The speed at which the government is pushing legislation that would curtail public access to information and punish leakers of “special secrets” shows a worrying disregard for public debate, a former U.S. official and democratic governance advocate warns.
“This bill is about as bad as any other that I have seen and what is equally concerning is the speed at which it is being enacted,” Morton Halperin, senior advisor to the Open Society Foundations, which promotes tolerant societies and government accountability, said in an interview recently from his Washington office.
In addition to holding key positions under U.S. Presidents Bill Clinton, Richard Nixon and Lyndon B. Johnson, Halperin was instrumental in helping launch in June a set of global principles on national security and the right to information that he hopes can serve as a guide for other countries, including Japan.
Known as the Tshwane Principles, it is the culmination of a two-year drafting process by 22 groups to provide rules for balancing the public’s right to know with governments’ need to keep crucial security information confidential.
“Before there is a parliamentary vote (in Japan) there needs to be a public explanation of why we don’t have a public interest override, which is now widespread,” he explained. “Most countries adopting new laws have had a public interest override in the law.”
Under that concept, the public’s need to know must be factored in when governments are considering what information to keep confidential. When public interest trumps government considerations, the information should not be withheld.
“If the government feels it can’t accept that (public override) or it can’t accept that completely, I think it has an obligation to explain in a democratic society . . . why it is not doing things to protect the free press and why it is not proceeding from the principle that the information belongs to the people,” Halperin said.
The proposed law expands the “special secrets” classification to information related to security, diplomacy, counterintelligence and counterterrorism, and increases government powers to allow every ministry and other major agencies to designate secret information.
Not only is the bill seen by some as reflective of Prime Minister Shinzo Abe’s increasing influence over Diet affairs, but civil liberties advocates fear it will also limit people’s constitutional right to know and weaken freedom of the press.
On Friday, thousands of people gathered near the Diet to rally against the bill, which offers the government far more discretion in deciding what constitutes a state secret. The rally was hastily organized after a protest the previous day drew several thousand people to a well-known park in the capital.
The legislation is expected to pass the Lower House this week amid an ongoing global debate on government secrecy sparked by the Edward Snowden-NSA affair.
Meanwhile, independent human rights experts working with the United Nations on Friday expressed “serious concerns” about the secrets bill.
“Transparency is a core requirement for democratic governance,” Frank La Rue, special rapporteur on freedom of expression at the U.N. Human Rights Council, said in a statement. The bill “not only appears to establish very broad and vague grounds for secrecy but also include serious threats to whistle-blowers and even journalists reporting on secrets.”
Also raising alarms is the duration of the classifications. The ruling bloc is proposing that “special secrets” remain classified for up to 60 years, with some exceptions.
It also wants leakers of such information to face prison terms of up to 10 years.
In addition to casting a “chill on debate,” the bill does not restrict the amount of information that can be classified, a factor that Halperin said will have the effect of making “it harder to protect real secrets.”
“Even from the perspective of protecting genuine secrets, it is a mistake to have a system which leads to many things being classified,” he said. “People are used to seeing everything marked top secret and so they don’t know which of the things that are really important to keep secret.”
While the former special assistant to Clinton is advocating for the public’s right to know, there are clear cases when governments are justified in keeping sensitive information from the public. Under the Tshwane Principles, information can be withheld in cases involving defense plans, weapons systems, critical infrastructure, intelligence sources or diplomatic communications.
As for previously classified information that has since come to light, Halperin considers the Pentagon Papers a “good example” of how disclosure benefited Americans, through informing them of the full extent of their country’s involvement in the Vietnam War.
More recently, leaks about the U.S. National Security Agency have prompted what he considers to be a positive debate in the public sphere.
With Abe’s Liberal Democratic Party edging closer to passing the secrecy bill in the powerful House of Representatives, Halperin says there must be more time for public discussion as it makes it way to the House of Councilors.
On Friday, the ruling bloc and the Democratic Party of Japan failed to narrow their differences over the bill, making it certain that the main opposition party will vote against it. Their main disagreement was on how to check the propriety of the secrets designation process.
The DPJ rejected proposals from the ruling coalition, including to consider setting up a third-party institution to check secret designation standards, as insufficient. No schedule was set for the next round of negotiations. A senior DPJ official said the talks were effectively over.
Along with the secrecy bill, the ruling bloc is hoping to pass separate legislation to establish a National Security Council modeled on the one established by the United States. Abe believes it will help the nation better respond to the changing security environment in Asia, where North Korea’s nuclear and missile ambitions and the assertive maritime policy of China are seen as rising threats.
“I think there is nothing wrong with creating a National Security Council, but it should not imply the need for a Draconian secrecy bill,” Halperin said.