The Improbable Bond v. United States

by Peter Spiro

As foreign relations law wonks gear up for next Tuesday’s argument in Bond v. United States, I wanted to ask, how did we end up with this case, anyway? The small-time, slightly sordid facts are (for classroom purposes) a lawprof’s dream. For those of you who haven’t been following along, the case involves a love triangle in which a wife attacks her husband’s lover, now pregnant with his child. Instead of attacking with a tennis racket or small appliance or some kitchen crockery, she more imaginatively sprinkles toxic chemicals on the woman’s car door, doorknob, and mailbox (the backstory is nicely recounted here).

Instead of pursuing the case under state assault and/or harassment laws, the government prosecuted Bond under 18 U.S.C. 229(a)(1), which criminalizes the use of chemical weapons and was enacted pursuant to the Chemical Weapons Convention.

My question: how did the government decide to pursue the case under the CWC? A case that would otherwise have sleepily played out in a local DA’s office may have come to federal attention through postal inspectors. After that, was it some enterprising young prosecutor who couldn’t seem to shoehorn the case to fit any other federal crime? One can almost imagine an a-ha moment for some newly-minted, hard-working AUSA, late night, deep into the books — “we can nail her for chemical weapons!”

Can we just admit, then, that this is a freak case? The background doesn’t affect the affect the legal analysis but it sure will affect the atmospherics. One can hardly imagine a worse case from the government’s perspective for defending an expansive Treaty Power. I wonder if that AUSA got kudos for creativity. Why didn’t State and/or Justice make this case go away? Why fight so significant a battle on such insignificant terrain? It’s not as if the government is pressing and protecting a clear policy agenda here. Our CWC treaty partners would hardly be offended if Carol Anne Bond were sprung.

Given that the federal government has made very, very little use of the Treaty Power (possibly never) to enlarge its constitutional authority, maybe it would serve everyone better if the Court dodged the broad issue and ruled on a narrow one. The case could be dispatched on narrow statutory interpretation grounds: the provision should not be read to cover the conduct involved. But maybe that’s more than we can hope for from this Court, which looks increasingly intent on asserting itself in the realm of foreign affairs. 

http://opiniojuris.org/2013/10/31/improbable-bond-v-united-states-court-duck-big-treaty-power-issue/

8 Responses

  1. Are you kidding?  As I read the Government’s brief, the Federal claim was an ADDITIONAL count, along with State law claims in the indictment.   The treaty specifically requires State enforcement.  It is one of the most important treaties we need.  As we know that many States have NOT been enforcing the treaty (and many others), it is important to include it.  One cannot demand reciprocity otherwise.

  2. Thomas, Do you have any extraneous evidence of this – that federal authorities consider this kind of application of the CWC to be important as a policy matter? It can’t be the case that not prosecuting Bond under the CWC would have raised any international eyebrows. Nobody’s arguing that the US had to prosecute Bond, are they?

  3. could be very important with respect to law of war or antiterrorism matters.  And, in any event, there is no 10th Amendment interest of the state that can survive the reach of the treaty b/c/ the 10th Amendment expressly denies the states a power (1) when the treaty power has been expressly delegated to the federal govt. and (2) when the treaty power has been expressly denied the states. see http://jurist.org/forum/2013/02/jordan-paust-bond-v-us.php
     

  4. There has been some DOS statements about Syria, maybe?

  5. Thomas, I understand that the CWC is an important treaty. As far as I can tell, its efficacy is not contingent on prosecuting a case like this. 

  6. I don’t fully understand. If the Supreme Court finds in Bond’s favor would that not just be on the grounds of the government extending its powers into local affairs rather than that the CWC is invalid.
    Or put another way: what are the likely consequences if Bond wins? 

  7. Depending on the rationale, if Bond wins there might be a significant reversal of 150 years of constitutional history regarding the reach of the treaty power and congressional power to implement treaty law as supreme law of the United States (which treaty law is in any event supreme under the Supremacy Clause, art. VI, cl. 2 — “all” treaties).  It could also wipe out the express text of the Tenth Amendment as well as the express text of Article I, Sec. 8, cls. 10 and 18 of the Const.) and the “original” understanding of each.  There are so many cases recognizing congressional power to implement treaties (see click-on above and http://ssrn.com/abstract=1484842 ) that the Court’s majority would have to be overruling decades of case law in complete contradistinction to the express provisions of the United States Constitution.  Also, there could be a devastating effect on the ability of the United States to assure that international crimes are adequately enforced within the United States, which would also implicate serious negative foreign policy outcomes and long term effects.
    It could also unmask the majority as Justice driven by political and ideological prefernces in constradistinction to text, original understanding, overwhelming trends in judicial decision and any sense of “law.”

  8. How many prosecutions have there been, Peter?   One in Japan?   Do you think all ratifying States are complying????   Really?

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