Foreign Relations of the United States, 1955–1957, Southeast Asia, Volume XXII

417. Telegram From the Embassy in the Philippines to the Department of State¹

Manila, November 5, 1956—5 p.m.

1233. Sent Operational Immediate SecDef rptd info Prity CINCPAC for Stump for ALUSNA 051100Z by other means. To Hoover, Robertson at State; Robertson, Gray, Radford at Defense. CINCPAC for Stump. From Nufer and Bendetsen.

I. Summary and Conclusions.

1. After nearly a month of fruitless talks since Bendetsen’s return to Manila, we are convinced Phils are stalling, hoping to get further concessions than they know we are presently prepared to make. We are further convinced that as time goes by and the preelection activities of the Philippine national election year intensify, the opportunity for a fair settlement will diminish. Only if Magsaysay is returned to office in November of 1957 with a majority of the House and Senate committed to his program will there be a further chance to make a fair settlement with Phils. This would be so only if a significant deterioration in our relationship does not develop during the forthcoming year and only if the Phil Government were then to be represented by a single negotiator acting for the President, with the site of the negotiations elsewhere than Manila.

2. We conclude that the possibility of reaching agreement on criminal jurisdiction and other key issues by formal or informal negotiations with Pelaez and panel has been exhausted.

3. Our recommendation is that you instruct us to terminate these negotiations irrespective of the risk of public collapse of the talks, unless Magsaysay is now willing to agree to settlement on the terms we are prepared to offer, which terms constitute a fair and just settlement. If he agrees, we believe that although he would undoubtedly have a fight on his hands, he could obtain Phil Senate ratification, because we doubt that in an election year Phil Congress could afford to face the strong pro-U.S. grassroots sentiment of Filipino people with a record of having rejected an agreement Magsaysay had accepted.

4. Inasmuch as one of the reasons Phils are stalling is that they are awaiting the outcome of U.S. national elections, the action recommended above should be taken on or shortly after November 7.

5. Notwithstanding what follows here, the recommendation in para. 3 above stands. However, with specific regard to the U.S. position on criminal jurisdiction, it should be realized that while Phils have not done so publicly yet, they could make U.S. look bad, locally at least, because Phil panel has unanimously offered to accept Jap-U.S.SOF as published.² This makes our position vulnerable. The key to our vulnerability is … nature of Jap waiver commitment. Magsaysay might hesitate to accept U.S. criminal jurisdiction proposals because this vulnerability would then be transferred to him.

6. This vulnerability would be eliminated if you were to authorize us to propose an Article XIII solution which would provide that as to on base, off duty offense against Phil nationals or other persons habitually resident here, who are not members of U.S. armed forces, where Phil Secy of Justice determines such a case to be of particular importance to the Philippines, the Phils would prosecute. This follows because there are indications that Phil panel would buy this as final resort and there would be less likelihood of significant attack.

7. After a careful survey on the ground, taking into account the generally concurring views of local commanders, there would be no significant difference in the results we could expect as between this solution and the joint determination solution which you have authorized. In this relation, as a practical matter here, there would be no significant difference as to the result we could expect locally as between either of the Article XIII solutions or the NATOSOF–Netherlands solution.

8. For the foregoing reasons we recommend that you reconsider our 1099³ and authorize us to propose that where Phil Secy of Justice determines a case of the type in question to be of particular importance to the Philippines, Phils will prosecute. Taking a second look at whether it would be possible for you to live with this in your relations with Congress and other SOF negotiations might be well worthwhile to lessen risk of collapse.

9. If talks collapse or suspend in consequence of ultimatum to Phils, we will transfer title papers and title claims immediately. This is a must in any event to fulfill commitment made by Vice President Nixon. We should reserve judgment in this case as to whether some additional parting acts such as commitment to build Olongapo bypass road should be undertaken for purpose of preserving friendly atmosphere so far as practicable.

10. Immediately following cable⁴ sets forth more detailed analysis upon which recommendation in para. 3 hereof is based.

Nufer

1. Source: Department of State, Central Files, 711.56396. Secret; Niact.
2. See footnote 3, Document 403.
3. In telegram 1099, October 22, Bendetsen recommended that the Department of State agree to modify Article XIII of the Military Bases Agreement by renouncing jurisdiction over on-base offenses committed by Philippine nationals and other persons habitually resident in the Philippines. In addition, he suggested that in cases where a nonofficial duty offense was committed on base where the offended party was either a Philippine national or a person habitually resident in the Philippines, that if the Philippine Secretary of Justice found that the case was of particular importance to the Philippine Government there would be consultation with the senior U.S. Commander with a view to joint determination regarding prosecution in Philippine courts. (Department of State, Central Files, 711.56396/10–2256)
4. Not printed.