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RP-US war games cancelled

Smith custody row behind US decision


By Christine Avendaño, Volt Contreras
Inquirer
Last updated 01:59am (Mla time) 12/23/2006


Published on page A1 of the December 23, 2006 issue of the Philippine Daily Inquirer


THE chief of the US Pacific Command canceled on Thursday the annual RP-US war games as a result of the refusal of the Makati Regional Trial Court and the Court of Appeals to return to US custody an American soldier convicted of raping a Filipino woman.

The US Embassy in Manila yesterday confirmed the announcement of Adm. William Fallon who, according to a New York Times report, canceled next year’s joint Balikatan exercises over the custody of Lance Cpl. Daniel Smith.

“It is true we are going to cancel the Balikatan 2007 as the issue of protection for US servicemen remains in doubt,” embassy spokesperson Matthew Lussenhop said when reached by the Inquirer.

“It would not be prudent to bring additional US troops for that exercise,” Lussenhop said.

The announcement was seen as a direct offshoot of a seething legal dispute in Manila on how the RP-US Visiting Forces Agreement, a 1999 document governing the conduct of the joint exercises, should apply to the convicted Marine.

Ed Malaya, spokesperson of the Department of Foreign Affairs, said it had yet to be “officially notified” of the cancellation as of 3 p.m. yesterday, and declined to issue a statement.

Malacañang also declined to comment, but Justice Secretary Raul Gonzalez said the US government did what it did to protect its soldiers.

The justice secretary quoted the governor of Albay, Fernando Gonzales, as saying that US authorities had pulled out their troops helping in typhoon-ravaged areas in Bicol.

“They are displeased with us. We have a treaty and we didn’t comply,” said the secretary, who had from the outset upheld Malacañang’s position that custody of Smith belonged to US authorities.


Community relations

According to Lussenhop, “ongoing” community relations projects involving the US military will not be affected by the cancellation of the war games.

The US Embassy website is currently reporting on the Christmas gift-giving activities of US servicemen, some of them dressed as Santa Claus, in Manila, Zamboanga City and Jolo.

But the New York Times quoted Fallon as saying that he would also stop the aid and reconstruction programs carried out by the American military in the Philippines until he was confident that the troops’ legal rights would be protected under the VFA.

Fallon also ordered the withdrawal of an aid team in the Philippines that was assessing the needs of typhoon-ravaged areas, and canceled a number of visits by American ships, the New York Times reported.

It quoted Fallon as saying that he had likewise canceled the field exercise portions of the Balikatan, which was to open in the coming weeks and involve 4,700 American and 3,000 Philippine military personnel.

(Lussenhop said the Balikatan traditionally opened in February.)

Fallon also said smaller segments of the exercise involving computer simulations and classroom work might be allowed to proceed if the custody dispute would be resolved.

“The last thing we want is to undo all the good work that has been done between the Armed Forces of the Philippines and ourselves, but this puts me in a real dilemma because I need to guarantee the safety of our forces,” the admiral was quoted as saying.

“I’m not the judge of the guilt or innocence of the individual. The issue is only one of custody. I am responsible to our people in uniform. I have to have guarantees that I can trust their safety to an international agreement,” he added.


Can’t blame them

In a phone interview, Justice Secretary Gonzalez said he believed the pullout of the US troops in Bicol and the cancellation of the Balikatan were a precautionary measure.

US authorities want “to protect their soldiers” and “to be sure their soldiers were out of harm’s way,” he said, adding:

“I really can’t blame them because suppose another incident happened and some people want to take advantage of it?”

Gonzalez also said US authorities wanted to make sure “that what was agreed on in the treaty should be complied with.”

“Probably they’re holding back and restudying their options,” he said.

Gonzalez said the Philippine government’s executive branch, especially the President, was “in between the devil and the deep blue sea”—unable to “impose on the courts,” which were “singing a different tune” on the custody issue.


Pressure

Fallon’s announcement was seen as Washington’s clearest sign of displeasure over Smith’s continued incarceration at the Makati City Jail (MCJ), three weeks after Makati Judge Benjamin Pozon found him guilty of raping “Nicole” in a moving van at the Subic Bay Freeport on Nov. 1, 2005.

But Solicitor General Antonio Eduardo Nachura said he did not think the cancellation of the war games would push through “because, after all, the Philippines had been exerting efforts” to have Smith returned to US custody.

“We shouldn’t be faulted for what has been happening so far,” he said in a separate phone interview.

Asked whether he thought it was some form of pressure, Nachura said: “In a sense, they are pressuring us to comply with the terms of the VFA.”

He said both the United States and the DFA were interpreting the VFA provision on custody “along the same lines,” but that the matter was now in the courts.

“We have to go through the judicial process,” he said.


On shore leave

Smith and his three coaccused Marines participated in the war games last year and were on shore leave when the rape took place. All four soldiers were ordered to attend every hearing in Pozon’s court but remained in the custody of the US Embassy throughout their 4-month marathon trial.

All four said consensual sex between Smith and Nicole, and not rape, had occurred.

The three other accused were acquitted of the crime and shipped out by US authorities hours after the verdict was handed down. Smith faces up to 40 years in prison.

Upholding Philippine sovereignty in his interpretation of the VFA, Pozon later also rejected the soldier’s request that he be returned to US custody while his conviction was on appeal.

The judge disregarded the position of the Department of Justice and the DFA, which both said Smith should be returned to US custody for now per the Philippines’ “treaty obligations.”


In appellate court

Last week, warning of serious effects on RP-US relations, the DFA formally filed a motion backing Smith’s petition at the Court of Appeals seeking the nullification of Pozon’s order committing him to the MCJ.

Nicole also filed a motion opposing Smith’s petition, and argued that the points he had raised concerning the VFA were questions of law that were for the Supreme Court, and not the appellate court, to address.

But on Tuesday, the appellate court’s 11th Division deferred ruling on the matter, citing the need for a full deliberation to determine the regularity of the Pozon order.

The appellate court’s position ensured Smith’s continued stay at the MCJ during the holidays.

In an earlier statement, the US Embassy called Pozon’s ruling on the custody issue “a reflection of a misunderstanding of the nature of Philippine obligations under the VFA during judicial proceedings.”

US Ambassador Kristie Kenney had also remarked in a dzMM radio interview that “Washington was disappointed because it (Smith’s detention at the MCJ) wasn’t consistent with the VFA.”

“The [VFA] calls for Smith to remain in US custody until the determination of the case and of all the judicial proceedings. That is defined through the completion of an appeals process,” she added.


Reliance

Early this week, the DFA and Kenney signed a manifestation of the desire of the Philippine and US governments to have Smith returned to US custody.

Manila is reliant on US military aid and advice to help fight Moro insurgents and, in addition to the annual war games, has up to 300 US military advisers working with local troops to help them ensnare secessionist militants in the restive South.

The annual Balikatan war games are the centerpiece of Washington and Manila’s close security alliance and usually involve up to 5,000 US soldiers and around 3,000 Filipino troops over a two-week period.

The war games, which this year took place from Feb. 20 to March 5, consist of command post exercises, field and cross-training activities, live-fire drills and humanitarian and civil assistance such as road repairs and engineering works.

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To sit down with these men and deal with them as the representatives of an enlightened and civilized people is to deride ones own dignity and to invite the disaster of their treachery - General Matthew Ridgway