Fourth Amemdmnieinit Issues Raised by Chemical Weapons
T he inspection regime to be created by the Convention on the Prohibition of the Development, Produc
tion, Stockpiling and Use of Chemical Weapons and on Their Destruction and by the proposed
Chemical W eapons Implementation Act, under which inspections o f facilities that produce certain
chem icals would occur, absent exigent circumstances, only after the United States Government
obtained the consent o f the owner o r operator o f the facility, an administrative warrant, or a crimi
nal search warrant, is consistent with the Fourth Amendment to the Constitution.
September 10, 1996
Statem ent B e f o r e the S u b c o m m it t e e on the
C o n s t it u t io n , F e d e r a l is m , and P r o p e r t y R ig h t s o f th e
S en a te C o m m it t e e on the J u d ic ia r y
I appreciate being given the opportunity to address this Subcommittee on the
Fourth Amendment Issues raised by both the Convention on the Prohibition of
the Development, Production, Stockpiling and Use of Chemical Weapons and on
Their Destruction (the “ Convention” or “ CWC” ) and the Chemical Weapons
Implementation Act (the “ Act” ) currently before Congress.
The Senate, with respect to the Convention, and the Congress, with respect to
the Act, now have the opportunity to contribute to the world-wide effort to elimi
nate the scourge of chemical weapons. Ratification of the Convention and passage
of the Act also will represent positive steps towards the goal of reducing the threat
posed by terrorists, a goal shared by the President and the Congress. Before I
discuss specific aspects of the inspection regime established under the Convention
and the Act, and the application of the Fourth Amendment thereto, I think it is
important to remind the Subcommittee that the commitment to achieving a global
ban on chemical weapons, and to doing so within our constitutional framework,
has been a bipartisan one. Negotiations on the Convention commenced during
the Administration of President Reagan; the Convention was signed under Presi
dent Bush. President Clinton is fully pledged to ratification of the Convention
and enactment of the implementing legislation.
We have reviewed this Convention and this Act and have concluded that the
inspection regime they would create will not compromise the guarantees of the
Fourth Amendment. The right of the people to be free from unreasonable searches
and seizures, as much as any specific provision of the Constitution, represents
a check on the power of government. At the same time, the Fourth Amendment
stands as a solemn declaration of the right to conduct one’s affairs in private.
Over eighty years ago, the Supreme Court observed that the duty of giving force
and effect to the Fourth Amendment “ is obligatory upon all entrusted under our
Federal system with the enforcement of the laws.” Weeks v. United States, 232
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U.S. 383, 392 (1914). This Administration, the Department of Justice, and I have
an abiding conviction in this principle.
Both the Convention and the Act have been painstakingly drafted to put in
place an effective, verifiable ban on the development, acquisition, and use of
chemical weapons. But none of their provisions in any way contemplates or per
mits conduct in contravention of the Fourth Amendment. Indeed, the inspection
provisions were drafted to be fully consonant with the dictates of search and sei
zure law.
To ensure compliance with the CWC prohibitions and requirements, the Con
vention and its implementing legislation would permit two types of verification
inspections: routine (which will apply to three Schedules of chemicals) and chal
lenge. I will address each type of inspection in turn.
Routine Inspections. All facilities, both public and private, that are “ declared”
as producing scheduled chemicals as set forth under the CWC would be subject
to routine inspections. The Technical Secretariat of the CWC’s Organization for
the Prohibition of Chemical Weapons (“ OPCW” ) would select such facilities for
inspection based on neutral and objective criteria. The purpose of the routine in
spection is strictly limited: to determine the accuracy of declarations and to deter
mine whether activities are in accordance with CWC obligations. Other than those
facilities that produce the very restricted amounts of chemicals set forth under
Schedule 1, no declared facility would be subject to routine inspection more than
twice a year.
As an initial matter, the Administration anticipates that most inspections — rou
tine and challenge — will be conducted with the consent of the owner or operator
of the facility at issue. It is important to keep in mind that the chemical manufac
turing industry itself strongly supports the ratification and implementation of the
CWC and its verification inspection scheme. Where available, the specifics of
these inspections will be dictated by facility agreements entered into between the
U.S. Government and the OPCW. If consent were to be denied, however, absent
exigent circumstances, the U.S. Government would seek an administrative warrant
to inspect a specific facility.
This inspection scheme is fully consistent with Fourth Amendment principles.
The Fourth Amendment requires that “ subject only to a few specifically estab
lished and well-delineated exceptions,” K atz v. United States, 389 U.S. 347, 357
(1967), searches and seizures conducted in the absence of “ a judicial warrant
issued upon probable cause and particularly describing the items to be seized”
are per se unreasonable. United States v. Place, 462 U.S. 696, 701 (1983). The
Fourth Amendment’s warrant and probable cause requirements do not apply to
a particular search, however, when the party to be searched provides consent.
Schneckloth v. Bustamonte, 412 U.S. 218 (1973). I thus would emphasize that
the warrant provisions under the CWC and its implementing legislation would
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apply only to the small minority of inspections as to which consent might be
withheld.
The Fourth Amendment’s prohibition on unreasonable searches and seizures ap
plies to administrative searches of private commercial property. See See v. City
o f Seattle, 387 U.S. 541, 543-44 (1967). The expectation of privacy in commercial
premises, however, is less than the similar expectation in one’s home. See id.
at 545-46. For purposes of an administrative search, “ probable cause justifying
the issuance of a warrant may be based not only on specific evidence of an exist
ing violation but also on a showing that ‘reasonable legislative or administrative
standards for conducting an . . . inspection are satisfied with respect to a par
ticular [establishment].’ ” M arshall v. B arlow ’s, Inc., 436 U.S. 307, 320 (1978)
(footnote omitted) (quoting Cam ara v. M unicipal Court, 387 U.S. 523, 538
(1967)). With respect to closely regulated industries, the Supreme Court has held
that “ [t]his expectation is particularly attenuated.” N ew York v. Burger, 482 U.S.
691,700(1987).
In part due to the extensive environmental, health, and safety issues inherent
in its activities, the chemical manufacturing industry is already subject to pervasive
governmental regulation. The Resource Conservation and Recovery Act, the Toxic
Substance Control Act, the Clean Air Act, and the Clean Water Act, to a greater
or lesser degree, apply to most of the U.S. facilities that will be declared under
the CWC. Through ratification of the CWC and enactment of its implementing
legislation, the chemical manufacturing industry similarly would be subject to their
regulatory scheme. To ensure compliance with its terms, the CWC and the Act
provide for “ ‘reasonable legislative or administrative standards for conducting
an . . . inspection.’ ” Barlow’s, 436 U.S. at 320 (quoting Camara v. Municipal
Court, 387 U.S. at 538). All facilities that would be subject to routine searches
under the CWC are part of this industry, and would be declared under the CWC
and thus on notice that routine inspections would take place. For these facilities,
there would be sufficient basis for obtaining administrative search warrants to con
duct verification inspections where consent is denied. In those cases, a warrant
would be sought prior to initiation of an inspection, in the absence of exigent
circumstances.
Challenge Inspections. The second type of inspections are the challenge inspec
tions. If a State Party makes a specific allegation of non-compliance, it may re
quest that the suspect facility be made subject to a challenge inspection, whether
or not that facility was declared.
Declared facilities selected for a challenge inspection would be subject to in
spections in the same manner as provided under the CWC and the Act for routine
inspections: pursuant to either consent or an administrative search warrant. Facili
ties that are undeclared, however, likely would not fall within the closely regulated
industry of chemical manufacturing. Therefore, the government may not be able
to obtain administrative search warrants to conduct such inspections. Instead, for
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the small number of undeclared facilities where consent to inspect is denied, and
where an administrative warrant is unobtainable, the Fourth Amendment, in the
absence of exigent circumstances, may require that a criminal search warrant be
secured. This warrant would be based on probable cause to believe that a violation
of the Act or Convention has been or is being committed.
In certain instances, insufficient evidence may exist to establish criminal prob
able cause within the meaning of the Fourth Amendment. Thus, a search warrant
would be unobtainable. The CWC anticipates this possibility and would not force
a choice between compliance with its terms, and adherence to our constitutional
principles. Rather, the Convention specifically allows the U.S. Government, in
granting access to facilities identified for challenge inspections, to “ tak[e] into
account any constitutional obligations it may have with regard to proprietary rights
or searches and seizures.” See Verification Annex of the CWC, pt. X, para. C.41.
Hence, in the rare event that the Fourth Amendment would pose a bar to a search
of premises identified for a challenge inspection and the inspection could not go
forward, the United States would remain in full compliance with its obligations
under the CWC.
Issuance o f Warrants. Next, I would like to discuss specifically how warrants
would be issued under the Act. Once the Lead Agency representing the U.S. Gov
ernment provides sufficient information to support a finding of administrative
probable cause, the Act directs the authorized official to issue promptly a search
warrant authorizing the requested routine or challenge inspection. To demonstrate
probable cause for an administrative warrant, the government must submit an affi
davit stating that the CWC is in force for the United States; the facility to be
inspected is subject to the specific type of inspection requested by the OPCW;
the procedures established under the CWC and the Act for initiating the inspection
have been complied with; and the Government will undertake to ensure that the
inspection is conducted in a reasonable manner, not to exceed the scope or dura
tion set forth in, or authorized by, the CWC and the Act. In turn, the administrative
warrant must specify the type of inspection authorized and its purpose; the type
of facility to be inspected and its location; the items, documents, and areas that
may be inspected; the commencement and concluding dates and times of the in
spection; and the identities of the representative of the Technical Secretariat of
the OPCW, and of the representatives of the Lead Agency.
Additional Protections. The inspection regime set forth in the Act contains a
number of provisions designed to protect individual rights. Written notice must
be provided to the owner and to the operator, occupant, or agent (“ operator” )
in charge of the premises to be inspected. The notice must be submitted to the
owner or operator as soon as possible after the U.S. Government receives it from
the Technical Secretariat. The notice must include all appropriate information sup
plied by the Technical Secretariat regarding the basis for the selection of the facil
ity. For challenge inspections, this notice will specify the nature and circumstances
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of the alleged non-compliance, as well as all appropriate information serving as
the basis for the challenge.
In addition, the Act provides that if an owner or operator of the premises is
present, a member of the inspection team and the U.S. Government representative
must present appropriate credentials. Consistent with the time frames set forth
in the CWC, each inspection must commence and be completed promptly. The
time, scope, and manner of the inspection must be reasonable. To the extent pos
sible consistent with the CWC, no inspection may extend to financial, sales and
marketing (other than shipment), pricing, personnel, research, or patent data, or
data maintained for compliance with environmental or occupational health and
safety regulations.
Under the CWC and the Act, facility agreements must be concluded for all
Schedule 1 facilities, and for Schedule 2 facilities, unless the owner or operator
of the premises and the Technical Secretariat concur that such an agreement is
unnecessary. The owners or operators of Schedule 3 facilities and other chemical
production facilities subject to inspection under the CWC have the option of re
questing a facility agreement if they so desire. The Act provides that, if a request
is made, the U.S. Government should negotiate and conclude a facility agreement.
The owner or operator shall have the right, to the extent practicable consistent
with the obligations of the United States under the CWC, to participate in the
preparation for, and observe the negotiation of, this agreement.
If the U.S. Government has signed a facility agreement with the OPCW gov
erning a particular facility, any routine inspection of that facility must be con
ducted in accordance with such agreement. Because these agreements will estab
lish detailed procedures that will control the conduct of inspections of affected
facilities, the agreements will encourage owners and operators to consent to an
inspection and grant access to their facilities.
In my opinion the Chemical Weapons Convention and the Implementation Act
reflect a supreme effort and an extraordinary accomplishment. A measurable step
has been taken to make the world a safer place in which to live and, at the same
time, the principles set forth in the Fourth Amendment of the U.S. Constitution
have been scrupulously observed. I would thus urge the Senate to consent to ratifi
cation of the Convention and Congressional passage of the Act.
RICHARD L. SHIFFRIN
D eputy Assistant Attorney General
Office o f Legal Counsel
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Combined Opinion