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.(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.
