United States International Law Enforcement Cooperation
The United
States law enforcement interest in Thailand is justified primarily on the
belief that Thailand serves as the primary conduit for heroin from the Golden
Triangle to be transported to the United States.11
United States government law enforcement activities within Thailand include
the DEA cooperating closely with the Narcotics Suppression Bureau, units of
the Border Patrol Police, and Provincial Police departments, providing intelligence,
operational support and expertise in many major narcotic cases. The US government
has provided commodity support to law enforcement officials, and the US Department
of Defense through the US Customs provides training for the Royal Thai Customs,
and supports a regional center in Phuket to monitor the movement of small
vessels suspected of smuggling illegal narcotics.12
US Drug
Enforcement Agents have also operated independently within Thailand, conducting
surveillance, and using undercover informants and agents to collect evidence
against drug smugglers within Thailand, who are then, typically, arrested
after their arrival in the United States. 13
These cases, however, usually involving non-Thai nationals, present considerably
less procedural complications, and general controversy, than those cases which
involve the arrest of Thai Nationals on Thai soil, and their extradition to
the United States.
Operation Tiger Trap
The DEA considers Operation
Tiger Trap to be their most ambitious venture to date to disrupt heroin trafficking
operations in Thailand.14 The defendants included
Thai citizens, some of whom occupied high level positions within the Thai
government. The 13 principle defendants were considered by the DEA to be high
level operators in the heroin trafficking industry in Thailand, and had been
indicted in the US Federal Court for the Eastern District of New York. 15
These cases, because they involved a significant infringement of Thai sovereignty,
i.e., the arrest of Thai nationals on Thai soil, and their extradition outside
their homeland stand trial in the United States created considerable controversy
among Thai government officials, and the Thai public.
Chao Fu-Sheng and Thanong
Siripreechapong were among several defendants, eight of whom were Thai nationals,
arrested throughout Thailand in November of 1994 at the request of the DEA.
16
On January 10, 1995, US
authorities requested the extradition of Chao Fu-Sheng. Although Chao agreed
to the US request for extradition, and formally requested his own extradition,
on January 17, 1995 the Thai Cabinet passed a resolution that allowed the
Thai courts to consider the US request for Chao’s extradition.
The extradition of Chao
Fu-Sheng was opposed by Minister of Parliament Piyanat Watcharaporn, who argued
that the matter should be handled internally for the sake of the dignity of
the country. However, pursuant to Article 15 of the 1983 Thai-US extradition
treaty, a request such as Chao’s for voluntary extradition precluded the need
for legal procedure. 17 Furthermore, the Foreign
Minister, and the Attorney General, arguing in favor of Chao’s extradition,
stated that the extradition of Thanong Siripreechapong, who was himself a
former Chart Thai Member of Parliament, had already set precedent in this
matter.18 Ultimately, on April 9, 1996, the
Thai Cabinet approved the extradition of Chao Fu-Sheng to stand trial in the
US.
More recently, Li Yun-Chung,
accused of involvement in the biggest heroin shipment in United States history,
involving some 486 kilograms,19 was arrested
in Thailand on July 23, 1996, and then detained in a Bangkok special prison
until being released on bail on February 7, 1997.20
Li, who was fighting his extradition to the United States, fled after his
release from custody, and was believed to have entered Burma. This situation
resulted in the United States Embassy lodging objections to Li’s release with
Thai authorities. 21
The decision by the judge,
former Deputy Chief Justice, Somchai Udomwang, to release Li on bail led to
protests from the US government, and to allegations of corruption within the
Thai Judiciary.22 Somchai Udomwang later faced
an investigation and disciplinary action by the Thailand Ministry of Justice
based on his decision to grant Li bail..23After
his recapture, Li Yun-Chung alleged that he had paid bribes in order to secure
bail, and now feared for his life.24 Then,
in a turnabout from his earlier position, Li voluntarily requested his immediate
extradition to the United States.25
Sovereignty and the Effects
Doctrine
The basic problem encountered
in international law enforcement efforts is the principle of national Sovereignty,
which operates as a barrier to a foreign nation asserting jurisdiction outside
of its borders. The principle of Sovereignty can be summarized as the government’s
exclusive power within its own borders, and virtually nowhere else; and it
is this doctrine that presents the greatest obstacle to the international
enforcement of criminal law. According to the principle of sovereignty , the
effective jurisdiction of a state law enforcement powers extends no farther
than its own borders.. 26
The primary basis for
criminal jurisdiction involving bilateral treaties between states is the territorial
principle which allows for jurisdiction over persons or things within a state’s
territory or conduct outside the territory which has substantial effects on
it (The latter variant is known as “objective territorial jurisdiction”, or
the “effects” doctrine). Although a state may claim extraterritorial effect
for its criminal laws, it does not have the power to enforce those laws outside
its borders .27 Therefore the principle of
Sovereignty requires that transnational law enforcement efforts be carried
out through the aid of bilateral agreements. 28
There are two principle
bilateral treaties between the United States and Thailand controlling the
role of law enforcement and the cooperation of law enforcement between the
two countries. The Treaty on Mutual Assistance on Criminal Matters was signed
in Bangkok on March 19, 1986, and went into force on June 10, 1993. 29
The second treaty is the extradition treaty.30
In addition to the above, Thailand and the United states have also entered
into a Memorandum of Understanding on Cooperation in the Narcotics Field.31
Part
3
Footnote
11) US
Department of State Bureau of International Narcotic Matters, supra note at
1.
12) Id. at 4.
13) See e.g. United States v. Ligenfelter, 997 F.2d
632 (9th Cir. 1993); United States v. Kimball, 975 F.2d 563 (9th Cir. 1992);
United States v. Monroe, 943 F.2d 563 (9th Cir. 1991); United States v. Ogbuehi
18 F.3d 897 (9th Cir. 1994).
14) Drug Enforcement Administration Briefing Book, US Department
of Justice, Operation Tiger Trap, < briefing pubs
dea www.usdoj.gov>
15) Id.
16) Associate of Khun Sa to be extradited, Bangkok
Post, April 10, 1997.
17) Article 15 allows for a simplified procedure, and states
that: “ If the person irrevocably agrees in writing to extradition after personally
being advised by the competent authority of his right to formal extradition
proceedings and the protection afforded by them, the Requested State may grant
extradition without formal extradition proceedings.” Extradition Treaty, December
14, 1983, US-Thail., Hein’s KAV 1940, Senate Treaty Doc. 98-16, Executive
Congress No. 98-29 (entered into force May 17, 1991).
18) Associate of Khun Sa to be Extradited, supra
Note 16.
19) Nusara Thaitawat and Veera Prateepchaikul, Suspect
in record United States drugs seizure jumps bail, Bangkok Post, March
12, 1997 .
20) Id.
21) Id.
22) A decision regretted, Bangkok Post, March 20, 1997
.
23) Id.
24) Caroline Lurie, Drug Lord Fears For Life and Calls
for extradition, Thailand Times, May 5, 1997 .
25) Id.
26) Research in International law under Auspices of the Faculty
of the Harvard Law School, Jurisdiction with Respect to Crime, 29 AM. J. INT’L
L 435 (Supp. 1935); see also Zagaris & Rosenthal, United States Jurisdictional
Considerations in International Criminal Law, 15 CAL.W. INT’L L.J. 303, 305-310
(1985).
27) Nadelmann, supra note 1, at 41.
28) Id. at 41
29) Treaty on Mutual Assistance in Criminal Matters, March
19, 1986, US-Thail., Hein’s No. KAV 1941, (entered into force on June 10,
1993).
30) Extradition Treaty, December 14, 1983, US-Thail., Hein’s
KAV 1940, (entered into force May 17, 1991).
31) Memorandum of Understanding on Cooperation in the Narcotics
Field, US-Thail., September 28, 1971, T.I.A.S. 7185 (entered into force September
28, 1971).
Articles