What does the refusal of Thailand to extradite arms dealer Viktor Bout have to do with counterterrorism policies? Quite a lot, it turns out. Thailand is an ally of the United States, going so far as to host a secret CIA detention facility. U.S. special operations troops regularly train with their Thai counterparts. Law enforcement cooperation between the two countries is layered and strong. A Thai court refused to extradite Bout for two reasons. One is that under Thai law he belongs to a political group, not a terrorist group. Fine. The second reason has strong implications for American counterterrorism policies: "A Thai court cannot judge a case regarding aliens killing aliens outside of Thailand," the court ruled.
This ruling undermines the basis for much of the cooperation to date. And it presents policymakers with a quandary here: an ally has told us that it does not agree with our definition of what constitutites a terrorist. Indeed, it has told us that its laws have no bearing on whether Americans are killed, or not. So if you're the president and you determine that Bout is a threat -- and, indeed, there is plenty of overtly-collected, non-coercively obtained evidence that he is -- you must either trust the Thai justice system to dispense with a man whose terroristic threats they do not consider a crime -- or, you can find a way to render Bout to the United States for trial.
This is exactly the scenario the Bush administration faced after 9/11. They worried about what would happen if a country like Canada refused to extradite or arrest a suspected terrorist. They decided to develop a capacity within the Central Intelligence Agency to neutralize the threat, either by kidnapping or killing, on the friendly soils of an ally. There are so many legal problems -- not to mention ethical difficulties -- with such an approach. (For those who discredit the entire Bush administration counterterrorism regime, you must concede that they appropriately decided never to put this capacity to good use.
Why did Thailand decide to refuse the extraditition request given their secret penchant for cooperation on much murkier subjects? It may be that the U.S. justice system still lacks legitimacy overseas. For reasons of domestic consumption, the Thai government cannot be seen as turning over a terrorist to the United States. When critics of the Bush administration's approach warned that the President paid too little attention to the legitimacy of the process and that it would come back to harm the country's interests, they meant precisely this.
The President's detainee policy task force has to figure out what U.S. policy ought to be when allies don't cooperate. At the same time, it has to propose a system that will encourage allies to cooperate. No wonder they wanted six more months...
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Marc Ambinder is a senior fellow at the USC Annenberg Center on Communication Leadership and Policy.