Ripe for review

US military forces use refurbished shipping containers extensively in their deployments overseas for offices, housing and communal facilities.

The containers, typically air-conditioned, with soundproofing and insulation, can be quickly installed, dismantled and transported by a Chinook heavy-lift helicopter.

We have them in a Philippine military camp in Zamboanga City, where US troops have maintained a rotational presence since 2002, when our government invited GI Joe back to the Philippines ostensibly to deal with Abu Sayyaf terrorists.

US Marine Lance Cpl. Daniel Smith was held in such a shipping container at the US embassy during his trial for rape.

These days another US Marine, Private First Class Joseph Scott Pemberton, is detained in a similar shipping container at Camp Aguinaldo, within the area allocated for the Joint US Military Assistance Group (JUSMAG).

“Assistance” used to be “advisory,” but I guess the Americans realize it’s no longer politically correct to look like they are advising sovereign states on security matters – even those that depend on the US security umbrella for external defense.

There are questions on whether the JUSMAG area, even if it is within a Philippine camp, enjoys the same status as the US embassy – meaning it is considered US territory, with all the international protection that the status brings.

Since Camp Aguinaldo serves as the headquarters of the Armed Forces of the Philippines and home of the Department of National Defense, I don’t think giving that special status within the camp to an office of a foreign government can be defensible to the Filipino people.

But we’ll be seeing similar arrangements if the two governments push through with the increased US rotational presence here under the Enhanced Defense Cooperation Agreement (EDCA).

And we’ll be seeing more of the refurbished shipping containers as the two governments work out the details of enhanced US troop access to Philippine camps.

The protests over US custody of Pemberton show that any arrangement for greater US access must convincingly show Philippine jurisdiction at the camps.

A ticklish issue is the fact that American taxpayers will likely bankroll much of the development and maintenance of the Philippine camps to be used for enhanced access, including the former US naval base in Subic. How will the chain of command actually work between Philippine and US officials in these camps?

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The joint custody for Pemberton is a novel arrangement and obviously a compromise as Manila and Washington work out new rules.

For the sake of a healthy alliance, the temporary arrangement should eventually lead to reciprocity in the Visiting Forces Agreement (VFA). We have that reciprocity in our Status of Visiting Forces Agreement with Australia, although the nature of our defense cooperation with the Aussies is of course not the same.

The VFA review should have been done as soon as Daniel Smith was cleared by the Court of Appeals in 2009 after his accuser declared that she could no longer remember if he had raped her in a moving van in Subic. Instead US officials at the time insisted in public that they saw no need to change anything in the VFA.

Yesterday the “Blue Helmets” – members of the Philippine contingent to United Nations peacekeeping missions – were deployed to help guard the JUSMAG compound where Pemberton is being held.

Apart from providing an international element, the Blue Helmets should be able to do a better job of keeping watch within AFP headquarters. Those Filipino soldiers who allowed the German boyfriend of transgender Jeffrey “Jennifer” Laude to scale the fence, enter the compound and then shove them around should be relieved of their duties.

No matter how bereaved Marc Suselbeck might be over the death of Laude, he’s a visitor in this country and he must respect our laws. If a Filipino did the same stunt at a military camp in Germany, the Filipino would go straight to a detention cell.

The same goes for Laude’s sister. Their family’s lawyers should give them better advice on their public behavior. If we want foreigners to respect our laws, we should be the first to show that respect. And we must show to the world that we are much better than a barbarian who strangles and drowns another human being in a toilet bowl.

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Unlike in the case of Daniel Smith and his accuser we called Nicole, there seems to be less ambiguity on whether a crime was committed in Laude’s case. No one has voiced suspicion that Laude might have committed suicide in a toilet bowl. He was killed, and so far there’s only one suspect, who is now in joint Philippine-US custody.

The main question is whether Pemberton will be convicted of murder or the lesser offense of homicide. Depending on the details that we’re still waiting to hear, he might invoke certain mitigating circumstances. Lawyers told me there is a provision in our laws covering “passion and obfuscation” – legalese for blind rage in committing a violent crime.

Another question is where Pemberton will serve his sentence in case he is convicted. There are foreigners serving sentences in our national prisons, mostly for drug trafficking. I haven’t heard foreign governments lodging a complaint about the circumstances of their imprisonment.

What they complain about is the slow pace of court trials. But the VFA requires the completion of judicial proceedings within a year for US servicemen indicted in the Philippines for ordinary crimes.

As I’ve written, the Americans should also want this VFA provision clarified. Smith was detained from 2005 to 2009; the VFA is not clear on whether all judicial proceedings include appeals, and a final ruling when called for from the Supreme Court.

If a case goes all the way to the high tribunal, litigation could take a decade, even when fast-tracked under the VFA.

Washington has VFAs with its other treaty allies around the world, so any changes in its agreement with Manila would affect all those others. But Washington is constantly reassessing and redefining its security cooperation around the world anyway, as new challenges emerge.

The case of Pemberton provides a good reason for a long-overdue review of the VFA. Joint custody of Pemberton, with his detention at AFP headquarters, is a good start, but it won’t be enough.