Abe's state secrets bill

Opposition calls for caution over state secrets bill that lets gov't define 'secret'

What constitutes a "state secret" will be left to the discretion of the government and those who obtain such information can be punished under a bill being prepared by the Abe administration, worrying critics about infringements on the public's right to know.

the Mainichi,

22 September, 2013

The administration of Prime Minister Shinzo Abe plans to submit a state secrets protection bill to the upcoming extraordinary session of the Diet that is expected to convene on Oct. 15.

The U.S. government had urged Japan to pass such a law to protect information related to security issues that could be shared by Japan and its allies. According to the outline of the bill that has been released, information in the four areas of defense, diplomacy, counterintelligence and counterterrorism would be subject to designation as "special secrets" meriting extra protection.

Under the category of anti-terrorism measures, four areas are subject to "special secret" designation, including "measures, plans or research on measures to prevent damage or expansion of damage caused by terrorist activities." The description is vague, as anything clearer would reveal the contents of the secrets. No external bodies can know specifically what information constitutes a state secret.

The heads of ministries and agencies, as well as members of the foreign and defense ministries, the National Police Agency and prefectural police forces are assumed to come in contact with such state secrets. It is also assumed that in addition to these public servants, employees of private companies contracted to work with government agencies in the military industry and other areas will have access to such information. With the exception of the minister, vice minister and parliamentary secretary of ministries and agencies, these people will be required to report and be subject to checks on information such as travel histories and family members' citizenship, criminal records, debt, drug addictions and treatment for mental illness.

There is no clause in the bill that stipulates a mechanism to check whether information that is designated a state secret warrants the proposed severe punishments of those who leak or obtain it.

In the U.S., the president designates information concerning national security and other areas as classified. However, there is a clear-cut mechanism in place to check on the classification and declassification process, as well as on the content of the information. The Information Security Oversight Office (ISOO) under the National Archives and Records Administration (NARA) is responsible for determining whether or not classification is appropriate, and the ISOO director has the right to declassify information.

In the Abe administration's bill outline, officials such as the defense and foreign ministers and the NPA chief are given free rein to designate information as a "special state secret," and evaluation of the need for declassification is also left up to administrative agencies. In other words, there is no third-party system to confirm whether the decisions are justifiable.

The status of a "special secret" would last a maximum of five years, but there is no limit on the number of times the designation can be renewed. If "special secret" status is renewed repeatedly, information could be kept classified forever. Commenting on this fact, head of a Liberal Democratic Party (LDP) project team on the bill, former Foreign Minister Nobutaka Machimura said, "I think it's something we need to consider."

Consideration of a state secrets protection bill began in 2010 during the Democratic Party of Japan (DPJ) administration, after video taken by the Japan Coast Guard (JCG) of a crash between a Chinese fishing boat and JCG patrol boats off the disputed Senkaku Islands was leaked. In April 2011, the DPJ-led government submitted a revised freedom of information bill to the Diet that included a stipulation whereby judges would be able to check whether information merited classification. If a freedom of information lawsuit was brought against information classified by the government, only the judges would go through them to decide whether the information should be declassified.

However, the bill was shelved before any parliamentary deliberations took place. Since the LDP once again took over government with Abe's second inauguration as prime minister in December 2012, there have been no moves to resubmit the draft revision.

"There's been no thought given to how secrets will be declassified, or what mechanisms will prevent secrets from spreading more than necessary," says Yukiko Miki, president of non-profit organization Access-Info Clearinghouse Japan, which promotes freedom of information and the protection of personal information

As an additional characteristic of the bill, it explicitly states that a punishment of a maximum 10 years in prison could be meted out not only to civil servants who leak "special secrets," but to those who "coax or provoke" others to obtain such information.

This could have grave implications for news organizations. Acts that from a reporter's perspective are justifiable journalistic activities could potentially be interpreted as acts of deceit, threats, or instigation restricted under the bill. It could also be used as an excuse for sources to refuse releasing any information.

Considering that under existing laws, the punishment for national servants who violate the duty of confidentiality is a maximum one-year in prison, and for members of the Self-Defense Forces who leak defense secrets, a maximum of five years in prison, critics have called the severity of the newly proposed punishment into question.

"A maximum penalty is determined based on the damage done to life and property, but it's difficult to calculate damage done under the state secrets protection law," says Konan Law School professor Hisashi Sonoda, who specializes in criminal law and procedure. "The 10-year term is probably meant to serve as a deterrent, but even under the current National Civil Service Law, there have hardly been any examples of severe violations."

Meanwhile, the ruling LDP's coalition partner New Komeito has a heightened sense of distrust toward the LDP for taking "public comment" procedures to gather comments about the bill from the general public without consulting New Komeito. This could delay ruling coalition discussions on a draft bill. Furthermore, opposition parties have expressed concerns over violations of the right to know, clouding prospects of the bill's passage once it is submitted.

Abe is pushing for the establishment of a Japanese version of the U.S. National Security Council, and the administration is aiming for the simultaneous passage of the secrets protection bill and a bill to form the council. Because the council would need to exchange classified information with the U.S. and other allies, a senior Japanese government official says, "Japan would not be able to obtain information from foreign countries unless a state secrets protection mechanism is in place."

In seeking simultaneous passage of the bills, the government considered installing a special committee that would permit deliberations in the upper and lower houses every day, but the LDP resisted, with a senior official in the LDP Diet Affairs Committee saying, "Taking a lot of time away from other issues to discuss the state secrets protection bill every day has the potential to further complicate matters."

Chief Cabinet Secretary Yoshihide Suga was originally put in charge of both bills, but due to the possibility that delays in the secrets protection bill deliberations could affect deliberations on the establishment of a National Security Council, the government put Masako Mori, state minister for declining birthrate and consumer affairs, in charge of the state secrets bill. This has given rise to speculation that the government is placing priority on creating a National Security Council over the passage of the secrets protection bill in the upcoming Diet session.

New Komeito, following an apology from the government for failing to consult it prior to launching a public comment term, set up a project team on the bill on Sept. 12. Members of the party, however, are expected to call for caution, with some questioning whether the right to know can actually be guaranteed, even if the bill includes a stipulation to that effect.