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15. Written responses by the Departments of State and Justice to questions submitted by SFRC following hearing in 13


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Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Lincoln Chafee

Committee on Foreign Relations

November 15, 2005

Extradition Treaty Between the United States of America and

the United Kingdom of Great Britain and Northern Ireland

(Treaty No. 108-23)

Question:

I have been hearing from many Rhode Islanders who have concerns about this extradition treaty. I recently received a letter from the Ancient Order of Hibernians stating, “The responsibility for deciding whether or not an extradition request is politically-motivated is transferred from the courts to the Executive Branch of the government which we believe violates due process.”

Their concerns about changes to the current treaty seem to stem from the fear that moving the decision about whether an extradition request is politically motivated from the Judicial to the Executive branch will deny them their “day in court”.

Can you please explain this provision in the treaty and comment on these concerns?

Why is it appropriate to remove this decision from the purview of the Judiciary at this time?

Answer:

There are two circumstances in which a defendant may assert that a purportedly political aspect of the case against him should bar his extradition.

The first concerns a claim that the offense itself for which extradition is sought is a “political offense.” Under both the current and the new treaty between the United States and the United Kingdom, as well as under all of the U.S. Government’s other extradition treaties, such claims are heard by the judiciary. (“Political offenses” could include, for example, non-violent speech protesting government action.) Under the current and new treaty with the United Kingdom, serious crimes of violence cannot be considered political offenses.

The second kind of “political” issue that might arise in the context of an extradition case is the “political motivation” issue referred to in the letter. This could be a claim by a fugitive sought for international extradition that he should not be extradited because the foreign government’s decision to charge him or seek his extradition is illegitimate because it is motivated by the requesting country’s desire to punish the person for his political views.

In U.S. practice, the question of “political motivation” is determined by the Secretary of State. This responsibility of the Secretary of State has been recognized by U.S. courts in the longstanding “Rule of Non-Inquiry,” whereby courts defer to the Secretary in evaluating the motivation of the foreign government. This principle recognizes that among the three branches of the U.S. Government, the Executive branch is best equipped to evaluate the motivation of a foreign government in seeking the extradition of an individual. The U.S. Government’s extradition treaties reflect the fact that the U.S. Secretary of State appropriately makes this judgment, and not the U.S. courts.

Indeed, until 1985, the issue of motivation of the Government of the United Kingdom in making an extradition request of the United States was treated the same as in all of our other extradition relationships – the courts played no role in reviewing this issue. In 1985, however, as part of an amendment of other aspects of the UK extradition relationship, the U.S. Senate developed what became Art. 3(a) of the 1972 U.S.-UK extradition treaty, as amended by the 1985 supplementary treaty, which states that extradition “shall not occur if the person sought establishes to the satisfaction of the competent judicial authority by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality, or political opinions, or that he would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.” This text was added pursuant to the Senate's Resolution regarding advice and consent to the 1985 supplementary treaty.

This anomalous treaty provision has led to long, difficult, and inconclusive litigation in several cases, where U.S. courts were thrust into the unfamiliar and inappropriate position of addressing motivation of a foreign government. The provision for judicial review of political motivation claims has been invoked in five cases, all dating from the early 1990s. Four of these cases involved persons of Irish Catholic background who were convicted of crimes of violence in Northern Ireland, and who escaped from prison in Northern Ireland in 1983 and fled to the United States.

The first of these cases involved James Joseph Smyth, who had been convicted of the attempted murder of a prison guard. More than 40 witnesses were heard at his extradition hearing, and a 5-week evidentiary hearing was held. Ultimately, the record in the case exceeded 3,000 pages. In 1996, Smyth was finally extradited from the United States to the United Kingdom. He was subsequently released from prison in 1998 pursuant to an accelerated release law, the Northern Ireland (Sentences) Act 1998, that grew out of the Belfast Agreement. The next three cases involved defendants Kevin John Artt, Terence Damien Kirby, and Pol Brennan, who were arrested separately in the United States between 1992 and 1994. Their extradition cases were consolidated for consideration by U.S. courts. All had been convicted in the UK judicial system of felonies and sentenced to terms of imprisonment. Artt was convicted of murdering a prison official; Kirby was convicted of offenses of possession of explosives and a submachine gun, false imprisonment, assault, and felony murder arising out of two separate incidents; Brennan was convicted of possession of explosives. There was extensive litigation and testimony in the U.S. District Court regarding their claims of prejudice under Article 3 of the 1985 supplementary treaty and numerous appeals. This litigation was and is unprecedented, as U.S. courts were put in the difficult position of evaluating defendants’ claims of generalized, systemic bias within a foreign system of justice. In 2000, the United Kingdom withdrew its request for extradition, consistent with its announcement that it would not be seeking the extradition of persons who, if they had remained in prison in Northern Ireland, would have benefited from the 1998 early release law.

There are no pending extradition requests from the United Kingdom in connection with the conflict in Northern Ireland.


Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Richard Lugar (#1)

Committee on Foreign Relations

November 15, 2005

Extradition Treaty between the United States of America and

the United Kingdom of Great Britain and Northern Ireland

(Treaty No. 108-23)

Question:

Some opponents of the treaty have raised concerns regarding Article 22(1), which states that the treaty “shall apply to offenses committed before as well as after the date it enters into force.” In testimony before the Committee on November 15, 2005, you indicated that provisions in extradition treaties allowing for application to offenses committed before their entry into force are standard in U.S. extradition practice. What would be the effect of precluding such application of this treaty?

Answer:

The treaty’s provision on retroactivity is typical of the U.S. Government’s extradition practice. If the extradition treaty applied only to offenses committed after the treaty entered into force, there would be no treaty under which a fugitive who committed an offense before the new treaty enters into force could be extradited (except, as described in Article 23(3), where documents in support of an extradition request have already been submitted to the courts of the Requested State).

Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Richard Lugar (#2)

Committee on Foreign Relations

November 15, 2005

Extradition Treaty between the United States of America and

the United Kingdom of Great Britain and Northern Ireland

(Treaty No. 108-23)

Question:

Article 16(1) of the treaty provides: “To the extent permitted under its law, the Requested State may seize and surrender to the Requesting State all items in whatever form, and assets, including proceeds, that are connected with the offense in respect of which extradition is granted.” In testimony before the Committee on November 15, 2005, you stated that, contrary to an assertion by opponents of the treaty, this provision does not authorize the United Kingdom to seize assets in the United States.

(a) Please explain how this provision would work in practice.

(b) Are such provisions found in other U.S. extradition treaties?

Answer:

(a) Article 16 refers to the Requested State’s ability to seize items and assets that are connected with the offense for which the fugitive is sought and transfer them to the Requesting State. This provision will be useful to law enforcement officials in some cases in securing evidence related to the offense for which the fugitive is sought.

In practice, this provision would work in the following way: In its diplomatic note requesting provisional arrest or extradition, the Requesting State would ask the Requested State, pursuant to Article 16, to seize items connected with the offense and, if extradition is granted, to surrender those items to the Requesting State. In the United States, all such seizure and surrender actions would be carried out by U.S. authorities and would occur in accordance with U.S. law, including prohibitions against unreasonable searches and seizures found in the United States Constitution and in various state constitutions, and implemented in various federal and state statutes. Typically, law enforcement authorities would obtain a warrant from a judge to arrest the fugitive and, in executing the arrest warrant, will seize items and assets connected with the offense for which extradition is requested. If extradition is granted by the judge, and the Secretary of State authorizes the extradition, typically the U.S. authorities would turn over such items and assets, seized incident to arrest, pursuant to Article 16 of the treaty. If U.S. law enforcement authorities are unable to seize items incident to the arrest, they will have to obtain a seizure warrant, consistent with U.S. law, to seize those items. The seizure warrant would typically be obtained pursuant to a formal request for assistance under the Mutual Legal Assistance Treaty in place between the United States and the United Kingdom.

(b) There is nothing novel about this provision; this same concept is contained in virtually all U.S. extradition treaties, including the existing U.S.-UK treaty currently in force between the two countries.

Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Richard Lugar (#3)

Committee on Foreign Relations

November 15, 2005

Extradition Treaty between the United States of America and

the United Kingdom of Great Britain and Northern Ireland

(Treaty No. 108-23)

Question:

In testimony before the Committee on November 15, 2005, you stated that, in the case of extradition requests from the United Kingdom under this treaty, a U.S. court would determine whether there was enough evidence to satisfy the probable cause standard.

(a) Please elaborate on the role U.S. courts would play under this treaty in determining whether an individual may be extradited to the United Kingdom.

(b) What is the legal basis for the role of U.S. courts in this process?

Answer:

U.S. extradition proceedings are undertaken pursuant to 18 U.S.C. § 3184, which provides that a U.S. judge or magistrate judge determine whether there is sufficient evidence to make a determination of extraditability. The United States Constitution, together with federal case law, provides the standard used by the court to evaluate the sufficiency of the foreign evidence provided in support of an extradition request – probable cause to believe that the person who is before the court is the person charged or convicted in the foreign country and, in those cases where the person has not been convicted, probable cause to believe that person committed the offenses for which extradition is sought. The court also determines whether the offense for which extradition is sought is an extraditable offense under the treaty. In the case of the new treaty, the relevant question would be whether dual criminality exists, i.e. whether the conduct at issue is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty. In this context, the court would also consider any claims raised by the fugitive that the offense is a political offense. If the court issues an order of extraditability, the Secretary of State then determines whether to issue a surrender warrant.

Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Richard Lugar (#4)

Committee on Foreign Relations

November 15, 2005

Extradition Treaty between the United States of America and

the United Kingdom of Great Britain and Northern Ireland

(Treaty No. 108-23)

Question:

In testimony before the Committee on November 15, 2005, you stated that the last three extradition requests from the United Kingdom for offenses related to the Northern Ireland conflict were withdrawn by the United Kingdom in 2000 “consistent with a general statement of policy by the United Kingdom that they were no longer seeking extradition of such defendants.”

(a) Please provide a copy of this UK policy statement.

(b) Has the United Kingdom taken any other steps in regard to fugitives wanted in connection with offenses related to the Northern Ireland conflict that may be relevant to the potential for extradition requests for such fugitives under this treaty?

Answer:

(a) A copy of a statement dated September 29, 2000, by Peter Mandelson, the Secretary State for Northern Ireland at that time, is attached. This document can also be accessed on the Internet from the UK government’s official web site at http://www.nio.gov.uk.

(b) Yes. Recently, the UK government introduced into its parliament legislation that would resolve outstanding issues concerning individuals who committed offenses connected with terrorism and the affairs of Northern Ireland before the Belfast Agreement (also called the “Good Friday Agreement”) of April 10, 1998. To put this development in context, it is useful to understand the history of this issue.

Following the Belfast Agreement, the UK government introduced the Northern Ireland (Sentences) Act 1998. The legislation outlined an early release scheme whereby prisoners could apply for “release on licence” after they had served two years in prison. The scheme covers a certain set of terrorist-related offences carrying a sentence of five years or more committed before April 10, 1998. “Release on licence” means that the individual is not in jail but must comply with certain conditions. The conditions are that the person does not support certain specified organizations (essentially those which are still involved in terrorism); does not become involved in the commission, preparation, or instigation of acts of terrorism; and, in the case of a life prisoner, does not become a danger to the public.

In September 2000, the UK government announced (see the attached statement) that it would no longer pursue the extradition of individuals who, if they had remained within the Northern Ireland prison system, would now be eligible for early release. Kevin John Artt, Terence Damien Kirby, and Pol Brennan, (three individuals who were the subjects of UK extradition requests to the United States in the 1990s), all fell within that category, and the UK is no longer seeking their extradition. The Government of the United Kingdom has informed the United States that there has been no change in this position since 2000.

In 2003, the governments of the UK and the Republic of Ireland published a set of proposals in relation to terrorist suspects who are “on the run.” These proposals were aimed at resolving an anomaly which arose from the 1998 early release scheme. The anomaly was that individuals who had gone “on the run” before trial or escaped from prison before serving two years of their sentence would not be eligible for the early release scheme, whereas their counterparts who had stayed in prison would have been released on licence. Following a statement by the IRA on July 28, 2005, and the subsequent decommissioning of its weapons, the UK Government has now introduced legislation to implement those proposals.

On November 9, 2005, the UK government introduced the Northern Ireland (Offenses) Bill, which would create a new scheme with respect to offenses committed before the Good Friday Agreement of April 10, 1998. This proposed legislation is currently under consideration by the Parliament. The legislation would apply to individuals who have been charged or convicted of offenses connected with terrorism and the affairs of Northern Ireland, or who are currently “on the run” outside the United Kingdom for such offenses. The legislation sets out the two-stage process whereby individuals may apply for a certificate of eligibility and be brought before a special tribunal. It also would allow individuals to apply for participation in the scheme from outside the United Kingdom.

For individuals who have already been convicted and sentenced, including Artt, Kirby, and Brennan, the new legislation would entitle them to immediate “release on licence,” in the same way as under the early release scheme derived from the 1998 legislation. For individuals who have not yet been tried for such offenses, the legislation would enable them to return to Northern Ireland without fear of arrest, to have their cases heard in absentia by a special tribunal, and to be “released on licence” immediately if convicted.

Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Richard Lugar (#5)

Committee on Foreign Relations

November 15, 2005

Extradition Treaty between the United States of America and

the United Kingdom of Great Britain and Northern Ireland

(Treaty No. 108-23)

Question:

Article 2(4) of the treaty provides for extradition for offenses committed outside the territory of the requesting party if the laws of the requested party similarly criminalize such conduct when committed outside of its territory. Where this condition is not met, the requested party may, in its discretion, permit extradition.

(a) Do other U.S. extradition treaties contain similar provisions regarding extraterritorial offenses?

(b) What specific concerns led to the inclusion of this provision in this treaty?

(c) Are you aware of particular offenses for which there is extraterritorial application under the law of the United Kingdom, but not under U.S. law?

Answer:

(a) Yes. This type of provision is included in several of our modern extradition treaties. For example, our treaties with Argentina, Brazil, Canada, Hungary, South Africa, and South Korea, all contain similar provisions.

(b) We seek this sort of provision where there may be a question whether extradition will be permitted for particular extraterritorial offenses, in light of the fact that U.S. criminal law often has extraterritorial application of some kind. For the United Kingdom, the dual criminality inquiry in extradition cases extends to the question of whether it could also exercise extraterritorial jurisdiction under similar circumstances. U.S. law, however, does not require such a strict duality of jurisdiction in extradition cases involving extraterritorial offenses. This type of provision accommodates both legal frameworks while providing as much flexibility as possible with respect to extraterritorial offenses.

(c) As a general matter, the United Kingdom exercises less expansive extraterritorial jurisdiction than the United States. We are not aware of particular offenses for which there is extraterritorial application under the law of the United Kingdom, but not under U.S. law.

Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Richard Lugar (#6)

Committee on Foreign Relations

November 15, 2005

Extradition Treaty between the United States of America and

the United Kingdom of Great Britain and Northern Ireland

(Treaty No. 108-23)

Question:

Some opponents of the treaty contend that it would eliminate the protection traditionally afforded to extradited individuals by the rule of specialty, which prohibits their prosecution in the requesting state for crimes other than those for which they were extradited. What is the Administration’s response to this assertion?

Answer:

Both the current and new treaties with the United Kingdom contain the rule of specialty. The main difference is that, under the new treaty, in keeping with current international extradition practice, either party may request that the other party waive the rule of specialty. Indeed, provisions similar to the one contained in the new treaty with the United Kingdom are contained in virtually all of our modern extradition treaties, including Argentina, Belize, Austria, India, Peru, and Sri Lanka. In practice, rule of specialty waiver provisions are infrequently invoked. However, in certain circumstances, these treaty provisions are important, for example, where new information regarding criminal conduct surfaces that was not previously available to the Requesting State at the time the extradition was sought.

Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Richard Lugar (#7)

Committee on Foreign Relations

November 15, 2005

Extradition Treaty between the United States of America and

the United Kingdom of Great Britain and Northern Ireland

(Treaty No. 108-23)

Question:

The existing extradition treaty with the United Kingdom employs a hybrid approach to determining what offenses are extraditable, permitting extradition for listed offenses, as well as other offenses that meet certain specified criteria. The new treaty would institute a pure dual criminality approach, meaning that offenses are extraditable if they are criminalized in both countries and punishable for a period of one year or more.

(a) How do you anticipate that the new dual criminality approach would facilitate U.S. efforts to apprehend fugitives that have fled to the United Kingdom?

(b) Are there particular crimes for which the United States has not been able to obtain extradition under the existing hybrid approach?

Answer:

(a) The new dual criminality approach will make it easier to incorporate new criminal offenses into the extradition relationship, thereby making it harder for fugitives to escape justice on the basis of legal technicalities characteristic of the old “list” approach.

(b) Under the existing treaty’s hybrid approach, the United States had not been able to obtain extradition for individuals charged with offenses such as conspiracy to commit white collar crimes, non-drug money laundering, and certain insider trading and antitrust crimes.

Under new UK extradition legislation, the United States can now request extradition for these offenses. However, we understand from our UK counterparts that entry into force of the treaty and its new dual criminality approach will put an end to arguments from fugitives sought for extradition that try to exploit the inconsistency between the existing treaty and the UK’s domestic law position which, since 2003, has employed a pure dual criminality approach when handling extradition requests from the United States.

Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Richard Lugar (#9)

Committee on Foreign Relations

November 15, 2005

Protocol between the Government of the United States and the Government of the State of Israel Amending the Convention on Extradition

(Treaty No. 109-3)

Question:

The Protocol would amend the existing 1962 Convention to replace the existing list of extraditable offenses with a dual criminality approach, meaning that offenses would be extraditable if they are criminalized in both countries and punishable for a period of one year or more.

(a) How do you anticipate that the new dual criminality approach would facilitate U.S. efforts to apprehend fugitives that have fled to Israel?

(b) Are there particular crimes for which the United States has not been able to obtain extradition under the existing list approach?

Answer:

(a) The “dual criminality” approach facilitates U.S. efforts to obtain the extradition of fugitives from Israel by expanding the scope of extraditable offenses well beyond those specifically recognized in the existing convention’s list. It allows the automatic extension of the convention’s provisions to new forms of criminality that are made punishable as felonies in both countries in the future, without any need to update the convention as new forms of criminality emerge.

(b) Under the new Protocol, the United States would now be able to obtain extradition for conduct not currently included on the list of extradition offenses, such as sexual abuse of boys as well as girls, money laundering (other than laundering of drug proceeds, which can be reached by virtue of application of the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances), and computer intrusions and hacking.

Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Richard Lugar (#10)

Committee on Foreign Relations

November 15, 2005

Protocol between the Government of the United States and the Government of the State of Israel Amending the Convention on Extradition

(Treaty No. 109-3)

Question:

Why does Article 5 of the Protocol delete Article IX of the 1962 Convention? What was the purpose of Article IX and how has it been used?

Answer:

Article IX was originally intended to reflect the fact that domestic procedural law governed the extradition process, in the absence of specific treaty provisions. After review between the governments, we determined that the provision was unnecessary and could be misunderstood as permitting unilateral modification of the treaty’s obligations through enactment of inconsistent domestic law.

Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Richard Lugar (#11)

Committee on Foreign Relations

November 15, 2005

Treaty between the United States of America and Germany

on Mutual Legal Assistance in Criminal Matters

(Treaty No. 108-27)

Question:

Article 15(3) of the treaty would allow each party to use evidence or information obtained under the treaty, without the prior consent of the other, “for averting substantial danger to public security.” This appears to be a new provision in U.S. mutual legal assistance treaty practice.

(a) Why was this provision included in this treaty and under what conditions do you envision that it might be invoked?

(b) Will the Executive Branch seek to include similar provisions in future mutual legal assistance treaties?

Answer:

(a) Article 15(3) of the MLAT with Germany permits a Requesting State, without the prior consent of the Requested State, to use evidence or information for certain specified purposes, e.g. “averting substantial danger to public security,” other than for the particular criminal investigation or proceeding underlying the request. Germany sought this broadening of the strict MLAT use limitation article found in approximately half of our MLATs in order to reflect corresponding provisions of German privacy law which provide its law enforcement agencies additional flexibility to use information received from a foreign government. The United States anticipates that Article 15(3) could be relied upon, for example, where information supplied by Germany about an individual who is the subject of a U.S. criminal prosecution also is relevant to a separate U.S. criminal investigation into threatened terrorist activity. This provision thus is helpful to the United States by creating a presumption that information received pursuant to an MLAT request can be used for prevention as well as prosecution purposes.

(b) Similar language is included in Article 9(1)(b) of the 2003 Agreement on Mutual Legal Assistance between the United States and the European Union, and in the implementing mutual legal assistance instruments currently being completed with each EU member state. The U.S.-EU Agreement, together with all implementing instruments, will be submitted to the Senate in 2006 for its advice and consent to ratification. Once these agreements enter into force, this additional flexibility in using information supplied pursuant to an MLAT request will be available to the United States in its judicial assistance relationships across the EU. Whether such a provision will be included in future U.S. MLATs with non-European governments will depend in part upon whether they have adopted privacy laws of the type found in Europe.

Question for the Record submitted to

Samuel Witten, U.S. Department of State,

and Mary Ellen Warlow, U.S. Department of Justice by

Senator Richard Lugar (#12)

Committee on Foreign Relations

November 15, 2005

Treaty between the United States of America and Japan

on Mutual Legal Assistance in Criminal Matters

(Treaty No. 108-12)

Question:

U.S. mutual legal assistance treaties traditionally provide for each party to designate a central authority, generally the Attorney General in the case of the United States, which will be responsible for making and receiving requests under the agreement. In this treaty, Japan has designated two central authorities – the Minister of Justice and the National Public Safety Commission.

(a) Please explain how this dual central authority system will work in practice.

(b) Will it affect the ability of the United States to obtain assistance under the treaty?

Answer:

(a) Japan has designated the Minister of Justice as the central authority for all requests made by the United States. In this regard, the Japan MLAT will work the same way as other U.S. MLATs. With respect to requests made by Japan, the Minister of Justice will serve as the central authority for requests submitted by Japanese public prosecutors or the judicial police, or if a request requires examination of a witness in a U.S. court. The National Public Safety Commission will serve as the central authority for requests submitted by the Japanese National Police or imperial guard officers. The two Japanese agencies will establish a mechanism to avoid unnecessary duplication and facilitate efficient provision of assistance. If necessary, the U.S. Department of Justice may consult with the Japanese Ministry of Justice regarding the execution of any request, regardless of which agency initiated the request on the Japanese side.

(b) This arrangement is not expected to affect the ability of the United States to obtain assistance under the treaty, since the Minister of Justice will be the central authority for all requests made by the United States. Thus, whenever the United States requests assistance under the treaty, the Japan MLAT will work in the same way as other MLATs.



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