CHRONOLOGICAL LIST OF WITNESSES Breecher, Charles H., former Director, Office of Programing, Planning and Budget, Securities Assistance Bureau, Agency for International Develop- ment; Robert E. Dalton, Assistant Legal Adviser for Treaty Affairs, Office of the Legal Adviser, U.S. Department of State; Herbert W. Dodge, former Special Assistant to the Director of Personnel, Agency for International Development; and Phillip Harman, chairman, Committee for Better Letter, to Senator William V. Roth, May 12, 1978, from Douglas J. Bennet, Jr., Assistant Secretary for Congressional Relations July 12, 1983, to Senator John P. East.. July 21, 1983, from Senator John P. East. Letter, from Orrin G. Hatch, September 4, 1979, to Charles H. Breecher.... Representative Carroll Hubbard, chairman, Subcommittee Panama Canal/Outer Continental Shelf, March 23, 1981, to Her- Herbert W. Dodge, March 28, 1981, to Representative Carroll Hub- Representative Carroll Hubbard, April 7, 1981, to Herbert W. Dodge .. Representative Carroll Hubbard, April 7, 1981, to President Ronald Representatives Walter B. Jones, chairman, and Gene Snyder, rank- ing minority member, May 20, 1982, Committee on Merchant Marine and Fisheries, to Joseph Ross, American Law Division, East, Senator John P.: Statements of: Representative William Carney.. Letter, from David H. Popper, June 5, 1982, to Phillip Harman Article, “New Hearings To Be Held-Panama Canal Treaties Remain Fatally Flawed," by G. Russell Evans, from Human Events, June 4, 1983 Harman, Phillip: Testimony Prepared statement Study, "Why Panama's failure to hold a second plebiscite invalidates the Page 375 376 384 385 143 150 178 200 THE PANAMA CANAL TREATY-CONSTITUTIONAL AND LEGAL ASPECTS OF THE RATIFICATION PROCESS THURSDAY, JUNE 23, 1983 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS, COMMITTEE ON THE JUDICIARY, The subcommittee met, pursuant to notice, at 10:32 a.m., in room SD-562, Dirksen Senate Office Building, Hon. John P. East (chairman of the subcommittee) presiding. Also present: Senators Laxalt and Helms. Staff present: Dr. Samuel T. Francis, professional staff member; Thomas A. Bovard, counsel; Carolyn Blomdahl, chief clerk; John F. Nash, chief counsel, Subcommittee on Criminal Law; and Elizabeth Greenwood, counsel, Subcommittee on Immigration. OPENING STATEMENT OF SENATOR JOHN P. EAST Senator EAST. I would like to convene this hearing of the Subcommittee on Separation of Powers of the Committee on the Judiciary and welcome our witnesses and our guests this morning. We shall try to move along in an expeditious fashion so that all participants have a fair opportunity to present their points of view. I would like to encourage witnesses to summarize as much as they can in an extemporaneous way their arguments. As everyone can understand, all printed statements will be made a part of the permanent record. We will leave the record open for any additional written commentary or questions that may be submitted. So, again, for the sake of moving things along and allowing us to vote, if we are going to have to do that today, and I fear we might, I would again please urge all witnesses to be as concise as they can and, of course, consistent with making their point. I am not asking that they not do that, but keep in mind we are under time constraints. This morning, we have the pleasure of having with us Dr. Charles H. Breecher, Mr. Robert E. Dalton, Mr. Phillip Harman and Dr. Herbert W. Dodge, who will be our witnesses. I would like, without further comment which I would like to make later on this general subject, to turn first to Dr. Breecher because I know he has a schedule that he needs to meet. And I have the great pleasure this morning of noting that to introduce him and to be a part of our opening ceremony here, if you will, I have my very distinguished colleague from the State of Nevada, Senator (1) Paul Laxalt, a man held in highest esteem in this institution, I can report as one of its members. We appreciate his taking the time from a very demanding schedule to come. I believe he wishes to introduce Dr. Breecher, whom he has known for some time, and also perhaps, if he so chooses, to make whatever comments he might feel appropriate at this time. Senator Laxalt, I welcome you this morning. STATEMENT OF SENATOR PAUL LAXALT Senator LAXALT. I thank the chairman. Mr. Chairman, before I introduce my good friend, Dr. Charles Breecher, to your subcommittee, I would like to take this opportunity to commend you for holding this day of hearings. The Senate Judiciary Subcommittee on the Separation of Powers is the most appropriate forum to inquire into the treaty ratification procedure employed by the United States and Panama in connection with the Panama Canal Treaty. The testimony you will receive today will leave the Senate with an official record. We need that record because we really do not have, so far as I know, anything to indicate what has happened since the ratification of the treaties. This record will make available to the public the best possible arguments supporting and attacking the validity of the treaty under international and U.S. constitutional law. I do not claim, Mr. Chairman, and I do not suppose you or the members of the subcommittee claim at this early point, to know the answer to that question. I do know that people for whom I have the highest regard voice serious and persistent claims which cannot be easily discounted. This controversy relative to the Panama Canal treaties has been brewing, as we all know, for many years. While it is not expected that this hearing will resolve the issue one way or the other, it is vitally important, I believe, that the respective roles and responsibilities of the Senate and the executive branch be more clearly delineated. Congress must insure that the ratification process is not left with the substantial ambiguity that currently seems to exist. Mr. Chairman, as I said, I thank you for conducting these hearings, and most especially for inviting my good friend, Dr. Charles Breecher. Senator EAST. Thank you, Senator. Senator LAXALT. Dr. Breecher comes here not only as a concerned American, but also as an expert in international treaty law. During the course of working on the treaty myself, I had occasion to talk to a lot of experts and I must say that I did not find anybody really in the class of Dr. Breecher as a student of treaties generally, and certainly as a student of this particular treaty. His devotion and persistence are largely responsible for this hearing today. I think I can say without fear of contradiction that if it had not been for this gentleman here on my right, this whole matter could have easily been interred and forgotten. But he persisted, despite the fact, as is obvious, that he is in very ailing health. Dr. Breecher came to this country from Austria over 40 years ago. Since that time, he has honorably served this Government in many ways. Not only has he served in the U.S. Army, but he has worked for many years in the State Department and the Agency for International Development. He has written extensively on international and domestic issues, and I might say I consider him a trusted adviser as well as a good friend. Dr. Breecher's health has not daunted his incredible spirit and drive. His analysis is as sharp and incisive today as when we met many years ago. His scholarship and expertise are evident from a close reading of the testimony he is here to present. His rational and considered judgment is that the Panama Canal treaties are invalid primarily because the ratification process was not properly followed. He cites our constitutional law, as well as norms of international law, to bolster this claim. I might say that sometimes we lawyers think in terms of legal doctrines like laches. That does not apply to this man because almost from the outset, he has voiced considerable concern about the validity of that ratification process. And while it has taken a long time to arrive at this hearing, I can say without qualification that it has not been due to any degree of dereliction on the part of this fine American. Dr. Breecher has gone to considerable lengths to delve into the legal and procedural points he will make in his statement. I personally want to thank the chairman of this subcommittee for giving him the opportunity to testify under oath for the record. This record may be of considerable historical significance one day. I applaud Dr. Breecher for his hard work and devotion to the fundamental principles for which this country stands. We are all more fortunate for his having chosen the United States as his home and a life of service to this country as his career. I thank the Chairman. Senator EAST. Thank you, Senator Laxalt. Again, I appreciate your remarks concerning the appropriateness of this subcommittee looking into this subject. We do feel it is within the scope and jurisdiction of a subcommittee of this kind dealing with separation of powers because the bone of contention here is, as Senator Laxalt has indicated, whether there is not a discrepancy between what the U.S. Senate ratified or approved or gave its advice and consent totechnically, that is the correct language-what the U.S. Senate approved or consented to and what instruments of ratification the executive branch exchanged with the Government of Panama. And to the extent that those respective instruments are inconsistent on any point, particularly the very substantial and critical-indeed decisive-point of the so-called DeConcini reservation, obviously we have a separation of powers problem, in addition to the many other problems it might raise in terms of political implications of the wisdom of the treaties to begin with. So we feel this is a very legitimate issue, and I appreciate the Senator's remarks and we are very grateful for his being here. Again, I know he has a very heavy schedule today, so we invite him to remain throughout and to make any comments he wishes. Or, if he must depart, we understand, too, that he has other obligations this morning. So, that will be entirely up to the Senator. |