US embassy cable - 05MANILA5348

C O N F I D E N T I A L SECTION 01 OF 04 MANILA 005348 
 
SIPDIS 
 
STATE FOR EAP, EAP/MTS, L/EAP 
DOD FOR ISA/ALLEN 
PACOM ALSO FOR FPA 
 
E.O. 12958: DECL: 11/16/2015 
TAGS: PREL, MARR, PHUM, ASEC, KCRM, RP 
SUBJECT: ALLEGED RAPE CASE:  GRP REQUEST FOR CUSTODY 
 
REF: STATE 208859 AND PREVIOUS 
 
Classified By: CDA Paul W. Jones for reasons 1.4 (b) and (d) 
 
1.  (C)  Summary/Comment:  In apparent response to a November 
17 hearing called by the Congressional Oversight Committee 
for the Visiting Forces Agreement (VFA), Department of 
Foreign Affairs (DFA) officials called in Charge on November 
16 to present diplomatic notes asserting GRP positions and 
interpretations of the VFA on:  custody (requesting that the 
suspects be turned over to Philippine authorities "as soon as 
practicable"); physical presence of the suspects (that they 
not leave the Philippines); and, cooperation in the 
investigation (that the DFA will forward U.S. requests for 
access to witnesses and evidence to appropriate authorities 
and requests copies of identification documents of suspects). 
 Charge closely questioned them regarding the rationales for 
each position and interpretation.  By mutual agreement, there 
was no media present outside the meeting and DFA officials 
said they would not comment on the meeting to the media. 
However, the officials said it was possible that Malacanang 
would instruct the VFA Commission Executor Director -- who 
has been summoned to the Congressional hearing -- to convey 
the contents of the Diplomatic Notes to the Oversight 
Committee, in public or executive session, if indeed 
Malacanang authorizes him to appear under the controversial 
Presidential Order 464.  At the conclusion of the session, 
CDA conveyed that all three diplomatic notes would be 
referred to Washington for formal response.  He emphasized 
the urgency of US access to witnesses and evidence, noting 
that some progress had been made already.  (Note:  NCIS 
officials interviewed the driver of the van on November 16 
and will meet on November 17 with local prosecutors handling 
the case to coordinate on access to other suspects and 
physical evidence.  End note).  The GRP's motivation for 
conveying these positions and interpretations is clearly 
intense political pressure.  Indeed, many of the 
interpretations match exactly positions taken by opposition 
politicians and commentators.  It is not clear whether the 
GRP is committed to these positions/interpretations, or 
simply wants to transfer the pressure from itself to the U.S. 
End Summary/Comment 
 
2.  (C)  Assistant Secretary of Foreign Affairs for American 
Affairs Ariel Abadilla telephoned CDA the evening of 
November 15.  Noting the decision that day by the 
Congressional VFA Oversight Committee to hold hearings on the 
VFA in light of the case of alleged rape involving US 
marines, Abadilla requested CDA appear at DFA to receive 
Philippine positions on the case on November 16.  When asked, 
Abadilla said he could not describe the positions, as 
they were still being drafted.  Charge requested that the 
meeting be conducted without media attention, to which 
Abadilla agreed early November 16.  At the meeting, Abadilla 
conveyed three diplomatic notes (see paras 10-12).  The 
salient points in each are: 
--  No. 05-2662 :  "in view of the non-receipt of a formal 
request for initial United States' custody over the United 
States military personnel...and the extraordinary nature of 
the case, being a heinous crime, the Department requests the 
Embassy ...to turn over custody...as soon as practicable" and 
looks "forward to discussions with the Embassy on 
arrangements on said confinement or detention" of the US 
military personnel; 
--No. 05-2661:  "the U.S. military personnel involved in said 
alleged rape should remain in the Philippines for the 
duration of the investigative and judicial proceedings" and 
that the "one-year period referred to in Paragraph 6, Article 
V of the Agreement shall commence upon the acquisition of 
jurisdiction over the person of the accused by the competent 
court"; 
--  No. 05-2660:  "the Department requests the Embassy...to 
provide authenticated copies of the personal identify card of 
similar papers of the United States military personnel 
involved in the alleged rape..." 
 
3.  (C)  Custody:  CDA noted that the US military authorities 
on the scene on November 2 had requested and obtained custody 
from representatives of the Subic Bay Metropolitan Authority, 
adding that the VFA did not require any "formal" request.  He 
acknowledged the right of the GRP to invoke the 
"extraordinary" nature clause of the VFA to request custody, 
and promised that the Embassy would refer this request to 
Washington for full consideration.  J. Eduardo Malaya, 
Executive Director of the DFA's Office of Legal Affairs, 
asserted the GRP's belief that there was no "proper" request 
from the U.S. for custody and that the Philippine authorities 
who may have been on the scene did not have authority to 
waive Philippine custody.  He claimed that the SBMA 
authorities had "no recollection" of any US request for 
custody.  He claimed further that State Chief Prosecutor Zuno 
had instructed the Olangapo City prosecutor's office to take 
the suspects into custody on November 2.  Malaya insisted 
that any request by the U.S. for custody should have 
"ideally" been done through "proper channels."  Malaya also 
clarified that the Philippine request now for custody was 
based both on the ground of lack of a "formal" request and on 
the "extraordinary" nature of the case.   Abadilla noted that 
the VFA requires a "formal notification" for the GRP to gain 
access to US personnel, and therefore, on the basis of 
reciprocity, the U.S. should have a similar need for a 
"formal" request to retain or obtain custody. 
 
4.  (C)  One year rule: Abadilla clarified that the 
"jurisdiction" period initiating the one year rule would 
begin with filing of criminal charges in a court and 
arraignment of suspects.  He described this as a legal 
interpretation based on Philippine rules of court. 
 
5.  (C)  Physical presence:  Malaya said that the basis for 
the Philippine position that the suspects not leave the 
country was threefold: 
--  Philippine authorities exercise jurisdiction, therefore 
suspects should "at all times" be available to Philippine 
authorities during the investigation, prosecutorial, and 
judicial phases; 
--  if the accused were not continuously present, it would be 
"difficult to conduct "marathon hearings" and therefore 
jeopardize the one year rule  (Note:  Abadilla explained that 
the Department of Justice plans to request that the Supreme 
Court -- which in the Philippines also administers the court 
system --  authorize "marathon hearings" in this court case 
to speed up the process in order to meet the one year rule. 
end note); and, 
--  under Philippine law, bail would usually not be available 
in cases where the evidence was strong. 
 
6.  (C)  CDA noted that the suspects were not subject to 
criminal charges and should continue to be presumed innocent. 
 CDA read to the DFA officials the provisions in Para 6 of 
Article V of VFA requiring only that US authorities ensure 
that the US military personnel in such cases be available "in 
time" for such proceedings, and confirmed that the US side 
would fulfill this responsibility.  He asked for assurances 
(as instructed in reftel) that the individuals would be 
returned to US custody once the purpose for which they had 
been made available had been satisfied or at the end of the 
business day, whichever occurs first.  Abadilla and Malaya 
took note of this request, and agreed that the case remains 
now under investigation and that the individuals are 
suspects, not accused.  Malaya commented that the "intent" of 
the VFA was that suspects should remain in the Philippines 
once the "court acquires jurisdiction."  CDA noted that the 
VFA did not differentiate between the handling of such 
individuals during the investigative and judicial phases of 
such cases.  (Note:  Embassy will follow up the request for 
assurances on the return of custody by diplomatic note.  end 
note) 
 
7.  (C)  IDs:  Malaya said that the request for copies of 
military IDs or other IDs came from the private attorney of 
the alleged victim.  CDA queried why the verification of 
identify was not handled by the relevant authorities 
conducting the preliminary investigation or the court, rather 
than now at the request of the attorney.  (Comment:  We 
wonder if the request for this identification may be more 
easily to prevent the suspects from leaving the country.  End 
comment) 
 
8.  (C)  CDA underscored USG intention to cooperate under the 
terms of the VFA, expressed appreciation for urgent efforts 
to make witnesses and physical evidence available to NCIS 
agents (noting that we had first made those requests on 
November 3), reiterated USG commitment to pursuing its own 
investigation, and encouraged the DFA officials that we 
handle our communications privately rather than through the 
media. 
 
9.  (C)  The DFA representatives, including the Press 
Spokesman, agreed that the DFA would issue no statement about 
the diplomatic notes or the November 16 discussion.  No media 
were present before or after the media. 
 
10.  (SBU)  Text of Diplomatic note No. 05-2662 
 
quote 
 
The Department of Foreign Affairs presents its compliments to 
the Embassy of the United States of America and has the honor 
to refer to Article V of the Agreement between the Republic 
of the Philippines and the United States of America Regarding 
the Treatment of United States Armed Forces Personnel 
Visiting the Philippines ("the Agreement"), in relation to 
the conduct of investigations of the alleged rape that 
occurred in Subic on November 1, 2005. 
 
Pursuant to the exercise by the Philippines of its primary 
right of jurisdiction over the case as conveyed through this 
Department's Note Verbale No. 05-2579 and in view of the 
non-receipt of a formal request for initial United States' 
custody over the United States military personnel involved in 
the alleged rape relative to Article V, Paragraph 6 of the 
Agreement and the extraordinary nature of the case, being a 
heinous crime, the Department requests the Embassy of the 
United States of America to turn over custody of said U.S. 
military personnel to Philippine authorities as soon as 
practicable. 
 
Mindful of Article V, paragraph 10 of the Agreement which 
states that the confinement or detention by Philippine 
authorities of the U.S. military personnel shall be carried 
out in facilities agreed on by appropriate Philippine and 
United States authorities, this Department and the Philippine 
Department of Justice look forward to discussions with the 
Embassy on arrangements on said confinement or detention. 
 
The Department... 
 
Pasay City, 16 November 2005 
end quote 
 
11.  (SBU)  Text of diplomatic note No. 05-2661 
 
quote 
 
The Department of Foreign Affairs presents its compliments to 
the Embassy of the United States of America and wishes to 
refer to the conduct of criminal proceedings against United 
States military personnel pursuant to Article V of the 
Agreement between the Republic of the Philippines and the 
United States of America Regarding the Treatment of United 
States Armed Forces Personnel Visiting the Philippines ("the 
Agreement"). 
 
In line with the Philippines' exercise of the primary right 
of jurisdiction over said case under Article V, paragraphs 
1(a) and 3(b) of the Agreement, it is the position of the 
Philippine Government that the U.S. military personnel 
involved in said alleged rape should remain in the 
Philippines for the duration of the investigative and 
judicial proceedings. 
 
Furthermore, paragraph 6 of said Article V obligates United 
States military authorities, in part, to make available 
personnel... for any investigative or judicial proceedings," 
and "in the event Philippine judicial proceedings are not 
completed within one year, the United States shall be 
relieved of any obligations under this paragraph." 
 
It is the understanding of the Philippine Government that the 
one-year period referred to in Paragraph 6, article V of the 
Agreement shall commence upon the acquisition of jurisdiction 
over the person of the accused by the competent court. 
 
The Department... 
 
Pasay City, 16 November 2005 
end quote 
 
12.  (SBU)  Text of diplomatic note No. 05-2660 
 
quote 
 
The Department of Foreign Affairs presents its compliments to 
the Embassy of the United States of America and, with 
reference to the latter's Note Verbale No. 1576 dated 14 
November 2005, has the honor to inform the Embassy that the 
Department has forwarded the Embassy's request to the 
National Bureau of Investigation for coordination with 
appropriate agencies and individuals, pursuant to Article V, 
paragraph 7, of the Agreement between the Republic of the 
Philippines and the United States of America Regarding the 
Treatment of United States Armed Forces Personnel Visiting 
the Philippines, on mutual assistance in providing for the 
attendance of witnesses and in the collection and production 
of evidence. 
 
Pursuant to the said provision on mutual assistance in 
evidence gathering, this Department requests the Embassy of 
the United States of America to provide authenticated copies 
of the personal identify card or similar papers of the United 
States military personnel involved in the alleged rape which 
occurred on 1 November in Subic, and any individual or 
collective document issued by the U.S. military authority 
authorizing their travel to the Philippines. 
 
The Department ... 
 
Pasay City, 16 November 2005 
end quote 
 
Jones