Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?

110th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      110-14

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



 
                    TREATY WITH MALAYSIA ON MUTUAL 
                            LEGAL ASSISTANCE

                                _______
                                

               September 11, 2008.--Ordered to be printed

                                _______
                                

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

                                 REPORT

                   [To accompany Treaty Doc. 109-22]

    The Committee on Foreign Relations, to which was referred 
the Treaty between the United States of America and Malaysia on 
Mutual Legal Assistance in Criminal Matters, signed at Kuala 
Lumpur on July 28, 2006 (Treaty Doc. 109-22), having considered 
the same, reports favorably thereon with one declaration, as 
indicated in the resolution of advice and consent, and 
recommends that the Senate give its advice and consent to 
ratification thereof, as set forth in this report and the 
accompanying resolution of advice and consent.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Major Provisions.................................................3
 IV. Entry Into Force.................................................4
  V. Implementing Legislation.........................................5
 VI. Committee Action.................................................5
VII. Committee Recommendation and Comments............................5
VIII.Resolution of Advice and Consent to Ratification.................6


                               I. Purpose

    The Treaty between the United States of America and 
Malaysia on Mutual Legal Assistance in Criminal Matters (the 
``MLAT with Malaysia'' or ``Treaty'') is one of a series of 
modern mutual legal assistance treaties that have been 
negotiated by the United States and is designed to provide a 
formal basis for mutual cooperation between the United States 
and Malaysia on law enforcement matters so as to enhance the 
ability of the United States to investigate and prosecute 
crimes.

                             II. Background

    In order for the United States to successfully prosecute 
criminal activity that is transnational in scope, it is often 
necessary to obtain evidence or testimony from a witness in 
another country. While U.S. federal courts may issue subpoenas 
to U.S. nationals overseas, they lack the authority to subpoena 
foreign nationals found in other countries or the authority to 
subpoena evidence in a foreign country. In addition, 
effectuating service of a subpoena to U.S. persons abroad may 
prove difficult.
    In the absence of an applicable international agreement, 
the customary method for obtaining evidence or testimony in 
another country is via a ``letter rogatory,'' which tends to be 
an unreliable and time-consuming process. The term ``letter 
rogatory'' is generally used to refer to a formal communication 
in writing that is sent by a court in which an action is 
pending to a court in a foreign country, requesting that 
certain evidence or the testimony of a person within the 
latter's jurisdiction be formally obtained for use in the 
requesting court's pending action. The State Department advises 
that the letter-rogatory process can often take a year or more 
and, unless undertaken pursuant to an international agreement, 
compliance is a matter of judicial discretion. Furthermore, the 
scope of foreign judicial assistance might also be limited by 
domestic information-sharing laws, such as bank and business 
secrecy laws, or be confined to evidence relating to pending 
cases rather than preliminary, administrative, or grand jury 
investigations conducted prior to the filing of formal charges. 
Mutual Legal Assistance Treaties (``MLATs'') are designed to 
overcome these and similar problems.
    MLATs are international agreements that establish a formal, 
streamlined process by which governments may gather information 
and evidence in other countries for use in criminal 
investigations and prosecutions. While the specific provisions 
of MLATs vary, they generally obligate treaty partners to take 
steps on behalf of a requesting treaty partner when certain 
conditions are met. MLATs typically contain provisions 
concerning the sharing of collected information between 
parties, the location and identification of persons and 
potential witnesses within the parties' territories, the taking 
of depositions and witness testimony, and the serving of 
subpoenas duces tecum on behalf of a requesting treaty 
party.\1\ Such provisions provide for the easier acquisition of 
evidence and testimony than via letters rogatory and do so in a 
manner designed to be compatible with the admissibility 
requirements of the requesting State's courts. MLATs also 
typically contain provisions concerning the allocation of costs 
between parties, the form and content of requests for legal 
assistance, the designation of national law enforcement 
agencies or officials responsible for treaty administration, 
and the grounds for which a treaty party may refuse to provide 
legal assistance. Increasingly, MLATs have been used as a tool 
to combat terrorism.
---------------------------------------------------------------------------
    \1\A subpoena duces tecum is a specific form of subpoena, also 
called a ``subpoena for the production of evidence.'' It is a subpoena 
issued by a court ordering the parties named to appear and to produce 
tangible evidence for use at a hearing or trial.
---------------------------------------------------------------------------
    The Malaysia MLAT is the first such treaty between the 
United States and Malaysia. Under Malaysian law, in the absence 
of this Treaty, there is no obligation to provide assistance to 
the United States in investigations prior to the initiation of 
court proceedings, and thus this Treaty would substantially 
enhance the ability of the United States to investigate and 
prosecute crimes for which such assistance is necessary. A 
detailed paragraph-by-paragraph analysis of this treaty may be 
found in the Letter of Submittal from the Secretary of State to 
the President on this instrument, which is reprinted in full in 
Treaty Document 109-22. What follows is a brief summary of some 
key provisions.

                         III. Major Provisions

    As with most MLATs, the MLAT with Malaysia generally 
obligates the parties to assist each other in criminal 
investigations, prosecutions, and related law enforcement 
proceedings, as well as civil or administrative proceedings 
such as forfeiture proceedings that may be related to criminal 
matters. Article 1(2) provides a non-exhaustive list of 
assistance to be rendered by each Party, which includes the 
taking of evidence, such as testimony, documents, records and 
items or things, on a requesting party's behalf by way of 
judicial process; executing searches and seizures; effecting 
service of judicial documents; sharing certain obtained 
information or evidence with a requesting State; freezing and 
forfeiting assets or property; permitting the temporary 
transfer of persons in custody to the requesting party; and 
other agreed-upon forms of assistance.
    Article 3 sets forth an extensive list of circumstances 
under which a requested State may deny legal assistance to the 
requesting State. Some of the grounds listed are commonly found 
in MLATs to which the United States is a party, such as the 
ground in Article 3(1)(f) permitting the denial of a request 
when it would prejudice the requested State's sovereignty, 
security, public order, or other essential interest; and the 
political offense exception in Article 3(1)(a).
    Some of the grounds listed in Article 3 for denying 
assistance are not commonly found in MLATs to which the United 
States is a party. For example: the MLAT with Malaysia would 
expressly permit the denial of assistance when there are 
substantial grounds for believing that a request was made for 
the purpose of investigating, prosecuting, or punishing a 
person on account of the person's race, religion, sex, ethnic 
origin, nationality, or political opinions;\2\ the Treaty would 
permit the denial of requests relating to the investigation or 
prosecution of a person for an offense in a case in which that 
person has already been convicted or acquitted by a court in 
the requested State for the same offense;\3\ and the Treaty 
would permit the denial of assistance on the grounds that the 
offense does not appear to be of ``sufficient gravity''\4\ or 
relates to an item of ``insufficient importance''\5\ to an 
investigation. According to the State Department, the 
negotiators of the MLAT with Malaysia believe that these 
grounds for refusal would rarely, if ever, be employed.\6\
---------------------------------------------------------------------------
    \2\See Article 3(1)(c). A similar ground for denying assistance can 
be found in Article 3(1)(b) of the Treaty between the United States and 
South Korea on Mutual Legal Assistance in Criminal Matters, Treaty Doc. 
104-1, approved by the Senate on August 2, 1996.  See also Article 
3(1)(d) of the Treaty with the Bahamas on Mutual Assistance in Criminal 
Matters, Treaty Doc. 100-17, approved by the Senate on October 24, 1989 
(assistance may be denied by the Requested State on the grounds that 
``there are substantial grounds leading the Central Authority of the 
Requested State to believe that compliance would facilitate the 
prosecution or punishment of the person to whom the request refers on 
account of his race, religion, nationality or political opinions.'').
    \3\See Article 3(1)(d). A similar ground for denying assistance can 
be found in Article 10(1)(c) of the Treaty between the United States 
and the Kingdom of the Netherlands on Mutual Assistance in Criminal 
Matters, together with an exchange of notes, Treaty Doc. 97-16, 
approved by the Senate on December 2, 1981.
    \4\See  Article 3(1)(h).
    \5\See  Article 3(1)(i).
    \6\See  the Secretary of State's Letter of Submittal, Treaty Doc. 
109-22 at p. VIII.
---------------------------------------------------------------------------
    Finally, in accordance with Article 3(1)(e) a request for 
assistance under the MLAT with Malaysia may be refused when it 
relates to an act or omission that, if it had occurred in the 
requested State, would not constitute an offense punishable by 
either a deprivation of liberty for a period of at least one 
year or a more severe penalty. According to the State 
Department, although the United States generally does not 
impose a ``dual criminality'' requirement upon mutual legal 
assistance requests, Malaysian law prohibits the providing of 
assistance in support of an investigation or prosecution of an 
offense that is not recognized in Malaysia.\7\ The State 
Department has indicated, however, that a review by negotiators 
of the criminal codes of the United States and Malaysia 
``revealed broad areas of commonality ... establishing that a 
dual criminality refusal ground would not unduly restrict the 
ability of U.S. authorities to obtain assistance.''\8\
---------------------------------------------------------------------------
    \7\  Id. at p. VII.
    \8\  Ibid.
---------------------------------------------------------------------------
    Article 3 additionally includes provisions designed to 
limit the use of grounds for refusing assistance. Article 3(2) 
refers to a non-exclusive list in the Annex of offenses that 
satisfy the treaty's dual criminality requirement and for which 
assistance shall not be refused pursuant to Article 3(1)(e), as 
described above. Article 3(3) states that ``[a]ssistance shall 
not be refused solely on the ground of secrecy of banks and 
similar financial institutions or that the offence is also 
considered to involve fiscal matters.''
    Articles 4 and 5 prescribe the form and contents of 
requests under the Treaty. Article 6 generally obligates both 
Parties' competent authorities to promptly execute requests; to 
respond within a reasonable period of time to reasonable 
inquiries by the competent authority of the requesting State; 
and to promptly inform the competent authority of the 
requesting state of the outcome of the execution of a request. 
Articles 8-17 set forth in detail the procedures to be employed 
in the case of specific types of requests for legal assistance. 
Article 19, which addresses the allocation of costs associated 
with providing assistance, provides that the requested State 
must pay all costs relating to the execution of a request, with 
certain exceptions. This allocation of costs is common in MLATs 
to which the United States is a party.

                          IV. Entry Into Force

    In accordance with Article 22, this Treaty shall enter into 
force upon the exchange of instruments of ratification between 
the United States and Malaysia. Once in force, however, the 
Treaty shall apply to all requests presented between the 
Parties regardless of when the acts or omissions constituting 
the offense occurred.\9\
---------------------------------------------------------------------------
    \9\See Article 22(3).
---------------------------------------------------------------------------

                      V. Implementing Legislation

    This treaty, which is self-executing, will be implemented 
by the United States in conjunction with applicable federal 
statutes, including 18 U.S.C. Sec. 1782. No additional 
legislation is needed for the United States to fulfill its 
obligations under this Treaty.

                          VI. Committee Action

    The committee held a public hearing on this Treaty on May 
20, 2008. Testimony was received from Susan Biniaz, Deputy 
Legal Adviser at the Department of State and Bruce Swartz, 
Deputy Assistant Attorney General in the Criminal Division at 
the Department of Justice. A transcript of this hearing is 
annexed to Executive Report 110-12.
    On July 29, 2008, the committee considered this treaty and 
ordered it favorably reported by voice vote, with a quorum 
present and without objection.

               VII. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that the MLAT 
with Malaysia, which would enhance law enforcement cooperation 
between the United States and Malaysia, would further U.S. 
efforts in fighting terrorism and transnational crime. 
Accordingly, the committee urges the Senate to act promptly to 
give advice and consent to ratification of this Treaty, as set 
forth in this report and the accompanying resolution of advice 
and consent.

                       A. AMENDMENTS TO THE ANNEX

    In an effort to provide certainty to U.S. and Malaysian 
authorities seeking assistance, an Annex was included that 
provides a non-exclusive list of offenses for which the Parties 
have already established that dual criminality exists. In 
accordance with Article 3(2) of the MLAT with Malaysia, a 
request that relates to an offense identified in the Annex 
cannot be refused for a lack of dual criminality pursuant to 
Article 3(1)(e) of the Treaty. A similar Annex was included in 
the 1993 Treaty with the Republic of Korea on Mutual Legal 
Assistance in Criminal Matters.\10\
---------------------------------------------------------------------------
    \10\Treaty Doc. 104-1.
---------------------------------------------------------------------------
    An amendment simply adding an offense, or several offenses, 
to the Treaty's Annex that both Parties have established meets 
the dual criminality requirement should not, in the normal 
course, rise to the level of an amendment that requires the 
advice and consent of the Senate. If, however, an amendment to 
the Annex goes beyond the addition of an offense or offenses 
that both Parties have established meet the dual criminality 
requirement, the committee expects the executive branch to 
consult with the committee in a timely manner in order to 
determine whether advice and consent is necessary.

                             B. RESOLUTION

    The committee has included in its resolution of advice and 
consent one declaration, which is discussed below.

Declaration

    The committee has included a proposed declaration in the 
resolution of advice and consent, which states that the MLAT 
with Malaysia is self-executing. This declaration is consistent 
with statements made in the Letter of Submittal from the 
Secretary of State to the President on this instrument\11\ and 
with the historical practice of the committee in approving 
mutual legal assistance treaties.\12\ The Senate has rarely 
included statements regarding the self-executing nature of 
treaties in resolutions of advice and consent, but in light of 
the recent Supreme Court decision, Medellin v. Texas, 128 S.Ct. 
1346 (2008), the committee has determined that a clear 
statement in the resolution is warranted. A further discussion 
of the committee's views on this matter can be found in Section 
VIII of Executive Report 110-12.
---------------------------------------------------------------------------
    \11\ Treaty Doc. 109-22 at p. V (stating that ``The [MLAT with 
Malaysia] is self-executing ... .'').
    \12\The committee has consistently expressed the view that mutual 
legal assistance treaties are self-executing. See, e.g., Exec. Rept. 
107-15 at p. 6 (stating that ``[i]it is anticipated that, for the 
United States, the [Mutual Legal Assistance Treaty with Belize] will be 
``self-executing.''); and Exec. Rept. 109-14 at p. 6 (stating that 
``[t]he committee notes that the provisions of the [Mutual Legal 
Assistance Treaties with Germany and Japan] are self-executing.'').
---------------------------------------------------------------------------

         VIII. Resolution of Advice and Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Treaty between the United States of America and Malaysia on 
Mutual Legal Assistance in Criminal Matters, signed at Kuala 
Lumpur on July 28, 2006 (Treaty Doc. 109-22), subject to the 
declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:
          This Treaty is self-executing.