MARINE CASE UPDATE: SUPREME COURT TO HEAR CUSTODY

C O N F I D E N T I A L SECTION 01 OF 04 MANILA 002163

SIPDIS

E.O. 12958: DECL: 09/09/2018
TAGS: PREL MARR KCRM CASC RP
SUBJECT: MARINE CASE UPDATE: SUPREME COURT TO HEAR CUSTODY
ARGUMENTS

REF: A. 2007 MANILA 4015 (APPEALS COURT DECISION NO
LATER THAN OCTOBER 2008)

B. 2007 MANILA 3166 (CASE OF U.S. MARINE LCPL SMITH)

C. 2006 MANILA 4880 (VERDICTS IN ALLEGED RAPE CASE)

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


1. (C) SUMMARY. The case of U.S. Marine LCpl Daniel Smith,
whom a trial court found guilty of rape, remains under
appeal. Separate from the substance of the case, the Supreme
Court is set to hear oral arguments September 19 regarding
whether the Philippine government erred in transferring
custody of Smith to U.S. facilities after the trial court
found him guilty. There are indications that oral arguments
could turn into a broader discussion of the Embassy's
agreement with the Department of Foreign Affairs on Smith's
custody, the constitutionality of the Visiting Forces
Agreement itself, and the presence of U.S. military personnel
on Philippine soil. A decision by the Supreme Court will
likely take several months. We are concerned that the oral
arguments will be used by opponents of the U.S.-Philippine
mil-mil relationship to demonstrate and attract media
attention to their cause. RSO has sought and received
additional police protection for USG facilities. The
Ambassador and country team have continuously pressed for a
just and rapid resolution of the case with the most senior
officials of the Philippine government, while the Embassy has
provided continuous support for Smith over the last two and a
half years. END SUMMARY.

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SMITH STILL ON CHANCERY GROUNDS
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2. (U) Lance Corporal Daniel J. Smith remains in U.S. custody
on the Chancery grounds and continues to receive regular
visits from his Philippine pastors and lawyers. He is in
good physical condition and follows a daily exercise routine.
A III Marine Expeditionary Force (III MEF) psychiatrist paid
Smith a routine visit last fall, finding him in good spirits.
Smith's parents are scheduled to visit him September 29
through October 7. Philippine government officials,
including Department of Interior and Local Government (DILG)
Undersecretary Marius Corpus, continue to visit Smith to
verify on behalf of the Philippine government that Smith
remains in the Philippines, the latest such visit taking
place September 12. Given that the DILG has jurisdiction
over the prison system, Corpus was tasked by the Philippine
government with ensuring Smith was still in the Philippines.

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COURT OF APPEALS CASE STALLED
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3. (C) Smith's criminal case has not moved since October 15,
2007, when the Court of Appeals deemed the case officially
"submitted for resolution," indicating that the trial court
had transferred the complete record to the Court of Appeals,
the parties had filed all necessary pleadings, and the Court
of Appeals had selected the three judge panel that would
decide the case. According to the Philippine Constitution
"all cases or matters filed (under) this Constitution must be
decided or resolved within twenty-four months from date of
submission for the Supreme Court, and, unless reduced by the
Supreme Court, twelve months for all lower collegiate
courts." Thus, according to the aforementioned
Constitutional provision, the case should be resolved by
October 15, 2008. However, the head of the original
three-judge panel assigned to the case retired in July, and a
new panel has yet to be appointed, making it unlikely that a
decision will be forthcoming in the four weeks until October

15. According to various attorneys the Embassy has
consulted, there is no penalty imposed if the court fails to
act by October 15.

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SUPREME COURT TO ADDRESS CUSTODY
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4. (C) Separately, the Philippine Supreme Court will be
hearing oral arguments September 19 on a civil petition that
alleges that the Philippine government erred in turning Smith
over to the custody of the U.S. after the trial court found
him guilty and ordered that he be turned over to Philippine
authorities. The Solicitor General, who will argue the case
before the Supreme Court, told us September 8 that "activist"
members of the Supreme Court, including Chief Justice Puno,

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supported ruling against the constitutionality of parts of
the Visiting Forces Agreement (VFA) and ordering the
Philippine government to request custody of Smith. In a 2000
case that affirmed the constitutionality of the VFA,
then-Associate Justice Puno wrote the dissenting opinion and
was joined by four other justices.


5. (C) The Solicitor General expects that the oral argument
will turn into a broader discussion of the Embassy's
agreement with the Department of Foreign Affairs on Smith's
custody, the constitutionality of the VFA itself, and the
presence of U.S. military personnel on Philippine soil. The
Solicitor General believes that if the Supreme Court rules
against the VFA and orders Smith to be returned to Philippine
custody, the government would have to comply. Still, a
Supreme Court decision could take several months to be
issued. The head of the legal division at the Department of
Foreign Affairs told us September 9 that in case of a
decision against the VFA and an order to request custody of
Smith, the government would immediately file a motion for
reconsideration, which would effectively push back the time
for decision by several more months.

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EMBASSY PROVIDES SIGNIFICANT SUPPORT
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6. (C) As provided by the Visiting Forces Agreement, Smith
has been in U.S. custody since his arrest in November 2005.
Except for the three-week period immediately following the
verdict, Smith has remained on Chancery grounds and in U.S.
custody since that time. Representatives from III MEF have
supervised him at all times, and the Regional Security Office
has spent significant time and resources ensuring Smith's
safety and security, including during Smith's appearances in
court and during Smith's hospital visits for minor medical
procedures. American Citizen Services officers, who attended
all trial sessions, also have kept close watch over the case,
liaising with Smith's family and ensuring Smith's rights as a
U.S. citizen are respected. The case excited public passion
from the start, and Public Affairs Office continues to field
numerous inquiries from the media and has been successful in
directing public attention toward the judicial process and
away from broader issues of U.S.-Philippine relations. The
DCM also chairs a weekly meeting of Mission and PACOM
representatives to ensure proper coordination and appropriate
support to Smith.

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PUSHING ON THE DIPLOMATIC FRONT
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7. (C) Throughout this long period of Smith's trial and
custody, the Ambassador has regularly pressed Smith's case at
the most senior levels of the Philippine government, urging a
just and rapid resolution to this long-running and ambiguous
situation. In numerous meetings with key government
officials, she has stressed that the U.S. has strictly
adhered to the spirit and letter of the Visiting Forces
Agreement, and Smith has remained in custody on Embassy
grounds at significant cost to the U.S. government. She has
stressed that it is similarly incumbent on the Philippine
government to adhere to its obligations under the VFA. As
the Smith case continues its course, the Ambassador and other
Embassy officials have underscored that it is up to the
Philippine government to move rapidly and fairly to ensure a
legitimate and dignified outcome to this long and difficult
ordeal. In the last few weeks, the Ambassador has been in
regular contact with key government officials, including the
Foreign Secretary, Executive Secretary, National Security
Advisor, Secretary of the Interior and Local Government,
Secretary of National Defense, and others. Senior Mission
officers have also reached out to other Department of Foreign
Affairs officials, and the Solicitor General.

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PREPARING FOR DEMONSTRATIONS
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8. (C) Based on past experience with the case, the Mission is
preparing, in connection with the Supreme Court hearing, for
large, potentially volatile demonstrations by a variety of
leftist and anti-U.S. groups, including Task Force Subic
Rape, Gabriela, and the League of Filipino Students. In the
last week, there have been several small demonstrations near
the Chancery, and more demonstrations are planned for
September 16, and 19. The Regional Security Officer will
coordinate with the Philippine National Police Civil

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Disturbance Management and Intelligence to provide robust
support to deal with the demonstrators. The RSO could
recommend temporarily closing or "sealing" the Chancery gates
should the demonstrations become violent or unruly.

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ADDRESSING THE MEDIA
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9. (C) The Smith case was, statistically, the most reported
story in the Philippines in 2006, garnering front-page space
nearly every day during the trial. Based on this track
record, the Mission anticipates and is prepared for a barrage
of inquiries from the media upon issuance of the Supreme
Court decision. The Embassy's press guidance addressing the
Supreme Court hearing is contained in para 10. The Embassy
will refer all questions regarding Smith's legal status to
his attorney, while questions regarding his custody will be
referred to the Philippine government.

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EMBASSY GUIDANCE FOR SUPREME COURT HEARING
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10. (U) The Embassy's guidance follows:

U.S. Embassy Manila, September 15, 2008

Supreme Court Hearing on Custody of LCpl Smith

Q: What is your reaction to the hearing?

-- I think it would be inappropriate for me to offer an
opinion on the legal decisions of the Philippine judicial
system.

(If pressed)

-- The hearing is related to a civil matter pending before
the Philippine Supreme Court. It is separate from the
criminal case against LCpl Smith, which is still in the
appeals process.

-- This is a very difficult and emotional case for all those
involved, but LCpl Smith remains in U.S. custody in
accordance with the VFA. He is still in custody while his
appeals process is going on.

Q: If (insert complicated legal question here),will the U.S.
government agree?

-- Again, this is an issue pending before the Philippine
judicial system. It would be inappropriate for me to opine.
It has been our firm objective throughout this case to see
that justice is served. To that end, we have adhered to the
VFA. We will continue to do so.

Q: What is the latest in the Smith case? We have heard that
the appeals court will soon issue a decision upholding or
reversing his conviction . . .

-- Refer you to his lawyer for updates on the criminal case.

(If hearing results in some kind of negative decision)

Q: What is the reaction to the decision declaring the VFA
unconstitutional? Does the VFA need to be renegotiated?
Will the U.S. Government agree to do that?

-- The VFA provides the sole framework for U.S.-Philippine
cooperation on legal cases involving visiting U.S. military
personnel. Such an agreement is indispensable for continuing
almost every kind of military cooperation between our two
countries.

-- The VFA has served the security cooperation between our
two countries and we will continue to abide by its terms.

Q: Will the U.S. agree to transfer LCpl Smith to Philippine
authorities?

-- Consistent with the terms of the Visiting Forces Agreement
(VFA),Smith will remain in U.S. government custody until all
judicial proceedings have been completed.

Q: Will the U.S. withdraw military personnel from the
Philippines as a result of the Supreme Court decision?


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-- U.S. military personnel are here at the invitation of the
Philippine government to provide assistance and share
information with the AFP.

-- All temporarily deployed U.S. forces respect the
sovereignty of the Republic of the Philippines and fully
comply with the Visiting Forces Agreement (VFA).

-- We will continue to abide by the terms of the VFA.

Q: How do you react to the demonstrations that have taken
place in front of the Embassy and elsewhere?

-- Peaceful protests are a normal part of a vibrant democracy
that respects the right of free speech.

-- However, violence has no place in political protest, nor
does destruction of public or private property.

-- (For use as appropriate) Moreover, the public and
diplomats have a right to come and go safely and freely from
the Embassy grounds, and protesters have no right to prevent
that.

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COMMENT
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11. (C) While the Supreme Court previously found the Visiting
Forces Agreement (VFA) constitutional and the upcoming
hearing should be a straightforward revalidation of the fact
that the U.S. has the right to keep Smith until all appeals
are completed, a confluence of events has led certain groups
to use the case as a broader attack on the constitutionality
of the VFA. First, this comes at a difficult time for the
Philippine government. Facing significant setbacks in the
peace process and the outbreak of violence in Mindanao, the
government is in a weaker position than usual to work with
the U.S. government to reach a mutually agreeable solution to
the Smith case. Secondly, the Supreme Court recently has
shown an inclination for engaging in more politically charged
issues, as evidenced by its decision to issue a restraining
order on the Memorandum of Agreement on territory between the
Philippine government and the Moro Islamic Liberation Front.
Thirdly, while in the past it was accepted wisdom that the
government could count on 9 of the 15 justices on the Supreme
Court, that may no longer be the case. The government fought
the restraining order on the Memorandum of Agreement on
territory and lost the case 15 to 0. Finally, Chief Justice
Puno's dissent on a previous case affirming the
constitutionality of the VFA does not augur well for a
similar finding. Given the strong reaction by Philippine
society to the Smith case, it is not inconceivable that the
Supreme Court may in some months order the Philippine
government to request custody of Smith. We will remain firm
that the government-government VFA explicitly provides for
custody to remain with the U.S. until the completion of all
judicial proceedings.
KENNEY