FIRST ROUND OF U.S.-INDONESIA MLAT NEGOTIATIONS

UNCLAS SECTION 01 OF 06 JAKARTA 000353

SIPDIS

SENSITIVE
SIPDIS

STATE FOR EAP/MTS, L/LEI FOR BUCHHOLZ
DOJ FOR CRIM AAG SWARTZ
DOJ/OIA FOR WARNER/ROBINSON
DOJ/OPDAT FOR ALEXANDRE/LEHMANN/CRAWFORD
BANGKOK FOR SONDERBY
MANILA FOR COLE

E.O. 12958: N/A
TAGS: PREL PGOV KCRM KJUS CJAN KTIA ID
SUBJECT: FIRST ROUND OF U.S.-INDONESIA MLAT NEGOTIATIONS



1. Summary. (U) On January 23-25, delegations from the U.S. and
Indonesia met in Jakarta for a first round of negotiations aimed at
conclusion of a mutual legal assistance treaty (MLAT) between the
two countries. The discussions were friendly and productive. All
participants agreed that an MLAT should add to, rather than
complicate, existing law enforcement cooperation. The delegations
exchanged information about their respective legal systems and
mutual legal assistance practices, and then began working on draft
text, using proposals that each delegation had prepared and shared
prior to the negotiations. A thorough review of about a third of
the text was completed. The delegations agreed that a second round
of negotiations should occur this year in Washington. End Summary.



2. (U) The U.S. delegation consisted of representatives from State
L/LEI, the Department of Justice's Office of International Affairs,
Embassy Bangkok, and Embassy Jakarta. The Indonesia delegation was
led by the Department of Foreign Affairs, and included
representatives from the Attorney General's Office, the Ministry of
Law and Human Rights, Interpol, the Financial Transaction Reports
and Analysis Center, the Indonesian National Police and the
Department of Immigration. Separately the two delegations (and
Charg) met briefly with the Attorney General of Indonesia, who
offered his support for the negotiations.

Indonesia Legal System
--------------


3. (SBU) At the U.S. request, Indonesia's delegation made a
presentation on its legal system and its practices with respect to
mutual legal assistance. Indonesia has a civil law system inherited
from the Dutch, under which law is mainly governed by statutes. In
the criminal law field, the two main statutes are the Penal Code and
the Code of Criminal Procedure, although various other statutes have
been enacted to address specific crimes such as terrorism, money
laundering, and corruption. These specific statutes include both
substantive offense definitions and procedural provisions, such as,
for example, creation of special courts or provisions to allow for
introduction of electronic evidence. Indonesia explained that,
where a specific law conflicts with a more general law such as the
criminal procedure code, the more specific law controls. They
further explained that this would be true of a ratified treaty as
well - if Indonesia ratified a mutual legal assistance treaty with a
particular country, its provisions would supersede any contrary
provision contained in Indonesia's general mutual assistance law.
(Note: This is an important point, as there are provisions in
Indonesia's mutual assistance law that would pose significant
problems for the United States, as noted below. Indonesia suggested
that its Law on International Treaties would clarify and confirm
this point. Post will obtain an English translation of that law for
the U.S. delegation. End Note)


4. (U) Under normal Indonesia criminal procedure, the police will
begin an investigation of a crime based on specific, known charges
and a suspect. Where no suspect has yet been identified, the police
can undertake a "preliminary investigation," which is still part of
a criminal proceeding. The police will create a dossier, the
primary contents of which are summaries of witness statements
prepared by police investigators. Once the dossier is complete, it
is given to a prosecutor who reviews it and, if he agrees it is
complete, presents it to a court. If the judge believes there is
sufficient evidence, he will order the dossier "admitted," which
amounts to requiring the defendant to appear at trial. Only five
kinds of evidence are recognized under the criminal procedure code:
witness statements, expert statements, documents, a defendant's
testimony, and "indication," loosely equivalent to circumstantial
evidence. The judge plays an active role in questioning witnesses
at trial. At the end of trial, a prosecutor will recommend a
sentence in addition to arguing for a conviction. The judge decides
guilt and sentence at the same time; a person can be found guilty
only if there are two forms of evidence and the judge also believes
the person is guilty. The prosecutor is then responsible for
executing the sentence.


5. (U) With respect to mutual legal assistance, Indonesia's
practice is now governed by the Mutual Assistance in Criminal
Matters Law of 2006, although previously Indonesia provided
assistance on the basis of reciprocity. The mutual assistance law
spells out procedures to be followed, the types of assistance that
can be granted, and reasons for refusing requests. Indonesia's
delegation indicated that, for the purpose of treaty negotiations,
while its proposed treaty is based on its law, it is not bound by

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any of these provisions. Rather, so long as Indonesia law does not
prohibit it, a treaty may add any practice or procedure, in
particular so long as it advances the principles of Indonesia's
criminal procedure code (one of which is efficiency). Indonesia has
mutual assistance treaties with Australia and China, has signed but
not ratified treaties with Korea and ASEAN, and will soon sign a
treaty with Hong Kong.


6. (SBU) When a mutual assistance request is received, the various
agencies with responsibility for executing such requests will meet
under the auspices of the Department of Foreign Affairs. They
collectively determine whether and how the request should be
executed. For example, if a request is at the investigative stage,
it will be executed by the police, because the police handle
investigations in Indonesia. In general, requests will be executed
according to the procedures in the mutual assistance law.


7. (SBU) The U.S. delegation, in reviewing the mutual assistance
law, found several potential problems which were discussed. For
example, the law speaks of assisting in "investigations," but that
is a term of art in Indonesia (as noted above, a formal stage of the
process). The U.S. delegation described the grand jury process in
the United States and Indonesia's delegation expressed confidence
that it was sufficiently similar to Indonesia's investigations
and/or preliminary investigations that it would be able to provide
assistance. Similarly, the law seems not to contemplate being able
to compel a witness to testify for a foreign state's proceeding, but
Indonesia's delegation clarified that, if a court order is needed
because a witness refuses to testify voluntarily, either the police
or prosecutors can obtain one, and that the police also have the
authority to compel witnesses to testify if necessary. The
delegation further clarified that, under its mutual assistance law,
Indonesia can collect evidence on behalf of a foreign country even
if it could not use the same kind of evidence itself - for example,
electronic evidence in a case that did not involve one of the
specific crimes for which electronic evidence is admissible in
Indonesia. The U.S. delegation will continue to explore such issues
in connection with specific types of assistance contemplated under
the treaty.

Proposed Treaty Text
--------------


8. (U) Prior to commencing an article by article review, the
delegations made general presentations about their proposed drafts.
Indonesia noted that its text was based on its act and on its prior
treaties, including most notably the ASEAN MLAT. In describing the
treaty, it focused particular attention on articles relating to
recovery of proceeds of crime, making it quite clear that this
concept was of paramount importance from Indonesia's point of view.
The U.S. delegation highlighted three themes that run through its
proposed text: the creation of broad, open-ended obligations to
provide assistance with limited bases for refusal; the creation of a
partnership of "central authorities" - the experts on either side
that are to engage in constant consultation to help ensure effective
execution of requests; and the goal, achieved through various
specific textual requirements, of ensuring that the result of a
mutual assistance request is the provision of admissible evidence.
With those themes in mind, the U.S. delegation briefly identified
and highlighted key provisions of each article in the treaty.


9. (U) The delegations agreed to consider issues by looking at both
drafts simultaneously. Indonesia's delegation prepared a chart
containing both proposed texts and a column for "agreed text." All
agreements that were reached were, of course, subject to further
consideration, and the delegations agreed that the text would later
be reviewed for consistency.

Article by Article Review
--------------


10. (SBU) In the preamble, the delegations discussed the U.S.
proposal to include the word "prevention" of crime as one of the
objectives of the treaty. Indonesia questioned whether that
encompassed training and other types of general cooperation. The
U.S. delegation clarified its intent to cover assistance for crimes
that might not yet be complete, such as with respect to a terrorist
plot or the activities of an organized criminal group. Indonesia's
delegation agreed to the concept, but expressed concern about the
translation into Indonesian of the word "prevention." The
delegations agreed to use the word "suppression" instead. The
delegations also agreed to omit a specific reference, sought by

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Indonesia, to the confiscation of criminal proceeds as being a goal
of the treaty, recognizing that it is covered in depth in a specific
article.


11. (SBU) In Article 1 ("scope of assistance"),the delegations
discussed the scope of matters for which assistance would be
available. The delegations agreed that the MLAT is for criminal law
enforcement purposes and the authority conducting an investigation
must be competent to do so in the context of law enforcement (for
example, legislative investigations would not be covered),but that
specific language regarding the jurisdiction of the investigating
authority was not necessary - it would be up to the requesting state
to ensure it did not submit requests where there was no competent
authority. The delegations also agreed that "proceedings related to
criminal matters" would include administrative and regulatory
investigations where a criminal referral is possible, such as by the
Securities and Exchange Commission or in tax cases, as well as civil
forfeiture actions connected with criminal conduct and grand jury
proceedings.


12. (SBU) The delegations were in general agreement on the types of
assistance to be covered. They clarified that evidence, including
testimony, could be compelled where necessary. They agreed that the
MLAT would not be used to obtain general "information," which was
more properly obtained through informal cooperation. And they
agreed that, in addition to listed types of assistance, the treaty
should cover any other form of assistance not prohibited by domestic
laws, regardless of whether it is specifically mentioned in the
treaty. With respect to two forms of assistance - arranging for
people to travel across borders to give evidence and asset
forfeiture - the delegations recognized that they did not yet have a
meeting of the minds on the appropriate scope of such assistance and
agreed to come back to the descriptive language after discussing the
details in connection with later articles.


13. (SBU) The delegations began a discusion f the issue of "dual
criminality," as the U.S. daft has a provision requiring assistance
regardlss of whether the conduct at issue would be criminl in the
requested state. Indonesia expressed adesire to reflect in the
treaty the provision of its law that allovs h(cretion to refuse an
assistance request if there isn*o dual criminality. The U.S.
delegation explained the importance of being able to obtain
assistacce for investigations of a wide variety of offense that are
often not criminalized in other countrees. Indonesia acknowledged
that it did not alwas" have comparable laws - for example, with
respect to computer crime - but that it would take a broa view of a
request and tend to grant it if therew"ere a general crime (e.g.,
fraud) that broadly eescribed the conduct at issue. Indeed, the
Indoe sia delegation indicated it had no experience of denying a
request based on lack of dual criminality, but that if the treaty
did not reflect the discretion to do so it could pose problems in
the ratification process, as it would appear the United States were
obtaining special treatment. The U.S. delegation indicated the
importance of having certainty that certain crimes would be covered,
and suggested potential consideration of a "list" approach.
Indonesia did not like the list approach, but indicated it would
consider the issue further and propose language at the next
session.
The U.S. delegation also asked for an explanation of the difference
in Indonesia's mutual assistance act between two articles (6c and
7a) that each appear to address dual criminality. Indonesia's
delegation was unable to articulate a true difference between the
two provisions. The U.S. delegation further described why a dual
criminality restriction is less applicable to the mutual legal
assistance situation than to extradition, and the sides agreed to
consider the matter further at the next round.


14. (SBU) In the context of the dual criminality discussion, the
delegations described some crimes of importance and reviewed whether
they were covered under respective laws. Indonesia indicated its
priorities were terrorism, financial crimes (including bribery,
corruption, money laundering, bankruptcy, and fraud),narcotics, and
trafficking in persons, all of which are adequately covered under
U.S. law. In addition to these, the U.S. asked about financing of
terrorism, environmental crimes, antitrust, securities offenses, tax
offenses, export controls, corporate crimes, intellectual property,
explosives, immigration, piracy, obstruction of justice, and
conspiracy and other inchoate offenses, all of which Indonesia
indicated were adequately covered. Some questions were raised about
two important areas - computer crime and racketeering - both of
which Indonesia felt could largely be covered under general laws.
In both areas, however, further discussion appeared to reveal gaps

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in coverage (for example, with respect to computer crime, it did not
appear any general law would cover the intentional dissemination of
a computer virus or worm).


15. (SBU) Finally, on Article 1 the delegations agreed that the
treaty would not cover defense requests, and that the U.S. language
setting that out was acceptable. Indonesia also agreed it did not
require a territorial provision in the treaty. Both sides agreed
the treaty would cover the entire territory of the respective
countries.


16. (SBU) The delegations discussed Indonesia's proposal that the
treaty have a "non-application" article. The U.S. delegation
expressed its view that such articles are not customary and would
raise questions about other things not listed in the article. The
U.S. further pointed out that one of the items on the list -
enforcement of criminal judgments - appeared to contradict the
intent of both sides with respect to forfeiture judgments.
Indonesia agreed to consider this further.


17. (SBU) The delegations next discussed an article on the impact
of an MLAT on other types of cooperation ("other assistance" or
"compatibility with other arrangements"). The delegations expressed
at length their mutual desire to ensure that an MLAT does not
undermine existing law enforcement cooperation which occurs outside
of treaty channels. Indonesia's Interpol representative reiterated
on many occasions that assistance could continue to be obtained via
direct police to police contacts. The delegations agreed that the
purpose of the treaty was to create a mechanism for obtaining
admissible evidence - a goal over and above the types of informal
cooperation that already occur - and that, for example, it would not
require use of the treaty if the police in one country simply wanted
to see a document that the police in the other country had. The
delegations agreed on the U.S. text for the article, and agreed to
discuss later its placement in the treaty (it was article 3 in the
Indonesia draft and article 17 in the U.S. draft).


18. (SBU) Concerning the article on "central authorities," although
there were few disputes over language, it was clear that the two
sides had different approaches to the concept. For the U.S., the
central authority (Justice's Office of International Affairs) has an
active role in the preparation of outgoing requests and the
execution of incoming requests, and the U.S. seeks similar partners
in other countries. But Indonesia's central authority is the
Ministry for Law and Human Rights, and Indonesia described that
agency's role as, essentially, chairing the interagency meeting to
decide what to do about requests. The real work, both with incoming
and outgoing requests, would be done by the Attorney General's
Office and/or the police. The U.S. delegation tried many ways to
convince Indonesia to attempt to streamline the process further, but
Indonesia explained that its police and prosecutors were part of
different agencies and that it needed the interagency coordination
because of divisions of authority. Indonesia did indicate, however,
that its police and especially prosecutors were able to have direct
contact with central authorities in other countries with respect to
particular requests and would continue to do so. In light of the
Indonesia position, the parties agreed to language expressing the
role of the central authority as "processing" requests. The U.S.
agreed to Indonesia's proposed language regarding the process for
changing a central authority, and encouraged Indonesia to consider
such a change.


19. (SBU) A similar problem prevented agreement on language
regarding the role of the diplomatic channel. The U.S. prefers
eliminating the diplomatic channel from MLAT requests, viewing that
as one of an MLAT's primary advantages over letters rogatory.
Indonesia expressed the view that its act requires it to maintain
the option of communicating through the diplomatic channel. The
U.S. delegation indicated that option was always available, whether
or not the treaty said so, as governments could always communicate
through their foreign ministries if they so choose. Indonesia
indicated that the language should remain bracketed for now.


20. (SBU) Most of the article on the content and form of requests
was identical or close to identical in the respective drafts. As is
customary, the draft provides that requests will be made in writing,
but both sides agreed that, given the distance between the
countries, it would be appropriate to incorporate the possibility of
electronic transmission of requests, so long as the authenticity of
requests could be verified (for example, by a follow-up phone call,
or perhaps through electronic signature technology). The
delegations agreed that translations would not routinely be

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required, but that sometimes a request would need to be translated
into Indonesian in order to be executed in Indonesia, and that the
United States would commonly provide a translation if requested in
such a circumstance.


21. (SBU) With respect to the contents of requests, the delegations
could not agree on two items - whether they would include
information on the subject of an investigation (the U.S. indicated
such information was often provided in practice but should not be
required, as it suggests that the identity of the subject might be
deemed relevant for determining whether to execute a request) and
whether a "court order relating to the assistance requested" should
be included. On the latter point, the U.S. delegation expressed its
concern about the provision of Indonesia's mutual assistance law
regarding search warrants. The law seems to require a requesting
state to obtain its own warrant for a search in Indonesia and
forward a copy of that warrant to Indonesian authorities for
execution, a process that would be impossible in the United States,
as a court would not issue such a warrant for a search outside its
jurisdiction. Indonesia indicated it would have to reflect further
on this problem. The delegations did indicate, however, that there
might be some types of court orders that would be required to be
included in an assistance request, such as a forfeiture order that a
state wanted enforced.


22. (SBU) The U.S. delegation sought confirmation, with respect to
the contents of requests, that the list that the two sides had
agreed and would put in the treaty would supersede the requirements
of Indonesia's mutual assistance law, which provides that certain
items (not included in the draft treaty text) "must" appear in a
request. Indonesia's delegation confirmed that Indonesia would look
to the treaty for the specific requirements with respect to a
particular country, and that the act provided only general
guidelines.


23. (SBU) In the article on "limitations on assistance," one of the
more important issues from the U.S. point of view is whether the
chapeau of this article includes the word "shall" (as in Indonesia's
draft) or "may." The U.S. delegation explained that the purpose of
the treaty is to create an obligation to provide assistance, not an
obligation to refuse assistance. The discretionary word "may"
always leaves open the option of denying assistance, but also leaves
open the possibility that assistance would be granted even in a case
in which a ground for refusal appears to apply. The U.S. pointed
out that the UN model treaty and all but one of existing U.S.
treaties use discretionary language, even with countries that have
laws similar to Indonesia's. The Indonesia delegation indicated
that it understood the U.S. arguments, but that it was not yet
comfortable ignoring the provisions of its law on this question, and
that the issue should remain bracketed.


24. (SBU) With respect to specific grounds for refusal, the U.S.
expressed its preference for a short list, in keeping with the
overall theme of the treaty to promote assistance. Both sides
quickly agreed on limitations for political offenses, military
offenses (that are not ordinary crimes),and petty crimes (because
the treaty is to be used for serious offenses). Both sides also
agreed to U.S. language allowing refusal of requests when they tread
upon a state's "essential interests," a term that the U.S.
delegation defined as amounting primarily to interests of a
constitutional dimension. In this respect, the U.S. delegation made
clear that it would not be able to provide assistance in the
investigation of certain crimes in Indonesia's penal code that
amount to speech crimes - criticizing the President or a religion,
defamation or libel, etc. - because of the First Amendment. Nor
would the U.S. be able to assist in debtor cases. Indonesia
indicated it had never invoked a similar clause in its draft treaty.
The delegations also agreed to a U.S. proposal that requests "not
in conformity with the treaty" could be denied, as this is often
useful in addressing defense attorney requests, and to an Indonesia
proposal that politically-motivated requests could be denied. With
respect to two other grounds that had been in the Indonesia draft -
assurances regarding limitations on use of evidence and interference
with ongoing investigations in the requested state - the delegations
agreed that they should be considered in different contexts but not
as bases for refusal.


25. (SBU) The delegations agreed to bracket for further
consideration language on double jeopardy. Both delegations
indicated that it was possible in each country to prosecute the same
conduct under different types of offenses without running afoul of
double jeopardy provisions, and that the issue was the offense, not

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the conduct. The U.S. delegation pointed out that the particular
charges (offenses) might not be known at the time of a request for
assistance, so that it would not make sense to deny a request on the
ground that the offense had already been prosecuted. The
delegations considered various scenarios in which an assistance
request might be made, including when a crime affected victims in
both countries and each country wanted to prosecute the offender.
Indonesia's delegation indicated it would have to give further
thought to the issues. Indonesia's delegation did acknowledge that
the language of its proposed provision was redundant in covering
"pardons" as well as convictions, as it explained that under
Indonesian law, one cannot be pardoned until after one is
convicted.


26. (SBU) Finally, the delegations agreed to include language
reaffirming that bank secrecy or the presence of fiscal matters are
not bases to refuse a request, and furthermore that before any
grounds of refusal are invoked, the central authorities would
consult to determine if assistance can nonetheless be granted. In
addition, the delegations agreed that the central authorities would
be expected to provide reasons for any refusal of assistance.

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


27. (U) At the conclusion of the third day of negotiations, the two
sides, at the request of Indonesia, signed a "record of discussion"
prepared by Indonesia's delegation that generally reflects the
intentions of the two sides and attaches a copy of the text as
agreed to date. The two delegations expressed their mutual desire
to continue the discussions in Washington, where they will proceed
to analyze the remaining articles. The U.S. delegation pointed out
that there are issues to be considered by each side in advance of
such negotiations, and that direct contact in the interim might be
appropriate as well.


28. (SBU) One of the issues that was touched upon tangentially but
not explored in detail was the role of Sharia law in Indonesia.
While the Indonesia delegation indicated that Sharia law is separate
from the penal code, they did acknowledge that, in some regions in
particular, Sharia law crimes are prosecuted by state officials.
This is an issue that delegations will need to fully explore in a
second round.


29. (U) This cable was drafted by the U.S. delegation to the
negotiations.

PASCOE