Secrecy and the Right to Be Informed
In the 1850s the United States negotiated a number of treaties with California Native groups, treaties that saw the First Americans giving up the entire state in return for a series of reservations. At the request of the State of California the U.S. Senate refused to ratify the treaties and they were buried in the federal archives, without any notification to the California Native People.
Tens of thousands of First Americans died as a result, while the rest were often enslaved, forced into rural servitude, and forced to survive without protected land bases. Subsequent reservations were often abolished at the government's will, while the Native Americans were moved about in numerous "trails of tears."
Much of the government's crimes were shrouded in secrecy, with the people being denied either knowledge or redress. The Fourteenth Amendment conferred citizenship upon all California Natives, as did the Treaty of Guadalupe Hidalgo with Mexico, but that information was withheld or denied.
What about government secrecy today? Do officials have the right to keep secrets from Native Americans or from all citizens for that matter?
We are frequently told that the United States possesses three branches of government: the executive, legislative, and judicial. In point of fact, however, that demarcation ignores the necessary role of the electorate, i.e., the voters. Voters include citizens of all colors even though some states restricted the right of Native Americans and other non-whites to vote until the 1960s.
The United States Constitution clearly makes the voters a fourth branch of Federal governance, by giving them crucially important functions, including the election of the members of the House of Representatives, the selection of electors for the Electoral College, and, after amendment, the election of the members of the United States Senate. In addition, the Constitution extends many functions to the electorate including the right to exercise powers not enumerated in the Constitution.
The guarantee of free speech to the citizenry is an example of a right, and power, not to be trifled with. This right of free speech relates in crucial ways to the electorates' task of selecting members of Congress as well as voting in presidential primaries and elections.
Equally important is the implied right to be informed, since it is quite clear that voters may not vote wisely or meaningfully without adequate information. Let us be even clearer: only a fool would argue that the selection of a president or of congress could be carried out in a satisfactory manner if crucially important information were being withheld from the voters and from the press (which provides much of the information about governmental behavior and issues to the said voters).
In short, unless we make a mockery of the Constitution we must agree that the electorate constitutes a fourth "house" of governance (government) and that the electorate must have access to genuine, real, and meaningful information on which to exercise its key role as collective judges of performance and policies. In short, while the Supreme Court consists in judges appointed by the President with the approval of Congress, it is the voters who act as judges over both the President and Congress. Even as justices of the Supreme Court must have access to all pertinent information, so to with the electoral judges, the voters.
We are asked, as voters, to judge whether a given individual or group (party or faction) is to be vested with tremendous power over our collective lives, and indeed, over the lives of the entire world it would seem. We are asked to give them control over our pocketbooks, our savings, our income, our livelihood, and the very safety of our homes, bodies, and freedoms. Given this crucially important challenge to us as electors do we not possess a constitutional right to be informed? It is especially important for Tribal Americans to be totally aware of Federal policies.
All of this may seem obvious, but it is not obvious any longer to those who would pretend to rule over us. In fact, we now face the greatest danger in many decades to our ability to know what our government is doing. Hired employees of the government, working in the Justice Department as well as in Interior and elsewhere in the Executive Branch, have sought to create virtually an "imperial government" with immense powers (all unconstitutional) to withhold information from us. The Executive Branch has been asserting the right to hold "state secrets" which we voters are not supposed to know. They also have been asserting "executive privilege" in order to prevent us from being able to know the actual inner workings (secret decisions) of the government.
The President as Commander in Chief in time of war may exercise "inherent powers" relating to strictly military and battlefield matters. But I suggest that that power may not extend to "secrets" and behavior that would prove decisive to a voter in the exercise of the electoral function. For example, if in 2004 the voters had known that the administration had decided to violate the Geneva Convention by authorizing torture many voters who voted for the incumbent would have very likely voted otherwise. Native Americans especially have every reason to oppose the bad treatment of prisoners, remembering their own ancestors.
No freedom remains when bureaucrats may simply declare an item to be a secret. Voters should have open access to all non-military decision-making IF THEY ARE TO JUDGE THE GOVERNMENT AT ELECTION TIME, AS IS THEIR CONSTITUTIONAL DUTY.
© 2009, Professor Forbes has recently authored the revised edition of Columbus and Other Cannibals.
News From Indian Country July 20, 2009