from those words contained in it. By this instrument the court abroad is informed of the pendency of the cause, and the names of the foreign witnesses, and is requested to cause their depositions to be taken in due course of law, for the furtherance of justice, with an offer on the part of the tribunal making the request to do the like for the other in a similar case." Treatise on Evidence, vol. 1, § 320. The comity in behalf of which this power is exercised cannot, of course, be invoked by any mere investigating commission. And it would seem that, by act of congress, the power of the federal courts in this respect has been restricted to cases in which a foreign government is a party or has an interest. Rev. St. § 4071.J While there has been some movement to broaden the use of letters rogatory by extending their use to proceedings before a body other than a court, we are unaware of any basis for their use in a legislative investigation. Thus, when the statutory provisions now codified at 28 U.S.C. §§1781 and 1782 were adopted (Pub. L. 88-619, §§8(a), 9(a)), the term 'tribunal' was used to make "it clear that assistance is not confined to proceedings before conventional courts." (H. Rep't. No. 1052, 88th Cong. 1st Sess. at p. 9 (1963); S. Rep't. No. 1580, 88th Cong., 2d Sess. at 7-8 (1964)). In interpreting the provisions of 28 U.S.C. §1782, when faced with requests to honor letters rogatory by foreign governmental entities, the United States courts have held that the word tribunal, while encompassing requests for assistance from bodies other than a foreign court, does not extend to investigative agencies or officers whose acts are unrelated to a judicial or quasi-judicial controversy. Thus, the courts have refused to compel testimony, (1) upon the request of an Income Tax Officer of the Government of India to assist in the assessment of taxes (In re letters Rogatory Issued by the Director of Inspection of the Government of India, 384 F.2d 1017 (2d Cir. 1967)) and (2) upon a request to assist a Canadian commission of inquiry authorized to investigate and make recommendations (In re Letters of Request to Examine Witnesses, 59 F.R.D. 625 (1973), aff'd, 488 F.2d 511 (9th Cir. 1974)). In the latter case the District Court said (59 F.R.D. 625, 628, 629): [2] There can be no doubt that the purpose of enacting Public Law 88-619 was to broaden and liberalize the procedures by which United States courts cooperate with foreign and international tribunals. In his transmittal letter to President Kennedy, the Chairman of Commission on International Rules of Judicial Procedure, which drafted and recommended the proposed amendments, stated that: "Until recently, the United States has and thereby providing equitable and efficacious procedures for the benefit of tribunals and litigants involved in litgation with international aspects." 1 This statement of purpose was adopted by the Judiciary Committees of both houses of Congress. 1. Letter of Oscar Cox, January 28, 1963, reproduced in the Fourth Annual Report of the Commission on International Rules of Judicial Procedure, II.R.Dur.No.89, 88th Cong., 1st Sem. 19 (1983). 2. Judicial Procedures in Litigation with International Aspects, Report of the ('ommittee on the Julielavy, II.R.Rep.No.1072, 88th Cong., 1st Sexs, 4 (1983); S.Rep. No.1380, 88th Cong., 2d Sean, 2 (1964); Cf., 1964 U.S.Cole Cong, & Admin.News pp. 3782, 37x3. [3] The legislative history does not indicate, however, that it was the purpose of Congress or the Administration to broaden the scope of international cooperation beyond the activities of courts and other quasi-judicial entities to encompass bodies whose primary functions are investigative. Indeed, the passage just quoted makes repeated reference to litigation and litigants. To the same effect is a letter from President Kennedy to Chairman Cox, dated May 27, 1963, in which the President stated: "This proposal has been reviewed within the administration, and we have reached the conclusion that the procedural reforms which its enactment would accomplish would be most desirable from the standpoint of the administration of international justice on behalf of private litigants." 3 3. Reproduce in H.R.R-p.No.1052, 88th Cong., 1st Sex, at 3. (1003). [4,5] The Commissioners' argument that the references to litigation were not intended to limit the scope of the amendment is not well taken. Use of the term "tribunal" in the amended statute was explained in the report of the advisory commission, and adopted by both houses of Congress as follows: "A rather large number of requests for assistance emanate from investigating magistrates. The word 'tribunal' is used to make it clear that as'sistance is not confined to proceedings before conventional courts. For example, it is intended that the court have discretion to grant assistance when proceedings are pending before investigating magistrates in foreign countries. See Lelievre in Letters Rogatory 13 (Grossman ed. 1956). In view of the constant growth of administrative and quasi-judicial proceedings all over the world, the necessity for obtaining evidence in the United States may be as impelling in proceedings before a foreign administrative tribunal or quasi-judicial agency as in proceedings before a conventional foreign court. Subsection (a) therefore provides the possibility of United States judicial assistance in connection with all such proceedings.” * 4. House Dor.No.88, 8Sth Cong. 1st Sexa, 45 (1963): 1I.R.Rẹp.No.1052, 88th Cong., 1st Sews, D. (1903); S.Rep.No.1580, 88th Cong., 21 Sess, 7–8 (1984). From this language it appears that Congress intended to ignore any distinctions between purely judicial bodies, and quasi-judicial administrative bodies; between conventional courts and adjudicative institutions or individuals, such as the French investigating magistrate, to which there is no equivalent American institution. All were intended to be included in the term "tribunal". But nothing in the foregoing indicates a Congressional intent to include institutions whose purpose is to investigate and report to the executive or legislative branches of government. Rather, the 'crucial requirement is that the foreign body exercise adjudicative power, and have an adjudicative purpose." 3. The Commissioners' contention that the Comnilssion of Inquiry is such a body is discussed in connection with the argument that the Commission is n tribunal. 6. This interpretation of "tribunal" is based 2. Hence, a court or forum of justice; n indicates that the term "was chosen do liberately as being both neutral and encompassing. Any person or body exerelsing adjudicatory power is included." 65 Colum.L.Rev. at 1021 n. 36. Briefly, our research to this point suggests that: 1. Traditionally, letters rogatory have been utilized in the context of judicial proceedings. 2. The decision as to whether or not to honor such a request is made by the courts of the receiving state, applying pertinent domestic and international law. A primary principle involved in such decisions is comity, recognition of the desirability of cooperation between judicial systems in doing justice. 3. Existing American law, statutes and judicial decisions, indicate that federal courts have no jurisdiction to issue a letter rogatory on behalf of a congressional committee and that such a vehicle is inappropriate for securing testimony in aid of a congressional investigation. Federal courts have limited their enforcement of foreign requests to judicial and quasi-judicial proceedings. 4. While the decision as to whether to honor such a request from a congressional committee will be made by the receiving foreign court, it seems unlikely that such a request would be honored in view of the traditional use, limited to judicial proceedings. Because comity is a major element in the decision to honor such requests and our courts have been unwilling to extend enforcement of requests beyond judicial and quasi-judicial proceedings, even under a statute designed to extend enforcement beyond traditional limits, foreign courts would probably refuse enforcement on grounds of comity also. Thames B. Rusi A Thomas B. Ripy American Law Division 2. Sample Application for Orders Requesting International Judicial Assistance-Issuance of Letters Rogatory UNITED STATES DISTRICT COURT In the Matter of the Application of UNITED STATES HOUSE OF REPRESENTATIVES Misc. No. 78-0120 APR 1 9 1978 APPLICATION FOR ORDERS REQUESTING 1. I, James L. Wolf, Counsel for the United States House of Representatives Select Committee on Assassinations, have been duly authorized and directed to request of this court orders praying for international judicial assistance with respect to the issuance of letters rogatory. 2. Counsel for the Select Committee has been advised by the Director of the Portuguese office of INTERPOL that letters rogatory, issued by a United States court and approved by a Portuguese Judge of Instruction, are required before Select Committee counsel and investigators can speak to Portuguese citizens. Upon the issuance of such letters rogatory, certain witnesses who reside in Portugal and are integral to the investigation being conducted by the Select Committee will be located by the Portuguese police for the purpose of giving statements to Select Committee staff members. 3. On April 13, 1978 the Select Committee on Assassinations, by a vote of 10 0, passed a resolution (a copy of which is annexed as Appendix A) authorizing this request for orders involving the issuance of letters rogatory. |