MARINE JUDICIAL CASE: CONTINUED CLOSE COORDINATION

C O N F I D E N T I A L SECTION 01 OF 03 MANILA 002323

SIPDIS

E.O. 12958: DECL: 10/06/2018
TAGS: PREL MARR KCRM CASC RP
SUBJECT: MARINE JUDICIAL CASE: CONTINUED CLOSE COORDINATION
VITAL

REF: 2008 MANILA 2163 (MARINE CASE UPDATE: SUPREME
COURT TO HEAR CUSTODY ARGUMENTS)

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


1. (C) SUMMARY. Renewed high-level judicial and political
focus on the rape case of Marine Lance Corporal Daniel J.
Smith has underscored the profound importance of this issue
both for LCpl Smith's future and for U.S.-Philippine military
and diplomatic ties. Strenuous U.S. government efforts over
the past three years to ensure a fair and rapid judicial
process for LCpl Smith -- and insulate the Visiting Forces
Agreement from harmful effects that could seriously damage
military and counterterrorism cooperation with a key ally in
the war on terror -- have depended on meticulous and thorough
consultations among the many actors in this crucial case. To
date, the close, often daily consultations carried out among
Embassy Manila, Pacific Command, Marine Forces Pacific and
legal experts at State and Department of Defense on the many
complex aspects of this case have enabled the USG to retain
custody of LCpl Smith, continue to seek a just resolution to
the case, and ward off efforts by activists to curtail -- or
terminate -- U.S. military counterterrorism efforts here.
Over the past few weeks, careful collaboration among all
these elements (and vocal support from senior-most Philippine
military and political leaders) enabled the Mission to
weather a series of potential crises, including intrusive
Supreme Court and Congressional hearings, aggressive media
attention and a welcome and positive visit by LCpl Smith's
family members. But the extraordinary emotion engendered by
this case at all levels of Philippine society mandates that
we continue to approach each and every aspect of the case
with the greatest discretion and coordination. END SUMMARY.

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BACKGROUND
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2. (C) U.S. Marine Lance Corporal Daniel J. Smith was
convicted by a Philippine trial court in December 2006 of
raping a Filipino woman at Subic Bay in November 2005 and was
sentenced to a maximum of 40 years in prison. Smith
immediately filed an appeal of the conviction and the case
was formally submitted to the Court of Appeals on October 15,
2007, where it has been pending since that time. Separate
from the criminal case, the Supreme Court heard oral
arguments September 19 regarding whether the Philippine
government erred in transferring custody of Smith to the U.S.
after the trial court found him guilty. A decision is
pending in that case as well. Under the terms of the
Visiting Forces Agreement (VFA),Smith has remained in U.S.
custody on Chancery grounds since his arrest in November
2005, and the Embassy community as a whole has safeguarded
Smith's safety, security, and welfare, and ensured that
Smith's rights as a U.S. citizen and the requirements of the
VFA are respected. Statistically, the Smith case was the
most reported story in the Philippines in 2006, garnering
front-page space nearly every day during the trial. It
continues to generate significant political, public, and
media attention, and senior Embassy officials field questions
on the case and its implications for the VFA routinely.
Various leftist organizations have held numerous mostly
peaceful demonstrations near the Embassy in the last three
years.

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BURST OF ACTIVITY
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3. (C) The past few weeks have brought a burst of activity in
LCpl Smith's case. Just days before LCpl Smith's parents
arrived in the Philippines September 29 for a one-week visit,
the Court of Appeals appointed a new three-judge panel to
decide his nearly year-old appeal of his December 2006 rape
conviction. Separately, a Supreme Court hearing September 19
on whether the Philippine government erred in turning over
custody of Smith to the U.S. government turned into a broader
discussion of the constitutionality of the Visiting Forces
Agreement (VFA). The Supreme Court hearing prompted a joint
Philippine Congressional oversight hearing September 25 to
investigate allegations of violations of the VFA. While
leftist organizations presented a negative picture of U.S.
military involvement in Mindanao, complaining about the
"permanent" nature of the U.S. military presence and
involvement in "combat" operations against Muslim insurgents,
key Philippine national and local officials strongly rebutted
the allegations.

MANILA 00002323 002 OF 003



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SMITH'S PARENTS VISIT MANILA
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4. (C) The arrival of LCpl Smith's parents in Manila
September 29 for a one-week visit was an encouraging and
positive development for LCpl Smith. His parents visited
with their son several hours daily, significantly raising
Smith's spirits, and requested that the Embassy take pictures
of them with their son. During their visit, the parents met
with Smith's lawyer, and also with Smith's commanding
officer, who flew from Okinawa to meet them. The Ambassador
met with Smith's parents October 3 to convey the Mission's
sympathy for their situation and outline the Mission's
persistent diplomatic efforts to move Smith's case forward.
The Ambassador emphasized to the parents that the Smith case
would remain a top Mission priority. The parents chose not
to speak to the media, and their visit appears to have
escaped media attention. As with their previous visit in
March 2007, their travel and hotel expenses were quietly paid
for by a local U.S. citizen businessman, who also arranged
for their transportation while in Manila.

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NO PROGRESS YET IN APPEALS COURT
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5. (C) On September 26, the Court of Appeals appointed a new
three-judge panel to decide Smith's case, composed of
Justices Apolinario Bruselas, Hakim Abdulwahid, and Josefina
Salonga. Bruselas, who was tasked with writing the decision,
is noteworthy in that he penned a procedural decision in
early 2007 that appears hostile to the U.S. interpretation of
the Visiting Forces Agreement (VFA). Post is continuing to
seek information on the views of the other two panel members.

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SUPREME COURT HEARING SPARKS CUSTODY FEARS
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6. (C) The Appeals Court move followed one week after Supreme
Court oral arguments on a civil petition alleging that the
Philippine government erred in turning Smith over to U.S.
Embassy custody after a trial court found him guilty and
ordered him held by Philippine authorities. The argument
turned into a broader discussion of the constitutionality of
the VFA, as the petitioners asked the Court to reverse its
previous finding that the VFA was constitutional. Most
justices did not appear hostile to the VFA, with the
exception Chief Justice Reynato Puno, whose questions
suggested he might consider the agreement unconstitutional.
As reported previously (reftel),in the 2000 case that
affirmed the VFA's constitutionality, then-Associate Justice
Puno wrote a dissenting opinion and was joined by four other
justices. While no decision is expected from the Supreme
Court hearing for several months, the September 19 hearing
sparked one immediate controversy. One of the petitioner's
attorneys claimed that a person in the U.S. military had told
him that Smith had been transferred off of the U.S. Embassy
grounds, sparking a two-week controversy despite Philippine
officials' affirmation (and photographic proof) that Smith
remained in custody at the Chancery.

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CONGRESSIONAL HEARING ON VFA FAVORABLE FOR U.S.
-------------- --


7. (C) The Supreme Court hearing spawned yet another
potentially problematic investigation, prompting the joint
Senate/House of Representatives Oversight Committee on the
VFA to hold a hearing September 25 to investigate allegations
that U.S. military forces in Mindanao were violating the VFA.
While leftist organizations presented a negative picture of
U.S. military involvement in Mindanao, complaining about the
"permanent" nature of the U.S. military presence and
involvement in "combat" operations against Muslim insurgents,
Department of Foreign Affairs VFA Chair Edilberto Adan,
Zamboanga Mayor Celso Lobregat, Sulu Governor Abdusakor Tan,
and Senator Miriam Santiago strongly rebutted the
allegations, demonstrating the value of both the frequent
attention these key figures receive from the Ambassador and
other senior Country Team members, but also of significant
U.S. development assistance their areas receive. Mayor
Lobregat and Governor Tan expressed their appreciation and
full support for continued American presence, with Tan
stressing that the USG has done more for his province than
the Philippine government, and that Sulu is peaceful because

MANILA 00002323 003 OF 003


of the Americans. U/S Adan outlined the activities under
joint U.S.-Philippine exercises, emphasizing the
civic-humanitarian component, disclosing that from 2006
through 2008, the U.S. spent $16.8 million in civic-military
projects in Mindanao. Adan noted that complaints against the
VFA are minimal compared to the benefits derived under it.
Senator Santiago observed that the incidents of U.S.
involvement cited were hearsay, not eyewitness accounts.

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QUASHING UNAUTHORIZED CONGRESSIONAL VISIT
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8. (C) As in the Supreme Court hearing, questions arose
whether LCpl Smith was still on U.S. Chancery, prompting a
Committee member to propose that a team of three
Congressional members join VFA Chair Adan in a lightning
visit to see LCpl Smith at the Embassy compound to verify his
presence. In an effort to protect the integrity of the
Chancery and limit access to Smith to appropriate government
officials, the Embassy declined the request, permitting only
VFA Chair Adan, who had previously visited Smith, to verify
the Lance Corporal's presence, on behalf of the Committee, on
September 25. Adan's visit, which was reported to the media,
effectively refuted assertions that Smith was no longer on
the compound, putting an end to this red herring. A key
argument in turning off the Philippine Congressional visitors
was noting that our custody agreement with the Philippine
government laid out clearly who was authorized to verify
Smith's custody, and that introducing unnamed outside
visitors was not in keeping with the agreement. Also at the
hearing, a Committee member suggested that a Congressional
delegation made up of Senators and Representatives visit
WESTMINCOM and JSOTF October 2 to see temporary U.S. military
accommodations first hand (septel).

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CONTINUED DISCIPLINED POLICY APPROACH VITAL
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9. (C) In this highly charged political environment, it is
imperative for the USG to continue to adhere to strict policy
and procedural discipline on issues raised by the Philippine
government. Recently, the Philippine Department of Foreign
Affairs separately contacted U.S. defense officials directly
for USG views on the treaty status of the VFA, as well as
U.S. Department of Justice officials. While we hope the goal
was merely to obtain good information, we do not discount
"forum shopping" to seek a certain interpretation of U.S.
treaties and laws. Given the profound implications of all
VFA discussions for both our military activities and for LCpl
Smith's case, it remains vital to ensure continued
coordination, with the Embassy in the lead, on any contact
with Philippine government agencies and actors in regards to
both the Smith case and the Visiting Forces Agreement.

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COMMENT: INTENSE FOCUS TO REMAIN;
CONTINUED CLOSE USG COORDINATION IMPERATIVE
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10. (C) The burst of activity surrounding LCpl Smith in the
past few weeks validates once again this Mission's -- and the
U.S. government's -- intensive focus over the past three
years on this highly fraught controversy, which has serious
consequences not only for LCpl Smith, but the most crucial
elements of our diplomatic and military ties with the
Philippines. Our ability to navigate recent tumultuous
events has depended on near-daily attention devoted to this
issue by the Ambassador, our Marine working group, and all
our civil and military elements, as well as our vital
coordination with PACOM, MARFORPAC, and State and Department
of Defense legal teams in Washington. These efforts have
been key in fostering as rapid a resolution of the case as
possible. As demonstrated by the recent linking in the
Supreme Court hearing of Smith's case to the
constitutionality of the VFA and to the legality of our JSOTF
deployment, a misstep in our handling of the case could have
profound implications for all parts of the Philippine-U.S.
military relationship. It was only through the strenuous
efforts of the Mission and JSOTF that a potentially
problematic Congressional investigation into the legality of
JSOTF's mission in Zamboanga was turned into a reaffirmation
of our relationship by key military contacts.
KENNEY