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.