Questions for Dr. Charles H. Breecher submitted by Senator John P. East, Chairman, Subcommittee on Separation of Powers, Committee on the Judiciary, United States Senate. (1) (2) (3) (4) (5) (6) (7) (8) (9) On March 26, 1981 you testified before the Subcommittee on the Panama Canal of the Committee on Merchant Marine and Fisheries of the House of Representatives. At that time, you asked to testify under oath. Why did you make that request? Do you know when the Administration and the Department of State first became aware of the legal issues that you raise? Can you give a practical example from the law of contracts to show that there was no meeting of the minds in the ratification of the Panama Canal Treaties and that therefore the Treaties were not ratified at all? What practical reasons were there for the Panamanians to want the United States to set up the Panama Canal Commission with Panamanian members and a Panamanian Deputy Administrator and (later) Administrator? Where does the Panama Canal Act of 1979 generally follow your testimony of February, 1979, rather than the Panama Canal Treaty of 1977? What is the Panamanian position in regard to the two legal issues you raise? The Panama Canal Treaties and the Senators who voted for them have often been criticized in the press. Is this criticism justified in connection with the legal issues you raise? If not justified, how can you explain this apparent How can you be positive that Panama will never accept the Why is your argument and this hearing not an exercise in futility? How can the United States take action to correct the situation, even if you are entirely correct? Do (10) You argue that what you present are documented facts, not a case to be argued by lawyers or scholars as experts. you have documentary evidence to show that competent authorities agree with you on that point (other than, for example, the Panama Canal Act of 1979 and its "section-by CHARLES H. BREECHER 1654 Thirty-Second Street, N.W. (202) 338-5218 & (302) 227-6364 25 July 1983 The Honorable John P. East, Chairman Subcommittee on Separation of Powers, Senate Committee on the Judiciary Washington, D.C. 20510 Dear Mr. Chairman, Pursuant to your letter 21 ngay 1983, I hereby submit my answers to the questions you posed. I also ask that my letter to you 12 July 1983 be made part of the record. With every good wish, Sincerely, Charles CHARLES H. BREECHER ANSWERS TO QUESTIONS FOR DR. CHARLES H. BREECHER, SUBMITTED BY SENATOR JOHN P, EAST, CHAIRMAN, SUBCOMMITTEE ON SEPARATION OF POWERS, COMMITTEE ON THE Re: Question 1 ; Answer I asked to testify under oath on 26 March 1981, before the House Panama Canal Subcommittee, Representative Carroll Hubbard (D-Ky), Chairman, for the following reasons: First, I wanted to make it absolutely clear that I do, not work for anyone, am not paid by anyone and represent no organization. Second, I specifically did not claim the lawyer's privilege to just do the best he can for a client. To put it more bluntly, lawyers can get away with shading the full truth, with misrepresenting the facts or the law, and even, as is said ever so often, with lying for a client. Third, I wanted to challenge Executive Branch witnesses, if any, to also testify as expert witnesses under oath on the legal issues I raised. A challenge not accepted, of course. I want to stress that I have made my deposition 17 March 1983 to the Subcommittee on Separation of Powers, U.S. Senate, under oath also. I did this for the same reasons as on 26 March 1981. And I am grateful to you, Mr. Chairman, and to Senator Thurmond, Chairman of the full Judiciary Committee, for having me granted the privilege to testify under oath as expert witness. Re: Question 2 A On the non-ratification issue, it is clear from President Cafter's diary entry early April 1978, reprinted in his book "Keeping Faith", that his Administration and the State Department became aware of the issue at that time. Ambassador Popper's letter to Mr. Harman 6 June 1982 also refers to "the basic issue which Sol Linowitz tried to paper over". So it is clear that the Administration knew well before 16 June 1978, when they must have seen the Panamanian instruments of ratification, that Panama would not accept DeConcini without modification. On the constitutional issue, State became aware of it at the latest in February 1978, when I gave an address on it to the Washington & Lee Law School, Lexington, Va. The I handed a copy of my address to a member of State Legal Adviser's office then. That address was sent by Senator Roth to State in March 1978, and is referred to in State's reply 12 May 1978 to Senator Roth, part of the record. Re Question 3. A Gladly. Suppose I write you, Mr. Chairman," I will sell you my Seiko In that case, there's no contract. I've made an offer, you have rejected it, and made a counteroffer, which I am at liberty to accept Re: Q 4 A The way the Treaty says the Panama Canal Commission should be set up by U.S. legislation, Panama would for all practical purposes have obtained full control over the operation of the Canal as soon as the implementing legislation had been passed. U.S. There would have been a State Department Representative, at the UnderSecretary level, and an Undersecretary of the Treasury, on the U.S. side, plus three private U.S. members, and four Panamanian members, on the Board of the Panama Canal Commission. Now as a practical matter, the EN four Panamanian members would always have voted bloc, and could be expected to be joined by at least one of the U.S. members, particularly the State Department Representative. Say when the Panamanian workers demanded U.S. wage rates. Or when Canal fees were to be raised. As concerns the D/Administrator and later Administrator, the U.S. President could not even have removed them without the consent of the Panamanian Government. Re: Question 5 A 1. The Panama Canal Act, contrary to the Treaty and pursuant to my Testimony before the Panama Canal Sub-Committee of the House March 1979 provides : 1. That the President can remove all nine members (called Directors) of the Panama Canal Commission, as required by the U.S. Constitution and the Supreme Court's decision in the Myers case (1926). 2. That "No less than five members of the Panama Canal Commission must be U.S. citizens". In other words, the President is free to appoint only U.S. citizens. 3. There is not a word said about the nationality of the Deputy Administrator or Administrator, or about the President having to appoint the nominees of the Panamanian Government "in a timely manner". In other words, the President can appoint anyone he choses as Deputy Administrator or Administrator, subject only to constitutional restraints. He could not e.g. appoint a two-year old U.S. citizen, since a 2 year old cannot swear to support the U.S. Constitution, nor commit Treason. Re Question 6. A: On the non-ratification issue, to the best of my knowledge, Panama has taken the view that the DeConcini Reservation is void in international law anyway (untrue, according to the U.S. State Department), and further that the U.S. has agreed to the three Panamanian unilateral paragraphs. The latter is untrue on the record. Panama has of course avoided discussing that issue in public at least, to the best of my knowledge. On the constitutional issue, Panama apparently considers this to none of its business. Except that Panama has bitterly protested the terms of the U.S. implementing legislation. For instance, in a long letter by then Panamanian President Royo to President Carter in, I believe, early 1980, in which Royo lists some 18 provisions of the Panama Canal Act of 1979 as being contrary to what's in the Treaty. However, Panama has not pressed the Royo letter, to my knowledge. The reason may well be, (but that's opinion on my part only which I have no documentation for that Panama fears that the non-ratification issue might be raised. However, the reason for my foregoing opinion is that Panama would have to argue according the lines of President Carter's statement in his diary April 1978, namely that in order to exercise DeConcini the U.S. would have to denounce both the United Nations Charter and the OAS Charter. exact Not only is that absolutely wrong, but it is the contrary of what President Carter assured at the same time Senator Brooke (R-Mass.) at "the DeConcini Reservation is fully compatible with all our international obligations." S-5735, 18 April 1978. The full relevant passages are contained in my sworn deposition 17 March 1983. The full text of the relevant Carter diary entries is in President Carter's book and in Mr. Harman's statement 6/23/1983. And of course Mr. Dalton has just assured your Sub-Committee that the DeConcini Reservation is in full force and effect, the three Panamanian unilateral paragraphs notwithstanding. It's apparent from the foregoing that Panama would have an impossible task to argue simultaneously that DeConcini is modified or invalid, and that nevertheless the treaties have been ratified with an agreed single text. Re: Question 7 Answer: No, the criticism is not justified in connection with the legal issues I raised. The Senate voted overwhelmingly for the DeConcini Reservation It is certain that without the DeConcini Reservation the Hes would not have been approved by the Senate. As I stated in my deposition, with the DeConcini Reservation an intellectual case can be made for the Canal Treaties. I myself and many other Americans believe it was a poor case, and that events have proven so : *** our troubles in Latin America became much worse after the supposedly all-curing Canal Treaties ostensibly went into effect. But the merits or demerits of the Canal Treaties for the U.S. are not the issue. Accordingly, my there is no contradiction between saying on the one hand that a vote for the Panama Canal Treaties was a poor decision, and at the same time saying that a Senator voting "aye" should still be supported for re-election. And it is a matter of record that I have supported and support Senators for re-election, such as the distinguished Majority Leader xxxhexow-khairman:afxtke:Senate XXXXXXXXXNXXXXXXXXXXXXX who voted for the Treaties. So has Senator Laxalt. XXXXXXXXXXXXXXXXXXX And many other opponents of the Treaties, both Democrats and Republicans ! But let me add that it would be an entirely different matter if any member of Congress should now just want to close his or her eyes, and accept what I call the worst fraud ever committed on the U. S. Senate and the American people. Or if he would violate his oath of office to support the Constitution, |