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Cablegate: U.S.-Singapore Mlat Discussions

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 04 SINGAPORE 003516

SIPDIS

STATE FOR L/LEI DAVID BUCHHOLZ
JUSTICE FOR DOJ/OIA STEWART ROBINSON

E.O. 12958: N/A
TAGS: PREL KTIA KJUS KCRM PGOV SN
SUBJECT: U.S.-SINGAPORE MLAT DISCUSSIONS

REF: (A)04 SINGAPORE 1140, (B)03 STATE 319319

1. This is an action request. Please see para 17.

2. Summary: On December 7, 2005, Singapore and U.S.
delegations met in Singapore to continue discussions
related to a possible bilateral Mutual Legal Assistance
Treaty (MLAT). Negotiators had met twice before, in
discussions in April 2004 and in a round of negotiations
in November 2003 in Washington (Ref A and B).
Discussions this time focused on several overarching
obstacles to progress, most of which are linked to
Singapore's restrictive mutual assistance law. While
Singapore showed some flexibility -- identifying one
pending change to its law and expressing a willingness to
consider others -- the GOS made clear that ultimately its
domestic requirements must be reflected in the treaty in
some fashion. The two sides agreed to continue informal
contacts and exchanges of ideas on text and legislative
changes in the coming months, with a view toward creating
a basis for further negotiations. End Summary.

3. The U.S. delegation consisted of representatives from
State L/LEI, the Department of Justice's Office of
International Affairs, and Embassy Singapore. The
Singapore representatives were from the Attorney-
General's Chambers (AGC), the Ministry of Home Affairs,
the Ministry of Law and an observer from the Monetary
Authority of Singapore. Separately, Embassy Singapore
and L/LEI met with the Ministry of Foreign Affairs
(Septel).

Overarching Concerns
--------------------

4. The impetus for this latest round of discussions on a
Mutual Legal Assistance Treaty (MLAT) was a September 29
letter from the USG outlining four overarching areas of
concern: (1) whether an MLAT would be entirely "subject
to domestic law," as Singapore had proposed; (2) whether
it would be limited to cover only offenses criminal in
both countries ("dual criminality") or some other
specified set of offenses; (3) whether it would contain
an extensive set of limitations on when assistance could
be granted; and (4) whether it would allow Singapore to
provide assistance in situations in which charges had not
yet been filed in the United States. These had been the
key areas in which a fundamental difference of approach --
the United States preferring broad, open-ended
obligations to assist and Singapore preferring limited,
restricted obligations -- had manifested itself.

5. The Singapore delegation noted at the outset of the
meeting that "the situation had changed" since the last
discussions in April 2004 and that they felt they had
more flexibility and were in a better position to make
progress. They repeated this theme throughout the day.
AGC's Mathew Joseph, the head of Singapore's delegation,
specifically noted that Singapore no longer felt the
treaty needed to correspond exactly with its domestic
law: "That is where we were, not where we are," he said.

"Subject to Domestic Law"
-------------------------

6. Singapore expressed a willingness to consider the
question of "subject to domestic law" on an article-by-
article basis, rather than as the controlling principle
of the treaty. This would have been a major concession,
but it became clear in further discussions that it did
not necessarily reflect an ability or willingness to
dispose of the most troubling requirements of Singapore's
domestic law (primarily in the Mutual Assistance in
Criminal Matters Act of 2000). Rather, Singapore
indicated that its "essential domestic requirements"
would have to be reflected in each article of the treaty.
These requirements, in many cases, will likely be
unworkable for the United States, and the U.S. delegation
indicated as much. Toward the end of the day, Singapore
did leave open the possibility that it could seek
legislative changes, where necessary, to accommodate
cooperation.

Dual Criminality
----------------

7. One of Singapore's key concerns was the scope of
offenses to which the treaty would apply, and Singapore
seemed greatly mollified by a U.S. proposal that the
treaty could be limited to cases in which dual
criminality existed. This is consistent with the
approach in Singapore's law, in which assistance is
available only for certain listed "serious offenses." To
ensure the treaty would cover the major crimes for which
the United States seeks foreign evidence, the U.S.
proposed that the treaty also contain an annexed list of
offenses for which assistance would be granted regardless
of whether they are recognized under Singapore law.
Singapore expressed concern that it would be unable to
provide certain types of assistance if an offense was not
recognized in Singapore, thus making it unclear the U.S.
proposal would work.

8. Singapore did, however, express a willingness to look
at the specific offenses of concern to the United States.
Significantly, Singapore shared with the United States a
proposed amendment to its own list of "serious offenses"
for which assistance could be granted. This proposed
amendment, which Singapore has been preparing in part to
comply with its Financial Action Task Force (FATF)
obligations, would add approximately 150 offenses,
including many of great importance to the United States
(such as intellectual property crime, environmental
crimes, computer crimes, securities offenses, and
terrorism offenses), to the serious offense list. If it
were to include all offenses of concern to the United
States, such a list might obviate the need for an annex
to the treaty. The Singapore delegation indicated that
the list need not be approved by Parliament, as a Gazette
notification was sufficient (analogous to a Federal
Register Notice). When the U.S. delegation pointed out
that gaps may still exist in the list, Singapore
indicated that the list was not yet "cast in stone," and
that if the United States wanted to suggest additions,
Singapore would consider them.

Absence of Tax and Fiscal Crimes
--------------------------------

9. One potentially problematic area is tax and fiscal
offenses, which the United States noted are not on
Singapore's current or proposed amended list of serious
offenses. The U.S. delegation underscored the necessity
of being able to request assistance in tax cases.
Singapore suggested that tax assistance should come
directly from revenue authority to revenue authority, and
alluded to ongoing discussions on a proposed Double
Taxation Agreement (DTA). Singapore also noted that it
does not recognize certain types of fiscal offenses, such
as those involving movement of currency. When the U.S.
delegation pressed the issue, Singapore indicated it
might be able to render assistance in a tax case if the
facts of a tax or fiscal offense also supported other,
recognized offenses such as fraud or money laundering.
This is an issue requiring further study by the United
States.

Limitations on Assistance
-------------------------

10. The two sides discussed at great length the issue of
limitations on assistance. Singapore's domestic law
contains 16 different grounds under which assistance can
be refused, many of which it had previously sought to
incorporate in treaty text. The Singapore delegation
stressed that decisions to refuse assistance under its
law are left to the discretion of the AGC, and that with
a treaty partner it would exercise its discretion not to
employ many of the grounds. Singapore offered that it
now felt comfortable omitting some of the grounds from
treaty language, and proposed that a treaty adopt
language similar to that in the U.S.-Hong Kong MLAT, in
which various grounds for refusal of requests -- some
characterized as mandatory and some as discretionary --
are identified.

11. The U.S. side expressed a preference for including
only 3-4 discretionary grounds for refusal, and sought
clarification whether the omission of certain grounds
from the treaty would have the effect of overriding
domestic law provisions to the contrary. Singapore at
first stated that the grounds for refusal would still
apply if the AGC found them applicable. Later, however,
the Singapore delegation indicated that, at least with
respect to certain specific grounds for refusal (in
particular, refusal based on "insufficient importance" of
the evidence or "insufficient gravity" of the offense),
omission from the treaty would mean that such grounds
would not be used to deny requests and that it would be
up to Singapore to determine how to implement this treaty
obligation domestically. In this context, Singapore
stressed that, because its law applies to both treaty
partners and non-treaty partners, it contains provisions
that cannot be eliminated but would not be applied
against treaty partners. Singapore also stressed that it
would not look behind the face of U.S. assistance
requests to seek out reasons to deny them (such as, for
example, in the case of double jeopardy). (Comment: USG
negotiators may wish to consider ways in which to reflect
such assurances in treaty language, or a related exchange
of notes, given the lack of clarity on their legal status
under Singapore domestic law. End Comment.)

Assistance Before Charges?
--------------------------

12. On the issue of Singapore's ability to provide
assistance in a situation in which no U.S. charges have
yet been filed, Singapore clarified that the issue
relates to only one type of assistance: testimony that
must be obtained by compulsion. Under Singapore law,
while police can compel witnesses to testify in a
domestic investigation, there is no authority to compel
the testimony of witnesses on behalf of a foreign
government unless it is related to "criminal proceedings
pending in a court." The U.S. delegation explained the
grand jury process in the United States, and the need to
be able to compel witness testimony during the grand jury
stage. Singapore asked whether the grand jury could be
considered a criminal proceeding pending in a court, and
the U.S. delegation, while promising to report back on
that question, expressed doubt. Singapore also indicated
its view that this would not be a significant problem,
because its police could generally convince witnesses to
testify voluntarily (they indicated they had done this
for other countries, including the Netherlands), and
because witness testimony could sometimes be obtained in
connection with a production order (i.e., when the
witness is a records custodian).

13. Singapore noted that Canada has specific legislation
authorizing it to provide compulsory assistance on behalf
of foreign cases, and the U.S. delegation pointed out
that Canada's legislation was adopted precisely to comply
with a U.S.-Canada MLAT. The Singapore delegation
volunteered that it might need a legislative amendment to
solve this issue, and, in perhaps the most significant
moment of the day, said it could consider doing the same
thing Canada did.

Disclosure and Use of Evidence
------------------------------

14. Finally, the two sides discussed the question of
whether the treaty could include language, previously
suggested for deletion by Singapore, which contemplates
and permits disclosure of evidence obtained under the
treaty when required by the U.S. Constitution for
exculpatory purposes. The U.S. delegation clarified the
limited scope of this exception, and the Singapore
delegation appeared satisfied with the U.S. explanation
and willing to include the language. Furthermore,
Singapore seemed willing to consider generally reversing
the presumption that use of evidence produced under the
treaty would be limited, absent consent; the U.S. side
suggested, and Singapore seemed ready to accept, that the
presumption should be that the evidence can be used for
any purpose unless the state producing the evidence
requests otherwise. In this regard, the U.S. delegation
clarified that information requested under the MLAT would
generally be for public use at trial, in contrast to
intelligence or police-gathered information, which would
continue to remain confi dential.

Next Steps
----------

15. The two sides agreed to informally exchange
information and proposals in the near future, including
on those issues outlined in the action paragraphs below.
In addition to those, the U.S. delegation asked the
Singapore delegation to look again at Articles 1, 3, and
7 of the draft treaty in light of the discussions and
consider proposing new text. Further next steps will
depend on those interactions; no specific commitments
were made regarding further negotiations.

Comment
-------

16. The U.S. delegation viewed the discussions with
cautious optimism. Singapore seemed ready to take
several significant steps. The informal explorations of
issues should continue, and will reveal whether further
negotiations are worthwhile. The United States should
continue to put political pressure on Singapore to show
flexibility, to achieve an effective, broad and useful
MLAT.

Action Request
--------------

17. Action Request: The U.S. delegation identified three
follow-up items for the United States from the
discussions:

-- Per para 8, Department and Department of Justice are
requested to review the Singapore-proposed list of new
serious offenses against their own requirements for an
MLAT and provide to Singapore (and Embassy) a list of any
additional offenses for Singapore to consider.

-- Per para 11, Department and Department of Justice are
requested to provide a list of limitations on assistance
it would like to see reflected in the treaty. The GOS
also agreed to provide us with its list and to exchange
such lists informally. In addition, the U.S. delegation
committed to look at certain language in other treaties,
such as double jeopardy language in MLATs with the U.K.,
Ireland, Hong Kong, and Switzerland, and to report to the
Singapore delegation on the meaning of the language
"important public policy" in the essential interests
clause of the U.S.-U.K. MLAT.

-- Per paras 12-13, Department and Department of Justice
are asked to follow up with Singapore by providing
information on the characterization of grand jury
proceedings, as well as information on Canada's
legislation on compulsory assistance for foreign cases
and on similar legislation in the U.K.

18. Drafted by L/LEI David Buchholz.

HERBOLD

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