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The CHAIRMAN. I certainly don't want to hassle over the exact wording, but as I recall it, it says that the Constitution, together with treaties made under it and laws enacted under it shall constitute the supreme law of the land.

Senator SCOTT. Yes, sir, that is substantially it. I have a small copy here with me of the Constitution, and "laws of the United States, which shall be made pursuant thereto, and all treaties, which shall be made under the authority of the United States, shall be the supreme law of the land.”

The CHAIRMAN. I quoted that pretty closely, didn't I?

Senator SCOTT. Yes, you did, very closely. But it is different, I believe, from what the Attorney General said. Having read a digest of his testimony, I just felt that this later case in which the Supreme Court could not be contrary to the Constitution should be brought out before this committee.

The CHAIRMAN. Of course, that is right.

Senator SCOTT. We are in agreement, Mr. Chairman.

The CHAIRMAN. A treaty cannot be a treaty without ratification by the Senate by a two-thirds vote of those present and voting, a quorum being present.

Isn't that pretty close to the language?

Senator SCOTT. That is right, sir. But even if a treaty is enacted and even if it is ratified by two-thirds of the Senate, if it is contrary to the Constitution, it does not become law. That is what the Supreme Court of the United States said in an opinion by Mr. Justice Black. "There is nothing in this language which indicates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution."

The CHAIRMAN. Yes, I would include that it has to be made pursuant to the provisions of the Constitution.

Senator SCOTT. But that is somewhat contrary, I believe, to what the Attorney General said before the committee.

The CHAIRMAN. Whatever he said, that is the law.

Senator SCOTT. Yes, sir, we are in agreement.

The CHAIRMAN. Did you read the testimony of Governor Parfitt of the Canal Zone?

Senator SCOTT. I have talked with Governor Parfitt on a number of occasions. He is a very fine gentleman and I think very highly of him. As you know, he is also a Major-General in the Corps of Engineers.

The CHAIRMAN. Yes, and the gist of his testimony was with reference to maintaining our interests there and being able to defend our interests there in case of emergency. I think that was the principle thrust of his statement.

Senator Scott, this committee thanks you very much. Your testimony will be most helpful. Your statement will be given to each member of the committee.

Senator SCOTT. Thank you, Mr. Chairman.

The CHAIRMAN. Our next witness will be the Honorable Jesse Helms, a Senator from the State of North Carolina.

Senator Helms, we have a copy of your prepared statement. As I said to the others, it will be printed in full in the record. We are pleased to welcome you here today.

Please proceed as you see fit.



Senator HELMS. Mr. Chairman, I thank you very much for your courtesy and for the privilege of appearing before this distinguished committee.

I would say to you sir that I come today not to offer any preset opinions of my own, but to raise some questions which I have not yet seen fully answered by the distinguished witnesses who have appeared before you heretofore.

I would not be candid if I did not admit that the texts of the treaties have done little to convince me that the basic principles of the Kissinger-Tack agreement of 1974, upon which the treaties are based, are themselves adequate to support the national interest. But, of course, no one can prudently adopt an attitude of a closed mind. Indeed, should the treaties pass-and I hope they do not-it will still be best that all aspects of the treaties and their implications be fully aired and fully understood by all concerned. I therefore raise some questions today in the hope of creating what hopefully will be an intelligent dialog.


Question No. 1 is: What is the real issue?

First, let us take the slogan so frequently heard, "Our true national interest is in the continued use of the canal, not in ownership."

Mr. Chairman, is not the real question rather whether the continued use of the canal will be better protected by the present treaties or by the proposed new treaties? Will we be better able to keep the canal open, safe, and efficient under the present system where we exercise exclusive command and control over a clearly demarcated area, or will it be easier to keep it open, safe, and efficient under the mixed administrative system with a combined defense and interlocking overlapping areas of responsibility?


The second question involves U.S. sovereignty in the Canal Zone. Let us look at that question. What kind of control do we actually have there? Is it really true that the United States does not exercise the full rights of a sovereign in the Canal Zone? I am distinguishing the rights of a sovereign from the rights of a property-owner. Sovereignty is not some abstract concept such as title. Sovereignty means power.

The 1903 treaty is quite explicit. We exercise absolute power in perpetuity; Panama specifically quits claim to any exercise of power in perpetuity.

I would like to ask the distinguished committee if it has found any statement by the U.S. Congress, by any U.S. President, or by any U.S. Secretary of State or any international agreement with Panama, previous to the Kissinger-Tack agreement of 1974-which specifically abrogates our rights to the exercise of sovereignty as found in the 1903 treaty. Is there a single statement of this kind?

I don't believe it can be found, Mr. Chairman.


Question No. 3 concerns U.S. ownership of the Canal Zone.

As the committee knows, ownership is a separate problem from sovereignty. Many people are making statements today that we do not even own the Canal Zone. I heard one of the ambassadors who negotiated the treaties say on television that we do not own the Canal Zone. Mr. Chairman, that obviously is not true. Does not the record show that we acquired property in the Canal Zone by four different methods?

The first is by a grant in perpetuity of national lands of the Republic of Panama, for which we paid $10 million.

The second is by purchase from the bankrupt French canal enterprise of lands held in fee simple, improvements, equipment, concessions, and stock in the Panama Railroad costing us $40 million.

The third is by purchase in fee simple of individual tracts held by private owners, as well as payments to squatters who held rights through adverse possession, for which we paid $4 million.

The fourth is recompense to Colombia for her reversionary rights in the French concessions, for which we paid $25 million.

Sometimes I hear spokesmen who favor these treaties scoff at this expression, but I ask the committee is it therefore not true that indeed we did buy it, indeed we did pay for it? Did not the U.S. Supreme Court in 1907, in a holding which has never been reversed, declare that it was hypercritical to contend that our title was imperfect? Did not the Supreme Court say, and let me quote:

The fact that there may possibly be in the future some dispute as to the exact boundary on either side is immaterial. Such disputes not infrequently attend conveyances of real estate or cessions of territory.

Then the Court went on to say.

Alaska was ceded to us forty years ago, but the boundary between it and the English possessions east was not settled until the last two or three years. Yet no one ever doubted the title of this Republic of Alaska.

This was the statement of the Supreme Court in 1907.

I would further point out to this distinguished committee that the U.S. Congress has always treated the Canal Zone as U.S. territory within the meaning of its authority in article IV, section 3. Congress serves directly as the legislature for the Canal Zone. Under article IV, it has erected a district court and a Canal Zone Code. The laws which we make for the several States apply or do not apply to the Canal Zone as we see fit. Congress has the right to determine that under article IV.

For example, the question of citizenship for persons born in the Canal Zone was raised here the other day as though that were a test of U.S. sovereignty. The fact is the Congress has the authority to determine the requirements for citizenship. If you look at 8 U.S.C. 1101 (a), you will find that the definition of the term "United States" specifically includes the Canal Zone for the purposes of the law of citizenship.


My question No. 4 is, will we have real control?

It is, of course, clear that Panama will exercise complete sovereignty in the area of the present Canal Zone as soon as the treaty goes into effect, except for a few transition items. But it is not the effect of the treaty upon U.S. ownership nothing other than a scheduled timetable for nationalization of U.S. property-nationalization, incidentally, without compensation to the American taxpayer? We turn over some properties immediately and we turn over others on schedule. We receive absolutely nothing in return.

Even though the last parcel is not turned over for 23 years, is it really true, Mr. Chairman, that we will have any effective control over those properties and their operation?

I note that according to the terms of the treaty, there will have to be a reduction of some 20 percent of U.S. citizen employees within 5 years. At present we have 3,395 U.S. citizen employees; 567 of these are in so-called "security" positions necessary to the preservation of civil order and to the continuity of canal operations under emergency conditions.

Many of the civil order positions will be abolished and the duties turned over to the Panamanian National Guard. Others are among the high-salaried, skilled, and executive positions that will be most sought by Panamanian nationals.

Mr. Chairman, the question is: Will not practical control as distinguished from theoretical control rapidly diminish simply through attrition.


As for the legal structure of the proposed Panama Canal Commission, I note that it will be an agency of the U.S. Government, but that its Board of Directors will be composed of five U.S. nationals and four Panamanian nationals. I have been unable to find any precedent for an operating agency of the U.S. Government with such a strong participation of foreign nationals.

Perhaps this committee can find some, if they exist, in which case. they should be carefully studied. Will the United States be able to maintain objective control of the Commission's operations when foreign nationals are privy not only to all decisions, but also to all proprietary information and financial accounting?

In addition to the Board of Directors, the treaty and its annexes provide at least six other Boards: the Combined Defense Board; the Joint Commission on Environment; the Panama Canal Consultative Committee; the Coordinating Committee for the Implementation of Article III-Operations and Management-the Coordinating Committee for the Implementation of Article IV-Combined Defense; and the Ports and Railroads Committee.

There may be more that I have overlooked.

In each of these the representation on both sides is equal. The United States does not have a majority on any of them. Is this not setting up a situation where there could easily be a stalemate over policy, or even a diplomatic incident?

I think the committee ought to consider that.

Do we really control these operations as envisioned in the treaty? Question No. 5 concerns defense.


The same situation exists with regard to defense. The Senate Armed Services Committee is already studying the many problems which abound in this area very carefully, and will not take the time of the distinguished members of the Foreign Relations Committee with specific defense issues. But is not the very concept of combined defense, the fatal flaw that makes these treaties untenable?

The fundamental premise of the proposed treaties is that our present status is no longer viable because of the threat of sabotage from disgruntled Panamanians. But after we surrender our sovereign command and control, retaining only an undefined "primary responsibility" for defense, will we not be totally indefensible against the sabotage of dissidents? The treaties make our supposed vulnerability worse, Mr. Chairman, not better. I ask, will that improve our defense? Question No. 6 concerns the Torrijos regime.


A second fundamental premise is that the treaties will eliminate or reduce Panamanian dissidence, giving us the cooperation of a friendly Panama. But I fear, Mr. Chairman, that human nature is not so tractable as that. The treaties make us partners with a regime that is seriously flawed in many respects.

There is a considerable body of evidence that General Torrijos and his immediate family are heavily involved in controlling the flow of cocaine and other drugs from South America to North America and to other markets around the world. The General wields enormous personal power; everybody concedes that. He is not responsible to anyone. Although there are many military regimes in Latin America, most are composed military juntas who took power reluctantly in the midst of social and economic chaos. There was no such overwhelming reason when President Arias was thrown out after only 10 days in office.

If you will look at article 277 of the 1972 Constitution of Panama, you will see the full extent of just those powers to which General Torrijos admits to having. In practice, the Torrijos government is arbitrary; it is corrupt. By becoming a full partner-indeed, even the guarantor of this regime, Mr. Chairman-do we, the United States, not open the door for future agitation, particularly when the mixed administration and combined defense arrangements offer so many opportunities for misunderstandings and agitation?

There is fruitful ground here for infiltration, subversion, and the overthrow of the Torrijos government by outside forces determined to control Panama and, through Panama's sovereignty, the Panama Canal.

Moreover, the background of General Torrijos himself is not encouraging. Although he is probably too undisciplined and self-seeking to submit directly to Communist control, it is well known that his parents were active Communists, and that he and his brother and sister

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