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S E C R E T SECTION 01 OF 04 BANGKOK 001998 SIPDIS STATE FOR EAP/MLS, NSC FOR BADER E.O. 12958: DECL: 08/13/2019 TAGS: PTER, KCRM, TH, RS, CO SUBJECT: NEXT STEPS ON THE VIKTOR BOUT EXTRADITION CASE IN THE WAKE OF LOWER COURT DEFEAT REF: BANGKOK 385 (NOTAL) Classified By: Ambassador Eric G. John, reasons 1.4 (b) and (d) 1. (C) Summary and comment. The disappointing August 11 Thai Lower Court ruling against the extradition of Russian arms trafficker Viktor Bout, and its dubious legal reasoning, requires a multi-pronged effort to seek a successful reversal during the appeals process. The lead judge's foray into foreign policy, rejecting the terrorism label and in effect embracing the FARC's activities as purely political in nature, not criminal or acts of terrorism, has implications for Thailand. His confusion of the "dual criminality" concept with jurisdictional issues similarly raises questions for efforts by Thailand to extradite fugitive former PM Thaksin to face justice. The Embassy is working with Thai authorities to file an appeal of the lower court's ruling and to press home the implications of the court ruling were Bout to walk free. In the early afternoon on August 13, we were assured that the notice of intention to appeal has been filed. 2. (C) At the same time, the Embassy recommends the State Department, Attorney General Holder, and the US Mission to the UN in New York engage the Thai Ambassador in Washington and the Thai PermRep in New York in parallel. In addition, the Department should seriously consider asking Belgium, which issued an arrest warrant for Bout in 2002 for money laundering and conspiracy, Colombia, in the case of the FARC, and African countries which have suffered greatly from Bout's arms trade in the past to weigh in with the RTG. Finally, we recommend consideration of laying down a marker in Moscow about Bout, looking forward to the possibility that Bout may end up back in Russia were the appeal of the Lower Court ruling might not succeed. End Summary and comment. Thai Lower Court rules against Bout extradition --------------------------------------------- -- 3. (C) On August 11, the judge in the Viktor Bout extradition case ruled against U.S. and Thai government efforts to extradite Bout to the United States. Two key elements of his reasoning were: that the FARC in Colombia, to which Bout was conspiring to send weapons, was a political rather than a terrorist group; and that the "dual criminality" standard of our extradition treaty with Thailand had not been met since Bout could not be prosecuted in Thailand on the charges which the U.S. wants him to face in the U.S. In our view, the judge was wrong on both counts. 4. (C) After the verdict, as the Department has seen, the DCM spoke on the record to press outside the court room and expressed disappointment and mystification over the ruling and stated that we would fully support RTG efforts to appeal the decision. We have continued the same themes in subsequent interactions with the press. Engaging the Thai immediately ----------------------------- 5. (C) The Ambassador called Foreign Minister Kasit immediately after the verdict on August 11 and expressed deep disappointment, noting that the verdict was not justified on legal grounds and that the judge had clearly been in error on several key points. He reminded Kasit that over the past year and a half since Bout's arrest in Bangkok, the USG had repeatedly underlined the importance of the case, all the way up to the Secretary of State and POTUS levels. In the short-term, the Ambassador told Kasit, we need the Foreign Ministry to do its part in forwarding the necessary documentation to the Attorney-General's office so that the intent to appeal can be filed in the requisite forty-eight hours. (Note: Although the court's ruling and a new extradition law specify that the appeal must be filed within 72 hours, the applicable extradition law sets forth the shorter time frame, which we have followed.) Kasit assured the Ambassador that he had already instructed his legal department to do so. The Ambassador also told Kasit that we BANGKOK 00001998 002 OF 004 expected Bout would remain in detention during the appeals process. The MFA's Legal and Treaties Department faxed the Attorney General's office late evening August 11 supporting the appeal; at the request of the Office of the Attorney General, the Embassy sent a diplomatic note to the MFA and the OAG on August 13 requesting that the RTG appeal the lower court verdict prior to the forty-eight hour deadline (note: the RTG was closed August 12 for a National Holiday, the Queen's Birthday.) At approximately 1:25 p.m. on August 13, the MFA and OAG advised the Embassy that the requisite notice of intention to appeal had been filed and received by the court. Next steps ---------- 6. (C) The Embassy's "Bout team" met August 13 to review next steps that will help us prevail on appeal. Our immediate priority was to ensure that the notice of intent to appeal was filed on time (within 48 hours of the verdict) and that the appeal itself is filed within thirty days of the verdict. 7. (C) We will make clear to the RTG that we expect Bout to remain incarcerated during the appeals process, as specified under Thai law and the August 11 court ruling. Given that the same judge will rule on any bail motions brought by Bout (we expect Bout's attorneys to push hard on bail), however, his custody status during the pendency of the appeal is a genuine concern. We also intend to make clear to the Thai government (the Ambassador is seeking to call FM Kasit, in Malaysia August 13-14 on a working visit, and will engage the highest available MFA official in Bangkok) that we expect this deficient ruling to receive a comprehensive and meaningful review by the appellate court. Moreover, the Ambassador plans to tell Kasit and other senior Thai officials that, given that the Thai government arrested Bout and sought his extradition to the U.S., the Thai government should be as alarmed by the judge's ruling as we are. Therefore, we would encourage the RTG to issue a public statement expressing disappointment in the judge's decision, its intention to win on appeal, and a reiteration of Thailand's commitment to both the struggle against international terrorism and to its extensive law enforcement relationship with the United States. The Ambassador intends to make similar points to newly appointed NSC Secretary General Tawee and to key figures at the Palace. Without being counter-productively heavy-handed, we will make clear that we see Thai executive branch reaction to the ruling as a test of the relationship. 8. (C) At the same time, however, we believe it is important to remember that our partners in the Royal Thai Police, the Office of the Attorney General, the Foreign Ministry, and even the Royal Thai Navy, largely did everything we asked them to do on the Bout case, including going the extra mile to facilitate our requests. Our posture and actions thus should make clear that we are disappointed with the judge's ruling but not with Thai government cooperation in the Bout case. 9. (C) That said, coming on the heels of the September 2008 Thai appellate ruling affirming a lower court's denial of our request to extradite Iranian Jamshid Ghassemi, who was in Thailand to procure controlled technology in violation of the Arms Export Control Act, the question has to be asked whether we can count on the Thai courts to do the right thing on high-profile extradition cases that will affect Thailand's relations with third countries (we continue to have a perfect record on routine extraditions from Thailand to the United States). Our reluctant conclusion is that we cannot. 10. (S) The Department will recall that in February of this year, after significant indications that the Russians were trying to use bribes to influence the outcome of the case, the Ambassador made representations to Prime Minister Abhisit (reftel) that we expected the process to be free of inappropriate influence and Abhisit undertook to do so. The BANGKOK 00001998 003 OF 004 Ambassador also intervened at the same time with Defense Minister Prawit Wongsuwan and the Royal Thai Naval Commander Khamtorn Pumhiran to insist that false testimony by a Thai naval officer (that Bout had been in Thailand as part of a routine naval procurement) be rebutted. The Thai Navy subsequently issued a letter to that effect. We will remind the Thais of their commitment to a clean process and ask that they assure us again on the front. What We are Doing here/What We Suggest Washington Do --------------------------------------------- ------- 11. (C) Given the above, we are undertaking the following steps here in Bangkok, most of which should also be reflected when the Department calls in Thai Ambassador Don Pramuwinai, a move we fully support: -- The Ambassador will immediately seek a meeting with Foreign Minister Kasit and other appropriate senior Thai officials to make clear that, while we appreciate the cooperation on Bout over the past year and a half, we are disappointed and mystified by the judge's ruling, which is flawed on several key points. -- In particular, the judge's characterization of the FARC as a legitimate political actor would suggest that insurgent groups in southern Thailand are likewise political in nature, perhaps outside the scope of Thailand's new counterterrorism laws. The ruling also suggests that anyone seeking to send them arms from a third country could not be extradited to Thailand on political grounds. -- Moreover, the judge's misguided analysis of the "dual criminality" standard suggests that fugitives cannot be extradited from Thailand unless a Thai court actually had jurisdiction over the alleged crime, not whether the alleged conduct is viewed as criminal conduct under the laws of both countries. This decision comes at the same time Thailand is pursuing extradition of fugitive former PM Thaksin Shinawatra for abuse of power/corruption-related charges; the judge's ruling would also seem to undermine RTG positions in their Thaksin extradition effort. -- Therefore, we expect that the AG's office will vigorously pursue the appeal of the ruling and that Bout will remain incarcerated during the pendency of the appeal. -- We seek assurances that the case will be afforded a comprehensive and meaningful appellate review, presumably handled by serious, experienced Thai judges. (Note: Appeals are normally handled by a panel of three judges. End Note.) -- We ask that the Thai government issue a statement making clear its own disappointment with the judge's ruling and reiterating its commitment to the fight against international terrorism and to the law enforcement relationship with the U.S. -- We will continue to make our points to the press and we are pulling together a "FARC fact sheet" for public distribution that we will send in to Washington for comment and clearance today. 12. (C) We suggest that Washington strongly consider the following actions: -- In addition to the Department calling in the Thai Ambassador, we recommend that Attorney General Holder also call him in. AG Holder could point out the extensive U.S. commitment of law enforcement resources to Thailand (DEA and other), as well as our judicial training efforts, and that a statement from the RTG as outlined above would be very helpful as the U.S. decides where best to commit its law enforcement resources around the world. A senior DEA official might also wish to sit in to highlight the massive DEA commitment to Thailand. (Note: Our DOJ Attache who has led our legal efforts on Bout here will be in Washington on August 20-21. End Note.) -- Discussion of a POTUS telcon to PM Abhisit has been under way for some time; they have not spoken in the seven months both have been in office. We suggest that the call be accelerated and that it include a serious discussion of our concerns over the implications of the Bout verdict, as outlined above. We believe POTUS involvement on Bout would have significant effect here. -- We suggest Washington engage the Colombian government on BANGKOK 00001998 004 OF 004 the implications of the Bout verdict. We suggest inquiring whether Colombia considers the FARC to be a terrorist organization, whether it would be willing to submit a brief in the appeals process, and also make public statements to that effect. We also suggest exploring whether Colombia would be willing to ask Thailand for Bout's extradition while he (hopefully) is still in detention during the appeals process. (Note: There is no Colombian Embassy in Bangkok; the Embassy in Kuala Lumpur covers Thailand. We understand the Thais cover Colombia from their Embassy in Lima. End note.) It would be useful if the Government of Colombia also raised its concerns in Moscow. -- We also suggest exploring the possibility of whether governments whose citizens have borne the bloody results of Bout's activities over the years, such as Sierra Leone, Liberia and Congo, would be willing to publicly express dismay/engage the Thai government on the verdict and whether any affected government would be willing to ask for his extradition. -- While the Bout focus is now on Thailand, this is at heart a U.S.-Russian matter. The Department may wish to make clear to Moscow our concerns on Bout's activities and seek assurances that they will cease. Also, we should consider asking the Russians to prosecute Bout if, in the end, he walks here in Thailand. At the very least perhaps we could force the Russians to publicly refuse to do so. -- The Thai ruling seems inconsistent with several United Nations determinations on Bout's nature over the years (see below). We suggest our USUN call in the Thai Permrep and lay out how we view the issues in terms of Thailand's standing with the United Nations. Better yet would be for the appropriate UN official to call in the Thai Permrep and seek an explanation of how the verdict can be justified in light of Thailand's support of relevant UN resolutions: - UNSCR 1521 (2003) - Liberia - UNSCR 1343 (March 2001) - Liberia - Report of Experts Panel under 1343 - Final Monitoring Report on Angola Sanctions (2000) -- Finally, despite the listing by the US and EU of the FARC as a terrorist organization, we understand that the FARC is not listed as such by the UN. A move to have the FARC listed formally by the UN would assist the effort to keep Bout in custody. JOHN