FOREIGN SECRETARY CONCURS WITH RAPID SMITH

C O N F I D E N T I A L SECTION 01 OF 02 MANILA 000903 SIPDIS E.O. 12958: DECL: 04/27/2019 TAGS: PREL MARR KCRM CASC RP SUBJECT: FOREIGN SECRETARY CONCURS WITH RAPID SMITH DEPARTURE REF: MANILA 864 AND PREVIOUS Classified By: Ambassador Kristie A. Kenney for reasons 1.4 (b) and (d). ¶1. (C) SUMMARY. Following intense media pressure following the Philippine Court of Appeals' April 23 acquittal of Lance Corporal Daniel J. Smith, press interest has begun to subside. The public focus remains whether the U.S. and Philippine governments followed proper procedures in transferring Smith out of the Philippines, and if the two governments have begun "renegotiation" of the Visiting Forces Agreement. Department of Foreign Affairs and Malacanang Palace officials have spoken out strongly, stating unequivocally that, in accordance with the Appeals Court decision, Smith was properly released immediately and they were notified by the U.S. Embassy before he was taken out of the country. In a private breakfast meeting April 27, Foreign Secretary Alberto Romulo told Ambassador that he expected the Senate to hold hearings in May on the Visiting Forces Agreement and suggested that the Mission and the Department of Foreign Affairs consider quiet discussions on custody and detention facilities under the Agreement. The Mission believes this is an opportune time to begin discreet engagement with the Philippine government, both to clarify the lingering issue of custody, which the Agreement left vague, and to determine appropriate detention facilities for U.S. personnel upon conviction. END SUMMARY. RAPID DEPARTURE CORRECT -------------- ¶2. (C) The Embassy learned of the Court of Appeals ruling the afternoon of April 23, after receiving a copy of the decision sent by courier directly to Smith. Relying on the language of the decision that Smith was "ordered released immediately," and on representations from the Office of the Solicitor General and the Department of Foreign Affairs Legal Office that under the doctrine of double jeopardy the Philippine Government could not appeal the case and Smith could leave immediately upon acquittal, the Embassy used military assets, currently in the Philippines for the annual Balikatan exercises, to transfer Smith to Guam the same day. Embassy officials engaged in intense coordination with the Department of Foreign Affairs (DFA) throughout the process and sent the DFA a diplomatic note April 24, officially notifying the Philippine government that Smith had departed. In accordance with the Visiting Forces Agreement, Smith had entered Philippine soil without going through immigration or customs procedures; he departed the Philippines in the same manner, without going through immigration and customs procedures, consistent with his immigration status. ¶3. (C) While the practice is legal and conforms with the VFA, activists and opponents of the VFA are using this issue to question whether these procedures violated the sovereignty of the Philippines. As the Ambassador has stressed in public, the Smith case demonstrated that the VFA works. In the 10 years the VFA has been in effect, there has been only one case of its kind that has taken place, despite the fact that tens of thousands of U.S. military personnel have participated in bilateral exercises. During the arduous legal proceedings of the last three-and-a-half years, both the Philippine government and the Embassy have lived up to the requirements of the VFA, as Philippine officials readily acknowledge. Still, the issue of Smith's custody on Embassy grounds exacted a significant toll, both in terms of negative impact on the U.S. Philippine relationship given intense negative publicity surrounding his stay, as well as the administrative difficulties and complexities entailed in his custody here at the Chancery. CLARIFYING CUSTODY AND DETENTION FACILITIES -------------- ¶4. (C) In a private breakfast meeting April 27 (septel), Foreign Secretary Alberto Romulo told Ambassador that he was pleased with the outcome of the case, attributing the success on the excellent collaboration the Philippine government had enjoyed with the Embassy. He observed that with several thousand U.S. servicemen currently in the Philippines for the Balikatan bilateral exercises it was imperative that both sides completely followed the letter of the VFA. Romulo said he expected the Senate to hold hearings, probably in May, on "renegotiating" or outright abrogating the Visiting Forces Agreement. He speculated that with the Presidential election beginning to gear up, many would-be presidential candidates would use the issue to advance their interests. He suggested MANILA 00000903 002 OF 002 that the two governments begin very discreet preliminary discussions on custody and on appropriate detention facilities for convicted U.S. servicemen. COMMENT -------------- ¶5. (C) Given ambiguity in the VFA about both where custody lies following initial conviction of a U.S. servicemen and detention facilities where they should be held, we believe it is important that we begin discussions on how we clarify these undelineated requirements and whether there is a more workable, less debilitating, custody process. The last three-and-a-half years have clearly demonstrated that U.S. Chancery grounds are not appropriate detention facilities to hold such servicemen in custody, not least because Mission personnel have neither the resources nor expertise to serve as jailors. We believe that the unusual situation of having a diplomatic facility as a place for detention should be clarified in future discussions with the Philippine government. Post will provide suggestions in coming weeks as we digest the long term lessons of this case. KENNEY