Biological and Chemical Weapons and the Constitution

As the other essays in this book make clear, the effort to regulate and eradicate biological and chemical weapons ("BCWs") has come to rely on broad multilateral agreements for their success. Both the Chemical Weapons Convention ("CWC"), which the United States has ratified and recently implemented, and planned changes to the Biological Weapons Convention ("BWC"), which is being modeled upon the CWC, call upon state parties to renounce the use, development, acquisition, or production of the weapons in question. State parties also agree to destroy existing weapons and production facilities in their jurisdictions. Multilateral agreements establish stability by allowing each nation to destroy their biological and chemical weapons with the assurance that other nations will undertake the same obligations.

Verification is critical to the success of these multilateral agreements. Unlike earlier arms control agreements, which placed numerical limits upon weapons stockpiles or limited the use of weapons in wartime, the CWC and BWC seek to impose absolute bans not just on use, but on development and production as well. The ease with which BCW’s can be manufactured and concealed, however, poses novel difficulties for a verification regime. Such weapons, moreover, often can be created by dual use facilities that can double as civilian sites engaged in the legitimate production of chemicals and pharmaceuticals. Furthermore, the multilateral nature of the treaties requires a verification regime that allows multiple state parties with disparate resources to measure compliance by each other. In contrast, earlier arms control agreements, such as nuclear weapons treaties between the United States and the Soviet Union, forced the parties to rely upon their own national technical means of verification to ensure compliance.

To overcome these challenges, the CWC has adopted the most intrusive verification mechanism yet seen in an international agreement. It requires state parties to provide annual, detailed reports on facilities that might produce chemical weapons, it subjects site involved in the chemical industry to on-site inspections, and it allows state parties to demand "challenge" inspections of any location in another party’s jurisdiction. The CWC creates a new international organization, the Organization for the Prohibition of Chemical Weapons ("OPCW"), to monitor compliance with the treaty and to conduct inspections. State parties interested in amending the BWC to improve its effectiveness are likely to demand similar verification mechanisms.

It is the intrusiveness of these verification procedures that produces difficulties under American constitutional law. The Constitution establishes certain guarantees that protect the rights of individuals and private organizations (such as corporations) and that limit the powers of the national government. The CWC and BWC’s inspection regimes pose potential threats to these rights and limitations on governmental power, unless they are modified in certain respects to be consistent with the Constitution. Part I of this Essay will review the CWC’s verification procedures. Part II will discuss the constitutional difficulties with these procedures and the manner in which Congress responded to them in implementing the Convention. Part III will raise some broader theoretical issues concerning the tension between the needs nature of arms control and the requirements of American constitutional law raised by the CWC.

I.

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. This is indeed a difficult task, because as many others have noted, chemical weapons are exceedingly easy to manufacture and, as we have learned in regards to Iraq, can be concealed without too much difficulty. As then-Vice President Bush declared to the Conference on Disarmament in Geneva:

As a result of the ease of manufacture and storage of chemical weapons, the verification procedures must be correspondingly intrusive and broad.

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. 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. 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 CWC’s verification procedures are designed to detect different classes of chemicals. Chemical weapons, of course, are the first priority. The Convention defines these substances as "any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals." The treaty calls for these weapons and their production facilities to be destroyed within 10 years. On-site inspection and monitoring by the Technical Secretariat will occur through the storage and incineration of these weapons. As these sites and facilities either will be wholly owned by the United States government or by defense contractors that have waived any Fourth Amendment rights as part of their contract, these verification procedures are not likely to present any serious constitutional difficulties.

The Convention classifies other chemicals into four categories; each category is subject to inspections of varying levels of intrusiveness. Schedule 1 chemicals, while not prohibited, are closely controlled because of their potential danger. These chemicals usually have been used or developed as chemical weapons in the past, and they have few commercial uses. The Convention limits the use of these chemicals and the amount that may be produced and stored by any signatory to 1000 kilograms. Any facility that manufactures more than 100 grams of these chemicals may be searched on-site and is subject to on-site monitoring.

Schedule 2 chemicals are not as dangerous as Schedule 1 chemicals, but nonetheless are considered to pose a "significant risk" because they can be used as weapons or can help produce them. Although Schedule 2 chemicals are not subject to production limits, any facility that produces them also may be the object of an on-site inspection by the Technical Secretariat of the OPCW. The Office of Technology Assessment estimates that there are 200 to 300 facilities in the United States that are capable of producing Schedule 2 chemicals.

Schedule 3 chemicals are those that might be used as chemicals weapons or as means to produce them, but also are used commercially in large quantities. Facilities that manufacture or use more than 230 tons of Schedule 3 substances are subject to on-site inspection, and the Technical Secretariat is empowered to choose these facilities at random. The OTA estimates that approximately 1000 sites in the United States produce or use Schedule 3 chemicals.

The final category of chemicals, labeled as "Other," includes all other organic chemicals (except petroleum) not included in the first three Schedules. Facilities that produce more than 200 metric tons of these chemicals may be searched on-site, according to random targeting by the Technical Secretariat. The Office of Technology Assessment estimates that there may be up to 10,000 sites in the United States that use or produce substances in this category.

Inspections of chemical weapons sites, Schedule 1 facilities, and Schedule 2 facilities are to be governed by facility agreements between the state party and the OPCW. These agreements will detail the nature and scope of inspection procedures. Inspection procedures for Schedule 3 and Other sites will be promulgated by the Technical Secretariat, but in any case the Secretariat is prohibited from conducting more than 20 on-site inspections of these facilities in any single state party in any single year.

While details of the procedures are left to future development, there are several prominent features of the Convention that describe how the searches are to be conducted. Inspection teams from the Technical Secretariat must enter the state party through a specified point of entry and must notify the state party concerning the site to be searched and the type of inspection. According to the Verification Annex of the Convention, the inspection team enjoys "the right to unimpeded access to the inspection site," and the state party has an obligation to grant the team access to the facility to be searched. Inspection teams may interview facility personnel, collect samples, inspect documents and records, take photographs, and bring testing equipment into the facility.

In cases in which a nation is suspected of operating a hidden or undeclared chemical weapons facility, the Convention relies upon challenge inspections. Each signatory has the right to demand an on-site inspection of any location within the jurisdiction of another signatory nation. The inspected nation must receive notice of a search at least 12 hours before the arrival of the inspection team; 36 hours after the team arrives they must be brought to the facility; they must finish their search within 84 hours.

The challenging nation must provide its reasons for the demand to the Executive Council of the Convention, but a three-quarters majority of the Council is required to block a challenge request. There are no other limits on the number of challenge searches that one nation may demand of another. However, the Convention contains a provision that a signatory's obligation to provide access in response to a challenge is subject to "constitutional obligations," which apparently means that a signatory can raise a warrant requirement as a defense to a challenge inspection. But this is by no means clear from the text of the treaty, nor is it clear how this warrant requirement would operate.

II.

The CWC’s verification regime raises three discrete constitutional issues. First, on-site searches of chemical facilities or other private sites under both the routine and challenge inspection provisions of the CWC raise concerns under the Fourth Amendment to the Constitution, which generally requires that the government acquire a search warrant before conducting a search. Second, the possibility that members of the CWC inspection teams either may steal or may inadvertently reveal the intellectual property of private chemical firms raises problems under the Fifth Amendment’s prohibition on government taking of property without just compensation. Third, the Constitution contains structural provisions that seek to establish accountability by restricting the exercise of public power upon private citizens to officials of the United States government. This Section will discuss the Bill of Rights issues and Congress’ efforts to handle them; the next Section will examine the problems raised by the CWC and the BWC by the structural elements of our Constitution.

Other legal scholars have written extensively on the Fourth Amendment challenges for the Convention's verification provisions. I do not seek to expand on their framing of the problem; I merely wish to summarize the issues involved and to provide my evaluation of whether doctrines providing for warrantless searches are applicable to the Convention. The Fourth Amendment to the Constitution declares that:

In interpreting this language, the Supreme Court has established a number of requirements. First, the Fourth Amendment restricts only searches conducting by the government, not those undertaken by private parties, unless the federal government significantly participates in, supervises, or facilitates the search. We will return to this issue in Part III. Second, the government action must rise to the level of a "search" under the Fourth Amendment. Generally, the federal courts will not consider a search to have occurred unless the individual who is the subject of the government action "have exhibited an actual expectation of privacy" and that this "expectation be one that society is prepared to recognize as ‘reasonable.’" If the individual or business enjoys an expectation of privacy, then the government’s search must be reasonable.

In most cases, a court will not consider a search to have been reasonable unless law enforcement has received a warrant. When the government wishes to conduct a search for violations of criminal law, then it must receive a criminal warrant; when it conducts inspections for infractions of administrative regulations, then it must acquire an administrative warrant. The Fourth Amendment guarantees that private citizens will not be searched at the whim of law enforcement; instead, a neutral judicial officer must be convinced that a warrant is appropriate. Furthermore, the search and seizure provision ensures that warrants will not issue in an arbitrary fashion. The judicial officer may not authorize a search unless probable cause exists, which can only be established if law enforcement presents evidence under oath that the search is reasonable.

In recent years, however, the Supreme Court has identified various areas in which a warrant is not required for a legal search. It has been motivated both by an examination of the "traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing," and by a growing recognition that the Fourth Amendment's text requires only that a government search or seizure be reasonable in order to meet constitutional standards. In criminal cases, a warrant is generally necessary to show reasonableness, but, as Justice Antonin Scalia wrote for the Court in 1995, "a warrant is not required to establish the reasonableness of all government searches."

As a result, the Supreme Court has recognized a number of exceptions to the general warrant requirement. To provide a few examples, the Court has held that a warrant is unnecessary for searches pursuant to arrest, for searches under exigent circumstances, for searches by consent, and for seizures of objects in plain view. In recent years, the Court has expanded the grounds for warrantless searches in the drug-testing context and in random checks for illegal immigration, contraband, and drunk drivers. The general principle at work here, the Court recently declared in the Vernonia School District case, is that a warrantless search can be constitutional "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable."

The exception most relevant for the CWC and BWC covers inspections and regulatory searches of businesses. These cases have arisen in the context of regulatory schemes that require businesses to adhere to certain public health and safety codes. In the first such case, See v. City of Seattle, the Supreme Court reaffirmed that the owner and the operator of a business had a right to be free from unconstitutional searches and seizures, just as do any other private citizens. Said the Court: a "businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property." But the Court also cautioned that business premises could be searched reasonably in more situations than private homes. In Colonnade Catering Corp. v. United States, the Court upheld a warrantless inspection of a liquor licensee's business due to the "long history of the regulation of the liquor industry." In 1972 the Court then permitted a warrantless inspection of a firearms and ammunition dealer, on the ground that the search was a crucial part of the regulatory scheme, that a warrant requirement could frustrate the inspection, and that the dealer had chosen to participate in a "pervasively regulated business" with the knowledge that his records would be subject to effective inspection. If the reasonableness of a search depends on the defendant’s expectation of privacy, the Court reasoned, then participation in a heavily regulated industry, with its pervasive rules and inspections, creates reduced privacy interests.

This last rationale -- that warrantless inspections are constitutional in heavily regulated industries through some theory of implied consent -- could have created a dangerous bootstrapping justification for warrantless searches. If participation in a heavily regulated industry amounted to consent to a search, then the imposition of an administrative scheme that called for pervasive inspections and regulatory searches itself could provide the grounds for the Fourth Amendment exception. It should come as no surprise then that the Supreme Court distanced itself from the implications of this approach when, in Marshall v. Barlow's Inc., it held invalid warrantless OSHA inspections of almost any factory, plant, or workplace in the nation. Finally, in a later case, Donovan v. Dewey, the Court commented that any implied consent was fictional and could not provide the basis for a warrantless search.

In the last 15 years the regulated industry exception to the warrant requirement has become settled. In the last two cases in this area, Donovan v. Dewey, and New York v. Burger, the Court has formulated a test which stresses that the regulatory scheme must establish a warrant-like process that constrains the discretion of the inspecting authorities. In Burger, the most recent case, Justice Blackmun for a 6-3 Court upheld a warrantless inspection of an auto junkyard because of five factors: a) the duration and extensive nature of the regulatory scheme indicated that the business was "closely regulated"; b) a substantial government interest supported the regulatory scheme; c) warrantless searches were necessary to further that scheme; d) the scheme "provides a constitutionally adequate substitute for a warrant"; and e) the inspection is "carefully limited in time, place, and scope."

Applying this framework to the CWC, it appears that there would be little difficulty in inspecting actual chemical weapon production, destruction, and storage sites. Many of these locations will be under the direct control of the United States government and others will be owned or operated by defense contractors with whom the government already has reached agreement for warrantless inspection. But whether the warrantless search exception includes private industry that produce Schedule 1, 2, or 3 chemicals is not plainly obvious, nor is it clear whether industry involved in "Other" chemicals or non-chemical industrial storage locations -- under the challenge provisions, any location in the United States may be searched -- would qualify as closely regulated businesses under Burger.

At this moment, it is difficult to determine whether the Supreme Court would find that the chemical industry is sufficiently regulated to satisfy the initial prong of the Burger test. The Court has never suggested that the entire chemical industry is so regulated. Indeed, in a case involving the warrantless search of a Dow Chemical plant, the Court appears to suggest that the chemical industry generally is not to be considered a closely regulated business for Fourth Amendment purposes. On the other side of the ledger, it is true that the chemical industry is subject to a number of comprehensive environmental regulatory schemes, such as CERCLA and RCRA, among others. But while these laws provide that the EPA has a right of entry to inspect the production or disposal of hazardous chemicals, this does not release the agency from the duty of obtaining a warrant if an owner or operator of a business refuses to allow inspectors onto his or her property. These warrants, even if granted for a lesser showing than probable cause, still must be issued by a federal magistrate or judge.

Furthermore, these statutes do not regulate all of the locations and sites that might possibly be searched under the Convention's provisions, particularly those facilities falling into the "Other" and the challenge inspection categories. Indeed, under the challenge procedures, it is entirely possible, if not likely, that a location to be inspected would not even be part of the chemical industry, but instead were an unrelated site simply suspected of harboring an illegal chemical weapons facility. How the Supreme Court would resolve a constitutional attack on a warrantless search of a non-chemical weapons plant, therefore, is unclear, but in my judgment the available law and evidence does not indicate a positive result.

Moving to the other Burger factors, it appears that the second and third elements of the test -- the regulatory scheme must serve an important government interest and that the search serves a need of that scheme -- are easily met in this situation. No one can doubt that eliminating chemical weapons is a significant governmental interest; and it is equally clear that warrantless inspections further that interest not only by detecting and deterring violations, but also by enhancing mutual trust among the Convention's signatories that the treaty is being enforced.

The fourth Burger factor presents a more difficult obstacle for the Convention. As was discussed at some length earlier, this prong requires that the regulatory scheme provide a warrant-like procedure. 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. While an administrative warrant mechanism might partially satisfy the fourth Burger factor, it is unclear whether the involvement of the OPCW might undermine the constitutionality of these domestic procedures. Under the Convention, for example, there are few, if any, standards that guide the Secretariat's decision to search, at least as to Schedule 3 and Other facilities, nor do any rules guide what locations may be chosen for a challenge inspection. In some cases, neither the Secretariat nor the challenging nation bear any legal obligation (enforceable under American law) to explain its reasons for selecting a particular target for inspection. It is difficult to see how the Convention constrains the discretion of the Secretariat or a challenging nation, nor is it clear how many of the possible facilities that could be inspected will receive sufficient notice of the search, its scope, and its reasons. It should be noted, however, that this situation may change as the Convention's institutions develop internal rules and criteria for inspections.

Even if a court were to conclude that the Convention's verification procedures met all of these requirements, Congress need not be satisfied with the most minimal protections for individual constitutional rights. Although Burger establishes the farthest that government officials can go in the context of warrantless searches, Congress certainly has the discretion and the authority to demand a higher level of protection for Fourth Amendment rights. In the Civil Rights Act of 1964, Congress chose to outlaw intentional racial and gender discrimination by private employers when the Court had not prohibited that activity. So too Congress in this case can prohibit the government from engaging in warrantless searches even when the Constitution permits them.

The inspection regime created by the CWC disrupts the balance struck by the Constitution between government power and private property. Under the Convention, inspectors will have the right to enter American commercial facilities and examine their manufacturing and research and development processes. Although the inspectors will be officials of the OPCW, they will of course be citizens of other nations. As they will possess technical expertise in chemical weapons and the chemical industry, they most likely will come from backgrounds in government, the military, the chemical industry, or academia. Thus, there may be a threat of industrial espionage, especially with inspectors who come from cultures that do not place the same value upon intellectual property as we do in the West.

American chemical companies will find it difficult to either prevent such illegal thefts or to receive a remedy for them. The CWC allows a state party to demand an inspection of "any facility or location" within another state party, which has the "obligation to provide access" to the inspectors. Private parties subject to the inspection have no right, under the Convention, to block or even question a search – that right belongs only to the national government. To be sure, the CWC provides the state party with the right to "prevent disclosure of confidential information and data, not related to this Convention." The Convention, however, nowhere defines what information is and is not "related to this Convention," who has the ultimate authority to decide this question, and what rights of appeal and review exist for determinations of this question. Due to the dual use nature of certain chemical research and manufacturing processes, some scholars have observed that "virtually all relevant intellectual property" will fall within the scope of an inspection, regardless of its commercial value. Indeed, the CWC appears to recognize the possibility of the theft of commercial secrets in its urging that the OPCW take "every precaution" to protect the civil and military secrets it encounters.

Unfortunately, the CWC’s effort to address the problem of intellectual property theft appears to be lacking. If a state party is concerned that certain members of the inspections teams named by OPCW poses a threat of stealing trade secrets, it can declare that it will not accept those inspectors. It is assumed that the OPCW will not use those inspectors when selecting a team to carry out an on-site visit. Once an inspection is announced, however, a state party "shall not seek to have removed from the inspection team for that inspection any of the designated inspectors or inspection assistants named in the inspection team list." Furthermore, a state party may not even be able to strike all of the inspectors that it suspects from the initial list. If the Director-General of the OPCW, for example, believes that a state party’s decisions on inspectors "impedes the designation of a sufficient number of inspectors or inspection assistants or otherwise hampers the effective fulfillment of the tasks of the Technical Secretariat," then he may refer the issue to the Executive Council of the CWC. If the executive council overrules the objection, then a state party will have to accept an inspector whom it considers a threat.

These procedures do not address the concerns raised by the Takings Clause, because they fail to provide a mechanism for just compensation for the theft of intellectual property. As a result, the CWC also does not grapple with the difficult questions surrounding the procedures and the nature of a remedy for such a taking. Consider, for example, a hypothetical incident in which a member of an inspection team from Country A, who also works for Company A in that country, takes part in on-site monitoring and verification within the United States as provided for by the Convention. In the process of conducting an inspection of a chemical plant owned by Company B in the United States, this inspector obtains a trade secret by observing the manufacturing process of Product C. The inspector then returns to Country A, a large developing nation, and provides the intellectual property to Company A, which is a competitor of Company B. Company A uses the stolen information to make its own production processes more efficient, and as a result is able to introduce substantial price reductions in Product C. Company A is able to seize large market share from Company B in its domestic market for Product C, and it also is able to enter for the first time the export market. Company B must lower its own prices in the U.S. and abroad for Product C simply to maintain market share. Company B infers that the theft of a trade secret has occurred because of the close timing of the inspection and Company A’s sudden drop in prices.

Without any compensation mechanism, the difficulties for Company B of receiving any remedy are profound. Even stating a prima facie case is difficult. Unless it has its own proof, such as testimony or physical evidence from its own officials, Company B will struggle in even alleging that the inspector stole the trade secret. It cannot force a court to subpoena the inspector to testify, because the CWC grants the inspectors immunity, similar to the one accorded diplomats, from domestic legal process. Such immunity, of course, makes sense because it prevents state parties from fabricating legal charges to inhibit proper searches, but it also creates severe problems for just compensation. Even if Company B could convince an American court to issue compulsory process upon the inspector, if the inspector is outside the United States, as is likely if not certain, then the court cannot force the inspector to obey its demand for information. Because the inspector enjoys immunity, there also exists no method to ensure that he even tells the truth were he to testify, as he or she would remain free from American perjury laws.

If a crucial piece of evidence in the hands of an inspector goes lacking, the CWC provides no guidance on what burden of proof ought to rest with Company B to prove the theft of intellectual property. Assume that Company B has no hard evidence of its own that the inspector stole the trade secret for the manufacturing of Product C. For example, none of its officials can testify that they observed an inspector in the act of stealing trade secrets rather than of obtaining legitimate information for the inspection. All Company B may be able to point to as proof is the sequential timing of events: the CWC inspection occurred, shortly thereafter Company A experienced a dramatic improvement in its production efficiency, and then prices for Product C dropped swiftly in Country A. It is doubtful whether such evidence alone would be enough to establish a prima facie case, and it certainly would fail to carry the burden of persuasion at trial. Legitimate reasons might exist to explain Company A’s sudden success, such as a research breakthrough of its own, a decision to gain market share at the expense of profits, or simply an effort to increase production levels, even at an operating loss, to maintain employment. Allowing Company B to state a prima facie case without evidence of the inspector’s actions might have the broader effect of allowing American companies to force their overseas competitors into costly and slow litigation, just because the companies can show that a search had occurred, followed by price cutting by foreign competitors. No doubt, foreign countries will protest, if not retaliate against, a legal process that could interfere with legitimate commercial competition in the marketplace.

Finally, a last problem is raised due to the possibility of conflicting national policies. Under our Constitution and laws, the inspector’s actions would violate either the Takings Clause, if he were a government official, or intellectual property laws, if he were a private citizen. Other nations, however, may not recognize the policies behind either the Constitution’s bar on public appropriation of private property or our laws’ protection for inventions. For example, the inspector might hail from a country that does not require the government to reimburse its citizens for takings of property, or that has such a legal principle but rarely enforces it. The inspector’s nation might not have enacted intellectual property laws that protect inventors’ rights as rigorously as American laws do. Such might especially be the case with developing countries, which may have chosen to seek quicker economic progress by reducing the ability of inventors to monopolize the benefits of their creations. Thus, even if an inspector’s theft of intellectual property violates the laws of the United States, it may not transgress the laws of his own nation, which might make that nation reluctant to cooperate with American efforts to investigate a theft by its inspector.

Because the CWC did not adequately address these Bill of Rights issues, Congress was left with the responsibility to adapt the treaty to constitutional requirements. Once ratified by the Senate, treaties such as the CWC may create binding international obligations upon the United States, but they do not automatically take effect as domestic law unless they specifically so state. Rather, such treaties require further legislation that implements the treaty’s requirements, thereby fulfilling our international obligations. Passed by the normal lawmaking process, including the House as well as the Senate and President, the executing legislation also must shape our treaty obligations in a manner that renders them consistent with the Constitution. Due to the Fourth and Fifth Amendment concerns discussed above, the CWC’s implementing legislation required significant political and legislative efforts to execute the treaty in an acceptable manner.

As a result, implementing legislation was delayed in Congress for several years, but was finally passed at the very end of the 105^th Congress. As part of the end-of-year omnibus law that funded the federal government’s budget, the Chemical Weapons Convention Implementation Act of 1998 enacted the regulation of Schedule 1, 2, 3, and other chemicals and the facilities that produce them, as called for by the Convention. The legislation further established the on-site verification regime set out by the treaty, and made violation of the CWC or efforts to impede its operation a crime under federal law. Most importantly, for our purposes, the Act also creates procedures for the issuance of warrants and the payment of just compensation for the theft of intellectual property.

Under the Act, a warrant must issue before CWC officials may conduct an inspection of a regulated facility. For facilities that are subject to regular monitoring and verification inspections because they fall within one of the CWC schedules, the Act follows the New York v. Burger example and does not require a criminal search warrant. Instead, it establishes an administrative warrant procedure that requires the government to show: a) that the CWC is in force in the United States; b) that the facility is subject to routine inspection under the CWC; c) that the purpose of the search is to verify that the facility’s activities are consistent with the information it has provided; d) the items to be searched; e) that the site was selected according to CWC procedures; and f) the time and duration of the search, among other things. The U.S. government must provide to the court all the information about the inspection provided by the Technical Secretariat, and it must seek the consent of the facility owner for the search. If the facility owner refuses, then the government may apply for the administrative warrant provided for by the statute, which closely tracks the requirements set out in New York v. Burger.

Noticeably absent, however, from the procedures governing routine inspections are the warrant elements of the Fourth Amendment. For example, the 1998 Act does not require that the government provide evidence, under oath, that probable cause exists in order to receive a warrant. As discussed in Section II.A., the legislation’s silence on this point makes the CWC vulnerable to constitutional challenge. As we saw, the Fourth Amendment permits warrantless administrative searches, such as those contemplated by the drafters of the CWC implementing act, only of those facilities that participate in industries that are subject to ongoing, pervasive regulation. To date, the Supreme Court has displayed a reluctance to find that the entire chemical industry is just such a regulated industry, and it also has refused to allow a regulatory scheme to bootstrap itself into the status of pervasive regulation. In other words, the CWC’s implementing legislation has failed to solve the warrant issue for routine searches, and at some point the federal courts will have to address whether the CWC has rendered the chemical industry into a pervasively regulated one subject to warrantless search, where before the CWC it was not.

If the courts do not consider the chemical industry to be pervasively regulated, then American judges will have to decide whether the national security concerns promoted by the CWC themselves are sufficient to justify a relaxation of the Bill of Rights. As noted before, the courts have found that other areas of pressing concern, such as exigent law enforcement situations, deserve reduced constitutional standards for the scrutiny of government activity. Some have proposed that national security interests also should justify reduced Bill of Rights restrictions on governmental action, although the Supreme Court has refused to recognize a national security exception to the Fourth Amendment or the First Amendment. While the executive branch may possess a national security power to act against non-citizens free from the restrictions of the Constitution, it has no such power against American citizens, certainly not on American soil.

Challenge inspections receive stricter constitutional scrutiny under the implementing legislation. Unlike routine inspections, challenge inspections require that the Technical Secretariat and the federal government obtain a criminal search warrant in order to enter the chemical facility of an owner who has withheld his or her consent. The government, therefore, must produce evidence of probable cause, on oath, and it must describe with particularity the places, persons, and things to be searched. The legislation requires that the government provide all appropriate evidence it has obtained from the Technical Secretariat or other sources concerning why the facility was selected, and the reasons why the other state party has provided for the challenge. While the law provides sufficient constitutional protections for facilities and locations under the Fourth Amendment, it is unclear whether the legislation will raise a fatal obstacle to the implementation of challenge searches. It seems likely, though, that in at least some cases federal judges will refuse to issue warrants. State parties, for example, that request challenge inspections may be reluctant to provide sufficient information to justify their demands, perhaps because doing so may compromise intelligence sources or methods. Without such information, however, a federal judge may be unable to find that probable cause exists sufficient to issue a criminal warrant. Even if a state party provides that information, a federal judge may not find it reliable, as it comes from outside the American law enforcement system. Ironically, the government may fine it easier to obtain criminal warrants in the case of routine inspections, where it has access to more information it can share with a court, than in the case of challenge inspections.

Congress more effectively addressed the Fifth Amendment issues raised by the CWC. Under Section 103 of the Act, Congress made the United States Government liable for any damages caused by the actions of the OPCW or the Technical Secretariat, either due to the theft of trade secrets or due to a tort. Aggrieved companies or individuals may bring a cause of action for recovery of damages, caused by the OPCW or Technical Secretariat, in federal court against the United States, which waives its sovereign immunity from suit. The Act requires that the plaintiff carry the burden of proof to establish a prima facie case that members of the OPCW or a Technical Secretariat inspection team, under color of their CWC authority, have taken "proprietary information" or have divulged such information without authorization. The cause of action applies even in those cases in which the inspection teams were legally entitled to obtain the intellectual property under the CWC, but disclosed it without authorization. Apparently, even public or unintentional dissemination of proprietary information may give rise to a damages suit. The statute, therefore, goes beyond the typical scenario of an inspection team member who might steal information intentionally for a foreign company or nation. It still leaves unanswered, however, several of the difficult questions identified earlier, such as proving a prima facie case when inspectors remain immune from judicial process, showing causation, and calculating damages. Nonetheless, Section 103 is a striking innovation, because it makes the United States government financially and legally responsible for the actions of an unaccountable third party, which may produce a moral hazard problem.

Putting aside the compensation provision, the 1998 Act also stands as a remarkable development in American economic sanctions policy. When we consider the subject of international economic sanctions, we tend to think of the embargoes and trade measures that the United States often imposes upon nations such as Iraq, North Korea, and Cuba under laws such as the International Emergency Economic Powers Act. The 1998 Act’s provisions, however, seem designed for use against friends as well as enemies. It orders the United States to seek "recoupment" of any damages it must pay under its compensation provisions from any members of the OPCW or Technical Secretariat responsible for the theft of intellectual property. Furthermore, the United States is to impose sanctions on any company or government that "knowingly assisted, encouraged or induced" the foreign citizen "to publish, divulge, disclose, or make known in any manner or to any extent" not authorized by the CWC any "United States confidential business information."

These sanctions can be harsh. If a company has participated in the theft of American intellectual property, the executive branch must impose three types of sanctions. First, it must forbid the export of military goods and technology to the company. Second, it must use its votes in international financial institutions to oppose any loans or other assistance to the business or the foreign citizen who stole the information. Third, it must prohibit any American bank from making loans or extending credit to the company, and it must block the movement of the company’s assets out of the United States. The assets are to be used to defray the costs of compensating the American plaintiff. If a foreign government has taken part in the theft of confidential business information, then the executive branch must impose similar sanctions upon that nation, and it also must terminate any economic, military, or financial assistance that the foreign nation receives from the United States. If the United States does not receive repayment, the President may decline to impose the sanctions only if he determines that the waiver of sanctions is necessary to protect American national security. Finally, following the example set by the 1996 Helms-Burton Act, the 1998 Act requires the Secretary of State to deny visas to any person who has participated in the theft or disclosure of confidential trade secrets, who "traffics" in such information, or who is a corporate officer, principal, or shareholder with a controlling interest in a company that was involved in the disclosure of information (so long as the American owner has a proven claim for the loss of the information). Like Helms-Burton, the 1998 CWC Implementation Act imposes sanctions on friendly nations and their companies in an effort to create incentives for them to take actions upon third-parties that are in the interests of the United States.

As with the Helms-Burton Act, the 1998 Act’s sanctions are sure to generate political controversy and international legal difficulties under the GATT. Our trading partners, in particular, may claim that the use of trade sanctions amounts to a violation of the GATT obligations of national treatment and most favored nation status, although the Act may fall within GATT’s national security exception. Regardless of the resolution of these issues, however, the 1998 implementation act will continue to provide a compensation remedy for those American citizens who suffer a taking or a tort due to the actions of CWC inspectors and officials. Congress thus was able to bring America’s international obligations under the CWC into line with the requirements of the Fifth Amendment’s Takings Clause. We cannot be as sanguine about the Act’s provisions relating to the Fourth Amendment’s prohibition upon unreasonable government searches and seizures, because in some areas the Act appears to establish insufficient protections for constitutional rights of privacy. Only a legal challenge in court, however, will provide a final resolution of the conflict between the Fourth Amendment and implementation of the CWC’s verification procedures.

III.

While the Bill of Rights concerns are important ones, they obscure a deeper, perhaps more important, structural issue: the exercise of governmental authority upon American citizens by international officials. Under different lines of case law, the Supreme Court has identified separate provisions of the Constitution that seek to guarantee basic accountability upon the actions of the government. In short, the Constitution requires that every exercise of public power upon a private citizen must be undertaken by an official who is either elected by the people or appointed by their elected representatives. These principles, however, may be undermined if the national government may vest public power in officials who lie outside the American governmental system. If the President and the Senate authorize an international organization to conduct searches on American soil, under color of federal law, they will have delegated public authority outside the governmental system established by the Constitution. Such maneuvers, however, may be necessary in order to secure the neutrality and independence of verification required by recent international agreements. In this respect, the CWC may be an example of a tension that will become only sharper as the United States seeks further multilateral solutions to problems that are global in scope.

The CWC’s signal innovation in the area of verification is its creation of an independent international agency, the OPCW and its Technical Secretariat, for the execution of routine and challenge inspections. The CWC is a watershed in the development of arms control because of its reliance upon its own verification methods, rather than upon national governments. This has the effect of rendering national governments transparent to international law in its ability to reach through the state into the lives of private citizens. Traditional international agreements usually place obligations upon the national governments of state parties, which then assume the responsibility of enforcing treaty terms upon their citizens. The CWC seeks to sidestep national governments by conducting inspections of privately-owned facilities and locations. Members of the Technical Secretariat, not American officials, choose the sites to be inspected, according to standards that they develop, and they conduct the searches, accompanied by American officers in an observer capacity. Members of the Technical Secretariat are not accountable to any American official, they are not appointed or elected by American officials, they cannot be removed by American officials, and they do not take orders from any American official.

The independence of the CWC’s verification mechanism is perhaps the critical component of the treaty. Its clear intention is to address the problem posed by state parties that cannot be trusted to carry out faithful verification of their own activities or to obey the treaty’s requirements. The creation of the independent verification regime is also designed to build trust between the state parties by vesting implementation in a neutral, impartial entity that is not beholden to any nation or alliance. Reassurance through verification helps alleviate fears of cheating, by engaging state parties in repeat encounters in which they can learn to cooperate and thereby make policy choices that increase overall security. This result, however, might not be possible without an independent, neutral verification process because the large stakes involved in national security issues might create obstacles to cooperation.

Although desirable from the perspective of international policy, it is precisely this independence and neutrality that produces constitutional problems. Vesting verification in an impartial international organization may build assurance and trust, but it also creates tensions with fundamental constitutional principles of government accountability and popular sovereignty. Two constitutional provisions – the Appointments Clause and the Executive Power Clause -- promote these values, and it is these clauses that pose obstacles for the future of international agreements like the CWC and the BWC. Recent Supreme Court decisions interpreting these clauses indicate that individuals who exercise significant federal authority must be appointed as officers of the U.S. government. By requiring that all officers of the United States undergo appointment and are subject to presidential control renders all who exercise national power answerable to the people’s elected representatives, who ultimately are responsible to the people themselves. Efforts to vest federal power in officials who do not undergo appointment according to constitutional requirements and who are not subject to presidential control come into conflict with constitutional principles of government accountability.

Turning first to the Appointments Clause, the Constitution establishes procedures for the creation and the filling of offices within the federal government. Under Article II, Section 2, Clause 2 of the Constitution, the President

By its text, the Clause classifies all officers of the United States into two categories: principal Officers and inferior Officers. Principal Officers, such as ambassadors, federal judges, and cabinet officers, must be nominated by the President and confirmed by the Senate. If Congress so chooses, inferior Officers may avoid this cumbersome process by undergoing appointment by the President, the courts, or cabinet secretaries. According to the Supreme Court, inferior Officers are distinguished from principal Officers because the former are limited to certain, discrete duties, are subject to removal by a higher executive branch official, and are of limited tenure and jurisdiction. While yet a third category of employee (such as secretaries, groundskeepers, and the like), without which the federal government could not function, is unmentioned in the Clause, it too has been recognized by the Supreme Court.

At first, one might think that the Appointments Clause is but an anachronism from the 18^th Century. In a series of recent cases, however, the Supreme Court has identified a broad principle of government accountability underlying the Clause. According to the Court, the Appointments Clause pursues two goals. First, the Clause prevents Congress from arrogating to itself the power to appoint federal officials who enforce federal law. Thus, in Buckley v. Valeo, the 1976 case that struck down parts of the federal campaign spending laws, the Court declared that the Appointments Clause prohibited Congress from appointing members of the Federal Elections Commission. In Morrison v. Olson, the 1987 case that upheld the independent counsel law, the Court permitted Congress to vest the appointment of the independent counsel in the federal courts, so long as the President retained ultimate removal authority over the counsel. In Printz v. United States, the 1997 case that invalidated the Brady handgun law’s background checks, the Court emphasized that Congress could not vest federal power in officials who were not removable by the President. Allowing Congress to vest executive power outside of the executive branch, the Court wrote, would undermine the independence and effectiveness of the Presidency.

Second, the Appointments Clause embraces broader concerns about the scope of national power and those who exercise it. If the Clause, for example, were limited only to certain types of federal officials, such as cabinet officers, then it would still permit the delegation of authority to officers outside the federal government. The Supreme Court, however, has answered this question by declaring that anyone who exercises significant federal authority must undergo the process outlined in Article II, Section 2 of the Constitution. By requiring the appointment of such officials, the Constitution prevents the national government from blurring the lines of responsibility between the people and their agents. It ensures that anyone that wields the power of the state is appointed by, and therefore controlled by, democratically elected officials, who themselves are monitored and controlled by the people. As Chief Justice Rehnquist wrote for the Court in a 1991 case, "The Clause is a bulwark against one branch aggrandizing its power at the expense of another branch, but it is more: it preserves another aspect of the Constitution’s structural integrity by preventing the diffusion of the appointment power."

In divining this principle from the Appointments Clause, the Court has been guided by the original understanding of the provision and the history of its drafting and adoption. Historical evidence -- too detailed to review here -- suggests that the framers sought to provide for the appointment of government officials in a manner that was open and accountable to the public. Shaped by their revolutionary experience with Great Britain, the framers wanted to avoid the diversion of public authority to individuals who were not accountable to the electorate, but instead were appointed by a distant government in which they had no representation. "Those who framed our Constitution," the Court observed in a recent Appointments Clause case, "addressed these concerns by carefully husbanding the appointment power to limit its diffusion." With a centralized appointment process, the people would know whom to turn to when the government acted improperly. "By limiting the appointment power," the Court has said, the framers "could ensure that those who wielded it were accountable to political force and the will of the people."

Two other structural elements of the Constitution reinforce the Appointments Clause’s promotion of government accountability. First, the Constitution creates a unitary executive branch that requires that all officials who enforce federal law remain subject to the President, who is the only member of the government elected by the entire nation. A vigorous debate continues in legal circles, between "formalists" and "functionalists," about how far Congress may go in shaping the organization and powers of the Presidency. Formalists believe that the Constitution creates only three types of government power – executive, legislative, and judicial –that are to be exercised by the three branches suited to those powers. Functionalists are willing to provide more flexibility to the political branches in arranging, allocating, and sharing government powers. This division in academia mirrors confusion in the Supreme Court’s recent separation of powers cases, which have wavered between formalist and functionalist approaches.

An effort to transfer power outside of the federal government, however, raises constitutional difficulties under either theory of the separation of powers. A formalist would argue that the power to execute federal laws, such as conducting searches or enforcing treaty provisions, is an executive one. Therefore, those powers can be exercised only by the President or those removable by him, in other words the members of the executive branch. A functionalist, too, would object, because the leading functionalist case – Morrison v. Olson – held that the President ultimately must have removal authority over all officers who exercise federal law, even if the Court recognized that Congress possessed some power to condition the removal power. Further, functionalists believe that the strict separation of powers can be relaxed only to further other governmental values, such as public accountability, which are undermined by the transfer of federal authority outside of the national government.

Second, a separate but related constitutional principle, known as the non-delegation doctrine, also enforces accountability in government. Ever since the New Deal, the Supreme Court has permitted the legislature to delegate significant administrative and rulemaking powers to the executive branch. According to the non-delegation doctrine, however, Congress may not delegate such authority without providing intelligible guidelines and standards for its use. Such standards prevent Congress from wholly abdicating its constitutional responsibility to formulate policy, and they ensure that Congress will remain responsible to the electorate for its legislative decisions. The non-delegation doctrine also seeks to preclude the executive branch from exercising lawmaking power without standards both to guide its discretion and to review its performance. It prevents Congress and the President from colluding in transferring public policymaking authority to those who are insulated from the electorate. Delegating authority outside of the national government overrides these safeguards, because Congress cannot enforce its standards through the usual legal and political methods that are used against the President and the administrative state. Such delegation also undermines the public-regarding nature of federal power and risks the capture of government policy by private interests. Because of these concerns, the Court in the New Deal period struck down laws that attempted to delegate to private industry the power to promulgate regulatory codes and standards.

These principles of government accountability, and their expression in the Supreme Court’s modern reading of the Appointments Clause and other provisions, create significant difficulties for the CWC. Simply put, the CWC requires the vesting of federal power in officials who are not member of, or responsible to, the federal government. Members of the Technical Secretariat and the OPCW are not appointed pursuant to the Appointments Clause, are not members of the executive branch, and are not removable by the President. Their decisions of where, why, and how to search a location within the United States are not made by officers of the United States, nor are their choices and methods subject to review by American officials. Within the borders of the United States, they operate with the authority of federal law behind them -- it is illegal, for example, for facility owners to interfere with the inspectors’ freedom of access. No legally-enforceable criteria constrains CWC officials in their selection of locations to search; in fact, some of the searches are to be conducted at random. Finally, they are immune from the ultimate check on government action that is provided by the national political process. Congress cannot use its oversight or funding powers to affect CWC inspections, nor can public criticism succeed in changing an inspection policy over which the President has no control.

These constitutional problems become almost inevitable once the decision is made that CWC inspectors must be both independent and vested with legal authority. The purpose of this paper, however, is to identify and discuss this tension, not to solve it. How this problem is resolved, however, will have a significant impact on the nation’s ability to conduct its foreign policy in the future. The CWC’s reliance upon an international organization, rather than on state parties, to conduct verification will serve as a model for future multilateral agreements. Future arms control measures, such as the BWC, will contain similar provisions for on-site verification. If successful, these procedures and legal structures are likely to spread beyond the arms control arena to other international regimes, such as those involving the environment, labor, and human rights, that attempt to regulate not just state behavior, but the conduct of private parties within the state. As the United States decides whether to promote a world of multilateral solutions to international problems, it will have to address how its Constitution will affect its ability to live up to its national commitments.