Rule of Law

Supreme Court Not Expected to Strike Down Chemical-Weapons Law

By Emelie Rutherford


WASHINGTON — The Supreme Court appears unlikely to invalidate the U.S. law backing an arms-control treaty when it rules on a case it heard on Tuesday regarding a Pennsylvania woman’s controversial prosecution under the Chemical Weapons Convention Implementation Act, issue experts said.


The high court is expected to decide next spring on Carol Ann Bond’s challenge to her conviction and six-year prison sentence for violating the 1998 law implementing the international Chemical Weapons Convention in the United States.


Bond pled guilty in 2008 to trying to poison her husband’s pregnant lover with a chemical compound. However, she argues that federal prosecutors infringed on state authority by filing charges against her under a law supporting a treaty intended to deter rogue nations or terrorists from using chemical arms.


The majority of the Supreme Court justices — in particular, the conservatives on the bench — during oral arguments voiced strong skepticism of the government’s argument that Bond was rightfully prosecuted under the federal law.


Still, lawyers who wrote amicus “friend-of-the-court” briefs advocating opposing sides of the Bond vs. United States case told Global Security Newswire they do not expect the Supreme Court to go as far as to invalidate the 1998 Chemical Weapons Convention Implementation Act.


“It is unlikely that the court will strike down the statute entirely,” said Nicholas Rosenkranz, who wrote an amicus brief that the libertarian Cato Institute filed in support of Bond.


“A more plausible and less dramatic thing that the court might say is that the statute is unconstitutional, in part — only as applied to purely local crimes like Mrs. Bond’s,” Rosenkranz, a Georgetown University law professor, said in an interview.


The court also could decide the case without addressing the constitutional dimension. Bond’s attorney, former U.S. solicitor general Paul Clement, suggested that the justices could construe the Chemical Weapons Convention Implementation Act narrowly, and interpret it so that it does not cover Bond’s actions.


Elizabeth Wydra, author of an amicus brief in support of the government’s position, in an interview with GSN offered a prediction in line with Rosenkranz’s.


“I think that the court is probably more likely to accept the argument that Paul Clement closed with in his rebuttal time that would basically interpret the statute to exclude conduct like Ms. Bond’s, and that would allow the court to avoid getting into some of these thornier constitutional questions,” said Wydra, chief counsel at the Constitutional Accountability Center.


In court on Tuesday, lawyers for the government and defense offered different takes on the case’s potential implications for the U.S. ability to enter into and maintain treaties with other nations.


Clement, Bond’s attorney, argued that the case has nothing to do with the federal government’s ability to enter in to treaties, because what Bond did was not what the global community was thinking of when it embraced the chemical-weapons ban.


“I don’t think any one of our treaty partners said, ‘Oh, my goodness. There’s been a deployment of chemical weapons in Norristown, Pennsylvania; I sure hope the United States steps up to its treaty obligations and prosecutes this horrible deployment of chemical weapons,'” Clement told the justices.


A sympathetic Justice Samuel Alito sarcastically noted that he gave away chocolate on Halloween, which could be considered a “toxic chemical” in the chemical-weapons ban.


Rosenkranz, the Georgetown professor who supports Bond’s defense, maintained that the “validity of the underlying treaty is not in question, so this case will not limit the treaty power itself.”


“What is at issue is Congress’s power to legislate pursuant to treaty,” he said. “The issue is whether a treaty can increase the legislative power of Congress.”


Federal officials maintain a 1920 case, Missouri vs. Holland, serves as precedent for their prosecution of Haynes. In that decision, the Supreme Court ruled that Congress could override state law to implement an international treaty.


Rosenkranz acknowledged that a broad decision by the court — one that overrules Missouri vs. Holland — would restrict congressional ability to legislate pursuant to treaty.


“But this would hardly hinder our treaty-making or inhibit our foreign relations,” he told GSN. “After all, under current doctrine, Congress already has such broad powers even without Missouri vs. Holland. … Because Congress has vast enumerated powers, it would still be able to implement any sensible treaty in a perfectly valid way.”


Meanwhile, U.S. Solicitor General Donald Verrilli specifically voiced concerns on Tuesday that a ruling in favor of Bond could alter the Obama administration’s treaty power and negatively affect initiatives regarding chemical weapons and nuclear nonproliferation. He cited the Chemical Weapons Convention’s current application in civil war-torn Syria, where international monitors are helping eliminate the ruling government’s chemical warfare stocks.


Verrilli argued against the court applying the chemical-arms convention’s implementing law differently for warlike and peaceful purposes — such as in Bond’s domestic matter.


“Well … one of the very things we are trying to sort out right now in Syria under the Chemical Weapons Convention is where the line is between peaceful uses and warlike uses,” the lead government attorney argued. “And this phrase, ‘peaceful uses,’ is not only in the Chemical Weapons Convention, it’s in the Nuclear Nonproliferation Treaty, and we’re engaged in very sensitive negotiations right now under the Nuclear Nonproliferation Treaty trying to draw exactly the same line.”


Verrilli added that “the framers of the convention and Congress in implementing the convention made a judgment that there needs to be a comprehensive ban and that you can’t be drawing these kinds of lines.”


Wydra highlighted how justices including Elena Kagan expressed concerns on Tuesday about the “appropriateness of second-guessing [the] treaty makers and trying to figure out as a court what was being contemplated in these negotiated — and often very contentiously negotiated — important international treaties and conventions.”


Still, both Rosenkranz and Wydra pointed out that the two sides in the case are in agreement that the Chemical Weapons Convention remains a valid treaty.