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COMMITTEE ON THE JUDICIARY

JAMES O. EASTLAND, Mississippi, Chairman JOHN L. MCCLELLAN, Arkansas

STROM THURMOND, South Carolina EDWARD M. KENNEDY, Massachusetts CHARLES MCC. MATHIAS, Jr., Maryland BIRCH BAYH, Indlana

WILLIAM L. SCOTT, Virginia ROBERT C. BYRD, West Virginia

PAUL LAXALT, Nevada JAMES ABOUREZK, South Dakota

ORRIN G. HATCH, Utah
JAMES B. ALLEN, Alabama

MALCOLM WALLOP, Wyoming
JOSEPH R. BIDEN, Jr., Delaware
JOHN C. CULVER, Iowa
HOWARD M. METZENBAUM, Ohio
DENNIS DECONCINI, Arizona

FRANCIS C. ROSENBERGER, Chief Counsel and Staff Director

SUBCOMMITTEE ON SEPARATION OF POWERS

JAMES B. ALLEN, Alabama, Chairman ROBERT C. BYRD, West Virginia

ORRIN G. HATCH, Utah
JAMES O. EASTLAND, Mississippi

WILLIAM L. SCOTT, Virginia
QUENTIN CROMMELIN, Jr., Chief Counsel and Staff Director
JAMES MCCLELLAN, Professional Staf (minority)

PAUL GULLER, Editorial Director
MELINDA CAMPBELL, Chief Clerk

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CONTENTS

CHRONOLOGICAL ORDER OF WITNESSES

Page

13

Leonard, George S., attorney, Washington, D.C.---
Parfitt, Hon. Harold R., Governor, Panama Canal Zone..
McAuliffe, Lt. Gen. Dennis P., commander-in-chief, U.S. Southern Com-

mand; accompanied by Col. James F. Thornton, legal advisor---
Gravel, Hon. Mike, a U.S. Senator from the State of Alaska -----
Murphy, Hon. John M., a U.S. Representative from the State of New York.

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102
124

AFTERNOON SESSION

173

124
44

PREPARED STATEMENTS OF WITNESSES
Leonard, George S., attorney, Washington, D.C-----
Parfitt, Hon. Harold R., Governor, Panama Canal Zone ---
Gravel, Hon. Mike, a U.S. Senator from the State of Alaska---
Murphy, Hon. John M., a U.S. Representative from the State of New York-

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69
117
133

MATERIAL SUBMITTED FOR THE RECORD

PANAMA CANAL TREATY (DISPOSITION OF UNITED STATES TERRITORY)

FRIDAY, JULY 22, 1977

U.S. SENATE,
SUBCOMMITTEE ON SEPARATION OF POWERS,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 8:10 a.m., in room 6202, Dirksen Senate Office Building, Senator James B. Allen (chairman of the subcommittee) presiding.

Also present : Senators Scott and Hatch. Staff present: Quentin Crommelin, Jr., chief counsel and staff director; James McClellan, professional staff (minority); Paul Guller, editorial director; and Melinda Campbell, chief clerk.

OPENING STATEMENT OF SENATOR ALLEN

Senator ALLEN. The subcommittee will please come to order. The Subcommittee on Separation of Powers of the Senate Committee on the Judiciary is convened today to investigate certain constitutional issues bearing on the Panama Canal negotiations. The subcommittee has jurisdiction over matters relating to the separation of power between the three branches of the Federal Government and the division of power between the Federal Government and States.

In this instance, the subcommittee hopes to examine and will seek to determine the proper role of the Congress and of the executive branch in negotiating a treaty with the Republic of Panama for the transfer of certain U.S. territory and property in the Isthmus of Panama.

Inasmuch as section 3, article IV of the Constitution provides that Congress, that is, both houses of Congress, shall have power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," the subcommittee is concerned that serious constitutional issues involving the doctrine of separation of powers are raised by the continued secret negotiations of the executive branch for the disposition of U.S. territory and property in the Canal Zone.

While obviously the Executive has the power to negotiate for the acquisition of territory and property by treaty ratified by the Senate, many serious scholars of the Constitution are of the view that territory or property of the United States may be disposed of only by Congress itself and not simply by the Executive through the treaty ratification process. The subcommittee will, therefore, hear testimony from several respected scholars of the Constitution and from other interested parties in the hope that the subcommittee can reach consensus and report thereon to the full committee.

Additionally, members of the subcommittee are concerned that certain other agreements with the Panamanians for direct financial assistance may be concluded outside the context of the treaty negotiations with the result that any such agreement would not be subjected to the normal treaty ratification process which would be necessary otherwise. The press has mentioned a possible total of $5 billion. Direct financial assistance of that magnitude would, of course, be made subject to specific congressional action through the appropriations process, but if such assistance were, in fact, an integral part of the treaty, then as such it would also be subject to ratification by the Senate.

The subcommittee will, therefore, require testimony on the intentions of the executive branch with respect to separately negotiated financial arrangements with the Panamanians so that the subcommittee can determine whether such negotiations should be addressed by the Senate as part of the proposed canal treaty.

ECONOMIC AID PACKAGE

Press reports during the past week have indicated that officials of the Department of the Treasury, representatives of the Agency for International Development, and representatives of the Department of Commerce have all conferred with the Minister for Economic Planning of the Republic of Panama with respect to an economic aid package for Panama designed to assist the troubled Panamanian economy. Obviously, any such negotiations would tend to bear directly on the negotiations for a new Panama Canal Treaty and could be said to be an integral part of the canal treaty talks.

Accordingly, the subcommittee will seek to establish the extent of those discussions so that the subcommittee may advise the Senate whether such discussions are within the ambit of the treaty negotiations and whether any direct financial aid agreement with the Panamanians ought to be encompassed within the terms of any proposed treaty rather than be reviewed as a separate matter through the appropriations process. In that connection, certainly the subcommittee would desire that the ratification process not be circumvented by denying the Senate an opportunity to pass on the desirability of separately negotiated financial agreements which might be, in actuality, within the ambit of the treaty negotiations and properly within the scope of any proposed treaty submitted to the Senate.

THIRD HEARING SCHEDULED

We anticipate that these hearings will require the 2 days presently scheduled and possibly a third date soon after the Senate reconvenes following the August recess. The subcommittee has already scheduled the testimony of a very distinguished group of witnesses.

I am particularly pleased that the Governor of the Panama Canal Zone, Hon. Harold Parfitt, will appear before us this morning, and that the Commander-in-Chief of the Southern Command, Lt. Gen. Dennis McAuliffe, will later in the morning give the benefit of his own

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