After a fierce tug-of-war in the Diet, a law to protect specially designated state secrets was passed on December 6, 2013. The government and ruling parties, in a hurry to set out rules for protecting classified information pertaining to foreign policy and national security, met with strong backlash from the opposition, who argued that such a law would jeopardize citizens’ right to know. The ruling coalition pushed the bill through strong-arm tactics, and the Diet saw the biggest imbroglio in recent years.
State Secrets Law and Japanese NSC Go Hand in Hand
The Abe government was determined to enact the state secrets protection bill, which it considers to be one half of a two-part equation vital to Japan’s security strategy. The other half is the National Security Council, launched on December 4, which will act as the command center for diplomatic and security policies. These moves come in the context of North Korea’s nuclear and missile development, China’s increasing ambitions at sea and its declaration of a new air defense identification zone (ADIZ) in the East China Sea, and other worrying developments in Japan’s security environment. And in the Internet age, the risk of confidential information leaking out is a growing concern.
Japan has long been known as a haven for spies. Laying the legal groundwork for protecting state secrets was a crucial part of allowing Japan to share critical intelligence more closely with friends and allies. The National Public Service Act and Self-Defense Force Law both penalize public servants and SDF personnel who leak critical information or defense information held by the government, but until now there was no all-encompassing legislation on national security. The Abe administration believed there was an urgent need to bring Japan on a level with Europe and the United States in its information security measures.
Outcry over Potential Violations to the Right to Know
The freshly enacted state secrets protection law aims to prevent secrets directly linked to national security and citizens’ safety from leaking. Of the information pertaining to national security, the law designates information that has a particular need for secrecy as “specially designated secrets.” It mandates that handlers of these secrets undergo security clearance to gauge the risk of their leaking information. It also lays down penalties for violators.
Many newspapers were wary of the bill, saying that it could restrict the freedom of the press. While a few of the Tokyo-based national newspapers responded positively “with reservations,” most other national and local newspapers demanded that the bill be scrapped or modified. Scholars, lawyers, intellectuals, private groups, local governments, and others joined in protest against the bill, and the final days of the extraordinary Diet session saw a rising wave of demonstrations and large-scale rallies.
Among the major issues the law raises are the risk that it may infringe on the people’s right to know and the fact that the definition of state secrets remains vague. Some have objected that 60 years is too long a maximum period for information to be kept classified. Additionally, exceptions can be made for information in seven key subcategories, including weapons and ammunitions, intelligence-gathering techniques, and secret codes. Questions remain, moreover, as to whether adequate provisions will be made for third-party monitoring of the classification and declassification of state secrets and whether the security clearance process may violate individuals’ privacy and human rights.
Weak Provisions for Third-Party Monitoring, Penalties Too Harsh?
People are concerned about the law’s impact on the right to know. The classification and eventual declassification of secrets, as well as their scope, are left to the discretion of assigned personnel in government ministries and agencies. It is possible that such personnel might arbitrarily designate a wider range than necessary and keep inconvenient information out of the public’s eye. This, along with harsher penalties, could restrict the freedom of reporting and news gathering and impair people’s right to know.
Given these concerns, a key measure to prevent arbitrary designations involved setting up an independent body with authority over the classification and declassification of state secrets. The government explained in Diet proceedings that it would ensure that designations are made in a suitable manner by setting up an information monitoring office to review and monitor individual secrets and an oversight committee comprising officials at the administrative vice-ministerial level before the law came into force. But critics have opposed these plans on the grounds that they are a far cry from independent third-party checks.
Penalties were another focus of debate. Under the new law, the penalty for public servants who leak specially designated secrets is imprisonment of up to 10 years across the board, regardless of content. This is a tenfold increase over the maximum 1 year sentence under the current National Public Service Act. Reporters and others also face up to 10 years in prison for illegally obtaining information from a public servant, and they can be punished for simply soliciting a public servant to leak information. These penalties are comparable with those in the United States but stricter than many other countries. The harsher penalties could make public servants worried about coming in contact with members of the media and other third parties or reluctant about providing information that people want to know.
State Secrets Protection in Major Countries
|Categories covered||Secrecy period||Penalties|
(under the new state secrets protection law)
|Information deemed particularly important in 4 categories: defense, diplomacy, counterespionage, and counterterrorism||Generally 30 years, maximum 60 years; further extensions possible in 7 subcategories including weapons, aircraft, and secret codes||Up to 10 years’ imprisonment for intentional disclosure by a public servant, up to 2 years for unintentional leaking|
|United States||Military secrets, diplomatic activities by the government, intelligence sources, etc.||Generally 25 years, maximum 75 years for sources of information, etc., with other exceptions||Up to 10 years|
|Britain||Espionage, international affairs and defense, intelligence sources, etc.||Generally 20 years, with some exceptions||Up to 2 years for disclosure by a public servant|
|Germany||State secrets and other important information||Generally 30 years||Up to 10 years for important information, up to 5 years for state secrets|
|France||National defense secrets, as well as information on the manufacture of weapons of destruction||Maximum 50 years for national defense secrets; permanent nondisclosure required for some information||Up to 7 years|
|South Korea||Information at risk of obstructing security, diplomatic information, etc.||Generally 30 years, with some exceptions||Up to 10 years|
Mandatory Assessment for Handlers of Secrets
The state secrets protection law mandates security clearance for public servants and others with access to state secrets. In addition to public servants, clearance is also required for employees of private government contractors handling state secrets. The clearance process covers a wide range of private information, including nationality, ties with espionage or terrorist activities, criminal and disciplinary records, history of drug abuse, drinking habits, and financial situation. The nationalities and addresses of parents, spouses, children, and siblings can also be checked. Legal professionals have raised concerns that such probing could lead to privacy infringement and human rights issues.
A greater problem is that, in principle, not even Diet members can access the content of government-designated state secrets. This implies that the law gives precedence to safeguarding secrets pertaining to national security over the Diet’s constitutional right to investigate the government. Although the law makes an exception by allowing specially designated secrets to be divulged to closed committees (“secret meetings”), Diet members attending the committee may be punished for leaking these secrets.
Even the Diet, the “highest organ of state power” under the constitution, will have difficulty keeping tabs on the government when it comes to specially designated secrets. A weakened Diet could represent a serious blow to the principle of separation of powers.
(Originally written in Japanese on December 10, 2013.)