Miriam wants VFA abrogated; US says no need

MANILA, Philippines - Sen. Miriam Defensor-Santiago is seeking the abrogation and renegotiation of the Visiting Forces Agreement (VFA) between the Philippines and the United States, citing a report that US troops were engaged in combat operations with Filipino soldiers, which violates the accord.

But US Ambassador Kristie Kenney denied that their troops were engaged in combat operations. She also said she saw no need to renegotiate the VFA.

Santiago, chair of the Legislative Oversight Committee on the VFA (LOVFA), yesterday said US Col. David Maxwell, former commander of the Joint Special Operations Task Force – Philippines (JSOTF-P), had made an admission that American soldiers could engage in combat operations here.

Santiago cited, during the LOVFA hearing at the Senate yesterday, the publication “Focus on the Global South” that quoted Maxwell as saying: “The Philippine Constitution does not prohibit combat operations and provides an exception to this, if there is a treaty in force.”

“By his own admission, Colonel Maxwell is using the Task Force to engage in battle in Mindanao in the US war against terrorism, which includes the Abu Sayyaf and the Jemaah Islamiyah,” Santiago said.

Maxwell was replaced as JSOTF-P commander nearly two years ago by Lt. Col. Bill Coultrup in a regular reassignment.

Former Senate president Jovito Salonga said activities that could be undertaken under the VFA were not clear, and neither was the length of stay of US forces in the Philippines.

“We’re here at the invitation of the Armed Forces of the Philippines,” Kenney told The STAR. “As long as the (AFP) thinks we’re playing an important roles, we’re an ally and we’re staying. We’ll not be in combat.”

Resigned Lieutenant Senior Grade Nancy Gadian, who blew the whistle on the alleged misuse of funds for the Balikatan exercises between US and Philippine troops, also testified at the hearing that American soldiers were involved in military operations. She said a battalion of US troops is permanently based in the country.

Government officials led by Executive Secretary Eduardo Ermita defended the agreement, citing the benefits the country was getting from it in terms of assistance and training of Filipino troops, especially in the fight against terrorism.

Santiago said that although the Philippine and US authorities were claiming that the US troops in Mindanao were only engaging in so-called military exercises, this term was not used in the VFA itself.

She said that the Task Force deployed US forces in unconventional warfare and combat operations, and Maxwell himself admitted in a US interview that he was operating “under the guise of an exercise.”

Santiago expressed suspicion that there were “small-scale military bases” in Zamboanga City and in Sulu.

Santiago said the US must negotiate a new treaty with the Philippines if it would want broader cooperation in the fight against terrorism and not use the VFA or the Mutual Defense Treaty.

She said the US would want the Philippine territory because it could be part of a defensive ring against China being formed by the US.

Santiago said the better procedure would be to ask for a renegotiation of the VFA.

“But we already did that and they refused. So we can go through that procedure but we know that they will never renegotiate it because they got exactly what they wanted. They wanted an open-ended agreement – meaning to say, that it does not say when it will end except that it can be cancelled by either party if it gives notice within six months’ time. And except that, it says, the Americans can engage in activities.”

She said the Senate does not have the power to abrogate any treaty and the senators could only pass a resolution expressing the sense of the Senate against the VFA.

“(The) Constitution explicitly provides that the treaty-making power should be shared between the President and the Senate. The President may ratify but the Philippine Senate must concur. So, if we pass a sense of the Senate resolution that the VFA must be abrogated, we hope we will be heard and be given weight,” Santiago said.

She said she would make the committee report next week and tackle the issue before the Senate plenary.

Kenney said the VFA “provides us a framework for what we do. We believe the VFA works well.”

Salonga said he was against the VFA because the terms were not clear as regards the temporary nature of the visits of the US troops.

Salonga added Filipinos could not just rely on the good faith and sense of fairness of the Americans.

Gadian, for her part, said US troops established a forward unit in the country and that they stationed in Mindanao a total of 500 troops on a rotating basis of three months each.

“These troops are stationed in Mindanao even without any Balikatan exercises going on,” Gadian said.

Gains from the VFA

Ermita, VFA Commission executive director Edilberto Adan and Foreign Affairs Undersecretary Enrique Manalo all defended the accord.

“It is to the interest of the Philippines that we have the VFA, an agreement falling under the Mutual Defense Treaty since 1951. And therefore it provides the proper security balance and stability in the Philippines,” Ermita said.

Adan denied US military troops were engaged in combat operations or were here permanently.

He confirmed the use of US spy planes of unmanned aerial vehicles but said these are allowed as part of intelligence exercises.

Manalo said US assistance ranged from military education to training in counterterrorism, southern maritime boundaries, disaster and emergency relief, and humanitarian socio-civic activities that could improve the quality of life of Filipinos in Mindanao.

Deputy Presidential Spokesperson Lorelei Fajardo appealed to VFA critics to slow down their demand to scrap the agreement.

“With all due respect to all concerned, the allegations are not enough basis to scrap the VFA. If there’s a need to review the VFA, we’re open to that. Let’s not be harsh in judging that right away, making the allegations as the basis to scrap the VFA,” Fajardo said.

Sen. Francis Pangilinan said Malacañang should summon Kenney to explain the accusation that American military officials and servicemen have an “unwritten policy” of allowing US soldiers to “engage the services of prostitutes right inside the facilities” housing them.

Pangilinan had filed a resolution signed by other senators calling for the abrogation of the VFA.

Several groups led by former Senate president Salonga reiterated their appeal to the Supreme Court to declare the VFA unconstitutional, citing the overstaying of US troops in the country.

In a supplemental motion seeking reconsideration of the Court’s Feb. 11 ruling affirming the constitutionality of the VFA, Salonga had accused US soldiers of circumventing the Constitution and the sovereignty of Filipinos.

Through lawyer Harry Roque Jr., the former senator argued that the US troops are visiting the country “under the pretext of conducting training exercises, but are actually setting up military positions under long-term plans.”

Roque cited a New York Times report last week that the US Department of Defense has decided to keep 600 elite US troops deployed in the country.

The report also said that the participation of US troops has been essential in the success of military operations against militant groups and terrorists.

Various groups said the participation of US troops in Mindanao operations is in clear violation of the Charter.

The SC said in its Feb. 11 ruling that the VFA was simply an implementing agreement to the main RP-US Mutual Defense Treaty (MDT) and did not violate the Constitution.

The Court had ruled that since the MDT itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the constitutional provision resulting from such presence.

But petitioners maintained that the current constitutional framework does not permit the existence of the VFA as a component of the subsisting MDT without compliance with the specific requirement, which is for the US government to honor the agreement.

In a 45-page joint motion for reconsideration filed last Feb. 26, Salonga and the other groups that questioned the constitutionality of VFA reiterated their pleading for the SC to direct the immediate transfer of convicted rapist US Lance Corporal Daniel Smith to Philippine custody.

Petitioners, including the rape victim identified as “Nicole,” Salonga and Wigberto Tañada, and Bagong Alyansang Makabayan (Bayan), Bayan Muna, Gabriela, Gabriela Women’s Party, and Public Interest Law Center, maintained that the VFA cannot be justified under the MDT and is simply unfair.

The Court’s ruling on the constitutionality of the VFA was issued through the case of Smith, who was acquitted by the Court of Appeals last April.

The SC had ordered the transfer of Smith to the custody of Philippine authorities, overruling earlier agreements for his detention at the US embassy in Manila pending resolution of his appeal on his rape conviction.

“If you think about it, that the United States of America had a serviceman here, he was not taken out, he was subjected to your legal system, I still think that the VFA worked well,” Kenney told The STAR, adding that the three and a half years that Smith waited for the final ruling in his case was a long time.

If the Philippine government decides to renegotiate the VFA, Kenney said, the embassy would forward the proposal to Washington lawyers for consideration.

With a vote of 9-4 with two inhibiting, justices of the High Tribunal ruled that the agreements signed by Foreign Affairs Secretary Alberto Romulo and Kenney on Dec. 19 and 22, 2006, which allowed the detention of Smith under US military custody at the Rowe Bldg. of the US embassy, were “not in accordance with the VFA.”

In a 20-page decision penned by retired Associate Justice Adolfo Azcuna, the Court upheld as constitutional the VFA and Article V Section 10 of this treaty provides that confinement or detention of convicted US personnel should be done “by Philippine authorities.”

AFP: US facilities are temporary

The AFP assured the people that the facilities put up by the US soldiers inside military camps in the country are only temporary.

Lt. Col. Romeo Brawner, AFP Public Information Office (PIO), issued this statement to belie claims made by Gadian that US troops are in the country on a permanent basis.

Military officials have ordered Gadian’s arrest for alleged desertion and insubordination after she volunteered to provide the Senate with documents to support her claim of fund misuse against former Western Mindanao Command chief Eugenio Cedo.

Military officials said Gadian is facing unresolved issues over her allegations of corruption in the funds for the RP-US Balikatan military exercises.

Brawner said that while indeed there were several US facilities inside AFP camps, he said these establishments only served as temporary quarters that also doubled as offices of the visiting US troops.

He said that US troops have confined themselves to providing technical and intelligence supports to the local troops pursuing the enemies.

He added that military lawyers are now studying Gadian’s signed affidavit, for possible filing of legal action against her.

Lt. Col. Edgard Arevalo, Navy spokesman, said that Gadian’s claims are not based on her personal knowledge because she did not participate in actual combat operations. – With Edu Punay, James Mananghaya, Jaime Laude, Paolo Romero