ALLEGED RAPE CASE: GRP REQUEST FOR CUSTODY

C O N F I D E N T I A L SECTION 01 OF 04 MANILA 005348 SIPDIS STATE FOR EAP, EAP/MTS, L/EAP DOD FOR ISA/ALLEN PACOM ALSO FOR FPA E.O. 12958: DECL: 11/16/2015 TAGS: PREL MARR PHUM ASEC KCRM RP SUBJECT: ALLEGED RAPE CASE: GRP REQUEST FOR CUSTODY REF: STATE 208859 AND PREVIOUS Classified By: CDA Paul W. Jones for reasons 1.4 (b) and (d) ¶1. (C) Summary/Comment: In apparent response to a November 17 hearing called by the Congressional Oversight Committee for the Visiting Forces Agreement (VFA),Department of Foreign Affairs (DFA) officials called in Charge on November 16 to present diplomatic notes asserting GRP positions and interpretations of the VFA on: custody (requesting that the suspects be turned over to Philippine authorities "as soon as practicable"); physical presence of the suspects (that they not leave the Philippines); and, cooperation in the investigation (that the DFA will forward U.S. requests for access to witnesses and evidence to appropriate authorities and requests copies of identification documents of suspects). Charge closely questioned them regarding the rationales for each position and interpretation. By mutual agreement, there was no media present outside the meeting and DFA officials said they would not comment on the meeting to the media. However, the officials said it was possible that Malacanang would instruct the VFA Commission Executor Director -- who has been summoned to the Congressional hearing -- to convey the contents of the Diplomatic Notes to the Oversight Committee, in public or executive session, if indeed Malacanang authorizes him to appear under the controversial Presidential Order 464. At the conclusion of the session, CDA conveyed that all three diplomatic notes would be referred to Washington for formal response. He emphasized the urgency of US access to witnesses and evidence, noting that some progress had been made already. (Note: NCIS officials interviewed the driver of the van on November 16 and will meet on November 17 with local prosecutors handling the case to coordinate on access to other suspects and physical evidence. End note). The GRP's motivation for conveying these positions and interpretations is clearly intense political pressure. Indeed, many of the interpretations match exactly positions taken by opposition politicians and commentators. It is not clear whether the GRP is committed to these positions/interpretations, or simply wants to transfer the pressure from itself to the U.S. End Summary/Comment ¶2. (C) Assistant Secretary of Foreign Affairs for American Affairs Ariel Abadilla telephoned CDA the evening of November 15. Noting the decision that day by the Congressional VFA Oversight Committee to hold hearings on the VFA in light of the case of alleged rape involving US marines, Abadilla requested CDA appear at DFA to receive Philippine positions on the case on November 16. When asked, Abadilla said he could not describe the positions, as they were still being drafted. Charge requested that the meeting be conducted without media attention, to which Abadilla agreed early November 16. At the meeting, Abadilla conveyed three diplomatic notes (see paras 10-12). The salient points in each are: -- No. 05-2662 : "in view of the non-receipt of a formal request for initial United States' custody over the United States military personnel...and the extraordinary nature of the case, being a heinous crime, the Department requests the Embassy ...to turn over custody...as soon as practicable" and looks "forward to discussions with the Embassy on arrangements on said confinement or detention" of the US military personnel; --No. 05-2661: "the U.S. military personnel involved in said alleged rape should remain in the Philippines for the duration of the investigative and judicial proceedings" and that the "one-year period referred to in Paragraph 6, Article V of the Agreement shall commence upon the acquisition of jurisdiction over the person of the accused by the competent court"; -- No. 05-2660: "the Department requests the Embassy...to provide authenticated copies of the personal identify card of similar papers of the United States military personnel involved in the alleged rape..." ¶3. (C) Custody: CDA noted that the US military authorities on the scene on November 2 had requested and obtained custody from representatives of the Subic Bay Metropolitan Authority, adding that the VFA did not require any "formal" request. He acknowledged the right of the GRP to invoke the "extraordinary" nature clause of the VFA to request custody, and promised that the Embassy would refer this request to Washington for full consideration. J. Eduardo Malaya, Executive Director of the DFA's Office of Legal Affairs, asserted the GRP's belief that there was no "proper" request from the U.S. for custody and that the Philippine authorities who may have been on the scene did not have authority to waive Philippine custody. He claimed that the SBMA authorities had "no recollection" of any US request for custody. He claimed further that State Chief Prosecutor Zuno had instructed the Olangapo City prosecutor's office to take the suspects into custody on November 2. Malaya insisted that any request by the U.S. for custody should have "ideally" been done through "proper channels." Malaya also clarified that the Philippine request now for custody was based both on the ground of lack of a "formal" request and on the "extraordinary" nature of the case. Abadilla noted that the VFA requires a "formal notification" for the GRP to gain access to US personnel, and therefore, on the basis of reciprocity, the U.S. should have a similar need for a "formal" request to retain or obtain custody. ¶4. (C) One year rule: Abadilla clarified that the "jurisdiction" period initiating the one year rule would begin with filing of criminal charges in a court and arraignment of suspects. He described this as a legal interpretation based on Philippine rules of court. ¶5. (C) Physical presence: Malaya said that the basis for the Philippine position that the suspects not leave the country was threefold: -- Philippine authorities exercise jurisdiction, therefore suspects should "at all times" be available to Philippine authorities during the investigation, prosecutorial, and judicial phases; -- if the accused were not continuously present, it would be "difficult to conduct "marathon hearings" and therefore jeopardize the one year rule (Note: Abadilla explained that the Department of Justice plans to request that the Supreme Court -- which in the Philippines also administers the court system -- authorize "marathon hearings" in this court case to speed up the process in order to meet the one year rule. end note); and, -- under Philippine law, bail would usually not be available in cases where the evidence was strong. ¶6. (C) CDA noted that the suspects were not subject to criminal charges and should continue to be presumed innocent. CDA read to the DFA officials the provisions in Para 6 of Article V of VFA requiring only that US authorities ensure that the US military personnel in such cases be available "in time" for such proceedings, and confirmed that the US side would fulfill this responsibility. He asked for assurances (as instructed in reftel) that the individuals would be returned to US custody once the purpose for which they had been made available had been satisfied or at the end of the business day, whichever occurs first. Abadilla and Malaya took note of this request, and agreed that the case remains now under investigation and that the individuals are suspects, not accused. Malaya commented that the "intent" of the VFA was that suspects should remain in the Philippines once the "court acquires jurisdiction." CDA noted that the VFA did not differentiate between the handling of such individuals during the investigative and judicial phases of such cases. (Note: Embassy will follow up the request for assurances on the return of custody by diplomatic note. end note) ¶7. (C) IDs: Malaya said that the request for copies of military IDs or other IDs came from the private attorney of the alleged victim. CDA queried why the verification of identify was not handled by the relevant authorities conducting the preliminary investigation or the court, rather than now at the request of the attorney. (Comment: We wonder if the request for this identification may be more easily to prevent the suspects from leaving the country. End comment) ¶8. (C) CDA underscored USG intention to cooperate under the terms of the VFA, expressed appreciation for urgent efforts to make witnesses and physical evidence available to NCIS agents (noting that we had first made those requests on November 3),reiterated USG commitment to pursuing its own investigation, and encouraged the DFA officials that we handle our communications privately rather than through the media. ¶9. (C) The DFA representatives, including the Press Spokesman, agreed that the DFA would issue no statement about the diplomatic notes or the November 16 discussion. No media were present before or after the media. ¶10. (SBU) Text of Diplomatic note No. 05-2662 quote The Department of Foreign Affairs presents its compliments to the Embassy of the United States of America and has the honor to refer to Article V of the Agreement between the Republic of the Philippines and the United States of America Regarding the Treatment of United States Armed Forces Personnel Visiting the Philippines ("the Agreement"),in relation to the conduct of investigations of the alleged rape that occurred in Subic on November 1, 2005. Pursuant to the exercise by the Philippines of its primary right of jurisdiction over the case as conveyed through this Department's Note Verbale No. 05-2579 and in view of the non-receipt of a formal request for initial United States' custody over the United States military personnel involved in the alleged rape relative to Article V, Paragraph 6 of the Agreement and the extraordinary nature of the case, being a heinous crime, the Department requests the Embassy of the United States of America to turn over custody of said U.S. military personnel to Philippine authorities as soon as practicable. Mindful of Article V, paragraph 10 of the Agreement which states that the confinement or detention by Philippine authorities of the U.S. military personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities, this Department and the Philippine Department of Justice look forward to discussions with the Embassy on arrangements on said confinement or detention. The Department... Pasay City, 16 November 2005 end quote ¶11. (SBU) Text of diplomatic note No. 05-2661 quote The Department of Foreign Affairs presents its compliments to the Embassy of the United States of America and wishes to refer to the conduct of criminal proceedings against United States military personnel pursuant to Article V of the Agreement between the Republic of the Philippines and the United States of America Regarding the Treatment of United States Armed Forces Personnel Visiting the Philippines ("the Agreement"). In line with the Philippines' exercise of the primary right of jurisdiction over said case under Article V, paragraphs 1(a) and 3(b) of the Agreement, it is the position of the Philippine Government that the U.S. military personnel involved in said alleged rape should remain in the Philippines for the duration of the investigative and judicial proceedings. Furthermore, paragraph 6 of said Article V obligates United States military authorities, in part, to make available personnel... for any investigative or judicial proceedings," and "in the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph." It is the understanding of the Philippine Government that the one-year period referred to in Paragraph 6, article V of the Agreement shall commence upon the acquisition of jurisdiction over the person of the accused by the competent court. The Department... Pasay City, 16 November 2005 end quote ¶12. (SBU) Text of diplomatic note No. 05-2660 quote The Department of Foreign Affairs presents its compliments to the Embassy of the United States of America and, with reference to the latter's Note Verbale No. 1576 dated 14 November 2005, has the honor to inform the Embassy that the Department has forwarded the Embassy's request to the National Bureau of Investigation for coordination with appropriate agencies and individuals, pursuant to Article V, paragraph 7, of the Agreement between the Republic of the Philippines and the United States of America Regarding the Treatment of United States Armed Forces Personnel Visiting the Philippines, on mutual assistance in providing for the attendance of witnesses and in the collection and production of evidence. Pursuant to the said provision on mutual assistance in evidence gathering, this Department requests the Embassy of the United States of America to provide authenticated copies of the personal identify card or similar papers of the United States military personnel involved in the alleged rape which occurred on 1 November in Subic, and any individual or collective document issued by the U.S. military authority authorizing their travel to the Philippines. The Department ... Pasay City, 16 November 2005 end quote Jones