Rogers, a paid Department of State consultant on the leadership amendment of April 18, 1978, said that the DeConcini Reservation was subject to the nonintervention principles of the U.N. Charter as outlined in the leadership amendment? Answer. William D. Rogers was not a Department of State consultant on the leadership amendment of April 18, 1978. The Department believes that the United Nations Charter obligations apply and are not inconsistent with the DeConcini Reservation. Question 17. Mr. Robert E. Dalton in his written statement before the Subcommittee on Separation of Powers on June 23 stated on page 7 that the leadership Reservation was clearly intended to clarify the DeConcini Condition. If that is so, what is the Department of State opinion of President Carter's written answer on April 17, 1978 to Senator Brooke's question if under the DeConcini Condition does the U.S. have the necessary options to use military force to reopen the canal regardless of whether the threat to the Canal comes from any source external to Panama or from some source within Panama in which the President replied, "The answer to that question is affirmative." "Thus, the provisions of the Neutrality Treaty are clearly consistent with our existing international obligations concerning nonintervention?" Answer. The Department believes that President Carter's letter speaks for itself. Question 18. What is the Department of State position on the statement of David H. Popper's letter to Phillip Harman on June 5, 1982 that is in the June 23 hearing record, that Panama never accepted the DeConcini Condition? Also, as Mr. Popper was the Department of State official assigned to secure Senate passage of the Canal treaties, what was the ambiguity that Mr. Popper refers to in his letter that was essential in order not to "torpedo the whole Treaty enterprise?" Answer. Panama clearly and explicitly accepted the DeConcini Reservation. The Protocol of Exchange of Instruments of Ratification regarding the Treaty concerning the Permanent Neutrality and Operation of the Panama Canal and the Panama Canal Treaty recites the text of the DeConcini Reservation and all other reservations made by the Senate. The Protocol states: "Said amendments, conditions, reservations and understandings have been communicated by the Government of the United States of America to the Government of the Republic of Panama. Both Governments agree that the Treaties, upon entry into force in accordance with their provisions, will be applied in accordance with the above-mentioned amendments, conditions, reservations and understandings.". Whatever Ambassador Popper's private view may be, it is the Department's position that there is no "ambiguity". Question 19. In President Carter's April 7, 1978 diary that was published in his book, "Keeping Faith," he wrote that Omar Torrijos of Panama could issue a reservation about his understanding of what the treaties mean on intervention in Panama. Is Panama's three paragraph statement in their instruments this reservation that President Carter said Torrijos could issue? Answer. It appears clear to the Department that when using the word "reservation" in his diary entry of April 7, 1978, President Carter was not using the term in a legal sense. The Department is unable to speculate what President Carter may have had in mind when he used the term. Question 20. Mr. Robert E. Dalton in page 8 of his June 23 written statement said that after the exchange of instruments a number of witnesses, including Dr. Breecher, testified before the House Subcommittee on Panama Canal on the questions that were addressed on June 23. Who were the witnesses, excluding Dr. Breecher, who testified about Panama's three paragraph statement that Mr. Dalton refers to? Answer. One of the questions addressed at the June 23 hearing was the question of the constitutionality of appointment by the President of Panamanian nationals as members of the Canal Commission set up under the Treaty. That question was dealt with in 1979 in testimony from Justice Department officials during the course of consideration in the House of Representatives of legislation to implement the Canal treaty. Question 21. Why did the Department of State release the Panamanian draft instruments after the June 23 hearing when they have been requested at five different times from the Office of Legal Affairs, and especially from Mr. Dalton's office for Treaty Affairs, since July 6, 1982? Answer. The Panamanian draft instruments are not regarded by the Department as treaty records. The drafts were not kept with the Department's treaty records. In response to repeated inquiries from Mr. Philip Harmon the Department made extraordinary efforts to search its files. Once the instruments had been found, they were provided. Senator EAST. Thank you, Mr. Dalton. Again, I apologize to all that I must leave, but it is not of my doing; it is the doing of this institution of the U.S. Senate. We are always voting on one thing or another. Whether we will be advancing the cause of the country by this current vote, I do not know. I will let you know later. Thank you. Dr. FRANCIS. Mr. Dalton, you can go ahead and finish your statement. Mr. Harman and Mr. Dodge could read their statements, or make any comments, and by that time Senator East should be back, I hope. Is there a question? Dr. BREECHER. I am sorry. I did not understand, Dr. Francis, how you wish to proceed. Dr. FRANCIS. Mr. Dalton will complete reading his statement, and then Mr. Harman and Mr. Dodge may commence reading their statements. By that time, I hope Senator East will be back and he can ask some questions then, if that is satisfactory. Go ahead, please. Mr. DALTON. Thank you. I should also emphasize that the questions we are addressing today have been carefully considered by both the Executive and the Congress on previous occasions, both before and after ratification of the treaties. In the course of close consultations prior to the exchange of instruments of ratification, the Executive made Panama's proposed instruments available to the Senate leadership and to the Foreign Relations Committee. No objection was raised to Panama's three-paragraph statement, nor was any suggestion made that the full Senate needed to consider that statement. After the exchange of instruments, during the course of congressional consideration of implementing legislation, the same questions we are discussing this morning were expressly raised. A number of witnesses, including Dr. Breecher, testified before the House Panama Canal Subcommittee on the constitutional and international law aspects of the ratification of the treaties. Presumably, had the Congress itself agreed that the fundamental defects existed, it would never have adopted legislation implementing the treaties. Mr. Chairman, there may be instances in which, in its instruments of ratification, a nation with which the United States is entering a treaty relationship seeks substantively to modify a treaty on which the Senate has already given its advice and consent. As I have suggested this morning, that was not, in our view, the case with the Panama Canal treaties. Yet, there may at some point be generally close cases. These, I think, could raise difficult questions closely related to the third issue set out in the letter of invitation for these hearings: the institutional responsibilities of the Executive and the Senate to each other in the treaty ratification process. When does a statement included in instruments of ratification amount to an attempt to modify the legal rights embodied in the treaty? When should the President return a treaty to the Senate for advice and consent? Really, the issue here is who makes the judgment on whether or not the other party has proposed a substantive reservation. Certainly, the courts would accord great deference to the Executive in such matters. Beyond such appropriate deference, however, I believe that the health of our political system would dictate that the proper procedure is the one that has been developed over the years since our constitutional structure was established and the one followed in the case of the Panama Canal treaties: close consultation at all appropriate stages between the Executive and the Senate. Before concluding, let me turn briefly to the remaining issue, that of the constitutionality of the appointment by the President of Panamanian nationals to the Panama Canal Commission. This is not a new issue to the Department. It has been previously dealt with in congressional testimony by the Department of Justice, as well as in State Department correspondence with Members of Congress and the public. The Panama Canal Treaty and the legislation adopted by the Congress in 1979 to implement it provide that four of the nine members of the Board of the Commission will be Panamanians proposed by Panama for appointment to the Board by the President. As we understand it-and the point was made again by Dr. Breecher a few moments ago-the argument is that Presidential appointment of Panamanian nationals to the Canal Commission contravenes provisions of article II of the Constitution governing appointment and removal of officers of the United States. Dr. Breecher referred to testimony at the earlier hearings by the Justice Department's Office of Legal Counsel. The executive branch has consistently found no merit to the constitutional arguments advanced; neither presumably did the Congress, which was confronted with these arguments during its consideration of the implementing legislation, and nevertheless passed a law adopting a system of appointment of Panamanians to the Canal Commission. Rather than entering a detailed discussion of these constitutional arguments, for which I would in any event have to refer the committee to the Justice Department's statement, I would like to submit for the record a copy of the 1979 testimony of the Office of Legal Counsel on this subject. In substance, that testimony concludes that the Panamanian board members are not officers of the United States in the constitutional sense, and that the Canal Treaty may constitutionally give a voice in the control of the canal to persons who are not officers of the United States. I believe that the elaboration of those conclusions in the Justice Department opinion handles this issue of Panamanian appointment to the Canal Commission in a comprehensive manner. I would like to close my statement by simply noting that the Panama Canal treaties have now been in force for well over 3 years. President Reagan has reiterated on several occasions that these treaties are the law of the land and that the United States will continue to abide by them. As I have indicated in this statement, the Department of State does not believe that there is any impediment, legal or otherwise, to the United States carrying through on the President's commit ment. I am grateful to the committee for its attention and would be pleased to answer any questions the chairman may have. Thank you. Dr. FRANCIS. Thank you, Mr. Dalton. Without objection, the Foy memorandum will be entered in the record. [Material submitted by Mr. Dalton follows:] CANAL OPERATION UNDER 1977 TREATY-PART 2 HEARINGS BEFORE THE SUBCOMMITTEE ON THE PANAMA CANAL OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES HOUSE OF REPRESENTATIVES NINETY-SIXTH CONGRESS FIRST SESSION ON H.R. 111, H.R. 454, H.R. 1511, H.R. 1716, PROVIDING A BASIS FOR THE EFFICIENT OPERATION OF THE FEBRUARY 14, 15, 26, 28; MARCH 7, 13, 14, 1979-WASHINGTON, D.C. FEBRUARY 23, 24, 1979-BALBOA, CANAL ZONE Serial No. 96-2 Printed for the use of the Committee on Merchant Marine and Fisheries 44-394 O U.S. GOVERNMENT PRINTING OFFICE WASHINGTON: 1979 |