NINETY-SEVENTH CONGRESS WALTER B. JONES, N.C., CHAIRMAN GLENN M. ANDERSON, CALIF. EL HUTTO, PLA. IN DONNELLY. MASS. " GENE SNYDER, KY. PAUL M. MC CLOSKEY, JR., CALIF. CHARLES F. DOUGHERTY, PA. Dr. Herbert W. Dodge R.D. #2, P.O. Box 287 Dear Herbert: Thank you for your March 28 letter about the issues raised by Dr. Breecher's testimony at the hearings on March 26, and in our previous correspondence. I understand your concern that the Congress has a responsi- In this situation, I believe it is proper for me to bring these questions to the attention of the President, as you suggest. Enclosed is a copy of my letter to President Reagan. Further than that, my subcommittee will continue to follow the matter in future oversight investigations. NINETY-SEVENTH CONGRESS WALTER B. JONES, N.C., CHAIRMAN MARIO BIAGGI, N.Y. GLENN M. ANDERSON, CALIF. BARA A MIKULSKI, MD. AL MUTTO, FLA. MAJORITY COUNSEL LAWRENCE J. O'BRIEN, JR MINDRITY COUNSEL MICHAEL J. TOONEY The Honorable Ronald W. Reagan Washington, DC 20500 Dear Mr. President: At a recent hearing of the Subcommittee on the Panama Canal and Outer Continental Shelf of the Committee on Merchant Marine and Fisheries of the House of Representatives, testimony of Dr. Charles H. Breecher raised questions as to the constitutionality of appropriations for payment to officers of the United States who are not citizens of the United States. The officers referred to in Dr. Breecher's testimony are the Deputy Administrator, the Panama Canal Commission and four of the nine members of the supervisory Board of the Commission, all of whom are required by the Panama Canal Treaty of 1977 to be citizens of Panama. A copy of Dr. Breecher's testimony is enclosed. Although the 1977 treaty limits appointments to these positions to citizens of Panama, the Panama Canal Act of 1979 (93 Stat. 452) does not include this requirement, and appropriations that would be authorized in the bill introduced by Chairman Jones (HR 5296) are for necessary expenses of the Panama Canal Commission "incurred under the Panama Canal Act of 1979." I recognize, of course, that the administration of the Panama Canal Act of 1979 as well as the expenditure of authorized appropriations is a matter for the Executive Branch, although both are matters of continuing concern to the Congress and this Subcommittee. Accordingly, it appears to be appropriate to refer the constitutional problems raised by Dr. Breecher to you for your consideration and such action as may be appropriate. With best wishes for you, I am Sincerely yours, Сайн бная CARROLL HUBBARD Subcommittee on Panama Canal/ Outer Continental Shelf We would like the American Law Division of the Library of Congress to supply us with their legal opinions on the following Issues: The constitutionality of a Panamanian national holding a high position in a U.S. Federal agency such as the Panama Canal Commission. 2. The legality of the Panama Canal Treaty under international law. 3. Not subvant hou-) The first two issues are usually discussed together in any debate on the Panama Canal Treaty, and have been the subject of testimony before the Panama Canal/OCS Subcommittee of the House Merchant Marine and Fisheries Committee on numerous occasions. (nly) The first issue arises because of language that is contained in the Treaty itself. Article III (3) of the Treaty states that the United States will operate the Panama Canal through the establishment of a U.S. Federal agency (the Panama Canal Comssion). In addition, the Treaty also states in Article II (3) (a) that four of the nine members of the Board of the Commission shall be Panamanian nationals proposed by Panama and appointed by the U.S. Government. Article III (3) (c) further states that a Panamanian national shall serve as the Deputy Administrator of the Federal agency until 1990 when a Panamanian national shall become the Administrator, serving through the year 2000, when the Canal will become the property of Panama. The implementing legislation, P.L. 96-70, reflects these provisions, and states that the President shall nominate and appoint the U.S. and Panamanian nationals. The Board positions are "superior positions" requiring U.S. Board members only to be confirmed by the Senate. It is also interesting to note that Panamanians, being foreign nationals and not subject to our Constitution, cannot be tried for treason against the U.S., and obviously cannot be removed from office for such reason as can a U.S. citizen. 1 It is because of the above, and the fact that the Panamanians cannot bind themselves to our Constitution, as required by Article VI, Section 3 of the U.S. Constitution, that we feel a constitutional question exists. The second question concerns the validity of the Treaty itself. We do not need to outline for you all the provisions of 1 international law required for the ratification of a treaty. Suffice it to say that we are concerned that the Panama Canal Treaty is not legal and binding because the text of the Treaty ratified by the United States included the DeConcini reservation, which was not approved by the Government of Panama. The DeConcini reservation allows the use of U.S. military force in Panama to keep the Canal open, with or without the consent of the Panamanian Government. Instead of including the DeConcini reservation in the text of the Treaty it ratified, the Panamanian Government unilaterally added to its instruments of ratification an "understanding". This understanding nullifies the DeConcini reservation, and was not approved by the United States. If the Treaty is not legal under international law, it is only binding on this country if we approve its provisions in law. This we have done in Public Law 96-70. However, we question whether this Public Law should not be reconsidered if this nation is not legally bound under international law to implement the provisions of the Panama Canal Treaty. If there is some provision concerning the final approval of the Treaty as pertains to the understanding of Treaty provisions by both parties, we would appreciate a detailed explanation. zuv We look forward to hearing from you on these issues at your earliest convenience. Sincerely, Walter B. Jones Dr. FRANCIS. Thank you, Mr. Dodge. Gene Snyder Ranking Minority Member Mr. Harman, can you summarize your statement? Dr. BREECHER. Dr. Francis, may I make one short comment? Dr. BREECHER. The statement of the representative of the State Department—and I wish to repeat that there is nothing personal about this. The Attorney General is the lawyer for the President, and in the words of a distinguished Supreme Court Justice who was a former Attorney General, Justice Jackson, it should never be forgotten that the Attorney General is the lawyer for the Presi dent. But this statement about nonratification, to insert a little bit of levity in these very serious hearings, reminds me that it is just about as if in a marriage ceremony, the priest asks the man, "Do you accept this woman for your lawful wedded wife, to have and to hold and cherish, and so on," and the man replies, "Yes, I do so on the understanding that I may keep my mistress." This is a bit what happened in the Panama Canal treaties—a very clever subterfuge. The Panamanians accepted everything the Senate put in, including the DeConcini reservation, and then they turn around and say, "on the understanding that I may keep my mistress.' Dr. FRANCIS. Thank you for your comment. Mr. Harman, can you summarize your statement? STATEMENT OF PHILLIP HARMAN Mr. HARMAN. Mr. Chairman, my 40-page statement is a lengthy one and covers many pertinent points. However, I will keep it as short as possible. Mr. Chairman and members of the Subcommittee on the Separation of Powers, I am Phillip Harman, chairman of the Committee for Better Panama and United States Relations. I appreciate this opportunity to appear today and present my views on one of two subjects that never before have been discussed in a Senate hearing. One is whether or not the Panama Canal treaties have been ratified in international law, and the other is whether or not nonresident aliens can be civil officers of a U.S. Government agency, such as the Panama Canal Commission. My statement pertains only to the nonratification of the Panama Canal treaties in international law. The last time I appeared before a Senate hearing was on October 11, 1977, when I testified before the Senate Foreign Relations Committee regarding the Panama Canal treaties. At that time, I told the Senate committee that I had been politically involved with Panama longer than any other American, having headed an antiCommunist task force in that country from 1956 to 1968, as well as being related to the founder of the Republic of Panama, Jose Agustin Arango. Since 1968, the year the Panamanian nation was seized by gunpoint, I have devoted all of my time and efforts in regard to Panama and what is happening in that country. Regarding President Reagan and Panama, I briefed the President about Panama on September 18, 1975, just before the start of his 1976 campaign for the Presidency. As it was his first briefing ever on Panama, I found him extremely interested in what I had to say, and in particular about the military seizure of the country that could have a profound effect on the future security of the Panama Canal. Although President Reagan has said since assuming the Presidency that he would honor the canal treaties, he should take into consideration that the hearing today will prove conclusively that the treaties are not ratified in international law. In regards to the documented invalidity of the treaties, I have enclosed in my statement a draft act to amend Public Law 96-70, the law that implements the 1977 Panama Canal treaties. On March 7, 1979, I attended a House Subcommittee on Panama Canal hearing in which Dr. Charles H. Breecher, a jurist and former State Department official, testified about the constitutionality of the prospective Panama Canal Commission. It was at that hearing and with the expert testimony that Dr. Breecher gave that I began to look at the treaties in a different light. In Dr. Breecher's second testimony before the House Subcommittee on Panama Canal on March 26, 1981, he again brought up the question of the illegality of having nonresident aliens on the Panama Canal Commission, as well as the fact that in his documented findings, the Panama Canal treaties have not been ratified in international law. Because of Dr. Breecher's extensive research on the treaties, as well as the pertinent legal points that he brought out before the subcommittee, it led me to begin a personal investigation of my |