Oct 252014

Reference ID Created Released Classification Origin
2009-02-27 09:28
2011-08-30 01:44
Embassy Manila

DE RUEHML #0438/01 0580928
O 270928Z FEB 09
C O N F I D E N T I A L SECTION 01 OF 03 MANILA 000438


E.O. 12958: DECL: 02/26/2019


Classified By: A/DCM Thomas B. Gibbons, reasons 1.4 (b) and (d)

¶1. (C) SUMMARY: The Arroyo Administration is showing
increasingly strong public support for the Visiting Forces
Agreement, despite continued calls from some Filipino
legislators and activists for abrogation of the Agreement.
On February 25, the Philippine government filed a motion
asking the Philippine Supreme Court to “clarify” its February
11 decision ordering the Philippine government to immediately
negotiate with the U.S. detention facilities under Philippine
authorities for Marine LCpl Smith, convicted in 2006. In
close consultation with the Ambassador, Secretary of National
Defense Gilberto Teodoro and officials from the Department of
Foreign Affairs have publicly defended the Visiting Forces
Agreement, emphasizing the extensive benefits the Philippines
receives from its strong security relationship with the U.S.
But the current breathing space is only temporary, as the
Philippine Supreme Court is unlikely to agree to reconsider
its decision, and will continue to press the Philippine
government to reopen discussions with the U.S. on appropriate
detention facilities for Smith under Philippine authorities.
Meanwhile, with two of the largest U.S.-Philippine military
bilateral exercises due to begin in April and May, and
thousands of U.S. forces visiting the Philippines, we believe
it is time to put in motion an incremental course of action
to clarify custody arrangements under the Visiting Forces
Agreement in a way that does not open renegotiation of the
broader nature of the Agreement. END SUMMARY.


¶2. (C) In the two weeks following the Philippine Supreme
Court’s February 11 decision that, although the Visiting
Forces Agreement (VFA) was constitutional, Marine Lance
Corporal Smith should be returned to Philippine custody
(reftel), this issue has been front page news on a daily
basis. However, despite a generally critical air in leading
newspapers and regular calls for abrogating the VFA, several
columnists have opined that, while the current situation
surrounding LCpl Smith is problematic, greater attention
should be directed to clarifying the language of the VFA to
prevent a recurrence of the legal confusion that has
surrounded the Smith case.

¶3. (C) Along with media outlets and some leftist
organizations that continue to fan controversy over the VFA,
the Philippine Senate announced on February 16 that it would
hold a hearing February 19 regarding the custody of LCpl
Smith. The meeting was canceled without notice, but
opposition senators did file a resolution calling for the
termination of the VFA for violating the Philippine
Constitution. Currently 8 out of 23 senators have expressed
support for the resolution, but it appears unlikely that a
majority of the Senate will take that position.


¶4. (C) While opposition legislators have taken a political
stance against the VFA, the Arroyo Administration has taken a
steadfast, if cautious, approach in voicing support for the
agreement and the provision of the Supreme Court’s decision
requiring discussions on specific language regarding custody
and detention. Secretary of National Defense Gilberto
Teodoro repeatedly has emphasized the importance of the
U.S.-Philippine defense relationship in his media encounters.

¶5. (C) The Department of Foreign Affairs (DFA) also has
been proactive in publicizing the benefits that
military-military cooperation under the VFA provides the
Philippines. The Embassy and DFA collaborated on a VFA fact
sheet called “VFA Helps Build A Strong Republic” for top
Philippine officials to use in media encounters, and leading
publications carried information from the DFA in articles on
February 26. Underscoring the security of the Philippines,
the DFA stated the VFA is part of the Philippines’ network of
alliances in the Asia-Pacific region and is an effective
deterrent against potential aggressors. The press reports
were balanced, citing the DFA’s assertion that the VFA is
“indispensable,” and including detailed training, equipment,
civil-military operation, and humanitarian/disaster relief
assistance that the U.S. has funded and that was possible
because of the existence of the VFA.

MANILA 00000438 002 OF 003

¶6. (C) Senior Philippine legal officials have stated that
the Supreme Court’s February 11 decision would not be final
until all appeals have been exhausted. On February 25, the
Philippine Solicitor General filed a motion before the
Supreme Court arguing LCpl Smith’s detention by U.S.
authorities was permitted by the VFA. The motion asked the
Supreme Court to declare that the December 2006 agreement
between the Ambassador and Foreign Secretary Romulo giving
the U.S. Embassy custody over Smith throughout the completion
of all judicial proceedings — including the appeals process
— was in accord with the VFA. Leftist activists who filed
the original challenge to the VFA with the Supreme Court also
filed a motion for reconsideration of the constitutionality
of the VFA February 26. However, even if expeditiously
addressed by the Supreme Court, a motion for reconsideration
effectively could delay the Supreme Court decision by several
weeks or more.


¶7. (C) Important upcoming U.S-Philippine bilateral annual
exercises such as Balikatan and Combined Afloat Readiness and
Training (CARAT), scheduled for April and May respectively,
are predicated on the existence of the VFA. Thousands of
U.S. and Philippine troops will participate in the exercises,
which will focus on enhancing interoperability, military
readiness, and civil-military operations. The Mission is
working behind the scenes to ensure the exercises proceed as
planned, and the Ambassador has engaged Philippine officials
both publicly and privately on the VFA issue, reiterating the
importance to both nations of the Agreement.

¶8. (C) In a conversation with Secretary Teodoro February
26, Teodoro confided to the Ambassador that senior Philippine
officials recognized the obligation the USG has to ensure its
citizens are well treated and said that the Arroyo
Administration had to abide by the Agreement, as the
credibility of the Philippine government was at stake. At
the same time, Teodoro suggested that timely movement toward
clarifying language in the VFA regarding custody and
detention would help convince critics that the U.S.
government was an equal partner in the Agreement. Teodoro
worried that a protracted lack of response from the United
States with respect to the Supreme Court decision could
result in the Supreme Court taking additional unhelpful steps.


¶9. (C) Philippine officials are worried about the status of
the VFA, given the public mood and rumblings by the
Philippine Senate. 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, the Court also retained
jurisdiction over the case. With two major bilateral
military exercises only a month away, we need to avoid the
perception that we are ignoring the Supreme Court. The Court
clearly instructed the Philippine government to commence
negotiations with us on a suitable Philippine place of
detention for LCpl Smith. We have told the Philippine
government that Post is not empowered to commence such
negotiations and has referred the decision to USG legal
authorities for review. This approach, as well as the
filings by both the Solicitor General and the opposing party
for reconsideration, provide a brief window to begin
engagement, but the window will not remain open indefinitely.

¶10. (C) Our fundamental priority remains the safety of LCpl
Smith and ensuring that we retain custody of him at the U.S.
Embassy. We do not want to take any action that may
adversely affect his pending appeal. Still, the Smith case
remains highly sensitive at every level of Philippine society
and with the Supreme Court likely to uphold its previous
decision, we support an incremental approach that
demonstrates to the Philippine government and public that the
United States appreciates the importance of this issue and
respects — if not necessarily agrees with — the views of
the Philippine Supreme Court. While Post advises strongly
against broader discussions on the VFA that may be construed
as a renegotiation of the VFA requiring ratification by the
Philippine Senate, it is imperative that we show a
willingness to work with the Philippine government to arrive
at a mutually acceptable interpretation of the VFA regarding
custody and detention.

MANILA 00000438 003 OF 003

¶11. (C) Recognizing that we are not the USG’s legal experts
on VFA issue, we offer the following potential points for
consideration as the basis for a diplomatic note or
discussions with the Philippine Embassy in line with this
incremental approach. Having the Department transmit the
information to the Philippine Embassy would further distance
the issue from intense public scrutiny here, though we expect
the details of any conversation to be made public. The
perception that Embassy Manila is the locus of “negotiations”
increases the probability that we will face the kind of
demonstrations and protests that have marked earlier
high-profile cases of the Smith case.

— We understand and appreciate the significance of this
issue to the Philippine government, its people, and the
entire country;

— We recognize the importance of the Visiting Forces
Agreement (VFA) and the benefits it provides both our
nations, particularly with regard to security;

— We reiterate that the VFA is an executive agreement that
has the force of a treaty under international law and is
legally binding on the U.S.;

— We welcome the Philippine Supreme Court,s reaffirmation
of the constitutionality of the Visiting Forces Agreement;

— We fully concur with the Philippine government,s
interpretation of the VFA as stated in the Solicitor
General,s Motion for Clarification filed February 25 before
the Philippine Supreme Court asserting that custody of LCpl
Smith resides with U.S. authorities until the end of “all
judicial proceedings”;

— Given our respective governments, mutually shared
interpretation of the VFA, we believe it is essential to
remove inconsistencies perceived by others and clarify the
custody and detention provisions of the VFA through an
exchange of diplomatic notes;

— We recognize that the VFA itself does not specify the
detention facilities to be used upon final conviction of U.S.
personnel at the end of all judicial proceedings;

— We look forward to future bilateral discussions on the
nature of detention facilities to be used should a conviction
be upheld at the end of all judicial proceedings.



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