Mr. OLSEN. Yes; but it is not in areas where we have identifiable U.S. victims. We don't have in drug cases victims who are identified- Mr. SMITH. I use that term advisedly, you must understand. Mr. OLSEN. Right. We look at this as a rather dramatic, innovative approach on the part of the Swiss to cooperate in a way—it takes the profit out of it. On the issue of whether we get it or they get it, my argument has been to all of our lawyers, listen, that is the incentive and the carrot for the Swiss to help in part. If that works, fine. We have asked other countries to look to their own legal institutions to see whether or not they can do that. They are doing the same thing: looking at it to decide how that can work. That is part of the whole international cooperative effort. Mr. SMITH. I have one last question. You talked to me about local police cooperation in other countries. I asked you about cooperation of the foreign departments of their countries, their comparable state departments, and the court system with reference to our extradition requests to them. Are we seeing cooperation at that level? Not at the local police level, but the higher up level. Mr. OLSEN. Yes; I am saying at both levels. Mr. SMITH. Thank you, Mr. Chairman. Mr. HUGHES. Thank you. Mr. McGovern, a large number of extradition treaties to which the United States is a party contain provisions allowing the United States to decline to extradite a person who establishes a defense based on double jeopardy or immunity from prosecution. Should these procedural protections be extended by statute to all extradition proceedings? Mr. McGOVERN. I am trying to recall, Chairman Hughes, whether that might have been one of the questions that was asked by the subcommittee last year. In the questions that the subcommittee asked the administration witnesses following the extradition hearings last year, the followup written questions, that was one of the questions. It was question No. 4. Rather than take the subcommittee's time now to repeat our answer I would direct your attention to the report of the hearings before the subcommittee on H.R. 5227, "The Extradition Reform Act of 1981." Mr. HUGHES. Your response would be the same as last year? Mr. McGOVERN. Yes, it would be. The answers appear beginning at page 169. That particular answer would be on pages 169 and 170 in brief, the administration does not believe that statutory provisions mandating denial of extradition on grounds of double jeopardy on immunity from prosecution are necessary or wise. Mr. HUGHES. Should an extradition bill provide procedures for cases where more than one country requests an extradition? As you know, H.R. 2643 sets forth such procedures in one section of the bill. What is your opinion of that particular provision? Mr. McGOVERN. Again, as I recall, that was a question that was asked of the administration witnesses last year. Again, as I recall, the administration took the position that it was not necessary for there to be a provision on this point because it was covered by many of the extradition treaties that we have. We felt largely it would be redundant. 30-993 0-84-4 Mr. HUGHES. Correct me if I am wrong. Not all of the treaties do provide for that. In last year's bill there was no such provision. We do have one in this year's bill, so my question is, as long as all the treaties do not contain such provision, would it not be advisable to so provide? Mr. McGOVERN. Again, I would refer the committee to the answers provided by the administration witnesses last year. I believe that was question seven. The answer to that question appears on page Mr. HUGHES. Why don't you be redundant and tell me what your position is? Mr. McGOVERN. On page 171 of the report of hearings of this subcommittee on H.R. 5227 the administration answered at that time: When the United States receives extradition requests for the same person from two or more countries, the Secretary of State decides which nation's request will be given priority. The starting point for the Secretary's analysis is always the terms of the applicable extradition treaties. Many of our treaties provide that the preference be given to the request received first. Others provide priority to the country whose request involves the more serious offense. Still others contain lists of factors to be considered in deciding the issue. Some simply acknowledge the discretion of the requested state to decide the issue. If the treaties do not contain an answer or are themselves in conflict, the Secretary considers a wide variety of factors ranging from the comparative likelihood of each request's success on the merits to the probable disposition of the fugitive after surrender. The Secretary may always weigh the state of our diplomatic relations with each of the countries involved. We do not believe that the list of factors contained in the OAS convention should be inserted in the statute. Which was incorporated in your question last year. There are several reasons for this view. Then we go on to list those reasons. I think it only fair to say, however, that, as I recall, the relevant provision incorporated in the legislation this year lists the factors set forth in applicable treaty provision as the first set up factors to be considered. Insofar as the treaty provision is given deference, I think that would largely remove any objections that we had. Nevertheless, I would have to maintain the position that we have taken before on the record, that we don't think that it is necessary that there be such a provision in the legislation. Mr. HUGHES. Should extradition proceedings be stayed with respect to a person who has sought political asylum until there has been final action on the asylum application? Mr. McGOVERN. Thank you, Mr. Congressman. That is another question that was asked of us last year. If I may, I will provide the answer that we did at that time, which appears at page 176 of the report of this subcommittee's hearings on H.R. 5227. Mr. HUGHES. If you could shorten it and just tell us how your position is this year. You had a lot of positions last year, but you changed some of them. Mr. MCGOVERN. We did change some of them. Mr. HUGHES. Our positions are much more similar this year that they were last year about this time. Mr. McGOVERN. I recognize that, and I think that indicates a spirit of admirable flexibility on the part of both of the legislative and executive branches. Mr. HUGHES. It sure does. We look forward to continuing to work with you. Maybe you could just briefly tell me, What is your general position with regard to political asylum? Should those proceedings be stayed? Mr. McGOVERN. Our position is that extradition proceedings should not be stayed until final action is taken on an asylum appli cation. Mr. HUGHES. They should not be. I realize that we dealt with the rule of specialty last time. Should any extradition legislation include the rule of specialty? Mr. MCGOVERN. Again, we don't feel that it is necessary that the rule of specialty be provided for by the statute. Mr. HUGHES. Do I take it from that that if a rule of specialty is spelled out, it would not do any particular violence to the law? Mr. MCGOVERN. Our position is that it is redundant, but since the treaties have such a provision, a properly drafted provision would not be objectionable. Mr. HUGHES. Mr. Olsen, one of the problems that Justice has a great deal of concern with, as I understand it, is the bail provision. Maybe you can tell me what it is about the "special circumstances" test that has been carved out by the courts on a case-by-case basis that gives you such assurance that you would rather stay with that than try to develop a procedure that is legislative, that is balanced and based upon experience. That is what we have tried to do with the standard that we have set forth in the bill. Mr. OLSEN. Having spent quite a bit of time on this issue, I think the theory and where we have developed our position is based on years of practical experience and knowing that the courts are really going to be applying standards that they are very familar and confortable with, basically a facts and circumstances test. There is nothing magical about what factor is going to be more important in any one particular case. That will depend. The judges who will be looking at bail issues in the extradition area do this day in and day out. In a sense, they truly become expert in it. They are also traditionally recognized as the vanguard of political and individual rights and liberties, which is one reason why I think there is a tremendous movement to place the political offense exception in the courts, and not someplace else. It is rather anomalous to me that there would be the position that the courts ought to decide political offense, because they are really going to be looking out to protect the individual. At the same time, you don't want to give that same judge the authority to decide whether to release that person on bail or keep him in custody. On the question of whether or not there is some kind of unreasonable detainer because there has not been some probable cause established for detaining them, I think what we have to recognize is that before we get the request a foreign government has made a decision to seek the extradition for an offense that is serious in nature, that they are going to meet the test of the U.S. law as well as the treaty obligations, and that we are responding as a matter of comity to that foreign country Mr. HUGHES. I understand all that. Mr. OLSEN [continuing]. And that some other magistrate or the equivalent has made some decision about the guilt or innocence enough to warrant that request coming over. I think that what we are really saying is that the United States in extradition requests is responding. We are in the middle of the proceeding. We only have as much information as we get according to what is required by the treaty, not according to what may be necessary for bail. We are not trying the issue on guilt or innocence. We are only trying to establish probable cause, to believe this is the person who maybe committed the offense. Mr. HUGHES. Isn't that going to be a problem no matter whether you use a special circumstance test or whether you use a test as set forth in the bill, where for 10 days the defendant has the burden of establishing that he or she is not a flight risk, doesn't present a danger, or has sufficient ties to the community and so forth, and that after 10 days it switches to the government? Isn't that going to still be a practical problem no matter what test you use? Mr. OLSEN. I just don't think that as a practical matter we are really going to be able to get that information from foreign countries in 10 days or in some other period of time. You are going to actually change the nature of the proceedings itself. Mr. HUGHES. It seems to me that as a practical matter the court is going to look at the available evidence, whether it is a special circumstance test or whether it is the test that we have set forth in the bill to make a determination on just what evidence is introduced about whether the person is a flight risk. I think judges have demonstrated that they are aware that there is more at stake than just the question of whether the defendant will flee. It is the question of comity with other countries. Our own credibility is on the line when we are requested to produce a defendant and we mess up and we can't produce. In the final analysis, isn't the court going to take that into account in the same way that Hal Sawyer asks about "clear and convincing" as opposed to a "preponderance" test? Aren't we talking about semantics more than anything? Mr. OLSEN. I think in the case of the clear and convincing test on the political offense exception what we are talking about is sending a clear message to the courts that yes, on the issue of probable cause and those issues that have to be resolved before you get into political offense, you do have a different standard or threshold. But this area is of more significance to the United States of America, and we are sending a message to the courts to not just balance. On the issue of bail, I think we are much closer together in terms of our position. I think, for example, that having the facts and circumstances defined in the definitions does provide guidance. I don't have any trouble with that. I think in terms of what happens initially with the proceeding, as long as it is based on reason, that makes a great deal of sense to me, that the court then takes over. What I have difficulty with is that within some 10-day mechanical period of time the rules are somehow going to change and now we are going to be shifting. Mr. HUGHES. It is working on the assumption, Mr. Olsen, that in this day of telecommunications-and we are not talking about the old steamboats-the jurisdiction that makes the request, that has all the information, has to work with the Department of Justice. I wouldn't assume you would bring an extradition case until you are ready to move to begin with. It seemed to me today 10 days would be a pretty adequate period of time to get the necessary information. If anybody is at a disadvantage, it would seem to be the defendant, who might be present outside that jurisdiction, not aware of all the circumstances, and perhaps not have been back in the jurisdiction of the requesting State for a long period of time. I wouldn't think that the requesting State would be at a disadvantage, and certainly there are no impediments to that jurisdiction, working with the Justice Department, furnishing you the information that you need. Mr. SMITH. Mr. Chairman, would you yield for a second? Mr. SMITH. Would you be getting basically to the point that if in fact the request for extradition is made and somehow the attempt for further information to allow the court to make a determination on the question of bail would get hung up at some point in the proceeding between us and a foreign country, where people could really languish in jails for long periods of time, at a period when we really have no ability to pull them out of that situation without their shifting the burden to the State to determine whether or not that person is a flight risk. It seems to me under your theory, in fact, there could be a deliberate absence of flow of information, causing people to remain incarcerated when they might otherwise be releasable; that your logic would be that if the other country requesting extradition fails to cooperate at that point in time, then in fact there is a shift of the burden, and the people who are languishing might be able to get out if they, in fact, are not provable as a special risk. Mr. OLSEN. Congressman, I am not aware of any situation that you address your question to, where someone has languished in jail or been incarcerated for a substantial period of time while we are working out and trying to get information on that type of an issue. The extradition proceedings are perhaps slightly different in that at the point in time that the United States is prepared to file extradition papers in court, those papers have already been reviewed and evaluated by two separate Departments of the Federal Government: The State Department and the Justice Department. Therefore, at that point in time we are ready to go forward. Mr. HUGHES. I have to stop you there. We have a vote to catch. I apologize. We will pick up where we are when we come back. The hearing is recessed. [Recess.] Mr. HUGHES. The subcommittee will come to order. I apologize again for that delay. Mr. Olsen, you were in the middle of responding to Mr. Smith. |