Bond v. United States: choosing the lesser of two evils.

• Author: Sloss, David
• Position: Symposium on Treaty Power and Bond v. United States

INTRODUCTION

In Bond v. United States, Carol Anne Bond used toxic chemicals in an attempt to poison her husband's lover. (1) The federal government prosecuted Bond for violating the Chemical Weapons Convention Implementation Act of 1998 (CWC Act). (2) Congress enacted the CWC Act to implement the United States' obligations under the Chemical Weapons Convention (CWC), a multilateral treaty signed in 1993 that is designed to address the global threat posed by chemical weapons. (3) Bond challenged the constitutional validity of the federal statute and urged the Court to overrule Missouri v. Holland, (4) a 1920 case holding that the combination of the treaty power and the Necessary and Proper Clause empowers Congress to enact treaty-implementing legislation that would exceed the scope of Congress's Article I powers in the absence of a treaty. (5) Chief Justice Roberts, writing for the majority, avoided the constitutional question by adopting a narrow construction of the statute. (6) Justice Scalia, writing for himself and Justice Thomas, would have overruled Holland and invalidated the CWC Act. (7)

This essay makes two main points. First, the majority's interpretation of the CWC Act is inconsistent with the statute and the underlying treaty. Indeed, the majority opinion displays a basic misunderstanding of the design of the underlying treaty. Second, Justice Scalia's construction of the Necessary and Proper Clause is antithetical to the structure and original understanding of the Constitution. If adopted as law, Justice Scalia's view would seriously harm the federal government's ability to conduct foreign affairs on behalf of the nation. Since Justice Scalia's constitutional error would be far more damaging than the majority's statutory error, the majority's statutory misinterpretation is the lesser of two evils.

1. THE STATUTORY ISSUE IN BOND

   Chief Justice Roberts began his opinion in Bond by invoking the horrors of World War I. He claimed that the international reaction to the use of chemical weapons in World War I led to "an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings." (8) Nowadays, he said, "that objective is reflected in the [CWC]." (9) With due respect for the Chief Justice, his view of history is seriously mistaken. International reaction to the horrors of World War I led to adoption of the 1925 Geneva Protocol, which banned the use of chemical weapons. (10) Unfortunately, the 1925 Geneva Protocol was a failure because it did not address the two central problems that modern arms control treaties are designed to address: breakout and verification.

   The 1925 Geneva Protocol merely banned the "use in war" of chemical weapons. It did not ban the manufacture or stockpiling of chemical weapons. (11) Accordingly, the treaty created a breakout problem: states could legally acquire large stockpiles of chemical weapons and then "break out" front the treaty constraints on a moment's notice by using those weapons in war. One way to address the breakout problem would be to ban the manufacture and stockpiling of chemical weapons. Even this approach, however, does not fully address the breakout problem. Under this approach, states could lawfully acquire large stockpiles of toxic chemicals that could be converted into weapons on very short notice. Such stockpiles of chemicals pose a significant threat to other nations. The CWC is designed to address that threat. Accordingly, the CWC obligates states not to "develop, produce, otherwise acquire, stockpile or retain chemical weapons." (12) Moreover, it defines the term "chemical weapons" to include "[t]oxic chemicals and their precursors." (13) Thus, unlike the 1925 Geneva Protocol, the 1993 CWC incorporates two key features to address the breakout problem. Instead of merely banning the use of chemical weapons, it bans development, production, acquisition, and stockpiling. And, instead of focusing narrowly on chemicals that have already been converted into weapons, it defines the term "toxic chemical" broadly to encompass " [a] ny chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals." (14) Both of these features are essential to the overall design of the treaty. Without both, states could lawfully acquire large stockpiles of toxic chemicals that could easily be converted into weapons of mass destruction.

   Congress recognized that these features of the treaty were integral to the overall treaty design, so it incorporated both features into the CWC Act. The statute makes it unlawful for any person "to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon." (15) It defines the term chemical weapon to include "[a] toxic chemical and its precursors." (16) Moreover, the statute defines the term toxic chemical to mean "any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals." (17) In short, Congress understood that the 1925 Geneva Protocol was seriously flawed because it did not address the breakout problem. Accordingly, Congress incorporated into the implementing legislation key features of the CWC that were specifically designed to address the breakout problem.

   Chief Justice Roberts and the Bond majority were apparently unaware of the critical differences between the 1925 Geneva Protocol and the 1993 CWC. The majority says that "an educated user of English would not describe Bond's crime as involving a 'chemical weapon.'" (18) The opinion adds: "When used in the manner here, the chemicals in this case are not of the sort that an ordinary person would associate with instruments of chemical warfare." (19) These statements are true, but they manifest the majority's utter failure to grasp the critical differences between the 1925 Geneva Protocol and the CWC. The 1925 Geneva Protocol failed to address the threat of chemical weapons precisely because it merely prohibited the types of conduct "that an ordinary person would associate with ... chemical warfare." (20) The states that drafted and negotiated the CWC were determined to address the breakout problem by prohibiting a wide range of conduct that the ordinary person would not associate with chemical warfare. Recognizing that the 1925 Geneva Protocol had failed to address the underlying problem, Congress enacted a federal statute to implement the more far-reaching provisions of the CWC. (21) The Bond majority misinterpreted the CWC Act because the Justices mistakenly believed that the Act was merely intended to address the type of conduct that an ordinary person would associate with chemical warfare.

   As noted above, modern arms control treaties are designed to address both breakout and verification problems. The preceding analysis focuses on breakout. Let us now turn to verification. In theory, states could address the breakout problem by establishing quantitative limits for stockpiling toxic chemicals in non-weapons form. After all, acquisition of a few grams of a toxic chemical is unlikely to pose a serious national security threat. The quantity that represents a serious threat varies depending on the type of chemical at issue. Regardless, states could conceivably agree on a detailed schedule specifying permissible quantities of different types of toxic chemicals falling below the threshold that might reasonably be deemed a threat. The problem with this approach is that it is extremely difficult to verify compliance with a non-zero, quantitative limit. (22) A verification regime designed to verify compliance with non-zero, quantitative limits would require states to maintain detailed inventories of regulated chemicals and would require highly intrusive inspections to verify the accuracy of those detailed inventories. Even then, verification would be problematic. In contrast, it is much simpler and less burdensome to verify compliance with a zero limit. That is why the CWC establishes a zero limit and does not include a de minimis exception for prohibited chemicals. (23) Any de minimis exception would make it exceedingly difficult to verify compliance with treaty prohibitions.

   Article VII of the CWC obligates "[e]ach State Party ... [to] [p]rohibit natural and legal persons anywhere on its territory ... from undertaking any activity prohibited to a State Party under this Convention." (24) Article VII helps address both breakout and verification concerns. If private parties could lawfully acquire large stockpiles of toxic chemicals, it would be very difficult for international monitors to verify that those stockpiles were owned by private actors rather than the government. Moreover, even assuming that private ownership could be established with certainty, governments in many countries could easily "break out" from treaty constraints by seizing the stockpile for military use whenever they decided to do so. (25) Thus, the provision obligating states to prohibit private conduct inconsistent with the treaty is designed to block one obvious mechanism that states could otherwise utilize to circumvent limitations on state conduct. Congress faithfully implemented Article VII by enacting a federal statute that makes it "unlawful for any person knowingly ... to develop, produce, otherwise acquire ... stockpile, retain, own, possess, or use ... any chemical weapon." (26)

   The combination of factors outlined above--a broad definition of chemical weapons, a prohibition on development, acquisition, production, and stockpiling of toxic chemicals, a non-zero limit without any de minimis exception, and application of the treaty to private conduct--led Chief Justice Roberts to proclaim, with obvious exasperation, that the government's interpretation of the statute would...