want guarantees that our security and commercial interests will be protected after that period. But, clearly, no international agreement can last forever without being subject to adjustments. To insist on perpetuity in today's rapidly evolving world is not only unrealistic but dangerous. Indeed, it is likely to spawn the kind of hostile environment which will jeopardize the very interest that perpetuity was designed to protect.

Indeed, we are convinced that unless we modernize our relationship, Panamanian consent to our presence will decline sharply and threaten our ability to operate the Canal. In these circumstances our presence could be maintained only at a very high, and perhaps unacceptable, cost. In contrast, a new treaty based on partnership would give us the rights we need, restore the crucial ingredient of Panamanian consent, and strengthen our mutual interest in a well-run and secure Canal.

Senator GRIFFIN. Thank you, Mr. Chairman.

SUEZ CANAL PRECEDENT, U.N. CHARTER PROVISIONS

If I could go back to the point I was seeking to make, referring again to the Suez Canal precedent, I might call attention to President Eisenhower's strong wording following the action by Great Britain:

We do not accept the use of force as a wise or proper instrument for the settlement of international disputes. The action taken can scarcely be reconciled with the principles and purposes of the United Nations to which we have all subscribed. He said that with some reason, because article CIII of the United Nations Charter says this, and I want to call attention to it.

In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

It seems to me that the charge upon Great Britain was much stronger in that treaty than is the vague and uncertain language that is in article IV of this treaty upon which you seek to rely as justification for the military intervention of the United States. It does not really say that. You are referring to some language that says that the United States and the Republic of Panama agree to maintain the regime of neutrality, and you are interpreting it to give us that right.

MILITARY INTERVENTION PROVISIONS INTERPRETATION

I wonder if particularly in light of the United Nations Charter provisions and the Suez Canal precedent, if you would tell me particularly, Mr. Hansell, how you can be so definite in your position that we have the right to intervene militarily on the basis of this language.

Mr. HANSELL. The answer to the last part of that is, Senator, we feel that the language of article IV by which we undertake an obligation to maintain the neutrality regime does give us the correlative right to do what we have committed ourselves to do; namely, to maintain the neutrality of the canal. I think the analogy to the Suez circumstance creates several questions. That was a much different situation, and we would be glad to provide, if you would like us to do so, an analysis of why we think that is not really an apt analogy here. The issues there were much larger, I think, than the question of discharge of an obligation such as article IV undertakes, so I think the circumstances of

the 1956 Suez episode do not really reach to the issue that we think we have here; namely, our right to maintain neutrality based on the obligation we have undertaken with the Panamanians, that we will maintain the neutrality regime.

Attorney General BELL. We committed to Senator Baker a while ago to render a legal opinion on this very question, except he did not give us the precedent of the Suez Canal. He did call our attention to the Rio Pact, and the Organization of American States Charter, plus the United Nations provisions. We are going to try to get into that.

Senator GRIFFIN. I wish that your opinion could be expanded to make reference to the treaty covering the Suez Canal and the applications of Great Britain and of the signatories, and would you please take a look at article CIII of the United Nations Charter, which specifically says that if there is a conflict the United Nations Charter is supposed to prevail?

Attorney General BELL. He cited that to us. We will do that and we will include the Suez Canal, but just so that the matter will not be completely up in the air, I think we ought to have in mind that we have this power now, and we are giving up some of our powers but not all of our powers when we reserve this right to maintain neutrality. That may be the difference. It is our right now, but we will have to develop that to see if that is a logical distinction.

[See end of hearing day, beginning p. 327.]

RIGHT TO TRIAL BY JURY

Senator GRIFFIN. Thank you. I do have another question or two, and I guess in this instance perhaps the question would be directed to the Attorney General. With respect to the military personnel who may be assigned involuntarily to the new Panama Canal Zone, which will be under the control of the Panamanians, if they are charged with serious crimes, they would be governed by the Status of Forces Treaty, which has been negotiated. That Status of Forces Treaty, which I have had an opportunity to examine all the provisions of, purports to guarantee certain rights.

One that is missing, of course, is the right to trial by jury. I guess a person in the military does not have that right anyway. What about a civilian American who is apprehended and charged with a serious crime during this period up to the year 2000? What if he is grabbed by Panamanian authorities? What sort of situation will he be in?

Attorney General BELL. Well, the military has what is tantamont to a jury with a general court martial. When you have a general court martial, you have a number of people there. I think it is something like a jury.

Senator GRIFFIN. Do not say, Mr. Attorney General, that that is the same as a trial by jury. I do not think you mean that three or four military officers, particularly if they are Panamanian military officials, would be the same as a trial by jury in the United States. You don't mean that, I am sure.

Attorney General BELL. Well, I dissented in the Calley case, and I am pretty familiar with the court martial process. The military claims that this is like a jury.

Senator GRIFFIN. I don't think very many Americans would accept a military tribunal as the equivalent of a trial by jury of one's peers. I know I don't.

Attorney General BELL. I would have to file an answer to this. The jury system is in use mainly in countries that follow common law. I think that probably has something to do with the answer. I will have to file an answer in writing to this. You see, all we have been asked to do so far in the Department of Justice is render this opinion, which we filed today, on whether or not the transfer could be done by treaty as distinguished from a general act. We are getting a lot of assignments this morning on other points, and we will take this one on, too. We want to perform our function, which is to render legal opinions formally to the executive department and informally to the Congress, and we will either render an opinion to the Secretary of State or to the committee as it works out.

[The information referred to follows:]

DUE PROCESS GUARANTEES TO U.S. CITIZENS IN PANAMA

(Supplied by Department of State)

The procedural guarantees set forth in Annex C of the Agreement in Implementation of Article III and Annex D of the Agreement in Implementation of Article IV of the Panama Canal Treaty apply to proceedings brought by the Government of the Republic of Panama involving members of the U.S. armed forces and the civilian component, United States citizen employees of the Panama Canal Commission, and the dependents of such persons. These Annexes do not apply to proceedings brought by the United States Government or the U.S. Armed Forces involving such persons.

These guarantees are modelled after similar provisions appearing in Status of Forces Agreements the U.S. maintains with other of its allies throughout the world. Thus, our military personnel in Panama will be in no different position in this respect than they are when they are stationed in most other overseas areas, including the NATO countries. Indeed, the guarantees afforded by the new Treaty would provide U.S. personnel rights they do not currently enjoy in Panama outside of the Canal Zone.

The Department of Defense makes annual reports to the Congress regarding the trial and post-trial confinement of U.S. military personnel tried by foreign courts pursuant to our Status of Forces Agreements.

Trial by jury is not considered to be a fundamental requirement of due process in all cases in the U.S., nor is it assured to our military personnel stationed in other overseas areas. Like Panama, most countries other than those whose legal system derives from the English common-law, do not have provision in their legal system for such a procedure.

Finally, it should be noted that no question of trial of U.S. personnel by Panamanian military tribunals is involved. Sub-paragraph (q) of the two Annexes specifically provides that U.S. personnel are "not to be subject to the application of martial law or trial by military courts or special tribunals.”

[NOTE.-See also opinion of Attorney General Bell at end of hearing day, beginning p. 327.

Senator GRIFFIN. What about the Legal Adviser to the State Department? This question of the legal status of civilians certainly must have been considered in the negotiation of this treaty.

Mr. HANSELL. As you know, there is a list of procedural guarantees on the question of jury trial. I cannot say specifically, Senator, but my impression is the jury system does not exist as we know it in the Panamanian jurisprudence. They use a different system. The court has much more active role, as you know, in developing the evidence,

and they don't use our adversary prosecutor-defense system. I think the ury method as we know it is not part of the judicial system.

Senator GRIFFIN. I think you are absolutely right. I think there s no right. Your answer might also include the fact that of course a ivilian is not required to work there if he does not want to work here and if he goes down there he is going into a situation to be governed by the laws of that country, under this treaty, if it is ratified, which is something everybody ought to know. One thing that concerns ne, and this has been pointed up several times, that a person in the nilitary does not have that choice. He may be involuntarily assigned to the Panama Canal Zone and lose these rights. I think, Mr. Chairman, that my time has expired.

The CHAIRMAN. Thank you, Senator Griffin. Senator Stone?
Senator STONE. Thank you, Mr. Chairman.

INTERPRETATION CONFLICTS

Mr. Hansell and Attorney General Bell, I would like to discuss one or two legal points. Then I have a suggestion as to how we can overcome some of the conflicts of interpretation that have arisen during these first days of hearings. As an example of the conflicts of interpretation, we have the problem of the third lane of locks or the construction of a sea level canal. We have the chief negotiator of Panama explaining that provision in advance of its finalization to the National Assembly of Panama in one way, to the effect that it doesn't even give an option, much less an exclusive option, while the Secretary of State and two American negotiators quite clearly assert and claim for us the exclusivity of the provisions of article XII which relate to a requirement that the only canal that can be built additional to the existing canal during the life of the first treaty would be by the two parties.

Let me read from the final draft just in order to ask you whether that does not illustrate this difficulty. Article XII, section 2(b), says, "During the duration of this treaty, the United States of America shall not negotiate with third states for the right to construct an interoceanic canal on any other route in the Western Hemisphere, except as the two parties may otherwise agree. There is no such language of nonnegotiability or the prohibition of the right to negotiate with regard to Panama. Does that not give rise to the implication that they have not bound themselves? In other words, if you are talking about something as important as the prohibition of negotiation rights, and where we have precluded ourselves from doing it, doesn't that give rise at the very least to an ambiguity about the Panamanian preclusion?

Mr. HANSELL. The language is different, as you have pointed out, but we think the effect of it is to make clear that third countries are excluded.

Senator STONE. All right. Also, in the description by the Panamanian negotiator to his national assembly about something that is very fundamental and which has been the subject of most of our questioning here is the right of intervention. He said "Later there arose the problem of choosing the forum for all the nations of the world

to join the pact. We said it had to be done in the United Nations. They answered they did not much like the idea of the United Nations because of their problems with the nonalined countries. the Third World. the Arabs, et cetera. They proposed the OAS. We agreed, provided that this body only serve as a repository, as the physical location where all the nations of the world would sign the treaty, and that the OAS would have no say in determining which countries would sign.

"This was another cause of discussion. It was solved through a protocol of neutrality, and here are the operative words I want to raise, that famous protocol which has been attacked as giving the United States the right to intervene in Panama by some who apparently read such a description in a Miami newspaper."

Then he goes on, "This protocol is only a note," and so forth. His description that the protocol was attacked as giving the United States the right to intervene at the very least, does it not raise the question of whether the Panamanians are being told that we do have the right to intervene? Doesn't that create, at the very least, an ambiguity? Mr. HANSELL. That passage refers to the protocol?

Senator STONE. Yes. In other words, we have little doubt that we have not only the right but the powers as primary defenders of the neutrality for the next 22 years to intervene to protect. The question really is after that, does the same numbered article of the protocol, which is the post-2000 agreement, give us similar rights that we have under the same number article, I believe article No. IV, in the Panamanian treaty?

Mr. HANSELL. The reason I ask, Senator, is, I am afraid there is such an extraordinary ambiguity in his statement that it is a little hard to respond to it. If he was referring to the protocol, that, as you know, is the instrument that is provided for signature by other nations but not by the United States and Panama.

Senator STONE. But isn't that the neutrality treaty?

Mr. HANSELL. It is an addendum to the neutrality treaty, associated with it. It is a document that is provided whereby other nations can subscribe to the objectives of the neutrality treaty, but it is not a part of the relationship between the United States and Panama.

Senator STONE. All right, I will accept that. Now, when we get to the third point, the third point of four that I raised, that is preferential or merely expeditious rights to the transit of our warships. Without reading again what I have read into the record, Mr. Escobar in effect said that having tried to negotiate for preferential rights the United States dropped those attempts and settled in effect for as rapid a passage as possible. Our military witnesses and the Secretary of Defense could not have been clearer Tuesday when they said this means we go to the head of the line, but the ambiguity arises from the Panamanian point of view.

Finally, and I think most fundamentally of all is the statement which I read into the record by Mr. Escobar that if the canal under Panamanian operation suffers financial reverses, they do not have to keep it open while our Secretary of State could not have been clearer when he said it must stay open because of the fundamental covenant of openness in the treaty, in both treaties.