Executive Power

Bond v United States: The Supreme Court Should Not Let Bad Facts Make Bad Law

By John Bellinger
Friday, November 8, 2013, 9:27 AM

As Raff noted earlier this week, the Supreme Court heard oral argument on Tuesday in the strange case of Bond v United States, in which a Pennsylvania woman, Carol Anne Bond, was convicted under a federal criminal statute enacted in 1998 to implement the Chemical Weapons Convention after using highly toxic chemicals to poison her husband's mistress.  (Ms. Bond smeared the chemicals on the car door, front door, and mailbox of the victim on more than two dozen occasions, but ultimately succeeded only in causing burns to the victim's hand.)  The case has become a cause celebre among some conservatives, who have blasted the prosecution as a federal encroachment in a purely local matter in violation of the Tenth Amendment.   In fact, the prosecution of Ms. Bond under the federal statute implementing the CWC is neither unconstitutional nor unusual, and the Supreme Court should not be tempted by the odd facts of the case to place new limits on the President's and Congress's powers to make and implement treaties that advance important national security objectives.

The CWC requires state parties to prohibit the development, production, stockpiling, and use of chemical weapons, which are defined to be toxic chemicals that can cause death, temporary incapacitation, or permanent hard to humans or animals.   The Senate approved the CWC in1997, and in 1998, Congress passed a federal criminal statute, 18 U.S.C. 229, to implement U.S. obligations under the Convention.

The Department of Justice has used 18 U.S.C. 229 on at least two other occasions to prosecute individuals for using toxic chemicals prohibited by the CWC under circumstances that some might see as "local" in that they did not have a direct international connection:

In United States v. Kimber, No. 1:12-cr-00506-LEK (N.D.N.Y.), a New York man was convicted after spreading liquid mercury throughout an Albany hospital after a billing dispute.   And in United States v. Fries, No. 4:11-cr-01751-CKJ-CRP (D. Az.), a Tucson handyman was convicted after igniting a chlorine chemical device in the driveway of a client who refused to pay him, resulting in the release of a chlorine gas cloud and causing the evacuation of the neighborhood.

These prosecutions may have somewhat unusual facts, but the lack of an immediate international nexus does not mean that the prosecutions were inappropriate or unconstitutional.

Critics of the federal prosecution olf Ms. Bond have suggested that the federal government may intentionally join treaties in order to abridge the rights of Americans or infringe on state sovereignty.   But these criticisms ignore the requirement that treaties must be approved by two-thirds of the Senate and any implementing legislation must be approved by both houses of Congress, as happened with the Chemical Weapons Convention (which was approved by the Republican-controlled Senate in 1997) and 18 U.S.C. 229 (which was passed by the Republican-controlled Congress in 1998).

In the Bond case, I submitted an amicus brief on behalf of six former Legal Advisers who served in both Democratic and Republican Administrations dating back to the 1960s (to which Justice Kagan referred in Tuesday's oral argument) pointing out the structural protections in the Constitution for states when the federal government enters into treaties and urging the Supreme Court not to place unprecedented restrictions on the federal government's ability to negotiate and join treaties.