01 Apr 1997 Citizens’ Letter on the Chemical Weapons Treaty
April 1997
Dear Senator,
We are writing as members of a coalition that that works on many fronts to preserve the constitutional freedoms enjoyed by Americans. Typically, our work has included advocating the inclusion of constitutional protections in the formation of environmental and regulatory policy, but today we are writing to express our concern that ratification of the Chemical Weapons Treaty, which the Senate is expected to consider in April, would negate some of the American people’s Fourth and Fifth Amendment protections.
Judge Robert Bork has written the following about the treaty, should it be ratified:
“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.
“…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…”
In addition, Ronald Rotunda, a professor of the University of Illinois College of Law who is widely recognized as one of the nation’s leading constitutional scholars, has written:
“…The CWC will authorize intrusive inspections of thousands of private facilities, businesses and homes, resulting in the violation of the Fourth Amendment and the taking of intellectual property for which this country must provide just compensation.”
The Clinton Administration is arguing that “the President’s ‘national security powers’ would justify inroads on the Fourth Amendment.” As a matter of constitutional law and Supreme Court precedent (particularly the Supreme Court 1978 case of Marshall v. Barlow’s, Inc.), we disagree, although we note that in making this argument the Administration does, at least, acknowledge that ratification of the Chemical Weapons Treaty in its present form would negate Fourth Amendment protections.
Senator, the Fourth and Fifth Amendment protections enjoyed by the American people should not be negotiated away by the Clinton Administration. The businesses and homes of Americans should not be searched without warrants and property belonging to American citizens, intellectual or otherwise, should not be confiscated without just compensation. We ask you not to support any treaty that puts these cherished and time-honored constitutional protections at risk.
Sincerely yours,
[Signers]