Crooked as they come

One of the issues that has been ignored by most US media has been the trial of Lance Corporal Daniel Smith, USMC for the rape of a Filipina girl. Smith was convicted of a trial court in proceedings which have divided observers. Smith was originally one of alleged gang rapists in a trial that has become a cause celebre with the Philippine Left. But after it become obvious that there was no gang rape, Smith was nevertheless convicted of rape for having sex with an intoxicated woman whose diminished capacity prevented her, in the reasoning of the judge, from giving consent in any event. But the political undercurrents were never far beneath the surface. Smith's trial has become a test of strength -- or perhaps a bargaining chip -- between a Left which wants to cancel the status of forces agreement known as the VFA between the US and the Philippines, under which training and aid are provided to the Philippine Military, and the Arroyo government, which needs the assistance badly.

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There is some disagreement among reasonable people as to whether or not Smith should have been convicted. But there seems little doubt that the trial was surrounded by a cloud of publicity from the first day. After Smith's conviction, he was removed from the custody of the US embassy to a local jail, despite provisions in the VFA that the accused should remain in US custody until legal proceedings are completed -- and they are not since Smith is allowed to appeal. After Smith was subsequently returned to US embassy -- without a court order and under irregular circumstances -- President Arroyo justified the Smith's transfer of custody in the following way.

Quezon City (2 January) -- President Gloria Macapagal Arroyo on Tuesday said that convicted rapist US Marine Lance Corporal Daniel Smith was transferred to US custody even without a court order to stem the "further deterioration of the strategic relationship" of the Philippines and the US.

"The government had to take this action in order to forestall the further deterioration in our strategic relationship with the United States, which was being rapidly eroded by our non-compliance with the Visiting Forces Agreement (VFA)," Mrs Arroyo said in a statement.

"I therefore ask all Filipinos to stand by it and to stand behind our alliance with the United States to fight terror and poverty," the President added. (PIA)

As it happens, I had dinner a few days ago with a lawyer who helped examine the legality of the Smith's detention at a local jail instead of at the US Embassy. He said that the text of the status of forces agreement was clear. Custody to the US until the legal proceedings were completed. He acknowledged that there were arguments based on the supposed spirit of the law which supported the contention that Smith, by this stage in the proceedings, should be turned over the host government. "But the spirit should be invoked only when the letter is equivocal. In this case it is not". But instead of basing her decision to transfer Smith back to the US embassy on the letter of the law -- although she backhandedly acknowledges it -- Gloria Macapagal Arroyo resorted to the weasely justification of arguing that she had to do it to save "the strategic relationship" with the United States. "The government had to take this action in order to forestall the further deterioration in our strategic relationship with the United States, which was being rapidly eroded by our non-compliance with the Visiting Forces Agreement (VFA)," Mrs Arroyo said in a statement. In other words, Arroyo was arguing that Smith was released, not accordance with the legal obligations, though she acknowledges that sotto voce, but in order to please America.

This is exactly the kind of pandering that Gloria Macapagal Arroyo demonstrated when she agreed to withdraw the Philippine contingent to Iraq and pay a ransom of US $6 million after Iraqi insurgents had kidnapped a Filipino overseas worker. Arroyo joined the deployment in Iraq for political gain in Washington, then dumped Washington in order to please the Leftist section of her constituency. Now she is blaming Washington for simply abiding by her treaty obligations in order to please her Leftist constituency. The reason why Arroyo wants the VFA and the US military aid package is clear. The Philippine military has been starved and twisted by official corruption. The VFA means it gets needed combat support, like the evacuation of Filipino troops injured in action to hospitals. Left to Arroyo's government, wounded Filipino soldiers are sometimes given last priority in the use of Philippine Airforce helicopters. One Filipino unit suffered 4 WIA taking a radical Muslim base camp in Mindanao. The officer, one of the most highly decorated in the Philippine military, radioed for a medevac and was told that all the rotary wing assets were being used to ferry VIPs to a golf tournament. Three of the four WIA subsequently died.

A Philippine Appeals Court has washed its hands of the matter altogether, declaring the issue "moot". Since Smith was already in US custody, there was no point discussing anything further. But of course, the evasiveness of the Philippine authorities will mean the case, far from "moot" is guaranteed to take on a life of its own, a life in which the actual letter of the law and the actual innocence or guilt of Smith is secondary.

In a 38-page decision, the tribunal dismissed the petition since the Philippine and United States governments have agreed that the detention facility for Smith would be at the embassy compound. "All of the foregoing discussions notwithstanding, we are confronted with the latest agreement executed between Secretary of Foreign Affairs Alberto G. Romulo and Ambassador Kristie Kenney, who are the authorized signatories to bind state parties to an agreement," the decision read. ...

However, Smith was spirited out of the Makati City jail on the late evening of December 29 under the supervision of the Department of Interior and Local Government and four guards of the US Embassy. President Gloria Macapagal Arroyo admitted Tuesday having allowed the transfer without prior court approval to save diplomatic relations between the Philippines and America.

Some local observers had hoped that Smith's conviction would send reassuring signals to the Left that the Philippines and the United States had "normal" relations. That is to say, any alleged crimes committed by US personnel under the status of forces agreement would be treated in a routine and legal manner. But by engaging in the Blame America game, both the Left and Arroyo have cast the Smith case in the light of a superpower bullying a weaker nation. Rather than mollifying the Left, the whole Smith case has doubly angered them. But in fact Smith was detained before boarding ship by US authorities after local police had filed a complaint; in fact the US authorities assisted in the investigation; and there is little doubt that the US would have handed custody of Smith over to the Philippines had he lost on appeal. And now the case is exactly what the Left and Arroyo have let it become: a political issue between the two countries simply because Arroyo refused to treat it as routine and made the whole sad affair unmistakably political. No other construction can be placed on the act of a President seizing a prisoner from the courts and arguing that America made her do it.

Of course, none of this behavior is new. The Philippine government routinely justifies the abolition of unsupportable subsidies and the dismantling of monopolies by claiming that the "IMF and World Bank made them do it". Blaming America is a time-tested method of avoiding the onus for unpopular but wholly rational acts. But at some point this finger-pointing must stop. If Arroyo doesn't think the status of forces agreement and the lives of her own men are worth standing up for, then she should take steps to cancel it forthwith, along with the golf tournaments the Philippine Airforce is running taxi service for. Then she'll have to choose between losing parts of Mindanao to the Islamic extremists or pandering to her Leftist constituency. Who said life was easy? It certainly will not be easier for Smith, who it may be remembered, still has his case on appeal. He is now part of what the Philippine press is calling a "constitutional crisis". Smith is now laboring under the distinct disadvantage of having his case tainted by the most underhanded, double-crossing and shifty advocate possible: Gloria Macapagal Arroyo.

Update:

A reader writes to correct me on the proper use of "visiting forces agreement" versus "status of forces agreement", and I stand corrected. The quotable part of the email is below.

In our post on GMA and LCPL Smith, you tended to use Status of Forces (SOFA) and Visiting Forces Agreement (VFA) interchangeably. They are 2 completely separate animals. SOFA are in place between the US and the host nation when US forces are home based on foreign territory. We have SOFA with ROK, Japan, Germany, England, etc. The US and RP had a SOFA up until the bases at Subic and Clark were closed in the early 90s. The VFA is a relatively recent addition for protection of US forces not permanently stationed. In broad term, a SOFA offers US forces much greater latitude and protection from host nation prosecution (think recent rape case in Japan where the US actually had first right of refusal to prosecute the accused Marine but gave it to the GOJ). Under the VFA, the RP had the right of prosecution all along.