[From the Congressional Record-Senate, Oct. 6, 1977]

THE PANAMA CANAL TREATY CABLE

Mr. DOLE. Mr. President, I want to take just a few minutes to comment on a matter of grave concern to me and-I hope-to many of my colleagues. That is the question of just how far this administration is prepared to go to protect itself from embarrassment over the proposed Panama Canal Treaties.

On Monday of this week, I was handed a copy of a September 29 State Department cable which gave me great cause for concern. The cable contained information-previously unavailable to either the Senate or the general public-which conflicted with testimony presented by key administration witnesses on the canal treaties last week. That was testimony on American rights under the proposed treaties to protect our defense interests.

The cable verified what many of us suspected all along: That American and Panamanian negotiators have far different interpretations of just what rights we would keep under the permanent neutrality treaty provisions.

Since this vital question bears directly on the Senate's decision as to whether the treaties should be ratified, I felt it should be brought to the attention of the Foreign Relations Committee. And since the administration has been promoting an entirely different interpretation of these treaties before the American people, I felt they were entitled to know the full story, as well.

Yesterday, State Department sources contacted the Ethics Committee staff to inquire as to whether my action in releasing the cable might have violated some Senate rule or ethic. I resent and reject that clear effort at intimidation.

A CONFIDENTIAL CABLE

My copy of the cable indicated it had been classified "confidential" and for "limited stribution." Why it was classified in this way, I cannot begin to understand.

The cable contained no military secrets. Instead, it described a Panamanian negotiator as "disturbed" over descriptions of the treaties being promoted by American officials. It was obvious that its release would in no way endanger our national security. In fact, its release appeared more likely to enhance our national security by revealing just how much the treaties jeopardize our interests in the Panama Canal passageway.

So why was this cable-which directly contradicted administration testimony on treaty "protections"-to be so carefully guarded from Congress and the public?

I am forced to conclude that this cable was classified for narrow, short-term political advantage. Contradictory information about America's defense rights under the treaties was being concealed under a questionable "confidential" classification. If this was not intentional misuse of a "national security" cover, then it was at best an error in judgment that deserved correction.

Whatever became of the "open government" that our President promised during his campaign last year? If there is one thing that the people of this Nation have learned from the mistakes of the

past, it is that political coverups at the highest levels of Government are themselves hazardous to our national security. Indeed, we should ask: Just whose confidence was at stake in this "confidential" cable? Was it the administration's, or was it the confidence of the American people in the integrity of administration spokesmen? Whether intended to advance a cause, or to prevent political embarrassment, government coverups have no place in the American system.

PUBLIC ACCESS TO FACTS

What else do we not know about the proposed Panama Canal treaties? What else is being "glossed over," because full disclosure might embarrass the Carter administration? I believe the State Department should provide the Senate with copies of all documents, memorandums, and cables, I might say, as requested by the distinguished minority leader on more than one occasion, anything exchanged between our two countries during the negotiations. And I commend the Foreign Relations Committee and the distinguished minority leader, Senator Baker, for their repeated efforts to obtain these materials.

In my opinion, the greatest danger that could arise from the Panama Canal issue would be in giving the public too little information about these treaties, not too much.

I challenge the Carter administration to lay all its cards on the table, and let the American people judge for themselves whether or not the Panama Canal treaties are worthy of their support. Only then can the Senate proceed confidently in its ratification responsibilities next year.

Mr. President, I yield.

Mr. BAKER. Mr. President, I commend the distinguished junior Senator from Kansas for his statement this morning, for his interest in this matter, and for his service to the country.

On the first day of the hearings before the Foreign Relations Committee I indicated that I had decided not to decide how I will vote on those treaties until those hearings were finished.

At that time Secretary Vance, Ambassador Linowitz and Ambassador Bunker testified. I brought to the attention of those three gentlemen certain statements attributed to high Panamanian officials which seemed at variance with their interpretation, the American interpretation of the treaties, particularly the neutrality treaty as suggested by the Senator from Kansas.

At that time I suggested that the Foreign Relations Committee and indeed the Senate itself as a full constitutional partner in this matter should have full access to the negotiating transcripts, the minutes, the cable traffic, the Presidential review memoranda, and any other document in the possession of the executive department that would aid and assist our reconciling the apparent difference in the interpretation between the American point of view and the

Panamanian.

I also said then that if that information was not forthcoming I felt it would seriously prejudice and jeopardize the final advice and consent of the Senate to the ratification of these treaties.

Mr. President, the disclosure yesterday of this cable by the Senator from Kansas, which I think was appropriately brought to the

attention of the Senate Foreign Relations Committee, intensifies the absolute requirement that the Senate be given access, on whatever reasonable conditions the executive department may require, to the source material that will enable us to decide how the Panamanians view the interpretation of these treaties, particularly on two points:

One, the expeditious passage through the canal of American war vessels-whether or not that is privileged, priority, or routine; and, two, the right of the United States to intervene unilaterally to protect the regime of neutrality after the year 2000 as contended by the U.S. negotiators and interpreted by the administration. Mr. President, I believe the Senator from Kansas has done a great service in highlighting this problem.

Moreover, I believe that now, in the face of this new information, it is imperative that the administration give the Senate full access, freely and voluntarily and without any concern for separation of powers or executive privilege or any other legalism, to the source data and material that will permit the Senate as a constitutional partner to make its judgment on these treaties.

Mr. President, I have still not made up my mind on how to vote on these treaties. I am not threatening. I deplore the action of the administration in contacting the Ethics Committee yesterday and I say to them now that if that is the game they are going to play, these treaties are going to be in for a tough time.

I have still not made up my mind, but unless the President of the United States and the Secretary of State decide to give the Senate the material we need to make an honest judgment, now that this matter has been brought to our attention, I believe there is no chance that these treaties will be approved.

Mr. DOLE. Mr. President, I thank the distinguished minority leader, and I will say that I do not understand why the State Department finds it necessary to contact the Ethics Committee to see if the Senator from Kansas may have violated something. It seems to me that they may have violated the confidence of the American people by not disclosing the very documents the Senator from Tennessee has been trying to obtain for 2 or 3 weeks.

Mr. BAKER. I thank the Senator.

Mr. ALLEN. Mr. President, will the Senator yield?

Mr. BAKER. Mr. President, if I have time remaining I am happy to yield to the Senator from Alabama.

The ACTING PRESIDENT pro tempore. The Senator has 5 minutes remaining.

Mr. ALLEN. Mr. President, if there is no objection, this can come out of my allotted time.

I commend the distinguished minority leader, the Senator from Tennessee, (Mr. Baker) and the distinguished Senator from Kansas (Mr. Dole) for the expression of their views with respect to the differing interpretations placed upon the language of the treaty by the Panamanians and by our negotiators.

I believe, however, I differ somewhat from what I perceive to be the position of the distinguished Senator from Tennessee with respect to the method of curing this grievous wound to the treaties. I do not believe it will be sufficient to exchange notes or exchange correspondence between the negotiators. What we have before the

Senate is the wording of the treaties, and any extraneous matter, any interpretation that we gather by exchange of notes or exchange of correspondence is not going to remedy the defect in the conflicting interpretations that the negotiators place on it.

This treaty has been faulted. It contains this serious fault, and the only way to cure the fault would be to amend the language of the treaty-not a reservation, not an understanding, but an amendment of the treaty.

We all know the instability of the Panamanian dictatorship; and whereas we might have some sort of understanding in correspondence and exchange of notes between Panama and the United States as to the meaning of the treaty, suppose there is a change in the government down there. Suppose another dictator comes in. Suppose the force of public opinion down there requires them to repudiate any understanding that is reached as to the meaning of this treaty. Why must we have each nation interpret the meaning of a treaty? The meaning ought to be plain and explicit in the language of the treaty itself.

So to suggest that possibly this needs to be straightened out by statements and correspondence is not going far enough. It cannot be straightened out through exchange of notes by the parties. This treaty must be amended.

What happens after the amendment? It goes back for further negotiations. A new treaty has to be entered into. It has to go through the same process this treaty is going through. But in my judgment it would be folly indeed for us to give our advice and consent to the treaty relying upon an exchange of correspondence or notes between the parties. An out and out amendment, stating exactly what the understanding is, must be insisted upon. I believe that the treaties have been faulted beyond repair. I do not believe that the treaty can recover from the damage that has been done by the disclosure of this conflicting interpretation by the parties.

Mr. BAKER. Mr. President, if I have any time remaining under the standing order, I yield it back.

The ACTING PRESIDENT pro tempore. Under the previous order, the Senator from Alabama (Mr. Allen) is recognized for not to exceed 15 minutes.

THE PANAMA CANAL TREATIES-NO. 13

Mr. ALLEN. I thank the Chair. I have already commented on my views as to the conflicting interpretations placed upon the language of the treaty.

The disclosure of this cable is not the first time that it has been apparent that there is a difference of opinion between the interpretation that the Panamanians place on the treaty and the interpretation that the U.S. negotiators place on the treaty, because Dr. Escobar, their chief negotiator, reported to the Panamanian legislative body these very two points of difference of interpretation: That is, first, on the right of the United States to send in troops to defend the canal, the right of the United States to determine when the neutrality of the canal is in danger, Dr. Escobar says that right is not given under the treaty. Second, Dr. Escobar says that the

interpretation we place on the expeditious passage of our warships is not the interpretation they place on that. Dr. Escobar says that our ships would just have to get in line with other ships that might be wanting to transit the canal.

Minister Barletta of Panama also raises the same point, and gives a differing interpretation to the language of the treaty. So throughout their government, it is quite obvious that they place a different interpretation on the treaty from that which we place on it.

Suppose they do say, "Well, we are wrong in our interpretation. The gringos," as Dr. Escobar calls us, “are right in their interpretation.'

Well, that is not going to stand up. You cannot amend a treaty by exchange of notes. That is just not possible.

Even though the negotiators, the separate teams of negotiators, worked for 13 years on this treaty, I will have to say they did not do a very good job of drafting the language, if it is susceptible of so many different constructions. I believe we can wait another 13 years, Mr. President, while they give attention to redrafting these treaties, and then submit them back to us here in the Senate. How could there not have been a meeting of the minds? We all know that in a contract—and a treaty is a contract; it is a high level contract, but it is a contract, and as in all contracts, there has to be a meeting of the minds. There has to be an understanding, where both parties have the same understanding, for it to be valid. A treaty is the same way. If one party leaves the negotiating table and says that the treaty means this, and the other party to the negotiations leaves the negotiating table and says the treaty means something diametrically opposite, we have not had a meeting of the minds. It is elementary as to a contract-and as I say, a treaty is a contract-that you must have a meeting of the minds, and since there has been no meeting of the minds, the treaty has been faulted, as I see it.

So it is going to be necessary to amend this treaty in many particulars. We have got to amend the provision that says that for 23 years we cannot even negotiate with another nation on the building of another canal. Well, we certainly do not want to build another canal in Panama, because we are having to give them this canal, and I assume they would want the other canal. If we cannot negotiate with Panama, whom are we going to negotiate with? Well, we cannot negotiate with anybody under this treaty for 23 years.

I do not know whether the present canal will take care of the traffic for the next 23 years. As I say, we certainly do not want to build Panama another canal at the expense of the American taxpayers. So that has got to be changed.

This treaty needs to be changed in at least seven or eight major particulars.

What would be the effect then? Well, even if the treaty is approved with these major changes in it, it could not then be agreed to by Panama by accepting our amendments. It would require renegotiation of the treaty. The treaty, if amended in these particulars, would be a nullity insofar as being a treaty is concerned. This