Sniper Case Good Fit for More Abuses in Terrorism War

Virginia state legislator, David Albo, the chief sponsor of the state's anti-terrorism law passed in 2002 quipped that the law fit like a glove in the prosecution of sniper suspect John Allen Muhammad. Virginia prosecutors certainly wasted no time in charging Muhammad under the law. It carries the death penalty. Many legal experts bet that the law won't pass constitutional muster. Their legal reasoning is simple. The law defines terrorism as any act aimed at terrorizing civilians and/or influencing the policy, conduct or activities of the government. The law was intended to nail members of Al Quaeda terror cells that commit murder and mayhem in Virginia.

But judging from their statements, not even the most hardened, law and order Virginia lawmaker envisioned that the first person prosecuted under the law would be Muhammad, a drifter, ex-con and a petty criminal. Legal experts argue that the law is way too broad, too vague, legally shaky, and swings the door wide open to further abuses of civil liberties. The anti-terrorism law is also unnecessary. Muhammad is being tried for a capital crime that carries the death penalty. Virginia also has a statute that allows prosecutors to seek the death penalty when a person commits more than one murder in three years.

While the legal experts are right that the law is dubious, they are probably wrong if they think it will be tossed. It was no accident that Attorney General John Ashcroft quickly waived a federal prosecution for Muhammad and Lee Malvo, and brushed past trying them in Maryland where the sniper killed six persons compared to three in Virginia, to dump the case in Virginia. Ashcroft was confident that Virginia would prosecute both men under its anti-terrorism law, and if convicted they would get the death penalty.

Though there is little evidence that Muhammad was the actual triggerman in the sniper murders, his short lived comical stab at legal self-defense, and the fact that Virginia juries run neck and neck with Texas juries as the most ardent hanging juries in the country, likely make Muhammad's trial a mere formality and conviction a certainty. Virginia has executed 89 persons since 1976.

Muhammad and Malvo's alleged crimes are so odious and reprehensible, and public fear and revulsion of them is so great, that once convicted, a judge will be loath to scrap their conviction and the law on constitutional grounds. Muhammad is Ashcroft and Virginia's best insurance that the law will stand.

But even if Muhammad hadn't been tried under the state's terrorism law, that law is not unique. In the immediate aftermath of the September 11 attacks, a dozen states passed draconian anti-terrorism laws. They drastically increased sentences and in some cases mandated the death penalty for terrorist acts. The state laws give prosecutors virtual open license to charge any individual or member of groups they deem as terrorists. Their laws are every bit as broad, vague and constitutionally questionable as Virginia's law. The language in the Virginia law defining terrorism as a crime committed to intimidate or coerce civilians and influence government policy was lifted almost verbatim from New York's anti-terrorism law. That law was enacted a year before Virginia enacted its law.

In highly charged trials, such as that surrounding Muhammad's, the thirst for revenge is great. Prosecutors would have the public's full blessing to bring whatever charges they wanted. The chance would be good that any outcry against potential legal abuses would be weak and short-lived. A Newsweek poll taken during the height of the alleged rampage by Muhammad and Malvo found that Americans by a big majority feared the sniper more than foreign terrorists.

The one exception, though, where prosecutors would be reluctant to bring prosecutions under the anti-terrorism laws would be where the perpetrators are actual members of white hate groups, or individuals affiliated with or influenced by racist Skinheads, and members of the Order, Aryan Nation, the White Patriots Party, Nazi factions and the Klan. They have committed dozens of bombings, physical assaults, and murders to bring about their apocalyptic vision of a white, Christian America. In the past, authorities have grudgingly, or outright refused, to classify many of these acts as hate crimes let alone terrorist acts, and to toss the full legal book at them.

Virginia's anti-terrorism law is broad, and ill-defined, yet if it's upheld, and the likelihood is it will be, it will make prosecutions easier, convictions more certain, give state authorities even more wiretapping and surveillance powers, and make it much easier for prosecutors to seek and to get the death penalty. It could also embolden more states to follow Virginia's lead and pass similar constitutionally questionable laws. The Muhammad trial is indeed a convenient fit for more abuses in the war against terrorism.

Earl Ofari Hutchinson is an author and columnist.

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