The new state secrets law is so broad that it’s self-defeating and must be amended before it comes into force in December or it will have a chilling effect on free speech, according to U.S. national security and civil liberties expert Morton Halperin.
Halperin said in an interview Thursday in Tokyo that the legislation, passed by the Diet last December, is “far out of step with the rest of the world” and should be amended immediately to provide protections for journalists, other private citizens and government whistleblowers.
The law’s penalties of up to 10 years in prison for revealing classified information, which applies to private citizens, including journalists, are “dangerous,” and repealing them should be the government’s highest priority, Halperin said.
Halperin worked on defense policy and national security in the administrations of Presidents Lyndon B. Johnson, Richard Nixon and Bill Clinton, and is now a senior adviser at the Open Society Foundations in Washington.
The secrets law is part of Prime Minister Shinzo Abe’s policy of creating a framework to protect intelligence sharing with allies, particularly the United States.
Halperin said that although the law is largely modeled after that of the United States, the U.S. legislation is not used to file criminal charges against journalists. But the new Japanese law could be used in this way unless it is amended to be made clearer.
“The danger is the effect it has on people’s behavior. Even if nobody’s ever indicted, people worry about being indicted, and therefore they say, ‘I’d better not write this story because I may be indicted,’ ” he said.
Every country is entitled to keep some secrets for limited periods of time, but laws as broad as Japan’s actually inhibit the protection of genuine secrets because they allow officials to become complacent, Halperin said.
“The notion that the way to protect real secrets is to make much more information secret is just wrong,” he said.
“If the Japanese government thinks that there’s some operational information about how to work with the American military that needs to be protected, they should protect that information, not pass a statute which would lead to so much information being kept secret that the real secrets will seem trivial.”
The law should, in line with those of comparable countries, require the government to more specifically show the harm classified information would cause if released, and consider whether the public value of the information outweighs that harm, he said.
The independent secrets review body, which can make classified information public, can only work if it is made up of people from outside government instead of officials, as under the present law, he said.
“People who are committed to public debate when they’re outside the government often lose that commitment when they’re in the government, and so you can’t really trust people in the government to have sound judgments on these issues,” he said.
The body should consist of “people who are seen by society to have a genuine commitment to openness as well as to classification,” Halperin said.
The Abe administration owes it to the public to engage in further dialogue on the law, he said.
“I think what the government should do is what it should have done before it passed the law, which is to consult more widely with experts in Japan, but also with international experts, and look at what international standards are, and consider once again whether it can meet those international standards,” he said.