Virginia's contribution to the generation of anti-terrorism laws passed in the wake of the Sept. 11, 2001 attacks will face its first legal challenge when sniper suspects John Lee Malvo and John Allen Muhammad go to trial.
Malvo and Muhammad are accused of carrying out the string of sniper attacks, which spread across five states and Washington, D.C., leaving 13 dead and five wounded. Muhammad is scheduled to appear in court Dec. 12 for a possible court date.
The Virginia law, passed earlier this year, authorizes use of the death penalty for acts of terrorism, which it defines as an act that is intended to "intimidate the civilian population at large," or an act that involves the use of chemical, biological or radioactive weapons.
John Norton Moore, director of the University Center for National Security Law, said he thought officials should be cautious in how they exercise the law because of the controversy over capital punishment.
"We want to be very careful with new laws that give the death penalty," Moore said. He stressed the necessity that such laws are "properly drawn and carefully circumscribed."
Though the law is constitutionally untested, federal prosecutors decided to use the new law after carefully scrutinizing the possible avenues available to them, according to Robert Holsworth, chairman of Virginia Commonwealth University's department of international and public affairs.
Prosecutors "made a judgement on what the best means of pursuing the case are," Holsworth said. "They had the best lawyers in the country combing over possible laws."
The law, which Virginia Attorney General Jerry Kilgore authored as part of his 2002 legislative package, will hold water in court, according to Kilgore spokesman Randy Davis.
"Whenever the attorney general proposes legislation, it is our belief that it will pass" the test of constitutionality, Davis said. He added that the law contains a severability clause, which dictates that, if a particular part of the law is determined unconstitutional, the rest of the law remains intact.
Because the law was written "in response to 9/11," according to Davis, lawmakers did not necessarily conceive it as applying to this sort of case. However, he said that is not necessarily relevant.
"Though this specific case was not contemplated, the events of 9/11 made it clear that combating terrorism was no longer just duty to be left to the federal government," Davis said. Kilgore "submitted the legislation in order to give Virginia more powerful tools to pursue all terrorists."
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