7 Décembre 2015
December 7, 2015
Nearly a year after it entered into force on Dec. 10, 2014, the problems of the state secrets law remain unaddressed, including the opaque aspects of its implementation. The law’s biggest flaw is that its definition of information that can be designated as state secrets is so vague and wide-ranging that it could be abused by officials who handle the information. In theory, some types of information can remain classified indefinitely if the government wishes so. The government and the Diet should at the very least make the oversight mechanism effective so that arbitrary classification of state secrets will not take place. They also should discuss creating a system under which citizens and journalists can request that designated secrets be declassified.
As part of the oversight mechanism to prevent misuse of the law, 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. It has also created a position within the Cabinet Office, filled by a senior bureaucrat, to check whether designation of state secrets and their management are properly done. A 20-member section to assist the official has been established.
Although the supervisory committee and the officer are empowered to call on government organizations handling state secrets to submit relevant materials and take corrective steps if necessary, the fact remains that designation of state secrets by government officials is monitored only by fellow bureaucrats. Under government 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 classify information in 55 categories in the areas of defense, diplomacy, counter-intelligence and counterterrorism.
Given the nature of those oversight bodies, it is legitimate to ask whether they can be effective in preventing improper classification and management of secrets. So far, the supervisory committee held meetings only twice, in January and April. Although the supervisory officer is obliged to submit a report to the prime minister once a year, currently there is no prospect that such a report will be delivered anytime soon. It also must be pointed out that the oversight bodies are not empowered to enforce the declassification of secrets even if they determine that they were unjustifiably designated as such.
The protection of officials who report wrongful designations of secrets is also insufficient. Although hotlines have been established under the law for whistleblowers to raise alerts, they are allowed only to summarize the information they think has been inappropriately classified. If their summaries are judged to include crucial or a major part of the classified information, they could be charged with leaking the secrets. Such a system would only discourage officials from revealing wrongful acts.
Each chamber of the Diet has a board of oversight and review of state secrets. As of the end of June, the Defense Ministry and nine other organizations had designated 417 pieces of information as state secrets. The government submitted a report on its designation of state secrets up to the end of 2014 to the Diet panels in June for their reviews, but the boards’ power is weak. They can ask the government to present state secrets if necessary, but the government can turn down the request if it determines that doing so would be detrimental to national security. Although the Diet bodies can call for improvements in the operation of the law, such requests have no binding power.
In addition to the flaws of the oversight system, there are other problems that must be addressed. Although the law requires the government to pay due consideration to the people’s right to know and freedom of the press, there remains the possibility that depending on the situation, members of the press or civic groups seeking disclosure of government information could be charged with and punished for “instigating” leaks of state secrets by bureaucrats. People judged to have obtained state secrets through illicit means could face an imprisonment for as long as 10 years. As such, the law clearly has an intimidating effects on journalists and citizens.
Under the law, the government can keep designated state secrets classified for up to 30 years. But that period can be extended to a maximum of 60 years if the Cabinet sees it as necessary from a national security standpoint. Certain types of secrets in seven categories, including information on ordnance and intelligence gathering capabilities, can remain classified even longer.
The United States has a system that enable citizens to request that state secrets be declassified on the strength of the Freedom of Information Act or executive orders of 1995 and 2009. The Interagency Security Classification Appeals Panel, consisting of senior level representatives appointed by six government bodies including the Departments of State, Defense and Justice and the National Archives rules on appeals by citizens whose requests for declassification under the executive orders have been rejected at the agency level. According to the Information Security Oversight Office’s report for 2013, the ISCAP acted on a total of 1,509 documents since its inception in 1996 and declassified 409 of them in their entirety and 640 others in part and accepted the declassification decisions of agencies in 460 others.
In Japan, the state secret law does not accord to citizens the right to seek the declassification of state secrets. A Freedom of Information Law exists, but it is difficult for citizens to utilize it because a meaningful summary list of information designated as state secrets is not publicly available. If citizens make a disclosure request under the law, the probability is high that the government will reject it on the grounds that the disclosure would damage the nation’s security or diplomatic interests. If citizens turn to the courts to seek the disclosure of information, it would be extremely difficult for them to win because the law does not give courts the authority to review classified documents.
The Diet should either drastically revise the state secrets law to fix these serious flaws, including creating a system allowing citizens to seek the disclosure of classified documents, or abolish the law and begin discussions from scratch on checks and balances concerning the handling of state secrets.