It is argued by the proponents of the treaties that their ratification, the elimination of the Canal Zone and the phasing out of the U.S. military presence would enhance the security of the canal and the assurance of its availability to all. In the words of Ambassador Linowitz before the House Committee on Merchant Marine and Fisheries: "The greatest danger to our security interest in the canal would be an effort to maintain and continue the present status." The implication is that it is the U.S. presence which gives rise to the security threats to the canal and that these threats would be reduced if the U.S. military presence were removed, and the canal neutralized.

The argument rests on the fear of sabotage and plots which might result from anti-American feeling generated by our continued presence in the Isthmus of Panama. Removal of our forces may reduce the causes of anti-American feeling, but will not necessarily remove the possibility of sabotage, either by disaffected Panamanians intent on changing their regime or by Soviet-inspired or other anti-American groups desiring to cause damage to the United States at a time of international crisis or in time of war, or would it remove the external threat. Rather, it would increase the probability that any sabotage attempted or any external attack would be successful.

There is also in the argument the underlying assumption that the security interests of the U.S. would be served by permanent neutralization of the canal. It is clear that the security interests of the U.S. demand that the availability of the canal for its own ships be assured and that it be denied to its enemies.

This in turn demands differentiation between use by the U.S. and use by its enemies or potential enemies whenever, in the sole judgment of the U.S. government, the security of the U.S. requires it. Such differentiation is incompatible with the principle of neutrality, would be made illegal by the Neutrality Treaty and after 1999 would be impracticable for the U.S. to effect.

It is argued that in time of war, through resort to "force majeure," the U.S. could denounce or ignore the provisions of the treaty and effectively deny passage to enemy vessels, with or without Panamanian acquiescence or concurrence. (No one has suggested that this might be done in time of tension or in advance of hostilities, to prevent redeployment of potentially hostile ships.) If Panamanian agreement is obtained and as long as U.S. military forces remain within Panamanian territory this would be readily possible. After 1999 it would be necessary to reintroduce military forces, not into U.S. territory where they now are, but into the territory of the Republic of Panama under Panamanian terms and after inevitable delays.

A more likely scenario is one in which Panama would not agree to abrogation or violation of the treaty either in time of war or in periods of international tension which might or might not lead to war but which would demand the taking of prudent measures of increased security, including the denial of passage to potentially hostile ships. This scenario is assured if Panama should be under a Communist, Communist-oriented or neutralist government, and may occur even with a nominally friendly government in power which may wish to demonstrate its independence of dictation by the U.S.

In such circumstances the U.S. would be forced to take military measures against Panama in Panamanian territory in clear violation of that country's sovereignty, under conditions where our forces stationed there would be at a decided disadvantage.

After 1999 a full-scale invasion would be required which would undoubtedly succeed but might well result in the canal being rendered unusable for a protracted period, since Panama would be in position to damage or destroy key installations, including the locks and Gatun Dam, if it should choose to do so, before U.S. forces could be introduced to provide protection.

It has been maintained by proponents of the treaties that the U.S. will retain the right to intervene at any time to protect the canal. A careful reading of the treaties will disclose that they contain no provision whatsoever for intervention. Article IV of the Neutrality Treaty contains the following wording:

"The United States of America and the Republic of Panama agree to maintain the regime of neutrality established in this Treaty, which shall be maintained in order that the canal shall remain permanently neutral . . ."

Even if this wording were to be stretched to imply a U.S. right to intervene, it could only be claimed to enforced neutrality—since Panama will be the sovereign, and in actual possession of the canal after a certain date, a request for intervention would have to originate with Panama.

[From the Congressional Record, Sept. 7, 1977-S14289]

PANAMA CANAL GIVEAWAY VIOLATES CONSTITUTION

Mr. GARN. Mr. President, during the recess, President Carter announced the completion of negotiations with the Government of Panama over new treaties governing the management of the Panama Canal. Early indications were that the President would press for early ratification of the treaties by the Senate. In my opinion, that would be most unwise, Mr. President, and would lead to almost certain rejection by this body. More recently, the President appears to have moderated his haste, and seems ready to accept the fact that he has a big selling job to do if the American people are ever to accept these treaties.

Since his announcement, I have heard it argued that most Americans do not care very much about the Panama Canal, and are reacting emotionally to an issue which has little real significance. In my opinion, that is both true and not true.

Arguments can be made that our defense is not affected by the canal, though equally good arguments can be made on the other side. Arguments can also be made that the loss of the canal would not have serious impacts on the economy of the United States, though again, there are some serious arguments to be made on the other side, particularly in view of the need to move petroleum from one coast to the other.

But if we call those questions even, there is still a sense in which the American people are quite correct in calling the Panama Canal an important issue. The American people have a surer sense than the State Department does of the importance of psychological factors in international relations. In fact, as far as the State Department is concerned, Panama appears to be a riddle, wrapped in an enigma, stuffed in a burrito. The people recognize instinctively what is at play in Panama. It is a clear-cut case of international blackmail, and the American people do not like it.

It may very well be that the present state of affairs is less than fair to the Panamanians, though it must be said that the original treaty was not negotiated under duress. It may very well be that Panamanians should take a larger role in the operation of the canal itself. It may also be said that there should be less insulation of the American community from the local Panamanian economy and society. But saying all that is quite different from saying that the United States should turn over effective control of the canal to Panama, whatever language is used to disguise what is happening, and allow itself to be pushed out of an area of arguably critical importance to the rest of the world.

Some time ago, I published an article exploring the difference that a positive attitude in foreign policy might make in Panama, and in some other critical areas around the world. I will not now repeat the arguments, except to say that even at this date, if we would stop beating our breasts over the injustice and inequity that abounds in the world, stop accepting responsibility for evils for which we are not responsible, and start asserting ourselves as practically the only example of freedom and justice in the world, we would find it easier to deal with dictators like Omar Torrijos.

I have no doubt that, even now, the Senate can operate on this proposed treaty to make it acceptable to the American people. As it stands, its terms are not advantageous to the United States, and no amount of talking by the Presi dent can make them seem so. Unless it is made advantageous to the United States, and acceptable to our employers, the American people, it will fail, and I will be glad to help it fail.

Mr. President, there is one more aspect of the Panama Canal argument that needs to be made, and since I am not a lawyer, I will turn to my colleague from Utah, Senator Hatch. Senator Hatch has written, in the current issue of the Conservative Digest, an excellent analysis of the constitutional arguments against the proposed treaty. As Senator Hatch points out in his article, the proposed treaties will set precedents with implications far beyond the simple for

eign policy defeat they will constitute. Ratification will constitute acquiescence in yet another usurpation of power by the executive. We must think twice before condoning this usurpation.

Mr. President, Senator Hatch's analysis should be read by every Senator prior to the vote. I ask unanimous consent that it be printed in the Record.

There being no objection, the analysis was ordered to be printed in the Record, as follows:

PANAMA CANAL GIVEAWAY VIOLATES CONSTITUTION

(By Senator Orrin G. Hatch)

Our venerable octogenarian, Ellsworth Bunker, veteran of more than 25 years service to the State Department, and Ambassador-at-Large directing negotiations with Panama for a new treaty, says that "the United States does not own the Panama Canal Zone." His assistant, Ambassador Sol Linowitz, claims that "the Panama Canal is a colonial enclave carried over from the early part of this century and which has caused bitter resentment and indeed hostility."

The story of the Panama Canal, as they tell it, is rather like the leftist folklore surrounding the history of capitalism. They would have us believe that "Yankee Imperialists" descended upon a helpless people wrongfully took possession of the isthmus of Panama under the guise of a fraudulent treaty, and built a canal to exploit the Panamanians in the selfish interests of commerce and militarism.

Like the Greeks, Bunker and Linowitz now come bearing gifts. And what are these wondrous gifts? They are the gift of redemption for past crimes and sins against the people of Panama, and the prospect of better relations with our Latin American neighbors. To get them, we need only make a gift of the Panama Canal. Besides, America doesn't really need this Canal, we are told. What we really need, so far as the Canal is concerned, is a clear conscience, a cleansing of the American soul, a real purging of guilt and shame. What better way to do this than by simply giving the Panama Canal away? Just so there are no hard feelings, we'll even go so far as to pay the Panamanians for taking it off our hands.

And so, negotiations begun under Secretary Kissinger in 1974 for a new treaty with Panama are now in their final stages. On July 9, President Carter met with American and Panamanian negotiators in the White House, and stated that he was pleased with the progress of negotiations and with "Panama's very constructive attitude." Expressing hope that the accord could be signed in time to bring it to the Senate before the Fall recess, Carter declared that the United States "will cooperate to the fullest degree to rapidly conclude an agreement for a treaty."

The last remaining obstacle, it appears, is the question of "conscience money." In addition to the territory of the Canal Zone and the canal itself, which are valued at approximately $7 billion, the Panamanians demand $5 billion for our continued use of the canal and the rental of military bases. Forget, if you will, that we already own all of this free and clear, and that the Panamanians already enjoy the highest per capita income of any people in Central America because of the annuities and other benefits derived from our Canal. But $5 billion is apparently too much even for our "hard-headed" diplomats, who have indicated that "more realistic amounts" will have to be agreed upon before the treaty is concluded.

In anticipation of the ratification struggle that lies ahead, the negotiators have been preparing the American people for acquiescence by attempting to discredit the treaty of 1903. One device relied upon rather extensively is the familiar one of rewriting history. The object of this ploy is to lay a moral foundation for the surrender of the Canal by creating guilt feelings and redefining the terms of the original treaty.

Thus the advocates of a new treaty have come up with the novel idea that we don't really own the Canal after all, and must return it to its "rightful owners.” The original treaty, they say, simply transferred "rights" in the Canal Zone rather than full sovereign control-even though such an interpretation flatly contradicts the expressed intent of the 1903 negotiators and the terms of the treaty itself.

They have also expressed the curious view that the Canal Zone is "leased" territory and that the United States pays a "rental" for its use. In truth, of course, the Canal Zone is not a leased area but a “grant in perpetuity" for the per

petual maintenance, operation and protection of the canal. What Panama actually receives is an annuity, not a rental.

Article II of the 1903 treaty grants to the United States "in perpetuity" the use, occupation, and control of the Zone-meaning ownership. The word "lease" does not appear in the treaty with reference to the Canal Zone; but the word "grant" makes nineteen appearances. The phrase "in perpetuity" occurs seven times. The treaty, unlike a lease agreement, contains no provision for renegotiation and no terminal date for the obvious reason that it was intended to be a final and absolute transfer of sovereignty in perpetuity. Though an embarrassment to the negotiators, these are facts which they can easily manipulate, if not ignore; for once the treaty is signed, the question of U.S. sovereignty over the Canal will become moot.

What the supporters of the treaty cannot ignore, however, are the political, military and legal realities of the situation. For one thing, General Omar Torrijos of Panama, who will take possession of the canal, is a dictator. His administration is riddled with Marxists. These realities not only cast a cloud of suspicion on his intentions, but raise the issue of whether the Canal can be insulated against the harsh winds of ideology and political instability which so often sweep across Latin America. If the Canal were in the hands of this petty tyrant, the United States would surely find itself increasingly embroiled in Panama's internal affairs in order to maintain the Canal's security and protect the flow of Commerce.

For another, the American people are overwhelmingly against the giveaway of the Panama Canal. The drumming insistence of the negotiators that we must lie down and be sheared like sheep in the name of Latin American "justice" has not been convincing. More persuasive are American military leaders such as Admiral Thomas Moorer, former Chairman of the Joint Chiefs of Staff, and three former Chiefs of Naval Operations, who recently informed President Carter that "under the control of a potential adversary the Panama Canal would become an immediate crucial problem and prove to be a serious weakness in the overall U.S. defense with enormous potential consequences for evil." Little wonder that recent public opinion polls show that the American people oppose a new treaty by a ratio of 5 to 1. They understand the realities of the situation, even if Bunker and Linowitz do not.

We may be thankful that, many of our representatives in Congress are already antagonized by the Administration's methods and procedures. Resentment is widespread because the members have neither been informed of the substance of negotiations nor asked to authorize them-as is customary. Laboring at their selfappointed task in secrecy, the negotiators have defied our constitutional process. realizing that they lack congressional support and constitutional authority for their actions.

Though largely ignored by the press, constitutional issues of major proportions have recently surfaced in the Senate concerning the new treaty with Panama, adding another wrinkle to the controversy. One issue involves the economic assistance provisions of the treaty. The negotiators have not told Congress how much money will be given to Panama, or whether it will come in the form of a cash grant or loan package. But one matter is clear: a treaty cannot appropriate funds. The Constitution expressly provides that "No money shall be drawn from the Treasury but in consequence of Appropriations made by law." This means that the approval of both houses of Congress, and not just the Senate, must be given in order to validate this type of treaty. The Administration, however, has given no assurances to Congress that it will definitely seek implementing legislation regarding the economic and financial arrangements contained in the treaty.

The other issue is whether the President has the constitutional authority to transfer U.S. territory in the Canal Zone to the Republic of Panama by treaty and by-pass the House of Representatives. In hearings before the Separation of Powers Subcommittee of the Senate Judiciary Committee which I attended, legal advisors to the State Department argued that the President may make such a treaty because he possesses "concurrent" authority with Congress to give away U.S. property. Ratification of the treaty by the Senate, they stated, was all that was necessary. Under cross-examination, however, the witnesses were unable to give me a single valid judicial precedent for this extraordinary and unconstitutional view of the President's power.

My own studies lead me to the conclusion that the proposed treaty with Panama is unconstitutional, unless both Houses of Congress enact accompanying legislation authorizing the transfer of Canal territory. Article IV of the Constitu

tion states, "The Congress shall have the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." The courts have repeatedly ruled that this is an exclusive power of the full Congress. Any authority of the Executive to dispose of U.S. property, therefore, must first be derived from authority given by an Act of Congress.

In light of these considerations, a constitutional crisis is about to erupt between Congress and the President. There is no precedent in American history, to be sure, for the disposal by treaty, and without congressional authorization, of U.S. territory that has been acquired by purchase. Likewise, there is no precedent for the broad and sweeping exercise of the treaty making power which the President is now claiming.

If he persists, and the Senate ratifies the treaty, Americans will lose more than the Canal, more than an important American territory, and more than a vital link in our strategic defenses and international trade. They will have lost another restraint on the powers of the President. "If the Executive is permitted to sidestep the House of Representatives on this vital constitutional issue of disposal of Canal property," John Murphy, Chairman of the House Merchant Marine Fisheries Committee recently observed, "it will try to sidestep the Senate on another issue, and the Judiciary on still another. The very fundamental precepts of the Constitution are at stake and we have already had one instance in which the Executive Branch attempted to expand its powers, resulting in the worst scandal in our nation's history-Watergate."