Throughout this year, Republicans and some Democrats in Congress have been struggling to maintain the system of American prisons outside the United States. President Obama has been cooperating with some of these efforts, working to continue military tribunals that take place outside of the United States.

Article III of the Constitution of the United States is very clear on this subject. These military tribunals are unconstitutional. Article III declares: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

In order to maintain the military tribunals crafted by George W. Bush and Barack Obama, three members of the United States Senate are making a direct attack against Article III of the Constitution. They are attempting to attach an amendment to an appropriations bill that would prohibit trials related to a certain crime from being conducted as the Constitution directs.

The legislation proposed by senators Lindsey Graham, Joseph Lieberman and John McCain, S.Amdt. 2669 to H.R. 2847, declares, “(a) Prohibition on Use of Funds for Prosecution of 9/11 Terrorists in Article III Courts.–None of the funds appropriated or otherwise made available for the Department of Justice by this Act may be obligated or expended to commence or continue the prosecution in an Article III court of the United States of an individual suspected of planning, authorizing, organizing, committing, or aiding the attacks on the United States and its citizens that occurred on September 11, 2001.

(b) Article III Court of the United States Defined.–In this section, the term ‘Article III court of the United States’ means a court of the United States established under Article III of the Constitution of the United States.”

This amendment seeks to prevent trials from taking place in courts established under Article III of the Constitution, by depriving funding for those trials. The odd thing is that, after searching through the Constitution, I cannot see any place where the power of trial is established for any court except through Article III of the Constitution, except in cases of impeachment.

The Fifth Amendment provides an exemption from grand jury indictments arising in the military during times of war, but doesn’t establish the authority for separate military tribunals. It reads, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Article I, Section 8 of the Constitution makes it clear that Congress shall have the power to establish courts, “To constitute Tribunals inferior to the supreme Court”. Those courts, however, are the ones whose power is established in Article III – not additional courts.

So, if the amendment by Graham, McCain and Lieberman were to pass, and no Article III trials against suspects accused of involvement in the criminal attacks of September 11, 2001 could take place, well, then no trials against those suspects could take place at all. Or, at least, no trials could take place against those suspects, and remain legitimate under the authority of the Constitution of the United States of America, the highest law of all for our nation.

S.Amdt. 2669 to H.R. 2847 may be promoted as a measure to improve the security of our nation, but in fact it constitutes an attack against the very definition of what makes the United States of America a nation. If measures such as this legislation succeed, there will be nothing meaningful left of the USA to keep secure.