tion by Mexico was also subject to the approval by the majority of the state legislatures of an amendment to article 18 of the Constitution proposed by the Federal Executive Authority on September 4, 1976, and favorably approved by the Congress of the Union. The Senate of Mexico approved the treaty on December 30, 1976. In the United States, ratification with the advice and consent of two-thirds of the Senate and enabling legislation are required. The U.S.-Mexico treaty was transmitted to the Senate, for advice and consent to ratification, on Feb. 21, 1977 (S. Ex. D, 95th Cong., 1st Sess.). The text of the U.S.Mexico treaty follows: The United States of America and the United Mexican States, desiring to render mutual assistance in combating crime insofar as the effects of such crime extend beyond their borders and to provide better administration of justice by adopting methods furthering the offender's social rehabilitation, have resolved to conclude a Treaty on the execution of penal sentences and, to that end, have named their plenipotentiaries Joseph John Jova, Ambassador Extraordinary and Plenipotentiary by the President of the United States of America and Alfonso Garcia Robles, Secretary of Foreign Relations by the President of the United Mexican States, Who, having exchanged their full powers and having found them in proper and due form, have agreed on the following Articles: Article I (1) Sentences imposed in the United Mexican States on nationals of the United States of America may be served in penal institutions or subject to the supervision of the authorities of the United States of America in accordance with the provisions of this Treaty. (2) Sentences imposed in the United States of America on nationals of the United Mexican States may be served in penal institutions or subject to the supervision of the authorities of the United Mexican States in accordance with the provisions of this Treaty. Article II This Treaty shall apply only subject to the following conditions: (1) That the offense for which the offender was convicted and sentenced is one which would also be generally punishable as a crime in the Receiving State, provided, however, that this condition shall not be interpreted so as to require that the crimes described in the laws of the two States be identical in such matters not affecting the character of the crimes such as the quantity of property or money taken or possessed or the presence of interstate commerce. (2) That the offender must be a national of the Receiving State. (4) That the offense not be a political offense within the meaning of the Treaty of Extradition of 1899 between the parties, nor an offense under the immigration or the purely military laws of a party. (5) That at least six months of the offender's sentence remains to be served at the time of petition; and (6) That no proceeding by way of appeal or of collateral attack upon the offender's conviction or sentence be pending in the Transferring State and that the prescribed time for appeal of the offender's conviction or sentence has expired. Article III Each State shall designate an authority to perform the functions provided in this Treaty. Article IV (1) Every transfer under the Treaty shall be commenced by the Authority of the Transferring State. Nothing in this Treaty shall prevent an offender from submitting a request to the Transferring State for consideration of his transfer. (2) If the Authority of the Transferring State finds the transfer of an offender appropriate, and if the offender gives his express consent for his transfer, said Authority shall transmit a request for transfer, through diplomatic channels, to the Authority of the Receiving State. (3) If the Authority of the Receiving State approves the request, it shall promptly so inform the Transferring State and shall initiate the necessary procedures to effect the transfer of the offender. If it does not approve the request, it shall so notify promptly the Authority of the Transferring State. (4) In deciding upon the transfer of an offender the Authority of each Party shall bear in mind all factors bearing upon the probability that the transfer will contribute to the social rehabilitation of the offender, including the nature and severity of his offense and his previous criminal record, if any, his medical condition, the strength of his connections by residence, presence in the territory, family relations and otherwise to the social life of the Transferring State and the Receiving State. (5) If the offender was sentenced by the courts of a state of one of the Parties, the approval of the authorities of that state, as well as that of the Federal Authority, shall be required. The Federal Authority of the Receiving State shall, however, be responsible for the custody of the transferred offender. (6) No offender shall be transferred unless either the sentence which he is serving has a specified duration, or such a duration has subsequently been fixed by the appropriate administrative authorities. (7) The Transferring State shall furnish the Receiving State a statement showing the offense of which the offender was convicted, the duration of the sentence, the length of time already served by the prisoner and any credits to which the offender is entitled, such as, but not limited to, work done, good behavior or pretrial confinement. Such statement shall be translated into the language of the Receiving State and duly authenticated. The Transferring State shall also furnish the Receiving State a certified copy of the sentence handed down by the competent judicial authority and any modifications thereof. It shall also furnish additional information that might be useful to the Authority of the Receiving State in determining the treatment of the convict with a view to his social rehabilitation. (8) If the Receiving State considers that the documents supplied by the Transferring State do not enable it to implement this Treaty, it may request additional information. (9) Each Party shall take the necessary legislative measures and, where required, shall establish adequate procedures to give for the purposes of this Treaty, legal effect, within its territory to sentences pronounced by courts of the other Party. Article V (1) Delivery of the offender by the authorities of the Transferring State to those of the Receiving State shall occur at a place agreed upon by both parties. The Transferring State shall afford an opportunity to the Receiving State, if it so desires, to verify, prior to the transfer, that the offender's consent to the transfer is given voluntarily and with full knowledge of the consequences thereof, through the officer designated by the laws of the Receiving State. (2) Except as otherwise provided in this Treaty, the completion of a transferred offender's sentence shall be carried out according to the laws and procedures of the Receiving State, including the application of any provisions for reduction of the term of confinement by parole, conditional release or otherwise. The Transferring State shall, however, retain the power to pardon or grant amnesty to the offender and the Receiving State shall, upon being advised of such pardon or amnesty release the offender. (3) No sentence of confinement shall be enforced by the Receiving State in such a way as to extend its duration beyond the date at which it would have terminated according to the sentence of the court of the Transferring State. (4) The Receiving State shall not be entitled to any reimbursement for the expenses incurred by it in the completion of the offender's sentence. (5) The Authorities of each party shall, every six months, exchange reports indicating the status of confinement of all offenders transferred under this Treaty. including in particular the parole or release of any offender. Either Party may, at any time, request a special report on the status of the execution of an individual sentence. (6) The fact that an offender has been transferred under the provisions of this Treaty shall not prejudice his civil rights in the Receiving State in any way beyond those ways in which the fact of his conviction in the Transferring State by itself effects such prejudice under the laws of the Receiving State or any State thereof. Article VI The Transferring State shall have exclusive jurisdiction over any proceedings, regardless of their form, intended to challenge, modify or set aside sentences handed down by its courts. The Receiving State shall, upon being advised by the Transferring State of action affecting the sentence, take the appropriate action in accordance with such advice. Article VII An offender delivered for execution of a sentence under this Treaty may not be detained, tried or sentenced in the Receiving State for the same offense upon which the sentence to be executed is based. For purposes of this Article, the Receiving State will not prosecute for any offense the prosecution of which would have been barred under the law of that State, if the sentence had been imposed by one of its courts, federal or state. Article VIII (1) This Treaty may also be applicable to persons subject to supervision or other measures under the laws of one of the Parties relating to youthful offenders. The Parties shall, in accordance with their laws, agree to the type of treatment to be accorded such individuals upon transfer. Consent for the transfer shall be obtained from the legally authorized person. (2) By special agreement between the Parties, persons accused of an offense but determined to be of unsound mental condition may be transferred for care in institutions in the country of nationality. (3) Nothing in this Treaty shall be interpreted to limit the ability which the Parties may have, independent of the present Treaty, to grant or accept the transfer of youthful or other offenders. For the purposes of this Treaty, Article IX (1) "Transferring State" means the party from which the offender is to be transferred. (2) "Receiving State" means the party to which the offender is to be transferred; and (3) "Offender" means a person who, in the territory of one of the parties, has been convicted of a crime and sentenced either to imprisonment or to a term of probation, parole, suspended sentence, or any other form of supervision or conditional sentence without confinement. (4) A "domiciliary" means a person who has been present in the territory of one of the parties for at least five years with an intent to remain permanently therein. Article X (1) This Treaty is subject to ratification. The exchange of ratifications shall take place in Washington. (2) This Treaty shall enter into force thirty days after the exchange of ratifications and shall remain in force for three years. (3) Should neither contracting party have notified the other ninety days before the three-year period mentioned in the preceding paragraph has expired of its intention to let the Treaty terminate, the Treaty shall remain in force for another three years, and so on every three years. DONE at Mexico City in duplicate, this twenty-fifth day of November, one thousand nine hundred seventy six, in the English and Spanish languages, each text of which shall be equally authentic. Detlev Vagts, Department of State Counselor on International Law, wrote a memorandum dated December 15, 1976, in which he analyzed the basic provisions of the Treaty with Mexico on Transfer of Penal Sanctions, supra, and explored the question of its consistency with the Constitution of the United States. The substantive portion of that memorandum follows: I. Description of the Treaty. The Treaty is intended both to relieve the special hardships which fall upon prisoners incarcerated far from home and to make their rehabilitation more feasible and also to relieve diplomatic and law enforcement relations between the two countries of the strains that arise from the imprisonment of large numbers of each country's nationals in the institutions of the other. It constitutes part of an ongoing effort to improve relations between the two countries. It is also part of various efforts to establish closer international cooperation in law enforcement activities. It is without a direct analogy in United States practice, except for the Status of Forces Agreement with South Korea, but there is precedent for such an arrangement in Europe.2 The basic terms of the Treaty are as follows. Each transfer would be contingent upon the consent both of the state which sentenced the prisoner (the transferring state) and of the state which was to receive and confine him (the receiving state). The decision to transfer would be made on the basis of the whole record of the prisoner and the authorities' estimate as to the likelihood that the transfer would be beneficial. (Article IV.) In each case, the express consent of the prisoner concerned would have to be obtained; there can be no involuntary transfer under this treaty. Certain categories of prisoners are excluded from the terms of the Treaty: (1) political and military offenders; (2) offenders who are domiciliaries of the transferring state; (3) those having less than six months to serve when processing of their transfer begins; and (4) offenders against the immigration laws (article II). The program is basically one between the two Federal governments. Prisoners who are transferred become the responsibility of the Federal government in the receiving state. However, a state in either country which wishes to allow some of the prisoners which it holds to be transferred may exercise that option if it chooses. When a prisoner has been transferred, the following procedures govern his treatment thereafter. The original sentence would carry over to his new confinement, preserving deductions for good behavior in prison, labor done by him and pretrial confinement. The transferring state retains the power to grant pardon or amnesty. With these exceptions, the execution of the sentence is to be carried out according to the rules and practices prevailing in the state to which he is transferred (article V (2) ). In particular, the rules of the receiving state as to parole will determine the date at which the prisoner is released from confinement. Each nation is to report to the other on the manner in which it is administering the confinement of transferred prisoners. The Treaty provides in article II(5) that no prisoner will be transferred until the time for leave to appeal has expired and that no proceedings by way of appeal or collateral attack be pending. It further provides that any collateral attack on the sentence must proceed through the courts of the country which imposed the sentence (article VI). It is to be expected that prisoners transferred from Mexico to the United States will challenge the validity of this provision and assert that they cannot be constitutionally confined by the United States on the basis of proceedings conducted by Mexico. Parts II and III of this memorandum are devoted to an analysis of those contentions, concluding that they should not prevail. II. The Offenders' Convictions Were Products of Mexican Law and the United States Constitution does not Apply. The offenders with whom the Treaty deals were sentenced by Mexican courts for crimes they were found to have committed within the sovereign nation of Mexico. The Mexican constitution sets forth an extensive list of procedural guarantees afforded to defendants in criminal trials and affords various avenues of relief for those who claim to have been denied such guarantees. The Treaty preserves such avenues of appeal to the offenders. With all of this the Constitution of the United States has no concern. As stated in Wentz v. United States, 244 F.2d 172 (9th Cir. 1957): In the affidavit no action of officers of the United States begins before the defendant is brought to them in the United States. Therefore, the charge, if true, must be that the defendant was denied "due process" in Mexico by Mexicans. If true, that is no legal concern of an American court. Numerous other opinions have made the same points, for example, that in United States v. Toscanino, 500 F.2d 267, 280 n. 9 (2d Cir. 1974): The Constitution, of course, applies only to the conduct abroad of agents acting on behalf of the United States. It does not govern the independent conduct of foreign officials in their own country. In Holmes v. Laird, 459 F.2d 1211(D.C. Cir. 1972), cert. denied, 409 U.S. 869 (1972), the court pointed out the difference between a U.S. trial abroad, which is not legally permitted to transgress the limitations of the United States Constitution, Reid v. Covert, 354 U.S. 1 (1957), and a foreign trial: Obviously, the constitutional provisions appellants invoke exerted no force of their own upon the Federal Republic [of Germany] in that exercise of its sovereignty. Thus, immediately before their transfer offenders had no basis for claiming any deprivation of rights under the Constitution of the United States. III. The Acceptance by the United States of the Transfer of Prisoners from Mexico is not Such Involvement in the Mexican Proceedings as to Render the U.S. Constitution Applicable. The critical question in this case is whether the receipt by the United States of prisoners transferred from Mexico under the Treaty so involves the United States as to make their continued imprisonment here somehow the unlawful fruit of the lawful Mexican trial. In Holmes v. Laird, supra, the court phrased the contention thus: The argument, in essence, is that a turnover of an American citizen for service of a sentence imposed in culmination of an unfair foreign trial is a governmental involvement which the Constitution does not tolerate. The court rejected that argument, made in the context of a surrender of American citizens for trial by Germany under the provisions of the Status of Forces Agreement. Similar contentions have been made in a number of different contexts, all of which arise out of the growing interconnections between national criminal systems in the fight against international crime. In all but one case, discussed below, the courts have rejected contentions that the |