Oct 042014
 

http://wikileaks.org/cable/2009/02/09MANILA307.html#
Reference ID Created Released Classification Origin
09MANILA307
2009-02-11 10:11
2011-08-30 01:44
CONFIDENTIAL
Embassy Manila

VZCZCXRO8278
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DE RUEHML #0307/01 0421011
ZNY CCCCC ZZH
O 111011Z FEB 09
FM AMEMBASSY MANILA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3189
INFO RUEHNH/AMCONSUL NAHA IMMEDIATE 0127
RHHMUNA/CDRUSPACOM HONOLULU HI IMMEDIATE
RUEKJCS/JOINT STAFF WASHINGTON DC IMMEDIATE
RHEHNSC/NSC WASHDC IMMEDIATE
RUEKJCS/SECDEF WASHDC IMMEDIATE
C O N F I D E N T I A L SECTION 01 OF 03 MANILA 000307

SIPDIS

E.O. 12958: DECL: 02/10/2019
TAGS: PREL MARR KCRM CASC RP
SUBJECT: SUPREME COURT UPHOLDS VFA, BUT RULES MARINE LCPL SMITH SHOULD BE IN PHILIPPINE CUSTODY

REF: MANILA 246 (SUPREME COURT POISED TO RULE ON
CONSTITUTIONALITY OF VFA)

Classified By: Acting Deputy Chief of Mission Larry L. Memmott, for rea
sons 1.4 (b) and (d).

¶1. (C) SUMMARY. The Philippine Supreme Court ruled February
11 that the Visiting Forces Agreement, which governs the
presence of U.S. military personnel in the Philippines, is
constitutional. However, it also ruled that an agreement
between the Ambassador and the Secretary of Foreign Affairs
that permitted U.S. Marine Lance Corporal Daniel J. Smith to
be transferred to U.S. custody after his December 2006
conviction for rape was contrary to the VFA. The court
decision states that under the VFA, Smith should have been
detained by Philippine authorities after his conviction and
orders the Philippine government to “forthwith negotiate with
U.S. representatives for appropriate agreement on detention
facilities under Philippine authorities.” The decision
states clearly that for the time being, the status quo will
prevail and Smith should remain in U.S. custody until
negotiations on mutually acceptable detention facilities are
completed. The Supreme Court also directed the Court of
Appeals, which is considering Smith’s appeal of the December
2006 guilty verdict, to resolve the case without further
delay.

¶2. (C) The Ambassador and senior mission members reached out
to Philippine government officials, who were clearly
surprised by the custody verdict. A top Cabinet official
told the Ambassador he was unaware of the ruling, and said he
would raise it with President Arroyo. Senior officials at
the Departments of Foreign Affairs and Interior and Local
Government, who have the lead on the Visiting Forces
Agreement and Smith’s custody case, said that they believed
the 2007 Kenney-Romulo agreement on Smith’s custody was still
valid, and would recommend that the Philippine Solicitor
General file a motion for reconsideration with the Supreme
Court on its finding on Smith’s detention. Given the intense
press and public attention the Smith case has engendered,
Mission requested that the Philippine National Police
increase its presence around the Embassy in case of
demonstrations. We also posted a brief press statement in
response to local press queries (guidance attached in paras.
10-11) Mission will continue to sound out senior Philippine
officials to ascertain the government’s response to the court
decision, with the Ambassador slated to meet Foreign
Secretary Romulo February 11, and reiterate that LCPL Smith
will remain in USG custody until a mutually acceptable
resolution is reached. END SUMMARY.

———-
BACKGROUND
———-

¶3. (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 and was sentenced to a
maximum of 40 years in prison. Smith’s appeal of the
conviction has been pending before the Court of Appeals since
October 2007. Separate from the criminal case, the Supreme
Court heard oral arguments September 19, 2008, regarding
whether the Philippine government erred in transferring Smith
to U.S. custody after the trial court found him guilty.
Under the interpretation of the Visiting Forces Agreement
(VFA) shared by the U.S. and Philippine governments, Smith
was in U.S. custody on Chancery grounds from his arrest in
November 2005 until his December 2006 conviction.

¶4. (C) Upon the December 2006 trial court judge’s decision
convicting Smith and ordering that he be immediately
transferred to Philippine facilities, the Philippine National
Police took custody of Smith, transporting him over the
Mission’s objections to a Philippine jail. The Mission
strenuously argued with Philippine government officials that
the judge’s order violated 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, and would strain a very productive
bilateral relationship. The VFA provides that “custody” of a
defendant will remain with the U.S. “until completion of all
judicial proceedings,” which the Philippine government and
U.S. Mission agree includes any appeal process. After weeks
of intense negotiations, on December 19, 2006, Secretary of
Foreign Affairs Romulo and the Ambassador signed an agreement
transferring custody of Smith to the U.S. Mission. Smith has
been in U.S. custody continuously since that time. Several
petitioners, including various leftist organizations, filed

MANILA 00000307 002 OF 003

petitions contesting Smith’s transfer to U.S. custody,
alleging that the Visiting Forces Agreement was
unconstitutional. The petitions wound their way through the
courts and were consolidated in the present case before the
Supreme Court.

————————————–
SUPREME COURT RULES VFA CONSTITUTIONAL
————————————–

¶5. (C) On February 11, in a 9-4 decision, with two justices
abstaining, the Supreme Court:

— Upheld the constitutionality of the VFA;

— Found that the Romulo-Kenney agreement giving custody of
Smith to the United States was not in accord with the VFA;

— Directed that the Secretary of Foreign Affairs “forthwith
negotiate” with the U.S. for an “appropriate agreement on
detention facilities under Philippine authorities as provided
in article V, section 10 of the VFA, pending which the status
quo shall be maintained until further orders by this Court”;

— Retained jurisdiction in the case and may claim the right
to review any agreement negotiated by Department of Foreign
Affairs (DFA) and U.S. to verify it is in accordance with the
constitutionally valid VFA;

— Imposed no specific timetable for the negotiation;

— Interpreted the VFA to mean that “custody” turns into
“detention” upon conviction; the decision does not address
the argument that custody lasts “until the end of judicial
proceedings” and does not define “end of judicial
proceedings”;

— Directed the Court of Appeals to resolve without delay
Smith’s appeal of his conviction;

— Repeatedly referred to the U.S. having “faithfully”
complied with the VFA;

Four justices dissented from the opinion, saying that the VFA
was unconstitutional, with Chief Justice Puno calling the
agreement a “slur on our sovereignty (which) cannot continue.”

——————-
GOVERNMENT RESPONSE
——————-

¶6. (C) The Ambassador and senior mission members reached out
to key Philippine government officials, who were clearly
surprised by the verdict. Philippine Cabinet Executive
Secretary Eduardo Ermita told the Ambassador that he was
unaware that the decision had been promulgated or that it
called for a negotiation of Smith’s transfer to Philippine
detention. However, he advised the Ambassador that he was
currently meeting with President Arroyo and he intended to
raise the matter with her. The Ambassador is slated to have
a private meeting with Foreign Secretary Alberto Romulo
February 12 to discuss this and other key issues.

¶7. (C) The immediate reactions of senior officials at the DFA
and the Department of Interior and Local Government (DILG),
who have the lead on the VFA and Smith’s custody case,
indicated they believed the 2007 Kenney-Romulo agreement on
Smith’s custody was still valid, and would recommend that the
Philippine Solicitor General appeal the Supreme Court’s
finding regarding Smith’s detention. DFA U/S Edilberto Adan,
who heads the Philippine VFA commission and has been a
reliable defender of the VFA, said that he believed the
Philippine and U.S. governments had a shared consensus that
Smith should remain in U.S. custody until the conclusion of
all judicial proceedings, including appeals up to and through
the Supreme Court. He said he would support a recommendation
that the Solicitor General ask the Supreme Court to
reconsider its decision on Smith’s detention. DILG U/S
Marius Corpus mirrored Adan’s views.

¶8. (C) Acting A/S Lori Yparraguirre, head of American Affairs
at the Department of Foreign Affairs who is close to Foreign
Secretary Romulo, was more measured in her response, saying
that DFA was working on a public statement on the Supreme
Court decision that she hoped would be neutral in tone, so as
not to hinder the government’s room for maneuver. However,
she did not echo the stronger comments of the two under
secretaries.

MANILA 00000307 003 OF 003

———————————-
SECURITY MEASURES, PRESS STATEMENT
———————————-

¶9. (C) Given the intense press and public attention the Smith
case has engendered, Mission requested that the Philippine
National Police increase its presence around the Embassy in
case of demonstrations. Post is prepared for possible vocal
demonstrations at or near the U.S. Embassy with related media
coverage.

¶10. (U) In response to numerous media queries, the Embassy
issued a brief statement February 11 as follows:

Philippine Supreme Court Decision on Visiting Forces Agreement

The U.S. Embassy has taken note of the Supreme Court decision
regarding the Visiting Forces Agreement (VFA). As it
concerns important legal issues, we have referred it to
United States legal experts in Washington.

¶11. (U) The following if-asked guidance was also prepared:

— The Visiting Forces Agreement (VFA) has provided the sole
framework for U.S.-Philippine cooperation on legal cases
involving visiting U.S. military personnel.

If asked about whereabouts of Daniel Smith:

— Daniel Smith remains in confinement on the grounds of the
main U.S. Embassy compound.

——-
COMMENT
——-

¶12. (C) While the Supreme Court decision clearly revalidates
the constitutionality of the VFA, it also provides a new —
and problematic — interpretation of the custody provisions
of the VFA. The Ambassador will continue to reach out to key
Philippine officials, including Foreign Secretary Romulo on
Feb. 11, to ascertain Philippine government views and next
steps, and discuss the implications of the decision, not only
for Smith but for other current and future American military
personnel. At this time, however, Post does not anticipate
any immediate government demands for the transfer of Smith to
Philippine custody, and will underscore that LCPL Smith will
remain in U.S. custody until a mutually acceptable resolution
is found to the issue of custody for defendants under the VFA.
KENNEY

   

 

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