Recent reports on the State Department's negotiations with Panama concerning the interoceanic canal indicate that a serious environmental issue is involved. The negotiators for the United States are seeking a provision in a new treaty that would grant the United States a long-term option to build a new interoceanic Sea-level Canal. The State Department has said: "The United States seeks twenty-five year options: (a) to add a third lane of locks to the present canal and (b) to build a new sea level canal." Conservation and environmental organizations strongly oppose a Panama Sea-level Canal and regard a treaty provision of this kind as prejudicial to the thorough, rational consideration of the issue. Neither the Congress nor the several relevant agencies in the Executive Branch have approved it or even seriously considered the matter. The State Department has never been authorized to negotiate for a treaty provision on the Sea-level Canal. There are important reasons for our concern. Marine scientists have repeatedly warned against a Panama Sea-level Canal, on grounds that a canal of this design would eliminate the present freshwater barrier to intermixture of the two distinct ecosystems on either side of the Isthmus of Panama. The result could be tremendous damage to the fish and other marine organisms of both the Atlantic and Pacific Oceans, with consequent impact on the large human populations that depend on the seas in this part of the world. A National Academy of Sciences Panel on the Sea-level Canal warned of "grave potential dangers" that could result from such a project. The panel said: Joining two oceans with a sea-level canal is a gigantic natural experiment. Its consequences are unforeseeable. To forego the relevant biological research prior to and during the construction of a new canal would be like preparing to put a man on the moon and neglecting to ask him to make scientific observations and collect samples. A new canal will affect the animal and plant life of the two oceans, but what these effects are cannot be determined unless the nature of the differences between the biota and ecosystems of the two oceans are first carefully established through years of intensive research. Advocates of the Sea-level Canal claim there is a technological solution to this problem, but no solution has yet been proposed in sufficient detail to allow evaluation of its effectiveness. All the proponents have to offer is vague promises. The Panama Sea-level Canal is not even necessary. An alternative modernization project, on which more than $171 million has already been spent by the federal government, would greatly increase the capacity of the present Panama Canal without hazard to marine ecosystems. This project was designed in the Panama Canal organization as a result of World War II experience and was approved by President Franklin D. Roosevelt as a postwar project. It can be carried to completion under provisions of the existing treaties with Panama. The undersigned organizations believe it would be premature and reckless to enter a new treaty with Panama that would authorize or permit construction of a Sea-level Canal. A Sea-level Canal provision in a treaty would not only prejudice later consideration of the merits of the project, but it would also lead Panama to expect the United States to build a new canal, even though no decision has yet been made on it by this country. Consequently, we will oppose any treaty with Panama that authorizes or allows the construction of a new Sea-level Canal. We urge you to instruct the Secretary of State to cease all negotiations for a Sea-level Canal provision as part of any treaty with Panama. signed: John W. Grandy IV, Executive Vice President, Defenders of Wildlife Brent Blackwelder, Washington Representative, Environmental Policy Center Lewis Regenstein, Executive Vice President, The Fund for Animals, Inc. David S. Claflin, President, International Society for the Protection of Animals T. Destry Jarvis, Administrative Assistant, National Parks and Conservation Assn. Senator ALLEN. At this point we welcome Donald M. Dozer, professor of the University of California. Dr. Dozer, we appreciate your coming this great distance in order to testify before the committee. We are grateful to you. We look forward to hearing your testimony. TESTIMONY OF DR. DONALD MARQUAND DOZER, PROFESSOR EMERITUS OF LATIN AMERICAN HISTORY AND INTER-AMERICAN RELATIONS, UNIVERSITY OF CALIFORNIA, SANTA BARBARA, CALIF. Mr. DOZER. Mr. Chairman and members of the subcommittee, my name is Donald Marquand Dozer. I am professor emeritus of Latin American history and inter-American relations at the University of California, Santa Barbara. I want to indicate that I have been concerned professionally with Latin American affairs for over 35 years. I served in the Department of State for 12 years. In 1944, I entered the State Department's American Republics Analysis and Liaison Division, and then became chief of that division. Later, I worked in the Office of Intelligence and Research, and I was the Department of State's representative to a special intelligence conference in Panama in 1948; and then served as a member of the U.S. delegation to the Ninth International Conference of American States in Bogotá in the same year. My academic career has been spent at Harvard University, American University, the University of Maryland, the Brookings Institution, and the University of California at Santa Barbara, with numerous sojourns in Latin America. I have visited the Canal Zone many times. I want to mention also that in 1972 I was honored by being selected as the recipient of the Alberdi-Sarmiento Award from the Argentine newspaper, La Prensa. This award, which has been designated as the Pulitzer Prize of the Americas, has been awarded annually since 1954 to one individual each year who has made distinguished contributions to inter-American friendship. I am the second North American to have received that honor. The question before the American people and their elected legislators in Washington is whether or not the President has constitutional power to dispossess the United States of territory which has been added to the national domain by purchase authorized and approved by the Congress. Article IV, section III, clause 2 of the Constitution has been quoted several times here today. May I call your attention particularly to the last clause in that section? "Nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States." The insistence of the Executive upon construing the treatymaking power as blanket authority to prejudice valid treaty-based claims of the United States to the Canal Zone constitutes an insurrection against constitutional government. Any unauthorized action of a president. or his executive agents purporting to diminish the national domain under his treatymaking power is an act of executive usurpation. It is, therefore, ultra vires and must be treated as null and void. If it goes unchallenged to final settlement, it may set a precedent for further dismemberment of the national territory by executive fiat. Senator ALLEN. At that point, assuming that is correct that such a treaty would be ultra vires after the fait accompli and that Panama would be given control of the canal and the Canal Zone, what could the Congress do to upset that from a practical point of view? Mr. DOZER. There is nothing the Congress could do without having an actual confrontation with the President over this matter, in my judgment. Alexander Hamilton made a statement on this point in The Federalist Papers. I think it might be relevant. He explained that the ultra vires action of an executive branch of the Government must be treated as nonoperative, nonoperational. Senator ALLEN. That is all true, but if the Panamanians had control of the canal, even though the act of the President would be ultra vires, then how could we divest control of the canal from the Panamanians? Mr. DOZER. What I am saying is intended as a unilateral protest, I mean a protest against the unilateral action of the executive, acting without authorization under the Constitution. I am not a lawyer, but I have delved deeply into this question. Senator SCOTT. What was the citation of the Hamilton statement from The Federalist; do you know? Mr. DOZER. I think that I can find it. Senator SCOTT. It is sort of nice to know what our early patrons had to say. Maybe you can give it to me later. Mr. DOZER. I can supply it later for the record. Senator ALLEN. That will be fine. Without objection, we will place. that response into the record. I will have to ask you to hit the high spots of your written testimony. Your entire written statement will also be inserted into the record. Without objection, we will insert your thoughts on Hamilton's statement from The Federalists into the record at this point. [Mr. Dozer subsequently responded as follows:] The above remarks are premised on the fundamental fact that the Constitution of the United States does not grant to any one of the three branches of the general government the authority to be the final judge of the powers assigned to it. Such a grant would have made the discretion and self-restraint of each branch and not the Constitution the measure of its authority. All agencies of government are agents of the people and are limited in the exercise of their duties by the powers assigned to them in the Constitution. It is a well established doctrine of law that an agent must not exceed the authority granted to him. If he nevertheless does so his unauthorized action is ultra vires, that is, without legal effect; it is ipso facto invalid even in the absence of specific rejection by the principal and remains null and void until and unless it is ratified. Alexander Hamilton set forth the correct theory of limited delegation of authority among the branches of government when he wrote in The Federalist, No. 78, that "Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. . . To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize but what they forbid." Hamilton had already writen in The Federalist, No. 33, that acts of the general government or any branch thereof which exceed its constitutional powers are "acts of usurpation and will deserve to be treated as such." He added that in such a case "the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify." If, as Jefferson later warned in a letter quoted below, the President's treaty-making power is considered as "boundless,... then we have no constitution." But short of a mass popular protest amounting to quasi-revolutionary action which Hamilton recommended as an ultimate method of restoring constitutional government. Senator Allen asks what can the Congress do from a practical point of view to divest control of the Canal from the Panamanians after the President has pretended to surrender it to them under guise of his treaty-making authority? After the President has created such a situation there is very little that Congress can do, short of declaring war against Panama, to restore the status quo ante. But in order to avoid an unnecessary war the people expect the Senate to refuse to consent to ratification of the ultra vires act by the President. They also expect the House of Representatives to refuse to appropriate the funds to pay Panama the amount stipulated in the treaty for the use of the Canal which the American people now own free and clear. Mr. DOZER. I want to make plain that the treaty we are talking about is not a mere boundary dispute. It is a treaty purporting to give away, permanently, territory acquired in perpetuity, purchased in perpetuity by the United States under authorization of Congress. Any comparisons, then, with the precedents established, let's say, by the Webster-Asburton Treaty with Great Britain over the boundaries of Maine or over the boundaries of the Oregon Territory in the 1840's, are irrelevant in this connection. There have been several boundary negotiations and treaties signed with Panama, but this is not one of them. This is not a boundary question. NO HISTORICAL PRECEDENT There is no precedent in our history for the disposition of territory which has been added to the national domain by purchase. The retrocession of the Canal Zone to Panama, as proposed in the current negotiations, has never been authorized by Congress. Nevertheless, for the past 12 years, Presidents and their diplomatic agents have been negotiating away the valid treaty-based position of the United States in the Canal Zone which Panama granted in perpetuity for the purchase price of $10 million. Thirty-nine thousand two hundred U.S. citizens live and work in the Canal Zone to operate, maintain, sanitate, and defend the freedom of transit of the Isthmian Canal. These dedicated men and women, some of whose grandfathers built the canal, have made a lifelong contribution to the unblemished record of the United States in honoring its international commitment to keep the canal free and open to the vessels of all nations on terms of equality at charges which are just and equitable. Where in the constitutionally limited treatymaking power of the Executive can any President find authority for his Secretary of State and ambassadors to betray the human and civil rights of these loyal U.S. citizens and to betray them to the merciless oppression of a Marxist dictator? These citizens now look to patriotic statesmen in the U.S. Senate to preserve, protect, and defend their human rights, their AngloSaxon heritage of the English language, and their common law rights |