Treaty With Jordan On Mutual Legal Assistance In Criminal Matters

GOVERNMENT PUBLISHING OFFICE

WASHINGTON

59–118

SENATE

" !

114

ONGRESS

1st Session

REATY

2015

114–4

TREATY WITH JORDAN ON MUTUAL LEGAL

ASSISTANCE IN CRIMINAL MATTERS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES

OF AMERICA AND THE GOVERNMENT OF THE HASHEMITE

KINGDOM OF JORDAN ON MUTUAL LEGAL ASSISTANCE IN

CRIMINAL MATTERS, SIGNED AT WASHINGTON ON OCTOBER 1,

2013

ECEMBER

8, 2015.—Treaty was read the first time, and together with

the accompanying papers, referred to the Committee on Foreign Rela-

tions and ordered to be printed for the use of the Senate

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(III)

LETTER OF TRANSMITTAL

HITE

OUSE

, December 8, 2015.

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 Treaty between the Govern-

ment of the United States of America and the Government of the

Hashemite Kingdom of Jordan on Mutual Legal Assistance in

Criminal Matters, signed at Washington on October 1, 2013. I also

transmit, for the information of the Senate, the report of the De-

partment of State with respect to the Treaty.

The Treaty is one of a series of modern mutual legal assistance

treaties negotiated by the United States to more effectively counter

criminal activities. The Treaty should enhance our ability to inves-

tigate and prosecute a wide variety of crimes.

The Treaty provides for a broad range of cooperation in criminal

matters. Under the Treaty, the Parties agree to assist each other

by, among other things: producing evidence (such as testimony,

documents, or items) obtained voluntarily or, where necessary, by

compulsion; arranging for persons, including persons in custody, to

travel to another country to provide evidence; serving documents;

executing searches and seizures; locating and identifying persons or

items; and freezing and forfeiting assets or property that may be

the proceeds or instrumentalities of crime.

I recommend that the Senate give early and favorable consider-

ation to the Treaty, and give its advice and consent to ratification.

ARACK

BAMA

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(V)

LETTER OF SUBMITTAL

EPARTMENT OF

TATE

Washington, August 31, 2015.

The P

RESIDENT

The White House.

RESIDENT

: I have the honor to submit to you the Treaty be-

tween the Government of the United States of America and the

Government of the Hashemite Kingdom of Jordan on Mutual Legal

Assistance in Criminal Matters, signed at Washington on October

1, 2013. I recommend the Treaty be transmitted to the Senate for

its advice and consent to ratification.

The Treaty covers mutual legal assistance in criminal matters.

In recent years, the United States has entered into similar bilat-

eral treaties with a number of countries. The Treaty contains all

of the essential provisions of such treaties sought by the United

States. It will enhance our ability to investigate and prosecute a

wide variety of offenses. The Treaty is self-executing and will not

require further implementing legislation.

An overview of the Treaty, including a detailed, article-by-article

analysis, is enclosed with this report. 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,

OHN

F. K

ERRY

Enclosures: As stated.

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(VII)

U.S.-J

ORDAN

UTUAL

EGAL

SSISTANCE

REATY

OVERVIEW

The Treaty between the Government of the United States of

America and the Government of the Hashemite Kingdom of Jordan

on Mutual Legal Assistance in Criminal Matters (the ‘‘Treaty’’) cre-

ates for the first time a treaty-based relationship of mutual legal

assistance between the United States and Jordan. The Treaty cov-

ers mutual legal assistance in criminal matters and contains many

provisions similar to those in other treaties of its kind and all of

the essential provisions sought by the United States.

The following is an article-by-article description of the provisions

of the Treaty. Article 1 sets out the scope of assistance available

under the Treaty. Article 1(1) creates an international obligation on

each Party to provide mutual legal assistance to the other Party in

connection with the investigation, prosecution, and prevention of

offenses and in proceedings related to criminal matters. This en-

sures that the Parties can afford each other legal assistance in a

broad range of criminal matters, from violent crimes to fraud, from

tax matters to racketeering, from computer crime to environmental

crime, and so on. Assistance may also be sought for proceedings re-

lated to criminal matters, such as civil forfeiture proceedings, and

for investigations and proceedings by authorities involved in imple-

menting governmental regulations relating to violations that may

be referred for criminal prosecution under the laws of the Request-

ing Party. Thus, where the conditions of the Treaty are otherwise

met, assistance would be available, for example, for proceedings of

the Securities and Exchange Commission when those proceedings

are incidental to, or connected with pending criminal investigations

or prosecutions, or may be referred for criminal prosecution. Article

1(2) contains a non-exhaustive list of the major types of assistance

to be provided under the Treaty, including producing evidence

(such as testimony, documents, or items) obtained voluntarily or,

where necessary, by compulsion; arranging for persons, including

persons in custody, to travel to another country to provide evi-

dence; serving documents; executing searches and seizures; locating

and identifying persons or items; and identifying, tracing, freezing,

seizing and forfeiting assets or property that may be the proceeds

or instrumentalities of crime. Each of these types of assistance is

described in detail in subsequent articles in the Treaty.

The Treaty also authorizes provision of any other assistance not

prohibited by the laws of the Party receiving the request (referred

to in the Treaty, as in other such treaties, as the ‘‘Requested

Party,’’ while the Party making the request is the ‘‘Requesting

Party’’). As long as there is no specific legal restriction under the

laws of the Requested Party barring the type of assistance re-

quested, it may be provided pursuant to the Treaty.

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VIII

Consistent with most U.S. mutual legal assistance treaties

(MLATs), Article 1(3) provides that, with the exception of where it

is specifically required by the laws of the Requested Party, ‘‘dual

criminality’’ is not a prerequisite for assistance under the Treaty.

Thus, unless otherwise provided under the laws of the Requested

Party, assistance shall be provided without regard to whether the

conduct at issue would constitute an offense under the laws of the

Requested Party. The Treaty does require ‘‘dual criminality’’ in cer-

tain circumstances. For example, under Article 14, a Requested

Party is obligated to execute a search and seizure request if the re-

quest includes sufficient information justifying such action under

its law and the offense at issue would also constitute an offense

under its law.

Article 1(4), a standard provision in U.S. MLATs, provides that

the Treaty is intended solely for government-to-government mutual

legal assistance. The Treaty is not intended to provide to persons

other than the Parties a means of evidence gathering, nor is it in-

tended to extend generally to civil matters. Private persons in the

United States may continue to obtain evidence from Jordan by let-

ters 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 any private person to

suppress or exclude evidence provided pursuant to the Treaty, or

to impede the execution of a request.

Article 2 requires that each Party designate a ‘‘Central Author-

ity’’ to make and receive Treaty requests. The Central Authority of

the United States would make all requests to Jordan on behalf of

federal and state agencies and local law enforcement authorities in

the United States. The Central Authority of Jordan would make all

requests emanating from similar officials in Jordan. The Central

Authorities are, pursuant to Article 2(3), to communicate directly

with one another.

For the United States, the Central Authority is the Attorney

General or a person designated by the Attorney General. For Jor-

dan, the Central Authority is the Minister of Justice or a person

designated by the Minister of Justice. In the United States, the au-

thority to handle the duties of the Central Authority under MLATs

has been delegated to the Office of International Affairs in the

Criminal Division of the Department of Justice.

The Central Authority of the Requesting Party exercises discre-

tion, consistent with the provisions of the Treaty, as to the form of

requests, as well as the number and priority of requests. The Cen-

tral Authority of the Requested Party is responsible for receiving

and evaluating each incoming request; transmitting it to the proper

agency, court, or other authority for execution; and providing a

timely response.

Article 3 sets forth the circumstances under which the Requested

Party’s Central Authority may deny assistance under the Treaty.

Refusal under this Article is discretionary with the Central Author-

ity of the Requested Party. Several of the grounds for refusal are

common to most U.S. MLATs. For example, a request may be de-

nied if it relates to a military offense, if it does not conform to the

requirements of the Treaty, or if its execution would prejudice the

‘‘security, sovereign or other essential interests of the Requested

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Party.’’ During the negotiations, the Parties agreed that the essen-

tial interest clause would allow a Party to deny a request for as-

sistance in connection with a political offense. In keeping with the

overall intent of the Treaty to facilitate assistance, the Parties also

included in Article 3 a provision designed to limit the use of

grounds for refusal. Under Article 3(2), a Central Authority, before

refusing assistance under Article 3(1), is to consult with its coun-

terpart in the Requesting Party to consider whether assistance can

be given subject to such conditions as the Central Authority of the

Requested Party deems necessary. If the Requesting Party accepts

assistance subject to these conditions, it is required to comply with

them.

Article 3(3) gives the Requested Party discretion to deny a re-

quest if the offense is punishable by less than one year of imprison-

ment under the law of the Requesting Party or the crime is finan-

cial in nature but does not involve a significant financial loss, and

the Requested Party determines that the resources required to exe-

cute the request are not justified in light of the nature of the of-

fense. This treaty is one of the first MLATs the United States has

negotiated that includes such a de minimis clause. The inclusion of

such clauses has become a priority for the United States in order

to avoid the obligation to execute large numbers of MLAT requests

relating to minor crimes, which can create significant burdens on

the resources of the Department of Justice.

In addition, if the Central Authority of the Requested Party re-

fuses assistance, it is required under Article 3(4) to inform the Cen-

tral Authority of the Requesting Party of the reasons for the re-

fusal.

Article 4 prescribes the form and contents of requests under the

Treaty, specifying in detail the information required in each re-

quest. It also permits the Central Authority of the Requested Party

to request additional information, if necessary to execute the re-

quest

Article 5 concerns the execution of requests. Article 5(1) includes

three important concepts: the obligation of the Central Authority of

the Requested Party to execute requests promptly (or to refer them

to the competent authorities who have jurisdiction to execute the

requests); the requirement that competent authorities do ‘‘every-

thing in their power’’ to execute requests; and the granting of au-

thority to courts, or, as provided by the law of the Requested Party,

the investigative authorities, in the territory of the Requested

Party to issue subpoenas, search warrants, or other orders nec-

essary to execute requests. Article 5(2) builds on this by requiring

the Requested Party to make all necessary arrangements to rep-

resent the Requesting Party in any proceedings arising out of a re-

quest for assistance. It is understood that such proceedings may in-

clude proceedings before a judicial authority or administrative

agency. Taken together, these provisions reflect an understanding

that the Parties intend to provide each other with a wide measure

of assistance from judicial and executive branches of government in

the execution of mutual legal assistance requests. These provisions

also specifically authorize United States courts to use all of their

powers to issue whatever process is necessary to satisfy a request

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under the Treaty, whether the authority for such process comes

from the Treaty itself or from existing statutes.

Article 5(3) specifies that requests are to be executed in accord-

ance with the laws of the Requested Party unless the Treaty pro-

vides otherwise. The requests themselves may specify a particular

procedure to be followed, and such specified procedure is to be fol-

lowed unless prohibited by the law of the Requested Party. Fol-

lowing the procedure specified can be important to ensure evidence

collected in one State satisfies the requirements for admissibility at

trial in the other. It is understood that if neither the Treaty nor

the request specifies procedures to be followed, the Requested

Party is to execute the request in accordance with its domestic

criminal procedure laws. The intent of this provision, like similar

provisions in other U.S.MLATs, is to allow the Requested Party to

use its established procedures for obtaining evidence where proce-

dures are not otherwise specified, so long as those procedures do

not undermine the obligation in the Treaty to provide assistance.

Article 5(4) allows the Central Authority of the Requested Party

to postpone the execution of a request, or make execution subject

to specified terms, if it determines that execution of the request

would interfere with an ongoing criminal investigation, prosecution

or proceeding in that state. If the Requesting Party accepts assist-

ance subject to terms, it must comply with such terms.

Confidentiality of requests is addressed in Article 5(5). The Re-

questing Party may ask that the request, its contents, and the out-

come of the execution of the request be kept confidential. The Re-

quested Party must use its best efforts to comply with such a re-

quest, but if assistance cannot be granted without breaching the

confidentiality requirements, the decision whether to proceed is left

to the Requesting Party.

The remaining provisions in Article 5 address some of the types

of communications between Central Authorities essential to a good

working mutual legal assistance relationship. For example, Central

Authorities must respond to requests for progress reports, and in-

form each other of the outcome of execution of requests, including

any reasons for refusal of a request.

Article 6 addresses the costs associated with providing assist-

ance. As is standard in U.S. MLATs, Article 6 provides that the Re-

quested Party must pay all costs relating to the execution of a re-

quest, including representation costs, except for the following items

to be paid by the Requesting Party: fees of expert witnesses; costs

of translation, interpretation and transcription; and allowances and

expenses related to travel of persons pursuant to Articles 10 and

11 (relating to travel for the purpose of providing assistance and

transfer of persons in custody). The article also provides that, in

the event that fulfilling a request would require extraordinary ex-

penses, the Central Authorities will consult order to determine how

those costs shall be borne.

Article 7 addresses limitations on use of information and evi-

dence provided under the Treaty. Under Article 7(1), the Central

Authority of the Requested Party may request that information or

evidence produced in response to a request under the Treaty not

be used for any investigation, prosecution or proceeding other than

that described in the request without the consent of the Central

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Authority of the Requested Party. In such cases, the Requesting

Party must comply with the request for limitations on use.

Under Article 7(2), the Central Authority of the Requested Party

may also request that the information or evidence produced under

the Treaty be kept confidential or be used subject to specified

terms. If the Requesting Party accepts the requested terms, it must

use its best efforts to comply with those terms. The default rule,

however, is that such information or evidence is not confidential,

and Article 7(4) also provides that once such information or evi-

dence has been made public in the territory of Requesting Party in

accordance with Article 7(1) and (2), it may be used for any pur-

pose. Moreover, the Treaty explicitly permits the disclosure of in-

formation or evidence to the extent that there is an obligation to

disclose it under the Constitution of the Requesting Party in a

criminal proceeding. This contingency, found in Article 7(3), was in-

cluded to ensure that the United States would be able to satisfy

any obligations to disclose information under its Constitution, such

as those set forth in Brady v. Maryland, 373 U.S. 83 (1963).

As with other provisions of the Treaty, the confidentiality protec-

tions and use limitation provisions of Article 7 are for the benefit

of the two governments that are Parties to the Treaty, and invoca-

tion and enforcement of these provisions is entirely a matter for

the Parties.

Article 8 is the first of a series of articles that spell out in detail

the procedures to be employed in the case of specific types of re-

quests for assistance outlined in Article 1(2). Article 8 addresses

production of evidence, whether it is a statement or testimony, doc-

uments, records, or particular items. A person from whom evidence

is sought under the Treaty may appear voluntarily to provide such

evidence, or, if necessary, the Treaty authorizes the Parties to com-

pel production of evidence. This compulsion may be accomplished

by subpoena or any other means available under the laws of the

Requested Party (see Article 5(3)).

Article 8(2) calls on the Requested Party, upon request, to inform

the Requesting Party in advance of the date, time, and place of the

taking of testimony or evidence. In addition, Article 8(2) requires

the Requested Party to permit persons specified in the request to

be present during execution of the request and to allow such per-

sons either to question the person giving testimony or evidence, or

to pose questions to the competent authority, which then asks them

of the person giving testimony or evidence. As the Jordanian nego-

tiators explained, under Jordanian law, representatives of the U.S.

Government would likely not be permitted to question a witness di-

rectly but would have to use the second option provided for by this

Article and present such questions to the Jordanian competent au-

thority, which would then pose them to the witness.

Article 8(3) provides that if a person from whom the request

seeks testimony or evidence asserts a right to decline to provide

such evidence by claiming an immunity, incapacity or privilege

under the laws of the Requesting Party, the evidence shall none-

theless be taken and the claim made known to authorities of the

Requesting State so that they may resolve it. The Treaty does not

specifically address the resolution of claims of privilege under the

Requested Party’s law, but by implication those are to be resolved

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XII

by that state’s authorities. This formulation allows each Party to

resolve claims of privilege made under its own laws.

Article 8(4) contains the first of several provisions in the Treaty

addressing the authentication of evidence produced pursuant to the

Treaty. Similar provisions are found at Articles 9(3) and 14(2). Evi-

dence produced under the Treaty may be authenticated by an at-

testation including, with respect to business records, official

records, or evidence that has been seized pursuant to the Treaty,

by use of one of the forms appended to the Treaty. The appended

forms are an integral part of the Treaty. The Treaty provides that

evidence produced and authenticated according to the procedure set

forth in the Treaty shall be admissible in evidence in the tenitory,

of the Requesting Party.

Article 9 addresses provision of documents or other records in the

possession of government agencies. The Parties are obligated to

provide to each other copies of publicly available records in any

form in the possession of governmental departments and entities

upon request. The Treaty authorizes the Requested Party, in its

discretion, to provide to the Requesting Party any records that are

not publicly available to the same extent, and under the same con-

ditions, as they would be available to the Requested Party’s own

law enforcement or judicial authorities.

The Treaty will constitute 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 Jordan under this article in

appropriate cases.

Article 10 provides a mechanism for the Requesting Party to ask

for the voluntary attendance in its territory, or in the territory of

a third state, of a person located in the territory of the Requested

Party for the purpose of assistance under the Treaty, such as to

serve as a witness or expert in proceedings or to assist in an inves-

tigation. The Requesting Party must indicate the extent to which

the person’s expenses will be paid. The Requested Party is required

to inform the person of the request for the person’s appearance and

notify the Requesting Party of the person’s response.

When persons agree to travel to appear in the territory of the Re-

questing Party, Article 10(2) provides that the Requesting Party

may grant such persons safe conduct, thus ensuring that the per-

son appearing in the territory of the Requesting Party will not be

subject to service of process or be detained or subjected to any re-

striction on personal liberty for acts or convictions that preceded

the person’s departure from the territory of the Requested Party.

The grant of safe conduct pursuant to this provision applies only

to past offenses and would not prevent the Requesting Party from

prosecuting the person for perjury or any other crime committed

while present, pursuant to Article 10, in the territory of the Re-

questing Party. Under Article 10(3), any safe conduct so provided

would cease fifteen days after the Central Authority of the Re-

quested Party is notified that the person’s presence is no longer re-

quired, or when the person has left the territory of the Requesting

Party and voluntarily returns. In its discretion, the Central Au-

thority of the Requesting Party may, for good cause, extend the pe-

riod of safe conduct for up to seven additional days.

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XIII

Article 11 provides a similar mechanism for persons in custody.

A need sometimes arises for the testimony in one country of a per-

son who is incarcerated in another country. For example, a witness

incarcerated in one country—whether the Requesting or Requested

Party—may have to give testimony in the presence of an incarcer-

ated defendant in the other country. Attendance of the detained

person is still voluntary, but is also subject to the agreement of the

Central Authorities. In addition, the Treaty imposes certain condi-

tions on such transfers: the person must be held in custody by the

receiving Party, unless otherwise authorized by the sending Party;

the receiving Party must return the person in custody to the terri-

tory of the sending Party as soon as circumstances permit or as

otherwise agreed; the return of the person shall not require extra-

dition proceedings; the period that the person is in custody in the

territory of the receiving Party shall be credited against the per-

son’s sentence in the sending Party; and the safe conduct protec-

tions provided for by Article 10(2) and (3) apply to persons trans-

ferred pursuant to Article 11.

Article 12 provides for determining the whereabouts or identity

in the territory of the Requested Party of persons (such as wit-

nesses, potential defendants, or experts) or items when such infor-

mation is requested. The Treaty requires only that the Requested

Party use its best efforts to ascertain the location or identity of the

persons or items sought. The extent of such efforts will vary, of

course, depending on the quality and extent of the information pro-

vided by the Requesting Party concerning the suspected or last

known location.

Article 13 relates to service of documents. It creates an obligation

on the Parties to use their best efforts to serve documents relating

to a request for assistance, such as summonses, complaints, sub-

poenas, or notices. Under Article 13(2), when the document per-

tains to an appearance in the territory of the Requesting Party, the

request for service of the document must be transmitted a reason-

able time before the scheduled appearance. The Parties chose not

to set a fixed period of time for this obligation, as circumstances

may vary. Article 13(3) requires the Requested Party to return

proof of service in the manner specified in the request. If service

cannot be effectuated, the Requested Party must inform the Re-

questing Party promptly of the reasons for not effecting service.

Article 14 obligates the Requested Party to execute a request for

the search, seizure, and delivery of any item to the Requesting

Party if the request includes the information justifying such action

under the laws of the Requested Party and the offense at issue

would also constitute an offense under the law of the Requested

Party. For requests from Jordan to the United States, this means

that a request would have to be supported by a showing of probable

cause for the search. The Requested Party may require that the

Requesting Party agree to terms deemed necessary to protect inter-

ests of third parties, such as victims and legitimate owners.

Article 15 allows the Requested Party to require that the Re-

questing Party return any items provided to it in execution of a re-

quest under the Treaty.

Assistance in forfeiture proceedings is the subject of Article 16.

The types of actions that could be undertaken under this Article in-

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XIV

clude actions to restrain, seize, and forfeit property. The Article ap-

plies both to conviction-based forfeiture proceedings and to non-con-

viction based forfeitures proceedings premised on criminal conduct

regardless of whether the offender is prosecuted for that conduct.

Article 16(2) provides a non-exhaustive list of the types of assist-

ance that a Party is required to provide pursuant to this Article.

Article 16(3) requires the Requested Party to consult with the

Requesting Party before disposing of property frozen, restrained,

seized, or forfeited pursuant to Article 16. Article 16(4) permits the

Party in control of the property to transfer all or part of it to the

other Party or, after consultation between the Parties, to any other

State that assisted in forfeiture of property in a manner propor-

tionate to the other Party’s or other State’s assistance. United

States law permits the government to transfer a share of certain

forfeited property to other countries that participate directly or in-

directly in the seizure or forfeiture of the property when, among

other requirements, such transfer is authorized by an international

agreement. This Article provides such authorization for asset shar-

ing with Jordan or another country. Article 16(4) also provides

that, where appropriate and upon request, priority should be given

to returning property to the Requesting Party so that victims of an

offense may be compensated or the property may be returned to its

legitimate owners. Article 16(5) requires the Parties to assist each

other, to the extent permitted by their respective domestic laws, in

proceedings relating to restitution to victims of crime. Article 16(6)

gives the Parties discretion to deny assistance requested pursuant

to Article 16 if the value of the property in question does not sub-

stantially exceed the resources that would be expended in pro-

viding the assistance.

Article 17 states that this Treaty is not intended to be the sole

mechanism for the Parties to provide assistance to each other and

thus shall not prevent the Parties from providing assistance to

each other through the provisions of other agreements, arrange-

ments, or practices that may be applicable, or through the provi-

sions of their national laws. Thus, for example, the Treaty would

leave the provisions of U.S. and Jordanian law on letters rogatory

completely undisturbed, and would not alter any practices or ar-

rangements concerning investigative assistance or prohibit the Par-

ties from developing other such practices or arrangements. Article

17(2) makes clear that no request for assistance is necessary when

a Party wishes spontaneously to share information or evidence

with the other Party.

The final clauses are contained in Article 18. The Treaty is sub-

ject to ratification by each Party according to procedures required

by its Constitution. For the United States, this means ratification

after the advice and consent of the Senate. The Treaty will enter

into force upon the exchange of instruments of ratification. Article

18 also provides procedures for termination of the Treaty.

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