Mr. SESSIONS. Mr. President, the Senate is prepared to ratify two important treaties, the Inter-American Convention Against Terrorism, and the United Nations Convention Against Transnational Organized Crime.
As a former prosecutor, I believe these treaties will provide important tools in our war against terrorism and organized crime. However, as chairman of the Senate Steering Committee, and as a United States Senator, it is my job to carefully review all legislation and treaties to ensure that they are consistent with our Constitution and in the best interest of the United States. In reviewing these treaties, there were two matters I felt needed further clarification.
First, the issue of extradition. I believe it is important that if we are going to enter into an extradition arrangement, it strengthen our hand with respect to nations, such as Mexico, who have refused to extradite violent criminals to the United States for prosecution. It serves no purpose to enter into treaties with no teeth.
Second, the International Criminal Court: The position of the United States has been firm in opposition to any expanded powers of the International Criminal Court. These treaties were silent on the ICC. They did not explicitly permit the ICC from exercising jurisdiction over matters, nor do they prohibit it from doing so. Were I not absolutely certain that these treaties would provide no mechanism for an overzealous ICC prosecutor to assert new jurisdiction, these treaties would not be ratified today.
However, based on an exchange of correspondence with the United States Department of Justice, I am satisfied that there is absolutely no way the ICC may assert any new jurisdiction based upon these treaties. I received this letter by fax within the last few minutes, and it is on this basis that I am permitting these treaties to proceed. I am confident that these treaties are in the interest of the United States, and this correspondence will serve as legislative history with respect to the concerns I just addressed. I ask unanimous consent that the above-referenced letters be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
U.S. DEPARTMENT OF JUSTICE, FFICE OF LEGISLATIVE AFFAIRS,
Washington, DC.
Hon. JEFF SESSIONS,
U.S. Senate,
Washington, DC.
DEAR SENATOR SESSIONS: We are pleased to have the opportunity to respond to your letter of October 6, posing questions about the United Nations Convention Against Transnational Organized Crime and the Inter-American Convention Against Terrorism. Both Conventions are strongly supported by the Administration, and we urge immediate action by the Senate to provide its advice and consent to ratification. As you may be aware, the first Conference of States Parties to the U.N. transnational organized crime convention will commence in Vienna on October 10, and thus there is particular urgency to the Senate acting today to approve this treaty and thereby strengthen the United States' ability to participate effectively at this meeting.
Your first question concerned Article 16 of the U.N. Convention on transnational organized crime and its impact on our existing bilateral extradition relations. This is a common provision in multilateral law enforcement treaties, and it can strengthen our extradition relationships under existing bilateral extradition treaties by requiring that the organized crime offenses covered by the U.N. Convention be included as extraditable offenses under those existing treaties. This can be helpful with older treaties that contain a limited list of extraditable offenses. Our treaty with Mexico, however, is not so limited.
As you suggest in your letter, a particular concern with Mexico at this time is the impact of a 2001 Mexican Supreme Court decision which barred extradition where a defendant would be subject to a life sentence. The U.N. Convention does not resolve this issue; at the same time it in no way endorses, or requires the United States to acquiesce in, such a limitation on extradition. You can be assured that resolving this problem in our extradition relations with Mexico remains a major objective of the Departments of Justice and State and is one that Attorney General Gonzales has raised personally with the Mexican Attorney General and with the Mexican Foreign Minister. We are hopeful that a recent decision of the Mexican Supreme Court in a domestic criminal case may open the door to a favorable revision of its 2001 decision, and we are committed to working with Mexico to that end.
With respect to your question concerning potential interplay between these treaties and the International Criminal Court (ICC), I can assure you that the Administration continues to have fundamental concerns about the ICC and would not advocate the United States joining any treaty that would expand the jurisdiction of the ICC or impose directly or indirectly any obligation on the United States to support the ICC. The jurisdiction of the ICC is strictly defined by the Rome statute at Article 5. Neither of the treaties now being considered by the Senate extends or could extend that jurisdiction. This is clear from the text of the treaties and the intent of the negotiators. Moreover, in no respect will the United States becoming a party to these two treaties affect the provisions of the American Service-members' Protection Act of 2002 (ASPA), including its restrictions on assistance to the ICC. We do not believe there is any ambiguity on these points and thus no need for clarification through understandings in the resolution of ratification. You and other members of the Senate can be confident that the Administration shares your concerns about the ICC and is fully satisfied that none of those concerns are implicated in these treaties.
We have consulted with the Department of State, which concurs fully in these views, and hope with this letter you and your colleagues will be able to vote in favor of these two important treaties today.
Sincerely,
William E. Moschella, Assistant Attorney General.
SENATE STEERING COMMITTEE, UNITED STATES SENATE,
Washington, DC, October 6, 2005.
Hon. ALBERTO R. GONZALES,
Attorney General, U.S. Department of Justice,
Washington, DC.
DEAR MR. ATTORNEY GENERAL: I am writing regarding two critical treaties that the Senate is considering. As a former prosecutor, I believe these treaties could provide important new tools to law enforcement. However, before we ratify them, I seek your assistance in addressing several concerns.
1. Article 16 of the United Nations Convention Against Transnational Organized Crime. I am interested in learning whether or not the extradition provisions of this treaty would strengthen our current bilateral arrangements to address problems we have had with nations such as Mexico who refuse to extradite dangerous criminals to the United States. Further, it would appear that our moral position for extradition would be undermined if we explicitly acquiesce in allowing the nation to consider penalties as a basis for denying extradition.
2. International Criminal Court. The ICC is mentioned in neither treaty, and the Department of Justice attorneys have maintained that the ICC would have no jurisdiction over matters addressed in them. However, the main reason that the United States rejects the Rome Statute is that the ICC has one prosecutor who initiates investigations with virtually unchecked discretion. I seek further clarification from the Department on whether we can be absolutely certain that these treaties would not provide a vehicle for a case to be brought to the ICC by an overzealous prosecutor. Absent such certainty, it would be my desire to include an understanding to the resolution of ratification that clarifies the United States's position that the ICC may not try cases under the Convention or avail itself of the Convention's extradition or judicial assistance provisions. We could also add an explicit understanding to the resolution that ASPA shall govern application of the Convention by the Executive branch.
Thank you for your assistance.
Sincerely,
JEFF SESSIONS
