Wiki: US admitted ambiguity in VFA custody provision (2/3)

First published in The Philippine Star, 23 October 2014

MANILA, Philippines – The United States embassy recognized the “ambiguity” of the custody provision in the Visiting Forces Agreement (VFA) and admitted in 2009 the need to clarify the issue with the Philippine government, a confidential cable released by WikiLeaks showed.

The STAR has started reviewing the cables released by WikiLeaks in 2011 in the light of the death of Filipino transgender Jeffrey “Jennifer” Laude, who was allegedly killed by a US Marine in Subic earlier this month.

One cable – dated April 27, 2009 and supposedly classified confidential by then US ambassador Kristie Kenney – revealed the embassy’s position agreeing to the need to clarify the custody issue of US servicemen convicted for committing a crime in the country.

“Given ambiguity in the VFA about both where custody lies following initial conviction of a US 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,” read Kenney’s comment in the cable sent to Washington.

The supposed cable was written just days after the Court of Appeals reversed the conviction of US serviceman Lance Corporal Daniel Smith, who was charged for allegedly raping a Filipina in Subic in 2005.

Another cable, dated April 23, 2009, also noted that the Smith case has demonstrated the need to clarify the custody provisions of the VFA.

“While we maintain the view that we retain custody until the conclusion of all judicial proceedings, the Philippine Supreme Court recently ruled that under the VFA the Philippine government takes custody of US personnel immediately upon conviction, and ordered the Philippine government to negotiate without delay with the US on placing Smith in a Philippine detention facility,” it read.

Article V Section 6 of the VFA states that “the custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.”

Following his conviction in December 2006, Smith was ordered by a Makati City judge to be detained in a Philippine detention cell.

Citing the VFA provision, particularly the phrase “completion of all judicial proceedings,” the US embassy – as well as the Philippine government – moved for the return of Smith to US custody since the case was still being appealed in the CA.

The return to US custody happened later that month. Smith was detained at the US Chancery grounds at the embassy until the appellate court issued its the decision.

Place of detention

In addition to the issue of custody following initial conviction, the cable also revealed the supposed concern of the US embassy over the detention facility where the accused will be detained.

Following the Smith case, the embassy said in the April 23 cable that the incident has “clearly shown that it is not a tenable situation for an accused military member to be kept in custody on the grounds of the US Chancery.

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