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Lingering doubts about state secrets law

December 11, 2014

Worries about secrets law linger

Top officials reiterate that the state secrets law, which took effect this week a year after it was enacted, will not infringe on the people’s right to know. Prime Minister Shinzo Abe, who defied widespread public protests last year against ramming the legislation through the Diet, says the law is aimed at dealing with “terrorists and spies” and “basically has nothing to do with people at large.”

Such a statement by the prime minister appears to illustrate how the Abe administration turns a deaf ear to lingering public concerns about the controversial law, which mandates prison sentences of up to 10 years for government officials and defense industry employees who leak information designated as state secrets, sentences of up to five years for those who conspire to leak or instigate the leaking of such information and sentences of up to 10 years for those who obtain designated secrets through illicit means.

Whether the law infringes on the people’s right to know depends on whether the process of designating government information — considered public property in a democracy — as secrets is appropriate and whether there is a valid safeguard in place to stop government officials from improperly classifying secrets at their discretion. The law clearly fails to meet these criteria, due primarily to the absence of independent third-party oversight.

The law enables the heads of 19 government ministries and agencies to designate sensitive information in the fields of diplomacy, defense, counterterrorism and counterespionage as state secrets for up to 30 years. The classification period can be extended to 60 years with the Cabinet’s approval if the extension is deemed necessary for security reasons. Certain secrets in seven categories, such as information that could compromise Japan’s position in dealing with foreign governments and international organizations, can remain classified even longer as exceptions.

The Abe administration has explained that Japan needs the law to tighten control of government secrets for it to be able to exchange sensitive information with the United States and other governments. Along with the enactment of the secrets law, the National Security Council was established to serve as the nation’s command center in foreign and defense policy. It will share security information with Japan’s allies.

It is natural for any government to have a mechanism for protecting information that pertains to national security. Problems arise when the system leaves room for abuse by those who handle the secrets. Criticism abounds that the law’s definition of the information that can be designated as secret is so vague and wide-ranging that it allows government officials to use their discretion to withhold inconvenient or damaging information that the public should know. The law also fails to provide for penalties against officials who improperly designate information as secret.

It must also be ensured that the information will be made open for public scrutiny once it no longer merits classification. But under the law, the government can extend the classification period merely through an internal decision.

Members of the Abe administration say that in setting the rules for implementing the law, mechanisms for ensuring the system’s appropriate use and banning the classification of government information for cover-up purposes have been established. A supervisory committee of vice minister level bureaucrats from each ministry, to be headed by the chief Cabinet secretary, is being set up at the Cabinet secretariat. And on Wednesday, a Justice Ministry bureaucrat was tapped to head a new panel at the Cabinet Office to oversee the classification process.

Neither body, however, has the power to enforce the declassification of secrets, and their existence does not change the fact that the designation of secrets by government officials will be monitored only by fellow officials. Independent third parties remain excluded from verifying if the government’s information classifications are appropriate. It is also unclear whether enough manpower will exist to properly check each part of the estimated 460,000 potential state secrets.

The text of the law calls for “consideration” for the people’s right to know and freedom of the press. Going into the campaign for Sunday’s Lower House election, Abe declared that he will quit as prime minister if instances arise of media activities being suppressed by the law. But the law does not prevent members of the press or civic groups from becoming targets of punishment for “instigating” leaks of designated secrets by government officials. Officials handling designated secrets will be punished for leaking the information — regardless of who receives the information.

The law’s rules of implementation require such officials to report to their superiors when they are urged by others — likely including journalists or civic group members — to disclose the classified information.

The protection of people who blow the whistle on wrongful designations of secrets is also insufficient. The law provides for creating hot lines for government officials who suspect an inappropriate classification has taken place, but these officials are prohibited from disclosing the information itself. They are allowed only to summarize the secret parts, and they could be charged with “leaking” the information if their summaries are judged to have included crucial or a large amount of information. It’s as if the system is intended to discourage officials from revealing wrongful acts.

As the law finally takes effect a year after it was enacted, most of the concerns that many people had about the legislation remain unaddressed. The implementation of the law needs to be constantly monitored, and the public should apply pressure on the government to correct its deficiencies, or to abolish it.

The secrecy issue is not just about terrorists and spies; it also concerns the people’s right to know what their government is doing.

Deceber 9, 2014

Even bureaucrats question the need for secrecy law


A controversial secrecy law to toughen penalties on leakers of state secrets is set to take effect on Dec. 10, but even government bureaucrats have been raising questions about the need for such legislation.

One bureaucrat said, "I wonder if we need that in the first place?" At a time when the government was considering whether to draft secrecy legislation, the Cabinet Legislation Bureau pointed out that the "need (for the law) is small." Even some government bureaucrats are saying, "It is hard to handle specified secrets."

"Concerns have been raised over whether everything will be designated as a specified secret, but that's impossible," said a senior government official. The official added, "Specified secrets will be strictly managed and there will be restrictions on people who can handle them. If such secrets are increased excessively, we cannot get our work done."

Under the National Public Safety Commission's rules, specified secret documents must be kept in strictly controlled storage sites, restrictions must be placed on people in charge of handling them and on reading places for such documents, and such items must be put in double envelopes when being transferred, among other detailed instructions for handling them. Other government ministries and agencies will apparently adopt similar rules.

Government ministries and agencies have had "top secrets" and "secrets" defined by detailed in-house rules, which will remain effective even after the secrecy law takes effect. The aforementioned senior government official said, "I believe that many pieces of information that cannot be disclosed will be handled as secrets the same way as before."

Yukiko Miki, head of the nonprofit organization Access-Info Clearinghouse Japan, said, "As whether to designate information as secrets and declassify them is decided at the discretion of each ministry or agency except for specified secrets, they could be disposed of and remain as secrets. It is necessary to work out rules for such secrets."

According to documents the Cabinet Information Research Office disclosed in response to an information disclosure request from the Mainichi Shimbun, the Cabinet Legislation Bureau said in September 2011 in reference to a preliminary draft of state secrets protection legislation prepared by the Cabinet Information Research Office, "It seems to be weak in legislative facts." Legislative facts refer to facts that show clear reasons for the need for specific legislation.

The Self-Defense Forces Act was revised in 2001 to punish Self-Defense Forces personnel and others with a prison term of up to five years for leaking defense secrets. But the act has been applied to only one case so far. In that particular case, an Air Self-Defense Force colonel was suspected of leaking information, but his indictment was subsequently suspended. Based on that case, the Cabinet Legislation Bureau insisted that it was difficult to provide a basis for toughening penalties through new legislation.

Those government bureaucrats and politicians who are engaged in collecting information on foreign and security policies say that the state secrets protection law will make it easier for them to obtain information from foreign intelligence agencies. Kaoru Yosano, who had served as chief Cabinet secretary during Shinzo Abe's first stint as prime minister, told the Mainichi Shimbun, "Do we need this law today when nothing to threaten Japan's security is taking place? When I was chief Cabinet secretary, I did not hear about such legislation."

The Nuclear Regulation Authority decided as of Dec. 8 not to designate any information it held as specified secrets as it said it had no information that would meet conditions for being classified as such.

The Japan Newspaper Publishers and Editors Association submitted a written statement to Justice Minister Yoko Kamikawa on Dec. 8, calling on the government to properly administer the state secretes protection law. The association said in the statement, "It is hard to say that the government has fully dispelled concerns that the law could inhibit the people's right to know and the freedom of reporting and news gathering."

The Japan P.E.N. Club also issued a statement on Dec. 8, raising an alarm over the secrecy law, the government's decision to allow Japan to exercise the right to collective self-defense and the government's policy of promoting nuclear power.

December 09, 2014(Mainichi Japan)

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