Articles Legal News Thailand Lawyer Links Home

United States International Law Enforcement Cooperation

Gathering evidence in foreign jurisdictions has proved to provide a number of obstacles primarily due to differences in law enforcement systems.32 In furtherance of their goals, the United States uses a number of techniques to facilitate the collection and admissibility of evidence from abroad. One of the primary techniques used is the Mutual Legal Assistance Agreement (MLAT).

Prior to the use of MLAT’s, the United States had to rely on the process of Letters Rogatory for obtaining of evidence from abroad. However this process was considered time consuming and cumbersome.33 When the United States first began considering the use of MLAT’s, they looked to Western Europe, where most evidentiary requests are governed by the European Convention on Mutual Assistance ion Criminal Matters.34 The first US MLAT was negotiated with Switzerland in 1973, prompted by concerns that organized criminals were exploiting Swiss secrecy laws to hide illegally obtained assets.35

The Thai-US MLAT, signed on March 19, 1986, and entering into force on June 10, 199336, attempts to provide a flexible framework to allow joint law enforcement, and evidence and witness transferal between the two nations. Pursuant to the treaty, each contracting State has an obligation to provide assistance in: a) taking statements and testimony, b) providing documents, records, or evidence, c) serving documents, d) executing requests for search and seizures, e) transferring persons in custody for testimonial purposes, f) locating persons, initiating proceedings upon request, and g) assisting in forfeiture proceedings.37 Thus the treaty provides the framework for one government to effectively make use of the other’s police forces in carrying out its objectives. In contradistinction to the Thai-US Extradition treaty, the MLAT has no requirement of dual criminality, i.e., assistance, pursuant to the treaty, shall be provided whether or not the acts which are the subject of the investigation are prohibited by the law of the requested State.

The Thai-US. Extradition Treaty

In the United States, extradition38 capabilities rely primarily upon bilateral treaties and make little use of international treaties.39 Some authorities assert that the United States is the world leader in the negotiation of bilateral law enforcement treaties. There are many reasons for this, the most obvious of which is that the United States, unlike many other common law and civil law countries, lacks domestic legislation authorizing extradition in the absence of a treaty.40

One of the greatest frustrations to the United States efforts to prosecute violators of its laws living abroad has been the refusal of most governments to extradite their own citizens. There are two views on the question of extradition of one’s own nationals, one representing the approach of common law nations, and the other reflecting the attitude of civil law states. This situation has sometimes resulted in the US taking unilateral action to abduct fugitives from a foreign country.41 The common law nations, emphasizing the strict territoriality of the crime freely extradite their nationals42, while the civil law states, emphasizing a citizen’s right to be protected in his homeland, and the exigencies of trial before a foreign court steadfastly deny extradition.43

Thailand, in general accord with its civil law heritage, is reluctant to extradite its nationals. The applicable legislation, in the absence of a treaty, reserves the right of the Thai government to refuse extradition, based on its duty to protect its citizens, concerns regarding a fair hearing, abroad, humanitarian concerns, and issues of sovereignty.44

The United States has devoted increasing energy to the re-negotiation of outdated extradition treaties.45 Thailand’s original extradition treaty with the United States dates back to December 30,1922. The current extradition treaty between the United States and Thailand was signed on December 14,1983, and entered into force on May 17,1991.46

The US-Thai treaty allows for non-extradition of a requested state’s own nationals in certain exceptional cases, such as political and military offenses,47 and also provides that a state may refuse to extradite a person for an offense which was committed in whole or in part within its territory. The Treaty does however include a vicarious prosecution clause that requires the State that refuses extradition to proceed against that person according to its own laws.48

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.

The Law of Joint Venture

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


Potential Conflicts Between United States and Thai Criminal Law Procedure

Many investigative techniques employed by the DEA in the United States are considered illegal elsewhere. 55United 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


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.


32) Nadelmann, supra note 1, at 57
33) See Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J. 515, 554 (1953). 
34) European Convention on Mutual assistance in Criminal Matters, Apr. 20, 1959, Europ. T.S. No. 30; see also Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, Mar 17, 1978, Europ. T.S. No. 99.  
35) Treaty on Mutual Assistance in Criminal Matters, May 25, 1973, United States-Switzerland 27 U.S.T. 2019, T.I.A.S. No . 8302 For an analysis of the treaty negotiation process, see Nadelmann, Negotiations in Criminal Law Assistance Treaties, 33 AM. J. COMP. L. 467, 470-81 (1985) ; see also Ellis & Pisani, The Unite States Treaties on Mutual Assistance in Criminal Matters, in 2 INTERNATIONAL CRIMINAL LAW; PROCEDURE 151 (M. Bassiouni ed. 1986).  
36) Extradition Treaty, US-Thai supra note 29.  
37) Treaty between the Government of the Kingdom of Thailand and the Government of the United States of America on Mutual Assistance in Criminal Matters, supra, Note 28, arts. 1, 2  
38) The classic definition of extradition is found in Terlinden v. Ames, 184 US 270, 289 (1902): Extradition may be sufficiently defined to be the surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which being competent to try and punish him, demands the surrender. See also Ortega v. Kansas City, Kan., 875 F.2d 1497, 199-1500 (10th Cir. 1989)  
39) Nadlemann, supra Note 1 at 65  
40) Id. at 65  
41) Pursuant to the Ker-Frisbie rule, under certain circumstances, the United states may abduct fugitives from a foreign country without first obtaining the foreign state’s consent. See Ker v. Illinois, 119 US 436, 7 S.Ct 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 US 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952) However, if the United States has an extradition treaty with the foreign country, it is necessary either to obtain the foreign state’s cooperation or consent prior to apprehension, or for the foreign state not to protest the apprehension. See United States v. Verdugo-Urquidez, 939 F.2d 1341 (9th Cir. 1991).
43) Id. at 118 
44) Prarachabanyat song poo rai kam dan (The Statute Concerning Extradition in the Thai Kingdom (B.E. 2472) arts 2.3-2.5, states that: “If there is no treaty or bilateral convention or contract, Thailand is not bound to extradite its citizens to a requesting country based on the following considerations:
           2.2. A nation has a duty to protect its citizens, and look after their well-being, and extradition may violate that duty;
           2.3. There is concern that the extradited Thai national may not receive a fair hearing, particularly if the requesting country is an enemy of Thailand, or there is a political dispute between Thailand and that country.
           2.4. Extradition of one’s own nationals violates the principle that citizens have a right to live in their own country, and may indirectly amount to banishment from one’s own homeland
           2.5 The extradition of one’s own nationals is an affront too the sovereignty of the nation. “
45) Evans, The New Extradition Treaties of the United States, 59 AM. J. INT’L. L. 351, 352 (1965)
46) Extradition Treaty, US -Thail. supra Note 29.  
47) Extradition Treaty US-Thai supra note 29 at art. 3.  
48) Id. at art. 4  
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.