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