106. Memorandum From Acting Secretary of State Christopher to President Carter1

Canal Treaties. During last week’s Senate Foreign Relations Committee hearings,2 two broad issues surfaced on which I want to make recommendations today.

(a) Releasing Documents. The first issue concerns Senator Baker’s request that the Administration provide the Committee with all its records concerning the treaty negotiations. He asked specifically for minutes of the negotiations with the Panamanians, cables, internal position papers, and communications between you, Cy and our negotiators.

We have quickly reviewed the historical precedents and can find no case in which the Executive Branch has released to the Senate the full and confidential record of treaty negotiations or the record of its internal deliberations. There are cases, beginning with the Jay Treaty in 1796, in which the President has refused such requests. Over the years, Presidents have endeavored to resolve disputes with Congress over provision of documents by practical accommodations, including summaries and briefings, but have resorted to the exercise of executive privilege where necessary.

It is our recommendation that the Administration should not release the minutes3 of the negotiating sessions. We have a clear understanding with the Panamanians that the negotiations are to be kept confidential and, moreover, the precedent set by their release could cause massive future problems. We also recommend that a stern posi[Page 306]tion be taken against the release of any Presidential documents (e.g., PRM 1).4

As a matter of constitutional practice and conduct of foreign affairs, it is very tempting to turn down Baker’s request. But a flat refusal could lead him to oppose the treaties and might well lead to Senate rejection of them. Therefore, it is recommended that we respond to Senator Baker’s request by the following: (i) offer a full briefing to Senator Baker, on any other Senator, on any aspect of the treaties in which they are interested, (ii) provide summaries, on a confidential basis, of the minutes of the negotiating sessions beginning with the Tack/Kissinger Principles of 19745 where specifically requested, and (iii) provide carefully controlled access to defined categories of negotiating documents such as position papers exchanged between the parties since 1974.6 On the latter two points, we would need to get the concurrence of the Panamanians, and also insist that the summaries and documents not be published.

(b) Interpretation of the Treaties. As a result of questions raised by Senators Baker, Stone and others, it is apparent that it will be important to try to resolve several questions of interpretation which have arisen. Some but not all of these questions arise from the August 19 and 22 statements of Panamanian negotiator Escobar.7 The principal questions appear to relate to neutrality, “intervention,” and expeditious passage.8

I recommend that we begin to explore the possibility of an interpretive exchange of notes, and I met with Ambassador Bunker this afternoon to ask that he and Sol start the process. There are several delicate issues involved. Torrijos may be reluctant to agree publicly to our interpretations prior to his October 23 plebiscite. Moreover, an early exchange would be subject to the risk that new questions of interpretation may arise as Senate consideration of the treaties proceeds, and it might not be possible to have a further exchange which addressed them.9 On the other hand, an exchange of notes after the plebiscite could be open to challenge as not being binding on the Panamanians. [Page 307] After we have given further consideration to these matters of timing and substance and tested the water with the Panamanians, we will make specific recommendations to you.

[Omitted here is information unrelated to Panama.]

  1. Source: Carter Library, Plains File, Subject File, Box 13, State Department Evening Reports, 10/77. Secret. Carter initialed the memorandum and wrote: “Warren.”
  2. See Document 105.
  3. Carter underlined the phrase “should not release the minutes” and wrote in the left margin: “I agree.
  4. See Document 2.
  5. See footnote 10, Document 3.
  6. Carter wrote in the left margin: “Ok, but be cautious & conservative.”
  7. See footnote 3, Document 105.
  8. The questions of interpretation related to the Neutrality Treaty’s determinations that: 1) Panama and the U.S. had the responsibility to assure that the Panama Canal remained open and secure to ships of all nations; and 2) vessels of war and auxiliary vessels of the U.S. and Panama were entitled to transit the canal expeditiously. On October 14, the White House released a Joint Statement of Understanding clarifying the interpretations of these two principles. For the text of the Statement, see Public Papers: Carter, 1977, Book II, p. 1793.
  9. Carter wrote in the left margin: “I need to have these interpretations clarified also.”