\\server05\productn\N\NYL\12-2\NYL205.txt unknown Seq: 21 2-DEC-09 13:42
2009] THE UNITED STATES, CHINA, AND EXTRADITION 465
MLATs.
104
The MLAA is strictly for bilateral government coopera-
tion; private parties may not obtain, suppress, or exclude evidence
gathered pursuant to the MLAA.
105
The MLAA’s limitations on assistance parallel the bases for de-
nial found in extradition treaties. There is a dual criminality provi-
sion, but it allows greater accommodation: parties may “agree to
provide assistance for a particular offense, or category of offenses,
irrespective of whether the conduct would constitute an offense under
the laws in the territory of both Parties.”
106
This also indicates the
importance assigned to case-by-case assistance by the United States
and China. Assistance may be refused if the request relates to purely
military offenses or would “prejudice the sovereignty, security, public
order . . . important public policy or other essential interests of the
Requested Party,”
107
a limitation echoing the U.S.-Hong Kong Extra-
dition Agreement and other MLATs.
108
This broad provision gives
the parties ample grounds to deny requests, lessening the compulsion
required by the Agreement.
The MLAA has a more expansive political offense exception
compared to other MLATs,
109
and, like the U.S.-Hong Kong Extradi-
104. See, e.g., Treaty with Ireland on Mutual Legal Assistance in Criminal Matters,
supra note 98, art. 1(2); Treaty with Czech Republic on Mutual Legal Assistance in
R
Criminal Matters, U.S.-Czech Rep., art. 1(2), Feb. 4, 1998,
S. T
REATY
D
OC
. N
O
.
105-
47; Treaty with Hungary on Mutual Legal Assistance in Criminal Matters, U.S.-
Hung., art. 1(2), Dec. 1, 1994,
S. T
REATY
D
OC
. N
O
.
104-20.
105. Compare U.S.-P.R.C. MLAA, supra note 97, art. 1(3), with Mutual Legal As-
R
sistance Treaty with Japan, U.S.-Japan, art. 1(5), Aug. 5, 2003,
S. T
REATY
D
OC
. N
O
.
108-12; Treaty with Ireland on Mutual Legal Assistance in Criminal Matters, supra
note 98, art. 1(4); Treaty with Brazil on Mutual Legal Assistance in Criminal Matters,
R
supra note 98, art. 1(5).
R
106. U.S.-P.R.C. MLAA, supra note 97, art. 3(1)(a).
R
107. Id. arts. 3(1)(b)–(c).
108. See, e.g., Treaty with Ireland on Mutual Legal Assistance in Criminal Matters,
supra note 98, art. 3(1)(a) (providing that assistance may be denied if “the Requested
R
Party is of the opinion that the request, if granted, would impair its sovereignty, secur-
ity, or other essential interests, or would be contrary to important public policy”);
Treaty with Brazil on Mutual Legal Assistance in Criminal Matters, supra note 98,
R
art. 3 (providing that assistance may be denied if “the execution of the request would
prejudice the security or similar essential interests of the Requested State . . . .”).
109. The term political offense is defined in MLATs based on its usage in extradition
treaties. Letter of Submittal from Madeline K. Albright, U.S. Secretary of State, to
William J. Clinton, U.S. President (Apr. 14, 1998), in Treaty with Czech Republic on
Mutual Legal Assistance in Criminal Matters, supra note 104 at vi. Compare U.S.-
R
P.R.C. MLAA, supra note 97, art. 3(1)(d) (providing that assistance may be denied if
R
“the request relates to a political offense or the request is politically motivated or there
are substantial grounds for believing that the request was made for the purpose of
investigating, prosecuting, punishing, or otherwise proceeding against a person on
account of the person’s race, religion, nationality, or political opinions . . . .”), with
Mutual Legal Assistance Treaty with Japan, supra note 105, art. 3(1)(1) (“The Central
R