Truth or Consequences #1: Center Challenges Administration Efforts to Distort, Suppress Debate on C.W.C.

(Washington, D.C.): Like a saturation
bombardment of toxic gas on a World War I
battlefield, proponents of the Chemical
Weapons Convention (CWC) have suddenly
unleashed a barrage of Cabinet-level
public statements and op.eds.,
departmental letters, government fact
sheets and interest group point papers.
The purpose seems to be to asphyxiate
informed debate about this treaty with
billowing clouds of false or misleading
information, even as the Convention’s
critics are wrongly accused of doing the
same thing.

For example, in a letter written to
Senators on 14 January 1997, Dr. Lori
Esposito Murray — the Special Advisor to
the President and ACDA Director on the
Chemical Weapons Convention — took
strong exception to correspondence
authored by a large and distinguished
group of former senior civilian and
military officials who oppose
ratification of the CWC in its present
form. The latter include: former
Secretaries of Defense Dick
Cheney, Donald Rumsfeld
and Caspar Weinberger,
former U.N. Ambassador Jeane
Kirkpatrick, former Secretary of
State Alexander Haig and
former National Security Advisor to the
President William Clark.

Dr. Murray declared that the Cheney
et.al. letter “contains significant
misinformation about the
Convention.” She proceeds to cite
several portions of the letter (which was
circulated by the Center for Security
Policy originally last fall and again
earlier this month) href=”97-D14.html#N_1_”>⁽¹⁾,
which she characterizes as
“misstatements.” In opposition
to these alleged
“misstatements,” Dr. Murray
offers what she calls “facts.”

As a contribution to a real and
informed debate about the Chemical
Weapons Convention, the Center will be
issuing a series of Decision
Briefs in the coming days
briefly responding to each of Dr. Murray
points — and similar arguments on behalf
of the treaty made by others — that have
the effect of confusing or distorting, if
not actually suppressing, such a debate.

CWC Will Impinge
Upon Americans’ Constitutional Rights

As Secretaries Cheney, Rumsfeld,
Weinberger and their colleagues noted in
the joint letter: “We are concerned
that the CWC will jeopardize U.S.
citizens’ constitutional rights by
requiring the U.S. government to permit
searches without either warrants or
probable cause.” Dr. Murray
describes this as a
“misstatement” and declares as
a “fact” that:

“The Administration expects
that access to private facilities
will be granted voluntarily for
the vast majority of inspections
under the CWC. If this is not the
case, the United States
Government will obtain a search
warrant prior to an inspection in
order to ensure that there will
be no trampling of constitutional
rights.”

On 9 September 1996, Department of
Justice officials publicly acknowledged
in testimony before the Senate Judiciary
Committee that in such cases a criminal
warrant would be required. The
problem is that obtaining such a warrant
from a court would require demonstration
of probable cause. This
will be impossible in most cases because
the nation requesting an inspection need
not cite its reasons for making such a
request.

Hence, the Clinton
Administration faces a difficult choice.
If the U.S. government respects its
citizens’ rights not to be subjected
involuntarily to searches in the absence
of judicial warrants, it will be creating
a precedent other countries will
assuredly cite to refuse on-site
inspections on their territories. If it
does not respect those rights, it will be
acting in an unconstitutional manner.

Judge Bork Is Concerned
About the Treaty’s Constitutional Impact

In a letter sent to Judiciary
Committee Chairman Orrin Hatch last
August, a respected constitutional
scholar and distinguished federal judge,
Robert H. Bork, expressed the view that
“there are grounds to be concerned
about [CWC provisions’] compatibility
with the Constitution.” He wrote:

“Fourth and Fifth Amendment
concerns are raised by the United
States’ obligation to open to
on-site inspections any facility,
whether in the public sector or
privately owned. Apparently,
no probable cause need be shown.
A foreign state will have the
right to challenge inspection of
a U.S. facility without the
grounds that are essential for a
search warrant.

“The U.S. is required by the
CWC to enforce inspection by an
international team, even over
opposition from the owner.
On-site personnel can be
compelled to answer questions,
provide data, and permit searches
of anything within the premises
— including records, files,
papers, processes, controls,
structures and vehicles.

“Whatever the merits
otherwise of the claim that the
‘pervasively regulated
industries’ exception avoids the
Fourth Amendment problems, it is
my understanding that the
majority of the 3,000-8,000
companies expected to be covered
are not pervasively regulated.

“Additional Fifth Amendment
problems arise from the authority
of inspectors to collect data and
analyze samples. This may
constitute an illegal seizure
and, perhaps, constitute the
taking of private property by the
government without compensation.
The foreign inspectors will not
be subject to punishment for any
theft of proprietary information.

“American citizens will have
fewer rights to information
concerning investigations
concerning them or their
businesses than they would if
investigated by a U.S. agency.
Freedom of Information requests
will not be permitted under the
proposed CWC implementing
legislation….

“…The owner of a facility
will [likely] be faced with an
international inspection team,
backed up by the U.S. government,
demanding access to his property
and demanding answers and
documents from his employees. No
one will be shown a search
warrant and, so far as I can
gather, the owner or employee
must decide on the spot whether
he has a constitutional right to
refuse what is demanded. If he
refuses and turns out to be
wrong, he will face punishment.
At least a citizen shown a search
warrant knows that a judge has
deemed the search constitutional.

“The provision in question
speaks of constitutional
obligations with regard to
property rights or searches and
seizures. That does not cover the
Fifth Amendment right not to
incriminate oneself. Yet
self-incrimination is a real
danger for people required to
answer questions, turn over
documents and other matter.”

Judiciary Committee Chairman
Henry Hyde is Also Concerned

On 28 August 1996, Chairman Hatch
received a letter from his House
counterpart, Rep. Henry Hyde. It
expresses similar misgivings to those
addressed by Judge Bork. Rep. Hyde asked:

“How can we accede to an
arrangement that grants an
international inspection agency
the right to demand access to
thousands of privately owned U.S.
facilities without requiring the
foreign inspectors to demonstrate
probable cause necessary to
secure a judicial warrant —
except by compromising the
American owners’ constitutional
rights?

“Similarly, how can those
owners be denied due process —
or, for that matter, the right to
sue for damages in the likely
event that the foreign inspectors
use their eighty-four hours of
on-site inspection to elicit
sensitive proprietary data and
then that data finds its way into
the hands of competitors
overseas? As you are well aware,
there is growing concern about
illegal commercial espionage. If
we are not careful, it would
appear that we may be creating
through the CWC a legal
opportunity for carrying out such
intelligence collection, to the
severe detriment of America’s
competitive position.

“A further concern arises
from the fact that the new
Organization for the Prohibition
of Chemical Weapons will be
significantly less accountable
than U.S. regulatory agencies for
information collected in the
course of international
inspections of American
businesses. I understand that the
draft implementing legislation
proposes to preclude requests
about OPCW inspections that might
otherwise be made under the
Freedom of Information act.

“…Whatever one
thinks…about the wisdom of
ratifying a treaty that is
inherently unverifiable,
unenforceable and inequitable,
the likelihood that it will
compromise the constitutional
rights of many thousands of
American companies and their
owners and employees should be
sufficient grounds for its
rejection.”

The Bottom Line

Clearly, there are grounds for concern
about the constitutional impact of the
Chemical Weapons Convention. These cannot
be dismissed as “misstatements”
or “myths.” Neither can
consideration of such issues be
responsibly deferred — as some treaty
proponents are arguing — until after
the CWC is ratified by the United States.
At that point, the theoretical option of
building safeguards into the implementing
legislation will be a non-starter, at
least from a practical point of view, to
the extent such protections would
conflict with “the supreme law of
the land,” i.e., a ratified treaty.
Accordingly, the Center for Security
Policy encourages members of the Senate
to examine the constitutional and other,
serious problems with the Chemical
Weapons Convention prior to any further
consideration of this accord.

– 30 –

1. See the Center’s
Transition Brief
entitled Here We Go Again:
Clinton Presses Anew For Senate Approval
of Flawed, Unverifiable, Ineffective
Chemical Weapons Treaty ( href=”index.jsp?section=papers&code=97-D_5″>No. 97-T 5, 8
January 1997).