Sep 242014
 

http://wikileaks.org/cable/2007/09/07MANILA3166.html#
Reference ID Created Released Classification Origin
07MANILA3166
2007-09-19 03:58
2011-08-30 01:44
CONFIDENTIAL
Embassy Manila

VZCZCXRO1235
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DE RUEHML #3166/01 2620358
ZNY CCCCC ZZH
O 190358Z SEP 07
FM AMEMBASSY MANILA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8311
INFO RUEHNH/AMCONSUL NAHA IMMEDIATE 0107
RHEHNSC/NSC WASHDC IMMEDIATE
RHHMUNA/CDRUSPACOM HONOLULU HI IMMEDIATE
RUEKJCS/JOINT STAFF WASHINGTON DC IMMEDIATE
RUEKJCS/SECDEF WASHDC IMMEDIATE
C O N F I D E N T I A L SECTION 01 OF 03 MANILA 003166

SIPDIS

SIPDIS

E.O. 12958: DECL: 09/07/2017
TAGS: PREL MARR KCRM CASC RP
SUBJECT: CASE OF U.S. MARINE LCPL SMITH: CURRENT STATUS;NEXT STEPS

REF: MANILA 2445 AND PREVIOUS

Classified By: Ambassador Kristie A. Kenney for reasons 1.4
(b) and (d).

¶1. (C) SUMMARY. Appellate briefs have now been filed with
the Court of Appeals in the case of U.S. Marine Lance
Corporal Daniel J. Smith, who was convicted in December 2006
of raping a Filipino woman at Subic Bay. The Court of
Appeals could issue a decision as early as January. Under
the terms of the Visiting Forces Agreement, Smith has
remained in U.S. custody on Chancery grounds since his arrest
in November 2005, and the Embassy community as a whole has
provided continuous and significant support, safeguarding
Smith’s safety, security, and welfare, and ensuring that
Smith’s rights as a U.S. citizen and the requirements of the
Visiting Forces Agreement are respected. The Embassy Public
Affairs Office fielded numerous inquiries from the media —
the Smith case was the most-reported story in 2006 — and was
successful in directing public attention toward the judicial
process and away from broader issues of U.S.-Philippine
relations.

¶2. (C) The Philippine government has generally respected the
Visiting Forces Agreement despite domestic political
pressures. The Embassy has remained firm in its
interpretation that the Agreement allows us to continue to
maintain custody of Smith through any appeals process,
including in the Supreme Court. Despite attempts by leftist
organizations to use the Smith case to damage U.S.-Philippine
relations, our joint efforts with U.S. Pacific Command to
highlight humanitarian and community outreach programs of
numerous ship visits and military exercises have so far
helped maintain public and political support for the
U.S.-Philippine military relationship — and for the Visiting
Forces Agreement upon which our counterterrorism cooperation
in the Muslim south is based. This message summarizes the
most salient events in the case, including U.S. Embassy
efforts to ensure Smith’s proper treatment in accordance with
the Visiting Forces Agreement. END SUMMARY.

—————-
THE CASE TO DATE
—————-

¶3. (U) On the evening of November 1, 2005, U.S. Marine Lance
Corporal Daniel J. Smith and three other U.S. Marines on
leave from the visiting USS Essex went to the Neptune Club in
Subic Bay. While there, Smith met a Filipino woman and,
after dancing and conversing with her, invited her to ride in
a van with him and the other Marines, who were headed back to
their ship to meet curfew. Smith later testified that the
two of them engaged in consensual sexual intercourse, with
Smith wearing a condom. She later claimed that she had been
in and out of consciousness, too drunk to consent. On
November 2, she filed rape charges against Smith and the
three other Marines.

¶4. (U) A Naval Criminal Investigation Service agent, who was
present in Subic for the visit of the USS Essex, learned
about the allegations and on November 3 escorted Smith and
the other three Marines to the Subic Bay Metropolitan
Authority, where he and local authorities questioned them.
When it became clear that the Philippine authorities intended
to press charges, a representative of the Joint United States
Military Assistance Group asserted the U.S. government’s
right to custody of the accused under the Visiting Forces
Agreement (VFA), and transferred them to safe quarters on
Chancery grounds. On December 27, 2005, Philippine
prosecutors filed charges of rape against Smith and the other
three Marines; the other three Marines were accused of
participating in the crime, though not engaging in sexual
intercourse with the woman. Smith and the three other
Marines remained on Chancery grounds during the trial.

¶5. (C) Once begun, the trial moved briskly to comply with
the one-year period to complete trial proceedings provided
for in the VFA. On December 4, 2006, the trial court judge
ruled that Smith was guilty of rape and sentenced him to a
maximum of 40 years in prison. The three other Marines were
acquitted and immediately returned to their unit in Okinawa.
The trial court judge ordered local police to take custody of
Smith immediately after the verdict and confined him in a
Manila jail. However, following intense pressure from U.S.
Embassy officials to comply with the terms of the Visiting
Forces Agreement, the Philippine government on December 29
returned Smith to U.S. custody, where he has remained until
the present. The Philippine government received heavy local

MANILA 00003166 002 OF 003

criticism for forcibly overturning the trial court’s order to
place Smith in a Manila jail.

————————-
EMBASSY SUPPORT FOR SMITH
————————-

¶6. (SBU) Except for the three-week period immediately
following the verdict, Smith has been held on Chancery
grounds. He is currently in a CONEX-type trailer, with basic
amenities and access to fitness and sports facilities.
Representatives from the III Marine Expeditionary Forces
supervise him at all times. The Regional Security Office has
spent significant time and resources ensuring Smith’s safety
and security, including during Smith’s appearances in court
and, more recently, during Smith’s hospital visits for minor
procedures. American Citizen Services officers, who attended
all trial sessions, have also kept close watch over the case,
liaising with Smith’s family and ensuring Smith’s rights as a
U.S. citizen are respected. The Public Affairs Office has
fielded numerous inquiries from the media and has been
successful in directing public attention toward the judicial
process and away from broader issues of U.S.-Philippine
relations. The DCM chairs a weekly meeting of Mission and
PACOM representatives to ensure proper coordination and
appropriate support to Smith.

¶7. (SBU) Smith has generally been in good physical condition
and spirits since the verdict, though he was hospitalized
three times for minor procedures. He recovered well and has
exercised regularly throughout his detention. Smith’s
parents visited him for one week in March and his two
brothers visited for another week in July. Smith is also
visited by his pastors and lawyers on a weekly basis and by
his unit’s commanding officer on a quarterly basis.
Philippine government officials from the Department of
Interior and Local Government and Philippine National Police
have also visited Smith on Chancery grounds several times
since the verdict, both to assert Philippine jurisdiction
over Smith and to counter media speculation that Smith had
either been spirited out of the country or was living in
relative luxury at the U.S. Embassy. Such visits have
declined and no Philippine officials have visited Smith since
July.

—————————
MOST-REPORTED STORY IN 2006
—————————

¶8. (SBU) Media coverage of the Smith case through the
verdict phase was extensive and generally evenhanded, though
a few anti-American articles appeared. In recent months,
however, there has been very little coverage, though short
articles still appear sporadically. It would be difficult to
exaggerate the degree to which the Smith case captured the
Philippine public’s attention — the trial garnered
front-page space nearly every day and was, statistically, the
single most-reported story in the Philippines in 2006 — and
there will almost certainly be a resurgence in coverage when
the Court of Appeals issues its verdict. The Mission is
considering effective strategies for continuing to manage
public opinion on this issue.

———————————
GENERALLY PEACEFUL DEMONSTRATIONS
———————————

¶9. (SBU) Since LCpl Smith’s conviction, several leftist
groups, including student and women’s organizations, have
held some 15 demonstrations against Smith and/or the Visiting
Forces Agreement near the U.S. Embassy. These generally
peaceful demonstrations, which have averaged about 45
participants, have been handled effectively by the Philippine
National Police, which coordinates closely with the RSO, and
have been without incident. Only one demonstration, in
January 2007, resulted in a scuffle; several people were
reportedly injured in that instance, but none seriously.

—————-
NEXT LEGAL STEPS
—————-

¶10. (SBU) Smith’s defense filed an appeal with the Court of
Appeals immediately after the trial court verdict but, owing
to various procedural motions and delays, did not file its
appellate brief until May 19, 2007. The Solicitor General
filed its appellate brief September 5. Smith’s defense now
has until October 3 to file a reply — but could request an

MANILA 00003166 003 OF 003

additional 20 days. The Court of Appeals then has 90 days to
issue a decision and could rule as early as mid January.
According to Assistant Solicitor General Amy Javier, who is
handling the case, the Court of Appeals could delay issuance
of a decision for “compelling” reasons, such as complexity of
the case. The appellate ruling can then be appealed to the
Supreme Court.

———————————————
IMPACT ON US-PHILIPPINE RELATIONS AND THE VFA
———————————————

¶11. (C) The Smith case was the first time the VFA, signed in
1998 and ratified by the Philippine Senate in 1999, was
applied to a criminal case. An important provision of the
VFA provides that the USG may retain custody of covered
personnel until the conclusion of all judicial proceedings
and, except for the brief three-week period when a local
judge ordered Smith be taken into Philippine custody, the
Philippine government has generally respected the terms of
the agreement. Senior Philippine government and
congressional leaders have raised the possibility of
renegotiating the custody provisions of the VFA, or
clarifying the scant VFA language on the subject through an
exchange of diplomatic notes. This issue has also been
raised publicly. We worked with senior government officials
to unite behind the message that any discussion of
renegotiation or clarification would be premature until
conclusion of all judicial proceedings, including an appeal
to the Supreme Court. This approach has largely defused
public wrangling that could distract from the merits of the
Smith case. Once the case is finally settled, however, the
Philippine government may reassert its interest in
renegotiating or clarifying the custody provisions of the VFA.

¶12. (C) Leftist organizations have repeatedly used the Smith
case to foment anti-American sentiment and push for repeal of
the VFA, hoping to damage U.S.-Philippine relations. The
joint Mission-PACOM extensive program of ship visits and
military exercises, all of which include a strong
humanitarian component, have so far helped keep the
U.S.-Philippine military relationship strong. Embassy
officials will continue to counter efforts of groups seeking
to use this case to harm U.S.-Philippine relations by
acknowledging the high emotions involved in the case,
underscoring that we want justice to prevail through rule of
law, and stressing the merits of the Visiting Forces
Agreement.

Visit Embassy Manila’s Classified SIPRNET website:
http://www.state.sgov.gov/p/eap/manila/index. cfm

You can also access this site through the State Department’s
Classified SIPRNET website:
http:// www.state.sgov.gov/
KENNEY

   

 

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