The United States would not have any of the eminent domain or other interests she possessed in lands granted to the Indians.

C. Past practice in disposal of U.S. property in the Canal Zone to Panama

The remainder of this report contains material that establishes considerable precedent demonstrating that both the executive branch and the Senate have considered it necessary to obtain the consent of the House prior to ceding U.S. property in the Canal Zone to Panama.

In 1932, the United States wanted to build a new legation building on land within the Canal Zone. Since it is improper to build a legation on territory under American jurisdiction, the State Department drafted a bill by which Congress would authorize the Secretary of State to modify the boundary line between Panama and the Canal Zone so as to temporarily cede the land back to Panama, so that the proposed legation could be built on "Panamanian territory.50

In 1942 the Senate debated approval by Joint Resolution of an Executive Agreement transferring land and property in the Canal Zone to Panama. One of the most acrimonious points of debate concerned whether the transfer should have been effected by treaty, requiring only the consent of the Senate, rather than by an Executive Agreement which required consent of both Houses. The Chairman of the Senate Foreign Relations Committee, Mr. Connally, stated:

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 territory or lands belonging to the United States. So, if we had a formal treaty before us and if it should be ratified, it still would be necessary for the Congress to pass an act vesting in the Republic of Panama the title to the particular tracts of land; because "the Congress" means both bodies. The House of Representatives has a right to a voice as to whether any transfer of real estate or other property shall be made either under treaty or otherwise.

Another reason why it is not necessary to embody the provisions of the joint resolution in a treaty or treaties is that so far as Panama is concerned, most of the results sought to be attained by means of the joint resolution have already been accomplished. We already have the sites; we already are occupying them; we already are putting installations upon them for the proper defense of the Canal Zone. The instrumentalities involved comprise not only airfields, but detector stations, searchlight stations, and all the other various instrumentalities for the proper protection of the Canal and its approaches.52

Despite calls that the Joint Resolution be rejected because it infringed upon the Senate's right to pass upon treaties (88 Cong. Rec. at 9320), the measure was approved (88 Cong. Rec. at 9328).

53

The House Committee on Foreign Affairs held hearings on that transfer in early 1943. In its Report the Committee stated that:

Congressional approval of the Executive commitments to Panama is sought in the form of legislaation because there is involved (a) a disposition of property of the United States and (b) an appropriation of funds, both requiring an exercise of the legislative power, independently of the treaty-making power. Article IV of the Constitution provides that—

* * * the Congress shall have power to dispose of *** the territory or other property belonging to the United States.

34

A 1955 treaty provided for the transfer of real property to Panama. By terms of the treaty the transfer of some property was to be immediate, and the transfer of the remainder was dependent upon Congressional authorization. A representative of the State Department testifying at Hearings on the Treaty admitted that

50 H.R. 7119, 72d Cong., 1st sess., 72 Cong. Rec. 4652-4657 (1932). The legislation was approved. 72 Cong. Rec. 4657.

S.J. Res. 162, 77th Cong., 2d sess.; 88 Cong. Rec. 9266-9287, 9320-9328. 62 88 Cong. Rec. at 9267.

53 H.J. Res. 14.

54 H. Rept. No. 78-271, p. 6.

97-565-77—27

legislation would be needed to implement the transfer of all the territory and property mentioned in the treaty."

In addition, those sections of the Treaty (Articles VI and VII) alleged not to require implementing legislation amended the Boundary Convention of 1914 between the U.S. and Panama. The transfer in these Articles, then, may be distinguished from a transfer of the entire Canal Zone or a major portion thereof to Panama. Certainly there is a difference between a boundary adjustment, and the cession of the entire Canal Zone.

III. CONCLUSION

We have seen that the treaty making power, vested in the President to be exercised with the advice and consent of the Senate, is extremely broad in scope. That power is limited when the Constitution confers an exclusive grant of authority on Congress. Although there are excellent arguments in favor of the proposition that the authority to dispose of property is concurrent and may therefore be exercised under the treaty making power, those arguments are not altogether free from doubt. Supreme Court decisions have recognized the exclusive nature of congress' Article IV powers as they relate to the federal-state relationship. Those rulings have never been qualified by other decisions characterizing those powers as concurrent when used by the executive under the treaty making power. It does not appear that past treaty practice with either foreign nations or Indian tribes provides authoritative precedent establishing, with any degree of certainty, the exclusive or concurrent nature of Article IV, as that provision relates to disposal of land to a foreign sovereign.

It is clear that Congress has often asserted an exclusive right to dispose of federal territory and property. It is also apparent that both the Executive and the Senate have recognized that claim in past dispositions of property in the Canal Zone to Panama. Therefore, while it is impossible to make a categorical assertion that Article IV Section 3, clause 2 is either exclusive or concurrent, it appears that those powers have been recognized as exclusive for purposes of disposal of property in the Canal Zone to Panama.

Finally, regardless of the exclusive nature of the Article IV power, the cooperation of all three branches of government is necessary for the effective implementation of American foreign policy. Although the President is the sole organ of communications with other nations, conclusion of a treaty without prior regard for Congressional attitudes might adversely affect the continuing Executive/ Congressional relationship

It is a very serious matter for the treaty-making power to enter into an engagement calling for action by Congress unless there is every reason to believe that Congress will act accordingly."

56

PREPARED STATEMENT OF SENATOR CLIFFORD P. HANSEN

Mr. Chairman, and members of the Committee, I greatly appreciate this opportunity to express my views before this Committee on the Panama Canal Treaties. My position over the last ten years is a matter of public record. I have always maintained I would oppose any treaty under which the U.S. relinquishes total control of the Canal Zone, its defense positions and the rights to operate the Canal. I have not altered my position.

Some weeks ago I told President Carter I would withhold judgment until I had the opportunity to study and to familiarize myself with the terms of both the Panama Canal Treaty and the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal. But I have now concluded such a study and made a decision. I remain opposed to both treaties as they are presently drawn.

THE WRONG TREATY FOR THE WRONG REASONS

The fact that a new treaty has finally been negotiated comes as little surprise. Talks have been going on sporadically for many years under several administrations. I will not suggest that these talks should not have occurred, in light of

Hearings before the Senate Foreign Relations Committee on the Panama Treaty, Exec. F., 84th Cong., 1st sess., pp. 60-61. Authorizing legislation discussed property conveyed in all three Articles. Public Law 85-223, 71 Stat. 509 (1957).

56 Secretary of State Hughes, in an address concerning the League of Nations Covenant, in March 1919, cited in Wright, supra note 17, at 356-357 (n. 48).

several years of political turmoil and economic hardships within Panama. I will not say a new treaty is not entirely necessary. I will not deny that a reevaluation of the situation may have been advisable in the interests of cooperation between the two countries.

The question of sovereign rights has been debated extensively. Therefore, I will not address myself to that issue. I believe there are far more important aspects of these Treaties upon which to base my opposition.

What concerns me are the conditions under which the United States has negotiated these treaties. We have reacted to threats of violence from the leftists within Panama, and we have been led to believe our withdrawal from the Canal Zone is being favored by the Latin American community as a whole. The new treaties have been held up to us as a chance to set an example for the world in demonstrating our sincerity with regard to the sovereign rights of individual governments. Our presence in Panama has been pictured as the last example of colonialism in the Western Hemisphere. We are expected time after time to feel guilty for our presence there. We have been told it is time to make amends for our past errors. I do not buy that. It is dishonest to play on the conscience of the American people and to thus ignore the fundamental questions involved.

This is not the issue. Charles Maechling stated in a recent editorial that "Treatment of the Panama Canal as a Latin American political symbol rather than as a global strategic and economic asset has distorted important treaty issues." The Panama Canal Zone is far too important an issue to be held up as a testing ground; a kind of acid test. As a result of this approach, we have negotiated from a position of weakness; we have remained on the defensive throughout the recent months as talks progressed, and I believe we have capitulated on every major issue to the demands of the Panamanian Government. These treaties are the wrong treaties, at the wrong time, for all the wrong reasons.

UNRESOLVED QUESTIONS

I am concerned about the role the media has played in this drama. Time and again human rights issue involving the personal and political freedom of the Panamanian people have been ignored or minimized by the media in an effort to avoid setbacks in the treaty negotiations. There have been charges and countercharges, but all have received scant attention and no comment from the State Department. The charges may all be unsubstantiated. But that has not yet been thoroughly resolved.

There have been as well, allegations involving the bugging of Panamanian quarters. Though the charges seem to have been dealt with, I wonder if they have been completely resolved. I am concerned that the Attorney General sought to intervene when the Senate Judiciary Subcommittee on Separation of Powers subpeonaed those records which may have clarified the situation. While I realize there may be some question of committee jurisdiction involved, I would hope the Senate Intelligence Committee has been completely satisfied in its investigation of the matter. It would be unfortunate if the incident did in fact have any influence on the negotiations, one way or another.

I am concerned about the way the Administration chose to publicize the signing of the treaties.

The U.S. Constitution guarantees to the Senate equal participation in the adoption of treaties with foreign nations. This is an essential element in assuring that the American people have an input in the contracts made with other nations. Far from presenting a treaty to the United States Senate on which we would advise and consent, President Carter has attempted to present the Senate with a "fait accompli."

I have since been very pleased with the extent to which this Committee has gone in receiving testimony of all those interested in this vital issue.

Ratification remains the sole prerogative of the United States Senate. There is some serious question as to whether the House of Representatives will in fact have an opportunity to exercise its Constitutional right to decide on the disposition of U.S. property within the Canal Zone. The Attorney General has taken it upon himself to assert that House approval is not needed. I cannot agree. I would hope the Administration does not insist on maintaining that position. Members of the Armed Services, both active duty and retired status, are very divided over the Canal issue. Heavy support for the treaties is coming from senior officers currently serving, while those senior officers no longer serving are opposed to the terms of both treaties. I have long been one of the most ardent

supporters of our defense establishment and have always believed in the exceptionally high caliber and integrity of our commanding officers. However, I cannot completely ignore that unfortunate situation recently when a commanding officer was immediately and publicly relieved of his duty when he expressed his doubts concerning the wisdom of one aspect of the Administration's foreign policy. While we must rely on members of our armed forces on matters involving our national defense I believe it is important that in light of recent events we keep in mind the conflicting pressures under which such officers function.

Testimony from within the Administration has also differed with regard to the defensibility of the canal. The State Department has contended that the Canal is indefensible, as if that were some kind of logical argument to give up a fight before it begins. In advocating this position, the State Department has carried its propaganda to the American people in a most regrettable manner.

While the State Department has espoused the indefensibility of the Panama Canal, the Defense Department has confirmed what our common sense has already told us, that the Canal is indeed defensible. Obviously, it has occurred to the Administration recently that if we are entering into a treaty which gives us the right to defend the canal, it cannot be maintained that the canal is indefensible. Whether or not the canal is defensible is a matter which the State Department and the Defense Department ought to settle between themselves before the debate goes much further.

All the reasons put forth in support of the treaties have not convinced me. Representative Robert Dornan of California, in responding to those testifying in favor of ratification, said, "If a rejection of this treaty comes, it will not be an ungenerous act but a statement that we (the United States) have very little to apologize for. So far you've only given us two reasons for this treaty; that the Latin American people will love us more if we do it and to prevent the bloodshed of thousands of Panamians if we don't do it." He is correct in his assessment of the arguments being used in favor of these treaties. They are weak, indeed.

ALTERNATIVES

It is extremely unfortunate the Administration is determined by means of this treaty to relinquish all practical control and rights of defense in the Panama Canal Zone.

Despite a widely publicized show of support, there are also serious reservations among the Latin American countries with regard to the terms of the treaties. At the gathering of the Organization of American States in Granada this year, that organization voted 19-0 for a resolution stating that canal tolls should reflect only the actual operating costs of the waterway. Panama did not vote and the United States abstained. I do not believe all of Latin America wants the United States out of the Canal Zone and again, I cite the State Department for perpetuating this false impression as a means to gain support for its policies. The countries of Latin America have as much to lose as the United States should the tolls be raised or access to the Canal limited.

The entire negotiation process was based on the threat of violence and deteriorating relations with the Latin American community, resulting in a treaty full of ambiguities and under which U.S. rights are not adequately protected.

Therefore, I have cosponsored six amendments and two reservations which Senator Dole has had the foresight to introduce. These reservations, and the amendments especially, would correct what I regard as the most serious weaknesses in the treaties.

The first amendment I have cosponsored with Senator Dole would reinstate the right of the United States to negotiate with any other State for the right of the United States to negotiate wih any other State for the right to construct an interoceanic canal through that State. Any treaty which provides for less will be inadequate.

Article XII of the Panama Canal Treaty contains a provision which would allow the United States to build a second canal, if we should ever wish to do so, only in the country of Panama. At the same time, the treaty contains no commitment on the part of Panama to agree to permit us to construct that canal, should we decide to do so. Yet we are prevented from constructing one elsewhere. This provision is totally unacceptable. Why we would agree to build a second canal only in the country which has demanded possession of our first canal, is totally incomprehensible. I cannot believe our negotiators accepted such a provision, knowing full well the implications.

Article XIII of the Panama Canal Treaty deals with what has aptly been described as "ransom" or "conscience money". Currently, Panama receives a $2.3 million annual annity. Under the terms of this treaty, the annual annity would increase to between $70 and $80 million. A clause in this Article also binds our Government to negotiate an economic loan package amounting to almost $345 million.

The second Dole amendment which I have cosponsored reduces Panama's share of the canal's annual operating revenues from 30 cents per net ton to 15 cents per net ton for each vessel transiting the canal. It would further eliminate the biennial adjustment of this rate according to changes in the U.S. wholesale price index. Finally, the amendment would eliminate that provision which would supply Panama with up to $10 million per year depending upon revenues. The amendment also provides that during any period in which the canal is inoperable, the fixed annuity shall cease, regardless of why the canal is closed.

Article XI of the Panama Canal Treaty provides for the "orderly transition" of jurisdiction over the Canal Zone. The Administration is emphasizing a 23year period in which this will occur. In actual fact, as soon as the treaty enters into force, the Republic of Panama shall gain full jurisdiction over the Canal Zone. A complete transfer of U.S. judicial, administrative and regulatory authority will be accomplished within 30 months.

In my opinion, this does not constitute an orderly transition. I believe there are very few American citizens who will remain in the Canal Zone, knowing they will be under the jurisdiction of the Republic of Panama. Large numbers may return to the United States, leaving a void in the manpower support of the operations of the Canal.

The third amendment which I cosponsored would allow the Panama Canal consultative committee to study the situation after the treaty takes effect and make a recommendation as to when the period of transition should actually end. However, January 1, 1990, will be the earliest time at which that would take place. Any treaty which subjects our U.S. citizens to Panamanian law and civil and criminal justice within 30 months after the treaty enters into force is totally impractical. Transfer of the administration of the Panama Canal Commission from United States to Panamanian leadership takes place on January 1, 1990, and it is only logical the two dates be coordinated.

I have cosponsored a fourth amendment to add a new Article XV to the Panama Canal Treaty which stresses the importance of maintaining and properly observing internationally recognized human rights, including civil and political rights in the Canal Zone. As I noted earlier, there remains a great deal of unresolved questions involving charges of civil and political human rights violations. The Administration and the State Department cannot operate under a double standard on the human rights issues, in the name of expediency when it comes to concluding a treaty with the government of Panama.

Article IV of the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal, I believe, is the weakest article of the treaty. There is nothing in Article IV which assures that the United States can unilaterally intervene in the defense of the canal whenever necessary, regardless of how the Administration has sought to explain the section. And, as has been so recently illustrated, the Panamanians have explained this article to their people in opposite terms. Panamanian negotiator Escobar Bethancourt stated in August, “The neutrality pact does not provide that the United States will say when that neutrality is violated." As has been already noted, Panamanian interpretation is at least 50 per cent of the definition. Reinforcing the misunderstanding, Senator Dole recently released a cable in which Lopez Guevara, one of the Panamanian treaty negotiators, stated "Intervention is simply forbidden by international law. Panama cannot agree to the right of the United States to intervene." If this is in fact the definition, the treaty is unacceptable. I would hope the Administration settles the matters as expeditiously as possible.

The fifth amendment which I have cosponsored with Senator Dole adds a provision specifically guaranteeing U.S. authority to intervene militarily on behalf of the canal when we determine its neutrality to be threatened, whether from the outside, or the inside, which could very well be the case.

Article VI of the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal includes a provision which grants the United States "expeditious" passage through the canal in times of crisis. This provision alone is an admission which negates that argument espoused by proponents of the Treaty who would deny the strategic importance of the canal during a time of crisis.