IN 1942, BY EXECUTIVE AGREEMENT, THE UNITED STATES AGREED TO TRANSFER TO PANAMA THE SEWERS AND WATERWORKS SYSTEMS OF COLON AND PANAMA, AS WELL AS CERTAIN RAILROAD LOTS. THe

TRANSFER WAS, HOWEVER, EXPLICITLY CONTINGENT UPON CONGRESSIONAL
APPROVAL, WHICH WAS GRANTED IN 1943.

IN 1955 THE UNITED STATES ENTERED INTO A TREATY OF
MUTUAL UNDERSTANDING AND COOPERATION WITH PANAMA, WHEREBY
CERTAIN LANDS IN PANAMA AND IN THE CANAL ZONE WERE CONVEYED
TO THE REPUBLIC OF PANAMA WITHOUT COST. THIS TREATY WAS,
BY ITS TERMS, SPECIFICALLY "SUBJECT TO THE ENACTMENT OF
LEGISLATION BY THE CONGRESS", AND SUCH LEGISLATION WAS
ENACTED IN 1957, WHEREUPON THE SECRETARY OF STATE CONVEYED
THE LANDS IN QUESTION TO PANAMA.

I AM NOT CONVINCED THAT THESE TWO PREVIOUS PROPERTY
TRANSFERS TO PANAMA PROVIDE A PERSUASIVE PRECEDENT THAT
PROPERTY DISPOSAL IN THE CASE OF PANAMA REQUIRES CONGRESSIONAL
APPROVAL BEYOND THAT CONTAINED IN THE TREATY-MAKING POWER.
IN THE 1942 PROPERTY TRANSFER, CONGRESSIONAL APPROVAL
WAS REQUIRED BECAUSE THE ARRANGEMENTS WERE MADE BY EXECUTIVE

AGREEMENT. THIS, HOWEVER, IS STANDARD PROCEDURE. NO ONE,
TO MY KNOWLEDGE, CLAIMS THAT THE PRESIDENT HAS THE AUTHORITY
TO TRANSFER PROPERTY COMPLETELY UNILATERALLY.

THE OTHER CASE INVOLVING TRANSFER OF PROPERTY TO PANAMA
DID MAKE USE OF THE TREATY POWER, AND CONGRESSIONAL APPROVAL
WAS REQUIRED. BUT THERE IS NO PARTICULAR REASON TO BELIEVE
THAT THE TRANSFER COULD NOT HAVE BEEN ACCOMPLISHED BY TREATY
ALONE, OTHER THAN THE FACT THAT THE TREATY ITSELF CALLED FOR
FURTHER CONGRESSIONAL ACTION. HOUSE CONCURRENCE MAY HAVE
BEEN SOUGHT FOR ANY NUMBER OF REASONS, EVEN THOUGH IT WAS
NOT STRICTLY NECESSARY.

IN SUMMARY, I WOULD SUGGEST TO THE COMMITTEE THAT THE PREPONDERANCE OF EVIDENCE SUPPORTS THE "CONCURRENT JURISDICTION" THEORY AS THE CORRECT INTERPRETATION OF THE PROPERTY DISPOSAL CLAUSE OF THE CONSTITUTION. THERE REMAINS, OF COURSE, ROOM

FOR DISAGREEMENT. THOSE WHO OPPOSE THE RETURN OF THE CANAL
ZONE TO THE PANAMANIANS WILL TEND TO COME TO A DIFFERENT
CONCLUSION.

IT IS INEVITABLE THAT OUR POLITICAL PHILOSOPHIES
AND PREDILECTIONS WILL INFLUENCE OUR INTERPRETATION OF
CONSTITUTIONAL PRINCIPLE, AND MORE PARTICULARLY OUR INCLINATION
TO PUSH SUCH PRINCIPLES TO THE POINT OF CONFRONTATION.
DON'T DISAGREE IN FACT, THEN WE ARE NOT LIKELY TO DISAGREE IN
PRINCIPLE EITHER. AS THE OLD POLITICAL CLICHE HAS IT, IT

ALL DEPENDS UPON WHOSE OX IS BEING GORED.

IF WE

FOR THAT REASON I WOULD NOW ASK THE COMMITTEE'S INDULGENCE WHILE I EXPLAIN WHY I THINK WE SHOULD NOT DISAGREE IN FACI OVER

THE DESIRABILITY OF TRANSFERRING CANAL ZONE PROPERTY TO THE
PANAMANIANS.

Senator ALLEN. Congressman John M. Murphy, please.

Congressman Murphy, we certainly apologize for the delay, and hope you have not been inconvenienced. I know you are very much interested in this subject and we regard you as an outstanding authority on this issue. We know of your dedication and the study that you made and the hard work that you have done in researching this issue.

We look forward to hearing your testimony.

TESTIMONY OF HON. JOHN M. MURPHY, A U.S. REPRESENTATIVE, FROM THE STATE OF NEW YORK

Mr. MURPHY. Thank you, Senator Allen. I certainly appreciate your kind invitation to be here. Senator Gravel's testimony replowed old ground, as far as I am concerned, but I am happy to hear about the sea-level issue again.

I personally reconnoitered each of the routes under consideration in that inter-ocean canal study which was referenced. In fact, I led the floor fight to try and get the funds-particularly the funds that would permit us to do some nuclear studies, as far as Plow Share was concerned, to expedite construction. Of course, that option was rejected in the course of the study.

Of course, I have studied carefully the movements of oil products to our refinery areas in America. I also understand that the ships that can call at American ports are those ships that can pass and transit the Panama Canal. Seventy percent of the commerce of that canal originates or ends in the United States, and therefore 70 percent of any toll increase or other charges would be paid by the American

consumer.

It is also not the unanimous feeling of leaders in Latin America even though they have signed letters to the effect-that Panama should have the canal. They have paid, in many instances, lip service to their neighbor in deference to the fact that they are a Latin country. I have put that on the record with our canal negotiators in each instance that we have asked them to come before our committee.

I would, however, like to briefly go through my statement and ask that my entire statement be printed in the record. I will go over the relevant points. My purpose here would be to address myself to the jurisdiction of the House vis-a-vis this particular treaty.

Senator ALLEN. Without objection, the statement will be inserted in the record.

Mr. MURPHY. I recall the Bryan-Chamorro Treaty being abrogated and that vote was in the Senate only, but of course that was a treaty right to build an inter-ocean canal in another country of Central America and did not address itself to property rights and property transactions that have been the subiect of the negotiations since 1964. The 1967 draft treaty was rejected by Panama, and not by the United States and incidentally, it was a very favorable treaty. Presently a treaty is under active consideration and, I understand, almost imminent submission by the President to the Congress.

In the 92d Congress I chaired several days of hearings which addressed the question of separation of nowers. They gave firm proof that congressional authorization is required for any transfer or convevance of the lands of the Canal Zone or Panama Canal property to the Republic of Panama.

I understand that Mr. Leonard this morning made an excellent presentation of the legal precedents with respect to this issue.

Let us be unmistakably clear. The United States has title to the Panama Canal and a vested property interest in the Canal Zone. These two facts have been acknowledged not just by many in the Congress today, but by Presidents, Secretaries of State, U.S. Representatives who are involved in the writing and interpretation of the canal treaty, and others.

These facts have even been acknowledged by the representatives of Panama. Indeed, any U.S. official who chose to deny these facts would be contravening the position of successive administrations since the time of Theodore Roosevelt. The basic 1903 treaty with Panama gave the United States property rights. In article VIII of that treaty Panama granted to the United States, and in article XXII Panama renounced, all reversionary claim to all rights, interest, and property connected with previous canal concessions.

Moreover, that treaty either granted to the United States or authorized the taking of all real property in the Canal Zone, and provided for the Land Commission to compensate private landowners. Landholders or landowners subsequently deeded property to the United States and were indemnified. In this way the United States acquired the property rights ranging from fee-simple title to release of squatter's claims. In fact, the total compensation paid to the United States to various entities in connection with canal property purchases amounted to $166,362,173 as of 1974.

Further, the assets of the Panama Canal Organization and military departments and agencies of the U.S. Government in the zone are assets which are property subject to article IV, section 3, clause 2 of the Constitution.

The United States, then, has property interests which can only be disposed of with proper constitutional authorization. Even if the Republic of Panama were to regain sovereign power over the Canal Zone in the new treaty, that would not accomplish of itself the reacquisition of title or rights to the land, assets, and property of the canal.

In behalf of our property interests in the Canal Zone, the United States has paid and paid and paid. Our expenditures have included the initial payment of $10 million and annuity payments made to the Republic of Panama through the 1903 treaty and its modifications; $40 million to the French Canal Company in 1903, $25 million to Colombia in 1922, which we just discussed; and finally, the $7 billion in investment by the United States in the canal and zone.

That squares with the figures that General McAuliffe just stated to the committee.

Having established that the United States is a bona fide property holder in the Canal Zone, what then is the answer to the chief question which the subcommittee is addressing? Can the property rights of the United States in the zone be disposed of by treaty without implementation or authorization by the entire Congress, including the House of Representatives?

The answer, Mr. Chairman, in my view is definitely not. Prior practice, judicial interpretation and the tenets of real democracy do not allow it.

94-468 O-77-9

The Presidential power to negotiate treaties stipulated in article II, section 2 of the Constitution cannot be viewed in isolation. Article IV, section 3, clause 2 of the Constitution is one clear limitation on the article II power. Since it is the responsibility of Congress to dispose of U.S. property, if the President proceeded to negotiate and press for consent to ratification of the treaty, which ceded or transferred U.S. property without congressional consent, then he would be proceeding on an unconstitutional course. As the Supreme Court has said, the treaty power does not extend to what the Constitution forbids. Moreover, treaty agreements which are complex in nature and require implementing legislation, like those which would likely result from the present canal treaty negotiations, are most advantageously handled by the entire Congress and the Executive because of the many interests which are affected.

In addition, the depth of feeling of the people of the United States on the canal issue invites a democratically superior policy of maximum participation of the legislative branch.

Indeed, the people of the United States rightfully feel that their tax dollars and resources are greatly responsible for the Panama Canal, and they want the influence of the House of Congress charged with appropriation of money to be felt.

You may hear the Department of State citing some isolated instances where transfers were made by treaty alone in order to support the proposition that the treatymaking powers are concurrent with that of the Congress with regard to transfer of properties. The fact that Congress chose not to exercise its power in instances involving 43 gallons of whiskey in an Indian treaty, or some very minor parcels of property in Panama does not mean that Congress does not have the disposal power and does not denigrate the powers granted by the clear and unequivocal language contained in section 4, article III, clause 2.

I would urge that the only treaty the Senate ought to accept is one which includes congressional authorization for disposal of U.S. canal property as one of its provisions. Absent that provision, the draft agreement should be remanded to the negotiators. This is especially important in view of the fact that the United States is negotiating with a military dictatorship in Panama whose treaty agreement on property rights could be overturned tomorrow.

If the Executive is permitted to sidestep the House of Representatives on this vital constitutional issue of the disposal of canal property, 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 cannot just brush them off lightly.

We have already had one instance in which the executive branch attempted to expand its powers, resulting in one of the worst scandals in our Nation's history.

In addition to my personal views on this subject, I am appearing today because the House Committee on Merchant Marines and Fisheries, which I chair, must be intensely interested and rightfully insistent on its prerogatives with respect to the canal. If the United States is to be a primary operator of the canal under a new treaty for the next 25 years or so, then the Merchant Marine and Fisheries Committee will presumably have legislative responsibilities for such items