SUBIC CASE UPDATE: JANUARY 17

C O N F I D E N T I A L SECTION 01 OF 02 MANILA 000218

SIPDIS

DEPT FOR EAP, EAP/MTS, L/EAP, EAP/PD

E.O. 12958: DECL: 01/17/2016
TAGS: PREL MARR KCRM CASC RP
SUBJECT: SUBIC CASE UPDATE: JANUARY 17

REF: A. MANILA 192

B. MANILA 191

C. MANILA 134 AND PREVIOUS

Classified By: Acting Pol/C Joseph L. Novak for reasons 1.4
(b) and (d).


1. (C) Summary. Local media have begun reporting on the US
Embassy's decision to retain custody of the four Marines
charged with rape in the Philippines. The Marines' defense
attorneys have submitted Motions for Reconsideration of the
issuance of any arrest warrants; three Marines have also
appealed to the Department of Justice to overturn the
prosecutor's findings of probable cause. The NCIS
investigator in the case met with the alleged victim's
psychologist, who continues to refuse to allow the alleged
victim to speak to either NCIS or the prosecutors. According
to the State Prosecutor, she is unlikely to appear at any
trial. Members of the Congressional VFA Oversight Committee
have delayed their joint visit the Marines at the Embassy
until February 9. End Summary.


2. (C) Local media began on January 17 reporting on the US
Embassy's decision to retain custody of the four Marines
charged with rape in the Philippines, based initially on
comments from Justice Secretary Raul Gonzalez in a radio
interview that, according to the DFA, the U.S. had invoked
the Visiting Forces Agreement and refused to allow the GRP to
take custody of the Marines. By the afternoon of January 17,
a fuller story had appeared in the Associated Press, which
confirmed the rejection and cited specific passages of the
U.S. diplomatic note. Post issued a public statement (text
in para 7) in response to queries by late afternoon on
January 17.


3. (C) On Monday, January 16, all four defense attorneys
submitted Motions for Reconsideration to the Olongapo
Regional Trial Court regarding the issuance of any arrest
warrants. A hearing is set for Friday, January 20. The
defense attorneys for SSgt Chad Carpentier, LCpl Keith
Silkwood, and LCpl Dominic Duplantis have appealed to DOJ to
overturn the prosecutor's findings of probable cause, despite
an earlier denial of their Joint Motion to Suspend
Proceedings (ref B). DOJ has now received all three appeals
and, under Philippine law, has 60 days to respond.


4. (C) On January 17, NCIS attache met with Estrella
Tiongson-Magno, the alleged victim's psychologist. The
meeting was cordial but unproductive. Tiongson-Magno told
NCIS that she will continue to refuse to allow the alleged
victim to speak to either NCIS or the prosecutors in the
case, citing the alleged victim's fragile emotional state.
She further reported that the victim seems to be on the verge
of a nervous breakdown, and is too distraught to discuss the
incident with anyone, including the psychologist herself.
When asked by NCIS, Tiongson-Magno confirmed that neither the
prosecution nor the defense has asked the alleged victim if
she wants to testify in her case. When NCIS mentioned that a
U.S. military court martial might not require any testimony
from the alleged victim, Tiongson-Magno expressed interest in
that process. The NCIS attache subsequently reported the
psychologist's continued refusal of access to the alleged
victim to the prosecutor in the case.


5. (C) State Prosecutor Zuno privately told emboffs on
January 17 that the victim would definitely not appear in any
trial. DFA officials have similarly predicted such an
outcome and indicated that this would doom the legal case.


6. (U) Members of the Congressional VFA Oversight Committee
asked to delay their January 18 visit to the Marines at the
Embassy until February 9.


7. (U) Text of January 17 U.S. Embassy statement on custody
on the Marines:

BEGIN TEXT

STATEMENT: U.S. EMBASSY REPLY ON CUSTODY TRANSFER REQUEST OF
U.S. MARINES

The Visiting Forces Agreement (VFA) continues to provide a
framework of cooperation in the pursuit of justice. Article
5, paragraph 6 of the VFA clearly states: "The custody over
any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United
States military authorities, if they so request, from the
commission of the offense until completion of all judicial
proceedings."

The U.S. Government has decided that it will retain custody
of the four U.S. Marines accused of the crime of rape, as
allowed under this provision. The U.S. Embassy officially
conveyed this decision to the Department of Foreign Affairs
on January 16, 2006, by diplomatic note.

The U.S. will continue to cooperate with the Philippine
authorities as this case moves to trial under Philippine
jurisdiction, in accordance with the Visiting Forces
Agreement. The U.S. remains committed to seeing that justice
is served, and looks forward to a fair and impartial process
that can provide for a just outcome.

END TEXT
Jones