Oct 042014
 

http://wikileaks.org/cable/2009/02/09MANILA246.html#
Reference ID Created Released Classification Origin
09MANILA246
2009-02-05 10:01
2011-08-30 01:44
CONFIDENTIAL
Embassy Manila

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FM AMEMBASSY MANILA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3081
INFO RUEHNH/AMCONSUL NAHA IMMEDIATE 0125
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 02 MANILA 000246

SIPDIS

E.O. 12958: DECL: 02/05/2019
TAGS: PREL MARR KCRM CASC RP
SUBJECT: SUPREME COURT POISED TO RULE ON CUSTODY OF U.S. MARINE, POSSIBLY RULE ON CONSTITUTIONALITY OF VFA

REF: A. 2008 MANILA 2761 (LANCE CORPORAL SMITH — CASE
SUMMARY)
¶B. 2008 MANILA 2323 (MARINE JUDICIAL CASE:
CONTINUED CLOSE COOPERATION VITAL)
¶C. 2008 MANILA 2163 (SUPREME COURT TO HEAR CUSTODY
ARGUMENTS)

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

¶1. (C) SUMMARY. The Philippine Supreme Court appears poised
to issue a decision next week on whether the Philippine
government acted properly in transferring custody of U.S.
Marine Lance Corporal Daniel J. Smith to the U.S. Mission
following his conviction in December 2006. The custody issue
hinges on the constitutionality of the Visiting Forces
Agreement (VFA), which provides the sole framework for
U.S.-Philippine cooperation on legal issues involving U.S.
military personnel in the Philippines. Senior Philippine
government officials are confident that the Supreme Court
will either reaffirm the constitutionality of the VFA or
refrain from ruling on it, and/or possibly instruct the
government to seek renegotiation of ambiguous VFA provisions
whose validity could be questioned. It is possible, though
unlikely, that the Supreme Court will reverse its previous
ruling and find the VFA unconstitutional. This decision has
long been pending and Embassy has, in coordination with the
State Department’s Office of the Legal Advisor, assisted the
Philippine government with research to bolster its case for
the constitutionality of the VFA. In the unlikely event that
the Supreme Court finds the VFA unconstitutional, the impact
on U.S.-Philippine military relations would be dramatic, a
point we have made to senior Philippine officials, who agree.
We will report once a ruling is issued and will seek
guidance, depending on the ruling, on USG responses. END
SUMMARY.

———-
BACKGROUND
———-

¶2. (C) U.S. Marine Lance Corporal Daniel J. Smith was
convicted by a Philippine trial court in December 2006 of
raping a Filipino woman at Subic Bay in November 2005 and was
sentenced to a maximum of 40 years in prison. Smith
immediately filed an appeal of the conviction and the case
was formally submitted to the Court of Appeals on October 15,
2007, where it has been pending since that time. Separate
from the criminal case, the Supreme Court heard oral
arguments September 19, 2008, regarding whether the
Philippine government erred in transferring custody of Smith
to the U.S. after the trial court found him guilty. The
Supreme Court has yet to issue a decision on that case as
well. Under the terms of the Visiting Forces Agreement
(VFA), Smith has remained in U.S. custody on Chancery grounds
since his arrest in November 2005, and the Embassy community
as a whole has safeguarded Smith’s safety, security, and
welfare, and ensured that Smith’s rights as a U.S. citizen
and the requirements of the VFA are respected.
Statistically, the Smith case was the most reported story in
the Philippines in 2006, garnering front-page space nearly
every day during the trial. It continues to generate
significant political, public, and media attention, and
senior Embassy officials field questions on the case and its
implications for the VFA routinely. Various leftist
organizations have held numerous mostly peaceful
demonstrations near the Embassy in the last three years.

——————————-
SUPREME COURT ADDRESSES CUSTODY
——————————-

¶3. (C) The Philippine Supreme Court has been considering a
civil petition that alleges that the Philippine government
erred and specific government officials abused their
discretion in turning Smith over to the custody of the U.S.
after the trial court found him guilty and ordered that he be
turned over to Philippine authorities. The Supreme Court
held oral arguments September 19, 2008, which turned into
broader discussion of the Embassy’s agreement with the
Department of Foreign Affairs on Smith’s custody, the
constitutionality of the VFA itself, and the presence of U.S.
military personnel on Philippine soil. Following several
procedural delays, the Court issued a resolution February 3,
2009, requiring the parties to submit final briefing
documents within three days. According to the Supreme Court
Clerk, the Court will meet February 10 to decide the case and
could issue a decision as early as that day, though delays in

MANILA 00000246 002 OF 002

the issuance of decisions are not unusual. Sources tell us
the sudden rush to decide the case was prompted by the
imminent retirement of Justice Adolfo Azcuna, an Arroyo
appointee who retires February 13 after reaching the
mandatory retirement age of 70.

————————–
IMPACT OF ADVERSE DECISION
————————–

¶4. (C) A finding of unconstitutionality of the VFA would be
problematic in a number of ways. First, such finding would
nullify the legal basis for the U.S. maintaining custody of
Smith. Accordingly, the United States would be faced with
the decision of whether to transfer custody back to
Philippine authorities. An adverse decision would also
result in a change of status of virtually all U.S. military
personnel and their missions in the Philippines. All U.S.
military personnel currently present in the Philippines with
travel orders issued pursuant to the VFA would lose legal
status and, therefore, potentially would have to leave the
Philippines without some intervening act by the Philippine
government, severely undermining U.S. counterterrorism
efforts. In addition, all training being conducted by U.S.
military personnel would likely cease. Finally, U.S.
military personnel would lose the legal protections of the
VFA against the application of local Philippine law to their
personal conduct while within the Philippines. We note that
in the event of an adverse decision, the Philippine Solicitor
General would almost certainly file a petition for
reconsideration. While such petition would likely be denied,
it could buy some period of time to determine the process
that would follow. Moreover, even in the event of an adverse
decision, there may be some implied “grace period” for
consideration of the impact.

——————————————— ————-
SENIOR GOVERNMENT OFFICIALS CONFIDENT OF POSITIVE DECISION
——————————————— ————-

¶5. (C) Senior Philippine officials at the Department of
Foreign Affairs (DFA) and the Department of the Interior and
Local Government, which oversees the Philippine National
Police and the Philippine prison system, inform us that,
while predicting the outcome of the Supreme Court decision is
a difficult matter, they remain confident that the High Court
will refrain from ruling adversely on the constitutionality
of the VFA. They assure us that key officials in the Arroyo
government clearly understand the repercussions of nullifying
the VFA — not to mention that five Philippine Cabinet
officials would be found in contempt of court for turning
over custody of Smith despite the trial court’s order that he
remain in Philippine custody — and believe justices
understand those repercussions as well. They predict that
the Supreme Court will either reaffirm the constitutionality
of the VFA or sidestep the issue, possibly opting for a
solution that neither validates nor invalidates the VFA, such
as instructing the government to seek renegotiation of
relevant provisions of the VFA that may be ambiguous or
unclear.

——————–
REQUEST FOR GUIDANCE
——————–

¶6. (C) Notwithstanding the favorable predictions of
government officials, the serious repercussions of an adverse
decision raise significant bilateral issues. Depending on
the nature of the Supreme Court ruling, post may require
guidance on the impact on U.S. military activities in the
Philippines in the event of a decision declaring the VFA
unconstitutional, or guidance regarding the physical handling
of Smith in the event Smith is ordered to be returned to
Philippine custody, including appropriate responses to
demands to enter the U.S. compound to take custody of Smith.
Finally, we note that there will likely be vocal
anti-American demonstrations at or near the U.S. Embassy with
related media coverage. Post is prepared to safeguard the
security of Mission personnel and is preparing for the
anticipated barrage of media attention.

KENNEY

   

 

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