Constitutional Aspects of the Chemical Weapons Convention


Mr. Chairman, distinguished members of the subcommittee:

My name is Roger Pilon. I am a senior fellow at the CatoInstitute and the director of Cato's Center for ConstitutionalStudies.

I want to thank Chairman Brown for inviting me to testify on theconstitutional aspects of the Chemical Weapons Convention(hereafter, "the Convention") that is now before the Senate forpossible ratification. Let me also thank Senator Kyl, both for hisparticular interest in this important subject and for theassistance his staff has afforded me.

I should say at the outset, Mr. Chairman, that although I am aconstitutional scholar, I do not count international law among myareas of expertise, much less arms-control law. Nevertheless, theissue you have asked me to address--the Fourth Amendment aspects ofthe Convention--is not, strictly speaking, an issue ofinternational law. Accordingly, I am pleased to give thesubcommittee my thoughts on the subject.

Before doing so, however, I would like to urge that as importantas the constitutional issues that surround the Convention may be,those often technical issues--and the possibility, in particular,of correcting legal problems through changes in the Convention'sImplementing Legislation--should not distract anyone from theequally important policy concerns that surround this treaty. Inthese hearings, that is, it would be easy to focus on the legaltrees and miss entirely the larger policy forest. Yet a treaty isamong the most solemn of obligations a people can undertake. Beforedoing so, therefore, we need to be absolutely clear about whetherthis undertaking is in our interest.

In that connection, I think it appropriate that I state here myown conclusion on that basic question, namely, that as important asit may be to rid the world of chemical weapons--a goal we doubtlessall share--this treaty will neither accomplish that goal nor servethe nation's interests. To summarize my reasons for so concluding,both proponents and opponents of the Convention freely grant thatit establishes the most costly and intrusive verificationprocedures ever contained in an arms control treaty, and that itdoes so because of the relative ease with which chemical weaponsmay be made and the relative difficulty of detecting them--evenunder the far-reaching provisions of the Convention. We are faced,then, with a classic--yet relatively easy--cost-benefit problem.The Convention creates a vast new international bureaucracy thatimposes massive compliance costs on American citizens and firms.Yet the benefit, given the ease with which the Convention may beviolated by bad-faith signatories or ignored by non-party nations,is chimerical. Indeed, we will be lulled into believing thatchemical weapons have been banned and so will be less inclined thanwe would otherwise be to take measures to counter them. Thus, farfrom having increased our security, we will actually be worse offwith the Convention than without it--and poorer besides.

I. Constitutional Problems

Having summarized my basic view of the Convention, let me turnnow to the constitutional questions that are the immediate concernof this subcommittee. In reaching my conclusions on those, I havebenefitted immensely from Professor Yoo's extraordinarily carefulanalysis, which I saw prior to preparing my own remarks. Since Iagree almost entirely with his assessment of the issues, ratherthan repeat that analysis here, let me simply elaborate on a fewpoints on which we might part company--depending on his views onmatters he has not addressed--then add a few points of my own,after which I will address certain contentions that are made onthese matters by proponents of the Convention.

Professor Yoo concludes, and I agree, that "the implementationprovisions of the Convention's verification procedures, ascurrently written, would violate the Constitution and would bestruck down by the Supreme Court because they represent animpermissible transfer of sovereignty from our national governmentto an international organization." (p. 1) On the Fourth Amendmentsearch-and-seizure question, he states that "it is unclear whetherthe Supreme Court would allow on-site inspections to fall withinthe warrantless-search exception to the Fourth Amendment." (p. 14)He goes on, however, to offer powerful arguments for believing thatthe Court would find such inspections unconstitutional. Let meconsider those issues in reverse order, starting with the FourthAmendment question.

A. The Fourth Amendment

The nub of the matter, as Professor Yoo rightly sees, is whetherthe warrantless searches contemplated by the Convention, especially"challenge" or random inspections, would be permitted under currentSupreme Court warrantless-search doctrine. The part of thatdoctrine that is most relevant here pertains to "heavily regulatedindustries." Stated most generally, inspections of such industriesby regulatory authorities must be conducted under a regulatoryscheme that establishes a "warrant-like process" that constrainsthe discretion of the inspecting authorities.

Before continuing, let me state my own view, namely, that the"highly regulated industry" exception to the warrant requirement ispernicious to the core. Read on its terms, the Fourth Amendmentsecures our right against "unreasonable" searches and seizures,which I take to mean not simply searches that are arbitrary orwithout reason--all actions have reasons, after all--butunjustified by the facts. In fact, it is precisely that need forindependent justification that the amendment next addresses when itsays that "no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing theplace to be searched, and the persons or things to be seized."Under the highly regulated industry doctrine, however, the Courthas allowed the political branches to circumvent the amendment'srequirement for an independent and particularized determination ofthe facts that may or may not justify a given search. In essence,enforcement agencies, in pursuit of their regulatory ends, arepermitted to bootstrap themselves out of the Fourth Amendment.

Evidence of that is found in Professor Yoo's discussion of thefive-part test the Court set out in New York v. Burger(482 U.S. 691 (1987)), especially the fourth factor pertaining to aregulatory scheme's provision for "a constitutionally adequatesubstitute for a warrant." As Professor Yoo elaborates:

The law at issue must inform the business operator thatinspections will be made on a regular basis and that they areconducted pursuant to some objective criteria, rather than at thediscretion of the government official. This requirement bothprovides the business owner with notice and limits the discretionof the government. (p. 16)

Although Professor Yoo goes on to argue--convincingly, Ibelieve--that the Convention does not meet even thosestandards--the point of particular relevance for these hearings--Iwant to add that even if the Convention did meet the Court's teston this point, that test is hardly a rigorous reading of the FourthAmendment. The amendment is not really about notice or regularityor even about "objective criteria" as determined by interestedparties, but about the right to be free from searches except whenjustified by particular facts, amounting to probable cause, asdetermined by a disinterested party. Thus, even if the Conventiondid satisfy this and the other prongs of the Burger test,Congress's assent to the Court's inroads on the Fourth Amendment ishardly to be encouraged, for Congress too, after all, is sworn touphold the Constitution.

As Professor Yoo convincingly argues, however, the Conventiondoes not appear to meet three of the five Burgerfactors--at least with respect to private industry that producesSchedule 1, 2, or 3 chemicals or industry involved in "Other"chemicals or non-chemical industrial storage locations (pp. 15-17).Thus, unless the Court were to take an especially deferentialposture in this foreign policy context, I would have to conclude,based on Professor Yoo's analysis, that the broad inspection regimeenvisioned by the Convention would not satisfy the minimalrequirements the Court has established under the FourthAmendment.

In this regard, therefore, I am afraid I do not understandProfessor Yoo's contention that "If Congress were to decide thatwarrantless searches in this area would be constitutional, it couldaddress [the delegation problem, infra] by requiring theSecretary of Commerce or his or her designee to review the[Technical] Secretariat's inspection demand." (p. 13) Perhaps Imisunderstand Professor Yoo's point in this context, but I think itshould be said that it is not up to Congress to declare certainsearches constitutional--not if the separation of powers is to berespected. Indeed, we have the Fourth Amendment we have preciselybecause we came to realize, under our colonial rulers, theimportance of the separation of powers.

B. The Appointments Clause

But it is Professor Yoo's trenchant analysis of the requirementsof the Appointments Clause that marks his singular contribution tothis discussion. In my judgment, with a small addition noted below,he has the argument exactly right: "the Constitution requires thatall exercises of public power by the federal government . . . mustbe performed by authorities ultimately responsible to the people ofthe United States" (p. 6); thus, "officials of other governments orof an international organization are forbidden from performinginspections under the color of federal law, whether expressed by atreaty or by an implementing statute." (p. 7)

In discussing the Appointments Clause, Professor Yoo focuses ontwo objectives of the clause: "to prevent the manipulation ofappointments by any single branch of the national government; andto ensure that appointments were made in a manner that ultimatelywould be accountable to the people of the United States." (p.8) Inaddition to those consequentialist rationales, however, one mightalso draw from the Tenth Amendment by noting that the federalgovernment has only those powers that the people, through theConstitution, have delegated to it. Thus, quite apart from theirbeing able to hold their elected officials accountable--the pointProfessor Yoo stresses--the people have simply never delegated apower to Congress to in turn delegate any of its powers to foreignofficials--much less a power to conduct warrantless searches ofAmerican citizens.

Perhaps because the argument from the Appointments Clause is sotelling an objection to the Convention--and here, of course, I havestated it only in conclusory form--Professor Yoo feels constrainedto offer a method by which the problem might be cured, namely:"Congress could amend the implementing legislation to require thata federal judicial officer issue a warrant before an inspectionteam or an American representative (if Congress accepts my earlierargument) wishes to search a facility." (p. 12) That would changethe Convention's verification procedures materially, of course,possibly opening up the Convention to further negotiations, orrendering its verification procedures, by parity of application,ineffective from our perspective--assuming they are effective tobegin with.

There appears, in short, to be no way out of this dilemma. Tothe extent we render the Convention constitutional, it ceases toserve its purpose. To the extent we accede to the plenary power ofthe Technical Secretariat, we strip Americans of theirconstitutional rights. Given that the Convention cannot achieve itsobjective even under the second scenario, as noted at the outset,the prudent course is to protect our constitutional order.

II. Contentions of Treaty Proponents

Finally, let me turn to certain contentions of proponents of theConvention--and here I draw upon a recent paper by ProfessorKellman and Mr. Edward Tanzman, "Implementing the Chemical WeaponsConvention," published in 1994 by the Lawyers Alliance for WorldSecurity, Committee for National Security. What is striking aboutthe discussion in that paper is the almost cavalier posture itsometimes takes toward important constitutional questions. Thus, inhis section of the paper, Professor Kellman notes that "the primaryfocus of the inspection scheme is to verify continuednon-production of chemical weapons. It is only secondarily intendedto punish violators." (p. 7) Accordingly, courts

will be more tolerant of a possible violation of the Fourth andFifth Amendments by more intrusive and warrantless inspections whenit does not involve criminal charges against an individual and whenindividual rights are not jeopardized. (p.7)

Upon reflection, I had rather thought that an "intrusive andwarrantless search" alone violated rights, quite apart from whetherany further consequences might follow.

Again, after noting that federal environmental law gives statesthe primary obligation to develop standards to apply to givenchemical facilities, and the problem this lack of uniformity posesfor international inspectors who are obliged to comply with localenvironmental law, Professor Kellman concludes with a statementthat federalists should note:

State laws that are not part of the federal standard-settingprocess should not impede CWC inspections because the implementinglegislation would preempt the role of the State in this area. TheCWC is an international agreement with the most pervasive system ofverification for the purpose of disarmament ever known. The UnitedStates incurs the obligation to fulfill the terms of the Treaty andto maximize its enforcement in order to encourage theother one-hundred fifty-seven co-signatories, to comply with theTreaty. These obligations of the United States Federal Governmentoverrule all contradictory domestic state law. (p. 9) (emphasisadded)

Yet it is Professor Kellman's colleague on this essay, Mr.Tanzman, who draws out some of the broader and more disturbingimplications of this Convention, even as he dismisses them in theprocess. Thus, he begins by citing Justice John Marshall Harlan'srewrite of the Fourth Amendment in Katz v. United States(389 U.S. 347, 361 (1967)): "There is a two-fold requirement,first, that a person have exhibited an actual expectation ofprivacy, and second that the expectation be one that society isprepared to recognize as reasonable." One supposes that the Framerscould have written the amendment that way had they wanted to.Instead, they wrote a very different amendment. As rewritten,however, we know from legal experience that businesses--includingchemical businesses--have a lesser expectation of privacy thanprivate homes.

Still, even businesses have some expectation of privacy, butthat right is meaningless without a remedy, Mr. Tanzman continues.Two such remedies are an injunction to prevent a search, anddamages after a search. Injunctions, however, would breach the CWC.Thus, we need to ban injunctive relief:

While judicial interference with the CWC is unlikely because ofnational security and foreign affairs implications, a legislativeban on injunctions would eliminate the risk entirely. Instead ofseeking an injunction, the subject of the inspection should bepermitted to seek monetary damages as compensation for any lossesresulting from an unconstitutional search. (p. 16)

Thus, we treat the Fourth Amendment's guarantee as if it werethe Fifth Amendment's Just Compensation Clause. One wonders whetherMr. Tanzman would take the same approach to the First Amendment: Wecan limit your speech or religious practice, provided we compensateyou for it. Like the oft-noted drug exception to the Bill ofRights, this appears to be the international treaty exception.

Lest it be thought that I am overstating the matter, considerthe remark of Mr. Tanzman that immediately follows the statementabove:

Congress has acted in the past to forbid judicial interferencein situations where there is a sufficient public interest inuninterrupted continuance of a government policy. (p. 16)

I can think of no tyrant who has not offered a similar rationalefor his acts. Perhaps it is no accident that the cases Mr. Tanzmancites in support of that proposition involve the collection ofincome taxes.

If Congress will neither ban injunctive relief nor compensatevictims of unconstitutional searches, however, there is always thepervasively-regulated-industry exception, Mr. Tanzman concludes.But in so doing, he brings out nicely, albeit in shades of Orwell,the problems earlier noted with that exception:

It is ironic that this doctrine holds that very intrusive andspecific inspection requirements provide the legal equivalent ofthe privacy protection of a search warrant procedure. In otherwords, the more the government regularly intrudes, pursuant to astatutory scheme, the better the industry's privacy is protectedbecause the very specific scheme embodied in the statute is similarto a warrant. (p. 20)

III. Conclusion

In conclusion, this Convention poses serious and, in myjudgment, insurmountable constitutional problems--which arealtogether separate from the policy problems I sketched at theoutset. (For an especially cogent discussion of the latter, see thetestimony of Mr. Douglas J. Feith, former deputy assistantsecretary of defense, delivered before the Senate Committee onForeign Relations on March 21, 1996.) As worthy as the ends of thisConvention may be, the means are simply unacceptable in a freesociety. But when those means will not even accomplish the ends ofthe Convention--indeed, will lead to what economists call "perverseconsequences"--reason requires their rejection. Not every noble endcan be accomplished.

Roger Pilon

Subcommittee on the Constitution
Committee on the Judiciary
United States Senate