The detention of Daniel Smith

        Here’s the exact provision of  the VFA on detention by Philippine authorities of U.S. personnel:            

          “10. The confinement or detention by Philippine authorities of
United States personnel  shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.”
                             

            Ordinarily, if the convict were a Filipino, or of any other nationality convicted of a crime in the Philippines, the detention facility in which to serve time pending appeal for a capital offense, and to serve final judgments,  is Muntinlupa or the National State Penitentiary.  Those who are temporarily detained pending bail hearings are confined at the city jails.                                 

          Not so in this case. It is left to the discretion of the “appropriate Philippine and United States authorities”. But this provision has no side agreement or implementing rule. The U.S. Embassy of course would demand custody of the convicted U.S. personnel here. They would either try to find a provision in the VFA to suit that demand (the VFA is so vague and general, you could pick a provision there for that demand; but I’m not gonna help them pick which provision), or convince the “appropriate Philippine authorities” to agree that the convict be “detained” at the U.S. Embassy.                           

            The Philippines has no jurisdiction over those pieces of land that foreign embassies occupy in our territory; under international law, embassies are an extension of the territory of their country. Hence, any agreement that allows “detention” of the convicted U.S. personnel at the U.S. Embassy is equivalent to releasing the convict to a foreign territory.                       

                I don’t know if the Senate ever considered this when it ratified the Visiting Forces Agreement seven years ago (it was ratified on May 26, 1999 at 10:00 pm, we filed the case at 8:00 am the next day,),  with the “No-to-VFA” vote of Senator Loren Legarda, Senator Serge Osmena, Senator Raul Roco, Senator Tito Guingona, Senator Nene Pimentel.                                                  And I imagine that while Daniel Smith is being booked now for detention at the city jail, U.S. Embassy officials are racing making phone calls, pulling all stops, pulling all strings, twisting every arm,  maybe mixing metaphors, to get their convicted soldier out of the Philippine criminal justice system, out of Philippine territory and back at the U.S. Embassy.

4 thoughts on “The detention of Daniel Smith

  1. I found the verdict quite unsatisfactory. While I am happy about the conviction of Smith, I cannot accept the decision on the other accused. It may be safe to say that the public prosecutors were remiss in their ‘push’ for the conspiracy theory. Acquitting the other three ‘MAY’ show in the future that the rape never occurred. They were all in the van which made them all liable, they should not have isolated Smith, a crime of one is a crime of all. I am not a lawyer, this is just my simple appreciation of the circumstances.

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  2. Marichu,

    I am alarmed that some media entities/bloggers has included Nicole’s real name in their reports and posts. I condemn this act strongly. Human decency dictates that we must protect the identity and privacy of the rape victim. We should not add to the stigma this experience has given Nicole. AP has reported on this matter and even question why the exposure and condemns the practice. I hope that media and bloggers exercise sensitivity in their reporting and posts.

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  3. Perhaps we should be glad the US is so eager to take care of its own. Otherwise we might actually have to take care of the convict, Daniel Smith. Now, insofar as we all seem interested in proving the Philippines can wear sovereignty with dignity, how would it look if in the precedent setting case this convict were say raped himself in Muntinglupa/Bilibid National Prison? Do we really want CNN/Fox News and other US media poking around in Philippine jails to check up on one Daniel Smith? Hmm..on second thought maybe I would support that idea myself. But you see what I mean? It is not as if America defends its rapists unfairly you know. That seems to be the assumption everyone makes. It just ain’t so. Americans hate rape and violence much more than Filipinos do, going by the rape and conviction statistics. Ooops, I guess that’s the other thing that we might not want publicized too much as we beat our chests in triumph, rage, and immaturity.

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  4. “they were all in the van and thus liable.” How about they were all in the van and refuted “nicole’s” twice recanted claim of rape. Hmmm…let’s see. 22 years old, picked up in a bar, too drunk to consent. (not a bar girl, right?) Interesting that the cab driver showed up for testimony having had the crap beaten out of him…ah yes Phillipine justice. You need a scape goat and you picked Dan Smith. Oh by the way…you’re welcome for the help with your terrorism problem and of course the American aid over the years. I’m not bitter, just bewildered at your incredible arrogance. This trial makes OJ Simpson look like holy writ. You want soverenty, by all means have it, but send our innocent son home.

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