Sep 282014
 

http://wikileaks.org/cable/2006/12/06MANILA4913.html#

Reference ID Created Released Classification Origin
06MANILA4913 2006-12-06 09:12 2011-08-30 01:44 CONFIDENTIAL Embassy Manila
VZCZCXRO7475
OO RUEHNH
DE RUEHML #4913/01 3400912
ZNY CCCCC ZZH
O 060912Z DEC 06
FM AMEMBASSY MANILA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 4183
INFO RUEHNH/AMCONSUL NAHA IMMEDIATE 0055
RHHMUNA/CDRUSPACOM HONOLULU HI IMMEDIATE
RHEHNSC/NSC WASHDC IMMEDIATE
RUEKJCS/SECDEF WASHDC IMMEDIATE
C O N F I D E N T I A L SECTION 01 OF 02 MANILA 004913

SIPDIS

SIPDIS

E.O. 12958: DECL: 12/06/2016
TAGS: PREL MARR CASC KCRM RP
SUBJECT: FOREIGN SECRETARY PREDICTS QUICK RESOLUTION OF CUSTODY ISSUE; JUDGE DELAYS DECISION AGAIN

REF: MANILA 4896 AND PREVIOUS

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

¶1. (C) This is an action request — see para 8.

¶2. (C) Summary. Ambassador urged Foreign Secretary Romulo
to ensure that the Philippine Government take quick and more
effective steps to return Lance Corporal Daniel Smith
immediately to U.S. custody pending his appeal. Romulo
promised that the Philippine Government would do all in its
power and predicted a satisfactory resolution by December 8.
The Judge in the case has deferred a decision on custody
until at least December 7. Smith remains in the Makati City
Jail, with U.S. military escorts at all times. Embassy
recommends postponement of Ambassador-designate Gaa’s
presentation of credentials until Smith returns to U.S.
custody. We believe that the positive media coverage of
Ambassador-designate Gaa meeting the President in the Oval
Office could undermine Philippine commitment quickly to
transfer Lance Corporal Smith to U.S. custody. End Summary.

Foreign Secretary
—————–

¶3. (C) In a meeting with Foreign Secretary Romulo on
December 6, Ambassador urged the Philippine Government
immediately to take steps with Makati Regional Trial Judge
Pozon to ensure that Lance Corporal Smith (reftels) is
returned to U.S. custody. She reiterated that the VFA
stipulated that the U.S. could retain custody in such cases
until the end of all judicial proceedings. She noted that a
December 5 note from DFA Undersecretary Seguis to Judge Pozon
had only affirmed the relevant section of the VFA, without
specifically calling for Smith’s return to U.S. custody and
thus respect the Philippines’ obligation under this
international agreement.

¶4. (C) Romulo noted that A/S Hill had discussed some of
these same issues with him late on December 5 (Manila time).
He promised that the Philippine Government remained committed
to the VFA and was doing everything in its power, both behind
the scenes and in public statements, to recognize the U.S.
claim for continued custody of Smith until the completion of
all judicial proceedings. He said, however, that
intervention with Judge Pozon was most appropriately under
the purview of Secretary of Justice Gonzalez, but he promised
to weigh in with Gonzalez immediately. He nonetheless
predicted that the custody issue would come to a successful
resolution no later than Friday, December 8. (Executive
Secretary Ermita separately contacted Ambassador with a

SIPDIS
similar message.)

¶5. (U) While departing DFA, Ambassador underscored to local
press corps that the seizure by the Philippine National
Police of Lance Corporal Smith upon the order of Makati City
Regional Court Judge Pozon on December 4 and his continued
detention at the Makati City Jail meant that the Philippine
Government was not in compliance with the Visiting Forces
Agreement. She stressed that Smith was not here as a private
citizen and that the VFA is the operative legal framework to
handle his case. She noted that the VFA also allowed the
U.S. military to provide disaster assistance, such as after
the Leyte mudslide in February, as well as humanitarian and
civil-military operations and other support to the Armed
Forces of the Philippines.

In the courtroom
—————-

¶6. (U) On behalf of the complainant in the case, the
private prosecutor filed a motion with Judge Pozon on
December 5 opposing the motion by Smith’s attorney to
transfer custody back to the U.S. The motion claimed that,
under the terms of the VFA, the Philippines should now have
custody, not the U.S. It further declared that the
Philippines had a right under the VFA to obtain custody,
which it had asserted in January 2006, and that the
Government should therefore not relinquish custody now.
Judge Pozon announced on December 6 that he would study the
motions and not issue a decision until at least December 7.

Smith’s condition remains good
——————————

¶7. (SBU) Smith remains in the warden’s office at the Makati
City Jail, where representatives from the III MEF are with
him at all times. Embassy intervened with Philippine

MANILA 00004913 002 OF 002

authorities on December 6 to ensure that Smith was not
subject to media questioning or unwanted visits. Jail
officials continue to allow our access and provision of food
and other necessities. Smith has been in direct contact with
his family in the U.S.

Next step — action request
—————————

¶8. (C) Embassy recommends that the U.S. defer the December
8 presentation of credentials of Philippine
Ambassador-designate Gaa until there is a clear and
satisfactory resolution of this custody issue. Deferring
Gaa’s credentials would not hurt larger and longer-term U.S.
interests, but would demonstrate to the Philippine Government
our deep concern. It will also ensure that President Bush is
not photographed with the Philippine Ambassador in the Oval
Office at a time when the Philippine Government is holding a
U.S. Marine in custody contrary to the terms of our Visiting
Forces Agreement.

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

   

 

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