Constitutional Aspects of the Chemical Weapons Convention

September 10, 1996 • Testimony

Mr. Chairman, distinguished members of the subcommittee:

My name is Roger Pilon. I am a senior fellow at the Cato Institute and the director of Cato’s Center for Constitutional Studies.

I want to thank Chairman Brown for inviting me to testify on the constitutional aspects of the Chemical Weapons Convention (hereafter, “the Convention”) that is now before the Senate for possible ratification. Let me also thank Senator Kyl, both for his particular interest in this important subject and for the assistance his staff has afforded me.

I should say at the outset, Mr. Chairman, that although I am a constitutional scholar, I do not count international law among my areas of expertise, much less arms‐​control law. Nevertheless, the issue you have asked me to address–the Fourth Amendment aspects of the Convention–is not, strictly speaking, an issue of international law. Accordingly, I am pleased to give the subcommittee my thoughts on the subject.

Before doing so, however, I would like to urge that as important as 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’s Implementing Legislation–should not distract anyone from the equally important policy concerns that surround this treaty. In these hearings, that is, it would be easy to focus on the legal trees and miss entirely the larger policy forest. Yet a treaty is among the most solemn of obligations a people can undertake. Before doing so, therefore, we need to be absolutely clear about whether this undertaking is in our interest.

In that connection, I think it appropriate that I state here my own conclusion on that basic question, namely, that as important as it may be to rid the world of chemical weapons–a goal we doubtless all share–this treaty will neither accomplish that goal nor serve the nation’s interests. To summarize my reasons for so concluding, both proponents and opponents of the Convention freely grant that it establishes the most costly and intrusive verification procedures ever contained in an arms control treaty, and that it does so because of the relative ease with which chemical weapons may be made and the relative difficulty of detecting them–even under 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 that imposes massive compliance costs on American citizens and firms. Yet the benefit, given the ease with which the Convention may be violated by bad‐​faith signatories or ignored by non‐​party nations, is chimerical. Indeed, we will be lulled into believing that chemical weapons have been banned and so will be less inclined than we would otherwise be to take measures to counter them. Thus, far from having increased our security, we will actually be worse off with the Convention than without it–and poorer besides.

I. Constitutional Problems

Having summarized my basic view of the Convention, let me turn now to the constitutional questions that are the immediate concern of this subcommittee. In reaching my conclusions on those, I have benefitted immensely from Professor Yoo’s extraordinarily careful analysis, which I saw prior to preparing my own remarks. Since I agree almost entirely with his assessment of the issues, rather than repeat that analysis here, let me simply elaborate on a few points on which we might part company–depending on his views on matters he has not addressed–then add a few points of my own, after which I will address certain contentions that are made on these matters by proponents of the Convention.

Professor Yoo concludes, and I agree, that “the implementation provisions of the Convention’s verification procedures, as currently written, would violate the Constitution and would be struck down by the Supreme Court because they represent an impermissible transfer of sovereignty from our national government to an international organization.” (p. 1) On the Fourth Amendment search‐​and‐​seizure question, he states that “it is unclear whether the Supreme Court would allow on‐​site inspections to fall within the warrantless‐​search exception to the Fourth Amendment.” (p. 14) He goes on, however, to offer powerful arguments for believing that the Court would find such inspections unconstitutional. Let me consider those issues in reverse order, starting with the Fourth Amendment question.

A. The Fourth Amendment

The nub of the matter, as Professor Yoo rightly sees, is whether the warrantless searches contemplated by the Convention, especially “challenge” or random inspections, would be permitted under current Supreme Court warrantless‐​search doctrine. The part of that doctrine that is most relevant here pertains to “heavily regulated industries.” Stated most generally, inspections of such industries by regulatory authorities must be conducted under a regulatory scheme that establishes a “warrant‐​like process” that constrains the discretion of the inspecting authorities.

Before continuing, let me state my own view, namely, that the “highly regulated industry” exception to the warrant requirement is pernicious to the core. Read on its terms, the Fourth Amendment secures our right against “unreasonable” searches and seizures, which I take to mean not simply searches that are arbitrary or without reason–all actions have reasons, after all–but unjustified by the facts. In fact, it is precisely that need for independent justification that the amendment next addresses when it says that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Under the highly regulated industry doctrine, however, the Court has allowed the political branches to circumvent the amendment’s requirement for an independent and particularized determination of the facts that may or may not justify a given search. In essence, enforcement agencies, in pursuit of their regulatory ends, are permitted to bootstrap themselves out of the Fourth Amendment.

Evidence of that is found in Professor Yoo’s discussion of the five‐​part test the Court set out in New York v. Burger (482 U.S. 691 (1987)), especially the fourth factor pertaining to a regulatory scheme’s provision for “a constitutionally adequate substitute for a warrant.” As Professor Yoo elaborates:

The law at issue must inform the business operator that inspections will be made on a regular basis and that they are conducted pursuant to some objective criteria, rather than at the discretion of the government official. This requirement both provides the business owner with notice and limits the discretion of the government. (p. 16)

Although Professor Yoo goes on to argue–convincingly, I believe–that the Convention does not meet even those standards–the point of particular relevance for these hearings–I want to add that even if the Convention did meet the Court’s test on this point, that test is hardly a rigorous reading of the Fourth Amendment. The amendment is not really about notice or regularity or even about “objective criteria” as determined by interested parties, but about the right to be free from searches except when justified by particular facts, amounting to probable cause, as determined by a disinterested party. Thus, even if the Convention did satisfy this and the other prongs of the Burger test, Congress’s assent to the Court’s inroads on the Fourth Amendment is hardly to be encouraged, for Congress too, after all, is sworn to uphold the Constitution.

As Professor Yoo convincingly argues, however, the Convention does not appear to meet three of the five Burger factors–at least with respect to private industry that produces Schedule 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 deferential posture in this foreign policy context, I would have to conclude, based on Professor Yoo’s analysis, that the broad inspection regime envisioned by the Convention would not satisfy the minimal requirements the Court has established under the Fourth Amendment.

In this regard, therefore, I am afraid I do not understand Professor Yoo’s contention that “If Congress were to decide that warrantless searches in this area would be constitutional, it could address [the delegation problem, infra] by requiring the Secretary of Commerce or his or her designee to review the [Technical] Secretariat’s inspection demand.” (p. 13) Perhaps I misunderstand Professor Yoo’s point in this context, but I think it should be said that it is not up to Congress to declare certain searches constitutional–not if the separation of powers is to be respected. Indeed, we have the Fourth Amendment we have precisely because we came to realize, under our colonial rulers, the importance of the separation of powers.

B. The Appointments Clause

But it is Professor Yoo’s trenchant analysis of the requirements of the Appointments Clause that marks his singular contribution to this discussion. In my judgment, with a small addition noted below, he has the argument exactly right: “the Constitution requires that all exercises of public power by the federal government … must be performed by authorities ultimately responsible to the people of the United States” (p. 6); thus, “officials of other governments or of an international organization are forbidden from performing inspections under the color of federal law, whether expressed by a treaty or by an implementing statute.” (p. 7)

In discussing the Appointments Clause, Professor Yoo focuses on two objectives of the clause: “to prevent the manipulation of appointments by any single branch of the national government; and to ensure that appointments were made in a manner that ultimately would be accountable to the people of the United States.” (p.8) In addition to those consequentialist rationales, however, one might also draw from the Tenth Amendment by noting that the federal government has only those powers that the people, through the Constitution, have delegated to it. Thus, quite apart from their being able to hold their elected officials accountable–the point Professor Yoo stresses–the people have simply never delegated a power to Congress to in turn delegate any of its powers to foreign officials–much less a power to conduct warrantless searches of American citizens.

Perhaps because the argument from the Appointments Clause is so telling an objection to the Convention–and here, of course, I have stated it only in conclusory form–Professor Yoo feels constrained to offer a method by which the problem might be cured, namely: “Congress could amend the implementing legislation to require that a federal judicial officer issue a warrant before an inspection team or an American representative (if Congress accepts my earlier argument) wishes to search a facility.” (p. 12) That would change the Convention’s verification procedures materially, of course, possibly opening up the Convention to further negotiations, or rendering its verification procedures, by parity of application, ineffective from our perspective–assuming they are effective to begin with.

There appears, in short, to be no way out of this dilemma. To the extent we render the Convention constitutional, it ceases to serve its purpose. To the extent we accede to the plenary power of the Technical Secretariat, we strip Americans of their constitutional rights. Given that the Convention cannot achieve its objective 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 the Convention–and here I draw upon a recent paper by Professor Kellman and Mr. Edward Tanzman, “Implementing the Chemical Weapons Convention,” published in 1994 by the Lawyers Alliance for World Security, Committee for National Security. What is striking about the discussion in that paper is the almost cavalier posture it sometimes takes toward important constitutional questions. Thus, in his section of the paper, Professor Kellman notes that “the primary focus of the inspection scheme is to verify continued non‐​production of chemical weapons. It is only secondarily intended to punish violators.” (p. 7) Accordingly, courts

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

Upon reflection, I had rather thought that an “intrusive and warrantless search” alone violated rights, quite apart from whether any further consequences might follow.

Again, after noting that federal environmental law gives states the primary obligation to develop standards to apply to given chemical facilities, and the problem this lack of uniformity poses for international inspectors who are obliged to comply with local environmental law, Professor Kellman concludes with a statement that federalists should note:

State laws that are not part of the federal standard‐​setting process should not impede CWC inspections because the implementing legislation would preempt the role of the State in this area. The CWC is an international agreement with the most pervasive system of verification for the purpose of disarmament ever known. The United States incurs the obligation to fulfill the terms of the Treaty and to maximize its enforcement in order to encourage the other one‐​hundred fifty‐​seven co‐​signatories, to comply with the Treaty. These obligations of the United States Federal Government overrule all contradictory domestic state law. (p. 9) (emphasis added)

Yet it is Professor Kellman’s colleague on this essay, Mr. Tanzman, who draws out some of the broader and more disturbing implications of this Convention, even as he dismisses them in the process. Thus, he begins by citing Justice John Marshall Harlan’s rewrite 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 of privacy, and second that the expectation be one that society is prepared to recognize as reasonable.” One supposes that the Framers could 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–including chemical businesses–have a lesser expectation of privacy than private homes.

Still, even businesses have some expectation of privacy, but that right is meaningless without a remedy, Mr. Tanzman continues. Two such remedies are an injunction to prevent a search, and damages 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 of national security and foreign affairs implications, a legislative ban on injunctions would eliminate the risk entirely. Instead of seeking an injunction, the subject of the inspection should be permitted to seek monetary damages as compensation for any losses resulting from an unconstitutional search. (p. 16)

Thus, we treat the Fourth Amendment’s guarantee as if it were the Fifth Amendment’s Just Compensation Clause. One wonders whether Mr. Tanzman would take the same approach to the First Amendment: We can limit your speech or religious practice, provided we compensate you for it. Like the oft‐​noted drug exception to the Bill of Rights, this appears to be the international treaty exception.

Lest it be thought that I am overstating the matter, consider the remark of Mr. Tanzman that immediately follows the statement above:

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

I can think of no tyrant who has not offered a similar rationale for his acts. Perhaps it is no accident that the cases Mr. Tanzman cites in support of that proposition involve the collection of income taxes.

If Congress will neither ban injunctive relief nor compensate victims of unconstitutional searches, however, there is always the pervasively‐​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 and specific inspection requirements provide the legal equivalent of the privacy protection of a search warrant procedure. In other words, the more the government regularly intrudes, pursuant to a statutory scheme, the better the industry’s privacy is protected because the very specific scheme embodied in the statute is similar to a warrant. (p. 20)

III. Conclusion

In conclusion, this Convention poses serious and, in my judgment, insurmountable constitutional problems–which are altogether separate from the policy problems I sketched at the outset. (For an especially cogent discussion of the latter, see the testimony of Mr. Douglas J. Feith, former deputy assistant secretary of defense, delivered before the Senate Committee on Foreign Relations on March 21, 1996.) As worthy as the ends of this Convention may be, the means are simply unacceptable in a free society. But when those means will not even accomplish the ends of the Convention–indeed, will lead to what economists call “perverse consequences”–reason requires their rejection. Not every noble end can be accomplished.

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