The Federalist Society

The Chemical Weapons Treaty is Unconstitutional

Corporations, Securities & Antitrust Practice Group Newsletter - Volume 1, Issue 3, Fall 1997

December 1, 1997

John C. Yoo

Suppose that the U.S. were to ratify a treaty to attack the problem of international narcotics. This treaty establishes an international police organization that has the duty to investigate and prevent the manufacture, storage and trade of certain illegal drugs. And imagine that the treaty gave this international police force the authority to enter and search any location in the U.S. where drugs might be made or stored.

Such a treaty would create obvious constitutional problems: The Fourth Amendment's prohibition against unreasonable search and seizure generally would prohibit any searches without a warrant. The Fifth Amendment would require the federal government to compensate for any property taken by the international force. And most important, the Constitution would prohibit international officials who are not members of, or responsible to, the U.S. government, and ultimately the American people, from exercising any public authority within U.S. territory.

Change the subject from drugs to chemical weapons and look at the Chemical Weapons Convention. Currently under Senate consideration, the CWC raises identical concerns to the hypothetical drug fighting treaty. While politicians and observers have discussed the CWC's national security problems, however, they have yet to scrutinize the serious constitutional defects of its verification procedures.

The CWC's national security faults aside, these constitutional problems alone should convince the Senate to reject the treaty.

The Fourth Amendment declares that the people have a right "to be secure in their persons, houses, papers, and effects" and prohibits "unreasonable searches and seizures." As interpreted by current Supreme Court case law, this generally requires a search warrant. The warrant must be issued by a neutral magistrate; the authorities must present sufficient evidence under oath to demonstrate probable cause and must specify the places to be searched or the things to be seized.

Searches conducted pursuant to the CWC would fail to obey these constitutional requirements. Neither the CWC nor its implementing legislation (we have to go by last year's bill, because the administration at this late date has not seen fit to introduce this year's version), requires that CWC Authorities secure a search warrant issued by an American judge. There is no need to show probable cause.

CWC supporters point to language that states that "challenge" inspections must be consistent with "constitutional obligations . . . with regard to . . . searches and seizures." This provision does not encompass the full range of other searches that CWC officials will conduct. These other types of searches, aimed primarily at chemical producers and users, are so broad as to include most major industrial sites in the country. According to 1993 figures supplied by the U.S. Congress Office of Technology Assessment, up to 10,000 sites that use or produce relatively harmless chemicals could be affected. Under the CWC, a drug dealer running a crack house will have more constitutional rights than the law-abiding operator of a chemical plant.

The CWC presents another grave constitutional problem because of its effort to give power away to the unelected officials of an unaccountable international organization. In recent years, the Supreme Court has resurrected the Constitutional Appointments Clause to make clear that anyone who exercises significant federal authority must undergo either nomination by the president and confirmation by the Senate, or, if Congress so directs, he appointed by the president, the head of a federal agency or a federal court. The Appointments Clause serves as a vital mechanism of representative democracy by guaranteeing that every exercise of federal power be undertaken by an individual who is responsible to or accountable to the electorate.

CWC officials would violate the Appointments Clause and the principle of government accountability in two significant ways. First, CWC officials decide which facilities and locations are to be searched, what is to be searched for, and how the search is to be conducted. There are no legally enforceable criteria that restrict the discretion of CWC officials in their choice of locations. Their decisions are not reviewable by an American official, nor are CWC officials under the control of any American official. Hence, no meaningful political review exists of the manner in which officials are implementing a scheme that impacts directly and immediately on the individual rights of American. If we the people, for example, disapproved of the manner in which prosecutors and policy were initiating and conducting searches, we could remove the elected representatives who supervise those officers. But in the case of the CWC, the American people have no options other than to violate the treaty in the face of abusive searches.

In addition to authorizing a search CWC officials actually carry out the on-site inspection, a marriage of powers that no domestic law enforcement agency enjoys. The Constitution forbids the federal government from delegating this public function to a private or nongovernmental entity; it is almost axiomatic that individuals who are not members of the federal government cannot exercise federal power upon the individual rights of an American citizen. Otherwise, the federal government could escape the constitutional restrictions placed upon it by simply shipping its authority over to a private person, much in the way that disgruntled spouses will hire private investigators to engage in searches that otherwise would be illegal if conducted by the public.

To understand the difficulties raised here, consider the theft of trade secrets by international inspectors. Under domestic law, if a federal official were to steal such intellectual property, an unconstitutional taking presumably would have occurred for which the Fifth Amendment requires just compensation. Under the CWC, however, the American government would not owe compensation because the guilty parties would be the international inspectors. CWC officials would not owe compensation because they are not members of the American government and are immune from suit.

These serious constitutional defects should convince the Senate to live up to its responsibility to uphold the Constitution and reject the CWC. Careless invocation of national security and foreign policy concerns cannot provide the grounds for evading the written restrictions of the Constitution.

John Yoo is an acting professor of law at the Boalt Hall School of Law, University of California, Berkeley.


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