Oct 252014
 

http://wikileaks.org/cable/2009/02/09MANILA326.html#
Reference ID Created Released Classification Origin
09MANILA326
2009-02-13 05:53
2011-08-30 01:44
CONFIDENTIAL
Embassy Manila

VZCZCXRO0975
OO RUEHNH
DE RUEHML #0326/01 0440553
ZNY CCCCC ZZH
O 130553Z FEB 09
FM AMEMBASSY MANILA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3212
INFO RUEHNH/AMCONSUL NAHA IMMEDIATE 0130
RUEKJCS/SECDEF WASHDC IMMEDIATE
RHEHNSC/NSC WASHDC IMMEDIATE
RUEKJCS/JOINT STAFF WASHINGTON DC IMMEDIATE
RHHMUNA/CDRUSPACOM HONOLULU HI IMMEDIATE
C O N F I D E N T I A L SECTION 01 OF 03 MANILA 000326

SIPDIS

E.O. 12958: DECL: 02/12/2019
TAGS: PREL MARR KCRM CASC RP
SUBJECT: NEXT STEPS ON VFA AND MARINE LCPL DANIEL SMITH

REF: MANILA 307 (COURT UPHOLDS VFA RULES MARINE
SHOULD BE IN RP CUSTODY)

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

¶1. (U) This is an action request. See para 11.

¶2. (C) SUMMARY: Mission continued its intensive efforts to
ascertain Philippine government views and intentions
following the Philippine Supreme Court’s Feb. 11 decision
upholding the Visiting Forces Agreement (VFA) but directing
the Philippine government to negotiate without delay with the
U.S. on placing U.S. Marine Lance Corporal Daniel J. Smith in
a Philippine detention facility (reftel). In a private
meeting with the Ambassador Feb. 12, Foreign Secretary Romulo
fully agreed on the need to move deliberately on the
detention issue and welcomed the concept of an exchange of
diplomatic notes that laid out each government’s general
positions on the issue. Public comments by other senior
Philippine officials echoed Romulo’s view that this would be
a lengthy and careful process that should be carried out
without weakening our strong security relationship.
Philippine legal authorities suggested an appeal for
reconsideration of the Supreme Court decision was likely,
which could delay finalization of the court ruling up to two
months. Text of a proposed diplomatic note to the Philippine
government on the VFA and the detention issue is included in
paragraph 11. Mission believes that shifting the locus of
discussion of the detention issue to Washington will help
mitigate the intense political, media and public scrutiny the
issue engenders throughout the Philippines, and lessen the
potential for demonstrations and protests by leftist
activists. END SUMMARY.

NO UNDUE HASTE
————–

¶3. (C) During a lunch meeting February 12 with Foreign
Secretary Romulo, the Ambassador noted the two very distinct
decisions in the Feb. 11 Supreme Court ruling on the VFA. On
one hand, the decision represented a clear victory for the
legality of the VFA, with a strong majority of justices
voting 9-4 the agreement was constitutional, the second time
the court had so ruled. At the same time, the justices ruled
the Philippine government erred in its interpretation of the
VFA in allowing the U.S. to maintain custody of LCPL Smith
after his December 1996 conviction. This was a complex legal
question that would require consideration by an array of U.S.
government agencies with equities in the Smith case and the
VFA. The VFA is an executive agreement that has the force of
a treaty under international law and is legally binding on
the U.S. Thus, it was vital to move with great deliberation
to find a mutually acceptable outcome, and not make any hasty
moves that put at risk one of the key elements of our
security alliance.

¶4. (C) Foreign Secretary Romulo voiced strong agreement on
the fundamental importance of the VFA, and welcomed the
Supreme Court’s reaffirmation of its constitutionality. He
noted the need to begin a dialogue on the detention issue
singled out by the court, but stressed his expectation this
would be a measured process and suggested that no in-depth
discussion on the detention issue — and LCPL Smith’s
specific case — would begin until the Supreme Court decision
became final, after any motions for reconsideration were
decided. Meanwhile, he welcomed the concept of a diplomatic
note from the USG that would acknowledge the fact of the
Supreme Court’s decision and the need for a mutually
acceptable resolution. This would allow the Philippine
government to demonstrate it was carrying out the court’s
order to negotiate “forthwith” on the issue with the USG.
Some reference to the fact that the U.S. considers the VFA to
have the force of law even though it was not ratified by the
U.S. Senate would also have a positive impact.

MANAGING EXPECTATIONS
———————

¶5. (C) Secretary Romulo’s private comments on the need for
caution were echoed by other senior leaders Feb. 12. A key
political ally of President Arroyo, Interior and Local
Government Secretary Ronaldo Puno, whose department oversees
LCPL Smith’s custody, said Malacanang Palace would “go very
slow” on the detention issue until the Department of Foreign
Affairs negotiates an agreement on Smith’s status so as not
to strain ties with the U.S. Puno suggested this would be a
long process and said he wanted to avoid prejudging the
outcome of the negotiation. Using the Supreme Court’s

MANILA 00000326 002 OF 003

language from the Feb. 12 decision, he said the “status quo”
remains regarding LCpl Smith’s custody at the U.S. Embassy
until an agreement is worked out. Cabinet Executive
Secretary Eduardo Ermita echoed the status quo comment.

MOTION FOR RECONSIDERATION
————————–

¶6. (C) Senior Philippine legal officials suggested that the
Supreme Court’s Feb. 11 decision would not be final until all
appeals have been exhausted. Under Philippine law, the
parties have 15 days to file motions for reconsideration.
While the Philippine Supreme Court generally dismisses such
requests, it often takes as long as 60 days to complete the
process. Philippine Solicitor General Devanadera predicted
the leftist activists who filed the original challenge to the
VFA with the Supreme Court would likely submit a motion for
reconsideration of the constitutionality of the VFA.
Devanadera said the Philippine government is also weighing a
partial motion for reconsideration that would address only
the custody portions of the decision, but admitted her
concern such a motion could be perceived as “lawyering for
the United States.” According to Devanadera, even if
expeditiously addressed by the Supreme Court, a motion for
reconsideration could effectively delay the Supreme Court
decision for two months. A senior legal advisor at the
Department of Foreign Affairs concurred with the Solicitor
General’s assessment.

NEXT STEPS
———-

¶7. (C) We will continue our intensive discussions with
President Arroyo’s top advisors in coming days. So far, our
soundings indicate that senior-most levels of the Philippine
government share our assessment of the gravity of the Supreme
Court’s divided ruling and the need to move cautiously toward
a mutually acceptable resolution. They clearly welcome the
court’s reaffirmation of the constitutionality of the VFA,
and recognize the inherent difficulty in the court’s
reinterpretation of detention procedures LCpl Smith has been
held under to date.

¶8. (C) However, we detect a real concern among Philippine
officials. While the Supreme Court specifically stated LCpl
Smith should remain in U.S. Embassy custody during
“negotiations” over appropriate detention facilities and
imposed no timetable for negotiation, the Court has also
retained jurisdiction of the case. Several Philippine
officials have indicated their concern that, should the Court
believe our two governments are not expeditiously conducting
discussions on detention facilities, it could issue “further
orders” directing the Philippine government to take more
drastic action, up to and including the immediate transfer of
Smith to Philippine authorities.

¶9. (C) To forestall any such actions, and to bolster efforts
by Foreign Secretary Romulo and other long-time supporters of
the VFA in the Philippine government, Mission suggests that
the Department consider presenting a diplomatic note to the
Philippine Embassy in Washington, D.C., that could, among
other points, reaffirm the importance of our security
alliance, acknowledge the Philippine Supreme Court’s Feb. 11
decision, welcome the reaffirmation of the VFA’s
constitutionality, and reiterate that the VFA is a legally
binding agreement.

CLARIFICATION, NOT NEGOTIATION
——————————

¶10. (C) Post believes it to be important that the scope of
future discussions over the detention issue be clearly
delineated. The Philippine Supreme Court decision only
requires action on one existing VFA provision that was left
by the drafters to be defined at some point in the future,
i.e. Art. V section 10, which reads, “(T)he confinement or
detention by Philippine authorities shall be carried out in
facilities agreed on by appropriate Philippine and United
States authorities.” Any broader negotiation or redefinition
of the meaning of the VFA would likely be considered an
entirely new VFA that would require ratification by the
Philippine Senate. Post advises strongly against undertaking
any such negotiation. The proposed diplomatic note is
intended only to acknowledge the fact of the Supreme Court’s
decisions regarding the VFA, and give the USG some breathing
space to come up with a considered response on how we can
best resolve the differing interpretations we now appear to
have with the Philippines over the question of custody after
conviction. Having the Department transmit the note to the

MANILA 00000326 003 OF 003

Philippine Embassy would further remove the issue from the
intense glare of publicity here in the Philippines, where the
LCpl Smith case remains highly inflammatory at every level of
society. The perception that only the Embassy is handling the
issue increases the likelihood that we will face the kind of
demonstrations and protests that have marked earlier
high-profile phases of the LCpl Smith case.

PROPOSED DIPLOMATIC NOTE
————————

¶11. (U) Suggested text for a diplomatic note to the
Philippine Embassy is attached for interagency consideration:

The Department of State presents its compliments to the
Embassy of the Republic of the Philippines and takes note of
the Philippine Supreme Court decision in the case of Suzette
Nicolas y Sombilon v. Alberto Romulo et al, promulgated
February 11, 2009. The Department welcomes the Supreme
Court’s reaffirmation of the constitutionality of
U.S.-Philippine Visiting Forces Agreement. The United States
considers the VFA a legally binding document with the force
of a treaty that is essential to the successful
implementation of our bilateral security alliance. The
Department and other relevant agencies will carefully review
all the elements of the decision, including the issue of
detention.

The Department of State avails itself of this opportunity to
renew to the Embassy of the Republic of the Philippines the
assurances of its highest consideration.
KENNEY

   

 

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