LANCE CORPORAL SMITH - CASE SUMMARY

C O N F I D E N T I A L SECTION 01 OF 04 MANILA 002761

SIPDIS

E.O. 12958: DECL: 11/07/2018
TAGS: PREL MARR KCRM CASC RP
SUBJECT: LANCE CORPORAL SMITH - CASE SUMMARY

REF: A. 2008 MANILA 2323 (MARINE JUDICIAL CASE:
CONTINUED CLOSE COORDINATION VITAL)

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

C. 2007 MANILA 4015 (MARINE CASE UPDATE: APPEALS
COURT DECISION NO LATER THAN OCTOBER 2008)

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


1. (C) SUMMARY: Three years after his arrest on rape charges
and subsequent conviction, U.S. Marine LCpl Smith is
accommodated on the U.S. Embassy grounds while his appeal is
in the Philippine judicial system, in accordance with the
U.S.-Philippine Visiting Forces Agreement. The case of LCpl
Smith touched a nationalist nerve in the Philippines, as have
such cases in Japan. Resulting political pressures nearly
led to the abrogation of the Visiting Forces Agreement, which
would end all U.S. military deployments in the Philippines,
including for training exercises, ship visits, and the 600
U.S. forces of JSOTF-P targetting terrorists in the Muslim
South. This case has been at the top of the U.S. Embassy's
agenda, both with the Philippine government and internally,
since its inception. The Ambassador and key mission members
are in frequent, very private discussions with senior
Philippine officials on finding a way to resolve what is a
very difficult situation for LCpl Smith and his family, as
well as for the U.S.-Philippine relationship. Internally,
for Smith's welfare, the DCM chairs a weekly meeting of key
mission personnel and Smith's III MEF handlers to ensure his
interests are best protected. END SUMMARY.

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INTRODUCTION
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2. (C) On the third anniversary of LCpl Smith's detention at
U.S. Embassy Manila -- the only such arrangement at a U.S.
embassy in the world -- we think it appropriate to recap LCpl
Smith's stay on Chancery grounds. Except for the three-week
period immediately following the verdict, Smith has been in
U.S. custody. He has lived in comfortable accommodations and
representatives from III Marine Expeditionary Force in
Okinawa have supervised him at all times. 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 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. Given the
unusual and difficult nature of keeping custody of a
convicted U.S. serviceman on Chancery grounds, the DCM chairs
a weekly meeting of Mission and PACOM representatives to
ensure proper coordination and appropriate support for Smith.
In a compound secured by the Marine Security Guard 24 hours
a day, and with a III MEF representative with him at all
times, Smith is held in the safest possible place for him in
the Philippines.

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ENSURING SMITH'S WELFARE
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3. (C) From the beginning of this incident in November 2005,
American Citizen Services (ACS) officers from the Embassy's
Consular Section have continuously watched over Smith to
ensure his welfare, conducting an initial visit shortly after
Smith's arrest to provide a list of local attorneys and
information on the Philippine judicial system. ACS officers
then attended all judicial hearings and proceedings and
provided daily summaries of trial court activity to the
Mission's country team. As per State Department regulations,
ACS officers conducted monthly welfare visits to Smith during
the pre-trial and trial phases and quarterly visits after
Smith's conviction, providing necessities, such as
toiletries, and facilitating visits from clergy and
volunteers from the American Association of the Philippines.
ACS regularly liaised with Smith's family, responding to
emails and phone calls on a myriad of issues. While State
Department regulations generally do not provide for
arrest-related consular services to active duty military
personnel, the Mission decided early to provide such services
from the beginning, when it was still unclear what role, if
any, the U.S. military would play in the case. Since Smith's

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arrest, III Marine Expeditionary Force (MEF) has provided
personnel to watch over Smith continuously. ACS involvement
in the case has served as a safety net to ensure that all
Smith's needs are addressed.

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KEEPING SMITH OUT OF PHILIPPINE JAILS
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4. (C) Following the December 4, 2006, trial court judge's
decision convicting LCpl Smith and ordering that he be
immediately transferred to Philippine authorities, the
Philippine National Police forcibly took custody of Smith,
transporting him over the Mission's objections to the Makati
City jail. The Mission immediately went into overdrive,
strenuously arguing with key Philippine officials that the
judge's order violated the Visiting Forces Agreement and
would strain a very productive bilateral relationship. Based
on reports from American Citizen Services officers, who
routinely deal with Americans incarcerated in Philippine
facilities, the Mission was seriously concerned about Smith's
welfare if he were placed in a Philippine jail. Philippine
prisons are notorious for their squalid conditions: some have
no indoor plumbing, forcing inmates to use a ditch; inmates
pool their resources to buy potable water; some have
insufficient mattresses for all inmates, requiring them to
sleep in shifts; medical care is often poor and tuberculosis
is rampant; food rations are inadequate, compelling U.S. and
other foreign missions to provide "loans" to their citizens
to supplement their food intake. Furthermore, Mission
officials were also seriously concerned that LCpl Smith, as a
convicted rapist, would not fare well if incarcerated with
the general prison population.


5. (C) Against this backdrop, Mission officials successfully
pressed for an arrangement with jail authorities whereby LCpl
Smith would be housed temporarily in the warden's office
until Smith's legal custody could be sorted out by the
Philippine government. In addition, jail authorities agreed
to allow Mission personnel to accompany LCpl Smith 24 hours a
day, seven days a week, prompting the Mission to quickly
organize a group of volunteers to safeguard Smith's welfare
in 8-hour shifts around the clock. Dozens of U.S. Embassy
personnel signed up for this duty, several establishing
lasting friendships with LCpl Smith during midnight shifts
with him at the jail. Meanwhile, the Ambassador successfully
negotiated an agreement with the Foreign Secretary to
transfer Smith to U.S. custody in accordance with the
Visiting Forces Agreement. On December 29, over three weeks
after Philippine authorities forcibly took custody of Smith,
the Ambassador persuaded Secretary of Justice Gonzalez to
transfer custody of Smith back to the U.S. Embassy.

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ACCOMMODATIONS
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6. (C) Smith was initially housed in a room in the Rowe
Building of the Chancery. However, because of Embassy
construction, Smith was later moved to a new, more private,
CONEX-type trailer, 10 x 12 square feet, funded by III MEF
and coordinated by the Embassy's General Services Office.
The facility is furnished with air-conditioning and basic
amenities and necessities, including television, telephone,
and internet service. He has access to fitness and sports
facilities as part of a daily workout regimen, and is
supervised 24 hours a day by representatives from III MEF.
Smith receives regular visits from his pastors and lawyers
and from members of Embassy community. He also has received
visits from his family in the U.S. and from several U.S.
Marine Corps General Officers, including the Commanding
Officer of III MEF in Okinawa. Finally, Smith is visited
routinely by Philippine officials, including Department of
Interior Undersecretary Marius Corpus.


7. (C) During a visit to Manila in October, LCpl Smith's
mother raised several concerns regarding his accommodations,
all of which were immediately addressed by the ACS chief,
Embassy General Services, and III MEF representative. Among
the actions taken by Post to enhance Smith's welfare were
installation of a smoke detector and new fire extinguisher in
the trailer, servicing of the air conditioner, which had been
leaking, and replacement of the carpet. Ms. Smith also
inquired whether he could spend more time outside his
trailer. While LCpl Smith cannot freely move about the
Chancery grounds, there are no restrictions on the time he
spends outside his trailer within a limited area. In a
meeting with the Ambassador during Smith's parents' October
visit, the Ambassador reiterated to them USG commitment to

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bring this case to a fair resolution as quickly as possible
and, in the interim, to make Smith's detention as comfortable
and humane as possible under the circumstances.

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SAFEGUARDING SMITH'S SECURITY
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8. (C) Given the intensely charged atmosphere this case has
engendered, safeguarding LCpl Smith's safety and security has
proven to be a significant challenge. Despite the many
groups that have expressed anti-Smith sentiment, the Regional
Security Officer (RSO) has kept him safe, transferring him
securely and without incident to and from the Embassy to
trial proceedings when Smith's presence was required and to
the hospital for minor medical procedures. In the last three
years, over 70 demonstrations by various activist
organizations have occurred at the Embassy denouncing Smith,
the VFA, and U.S. military presence in the Philippines. The
vast majority of these potentially volatile situations have
remained peaceful and, with very minor exceptions, have not
resulted in injuries or property damage. In a compound
secured by the Marine Security Guard 24 hours a day, and with
a III MEF representative with him at all times, Smith is held
in the safest possible place for him in the Philippines.

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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. Public opinion polling
point up the political pressures of Smith's case.
Confidential Embassy-funded polling of Filipino opinion
conducted over the last three years by the most respected
polling company in the Philippines consistently indicates
that the vast majority of the Philippine people -- across
socioeconomic levels and throughout the country -- believe
that LCpl Smith is guilty and should serve his entire 40-year
sentence; only seven percent of respondents believe Smith
should be acquitted. Over 70 percent of people surveyed
believed that U.S. military personnel do not respect
Philippine laws regarding the Smith case. The Embassy's
Public Affairs Office has been bombarded with countless media
inquiries regarding the incident, LCpl Smith, the VFA, U.S.
military engagement in Mindanao, and other related matters
for the past three years.


10. (C) Mission officials, who are queried about the Smith
case constantly, have sought to direct public attention
toward the judicial process and away from broader issues of
U.S.-Philippine relations. The spillover potential
continues, as demonstrated by a recent Supreme Court hearing
on Smith's custody, which turned into a broader discussion of
bilateral military issues (ref B). Our combined efforts and
contacts with key Philippine officials over the last three
years have helped insulate the VFA from harmful effects
stemming from the case that could have seriously damaged our
military and counterterrorism cooperation (ref A). Excellent
coordination with elements of the U.S. military has produced
successful public programs -- such as Operation Goodwill with
III MEF -- to improve the image of the U.S. Marine Corps here.

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INTERAGENCY COORDINATION
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11. (C) Reflecting the vital importance the Mission attaches
to LCpl Smith's well being, the DCM has chaired a weekly
meeting for the last three years of key Mission agencies and
PACOM representatives to ensure proper coordination and
appropriate support to Smith. The Marine Case Working Group
brings together III MEF representatives at Post, the Regional
Security Officer, the Public Affairs Officer, Political
Counselor, American Citizen Services Chief, U.S. military
representatives from JUSMAG and others to discuss Smith's
welfare, security issues, public affairs. Through this
weekly meeting, Post continually monitors Smith's welfare to
ensure his needs are being met in a manner appropriate to his
circumstances.

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DIPLOMATIC EFFORTS
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12. (C) Throughout the three full years that Smith's trial
and custody have spanned, the Ambassador and Embassy officers
have consistently pressed Smith's case at the most senior

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levels of the Philippine government, urging a just and rapid
resolution to this situation. In numerous meetings with key
Philippine government officials, including the President,
Foreign Secretary, Executive Secretary, National Security
Advisor, Secretary of the Interior and Local Government,
Secretary of National Defense, and others, the Ambassador,
DCM, and country team members have stressed that the U.S. has
adhered to the letter and spirit of the Visiting Forces
Agreement. We have emphasized that it is similarly incumbent
on the Philippine government to adhere to its obligations
under the VFA. As this 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.


COMMENT:
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13. (C) As we have discussed with senior members of the U.S.
military, we believe we can ultimately work out a solution to
this case. As the first such arrest/conviction under the
U.S.-Philippines Visiting Forces Agreement, there are
important ramifications for our mil-mil and overall
relationship. U.S. unilateral solutions could remove LCpl
Smith from Philippine jurisdiction, but such a blatant
violation of our Visiting Forces Agreement with the
Philippines would jeopardize the status of some 600 U.S.
Special Forces deployed in the Philippines, imperil our
military exercises, and end the strong counter-terrorism
relationship the United States has with the Philippines.
Senior Philippine Government officials recognize that this
case is not a winner for either of our countries and, as LCpl
Smith's appeal moves through the judicial process, we will
continue to work with them on a dignified solution.

KENNEY