Professor John Yoo*
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)
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
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.
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
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.
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.
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)
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 inspectors(11) and army chaplains(12)
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
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.
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
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
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
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
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.
- 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
- S. 1732, 104th Cong., 2d Sess. (1996).
- U.S. Congress, Office of Technology Assessment,
The Chemical Weapons Convention: Effects on the United States
Chemical Industry (1993).
- Convention, supra note 1, art, IX, para. 8.
- Morrison v. Olson, 487 U.S. 645, 671 (1988).
- Buckley, 424 U.S. at 125
- Weiss v. United States, 114 S. Ct. 752, 765
(1994) (Souter, J., concurring).
- Buckley v. Valeo, 424 U.S. 1, 126 (1976).
- 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).
- Freytag, 111 S. Ct. at 2640.
- McGrath v. United States, 275 F. 294 (2nd Cir.
- 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).
- 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.
- The Federalist No. 77, at 517 (Alexander Hamilton).
- Johnson v. United States, 333 U.S. 10 (1948).
- U.S. Const. amend. IV ("no Warrants shall
issue but upon probable cause, supported by Oath or affirmation").
- Ibid; Franks v. Delaware, 438 U.S. 154 (1978).
- U.S. Const. amend IV.
- New York v. Burger, 482 U.S. 691, 703 (1987).