Friday, October 18, 2013

Can This Piece of ...Not Fully Considered Legislation

So close...but no.

The latest edition of The Economist does the great service of alerting its readers as to what is becoming the bugbear of the extraordinary Diet session: the Liberal Democratic Party leadership's desire to pass an Official Secrets bill. Unfortunately, the article misses more than it hits. (Link)

The crux of the matter is whether or not the country even needs the legislation. As the article points out, there are already laws on the books meting out special, long (in Japanese terms) sentences for leaking military secrets -- the most important class of secrets. However, the instances of SDF personnel intentionally leaking or stealing classified information that we know of are few and pathetic. The police thought they had a huge case in 2007 when the pick up of a Chinese national on a passport violation led to the discovery of Aegis radar data on the laptop of her husband, a Maritime SDF officer. However, the case against the MSDF officer collapsed in confusion over whether or not the data was a file miscopied in an exchanges of pornographic images done with other SDF officers or indeed was a part of the openly available teaching materials of an MDSF training facility in Hiroshima Prefecture. Eventually the officer, who was facing a possible 10 years in prison, was given a four year suspended sentence. (Link)

As for other government employees, as the cover up of the Green Cross HIV-tainted blood product sales and the refusal of successive governments to acknowledge the existence of the three so-called secret accords on the Okinawa turnover demonstrate, Japanese officials, even retired ones, have no problem keeping secrets. In the latter case, officials continue to protect the secrecy of the accords even after the U.S. copies of the documents in question could be viewed in U.S. government archives (Link). That one would become unemployable, lose one's pension, be ostracized from one's social networks and be liable for arrest on even a minor charge of mishandling public information has been more than enough of a deterrent against leaking information in need of protection.

Indeed, as the case of the Green Cross HIV-infected blood products showed, the problematic tendency is that Japan's public servants do not, indeed, serve the public. Health, Labour and Welfare ministry officials refused to acknowledge the existence of documents supporting the assertions of HIV-infected claimants until a crusading, non-LDP minister of health named Kan Naoto forced his subordinates to cough up the documents the bureaucrats had claimed either did not exist or could not be found. (Link)

The proximate stimulus for the current bill -- the contents of which, in a bit of trial baloonery, the LDP has assured friendly reporters is "largely settled" (osuji goi shita) with the LPD's cautious coalition partner the New Komeito (Link - J) -- seems to be the prosecutors office's inability to find a serious crime in the incident three years ago of an irate Japan Coast Guard officer's uploading to video sharing sites of the recordings demonstrating conclusively that a Chinese fishing ship had been steered into collisions with two Japan Coast Guard vessels. The then DPJ-led government had desperately sought to suppress the videos in an effort to prevent the spiraling out of control of a diplomatic crisis over the arrest of fishing vessel's captain.*

The government (actually, if we are going to be pointing fingers, the preening, tone-deaf and self-adoring Chief Cabinet Secretary of the time) had sought to cover up the facts of the case against the captain. However, a maniac had viciously attacked Japanese government employees. In the case of the rear ending of the JCG Yonaguni, the Chinese captain rammed his boat into a manned vessel that was neither in his way nor moving. Covering those facts up, or even trying to, never should have been accorded the mantle of realist diplomacy. It was a dereliction of an elected politician's duty to protect Japan's national interests -- or at very least, the health and welfare of Japan Coast Guard personnel. It was also, as the Banyan blog argued at the time, a politically costly insult to the intelligence of the Japanese public. (Link)

Which highlights the reason why the Abe government should abandon the secrets bill -- or if some tightening of the legal consequences of information leakage has to be passed in order to please the intelligence communities of Japan's partners, why the government should scrap the current bill in favor of one drawn up by a cross-party team of the smartest legal minds in the Diet, including, most importantly, legal experts of the Communist Party: the legislation will not be used to protect secrets. Instead it will be used most often, if not exclusively, to declare secret, either pre-emptively or ex post facto, horrible mistakes and crimes.

Ask former prime minister Kan Naoto, who was not only the hero in the Green Cross scandal but the unfortunately hands-off prime minister at the time of Chinese boat captain incident and the hero again in his shaming of the executives of the Tokyo Electric Power Company and central government bureaucrats trying to keep him from getting a handle on the situation at the Fukushima Dai'ichi nuclear power plant. Mr. Kan can probably talk from dawn until dusk about the obstruction, lying and malfeasance done in the name of the greater public good.

Later - The press is reporting that the New Komeito's project team on the Official Secrets bill (in J. - Tokutei himitsu hogo hoan) has given its a approval for a revised version of the bill that purportedly has provisions guaranteeing the freedom of the press and the people's right to know. When one considers how much those principles were trampled when officials lacked an ability to class certain information as officially secret, one is left to wonder how these new countermanding rights are supposed to be engaged and enforced. (Link - J)

* One largely forgotten part of the Chinese fishing vessel story: the captain was not initially arrested for ramming the JCG vessels. Instead he was arrested on the charges of illegal fishing. While this is standard Japanese law enforcement practice -- arresting a suspect on a laughable minor charge until the suspect confesses or evidence can be collected proving the existence of a major crime -- charging the captain with illegal fishing was an assertion of sovereignty charge, which the Chinese government could argue violated a mutual understanding that it had with the Japanese government to merely encourage fishing rules violators to run back to their home countries, rather than a violation of the free and safe use of the seas charge, which was the actual crime of the Chinese captain.

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