Japan Wrongly Blames U.S. For Repressive Japanese Secrecy Law

9 October 2014

By Morton Halperin and Molly Hofsommer

Halperin is Senior Advisor to the Open Society Foundations and Hofsammer is an OSF Research Assistant. Their article was published Oct. 5 in The Huffington Post.

In Japan, a draconian secrecy law that will severely limit public debate on national security issues is about to go into effect.

Not only is Japan blatantly disregarding internationally accepted standards for state secrecy laws, but it is wrongly blaming the United States for requiring the law as a condition of sharing sensitive information and intelligence. The U.S. government must make it clear to Japan that its relationship with the United States will not be adversely affected if the law is changed.

Late last year, Prime Minister Shinzo Abe’s government railroaded a repressive new state secrecy law through Japan’s parliament. The Specially Designated Secrets Protection Act (SDS) allows government officials to designate a broad range of information as secret, including information with high public value and create harsh criminal penalties for unauthorized releases of information.

In democratic countries, laws concerning national security information are central to both the state’s ability to protect itself and to maintaining the democratic character of the country. Such laws must assure that the public has the information it needs to understand what its government is doing and to hold its leaders accountable. Under international standards, as set forth in the Global Principles on National Security and the Right to Information (otherwise known as the Tshwane Principles), state information should not be classified if its public value outweighs the likely harm of disclosure; if the information is critical to the public’s understanding of the government; or if the information reveals serious violations of international law or threats to health and safety.

Japan’s new law fails the international standards on many fronts and completely disregards the Japanese citizen’s right to know. The SDS provides only minimal guidance on what information may be classified and does not exempt any categories of information from classification, such as those with high public value. The new law doubled the existing penalty for intentional and unauthorized disclosure of information to 10 years from five, with a fine of up to 10 million Yen ($92,000 USD). Criminal penalties will apply to journalists and government whistleblowers who “improperly” obtain or who legitimately expose government misconduct.

SDS’s inadequacies and shortcomings were criticized throughout the rushed two months between the SDS’s introduction and final passage, and continue to be criticized from domestic and international sources, including the Japan Federation of Bar Associations and the Open Society Justice Initiative.

But the Abe administration has attempted to deflect responsibility. They argue that they were pressured to approve the restrictive law by U.S. government officials. Abe and his government have claimed adopting the SDS was necessary to make Japan a more “normal” nation, to shed the restrictions that it accepted during the American Occupation after World War II, and assume greater responsibility for its security and that of its allies.

During the past year, Japanese Government spokespersons asserted that U.S. government officials clearly warned Japan that they would not be able to share classified information until new secrecy laws were enacted.

“[V]arious countries around the world have explicit rules regarding…state secrets. For that reason Japan would be unable to receive information from such countries unless it establishes rules for managing such kinds of secret information,” Prime Minister Abe said at a press conference on December 9, 2013.

But there is no evidence that the United States is behind the new law. There have been no public statements from American government officials. There’s no evidence that the United States ever intended to limit its sharing of information with Japan unless the law was passed. As strong allies, it is true that the United States has a clear and vested interest in Japan’s secrecy polices–U.S. Ambassador Caroline Kennedy has supported the evolution of Japan’s Security policies and the U.S. State Department has encouraged the importance of information security and strengthened policies. These statements, however, do not validate the Japanese claim that the U.S. government would no longer share secret information unless a new, more repressive, secrecy law was enacted.

Since the signing of the mutual security treaty between Japan and the United States in 1960, the U.S. government has routinely shared highly classified information with the Japanese government and the U.S. national security establishment remains eager to see Japan play a greater security role.

From my own personal experience in sharing such information, going back to the Johnson Administration in the late 1960s, never have I heard a U.S. government official suggest that information could not be shared because Japanese Secrecy laws were not strong enough.

In 2008 for example, while serving on the Congressional Commission on the Strategic Posture of the United States, I proposed a recommendation that the U.S. government consult more intensively with Japan on American nuclear policy. The recommendation received unanimous approval by the members and was included in the final report of what is known as the Perry-Schlesinger Commission. While many recommendations were reviewed and modified prior to the release of the report, the Japanese provision remained unchanged, with not one official suggesting that such information sharing would not be possible because of deficiencies in Japan’s secrecy law.

Looking to the secrecy laws of other close U.S. allies also reveals the unlikelihood that the United States required Japan to implement the strict provisions of the SDS to continue intelligence exchanges. Most, if not all, of the controversial provisions of the SDS are nowhere to be found in the laws of close allies, including the United Kingdom, Canada, Australia, and New Zealand. Canada and Denmark provide a “public interest defense” for individuals charged with releasing classified information and, in New Zealand, the law facilitates disclosure of information to promote open government. In the United Kingdom, the sentence for public disclosure of classified information by a public servant is limited to just two years (rather than Japan’s 10 years).

Ultimately, by adopting the SDS, Japan has disregarded its citizen’s right to know and has blamed the United States. It is not too late for Prime Minister Abe to reform the law and demonstrate respect for the development of international standards or for the United States to make clear that is has not pressed for and does not insist on the controversial provisions in the SDS.

 

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