pute which must be governed by the congressional grant. There is no reason why an international treaty should be applied when it simply works to take away land from the United States in order to give to Texas more land than it ever claimed historically. We cannot believe that Congress intended such a result."-United States v. State of Louisiana, 389 U.S. 155, 160-1, 88 S. Ct. 367, 370 (1967). Form of action The parties having standing and the subject matter being one within the Court's proper cognizance, the principal question is whether the relief prayed is appropri ate to the case. Basic authority arises under 28 U.S.C. § 2201 which provides that declaratory judgments may be issued by ". . . any court of the United States, The factors to be considered in exercising this jurisdiction were set out in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512 (1941). "Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. See Aetna Life Ins. Co. v. Hayworth, 300 U.S. 227, 239-42, 57 S. Ct. 461, 463, 464, 81 L.Ed. 617, 108 A.L.R. 1000." This analysis has been repeated in many cases, Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956 (1969) Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209 (1974), Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712 (1973), Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 St.Ct. 1507, 1515 (1967), State of Florida v. Weinberger, 492 F.2d 488 (5 Cir. 1974) and is concurred in by the writers, 3 Davis Adm. Law Tr. c. 21 (1958), Jaffe Judicial Control of Administrative Action, C. 10 (1965). The question raised by the complaint is substantial in law. Apart from the property interest of the United States in the Canal, and supporting structures, housing areas, railroads, government buildings and the like, this Court in Wilson v. Shaw, 204 U.S. 24, 33, 27 S.Ct. 233, 235 (1907) held that the Zone is itself a possession of the United States, the 1903 treaty being described in 1948 as a lease "extending until agreement for abrogation or unilateral abandonment by the United States", Vermilya-Brown Co. v. Connell, 335 U.S. 337, 383-4, 69 S.Ct. 140, 144, Acc. U.S. v. Husband R. (Roach), 453 F.2d 1054 (5 Cir. 1971) cert. den. 396 U.S. 935 (1972), Lucas v. Lucas, 232 E.Supp. 466 (D.C.C.Z., 1964) Huasteca Petroleum Co. v. United States, 14 F.2d 495, (E.D.N.Y. 1926), 26 Op. A.G. 376 (1907). Starting at least with United States v. Fitzgerald, 40 U.S. 785, 15 Pet. 407, 421 (1841), it has many times been held that the power to dispose of property of the United States is exclusively in the competence of Congress under the property clause, Osborne v. United States, 145 F.2d 892 (9 Cir. 1944), Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481 (1951), Tugade v. Hoy, 265 F.2d 63 (9 Cir. 1959). The power so given to Congress is "unlimited", Sierra Club v. Hickel, 433 F.2d 24, 28 (9 Cir. 1970) aff'd. 405 U.S. 727, 92 S.Ct. 1361 (1972) and includes authority to prescribe the times, conditions, and mode of transfer and selection of the recipient Gibson v. Chouteau, 13 Wall. 92, 99 (1872), Irvine V. Marshall, 20 How. 558 (1858), Emblem v. Lincoln Land Co., 184 U.S. 660, 664, 22 S.Ct. 523, 525 (1902). As the allegations of the attached complaint show, the controversy is also substantital in a factual sense, in that it involves the rights of the United States in approximately three hundred and twenty-five square miles of land, title to improvements whose replacement value is estimated to be in excess of three and a half billion dollars, the repeal by implication of the Canal Zone Code and other statutes which provide the laws for the Zone, the existence of its courts and the complex administrative organization which has heretofore been created by the Congress, and any Constitutional recourse by more than 3500 citizens resident in the Zone who will be involuntarily transferred to Panamanian jurisdiction. The issue also involves adverse legal interests in that question necessarily presents a choice between mutually incompatible interpretations of Constitutional authority by the branch of government represented by the parties plaintiff and defendant. Plaintiffs assert an exclusive Constitutional disposal power in Congress. The defendants assert a concurrent Constitutional disposal power in the Executive, offering in principal support a summarization of authorities in an opinion of the current Attorney General, Op. A.G. August 11, 19773 to that effect. Of greater practical importance, however, to the question of adverse legal interests, is that the agreement with Panama has now been signed by the President and has been sent to the Senate for ratification as a treaty. 3 Contra, 34 Op' A.G. 320, 322 (1924). The final question is whether the current situation is also one of sufficient immediacy and reality to warrant the issuance of a declaratory judgment at this time? Admittedly, three months ago it was judicially held that it was not. A prior action raised the same legal question in the United States District Court for the District of Columbia following President Carter's announcement that a treaty proposal to deliver the Canal and its citizenry to the Republic of Panama would be completed and presented to the Senate by June, 1977 (Civ. No. 77-0083). The District Court denied an injunction to maintain the status quo and dismissed the case without reaching the merits, holding that the action was premature, the nonstate plaintiffs lacked standing, and the issue was probably a political question. On appeal (Nos. 77-1226 and 77-1295) the District Court was affirmed on the stated ground that the matters presented were not ripe for consideration. On June 20, 1977, this Court declined review (No. 76–1576). The decisions of the lower courts are reprinted in that petition. The situation has now matured and the former areas of doubt have been resolved by publication of the proposed treaty language, (State Dept. Sel. Docs. Nos. 6, 6A, 6B). The signed agreement is now before the Senate for ratification, and that body has referred it to its Commitee on Foreign Relations for review (123 Cong. Rec. S. 15144. Sept. 16, 1977). The adverse positions of the parties have therefore been defined and the Senate is preparing to act on a treaty proposal which-if plaintiffs' contentions are valid-would be Constitutionally void regardless of ratification or rejection. Nor is it an objection to ripeness at this time that the proposed agreement does not become effective until six months after an exchange of ratifications. In a similar situation, as this Court pointed out in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612 (1976), ripeness exists where an "all but certain exercise" of authority can be shown, 96 S. Ct. at 681. Conclusion A proper case for the exercise of the Court's original jurisdiction is presented. The interest of the States is sovereign in character, the issues are defined, the problem is immediate, the subject matter is justiciable and substantial, and the relief prayed is a traditionally appropriate judicial method of resolving the question. Leave to file the complaint under the Court's original jurisdiction should be granted. Respectfully submitted, WAYNE L. KIDWELL, Attorney General for the State of Iowa. Attorney General for the State of Louisiana. OCTOBER 13, 1977. [From the Congressional Record, Oct. 13, 1977-S17163] THE PANAMA CANAL AND ALLEGATIONS OF DRUG TRAFFICKING Mr. DOLE. Mr. President, Panamanian strongman Gen. Omar Torrijos will be in Washington tomorrow to meet with President Carter. Reportedly, they will discuss the proposed Panama Canal treaties, and the recent controversy circulating around differing interpretations of treaty language. There is another serious matter which has just come to my attention, which I hope will also be clarified during Torrijos' visit, or soon afterward. This involves allegations of direct involvement by General Torrijos and other members of his family in drug trafficking in the United States and elsewhere, that the distinguished Senator from Alabama (Mr. Allen) alluded to with regard to one incident. Now, obviously the President of the United States cannot select the individual with whom he conducts his negotiations in international affairs. By the same token, however, our executive branch does have some choice in what is hidden or revealed to the public, which could bear upon those negotiations. It is my understanding that a number of documents now in the possession of the U.S. Drug Enforcement Administration have been "classified," which bear directly upon allegations of drug trafficking by General Torrijos. Those documents should be immediately turned over to the U.S. Senate for examination. I am told that there is presently within the files of the Drug Enforcement Administration a large volume of materials bearing upon this matter. I have been given a list of 44 specific file codes containing information on the subject. I am especially troubled to learn that an overt attempt was reportedly made to keep this information out of public purview by moving the intelligence files to another location for temporary safekeeping. I am advised that, just recently, perhaps to avoid embarrassment, these files were returned to the Drug Enforcement Administration's control office. Mr. President, I do not like to jump to conclusions, and I do not necessarily believe everything I am told. However, I do consider the source of this information to be sufficiently reliable to give me deep concern about the nature of the Panamanian leader with whom we are dealing. Suggestions that he-perhaps in conjunction with Fidel Castro-is involved in an illegal international drug operation is cause enough for concern. The allegation that these drugs are being funneled directly into the United States, and that General Torrijos himself may be profiting directly from drug sales, makes the matter all the more serious. SENATE SHOULD HAVE INFORMATION At the very least, I believe the Justice Department-and the Drug Enforcement Administration in particular-should make its findings on this matter known immediately to the appropriate Senate committee or committees, which can then decide what effect the information might have on ratification of the Panama Canal Treaties. I believe the Subcommittee on Separation of Powers, of the Senate Judiciary Committee, would certainly be entitled to take a look at this material, along with the Senate Foreign Relations Committee, and perhaps others. Mr. President, I am calling upon the administration to address this serious matter immediately. I believe that President Carter should discuss these allegations with General Torrijos and request a full explanation. There is no better time for this than tomorrow. In addition, it would be useful for the President himself to examine the files in possession of the Drug Enforcement Administration, and approve their release to appropriate Senate panels for full investigation. If any portion of these allegations are found to be accurate, I hope that the necessary information will be made available to all Members of Congress, and to the American public before the Panama Canal Treaty ratification process is completed. Mr. President, as the Senator from Kansas indicated, the list containing DEA file references contains about 44 different references. In an effort to be totally cautious, and after making investigation as to whether or not the numbers themselves were classified, and being told that perhaps they were not, but to be on the safe side, after having experienced just last week with the State Department, the Senator from Kansas will not make public the reference numbers, but the Senator from Kansas does believe it is appropriate, at the proper time, to turn these references over to the proper committee, and I would hope that, based on the information available, the files could be subpenaed or otherwise brought before the approriate committees in Congress, perhaps in executive session, and looked into very carefully. But it seems to me that if someone were to ask, "How does this bear on the ratification of the treaties," the Senator from Kansas might state that if these allegations were true, it would have a great bearing on the ratification of the treaties, because it involves one of the principal participants and that individual's integrity. So I would hope, based upon the statement that, come tomorrow, the President will discuss this matter, if he checks with the DEA, and finds the information to be accurate, with General Torrijos. Mr. President, I yield back the remainder of my time. Mr. BAKER. Mr. President, I once again commend the Senator from Kansas for his diligence and care in pursuing aspects of this matter which is of so much interest to us. The remarks made by him today, and earlier by the distinguished Senator from Alabama, are in excess of the information available to me, but I would like to add to the record that part that I know, so that he will be seized with what I know, and can determine where to go from here. The majority leader is present and can corroborate what I am about to say, but I see no reason for not reporting to the Senate that the Attorney General briefed us in connection with certain matters in this respect, and he briefed the chairman and the ranking Republican member of the committee in certain respects. I have suggested to the Attorney General, and it is my understanding that he agreed, that the appropriate jurisdictional committees of the Senate be briefed on such matters as might be relevant to the subject of their consideration. Mr. President, the only reason I say this is to let the Senator from Kansas know that there has been a contact with the administration, and that it has been my insistence, and I believe that of the majority leader as well, that the Senate be informed on whatever aspects may be relevant, if any. I do not know the details of the transactions or the allegations. I cannot speak for their truthfulness. But I thought, in view of the interest and importance of the matter, the Senate ought to be kept fully informed. Mr. ROBERT C. BYRD. Mr. President, the minority leader has correctly stated the situation as to our being briefed, and we have been assured we would continue to be briefed as to any further information which comes to the attention of the Attorney General upon this matter. Mr. BAKER. Mr. President, I would only reiterate one part, to make sure it is entirely clear: It was at our insistence that the Department of Justice make sure that the relevant commitees of the Senate be fully apprised of whatever information might be relevant to our consideration of relevant matters. Mr. DOLE. Mr. President, I appreciate being informed that the matter is moving along. Does that include information as to the allegation that the files may have been removed and then returned? Mr. BAKER. No. I prefaced these remarks by saying that the Senator from Kansas had more information than I had, and it was to that that I was referring. Mr. ROBERT C. BYRD. Mr. President, I want to say that I have full confidence in the intention of the Attorney General of the United States to bring to our attention the full relevant information, as he has done, and I have no doubt that he will continue to bring to the attention of the joint leadership and Senate committees any information that he has bearing on this matter. Mr. President, I yield the floor. Mr. THURMOND. Mr. President, I commend the able Senator from Kansas for bringing this information to the Senate. It would be my hope that the files referred to by him, that contain such information, would be made available by the administration to the Separation of Powers Subcommittee of the Committee on the Judiciary. I feel that these charges are too serious to be passed on lightly. I feel that this matter should be gone into carefully, and that there should be no action on the part of the administration to withhold files. I do not predict that they will, but I feel very strongly that the information in these files should be made available to the Members of the Senate. Mr. HATCH. Mr. President, as ranking minority member of the Separation of Powers Subcommittee, I also would like to thank the distinguished Senator from Kansas for his enlightenment of the Senate, and I think the country, today. I have had a lot of reports from various sources that the Torrijos regime has been participating for a number of years in drug trafficking. I have, for the most part, chosen to carefully watch those reports, but have not had any particular source that I was willing to rely upon, until today, to give me any indication or information that would lead to reliable or verifiable proof of such trafficking. We have held some extensive hearings in the Separation of Powers Subcommittee, and we have tried to do everything in our power to bring out a variety of matters concerning the Panama Canal on both sides. I commend the distinguished Senator, and I do believe that the administration ought to provide us with these files, ought to provide us with the appropriate people who can testify, and let us know who they are, so that we can once and for all get this matter out in the open, and determine exactly what type of regime we are dealing with, and above all, what kind of a person we are dealing with in Omar Torrijos. The chairman of the committee is here on the floor, and I do not mean to usurp his function by making this particular request, but let me just say this, for myself personally: I feel that it is a very reasonable request, and we ought to be able to look into the matter. I think for the benefit of all Members of the Senate, and certainly for the benefit of the country as a whole. As everyone knows, this Panama Canal problem has become one of the paramount problems of our day. There are differing viewpoints and differing sides to this question, but I would like to see both sides brought out, and not just one side. I am not sure we have had enough brought out on the impact of the treaty side to keep people properly informed. I think the people should know if there is evidence of drug trafficking, and if the evidence you have indicated can be obtained. I think we ought to see it. I thank the Senator from Kansas for his statement on the floor of the Senate, and certainly want to give any support I can to the committee and to the American people. |