981(i)(1).
---------------------------------------------------------------------------

           Article 18--Compatibility with Other Arrangements

    This article states that assistance and procedures set 
forth in this Treaty shall not prevent either Party from 
granting assistance to the other Party through the provisions 
of other applicable international agreements. Article 18 also 
states that the Parties may provide assistance pursuant to any 
bilateral arrangement, agreement, or practice that may be 
applicable.\31\ The Treaty would leave the provisions of United 
States and Cyprus law on letters rogatory completely 
undisturbed, and would not alter any pre-existing agreements 
concerning investigative assistance.
---------------------------------------------------------------------------
    \31\ See, e.g., the Agreement for Mutual Assistance Between Customs 
Services, signed at Washington June 2, 1987, entered into force August 
21, 1987. Convention for the Avoidance of Double Taxation and the 
Prevention of Fiscal Evasion with Respect to Taxes on Income, with 
related notes, signed at Nicosia March 19, 1984; entered into force 
December 31, 1985.
---------------------------------------------------------------------------

                        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 anticipates that 
the Central Authorities will 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. Similar provisions are contained in all recent United 
States mutual legal assistance treaties. It is anticipated that 
the Central Authorities will conduct regular consultations 
pursuant to this article.

      Article 20--Ratification, Entry Into Force, and Termination

    Paragraph 1 states that the Treaty is subject to 
ratification and that the instruments of ratification are to be 
exchanged as soon as possible.
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 provides that the Treaty shall apply to any 
request presented pursuant to it after the date of the Treaty's 
entry into force, without regard to whether the relevant acts 
or omissions under investigation occurred before, on or after 
the date on which the Treaty entered into force. Provisions of 
this kind are common in law enforcement agreements.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of receipt of written 
notification. Similar termination provisions are included in 
other United States mutual legal assistance treaties.
                                ------                                


 Technical Analysis of the Mutual Legal Assistance Treaty Between the 
 Government of the United States of America and the Government of Egypt

    On May 3, 1998, the United States signed a Treaty Between 
the Government of the United States of America and the 
Government of the Arab Republic of Egypt 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 with Egypt is expected to be a major advance for 
the United States in its attempts to win the cooperation in 
Africa and the Middle East in combating organized crime, 
transnational terrorism, international drug trafficking, and 
other crimes.
    It is anticipated that the Treaty will be implemented in 
the United States largely pursuant to the procedural framework 
provided by Title 28, United States Code, Section 1782. The 
Egyptian delegation informed the U.S. delegation that Egypt has 
no specific mutual legal assistance law, and that it will 
render assistance pursuant to the Treaty itself, referring to 
its domestic procedural law where applicable.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
history. The technical analysis includes a discussion of U.S. 
law and relevant practice as of the date of its preparation, 
which are, of course, subject to change. Foreign law 
discussions reflect the current state of that law, to the best 
of the drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 of Article 1 requires the Parties to provide 
assistance in all matters involving the investigation, 
prosecution, and prevention of offenses, and in proceedings 
relating to criminal matters.
    The delegations understood that the term ``investigations'' 
includes grand jury proceedings in the United States and 
similar pre-charge proceedings in Egypt, and other legal 
measures taken prior to the filing of formal charges in either 
Party.\1\ The term ``proceedings'' is intended to cover the 
full range of proceedings in a criminal case, including such 
matters as bail and sentencing hearings.\2\ 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 example, disbarment proceedings and proceedings 
to forfeit to the Government the proceeds of illegal drug 
trafficking may be civil in nature; \3\ such proceedings were 
discussed with the Egyptian delegation and are covered by the 
Treaty. The U.S. delegation also informed the Egyptian 
delegation that requests for assistance might emanate from any 
of various U.S. agencies, including the following: the Federal 
Bureau of Investigation; the Securities and Exchange 
Commission; the Internal Revenue Service; the U.S. Customs 
Service; the Bureau of Alcohol, Tobacco, and Firearms; and the 
Drug Enforcement Administration. Finally, the U.S. delegation 
indicated that requests might arise before a case became 
criminal in nature; for example, the SEC often investigates 
matters before it is known whether criminal proceedings will be 
instituted.
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    \1\ 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, and the United States 
must assist Egypt under the Treaty in connection with investigations 
prior to charges being filed in Egypt.
    \2\ 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. See, Fonseca v. Blumenthal, 620 F.2d 322 (2nd Cir. 1980); In 
Re Letters Rogatory Issued by the Director of Inspection of the 
Government of India, 385 F.2d 1017 (2nd Cir. 1976). This rule poses an 
unnecessary obstacle to the execution of requests concerning matters 
which are at the investigatory stage, or which are customarily handled 
by administrative officials in the Requesting State. Since this 
paragraph of the Treaty 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 the courts 
broader authority to execute requests than Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \3\ Title 21, United States Code, Section 881; Title 18, United 
States Code, Section 1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The second paragraph's list of kinds of 
assistance is not intended to be exhaustive, a fact which is 
signaled by the word ``include'' in the opening clause of the 
paragraph and reinforced by the final subparagraph.
    Paragraph 3 states that assistance is to be provided in 
connection with any conduct that is the subject of 
investigation or proceedings in the Requesting State. This 
language is intended to make it clear that there is no 
requirement of dual criminality for cooperation under this 
treaty. Thus, assistance is to be provided even when the 
criminal matter under investigation in the Requesting Party 
would not be a crime in the Requested Party. Article 1(3) is 
important because a dual criminality rule would make assistance 
unavailable where United States and Egypt criminal laws differ.
    In discussing the types of cases for which assistance might 
be requested, the U.S. delegation delineated a number of 
offenses on which it might seek assistance. Some of the 
offenses discussed related to the following: drug trafficking 
and money laundering; money laundering in the non-drug context; 
racketeering, including RICO; continuing criminal enterprises; 
cases involving criminal and civil forfeiture; kidnaping, 
including parental kidnaping; terrorism; fraud, including fraud 
against the government, securities fraud, and insider trading; 
customs, export control, and smuggling cases; taxes; the 
environment; foreign corrupt practices and bribery; antitrust 
violations; currency reporting; computer crime; and alien 
smuggling. Egypt indicated that offenses on which it would seek 
evidence are similar to those discussed by the U.S. delegation.
    Paragraph 4 contains a standard provision in U.S. mutual 
legal assistance treaties,\4\ which states 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, nor is it intended to 
extend to civil matters. Private litigants in the United States 
may obtain evidence from Egypt by letters rogatory, an avenue 
of international assistance which this 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, or to impede the execution of a 
request.
---------------------------------------------------------------------------
    \4\ See, United States v. Johnpoll, 739 F.2d 702 (2nd Cir.), cert. 
denied, 469 U.S. 1075 (1984).
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                     Article 2--Central Authorities

    Article 2 of the Treaty requires that each Party establish 
a ``Central Authority'' for transmission, reception, and 
handling of treaty requests. The Central Authority of the 
United States would make all requests to Egypt on behalf of 
federal agencies, state agencies, and local law enforcement 
authorities in the United States. The Egyptian Central 
Authority will make all requests emanating from officials in 
Egypt.
    The Central Authority for the Requesting Party will 
exercise discretion as to the form and content of requests, and 
also as to the number and priority of requests. The Central 
Authority of the Requested Party is also responsible for 
receiving each request, transmitting it to the appropriate 
federal or state agency, court, or other authority for 
execution, and insuring that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the duties of Central Authority under mutual legal 
assistance treaties to the Assistant Attorney General in charge 
of the Criminal Division.\5\ Paragraph 2 also states that the 
Minister of Justice of Egypt or the person designated by the 
Minister of Justice will serve as the Central Authority for 
Egypt.
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    \5\ 28 C.F.R. Section 0.64-1. The Assistant Attorney General for 
the Criminal Division has in turn delegated the authority to the Deputy 
Assistant Attorneys General and to the Director of the Criminal 
Division's Office of International Affairs, in accordance with the 
regulation. Directive No. 81, 45 Fed.Reg. 79,758(1980), as corrected at 
48 Fed. Reg. 54,595(1983). This authority is further delegated to 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
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    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, INTERPOL channels, or any 
other means, at the option of the Central Authorities 
themselves.

                  Article 3--Limitations on Assistance

    Article 3 specifies the limited classes of cases in which 
assistance may be denied under the Treaty. These restrictions 
are similar to those found in other mutual legal assistance 
treaties.
    Paragraph 1(a) permits the denial of a request if it 
relates to an offense under military law which would not be an 
offense under ordinary criminal law.
    Paragraph 1(b) permits the Central Authority of the 
Requested State \6\ to deny a request if execution of the 
request would prejudice the security or other essential public 
interests of that State. 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.
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    \6\ The terms ``Party'' and ``State'' are used interchangeably in 
the Treaty and have the same meaning.
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    The delegations agreed that the term ``security'' includes 
cases where assistance might involve disclosure of information 
which is classified for national security reasons. It is 
anticipated that the Department of Justice, in its role as 
Central Authority for the United States, would work closely 
with the Department of State and other Government agencies to 
determine whether to execute a request which might fall in this 
category.
    The delegations also agreed that the phrase ``essential 
interests'' was intended to narrowly limit the class of cases 
in which assistance may be denied. It would not be enough that 
the Requesting State's case is one which would be inconsistent 
with public policy had it been brought in the Requested State. 
Rather, the Requested State must be convinced that execution of 
the request would seriously conflict with significant public 
policy. An example might be a request involving prosecution by 
the Requesting State of conduct which occurred in the Requested 
State and is constitutionally protected in that State.
    However, it was agreed that ``essential interests'' could 
also be invoked if the execution of a request would violate 
essential interests related to the fundamental purposes of the 
Treaty. For example, one fundamental purpose of the Treaty 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 U.S. Central Authority may invoke Article 
3(1)(b) to decline to provide information pursuant to a request 
under this Treaty if it determines, after appropriate 
consultation with law enforcement, intelligence, and foreign 
policy agencies, that a senior foreign government official who 
will have access to the information is engaged in a felony, 
including facilitation of the production or distribution of 
illegal drugs.\7\
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    \7\ This is consistent with the Senate resolution of advice and 
consent to ratification of other recent mutual legal assistance 
treaties with, e.g. Luxembourg, Hong Kong, Poland, and Barbados. See, 
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal 
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy 
Assistant Attorney General, Criminal Division, United States Department 
of Justice).
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    In general, the mere fact that the execution of a request 
would involve the disclosure of records protected by bank or 
business secrecy in the Requested State would not justify 
invocation of the ``essential interests'' provision. Indeed, a 
major objective of the Treaty is to provide a formal, pre-
existing channel for making such information available for law 
enforcement purposes.
    The Treaty, unlike most other mutual legal assistance 
treaties, does not expressly permit the denial of a request if 
it involves a ``political offense.'' The U.S. delegation 
proposed that this exception be included in the Treaty, but, as 
the term was unfamiliar to the Egyptian delegation, it was 
removed. The delegations agreed that the Central Authorities 
could deny assistance in cases involving political offenses 
pursuant to the ``essential interests'' provision of Article 
3(1)(b). An exchange of diplomatic notes to this effect was 
submitted for the Senate's information.
    Paragraph 1(c) permits the denial of a request if it was 
not made in conformity with the Treaty.
    Paragraph 2 obligates the Requested State to consider 
imposing appropriate conditions on its assistance in lieu of 
denying a request outright pursuant to the first paragraph of 
the article. For example, a State might request information 
which could be used either in a routine criminal case (which 
would be within the scope of the Treaty) or in a case involving 
a political offense (which would be subject to refusal under 
the Treaty's terms). This paragraph would permit the Requested 
State to provide the information on the condition that it be 
used only in the routine criminal case. It is anticipated that 
the Requested State would notify the Requesting State of any 
proposed conditions before actually delivering the evidence in 
question, thereby according the Requesting State an opportunity 
to indicate whether it is willing to accept the evidence 
subject to the conditions. If the Requesting State does accept 
the evidence subject to the conditions, it must honor the 
conditions.
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance. 
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 should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Content of Requests

    Paragraph 1 of this Article 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 another form must be confirmed in 
writing within ten days unless the Central Authority of the 
Requested State agrees otherwise. The request shall be in the 
language of the Requested State unless agreed otherwise. The 
Egyptian delegation requested that all requests to Egypt be in 
Arabic and the United States expects that all requests from 
Egypt will be in English.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty and which must 
be included in each request. Article 4(3) outlines kinds of 
information which are important, but not always crucial, and 
must be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the parties that requests be as 
simple and straightforward as possible, there is no requirement 
that a request be legalized or certified in any particular 
manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority to promptly 
execute a request. The Treaty contemplates that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to 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 request will be fulfilled 
immediately. If the request meets the Treaty's requirement but 
its execution requires action by some other agency in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct agency for execution. For example, 
the Egyptian delegation explained that given the strict banking 
laws in Egypt, records cannot be released without an order 
issued by the Court of Appeal in Cairo. When a request for 
Egyptian bank records is made, the Minister of Justice will 
transmit the request to a general prosecutor who, in turn, will 
obtain the necessary order on behalf of the United States.
    Where the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power to execute the 
request. This provision is neither intended nor understood to 
authorize the use of the grand jury in the United States for 
the collection of evidence pursuant to a request from Egypt. 
Rather, it is anticipated that when a request from Egypt 
requires compulsory process for execution, the Department of 
Justice would ask a federal court to issue the necessary 
process under Title 28, United States Code, Section 1782, and 
the provisions of this Treaty.
    The third sentence in Paragraph 1 reads ``[t]he Courts of 
the Requested State shall have authority to issue orders 
necessary to execute the request.'' This language specifically 
authorizes United States courts to use all of their powers to 
issue subpoenas and other process to satisfy a request under 
the Treaty. Other recent mutual legal assistance treaties 
specify that the courts have authority to issue subpoenas and 
search warrants, as well as ``other orders necessary'' to 
execute the request. The Egyptian delegation explained that the 
specific terms would have no meaning when translated to Arabic; 
therefore, they asked that the broader terminology be used. The 
agreed upon language reflects an understanding that the Parties 
intend to provide each other with every available form of 
assistance from judicial and executive branches of government 
in the execution of mutual legal assistance requests.
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for and 
meet the costs of representing the Requesting State in any 
proceedings in the Requested State arising out of the request 
for assistance. Thus, it is understood that if execution of the 
request entails action by a judicial or administrative agency, 
the Central Authority of the Requested State shall arrange for 
the presentation of the request to that court or agency at no 
cost to the other State. Since the cost of retaining counsel 
abroad to present and process letters rogatory is sometimes 
quite high, this provision for reciprocal legal representation 
in Article 5(2) is a significant advance in international legal 
cooperation. It is also understood that should the Requesting 
State choose to hire private counsel for a particular request, 
it is free to do so at its own cost.
    Paragraph 3 provides that requests shall be executed 
according to the internal laws and procedures of the Requested 
State except to the extent that the Treaty provides otherwise. 
Thus, the method of executing a request for assistance under 
the Treaty must be in accordance with the Requested State's 
internal laws absent specific, contrary procedures in the 
Treaty itself. For the United States, the Treaty is intended to 
be self-executing, and no new or additional legislation is 
needed to carry out the obligations undertaken.
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures are prohibited in 
the Requested State. This provision is necessary for two 
reasons:
    First, there are significant differences between the 
procedures that must be followed by U.S. and Egyptian 
authorities in collecting evidence in order to assure the 
admissibility of that evidence at trial. For instance, United 
States law permits documents obtained abroad to be admitted in 
evidence if they are duly certified and the defendant has been 
given fair opportunity to test its authenticity.\8\ Since 
Egypt's law contains no similar provision, documents acquired 
in Egypt in strict conformity with Egyptian procedures might 
not be admissible in U.S. courts. Furthermore, U.S. courts use 
procedural techniques such as videotape depositions that simply 
are not used in Egypt even though they are not forbidden there.
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    \8\ Title 18, United States Code, Section 3505.
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    Second, the evidence in question could be subject to 
forensic examination, and sometimes the procedures which must 
be followed to enhance the scientific accuracy of such tests do 
not coincide with those utilized in assembling evidence for 
admission into evidence at trial. The value of such forensic 
examinations could be significantly lessened--and the 
Requesting State's investigation could be retarded--if the 
Requested State were to insist unnecessarily on handling the 
evidence in a manner usually reserved for evidence to be 
presented to its own courts.
    The Treaty's primary goal of enhancing law enforcement in 
the Requesting State could be frustrated if the Requested State 
were to insist on producing evidence in a manner which renders 
the evidence inadmissible or less persuasive in the Requesting 
State. For this reason, Paragraph 3 requires the Requested 
State to follow the procedure outlined in the request to the 
extent that it can, even if the procedure is not that usually 
employed in its own proceedings. However, if the procedure 
called for in the request is unlawful in the Requested State 
(as opposed to simply unfamiliar there), the appropriate 
procedure under the law applicable for investigations or 
proceedings in the Requested State will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately where the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The Central Authority of the Requested State may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence which might otherwise be lost 
before the conclusion of the investigation or legal proceedings 
in that State. The paragraph also allows the Requested State to 
provide the information sought to the Requesting State on 
conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information which is ordinarily protected by Rule 6(e) of the 
Federal Rules of Criminal Procedure in the course of an 
explanation of ``a description of the subject matter and nature 
of the investigation, prosecution, or proceeding'' as 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 in the request confidential.\9\ If the 
Requested State cannot execute the request without disclosing 
the information in question (as might 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 obligates the Requested State to so 
indicate, thereby giving the Requesting State an opportunity to 
withdraw the request rather than risk jeopardizing an 
investigation or proceeding by public disclosure of the 
information. The Egyptian delegation indicated that requests 
for legal assistance can be kept co