Wednesday, December 9, 2015
Japan’s Controversial State Secrets Law: One Year Later
A year after the state secrets law passed, what impact is it having on freedom in Japan?
On December 10, 2013, Japan passed a new state secrets law, even as thousands turned out to protest. The new law was criticized for its vagueness, severity, and lack of independent oversight.
One year later, on December 10, 2014, the controversial legislation went into effect, even as 80 percent of the Japanese public continued to oppose it.
Another year later – and no one is talking about it.
Perhaps that is a good thing. After all, it would mean that there have been no overt instances of the law being applied to the detriment of press freedom – or at least no instances that we know of. But complicit silence is harder to quantify, and as Sarah Repucci, Project Director of Freedom House’s Freedom in the World project points out, “Sometimes you don’t ever need to implement a law, if by its existence you are able to encourage self-censorship.”
The Security Impetus for the Law
The main impetus for the passage of the new law is a desire to share more information with the United States as the security situation facing Japan becomes more concerning. Japan has historically been known as a “spy heaven,” and the need to change this stigma is what is driving recent developments.
Richard Samuels, Director of the Center for International Studies at MIT, observes, “Because Washington’s experience with intelligence sharing with the Japanese government had been unsatisfactory due to leaks, it was widely rumored that the USG urged Japan to create a formal classification regime. The Abe administration cited the desire to enhance alliance confidence and intelligence sharing by the United States as a central reason for the introduction of the legislation. But this also should be seen as a next step in the evolution of Japan’s own intelligence community.” How much the law was inspired by internal developments within Japan versus external developments in Japan’s relationship with the U.S. is a question worth untangling.
The United States has been long involved in Japan’s state secrets protection regime. Shortly after Japan’s defeat, the Supreme Commander of the Allied Powers abolished the existing system associated with the ultra-secretive wartime government. But, after that about-face, when the United States realized that Japan would be a key battlefield in the Cold War, they resurrected protection for state secrets by revising the National Public Service Act in 1948 and passing the Self-Defense Forces (SDF) Law in 1954. Bilaterally, Japan and the United States signed the 1952 Special Criminal Act, which protects secrets held by U.S. forces stationed in Japan, and in addition, the 1954 United States Mutual Security Act Secrets Protection Law, which protects secrets related to U.S. military equipment supplied to Japan.
Japan’s ruling party had been trying to revise their lax state secrecy protection regime since as early as 1957. In 1985, Yasuhiro Nakasone made a push to pass a new state secrets law, but the domestic opposition was too great and the issue was shelved for almost two decades.
But the “war on terror,” regional challenges such as China and North Korea, and the rising dominance of the conservative Liberal Democratic Party (LDP) have brought the issue back to the forefront. In addition to these important factors, as Brad Williams writes in Pacific Affairs, “one cannot overlook the important role of the U.S., whose pressure, both subtle and overt, has not only encouraged Japan to assume greater military roles and missions but has also forced the Japanese to rethink the efficacy of existing secrecy provisions.”
A series of leaks since the early 2000s have shaken U.S. confidence in Japan as a security partner. In September 2000, a Maritime Self-Defense Forces (MSDF) officer was arrested for selling military secrets to a Russian defense attaché. This led to a tightening of the law in 2001. In May 2005, classified intelligence about a possible accident on a Chinese submarine made it to the front page of the Yomiuri Shimbun, which led to the investigation of an Air Self-Defense Forces (ASDF) officer. In January 2007, it was found that an MSDF officer had unauthorized possession of sensitive data on the Aegis combat system. The investigation that followed revealed that the information was given to 38 people, and was also being used in a MSDF technical training program. In order to regain U.S. trust, in August 2007 Japan signed a General Security of Military Information Agreement with the United States, though Tokyo had initially been hesitant to do so. It is this dynamic interplay between leaks in Japan and subsequent U.S. pressure that has driven developments in Japan’s state secrets protection regime.
The state secrets law is not just an issue for the Japanese right, as is often portrayed. The imperative is to establish a stronger state secrets protection regime in order to maintain the health of the U.S. alliance is recognized across the political spectrum. Discussions to tighten punishments had already begun in late 2011, in response to leaked footage of the 2010 collision between a Japanese patrol boat and Chinese trawler, under the Democratic Party of Japan (DPJ) government. Due to domestic opposition, the DPJ chose not to submit the bill in the 2012 Diet session. That brings us to where we are today, with the law in its present form passed under the Abe government two years ago.
Is the Law Really That Bad?
As I noted last year, under the previous law, the length of imprisonment for most Japanese who leaked state secrets was limited to one year, though defense officials could be imprisoned for five to ten years. Now, government officials and defense industry employees who leak state secrets face up to 10 years in prison and a fine of 10 million yen (approximately $100,000). Even journalists and activists who unwittingly solicit information deemed to be state secrets can be prosecuted under this new law, as those who conspire to leak state secrets face up to five years in prison and those who acquire state secrets through illicit means face 10 years.
Even more worryingly, the process of defining state secrets is entirely in the government’s hands. A supervisory committee and panel have been set up to oversee the classification process, yet their independence is questionable as both bodies are composed of government officials. There is no third-party involvement to determine whether the classification is appropriate or not. Furthermore, there is no protection for whistle-blowers and no mechanism to punish government officials who classify information as a “state secret” for frivolous or self-serving reasons. Plus, the designation for certain types of state secrets can be extended from 30 to 60 years or even indefinitely based on an internal government decision.
As mentioned at the outset, there have been no known cases of the new state secrets law being applied to prosecute journalists or whistleblowers. As of January 2015, the Japanese government had designated 382 cases as subject to the new law. Of these 382 cases, most are related to defense and international diplomacy. No doubt, most of these state secrets ought to be given the highest protection possible. However, there is lingering concern the law could be misapplied in the future. As The Japan Times reports, there’s also the possibility of the law hampering state account audits.
Jeffrey Kingston, professor at Temple University, is troubled by the lack of transparency this law will condone. “There is no independent oversight body, meaning that officials have a carte blanche to cover their tracks,” he comments. “[The bureaucrats] will designate too much information as ‘special secrets’ so that their decisions won’t be scrutinized or second guessed until they are dead. What we know from various scandals is that bureaucrats have often decided against the public interest and now have a way to hide their misdeeds.”
Balancing the protection of information that ought to be kept secret for the public’s sake with the protection of press freedom to report on information that ought to be publicized is always tricky. Tosh Minohara, professor at Kobe University, feels that the law is important as secrets of a certain nature need to stay secret – but the law should also be tweaked somewhat. Proper measures need to be put in place for relevant government officials to be held accountable for their actions, so there has to be more stringent regulations regarding the preservation and maintenance of classified records, along with a clear process by which this information can become available at a later date, he argues. Furthermore, legal protection for whistleblowers is necessary, as, he concludes, “for the government, this can become a convenient tool to cover up what is inconvenient. And looking back on history, when there is any room for abuse [of power], there will be just that – abuses.”
In Japan, there is a tendency for the government to destroy evidence, or even more egregiously, not produce any evidence. There is no law in place to force institutions or officials to keep a record or require disclosure after a certain amount of time has lapsed. The most recent example of this would be the lack of records keeping by the Cabinet Legislation Bureau as they reinterpreted the Constitution to allow for the exercise of collective self-defense. Perhaps the single most consequential change in Japan’s postwar history – and not a word has been written about what the decision-makers were saying as they made that change!
Even aside from this particular law, Japan is often criticized for the quality and independence of its media. Benjamin Ismail, head of the Asia-Pacific desk at Reporters Without Borders, describes how Japanese respondents to their anonymous surveys report unusually severe self-censorship, corporate and peer pressure (to cover or not cover certain kinds of stories), and restricted access to information. They also reported incidents of being expelled from press conferences for asking tough questions, and only being able to publish controversial stories in tabloids instead of mainstream media outlets. Ismail describes the reporting following the Fukushima incident as a “catalyst” that has finally brought to light the many problems in Japanese media.
As Kingston puts it, “The [state secrets] law doesn’t have to be acted on to have a chilling effect on investigative journalism in a nation not known for much investigative zeal.”
“The law exists in an environment of, at best, repeated disregard for the type of press freedom expected in advanced democracies – and at worst, willful infringement,” Repucci says. She cites the recent delay of a visit to Japan by David Kaye, UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression, as a “perfect example”:
[N]othing overt was said and postponing the visit is not any form of violation in and of itself, but the fact that the government declined to provide a convincing explanation and appears to have indirectly requested that the visit take place nearly a year from now is behavior consistent with that of a government that wants to be free to control the media as it sees fit, without oversight. The government may never see a need to implement the state secrets law against the media, but it would not have passed such a law if it did not want to have the option of using it.
And yet one year after the law was enacted, no one is talking about this law anymore.
From the Japanese government’s perspective, “Out of sight, out of mind,” is their best strategy to coopt the Japanese public. But it is precisely because of this complacency, which will allow such a law to become entrenched over the years, that it is important to continuously reinvigorate the debate over the appropriate balance between protecting state secrets and protecting the right to know in Japan. By Mina Pollmann for The Diplomat
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