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J871

1921

Pt.3

COMMITTEE ON THE JUDICIARY

JAMES 0. EASTLAND, Mississippi, Chairman JOHN L. McCLELLAN, Arkansas

STROM THURMOND, South Carolina EDWARD M. KENNEDY, Massachusetts CHARLES McC. MATHIAS, JR., Maryland BIRCH BAYH, Indiana

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 0. EASTLAND, Mississippi

WILLIAM L. SCOTT, Virginia
QUENTIN CROMMELIN, Jr., Chief Counsel and Staff Director

Dr. JAMES MCCLELLAN, Minority Counsel

PAUL GULLER, Editorial Director
MELINDA CAMPBELL, Chief Clerk

ANN SAUER, A88i&tant Clerk
DEIRDRE HOUCHINS, Research Assistant

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CONTENTS

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CONTENTS-Continued

MATERIAL SUBMITTED FOR THE RECORD

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World Maritime Choke Points and United States and Soviet Fleets...

Letter to President Carter from Senator Jesse Helms, dated August 12,

1977, concern with State Department proposals.

"Panama Canal Giveaway: A Latin American's View”, by Mario Lazo...

Bulletin: The American Legion, National Security-Foreign Relations

Division, July-August 1977 -

Fact Sheet: Department of State. Basic elements of the agreement in

principle on the new Panama Canal Treaties...

Proposed treaties: Treaty Concerning the Permanent Neutrality and

Operation of the Panama Canal.

Memorandum from Senator Hatch to the U.S. Senate Steering Committee,

in response to White House memorandum.

Resolution drafted by the Virginia Port Authority. Concern over the need

to protect the continued use of the Panama Canal for free world shipping-

Senate Joint Resolution 51, Virginia General Assembly. Expressed concern

over encroachments upon the sovereignty of the Panama Canal..

Letters to the President of the United States, Members of Congress, and

the Secretary of Commerce, from Edward S. Reed, chairman, Mid-Gulf

Seaports Marine Terminal Conference, and Robert C. Engram, presi-

dent, Gulf Ports Association --

Chapter 5, Presidential Powers: Foreign Relations from Professor Berger's

book “Executive Privilege: A Constitutional Myth”.

Questions submitted by Chairman Allen to the State Department:

Herber J. Hansell, legal adviser to the Secretary of State --

Richard N. Cooper, Under Secretary of State for Economic Affairs.-

Sworn statements of Leland L. Riggs, Jr., retired Special Agent in Charge

of the U.S. Drug Enforcement Administration, dated December 1, 1977.

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THURSDAY, SEPTEMBER 8, 1977

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

Washington, D.C.
The subcommittee met, pursuant to recess, at 10 a.m., in room 1318,
Dirksen Senate Office Building, Hon. James B. Allen of Alabama
(chairman of the subcommittee) presiding.

Present: Senators Scott of Virginia and Hatch of Utah.
Also present : Senator Jesse Helms of North Carolina.

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

OPENING STATEMENT OF CHAIRMAN ALLEN

Senator ALLEN. The committee will please come to order.

The Subcommittee on Separation of Powers of the Judiciary Committee is convened this morning to continue the subcommittee's investigation of constitutional issues arising out of the new proposed Panama Canal Treaties. I am certain that most of those present this morning are aware of the central constitutional issue under investigation; however, perhaps I should again reiterate the proposition which is the focal point of this inquiry.

Article IV, section 3, of the Constitution of the United States provides that 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 power given to Congress in that clause appears to be exclusive and, if it is an exclusive power, then the Executive is prohibited from entering into a treaty disposing of U.S. territory except with express congressional authorization; that is, statutory authorization by both Houses of Congress in addition to separate Senate approval through the treaty ratification process.

Additionally, members of the subcommittee are also deeply concerned that the executive department has reached certain financial agreements with the Panamanians for substantial financial assistance outside of the context of the provisions of the treaty itself. These financial agreements, if not embodied in the treaty, will not be subjected to the normal treaty ratification process which would otherwise be the case.

The subcommittee has further learned that the congressional appropriations process itself may in large measure be circumvented in the implementation of proposed financial arrangements with Panama but that, nevertheless, substantial sums of money are proposed to be made available to Panama by unilateral executive branch action. The subcommittee will therefore diligently continue to seek testimony on the full intentions of the executive department with respect to separately negotiated financial and banking arrangements with the Republic of Panama.

EXECUTIVE AGREEMENTS Finally, in continuing its work, the subcommittee will seek to determine the extent to which the operative provisions of the executive department proposal are embodied in the executive agreements rather than in actual treaty language. There are, of course, in fact two treaties: the proposed Panama Canal Treaty itself and an additional treaty which purports to provide for the neutrality of the Panama Canal. Unfortunately, these treaties are in no way to be construed as the whole agreement.

Both treaties are accompanied by very lengthy executive agreements which actually contain the substance of the deal struck with Panama. These executive agreements, once implemented, would be subject to renegotiation and revision and we find this astonishing—every 2 years.

This subcommittee, I am sure, shares a concern of many that Congress will relinquish forever any control over this country's relation with the Republic of Panama if the executive department is authorized to enter into a plenary relation with Panama based not, in reality, on treaty law but rather based on executive agreements authorized by treaty law but subject to change at the whim of the Executive. In short, the subcommittee wishes to establish by its inquiry the extent to which the Executive would be given a blank check by the new proposed treaties to amend, interpret, abrogate, or replace entirely the lengthy accompanying substantive executive agreements.

I have just returned from Alabama where in the course of the August recess I met with citizens in 37 counties. These meetings were held in most instances at the county courthouses; they were widely announced and well attended. One topic was invariably raised. Notwithstanding drought, unemployment, inflation, high energy prices, low farm prices, and a host of other subjects which could easily have been foremost in mind, virtually every group I encountered wished to know the answer to one question: Would the United States, in fact, give away the Panama Canal Zone? Of the thousands I spoke with, almost no one favored a policy of surrender in Panama.

Many are saying that the people need education and that with education they will come to support the giveaway of the American canal in Panama. In my judgment, the true state of affairs is the exact opposite. Further knowledge will only strengthen the resolve of the people; and, in my judgment, our all-wise Federal Establishment could itself well stand some education from the American citizen who has the wisdom to see the obvious fact that the Panama Canal is vital to the economic stability and military security of the United States,

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