US embassy cable - 05MANILA5231

C O N F I D E N T I A L SECTION 01 OF 03 MANILA 005231 
 
SIPDIS 
 
STATE FOR EAP, EAP/MTS, EAP/MLS, L/EAP 
PACOM ALSO FOR FPA HUSO 
 
E.O. 12958: DECL: 11/08/2015 
TAGS: PREL, MARR, ASEC, PHUM, PGOV, PINS, RP 
SUBJECT: LATEST DEVELOPMENTS IN ALLEGED RAPE CASE INVOLVING 
US MARINES 
 
REF: A. MANILA 5138 
 
     B. COMPACFLT PEARL HARBOR HI 030112Z NOV 05 
     C. OPREP-3/CTF 76.4/022000Z NOV 05 (NOTAL) 
 
Classified By: A/DCM Scott Bellard for reasons 
1.4(b) and (d). 
 
1.  (U)  This is an action request -- see para 6. 
 
2.  (C) Summary:  Acting Foreign Secretary Seguis delivered 
to Embassy on November 8 formal subpoenas for six US Marines 
allegedly involved in the rape of a Filipina in Olongapo City 
on November 1 (see text of Dip Note and DFA press release in 
paras 10-11).  Both the GRP and the USG continue 
investigating the case under the mechanisms provided by the 
Visiting Forces Agreement (VFA).  The Marines remain in US 
Embassy custody, although the GRP may soon request that it 
assume custody.  Embassy requests guidance on how we should 
best respond to such an eventual request (see para 6).  We 
continue to consult with Philippine Congressional and other 
leaders, and to reiterate our commitment to proceeding under 
the VFA, with the Marines in US custody but available for 
investigation and any judicial hearings.  The GRP has 
continued to express its support for the VFA, but both the 
VFA and USG have received some sharp criticism from national 
and local politicians, as well as various activist groups. 
End Summary. 
 
3.  (C) The Philippine Department of Justice, through the 
Olongapo City Prosecutor's Office, issued subpoenas on 
November 8 to US Marines Keith Silkwood, Daniel Smith, Albert 
Lara, Corey Burris, Chad Carpenter, and Dominic Duplantis, 
suspects in the alleged rape of a 22-year old Filipina in 
Olongapo City on November 1.  The Olongapo City Prosecutor's 
Office received the complaint of rape against Silkwood, 
Smith, Lara, Burris, Carpenter, and one "John Doe" on 
November 3.  (Note:  The criminal complaint did not include 
Duplantis' name.  It listed the other five marines plus a 
"John Doe" as the accused.  End Note.)  The Prosecutor's 
Office also on November 8 transmitted to the DOJ the 
subpoenas, which Acting Foreign Secretary Seguis then 
transmitted to A/DCM (copy faxed to EAP/MTS).  According to 
the subpoenas, respondents must either personally appear or 
be represented by their counsel on November 23 and 29 for 
preliminary investigation hearings. A/DCM pledged full 
cooperation under the terms of the VFA. 
 
4.  (C) VFA Commission Executive Secretary Zosimo Paredes 
separately told Poloff on November 7 that he would soon send 
to Foreign Secretary Romulo a recommendation that the GRP 
request custody of the Marines under the VFA provision that: 
"in extraordinary cases, the Philippine government shall 
present its position to the United States Government 
regarding custody, which the United States Government shall 
take into full account."  He opined that the request would 
defuse political tensions surrounding the case. 
 
5.  (C) A/DCM urged Acting Secretary Seguis that the Marines 
should remain in US custody.  Both Acting Secretary Seguis 
and Chief Prosecutor Zuno confirmed that there was no request 
by the GRP for transfer of custody at this time.  Zuno 
emphasized that the case remained only under investigation, 
with no charges filed.  Should charges be filed later, judges 
would likely issue arrest warrants, at which time the GRP 
would consider invoking the relevant clause of the VFA for 
Philippine custody.  A/DCM reiterated our preference for US 
custody but with all appropriate access to GRP authorities. 
Local media filmed the turnover of the subpoenas and later 
questioned A/DCM outside the Secretary's office.  A/DCM 
reiterated full USG cooperation under the VFA, in accordance 
with the principle of presumption of innocence under US and 
Philippine law. 
 
6. (C)  Action Request:  Embassy would welcome guidance from 
EAP and L/EAP on how we should best respond to a formal 
request for transfer of custody under the VFA.  End Action 
Request. 
 
7.  (C) The six Marines are now detailed TDY to JUSMAG, under 
the responsibility of the Mission.  They are currently in a 
JUSMAG residence.  All are on now in the process of retaining 
local counsel.  The US Naval Criminal Investigation Service 
(NCIS) continues its parallel investigation into the case. 
 
8.  (SBU) The alleged rape has drawn considerable media 
attention locally.  Embassy statements that we will cooperate 
with the GRP under the terms of the VFA have received wide 
and generally favorable coverage.  The case has nonetheless 
also engendered sparsely-attended protests, largely from 
leftist and traditionally anti-American groups, who are 
calling for sole Philippine jurisdiction over the case and an 
end to the VFA.  Contacts at the GRP's National Security 
Council confirmed that some groups plan to organize a 
"National Day of Protest" on November 10.  Several senators 
have called for a re-evaluation of the VFA, and six 
legislators at the House of Representatives have stated that 
they will file a resolution calling for the abrogation of the 
VFA.  Other national and local politicians have used the 
event as an opportunity to engage in broad criticism of the 
US.  CDA and A/DCM continue to consult closely with the 
Senate and House Foreign Affairs Committee chairmen and other 
concerned politicians. 
 
9.  (C) The GRP continues to stand firmly behind the VFA. 
However, on the margins of USAID Assistant Administrator 
Kunder's November 8 call, President Gloria Macapagal Arroyo 
told CDA that the GRP would need to "see how this all 
develops," noting that "if this were just a driver being 
beaten up, that would be one thing, but this was a woman and 
we in the Philippines treat our women with respect." 
 
10. (U) Text of Dip Note: 
 
The Department of Foreign Affairs presents its compliments to 
the Embassy of the United States of America and wishes to 
refer to the primary right of the Philippines to exercise 
jurisdiction pursuant to paragraph 1(a) and paragraph 3(a), 
Article V of the Agreement Between the Government of the 
Republic of the Philippines and the Government of the United 
States of America Regarding the Treatment of United States 
Armed Forces Visiting the Philippines ("the Agreement") in 
relation to the complaints of rape filed against certain 
United States military personnel at the City Prosecution 
Office of Olangapo City. 
 
The Department has the further honor to give formal 
notification, in accordance with paragraphs 4 and 7 of 
Article V of the Agreement, and in particular paragraph 6 of 
Article V of the Agreement, for the Embassy to make the 
respondents named in the attached Subpoenas issued by 
Olongapo City Prosecutor Prudencio B. Jalandoni dated 08 
November 2005, available to the Office of the City 
Prosecution of Olongapo City on the time and dates specified 
in the Subpoenas for the preliminary investigation of the 
charges of rape. 
 
The Department also wishes to point out to the portion of the 
Subpoenas that give the opportunity for the respondents to 
submit within the time allowed their counter-affidavits and 
other supporting documents to the City Prosecution Office of 
Olongapo City, furnishing copies to the complainant named in 
the Subpoena. 
 
The Department also wishes to refer to the portion of the 
Subpoenas that state that failure to submit 
counter-affidavits within the time allowed will be deemed a 
waiver of the right to preliminary investigation and that the 
case shall be resolved on the basis of the evidence presented 
by the complainant. 
 
The Department of Foreign Affairs avails itself of this 
opportunity to renew to the Embassy of the United States of 
America the assurances of its highest consideration. 
 
Pasay City, 8 November, 2005 
 
End Text. 
 
11. (U) Text of Press Release from the Department of Foreign 
Affairs: 
 
Statement of Acting Foreign Affairs Secretary Rafael E. 
Seguis on the formal notification requiring the presence of 
the accused US service at the preliminary investigation on 
charges of rape, 8 November 2005 
 
The Department of Foreign Affairs today reiterated its 
primary right to exercise jurisdiction pursuant to paragraph 
1(a) and paragraph 3(a), Article V of the Agreement Between 
the Government of the Republic of the Philippines and the 
Government of the United States of America Regarding the 
Treatment of United States Armed Forces Visiting the 
Philippines ("the Agreement") in relation to the complaints 
of rape filed against certain United States military 
personnel at the City Prosecution Office of Olongapo City. 
 
In this connection, the Department gave formal notification 
today, in accordance with paragraphs 4 and 7 of Article V of 
the Agreement, and in particular paragraph 6 of Article V of 
the Agreement, for the US Embassy to make the respondents 
named in the Subpoenas issued by Olongapo City Prosecutor 
Prudencio B. Jalandoni dated 08 November 2005, available to 
the Office of the City Prosecution Of Olongapo City on the 
time and dates specified in the Subpoenas for the preliminary 
investigation of the charges of rape. 
 
The Department has received the assurance of the US Embassy 
of their full cooperation and compliance with their treaty 
commitments under the Agreement. 
 
The Department will continue to work closely with the 
appropriate Philippine authorities to ensure that justice is 
served. 
 
End Text. 
 
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Jones