Commissions vs. Courts: Abdulmutallab, KSM Rekindle Terrorist Trial Debate

"To abandon due process in terrorism cases turns the rule of law on its head and flies in the face of the values that we are fighting to protect in the first place," Romero said. "Our criminal justice system is fully capable of accommodating the government's legitimate security interests while at the same time providing fundamental rights to defendants."

There is debate, though, over what rights should be extended to terrorists. Schmitt said we should not treat Abdulmutallab like an ordinary criminal because he could be withholding valuable intelligence.

"The whole point [of commissions] is if you're not treated as a U.S. person under the Constitution, then there can be a more extended interrogation," Schmitt said. "It doesn't mean that you don't eventually get a lawyer and it doesn't mean we have to water board. But there are other techniques for making prisoners talk that we've used in the past, that we can't use when you have a lawyer and Miranda rights."

The key question driving this debate is how one views terrorism. For Romero, it's a criminal matter, so terrorists should go through the criminal justice system.

"Terrorism is a crime," he said. "To treat terrorism that takes place far from any battlefield as an act of war is to propose that the entire world is a battlefield [and] to give criminals the elevated status of warriors."

But for others, America is engaged in a war on terror, and terrorism is therefore a war crime. Schmitt said it's important to remember the purpose of commissions: to try illegal enemy combatants, rather than American citizens accused of crimes.

"Enemy combatants are not American citizens," Schmitt said. "They're coming from abroad and under the guidance of what Congress and the American people decided. They're an enemy at war with us."

Mixed Messages

Ken Gude, the associate director of the International Rights and Responsibility Program at the Center for American Progress, a liberal think tank in Washington, said working through the courts is the most logical way to try terrorists.

"This is exactly the right place to try [Abdulmutallab]," Gude said. "He's attempted murder. Military commissions have never prosecuted a case of attempted murder. Criminal courts have thousands of those cases, including the shoe bomber case that was exactly like this one."

Gude also said that utilizing the federal courts doesn't compromise American security.

"Our criminal justice system has prosecuted many, many dangerous people -- Moussaui, Timothy McVeigh -- all of these people were prosecuted in federal criminal courts and were convicted," he said. "The notion that this gets in the way of justice or in the way of keeping us safe is ridiculous."

But for Schmitt, the concern isn't whether the courts are capable of handling terrorism trials. It's about the kind of message we send to those who wish us harm when we try Abdulmutallab, KSM and their ilk like American citizens.

"It's not the case that the civilian courts are incapable of trying terrorists. But to our enemies, it makes [terrorism] more inviting: if you don't succeed, the downside of the effort is pretty minimal," he said. "They read you your rights, you shut up and go to jail. You might have a long prison term, but that's different from knowing that you're going to be taken off, interrogated and treated in a much more aggressive fashion."