6. The Republic of Panama shall participate in the. administration of the canal, in accordance with a procedure to be agreed upon in the treaty. The treaty shall also provide that Panama will assume total responsibility for the operation of the canal upon the termination of the treaty. The Republic of Panama shall grant to the United States of America the rights necessary to regulate the transit of ships through the canal, to operate, maintain, protect and defend the canal, and to undertake any other specific activity related to those ends, as may be agreed upon in the treaty. 7. 8. The Republic of Panama shall participate with the The United States of America and the Republic of Senator HELMS. Now these basic principles were even more insidious than the straightforward announcement by President Johnson that he would seek to abrogate the 1903 treaty. For the basic principles implied without ever saying so specifically that the United States did not possess either territory or sovereign powers. Principle 4, for example, begins: The Panamanian territory in which the canal is situated shall be returned to the jurisdiction of the Republic of Panama. The Republic of Panama, in its capacity as territorial sovereign, shall grant to the United States of America, et cetera. The Kissinger-Tack agreement put the prestige of the executive branch behind a statement that is historically untrue, profoundly unconstitutional, and an illegal usurpation of power. Whereas the Johnson announcement implied per se that the United States did have sovereign powers, and that they should be abrogated, the Kissinger statement implicitly denied that the United States had sovereign powers, and hence there was no need to speak of abrogation. This was an attempt to end-run the Constitution and the laws of the United States, and to create an accomplished fact. It amounted to a concession of the major point before the negotiations began. The reaction in the Senate was very intense, as well as in the House. In the Senate, under the able leadership of the distinguished senior Senator from Arkansas, Mr. McClellan, and the distinguished senior Senator from South Carolina, Mr. Thurmond, 39 Senators cosponsored a resolution demanding that our sovereignty remain undiluted in the Canal Zone. As a very freshman Senator a that time, I was proud to be among that distinguished group of cosponsors. Usurpation is a process which seem to blind the usurpers to the consequences of their actions. Now the very set of basic principles, odious as they were, were exactly the sort of thing which should have been brought to Congress for approval before they were signed. If Congress had chosen to adopt those principles as guidelines under article IV, then the negotiators could have safely assumed that they would get a treaty acceptable to the Senate and the House. But the Secretary of State and the President were not willing to take the risk of submitting such basic principles to the Congress for fear that they would precipitate an intense debate resulting in rejection or amendment. They chose, therefore, to ignore article IV, and continue negotiations, despite the fact that a group of Senators large enough to block the treaty had declared themselves opposed to their work. They had set themselves upon a course that may well end in tragedy and disaster. The direction of the negotiations soon became evident. In December 1975 another document emerged-so-called conceptual agreements amplifying the Kissinger-Tack principles. These went into more detail, but confirmed the worst fears of those opposed to the surrender of sovereignty. For although the American people had been promised "practical control" in lieu of sovereignty, it was plain that even "practical control" would vanish almost immediately upon ratification, leaving only a mixed control for approximately 3 years. More recent news accounts confirm the extent to which the conceptual agreement has been carried out in the present negotiations. Mr. Chairman, on December 4, 1975, in a statement on the Senate floor, I made an extensive analysis of the hitherto "secret" conceptual agreements, and I ask unanimous consent that it be made part of my testimony today. It will make very interesting reading, I believe, when final drafts of the new treaty become available. [Senator Helm's floor statement follows:] [From Congressional Record, Dec. 4, 1975] THE PANAMA CANAL NEGOTIATIONS AND ALLEGED ACCEPTANCE BY PANAMA OF U.S. CONTROL Mr. HELMS. Mr. President, recent news reports have suggested that the Panama Canal negotiations have been proceeding smoothly, and that the State Department negotiating strategy has been practical and successful. In recent weeks, State Department spokesmen have been trying to win converts to their theory that the wholesale granting of concessions to the Republic of Panama will increase respect for the United States, and secure the peaceful, safe, and efficient operation of the Panama Canal for generations to come. NEW YORK TIMES ARTICLE Yesterday's New York Times carries one such account. It reports that our chief negotiator, Ambassador Ellsworth Bunker, announced in Los Angeles that Panama had accepted the premise that the United States would retain "primary responsibility" for the operation and defense of the canal in the proposed new treaty. The headline was even more enthusiastic, saying that "Panama Accepts U.S. Control of the Canal." It is not fair to charge Ambassador Bunker with the work of a headline writer, but it is true that the headline gives the general impression which most people would get from reading the article. In fact, Ambassador Bunker is not the only State Department spokesman who has left audiences with the impression that the United States would retain significant control of the canal as a result of the negotiations. But for those who have followed the negotiations closely-or who even read the news accounts of Ambassador Bunker's speeches closely-the story is considerably different. If the United States retains only "primary responsibility"instead of all the attributes of sovereignty which we now exercise-then we have indeed opened the door for the complete loss of any effective control. Indeed, when one speaks of "primary responsibility" one admits that jurisdiction is split into primary and secondary, and a split responsibility inevitably will give way to paralyzing disputes, with nobody really in control. The key is in the Ambassador's admission that there would be "growing participation of Panamanian nationals at all levels in day-to-day operations" of the canal. This means that there would be a diminishing proportion of employees loyal to the United States in the canal organization. The preponderance of U.S. citizen-employees in the canal organization today are in the skilled trades, executive level decisionmaking jobs, and in designated "security positions." These are the categories which have the responsibility for making the canal work. If we do not have employees loyal to the United States in these capacities, there is no way on Earth that the United States can retain control, or even "primary responsibility." SECRET WORKING PAPERS Moreover, I have seen some of the secret working papers which apparently are the basis of Ambassador Bunker's concept of "primary responsibility." I have no reason to doubt the authenticity of these papers. They are written in the special Orwellian rhetoric of the negotiations. They even contain many phrases which the Ambassador and his spokesmen have been using in public. It may be that some of these proposals have been discarded by the negotiating team. If they have been discarded, then the American public deserves a clear statement from the Ambassador as to which ones have been discarded. The truth is that these kinds of proposals make the concept of "primary responsibility," with its connotations of adequate U.S. control, a mockery. What develops from this working paper is a concept of shared responsibility which is incompatible with effective or decisive action, and is geared toward a constant lessening of the small amount of control proposed to the United States for the first 3 years. Indeed, within 3 years' time, U.S. practical control of operations and protection of its employees would be phased out. Thus for only 3 years of the 25-year treaty would our control be anything more than nominal. Let us look at the defense, administrative, and jurisdictional aspects of "primary responsibility" outlined in this working paper: 94-468 O-77-14 JOINT DEFENSE BOARD Defense: A "Joint Board" would be composed of an equal number of Panamanian and U.S. military representatives, whose mission is "consulting and cooperating in all matters relative to the defense of the canal, and planning the measures which shall be taken jointly to insure the security or neutrality of the canal." Thus Panama would be privy to all defense preparations and decisions. Moreover, it would include "the guarantee that Panamanian participation includes the use of manpower and other Panamanian resources with regard to functions, personnel levels, and operation locations." The only defense "control" we would have would be sheer, overwhelming military force. We already have that kind of control without a new treaty. Moreover, "the structural position of the Joint Armed Forces" will be reviewed at 5-year intervals-making all talk of a 25-year treaty meaningless. JOINT CONSULTATION GROUP Administration: The working paper proposes "A Joint Consultation Group" established "on the basis of the principle of parity and at a high governmental level which shall constitute the liaison between the two governments in connection with Panamanian participation in the administration." Their job is to assure "growing participation on the part of Panamanian nationals at all levels and fields of employment in the canal operation, including participation in the drafting of overall policies as well as in daily canal operations." Essentially, the Joint Consultation Group is to draw up affirmative action plans to increase the number of Panamanians at all levels in the canal organization, including hiring, promotion, training, and policymaking to make Panama able to assume full responsibility for the canal administration operation and maintenance when the treaty expires. Obviously, the United States would soon lose control of the policymaking situation, and be unable to protect direct U.S. interests, or the U.S. conception of the international interest. Moreover, the United States would be unable to prevent the perversion of the hiring system into a corrupt “makework" system inextricably involved in the internal politics and political favoritism of the host country. The inefficiency and exorbitant costs would be borne by tollpayers or by the U.S. taxpayers. JOINT POLICE AND CRIMINAL JURISDICTION In addition, there would be a Joint Technical Advisory Commission to make recommendations regarding the integration of electric power, water supply, roads, ports, and other systems of the canal infrastructure into that of Panama. When these recommendations are carried out, the canal would be unable to function if there is a breakdown in services or civil order in Panama. Jurisdiction and "right of use": U.S. jurisdiction would cease, and the Canal Zone and the Canal Zone government would disappear. Panamanian law would be applicable, with certain exceptions not yet agreed upon. However, the following principles would be followed: First. All relations of a private nature will be subject to Panamanian jurisdiction immediately. Second. Panama would assume criminal jurisdiction over Panamanians and third country nations-including U.S. citizens now living in the zone and third country residents of the zone. Lawsuits and legal procedures would be included. Third. For 3 years, the United States would have "primary jurisdiction" in locations whose use has been granted by the Republic of Panama to the United States over all crimes committed by members of the Armed Forces, their dependents, and civilian employees of the U.S. Government. Fourth. Only a limited number of high ranking officials of the United States would enjoy the same privileges and immunities as diplomatic personnel. Fifth. Panama would assume general police authority immediately, but for a 3-year period a system of joint police patrols will be set up in which each member may arrest persons under the police authority of his respective country. What is clear about this is that U.S. citizen-employees would have police protection only on U.S. installations; otherwise, they would be at the mercy of any Panamanian Government. They would be liable to arrest for alleged criminal aetivities by the Panamanian members of the joint police patrols, even on locations granted to the United States under the use-rights concept. For even though the United States has "primary jurisdiction" over all crimes committed in this area, it follows logically that Panama retains secondary jurisdiction, and that if a U.S. member of a joint police patrol failed to arrest a U.S. citizen-employee, the Panamanian member could do so. At any rate, this minimal protection vanishes with the U.S. Federal Court in 3 years, at which time it may be assumed that a good proportion of the U.S. citizens employed by the Canal will also vanish back to the United States. This working paper promises a hollow control. UNRESOLVED ISSUES Perhaps even more significant, however, is Ambassador Bunker's list of "issues yet to be resolved," reported in the New York Times article referred to previously. From a practical, operational standpoint, the issues yet to be resolved are precisely those which matter most to the functioning of the canal organization. If the dubious "control" which Ambassador Bunker claims to have won has been granted at all, it is still only granted in principle, not in practice. And if we are to have "control" we must have it in practice. For example, the Ambassador says we have not agreed on : First, duration of the treaty; second, economic benefits to Panama; third, right to expand the canal; fourth, location of land and water areas needed for defense; fifth, a formula for nondiscriminatory operation of the canal after the treaty's termination. Indeed this account of the Ambassador's speech does not go far enough. There seems to be no progress either on adequate guarantees of the rights of the present employees of the canal, particularly U.S. citizen-employees. There is no firm guarantee that a third nation would be excluded from operating the canal after the treaty lapses, or from interfering should problems arise between the United States and Panama. We do not even have guarantees that our nuclear-powered ships will be able to transit the canal. NO PRACTICAL CONTROL Such things are not mere "unresolved issues." They are vital to the defense and operation of the canal, vital to any practical "control" which the U.S. might retain. If we do not have a fully adequate base structure, for example, we cannot protect our rights. If we cannot agree on land and water facilities that are necessary to the operation of the canal, we cannot even operate efficiently or safely. If we do not have the right to keep third nations out of canal affairs, we are practically asking for trouble. If we cannot keep United States employees satisfied that their proper interests are going to be taken care of, we will lose day-today control by attrition. And if we do not know how long the treaty is to last, what good is any of it? TORRIJOS' ULTIMATUM It is plain that Panama has not yet yielded on anything of consequence. This is clear also from the Spanish language news reports from Panama City and Buenos Aires. These reports say that General Torrijos gave Ambassador Bunker a written ultimatum: Either bring back a serious proposal on the canal negotiations or do not return. According to these reports, Torrijos confirmed the written note to Ambassador Bunker personally. None of this sounds like Panama “accepting" U.S. control, or even U.S. “primary responsibility." It is true that a nameless State Department spokesman denied that Torrijos had sent such a note; yet it is not the first time that Washington spokesmen seem to know less about communications with Torrijos than is known in Panama City. Mr. President, I think a more accurate assessment of the negotiating situation would note that the Panamanians remain intransigent both on a conceptual framework for cooperation, and on the practical aspects of how cooperation would take place. There is a fundamental flaw in the State Department's ap proach of conceding our sovereign rights. Once those rights have been given up, there is no way in which any practical, stable relationship can be maintained. Our whole posture of defensive concessions merely induces the Panamanians to imagine that the United States can be ousted completely from the canal, retaining the United States only in a managerial capacity until Panama believes itself ready to take over completely. |