Missing link

As one report has it, Sison trial set, says Dutch embassy official: Communist leader incommunicado, claims colleague.

A blogger like Uwak! Uwak! thinks Philippine coverage of stories like Sison’s arrest leaves a lot to be desired. It seems to me, though, that what won’t appear in our media is something along the lines of Alan Dawson’s ‘Missing Link’ mastermind in custody: Jose Maria Sison, now at last a prisoner and mass-murder suspect in Dutch custody, is the unrepentant and arguably last Maoist radical in east Asia, which appeared in the Bangkok Post:

Authorities in the Netherlands, where he was arrested on Monday, believe he ordered the deaths of two senior communist leaders in Manila in 2003 and 2004.

Although the case is still developing, it appears Mr Sison may escape prosecution for ordering the murders of hundreds of followers in the 1980s, a purification campaign that earned Mr Sison and his closest CPP advisers a Time magazine cover story titled, ”The New Khmer Rouge.”

(For anyone who has a couple of US Dollars to spare, the article mentioned above can be found here: The New Khmer Rouge, by Ross H. Munro; this letter to the editor indicates the article was apparently serialized in the Inquirer, too. However, a similar article is available on line, see Inside the Communist Insurgency, an engrossing look at the initial attractiveness of revolutionary justice, and how, having established its credentials by liquidating class enemies, proceeds to clamp down on those liberated).

Returning to Dawson, he is obviously no fan of Sison:

Sison was last seen in public in Southeast Asia while receiving the 1986 SeaWrite Award for essay writing and poetry. The award, for his collection Prison and Beyond, was handed over at an Oriental hotel gala in Bangkok, during which Mr Sison was treated as a celebrity, rather than the celebrity-killer many even then believed him to be.

And he says the party purges were true, regardless of whether or not Sison’s culpability is proven in court:

The killings were diabolical, meticulously planned by the communist leadership, which in turn was directly under Mr Sison and a tiny cabal of cadre. They were located both inside the Philippines and outside, mostly in the Netherlands.

Whatever Mr Sison’s specific involvement, now to be finally examined by a court, the CPP leadership concocted and carried out three, separate mass-murder plans, each in a different part of the country. They aimed at rooting out what the fearful leaders were convinced was a massive and successful attempt to infiltrate the communist movement with government informants and supporters…

The worst of the Philippine massacres was Operation Zombie in the far south, in which at least 1,000 Communist Party soldiers and members were slain by their fellow revolutionaries. In what became a trademark of the Philippines version of the killing fields, almost all victims were brutally and violently butchered by specific party order, so that the survivors would never forget what could lie in store for them if they tried to hurt the communist leadership.

A second massacre was on the mountain ridges in the shade of Mount Banahaw, where communist functionaries killed about 200 mostly young people in what they gleefully called ”Oplan Missing Link”. As explained later by survivors and confirmed by senior party members, ”Missing Link” was designed to purge informers in a manner that would intimidate all others, supporters and innocent villagers alike.

Contrasting views on the man are starkly demonstrated by two bloggers.

There’s tonyo, who takes an admiring, even loving, view of the man:

And finally, there’s Jose Maria Sison or Ka Joema or Ka Joma or just Ka Joe. His infectious laughter and self-deprecating style of sharing jokes almost immediately shattered whatever misconceptions we had about him. He laughs really heartily and what makes us always laugh when we were with him was when he tells his brand of jokes that were “pilyo” or naughty.

He was a very exceptional fellow, an intelligent man and an obedient husband to Ka Julie. Talking with him nd listening to him makes him wonder why the Philippine government continues to demonize him. Does his words really hurt them? Do they honestly believe that this exile and political refugee who still cannot speak Dutch can actually direct and manage the NPA in the Philippines direct from Utrecht?

On the other hand, Miron sa Amerika (who has not had the good fortune of being personally charmed by Joma) argues that Sison is a political dinosaur:

Letters from “Armando Guerrero” — I always thought Joma chose an apt pseudonym — provided a glimpse about his totalitarian mindset. I thought, here was a man so thoroughly convinced about the superiority of his ideas, so ruthless in his predilections that I was ready to believe the worse of what was being said about him. I shuddered at the thought of this ideologue running the Philippines.

Even after the Soviet Union collapsed, even after China started experimenting with her brand of neo-socialism, and with much of the world shifting away from armed struggle, Joma doggedly held on to his convinction that “political change only came from the barrel of a gun”.

Until now, I marvel at how he could, in his mind, repudiate reality so articulately. But even his genius is suspect, at least for me, when the CPP-NPA failed to exploit the opening of the 1986 People Power revolt. They were at their peak, armed partisans were inside the capital, the military was in flux — and yet they did nothing. Pinulot sila sa pancitan. It was all downhill after that.

Joma’s time, along with his idea of armed struggle, is long past. He would be irrelevant were it not for government’s corruption, the military’s excesses and the Filipinos’ own reluctance to openly reject violence as an instrument of change. But I believe Joma had vision ripe and compelling for his era; it just failed to evolve with changing realities. If he were a dinosaur, I would certainly count Joma as a T-Rex, formidable and fearsome but extinct, nevertheless.

Not that Miron’s views would get more than short shrift from Sison’s admirers. Passionate (dis)Attachments responds to a friend who asked why she hadn’t yet spoken up:

Needless to say that Sison’s arrest is not exactly an ‘event’ in the manner that Badiou defines an event. An ‘event’ belongs to a wager that one hopes will never be legitimate, since all legitimacy belongs to the existing coordinates of the system. The Dutch government with its recently established ties with the Arroyo regime is not capable of realizing an ‘event.’ Sison, on the other hand, and precisely because of his communist wager, is.

What is lamentable in this situation is, therefore, Capital’s (because Capital = State until a proletarian seizure of the latter) symbolic attempt to rob the ‘event’ by capturing a symbolic figure of and for the ‘event’ that is bound to happen anyway. Sison is not the first victim of the State’s apparatus of capture.

Political killings and enforced disappearances happen almost everyday. The academe and its hegemonic claim via postmodernism that ‘there is no event’, that nothing actually happens since we do not have a standard of truth by which we could really see what happens, (If stupidity were a disease, then this world would have been a better place.Unfortunately, stupidity is a prerequisite for academic tenure. So once again, fuck you )is resposible for the contemporary intellectual scene, leaving young minds with a dogmatic belief in interpassivity as a more viable option (now this is criminal! therefore, fuck you). The ideology of the stable, heterosexual-suburban-middle class family simply sucks the potential brilliance out of every kid regardless of class origins. (And I have seen people who have been dwarfed by this family disease. Anwyay, fuck you).

The views of the supporters of Sison are plentiful online. Those of his critics not coming from military circles less so. Two books make for engrossing reading: “Red Revolution: Inside the Philippine Guerilla Movement” (Gregg R. Jones) and Breaking Through: The Struggle within the Communist Party of the Philippines (Joel Rocamora) which won a National Book Award (there are others, but in general I only recommend books I’ve actually read. However, Project for Critical Asian Studies points to useful readings).

My view on the issue of Sison’s arrest is this: having sought asylum in the Netherlands, having resorted to Dutch and European courts to counter other charges against him, Sison must submit to the Dutch courts. If we welcome European pressure in terms of human rights, then when their systems of justice operates, who can complain? It is not as if Sison will run the risks a trial at home would entail: torture, possible liquidation, political pressure trumping the justice system, etc. (yet I’ve never understood how he can point to court cases as vindicating him, when his goal is to topple the system, including the law; in which case a judgment even in his favor by a Philippine court isn’t worth the paper it’s printed on, if Sison’s ideological premises are to be believed).

He will be treated humanely and accorded every opportunity to clear his name. He might even be acquitted, and if he is, then it will go a long way to substantiate the claims he’s made all along he’s just an old Marxist pensioner puttering around Ulrecht writing poems and singing karaoke.

We can’t be for one-sided justice, either: relentless in pursuit of military abuses but turning a blind eye to revolutionary murders. But neither does finally bringing Sison to justice suddenly prove the military was right all along. Along these lines, I invite you to read Murder, they Wrought by Bobby Garcia (a victim of the purges, and who pointed out the NPA didn’t torture soldiers to prove their moral ascendancy, but tortured their own comrades when required: you can read an excerpt from his book online):

It is important for the State to recognize the fact that murdering its political opponents, apart from being violative of fundamental principles, would not even help them in the first place. Such policy would simply generate sympathy for their enemies, and it cannot possibly escape international scrutiny. These killings need to be condemned. At the very least, even if you do not agree with the victims’ political choice, the killers are even denying them the chance to change their minds. At the most, who is to stop them from targeting you next?

The CPP-NPA, meantime cannot be blame-free. As Miriam Ferrer puts it:

“Part of the effectiveness of the language of anti-communism and resultant alienation is also due to the CPP-NPA-NDF themselves — their excesses (revolutionary taxation of rich and poor, infliction of punishments), own pandering of violence and machismo, their inclusivity and dogmatic framing of Philippine society and politics, and their counter-monologue to the state’s anti-communist mantra. The purges, the CPP-NPA-NDF hopefully recognizes by now, cannot be simply forgotten without full retribution and honest accounting before former and present comrades and the greater public. The ghosts of murdered comrades will haunt the party forever. And though not particularly convincing to explain away the recent spate of political killings among those who study their politics, and revolting for the disrespect shown the dead lying in mass graves, the purges of the 80s and 90s will remain scraps (war material) to poke around with, in the AFP and police forces’ psywar ops.”

Hence, the problem with all this is that we have a case where the the pot and the pan are both calling each other dark and greasy. The AFP and the CPP-NPA hold dismal human rights records, thus when one squeaks about violations, the other can easily squawk: “Look who’s talking!” Credibility automatically becomes suspect when an armed group that has fired too many rounds on human flesh accuses its enemy as being too violent.What we are seeing now is a bloody spiral, and we’re getting dizzy.

Indeed. Sison should face the accusations squarely, secure in the knowledge he will be getting a trial his comrades could only dream of in Manila. There is a reason former cadres have called for his trial and people on the opposite side of the ideological fence are exulting over his arrest. And it can’t all be propaganda.

See The Great Left Divide in PCIJ, and Rebelmind for an explanation of the schism within the Left.

In other news, Senate votes to reopen ‘Garci’ case; playing tape on hold. Which is a pity. My column for today, Bluffing, was kind of hoping they’d play the tapes and call Santiago’s bluff.

At this point let me point to the Committee Report by the House of Representatives on its investigations of the Garci Tapes. The whole thing is a valuable resource, with a time line, a digest of testimony, the findings, then recommendations, of the hearings. Here it is:

And let me reproduce the House’s discussion on two crucial questions. First, the Anti-Wiretapping Law and whether the tapes could be played in public, and second, what were the national security implications of the whole controversy?

First, as to the playing of the tapes. A lengthy extract, but if you read it, I think you’ll agree it’s a useful crash course in the law and how lawyers approach controversial questions. It begins by describing the circumstances surround the Anti-Wiretapping Law and the principles upon which it’s based, and its provisions:

The existence of the so-called Garci Tapes highlighted two important concerns, to wit: the opposing interests of an individual’s right to privacy and the right of the public to know matters of direct and intense public interest, such as election fraud.

RA 4200 was enacted for the precise purpose of protecting without any exception whatsoever the privacy of communication. The 1935 Constitution, the prevailing Charter at the time RA 4200 was passed in 1965 provided that:

“The privacy of communication and correspondence shall be inviolable except under lawful order of the court or when public safety and order require otherwise.” (Article III, Section 5 of the Bill of Rights)

This same right was again enshrined in the 1973 Constitution specifically in Article IV, Sections 4(1) and (2) which state that:

“The privacy of communication and correspondence shall be inviolable except under lawful order of the court or when public safety and order require otherwise.”

“Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

These same provisions are likewise guaranteed in the present 1987 Constitution, Article III, Section 3(1) and 2).

Accordingly, any illegally wiretapped recording of a conversation in violation of RA 4200 “shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation” (Section 4, RA 4200). This ban is all encompassing and must include “any proceeding” as provided for in the Constitution. Consequently, the ban extends to congressional investigations and possibly even impeachments.

The foregoing prohibition is lifted or does not apply in only two instances, namely: (1) when all parties have authorized the recording (Section 1 of RA 4200); and (2) when the wiretapping is authorized by a written order of a competent Regional Trial Court upon written application and examination under oath or affirmation “in cases involving crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security (Sec. 3 of RA 4200). In short there is only one legal basis for publishing or otherwise using a wiretapped conversation, and that is if it was authorized by a court order.

What is protected is the privacy of communication irrespective as to whether the parties are private persons or public officials. However, if the conversation or spoken word is uttered in a public manner, the protection does not apply. This legislative intent is clear in Senate deliberations on the law.

In Navarro v. Court of Appeals (GR No. 121087, August 26 1999) the Supreme Court had the occasion to distinguish between private and public communications, describing the latter as the kind conducted in a manner that the parties to the conversation know and will allow it to be overheard. The public character as opposed to the privacy of communications has nothing to do with the contents of the same.

This brings us to the issue of how R.A. 4200, could be enforced without requiring the subject of an illegal wiretap to come out publicly by filing a complaint, thereby linking the embarrassing contents of an illegal wiretap with himself or herself. It was repeatedly stressed by legal experts that the President’s failure to come forward and formally complain against the illegal wiretap and order the prosecution of the same – indeed her refusal to seek a judicial injunction against its playing, not to mention mass reproduction and sale – meant that the law was not broken because no one had come forward as a victim of the crime.

Yet violation of RA 4200 is a public crime, the offended party should be the State or the People of the Philippines. Thus the law should be enforceable even without a particular complainant and even against those who so much as claim to be uttering illegal wiretap recordings without need of having to authenticate the same. This is debatable, probably intensely so, but the law might be amended to allow for another distinction to be legally recognized between the public and private character of conversations, so as to allow the evidentiary admission of wiretapped conversations; and that is if it would serve a critically important public interest such as the prosecution of impeachable or national security offenses.

At this point, the House then says it had to wrestle with a dilemma: should public or private interest prevail?

Whether we should allow the admission of even illegally wiretapped conversations on these limited grounds turns on how Congress weighs the competing interests of privacy on the one hand and the need to deter the use of new technology to further political crimes like election fraud. In short, are public officials entitled to the privacy of their conversations involving solicitations to crime?

As the law now stands, mere possession let alone manufacture, not to mention publicity of illegally wiretapped material is criminal. And yet the rapid and extensive proliferation of the so-called Garci tapes, in willful disregard of the patent illegality of the same, in addition to their being publicly played by a Joint Committee of Congress, has, in our view, eroded the authority and credibility of the law. Either the severe and all-encompassing character of RA 4200 is reaffirmed by new legislation or relaxed to accommodate the politically charged character of illegal wiretaps, such as that of the so-called Garci tapes.

The belated appearance of Garcillano and his unwavering refusal to give responsive answers to any questions relating to the so-called Garci tapes showed how wrong the Committee, the opposition, the public and the press were to have put so much importance on Garcillano’s testimony.

Where the constitutional mandate of the Committees to conduct the inquiry comes into conflict with public interest and privacy issues that may be invoked under the law, the Committees were guided by the opinions of the country’s legal experts as follows:

“The right to privacy protected by the Constitution under RA 4200 must be balanced against the right of the people to information under the Constitution.”

“… nothing is more vital to the democratic polity than the issue of who was elected president in the last elections and whether or not the democratic processes have been distorted. Now that the president has authenticated the tape and admitted that hers is the voice on the tape, it is imperative that the people should get to know what their President had told a member of the independent constitutional commission and what the latter had replied.”
“The contents of the alleged wiretapped materials are not merely of private concern; they are matters of public interest.” … “Privacy concerns must give way when balanced against the interest in disseminating information of paramount public importance.”

The House report then discusses how its legal minds responded to legal arguments proposed to the congressmen. They made up their own minds:

The Joint Committee does not adopt as definitive any or all of the legal opinions offered. At least one of them appears to be based on a misreading of the celebrated case of New York Times Co. v. United States [The Pentagon Papers Case] which qualified its decision to allow publication of so-called national security documents in the interest of the public’s right to information and freedom of expression by adding, through Justices Douglas and Black, that “[t]here is, moreover, no statute barring the publication by the press of the material which the Times and Post seek to use.” While Justices Stewart and White, stressed that “[I]n the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked instead to perform a function that the Constitution gave to the Executive, not the Judiciary.”

But in the Philippines, there is such a statute barring the public disclosure of certain information; to wit, Republic Act 4200. So that the situation would be akin to that in Snepp v. United States, where the Court held that the failure of a CIA agent – who had signed a confidentiality agreement with the CIA yet failed to get CIA permission for the publication of his memoirs – even if the government conceded that they divulged no confidential information – created a constructive trust over the proceeds of the publication in favor of the government. If that was so with regard to a general law like contracts, what more a specific enactment such as R.A. 4200.

And they played the tapes, and pointed out what this meant:

In any case, the Joint Committee ultimately voted to play the tapes on the insistence of the majority of its members for tactical political reasons. And it did so with the repeated caveat that the Joint Committee was not treating them as authentic, or that their content was true or admissible as evidence for any purpose. It was listening to the tapes merely as part of the narrative of the witnesses who presented the same or as “reference materials.” It must be noted that the Joint Committee made no disclaimer to the witnesses about their criminal liability for introducing the tapes or admitting to handling them so that they testified at their peril. Yet, curiously, the government has shown no interest in prosecuting these clear violations of law.

The so called Garci tapes were played in open session. But to what effect this has on the authority of the law has yet to be determined. Fr. Bernas had suggested that it would be more prudent for the tapes to be played in executive session to minimize the legal fallout. Did the playing of the tapes in public by the law-making branch of government effectively create an exception to the blanket prohibition in R.A. 4200 to the use of the products of illegal wiretaps? Do we have here an implicit congressional repeal? Might it be said that the production and playing of the Garci tapes in Congress and by Congress decriminalized the same, so that it can now be authenticated by the admission of those who conducted the wiretap without peril of prosecution? Can the contents of the tapes as captured in the House of Representatives transcripts of stenographic notes be now received in evidence for purposes of congressional proceedings, such as impeachments, or a prosecution for election fraud? Is there a need to reenact the anti-wiretapping law because of what transpired in the joint hearings? Perhaps these questions will get definitive answers when a comprehensive review of the law is finally undertaken in more sober circumstances. But to be consistent, the Congress that played admittedly illegal wiretaps should proceed to legislate a legal exception for itself.

by so doing, flaws in the law became clear (to the congressmen):

The hearings also showed the deficiencies of RA 4200 as a potentially powerful legal tool in the prevention, detection and prosecution of serious crimes. Enacted on 19 June 1965 and never amended since, the concerns raised during the discussions show that the law needs to be updated to accommodate unanticipated improvements in communications technology, as well as unprecedented political situations, particularly on the following provisions and salient concerns:

1. In Section 1 of RA 4200, the modes of communication that can be open to legitimate wiretapping appear to be limited by the prevailing technology at the time of its enactment — “…to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dectaphone or walkie-talkie or tape recorder,…” It could be construed as having failed fatally to anticipate novel technologies and services such as digital or wireless communication. In the strict construction required of penal laws, this shortcoming could favor the accused and prove fatal to a criminal prosecution based even on authorized wiretaps.

Novel and unanticipated wiretapping technology at the time of the law’s enactment might be deemed excluded from the penal law’s strictly circumscribed coverage. Still, we are satisfied that, in the present case of the so-called “Garci tapes,” the phrases “any other device or arrangement, to secretly overhear intercept or record” adequately covers even the new technology by which the Garci tapes may have been made. We can conclude, therefore, that the recording of the same is fully covered by the existing language of the law. Nonetheless, a clearer language covering to both existing and future possible technologies via an amendment or new law may be called for; (italics supplied)

2. Section 3 of the same law only specifies a limited range of crimes for which legitimate wiretapping can be sought, to wit,”… crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy, …” This covers mostly national security offenses. The emergence of organized crime groups that are able to exploit modern digital telecommunications has put law enforcement at a distinct and severe disadvantage. For example, it is virtually impossible to conduct a drug buy-bust operation with cellular phones able to alert the suspects to pull out of a “deal” before police agents can swoop in. The new and eminently portable communications technology has greatly enhanced the ease and impunity with which other serious crimes can be committed.

An amended law should now include drug trafficking, bank robbery, kidnap-for-ransom, human trafficking, white slavery, child pornography, illegal recruitment, including acts constituting impeachable offenses as some of the crimes which could be covered by a court order authorizing wiretapping.

3. The NBI has denied possessing even the capability to conduct interception and other wiretapping activities. While the ISAFP has admitted that it can tap landlines or land based cable/wire phones, it has likewise denied any capability to wiretap cellular telephones. Both the major telecommunications companies, Globe and Smart, have also denied possessing equipment capable of conducting electronic intercepts or of having allowed at any time in the past the use of their equipment by law enforcement agencies authorized to conduct the same for the prevention or detection of crimes, such as kidnapping.

It would be frightening to believe the ISAFP’s and the NBI’s firm assertions of technical impotence in the field of modern surveillance. It would put the country on the watchlist of countries abetting, deliberately or by neglect, organized crime such as drug trafficking and terrorism.

The Joint Committee believes that the following needs to be done: 1) Congress should make sufficient budgetary allocations to enable law enforcement and national security agencies to conduct modern surveillance and, equally imperative 2) strictly control and monitor the possession, acquisition and use of modern surveillance instruments by these agencies, severely punishing their unauthorized acquisition and use, extending to their publication. It was the sense of Congress in a recent and related piece of legislation, to wit, RA 9160, as amended, The Anti-Money Laundering Law, that one of the most effective ways of protecting the confidentiality of records and communications is to explicitly and severely penalize their disclosure and publication. RA 9160 therefore included the media within the scope of the prohibition and made it liable for the publication of confidential information, with the aim of discouraging the extortion and blackmail of public officials and private persons by media practitioners.

4. R.A. 4200 does not explicitly mandate the cooperation and assistance of telecommunications service providers or other similar private entities equipped with up-to-date equipment and facilities through which electronic surveillance might be conducted.

Several countries such as the United States, Canada, the United Kingdom, and Puerto Rico, have enacted laws giving legal authority to law enforcement agencies to conduct surveillance and intercept communications, and for that purpose obligating telecommunication carriers to assist in this endeavor, subject to judicial authorization. This is called the “Communications Assistance for Law Enforcement Act” or the CALEA.

A provision responsive to this issue is included in several proposed bills under deliberation in plenary. The Joint Committee believes and recommends, however, that this specific matter should be further studied. The Committee on Public Order and Security and the Committee on Justice should undertake a comprehensive study and determine whether we need similar legislation in this area.

Next, national security:

The Joint Committee was not able to establish that the ISAFP or the NBI were responsible for the Garci tapes which involved cellular phone conversations. Both denied the technical capability to do it. But the Joint Committee uncovered that at least one such equipment - GSM Cellular Phone Interceptors and Transmitters capable of intercepting digital cellular phones - existed in the NBI. On 7 July 2005 Rep. Jesus Crispin Remulla submitted documents showing the acquisition of such equipment in Y2000/2001, thus showing that, at one time, the NBI had it. NBI Director General Wycoco denied the NBI’s capability to wiretap “at the moment,” though he later qualified his statement by saying that such equipment as the NBI had was, as he put it, a “lemon.”

But, according to the affidavit of NBI Regional Director Carlos Saunar, these particular wiretapping equipment were handed over to Atty. Samuel Ong on 4 July 2001 and on 30 July 2001 or immediately thereafter upon the verbal instructions of Wycoco. Atty. Saunar stated in his affidavit that at the time of turnover to Atty. Ong, the equipment did work. Ong’s refusal to appear in person denies Saunar’s testimony the corroboration it needs.

The Joint Committee had received information that some of our law enforcement and other intelligence agencies such as the former Presidential Anti-Organized Crime Task Force (PAOCTF) or its spin-off, the current Presidential Anti-Crime and Emergency Response (PACER) do have the capability to intercept communications on digital cellular phones, which are being used for anti-kidnapping and anti-terrorists operations. But it is unable to say with any confidence if the information is true. It may just be a useful fiction intended as a deterrent to the use of cellular phones in crimes.

The Joint Committee is fairly certain that, whatever the condition of the wiretap recordings – original or altered – it was former COMELEC Commissioner Virgilio Garcillano who was the subject of the wiretap and not the other parties he was allegedly conversing with. Only Ong’s direct testimony on the manner in which the wiretap was conducted could have established the truth. The closest that the Joint Committee might have come to the truth was by consulting the phone records of the alleged parties to the alleged wiretapped conversations, contemporaneous with the time the same are alleged to have taken place. A legal opinion submitted by Dean Agabin stated that the phone companies could submit these phone records without violating the privacy of the persons involved. But time had run out on the Joint Committee. As Congress prepared to reconvene, the action shifted to the 2005 impeachment proceedings.

Regardless of who was the intended victim of the interception, the Joint Committee is very much concerned that the President of the Philippines and other high officials of the government can be victimized by wiretaps. Such activities can compromise national security, not least by exposing these officials to blackmail and extortion that would, most likely, affect the performance of their duties and subvert their fidelity to the public trust.

There is compelling reason to conduct a review of not only the capabilities of law enforcement agencies to conduct effective surveillance and intercept operations, but also the manner in which classified information or intelligence materials are handled and treated. Specifically, the following should be given importance:

1. Conduct an audit of existing technological capabilities of law enforcement and national security agencies for wiretapping and other forms of electronic surveillance;

2. Review how the above agencies handle intelligence material. That the wiretapped material in question, if authentic, may have been leaked, sold and otherwise illegally disclosed, for whatever purpose, underscores the careless, cavalier, not to say criminal fashion in which intelligence material is handled by the military. This is eloquently exemplified by General Quevedo’s testimony that although he had heard about the CDs, these did not appear important to them (ISAFP) and were even surprised when the CDs were presented to the media. At the time of his testimony on 13 July 2005, he had not bothered to listen to the CDs.

Similarly, the NBI averred utter indifference toward what could well be a wiretap of presidential conversations and refused to budge or even consider investigating the provenance of the so called Garci Tapes even after they blossomed into a full-blown political crisis marked by bitter political divisions, as well as shameless dodging of the issues on one hand, and grandstanding on the other.

Both agencies are hereby reprimanded for their cavalier attitude toward a development that, unchecked, swelled into a national crisis. Even if the so-called Garci tapes had not been authenticated, the fact that it sounded like the President’s voice in the wiretapped conversations and the apparent breach in security should have been a cause for grave alarm.

3. In relation to the above, there is, too, the case of T/Sgt. Doble, who according to his testimony, was approached by Ong to “own up” to the wiretapping in exchange for two million pesos. This happened in the Imperial Hotel on Timog Avenue, which is highly identified with the entertainment industry. He was, however, contradicted, by his lover, Marietta Santos, who testified that it was, in fact, Doble who sold the tapes to Ong for the said amount in that hotel. Regardless of who was telling the truth, Doble should be held accountable for his actions in this issue. As an officer in the Philippine Air Force, and as an agent of ISAFP, his participation in this drama raises questions about his integrity and conduct. Doble must be held liable for violations of the Articles of War, as amended, specifically Articles 63, 67, 84, 95, and 97 and the AFP Code of Ethics, Sections 1.2 and 2.8 of Article III and Sections 3.1, 4.1.2, 4.1.3 and 4.4.8 of Article V.

4. The Committee on National Defense and Security shall exercise its oversight powers and conduct further investigation into the management of intelligence information. In the matter of the subject tapes, their authenticity should be firmly established or definitively disproved to the extent possible, and their real provenance established, so that if the intelligence agencies are shown to have been involved, the officials concerned should be held accountable.

5. Congress should endeavor to promote and preserve professionalism in the AFP and other national security agencies. Legislation should institutionalize these reforms. Congress, particularly the pertinent committees, should exercise oversight powers more firmly, demand higher standards, and conduct a sharper scrutiny of the appointment and promotion of officers in the AFP and other agencies involved in national security.

The section of the report covering technology, might be of interest to other, tech-oriented bloggers, I don’t know. But anyway, read the report: it shows what is considered factually established, what remains unknown, and what has already been covered in terms of the legal arguments.

For most people, though, it is this extract from near the end of the report, that will be the most interesting. I myself have said many times before, most recently in my column today, that the cover-up conducted by the Palace in the wake of the tapes, was enough to damn it. Apparently, the House believed so, at least to a certain extent. It heaps blame on all parties concerned, which will please both sides of the political fence. So let’s close today’s entry with the House report’s findings:

The brunt of Minority Floor Leader, Rep. Francis Escudero’s privilege speech was that the government was unfairly blaming the opposition in the House for the illegal wiretaps, their disclosure and the resulting political instability.

The opposition repeatedly denied that it had or could have had anything to do with the so-called Garci tapes and the resulting instability. Nothing said in the joint hearings belied its claim of innocence, not to say inutility, particularly when the government itself denied referring to the opposition in the House.

It cannot be denied that former Senator Tatad belongs to the opposition. Mr. Tatad admitted that he gave Atty. Paguia the two audio cassette tapes from which Paguia’s 32-minute CDs were copied. Mr. Tatad has also stated his view that the Arroyo government is illegitimate.

It is therefore difficult to escape the conclusion that this so-called wiretap tapes, whether genuine in whole or in part, or completely fabricated, could have just materialized out of thin air and fallen fortuitously on the laps of the persons who brought them to public attention. Indeed, there is compelling reason to believe that, if not their production, then certainly their acquisition and subsequent publication were actively sought and were components of a plan involving several persons and considerable financial resources, with the aim of embarrassing the President into leaving office or, failing that, toppling the government by the political mass action generated by the scandal. Who were the persons involved, the Joint Committee cannot say; almost everyone who passionately invoked the tapes as authentic was even more vehement in denying any knowledge that could prove its authenticity or having had anything to do with the tapes.

While it is unfair if not impossible to require proof of a negative – to wit, that the alleged conversations in the so-called Garci tapes did not take place – on the contrary, the President confessed and apologized that conversations, not necessarily the same, took place between herself and a COMELEC official – Malacañang was clearly at an utter loss to explain the tapes and, on at least one occasion, attempted a cover up.

This was when the Press Secretary’s claimed that of the two CDs he purportedly received from an anonymous source, one was original and the other tampered with. This only raised more issues and answered none. How did he know which was which? He later said he had relied on the labels of the CDs, one saying it was fake and the other genuine. But why would anyone send out a pair of contrasting tapes, one self-admittedly a fake and the other claiming to be a true reproduction? And why would Bunye rely on the labels? Was he adopting the labels as true? He appeared to have done so, claiming that one tape contained the President’s voice. But he later disowned his own statement.

In sum, on the one hand, a conspiracy clearly existed to topple the President by embarrassing her with the so-called Garci tapes; on the other hand, the administration could not and would not confront the tapes, contributed nothing towards arriving at the truth about them but on the contrary attempted a cover-up.

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