Mr. DRUMMOND. At least in the chain of command structure, I believe it is easy now to see the link between the treaty and the operation of the canal. It goes from the Deputy Negotiator in the DOD, who is stationed in the State Department, to Mr. Veysey, Assistant Secretary of the Army and to the Government. Having made this connection, I would like to move on to the many allegations of pretreaty implementations made against the State Department. Secretary of the Army's office. Not armed with subpena power, part of these allegations will remain just that, allegations. However, regardless of this fact, as early as the middle of 1974 the Secretary of the Army's office had formulate a phase-out plan for a number of the military bases now in existence. I believe there was a cover letter signed by Bo Callaway attached to this document. Last year the Company/Government contracted a research firm, based here in Washington to run a feasibility study to turn over the Canal Zone piers to Panama. It is my understanding that this study has been completed. It has been publicly denied by the State Department, the Secretary of the Army's office, and the Governor that the actions involving Canal Zone facilities and employee benefits are in any way tied to pretreaty implements. I find these public denials rather hard to believe, based upon a cursory examination of treaty hearings conducted by this very subcommittee. For instance, in House Hearings Serial No. 92-30, dated as far back as November 29, 1971, you will find the following discussion: Mrs. SULLIVAN. . . . I want to know what you are going to do about this on matters of housing, what you are going to do with the schools. We know about the lack of educational facilities in Panama and we know how even the Panamanians who work and live in the Canal Zone beg us not to let these schools go and the education of their children deteriorate any further in the Canal Zone, and the Panama Canal Company is helpless to do anything because of the demands of Panama. These are the things that I think we are going to have to know how can we accept something blindly as we did in 1967? Mr. MUNDT. Deleted let me take the question of commissaries, since you raised that and the provision for food for people in the area. "deleted" I am sure that people out in Missouri and people in South Dakota where I come from, would be pretty agast if they knew that the U.S. Government was running bowling allies and laundrys and threaters and commissaries, your people and my people who always used to think that such matters should be in private hands. Mrs. SULLIVAN. I do not mind the sports thing and the entertainment, but let's get down to the real living problems of the people. Mr. MUNDT. Deleted. Mrs. SULLIVAN. You mean enlarge the schools to the point where anyone from Panama not working for the Panama Canal could send their children? Mr. MUNDT. No. Deleted. We are trying to negotiate so that there will be more of a bi-national character within the Canal Zone. Mrs. SULLIVAN. I have taken up so much time since others do want to question you, but I would like to have your answer for our Committee on the commissaries, housing, and whatever other facilities that you expect to be turned over in this treaty, turned over to Panama. What happens to the dock worker on the piers that are to be operated by Panama, what about the wage scales, how are they going to be worked out that is, one operated on an American wage scale and another under Panamanian wage scales?... Mr. MUNDT. I am trying to at least make very clear principles we are applying to the consideration of this kind of question that essentially all the commercialtype activities could potentially be handled by private enterprise, (deleted). I do not believe there is any need to go further to have proven that the State Department, through the Secretary of the Army's Office, is implementing pretreaty commitments. These so-called proposals offered by Mr. Veysey have disrupted the efficient functioning of the canal. I find it very interesting to note that, in respect to the several principles agreed to by our Government and the Government of Panama, three areas of interest stand out : 1. Military bases will be reduced to three. That is what the Ambassador in this discussion deleted. 2. All commercial function will be turned over to Panama. 3. All U.S. Government functions will be turned over to Panama. Since many facets of these areas are or will be implemented prior to Congress voicing their opinion in respect to this treaty; just what is it they expect to ratify or not ratify? To me this question seems absurd. As you know, Madam Chairman, I have no experience in law, however: with the subcommittee's permission, I would like to suggest a solution to this problem of whether or not the Secretary of the Army's Office has exceeded the authority granted to it by the Congress. The answer lies in the administrative structure that effectively implements decisions that affect the Canal Zone; whether or not there is a conflict of interest by implementing these decisions: and, finally, what branch of our Government has final jurisdiction in matters related to the Canal Zone. The later point was partially settled in 1970 (Wilson v. Shaw) when the Supreme Court announced that the Canal Zone was a territory of the United States. The Court reaffirmed that announcement in 1972 (United States v. Husband). This Court further announced that "Congress has complete and plenary authority" over the Canal Zone: which they defined as an "unincorporated territory of the United States." This later decision conflicts with the State Department's view that the power of Congress does not exclude concurrent action by the President under his treaty power "when the subject matter is appropriate for international negotiations." There are a number of learned historians and Congressmen that, I believe rightly contend that the Canal Zone is not a “subject matter” that "is appropriate for international negotiations." However, when the courts subject the decisions of executive officials to review in order to eliminate or correct abuses of discretion, they are not substituting their judgment, but insuring that it is exercised within bounds of statutory and common law. The concept of review is not therefore a violation of even the more traditional view of separation of powers. (There are perhaps a hundred Supreme Court decisions stating that it is the function of the judiciary to review the exercise of Executive discretion.) K. Davis Administrative Law Treatise; at 984 (Supp. 1970). "It is the essence of the judicial function to determine the limits of Congressional grants of authority to executive agencies, (for example, Stark v. Wickurd, 321 U.S. L88, 309–10 (1944); Safir v. Gibson, 417 F.2d 972, 978 (2d Cir. 1969). See also L. Jaffe, Judicial Control of Administrative Action, 572 (1955)) and to invalidate discretionary determinations which exceed the permissible bounds of that authority. (For example, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); Peters v. Hobby, 349 U.S. 331 (1955); City Lumber Co. v. United States; 311 F. Supp. 340, 347 (Cust. Ct. 1970)). "The courts have a duty to maintain minimum standards in the Executive Department to assure that the wishes of Congress are not frustrated. This duty has been clear since Marbury v. Madison..." /DeVito v. Schulz, 300 F. Supp. 381 (D.D.C. 1969), The doctrine of separation of powers has often been interpreted to encompass three absolutely distinct branches of Government with not overlap in duty or function. James Madison, with respect to his concept of the separation of powers, had a less rigid view when he wrote: Where the whole of a department (Legislative) is exercised by the same hands which possess the whole power of another department (executive) the fundamental principles of a free constitution are subverted *** The separation of powers does not require that the branches cannot have * * * partial agency in, or control over, the acts of each other. (Emphasis added.) I am referring specifically to the Canal Zone. Questions dealing with the exercise of multiple functions residing simultaneously in one employee or body have arisen quite frequently in relation to administrative agencies. In respect to the eight point agreement made by Secretary Kissinger, the Congress gave the President of the United States the authority to conduct the functions in the Canal Zone. The Congress did not give the President of the United States, including his Secretary Kissinger, the right to turn that canal over to the Republic of Panama. Had they done that, I believe the President of the United States would have to go to Congress, as they did when they created it. They would have to get another in order to legally do this. Again, on that point. I am not a lawyer. The Administrative Procedure Act (5 U.S.C. 551-59, 701-06, 3105, 3344, 5362, 7521 (1970)) has drawn the line at such combination of functions. In Kong Yong Sung v. McGrath (339 U.S. 33 (1950)), the court found if "beyond doubt" that Congress, in enacting the Administrative Procedure Act, intended to prohibit a commingling of functions. (Id. at 46) The combination of functions problem has also been dealt with in legislation concerned with the administrative agencies. The Administrative Procedure Act has affirmed the idea that it is the dual role presiding in one person or body which is inimical to the separation of powers. (Adminstrative Procedure Act, 5 U.S.C. 554d (1970).) The seperation of powers doctrine should be invoked when a body or employee is given inconsistent functions. United States v. Solomon, 216 F. Supp. 835, 840 (S.P.N.Y. 1963); accord Scigliano Inquisitorial Proceedings and Separation of Functions, 38 U. Det. L.Rev. note; Scigliano 214, at 82-86 (1960). Again, I ask how can you turn something over and protect it at the same time, or get rid of it and protect it? In short, Madame Chairman, all of the actions now being proposed by the Secretary of the Army's Office clearly are geared to fomenting good relations with Panama. They are pretreaty imple mentations. They have had a clearly negative effect on the efficient functioning of the canal. I believe, based on the above, that the Secretary's Office has clearly violated the mandate given it by the Congress. I strongly urge that this committee take the forceful and necessary action to stop this subversion of U.S. taxpayers' interests. At this time, Madame Chairman, with the subcommittee's approval, I would like to submit several documents for the record which have come into my possession. Mrs. SULLIVAN. Without objection, you may. [The following was received for the record.] DEPARTMENT OF THE ARMY, HEADQUARTERS U.S. ARMY FORCES SOUTHERN COMMAND, Subject: English Language Training for the Panama National Guard. 2. Personnel and instructional facility requirements for establishment of the school are at Inclosure 1. These data are provided by DLI and do not include any costs for construction or installation of equipment. Estimated costs for establishment of the sub-DLI at Ft Sherman are at Inclosure 2. 3. Discussion and preliminary planning accomplished to date have centered on the use of Ft Sherman for this project. DLI chose Ft Sherman over other Canal Zone sites primarily because of its relative isolation from a Spanish language environment. Although Ft Sherman does offer the best site for isolation of the students, there are a number of factors which militate against its selection. Among these are the dilapidated condition of available barracks space and corresponding high cost of rehabilitation, lack of adequate recreational facilities, disruption of JOTC activities, distance from likely source of language instructions, frequent commuting delays encountered in crossing Gatun Locks and inadequate dining facilities. 4. To comply with USCINCSO tasking for this project all USARSO facilities except Ft Amador and Quarry Heights must be evaluated as potential locations. To determine the total impact on the command, addresses must evaluate all possible resource requirements (within their respective areas of interest) and disruptions of normal activities which establishment of this facility could cause at Forts Gulick, Davis, Clayton, Kobbe and Sherman. Impact statements should be based upon the assumption that all services provided to US Army personnel will be made available to the PNG language students, with the exception of unlimited Exchange and Commissary privileges. 5. Request that installation commanders in coordination with the G4 and Engineer advise Chief, SAO, of classroom, billet and dining facility space which could be used for this project on each of the aforementioned posts NLT COB Tuesday, 3 September. Request that all addresses provide impact statements covering resource commitment at all potential sites NLT 1000 hours, Friday, 6 September 1974. MILTON J. MORGAN, Colonel, GS, Chief, SAO. SAMPLE REQUIREMENTS G-1-Recreation services impact at each post; additional personnel requirements; problems affecting movies, clubs, exchanges and privileges; education center control. G-3-Training activity impact; training aid support. G-4-Facilities; equipment; furnishings; messing; KP's; transportation. ENGR-Facilities, contracts, lead time. PMO & MEDDAC-Any additional requirements which could accrue from having approximately 60 GN in residence on one of our posts for two years. USARSA-Impact of sateliting the sub-DLI upon USARSA. PAC, AAC, ENGR, G-4-Facilities available at any post other than Ft Sherman. COMPT-Funding control. OPTION TO TRAIN 50 STUDENTS AT A TIME IN CANAL ZONE 1. Personnel requirements: 1 GS-11 Ltd. from DLI. 5 Local hire instructor trainees, GS-5-1712? 1-2 WAE (substitutes). 1 Typist. 1 Electronic technician. 5 U.S. military monitors. 2. Instructional facilities: 5 Small classrooms. 1 20-position lab. 1 Office for GS-11 and typist. 1 Lounge for 5 instructors. 1 Student lounge/library/game room/TV combination. 3. Cost per FY: GS-11, step 5, 2 children. Salary $16,200.00 plus 15 percent TD, schools charge, PCS, travel. 1 Cost per student based on 2 classes of 50 per fiscal year-$98,206÷$100=$982.00. COST ESTIMATE FOR ESTABLISHMENT OF DLI FACILITY AT FORT SHERMAN 1. Classroom and living facilities: A. Classroom and language lab construction, building 204. B. Upgrade living facilities (204).. C. Rehab dining facility in building 204. D. Initial procurement of expendables for dining facility. E. Expendables for barracks.... F. Annual maintenance and utility costs_ G. Construction of shower and latrine facilities at Fort Sherman bivouac site.. H. Barracks and dayroom furnishing (MVA standards). Total $43, 000 75,000 21,000 2,000 1, 200 8,000 30, 000 22, 000 202, 200 2. Recreational facilities: A. Upgrade post theater (fix leak in roof, replace screens and repair doors). B. Resurface tennis court and replace fence.. C. Gymnasium-repair roof, refinish court floor. D. Softball field-refurbish field and provide lighting Total___ Grand total_ 3. Additional miscellaneous costs: A. Laundry. B. Contract bus service. 1 Per man per month. 2 Per hour. 21,000 13, 500 12, 200 40, 200 86, 900 288,900 17.65 25.75 |