Dr. FRANCIS. Mr. Harman and Mr. Dodge, as I said a moment ago, why do you not commence making your summaries of your statements, if you would like? By that time, I hope that Senator East will have returned. So why do you not go ahead?

Thank you, Mr. Dalton, again.

STATEMENT OF HERBERT W. DODGE

Dr. DODGE. Thank you, Mr. Chairman, for giving me the opportunity to appear in support of Dr. Breecher with reference to the Panama Canal treaties. In the interest of time, I will summarize my written statement which I have given the committee. I appreciate that you want a short summary.

I am reminded by the State Department's summary of the fellow from Yale who wanted to summarize his years at Yale and he started with the letter "Y," and for half an hour he talked about that, and then "a" a half hour, "l" a half hour, and "e" a half hour. And one fellow said he was glad he did not go to the Massachusetts Institute of Technology.

The issues we are bringing today before this committee are very simple and you do not need a long lawyer's argumentation about them. First, the Panama Canal treaties are not valid because the parties have not agreed to the same treaty texts. In other words, there is no meeting of the minds.

Second, the implementation of the Panama Canal Act of 1979 is unconstitutional because Panamanian nonresident aliens have been appointed as members and as deputy administrators of the Panama Canal Commission, a U.S. Government agency.

It is unfortunate that we are not under oath here because this is not a complicated thing, and as just an ordinary, everyday citizen, I think that, you know, it is necessary to get to the bottom of it. And it would be good if we could clarify these issues that we are raising without going through a lot of rigmarole.

What are the facts of the situation? First, with bilateral treaties, the two countries must agree to the same text to ratify. The text of the U.S. instrument of the Neutrality Treaty gives the United States the right to independently, without Panama's consent and full cooperation, and without restriction, to use military force in Panama to keep the canal open, if necessary. There is nothing ambiguous about this.

The Panamanian instruments of ratification first accept this, and then add unilaterally a three-paragraph-long counterreservation which has been kept from the American people. This counterreservation says in unequivocal language that the United States can use military force in Panama only in self-defense, pursuant to article 18 of the OAS charter, and, further, only in the spirit of cooperation.

Now, if you are going in to keep the canal open against Panama, how can you do that in cooperation? This interpretation must be accepted verbatim by the United States or there is no agreed text.

Now, the fundamental difference between the text as ratified by the United States and the text as ratified by Panama can easily be made apparent. Assume a strike for U.S. wage rates by Panama

the canal. Picket lines cannot be crossed except by giving strikebreakers military protection.

Under the DeConcini reservation, the United States could independently, without agreement or cooperation of Panama, use military force so picket lines could be crossed and the canal operated. But under the Panamanian understanding, the cooperation of Panama would be necessary and then the United States would be helpless.

It would make all the difference in the world with the U.S. public and with our European allies whether the United States had the right, under the treaties, to go ahead with military force against Panama's will and resistance, or whether Panama could maintain that the treaty gives the United States no such right unless Panama agrees.

I think you would agree that this scenario is a most realistic one. Threatening action by Panamanians or Panamanians supported by their Government is a much more likely prospect than the possible seizure of the canal from some outside force.

I would challenge the representatives of the State Department to testify under oath that under such a scenario, United States and Panamanian versions of the treaty would not differ in their application.

Since the Panamanian counterreservation made their consent to the treaties contingent upon a continued adherence to the unamended article 18 of the OAS Charter and to the spirit of cooperation with Panama-the very thing the DeConcini reservation does not require the proper course for our State Department would have been to resubmit the treaty with the Panamanian understanding to the Senate for its approval.

Instead, the record will show that the State Department for a number of years, despite many specific documented written efforts to point out this situation, ignored and did not even acknowledge the existence of the second and third paragraphs in this correspondence.

I could cite one instance of my correspondence, Mr. Chairman, where, as a result, this issue was brought to the State Department's attention by a member of this Judiciary Committee. The State Department delayed for over 6 months and then gave a reply that was either untrue or misleading in every material respect, stating the argument were "familiar to the Department and have been answered in congressional testimony."

Up to this time, where has there been one line of executive branch testimony on this issue?

The fact that the U.S. State Department acted consciously to subvert the Constitution of the United States has been fully attested by the now well-known letter of David H. Popper to Phillip H. Harman of June 5, 1982. This fact was also clearly and explicitly described in an address by former Assistant Secretary William D. Rodgers at the annual dinner of the American Society of International Law on April 29, 1979.

How many Senators, Mr. Chairman, who voted for the treaties only after the inclusion of the DeConcini reservation would agree that the United States could only exercise DeConcini in self de

fense, per article 18 of the OAS Charter, and in the spirit of cooperation with Panama?

To determine whether the State Department is going to persist in covering these facts up that there is a difference in the treaties as ratified by Panama and the United States, I suggest that the representatives of the State Department be required to testify under oath, and that the seven questions listed on pages 3 and 4 of my written statement be put to them. These questions are very simple and can be answered yes or no.

Now, with reference to implementation of the treaties, the simple fact is that appointing nonresident Panamanians to the Panama Canal Commission is a violation of the Constitution. On March 26, 1981, Dr. Charles H. Breecher testified under oath before the Panama Canal Subcommittee of the House. He stated in a forthright manner that the Panama Canal Commission was a U.S. agency, an undisputed fact; that officers of the Commission, whether they were called administrators, deputy administrators, or members, were Federal law officers and, as such, under the U.S. Constitution could not be nonresident Panamanians, who obviously could not bind themselves by oath to support the Constitution or to be impeached for committing treason against the United States.

It should have been simple to deal with the basic set of facts that Dr. Breecher had thus set forth. It was significant that no one arose in the March 26 hearing to challenge Dr. Breecher's assertions.

On March 23, 1981, Chairman Hubbard of the Panama Canal Subcommittee had written me to state that the solution to problems of ratification and the eligibility of Panamanian nationals to hold offices on the Panama Canal Commission were primarily the responsibility of the executive branch and the Senate.

In response to Chairman Hubbard, who apparently accepted Dr. Breecher's assertions, I suggested in a letter dated March 28 that he write to the new President to explain to him these problems and request executive branch action toward some solution.

On April 7, 1981, in a letter to President Reagan, Chairman Hubbard raised the whole matter of constitutionality of appropriations for payments of officers of the Panama Canal Commission who are not U.S. citizens for executive branch action.

It took over 1 year for the executive branch to respond to Chairman Hubbard's request, to which it stated on September 30, 1981, it would give prompt and careful attention. However, no substantive reply came for over 1 year. When it did materialize on May 17, it was merely a transmittal of an unsupportable 1979 thesis of the Justice Department that the Panamanian members of the Commission were not officers of the United States. This position had already been rejected in 1979 by the subcommittee-an action fully endorsed by Congress in the Panama Canal Act of 1979.

Mr. Chairman, over the past several years I have written to a number of Senators and Congressmen to get some resolution on these rather simple and basic issues. One distinguished Senator replied:

It is certainly true that a case can be made that the treaties are null and void, since there is no agreed upon text and because Panama has repudiated the reservations appended by the Senate. But in international relations, legal cases are only as

strong as the political will behind them. I see virtually no sympathy on the part of the administration toward reopening the whole canal debate.

Is this then to be the answer to questions that are fundamental to our free institutions? Are not all Senators bound by their oath to protect the Constitution and guard the Senate's prerogative?

Surely, Mr. Chairman, this subcommittee can once and for all ascertain the answers to two simple questions. Has the United States accepted the Panamanian counterreservations? And, two, does the U.S. Constitution allow the President to appoint nonresident aliens as members, directors, administrators or deputy administrators of a U.S. Government agency?

If the answer to the first question is "No"-and that is what the record shows then there has been no ratification and there are no treaties. If the answer to the second question is "No," then what is to be done about the stonewalling which has persisted over 2 years in an effort to cover up this situation?

Finally, if the answers to these questions are "No," then who is responsible for putting our country in such a position? And now, what does the United States need to do?

Thank you.

[The prepared statement of Mr. Dodge follows:]

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. Cer