Fourth Amemdmnieinit Issues Raised by Chemical Weapons

The inspection regime to be created by the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction and by the proposed 

Chemical Weapons Implementation Act, under which inspections of facilities that produce certain 

chemicals would occur, absent exigent circumstances, only after the United States Government 

obtained the consent of the owner o r operator of the facility, an administrative warrant, or a criminal search warrant, is consistent with the Fourth Amendment to the Constitution.

September 10, 1996

St a te m e n t Be f o r e t h e S u b c o m m it t e e o n t h e

C o n s t it u t io n , Fe d e r a l is m , a n d P r o p e r t y R ig h t s o f t h e

Senate C o m m it t e e o n t h e 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 eliminate 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 President 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 permits conduct in contravention of the Fourth Amendment. Indeed, the inspection 

provisions were drafted to be fully consonant with the dictates of search and seizure law.

To ensure compliance with the CWC prohibitions and requirements, the Convention and its implementing legislation would permit two types of verification 

inspections: routine (which will apply to three Schedules of chemicals) and challenge. 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 inspection is strictly limited: to determine the accuracy of declarations and to determine 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 — routine 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 manufacturing 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 established and well-delineated exceptions,” Katz 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 applies 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 existing violation but also on a showing that ‘reasonable legislative or administrative 

standards for conducting an . . . inspection are satisfied with respect to a particular [establishment].’ ” Marshall v. Barlow’s, Inc., 436 U.S. 307, 320 (1978) 

(footnote omitted) (quoting Camara v. Municipal 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 conduct 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 inspections. If a State Party makes a specific allegation of non-compliance, it may request 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 inspections in the same manner as provided under the CWC and the Act for routine 

inspections: pursuant to either consent or an administrative search warrant. Facilities 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 probable 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. Government 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 affidavit 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 duration 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 inspection; 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 supplied by the Technical Secretariat regarding the basis for the selection of the facility. 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 possible 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 requesting 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 governing a particular facility, any routine inspection of that facility must be conducted in accordance with such agreement. Because these agreements will establish 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 ratification of the Convention and Congressional passage of the Act.

RICHARD L. SHIFFRIN 

Deputy Assistant Attorney General

Office of Legal Counsel

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