Mutual
Legal Assistance Treaties: Necessity, Merits,
and
Problems Arising in the Negotiation Process
John
E. Harris
Director
Office
of International Affairs
Criminal
Division
United
States Department of Justice
It is a great pleasure
to be here today in the conference hall of the Ministry of Justice
of Japan.I am very honored to be given the opportunity by the
Ministry of Justice and the Asia Crime Prevention Foundation
(ACPF), the Japan Criminal Policy Association (JCPA), and the
United Nations Asia Far East Institute (UNAFEI) to share with
you my thoughts on the merits of mutual legal assistance treaties,
and some of the problems arising from the negotiation process.
However,
before I go any further, I would like to especially thank Mr.
Mikinao Kitada, the Director of UNAFEI, for his kind hospitality,
his wise advice, and for the excellent program that he and his
outstanding staff put together for all of us at the 114th UNAFEI
Senior Seminar. efore I came to UNAFEI, I was told by previous
U.S. participants to prepare myself for the experience of a lifetime,
and I have not been disappointed. This seminar has given me an
abundance of new information about strategies for combating organized
crime. More important, it has given me renewed appreciation for
the wonders of Japanese culture and the hospitality of the Japanese
people. And, finally, it has given me the opportunity to meet
and work with the participants here, who are key law enforcement
officials from around the world, and the bonds of personal friendship
established here will never be forgotten.
Now, I should like
to start by sharing with you some information about my own organization,
the Office of International Affairs in the Criminal Division
of the United States Department of Justice. OIA was established
twenty-one years ago this week, and specialize in processing
requests to and from the United States for extradition and mutual
legal assistance. We also participate with the State Department
in the drafting of new extradition and mutual legal assistance
treaties (MLATs), multilateral crime conventions, and other initiatives
to improve international law enforcement cooperation. The staff
of OIA consists of nearly eighty men and women in Washington,
D.C. as well as attorneys and associated staff in six foreign
countries. On any given day, we are in the process of handling
about 6,000 requests to and from the U.S., for extradition and
mutual assistance. About two thirds of these are requests for
mutual assistance, and the number of requests grows every year,
due in large part to the growth of transnational organized crime.
It is primarily on this experience that I will base my remarks
to you today.
I.
Mechanism for International Cooperation
In order to discuss the operation of mutual legal assistance
treaties, I must first discuss some other mechanisms for international
law enforcement cooperation, against which MLATs can be compared.
A. Letters Rogatory
A letter rogatory is a request from a judge in one country to
a judge in another in which the former asks the latter to use
the requested state's judicial power to assist the requesting
judge. While this process was developed to enable judges to aid
judges, a judge in the requesting state may issue letters rogatory
on behalf of the police or prosecutors in that country.
Virtually every country has legislation for execution of letters
rogatory, or permits its judges to execute them as a matter of
comity. In the United State, the applicable legislation is Title
28, United States Code, Section 1782.
Once the requesting state=s judge signs the letter rogatory,
it is transmitted via diplomatic channels, a process that can
take many weeks or months. Upon arrival, it is first reviewed
by the requested state=s Ministry of Foreign Affairs, a process
which can add a degree of uncertainty to the process, because
the diplomatic corps is generally considered free to refuse to
act on a letter rogatory if they feel that the assistance sought
would be inconsistent with the requested state=s public policy.
If the request is accepted by the Ministry of Foreign Affairs,
it usually is forwarded to the Ministry of Justice or Attorney
General=s chambers in the requested state, which typically transmits
the request to a judge for execution. The judge generally is
under no obligation to execute the request, and if he or she
does execute the request, it will be done in strict compliance
with the law of the requested state. This can add another level
of uncertainty to the process, because the law of the requested
state may be very different from that of the requesting on such
matters as the authentication of evidence, the manner in which
evidence is taken or preserved, the privileges that witnesses
may invoke. In some instances, the law of the requested state
may contain restrictions on cooperation that seriously impede
efforts to execute the request. For example, some countries
refuse to execute letters rogatory issued before formal criminal
charges are filed in the requesting state. This is a serious
limitation, since sometimes the requesting state needs the evidence
sought to determine whether charges should be filed. Another
example: in some countries, the bank secrecy laws do not permit
bank records to be obtained via letters rogatory. After the
request has finally been executed (or execution has been denied),
the results are usually sent back to the requesting judge via
diplomatic channels.
The letter rogatory process has occasionally produced spectacularly
successful results for us. In the Bank of Credit Commerce International
case (BCCI) investigation, the U.S. sent letters rogatory to
about twelve different foreign countries for bank records and
other evidence needed to investigate and prosecute those suspected
of being responsible for the bank=s collapse.
Too often, however, the letter process is not very successful,
and the prosecutor or police officer who generates a letter rogatory
may wait many frustrating months, or years, only to find that
the requested evidence is not produced. We have many cases
in which evidence sought by letters rogatory is supplied long
after the trial for which it was requested has been completed.
There have been several recent efforts to make the letters rogatory
system work more efficiently and effectively. In 1959 the Council
of Europe developed a treaty that provides for the mutual execution
of letters rogatory, and is in the process of updating that treaty.
The European Union has also negotiated a regional mutual legal
assistance treaty. And during the UNAFEI seminar we heard in
detail about the efforts that the European Union has begun to
establish Ajudicial network@ which will allow letters rogatory
to be transmitted directly between judges in European Union nations,
and thereby expedite execution of letters rogatory between nations
covered by this network. Whether these efforts will bear fruit
remains to be seen.
My personal view is that the European Ajudicial network@ may
improve the execution of letters rogatory in Europe, but the
letters rogatory process itself has limitations that seriously
curtail its effectiveness for non - European states. Historically,
letters rogatory were developed in certain civil law countries
in Europe in which an Ainvestigating magistrate@ oversees the
criminal investigation and assembles the evidence against the
suspect prior to the trial. It makes sense for the investigating
magistrate in one such country to help the investigating magistrate
of the neighboring country, and to expect such help in return.
In many non-European countries, however, judges ordinarily do
not participate directly in the criminal investigation. Rather,
it is the job of the police to solve crime, and it is the job
of the prosecutor to present the incriminating evidence at trial;
in countries that follow this legal tradition, the judge is supposed
to be a strictly impartial referee at trial, and not an active
participant in the criminal investigation. For such countries,
letters rogatory never work very well as a tool for gathering
evidence, because the prosecutors and police who need evidence
from abroad can generate a letter rogatory only by enlisting
the help of a judge, who must pretend to be the requesting authority.
I share these thoughts with you because this background helps
explain why bilateral mutual legal assistance treaties are a
particular necessity to countries like the U.S. and Japan, in
which judges do not control the investigation. At the risk of
oversimplification, I believe that Interpol is best suited to
enables police in one nation to help the police in another; letters
rogatory are designed to enable judges to help judges. Bilateral
MLATs are designed to enable prosecutors to help prosecutors.
B.
Multilateral Treaties on Crime
There is another mechanism for international cooperation that
should be considered: multilateral treaties dealing with specific
crimes. In recent years, there have been a growing number of
multilateral treaties calling for cooperation in combating one
crime problem or another. These include the United Nations conventions
against terrorism (which include the UN Convention Against Terrorist
Financing, the UN Convention Against Terrorist Bombing, and the
UN Convention on Crimes Against Internationally Protected Persons)
and on drug trafficking (such as the 1988 United Nations Convention
Against Illicit Trafficking in Narcotic Drugs and Psychotropic
Substances). There are also regional crime conventions, such
as the Council of Europe Conventions on Money Laundering and
on Corruption. There are also Organization of American States
Conventions Against Firearms Trafficking and the Organization
of American States Convention Against Corruption. It has become
fashionable for these conventions to include provisions that
oblige the signatories to provide a measure of assistance to
other signatory states in connection with offenses described
in the convention. These clauses range from the very general
exhortation to provide Athe widest measure of assistance to the
detailed Amini-MLAT found in the 1988 UN Drug Convention. The
UN is currently working on a comprehensive Transnational Organized
Crime Convention, and it appears that this Convention=s provisions
on mutual assistance will be quite comprehensive. The U.S. strongly
supports these negotiations, and has been deeply involved in
the talks in Vienna. I must confess, however, that our experience
has been that these conventions have been useful in encouraging
states to harmonize their criminal legislation and penalize specific
conduct deemed unacceptable by the international community, but
these treaties do not seem to be used very often as practical
vehicles for mutual legal assistance in actual cases.
With this background, we can now turn to the mechanism for international
cooperation that has proven most useful to us: the bilateral
mutual legal assistance treaty.
C. Mutual Legal Assistance Treaties
Our first MLAT, negotiated with Switzerland, entered into force
only twenty one years ago, and at that time was the first MLAT
ever concluded between a common law nation and a civil law nation.
Since that time, the United States had made and received several
thousand requests under MLATs from various countries. We in
OIA have made and executed these requests at the same time that
we processed hundreds of requests for evidence by letters rogatory
and other processes, so we have had a good opportunity to see
and compare the operation of the various processes. There is
no doubt in my mind that MLATs provide a more basis for cooperation
in evidence-gathering than many of the other mechanisms available.
The United States now has thirty one (31) MLATs in force, with:
Switzerland, Turkey, Italy, the Netherlands, Canada, Mexico,
the Bahamas, the United Kingdom (regarding the Cayman Islands),
Thailand, Morocco, Spain, Argentine, Jamaica, Uruguay, Panama,
the Philippines, the United Kingdom, Hungary, Korea, Austria,
Israel, Antigua, Lithuania, St. Vincent and the Grenadines, Grenada,
Latvia, Poland, Australia, Trinidad, Belgium, and most recently,
the Hong Kong Special Administrative Region. We have signed
MLATs with another twenty three (23) countries, and these treaties
will enter into force in the next few months. These fifty four
treaties regulate our mutual assistance relationship with major
nations on every continent, including most European countries
and many of the world's major Abank secrecy jurisdictions.
Other countries, too, have begun active campaigns to negotiate
MLATs, and the rapidly expanding network of bilateral MLATs will
soon rival the network of extradition treaties.
For our part, the United States has made the negotiation of MLATs
in Asia a high priority, in order to work more closely with important
countries in this region in combating transnational organized
crime. For that reason, we have MLATs in force with Thailand,
the Philippines, the Republic of Korea, Australia, and the Hong
Kong Special Administration Region. We are currently in the
process of negotiating an MLAT between the United States and
Japan, which I might add, is represented by an excellent team
of very skilled negotiators.
Each of our MLAT places an unambiguous obligation on each party
to provide assistance in connection with criminal investigations
in the other party. MLATs entitle the requesting state to assistance
in acquiring bank records and other financial information; questioning
witnesses and taking statements or testimony; obtaining copies
of government records, including police reports; serving documents;
transferring persons in custody for purposes of cooperation;
conducting searches and seizures; and repatriating stolen property
or proceeds of crime.
Each MLAT also permits any other form of assistance not prohibited
under the law of the requested state. This broad language permits
the MLATs to grow over time in a way other arrangements do not,
and we have successfully used the MLATs to handle more sophisticated
and difficult requests B including some matters not envisioned
during the initial negotiations. For example, we have made and
received requests under MLATs with Italy, Switzerland, and Spain
to conduct video-link depositions, using real-time, transatlantic
satellite television connection. We have also used MLATs requests
to search for and seize information from computer hard drives,
or obtain court orders to seize information from Internet Service
Providers. We have used MLATs to obtain authorization to conduct
undercover operations, or conduct electronic surveillance, where
permitted by the law of the requested state. We have used the
MLATs recover stolen art or archeological treasures worth millions
of dollars, and repatriate those objects to the home country.
While the MLATs differ a bit from one another, there are five
key components that are essential to their success:
1. Scope
Each MLAT clearly specifies the scope of the obligation to provide
assistance. All require that cooperation must be provided at
the earliest stage of the investigation, prior to the filing
of formal charges, thus eliminating one problem with some letters
rogatory. The U.S. also prefers that MLATs cover Afiscal@ matters
such as tax crimes.
2.
Bases for Denial
Each MLAT specifies the grounds on which assistance can be denied.
MLATs typically allow denial of requests that appear to involve
a political offenses or a military offense not recognized under
the ordinary criminal law, or if the request would violate the
constitution of the requested state. All MLATs permit denial
of requests that would violate the Aessential interests@ of the
requested state B interests such as national security or basic
public policy. By specifying the grounds on which requests
can be denied, the MLATs bring predictability to transnational
cooperation.
Some of our earliest MLATs (with Switzerland and the Netherlands)
contained a list of the crimes for which assistance could be
granted, and permitted denial of the request if the case involved
a crime not on the list. We quickly learned that this list approach
was not helpful, as it impeded cooperation in major cases in
which the laws of the two countries were different but there
was no Aessential interest@ served by refusal to grant the aid.
Therefore, our subsequent MLATs usually permit assistance to
be granted for any crime for which there is Adual criminality,@
i.e., if the acts committed would be an offense in either the
requesting or requested state. We soon concluded, however, that
even that is too restrictive a rule for mutual legal assistance,
for two reasons. First, in the early stages of an investigation
it is difficult to predict what crime ultimately will be charged.
Second, there can easily be cases in which the requesting state
is investigating a matter that is not a crime in the requested
state but there is absolutely no public policy reason to decline
assistance. (Example: Japan has gun control laws that are more
stringent than those in the U.S., but if Japan were to seek U.S.
assistance in a matter involving the regulation of firearms,
we would want to assist, even if we happened not to have that
precise regulation that you are trying to enforce). Accordingly,
the majority of our MLATs do not require dual criminality unless
the request is for a search and seizure or for the confiscation
of assets. In fact, many of our MLATs state that dual criminality
may not be basis for denying assistance at all.
3. Use limitations
All of the MLATs clearly forbid the requesting state from using
information or evidence supplied under the MLAT for any case
or investigation other than that for which the information or
evidence was requested. This kind of provision is similar to
the rule of specialty in extradition matters, and helps assure
the requested state that the information provided will be used
only for proper purposes.
4. Central Authority
One key feature of the MLATs is that each party must name a ACentral
Authority,@ i.e., an agency or person designated to see to the
prompt execution requests from the other party. In virtually
every MLAT, the Central Authority is the Ministry of Justice
or the Attorney General of each state. Under U.S., the Attorney
General is designated as the Central Authority for the U.S.,
and the Attorney General has delegated that task to my office.
Why do MLATs require a Central Authority? Let me explain. An
MLAT is a vessel for delivering transnational cooperation, and
the Central Authority is the crew necessary to operate the vessel.
A good Central Authority cannot be merely a Amailbox through
which requests are transmitted. Rather, a good Central Authority
is expected to take an active role in insuring the each request
is executed. For example, the U.S. Central Authority carefully
and thoroughly reviews each MLAT request as soon as it is received.
If there are flaws in the request, we contact the sending state
and advise it of those flaws. If the request appears to be in
order, we, as the Central Authority, either execute the request
itself (if the request seeks something that is in our direct
power to do) or send it to the agency or authority that does
have the power to do so. The Central Authority then must ensure
that the agency follows through with the execution of the request,
and get the results back to the requesting Central Authority
without undue delay. The Central Authority is thus a bit like
a Atraffic cop, and must have the skill and diplomacy to make
sure that all request flow smoothly through the system, but must
also have the legal muscle to step in if the process bogs down.
Incidentally, the Central Authority initial decision of which
agency to send the request to for execution can be a crucial
decision. To give you an example, in the U.S., there are over
16,000 different Federal, state, and local law enforcement agencies,
and foreign authorities can have real difficulty knowing which
agency is the appropriate one to handle a particular request.
Just before I left Washington for Japan, I saw a request from
a foreign prosecutor who is investigating a drug trafficking
organization in her country that launders drug money through
U.S. banks and uses the proceeds to buy guns to give to a terrorist
organization operating in that country. If the U.S. did not
have a Central Authority, the foreign prosecutor would have to
guess whether to send the request to DEA (which handles narcotics
investigations) or the FBI (which handles terrorism matters)
or directly to a Federal court (which issues the compulsory process
needed to obtain bank records) or the Treasury Department (which
takes the lead in money laundering investigations) or the Bureau
of Alcohol Tobacco and Firearms (ATF) (which supervises firearms
investigations) B and a wrong guess would cost precious time
in executing the request.
Our practical experience has been that a good Central Authority
is a key part of to the success or failure of an MLAT.
5. Asset Forfeiture
The most successful MLATs all make provision for cooperation
in cases in which unlawfully obtained assets are located in the
requested state. Many of these MLATs also provide for sharing
the confiscated assets between the parties to the treaty. The
US has used the MLATs to recover between $200 million and $300
million in drug proceeds and other illegal funds, but I should
point out that we do not keep all of this money. Instead, our
practice is to share confiscated funds with our MLAT partners
who assisted us in obtaining the evidence to prosecute the case.
All of our most recent MLATs contain these five ingredients,
and these elements, among others, help make the MLAT process
an especially effective mechanism for transnational cooperation.
In the twenty years since our first MLAT, with Switzerland,
entered into force, the United States had made and received several
thousand requests under MLATs from various countries. You may
be interested to know that the pattern of requests under the
MLATs varies widely. Under some of our MLATs, the United States
makes far more requests than we receive. For instance, we make
about four requests to Switzerland for every one request Switzerland
makes to us. On the other hand, there are several MLATs in which
we receive far more requests than we make. For example, we received
about 250 requests from Argentine for every 10 we make to that
country. Over all, we have roughly the same number of incoming
and outgoing requests, and I believe that the number of requests
we make is about equal to the number we receive.
II.
Advantages and Disadvantages of MLATs
I am supposed to talk to you about the problems involved in negotiating
and implementing MLATs, but with your permission I would like
to approach that issue in a slightly different way. I tried
to list the key problems I have seen in the MLAT process, but
I quickly found that each Aproblem@ actually had two aspects,
reflecting the advantages and disadvantages of the MLAT system
in general. Therefore, instead of giving you a catalogue of
problems, I would like to discuss the advantages we see of MLATs,
and the disadvantages, and then describe some of the issues that
have had to resolved in the course of various MLAT negotiations.
At the outset, I should confess that I have heard some people
who say that there would be little or no need for MLATs, or to
assess the advantages and disadvantages of MLATs, if nations
rewrite their internal legislation to unilaterally extend broad
cooperation with other nations. I don=t agree. Modern, effective
mutual legal assistance legislation is essential to implement
MLATs, and it is a good thing if the legislation also permits
cooperation without a treaty. However, even the best internal
laws cannot fully take the place of a clear agreement between
states on the ground rules for cooperation, especially where
the more sophisticated forms of cooperation are involved. I
can tell you a little about our experience in this area, which
supports my conclusion. Almost forty years ago, our Congress
thoroughly revised our mutual assistance law to give U.S. judges
more discretion to provide international assistance. The U.S.
law, found in Title 28, United States Code, Section 1782, is
still our principle mutual assistance legislation, and in many
ways it is one of the broadest and most flexible in the world.
It does not require dual criminality, and it does not require
that formal charges have been filed in the requesting state,
and it does not require any assurance of reciprocity. The law
does not require that requests be received through diplomatic
channels, or follow any particular form. Requests can be from
a foreign judge, or an international tribunal, or Aany interested
person.@ At the time that it was enacted, 28 U.S.C. 1782 won
praise for its flexibility and openness. But we have since seen
that despite the commendable flexibility of Section 1782, the
MLATs play an important role in clarifying the kinds of aid available
and the procedures to be followed in providing forms of assistance
we had not dreamed of in 1961. Moreover, our experience has
been that Section 1782 has considerably improved our ability
to execute requests from other countries, but it does not guarantee
that other countries provide assistance to us when we need it.
For example, we quickly saw that the foreign countries who need
assistance from the U.S. (and who benefit most from our legislation)
are not necessarily the same countries whose assistance we need.
Obtaining practical, reliable assistance from other nations
is far more complicated than demanding a promise of reciprocity
before executing another country=s mutual assistance request.
For instance, during the early and mid 1970s, the U.S. received
a lot of requests for assistance from Canada and Argentina, both
of which were grateful for the 1961 improvements in our law,
but had little opportunity to show their gratitude because the
U.S. sent few requests to these countries. During this same time
period, U.S. police and prosecutors had to abandon important
investigations because we could not obtain needed bank records
from Switzerland and the Bahamas, countries that never asked
for mutual assistance from the U.S. under Section 1782. I suspect
that true reciprocity was better achieved after we negotiated
bilateral MLATs with all four countries than by unilaterally
changing the law.
Perhaps we should now look at the advantages and disadvantages
of MLATs
A.
Obligation
One advantage of MLATs is that they create clear, binding international
obligations to provide assistance, and hence are more predictable
than the rather unreliable concept of Acomity.@ Since MLATs
impose obligations on both parties, they also give the requested
state a better guarantee of genuine reciprocal assistance than
the sort of vague assurances judges often give other judges when
letters rogatory are transmitted.
B. Special Relationship
A second advantage of the MLAT is that it creates a special relationship
between the two states. We do not conclude MLATs with countries
whose legal system we do not trust, or where the criminal justice
machinery is perceived to be unfair. Therefore, the ratification
of an MLAT reflects the fact that the two countries consider
each other important and that their mutual legal assistance relationship
is something that they are proud of B a national asset. The
special relationship aspect of MLATs has a very important practical
benefit in a world where the resources to address growing crime
problems are limited. In my office, for example, we receive
hundreds of requests from countries around the world, and we
can=t possibly handle all of them as quickly as we would like.
More and more, we give priority to requests from countries
with which we have an MLAT over requests from countries with
whom there is no treaty obligation.
C. Tailored
to Relationship:
A third advantage is that bilateral MLATs can be customized to
fit the relationship. Most of our MLATs follow a standard format,
and various provisions look rather similar. However, the negotiation
process can enable each side to identify precisely what it is
likely to need, and to assure itself that the treaty partner
can provide that kind of assistance. For example, when we negotiated
our MLAT with Switzerland, our major focus was on obtaining the
records of the Swiss bank accounts of organized crime leaders,
so that MLAT has several articles that spell out, in unique detail,
the agreed procedure in such matters. This helped insure that
the bank records obtained would be admissible in evidence. By
contrast, when we negotiated with the Philippines, the U.S. was
not especially concerned about bank records, but the Philippines
was especially concerned about obtaining U.S. assistance in locating
and repatriating assets that allegedly had been stolen from the
Government during the Ferdinand Marcos era. Therefore, specific
provisions on this are included in the MLAT. When we negotiated
our MLAT with Brazil, the U.S.=s major concern was drug trafficking,
and Brazil was equally concerned with illegal firearms smuggling;
the MLAT addresses those concerns. Just as a tailored suit is
more comfortable than a Aone size fits all@ model, a bilateral
MLAT customized to the relationship is more likely to be successful.
D. Getting Acquainted
A fourth advantage I have seen is that the MLAT negotiation process
familiarizes each state with the laws and traditions of the other,
facilitating cooperation. Every country is unique, and every
country=s legal system and culture is unique, and entitled to
respect. Of course, we can talk about broad categories of legal
traditions, like Acommon law countries and Acivil law countries,
but even within these traditions there are very wide variations
between nation=s legal systems. For example, the Republic of
Korea and the Kingdom of Morocco are both civil law countries.
There are some similarities in their basic criminal procedures.
However, Morocco=s system is deeply influenced by Islam, and
Korea=s system was deeply influenced by Asian traditions, and
the differences between the two systems are more interesting
and more important than that similarities. Therefore, the U.S.
MLATs with Morocco and Korea do not look alike. More important,
during the negotiations, the U.S. negotiators learned critically
important information about how each legal system operates, and
gained the personal contacts and relationships with Moroccan
and Korean prosecutors and judges that enable the process to
operate more smoothly. This practical familiarity with the treaty
partner=s legal system and requirements that is a critically
important benefit of MLAT negotiations.
By contrast, the negotiations on multilateral crime conventions
provide the parties with almost no concrete information about
the legal systems, traditions, and requirements of the various
member nations, and hence leave little guidance to the participants
on how to provide the desired assistance. Indeed, when the multilateral
crime conventions are negotiated, it is not clear who will actually
become a party to them, much less what must be done, as a practical
matter, to obtain assistance from each of the parties. Similarly,
the enactment of legislation on mutual legal assistance is sometimes
not very helpful because the legislators may have no clue what
is likely to be sought or why.
E. Time is Money
Fifth, MLATs are quicker and easier to negotiate than some other
instruments. This advantage is relative, of course. Our MLAT
with Switzerland took about five years to negotiate, and it was
another four years before both sides ratified it. However, that
was because it was the first MLAT; we found that subsequent MLATs
were done more quickly and easily. My colleagues in other countries
with active MLAT programmes tell me that they too found that
their first MLAT was the hardest to negotiate, and MLATs done
thereafter were progressively easier to negotiate. The United
Nations has developed a Model bilateral MLAT, which has served
to Alevel the playing field@ and enable all nations to conduct
the requisite negotiations without much difficulty.
A related advantage is that it is far easier to amend or revise
a bilateral treaty than a comprehensive multilateral treaty.
For instance, the U.S. is in the process now of negotiating
revisions and amendments to some of our older MLATs, on such
topics as videolink or asset forfeiture and asset sharing. This
enables states to add new ideas to the text of the bilateral
MLAT with a minimum of delay, or respond quickly to changes in
legislation. Obviously, it is not possible to revise multilateral
crime conventions without a great deal of difficulty.
III.
Disadvantages of MLATs
The primary disadvantage of bilateral MLATs is the sheer number
of countries out there with whom relationships could be negotiated.
There are over 180 countries in the world, and if every country
had to negotiate a bilateral treaty with every other country,
it would take many years and a lot of effort. Fortunately, states
do not need to construct bilateral treaties with every other
country in the world, and can effectively target their bilateral
negotiation schedule to focus on the countries with which they
do the most business. We noticed some time ago that eighty percent
of our business in the mutual assistance area involves about
twenty countries, and those of course are among the MLATs we
began to negotiate first. Bilateral MLATs enable states to concentrate
on strengthening the mutual assistance relationship with the
handful of countries that are most important to them. For many
countries, the best solution may be a combination of --
1) bilateral MLATs with one=s most important
mutual assistance partners,
2) regional mutual legal assistance treaties, like the OAS, COE,
EU, or ECOWAS treaties, with one=s neighbors, and
3) multilateral crime conventions to regulate mutual assistance
with everyone else.
Incidentally, the number of multilateral
crime conventions continues to grow, and these will one day pose
more of a practical problem for a small country than the challenge
posed by negotiating a lot of bilateral MLATs. There are already
12 UN conventions on terrorism, and others are in negotiation.
There are three UN conventions on drugs, and the transnational
organized crime convention, with its protocols on firearms, trafficking
in persons, and other topics. There are also a host of multilateral
organization conventions on corruption, money laundering, firearms
trafficking, and other crimes. It is reasonable to assume that
criminals will continue to invent new kinds of mischief, and
legislatures will continue to create new offenses B and there
is no limit to the number of multilateral crime treaties that
could be negotiated to address these problems.
Conclusion
In conclusion, I recall that many years ago I read a story somewhere
about a foreign woman, a gaijin, who decided to study the Japanese
art of bonkei, which, as you know, involves placing small rocks
and bonsai plants on tray covered with sand to create a miniature
landscape. Apparently bonkei has its own rules and traditions,
and various schools and gradations of accomplishment, like the
colored belts that judo and karate fighters earn. This lady
learned the various techniques and methods, and slowly worked
her way up the hierarchy of bonkei technique. However, no matter
how hard she tried, her understanding of the art did not seem
to be pure enough for her sand to hold together in the perfect
waves and ripples seen in the finest bonkei. Finally, after
many years of study and the payment of a high fee, she was allowed
to ask the master bonkei artist to teach her this final mystery.
As she bowed low at the feet of the master, she asked her question,
and heard his whispered answer: AUse glue.
I thought of this story about six months ago, when British and
French prosecutors came to Washington to discuss mutual legal
assistance. The American, French, and British prosecutors had
worked together on a big multinational investigation, and the
European prosecutors wanted to know why the U.S. had been more
successful in obtaining evidence in Asia, Latin America, the
Caribbean and Africa than the British and the French. Attorney
General Reno ordered me to tell them the Asecret of our success,
and I told them the same secret that I will share with you today.
When we really want to obtain bank records or other evidence
from, say, the Bahamas, or Panama, we learned that we must talk
to the officials in those countries, just as you would with the
officials in Switzerland or Canada. We try to deal with each
nation, one by one, on the basis of mutual respect, the sincere
desire to learn the requirements of their law, and the goal of
constructing a fair and mutually advantageous bilateral relationship.
This mutual respect is the glue that holds bilateral relationships
together, and it nurtures international cooperation than mere
words on paper or ancient legal principles with fancy Latin names.
When countries have achieved that kind of understanding, they
find it logical, desirable, and easy to cement the relationship
with a mutual legal assistance treaty. The benefits of such
a relationship are enormous, and if you want lasting cooperation,
there is no more effective approach.