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During that break, on August 17, I asked Ambassador Linowitz and Ambassador Bunker to come to the House committee and answer some questions concerning the treaty. They informed me at that time that no treaty language had been finally approved, and yet the national press was carping that the facts were on the equity side for the agree ment that had been concluded when, in fact, I received no copy of the treaty until September 6; and that meeting in the White House with the heads of state of many of the Latin countries was a day after the Congress adjourned.
CONSTITUTIONAL PROVISION CONCERNING DISPOSITION OF FEDERAL
I do not think it was proper to build a scenario around a congressional break when the ability of the legislative branch to react to such a significant operation was available. The Constitution very clearly states that the Congress shall dispose of Federal properties. Five years ago I asked the Attorney General and the State Department to come to the House on that specific issue and held a long set of hearings. When we finished those hearings, both the State Department and the Justice Department agreed that any treaty that involved appropriated funds and involved the transfer of property would necesarily have to go to the Congress, "the Congress," of course, meaning both the Senate and the House.
The basic law during those hearings that the State Department and the Justice Department used to justify that they did not have to come to the Congress for the transfer of property was basically Indian treaties, a series of Indian treaties, that had been concluded during the 19th century that involved in many cases not the approval of Congress. In that respect, we very clearly know that the Indians had a very special place in America; they are not permitted to make treaties with anybody else except the United States. The United States retained eminent domain control of all of the lands that were bartered away in the treaties or not bartered away.
The landmark cases that the State Department used involved a gore of land 10 feet wide on a small grant property that had been given to an Indian chief and then passed on to his son. The other involved the disposition of 43 barrels of whisky in those properties. That is how flimsy the law is that the State Department and the Attorney General rely upon in saying that the Executive can unilaterally dispose of properties.
I don't think that the original constitutional debates in any way permit a dismemberment of the country by the executive branch alone. I think it is the Elliot papers which very clearly state that that is not the intent when we had the Madison, the Monroe and the Henry debates concerning this very specific point on disposal of properties. I would at this time ask that the underlying documents that we use as a basis for this prepared statement on the constitutionality be included in this record, and I will be happy to respond to questions.
For the record, I have with me Mr. Bernard Tannenbaum, an attorney in constitutional law, who was the consultant to the Panama Canal Subcommittee 6 years ago when we first entered into this issue and is presently consultant to the full Committee on Merchant Marine.
[Representative Murphy's prepared statement, with attachments, follows:]
PREPARED STATEMENT OF THE HON. JOHN M. MURPHY
Mr. Chairman, members of the committee, I greaty value the opportunity to appear before this committee which has had such an important role in the history of the conduct of foreign relations of the United States.
Let me begin by emphasizing that as chairman of the House Committee on Merchant Marine and Fisheries, I do favor the concept of a new treaty relationship with the Republic of Panama with respect to the Panama Canal. For example, I indicated as long as seven years ago, when I chaired the House Subcommittee on the Panama Canal, that real estate adjustments can be made in Canal Zone boundaries. I also think we can find a way to bring additional economic benefits to Panama from the Canal, although we cannot demean the gigantic benefits that Panama has reaped from the waterway over the years. Further, every assistance should be afforded to Panamanian private enterprise to take advantage of the economic opportunities which the Canal Zone offers.
While I agree with President Carter that there is a need for a new treaty relationship, the haste and self-imposed deadline that characterized the most recent phase of the negotiations has resulted in defective treaties which do not achieve the objectives they sought to attain-"an open, safe, efficient, and neutral Canal" under a treaty relationship that "protects the national security interests of the United States". Neither will the said treaties help to endear us with our Latin American neighbors, nor will they better protect the Canal against sabotage.
I want to make clear that my observations on the treaty today are not meant to reflect in any way on the dedication and patriotism of our fine negotiators, Ambassadors Bunker and Linowitz. They worked hard in attempting to resolve one of the most difficult foreign policy questions that has ever faced this nation. Perhaps they have come up with as good a set of documents as could be permitted by the time limitations that were imposed by Ambassador Linowitz's sixmonth appointment, but I submit that such haste and failure to seek the assistance and guidance of many members of Congress has resulted in a fatally defective treaty which will create more problems than it will solve.
In this statement I will briefly outline some of the defects in these treaties which make them unacceptable in present form, and then discuss those matters with respect to the documents which, in my view, are in need of special analysis. I will also address the overstatements and inaccuracies that have unfortunately served as somewhat faulty premises for adoption of the proposed treaties.
The circumstances which attended negotiations in recent times have led to the following flaws in the Panama Canal Treaty and the treaty for permanent neutrality of the canal:
1. The bypassing of the House of Representatives in the matter of disposal of U.S. property and territory;
2. The bypassing of the House in the matter of appropriations;
3. The absence of clear and unequivocal language to allow U.S. action to protect the canal in times of hostility;
4. The absurd prohibition until the year 2000 precluding the U.S. from negotiating for a new sea level Canal with any country other than Panama, a prohibition which places the U.S. in a totally dependent position without any logic or reason;
5. The formulation of an overgenerous economic compensation package which will likely ruin the economic viability of the canal as a self-sustaining operation and result in enormous U.S. subsidies to run the canal in future years;
6. The location of many key items with respect to control of the canal in accompanying executive agreements rather than in the body of the treaties, thus allowing for piecemeal erosion of the tenuous and limited rights found in the treaties themselves;
7. The pervasiveness of vague and ambiguous language, and, in fact, the absence of language, with respect to many important subject areas, including: (a) The U.S. rights of intervention;
(b) The boundaries of the properties being immediately taken over by Panama;
(c) The taxation of canal properties by Panama;
(d) The obligation to turn over the canal to Panama in the year 2000 free from debt and in good operating condition; and
(e) The Panamanian takeover and the U.S. use of docks, housing, railroad, etc.
8. The failure of the treaties to address the disposition of other relevant canal agreements such as the U.S.-Hay-Pauncefote treaty of 1901 which sets forth the international obligations in connection with the neutral operations of the canal, and the Thomson-Urrutia treaty of 1914, which gives to Colombia certain privileged rights with respect to transit.
In terms of precedents, the most harmful aspect of the entire treaty process could be the circumvention of the House of Representatives in disposing of the properties belonging to the United States in the Panama Canal and Canal Zone. This circumvention results from the administration's incorrect interpretation of what should be the appropriate constitutional process in this matter.
You have recently heard administration officials state that the congressional power to dispose of U.S. territory and property is a concurrent constitutional power that does not override the treaty-making powers of the President, and that the power of the Congress to legislate for the Canal Zone does not preclude the disposal of this territory by treaty. The support for this view is based on cases involving Indian treaties, boundary treaties and a few instances of congressional acquiescence which are fundamentally different from the transfer of Canal Zone properties comprising a major U.S. territory and a seven billion dollar investment.
Cases involving Indian treaties are fundamentally different from the disposal of the Canal Zone because:
1. They involve a recognition of the existing Indian rights over the particular territory.
2. In each instance the Indian tribes conveyed by treaty to the U.S. enormous tracts of land and selected members of the tribe were allowed to retain small reservations for their own use. Thus, it could be readily argued that there was no disposition of U.S. property.
3. The U.S. retained residual rights in connection with the lands reserved to the Indians and, of course, maintained its rights of eminent domain.
4. Even if such reservations could be deemed disposals, the Congress authorized the same and acquiesced to executive action over a long period of time.
5. More than a century has passed since Congress withdrew its acquiescence to transfers of property by treaty, and the Senate concurred.
6. The status of the American Indians interest in land in the U.S. is unique and entirely different from that which would entail a transfer of the canal property to a foreign sovereign.
The boundary treaties which are put forward as one of the chief precedents for the disposal of the Canal Zone by treaty are distinguishable by reason of the fact that they involved property that, for purposes of jurisdiction, was in dispute and entailed an exchange of, rather than a disposition of, property.
If the practice of disposing of U.S. territory and property has followed various procedures, as the Executive contends, then past practice with respect to the disposition of canal property and Canal Zone territory ought to be the key to a decision with respect to relinquishing the Canal Zone. The past practice is clear. The House of Representatives has tenaciously asserted its role, and the general rule has been that the disposal of property is accomplished only by a legislative enactment of Congress. In 1932, 1937, 1942 and 1955, property was transferred to Panama after the House and Senate authorized it. If the House as well as the Senate played a key role in the process of divestment of relatively minor assets in the Canal Zone, it seems only logical to obtain House approval in the determination of the fate of the entire Canal Zone and Panama Canal and the disposition of billions of dollars of U.S. properties.
The case for the involvement of Congress under the property clause in the constitution (article IV, section 3, clause 2) rests, of course, upon U.S. property interests in the Canal Zone. It is indisputable that we do have such property interest. On August 17, Ambassador Bunker acknowledged that interest before the committee I chair. It is sufficient for our purposes here to state that the United States holds much of the land in the Canal Zone in fee simple, that deeds to such lands were obtained, and that Panama ceded even reversionary rights to the French Canal Co. assets and property purchased by the United States.
All of the U.S.-owned property with respect to the Panama Canal and the Canal Zone constitute property interests of the U.S. within the purview of the congressional powers vested under article IV of the Constitution. Such ownership, of course, includes the waterway, appurtenant installations, buildings and other structures in the zone, as well as the assets of the Panama Canal organization and military departments and U.S. Government agencies in the zone.
With all due deference to the honorable Griffin Bell, I should like to respond briefly to the statements made by him on September 29th before this committee. Attorney General Bell places great emphasis on some selected references to the Constitution giving such powers of disposal to the Congress obviated the major concern in connection with treaties. This, of course, begs the question, since it could be argued that the insertion of article IV, section 3, clause 2 in the constitution giving such powers of disposal to the Congress obviated the concern of authorizing the President to dismember the Republic by treaty.
In Elliot's debates, p. 501, James Madison responded to Patrick Henry's concern that two-thirds of a quorum could make a treaty and "relinquish and alienate territorial rights." Mr. Madison stated:
"He thinks that, by the power of making treaties, the Empire may be dismembered in time of peace. The King of Great Britain has the power of making peace, but he has no power of dismembering the Empire, or alienating any part of it. Nay, the King of France has no right of alienating part of his dominions to any power whatsoever. The power of making treaties does not involve a right of dismembering the Union."
Article IV, section 3, clause 2 of the constitution gives to the Congress not only the "power" to dispose of, but also the power to make "all needful rules and regulations respecting the territory or other property belonging to the United States. . ." the use of the word "all" clearly indicates that such power is exclusive.
The Percheman case, cited at page 10 of the Attorney General's statement before this committee, involved an attempt to confirm title to property claimed by virtue of a grant from Spain in 1815 before the 1819 treaty in which Florida was ceded to the United States. The court held that the cession of property from one sovereign to another cannot interfere with private property. It does not explicitly or implicitly stand for the proposition that Congress' power to make all rules and regulations respecting American territory could be implemented by self-executing treaty. Nor did the court rule that power to be concurrent. The case involved statutory construction-not constitutional interpretation.
Moreover, Congress did act in connection with the 1819 treaty with Spain and authorized the President to take possession of the Spanish cessions and to provide rules for their government. By implication, it is obvious that by expressly accepting the territories of Florida, the Congress also acquiesced in the fixing of the boundary line between the two countries to the east and west of the Mississippi.
Furthermore, we are again dealing with an adjustment of a boundary line dispute which, even absence congressional approval, would be quite different from the proposed transfer to Panama.
The Congress has limited the President's power under the Panama Canal Zone code to acquisition of additional land or exchange of land. No authority was granted by Congress to the President to dispose of land in the zone and prior practice in connection with property in the Canal Zone clearly indicate that no such authority was ever intended.
It would also appear that the treaty provisions for transfer of property of the United States without congressional approval runs counter to the language contaned in the last sentence of article IV, section 3, clause 2, namely: ". . . nothing in this Constitution shall be construed as to prejudice any claims of the United States." Clearly, the United States has "claims" in the Panama Canal Zone and the treaty clause should not and must not be construed to prejudice such claims. Governor Randolph, during the debate in the 1788 Virginia convention, in specifying the limitations and restraints of the President and the Senate under the Treaty making authority, stated:
. . . will not the last clause of the 4th article of the Constitution secure against dismemberment? It provides that 'nothing in this Constitution shall be construed as to prejudice any claims of the United States, or of any particular State.' And if this did not constitute security, it follows from the nature of civil association, that no particular part shall sacrifice the whole." (Elliott's Debates, pp. 504-5).
Attorney General Bell shrugs off the fact that the U.S. Supreme Court has consistently, in literally dozens of cases over two centuries, ruled that the power of the Congress under article IV, section 3, clause 2 is exclusive. Because these cases related to the authority of the executive and judicial branches does not diminish the relevance or impact of such clearly established authority just because "None of them dealt with the... power of the treaty making authority to make such disposition." The fact is that that the Supreme Court has never held that the powers of Congress under article IV are not exclusive and certainly none of the decisions dealing with Indian treaties could be so construed.
The dictum of Holden v. Joy is not controlling because of its irrelevance to the case as stated by the court in its opinion ". . . but it is not necessary to decide the question in this case, as the treaty in question has been fully carried into effect, and its provisions have been repeatedly recognized by Congress as valid." Furthermore, the decision of the Supreme Court in a much more recent case, Sioux Tribe of Indians v. United States (316 U.S. 317) (1942) appears to be controlling. In that case the court stated:
"Section 3 of Article IV of the Constitution confers upon Congress exclusively 'the power to dispose of and make all needful rules and regulation respecting the territory or other property belonging to the United States'
Concededly, where lands have been reserved for the use and occupation of an Indian Tribe by the terms of a treaty or statute, the tribe must be compensated if the lands are subsequently taken from them. . . .
Since the Constitution places the authority to dispose of public lands exclusively in Congress, the Executive's power to convey any interest in these lands must be traced to Congressional delegation of its authority." (316 U.S. 317, at 342).
In Youngstown Sheet and Tube Company v. Sawyer (343 U.S. 579) Mr. Justice Jackson noted that opinions of Attorney Generals are partisan comments. Justice Jackson was, of course, a former Attorney General fully aware of the atmosphere in which the Attorney General opinions are written. The Attorney General is, in fact, the President's lawyer. But, if we are to look to opinions of attorneys general in this matter, then may I refer you to an extract from an opinion rendered by Attorney General Harlan Stone in 1924 to the Secretary of the Navy:
"The Constitution (Art. IV, Sec. 3, Cl. 2) gives to Congress the power to 'dispose of . . . property belonging to the United States' and Mr. Justice Thompson, sitting in Circuit in U.S. v. Nicoll 27 Fed. Case 15879 (pp. 149-50) said: 'No public property can therefore, be disposed of without the authority of law either by an express act of Congress for that purpose, or by giving the authority to some department of the government, or subordinate agent.' It follows then that property once acquired by the Government may not be sold, or title otherwise disposed of, except under the authority of the Congress, and in the manner provided by law, and this prohibition extends to any attempt to alienate a part of the property or in general in any manner to limit or restrict the full and exclusive ownership of the United States therein. . ." (34 Op. Att. Gen. 320, 322).
In summary, the text and history of the Constitution, case law, and prior practice in connection with disposal of property in Panama all support the proposition that the disposal of territory and property belonging to the United States requires congressional approval.
The 1903 treaty with Panama was entered into by virtue of the powers granted by Congress (the Spooner Act of 1902). No less than full congressional approval should be required for the annulment of this historic treaty.
I hope that this committee will uphold the view that one of its previous chairmen took in 1942 when, concerning a dispute over the role of the House in disposing of canal property, Senator Connally said:
"Those who are opposing the measure object because the matter is brought before the Senate in the form of a joint resolution. They say it should be in the form of a treaty.
"Mr. President, I am and have been and in the future shall continue to be ardent in my maintenance of the integrity and the rights of the Senate of the United States in all its proper functions as a branch of the Government; but the matter covered by the joint resolution has to be passed by the Congress sooner or later in some form, for the simple reason that under the Constitution of the United States, Congress alone can vest title to property which belongs to the United States. The Constitution itself confers on Congress specific authority to transfer