Oct 262014
 

http://wikileaks.org/cable/2009/09/09MANILA2000.html#
Reference ID Created Released Classification Origin
09MANILA2000
2009-09-18 07:31
2011-08-30 01:44
CONFIDENTIAL
Embassy Manila

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TO RUEHC/SECSTATE WASHDC IMMEDIATE 5224
INFO RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS IMMEDIATE
RUEAIIA/CIA WASHDC IMMEDIATE
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C O N F I D E N T I A L SECTION 01 OF 03 MANILA 002000

SIPDIS

E.O. 12958: DECL: 09/16/2019
TAGS: PREL PGOV MARR RP
SUBJECT: SENATORS CALL FOR VFA RENEGOTIATION

REF: MANILA 1843 (VFA HEARING)

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

SUMMARY
——-

¶1. (C) On September 14, seven Philippine Senators introduced
a resolution calling on the Arroyo administration to
renegotiate the U.S.-Philippine Visiting Forces Agreement
(VFA). The seven Senators are important legislators,
including the Chair and Co-Chair of the Legislative Oversight
commission of the VFA (LOVFA). The resolution, which has not
been debated or voted on by the full Senate, constitutes an
expression of sentiment and does not impose any binding
obligation on the Philippine government, which has publicly
supported the VFA since a controversial article appeared in
the New York Times in August (reftel). While we believe the
declaration is primarily motivated by election-related
politics, even the generally pro-U.S. Senate moderates who
signed onto the resolution have cited their concern that the
VFA does not clearly define custody provisions in case a
convicted U.S. military member exhausted all judicial
appeals. Post would welcome an internal review by USG
lawyers of the VFA’s custody provisions. If so authorized,
Mission can engage in quiet discussions with select
Philippine officials to clarify the custody provisions,
without opening up the broader VFA to renegotiation. End
summary.

BACKGROUND
———-

¶2. (C) Critics of the VFA turned out in force for an August
27 oversight hearing chaired by one of the Philippines’ most
strident and thorny politicians, Senator Miriam Defensor
Santiago (reftel). Santiago convened the hearing in response
to a New York Times article that stated that the U.S.
Department of Defense had decided to extend the deployment of
the 600-member Joint Special Operations Task Force
Philippines (JSOTF-P). The story received widespread
negative coverage in the Philippines, prompting Arroyo
administration officials to defend JSOTF-P’s mission in the
face of questions from legislators and other critics about
the constitutionality of the Task Force’s deployment and U.S.
intentions. The Ambassador and other Mission members worked
closely with Philippine government officials to help them
craft a strong defense of our bilateral security pact, and
gave extensive press interviews to counter misperceptions
about U.S. intentions fostered by leftist activists (reftel).

RESOLUTION EXPRESSES CONCERNS
—————————–

¶3. (U) The main argument of the resolution introduced on
September 14 (full text in para 6) is that the GRP should
renegotiate or terminate the VFA because:

— The VFA fails to specify the period of stay of visiting
forces and to define what activities they can engage in;

— An academic article by a former JSOTF-P commander
discussed a theoretical possibility of U.S. involvement in
combat operations;

— The New York Times article (reftel) implied that “the main
purpose of the U.S. troops is not to engage in joint military
exercises, but to maintain the U.S. global war on terror,
which is nowhere mentioned in the VFA;”

— There are reasons to doubt the constitutionality of the
VFA.

MODERATES ENDORSE, WITH RESERVATIONS
————————————

¶4. (C) Several of the senators who support the resolution are
long-time and vocal opponents of the VFA and any U.S.
military presence. Sens. Joker Arroyo and Francis Pangilinan
both wrote unambiguously negative anti-VFA sentiments next to
their signatures indicating their desire for immediate
abrogation of the agreement. However, two more moderate
senators who are generally supportive of the U.S.-Philippine
security relationship penned less comprehensive reservations.
LOVFA Co-Chair Sen. Rodolfo Biazon expressed “reservations
on some provisions” of the resolution, while Sen. Gordon

MANILA 00002000 002 OF 003

wrote that his concern is the criminal jurisdiction for
accused servicemen and that “otherwise I favor retention of
the VFA.” The final two Senators, Gregorio Honasan and
Panfilo Lacson, did not append any comments.

COMMENT
——-

¶5. (C) We believe that the declaration is primarily motivated
by election-related politics. Santiago and most (if not all)
of the authors of the resolution are running for reelection
to the Senate or election to other offices in May 2010.
Santiago and her colleagues are focused primarily on popular
concerns that U.S. forces could engage in combat, or that the
USG would establish permanent bases in the Philippines; these
prospects hit a raw nerve with many Filipinos. Nevertheless,
there is an issue nagging even Senate moderates: the VFA does
not clearly specify where and under what circumstances
American military personnel who are sentenced to imprisonment
by a Philippine court would serve their sentences if all
appeals prove unsuccessful. Post would welcome a review by
USG lawyers to determine the best approach we can take to
clarify the custody provisions. Following such a review,
Mission would aim to establish this clarification through
quiet discussions that would allow us to reach a common
understanding with the Philippine government without the need
to formally renegotiate the entire VFA. End Comment.

TEXT OF RESOLUTION
——————

¶6. (U) Begin text of resolution.

FOURTEENTH CONGRESS OF THE REPUBLIC OF THE PHILIPPINES

Third Regular Session

September 14, 2009

SENATE

PS Res. No. 1356

Introduced by Senators Miriam Defensor Santiago, Rodolfo G.
Biazon, Joker P. Arroyo, Richard J. Gordon, Gregorio B.
Honasan II, Panfilo M. Lacson and Francis N. Pangilinan

RESOLUTION EXPRESSING THE SENSE OF THE SENATE THAT THE
DEPARTMENT OF FOREIGN AFFAIRS SHOULD SEEK TO RENEGOTIATE THE
VISITING FORCES AGREEMENT WITH THE UNITED STATES, AND IN CASE
OF DENIAL, SHOULD GIVE NOTICE OF TERMINATION OF THE VFA

WHEREAS, the treaty-making power is shared by the President
with the Senate, under the constitutional provision that:
“No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all
the Members of the Senate.” (Article 7, Section 21);

WHEREAS, although the VFA calls itself a “visiting”
agreement, it has been in force for some 10 years;

WHEREAS, the fatal flaw of the VFA is the failure to specify
the period of stay of visiting forces, and the failure to
define what are the “activities” that they can engage in
while in Philippine national territory;

WHEREAS, as early as 2004, the pretense that US troops are
intended only to train RP soldiers and to conduct joint
military exercises, was belied in an article by the first
commander of the Joint Special Operations Task Force
Philippines, Col. David Maxwell, who wrote: “However, a
correct reading of the Philippine Constitution reveals that
it prohibits only the stationing of foreign forces in the
Philippines. The Constitution does not prohibit combat
operations and provides an exception to this if there is a
treaty in force and a treaty has been in force between the
two countries since 1951.” (“Operation Enduring Freedom –
Philippines: What Would Sun-Tzu Say?” US Army Combined Arms
Center, Military Review, May-June 2004);

WHEREAS, on 18 June 2002, the same Col. Maxwell was also
quoted by the Los Angeles Times, as saying that the Task
Force was conducting operations “under the guise of an
exercise.” (“Rebels Shoot at US troops in the Philippines,”
by John Hendren);

WHEREAS, recently, on 21 August 2009, the New York Times

MANILA 00002000 003 OF 003

reported: “Defense Secretary Robert M. Gates has decided to
keep an elite 600-troop counterinsurgency operation deployed
in the Philippines despite pressure to reassign its members
to fulfill urgent needs elsewhere, like in Afghanistan or
Iraq, according to Pentagon officials … The high-level
attention given to the future of the force, known as the
Joint Special Operations Task Force Philippines;”

WHEREAS, in the same news story, Pentagon Press Secretary
Geoff Morrell is quoted as saying: “While we have made real
progress against international terrorist groups there,
everyone believes they would ramp back up their attacks if we
were to draw down,” implying that the main purpose of the US
troops is not to engage in joint military exercises, but to
maintain the US global war on terror, which is nowhere
mentioned in the VFA;

WHEREAS, in the 2009 case of Nicolas v. Romulo, the Supreme
Court upheld the constitutionality of the VFA, on the ground
that it has been “recognized as a treaty by the other
contracting state,” which is a requirement of the Philippine
Constitution. (Article 18, Section 25);

WHEREAS, the RP Senate submits that the US has NOT recognized
the VFA as a treaty, because the US Senate has never given
its advice and consent to the VFA; instead, the US President
merely transmitted to the US Congress the VFA and all other
executive agreements, to comply with the Case-Zablocki Act;

WHEREAS, this American law requires the US President through
the Secretary of State, to transmit to the US Congress
international agreements entered into by the US government,
which are not characterized as treaties;

WHEREAS, the ruling in Nicolas that the US has recognized the
VFA as a treaty, is contradicted by the language of the US
law itself, which refers only to international agreements
which are not characterized as treaties;

WHEREAS, in Nicolas, the Court adopted the theory that the
VFA merely implements the RP-US Mutual Defense Treaty; but
nowhere in the VFA (1998) is there any mention of the MDT
(1951), both of which are separated in time by almost 50
years;

WHEREFORE, BE IT HEREBY RESOLVED, that it is the sense of the
Senate that the Department of Foreign Affairs should seek to
renegotiate the Visiting Forces Agreement with the United
States, and in case of denial, should give notice of
termination of the VFA.

Adopted,

/s/
MIRIAM DEFENSOR SANTIAGO
Chair
Legislative Oversight on Visiting Forces Agreement

/s/
RODOLFO G. BIAZON
Co-Chair, LOVFA

/s/
JOKER P. ARROYO

/s/
GREGORIO B. HONASAN

/s/
PANFILO M. LACSON

/s/
FRANCIS N. PANGILINAN

/s/
RICHARD J. GORDON

END TEXT
KENNEY

   

 

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