Strengthening an alliance

Boys, girls and transgenders just want to have fun – sometimes with dire consequences.

This is a reality that Manila and Washington must contend with as the two governments move to strengthen defense cooperation and increase US troop presence here.

The best that our two countries can do, if we want the alliance to remain healthy, is to craft fair and reciprocal rules governing wild nights gone awry involving our military personnel.

In such situations, the usual bone of contention is legal jurisdiction, including custody of a visiting serviceman. Legal jurisdiction is seen as one of the measures of national sovereignty, and the issue has gotten the US in trouble in its military involvements overseas.

We saw this in the case of Daniel Smith, the 19-year-old US Marine lance corporal who was accused of raping a Filipina we called Nicole, who had a predilection for Caucasian boyfriends.

Although US officials at the time were careful not to comment on the merits of that case, I got the impression from talking with them that they believed Smith was innocent.

Smith, like his three co-accused US Marines, was eventually cleared by the Court of Appeals.  This was after Nicole, to the dismay of women’s rights advocates, recanted her statement and hied off to the US, saying she was no longer sure if she had been raped.

You have to be wretchedly wasted to be unable to remember whether you said no or sat back and enjoyed it. But it seems Nicole got the happy ending she originally wanted. Meanwhile, the trial took four years out of Smith’s life.

How to ensure justice for both accuser and the accused must be finessed by the two governments if they want to sustain the health of a defense alliance.

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Before sending troops here for joint military exercises, Washington pushed for the approval of the Visiting Forces Agreement under the two countries’ Mutual Defense Treaty. Section 1(a), Article V on criminal jurisdiction in the VFA states: “Subject to the provisions of this article, Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.”

Section 6 of the same Article V, however, gives US military authorities custody of their personnel “from the commission of the offense until completion of all judicial proceedings.” But the provision does not prevent the US from waiving custody.

Probably taking note of the glacial pace of Philippine justice, the VFA also includes a provision giving local courts a year to resolve a case, after which the US can no longer be obliged to produce the accused to face judicial proceedings.

The Americans may want to clarify the meaning of “all judicial proceedings.” The Makati Regional Trial Court finished its trial in one year, but Smith stayed in US embassy custody until 2009, when he won his appeal following Nicole’s recantation.

During and after Smith’s trial, US officials repeatedly said they were happy with the VFA and saw no need for its renegotiation even if only to clarify certain provisions.

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The US government treats its military personnel very well, especially those who have been assigned to war zones. US military service is voluntary, and Americans who are prepared to lay their lives on the line for their country are treated as patriots.

You can understand why the US military would want custody of its personnel who are accused of wrongdoing when the imputed offense occurs in a failed state or a place where the accused has no hope of getting a fair trial.

But when the crime is alleged to have taken place in a democracy with a functioning justice system, US gestures of trust in that system strengthens bilateral ties.

Admittedly, the Philippine criminal justice system is dysfunctional. Smith would have spent two decades in detention while waiting for a final ruling on his case if the VFA didn’t specify a deadline for judicial resolution.

Let’s admit as well that the state of our local jails is so deplorable Pinoy VIPs accused of plunder are prepared to have most of their vital organs surgically removed and their stem cell treatment reversed just to have a reason to seek hospital detention and stay out of a regular jail.

But we’re not Somalia, and we’re a US treaty ally. The US can bear with the jail facilities of a middle-income treaty ally and trust that its accused military personnel will get fair treatment.

Otherwise the two governments risk reinforcing Filipino doubts about the wisdom of getting deeper into a defense alliance with the world’s lone superpower.

Sure we need Uncle Sam – and other allies – for external defense. But even before Jeffrey “Jennifer” Laude was found dead in a Subic motel last Saturday night, there have been persistent questions on whether Uncle Sam would actually come to our aid in defending our territory.

There is also the ticklish question of reciprocity in the VFA. The average Pinoy is pretty sure that if a Filipino soldier participated in joint military exercises with US troops in Hawaii, went on R&R in Waikiki, hooked up with a transgender he thought was a woman and, enraged at being fooled, dunked the guy’s head in the toilet bowl until the victim drowned, the Pinoy would end up in a Hawaiian jail faster than you can say Uncle Sam. No question about which country should get custody.

 In the case of Jeffrey Laude, the lone suspect in his death Saturday night, identified as Private First Class Joseph Scott Pemberton, is in the custody of the US Pacific Command, on a US amphibious assault ship, which is an extension of US territory even if it is docked in Subic Bay.

The chief of the US Pacific Command, Adm. Samuel Locklear III, who happens to be in town for meetings with Philippine security officials, has ordered their two Navy ships that participated in war games in Subic to stay put in this country until the mess is sorted out.

Even better is for the Americans to waive jurisdiction over Pemberton. The waiver is allowed, and is good for an alliance.