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can involvement was supposed to be secret, undercover. Hence, when the Joint Chiefs chose an ideal invasion site that would permit the invaders to melt into nearby mountains if anything went wrong, President Kennedy vetoed the plan, claiming that a landing which had the earmarks of an invasion mounted by the United States a few miles from a coastal town would give everything away. World opinion, in other words, required the choice of another invasion site, even though strategically inferior.
Later, for the same reason, he ordered the first of three planned air strikes by the Cuban Air Squadron cut in half and the second and third cancelled altogether. When the tide of battle turned against the invaders because they lacked air support and the only chance for victory lay in the use of American power just over the horizon, it was denied. Promised supplies to the beaches were never delivered. The Cuban Brigade was abandoned to its fate and Castro's boast of how little Cuba, in three days, had defeated mighty Uncle Sam was heard around the world, relayed by Moscow. U.S. prestige in Latin America dropped to an all-time low. The invasion, instead of overthrowing Castro, entrenched him. "World opinion", for which the Washington liberals had been willing to sacrifice national honor now turned sharply against the United States. When patriotic Americans became aware of what had taken place, and why, their sorrow was compounded by humiliation and shame.
Those who fear "world opinion" seem never to realize that any adverse opinion subsides quickly in the face of accomplishment and strength. History never argues with success and a showing of strength, but rarely forgives weakness and failure. The Soviets by contrast are entirely indifferent to world opinion. They never permit adverse publicity to deter them from actions they consider beneficial to their nation. America's allies are inevitably appalled by a display of weakness on the part of the United States.
For any Administration spokesman to say that "people everywhere expect the United States to be able to work out an arrangement with Panama" giving up exclusive U.S. control and eventually surrendering the Canal is a calamitous misjudgment of realities. Exactly the opposite is the case. People everywhere in the Free World expect the United States to stand its ground against the threats of a Communist-oriented dictator of a tiny, weak and politically unstable country.
What about "our Latin American neighbors?"
Again, State Department officials, from Dr. Kissinger down, grossly misjudge Latin America and its people. They do not seem to realize that none of the nations to the south have "democratic representative government" in the American sense. Eight of the ten major countries are ruled by military men. In no case do their politicians reflect constituency opinions. Where the United States is involved in an issue, they publicly assume the stance of "David" in a DavidGoliath confrontation, to show their courage and independence. But privately among trusted friends, they talk otherwise. On such issues as the Panama Canal, the opinions they express publicly are so much demagoguery, usually unrelated to their true opinions.
My wife Carmen and I are of pure Latin American lineage on both sides of hoth families and the roots of our families go back to the earliest colonial times. Carmen's ancestors arrived in the New World 28 years after Columbus and 100 years before the Pilgrims stepped on Plymouth Rock. Mine came 15 years later. We feel we know our people.
The almost universal reaction among the educated people of Latin America who are not politicians to a Promulgated Kissinger-Bunker giveaway treaty would be, at first, incredulity, then sadness and eventually ridicule and even contempt for the once greatly respected nation that had shown itself no longer to have the will to maintain its prestige and discharge its responsibilities.
My own and my wife's convictions on this score are supported by a distinguished military analyst, Gen. V. H. Krulak (Ret.) now on the editorial staff of the Copley newspapers. Writing in the summer of 1975 issue of Strategic Review he stresses that the importance of U.S. control of the Panama Canal to the entire Hemisphere is "appreciated throughout Latin America, where all but far left governments see it as something quite different from the issue of anticolonialism that has swept around the world."
Most Latin Americans, he believes, "in their own interest realize that the critical strip . . . must never be permitted to fall into irresponsible hands." At a recent meeting of the Inter-American Press Association in Sao Paulo, Brazil,
Gen. Krulak pointed out, "the attitude of Latin American publishers and editors was bold and clear." It was expressed by a Chilean delegate who told the United States: "You would be doing yourself and us a major disservice if you backed off one centimeter from your present position in Panama."
This view is particularly strong among Latin Americans aware of the Communist menace to our hemisphere. A Venezuelan at the Sao Paulo meeting, referring to the concessions to the Panamanian dictatorship already offered by Washington, stressed the futility of trying to appease Communism, by quoting Alexander Solzjenitsyn's warning against "short-sighted concessions, a process of giving up and giving up . . .”
Ambassador Bunker recently wrote: "Our job is to make sure that the public and Congress have the facts they need if they are going to make wise decisions about the Canal."
But in the speeches across the country State Department spokesmen withhold from their audiences the fact, (a) that the Panama Isthmus is one of the most politically unstable areas in the world, and (b) that the United States is negotiating with a de facto government whose chief is a Communist-oriented military dictator.
Here is what the American people need to know about these vitally important aspects of the issue:
1. The sorry record of political turmoil on the Isthmus ante-dates the Panama revolution of 1903 by a great many years. During the 57 years preceding the founding of the Republic there were 53 political uprisings. One civil war lasted nearly three years, another nearly one year. The killings included Americans. On four occasions the Colombian government, then the sovereign, asked the United States to land troops to restore order and, in fact, Marines landed from U.S. warships on five occasions.
Since then the Republic of Panama has had 32 presidents in 72 years, an average of one every 2.25 years. The last upheaval occurred in 1968, when the duly elected President was overthrown by the National Guard which today rules the country under General Omar Torrijos. Like many former Panamanian politicians, the deposed President fled to the sanctuary of the Canal Zone, which has often served as a haven of refuge for Panamanian leaders seeking to escape assassination.
2. On January 10, 1976 dictator Torrijos publicly embraced dictator Fidel Castro in Havana, identifying his regime with that of the Cuban-Soviet axis. He announced that he welcomed Castro's backing in the attempt to wrest sovereignty over the Canal from the United States.
Before his departure for Cuba, State Department officials urged Torrijos not to mention the Panama Canal issue during his 5-day visit. Senator Jacob Javits, one of the leading pro-treaty advocates, was in Panama at the time and he added his coaching on how to avoid stirring increased hostility in Congress. Shamefully, these Americans were advising a foreign pigmy despot how to help the U.S. Government divest the United States of an asset of incalculable value to the security of their country, and to the maritime commerce of the world.
The Torrijos-Castro embrace came as no surprose to some of us, including Governor Ronald Reagan, who had issued the following statement four months earlier (September 12, 1975):
"The incubation of the present Marxist government goes back a long way. When the Communist Party of Panama was founded in 1930, its charter spelled out two key goals: 1. Gain control of the Government through the Armed Forces; and 2. Nationalize the Canal Zone via treaty negotiations.
Goal 1 was realized when, on October 11, 1968, the Armed Forces (called the National Guard) overthrew the newly inaugurated government of President Arnulfo Arias . . . who had been an outspoken critic of Soviet designs on the Canal since his first election in 1940.
"Slowly, over the years, a cadre of young, carefully indoctrinated Marxist military officers grew in size in the National Guard until it was strong enough to bring off the coup.
"On seizing the government they immediately disbanded the National Assembly, censored the press and suspended civil rights. There hasn't been an election since. Today, the government speaks, not for the people of Panama, but for the guns of the National Guard. So far, it has succeeded in intimidating our State Department."
And the Panama-Cuba embrace could have come as no surprise to the State Department. In 1964 Ambassador Bunker announced that an assault on the Canal
Zone which had taken place shortly before had been led by "persons trained in Communist countries for political action of the kind that took place" and that "the Government of Panama, instead of attempting to restore order, was, through a controlled press, television and radio, inciting the people to attack and to violence."
Joseph A. Califano, Jr., then Deputy Secretary of Defense, put it this way in 1964: "We know that some of the leaders were known and identifiable Communists, members of the Communist Party of Panama, and people who belonged to the vanguard of National Action, which is openly and proudly the Castro Com. munist Party in Panama."
Nor should the Panama-Communist Cuba embrace have come as any surprise to President Ford himself. In 1967, as House GOP leader, he had warned of the Communist menace to the Panama Canal from nearby Cuba. That was the time when the Johnson Administration, bowing to the coercion of the 1964 Panamanian riots, had offered to negotiate a treaty substantially similar to the present Kissinger-Bunker giveaway treaty. Here is what Congressman Ford said: "With Cuba under the control of the Soviets through its puppet Castro, and with increased Communist subversion in Latin America, a Communist threat to the Panama Canal is clearly a grave danger. The American people will be shocked by the terms of this (Johnson Administration) treaty"
But that was nine years ago and Congressman Ford is now President Ford and he has as his advisor on foreign affairs Dr. Henry Kissinger. Today America has become immobilized by the spirit of detente, while the Soviets push forward confidently and successfully on all fronts.
Ambassador Bunker in his speeches across the nation has indulged in eloquent silence on the possibility of any Communist threat to the Canal. I charge that by withholding these important facts, certain to influence the judgment of his hearers, the spokesman for the U.S. Government commits a fraud.
1. The giveaway advocates argue that it may be impossible to operate the Canal in a hostile environment. Hence, if we cannot make the Panamanians love the United States, we might as well kiss the Canal goodbye, gracefully, before we are kicked out. Opponents say, "No!" The armed forces of Panama consist of a national guard, which serves as a police force. The United States defense establishment is so formidable that if anyone damages a single U.S. property in the Zone-let alone tampers with locks, dams and spillways--he should be remanded to the nearest Canal Zone police court to be removed from mischief.
2. The State Department believes that meeting threats and insults with a smile is a mark of practical statesmanship. Opponents say, "No!" It is a mistake to raise the hope of Panamanian politicians with bribes of promised concessions. Appeasement by the United States has become the order of so many days that Isthmian politicos take it for granted.
3. The State Department wishes to surrender exclusive American control over the Zone. Opponents say, "No!" It was a mark of wisdom that the great Theodore Roosevelt and his Secretary of State John Hay included in the Treaty of 1903 the provision for exclusive and perpetual American control. Without it, there could have been no stability in the operation.
"Perpetuity" does not seem so long when we remember that political stability has not emerged in the Isthmus during the 400 years that elapsed between the arrival of the great explorers and the arrival of American engineers and doctors who converted a deadly swampland into the finest man-made waterway in the world. Exclusive controls at least as important today as it was in 1903.
4. The claim that the Panama Canal has lost its strategic importance defies the facts and common sense. A few of our combat ships-only 13 of some 480-are too big to get through the Canal locks. But, to quote General Krulak again. "In truth the Panama Canal is an essential link between the naval forces of the United States deployed in the Atlantic and in the Pacific. It is only because of the waterway that we are able to risk having what amounts to a bare-bones, oneocean navy."
The Soviet Union has been acquiring ports of strategic importance all around the globe. Its latest effort in that connection is in Angola. Communist domination of the Canal, whether open or camouflaged, is a key objective of the Soviet navy master plan. If accomplished, Moscow and its puppets would be able to divide U.S. naval strength almost at will.
5. Within the framework of the retention of sovereignty, the United States should continue to deal with the people of Panama in friendship and fairness, as it has for 73 years. It should continue to make adjustments on the spot in nonessential treaty provisions, as it also has in the past. But the United States must negotiate with a Panamanian Government only on a no-nonsense basis. And let the word go out to "Torrijos & Co." that our solicitude for the Panamanians does not extend to a government that threatens, vilifies and incites its population against the United States.
[Supplied by Senator William Scott:]
THE TREATY POWER AND CONGRESSIONAL POWER IN CONFLICT: CESSION OF UNITED STATES PROPERTY IN THE CANAL ZONE TO PANAMA
(By Kenneth Merin, Legislative Attorney, American Law Division)
This report addresses the Constitutional issue of whether United State's territory and property in the Canal Zone may be ceded to Panama by a treaty alone, or treaty accompanied by implementing legislation.
Article II, section 2, clause 2 of the Constitution authorizes the President to negotiate and enter into treaties:
He shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;
Article VI, Section 2 of the Constitution declares treaties to be the supreme law of the land:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under Authority of the United States, shall be the supreme Law of the Land; . . .
However, Article IV, section 3, clause 2 grants Congress the power to dispose of territory and other federal property:
The Congress shall have Power to dispose of and make all Rules and Regulations respecting the Territory or other Property belonging to the United States;
The constitutional issue at hand, then, is not, or should not be, involvement of the House of Representatives in treaty negotiation, "Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it. . . .1 Nor is the issue an intrustion by the House of Representatives into the advice and consent powers of the Senate, since that function is explicitly assigned to the Senate by Article II of the Constitution."
The proper issue for resolution is to determine whether, by virtue of Article IV, Congress exercises exclusive or concurrent power over the disposal of territory and property. If it can be clearly resolved that the grant is concurrent, then the Executive would be able to conclude a treaty disposing of the United States interest in the Canal Zone to Panama without the necessity for implementing legislation. The executive branch seems to believe that such a disposal may be effected by treaty alone, by joint resolution, or by a combination of treaty and implementing legislation.3
The House of Representatives appears to hold the opposite view. That is, that no treaty may convey U.S. property without the House consent. Attempts to leave
1 United States v. Curtiss Wright Corp., 299 U.S. 304, 319 (1936).
2 S. Crandall, Treaties, Their Making and Enforcement, Washington: 2d ed., 1916, section: 25 at p. 48.
3 Green H. Hackworth Legal Adviser, Dept. of State, Hearings before the Committee on Foreign Affairs, on H.J. Res. 14. "Authorizing the Execution of Certain Obligations Under the Treaties of 1903 and 1936 with Panama, and other commitments." 78th Cong., 1st sess., p. 9 (1943):
Carl F. Salans, Deputy Legal Adviser, Department of State, at Hearings before the Subcommittee on the Panama Canal, of the Committee on Merchant Marine and Fisheries on "Treaties Affecting the Operations of the Panama Canal." 92d Cong.. 2d sess., p. 16:
A similar conclusion was drawn by Ralph E. Erickson, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, id. at p. 97.
See also, statement of Herbert J. Hansell, Legal Adviser, Department of State, at Hearings before the Senate Subcommittee on Separation of Powers, July 29, 1977.
the House out of this issue are seen as infringements on the basic duties of that body.*
I. GENERAL CONSIDERATIONS REGARDING THE SCOPE OF THE TREATY
Treaties and statutes are of equal import. Both are the supreme law of the land. In the event of a conflict between a treaty and a statute, the most recent is controlling.*
The scope of the treaty power is very broad. It extends to all matters usually considered as the proper subject of negotiation and relations between nations." Treaties may and have addressed matters of a political, military, economic, cultural, scientific, or diplomatic nature.
The Constitution does impose limitations on the treaty making power. The major limitation, simply stated, is that a treaty may not violate the Constitution. "It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument." It is interesting to note, however. that the Supreme Court has never ruled any treaty unconstitutional.
In most cases, treaties are binding on the United States, in an international sense, once an exchange of ratification has occurred,
There are two basic types of treaties, insofar as concerns their effectiveness as domestic legislation. Self-executing treaties are effective upon ratification. Non-self-executing treaties require implementing legislation prior to being considered of equal status to statutes and effective as domestic law in the United States."
When is implementing legislation required? One test is to determine whether the treaty itself requires implementation in provisions stipulating the need for legislative action." Another test asks whether the treaty affects powers exclusively delegated to Congress by the Constitution. A treaty cannot alter the Constitution so as to permit another branch of government to exercise a power exclusively reserved to Congress."
It was at first contended that the treaty power did not extend to any of the subjects of legislation in which the House of Representatives had a constitutional right to participate.13
The first conflict between the House of Representatives and the Executive on this issue arose during the administration of George Washington. The Jay Treaty of 1796 contained provisions requiring the United States to indemnify loyalists whose property had been expropriated after the Revolutionary War. The House sought information regarding the Treaty negotiations. Chief Justice Ellsworth, Alexander Hamilton, and various heads of the Executive Departments recommended that the President not furnish the information, since, in their view. The House obligation to vote appropriations arose from the existence of a binding treaty. Thomas Jefferson and Albert Gallatin conceded that the general treaty power was vested in the President and the Senate, but argued that when the general power of one branch conflicts with the specific power granted to another branch, the specific power acts as a limitation on the general power. President Washington refused to furnish the requested papers. The House approved an appropriations bill, but also passed a resolution stating that when treaties contain provisions involving powers vested in Congress, those
H.R. Rep. No. 1629, 92d Cong., 2d sess., 21. (Report of the Committee on Merchant Marine and Fisheries.)
5 Article VI, cl. 2.
United States v. The Peggy. 1 Cr. (5 U.S.) 103 (1801); Foster v. Neilson, 2 Pet. (27 U.S.) 253 (1829); The Head Money Cases, 112 U.S. 580 (1884); Whitney v. Robertson, 124 U.S. 190 (1888).
Holden v. Joy, 17 Wall. (84 U.S.) 211 (1872); Geofroy v. Riggs, 133 U.S. 258 (1890). 8 The Cherokee Tobacco. 11 Wall (78 U.S.) 616, 620 (1871); Doe v. Braden, 16 How. (57 U.S.) 635. 656 (1853); Geofroy v. Riggs, supra, note 7, at 267; Asakura v.City of Seattle, 265 U.S. 332, 341 (1924); Reid v. Covert, 354 U.S. 1, 17 (1957).
Crandall, supra note 2, at section 155, p. 343.
10 Foster v. Neilson, supra note 6, at 314; The Head Money Cases, supra note 6, at 598; Whitney v. Robertson, supra note 6, at 194.
11 Foster V. Neilson, supra note 6, at 314-315.
12 Second Restatement of the Foreign Affairs Law of the United States (1965) part III, at 432-436;
C. Anderson. "The Extent and Limitations of the Treaty Making Power Under the Constitution." in 1 American Journal of International Law 636, 653-655 (1907).
13 Thomas Jefferson. Manual of Parliamentary Practice, Article 52, cited in Moore, 5 Digest of International Law. 162.
14 Crandall, supra note 2, at 165-171,