US International Law Enforcement Cooperation:

 A Case Study in Thailand

                                                                                                                Jonathan W. Leeds*
 

Introduction

The United States government  places a high priority on international law enforcement, and  plays a leading role in the International Police Organization (Interpol).  Each year the United States enacts new laws, and amends old laws in an effort to expand its international law enforcement powers, particularly in the areas of drug trafficking, high tech smuggling, and terrorist activity. (1)  This expanding US interest in international law enforcement  has resulted in  a great number of US agencies, resources, and projects being carried out in foreign countries.  The Drug Enforcement Agency (DEA) has been at the forefront of this activity, with its agents and representatives performing a plethora of activities in foreign nations.(2)

The DEA maintains the largest overseas law enforcement presence of any US civilian agency.  Their agents represent the United States interest  in international drug control both within the United States embassies and in diplomatic interactions with host state officials.   They maintain communication with local law  enforcement officials, provide training for local police, undertake joint drug enforcement operations with local police, conduct unilateral actions such as surveillance and the recruitment of informants, provide intelligence to local officials, and lobby for changes in their host countries laws.(3)

Thailand has been an area of particular interest to the United States government, and the DEA, primarily because of the belief that it serves as the primary conduit for heroin from the Golden Triangle transported to The United States.(4)   Working in conjunction with Thai officials,  the DEA, has been successful at infiltrating heroin trafficking organizations within Thailand at the highest levels,  ensnaring prominent Thai government and military officials, and extraditing them to stand trial in the United States.

Thailand, with its unique legal system and cultural heritage, presents special problems and issues when confronted by the interdiction of the United States government agencies such as the DEA.  These issues include the principles of Sovereignty, Conflict of Laws, and the practical implementation of binational law enforcement cooperation and extradition agreements.  This article analyzes the legal processes used by the United States, and the problems it encounters, in  both expanding and enforcing its law enforcement jurisdiction internationally, and particularly within Thailand.  It also examines the effects of such extraterritorial imposition of law enforcement power by US agencies upon foreign legal systems, and in particular, the Thai legal system.
 

Thailand's Legal Heritage

The origins of Thai law have been traced to three general sources:  Thai Customary Law, Buddhist Law, and Chinese/Maritime Law.(5)     During the Lanna Kingdom period of Thailand's history, which began in the year 1296 AD,  the influence of Buddhism on the secular law was particularly strong.  Royal Decrees and judgments frequently made direct comparisons between state law and religious texts.    Similarly, the Buddhist influence also manifested itself through the use of monks as the official scribes and chief scholars for the Kingdom.  Aspects of the Vinaya,  a religious text which originally  was a code of conduct for the guidance of the Sangha (monk) community, was also the source of much secular law.(6)

The process of reformation and westernization of Thailand's legal system occurred primarily during the period between 1880 and 1930.(7)   King Rama V, also known as King Chulalongkorn, initiated the process of reformation by enlisting the aid of foreign legal experts from such countries as England, Belgium and Japan, to work in conjunction with the Thai Ministry of Justice.  The reformation committee, thus formed, decided to rely primarily on the Code System of Law (also known as the Civil Law System), because of its simplicity, clarity, and ease of organization.  The committee decided to retain certain aspects of the Common Law System as well.(8)   Current Thai law is thus a combination of the Civil Law System, Common Law (9) , and Thai Traditional Law.  This eclectic legal heritage  has affected the way the modern Thai legal system approaches extraterritorial application of foreign laws within their state, and against their nationals.

Modern Thailand is a parliamentary democracy that has recently adopted a new Constitution (10) that provides for a wide range of civil rights, including the right to privacy and the right to be free from unreasonable searches and seizures.  Since Thailand relies primarily on the Civil Law System, the decisions of Thailand's Courts do not have precedential weight, except for the decisions of their Supreme Court, which are considered secondary authority.
 

US Law Enforcement Activity In Thailand

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.   The defendants included Thai citizens, some of whom occupied high level positions within the Thai government.(14)  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.(23) After 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)
 

Mutual Legal Assistance Agreement

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, 1993 (36) , 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. (3&)  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, extradition (38) capabilities "rely primarily upon bilateral treaties and make little use of international conventions." (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 nationals (42),  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.

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. (50)
 

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. (53)  Nor 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." (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 contract.(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 privacy (61)  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.
 

Footnotes:

* Consultant, Mongkolnavin Law Office (Thailand), Attorney at Law, State of Hawaii, U.S.A., Federal District for the State of Hawaii, B.A. University of Texas 1983, J.D. University of Houston 1986.
  Ethan Nadelmann, The Role of the United States in the International Enforcement of Criminal Law, 31 Harvard Law Journal 37, 39 (1990)
  Id. at 39.
  Id. at 48.
  US Department of State Bureau of International Narcotics Matters, Narcotics Control Strategy-Thailand, International Narcotics Control Strategy Report  (last modified November 13, 1995)
<http://www.ait.ac.th/Asia/narc/th-narc.html>
  Andrew Huxley Foreword to  THAI LAW:  BUDDHIST LAW, ESSAYS ON THE LEGAL HISTORY THAILAND LAOS AND BURMA,  (Andrew Huxley, ed., 1996) at page 16
   Aroonrut Wichienkeeo, Lanna Customary Law in THAI LAW:  BUDDHIST LAW, ESSAYS ON THE LEGAL HISTORY THAILAND LAOS AND BURMA,  (Andrew Huxley, ed., White Orchid Press 1996) at  31-36.
  Andrew Huxley,  supra note 1 at  6.
  THANIN KAIWICHAIN, LAW REFORMATION IN THE PERIOD OF KING RAMA V  6-21 (Printing Office of the Prime Minister 2511).
  The "Common law" system derives its heritage primarily from England, and relies on judicial decisions to comprise the body of its law, rather than strictly legislative enactments.  see BLACK'S LAW DICTIONARY, 6TH ED., 276
  Ratatamanoon Haang Rachanajak Thai (Constitution of  Thailand).
  US Department of State Bureau of International Narcotic Matters, supra note at  1.
  Id at  4.
  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).
  Drug Enforcement Administration Briefing Book, US Department of Justice, Operation Tiger Trap, <http://www.usdoj.gov/dea/pubs/briefing/4_3.htm).
  Id.
  Associate of Khun Sa to be extradited, Bangkok Post, April 10, 1997. <http://www.samart.co.th.bkkpost/news/BParchive/BP960410/1004_news13.html>
  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).
  Associate of Khun Sa to be Extradited, supra Note 15.
  Nusara Thaitawat and Veera Prateepchaikul, Suspect in record United States drugs seizure jumps bail, Bangkok Post, March 12, 1997 <http://www.samart.co.th.bkkpost/news/BParchive/BP970312/1203_news02.html>.
  Id.
 Id.
  A decision regretted, Bangkok Post, March 20, 1997 <http://samart.co.th/bkkpost/news/BParchive/BP970320/2003_news26.html>.
  Id.
  Caroline Lurie, Drug Lord Fears For Life and Calls for extradition,  Thailand Times, May 5, 1997 <http:www-uvi.eunet.fr/asia/euro-burma/dru