Opinion

Government and Economy

Issues in the “Special Intelligence Protection Law (Bill)”
―Reversal of Principles and Exceptions

Asaho Mizushima
Professor, Faculty of Law, Waseda University

Transparency of information is the principle of a democracy advocating an “open government,” and secrecy is permitted only on an exceptional basis; it takes special justifications to protect secrecy. In Japan, we already have some legal mechanisms for secrecy protection in place, such as the National Public Service Act, Local Public Service Act, Self-Defense Forces Act, Act on Special Measures Concerning Criminal Cases, and Act on Protection of Secrets Incidental to the Japan-US Mutual Defense Assistance Agreement (MDA). While all of these have their own issues, the Abe administration is now poised to legislate a new “Special Intelligence Protection Law,” which may become our first comprehensive legislation on secrecy protection under the Constitution of Japan. It is highly possible that we will “regain”―to use a favorite expression of Prime Minister Shinzo Abe―the secrecy protection legislation like those under the Constitution of the Empire of Japan. Why do we need a new secrecy law now? What are the reasons to justify this legislation (i.e., legislative facts)?

According to the government, information can be leaked as a result of conventional intelligence operations by any foreign intelligence agencies, etc., and that held by the government can also go viral worldwide once it’s leaked through the Internet. I believe, however, that there are two domestic and international triggers behind this legislation. The domestic trigger is an October 2010 incident of a massive leak on the Internet of classified anti-terrorism documents, including personal information on police officers and persons on a watch list, from the Public Safety Bureau of the Tokyo Metropolitan Police Department. I suspect keeping a secret of “dirty” covert operations by security police to be a strong motive for the legislation. The international trigger is the General Security of Military Information Agreement (GSOMIA), signed in August 2007, which requires Japan and the U.S. to facilitate information exchange and to establish information security for the purpose of sharing arms programs, operational information, and the like. During the current Diet session, a bill to create a National Security Council (a Japanese version of the U.S. NSC) should be enacted as well; one of its purposes is to enhance intelligence personnel management.

A number of issues underlie this law, but I will pinpoint just four of them here.

First of all, “special intelligence” is strikingly unspecified. “Special intelligence” is deemed to be the information which is listed in an attached table, not revealed to the public, and specified by heads of administrative organs as, “its leak could cause significant disruptions in our nation’s security and therefore its secrecy is especially needed,” except “special defense secrets” under the MDA Secrets Protection Act. This intelligence is categorized into four types: defense-related, diplomacy-related, counter-“specific harmful activities”-related, and anti-terrorism-related. Then again, the word “other(s)” appears 36 times in the law, which means that the scope of intelligence can be easily stretched at the discretion of a specifying authority. As “harmful activities” could be interpreted as those “harmful” to the government at the time, an “inconvenient truth” to the incumbent administration can be classified as intelligence at any time. Protecting the guard and security police-related intelligence is a particular feature of the law; in fact, it’s the Commissioner General of the National Police Agency who frequently appears as a “head of administrative organ” being engaged in specifying special intelligence. Whether a newspaper article on what the prime minister did today (“Status Update on Prime Minister [Shusho Dousei]” column) should be treated as intelligence was even discussed in the Diet proceedings. Concerns over widening the scope of intelligence have not been dispelled.

The second issue is a “security clearance system,” about who should be authorized to access secrets. Government employees and contractors (civilians) who are supposed to handle secrets will have to go through a relentless background check on their criminal records, past overseas travels, family, drinking habits, mental illness history, debts, and the like. Among others, the phrase, “drinking in moderation” is outrageous. Cabinet members and heads of administrative organs are not subject to this “security clearance,” but we’ve seen a drunken cabinet member before disgracing himself in front of the world’s press. It is a well-known fact among journalists that some key members of the current cabinet show dubious “moderation.” We can’t eliminate the possible leak from any given cabinet members exempted from the “clearance.”

Thirdly, the range of punishments is too wide. Not only negligence but also solicitation and sedition/instigation will be punished independently. Civilians can be punished; the possibility of incriminating news gathering activities as solicitation or sedition/instigation of information leak can’t be ruled out either. “Miscellaneous provisions” provide that “public’s right to know” is guaranteed and news gathering activities are permitted unless they are conducted in a “significantly unreasonable manner.” Even so, to determine whether they are conducted in an “unreasonable manner” is at the discretion of enforcement authorities. The chilling effects on these media activities are inevitable.

Fourthly, information could be classified as secret for an indefinite time. The designated secrecy period is five years, but it can be extended another five years. With a clause requiring the cabinet approval when the total years of the period exceed 30 years, the information could remain a secret indefinitely if the cabinet doesn’t approve of disclosure. A clause concerning hearings with experts on the classification and declassification of secrets can’t be trusted. Such an “expert meeting” is not a council with legal grounds but most likely a private advisory panel of the prime minister or chief cabinet secretary, which could consist of “friends of Prime Minister Abe.” Compared with other countries’ secrecy legislations, especially those of the U.S., the design of our legislations is too weak/soft against the administration and rather outdated.

The information disclosure system we currently have is not adequate. On top of that, if we legislate the new law with grave consequences without full discussions, we are at risk of creating an unusual situation where secrecy is the principle and information disclosure is the exception. I believe we should start with the legislation of an in-depth freedom of information law, within which the information to be undisclosed should be defined deliberately and precisely.

Anti-espionage obligations were imposed on the people under the prewar secrecy legislation. Postcards printed by the government for the anti-espionage campaign purposes.

Extreme measures for the final battle were discussed by the government at the end of the war. Confidential internal documents.

Asaho Mizushima
Professor, Faculty of Law, Waseda University

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Professor Mizushima, LL.D., Faculty of Law, Waseda University, was born in 1953 in Tokyo. Graduated from School of Law and completed a doctoral course, Graduate School of Law at Waseda University. Previous posts include Assistant Professor, Sapporo Gakuin University (1983), Assistant Professor, Hiroshima University (1989), and has been on the faculty of Waseda since 1996. Representative for National Constitutional Law Association. His major publications include A Study of Modern Military Legistlation [Gendai Gunji Hosei no Kenkyu]: Nippon Hyoron Sha, The Constitutional Law 101 [Hajimete no Kenpo Kyoshitsu]: Shueisha Shinsho, Diagnosing Constitutional Amendments [Kaiken-ron wo Miru]: Horitsu Bunka Sha, Constitution for 18-year Old Beginners [Jyuhas-sai kara Hajimeru Kenpo], and more. He had been a regular commentator for the NHK Radio 1 program, After Reading Newspapers [Shimbun wo Yonde], for 14 years before it was discontinued in 2011.

Asaho Mizushima official website: “A Message of Pacifist Constitution [Heiwa Kenpo no Messêji]”