FOREIGN SECRETARY PREDICTS QUICK RESOLUTION OF

C O N F I D E N T I A L SECTION 01 OF 02 MANILA 004913 SIPDIS SIPDIS E.O. 12958: DECL: 12/06/2016 TAGS: PREL MARR CASC KCRM RP SUBJECT: FOREIGN SECRETARY PREDICTS QUICK RESOLUTION OF CUSTODY ISSUE; JUDGE DELAYS DECISION AGAIN REF: MANILA 4896 AND PREVIOUS Classified By: Ambassador Kristie A. Kenney, reasons 1.4 (b) and (d) ¶1. (C) This is an action request -- see para 8. ¶2. (C) Summary. Ambassador urged Foreign Secretary Romulo to ensure that the Philippine Government take quick and more effective steps to return Lance Corporal Daniel Smith immediately to U.S. custody pending his appeal. Romulo promised that the Philippine Government would do all in its power and predicted a satisfactory resolution by December 8. The Judge in the case has deferred a decision on custody until at least December 7. Smith remains in the Makati City Jail, with U.S. military escorts at all times. Embassy recommends postponement of Ambassador-designate Gaa's presentation of credentials until Smith returns to U.S. custody. We believe that the positive media coverage of Ambassador-designate Gaa meeting the President in the Oval Office could undermine Philippine commitment quickly to transfer Lance Corporal Smith to U.S. custody. End Summary. Foreign Secretary -------------- ¶3. (C) In a meeting with Foreign Secretary Romulo on December 6, Ambassador urged the Philippine Government immediately to take steps with Makati Regional Trial Judge Pozon to ensure that Lance Corporal Smith (reftels) is returned to U.S. custody. She reiterated that the VFA stipulated that the U.S. could retain custody in such cases until the end of all judicial proceedings. She noted that a December 5 note from DFA Undersecretary Seguis to Judge Pozon had only affirmed the relevant section of the VFA, without specifically calling for Smith's return to U.S. custody and thus respect the Philippines' obligation under this international agreement. ¶4. (C) Romulo noted that A/S Hill had discussed some of these same issues with him late on December 5 (Manila time). He promised that the Philippine Government remained committed to the VFA and was doing everything in its power, both behind the scenes and in public statements, to recognize the U.S. claim for continued custody of Smith until the completion of all judicial proceedings. He said, however, that intervention with Judge Pozon was most appropriately under the purview of Secretary of Justice Gonzalez, but he promised to weigh in with Gonzalez immediately. He nonetheless predicted that the custody issue would come to a successful resolution no later than Friday, December 8. (Executive Secretary Ermita separately contacted Ambassador with a SIPDIS similar message.) ¶5. (U) While departing DFA, Ambassador underscored to local press corps that the seizure by the Philippine National Police of Lance Corporal Smith upon the order of Makati City Regional Court Judge Pozon on December 4 and his continued detention at the Makati City Jail meant that the Philippine Government was not in compliance with the Visiting Forces Agreement. She stressed that Smith was not here as a private citizen and that the VFA is the operative legal framework to handle his case. She noted that the VFA also allowed the U.S. military to provide disaster assistance, such as after the Leyte mudslide in February, as well as humanitarian and civil-military operations and other support to the Armed Forces of the Philippines. In the courtroom -------------- ¶6. (U) On behalf of the complainant in the case, the private prosecutor filed a motion with Judge Pozon on December 5 opposing the motion by Smith's attorney to transfer custody back to the U.S. The motion claimed that, under the terms of the VFA, the Philippines should now have custody, not the U.S. It further declared that the Philippines had a right under the VFA to obtain custody, which it had asserted in January 2006, and that the Government should therefore not relinquish custody now. Judge Pozon announced on December 6 that he would study the motions and not issue a decision until at least December 7. Smith's condition remains good -------------- ¶7. (SBU) Smith remains in the warden's office at the Makati City Jail, where representatives from the III MEF are with him at all times. Embassy intervened with Philippine MANILA 00004913 002 OF 002 authorities on December 6 to ensure that Smith was not subject to media questioning or unwanted visits. Jail officials continue to allow our access and provision of food and other necessities. Smith has been in direct contact with his family in the U.S. Next step -- action request -------------- ¶8. (C) Embassy recommends that the U.S. defer the December 8 presentation of credentials of Philippine Ambassador-designate Gaa until there is a clear and satisfactory resolution of this custody issue. Deferring Gaa's credentials would not hurt larger and longer-term U.S. interests, but would demonstrate to the Philippine Government our deep concern. It will also ensure that President Bush is not photographed with the Philippine Ambassador in the Oval Office at a time when the Philippine Government is holding a U.S. Marine in custody contrary to the terms of our Visiting Forces Agreement. Visit Embassy Manila's Classified website: http://www.state.sgov.gov/p/eap/manila/index. cfm KENNEY