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PANAMA CANAL TREATY (DISPOSITION OF UNITED STATES TERRITORY)

FRIDAY, JULY 22, 1977

U.S. SENATE,
SUBCOMMITTEE ON SEPARATION OF POWERS,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 8:10 a.m.,

in room 6202, Dirksen Senate Office Building, Senator James B. Allen (chairman of the subcommittee) presiding.

Also present : Senators Scott and Hatch.

Staff present: Quentin Crommelin, Jr., chief counsel and staff director; James McClellan, professional staff (minority); Paul Guller, editorial director; and Melinda Campbell, chief clerk.

OPENING STATEMENT OF SENATOR ALLEN

Senator ALLEN. The subcommittee will please come to order.

The Subcommittee on Separation of Powers of the Senate Committee on the Judiciary is convened today to investigate certain constitutional issues bearing on the Panama Canal negotiations. The subcommittee has jurisdiction over matters relating to the separation of power between the three branches of the Federal Government and the division of power between the Federal Government and States.

In this instance, the subcommittee hopes to examine and will seek to determine the proper role of the Congress and of the executive branch in negotiating a treaty with the Republic of Panama for the transfer of certain U.S. territory and property in the Isthmus of Panama.

Inasmuch as section 3, article IV of the Constitution provides that Congress, that is, both houses of Congress, shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,” the subcommittee is concerned that serious constitutional issues involving the doctrine of separation of powers are raised by the continued secret negotiations of the executive branch for the disposition of U.S. territory and property in the Canal Zone.

While obviously the Executive has the power to negotiate for the acquisition of territory and property by treaty ratified by the Senate, many serious scholars of the Constitution are of the view that territory or property of the United States may be disposed of only by Congress itself and not simply by the Executive through the treaty ratification process. The subcommittee will, therefore, hear testimony from several

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respected scholars of the Constitution and from other interested parties in the hope that the subcommittee can reach consensus and report thereon to the full committee.

Additionally, members of the subcommittee are concerned that certain other agreements with the Panamanians for direct financial assistance may be concluded outside the context of the treaty negotiations with the result that any such agreement would not be subjected to the normal treaty ratification process which would be necessary otherwise. The press has mentioned a possible total of $5 billion. Direct financial assistance of that magnitude would, of course, be made subject to specific congressional action through the appropriations process, but if such assistance were, in fact, an integral part of the treaty, then as such it would also be subject to ratification by the Senate.

The subcommittee will, therefore, require testimony on the intentions of the executive branch with respect to separately negotiated financial arrangements with the Panamanians so that the subcommittee can determine whether such negotiations should be addressed by the Senate as part of the proposed canal treaty.

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ECONOMIC AID PACKAGE

Press reports during the past week have indicated that officials of the Department of the Treasury, representatives of the Agency for International Development, and representatives of the Department of Commerce have all conferred with the Minister for Economic Planning of the Republic of Panama with respect to an economic aid package for Panama designed to assist the troubled Panamanian economy. Obviously, any such negotiations would tend to bear directly on the negotiations for a new Panama Canal Treaty and could be said to be an integral part of the canal treaty talks.

Accordingly, the subcommittee will seek to establish the extent of those discussions so that the subcommittee may advise the Senate whether such discussions are within the ambit of the treaty negotiations and whether any direct financial aid agreement with the Panamanians ought to be encompassed within the terms of any proposed treaty rather than be reviewed as a separate matter through the appropriations process. In that connection, certainly the subcommittee would desire that the ratification process not be circumvented by denying the Senate an opportunity to pass on the desirability of separately negotiated financial agreements which might be, in actuality, within the ambit of the treaty negotiations and properly within the scope of any proposed treaty submitted to the Senate.

THIRD HEARING SCHEDULED

We anticipate that these hearings will require the 2 days presently scheduled and possibly a third date soon after the Senate reconvenes following the August recess. The subcommittee has already scheduled the testimony of a very distinguished group of witnesses.

I am particularly pleased that the Governor of the Panama Canal Zone, Hon. Harold Parfitt, will appear before us this morning, and that the Commander-in-Chief of the Southern Command, Lt. Gen. Dennis McAuliffe, will later in the morning give the benefit of his own

expertise and experience as military commander in the zone. I look forward also to hearing the views of my good friend and constituent, Adm. Thomas Moorer, former Chief of Naval Operations and former Chairman of the Joint Chiefs of Staff.

To outline the constitutional issue posed by section 3, article IV of the Constitution and to state his own opinion of the proper interpretation of that provision in light of other relevant provisions of the Constitution, we are fortunate to have as our first witness, Mr. George Leonard, who took to the Supreme Court of the United States the case of Helms v. Vance, a suit for injunction which sought to establish the exclusive authority of Congress to dispose of the Canal Zone territory.

Senator Scott, do you have an opening statement or comments that you would like to make at this time?

Senator Scott. No, Mr. Chairman, I do not have an opening statement. I think it would be well initially to insert into the record a literal text of the 1903 Treaty under which the canal was constructed. I do ask that it be inserted.

Senator ALLEN. Without objection, a copy of the treaty will be included in the record at this point.

[Material follows:]

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ISTHMIAN CANAL CONVENTION. NOVEMBER 18, 1903.

Convention between the United States and the Republic of Panama for

the construction of a ship canal to connect the waters of the Atlantic and Pacific oceans. Signed at Washington, November 18, 1903; ratification advised by the Senate, February 23, 1904; ratified by the President, February 25, 1904; ratified by Panama, December 2, 1903; ratifications exchanged at Washington, February 26, 1904; proclaimed, February 26, 1904.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.

A PROCLAMATION.

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Whereas a Conrention between the United States of America and the Republic of Panama to insure the construction of a ship car the Isthmus of Panama to connect the Atlantic and Pacitic Oceans, was concluded and signed by their respective Plenipotentiaries at Washington, on the eighteenth day of November, one thousand nine hundred and three, the original of which Convention, being in the English language, is word for word as follows:

ISTHMIAN CANAL CONVENTION. The United States of America and the Republic of Panama being desirous to insure the construction of a ship canal across the Isthmus of Panama to connect the Atlantic and Pacific oceans, and the Congress of the United States of America having assed an act approved June 28, 1902, in furtherance of that object, by which the President of the United States is authorized to acquire within a reasonable time the control of the necessary territory of the Republic of Colombia, and the sovereignty of such territory being actually vested in the Republic of Panama, the higli contracting parties have resolved for that purpose to conclude a convention and have accordingly appointed as their plenipotentiaries,

The President of the United States of America, JOHN HAY, Secretary of State, and

The Government of the Republic of Panama, PHILIPPE BUNAUVARILLA, Enroy Extraordinary and Minister Plenipotentiary of the Republic of Panama, thereunto specially empowered by said government, who after communicating with each other their respective full powers, found to be in good and due form, have agreed upon and concluded the following articles:

ARTICLE I. The United States guarantees and will maintain the independence of the Republic of Panama.

ARTICLE II. The Republic of Panama grants to the United States in perpetuity the use, occupation and control of a zone of land and land under water

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