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CHALLENGING CHALLENGE INSPECTIONS: A FOURTH AMENDMENT ANALYSIS OF THE CHEMICAL WEAPONS CONVENTION

JONATHAN P. HERSEY[*] AND ANTHONY F. VENTURA[**]

Copyright © 1998 Florida State University Law Review

I. INTRODUCTION
II. ANALYSIS OF THE TREATY AND DOMESTIC IMPLEMENTATION ACT
A. Foundations of the Treaty
1. Textual Mandates of the Treaty
2. Procedure for Challenge Inspections
B. Textual Mandates of the Implementation Act
1. Verification
2. The Importance of Challenge Inspections for Verification
C. Challenges to the Legality of Challenge Inspections
III. THE APPLICATION OF FOURTH AMENDMENT ANALYSIS TO THE TREATY AND IMPLEMENTATION ACT
A. Constitutional Supremacy
B. General Fourth Amendment Analysis
1. Challenge Inspections as Searches
2. Constitutional Warrant Requirement
C. Administrative Searches
1. The Camara Standard for Administrative Search Warrants
2. The Inapplicability of Administrative Search Warrants to Challenge Inspections
D. The Pervasively Regulated Industry Exception to the Administrative Search Warrant Requirement
1. Explanation of the Pervasively Regulated Industry Search Warrant Exception
2. The Application of the Pervasively Regulated Industry Search Warrant Exception to the Treaty Challenge Inspections
E. The Special Needs Exception to the Administrative Search Warrant Requirement
F. A Possible Reformulation of the Pervasively Regulated Industry Exception
G. National Security Exception
IV. THE UNCONSTITUTIONALITY OF THE IMPLEMENTATION ACT'S PROHIBITION OF INJUNCTIVE RELIEF
A. The Lack of Precedent Justifying a Ban on Injunctive Relief
1. The Norris-LaGuardia Act
2. Yakus v. United States
3. Battaglia v. General Motors Corp.
B. Injunctions Are the Only Appropriate Remedy
1. Injunctive Relief Is an Appropriate Remedy
2. No Appropriate Alternative Remedies Exist
3. The Unconstitutionality of Congress's Ban of the Only Appropriate Judicial Remedy
V. CONCLUSION

I. INTRODUCTION

The problem in defense is how far you can go without destroying from within what you are trying to defend from without.[1]

The development, production, and potential deployment of chemical weapons have become the greatest threat of mass destruction in the post-Cold War world.[2] Recent United States intelligence reports estimate that there are upwards of twenty-five nations that either currently possess stockpiles of chemical weapons or are in the process of developing them.[3] Moreover, these sources specifically name China,[4] India,[5] Iran,[6] Iraq,[7] Libya,[8] North Korea,[9] Pakistan,[10] and Syria[11] as likely chemical weapons proliferators.[12] As far as U.S. intelligence reports are concerned, each of these countries poses a substantial threat for the dissemination or use of chemical weapons.

In addition, the possibility that terrorist organizations will acquire chemical weapons continues to increase.[13] The March 1995 intentional release of deadly Sarin gas in a Japanese subway well-illustrates this point.[14] The knowledge and substances necessary to construct an even more lethal device are easily accessible, thus heightening the fear that such a scenario could be played out in other parts of the world—including in the United States.[15]

Furthermore, the dissolution of the Soviet Union has created a fear that large quantities of chemical weapons will escape Russian control.[16] High-ranking Russian officials admit that prior to its collapse in 1991, leaders of the former Soviet Union sold chemical weapons to Middle East countries, including Syria.[17] The potential supply of these weapons has not dried up. As economic hardship continues to mount in the new Russian republics, a logical fear exists that some of this stockpile may fall into unauthorized hands.[18] Russian soldiers charged with the duty of guarding insufficiently secured stores of chemicals might be easily bribed by would-be terrorists.[19] The result could be the unhindered spread of mass quantities of chemical weapons to irresponsible leaders and radical terrorist organizations.[20]

On January 13, 1993, in an effort to defend against the growing threat of chemical weapons described above, an international community of more than 120 nations signed the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, or the "Chemical Weapons Convention" (Treaty).[21] Since that time, forty additional countries have signed the Treaty.[22] On April 24, 1997, after a fervent political battle and heated legislative debate, the United States Senate ratified the Treaty, making the United States an original member of the Treaty.[23]

It is the contention of these authors that, in ratifying the Treaty and effectuating its verification requirements, the United States will jeopardize the protection of individual rights upon which our democracy was founded, and which the Treaty was designed to protect.

Part II of this Article interprets the text of both the Treaty and the domestic legislation that would implement the Treaty in the United States (Implementation Act),[24] in light of the individual constitutional rights guaranteed by the Fourth Amendment. Part II also discusses the scope of the Treaty's verification mechanisms, and specifically concentrates on the on-site and challenge inspections.

The Treaty's verification regime, unlike other arms control treaties, allows foreign inspectors to search private businesses and residences in the United States.[25] For this reason, Part III focuses on the applicability of Fourth Amendment legal analysis to the Treaty and its domestic Implementation Act.[26] Part III also considers each of the potential legal justifications upon which a court or magistrate might rely when deciding whether to grant a search warrant to government officials seeking to perform a challenge inspection search. Of course, before international authorities will be permitted to conduct a challenge inspection, they will be required to obtain a valid search warrant through domestic officials at the Department of Justice. Unfortunately, Department of Justice officials will likely be unable to satisfy the necessary constitutional requirements of the Fourth Amendment before such warrants are issued.[27]

Part IV addresses the U.S. government's proposed solution for ensuring that it does not unintentionally abrogate its Treaty obligations by failing to fulfill its obligation to facilitate challenge inspections. Notably, the language of the domestic Implementation Act strips the judiciary of its power to issue injunctive relief to private citizens seeking to prevent unconstitutional challenge inspections. This provision is designed to ensure that a judge cannot impede the United States' verification requirements by issuing an injunction that enjoins officials from conducting inspections without the requisite level of probable cause or reasonable suspicion. This legislative safeguard, however, undermines the protections of judicial enforcement of the Fourth Amendment[28] and therefore violates the Constitution.

This Article concludes that the Treaty, while founded upon the noble goal of ridding the world of these hideous weapons of mass destruction, is constitutionally infirm. The challenge inspections upon which the Treaty's effectiveness is based are made impractical by the necessity of their procedural compliance within the strictures of the Fourth Amendment.

II. ANALYSIS OF THE TREATY AND DOMESTIC IMPLEMENTATION ACT

A. Foundations of the Treaty

Since January 13, 1993, 160 nations have signed the Treaty.[29] The Treaty became effective 180 days after the sixty-fifth nation achieved domestic ratification, on April 29, 1997.[30] By that date, seventy-six ratifying nations, including the United States, had become original State Party members.[31]

The United States became an original State Party member when the Senate voted to ratify the Treaty on April 24, 1997.[32] However, U.S. ratification did not come easily. Despite leading the international effort to sign the Treaty in 1993, the United States nearly missed the deadline to join the Treaty as an original State Party member. Initially, the U.S. ratification process stalled as a result of several tangentially related political disputes. Despite President Clinton's attempts to acquire Senate ratification in the fall of 1996, Senator Jesse Helms, Chairman of the Senate Foreign Relations Committee, refused to release the Treaty from his committee.[33] Helms rejected Clinton administration pleas to pass the Treaty to the Senate floor for a ratification vote until other Republican priorities, such as the reformation of several supposedly antiquated foreign policy agencies, were completed.[34]

President Clinton and Senator Helms resolved their dispute by agreeing to a compromise consolidation plan.[35] Helms allowed the Treaty to be considered and debated by the Committee, which eventually voted to recommend ratification. He then sent the Treaty to the Senate for a full vote.[36] However, ratification encountered a second delay on the Senate floor. The original Senate debate occurred in September 1996, in the midst of the presidential campaign between President Clinton and Senator Robert Dole.[37] Fearing it lacked the number of needed votes to ensure ratification, the Clinton administration withdrew the Treaty from Senate consideration.[38]

After the election, President Clinton made ratification of the Treaty one of his most important foreign policy goals.[39] After another agreement with Senator Helms, the Treaty again passed from the Committee to the Senate floor, this time a week before the deadline to ratify the Treaty as an original member.[40] After several days of political maneuvering and the application of intense political pressure from the White House, the Treaty finally received the necessary two-thirds majority of votes.[41]

1. Textual Mandates of the Treaty

The purpose of the Treaty is not only to prevent the use of chemical weapons, but also to eliminate their production and stockpiling.[42] The Treaty attempts to achieve these goals through several means. First, the Treaty requires a State Party member to destroy existing stockpiles of chemical weapons within ten years after the Convention becomes effective.[43] Second, the Treaty has two different built-in verification mechanisms to guard against the prohibited use, stockpiling, or production of chemical weapons: routine inspections and challenge inspections.[44]

The Treaty divides actual and potential chemical weapons into three distinct schedules that list the toxic chemicals and their precursor chemical agents.[45] Schedule One is a list reserved for chemicals already converted to weapons status and which have a high potential for use in activities prohibited by the Treaty.[46] Schedule Two includes chemicals that possess such "lethal or incapacitating toxicity . . . that would enable [them] to be used as . . . chemical weapon[s],"[47] and are "not produced in large commercial quantities for purposes not prohibited under this Convention."[48] Schedule Three contains highly lethal toxins that may be produced in large commercial quantities for purposes not prohibited under the Treaty.[49]

For each facility containing a chemical covered under Schedules One, Two, or Three, the Treaty establishes a comprehensive routine verification regime. This routine regime includes such requirements as data monitoring and collection, self-reporting by businesses and state-operated facilities, and regular on-site inspections by an international enforcement directorate.[50]

More importantly, the Treaty also establishes a system of challenge inspections. The challenge inspections allow signatory State Parties to make immediate on-site inspections of any facility within the jurisdiction of another State Party member.[51] These challenge inspections are used to resolve disputes concerning questions of possible noncompliance.[52] To allow this verification system to function, the Treaty establishes a clear procedure to which State Parties must adhere.[53]

2. Procedure for Challenge Inspections

Any State Party member may request a challenge inspection of a facility inside the territory of another State Party member. The first step in initiating a challenge inspection is for a State Party member to submit a request for an inspection to the director-general and executive counsel of the Convention.[54] To prevent frivolous requests or unfounded challenge inspections, a State Party member's request must fall within the scope of Treaty guidelines by providing the director-general and executive counsel with all relevant information suggesting noncompliance.[55] Specifically, a State Party member's inspection request must contain at least the following information:

(a) The State Party member to be inspected and, if applicable, the Host State;

(b) The point of entry to be used;

(c) The size and type of the inspection site;

(d) The concern regarding possible non-compliance with this Convention including a specification of the relevant provisions of this Convention about which the concern has arisen, and of the nature and circumstances of the possible non-compliance as well as all appropriate information on the basis of which the concern has arisen; and

(e) The name of the observer of the requesting State Party member.[56]

The director-general must acknowledge receipt of the request for a challenge inspection within one hour of submission of the above information.[57] The director-general must then notify the State Party member to be inspected, and supply that State Party member with the same information listed above, not less than twelve hours before the planned arrival of the inspection team at the point of entry.[58] Once the request for a challenge inspection is officially submitted, the Executive Counsel has only twelve hours to reject the request.[59] For the executive counsel to reject the request, three-quarters of the majority must vote against permitting the inspection.[60] If the three-quarters majority is not met, then the request for a challenge inspection is considered approved.

Within twenty-four hours of arrival at the point of entry, the international inspection team must be transported to the point of inspection by the Host State Party member.[61] Not later than twelve hours after arriving at the inspection site, the inspection team must begin collecting data at the perimeter and exit points of the facility.[62] Within 108 hours of arrival, the Host State Party member must provide the inspection team with internal access to the facility.[63]

An observer from the State Party member that requested the challenge inspection is permitted to be at the site and to make recommendations to the inspection team.[64] It must also be informed as to the conduct and findings of the inspection by the inspection team.[65] Finally, the challenge inspection shall not last longer than eighty-four hours, unless by agreement of the Host State Party member.[66]

The Host State Party member has one significant measure to limit the scope of the search of the challenge inspection. The language of the Treaty guarantees that the Host State Party member may take into account any domestic constitutional obligations. The Treaty states in relevant part:

[T]he inspected State Party member shall be under the obligation to allow the greatest degree of access taking into account any constitutional obligations it may have with regard to proprietary rights or searches and seizures. The inspected State Party member has the right under managed access to take such measures as are necessary to protect national security. The provisions in this paragraph may not be invoked by the inspected State Party member to conceal evasion of its obligations not to engage in activities prohibited under this Convention.[67]
This provision is commonly referred to as the Treaty's "constitutional savings provision."[68] Supporters of the Treaty claim that the Host State Party member can theoretically use this provision to refuse access to a challenge inspection site if the inspection compromises national security or violates the Host State Party member's constitution.[69] However, such an interpretation of the constitutional savings provision is flawed for several reasons. First, it would be politically disastrous for a State Party member to invoke this provision. The Treaty intends for challenge inspections to serve as an immediate and effective means of verifying another State Party member's compliance.[70] The purpose of a challenge inspection is to expose a violation of Treaty restrictions or to alleviate the reasonable fear of the State Party member requesting the inspection.[71] Designed to instill confidence in the Treaty's verification mechanism, challenge inspections provide a State Party member broad and intrusive discretion to investigate suspected violations. Such discretion is required because of the ease with which other State Party members can easily produce, transport, and hide chemical weapons.

If the Host State Party member invokes the constitutional savings provision to deny access, neither of these goals is achieved. It is doubtful that verbal assurances of compliance could alleviate the requesting State Party member's fears. Thus, the effectiveness of the verification mechanism rests upon quick and virtually unrestricted access to inspections of suspect facilities. Without challenge inspections, State Party members would have no confidence in the Treaty's verification regime. The State Party member requesting the inspection, and the international community, would assume that a Host State Party member refusing to allow inspections was attempting to hide a Treaty violation.[72]

Furthermore, the integrity and effectiveness of the Treaty's verification mechanisms demand that the entire Treaty be reciprocal. For example, assume the United States requested a challenge inspection of an Iranian facility, but Iran denied access to protect the rights of the facility's owner. The United States could reasonably assume that the Iranians were merely covering up a treaty violation.[73] However, if the verification mechanisms are to function effectively, the United States must be as open to challenge inspections as it expects other nations to be.[74] The United States should not invoke the constitutional savings provision to protect the rights of private businesses and citizens without expecting to create perceptions of noncompliance with Treaty prohibitions on chemical weapons production and stockpiling.[75]

The Treaty also states that before a Host State Party member may deny the inspectors access to an area, the member is obligated to use "alternative means to clarify" why a limited-access area is not related to Treaty compliance obligations and, therefore, not subject to search.[76] However, it is hard to imagine an alternative means of demonstrating compliance or non-relation when the Host State Party member denies a team of international inspectors full access to the facility. The only proof of compliance would be the Host State Party member's own verbal assurances. If these were sufficient, the other State Party member would not have requested a challenge inspection in the first place.[77]

Reciprocity and the efficacious functioning of the verification regime demand that each Host State Party member resolve its own constitutional requirements without denying access to the inspection team. Therefore, the Host State parties have an obligation to place verification over national security concerns and must make every reasonable effort to demonstrate good faith when denying inspection requests.[78]

B. Textual Mandates of the Implementation Act

Like most arms control treaties, the Treaty is not self-executing—it requires that each State Party member form its own National Authority to oversee compliance with Treaty mandates.[79] It is the responsibility of each National Authority to act as liaison between that State Party member's government and the Organization for the Prohibition of Chemical Weapons (OPCW).[80] Each State Party member must also design its National Authority to ensure the smooth application of the Treaty's verification mechanisms.[81] Thus, the Implementation Act was designed to fulfill the United States' obligation to create a National Authority to ensure adhesion to the Treaty's constructs.[82]

Title I of the Implementation Act establishes the United States National Authority.[83] Section 101 requires the President to create such a National Authority, but vests the President with the proper discretion to decide which arm of the executive branch will oversee the Treaty's verification.[84]

Title IV of the Implementation Act governs the National Authority's procedure for handling inspections to be conducted in the United States.[85] Subsection 401(h) mandates that the National Authority assist inspected facilities in interactions with the inspection team.[86] Section 402 gives the President the power to decide which federal department to appoint to handle compliance with certain inspections.[87]

Title IV also imposes criminal and civil penalties on those who impede or hinder the National Authority's ability to help conduct the inspections permitted by the Treaty's verification regime.[88] Section 403 makes it "unlawful for any person to fail or refuse to permit entry or inspection, or to disrupt, delay, or otherwise impede an inspection as required by this Act or the Treaty."[89] Section 404 details the criminal and civil penalties for violations of section 403.[90] For example, subsection 404(a) provides for civil fines of up to $50,000 for refusing to provide an inspection team access to conduct a challenge inspection.[91]

Furthermore, the Implementation Act recognizes the need for the National Authority to provide timely access for challenge inspections at almost any facility in the United States. This includes challenge inspections of facilities where private individuals or businesses might refuse access by invoking their Fourth Amendment rights.[92] The purpose of the Implementation Act is to provide the National Authority with the ability and the authority to ensure that a challenge inspection occurs within the mandates of the Treaty and the Constitution.

Section 406 dictates the legal procedural framework for challenge inspections.[93] Section 406(a)(1) requires the Lead Agency to seek the consent of the owner of the premises prior to the inspection.[94] Either before or after seeking such consent, the Lead Agency may seek a search warrant from an official authorized to issue search warrants.[95] The official will conduct the search warrant hearing ex parte unless the Lead Agency decides otherwise.[96] The Lead Agency shall provide the information supplied by the Technical Secretariat concerning the basis for the selection of the site and the type of inspection requested in seeking the warrant.[97] In the case of challenge inspections, the Lead Agency will also provide the official with any appropriate evidence or reasons given to the Technical Secretariat by the State Party member requesting the inspection, or any other relevant information.[98]

Section 406(a)(2) specifically states:

The official authorized to issue search warrants shall promptly issue a warrant authorizing the requested inspection upon an affidavit submitted by the Lead Agency showing that—

(A) the Treaty is in force for the United States;

(B) the plant site, plant, or other facility or location sought to be inspected is subject to the specific type of inspection requested under the Treaty;

(C) the procedures established under the Treaty and this Act for initiating an inspection have been complied with; and

(D) the Lead Agency will ensure that the inspection is conducted in a reasonable manner and will not exceed the scope or duration set forth in or authorized by the Treaty or this Act.[99]

Section 406(a)(3) requires that the warrant specify the type of inspection and the location of the inspection, including any specific items or documents and the identity of the inspectors.[100] The Lead Agency may use a subpoena to require the attendance and testimony of witnesses or to compel the production of documents, papers, or reports.[101]

Finally, Section 406(c) demands that no court issue an injunction or other order that would limit the ability of the Treaty officials, the United States National Authority, or the Lead Agency to facilitate an inspection authorized by the Treaty.[102]

Private individuals may not challenge the validity of the search warrant prior to the inspection, despite the fact that the Lead Agency is not required to meet the standard of probable cause required for a search warrant under the Fourth Amendment.[103] The Implementation Act does not require that the Lead Agency provide any evidence to support the justification of the search beyond its descriptions about the time, place, and manner of the search.

1. Verification

The Treaty, like the array of international arms control treaties that precede it, can only be as effective as the verification mechanism established to enforce it.[104] When a country decreases the size of its chemical weapons stockpile and ceases production of these weapons, it necessarily relinquishes a strategic military advantage.[105] Each country that abides by the Treaty must have confidence that the other signatory countries will also abide by the Treaty requirements. Even the perception of cheating or an attempt to hide a violation might be sufficient to upset the delicate balance of strategic military power that must exist before countries will agree to relinquish their own chemical weapons.[106] Treaty analysts recognize that:

[i]f a perception of significant cheating grows, the incentive mounts for a Treaty adherent to abandon the Treaty framework (or to resort to secret cheating of its own) so as to counter the advantage potentially available to rivals. If the Treaty structure cannot allay fears of undetected cheating, the Treaty will collapse under the weight of its own lofty goals.[107]
In order to ensure compliance with arms-control Treaty requirements, the verification mechanisms of most arms control agreements serve three goals: deterrence, detection, and assurance.[108] A verification regime that cannot act as an effective deterrent to cheating, allow for detection of noncompliance, or provide assurance of commitment to its Treaty mandates, makes it all the more likely that distrust will foster incentives to cheat.[109] A flawed verification regime may be worse than no verification regime at all. Therefore, the fulfillment of these goals necessarily entails intrusive and ambitious on-site inspections.[110] The ability to conduct random and short-notice on-site inspections further strengthens the effectiveness of Treaty verification schemes by promoting a deterrence-through-fear mentality.[111] Thus, the Treaty has incorporated a system of on-site challenge inspections designed to meet the verification needs of signatory countries.

2. The Importance of Challenge Inspections for Verification

The Treaty places few procedural constraints on the scope and location of a challenge inspection.[112] Thus, Treaty signatories may demand a challenge inspection of any public or private facility in the United States, even private homes and businesses.[113] Additionally, the Treaty does not limit the amount of challenge inspections any one country may request or endure.[114]

The logic behind the Treaty's liberal constraints on the amount and scope of challenge inspections is derived from the fact that many chemical weapons can be cheaply and easily produced[115] and stored[116] in relatively small and disguised facilities. Also, the equipment needed to produce these weapons is the same "garden-variety equipment" used by most commercial chemical manufacturers.[117] Therefore, a complete arsenal of chemical weapons, including the production equipment, could be hidden in a small building, warehouse, or residence.[118] The ease of production and the ability to conceal chemical weapons makes their existence incredibly difficult to verify.[119]

Especially troublesome is the dual-use nature of most of the chemicals[120] used in the production of chemical weapons.[121] Many of the chemicals used in the building of these weapons retain valuable commercial purposes. Thiodiglycol, for example, is a common chemical used in the production of fountain and felt-tip pens.[122] However, this same chemical is also the precursor chemical agent to the lethal compound known as mustard gas.[123]

For these reasons, the Treaty grants each signatory nation the right to conduct intrusive challenge inspections to ensure compliance with the Treaty, including inspections of private commercial and residential facilities.

C. Challenges to the Legality of Challenge Inspections

Private individuals or businesses may file legal claims contesting the constitutionality of the Treaty's challenge inspections.[124] These potential plaintiffs must prove that the Treaty's denial of injunctive relief is unconstitutional and that the warrantless searches violate the Fourth Amendment.[125]

To receive an injunction, a plaintiff would first need to test the constitutionality of the Implementation Act's prohibition against judicial relief. If this section of the Implementation Act is found unconstitutional, a court would have the authority to issue a temporary restraining order or an injunction while considering the validity of the related search warrant.

Second, a plaintiff must prove that the search warrant obtained by the Lead Agency is invalid because it does not rise to the level of probable cause required by the Fourth Amendment.[126] For example, a plaintiff could argue that the inspection may demand production of private documents or confidential business information that is unrelated to chemicals listed in the Treaty. If a court concludes that the Lead Agency does not have probable cause to authorize the search, the court may deny the challenge inspection by issuing an injunction. Moreover, companies hoping to protect critical and confidential business information may request an injunction to prevent the National Authority and international observers from conducting the challenge inspection.[127]

A commentator has noted that the threat of loss of confidential business information is inevitable given the structure of the verification regime.[128] The U.S. businesses targeted for a challenge inspection may refuse the search and seek injunctive relief from a federal district court.[129] A district court judge will be faced with a Hobbesian choice of either allowing an intrusive and wide-ranging search to take place on private property, or issuing a temporary restraining order until a determination of the constitutionality of the search can be made.[130] A judicial determination could implicate the constitutionality of the entire Implementation Act if the court decides that the information the Treaty officials must provide to the Lead Agency does not meet the probable-cause threshold required for a warrant. The information provided by the Treaty director-general to the National Authority will not, in all likelihood, include specific evidentiary support. Any inspection based upon the minimal allegations required by the Treaty would therefore be insufficient to justify the issuance of a search warrant.

In a more likely scenario, the court will probably choose to limit its decision to the facts of the immediate request for a search warrant. Yet, the denial of access to even one facility could result in a perceived violation of the Treaty.[131] Even so, the United States may be perceived as having violated the Treaty without such judicial refusals to issue certain warrants. A court that issues a temporary restraining order while deciding whether the prohibition on injunctive relief is constitutional could inadvertently cause a Treaty violation if the time for the court's decision exceeded the timetables guaranteed by the Treaty.[132] John Holum, Director of the Arms Control and Disarmament Agency (ACDA), recognized that such litigation delays could force the United States to unintentionally abrogate its Treaty obligations.[133] A court's initial denial may cause a State Party member requesting an inspection to proclaim that the United States was acting to hide a Treaty violation.

The drafters of the Implementation Act foresaw the possibility of such a scenario, and concluded that some form of legislative preemption was needed to prevent its occurrence.[134] The government's proposed solution to this dilemma can be found in subsection 406(c) of the Implementation Act. Subsection 406(c) prohibits any court from issuing an injunction or other such order that might place the United States in the position of having to violate the Treaty's verification imperatives.[135]

III. THE APPLICATION OF FOURTH AMENDMENT ANALYSIS TO THE TREATY AND IMPLEMENTATION ACT

A. Constitutional Supremacy

An international treaty cannot authorize the United States government to act in ways contrary to the restraints and limitations imposed by the Constitution. In Reid v. Covert,[136] the Supreme Court held that "[i]t would be manifestly contrary to the objectives [of the Founding Fathers] . . . let alone alien to our entire constitutional history and tradition—to construe the Fourth Amendment as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions."[137]

The supremacy of the Constitution in relation to international treaties is regarded as settled in the Restatement (Third) of the Foreign Relation Law of the United States: "No provision of an international agreement may contravene any of the prohibitions or limitations of the Constitution applicable to the exercise of authority by the United States."[138] Therefore, when the Constitution and a treaty conflict, the treaty obligations agreed to by the United States government are subservient to the protections afforded to individuals under the Constitution.

The Treaty is no exception to the above hierarchy of law. The protections guaranteed by the Fourth Amendment are fundamental and cannot be bargained away by the government, even under the guise of protecting national security through an international agreement.[139] This constitutional rule remains true, even in the face of a treaty as important as this Treaty.

Traditionally, however, courts have been unwilling to invalidate international treaties on the grounds that they violate the Constitution.[140] Because treaties are negotiated and signed by the President and ratified by Congress, courts will usually either afford the Treaty a presumption of validity,[141] or rely upon the political question doctrine to avoid a judgment on the merits.[142] While the judiciary has shown consistent deference to treaties involving national security and other political questions, courts may still choose to exercise their adjudicatory authority when treaties infringe upon individual rights.[143] As one commentator noted, cases involving foreign policy issues juxtaposed with individual rights are: "not a domain where courts should fear to tread, looking about for unaccustomed dangers. Indeed, this is the very essence of the judicial function in our constitutional system."[144] The Supreme Court has never supposed that judicial deference is absolutely necessary in every action involving foreign policy. In Baker v. Carr,[145] for instance, the Court stated that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance."[146] This is especially true when a plaintiff alleges that a treaty or a statute implicating foreign policy infringes upon constitutionally guaranteed individual rights.

In this manner, the Supreme Court has distinguished cases involving disputes between co-equal branches of government and cases involving individual rights where the judiciary finds itself as the sole form of relief.[147] Actions involving potential abuses of individual rights receive more deference from the courts because these challenges strike at the very heart of the judicial function.[148] With this distinction in mind, the Supreme Court has never invoked the political question doctrine to avoid determination on the merits of a claim where the promotion of foreign policy has come into conflict with the protection of individual liberties.[149]

B. General Fourth Amendment Analysis

1. Challenge Inspections as Searches

In the context of the Fourth Amendment, the Supreme Court defines a "search" as having been conducted when a government official's actions intrude upon an individual's objective and reasonable expectation of privacy.[150] Most businesses and residences maintain a reasonable expectation of privacy because they are not pervasively regulated by the United States government—especially those industries that do not perform defense contracting work.[151] Nor do these individuals or businesses possess a close nexus to the obligations and mandates imposed on the United States and its citizens by the Treaty.[152] These businesses or residences are simply caught under the broad reach of the Treaty's verification mechanism. Therefore, commentators seem to universally agree that challenge inspections conducted in the United States would constitute a search deserving of constitutional protection.[153] The Implementation Act even concedes that such an intrusion would be a "search" under the Fourth Amendment because it requires the United States Lead Agency to obtain a search warrant.[154]

2. Constitutional Warrant Requirement

In Katz v. United States,[155] the Supreme Court interpreted the Warrant Requirement Clause as the primary clause of the Fourth Amendment.[156] The Supreme Court held that warrantless searches are per se unreasonable, except in carefully delineated exceptions.[157] More recently, however, it appears that the Supreme Court is turning back to the view that the reasonableness clause, the first portion of the Fourth Amendment, should take precedence over the warrant clause.[158] Yet, the justices are not reverting to the supremacy of the reasonableness interpretation by directly overruling warrant requirement standards; instead, the Supreme Court has been expanding the exceptions to the traditional warrant requirement standards.[159]

In Illinois v. Gates,[160] the Supreme Court abandoned a rigid two-pronged test for determining whether an informant's tip established probable cause for the issuance of a warrant.[161] In its place, the Court adopted a "totality of the circumstances" approach, and found that probable cause for a warrant to search a defendant's home and automobile was established by an anonymous letter indicating that the defendants were involved in interstate drug trafficking.[16]2 The Gates test considered both the veracity and reliability of the factual account giving rise to the request for judicial permission to conduct a search.[163] Probable cause exists when facts and circumstances sufficiently cause a prudent person to believe that the evidence to be seized is at the place to be searched.[164] This test for probable cause adopts a "totality of the circumstances" approach which balances interrelated factors including the informant's "reliability" or "veracity" and "basis of knowledge."[165] The "reliability" or "veracity" factor examines the informant's reputation for accuracy.[166] The "basis of knowledge" factor examines how the informant gathered the information, either through first hand knowledge or by offering sufficiently specific details of the criminal activity.[167] While the Gates test does not require that both factors be met, the interrelated considerations help the court determine whether probable cause exists under the "totality of the circumstances."[168]

Additionally, courts apply a particularity requirement to requests for a criminal warrant.[169] The potential evidence must be sufficiently described so as to limit the discretion an officer may exercise in executing the warrant.[170]

In the instance of challenge inspections of private businesses or residences, the U.S. National Authority probably could not obtain a valid criminal search warrant under the current standards. First, the Lead Agency, through the U.S. National Authority and the Department of Justice, will operate only with information supplied by the director general. In turn, the director general will likely possess minimal details provided by the State Party member requesting the challenge inspection.[171] The procedure for a challenge inspection by Treaty officials does not carry an evidentiary burden; mere written allegations based upon conjecture suffice.[172] For a judge issuing a warrant in the United States, however, this information will fall well-short of the burdens necessary to prove probable cause before a criminal warrant may be issued.[173]

The information provided by the State Party member requesting a challenge inspection that is handed over to the United States National Authority will probably fail to meet the Gates standard.[174] The requesting State Party member need only allege possible noncompliance with the Treaty in order to demand a challenge inspection.[175] The requesting State Party member is not required to produce any evidence that the target facility may have chemical weapons or any of their prohibited components. Therefore, no means exist to determine the truthfulness of the information upon which the Lead Agency relies in order to obtain the warrant. The lack of evidence required by the Treaty falls far short of the level of proof required by the veracity and reliability considerations of the Fourth Amendment.[176]

Furthermore, the Lead Agency will probably be incapable of providing evidence to support the reliability of the informant. When factoring the reliability of the informant into the "totality of the circumstances" equation, courts examine the reputation of the informant, not the reputation of the government official seeking the warrant.[177] However, the Treaty does not require the requesting State Party member to produce any evidence or information about how it gathered the information giving rise to its suspicions. Under the Treaty's mandates, the requesting State Party member is under no obligation to divulge the identity of its informant, or even how it obtained information leading to the request for a challenge inspection.[178] The apparent assumption is that such information resulted from espionage and other intelligence-gathering sources. Thus, a court probably would not have evidence of probable cause concerning the reliability of the information or how it was obtained.

The information used by the National Authority to obtain a valid search warrant will probably also fail the particularity requirement, which mandates that government officials identify the specific portions of the facility and the items expected to be found.[179] Yet, the only burden imposed on the requesting State Party member by the Treaty is to name the country and target facility against which the challenge inspection will be conducted.[180] The requesting State Party member need not list the specific parts of the facility to be searched or what evidence it expects to uncover during the inspection.

Without this latitude, the objectives of the verification regime (deterrence, detection, and assurance) are undermined. Without a solid verification mechanism, the effective implementation of the Treaty becomes impossible. However, the purpose of the Fourth Amendment has been narrowly interpreted so as to prevent government officials from having such discretion in the scope of their searches. Therefore, the minimum requirements to demand a challenge inspection are insufficient to meet the probable cause requirements for a search warrant.

The Lead Agency will likely have insufficient evidence and information to obtain a search warrant because on its face, the warrant application lacks proof of its veracity, reliability, and particularity. Based upon the information provided to the court, the judge must either deny the warrant application or ignore the requirements of the Fourth Amendment.

In instances where a private owner refuses consent, the delay may cause the United States to be in procedural violation of the Treaty's verification regime. The Treaty requires the Host State Party member's National Authority to ensure that the challenge inspections are conducted in accordance with the timetables of the Treaty, and to prevent denials of access. Should the National Authority's failure to obtain a warrant delay or impede access to a suspected facility, the United States may be perceived as attempting to cover up suspected production or storage of chemical weapons.[181] Therefore, the Lead Agency must look for alternative means to authorize the Implementation Act's search warrant requirement for challenge inspections of private, non-chemical facilities inside the United States.

C. Administrative Searches

The Supreme Court stated in Katz that warrantless searches are per se unconstitutional unless they fall within clearly defined exceptions.[18]2 Since Katz, more conservative Supreme Court decisions have sought to weaken warrant requirements by not only extending the size and scope of its recognized exceptions, but also by creating additional exceptions.[183] As will be shown, however, most of these exceptions are inapplicable to challenge inspections.[184] Instead, the United States National Authority might seek an administrative warrant to conduct the challenge inspection search. The rationale behind administrative warrants is that they are part of a "regulatory scheme" that is "civil rather than criminal in nature."[185] Thus, they do not violate the Constitution because they are "limited in scope" and may not be exercised in unreasonable circumstances.[186] A typical example of an administrative warrant includes the type of broad-based warrant granted to public health and safety officials, such as fire marshals, for the enforcement of municipal safety regulations.[187]

The drafters of the Implementation Act were aware of the probable impracticability of obtaining a criminal search warrant for a challenge inspection; thus, they authorized the United States National Authority to acquire an administrative warrant.[188] Instead of meeting criminal probable cause standards, administrative warrants require the court to apply only a reasonableness balancing test.[189]

The Implementation Act specifically provides for issuance of search warrants by government officials or courts so that challenge inspections will comply with Fourth Amendment requirements.[190] The warrants may be granted "on the basis of 'administrative probable cause,' i.e., the standards for issuing warrants for administrative inspections rather than the standards used for criminal searches."[191]

1. The Camara Standard for Administrative Search Warrants

In 1967, the Supreme Court created an exception to the criminal search warrant requirement in instances when the search is conducted to enforce municipal health or safety codes.[19]2 In Camara v. Municipal Court,[193] eight of the nine justices held that warrantless administrative searches of individuals' homes based on suspicion of noncompliance with municipal codes violated the Fourth Amendment.[194] The justices found that such administrative searches significantly intruded upon interests protected by the Fourth Amendment, and would subject citizens to unreasonable intrusions by government health or safety inspectors in the field.[195] However, the Court also stated that broad administrative searches in the public interest were valid and, thus, it was appropriate to grant them in accordance with a reasonableness standard rather than requiring probable cause.[196] The Court based its decision on the finding that administrative searches differ from criminal searches because they seek to deter and correct violations of health and safety regulations, not to seize evidence of a crime.[197] The Court also noted that emergency situations involving the public's health or safety further justified the issuance of administrative warrants.[198]

The Court applied a reasonableness test, which is a balancing of government's need to search against the invasion the search entails.[199] The Court noted:

The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.[200]
Initially, government must prove there is a legitimate governmental purpose that serves the public interest underlying the search.[201] However, the focus is not on whether the public interest justifies the search, but whether it justifies the disregard of probable cause.[202] The question turns on whether "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search."[203] Further, the regulatory scheme used by the government to serve this purpose must be a logical, particular, and comprehensive plan that provides a check against random, arbitrary, or selective inspections.[204] These Fourth Amendment constraints serve to prevent governmental "fishing expeditions" into private buildings or residences.

For the individual, the balancing test focuses upon the individual's expectation of privacy as best determined by the character of the place to be searched,[205] the individual's right to be free from unwarranted governmental intrusion, as measured by the probable fruitfulness of the government's search,[206] and the level of intrusiveness permitted by the warrant.[207] Therefore, the final decision should be determined by weighing government's need to search against the potential violation of the individual's rights.

2. The Inapplicability of Administrative Search Warrants to Challenge Inspections

Given the Supreme Court's balancing test for administrative search warrants, certain commentators suggest that the judiciary will be receptive to requests by the National Authority or other government officials to issue administrative search warrants to conduct challenge inspections in the United States.[208] However, courts and government officials should refuse to grant administrative search warrants to facilitate challenge inspections for numerous reasons.

First, courts and government officials should refuse to grant administrative search warrants for challenge inspections because of the individual's right to privacy. Individuals and most businesses possess a high expectation of privacy in the residence or facility in which they operate.[209] The typical home or business in the United States has no relation whatsoever to the restrictions imposed on the United States government and its industries by the Treaty. Yet, the Treaty's broad-based verification regime permits an international team of inspectors to search every home or facility.[210]

Second, despite the deterrence effect that the potential challenge inspections may create,[211] the likelihood that they will actually uncover evidence of noncompliance seems remote.[212] Even assuming that the requesting State Party member relies in good faith upon evidence it has collected through intelligence gathering, it is improbable that a challenge inspection could discover instances of noncompliance, given the ease with which chemical weapons are transported and hidden.[213] Based upon the information given to the United States National Authority, the lead agency will likely lack sufficient evidence, when scrutinized by Fourth Amendment standards, to support a claim that discovering the alleged chemical weapons is probable. Considering the small likelihood that the challenge inspection search will produce evidence of noncompliance, a neutral and detached magistrate should reject the initial application for any form of warrant.

Third, the scope of the challenge inspections authorized by the Treaty is extremely broad. Inspectors are permitted to search all areas of the facility, limited only by the Host State Party member's proof that the areas restricted from the search are not related to Treaty compliance.[214] The inspection may include taking chemical samples, company records, documents, and computer files for analysis. The level of intrusion permitted by the challenge inspections far surpasses the level of intrusion envisioned by the Camara Court when it outlined administrative search requirements based on a relatively minimal invasion of privacy.[215]

Finally, the request for an administrative search warrant to conduct a challenge inspection will not likely include a logical, particular, and comprehensive plan. On the contrary, government officials will likely seek an administrative search warrant to allow them to conduct a selective inspection of a single facility.[216] Further, the scope of the search is unlimited. The requesting State Party member is permitted to investigate, examine, and test anything in or around the facility, as long as the established time restrictions are met.[21]7 The Camara Court recognized that this type of search does not meet the standards for granting an administrative search warrant under the reasonableness balancing test.[218]

D. The Pervasively Regulated Industry Exception to the Administrative Search Warrant Requirement

The Supreme Court carved an exception to the Camara ruling by permitting warrantless administrative searches if the business to be inspected is a pervasively regulated industry (PRI).[219] The PRI exception has evolved from a doctrine of implied consent[220] to a doctrine that focuses on the subjective expectation of privacy claimed by the property owner.[221] Under this exception, characterization of the target business's commercial practice becomes crucial.[222] If the PRI exception applies, an entire class of warrantless searches are authorized and an official may demand unimpeded entry to the facility.[223] That right of entry may also authorize the use of force to gain access to the facility in fulfillment of the official's mission.[224]

1. Explanation of the Pervasively Regulated Industry Search Warrant Exception

In Donovan v. Dewey,[225] the Supreme Court created a two-pronged test to determine whether a warrantless administrative search would be constitutionally permissible. The first prong deals with the objective government interest in conducting a search. The second prong uses the owner's subjective expectation of privacy to determine if the regulation is sufficiently comprehensive to justify a warrantless search. When "Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme,"[226] and "federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes, a warrantless search is constitutionally permissible."[227]

The Donovan Court also demanded a procedural safeguard of the individual's privacy interest—that the pervasive government regulation must provide a constitutionally adequate substitute for a warrant.[228] In determining whether a constitutionally adequate substitute exists, the court must utilize two criteria based upon a review of the textual mandates of the government regulation. First, does the regulation sufficiently limit the discretion of the inspectors?[229] Second, is the inspection scheme sufficiently comprehensive and predictable so that the property owner could be on notice of the likelihood of inspection?[230] In answer to the second question, the Donovan Court considered four factors: the regularity of searches; the frequency of searches; the duration of the scheme; and the ubiquity of the inspections.[231] The Court rejected the legality of random, infrequent, or unpredictable warrantless searches, especially when an inspection is so infrequent as to cause the owner to doubt whether his facility will ever be searched.[232]

Finally, the Donovan decision seemed to suggest that Congress may be limited when formulating its regulations to meet the PRI exception. The Court refused to permit Congress to cross industry lines with its regulatory scheme.[233] Instead, the Court found government regulation must narrowly target a single industry.[234] This restriction increases the likelihood that a rational property owner will be aware of the measures designed to regulate that owner's particular business.

In New York v. Burger,[235] the Supreme Court reformulated the considerations proposed in Donovan.[236] The initial threshold question applied by the justices in Burger was whether the industry in question was closely regulated.[23]7 The Burger Court replaced the Donovan two-pronged test with its own three-pronged variation. The first prong requires that the regulatory scheme be justified by a substantial governmental interest.[238] The second prong demands that warrantless searches be necessary to further the regulatory scheme.[239] The third prong requires the inspection program to provide a constitutionally adequate substitute for a warrant.[240]

In applying the Burger test for deciding whether an industry is pervasively regulated, the dominant theme in recent case law has focused on the property owner's subjective expectation of privacy.[241] Courts use numerous factors espoused by the Burger justices to reach a conclusion on whether or not an industry is pervasively regulated. In addition to applying three of the four Donovan factors,[24]2 the Burger test also added consideration of any licensing or reporting requirements, the existence of fines or safety standards to enforce the regulations, the tradition of governmental regulation of this industry, and the inescapability of governmental control.[243]

The Burger Court's concentration on the target property owner's subjective expectation of privacy is the logical focus of the PRI exception. By definition, an owner who is unaware of significant governmental regulation of his or her industry cannot have the lessened expectation of privacy necessary to justify a warrantless administrative search. Conversely, an owner who is aware of significant governmental regulation should expect to be subject to frequent and routine searches. Thus, when courts demand that an industry be found pervasively regulated before applying the three-pronged Burger test, they ask whether the regulation is so pervasive that the owner could not escape awareness of the regulation's existence.

2. The Application of the Pervasively Regulated Industry Search Warrant Exception to the Treaty Challenge Inspections

If the United States National Authority cannot obtain an administrative warrant under Camara,[244] the Department of Justice may attempt to justify a warrantless search as a PRI exception to prevent incidental abrogation of the Treaty. Since the PRI exception allows warrantless administrative searches without judicial scrutiny prior to the search, the National Authority will only need to fulfill the requirements of the Burger test to validate their search. However, the National Authority probably cannot meet the Burger standards for conducting a warrantless challenge inspection search.[245]

Challenge inspections of private commercial businesses would probably fail the Burger test for several reasons. First, private businesses that do not have a direct or close connection to the Treaty, but which are still subject to the scope of possible challenge inspections, maintain a high expectation of privacy.[246] For instance, pen factories, pesticide producers, and fertilizer manufacturers use chemicals that the Treaty specifically lists and attempts to control, yet these industries, not being pervasively regulated, have no reason to expect a search for evidence of chemical weapons production.[247] These industries lack a clear nexus to the obligations imposed on the United States government by the Treaty, and therefore lack the requisite notice to constitute a lessened expectation of privacy, which is needed for unwarranted intrusions. This lack of notice is demonstrated by the fact that many of the "other" chemicals that fall outside the bounds of the Treaty's three schedules are not even mentioned by the Treaty, yet are still within the scope of verification.[248] The result is that the National Authority cannot prove that a vast majority of the businesses subject to challenge inspections possess a lessened expectation of privacy.

Second, the challenge inspection of private, non-related industries would be too irregular and infrequent for a company owner to reasonably expect the business to be searched.[249] The United States has thousands of companies potentially subject to challenge inspections, but in all likelihood only a few will ever actually be searched by Treaty inspectors. This is contrary to the Burger Court's requirement that all of the businesses under the scope of the regulation be routinely searched, and that the only randomness involved be the order in which the searches are conducted.[250]

Further, industries selected for inspection can be arbitrarily chosen by a foreign State Party member.[251] While the Treaty requires the State Party member requesting the challenge inspection to offer some level of suspicion of noncompliance with Treaty mandates, the foreign State Party member bears no official evidentiary burden in the request.[252] Consequently, almost any business in the United States could be selected for challenge inspection without proper justification. A requesting State Party member may be more interested in obtaining a Host State Party member's confidential business or trade secrets than ensuring Treaty compliance.[253] Challenge inspections are the type of random, limitless, and arbitrary administrative searches the Supreme Court opposed in Donovan.[254]

Third, the Treaty procedure does not provide an adequate constitutional substitute for a warrant. Non-related private businesses are not required to be notified that their use of certain chemicals makes them vulnerable to possible inspection by foreign officials. Unlike the requirements of Burger, the challenge inspections are not limited to normal business hours; they may proceed continuously for almost four days.[255] Also, the Treaty and Implementation Act do not procedurally limit the scope of the inspection, as did the statute in question in Burger. In contrast to a comprehensive and detailed inspection regime, the Treaty uses broad and unconfined language to describe the bounds of this highly intrusive verification process. The Treaty places full discretion in the hands of the domestic officials and international inspectors conducting the search.

Finally, the scope of the Treaty's challenge inspections is not limited to a specific or single industry, but instead crosses industry lines. Because the verification mechanism is designed to prevent the unauthorized manufacturing and stockpiling of chemical weapons, it permits searches of all industries that produce or use the chemical agents related to possible weapons. For instance, the exception would have to include the pen factories and detergent manufacturers previously mentioned because they also use Schedule Two, Schedule Three, and other proscribed chemicals.[256] This contradicts the logical underpinning of the current PRI exception. In Donovan, the regulation narrowly targeted a single, specific industry.[257] The Court justified its opinion on the basis that the regulation was limited in nature and the property owners were subjectively aware of the regulations permitting the governmental intrusion.[258] Further, while the Supreme Court may have granted Congress the power to regulate more industries under its expansion of the PRI exception, the Court required that such regulations take place on an industry-by-industry basis.[259] If the PRI exception were upheld to justify such intensive warrantless administrative searches across industry lines, the exception would swallow the Camara rule. No business would be left with a reasonable expectation of privacy from unwarranted governmental inspection.

E. The Special Needs Exception to the Administrative Search Warrant Requirement

In recent years, the Supreme Court has carved a second exception to the Camara administrative warrant requirement. A warrantless administrative search may be justified if the reason for the lack of a warrant is declared a "special need."[260] A special need arises when the government attempts to protect a substantial governmental interest that extends beyond the needs of normal law enforcement.[261] Examples of court-declared special needs include a high school principal's right to search a student's purse[262] and an employer's right to require employee blood and urine drug testing.[263]

The Supreme Court created the special needs exception to the administrative warrant requirement in New Jersey v. T.L.O.[264] The Court upheld a public school principal's right to search a student's purse after the student was caught violating the school's no smoking rule.[265] The Court found that a special need justified the warrantless search because of the difficulty in maintaining discipline in public schools and the significant social impacts created by increasing levels of violence and drug use.[266] The Court applied a reasonableness test that considered all of the circumstances and balanced the governmental interest and nature of the search against the intrusion of the individual's privacy right.[267]

According to the T.L.O. Court, for a warrantless administrative search to be justified as a special need, it must meet three criteria.[268] First, the government must prove that a strong governmental interest exists beyond the need of normal law enforcement procedures.[269] Second, the necessity of the search must make both the warrant and probable cause requirements impractical.[270] Third, the regulatory scheme must protect the target from arbitrary or unjustified invasions.[271] In applying these protections, courts require proof of reasonable and articulable grounds to suspect that the search will uncover evidence of misconduct.[272]

More recently, the Supreme Court handed down two decisions to help clarify the special needs exception. In Skinner v. Railway Labor Executives' Association,[273] the Court reaffirmed its holding that once the government proves that a special need is involved, courts should balance the governmental and privacy interests to assess the practicality of the warrant requirement.[274] In applying the balancing test, the Skinner Court concluded that the safety of the railways and their history of accidents outweighed the minimal privacy intrusion of a blood and urine testing program that was limited in scope, gave no discretion to the field officials, and was known by all employees.[275]

In National Treasury Employees Union v. Von Raab,[276] the Court upheld a similar drug testing program, finding that the government interest in deterring drug use by individuals eligible for sensitive positions in the customs service outweighed the employees' privacy interests against mandatory urine tests.[277] In short, the Court held that in special cases an administrative search of a person is permissible without individualized suspicion.

Thus, Skinner and Van Raab evidence the Supreme Court's expansion of the special needs exception to permit warrantless searches based merely on a reasonable suspicion rather than on probable cause. In so doing, the Court seemingly blurred the line between what is, and what is not, a "special need." The Court's rulings leave undecided the scope of the special needs exception, which appears to be defined by the particular factual circumstances in any given case, rather than by a more precise legal standard or per se rule.

National Authority officials might attempt to justify warrantless challenge inspections as a special needs exception to the administrative warrant requirement. The National Authority will likely argue that upholding the Treaty is a special need because controlling the proliferation and potential use of chemical weapons is a strong governmental interest. Since the challenge inspections will most likely be coordinated by the Department of Justice and conducted by foreign inspectors, the search will probably be beyond the scope of normal law enforcement. Also, the administrative warrant requirement is impractical given the structure of the verification regime.[278] Finally, the reasonableness of the balancing test would favor upholding the Treaty requirements over an individual's business or residential privacy interests when considering the potential effects that might result from a breakdown of the Treaty.

However, several counter-arguments prevent the special needs exception from authorizing challenge inspections without a warrant or pre-judicial scrutiny. First, the special needs exception only allows searches of people or their personal possessions.[279] Courts have never allowed the special needs exception to subject homes or businesses to warrantless administrative searches. This would be an incredible expansion of the current doctrine given the level of intrusion allowed by challenge inspections and the fact that their scope could reach inside nearly every facility in the United States. Furthermore, any extension of the current doctrine would require litigation and an express judicial change, at which point the Treaty might have already been violated by the delay of the inspection.[280]

Second, the practicality standard to justify the lessening of the traditional administrative warrant cannot be satisfied. The Treaty mandates that the Host State Party member has between twenty-four and 108 hours to provide the inspectors with the required access to the chosen facility.[281] Thus, the Department of Justice would have up to four-and-one-half days to apply for an administrative warrant from a federal judge. Therefore, the warrant process is not impractical to meet the needs of the Treaty.[282] Additionally, the Implementation Act requires that the National Authority try to obtain an administrative warrant.[283] Thus, to argue a special needs exception exists, the Department of Justice will have to be denied an administrative warrant from a federal magistrate, and then contend that the search involves a special need.

Further, the Treaty and Implementation Act do not protect the target facility from arbitrary inspections. Challenge inspections are easy for a State Party member to request, and are unlikely to be rejected by the Technical-Secretariat.[284] The Treaty only requires that the requesting State Party member provide nominal information. However, this level of information is insufficient to justify a search under the Fourth Amendment. The regulatory scheme does not adequately prevent arbitrary selection of facilities for challenge inspections, and thus cannot meet the protections demanded by the special needs exception.

Finally, the application of the factors used in the Skinner balancing test leads to the conclusion that the warrantless challenge inspection search is unreasonable. When the Skinner Court upheld the blood and urine testing of railroad employees, it stated that the individual's privacy interests were lessened because the regulation limited the discretion of the officials, was narrow in scope, and was known to all of the employees.[285] Conversely, challenge inspections may be authorized against any facility at any time. The verification regime also allows the inspectors a nearly unlimited amount of discretion.[286] Private individuals and businesses deserve protection of the strong privacy interest.

F. A Possible Reformulation of the Pervasively Regulated Industry Exception

One commentator, David G. Gray, has suggested that the unconstitutionality of challenge inspections may be avoided by a reformulation of the PRI exception to include a "special needs" reasonableness balancing test to allow warrantless administrative searches.[287] The proposed reformulated "PRI-special needs hybrid exception" (Hybrid Exception) would utilize a four part test to determine if a particular search requires an administrative warrant. The first two parts of the test involve threshold questions. First, is there a special need involved? A special need must exist to justify the lack of a warrant.[288] Second, does the individual or business enjoy a decreased expectation of privacy?[289] The third and fourth parts of the Hybrid Exception involve more substantive concerns. The third part uses the special needs balancing test to weigh the governmental interest against the privacy intrusion.[290] The fourth part demands that a constitutionally adequate substitute be required in the regulation to protect the individual.[291]

Gray argues that the proposed Hybrid Exception test should allow warrantless administrative searches of non-Treaty-related private businesses.[292] Upholding Treaty obligations would qualify as a special need because of the substantial governmental interest in preventing the use and proliferation of chemical weapons. Gray contends that these non-related private businesses enjoy a limited privacy interest because of the dangers the Treaty attempts to alleviate.[293] Because intrusive verification is needed to enforce the Treaty, Gray justifies reducing the privacy expectation of the individual property owners.[294] Finally, Gray argues that the inspection process was not arbitrary because the slight burden of suspicion and the rationality of resource management dictate that constraints and safeguards exist.[295]

However, several obstacles prevent Gray's Hybrid Exception from solving the constitutional problems raised by the challenge inspections of private, unrelated businesses. First, the creation of a Hybrid Exception would require an affirmative act of Fourth Amendment interpretation by a court. However, no such mechanism was offered to implement these new standards.[296] Once a Treaty challenge inspection reaches the litigation stage in a district court, the United States may have already delayed the inspection team and violated its obligations under the Treaty.[297]

Second, a challenge inspection of a private, unrelated business would fail the Hybrid Exception. Nothing in the theory explains why the targeted business has a decreased expectation of privacy to meet the second part of the exception. Since there is no history or tradition of government regulation of such broad scope across so many industries, the focus of the test must be on the inherent threat to safety.[298] Again, Gray gives no analysis as to why the importance of the Treaty's protection reduces the privacy expectation of these unrelated private businesses. As previously mentioned, these industries have not been warned or put on notice that they are subject to searches by teams of international inspectors.[299] Therefore, the existence of the Treaty regulations themselves fails to provide constructive notice of the potential for a warrantless search.

Moreover, Gray's rationale suggests that these individuals deserve a lessened expectation of privacy because of the important societal benefits derived from the Treaty.[300] This logic, however, is circular. It allows the legislative intent behind the Treaty regulations to dictate the warrant requirement for challenge inspections in open disregard of constitutionally protected Fourth Amendment rights. Application of the Hybrid Exception would make the Fourth Amendment nothing more than a hollow guarantee of the individual right to be free from unreasonable searches and seizures.

Gray does not offer a constitutionally adequate substitute to protect the individual from arbitrary inspections. The fact that the National Authority informs a business or homeowner that their property will be intensely searched for the next five days does not meet the advance notice requirement set forth in Donovan or Burger.[301] The Treaty also does not limit the scope or intensity of the search, but instead leaves such decisions to the discretion of the inspectors or to the objections of the Host State Party member.

Gray concedes that the Treaty verification regime cannot tolerate blind spots larger than a home.[302] However, it is doubtful that the Hybrid Exception can alleviate the constitutional concerns raised by the challenge inspection of a private, non-related business. Gray gives no justifiable explanation as to how two distinctly established and applied juridical doctrines may be extended and merged without initial considerations by the courts. Also lacking is how the Hybrid Exception can be reformulated before a violation of the Treaty occurs. Finally, the Treaty fails to meet the requirements of its application to the Hybrid Exception because there is neither a decreased expectation of privacy, nor a constitutionally adequate substitute to protect the privacy interests of the targeted owner.

G. National Security Exception

Government officials might rely on a national security exception to justify a warrantless search for challenge inspections. Generally, courts are deferential to cases involving issues of national security.[303] This is especially true when both elected branches are acting in concert.[304] However, such case law does not necessarily mean that courts concede all matters concerning national security to the government. On the contrary, courts continue to apply constitutional safeguards to issues of national security, especially when individual rights are at stake.[305] The Constitution demands that legislative and executive actions undertaken in the name of national security still be bound by Fourth Amendment protections.[306]

More significantly, the Supreme Court has never announced a national security exception to the warrant requirement.[30]7 In Katz, the Court expressly reserved its judgment on the issue of whether a warrant should be required before government could be permitted to conduct electronic surveillance for national security purposes.[308] The Supreme Court left this question open by rejecting the chance to rule on the constitutionality of warrantless surveillance of domestic organizations by denying writs of certiorari to lower court cases.

The closest the Supreme Court has come to ruling on a national security exception was in 1976 when it denied a writ of certiorari to review the decision of a federal court of appeals decision in Zweibon v. Mitchell.[309] The Court of Appeals for the District of Columbia had held that the government needed a Camara-style warrant before they could electronically wiretap a domestic organization, even though the wiretaps were authorized by the President.[31]0 The Zweibon ruling required the government to seek an administrative warrant because the warrant requirement did not frustrate the governmental purposes behind the search.[311]

Even though the Supreme Court has not definitively ruled on the legitimacy of a national security exception, several lower courts have addressed the issue. Currently, the circuit courts are split as to the permissibility of warrantless searches based on national security concerns. For example, in United States v. United States District Court,[312] the Supreme Court considered a Sixth Circuit Court of Appeals decision against allowing national security interests to trump civil liberties.[313] The Sixth Circuit had held that the government is required to obtain a warrant to conduct surveillance deemed necessary to protect the country from domestic organizations' attempts to subvert the existing structure of government.[314] The Supreme Court affirmed the appellate court's opinion, deciding that the government's national security interest was insufficient to justify the subversion of constitutionally guaranteed individual rights.[315]

Conversely, other circuit courts have held warrantless searches justified by national security concerns. For example, in United States v. Brown,[316] the Fifth Circuit held that the President may authorize warrantless wiretaps to gather foreign intelligence.[317] Additionally, in United States v. Butenko,[318] the Third Circuit applied a reasonableness standard to searches based on national security, and determined that not all of these searches require prior judicial approval.[319]

Even the circuit court opinions that seem to allow a warrantless national security search have a limited scope. The warrantless search appears to be limited to electronic intelligence gathering against foreign groups.[320] Furthermore, the searches cannot be conducted against non-foreign powers or non-foreign agents, and probably require presidential authorization.[321]

Government officials may assert that Fourth Amendment jurisprudence has developed, or should develop, a national security exception permitting them additional latitude to implement and enforce international treaty obligations. This argument suggests that the importance of preserving international agreements, especially multinational arms control treaties, justifies a national security exception to the traditional warrant requirement.

However, several distinctions exist between the currently recognized but limited form of the national security exception and its possible application to the Treaty. First, the Treaty permits inspections of private businesses and homes which are only tangentially related to Treaty objectives.[322] This is in sharp contrast to the circuit court opinions that limit the scope of the national security exception to surveillance of foreign organizations or their agents.[323]

Second, the government has never used the national security exception to justify a physical search of any facility. Instead, the exception has been limited to justify electronic intelligence gathering.[324] Given the current state of the extremely narrow national security exception, no government official could reasonably rely on it as an acceptable means to avoid obtaining a warrant before conducting a challenge inspection. Rather, the expansion of the national security exception would likely entail litigation of the issues in front of a neutral and detached magistrate—and would therefore run the risk of delaying the international inspectorate's access to the facility.

The extension of a national security exception to justify warrantless administrative searches would undermine the foundation of the Constitution. Overlooking constitutional requirements simply because the government has a strong interest at stake is wrong, especially when the value of our individually protected constitutional rights conflict with an important governmental concern. It is in times of conflict when the constitutional dedication to the protection of individual rights should prevail over the creation of broad-based and unbounded exceptions to those safeguards. As one court so elegantly noted: "The Court has not denied the reality of dangers from foreign or internal conflicts. Rather, it has recognized the need to respect constitutional requirements even in troubled times."[325]

Developing a national security exception would also destroy the traditional notion of separation of powers established by the Constitution. A national security exception would remove judicial oversight when it is most desperately needed—at times when individual rights are at stake. The constitutional warrant requirement exists to help contain the power of the government to order such searches by requiring a detached and neutral magistrate to review and, if needed, protect the rights of the individuals being searched. It is the courts' ultimate duty to act as a bulwark against such encroachments, and that obligation should not be abandoned simply because the executive and legislature have found a "national security" need.[326] The Supreme Court warned against allowing such encroachments into individual rights when it wrote:

It may be that . . .[this search and seizure] is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.[327]
Finally, government could create a national security exception to justify any governmental intrusion. To justify a warrantless search, the executive need only claim a national security interest and the courts' precedent would allow the search to take place. Courts should never open such a Pandora's box; once open, it will be nearly impossible to shut.

IV. THE UNCONSTITUTIONALITY OF THE IMPLEMENTATION ACT'S PROHIBITION OF INJUNCTIVE RELIEF

Subsection 406(C) of the Implementation Act prohibits courts from issuing injunctions relating to warrants or other orders limiting the ability of the Technical Secretariat to conduct inspections, or the U.S. Government to facilitate them.[328] By this mandate, Congress intended to enact a procedural jurisdictional bar against a court's ability to issue injunctive relief.[329] Yet, the Implementation Act does not provide an explicit alternative remedy of redress for a plaintiff who is harmed by an unconstitutional challenge inspection.

The purpose behind the legislative ban on injunctive relief is fairly obvious. If plaintiffs are permitted the opportunity to enjoin challenge inspections, such suits could delay, or even completely prevent, government officials' and foreign inspectors' access to the challenge site. The issuance of an injunction, or the delay associated with such an appeal, could cause the United States to inadvertently abrogate its Treaty verification obligations.

If the Implementation Act is left intact, private individuals and businesses will be unable to seek judicial relief to protect both their privacy interests and confidential business information from challenge searches. Because the Implementation Act strips the courts of their ability to provide an appropriate remedy and also fails to provide a substitute remedy, the Implementation Act fails to withstand constitutional scrutiny.[330]

In addition, any plaintiff knowing a challenge inspection is imminent and seeking injunctive relief before it occurs could pose the adjudicating court with a Hobbesian choice. Before dismissing the plaintiff's prayer for injunctive relief, the court would inevitably be required to consider the constitutionality of the Implementation Act's ban on the plaintiff's right to request this remedy. If the court determines that Congress's jurisdictional prohibition against injunctive relief is valid, the court will be forced to dismiss the suit and the plaintiff will be left without a prospective remedy. On the other hand, if the court determines that Congress's removal of injunctive jurisdiction is improper, it will be forced to strike down the Implementation Act as unconstitutional.

A. The Lack of Precedent Justifying a Ban on Injunctive Relief

The text of the Implementation Act cites what the drafters and several commentators consider to be long-standing legal precedent in support of Congress's power to prevent the courts from issuing injunctive relief.[331] However, a closer analysis of this precedent leads to the conclusion that in cases where injunctive relief is the only appropriate remedy by which the courts can fulfill their responsibility to protect individual constitutional rights, Congress may not strip the courts of this power.

1. The Norris-LaGuardia Act

The Implementation Act explicitly relies on the Norris-LaGuardia Act,[332] an anti-injunction law, as an example of domestic legislation through which Congress constitutionally limited the availability of injunctive relief.[333] Early in the twentieth century, the Supreme Court struck down state laws forbidding remedies that enforced "yellow dog contracts"—contracts in which employees agree not to join labor unions.[334] The Norris-LaGuardia Act provided that no federal court has jurisdiction to issue an injunction to enforce yellow dog contracts[335] and was enacted because the conservative Court had struck down state legislation prohibiting these contracts and allowing labor strikes.[336]

In Lauf v. E.G. Shinner & Co.,[337] the Court addressed the constitutionality of the Norris-LaGuardia Act's limitations on the courts' ability to grant injunctions for labor disputes.[338] The Court upheld this section of the Norris-LaGuardia Act and stated, "There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States."[339]

In order for supporters of the Implementation Act to rely on the Norris-LaGuardia Act, Lauf must stand for the proposition that Congress may strip the courts of jurisdiction to grant injunctive relief regardless of the fact that injunctive relief is the only available remedy to prevent the violation of a constitutional right. But while the language of Lauf may seem to suggest that Congress has such power, there are numerous reasons to believe that this legislative authority lacks a constitutional foundation.

First, a careful reading of Lauf demonstrates that the Supreme Court skirted the issue of whether Congress's power to control the jurisdiction of inferior courts may supersede the protection of constitutional rights.[340] Section 107 of the Norris-LaGuardia Act actually permits lower courts to grant injunctive relief if certain strict standards are met.[341] Among these standards is the requirement that the plaintiff prove that, absent this special form of court intervention, a substantial and irreparable injury will result.[342] The Norris-LaGuardia Act leaves intact other state and federal remedies besides injunctions and does not mandate a complete ban of injunctive relief.[343] Thus, the validity of the Norris-LaGuardia Act's limitation on injunctive relief rests upon Congress's decision to provide other remedies unless injunctive relief is constitutionally required.

Congress may limit the judiciary's authority to issue injunctions in two ways. Congress may either withdraw the courts' jurisdiction to grant injunctions, or Congress may heighten the standards an individual is required to meet in order to receive an injunction. Both congressional acts would limit an individual's ability to avoid a substantive constitutional rights violation through the protective cloak of an injunction. However, the Constitution limits Congress's authority to restrict an individual's substantive constitutional protections.[344] Congress may not impede or deny an individual injunctive relief when such relief is required to protect a constitutional right. In this sense, the withdrawal of a court's jurisdiction to issue an injunction enforcing labor contracts is identical to a legislative heightening of the standard of proof required before a court could issue an injunction. Both forms of congressional action, if designed with the intent of preventing a plaintiff from obtaining prospective relief, permit preventable violations of individual constitutional rights. Procedural limitations exist to protect a court's jurisdiction when congressional limitations impact an individual's substantive rights. These procedural limitations are subject to constitutional scrutiny. "Lauf contains no holding permitting jurisdictional powers to trump constitutional claims. . . ."[345]

Second, there is good reason to believe that by the time the Lauf court considered the Norris-LaGuardia Act, the justices no longer felt bound by their previous Lochner-era decisions.[34]6 With Lochner and its progeny decisions, the Court chose to protect businesses' rights, including the right to remain unconstrained by certain types of governmental regulation and to receive an injunction to effectuate this right.[347] These were the same rights asserted by the plaintiffs in Lauf.[348] However, by 1938 the Court had already begun to repudiate its protection of substantive economic rights.[34]9 The Lauf justices, in determining the constitutionality of the Norris-LaGuardia Act, may not have considered the plaintiffs' rights deserving of constitutional protection through the issuance of an injunction. Instead, the justices believed that the plaintiffs' economic rights could be remedied through alternative federal and state means.[350]

Finally, the Norris-LaGuardia Act created a poor standard upon which to base a determination of when a substantive right deserves protection by the issuance of an injunction. The Norris-LaGuardia Act requires a plaintiff to prove "That as to each item of relief granted greater injury will be inflicted upon [the] complainant by the denial of relief than will be inflicted upon defendants by the granting of relief."[351]

This balancing test shifts the burden of proof to the plaintiff to demonstrate that enforcement of yellow dog contracts outweighs the benefit of avoiding labor strikes and an industry-wide impediment to industrial production. However, if such a standard were applied to the Implementation Act, it would force private individuals and businesspersons to prove that their privacy or interests outweigh the potential benefit of maintaining the Treaty. Given the design of the balancing test in this instance, it would seem impossible for any plaintiff to receive an injunction to protect his or her rights against an illegal search. While the Lauf Court held the Norris-LaGuardia Act constitutional in part because it allowed the issuance of injunctions under limited circumstances,[352] application of this same balancing test to the Implementation Act would appear to have the same effect as a complete ban on injunctive relief. On the face of the statute, plaintiffs would be at a tremendous disadvantage in attempting to prove that their individual privacy interests outweigh the benefits of the Treaty.

2. Yakus v. United States

In 1942, Congress enacted the Emergency Price Control Act.[353] As part of the Act, Congress denied both federal and state courts jurisdiction to consider the constitutionality of price regulations, and prevented the courts from enjoining enforcement of the Act's regulations.[354] Attacks on the validity of the Act were limited to a newly created Emergency Court of Appeals whose decision could only be reviewed by the Supreme Court.[355]

In Yakus v. United States,[356] the Court considered a district court's ruling under the Emergency Price Control Act. The district court had refused to consider Yakus's claim that the Emergency Price Control Act was unconstitutional and had convicted him of violations of price control regulations covered by the Act.[357] The Supreme Court affirmed the conviction and held that Yakus should have challenged the validity of the Act in the newly created Emergency Court of Appeals.[358] In so doing, the Supreme Court emphasized Congress's ability to deny the district court's jurisdiction to consider Yakus's defense so long as Congress provided Yakus with an adequate forum in which to make his appeal.[359]

Despite its practical result in affirming Yakus's conviction, the Court's decision stands for the proposition that Congress cannot limit a lower court's jurisdiction to enter pleas for the protection of a constitutional right without the provision of an adequate remedial substitute. The implementing legislation provides no alternative and adequate substitute forum where potential plaintiffs may seek protection of their Fourth Amendment rights before an allegedly unconstitutional search commences.

3. Battaglia v. General Motors Corp.

The Fair Labor Standards Act of 1938[360] mandated overtime pay for employees working over forty hours per week. The Portal-to-Portal Act of 1947[361] defined the "work week" of miners so as not to include the time these laborers spent traveling underground to and from the mineface, as well as other preparation time involved in their work.[362] The Portal-to-Portal Act also limited federal court jurisdiction against hearing any suit for overtime pay arising from this legislative definition of a miner's work week.[363]

The Second Circuit Court of Appeals upheld the Portal-to-Portal Act in Battaglia v. General Motors Corp.[364] However, the Second Circuit also held that Congress's power to regulate jurisdiction of the inferior federal courts is subject to compliance with the requirements of the Fifth Amendment.[365] The Court ruled that Congress's power to withdraw lower court jurisdiction to consider certain cases is subject to the same constitutional limitations on Congress's substantive power to eliminate employer liability for accrued overtime pay.[366] In other words, Battaglia indirectly stands for the principle that Congress's authority to limit federal court jurisdiction is bound by the requirement that an alternative appropriate remedy be supplied to protect the jeopardized constitutional right.[367]

Application of the Battaglia holding to the Implementation Act once again demonstrates that Congress lacks the authority to withdraw injunctive relief when its failure to provide an appropriate substitute remedy threatens the violation of a well-established Fourth Amendment right.

B. Injunctions Are the Only Appropriate Remedy

The precedent of cases mentioned above dictates Congress's obligation to provide an adequate remedy for the protection of constitutional rights. To do otherwise subverts the judiciary's obligation to prevent incipient violations of these rights. These cases also suggest that Congress's ability to prohibit injunctive relief, like its ability to control jurisdictional issues, is limited by its effect on substantive rights—limitations imposed by the Constitution. There can be only one reasonable conclusion drawn from the judicial precedent described above: Congress cannot withdraw jurisdiction to issue any constitutionally required remedy.

Naturally, this conclusion seems to beg the question: When is a remedy constitutionally required such that congressional withdrawal of lower court jurisdiction to grant that remedy should be struck down as unconstitutional? In answering this query, the courts should consider two factors: whether the remedy to be prohibited is an appropriate mechanism by which to redress the plaintiff's injuries and whether appropriate alternative remedies exist.[368]

1. Injunctive Relief Is an Appropriate Remedy

Historically, injunctions have been considered adequate and appropriate remedies in cases involving litigation of constitutional violations.[369] This is especially true when an award of monetary damages is unsuitable to redress the individual's loss from the constitutional violation.[370] Injunctions have also been used by courts as an appropriate remedy to prevent governmental disclosure of confidential business information and trade secrets.[371] There can be no doubt that injunctions are an appropriate remedy by which to protect individuals from foreseen, yet avoidable, constitutional violations.

In the case of challenge inspections, injunctive relief is an appropriate remedy. The Treaty's verification regime obligates the director-general to inform the Host State Party member of the impending search and the facility to be inspected.[372] It is logical to assume that the United States National Authority will inform the private individual or business targeted for challenge inspection. The National Authority will either ask the property owner for consent to search, or at a minimum, inform the property owner to prepare the facility for the forthcoming inspection. This notice would provide the property owner with time, albeit limited, to seek judicial intervention to prevent the inspection. If necessary, an injunction would be an appropriate measure by which to protect the constitutional interest of the property owner before those interests could be trampled.

2. No Appropriate Alternative Remedies Exist

The Implementation Act, while withdrawing lower court jurisdiction to issue injunctive relief to prevent verification searches, offers no explicit alternative remedy.[373] Thus, the only option to redress a plaintiff's allegations of violations of protected privacy interests or the release of confidential business information would be a post facto suit for monetary damages. However, a suit for monetary damages would not only be infeasible, but would also be unlikely to fully compensate the plaintiff for the harms suffered.

A property owner is not likely to prevail in a suit for monetary damages against a foreign State Party member because, unless the foreign State Party member consents to be sued in a United States court, that State Party member enjoys sovereign immunity.[374] The property owner would be forced to bring suit in the foreign jurisdiction, and the suit would be governed by foreign law.[375] The likelihood of a domestic plaintiff prevailing against a foreign State Party in a foreign, or domestic, court is remote; thus, such suits are inappropriate remedies.

Nor could a plaintiff successfully bring suit against Treaty officials in the OPCW, which includes members of the inspection team. The Treaty provides complete immunity for all OPCW personnel for acts conducted in their official capacity.[376] This immunity also includes protection from criminal and civil suits as enjoyed by international diplomats under Article 31 of the Vienna Convention on Diplomatic Relations.[377]

The Treaty language authorizes the director-general to waive any member of the inspection team's immunity "in those cases when the director-general is of the opinion that immunity would impede the course of justice and . . . can be waived without prejudice to the implementation of the provisions of this Convention. Waiver must always be express."[378]

It seems unlikely that the director-general would waive a Treaty official's immunity unless a Host State Party member can demonstrate that the official intentionally abused his or her privileges and immunities. Even if immunity were waived by the director-general, it would be nearly impossible to hail a Treaty official from a foreign nation into a United States court without creating an international incident. As such, monetary damages actions against Treaty officials are an inappropriate remedy to correct a violation of a United States citizen's constitutional rights.[379]

Further, while the Federal Tort Claims Act (FTCA)[380] permits private parties to sue the federal government for the negligent acts of its employees,[381] there are several exceptions that may prevent a private plaintiff from recovery against this entity.[382] First, an intentional negligence exception exempts the federal government from liability if an employee's intentional torts were committed in good faith.[383] As a result, private property owners would only be able to maintain an action against the United States government if the government officials who facilitated the inspection acted maliciously or in bad faith.[384] Second, the government may avoid liability for alleged torts committed by federal officials in the performance of a discretionary function.[385] Therefore, with at least two broad-ranging exceptions by which the United States government may claim sovereign immunity from tort actions, property owners are unlikely to recover for the loss of confidential business information and violations of privacy interests.

Finally, private plaintiffs have little chance of successfully bringing suit against United States officials in their individual capacity under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics.[386] Normally, a Bivens action permits a person to seek monetary damages against a federal official for alleged violations of constitutional rights.[387] In the case of challenge inspections, a plaintiff might allege both a violation of the Fourth Amendment based on the illegality of the search, and a violation of the Fifth Amendment based on the unauthorized and uncompensated release of guarded trade secrets.[388] Yet, reliance on a potential plaintiff's ability to bring a Bivens suit to redress the constitutional violations perpetrated by National Authority officials falls short of providing an adequate and appropriate remedy.[389] It is unlikely that an award against a government official in his or her personal capacity could fairly remunerate a plaintiff for the loss of confidential trade information or business secrets. Even if courts were to recognize such an action, the government official may still claim qualified immunity as a defense to avoid liability to a Bivens suit.[390]

Even if one of the aforementioned suits against foreign or domestic governments or their employees could succeed, wise policy demands that the government not be permitted to buy itself out of constitutional violations. Allowing the government to pay for its constitutional violations instead of allowing the individual to prevent the constitutional tort in the first place makes a mockery of affirmative constitutional safeguards.

The fourth amendment does not grant the government the discretion to decide whether the benefits of infringing the public's right to be protected from unreasonable searches and seizures are worth some expenditure of the public's funds; the language of the amendment is an affirmative command. It is therefore doubtful that the substitution of a claim against the government . . . would provide equally effective vindication of the constitutional interests thus protected, and it is therefore doubtful that such a substitution would be constitutionally valid.[391]
3. The Unconstitutionality of Congress's Ban of the Only Appropriate Judicial Remedy

If Congress strips lower court jurisdiction to fashion the sole appropriate remedy, the practical effect of such legislation is to deny the plaintiff a forum in which to have his or her claims properly adjudicated. As Lawrence G. Sager noted: "Hobbling the judiciary by denying it all reasonably effective remedies is as fatal to a litigant's effort to vindicate constitutional rights as is flatly denying the litigant a judicial forum. Indeed, for many constitutional claims the availability of anticipatory relief is essential."[392]

To do otherwise would legitimize Congress's power to jurisdictionally exclude the prevention and protection of constitutional rights in individual cases. By eliminating jurisdiction, Congress would prohibit judicial scrutiny of legislative regulations that adversely impact constitutionally safeguarded liberties.

In the case of challenge inspections, Congress's attempt to strip lower court jurisdiction to issue injunctions is nothing more than a means to elevate the importance of the Treaty above the protection of Fourth Amendment rights. This "means to an end" rationale for jurisdictional withdrawal was explicitly rejected by the Supreme Court over 100 years ago.[393] The holdings of such landmark cases as Marbury v. Madison[39]4 and United States v. Klein[395] helped forge the role of the judicial branch in the American political system—to protect the rights and liberties of United States citizens through the careful review of legislative acts. It would undermine the function of the court system if Congress could prohibit judicial remedies for the constitutional violations for which the courts were created.[396] Alexander Hamilton aptly summarized this concern in the Federalist Papers when he wrote:

Limitations on legislative authority can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of particular rights or privileges would amount to nothing.[397]
V. CONCLUSION

The Treaty is the result of years of international negotiations to prevent the potential use and proliferation of chemical weapons. The Treaty calls for a ban on the development, production, and stockpiling of chemical weapons which is enforced through an intensive verification regime. Given the threat chemical weapons pose to international security and the damage their use can have in a domestic setting, such a global agreement seems appropriate.

However, the intrusiveness of the verification mechanism by which the international community seeks to enforce the Treaty raises clear constitutional problems. The availability of challenge inspections by the verification regime allows other Treaty signatories to request inspections of any private business or home in the United States without meeting a minimal evidentiary burden or warrant requirement. The Implementation Act facilitates these challenge inspections by establishing a National Authority with the capability to obtain administrative warrants to authorize these searches.

Objections to the Treaty arise because, like all international agreements, it is subject to the constitutional limitations imposed on all statutory regulations in the United States. Specifically, the scope of the Treaty's challenge inspections should be bound by the Fourth Amendment's protection against unreasonable searches and seizures. Unfortunately, there is little hope that a judicially recognized exception exists to exempt challenge inspections from traditional warrant and probable cause requirements.

The Implementation Act's attempt to prevent private businesses or property owners from indirectly causing the United States to abrogate its treaty obligations is unconstitutional. In effect, the Implementation Act's jurisdictional prohibition against injunctive relief destroys the only appropriate remedy available to safeguard an individual's Fourth Amendment rights.

While well-intentioned, the practical effect of the Treaty and the domestic Implementation Act in the United States will be to subjugate paramount individual constitutional rights to the hope of acquiring some level of security from the ever-present threat from the proliferation of chemical weapons.