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Smith gone with the wind

When, how US Marine left RP is unknown

By Tarra Quismundo, Kristine L. Alave, TJ Burgonio
Philippine Daily Inquirer
First Posted 01:29:00 04/25/2009

Filed Under: Subic rape case

MANILA, Philippines ? As clandestinely as when he was transferred from the Makati City Jail to the US Embassy compound in Manila after his rape conviction in December 2006, Lance Corporal Daniel Smith has been flown out of the country.

A US Embassy statement issued yesterday did not provide details beyond saying that ?following the decision of the Philippine Court of Appeals, Daniel Smith departed the Philippines under the authority of United States military officials.?

So secret were the arrangements that even Smith?s Filipino lawyer, Jose Justiniano, and custodian, Interior Undersecretary Marius Corpus, claimed to be in the dark about his departure.

?They don?t have to inform me ... because he is under the custody of the US Embassy,? Justiniano said, adding that he and Smith did not even get to speak before the Marine left.

But the Department of Foreign Affairs was ?informed? by the US Embassy that Smith was flying out. ?We knew about it,? said DFA spokesperson Eduardo Malaya.

He refused to provide details or to divulge when exactly the ex-convict left.

Malacañang finds nothing irregular in Smith?s hasty departure.

?Why should we find it outrageous?? Press Secretary Cerge Remonde said in reply to a question.

?As what lawyers told me, once you?re acquitted of a case, and the acquittal is executory, holding you one minute longer is a violation of the law and of human rights,? Remonde said.

On Thursday, the Court of Appeals overturned a Makati court ruling convicting Smith, now 24, of raping Filipino woman ?Nicole? at the Subic Bay Freeport Zone in November 2005.

In acquitting the Marine, the appellate court said what had happened between Smith and Nicole was not rape but a ?spontaneous, unplanned romantic episode? where the two parties were stirred by their ?passions? and ?alcoholic drinks.?

The court also ordered Smith?s immediate release.

?Bit of haste?

The Department of Interior and Local Government, the Philippine office assigned to oversee Smith?s detention in the US Embassy compound, had expected a release process to take place before he could leave Manila.

?There was a bit of haste in his release but I understand that because he is a soldier, maybe US military officials fetched him,? Corpus, who had regularly visited Smith in his detention quarters, said on the phone.

?They should have coordinated with us ... But because Smith is a soldier, he is under military jurisdiction and, as far as I know, he still has to face court-martial proceedings,? Corpus said.

He expressed the belief that Smith took a military plane back to his unit, the 3rd Marine Expeditionary Force, in Okinawa, Japan.

Smith?s lawyer Justiniano said on Thursday that a formal notice had to reach his office and the DILG before his client could be released.

Corpus, on the other hand, said Justiniano had to ?officially inform? him of Smith?s acquittal ?so we can effect the release.?

But none of these formalities was observed.

Said Justiniano: ?That?s just one paper. It doesn?t really matter because [the release happened based] more on diplomatic protocol. It?s the call of the US.?

How and when unknown

It remains unclear how and when Smith left the Philippines.

The Bureau of Immigration (BI), which keeps records of people coming into and leaving the country, said it had no data on Smith?s leaving the Ninoy Aquino International Airport (Naia) in Manila or the Diosdado Macapagal Airport in Clark, Pampanga.

BI-NAIA supervisor Ferdinand Sampol said they checked the manifests of planes that left Manila and Clark on Thursday and Friday.

?It was negative in Manila. We checked in Clark and it?s negative, too,? he said on the phone.

Sampol said Smith could have flown out of Manila via a US military plane stationed in Clark, where there is an ongoing Balikatan exercise. But even so, there must be a record of Smith?s departure, he said.

?It could be that he has not yet left,? Sampol said.

When told that the US Embassy had announced Smith?s departure, Sampol said: ?That is what they are saying.?

US Embassy statement

In its statement, the US Embassy said: ?We have seen the decision of the Court of Appeals acquitting Daniel Smith and intend to respect that decision.

?Throughout this long and difficult case, Daniel Smith remained in custody at the US Embassy in the Philippines in compliance with the terms of the [VFA], which provides the framework for US-Philippine cooperation in legal cases involving visiting US military personnel.

?This has been a difficult and emotional case for all involved, especially their families and loved ones. We hope that the parties can now move on with their lives.?

A senior DFA official said the appellate court?s ruling had eliminated the legal basis to detain Smith in Manila.

?There is no more legal basis by which we can further hold him. [Similarly], a Filipino acquitted by a Filipino court ought to be released immediately,? said the official, who requested anonymity for lack of clearance to speak publicly on Smith?s case.


Smith flew out amid renewed protests over the rape case and the Visiting Forces Agreement (VFA), which the Philippine and US governments had invoked in asserting the Marine?s detention at the US Embassy pending the resolution of his appeal of his rape conviction.

Could the uproar be the cause of his rush departure?

?Maybe that?s part of it. You know how security-conscious they are,? Corpus said.

Justiniano expressed a similar view: ?Maybe their reason is security. Do you think Smith would exit through the gate while there are protests going on??

The Supreme Court had ruled that Smith should be moved to a Philippine facility while awaiting the resolution of his appeal and ordered a negotiation on where he should be held. But talks between Foreign Secretary Alberto Romulo and US Ambassador Kristie Kenney never progressed beyond a lunch meeting.

?Accept the ruling?

In a briefing at the National Broadcasting Network studio in Quezon City, Remonde also said there was ?no more legal impediment? to Smith?s departure ?because the decision of the Court of Appeals was very clear that his acquittal is already final and executory.?

He said he believed there could have been coordination between the DFA and the US Embassy on Smith?s departure.

?The government has accepted the decision of the Court of Appeals, as everybody should,? Remonde said.

He was reacting to a statement on Thursday by Evalyn Ursua, Nicole?s former lawyer, that an ?extraordinary remedy? could be exhausted to appeal the acquittal, and that either Nicole or the government could initiate this.

Remonde maintained that the rape case had never been an ?irritant? in RP-US relations.

He said the VFA had no connection to the appellate court?s ruling: ?It?s very clear the case was decided on the merits, basically on the law. The VFA has no bearing at all.?

He also said it was up to the Senate to decide whether to review the agreement that governs the conduct of US forces in the country, pointing out that it was the chamber that had proposed the review.

Very unfair

Remonde scoffed at Ursua?s statement that the government had never supported Nicole or her rape complaint.

?That?s very unfair,? he said, pointing out that it was the government that had filed and argued the case in court.

He added: ?We have to respect the decision of the Court of Appeals. Those who don?t agree are free to do what they want to do within our legal system.?

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