Cato Institute News Release September 28, 2000 Enforcement Of Biological Weapons Convention Would Be Unconstitutional Protocol would violate Fourth, Fifth Amendments and appointments clause WASHINGTON -- One unfinished piece of business on President Clinton's agenda is the development of a new "enforcement protocol" for the Biological Weapons Convention (BWC), the 1972 treaty that bars signatories from producing or using lethal biological agents. But whether the president submits the protocol to the Senate for ratification or leaves the task to his successor, enforcing the BWC is so fraught with constitutional problems as to render the effort futile, according to a new Cato Institute study released today. In "Constitutional Problems with Enforcing the Biological Weapons Convention," Ronald D. Rotunda, visiting senior fellow in constitutional studies at the Cato Institute, notes that while the United States should continue to renounce the use of biological weapons, "the protocol will undermine the privacy rights that U.S. citizens expect and that the Fourth Amendment guards, will interfere with the safeguards that the appointments clause was designed to guarantee, and will compromise the intellectual property rights that the Fifth Amendment protects." Instead of allowing foreign inspectors access only to public property, the enforcement protocol would expand access to allow searches of private individuals and companies "without the strict protections of the Fourth Amendment and its requirement that a search warrant be issued by a neutral magistrate only after a finding of probable cause," says Rotunda. "The protocol's search of private property must be unusually thorough to have any chance of working effectively, but such invasive searches create a greater risk of a violation." The Constitution invests the executive branch of government with the power to appoint all "officers of the United States." International inspectors under the BWC protocol "would have police power over private parties but . . . would not be subject to appointment and removal by any U.S. official in the normal manner," Rotunda says. "The Supreme Court has made clear that the framers created and limited the appointment power to 'ensure that those who wielded it were accountable to political force and the will of the people.'" BWC inspectors would have no such accountability. Finally, because the BWC protocol would give international inspectors access to private companies on the cutting edge of technology, "intrusive inspections create a serious risk of industrial espionage by foreign inspectors -- many of whom come from nations that often do not respect intellectual property rights," says Rotunda. Companies that have their trade secrets stolen would face difficulty in getting compensation guaranteed by the Fifth Amendment, as inspectors may be outside the jurisdiction of U.S. courts by the time the theft is discovered or may have diplomatic immunity. Foreign Policy Briefing no. 61 (http://www.cato.org/pubs/fpbriefs/fpb-061es.html) Contact: Ronald D. Rotunda, visiting senior fellow in constitutional studies, 202-218-4600 Randy Clerihue, director of public affairs, 202-789-5266 The Cato Institute is a nonpartisan public policy research foundation dedicated to broadening policy debate consistent with the traditional American principles of individual liberty, limited government, free markets, and peace. ----- End forwarded message -----