MARINE CASE: REGAINING CUSTODY OF LCPL SMITH

C O N F I D E N T I A L MANILA 005000

SIPDIS

SIPDIS

E.O. 12958: DECL: 12/14/2016
TAGS: PREL CASC MARR RP
SUBJECT: MARINE CASE: REGAINING CUSTODY OF LCPL SMITH

REF: A. STATE 198798

B. MANILA 4986

Classified By: Ambassador Kristie A. Kenney, reasons 1.4 (b) and (d)


1. (C) Ambassador shared ref a concerns and possible
options with Executive Secretary Ermita and Foreign Secretary
Romulo on December 14, while other country team members
flagged to counterparts at the Departments of Foreign Affairs
and National Defense as well as at the Armed Forces of the
Philippines. Ermita said that President Arroyo had vowed
that "we must not fail" in successfully resolving the custody
issue in accordance with the Visiting Forces Agreement, and
had "ordered" the entire Cabinet to fix this problem. Romulo
expressed frustration at the judge's ruling and was not
surprised to hear we were looking at canceling certain
military activities absent a satisfactory resolution.
Ambassador told Romulo that Washington would also be
discussing this with Philippine Ambassador Gaa. Romulo said
that Gaa had been very impressed that President Bush had
raised this issue during the credentials ceremony. Romulo
said that he wanted to reiterate how "strong and solid" the
Philippine Executive Branch was on this issue. He said his
team would file all necessary documents to support a rapid
and favorable appeal. All other interlocutors also expressed
understanding of the gravity of the situation but expressed
confidence about a forthcoming satisfactory resolution of the
custody issue.


2. (U) Defense attorneys early on December 14 filed a
motion to the Court of Appeals contesting Makati City
Regional Trial Court Judge Pozon's December 13 ruling against
U.S. custody (ref b) and requesting immediate action to
return Lance Corporal Smith to U.S. custody. The Philippine
Solicitor General, with extensive input from and on behalf of
the Department of Foreign Affairs, is finalizing a similar
motion in support, which he plans to file on December 15. As
of COB, the Appeals Court had not made any ruling.


3. (U) Senior Philippine officials are taking a more
pro-active and helpful public line. Justice Secretary
Gonzalez said that Judge Pozon "was wrong" to rule as he did
and confirmed the right of U.S. custody. He promised the
Philippine Government would intervene with the Appeals Court
in order to uphold its international obligations, as soon as
the defense team had filed a motion. He also told the media
that President Bush had raised the VFA issue with Philippine
Ambassador Gaa during the latter's presentation of
credentials. DFA spokesman Malaya reiterated that the VFA
was very clear that custody of Smith should belong to the
U.S. during judicial proceedings.

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KENNEY