Text - Treaty Document: Senate Consideration of Treaty Document 108-23All Information (Except Treaty Text)

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[Senate Treaty Document 108-23]
[From the U.S. Government Printing Office]








108th Congress                                              Treaty Doc.
                                 SENATE
 2d Session                                                    108-23

_______________________________________________________________________






 
                 EXTRADITION TREATY WITH UNITED KINGDOM

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED 
KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, AND RELATED EXCHANGES OF 
            LETTERS, SIGNED AT WASHINGTON ON MARCH 31, 2003




April 19, 2004.--The treaty was read the first time, and together with 
the accompanying papers, referred to the Committee on Foreign Relations 
           and order to be printed for the use of the Senate


                         LETTER OF TRANSMITTAL

                              ----------                              

                                   The White House, April 19, 2004.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification, I transmit herewith the Extradition 
Treaty Between the United States of America and the United 
Kingdom of Great Britain and Northern Ireland, and related 
exchanges of letters, signed at Washington on March 31, 2003.
    In addition, I transmit for the information of the Senate 
the report of the Department of State with respect to the 
Treaty. As the report explains, the Treaty will not require 
implementing legislation.
    The provisions in this Treaty follow generally the form and 
content of modern extradition treaties recently concluded by 
the United States and will replace the outdated extradition 
treaty signed in 1972 and the supplementary treaty signed in 
1985 that are currently in force between the two countries. The 
Treaty will, upon entry into force, enhance cooperation between 
the law enforcement communities of the two countries. It will 
thereby make a significant contribution to international law 
enforcement efforts against serious offenses, including 
terrorism, organized crime, and money laundering offenses.
    I recommend that the Senate give early and favorable 
consideration to the Treaty and give its advice and consent to 
ratification.

                                                    George W. Bush.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                       Washington, October 3, 2003.
The President,
The White House.
    The President: I have the honor to submit to you the 
Extradition Treaty Between the United States of America and the 
United Kingdom of Great Britain and Northern Ireland (``the 
Treaty''), and related exchanges of letters, signed at 
Washington on March 31, 2003. Upon its entry into force, the 
Treaty would replace the outdated extradition treaty signed in 
1972 and the supplementary treaty signed in 1985 that are now 
in force between the two countries. I recommend that the 
Treaty, with related exchanges of letters, be transmitted to 
the Senate for its advice and consent to ratification.
    The Treaty follows generally the form and content of other 
extradition treaties recently concluded by the United States. 
The Treaty represents a major step forward in U.S. efforts to 
strengthen cooperation with countries in the region in 
combating terrorism, organized crime, money laundering, and 
other offenses. It is an important part of a concerted effort 
by the Department of State and the Department of Justice to 
modernize the legal tools available for the extradition of 
serious offenders.
    The Treaty is designed to be self-executing and will not 
require implementing legislation.
    Article 1 obligates each State to extradite to the other, 
pursuant to the provisions of the Treaty, persons sought by the 
authorities in the Requesting State for trial or punishment for 
extraditable offenses.
    Article 2 concerns extraditable offenses. Article 2(1) 
defines an offense as extraditable if the conduct on which the 
offense is based is punishable under the laws in both States by 
deprivation of liberty for a period of one year or more or by a 
more severe penalty. Use of a pure ``dual criminality'' clause, 
rather than categories of offenses listed in the Treaty plus 
other offenses that are listed in relevant UK extradition law 
and are considered felonies under U.S. law, as in the 1972 
extradition treaty, obviates the need to renegotiate or 
supplement the Treaty as additional offenses become punishable 
under the laws in both States. Under the 1972 extradition 
treaty, extradition is to be granted if the offense is defined 
as extraditable under UK law and as a felony under U.S. law, in 
addition to the requirement that the offense be punishable by 
imprisonment or other form of detention for more than one year 
or by the death penalty.
    Article 2(2) further defines an extraditable offense as 
including an attempt or a conspiracy to commit, participation 
in the commission of, aiding or abetting, counseling or 
procuring the commission of, or being an accessory before or 
after the fact to any offense described in paragraph 1 of 
Article 2.
    Additional flexibility is provided by Article 2(3), which 
provides that an offense shall be an extraditable offense (a) 
whether or not the laws in the Requesting and Requested States 
place the offense within the same category of offenses or 
describe the offense by the same terminology; or (b) whether or 
not the offense is one for which United States federal law 
requires the showing of such matters as interstate 
transportation, or use of the mails or of other facilities 
affecting interstate or foreign commerce, such matters being 
jurisdictional only.
    With regard to offenses committed outside the territory of 
the Requesting State, Article 2(4) provides that extradition 
shall be granted in accordance with the provisions of the 
Treaty if the laws in the Requested State provide for the 
punishment of such conduct committed outside its territory in 
similar circumstances. If the laws in the Requested State do 
not provide for the punishment of such conduct committed 
outside of its territory in similar circumstances, the 
executive authority of the Requested State, in its discretion, 
may grant extradition provided that all other requirements of 
the Treaty are met.
    Finally, Article 2(5) provides that if extradition is 
granted for an extraditable offense, it may also be granted for 
any other offense specified in the request if the latter 
offense is punishable by less than one year's deprivation of 
liberty, provided that all other requirements for extradition 
are met.
    Article 3 provides that extradition shall not be refused 
based on the nationality of the person sought.
    Article 4 sets forth bases for the denial of extradition. 
As is customary in extradition treaties, paragraph 1 provides 
that extradition shall not be granted if the offense for which 
extradition is requested constitutes a political offense.
    Article 4(2) specifies seven categories of offenses that 
shall not be considered to be political offenses: (a) an 
offense for which both Parties have the obligation pursuant to 
a multilateral international agreement to extradite the person 
sought or to submit the case to their competent authorities for 
decision as to prosecution; (b) a murder or other violent crime 
against the person of a Head of State of one of the Parties, or 
of a member of the Head of State's family; (c) murder, 
manslaughter, malicious wounding, or inflicting grievous bodily 
harm; (d) an offense involving kidnaping, abduction, or any 
form of unlawful detention, including the taking of a hostage; 
(e) placing or using, or threatening the placement or use of, 
an explosive, incendiary, or destructive device or firearm 
capable of endangering life, of causing grievous bodily harm, 
or of causing substantial property damage; (f) possession of an 
explosive, incendiary, or destructive device capable of 
endangering life, of causing grievous bodily harm, or of 
causing substantial property damage; and (g) an attempt or a 
conspiracy to commit, participation in the commission of, 
aiding or abetting, counseling or procuring the commission of, 
or being an accessory before or after the fact to any of the 
foregoing offenses.
    Article 4(3) requires that, notwithstanding the terms of 
paragraph 2, extradition shall not be granted if the competent 
authority of the Requested State determines that the request is 
politically motivated. In the United States, the executive 
branch is the competent authority for the purposes of the 
Article. Under the 1985 supplementary treaty, the judicial 
branch has the authority to consider whether an extradition 
request is motivated by a desire to punish the person sought on 
account of race, religion, nationality, or political opinions, 
or if the person sought would be subject to unfair treatment in 
UK courts or prisons after extradition. Like all other modern 
extradition treaties, the new Treaty grants the executive 
branch rather than the judiciary the authority to determine 
whether a request is politically motivated.
    Article 4(4) provides that the competent authority of the 
Requested State may also refuse extradition for offenses under 
military law that are not offenses under ordinary criminal law 
(e.g., desertion). In the United States, the executive branch 
is the competent authority for the purposes of the Article.
    Article 5(1) provides that extradition shall not be granted 
when the person sought has been convicted or acquitted in the 
Requested State for the offense for which extradition is 
requested. Additionally, under paragraph 2, the Requested State 
may refuse extradition when the person sought has been 
convicted or acquitted in a third state in respect of the 
conduct for which extradition is sought. Article 5(3) provides 
that extradition shall not be precluded by the fact that the 
competent authorities of the Requested State: (a) have decided 
not to prosecute the person sought for the acts for which 
extradition is requested; (b) have decided to discontinue any 
criminal proceedings that have been instituted against the 
person sought for those acts; or (c) are still investigating 
the person sought for the same acts for which extradition is 
sought.
    Article 6 provides that the decision by the Requested State 
whether to grant the request for extradition shall be made 
without regard to any statute of limitations in either State.
    Article 7 concerns capital punishment. Under Article 7, 
when an offense for which extradition is sought is punishable 
by death under the laws in the Requesting State but not under 
the laws in the Requested State, the executive authority in the 
Requested State may refuse extradition unless the Requesting 
State provides an assurance that the death penalty will not be 
imposed or, if imposed, will not be carried out. The United 
States has agreed to similar formulations in other modern 
extradition treaties (e.g., those with France, Poland, 
Argentina, the Republic of Korea, India, and Peru).
    Article 8 establishes the procedures and describes the 
documents that are required to support a request for 
extradition. All requests for extradition shall be submitted 
through the diplomatic channel. Among other requirements, 
Article 8(3) provides that a request for the extradition of a 
person sought for prosecution must be supported by: (a) a copy 
of the warrant or order of arrest issued by a judge or other 
competent authority; (b) a copy of the charging document, if 
any; and (c) for requests to the United States, such 
information as would provide a reasonable basis to believe that 
the person sought committed the offense for which extradition 
is sought. The Treaty will not change the evidentiary burden 
required for extradition requests to the United States, but the 
Treaty's entry into force will allow the United States to take 
advantage of the United Kingdom Extradition Act of 1989, which 
applies only to treaties that enter into force after 1989. 
Under the 1989 Act, the evidentiary requirements for 
extradition from the United Kingdom are lowered from a ``prima 
facie'' standard to ``evidence sufficient for issuance of a 
warrant,'' which is analogous to the U.S. probable cause 
standard.
    Article 9 establishes the procedures under which documents 
submitted to support an extradition request shall be deemed to 
be authentic and received in evidence.
    Under Article 10, if the Requested State requires 
additional information to enable a decision to be taken on the 
request for extradition, the Requesting State shall respond to 
the request within such time as the Requested State requires.
    Article 11 provides that all documents submitted under the 
Treaty by the Requesting State shall be in English or 
accompanied by a translation into English.
    Article 12 sets forth procedures and describes the 
information that is required for the provisional arrest and 
detention of the person sought, in an urgent situation, pending 
presentation of the formal request for extradition. In 
particular, Article 12(4) provides that if the Requested 
State's executive authority has not received the extradition 
request and supporting documents required by Article 8 within 
sixty (60) days from the date of provisional arrest, the person 
may be discharged from custody. Article 12(5) explicitly 
provides that such a discharge from custody shall not prejudice 
the subsequent re-arrest and extradition of that person if the 
extradition request and supporting documents are delivered at a 
later date.
    Article 13 specifies the procedures governing a decision on 
the extradition request and the surrender of the person sought. 
It requires the Requested State to promptly notify the 
Requesting State of its decision regarding a request. Such 
notification should be transmitted through the diplomatic 
channel directly to the competent authority designated by the 
Requesting State to receive such notification. If the request 
is denied in whole or in part, the Requested State must provide 
reasons for the denial and, upon request, copies of pertinent 
judicial decisions. If extradition is granted, the States shall 
agree on the time and place for the surrender of the person 
sought. If the person sought is not removed from the territory 
of the Requested State within the time period prescribed by the 
law of that State, the person may be discharged from custody, 
and the Requested State, in its discretion, may subsequently 
refuse extradition for the same offense(s).
    Article 14 addresses temporary and deferred surrender. 
Article 14(1) provides that if a person whose extradition is 
sought is being proceeded against or is serving a sentence in 
the Requested State, the Requested State may temporarily 
surrender the person to the Requesting State for the purpose of 
prosecution. If the Requested State requests, the Requesting 
State shall keep the person so surrendered in custody and shall 
return that person to the Requested State after the conclusion 
of the proceedings against that person, in accordance with 
conditions to be determined by mutual agreement of the States. 
Alternatively, under Article 14(2), the Requested State may 
postpone extradition proceedings against a person who is being 
prosecuted or who is serving a sentence in that State. The 
postponement may continue until the prosecution of the person 
sought has been concluded or until such person has served any 
sentence imposed.
    Article 15 provides a non-exclusive list of factors to be 
considered by the executive authority of the Requested State in 
determining to which State to surrender a person whose 
extradition is sought by more than one State.
    Article 16 provides that the Requested State may, to the 
extent permitted under its law, seize and surrender to the 
Requesting State all items and assets, including proceeds, that 
are connected with the offense in respect of which extradition 
is granted. Such items and assets may be surrendered even if 
the extradition cannot be carried out due to the death, 
disappearance, or escape of the person sought. The Requested 
State may condition the surrender of the items upon 
satisfactory assurances that the property will be returned to 
the Requested State as soon as practicable. The Requested State 
may also defer the surrender of such items if they are needed 
as evidence in the Requested State.
    Article 17 permits surrender as expeditiously as possible 
and without further proceedings if the person sought waives 
extradition and agrees to be surrendered to the Requesting 
State.
    Article 18 sets forth the rule of specialty under 
international law. Paragraph 1 provides, subject to specific 
exceptions set forth in paragraph 3, that a person extradited 
under the Treaty may not be detained, tried, or punished in the 
Requesting State except for: (a) Any offense for which 
extradition was granted, or a differently denominated offense 
based on the same facts as the offense for which extradition 
was granted, provided such offense is extraditable, or is a 
lesser included offense; (b) any offense committed after the 
extradition of the person; or (c) any offense for which the 
executive authority of the Requested State waives the rule of 
specialty and thereby consents to the person's detention, 
trial, or punishment. The treaty currently in place does not 
contain such a provision for waiver of the rule of specialty, 
and the preferred practice of States is not to waive the rule 
of specialty unless there is a treaty provision authorizing 
them to do so.
    Article 18(2) provides that a person extradited under the 
Treaty may not be the subject of onward extradition or 
surrender for any offense committed prior to the extradition to 
the Requesting State unless the Requested State consents. The 
Treaty's use of the term ``surrender'' (the operable term in 
the Rome Statute of the International Criminal Court) makes 
explicit that the United Kingdom will not surrender to the ICC 
any person extradited by the United States. The United Kingdom 
has recorded in a separate letter its understanding that the 
Treaty continues the protection implicit in the current treaty 
against surrender to the ICC of fugitives extradited by the 
United States and states in its letter that it will contest any 
request from the ICC for such surrender as being inconsistent 
with Article 98(2) of the Rome Statute.
    Under Article 18(3), these restrictions shall not prevent 
the detention, trial, or punishment of an extradited person, or 
the extradition of a person to a third State, if the extradited 
person leaves the territory of the Requesting State after 
extradition and voluntarily returns to it or fails to leave the 
territory of the Requesting State within twenty (20) days of 
being free to do so.
    Article 19 governs the transit through the territory of one 
State of a person being surrendered to the other State by a 
third State or from the other State to a third State.
    Article 20 contains provisions on representation and 
expenses that are similar to those found in other modern U.S. 
extradition treaties. Specifically, the Requested State is 
required to advise, assist, and appear in court on behalf of 
the Requesting State in any proceedings in the courts of the 
Requested State arising out of a request for extradition or 
make all necessary arrangements for the same. The Requested 
State also bears all expenses incurred in that State in 
connection with the extradition proceedings, except that the 
Requesting State pays expenses related to the translation of 
extradition documents and the transportation of the person 
surrendered. Article 20(3) specifies that neither State shall 
make any pecuniary claim against the other State arising out of 
the arrest, detention, examination, or surrender of persons 
under the Treaty.
    Article 21 provides that the Parties may consult with each 
other in connection with the processing of individual cases and 
in furtherance of efficient implementation of the Treaty.
    Article 22 concerns the application of the Treaty. 
Paragraph 1 makes the Treaty applicable to offenses committed 
before as well as after the date of entry into force.
    Under paragraph Article 22(2), the Treaty shall apply to 
the United States of America and, in relation to the United 
Kingdom, to Great Britain and Northern Ireland, the Channel 
Islands, the Isle of Man, and to any territory for whose 
international relations the United Kingdom is responsible and 
to which the Treaty has been extended by agreement of the 
Parties. Article 22(3) provides that the application of the 
Treaty to any territory in respect of which extension has been 
made in accordance with paragraph 2 may be terminated by either 
State giving six months' written notice to the other through 
the diplomatic channel.
    Pursuant to Article 22(4), a request by the United States 
for the extradition of an offender who is found in any of the 
territories to which this Treaty applies in accordance with 
paragraph 2 of the Article may be made to the Governor or other 
competent authority of that territory. A request on the part of 
any of the territories to which this Treaty applies in 
accordance with paragraph 2 of the Article for the extradition 
of an offender who is found in the United States of America may 
be made to the Government of the United States by the Governor 
or other competent authority of that territory. This paragraph 
streamlines the extradition procedures regarding requests to 
and from UK territories, as such requests currently must go 
through the United Kingdom's central authority in London.
    Article 23 contains clauses dealing with the Treaty's 
ratification and entry into force. Paragraphs 1 and 2 provide 
that the Treaty is subject to ratification and will enter into 
force upon the exchange of instruments of ratification, which 
is to take place as soon as possible.
    Article 23(3) provides that, upon entry into force of the 
Treaty, the Extradition Treaty signed at London on June 8, 
1972, and the Supplementary Treaty signed at Washington on June 
25, 1985, (together ``the prior Treaty'') shall cease to have 
any effect as between the United States and the United Kingdom, 
subject to certain exceptions. The prior Treaty shall apply to 
any extradition proceedings in which the extradition documents 
have already been submitted to the courts of the Requested 
State at the time the Treaty enters into force, except that 
Article 18 of this Treaty relating to the rule of specialty 
shall apply to persons found extraditable under the prior 
Treaty. The prior Treaty shall also apply to any territory to 
which it has been extended in accordance with Article II of 
that Treaty, until such time as the provisions of this Treaty 
have been extended to such a territory under Article 22(2).
    Article 24 provides that either State may terminate the 
Treaty at any time by giving written notice to the other State 
through the diplomatic channel. Such termination shall be 
effective six months after the date of receipt of such notice.
    The Department of Justice joins the Department of State in 
favoring approval of this Treaty by the Senate at the earliest 
possible date.
    Respectfully submitted.
                                                   Colin L. Powell.