New Cato study on the Biological Weapons Convention

[Patricia Mohr]

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.



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