Sep 282014
 

http://wikileaks.org/cable/2006/12/06MANILA4896.html#

Reference ID Created Released Classification Origin
06MANILA4896 2006-12-05 11:00 2011-08-30 01:44 CONFIDENTIAL Embassy Manila
VZCZCXRO6437
OO RUEHNH
DE RUEHML #4896 3391100
ZNY CCCCC ZZH
O 051100Z DEC 06
FM AMEMBASSY MANILA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 4168
INFO RUEHNH/AMCONSUL NAHA IMMEDIATE 0054
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 MANILA 004896

SIPDIS

SIPDIS

E.O. 12958: DECL: 12/05/2016
TAGS: PREL MARR CASC KCRM RP
SUBJECT: MAKATI COURT DEFERS RECONSIDERATION OF CUSTODY OF LANCE CORPORAL SMITH

REF: MANILA 4880

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

¶1. (C) Summary and comment: Despite promises from the
seniormost Philippine Government officials that they could
work with the judge in the alleged rape case to rescind his
custody order and return Lance Corporal Smith to U.S.
custody, Smith will spend at least one more night at the
Makati City Jail. We are increasingly frustrated by the
apparent inability of the Philippine Government to ensure a
prompt resolution of this issue, which calls into question
its compliance with the Visiting Forces Agreement. Absent a
resolution of this impasse early on December 6, Embassy will
present some options for Washington consideration to indicate
our deep dissatisfaction and concern about the implications
of this situation for our relationship. End summary and
comment.

¶2. (SBU) According to Philippine Department of Foreign
Affairs UnderSecretary Seguis, Makati City Regional Trial
Court Judge Pozon deferred a ruling on a December 5 motion
for reconsideration by the defense attorney of Lance Corporal
Daniel Smith regarding Smith’s custody, which Judge Pozon had
ordered on December 4 to take place in the Makati City Jail
(reftel). Judge Pozon reportedly decided to give the private
prosecutor in the case one day to make a counter-argument.

¶3. (C) Smith’s attorney had filed the motion with the
assistance of the Philippine Department of Justice, including
Senior State Prosecutor Zuno. Separately, U/S Seguis wrote
to Judge Pozon and provided a copy of a December 5 diplomatic
note from the Embassy to the Department of Foreign Affairs
reaffirming the right of the U.S. under the Visiting Forces
Agreement to exercise custody of U.S. personnel, including
Smith, over whom the Philippines is to exercise jurisdiction
until completion of all judicial proceedings, including
appeals. A DFA spokesman had earlier on December 5 told the
press that the DFA supported the “U.S. request in a note
verbale today for custody of Daniel Smith.”

¶4. (C) Throughout the evening of December 4, Ambassador had
a series of telephone conversations with President Arroyo,
Executive Secretary Ermita, Foreign Secretary Romulo, Justice
Secretary Gonzalez, and Armed Forces Chief of Staff General

SIPDIS
Esperon. She reiterated the clear right of the U.S. to
retain custody under the VFA, urged the GRP quickly to take
steps to ensure its own compliance with these terms, and
insisted that in the meantime GRP authorities must ensure
Smith’s complete and utter safety and well-being at the
Makati City Jail. All expressed their agreement. General
Esperon separately contacted Philippine National Police Chief
General Calderon to make the third point, and later confirmed
to Ambassador that General Calderon had taken all necessary
steps, including allowing Smith to rest overnight in the
warden’s office rather than a cell. DCM separately also
raised the key issues repeatedly with senior DFA officials
involved in the handling of the case. Malacanang Palace
convened a strategy session on the morning of December 5 to
finalize the necessary actions by the Department of Justice,
working with the defense attorney and receiving additional
guidance from the Embassy’s Justice Attache. Executive
Secretary Ermita repeatedly on December 5 assured Ambassador

SIPDIS
that the GRP would “fix” this problem immediately, but as of
1830 local time, this has not happened.

¶5. (SBU) An Embassy American Citizens’ Service officer
visited Smith on the evening of December 4. Smith expressed
no complaints. The warden, in addition to providing use of
his office, also allowed visitors (including a Protestant
pastor), food, and toiletries. An official of the III MEF
remained overnight with Smith on December 4 and will do so
again on December 5, and until the satisfactory resolution of
the custody issue.
KENNEY

   

 

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