Jonathan W. Leeds^*
Siam Global Associates Co., Ltd., Thailand Attorneys

Although many of the US’s older extradition treaties included lists of offenses for which extradition was available, the more recent treaties usually provide extradition based solely upon the existence of dual criminality or combine such a provision with a far more extensive list of offenses. The Thai-US Treaty, rather than enumerating specific offenses, states in general terms that an offense will be extraditable if it is punishable under the laws of both Contracting parties by imprisonment or other form of detention for a period of more than one year or by any greater punishment.⁴⁹ This provision thus broadens the array of extraditable offenses, and also embodies the dual criminality requirement, i.e., the offense must be a crime under the law of both States.⁵⁰

The new generation of US bilateral extradition treaties are more likely to include provisions that authorize extradition even when the violation of law was committed outside the territory of the requesting state. The US-Thai treaty follows this trend, and includes this expanded jurisdictional provision, stating that the Treaty will apply to persons committing offenses outside the territory of the requesting state.

Conflicts of law enforcement procedures often arise in joint drug enforcement operations. The DEA’s operations are limited by both the laws of the host state, and the laws of the United States as well. United States law currently affords American citizens overseas most of the constitutional safeguards to which they are entitled within the United States.⁵¹ The protections of the Fourth Amendment and the exclusionary rule apply only to evidence gathered overseas by United States agents acting unilaterally or in a “joint venture” with foreign officials.⁵² However, these same protections do not apply to evidence collected by foreign police acting on their own. ⁵³Nor do these United States Constitutional protections apply to nonresident aliens abroad.⁵⁴

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Many investigative techniques employed by the DEA in the United States are considered illegal elsewhere.⁵⁵ United States Drug Enforcement Agents typically recruit informants by arresting those involved in the illicit drug business, and then make offers to either reduce to drop charges in return for the accused cooperation. These tactics are often simply impractical to duplicate in countries without the resources of the US for an extensive Witness Protection Program. US law enforcement agencies are able to protect their informants and cooperating witnesses and their families by relocating them to different areas of the country and giving them new identities.

One of the key areas of conflict with Thai law is the liberal use of plea bargaining performed by both police officials and government prosecutors in the United States. It is standard practice for police and prosecutors in the United States to offer non-prosecution, a reduction in charges, and immunity from prosecution in exchange for cooperation with the police, or for testimony against other defendants. Frequently, persons arrested by the police agencies become cooperating witnesses on a professional basis, getting paid for their cooperation, in addition to being free from prosecution. This differs from the Thai practice.

Thailand’s Rules of Criminal Procedure prohibit the introduction of evidence that has been obtained pursuant to threat, deception, or pursuant to a.⁵⁶ This statute has the effect of barring any plea agreements with defendants. Even without a plea agreement, Thai Courts are reluctant to accept the testimony of one defendant against another.⁵⁷ In cases where a witness was involved in the alleged crime, but was not charged, testimony is allowed provided there are special circumstances, including other corroborative evidence; and even in these cases, the witness’s testimony is deemed to have little evidentiary weight.⁵⁸ However the testimony of a cooperating witness, i.e., a witness who has participated in a criminal venture with the knowledge and consent of the police, in order to aid an investigation, has been deemed admissible.⁵⁹

The Thai Court also presents a different view as to the use of audio tapes as evidence against an accused from that of United States Courts. In general, audio tapes are considered a second-class form of evidence, and must be corroborated by other evidence before they are considered credible by the Trial Court.⁶⁰ Additionally, the installation of listening devices in people’s homes or on their telephones may be restricted by the Thai Constitution, which protects the people’s right to privacy⁶¹ and the right to freedom of communication.⁶² In most civil law countries, the use of undercover operations, as well as various forms of electronic surveillance (other than phone taps, which are legal in most European states) are illegal.⁶³

Conclusion

The laws in many countries, including Thailand, are changing in response to DEA lobbying activities.⁶⁴ In the 1997 International Narcotics Control Strategy Report, the United States praised Thailand for carrying out drug control policies and programs, extraditing Thai citizens, assisting in convicting a high ranking army officer in US courts, and for “very good cooperation at all levels.”⁶⁵

Although most governments are currently in the process of enacting as many bases for criminal jurisdiction as possible, the United States seems to be the most effective in demanding the foreign recognition of its claims to extraterritorial jurisdiction.⁶⁶ The United States has the greatest global apparatus of international law enforcement, diplomatic, and intelligence resources. Most foreign governments are susceptible to United States pressures which can include domestic law enforcement actions, and economic sanctions.

The United States law enforcement activity in Thailand has been extensive and effective. Although the extradition and mutual legal assistance treaties between the United States and Thailand are bilateral, and afford each country equal rights, the law enforcement activity has been primarily unilateral, with the United States spending a disproportionate amount of resources in law enforcement activities in Thailand. The extradition treaty reflects the common law approach, i.e., requiring extradition of one’s own nationals based on the territorial principle, or the “effects” doctrine. Although the treaty allows Thailand to refuse extradition of its own nationals so long as it vicariously prosecutes them in the Thai courts, this provision has not been carried out in practice. With United States law enforcement agents maintaining a sizable presence in Thailand, working in conjunction with Thai authorities, and providing training and support, Thailand has been compelled to adapt its law enforcement practices to those of the United States. Nevertheless, areas of conflict in practice and procedure still exist. The assistance that Thailand receives from the US may entail some degree of infringement of Thailand’s sovereignty and the compromise of certain aspects of its legal heritage.

Footnote

49) Id. at art. 2  
50) Id. at art. I  
51) See Reid v. Covert, 354 US 1, 16, 77 S.Ct. 1222, 1230 (1957).  
52) See Powell v. Zuckert, 366 F.2d 634 (D.C. Cir. 1996) In interpreting to what degree US police officials may participate with foreign police officials without engaging in a joint venture, United States Courts have accepted situations wherein foreign officials with no prior knowledge of any investigation or misconduct, and acting solely upon request by the United States for assistance, initiated a foreign search and seizure. see United States v. Molina-Chacon, 690 F.Supp 1235, (ED Pa. 1986), later proceeding 817 F.2d 201(CA2 NY). Other examples of activity by United States agents which did not rise to the level of a “joint venture” with foreign officials, and thus not been subject to United States Constitutional Restraints, have included communication of information by American Drug Enforcement agents, and the DEA’s physical presence at the site of the search while videotaping the search by foreign officials. See United States v. Behety, 32 F3d 503, 8 FLW Fed C 672 (11th Cir. 1994).  
53) See, e.g. Rosado v. Civiletti, 621 F.2d. 1179, 1189 (2d Cir.), cert denied, 449 US 856 (1980); Stonehill v. United States, 405 F.2d 738, 743 (9th Cir. 1968), cert denied, 395 US 960 (1969).  
54) See United States v. Verdugo-Urquidez, 494 US 259 (1990).  
55) Nadelmann, supra Note 1 at 49.  
56) Pramooan Gotmai Wittipicharanakwam Aya, B.E. 2477 (Code of Criminal Procedure of 2477), art. 226, (Thail.)  
57) See Ayagan jot Hong Raenlit (Attorney General v. Hong Raenlit), San Dika (Supreme Court) No. 2099/2497 (Thail). In this case for receiving stolen goods, the testimony of one defendant against another was deemed inadmissible, and since there was no other sufficient evidence, the conviction was reversed. 
58) See Ayagan jot Dam Padetdaskorn la puak (Attorney General v. Dam Padetdaskorn, et. al)., San Dika (Supreme Court) No. 3611 /2528 (Thail). In this prosecution for attempted murder, the testimony of two witnesses who claimed they had previously been solicited by the defendant to commit a murder, but had been unable to successfully accomplish the murder, was deemed admissible against the defendant regarding a separate attempt murder. However, the Court stated that the testimony had little evidentiary weight, and was admissible only because there was other corroborative evidence.  
59) See Ayagan jot Sawang Jerakul la puak (Attorney General v. Sawang Jerakul, et. al.), San Dika (Supreme Court) No. 715/2520 (Thail). This case involved trafficking in prohibited weapons. The Defendant was charged with transportation of a prohibited weapon in his van, with the intention of selling it in the North. The testimony of a witness cooperating with the police, who posed as an employee of the defendant was allowed in Court. 
60) Ayagan jot Chaiprada Nopakorn (Attorney General vs. Chaiprada Nopakorn) Thai Supreme Court Decision 1123/2509. In this case audio tapes were deemed credible evidence by the Court against the accused because there were six separate tape recordings, amounting to over one hour of audio tape. The Court found that under such circumstances it would be unlikely that someone would be able imitate the Defendant’s voice for such a long period of time.
61) Constitution of Thailand, supra, note 10 at chap 3, sec. 34 (2540).  
62) Id. at chap. 3, sec. 37.  
63) Nadelmann supra Note 1at 49.  
64) "For instance even as many law enforcement agencies introduce “buy and bust” undercover operations into their drug enforcement practice, most continue to resist the “sell and bust” operations now employed by the DEA, as well as the “deep undercover operations undertaken by the FBI." Nadelmann, supra Note 1 at 50-51.  
65) Thailand Praised in US report, Bangkok Post, March 2, 1997 .  
66) Nadelmann, supra Note 1 at 42.