Pemberton detained at Aguinaldo

DFA: Phl exercising jurisdiction in slay   

MANILA, Philippines - From the amphibious assault ship USS Peleliu, US Marine Private First Class Joseph Scott Pemberton was flown yesterday to Camp Aguinaldo in handcuffs and held in an air-conditioned 20-foot shipping container.

 Pemberton is likely to remain in the special detention facility while awaiting possible indictment for the death of Jeffrey “Jennifer” Laude in Olongapo City on Oct. 11.

The US helicopter carrying Pemberton from the Peleliu in Subic Bay landed at the compound of the Joint United States Military Assistance Group (JUSMAG) at Camp Aguinaldo at about 8:45 a.m.

President Aquino – at a forum organized by the Foreign Correspondents Association of the Philippines – called the transfer “a healthy development” and in conformity with provisions of the Visiting Forces Agreement.

Foreign Affairs Secretary Albert del Rosario, for his part, told a Senate panel the Philippines would continue to assert its “primary jurisdiction” over the case.

“We are actually exercising our jurisdiction over this heinous crime allegedly committed by a US serviceman. We have not hesitated to inform the US authorities that the Philippines is exercising its primary jurisdiction over the case and we are not conceding this right,” Del Rosario said.

Pemberton emerged from the helicopter handcuffed and wearing a helmet.

With Pemberton’s transfer to Camp Aguinaldo, the USS Peleliu was allowed to leave the Philippines.

Armed Forces of the Philippines (AFP) chief Gen. Gregorio Pio Catapang, Presidential Commission on the Visiting Forces Agreement chief Eduardo Oban and JUSMAG joint operations division chief Col. Michael Wylie received the 19-year-old Marine.

Catapang told reporters the transfer of Pemberton to the JUSMAG compound was “mutually agreed upon” by both the governments of the US and the Philippines and that it was only temporary.

“The court will decide on the appropriate detention facility once a case has been filed against the accused,” Catapang said.

Oban echoed Catapang’s view during a Senate panel hearing later in the day.

Pemberton did not attend the preliminary investigation of the murder case against him at the Olongapo City Prosecutor’s Office last Oct. 21.

The US, through its embassy, made clear yesterday Pemberton is still under its custody.

“In accordance with the US-Philippines Visiting Forces Agreement (VFA), the United States has a right to retain custody of a suspect from the commission of the alleged offense until completion of all judicial proceedings,” the embassy said.

“The VFA is a key part of that relationship, and the United States plans to continue to work closely with the Philippine government to help ensure justice is served and the rights of all persons are protected,” it pointed out.

Highly secured

The highly secured JUSMAG compound is situated between the official residence of Defense Secretary Voltaire Gazmin and the headquarters of the AFP-National Development Support Command (Nadescom).

Even Filipino military personnel are barred from entering the compound without prior coordination with their US counterparts. The JUSMAG compound has been described as a US camp within an AFP camp.

Two US servicemen from the US Marine Custodial Unit would be tasked to guard Pemberton’s detention cell, while two AFP military policemen would secure the perimeter.

Catapang said Pemberton’s cell needs to be air-conditioned “because he will die of suffocation without it.” The US government will provide Pemberton’s meals and other needs.

He said the dos and don’ts on Pemberton’s detention are still being threshed out, like whether he would be allowed to use cellular phones or computers.

Witnesses said Pemberton and 26-year-old Laude had some drinks at the Ambyanz Disco bar in Olongapo City on the night of Oct. 11 before checking into Celzone Lodge. Laude was later found dead in their rented room before midnight after Pemberton had left.

The US Marine was part of the 4,000 American soldiers and sailors who engaged Filipino troops in joint naval exercise called Philippine-US Amphibious Landing Exercises 2015 (PHIBLEX 2015) in Palawan, Zambales and other parts of Central Luzon.

Phl’s discretion

Even as the US was invoking its right to keep Pemberton under its custody by citing provisions in the VFA, Justice Secretary Leila de Lima said the Philippine government “has also the discretion to insist further on his continued custody by Philippine authorities, by citing compelling or extraordinary reasons.”

This was contrary to an earlier pronouncement from Justice Undersecretary Jose Justiniano that the US government may take Pemberton into custody even if he is under jurisdiction of Philippine authorities.

Justiniano, one of the defense lawyers of the four US Marines who stood trial for the 2005 rape of Suzette Nicolas alias Nicole in Subic, cited Article 5 Section 6 of the VFA, which provides that “the custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.”

De Lima said Pemberton’s transfer to Camp Aguinaldo was a signal that the Philippines was taking custody of the US serviceman.

She said the VFA commission may have quietly worked for the transfer through diplomatic channels.

“It just showed that they (US government) willingly gave Pemberton to our custody while waiting for the results of the PI (preliminary investigation). Their main commitment under the VFA is to ensure his availability and accessibility for purposes of investigation and judicial proceedings,” she explained.

De Lima issued the statement after militant lawmakers led by Akbayan party-list Rep. Walden Bello sought her opinion on the issue.

She also said the US may pursue its own probe on the Laude case through its Naval Criminal Investigative Service.

“Even if we have primary jurisdiction over the case, it does not mean that the US military authorities are barred from investigating,” she explained.

“Under US military laws, they should also conduct investigation. If that is so, there’s nothing wrong with that because they have the right to investigate for their own purposes,” she added.

Foreign Affairs spokesman Charles Jose said the transfer of Pemberton should reassure Filipinos and the family of Laude that the soldier would not be allowed to leave the country.

“While the US military authorities will continue to have their legal hold over him, the presence of AFP forces guarding the area should reassure the Filipino people, especially the family and loved ones of Jennifer Laude, that the Philippines is aware of his location at all times and that he will not be departing the country until the conclusion of the entire process as we seek justice for the tragic killing of Jennifer Laude,” Jose said.

“The Philippines retains jurisdiction over the case and the process will continue,” he added. “We know his location at all times because he’s inside Philippine territory.”

Special treatment

For Sen. Miriam Defensor-Santiago, Pemberton was still enjoying special treatment despite his transfer to Camp Aguinaldo.

“What strikes me as offensive is that although he is in a so-called detention facility, which is I think a van inside the military camp, he is being guarded by Americans. What for? What is he being guarded for?” Santiago said after presiding over a hearing on the VFA and on Laude’s murder.

Santiago chairs the Senate foreign relations committee, which conducted the hearing. She called the transfer a “US engineered” and “sham” Philippine custody over Pemberton.

Del Rosario told Santiago’s panel the transfer came after the DFA’s sending the US embassy a note verbale asking for Philippine custody over the soldier.

DFA Assistant Secretary Eduardo Jose de Vega said they made it clear with US authorities that the Philippine government would not allow embassy detention for Pemberton.

“In fact, if I may, we even invoked Sen. Miriam Defensor-Santiago’s name, saying that she will not allow it,” De Vega said. To which, Santiago reacted, “Yes, I would really rather die.”

She said she finds it “offensive” and “unacceptable” that Pemberton remains under US custody despite being moved to a spot within Philippine territory.

“I find that offensive to us, because it indicates that there is no trust on the capability of our own Armed Forces,” she said. “If we did this in America, if, for example, there was a Filipino who was in a detention facility there by joint agreement of the two governments, and there were already American guards, can we insist that there be Filipino guards there? I find that unacceptable.”

Santiago deplored that Pemberton “arrived by helicopter, protected from accusing eyes” and detained in an air-conditioned facility.

“Outside his door are American guards. Outside the facility are Philippine soldiers. The mere physical arrangement indicates that he is being guarded against his Filipino critics,” she said.

“If you read the VFA thoroughly, you will find that the custody requested by our government takes place ‘from the time of the commission of the offense to the termination of judicial proceedings.’”

This means, she said, the US should have surrendered Pemberton immediately after he was named a suspect in Laude’s murder.

Laude family’s counsel, Harry Roque, also slammed the transfer of Pemberton to Camp Aguinaldo. “If he really is now under Philippine jurisdiction, Laude’s family has the right under the Human Rights Law, to see him personally and ask him why he committed the crime,” he said in Filipino. - With Christina Mendez, Aurea Calica, Paolo Romero, Pia Lee-Brago, Edu Punay