The government last week adopted guidelines for implementing the state secrets law, which will go into effect Dec. 10. For a month through late August, it sought public comments on the draft guidelines and made 27 changes to them. But the basic problem with the law — the lack of a valid mechanism to prevent heads of administrative bodies from arbitrarily designating information held by the organizations as state secrets — has not been corrected, posing a threat to the basic foundation of Japan’s democracy.
Lawmakers and the public are urged to push for major changes in the law and its guidelines at the very least — before and after the law is implemented — including making the insufficient oversight mechanism more effective.
Under the guidelines, 19 ministries and agencies, including the Defense Ministry, the Foreign Ministry, the Cabinet secretariat, the National Security Council, the National Police Agency and the Nuclear Regulation Authority, may designate government information in 55 categories as state secrets.
But this categorization covers an exhaustive range of activities and items related to defense, diplomacy, counterintelligence and anti-terrorism efforts. The definitions of these activities and items, and the conditions for designating them state secrets, are elastic and vague.
The guidelines say that the government will “designate the minimum amount of information as secret for the shortest period of time possible” and that the public’s right to know should be “greatly respected” because it is connected with freedom of expression guaranteed under the Constitution and with how a democratic society works. But given the basic nature of the law, which gives heads of the administrative bodies almost limitless discretionary power to designate state secrets, the guidelines’ statement appears toothless.
Many of the concerns raised about the law when it was debated in the Diet last year remain unaddressed. For example, the defense minister can designate as state secrets almost all information related to defense and the Self-Defense Forces, including plans, estimates and studies related to the forces’ operations. The foreign minister will also have the power to designate as secrets joint security efforts with foreign governments and international organizations.
The guidelines also fail to address fears that some state secrets may be destroyed, and thus never be disclosed to the public even after their designation period of secrecy is over.
Under the law, state secrets in principle can remain classified for up to 60 years. If they cease to be state secrets after more than 30 years have passed since their initial designation, they would be moved to the National Archives, where they can be accessed by the public.
But there is a problem with the handling of documents whose period of designation as state secrets is 30 years or less. If such documents — after the designation period has expired — are deemed historically unimportant, they can be destroyed with the approval of the prime minister. The guidelines only call for careful judgment in making the decision.
The possible destruction of state secrets whose designation period is 30 years or less would deprive future generations of the chance to review the government’s policies and actions. This runs counter to the people’s right to know — a pillar of democratic government.
Two oversight bodies will be created, one within the Cabinet Office and the other within the Cabinet secretariat. The former will play a more important role. The guidelines empower its chief to ask the heads of the administrative bodies to submit related documents — including classified documents — or provide explanations or take corrective steps if it is suspected that specific information has been improperly classified. But there is a loophole for this provision. The heads of the administrative bodies can reject the request by stating that submission of such documents could pose a danger to national security.
Under the guidelines, government workers who are authorized to handle state secrets can report their suspicions of arbitrary classifications or declassifications of state secrets to the oversight body in the Cabinet Office or to a section at each of the 19 administrative bodies. But the guidelines fail to provide sufficient protection for whistle-blowers.
In reporting suspected violations of the secrecy law or its guidelines, they are required to not disclose details of state secrets themselves to the officials who receive the tip-offs. They submit only summaries in most cases. But if the summaries are found to contain details, the whistle-blowers can be punished for leaking state secrets. This is an absurd provision that could discourage government workers from reporting improper designations of secrets to the relevant sections.
Prime Minister Shinzo Abe said that the secrecy law is necessary to enable Japan to exchange sensitive information with other countries and to build closer security ties with them. But the law goes far beyond this scope with its provision of up to 10 years in prison for leakers of secrets and up to five years for those who try to obtain secrets, including reporters, even if they do not know the information is secret. As such, the law places unreasonable restrictions on public access to government information.
A majority of the 24,000 public comments made about the guidelines reportedly expressed opposition to the law or fears about it. Even in recent meetings of the Liberal Democratic Party’s General Council, many objections were raised about the law and the guidelines. It is imperative that citizens and lawmakers who oppose the law make steadfast efforts to have it repealed.
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