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Increased bureaucratic role, severe punishments said ill-advised

U.S. model not seen serving Japan’s bid to keep its secrets

by Eric Johnston

Staff Writer

As Prime Minister Shinzo Abe’s government pushes for a controversial new state secrets law, critics warn that the public’s right to know will be greatly stifled because the bill, recently approved by the Cabinet, targets leakers of information the state deems critical to defense, diplomacy, terrorism and espionage.

The bill, opposed by much of the media, NGOs and members of the legal profession, has long been sought by not only Abe, but also those in Tokyo and Washington — particularly the Pentagon — who want closer defense ties with Japan but are concerned the current laws on protecting government secrets are too weak.

For much of America’s history, a great deal of the government’s information classification actions was governed by the military’s in-house regulations. But in 1940, after war broke out in Europe, President Franklin D. Roosevelt authorized government officials to protect information pertaining to military installations. Since then, U.S. presidents, through executive orders, have set the federal government’s information classification standards.

On the other hand, the 1917 Espionage Act made it a crime for people to pass off defense-related information to unauthorized parties. The law has been challenged in court numerous times and remains extremely controversial, especially recently.

U.S. President Barack Obama has used the act to prosecute Chelsea (formerly Bradley) Manning for releasing U.S. diplomatic cables to WikiLeaks that had been officially classified as secret or confidential, but not top secret.

Under the current system, what gets classified and how changes depending on who is in the White House.

Citing the president’s constitutional role as commander-in-chief, the Supreme Court has ruled that presidential authority to classify and control access to national security information is based on this constitutional investment of power in the president. But that often means confusion and inconsistency when it comes to setting classification policy.

“The rules governing how best to protect the nation’s secrets . . . have shifted along with the political changes in Washington. Over the last 50 years, with the exception of the Kennedy administration, a new executive order on classification was issued each time one of the political parties regained control of the executive branch.

These have often been at variance with one another . . . at times even reversing outright the policies of the previous order,” said a 1997 U.S. government report on protecting and reducing government secrecy.

In 1995, President Bill Clinton signed an executive order that required federal government records, with some exceptions, to be automatically declassified after 25 years. Those exceptions include some national security-related issues.

Today, decisions about what gets classified and how are made under Executive Order 13526, issued in December 2009. The president, vice president, government agency heads and any other officials designated by the president are allowed to classify information if they believe there is a reasonable chance it would damage national security if given to unauthorized parties.

The executive order covers information owned, produced by or under the control of the federal government in the areas of military plans, weapons systems, or operations, foreign government information, intelligence activities, sources and methods, and cryptology.

The order also includes information about U.S. foreign relations, scientific, technological or economic matters related to national security, programs for safeguarding nuclear materials and facilities, vulnerabilities of national security systems, and weapons of mass destruction.

There are three levels of classification. “Top Secret” means the information is judged to cause exceptionally grave damage to national security. “Secret” means the information could create serious damage if leaked, while “Confidential” means that damage would occur if leaked.

“The executive branch determines what is classified and at what level of classification, determines what information it will share with Congress, and with how many members of Congress, and instructs those with whom it shares the information (the chairs and ranking members of the House and Senate Intelligence committees) that they may not share the information with other members of Congress nor with members of their own staffs,” said former Rep. Mickey Edwards upon the release of a secrecy report earlier this year by Open The Government.org, a coalition of more than 80 organizations pushing for greater government accountability.

Much attention has been given to the harsh punishment of leakers in the Japanese bill, which includes up to 10 years in prison for those who disclose designated special government secrets. In the U.S., federal law generally prescribes a prison sentence of no more than a year and/or a $1,000 fine for government workers who knowingly remove classified material without the authority to do so, and with the intention of keeping that material at an unauthorized location.

But fines of up to $10,000 and imprisonment for up to 10 years are the penalty if a civil servant transmits classified information to anyone he or she has reason to believe is an foreign agent.

And, similar to the Japanese bill, a fine and a 10-year prison term are the punishments for those who pass off or use, to America’s detriment, classified information regarding the codes, cryptography and communications intelligence used by the United States or a foreign government.

In a recent report for Asia Pacific Journal, Lawrence Repeta, a professor on the law faculty of Meiji University, warned that Japan’s secrecy bill was too similar to the American system.

“Because Japan’s national security is so heavily dependent on the United States, Japan (national security) officials would surely need to access much U.S. classified information to do their jobs. To gain this access, Japanese officials must satisfy their American counterparts that Japan’s secrecy protection is sufficiently robust,” he wrote.

In an interview with The Japan Times, Repeta added that a major problem the U.S. faces is that there is too much secrecy nowadays. Over 100 million records were classified last year. Nearly 5 million people, including government employees and private contractors, hold security clearances that allow them to classify information, and of these, about 1.4 million hold Top Secret clearance.

“Their frame of reference is the American model, a vast information bureaucracy, periodic front-page leaks of highly embarrassing and sometimes damaging information, and severe criminal punishment for the leakers who get caught. Is this the path Japan will follow?” he asked.