Thursday, March 26, 2009

Erap's Private Army

AFTER Joseph "Erap" Estrada was elected president in 1998, he stopped his predecessor's six-year campaign to disband the 560 "private armies" that had proliferated all over the Philippines. Instead, Estrada added one more “private army” to the list - but one that was crafted from within the ranks of the Philippine military establishment, an elite unit that would go after his political enemies and engage in “black operations.”

The activities of Estrada’s “private army” were exposed last month when Philippine National Police (PNP) Col. Cezar Mancao executed a sworn affidavit in Ft. Lauderdale , Florida on February 14, 2009 detailing his personal knowledge of the execution of publicist Bubby Dacer and his driver, Emmanuel Corbito, on November 24, 2000.

As Mancao explained it, one of the first acts of Estrada after he was elected president was to create the “Presidential Anti-Organized Crime Task Force (PAOCTF)” in July of 1998 and to appoint Gen. Panfilo Lacson as its head. Lacson then appointed PNP Col. Michael Ray Aquino as Head of the Operations Division, PNP Col. Teofilo Vina as Chief, Task Group-Visayas and Mancao as Chief, Task Group-Luzon. Mancao thereafter appointed PNP Col. Glenn G. Dumlao as his deputy for operations.

Although Dumlao was under Mancao’s command, he was given orders by Aquino to “conduct discrete Background Investigation on a certain personality” which turned out to be media man Bubby Dacer. He was instructed to monitor Dacer's visitors and to surreptitiously enter his office at the Manila Hotel and purloin whatever documents could be taken. Following his orders, Col. Dumlao proceeded to the Manila Hotel, posed as a hotel guest, and checked in using the alias “Irwin Chavez.”

In his February 14, 2009 affidavit, Mancao wrote: “While I was opposed to Aquino’s use of my personnel, there was nothing that I could do then to prevent him because he occupied a position higher than myself in terms of designation at the PAOCTF organizational hierarchy. Additionally, these special operations were under the direction of Lacson as PAOCTF head. However, I still instructed my men at Task Group Luzon to bring to my attention orders regarding special operations not directly coming from me and not to be keen in performing operations outside of the PAOCTF mandate, especially illegal ones.”

Why was Dacer a special target of the PAOCTF?

Although Dacer had actively campaigned for Estrada in the 1978 presidential elections, he incurred Lacson’s ire because he openly opposed Lacson’s appointment as head of the Philippine National Police (PNP), writing a letter to Estrada noting Lacson’s “ruthless abuse of power in pursuit of his goals” and “because many foresee a police state” under Lacson.

Despite Dacer’s opposition, Estrada promoted Lacson as Director-General of the PNP on November 16, 1999. Lacson, in turn, appointed Col. Aquino as the Deputy Director of the PNP-Intelligence Group (“PNP-IG”), the country’s counterintelligence agency. Col. Aquino later served as the Acting Officer-in-Charge of the PNP-IG while still maintaining his concurrent position with the elite “Black Ops” unit known as the PAOCTF.

Dacer incurred Estrada’s “severe displeasure” because of repeated stories appearing in Emil Jurado’s columns linking Dacer to destabilization attempts against the Estrada administration. On February 16, 2000, Dacer wrote Estrada informing the president that in order to “permanently take myself out of the line of fire,” he was “now planning to close my PR business and finally retire…despite the tears of my children…who feel that I was unjustly taking the fall for other people’s sins.”

In September of 2000, Dacer met with two of Estrada’s closest cronies, Butch Tenorio, the head of the Philippine Amusement Games Corporation (PAGCOR), and Dante Tan, the head of Best World Resources, to assure them that he was not involved in any effort to destabilize the government of President Estrada.

Tenorio and Tan thereafter reported their conversation with Dacer to Lacson. Soon after that meeting, Lacson convened a group of PAOCTF operatives in October of 2000 with instructions “to silence Dacer” after a “clearance from Malacanang was given.” According to Mancao, Tenorio and Tan were tasked to handle the expenses of the “operation”; Col. Dumlao and his assistants were ordered to handle the monitoring, surveillance and abduction of the “target individual”; and Task Group-Visayas Chief P/Supt. Col. Teofilo Vina was directed to take care of the “final phase.”

When Mancao learned about Aquino’s orders to Dumlao, he and Dumlao went to Aquino’s office to inquire about the matter. “Aquino informed us that these “special operations” had been previously approved and cleared by Lacson and by Malacanang itself. Dumlao mentioned to me that the “special operations” had for its target a certain media man critical of Erap, whom they referred to as “Delta”. Being in the nature of a special operation, I decided not to inquire further. For purposes of clarity, PAOCTF’s “special operations” then pertained to operations that did not follow the normal channels of command and did not come under the purview of its mandate.”

On November 21, 2000, Bubby Dacer was summoned to Malacanang to meet with Estrada. At the meeting, Estrada informed Dacer that his intelligence operatives had proof that Dacer had been actively working with former President Ramos and other opposition figures to have him impeached. Dacer strongly denied the charges but Estrada could not be placated. Estrada severely berated Dacer during their meeting, and the latter left the Palace in fear of his life.

In his affidavit, Mancao recalled a fateful conversation: “I heard Lacson order Aquino to liquidate Berroya, his public-known nemesis, saying: “Noy, tirahin nyo na si Bero.” Lacson said this while we were on board his car en route to a Japanese restaurant in Greenhills, San Juan , for lunch. I was seated at the front seat of the car then driven by Sgt. Oximoso (“Oxy” as we usually called him), while Aquino and Lacson sat at the back. Aquino responded to Lacson that he intends to neutralize or liquidate Delta first because Erap was already peeved at him, saying: “Tapusin muna namin si Delta, Sir, kasi naiirita na si Bigote sa kaniya.” (“We’ll finish with Delta first, Sir, because the mustachioed one is irritated with him”).

To be continued.

Monday, March 23, 2009

What Goes Around

When the news article about my Ninth Circuit loss (“Cops can’t be sued in ‘counterfeit’ arrest”, San Francisco Chronicle, March 10, 2009) appeared in the paper's on-line edition ( more than 98 comments were published in the first 24 hours.

One of the first comments came from “Akit” who wrote: “Let me get this right... the Walgreens manager used the special marker to prove its authenticity, and it was authentic. But they still called the cops who arrested him for being a fake? If the cops were smart, they would have used the marker to test it themselves, and wham! Can I get my change for my purchase? Problem solved.”

A comment from “szander” echoed the same sentiment: “So the manager at Wallgreens used a special pen to determine that the bill was legitimate and called the police anyway? Why, then, was the guy arrested after it was proven that the bill was authentic? That sounds incompetent to me.”

Quite a number of comments asked why I did not sue Walgreens instead. Well I did. In fact, as a result of my lawsuit, Walgreens fired the manager (Dennis Snopikov) and hired a Filipino, the first to be promoted to store manager in San Francisco. Walgreens also issued a public apology and paid my fees.

The transcripts of the 911 taped call of the Walgreens manager revealed that Snopikov had merely expressed a suspicion that the bill may be counterfeit, he did not claim that it actually was a fake. It was the police officers who jumped to that conclusion without conducting any investigation and that is why I sued the two police officers who were responsible for my false arrest (Sgt. Jeff Barry and Officer Michelle Liddicoet).

In their depositions, two of the San Francisco police officers who arrested me (Liddicoet and James Nguyen) stated that they thought the bill looked genuine to them when they examined it. In fact, at the police station, after Nguyen removed my handcuffs and informed me that the Secret Service had verified that the bill was genuine, Nguyen even boasted to the other police officers that he knew all along that the bill was genuine.

Liddicoet and Nguyen also claimed in their depositions that my false arrest was the result of a mix-up. The first two SFPD police officers to arrive at the scene, Sgt. Barry and Officer Barbara Dullea, reported a Code 4 - “situation was under control” (SUC)- to Liddicoet and Nguyen who unfortunately, they said, understood Code 4 to mean “suspect in custody” (SIC) and expected to see the suspect already in handcuffs upon their arrival. However, when they entered the store and saw it wasn’t the case, they proceeded to place me in handcuffs.

That’s the Keystone Cops “plainly incompetent” version.

The real story is that Sgt. Barry, the first officer to arrive at the scene, had a personal beef against me dating back to 1998 when our sons were 3rd grade classmates in a parochial school. While we were discussing a school policy, Barry started complaining about a City College policy of not allowing campus police officers to carry firearms on campus. He believed that this policy placed his brother-in-law at risk for his personal safety. As I was a City College Board member then, he wanted me to change the policy but I disagreed with his view.

So when Sgt. Barry saw an opportunity for payback five years later, he just couldn't resist it. He told Liddicoet (who had just arrived at the scene and who had asked him for a status update) “Oh it’s that lawyer, he hates cops”. (Honestly, I don’t). Liddicoet replied, “Don’t worry, Sarge, I’ll take care of him”. And take care of me she did.

Although Barry was the first to arrive at the scene, I didn’t recognize him because I was speaking with the store manager at the time. After I was placed in handcuffs in the backseat of the police car, I overheard an officer come up to Liddicoet who was seated in front of me and whisper to her: “Make sure my name isn’t on the police report, ok?” LLiddicoet replied "Yes, Sarge". I couldn’t see the face of "Sarge" as it was dark but I kept asking myself throughout the ride to the Taraval police station “Who is Sarge and why doesn’t he want his name written on the police report?”

So when I saw the police report which included Sgt. Barry’s name (Nguyen wrote it), everything finally made sense. Wow, I thought, this officer can carry a grudge.

The Ninth Circuit’s March 9, 2009 decision means that police officers like Sgt. Barry now have the power to arrest anyone that they have a personal grudge with and people like me can’t sue officers like Barry. It’s no longer a qualified immunity, it’s now an absolute immunity.

My long-time critic, Roy Recio, cheered the Ninth Circuit decision in an email to me a few days ago because, he wrote, “This is what you deserve”. The question is not whether I deserve it but whether Recio deserves it. He may one day find himself falsely accused of a crime and arrested even without probable cause. To make sure that it doesn’t happen again to anyone else and to compensate him for the embarrassment the false arrest may have caused him, Recio may file suit against the police officer. Ironically, his suit would then be thrown out of court because of the decision he is now cheering. If that happens to Recio, I promise I won’t email him to gloat that what goes around, comes around.

Thursday, March 12, 2009

Disappointing Ninth Circuit Decision

Police authorities in countries and societies all over the world have the power to safeguard the life, liberty, and pursuit of happiness of their citizens and the same awesome power to deprive them of any or all of the above. What essentially separates the police in democracies from their counterparts in totalitarian societies is not their potential for abuse of power but their liability for the abuse of that power.

If I had entered a pharmacy in the Philippines during its martial law years and a police officer had assumed from my appearance that I might be passing counterfeit currency, he could arrest me even without any evidence that the currency was counterfeit or that I knew it was so, place me in handcuffs behind my back, parade me before the customers of the store and haul me off in a police car to a precinct where I would be handcuffed to a bar in a cell. Under the Marcos Dictatorship, I would have absolutely no recourse against that officer, if I were ever released.

But if that same incident happened in San Francisco on February 17, 2003 - not in Manila 30 years before - I would have recourse. I could sue the officer for arresting me without probable cause and I could be awarded damages for his abuse of power. This threat of a potential lawsuit for the police abuse of power is what protects law-abiding citizens in democracies. No such threat hangs over the heads of police officers in dictatorships so they can abuse their power with impunity.

This is precisely why every citizen should be alarmed by the recent March 9, 2009 decision of the Ninth Circuit Court of Appeals (Rodis v. City and County of San Francisco et al) which ruled that I have no right to sue police officers for arresting me on suspicion of counterfeiting after I used what turned out to be a genuine $100 bill.

One of the officers I sued, Sgt. Jeff Barry, had known me for years not just because our sons were classmates in third grade at St. Stephen Elementary School in 1998 but because we had a heated argument in our last meeting about a City College policy of not allowing campus police officers to carry their firearms. “You’re endangering the life of my brother in law!” he accused me then. At the end of that school year, my wife and I took our kids out of that parochial school.

Sgt. Barry was the first officer to respond to the 911 call of the Walgreens manager on February 17, 2003. When he saw that I was the suspect, he stopped at the entrance and waited for the other officers to arrive. It was “payback” time. He then directed officer Michelle Liddicoet to arrest me and to make sure that his name did not appear on the police report.

When this case was first presented to the Ninth Circuit several years ago, it ruled in a 2-1 decision on August 28, 2007, that the fact that a drugstore manager was suspicious of the bill that I used to make a purchase on February 17, 2003 wasn't enough for San Francisco police officers to arrest me, handcuff me, parade me in cuffs before the store’s customers, and hold me at a police station for almost two hours. Even if it had been counterfeit, the court majority said, innocently passing a counterfeit bill is not a crime, and the police had no evidence that I thought the bill was a fake.

"No reasonable or prudent officer could have concluded that Rodis intentionally and knowingly used a counterfeit bill," Judge Dorothy Nelson wrote in the majority opinion.

Judge Nelson added: "What is more, several facts known to the officers at the time of the arrest significantly decreased the probability that Rodis violated § 472. Viz., Rodis had other $100 bills in his possession that were genuine, one of which he used to complete the transaction; the counterfeit detector pen indicated the bill was genuine; and the officers knew Rodis was both a San Francisco attorney and a locally-elected public official with strong ties to the community in which the store was located. Specifically, Barry had known Rodis for several years. He knew Rodis was a member of the Community College Board, and he had interacted with Rodis personally, encountering him at activities associated with the elementary school that both Barry’s and Rodis’s children attended. Also, Rodis informed Liddicoet prior to his arrest that he was a public figure, and that he lived and worked within two blocks of the store."

San Francisco Deputy City Attorney Scott Weiner appealed the Ninth Circuit’s ruling and asked the entire Ninth Circuit court of 27 judges (en banc) to review the decision of the 3-judge panel that handed down the published opinion. The Ninth Circuit agreed to review the decision but affirmed it. Weiner then filed a writ of certiorari (request for review) to the US Supreme Court.
Early this year, the US Supreme Court granted Weiner certiorari and directed the Ninth Circuit to review its decision in light of its rulings in two cases where the police had probable cause to arrest the suspects who later sued the police for unlawful arrest.

Even though I was disappointed with the Supreme Court’s ruling, I was confident that the Ninth Circuit would uphold its previous ruling because, in my case, the police had absolutely no probable cause to believe that I knew the bill was counterfeit, particularly since it was genuine.

So I was greatly surprised and disappointed to learn of the new decision from a San Francisco reporter who called me up at noon on March 9 to ask for my reaction to the Ninth Circuit Court’s unanimous decision reversing its previous ruling.

According to Judge Dorothy Nelson, who was joined in the 3-0 opinion by Judges Consuelo Callahan and Cormac Carney, "Although the arrest was unfortunate, we cannot say that the officers' belief that (the bill) was fake was plainly incompetent... The arrest, therefore, was not clearly established as unlawful."

Judge Callahan, the dissenting judge in the first decision, somehow managed to convince the two other judges that her dissent should be the court’s opinion this time around. In the past decision, the majority judges had concluded that viewing the facts in the “totality of circumstances”, there was just no probable cause to believe that I knew the bill was counterfeit - which was a necessary element of the specific intent crime of passing a counterfeit bill.

This time around, the focus of the court was on the subjective belief of the police officers that they thought the bill was counterfeit and their mistaken belief was not “plainly incompetent”.

When asked by the Chronicle reporter to comment on the Ninth Circuit’s new decision, Scott Weiner explained that “officers have to make arrest decisions with very limited time and limited information. Even if the person ends up being innocent, the officers are not liable. The system would collapse if it were any other way."

The image of a cataclysmic collapse of the entire system if police officers were required to employ common sense was highly effective in persuading the Court to just give police authorities full immunity from having to conform to constitutional restrictions. It worked effectively for George W. Bush.

When the same San Francisco Chronicle reporter asked me for my reaction to the new decision, I expressed my deep disappointment. "This ruling gives the police the unfettered license to arrest anyone for the flimsiest of reasons without having to use common sense."

The lines are blurring. I will appeal the Ninth Circuit’s new decision all the way to the US Supreme Court if necessary.

Friday, March 6, 2009

Filipinos Need No Enemies

Rep. Steve Austria (R-Ohio), the lone Filipino American member of the US Congress, told the vast TV viewing audience of ABS-CBN’s Balitang America that he voted against the stimulus bill even though it would allocate $198-M for Filipino WW II veterans because, he said, the money would not go towards stimulating the weak US economy. Instead, Austria said, he wanted a “stand alone” bill that would allot lump sums to Filipino veterans.

The Filipino veterans (FilVets) know all about "stand alone" bills because they have been down that road many times before. When Austria's party controlled the US Congress, the Republican chair of the House Veterans Committee (Rep. Steve Buyer of Indiana) refused to even hold a hearing of his committee to consider the FilVets claim.

With the Democrats in control of Congress last year, Filipino veterans finally succeeded in getting both Houses of Congress to hold hearings on the FilVets bill and to endorse the bills. The US Senate passed its bill by a 96-1 vote but only after it had been folded in with other veterans issue in an omnibus veterans bill (S. 1315) crafted by Sen. Daniel Akaka (D-Hawaii), chair of the Senate Veterans Committee.

But even that omnibus bill could not be approved by the House until the Filipino veterans provision was excised from it. The only hope in November of 2008 was for the Filipino veterans provision to be included in the Senate-House conference committee compromise. But Sen. Richard Burr (R-North Carolina) killed off any hope of that by rejecting the request of Sen. Akaka for a unanimous vote to cut off debate and vote on its inclusion.

Fortunately, all was not lost because Rep. Chet Edwards (D-Texas), chair of the House Appropriations Committee, somehow managed to include in the appropriations bill for the US military a provision allocating $198-M to Filipino WW II veterans which was signed into law in November of 2008. All that was needed was for a bill authorizing the release of those funds to be passed.

When the stimulus bill was introduced in the House this year, Rep. Bob Filner (D-California) - the author of the bill that would allocate lump sum payments of $15,000 each to Filipino veterans who were US citizens and $9,000 each to those vets who were not - lobbied the Democratic leadership in the House to include language authorizing the release of those funds. But his efforts were rebuffed because House Democrats feared that it would not pass the Senate if it included a FilVets provision that was not connected to stimulating the US economy.

The fate of the veterans was then left to Sen. Daniel Inouye (D-Hawaii), the chair of the Senate Appropriations Committee and long-time champion of Filipino veterans equity.

In an act of incredible leadership and guts, Sen. Inouye included the Filipino veterans provision in the bill as Section 1002 of Title X. During the Senate debate on this issue on February 9, 2009, Sen. Inouye defended the FilVets provision against attacks from the two Republican senators from Arizona, Sen. John McCain and Sen. John Kyl, who not unexpectedly charged that it had nothing to do with stimulating the US economy and should be removed. Sen. Inouye agreed but nonetheless insisted that it should be included because it was a matter of “honor”.

[An unsung heroine of the entire Filipino veterans’ struggle over the last 15 years is Marie Blanco, a long-time aide of Sen. Inouye, who has been as involved as anyone in the background and as responsible as anyone in the foreground in securing benefits for Filipino WW II veterans.]

Sen. Inouye succeeded in winning over the critics and keeping the FilVets provision intact in the Senate and later in the Senate-House compromise bill that was signed into law by Pres. Barack Obama on February 17, 2009.

Instead of cheering the infusion of more than $100-M of veterans benefits to the Philippine economy, the bill was attacked by politicians and political commentators like Prof. Winnie Monsod, former head of the National Economic Development Authority (NEDA) under Pres. Cory Aquino.

In her February 24, 2009 commentary that appeared on her daily talk show, Prof. Monsod blasted the bill as “the latest indignity heaped on Filipino Veterans” (the actual title of her broadside). She recounted the “shameful and disgraceful” history of the Rescission Act of 1946 and criticized the bill for being discriminatory in that “non-US citizens will get only 60% of what US citizens would be getting.”

What Monsod and other Philippine critics fail to understand is that even the staunchest Republican opponents of the Filipino veterans bill were willing to support it if only US citizen Filipino WW II veterans received benefits under it. They opposed it because it would be a stimulus bill for the Philippine economy, not the US economy.

Monsod charged that “the Filipino veterans of WWII who served the United States when the United States needed it most, are expected to be grateful for this $198 million one-time package rather than being given the $100 million a year package that they in all fairness deserve.”

The “package” that Monsod referred to was the “stand alone” Filipino veterans equity bill sponsored by Rep. Bob Filner which provided $900 a month to US citizens and $300 a month to Philippine citizens. The bill she supported was also discriminatory but how could the 33.33% of the Filner bill be better than the 60% of the bill that was passed?

When Winnie Monsod and I were in our youth in the Philippines, it was commonly believed that the US government was a monolithic entity with everyone in the government thinking and acting in concert. After having lived in the US for almost four decades, I understand the political dynamics of the US government. I know, for example, that there are Republicans who believe that the US should be concerned primarily with national security issues and there are Democrats who believe that the US should be primarily concerned with justice and honor issues.

After 40 years, however, Prof. Monsod still clings to the notion of a US government that acts as a monolith unwilling to give the proper amount of funds to the Filipino veterans “because they are too busy spending $435 million a day, which is the estimated cost of prosecuting the Iraq war.” They?

Prof. Monsod ends her commentary with this swipe: “With friends like the United States government, the Filipinos need no enemies.” With this slogan, good luck to those who want to lobby the US Congress for more benefits for Filipino veterans.