211.71/43
The Secretary of State to the Chairman of the Senate Committee on Foreign Relations (Borah)
My Dear Senator Borah: I am advised that at a recent meeting of your Committee when the extradition treaty recently concluded with Rumania was under discussion, the Committee expressed a desire to receive a statement of my views on the two following questions:
1. Would it be satisfactory to the Rumanian Government to omit the paragraph in our note, accompanying and made a part of the treaty, reading as follows:
“In order to make this assurance in the most effective manner possible, it is agreed by the United States that no person charged with crime shall be extraditable from Rumania upon whom the death penalty can be inflicted for the offense charged by the laws of the jurisdiction in which the charge is pending.”
and to substitute therefor the simple assurance of this Government that the death penalty would not be inflicted, and
2. If a treaty were entered into with Rumania with an accompanying note to the effect last set forth, would the treaty, as including such a note, have the effect of governing the situation in a given case where the person extradited was subject to the death penalty under State law, as against the laws of a State.
Replying to the first question, I may say that I think the indicated change in the note would be satisfactory to the Rumanian Government, which, in the counter draft it proposed to the draft extradition treaty proposed by this Government, proposed (Article 7) that
“In view of the fact the death penalty does not appear among the penalties recognized by the criminal laws of Rumania, the Rumanian Government will grant the extradition of criminals who, under the criminal laws of the United States, would be liable to the said penalty only on condition that the Government of the Republic of the United States undertakes in a formal statement that the sentence of death passed upon him shall not be carried out.”
In response to your second question, I may say that I am of the opinion that if a treaty entered into with Rumania included an accompanying note giving an assurance by the United States that the death penalty would not be inflicted upon a person extradited from [Page 674] Rumania, that assurance so contained would have the legal effect of governing the situation in a given case as against the laws of a State.
However, it should be added, as bearing upon both the questions, that in view of the practical difficulties which might be involved in maintaining such assurances in a given case, I should be indisposed to enter into such an arrangement with Rumania. Local authorities might be in disagreement with the views of the executive branch of the Federal Government on this matter, or might feel that they had no authority to intervene in the matter. Because of the absence of competent counsel to defend the accused, the case might not be correctly presented to the courts or the appropriate legal steps might not be taken. It is even conceivable that there might be interference by persons not in authority, which would nullify the effect of the assurance.
May I add that possibly the effect of the ratification of the treaty in its present form is not, as a practical matter, of so great importance as might appear? In this connection I may point out that since 1908 the United States has had an extradition convention with Portugal which contains provisions like those under discussion. Nevertheless, in all that time, notwithstanding the fact that Portugal is considerably more accessible from the United States than is Rumania, the records of the Department do not show that any request has been made to it by Federal or State authorities in the United States to obtain the extradition from Portugal of a person accused of murder. It can hardly be assumed that this has been due to the fact of general knowledge by such authorities of the terms of the treaty, for the Department’s experience does not indicate the existence of such general knowledge of the extradition treaties of the United States on the part of authorities who institute extradition proceedings.
In any event, as will readily occur to you, with the treaty ratified as concluded, Rumania will not offer any more of a refuge to murderers from this country than it offers at present with no treaty of extradition in force.
I am [etc.]