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Counterterrorism and liberties on collision course

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Special To The Japan Times

The continuing standoff between Apple and the FBI over data stored on an iPhone that belonged to the alleged perpetrators of the San Bernadino terrorist attacks highlights the frictions between protecting civil liberties and maintaining security. The USA Patriot Act has drawn widespread condemnation in liberal circles because it grants law-enforcement agencies sweeping powers that pose a threat to the constitutional rights of Americans in the name of protecting them from terrorist attacks.

With Japan joining the “war on terror” and beefing up its counterterrorism capabilities, there are similar worries about the implications this will have for Japanese civil liberties. While most citizens would probably agree that the nation has to be better prepared to deal with terrorism — in the areas of intelligence gathering and emergency response capacity — there is disquiet about maintaining a balance between civil liberties and expanded law-enforcement powers.

There are good reasons for Japanese citizens not to trust government authorities to use such powers responsibly. As I wrote in my 2004 book “Japan’s Quiet Transformation,” back in May 2002, barely a year after the national information disclosure law took effect, the Defense Agency was caught transforming this tool for public access to government files into an excuse to compile dossiers on the 142 individuals who made requests.

“There is something ominously anachronistic about the fact that the Defense Agency abused the very system of information disclosure intended to encourage ‘administrative openness,'” the Asahi Shimbun wrote on May 29 of that year.

In the June 17 edition of the International Herald Tribune, legal scholar Lawrence Repeta added, “A freedom of information law is intended to promote citizen knowledge of government, not government surveillance of citizens.”

The media pounced on the story, raising questions as to why the agency would mount unauthorized investigations into Japanese nationals trying to learn what the armed forces were up to. A reporter was tipped off about the illicit background investigations and the fact that the dossiers were being stored on the agency’s computer system so that they would be widely accessible to staff. Yet again, government officials were caught breaking the rules thanks to media oversight. In this kind of climate, those seeking to curb the media are suspected of having something to hide, which seems to be the logic behind the Defense Agency’s own efforts to reinterpret freedom of information as an excuse for prying.

Why would the agency gather such information? Presumably those making requests were viewed as potential enemies, and exercising their legal rights was the basis for suspecting them. This is clearly a battle between government transparency and secrecy, with agency officials assuming a right to monitor anyone suspected of holding opinions or ideas contrary to the government. Ironically, a statute designed to facilitate public oversight was interpreted as a license to investigate anyone exercising this right. This sends a chilling message to other citizens inclined to exercise their legal rights: Big Brother really is watching. The upshot is that the agency demonstrated how crucial civilian oversight is.

“The Defense Agency failed to honor even the most basic of human rights, which is that no administrative entity may discriminate against citizens for their thoughts or beliefs,” said Hiromichi Umebayashi, the then-president of the NPO Peace Depot, in the Asahi Shimbun on June 7, 2002. “The agency’s failure goes to show there are administrative authorities who think nothing of arbitrarily deciding what constitutes human rights. … It is now clear that these individuals understood squat about the spirit of the law. …Was this Defense Agency scandal just an aberration? I don’t think so. On the contrary, it simply embodied what is totally ‘normal’ among central government bureaucrats who believe their job is to keep the citizenry in line.”

Fourteen years ago he was pessimistic about the prospects for greater transparency and accountability in the absence of a fundamental “cultural revolution” among bureaucrats. Subsequent cases should remind the public about the need for stepped-up vigilance and oversight of the government.

Prime Minister Junichiro Koizumi’s promise to President George W. Bush that Japan would stand with the United States and dispatch troops to Iraq prompted protests in Japan against deploying the Self-Defence Forces (SDF) overseas in a combat zone, meaning that such deployment was beyond the scope of legislation allowing peacekeeping operations. At the time, there was a virtual media blackout of these protests, almost as if it was orchestrated. The right to protest is sacrosanct in democracy, but oddly enough this was not deemed newsworthy until some of these antiwar agitators were caught putting leaflets in mailboxes at a Tachikawa apartment complex. Tokyoites find unwanted solicitations and offers jamming their post all the time, but criticizing the deployment of the SDF in Iraq stepped beyond some red line that erotic massage apparently hadn’t.

The case of the “Tachikawa Three,” as the leaflet distributors became known, is chilling enough to warrant concern even now over the prospects of expanded police powers to battle terrorism. These so-called saboteurs passed out antiwar leaflets in a SDF housing compound encouraging the troops and their families to oppose the SDF dispatch to Iraq, asserting: “Bush and Koizumi are not going to the front!”

These antiwar lefties were no threat to anyone and yet the police devoted considerable resources to monitoring them and trying to build a case against them. The Tachikawa Three were detained in 2004 for 75 days before being released on bail. They were acquitted by the Tokyo District Court, which found that their actions were covered by freedom of speech and that any nuisance was trivial. The government, however, appealed this verdict and in 2005 the High Court ruled them guilty of illegal intrusion. In 2008 the Supreme Court upheld that conviction and slapped on a ¥500,000 fine, arguing they had violated the rights of the SDF residents.

While the Supreme Court acknowledged that freedom of speech is an essential right in democracy, it also asserted that this right can’t be exercised in a way that violates the rights of others. The trio had disturbed the tranquility at the compound by posting flyers, but unlike pizza or sushi delivery firms, their actions were criminalized.

If such innocuous expressions of dissent are stomped on with the full authority of the police and courts, in a similar way to egregious abuses of power in wartime Japan, what hope is there for Japanese democracy? Can we trust counterterrorism agencies with even more powers operating under the shadow of the state secrets law, which prevents citizen oversight? The stakes are high in striking the right balance.

Jeff Kingston is the director of Asian Studies, Temple University Japan.