[Congressional Record Volume 143, Number 49 (Wednesday, April 23, 1997)]
[Senate]
[Page S3543]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                        CONSTITUTIONAL CONCERNS

  Some opponents of the CWC have alleged that it will violate the U.S. 
Constitution by permitting international inspectors to conduct 
warrantless searches of U.S. facilities. Actually, a number of legal 
scholars have noted the specific constitutional protections written 
into the convention. To ease any members' lingering concerns, however, 
two important agreed conditions have been added.
  Condition 28 makes it crystal clear that no warrantless searches will 
be permitted when access to inspectors is denied. All challenge 
inspections will require a criminal warrant based upon probable cause 
when consent to that inspection is withheld. An administrative warrant 
will be required for routine inspections of declared U.S. facilities 
when consent has been withheld. Both of these warrants must be issued 
by a Federal judge--either a U.S. District Court judge or a U.S. 
magistrate judge.
  Condition 28 was reached through the combined efforts of the majority 
leader, Senator Helms, the administration and myself. It represents a 
significant concession by the administration, as the Constitution does 
not require administrative warrants in cases of highly-regulated 
industries. Condition 28 reflects the executive branch's confidence 
that any challenge inspection mounted in the United States will, 
indeed, be based on sufficient evidence to justify a criminal search 
warrant.
  I want to compliment the majority leader, in particular, for his 
efforts on condition 28. I would certainly hope that the concessions he 
obtained from the administration on this major issue would reassure him 
that the CWC's important contributions to the national security will be 
achieved without any violation of people's constitutional rights or any 
undue costs or harm to U.S. persons.
  Condition 12 makes clear that nothing in the CWC requires or 
authorizes anything that is prohibited by the U.S. Constitution, as 
interpreted by the United States. No administration would agree to a 
treaty that violated the constitution, no treaty ever takes precedence 
over the constitution, and only the United States interprets our 
Constitution. The administration is quite willing, therefore, to accept 
a condition stating these facts.