II, a great embarrassment was created to the U.S. Government and to the State Department itself. For after a Senate speech in which I pointed out that Ambassador Linowitz was on the board of directors of Pan American Airways, and on the board of directors of the Marine Midland Bankand on its executive committee-both of which had extensive interests in Panama and needed to curry favor with the regime to maintain those interests-the Ambassador was forced to resign from at least one of them. ENCROACHMENT AND USURPATION What all this shows, Mr. President, is that encroachment follows upon encroachment. The failure of the Executive to abide by article IV, section 3 leads to the failure of the Executive to abide by the spirit of article II, section 2. What kind of a ratification process is it, when the Executive bypasses an essential part of it; namely, the advice and consent to ambassadors about to undertake a major negotiation? This is the only opportunity the Senate gets before a negotiation to officially instruct a negotiator on its views before a treaty is locked in; yet the State Department bypassed even that by nominating a candidate who proved to be unsuitable for that particular post. As I indicated before, usurpation and irresponsibility lead to seizure of power and tragedy. For 12 years the State Department has been unconstitutionally raising the aspirations of the Panamanians, acting wantonly and without authority. If this treaty failsand there are good reasons why it should-the blame will lie entirely with the executive branch, which has constantly refused to abide by its constitutional authority, and has failed to take the Congress into its confidence about actions which are solely in the field of congressional prerogative anyway. Unfortunately, it will be the Nation, and the American people who have to suffer the consequences. I would like to close, therefore, with the very blunt warning of George Washington in the Farewell Address: It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government a real despotism. If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use at any time yield. [From the Congressional Record-Senate, Aug. 4, 1977] SENATOR SCOTT'S REPORT ON HIS RECENT TRIP TO PANAMA, ARGENTINA, AND CHILE Mr. SCOTT. Mr. President, earlier today I made a report to the Committee on Armed Services on a recent trip to Panama, Argentina, and Chile to ascertain information primarily for the committee with regard to the Canal Zone and the feeling of the people in the general area regarding the proposed transfer of title, of jurisdiction, and control to the country of Panama. I ask unanimous consent, Mr. President, that a copy of the report and the enclosures contained therein be printed in the Record at the conclusion of my remarks. The PRESIDING OFFICER. Without objection, it is so ordered. (See exhibit 1.) Mr. SCOTT. Let me add that three volumes of material filed with the committee are too voluminous to include in the Record, and that further information was provided to the Committee on Armed Services in executive session which would not be appropriate to be made public. I would hope, Mr. President, that all Members of the Senate will obtain independent information with regard to the proposed transfer of the canal in addition to what may be made available from our own State Department. My report may be helpful to Senators, and the enclosures include a brief summary of the history of the canal, a copy of the 1903 treaty, a position paper presented by the civic councils of several American communities within the area of the Canal Zone, and a recent statement by Adm. Thomas H. Moorer who retired from the Navy after service as Chairman of the Joint Chiefs of Staff for a 4year period. This statement by a gentleman who was our top military officer from 1970 to 1974 expresses the same concern that I heard from more than 100 individuals, both Americans and foreign nationals, during the trip last month. The Subcommittee on Separation of Powers of the Senate Judiciary Committee has also had rather extensive hearings primarily on constitutional questions relating to the status of the canal, the authority of the executive branch of Government to negotiate for a transfer of title in view of section 3 of article IV of the Constitution which provides that The Congress shall have power to dispose of and make all necessary rules and regulations respecting the territory or other property belonging to the United States Our Subcommittee on Separation of Powers also discussed the treaty power of the President under article II, section 2, of the Constitution. Based upon the facts as I have been able to ascertain them, Mr. President, from the hearings before the Judiciary Committee, from discussions with officials and private persons, both Americans and foreign, the contemplated transfer appears to be against the best interests of the United States from an economic, political and a national defense point of view. The Supreme Court has held that we own title to the Canal Zone and the fifth circuit court of appeals has held that it is the unincorporated territory of the United States. Therefore, unless the Congress, or the American people can prevail upon the White House or the Department of State not to enter into a treaty to give away our property, the only recourse is for the Senate to refuse to ratify the treaty and for the Congress to refuse to appropriate funds specified in the proposed treaty. EXHIBIT 1 REPORT OF SENATOR WILLIAM L. SCOTT OF VIRGINIA ON PANAMA CANAL TRIP Mr. Conneely and I left Dulles airport near midnight on June 29th and arrived in Panama early the following morning. In order to obtain an overview we were provided with a helicopter flight over the entire Canal Zone with Lt. General Dennis McAuliffe accompanying us and explaining various details. Thereafter, we visited a set of locks on the ground and were provided with a film study of the history and the operation of the canal. Then we visited the American Ambassador William J. Jorden who discussed the proposed treaty with us. Later we visited the Governor of the Canal Zone. Governor Parfitt is a major general in the army and has general supervisory jurisdiction over the maintenance and operation of the canal, as well as executive oversight of the Zone and the Panama Railroad Compa ny. We arranged to have a detailed discussion with General McAuliffe and his staff, including a number of colonels and naval captains at a joint meeting. They were most cooperative in sharing their thoughts and responded freely to questions with the understanding that we were attempting to obtain general information to share with the committee and possibly with the full Senate. Each of the general's staff was asked his personal views on the future of the canal, whether it would be operated efficiently if turned over to the Panamanians; whether there was any danger of Communist influence, and whether there would be any policy changes regarding the use of the canal or the fees charged for its use. Similar questions were put to Americans employed in the operation of the canal and later to businessmen, intelligence officials and staffs of the American Embassies in both Argentina and Chile. Argentine officials included the minister of defense, undersecretary of foreign affairs and assistant to the president. Chilean officials included the president, foreign minister, defense minister, other cabinet officials and the Chilean Ambassador to the United Nations. During the 10-day trip we obtained the views of more than 100 individuals, some American citizens and some foreign nationals. Our Ambassador to Panama and a former Foreign Minister of Panama favored the proposed treaty. Others had a different point of view. The general consensus of these views was that the United States had constructed the canal and utilized it in the best interests of all countries of the world without profit, and with toll charges only to cover the cost of operation. In fact, it was suggested that the name "Panama Canal" should never have been used but it could better have been named the "American International Canal." Fear was expressed that the Panamanians would not have the necessary skills, or expertise to operate the canal, although they had waged a very successful propaganda effort in favor of obtaining control. We were also told that there were Communists with important positions within the Panamanian Government and regardless of the terms of a treaty, the canal might be nationalized by the Panamanians and might come under the control of Communists dominated by Cuba and Russia. The committee might want to obtain the views of Admiral Turner and the C.I.A. in this regard. There was a common belief that tolls would be raised substantially and statistics were cited that 70 percent of the ships using the canal either came from, or were destined for American ports. In Argentina we were told that the canal was not as important to it and to other Atlantic nations as it was to countries on the Pacific side of the South American continent or nations closer to the canal. Chilean officials stated that although they could go around Cape Horn more easily than more northern countries, it was more convenient and economical for their ships to utilize the canal and 95 percent of their shipping did pass through the canal. In both Chile and Argentina surprise was expressed that we would solicit their views on the future of the canal as State Department officials had led them to believe that the United States had lost interest in continuing its operation. They indicated, however, that the United States had always kept the canal in very good operational condition, but that it would deteriorate under the Panamanians; that Panama would have to obtain outside help to operate the canal and it would not be in the interest of other Nations for the operation or the control of the canal to be turned over to the Panamanians. We were advised that the Panamanian Government itself was inefficient and that the Government could not be expected to do any better in the operation of the canal. Concern was expressed that terrorists' tactics might be employed if the United States did not execute a treaty under which control of the canal would be given to the Panamanians and that while our troops could successfully meet a direct threat against the canal, military personnel would probably have to board ships as they entered the canal and accompany them through the various locks and no guarantee could be made that a small group of terrorists, under cover of darkness and jungle growth, could not penetrate our defenses and plant explosives at vital spots which would make the canal inoperative. It was not believed, however, that this would happen as it would be very detrimental to the interest of the Panamanian people and their Government since their economic prosperity, to a considerable extent, depended upon uninterrupted operation of the canal. Concern was expressed that the State Department was proceeding as if it had the full backing of the American people and without considering opposition in the Congress. We were told that Panamanians respected strength and resoluteness and in recent years our Government had shown little firmness and even encouraged Panamanians and others to believe that we intended to give up our rights to the Canal Zone. We were told it would be easier to maintain the security of the canal by continuing our control than it would be to guarantee its security in the event it was operated by Panamanians or to retain control once it was transferred to others. Americans working and living in the Canal Zone were especially bitter about the prospects of transferring control to Panama. They indicated that all of our military ships but 13 could go through the canal; that war material of all kinds could transit it, including men and equipment; that over 96% of all ships afloat throughout the world could go through the canal; and that the fares paid by ships of any Nation flying any flag were the same with no discrimination, and in time of peace all Nations of the world are permitted to utilize the canal. Americans living in the Canal Zone stated that the Panamanian Government was inefficient and ineffective; that it was socialistic in nature, headed by a dictator, with little freedom of the press, speech or other civil liberties. It was indicated that our government had been more than generous to the country of Panama not only with regard to the Canal Zone but in conveying to Panama American property outside the Canal Zone worth many million of dollars; property that had formally been used by our Government as quarters for U.S. employees, schools, hospitals and hotels, and for other purposes. It might be well, Mr. Chairman, to insert, at this point in the Record, a short factual statement of the history of the canal, the American role in the establishment of the country of Panama, as well as a copy of the 1903 treaty. It is interesting to note that the width of the canal is 5 miles on each side of a center line and about 50 miles in length, containing somewhat more than 500 square miles, or more than 5 times the original size of the District of Columbia. I would also like to make available other written material given to us but for committee use only, not to be made a part of the Record. This material was given to us by American citizens living in the Canal Zone and even a casual reading indicates the deep concern of our own citizens, who should be most familiar with conditions in Panama, about the proposed transfer. For example, a position paper to the House Subcommittee on the Panama Canal on April 12th of this year contains this statement: "The State Department is negotiating a treaty which it is willing to ratify. They make the assumption that they know what is 'in the best interest of the United States' and all other opinions are to be considered ill-informed, unenlightened, and out of step with modern times.' We were told military personnel would appear if requested by the committee and express their opinions in the same manner as they expressed them to us if the committee asked for an expression of personal opinion. My overall impression from the entire trip is that there is a variance between official opinions and private ones. Military and civilian Americans are hesitant to speak out against the transfer of the canal while our State Department is negotiating a transfer of ownership and control. Moreover, there is little doubt that Pan American nations privately desire the United States to continue both operation and control but are hesitant to publicly oppose the Panamanian position, especially when the United States has not attempted to cultivate a contrary view: I believe it would be against the interests of our Government to transfer control of the canal; that there is evidence of communist influence and that a transfer would have an adverse effect on both American commerce, and defense posture. Since our government did pay the Panamanians for the right to construct the canal, operate it in perpetuity, exercise the rights of sovereignty, paid the French and Colombian Governments for their interests, and purchased title to the property from private owners and even squatters on the property, the claims of the Panamanians do not appear reasonable. There is also the question the effect the transfer of the control of the canal might have upon the size and composition of our navy and the committee might want to make inquiry in this regard of the Chief of Naval Operations or Chairman of the Joint Chiefs. A former chairman of the Joint Chiefs Adm. Thomas H. Moorer in recent testimony before the Subcommittee on Separation of Powers of our Senate Judiciary Committee spoke out very strongly against the transfer and in response to questions expressed the opinion that transferring the control of the canal to Panama could very well result in Communist control of the canal. I would like to insert a copy of his direct testimony at this point in the record. I would ask for a short closed session that would take only a few minutes to go over some sensitive information and identify its sources. [From the Military Engineer, July-August 1974] A PANAMA SUMMARY (By John J. Kern) Then felt I like some watcher of the skies (John Keats, "On First Looking Into Chapman's Homer.") In this sonnet Keats ascribes the discovery of the Pacific Ocean to Cortez. Although his sonnet is a masterpiece, Keats was historically inaccurate since it was actually Vasco Nuñez de Balboa who discovered the Pacific Ocean in 1513 while atop a mountain peak in the Darien province of eastern Panama. EARLY EXPLORERS Rodrigo de Bastidas of Seville discovered Panama in 1501 from the Atlantic side. Christopher Columbus explored the area on his fourth American voyage in 1502. Surprisingly, within 50 years of the discovery of Panama, all of the presently discussed possible canal routes across Central America had been identified, described, and to a certain extent surveyed. Alvaro de Saavedra Ceron, a cousin of Cortez, drafted the first plan for a transisthmian canal in 1529. In 1534, Charles V of Spain directed that a survey be made for a ship canal between the Chagres River and the Pacific Ocean. EARLY HISTORY OF REGION The Camino Real was in use by 1535 and over it millions of dollars worth of Peruvian and Mexican gold was transported for ocean shipment to Spain. The Panama area was subsequently incorporated into the vice-royalty of New Granada of Spain's western empire. A preliminary Spanish attempt to construct a canal in 1814 was interrupted by a revolt of her colonies. Panama severed political relations with Spain in 1821 and joined with Colombia in the Republic of Greater Colombia. In 1831, New Granada became an independent republic incorporating Panama as a state. Ten years later Panama seceded from New Granada and maintained its independence for thirteen months. UNITED STATES INVOLVEMENT The 1846 Treaty between the United States and New Granada gave the United States a transportation concession across the Isthmus in return for a guarantee to protect the sovereignty of New Granada. One year later the Panama Railroad Company was organized, and in 1848 gold was discovered at Sutter's Mill in Califor |