man, the distinguished ranking minority member of the Foreign Relations Committee, Mr. Case, the distinguished minority whip, Mr. Stevens, the distinguished majority whip, Mr. Cranston, and 72 other Senators, making a total of 78 Senators, two amendments to the Panama Canal treaties which we feel represent a fundamental and essential improvement in strengthening the documents.

Since I first had the opportunity to review the treaties in September, it has been apparent to me that it would be necessary to clarify and guarantee two very important points:

First. The right of the United States to take action to defend the canal and to assure that it will remain open after the year 2000 open for neutral use; and

Second. Expeditious, or "head-of-the-line," passage through the canal for U.S. military vessels in time of need or emergency.

The critical importance of these two issues clearly emerged in the hearings on the treaties before the Foreign Relations Committee.

A detailed study of the treaties, the public debate across the Nation, and a careful analysis of the hearings, have led us to conclude that articles IV and VI of the Neutrality Treaty should be amended accordingly.

We feel article IV should be amended to insure that the United States shall have the unchallenged right to take action on its own, if necessary, to defend the canal against any aggression directed against the canal or the peaceful transit of vessels.

Furthermore, article VI should be amended to provide that U.S. war and auxiliary vessels shall have the unquestionable right in the case or need to go to the head of the line in order to transit the canal rapidly.

These two amendments will formalize into the test of the treaties, if these amendments are adopted, the statement of understanding agreed to by President Carter and by Gen. Omar Torrijos, the Panamanian leader, October 14, 1977.

It is important that this statement of understanding was agreed to and publicized in General Torrijos, televised address to his people prior to the October 23, 1977, Panamanian plebiscite on the treaties.

Mr. President, these amendments have the bipartisan endorsement of the Senate leadership, together with Senator Sparkman, chairman of the Foreign Relations Committee, and Senator Case, ranking member of the committee, as well as the cosponsorship of 74 others of our colleagues, as I say, making a total of 78 Senators who are sponsoring these amendments.

It is our belief that these two amendments will clear up any uncertainty surrounding the critical issues of the United States' right to defend the canal, as well as priority passage through the canal in time of emergency or need.

Mr. President, in addition to these 78 sponsors of this amendment, there are Senators who have indicated that they will support the amendment but for various reasons of their own they preferred not to join at this time as co-sponsors of the amendments.

Mr. President, I send the amendments to the desk and I ask unanimous consent that they be printed in the Record as in executive session and that the list of co-sponsors also be shown.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. Robert C. Byrd, (for himself, Mr. Allen, Mr. Anderson, Mr. Baker, Mr. Bartlett, Mr. Bayh, Mr. Bentsen, Mr. Biden, Mr. Brooke, Mr. Bumpers, Mr. Burdick, Mr. Case, Mr. Chafee, Mr. Chiles, Mr. Church, Mr. Clark, Mr. Cranston, Mr. Danforth, Mr. DeConcini, Mr. Domenici, Mr. Durkin, Mr. Eagleton, Mr. Ford, Mr. Garn, Mr. Glenn, Mr. Goldwater, Mr. Gravel, Mr. Hansen, Mr. Hart, Mr. Haskell, Mr. Hatch, Mr. Paul G. Hatfield, Mr. Hathaway, Mr. Heinz, Mr. Hollings, Mr. Huddleston, Mrs. Humphrey, Mr. Inouye, Mr. Jackson, Mr. Javits, Mr. Kennedy, Mr. Laxalt, Mr. Leahy, Mr. Lugar, Mr. Mathias, Mr. Matsunaga, Mr. McClure, Mr. McGovern, Mr. Metzenbaum, Mr. Morgan, Mr. Moynihan, Mr. Muskie, Mr. Nelson, Mr. Nunn, Mr. Packwood, Mr. Pearson, Mr. Pell, Mr. Percy, Mr. Randolph, Mr. Ribicoff, Mr. Riegle, Mr. Roth, Mr. Sarbanes, Mr. Sasser, Mr. Schmitt, Mr. Schweiker, Mr. Sparkman, Mr. Stafford, Mr. Stevens, Mr. Stevenson, Mr. Stone, Mr. Talmadge, Mr. Thurmond, Mr. Tower, Mr. Wallop, Mr. Weicker, Mr. Williams, and Mr. Young) submitted two amendments intended to be proposed by them, jointly, to Executive N, 95-1, the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal.

AMENDMENT No. 20

At the end of Article IV, insert the following:

"A correct and authoritative statement of certain rights and duties of the Parties under the foregoing is contained in the Statement of Understanding issued by the Government of the United States of America on October 14, 1977, and by the Government of the Republic of Panama on October 18, 1977, which is hereby incorporated as an integral part of this Treaty, as follows:

"Under the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal (the Neutrality Treaty), Panama and the United States have the responsibility to assure that the Panama Canal will remain open and secure to ships of all nations. The correct interpretation of this principle is that each of the two countries shall, in accordance with their respective constitutional processes, defend the Canal against any threat to the regime of neutrality, and consequently shall have the right to act against any aggression or threat directed against the Canal or against the peaceful transit of vessels through the Canal.

""This does not mean, nor shall it be interpreted as, a right of intervention of the United States in the internal affairs of Panama. Any United States action will be directed at insuring that the Canal will remain open, secure, and accessible, and it shall never be directed against the territorial integrity or political independence of Panama.'

AMENDMENT No. 21

At the end of the first paragraph of Article VI, insert the following:

"In accordance with the Statement of Understanding mentioned in Article IV above: The Neutrality Treaty provides that the vessels of war and auxiliary vessels of the United States and Panama will be entitled to transit the Canal expeditiously. This is intended, and it shall so be interpreted, to assure the transit of such vessels through the Canal as quickly as possible, without any impediment, with expedited treatment, and in case of need or emergency, to go to the head of the line of vessels in order to transit the Canal rapidly.”

Mr. ROBERT C. BYRD. And Mr. President, the amendments will be printed overnight, will they not?

The PRESIDING OFFICER. The Chair advises that it will be.
Mr. ROBERT C. BYRD. I thank the Chair.

THE AMERICAN CONTRIBUTION TO PANAMA'S
PROSPERITY

Mr. HATCH. Mr. President, one of the most frequently repeated arguments in support of the proposed Panama Canal Treaties is the claim that Panama is a "colonial enclave" and a victim of U.S. "exploitation." This argument, reminiscent of Marxist dialectics, fails to take into account the fact that Panama has received very

substantial benefits because of U.S. investments in the zone, to say nothing of American largesse in terms of foreign aid. Contrary to the false impressions created by the State Department, these benefits amount to a solid contribution to every major facet of Panama's economy.

A recent letter appearing in the Baltimore Sun does much towards elucidating, in a dispassionate and factual manner, this little publicized aspect of our relationship with Panama. I ask unanimous consent that the letter, by Mr. Martin D. Tullai of Brooklandville, Md., be printed in the Record for the benefit of my colleagues. There being no objection, the letter was ordered to be printed in the Record, as follows:

[From the Baltimore Sun, Jan. 28, 1978]

AMERICAN BENEVOLENCE IN PANAMA

Sir: As the U.S. Senate prepares to face its moment of truth regarding the Panama Canal Treaties, there seems to be a revival of the absurd contention that the U.S. has been the aggressive exploiter of Panama. Myths like this, repeated often enough, die hard. And one would be remiss to allow them to stand without refutation, for a dispassionate appraisal of the facts reveals otherwise.

Although no more than a pestilential swamp in 1903, Panama is today a fairly prosperous nation almost entirely due to our generosity and monies that poured into the region because of the canal. Panama has been and still is the greatest single beneficiary of the canal enterprise. Harold R. Parfitt, governor, Panama Canal Zone, has testified that, "the presence of the Panama Canal has infused much money into the Panamanian economy, and is responsible for the high standard of living in that part of Central America." This claim is not difficult to substantiate. Consider some facts:

(1) There is an inflow to the economy of Panama of between $240 million and $250 million annually. In addition, it receives an annuity of $2,328,000. The initial annuity was set at $250,000. In 1936, this was increased to $430,000, it was raised again in 1955 to $1,930,000. Today it stands at the aforementioned $2,328,000. This is not a rental fee as some have mistakenly construed. It was an annuity designed to assume the annual franchise payment which the Panama Railroad formerly paid to Colombia. It did not affect the status of the Canal Zone, but was the obligation of the railroad to Colombia. This obligation was not assumed by the United States which paid Panama the annuity or "compensation." This is not a rental or lease-these words do not appear in the treaty, but significantly, the term "grants" appears 19 times.

(2) The canal is larger than any other single source of employment in Panama. About 10,000 people-72 per cent of the total work force of the Panama Canal Company and the Canal Zone Government-are Panamanian nationals, thousands more work for the U.S. military.

(3) Panama has the highest per capita income in all of Central America ($1,375) and stands fourth of 19 nations in all of Latin America. It has twice the per capita wealth of Colombia, the nation from whom she declared her independence.

(4) The U.S. has favored Panama with more per capita foreign aid than any other country in the world. Between 1947 and 1973, this amounted to $342 million. (5) American businessmen have contributed to Panama's economy with investments approximating $250 million.

(6) Until 1975, Panama had one of the lowest inflation rates in Latin America. (7) In addition to direct economic boosts, Panama has gained much from a variety of beneficent projects. These include a bridge and highway across the Canal, built at U.S. expense to link the two parts of Panama; the country's deep water ports are U.S. built and operated; its principal international airfield was U.S. built, the U.S. constructed its transisthmian road and railroad; Panama's water supply comes largely from reservoirs and purification systems constructed by the U.S. its sanitation system was primarily the result of U.S. efforts; and U.S.-owned merchant ships flying Panama's flag of convenience add to her economic well-being, just as tourism, attracted by the Canal, adds many dollars to the merchants' coffers.

(8) The picture of health and social statistics is also quite striking. After the French failure, due largely to tropical fevers, U.S. physicians and scientists conquered the endemic, devastating diseases. They sanitized Panamanian swamps and

established an extremely effective health system. Some results of these programs point up their successes:

Panama's infant mortality per 1,000 live births in 1970 was 3.0-lowest in all of Latin America, Argentina's being 60.1, Brazil's 85 to 95, Bolivia's 159.0 and Haiti's 149.1; Panamanians have the fourth best life expectancy in Latin America-66.5 years; at 5.3 per thousand, its mortality rate in 1974 was the second lowest in Latin America; Panama's literacy rate of 84.0 stands fifth in all of Latin America-well above fourteen other nations of that region.

These obvious benefits have made Panama, despite its unstable and dictatorial government, one of the most favored nations in all of Latin America. Far from being exploited, it is evident that Panama's well-being has been greatly enhanced by the American presence in the Canal Zone. The canal is Panama's greatest single

revenue source.

Hanson Baldwin, noted military expert and writer for the New York Times, has declared: "The exploitation myth is just that: a propaganda ploy fostered by Panama's politicians, by Castro's Cuba and by the Soviet bloc to help force the United States out of the zone. It has no basis in fact."

MARTIN D. TULLAI.

PROFESSOR BERGER'S REPLY TO LOUIS POLLAK

Mr. HATCH. Mr. President, as my colleagues are aware, I have submitted an amendment to the Panama Canal Treaties which provides that these agreements shall enter into force only after both houses of Congress have enacted legislation authorizing the transfer of Canal Zone territory and property to the Republic of Panama.

This amendment is necessary because there are, in my judgment, no adequate precedents to support the assumption that the Chief Executive has the authority to dispose of U.S. territory by treaty alone. The testimony of State Department and Justice Department representatives, as well as constitutional scholars appearing before congressional committees, has persuaded me that the territorial clause of the Constitution, which gives Congress exclusive power over the disposal of U.S. territory, would be violated if the House of Representatives is bypassed regarding the transfer of the zone to Panama.

Especially noteworthy in this regard is the testimony of the eminent constitutional scholar, Raoul Berger, whose searching analysis shows, beyond peradventure, that these treaties, as presently drafted, seek to expand the treatymaking powers of the Chief Executive beyond the limits of the Constitution-see Congressional Record, January 26, 1978, pages S596-S599.

On January 30, 1978, however, my distinguished colleague from Iowa (Mr. Clark) called to the Senate's attention an interesting paper, written by Dean Louis Pollak of the University of Pennsylvania Law School, which purports to demonstrate the fallacies of Berger's testimony. Unmoved and unshaken, Professor Berger finds that Dean Pollak's critique simply confirms his own belief that there is no constitutional basis for the extraordinary exercise of Presidential power that is contemplated under these treaties.

Professor Berger has favored me with a copy of his reply to Pollak's paper which I would like to share with my colleagues. Of particular significance is Berger's observation that the Pollak paper has added confusion to the controversy by misstating the constitutional issue. As Senator Clark pointed out one of Pollak's

important conclusions is "that the discussion in the Constitutional Convention of 1787 confirms the settled understanding of our treatymakers and of the Supreme Court that territory belonging to the United States may be ceded by treaty." This conclusion detracts little from the strength of Berger's analysis, of course, for the simple reason that no one-including Berger-has denied that the treaty power extends to the disposal of U.S. territory. The real issue, as Berger explains, is whether the Chief Executive has the power to dispose of U.S. territory by a self-executing treaty, thereby circumventing Congress.

Mr. President, I believe that any Senator who fairly and impartially studies the constitutional question that is before us, and subjects the different interpretations of the precedents offered by Berger and Pollak to an objective and forthright analysis, will conclude that the weight of authority clearly supports the view that these transfers under the treaties cannot take effect until Congress has approved them.

To assist the Senate in its consideration of this matter, Mr. President, I ask unanimous consent that Raoul Berger's response to Dean Pollak's paper be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Dean Louis Pollak has favored me with a copy of his critique of my statement before the Subcommittee on the Separation of Powers addressed to you under date of January 19, 1978. I am honored by his expressions of esteem, and his sentiments are warmly reciprocated. High regard for his attainments, however, may not inhibit the expression of scholarly differences on a great constitutional issue; it requires careful study of the alleged infirmities that have persuaded him that I am in error. At the outset I must disclaim the version of the issue that he attributes to me, namely that the Panama cession "cannot be effectuated by treaty, but only by statute." My objection is to a "self-executing" treaty because Article IV of the Constitution requires Congress' consent to the disposition.

The starting point of analysis must be the Constitution itself not what others have said about it. A great British scholar, W. S. McKechnie, faced by contrary opinion by respected scholars, stated, "the truth of historical questions does not depend on the counting of votes or the weight of authority" but rather on the historical record. So too, in the construction of the Constitution, the document is always here to speak for itself. On this score I cannot improve upon John C. Calhoun, then a Congressman, whose remarks in the House respecting the treaty power are quoted in extenso by Dean Pollak, stating that Calhoun explained "with more precision than either [Marshall or Story] achieved, the scope of the treaty power and the constraints which other parts of the Constitution impose upon its exercise." Said Calhoun: "Whatever limits are imposed in those general terms ought to be the results of the construction of the instrument." The treaty power Calhoun continued is competent "to regulate all subjects" that require "the consent of another nation,'

provided, and here are its true limits, such regulations are not inconsistent with the Constitution. If so they are void. No treaty can do that differently which is

directed to be done in a particular given mode. (emphasis added).

Quoted Pollak 7-8. In terms of the present issue, a treaty may not "dispose" of the Panama Canal without the consent of Congress because Article IV confers that power on Congress.

Here Calhoun applies a rule of construction-the specific governs the generalupon which the administration has refrained from comment, and which remains

See footmotes at end of article.