The State Secrets Protection Bill (6.12.2013)
The Japan Times, March 13, 2014

State secrets law fatally flawed

The state secrets law gives heads of administrative bodies almost limitless discretionary power over what information — in the fields of diplomacy, defense, counterintelligence and counter-terrorism — should be designated as secrets.

But it contains no oversight mechanism to scrutinize these decisions. This omission opens the door to government abuse of the state secrets law, such as using it to hide information that the public has a right to know and suppressing freedom of the press.

After the law was enacted Dec. 6, Diet members from the Liberal Democratic Party, New Komeito, the Democratic Party of Japan, Nippon Ishin-no Kai (Japan Restoration Party) and Your Party traveled to the United States, Britain and Germany from Jan. 12 to 19 to study their oversight mechanisms for scrutinizing the designation of secrets.

Nearly two months on, they have yet to produce any convincing proposals for establishing such an oversight mechanism in Japan. At this point, no effective means to ensure the people’s right to know and protect press freedoms can be expected. This strengthens the case for abolishing the law.

Shortly after the law’s enactment, LDP Secretary General Shigeru Ishiba proposed revising the Diet Law to set up a permanent body in the Diet’s both chambers to deal with matters related to the state secrets law. Last week, the LDP came up with a lukewarm proposal to establish a permanent body that would function — behind closed doors — only when other Diet committees make requests.

Bizarrely the LDP proposal says that the permanent body will not deal with the issue of whether designation of particular information as a secret is appropriate. What’s the purpose of setting up such a body if it does not examine the secret-designation process?

Under the law, heads of administrative bodies have the power to designate secrets, determine how long the designations should be effective and declassify secrets. Since it is impossible for such heads to have concrete and detailed knowledge of such a large amount of information, bureaucrats will actually do the work by using the power given to such heads.

Given bureaucrats’ inclination to hide information from the public, it is very disturbing that they will be playing a leading role in the designation of state secrets.

It is logical that the Diet should have the function to check whether the designation of secrets is appropriate. But since it will be virtually impossible for the Diet to check each secret, the role of whistleblowers — government workers who discover and report designation as secrets of information that should not be designated as secrets — will be extremely important, especially given the central role bureaucrats will play in the designation of secrets.

But the state secrets law provides up to 10 years’ imprisonment to government workers who disclose designated secrets. This shows it is not aimed at protecting whistleblowers. Many government workers will be too afraid to speak out against abuses.

The Diet should serve as the body to which whistleblowers report abuses of the secrecy law without fear of prosecution. To protect whistleblowers, the Diet needs to have specialized staffers who are well-versed in both the preservation of secrets and freedom of information and able to closely examine information provided by whistleblowers. Unfortunately there are no indications at present that the ruling parties will take such a step.

Apart from the process to designate secrets, government ministries and the police will gather information on government workers to determine whether they are qualified to handle state secrets. But the law includes no rules to control the police concerning the handling of such information.
The state secrets law has too many defects and should be scrapped. At the very least, the government should refrain from putting the law into effect until it addresses the law’s lack of an oversight mechanism for the designation of secrets and a mechanism to protect whistleblowers.