Weak state secrets oversight

A panel of private-sector experts has worked out a draft enforcement standard for the state secrets law, including creation of two oversight bodies and government sections that would accept whistle-blowers’ reports. Unfortunately, the setup falls far short of preventing arbitrary designation of government information as state secrets, which endangers the people’s right to know.

Because the proposed bodies will be staffed by bureaucrats, it will not be able to provide independent oversight against improper designation of state secrets, and no specific protection is provided for officials who reveal wrongdoings. As the Abe administration plans to put the law into force by yearend, the danger of limitless expansion of state secrets has not been eliminated.

According to the draft standard, which the Cabinet plans to formally adopt after soliciting public comments for a month through late August, one of the oversight bodies will be created within the Cabinet Office and headed by a bureaucrat of the rank of deputy chief of a ministry bureau. Government ministries and agencies will annually report to the body the list of the information designated as state secrets over the past year, and summaries of the designated secrets when necessary — but not the content of the secrets themselves.

The chief of this oversight body can seek explanations from the ministries and agencies concerned or corrective steps when it is found that specific pieces of information has been improperly classified, but will lack the power to enforce his requests. The chief may find it psychologically difficult to ask Cabinet ministers — who are higher ranking and have the legal power to designate state secrets — to submit explanations or rethink their decisions. The requests can also be turned down on grounds of national security.

The other oversight body will be set up within the Cabinet secretariat and be composed of administrative vice ministers or officials of the same rank. Like the oversight body within the Cabinet Office, it will have no legal power to enforce its requests, including calls for rectifying secret designations. Its function as an oversight body will be in doubt because its members represent the very 19 ministries and agencies that, under the enforcement standard, will designate state secrets.

Under the enforcement standard, a section will be created at each of the ministries and agencies, including the Foreign Ministry and the Defense Ministry, to accept reports from officials alerting to improper designation of government secrets. However, the standard does not provide for any protection for the whistle-blowers against unfair treatment.

The panel that worked out the draft seems to assume that when there is an act of whistle-blowing, a ministry or agency will be altruistic enough to correct its decision or behavior. The new section might even serve as mechanism to monitor the behavior of workers at ministries or agencies.

But the biggest problem with the panel’s draft is the idea of letting the ministries and agencies that designate state secrets judge for themselves whether their designation is reasonable.

The panel listed 55 categories of government information that the 19 ministries and agencies can designate as state secrets ostensibly to ensure transparency. But the list covers an exhaustive range of activities in the areas of defense, diplomacy, counterintelligence and anti-terrorism efforts. Information about the mobilization of Self-Defense Forces units in defense and other missions are among the categories. The government would be able to conceal information on Japan’s negotiations with other countries over security matters if it chooses to do so. Information on nuclear power plants that the government wants to keep hidden from the public could also be designated as secret under the guise of “anti-terrorism efforts.”

Despite the panel’s nominal efforts to bring transparency to the implementation of the state secrets law, it will be difficult to effectively control bureaucracy in the designation of state secrets because the law itself gives the Cabinet ministers concerned discretionary powers to classify an extremely wide range of government information. The law allows the defense minister to designate almost all information related to defense and the SDF, including plans, estimates and studies related to the forces’ operations. The foreign minister would be able to designate as secrets, for example, the scope of cooperation with foreign governments or international organization in the field of security.

Under the law, designations of state secrets will be in force for five years. But they can be renewed every five years until the information has been kept secret for 30 years, after which the declassified documents would be moved to the National Archives. Declassified documents that have been treated as state secrets for less than 30 years can also be moved to the archives if they are deemed to be of historical importance. But if not, the documents can be destroyed with the approval of the prime minister. This means that a large volume of state secrets could pass into eternal oblivion without ever being exposed to public scrutiny — which should not be allowed in a democracy. The panel’s draft just allows that to happen.

Clearly the panel of private-sector experts’ draft enforcement standard does nothing to alleviate grave concerns about the state secrets law, which pose a serious threat to the nation’s democracy. This reinforces the case for the Diet abolishing the state secrets law. Citizens should continue grass-roots movements to pressure lawmakers to act.