FURTHER DELAY IN MARINE CASE CUSTODY HEARING

C O N F I D E N T I A L MANILA 004953 SIPDIS SIPDIS E.O. 12958: DECL: 12/11/2016 TAGS: PREL MARR CASC RP SUBJECT: FURTHER DELAY IN MARINE CASE CUSTODY HEARING REF: MANILA 4933 AND PREVIOUS Classified By: Ambassador Kristie A. Kenney, reasons 1.4 (b) and (d) ¶1. (U) At a hearing on December 11, Makati City Regional Trial Court Judge Pozon heard oral arguments from the Department of Justice about why the Visiting Forces Agreement (VFA) authorizes that the U.S. should retain custody of Lance Corporal Smith during the ongoing judicial proceedings. When questioned, senior representatives of the Department of Foreign Affairs, whom Pol/C had urged to be present for such a contingency, voiced full support for this position and urged the immediate return of LCpl. Smith to U.S. custody. However, the private prosecutor assisting the complainant in the case instead urged a review of the original intent of the negotiators of the VFA. Judge Pozon deferred a decision on the motions from the defense and private prosecutor without setting a date for his decision, although defense attorneys predict it will come on December 12 given the judge's vacation plans. ¶2. (C) Embassy's Justice Attache, who was also present in court, continues to work with defense attorneys, and is now coordinating a motion to the Court of Appeals. ¶3. (C) Ambassador contacted President Arroyo, underlining President Bush's message to Ambassador Gaa on December 8 and urging additional steps by the Philippine Government to help Judge Pozon understand the terms of the VFA and the importance of abiding by the Philippine's international obligations. She and other senior Embassy officials have also urged related actions by Executive Secretary Ermita, other cabinet members, leaders of the Armed Forces of the Philippines, and senior DFA and DOJ officials directly handling the case. All expressed full support for the return to U.S. custody of LCpl. Smith and agreed on need to comply with the VFA. No one, however, offered any new ideas of how to speed up Judge Pozon's decision-making process, while nonetheless providing assurances of a favorable decision "soon." ¶4. (C) Embassy recommends that the next step, should this situation continue past December 12, is for Admiral Fallon or a senior PACOM official to contact AFP chief General Esperon to underscore the probable implications for military exchanges and assistance, including humanitarian support for natural disasters and in Mindanao, should the Philippines' ability to uphold the VFA remain in question indefinitely. Visit Embassy Manila's Classified website: http://www.state.sgov.gov/p/eap/manila/index. cfm KENNEY