The first reports issued by the Diet boards overseeing state secrets have proven, as had been widely feared, that their power is so weak that it’s almost impossible for them to effectively check abuse of the state secrets law by government offices. The Diet should seriously consider giving teeth to its boards in both chambers. This is all the more important since the boards, made up of elected officials, represent the only mechanism outside of the administrative branch to prevent arbitrary designation of government information as state secrets.
Apart from the Diet boards, the government has set up a supervisory committee within the Cabinet secretariat, made up of vice minister-level bureaucrats from each ministry and headed by the chief Cabinet secretary, and a senior bureaucrat in the Cabinet Office with experience serving as a public prosecutor to check whether the designation of state secrets and their management are being done properly. But these functions are performed by government insiders, raising doubts on whether they can effectively prevent misuse by their peers.
The decision to set up the Diet boards was made in a rush just before the law was enacted in December 2013. Each Diet chamber has since set up a panel comprising eight members, with party representation determined by partisan strength in each chamber. The Lower House board is made up of five members from the Liberal Democratic Party, two from the Democratic Party and one from Komeito. The Upper House version has four lawmakers from the LDP, two from the Democratic Party and one each from Komeito and the Japanese Communist Party.
The boards began holding closed sessions last July to study the government’s summarized reports on designated state secrets. They can ask the government to present files of state secrets if necessary. If they find that something has been designated a state secret inappropriately, they can recommend that the government declassify that information. However, such recommendations have no binding power. More importantly, the government can turn down the boards’ requests for submission of files if it determines that doing so would harm national security.
The boards have so far dealt with 382 cases comprising some 189,000 documents, including photos, that were designated as state secrets by the Defense Ministry, the Foreign Ministry and eight other government organizations in December 2014 right after the law went into effect. The government’s reports to the boards were so vague that it was almost impossible for them to determine specifically what the secrets were about.
For example, the government’s report lists the date when a particular piece of information was classified, the name of the official responsible for management of that secret and how long the information must be kept secret. It also includes an outline of the secret, but the description is in highly abstract terms, leaving the board members in the dark as to what specific information is being addressed. As a result, they had to give up trying to determine whether the designation as a state secret was appropriate.
Records of exchanges between the Diet board members and government officials also show that the lawmakers had difficulty getting the answers they wanted. According to a report by the Lower House board, members asked about the number of other countries with which Japan has held consultations over possible contingencies in its neighboring area. The Foreign Ministry refused to answer by saying that disclosing the number and names of such nations would enable third-party countries to determine what steps Japan is taking and would hurt the trust between Japan and its partner countries. The ministry also refused to answer when asked whether the government classified information pertaining to the kidnapping of two Japanese by the Islamic State extremist group, on the grounds that revealing whether specific cases will be handled as state secrets would harm Tokyo’s relations with other governments.
Despite the difficulties, the boards have generated some results. The Lower House board called on the government to improve its accountability to the legislature, including on how each piece of classified information is described on the list submitted to the boards. It also urged the official at the Cabinet Office tasked with checking whether designation of state secrets and their management is appropriate to provide the boards with regular reports of his or her activities. Given that the government turned down a request for the proceedings of meetings among the prime minister, the chief Cabinet secretary, the defense minister and the foreign minister at the National Security Council, the board also said the government should consider how best to disclose information concerning the NSC meetings. The Upper House board, for example, called for submission of three files of state secrets citing the inadequacy in the government’s explanation about the classified information. The government complied and presented the files.
These demands by the Diet boards are reasonable. The government needs to respond with sincerity. It also seems unlikely that the boards can truly fulfill their functions without support from experts. Each board should be equipped with a staff well-versed on such matters as diplomacy, security and information management.
The boards should also consider setting up a section within their secretariats to receive reports from government workers seeking to blow the whistle on dubious designations of state secrets. More importantly, the Diet should consider what regulations are needed to empower the board members to get more concrete information so they can adequately judge whether information has been properly classified.
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