MAKATI COURT DEFERS RECONSIDERATION OF CUSTODY OF

C O N F I D E N T I A L MANILA 004896 SIPDIS SIPDIS E.O. 12958: DECL: 12/05/2016 TAGS: PREL MARR CASC KCRM RP SUBJECT: MAKATI COURT DEFERS RECONSIDERATION OF CUSTODY OF LANCE CORPORAL SMITH REF: MANILA 4880 Classified By: Ambassador Kristie A. Kenney, reasons 1.4 (b) and (d) ¶1. (C) Summary and comment: Despite promises from the seniormost Philippine Government officials that they could work with the judge in the alleged rape case to rescind his custody order and return Lance Corporal Smith to U.S. custody, Smith will spend at least one more night at the Makati City Jail. We are increasingly frustrated by the apparent inability of the Philippine Government to ensure a prompt resolution of this issue, which calls into question its compliance with the Visiting Forces Agreement. Absent a resolution of this impasse early on December 6, Embassy will present some options for Washington consideration to indicate our deep dissatisfaction and concern about the implications of this situation for our relationship. End summary and comment. ¶2. (SBU) According to Philippine Department of Foreign Affairs UnderSecretary Seguis, Makati City Regional Trial Court Judge Pozon deferred a ruling on a December 5 motion for reconsideration by the defense attorney of Lance Corporal Daniel Smith regarding Smith's custody, which Judge Pozon had ordered on December 4 to take place in the Makati City Jail (reftel). Judge Pozon reportedly decided to give the private prosecutor in the case one day to make a counter-argument. ¶3. (C) Smith's attorney had filed the motion with the assistance of the Philippine Department of Justice, including Senior State Prosecutor Zuno. Separately, U/S Seguis wrote to Judge Pozon and provided a copy of a December 5 diplomatic note from the Embassy to the Department of Foreign Affairs reaffirming the right of the U.S. under the Visiting Forces Agreement to exercise custody of U.S. personnel, including Smith, over whom the Philippines is to exercise jurisdiction until completion of all judicial proceedings, including appeals. A DFA spokesman had earlier on December 5 told the press that the DFA supported the "U.S. request in a note verbale today for custody of Daniel Smith." ¶4. (C) Throughout the evening of December 4, Ambassador had a series of telephone conversations with President Arroyo, Executive Secretary Ermita, Foreign Secretary Romulo, Justice Secretary Gonzalez, and Armed Forces Chief of Staff General SIPDIS Esperon. She reiterated the clear right of the U.S. to retain custody under the VFA, urged the GRP quickly to take steps to ensure its own compliance with these terms, and insisted that in the meantime GRP authorities must ensure Smith's complete and utter safety and well-being at the Makati City Jail. All expressed their agreement. General Esperon separately contacted Philippine National Police Chief General Calderon to make the third point, and later confirmed to Ambassador that General Calderon had taken all necessary steps, including allowing Smith to rest overnight in the warden's office rather than a cell. DCM separately also raised the key issues repeatedly with senior DFA officials involved in the handling of the case. Malacanang Palace convened a strategy session on the morning of December 5 to finalize the necessary actions by the Department of Justice, working with the defense attorney and receiving additional guidance from the Embassy's Justice Attache. Executive Secretary Ermita repeatedly on December 5 assured Ambassador SIPDIS that the GRP would "fix" this problem immediately, but as of 1830 local time, this has not happened. ¶5. (SBU) An Embassy American Citizens' Service officer visited Smith on the evening of December 4. Smith expressed no complaints. The warden, in addition to providing use of his office, also allowed visitors (including a Protestant pastor),food, and toiletries. An official of the III MEF remained overnight with Smith on December 4 and will do so again on December 5, and until the satisfactory resolution of the custody issue. KENNEY