The Chemical Weapons Treaty is Unconstitutional

I would like to thank the Chairman for the opportunity to testify on the constitutionality of the verification procedures contained in the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (hereinafter "Convention")¹ and the legislation introduced on May 8, 1996, to implement it, S. 1732.²

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The Convention establishes the most intrusive verification procedures ever contained in an arms control treaty. This is fitting, because the goals of the Convention can be achieved only if signatory nations can trust that other nations will obey the prohibition on chemical weapons. Unlike other arms control agreements, the Convention does not just limit numerical levels of weapons or prohibits their use in certain situations. It also prohibits the development, production, and stockpiling of chemical weapons and the possibility of their future use.

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In order to achieve its ambitious goals, the Convention creates a verification mechanism that reaches not just manufacturers of chemical weapons, but also all producers and users of industrial chemicals, of which there are reportedly at least 10,000 sites in the United States.³ Under the so-called challenge procedures, potentially any facility or location in the nation -- whether involved in the chemical industry or not -- might be subject to search. According to the treaty, challenge inspections can reach "any facility or location in the territory or in any other place under the jurisdiction" of a signatory nation.⁴ Many if not most of these factories, industrial sites, and other locations will not be under the direct control of the United States government, but instead will be in the hands of private commercial enterprises and companies.

The Convention provides for three basic types of verification for sites that produce or store chemical weapons or designated chemicals. First, signatory nations are required to provide annual, detailed reports on facilities that could produce chemical weapons. Second, sties involved in the chemical industry are subject to on-site inspections, Third, any signatory can demand a "challenge" inspection of any location within the jurisdiction of another signatory nation. A new international organization, the Organization for the Prohibition of Chemical Weapons, is created by the Convention. A Technical Secretariat will choose the targets for inspection and will conduct the searches.

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An obvious difficulty with the Convention's verification procedures is the Fourth Amendment's prohibition on unreasonable searches and seizures. Before turning to those issues, however, I first would like to address a more fundamental concern. I believe that at the root of the Fourth Amendment concern here is a deeper problem concerning the manner in which the power of the federal government can be delegated to an international organization. Put simply, the Constitution requires that all exercises of public power by the federal government -- whether it be legislative, executive, or judicial in nature -- must be performed by authorities ultimately responsible to the people of the United states. This fundamental principle of our representational democracy -- popular sovereignty -- was the very basis by which the framers designed our Constitution. It is that principle which is violated by the Convention's implementing legislation, as it currently stands.

I am not arguing that vague concerns about American sovereignty should motivate this committee to reject the Convention's implementing legislation. In this case, the Constitution's protections for our nation's sovereignty are expressed in several discrete clauses of the Constitution itself -- the one most relevant here is the Appointments Clause -- and in several recent Supreme Court decisions. These laws and judicial decisions outline the procedures that the Senate must put into place in order to allow the convention to operate in a constitutional manner. But should this Committee approve the implementing legislation in its current form, I believe that the Convention in operation would violate the Constitution and that the Supreme Court would strike down the verification procedures implemented by statue.

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I believe that the constitution requires that officials of the American government review inspection requests to guarantee that they meet Fourth Amendment standards. Stated simply, anyone who exercises federal authority must be appointed by the President and confirmed by the Senate, or be appointed by an alternative process established by law. Members of the Technical Secretariat clearly do not undergo this process, and thus cannot be permitted to initiate searches pursuant to federal law. Even in those situations in which a warrant has been found to be unnecessary, the Supreme Court has assumed that some official of the United States government will make the decision to search based on the substantive reasonableness of the situation.

I also believe that the Constitution requires that only officials of the American government can conduct these searches. The Constitution forbids officials of other governments or of an international organization from performing inspections under the color of federal law, whether expressed by a treaty or by an implementing statue.

This prohibition is derived from Article II, Section 2, Clause 2 of the Constitution, which states that the President:

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and consuls, Judges of the supreme Court, and all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

These words require that all principal officers of the national government must be nominated by the President and confirmed by the Senate. "Inferior officers" may, at the discretion of Congress, be appointed by the President alone, by the heads of the executive agencies, or by the Judiciary. Although the Constitution does not discuss the difference between principal and inferior officers, the Supreme Court has indicated that inferior officers are those who are subordinate to a principal officer, in the sense that the inferior officer may be removed by the principal and that the inferior officer may "perform only certain, limited duties."⁵ In any case, some politically accountable or responsible official of the federal government must appoint all inferior officers.

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The Appointments Clause is not just an anachronistic, outdated provision of the 18th Century. As the Court has said: "The Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in describing 'Officers of the United States,' but the drafters had a less frivolous purpose in mind."⁶ This purpose encompassed two objectives: 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.⁷

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This analysis leads us to the question of when does an individual qualify as an officer of the United States. In a series of recent cases, the Supreme Court has construed the Appointments Clause to require that any person who exercises significant authority or responsibility under federal law must be appointed under the Clause. As the Court first declared in 1976 in the case of Buckley v. Valeo, "any appointee exercising significant authority pursuant to the laws of the United States is an 'Officer of the United States,' and must, therefore, be appointed in the manner prescribed by §2,cl. 2, of Article II of the Constitution.⁸ If someone who exercises power under the laws of the federal government has not undergone appointment according to this clause, the Supreme Court will invalidate the actions of that official and invalidate that part of the law establishing his or her power.⁹

The Supreme Court has reaffirmed and expanded upon this position in a trilogy of cases decided in just the last five years: Freytag v. Commissioner of Internal Revenue, Weiss v. United States, and Ryder v. United States. In Freytag, the Court found that special trial judges appointed by the United States Tax Court qualified as inferior officers of the United States. Although these special judges could perform numerous trial tasks, they did not possess the authority to enter a final decision.¹⁰ In Weiss, the Court agreed with the parties that military judges who decide court martial cases qualified as officers of the United States, and in Ryder the Court assumed that civilian members of military court martial panels were officers. Income tax inspectors¹¹ and army chaplains¹² also have been found to be officers of the United States by a lower court and by the Attorney General.

When compared with this case law, it seems apparent that the members of the Technical Secretariat and its inspection teams are acting as officers of the United States. They perform two functions pursuant to federal law, as embodied in the Convention and its implementing legislation. First, they decide which facilities and locations in the United States are to be searched. This decision is not reviewable by an American official, unless an agency chooses to seek a search warrant, which is not required by either the Convention or the implementing legislation. Second, the inspection teams actually enter the sites in question and conduct the search. Although American officials may accompany the inspection teams, it is clearly the team members who decide what is to be examined, who walk through a facility and examine its contents, who review documents, who interview facility personnel, who run tests, among other things.

There can be little doubt that the Technical Secretariat and the inspection teams are exercising substantial authority under the color of federal law. Without the implementing legislation or the Convention (assuming that its verification procedures are self-executing in the absence of implementing legislation), the teams would have no legal right to enter any site or location in the United States. An owner or operator of a facility would have as much right to exclude the inspection teams from his property as he would to keep any other private citizen out. It is federal law that gives law enforcement and agency officials the authority to enter private property to conduct searches,¹³ and it is federal law -- specifically Section 401(a) of S. 1732 -- that provides the inspection teams with a similar authority.

The authority and discretion given to members of the Technical Secretariat by federal law also indicates that they must undergo appointment under the Appointments Clause. The Technical Secretariat enjoys the exclusive discretion to decide what facilities and locations are to be searched, what items are to be searched, which personnel are to be interviewed, and when and how they are to be searched. Violations of the Convention that are discovered by the inspection teams it should be remembered, are to be punished by both criminal and civil penalties. This gives the Technical Secretariat authority equal to that of both an officer of a federal law enforcement agency, who must decide what places to search in connection with the investigation of a crime, and of a federal judicial officer, who decides whether to issue a search warrant. If a tax inspector, a military chaplain, a special tax judge, and a civilian serving temporarily on a court martial panel are considered officers of the United States, then we are forced to conclude that an individual who has authority to enter any facility or location in the United States without a search warrant and who can inspect whatever he or she chooses also must quality as an officer of the United States.

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While I believe that simple amendments to the implementing legislation could cure the Appointments Clause problem for the inspection teams, it appears that the Technical Secretariat's role in targeting American sites for inspection poses a more difficult constitutional challenge. One obvious solution to the problem described here would be to require that American officials conduct the actual search of American chemical sites. Of course, members of the inspection team could accompany the officers, provide advice and guidance, and observe how the inspection is performed. So long as American representatives actually handle the objects, collect and test the samples, review the documents, and interview the employees, the inspection teams can be present during the search.

Another alternative would permit either the President or the Secretary of Commerce to appoint the members of the inspection teams as officers of the United States. There is no qualifications clause in the Constitution, as there is for members of Congress and for the President, that requires officers of the United States to be citizens of the United States, to have been born in the United States, or to be of a certain age. The Constitution, however, does raise one stumbling block to this approach: it would prohibit members of the inspection teams from serving as officers in any foreign government, unless Congress specifically chose to permit that individual to do so. As Article I, Section 9 declares:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

It does not appear that membership alone in the Technical Secretariat, which is part of an international organization, would violate this provision. Although international law recognizes international organizations to possess some of the attributes of states in the international system, I am not sure that an international organization qualifies as a "foreign State" as the term is used in the Constitution. But this provision would affect members of the Secretariat and members of the Convention's Executive Council who also are governmental officials of other nations.

Again, I must caution that while these alternatives would cure the Appointments Clause problem, I cannot speak as to whether this would present obstacles to the arms control objectives of the Convention. It is clear, however, that if there is a conflict between the Constitution and a treaty, the Constitution must prevail. Therefore, it is the duty of the Senate and of the President to guarantee that a treaty comply with the Constitution first, and foreign relations policy second.

Curing the Appointments Clause problem for the inspection teams is one thing, curing it for the Technical Secretariat as a whole is another. I believe that the Appointments Clause applies both to those who search American facilities and those who decide which facilities to search. Under the Convention and its implementing legislation, the Technical Secretariat has the authority to decide which facilities and locations in the United States will be searched, what is to be searched for, and how the search is to be conducted. The Technical Secretariat, in conjunction with the Executive Council, also carries out challenge inspections. In other words, the Technical Secretariat currently exercises the authority, under domestic law, both of a law enforcement agency, which determines which locations to investigate, and of a federal judicial officer, who judges the reasonableness of the search request and issues the warrant that allows it to take place.

Under the treaty and the legislative regime currently before the Senate, the Technical Secretariat enjoys a discretion and authority in choosing search targets that no domestic institution of government currently has. There do not appear to be any legally enforceable criteria that guide the discretion of the Technical Secretariat in its choice of locations to search. The Secretariat need not explain its reasons for demanding a search nor must it conduct any internal evaluation of whether some level of probable cause justifies an inspection. In fact, some of the searches are to be conducted at random; these searches by their very nature will not be undertaken on the basis of any level of probable cause of articulated suspicions of wrongdoing.

Even if such standards existed, allowing an official who is not an officer of the United States to make this decision avoids the fundamental political checks on the power of the federal government. The members of the Technical Secretariat cannot be held accountable by members of the United States government or by American voters; therefore, there can be no meaningful political review of the way in which officials are implementing a scheme that permits warrantless searches. If we the people, for example, disapproved of the manner that prosecutors and police were initiating and conducting searches, we could remove those elected representatives who supervise those officers. But if the Technical Secretariat abused the inspection process, the American public would be unable to express its disapproval short of withdrawing from the Convention altogether. As we saw in Weiss, this undermines one of the basic purposes of the Appointments Clause: to guarantee that the people have a voice in the appointment of those officials who wield federal powers, and to allow the public to hold its elected representatives accountable for "an ill appointment."¹⁴

This difficulty with the verification regime has a rather easy solution. 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. If Congress chooses to adopt this procedure, which also has the happy effect of avoiding Fourth Amendment programs with warrantless searches, it cannot require that the judicial officer simply rubber-stamp every request made by the Technical Secretariat. Instead, in order for the warrant to be a legitimate one, the procedure must conform to established Fourth Amendment standards: the decisionmaker must be a "neutral and detached magistrate;"¹⁵ information supporting the warrant application must be provided in the form of an affidavit or under oath,¹⁶ that the information support a showing of probable cause,¹⁷ and that the warrant describe with particularity the place to be searched and the things to be seized.¹⁸ In making the determination concerning whether a warrant shall issue, the determination of probable cause and of reasonableness generally means that the judicial officer must have the discretion to reject a demand by the Technical Secretariat for an inspection. Although this may not happen in a significant number of cases, if ever, the Senate should be aware that it cannot interfere with the Judiciary's interpretation of the Fourth Amendment in the warrant process.

Again, I cannot judge whether this solution would produce difficulties for the arms control objectives of the Convention. I only can discuss what is necessary to bring the Convention's provision in line with the Constitution, which is the purpose of implementing legislation. But if the Senate does not act to conform the treaty with the highest law of the land, the federal courts will have no choice but to block the operation of the Convention.

It is the possibility that a warrant could be refused, I assume, that led the drafters of S. 1732 to make a warrant procedure optional. It is no doubt the case that the possibility that an inspection could be resisted could undermine the mutual trust among signatories that the Convention's verification procedures are designed to promote. But even if one were to conclude that the Technical Secretariat did not need warrants to search American facilities (a topic to be discussed at length infra), the Appointments Clause programs still would exist. For even in those cases where a warrant is not necessary, the Supreme Court has assumed that some governmental official will make the decision to search using a process that judges the reasonableness of the situation.

Under the Supreme Court's precedent, a determination to engage in even a warrantless search must be made by a decisionmaker who must obey clear, defined criteria that guide his or her discretion. In other words, a warrant procedure cannot be substituted for by an utterly arbitrary procedure that allows law enforcement or administrative officers to engage in search at whim. As the Court stated in the context of warrantless searches of heavily regulated industries, a "regulatory statue must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit discretion of the inspecting officers."¹⁹

It seems apparent that underlying this approach to warrantless searches is the assumption that there must be a decisionmaker who engages in a warrant-like process before a search is authorized. It further seems apparent that this decisionmaker must be an American official who makes an independent determination on the reasonableness of any warrantless search conducted pursuant to federal law. The Appointments Clause requires no less. Furthermore, this process is consistent with the constitutional design because it still allows people some check on the decisions to engage in warrantless searches, for the decisionmaking officials are ultimately accountable to the public. Otherwise, searches could be ordered by non-governmental officers who might have other motives involved and who would not be accountable to the public for any abuse of the process.

The inspection process contemplated by the implementing legislation abrogates these principles. The members of the Technical Secretariat are in no way accountable to any official of the American government -- an officer of the federal government, for example, cannot remove a member of the Secretariat. The Convention fails to require that the Secretariat obey certain defined criteria in choosing which targets to search; in fact, as noted before, some of the searches are to be random. The Secretariat need not provide reasons concerning its decision to search nor must it make a determination that its decision is reasonable.

If Congress were to decide that warrantless searches in this area would be constitutional, it could address this problem by requiring the Secretary of Commerce or his or her designee to review the Secretariat's inspection demand. However, it must be made clear that the American decisionmaker must have the authority to refuse the request if it fails to meet certain criteria specified by statute. If this agency official simply rubber-stamps the Secretariat's demands, then it would be difficult to conclude that an American official was truly making the decisions concerning the enforcement of federal law. Decisionmaking authority under federal law would remain with the non-governmental body, and both the Appointments Clause and the non-delegation doctrine would continue to be violated.

* Professor John Yoo is Professor of Law at Boalt Hall School of Law. What follows is his testimony before the Committee on the Judiciary, Subcommittee on the Constitution of the United States Senate on the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction.

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1. United States Arms Control and Disarmament Agency, Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (October 1993).
2. S. 1732, 104th Cong., 2d Sess. (1996).
3. U.S. Congress, Office of Technology Assessment, The Chemical Weapons Convention: Effects on the United States Chemical Industry (1993).
4. Convention, supra note 1, art, IX, para. 8.
5. Morrison v. Olson, 487 U.S. 645, 671 (1988).
6. Buckley, 424 U.S. at 125
7. Weiss v. United States, 114 S. Ct. 752, 765 (1994) (Souter, J., concurring).
8. Buckley v. Valeo, 424 U.S. 1, 126 (1976).
9. See, e.g., Ryder v. United States, 115 S. Ct. 2031 (1995); Weiss v. United States, 114 S. Ct. 752 (1994); Freytag v. Commissioner of Internal Revenue, 111 S. Ct. 2631 (1991).
10. Freytag, 111 S. Ct. at 2640.
11. McGrath v. United States, 275 F. 294 (2nd Cir. 1921).
12. Chaplains for Army Hospitals, 10 Op. Att'y Gen. 449 (1863). I am indebted to the find work of Professor Jim Chen of the Minnesota Law School for this point. See Jim C. Chen, Appointments with Disaster: The Unconstitutionality of Binational Arbitral Review under the United States-Canada Free Trade Agreement, 49 WASH. & LEE L. REV. 1455 (1992).
13. See, e.g., 18 U.S.C. ##3109 (authorizing "officer" to enter premises if refused entry in order to execute search warrant). It should be noted that ## 3109 is limited only to entriesby officers of the government.
14. The Federalist No. 77, at 517 (Alexander Hamilton).
15. Johnson v. United States, 333 U.S. 10 (1948).
16. U.S. Const. amend. IV ("no Warrants shall issue but upon probable cause, supported by Oath or affirmation").
17. Ibid; Franks v. Delaware, 438 U.S. 154 (1978).
18. U.S. Const. amend IV.
19. New York v. Burger, 482 U.S. 691, 703 (1987).