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)

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* 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.

It Was All So Much Easier In The Old Days

Lost in the general languor and mental sloth of Golden Week, former Chief Cabinet Secretary and éminence grise Nonaka Hiromu spilled the beans in a major way on how the Liberal Democratic Party governments managed polish their images and get things done. In a parallel with former Ministry of Foreign Affairs official Yoshino Bunroku's decision to come clean on his involvement in the negotiation and coverup of secret agreements made with the U.S. government over the reversion of Okinawa, Nonaka recently gave a glimpse into the way the Chief Cabinet Secretary could use the secret bank secret attached to the office for the purposes of "information gathering."

According to Nonaka, who served served as Chief Cabinet Secretary from July 1998 to October 1999, he would withdraw 50 to 70 million yen per month from the secret account to disperse to various persons. To the prime minister he would give 10 million a month, and to House of Representatives and House of Councillors Diet Affairs chairman he would each give 5 million a month - this in order to smooth the passage of legislation. He would also send aides to drop off packets of money at the offices of opposition politicians and, shockingly, political commentators and journalists. According to Nonaka only one of the latter, TV Asahi host Tahara Soichiro, ever refused to accept the money offered. Opposition lawmakers would ask for money prior to making visits to North Korea, in order make their visits go more smoothly.

Passing on secret account funds to opposition members in case they needed to bribe North Korean officials can be seen as falling under the rubric of information gathering. However, the belief that the Chief Cabinet Secretary's secret account was accessible for pretty much any kind of activity seems to have been widespread. Nonaka claims that one politician-turned-political-commentator telephoned Prime Minister Obuchi asking for 30 million yen as a celebratory contribution toward the building of a new home for himself, knowing that the money would be drawn from the secret account.

One has to wonder, given Nonaka's revelations, what the Hatoyama goverment's situation might be if it made as profligate use of the Chief Cabinet Secretary's account as it predecessors. The DPJ, when it was in opposition, roundly criticized the abuse of the secret account, assuming, seemingly quite correctly, that money from the account was being used to buy off opponents and paying off election expenses. Chief Cabinet Secretary Hirano Hirofumi was roundly criticized for at first absurdly refusing to admit that the account existed (Why he would do this, when his party had long demanded greater clarity regarding the account, taxes the brain) then for declaring that he would not disclose in any way how the money was being used. On Friday, however, the Cabinet revealed that it was returning unused secret funds to the general account, having somehow been unable to spend them.

The Hatoyama government may be suffering from teething problems not just because it is drawing less from the secret account but because it is using the funds in more in a more ethical and justifiable manner. From the way the Prime Minister has been ridiculed by the press since the very first weeks of his tenure in office, one has to guess that Hirano has not followed the precedent of using some of the funds from the account to buy off journalists.

Tentative Notes Upon the Hatoyama Government's Statement on Non-Interference in U.S. Strategic Planning

Dr. Jeffrey Lewis of Arms Control Wonk passes on some good news: the Government of Japan is not in favor of the U.S. military’s retention of the TLAM-N nuclear-armed cruise missile and the development of the RNEP earth penetrator. At the Ministry of Foreign Affairs press conference of January 22 of this year, it was revealed that Foreign Minister Okada Katsuya sent letters to both U.S. Secretary of State Hillary Clinton and U.S. Secretary of Defense Robert Gates on December 24 of last year. In the letters FM Okada declares that the Government of Japan has no opinion as to the retention or abolition of these two systems, or any other systems for that matter. The letter to Secretaries ask only that the U.S. consult with Japan regarding the cancellation or development of systems, explaining how U.S. actions will affect deterrence.

In his post on the Okada Statement, Dr. Lewis shows confusion over Foreign Minister Okada’s dismissal of an inconvenient truth: Japanese diplomats did actually lobby the Congressional Commission on the Strategic Posture of the United States for the retention of these weapons systems.

Dr. Lewis sees a “non-denial denial” going on:

"It was reported in some sections of the Japanese media that, during the production of the report of the “Congressional Commission on the Strategic Posture of the United States” released in May this year, Japanese officials of the responsible diplomatic section lobbied your government not to reduce the number of its nuclear weapons, or, more specifically, opposed the retirement of the United States’ Tomahawk Land Attack Missile – Nuclear (TLAM/N) and requested that the United States maintain a Robust Nuclear Earth Penetrator (RNEP).

However, the Japanese Government is not in a position to judge whether it is necessary or desirable for your government to possess particular [weapons] systems. Hence, although the discussions were held under the previous Cabinet, it is my understanding that, in the course of exchanges between our countries, including the deliberations of the above mentioned Commission, the Japanese Government has expressed no view concerning whether or not your government should possess particular [weapons] systems such as TLAM/N and RNEP. If, hypothetically, such a view was expressed, it would clearly be at variance with my views, which are in favor of nuclear disarmament.

Nevertheless, if TLAM/N is retired, we hope to receive ongoing explanations of your government’s extended deterrence policy, including any impact this might have on extended deterrence for Japan and how this could be supplemented."

“Some sections of the Japanese media” almost certainly refers to Masa Ota’s excellent story, Japan lobbied for robust nuclear umbrella before power shift, in Kyodo News(November 24, 2009). Ota reported that senior Japanese diplomats told the Commission that the United States should retain the TLAM-N and develop low-yield nuclear options.

Although Okada seems to deny that Japan lobbied the Commission, it looks to be the classic non-denial denial. (It would be helpful to parse the original Japanese, but Okada admits to the exchanges, which in any event are listed at the back of the Posture Commission Report, denying only the expression of a “view concerning whether or not [the US] should possess particular [weapons] systems.”)

In any event, everyone in Washington knows that Mr. Akiba and Mr. Kanai expressed precisely such a view, even if it would be inconvenient, not to mention career-ending, for them to admit it now...

Looking at the original Japanese letter to Secretary Clinton, it seems that the source of the confusion is an imprecise translation. On the whole, the translation provided by the Citizens’ Nuclear Information Center is fluid and correct. However, the translation of the face-saving pair of sentences beginning "Hence, although the discussions...” and ending ”...which are in favor of nuclear disarmament" contain what seem to be two significant errors in translation.

First, in the translated version, "the Japanese Government" is the subject of the subordinate clause in the first sentence. In the Japanese original, the subordinate clause has no subject due to the use of "the government of our country as itself" (Wagakuni seifu to shite) as a subordinate clause topic identifier and the sly replacement of the normal robust construction nobeta koto ga nai with the more diffuse nobeta koto wa nai. Under normal circumstance switching “wa” for “ga” would be a style matter, an affectation. Here, however, the writer seems to be intentionally choosing the smudgy nobeta koto wa nai construction. He/She is very careful to switch back to the robust "ga" form in the next sentence (“nobeta koto ga atta") when talking about the reality that Japanese diplomats did indeed make such requests.

Second, the words moshi and kari ni are translated “if, hypothetically…” I am not sure to what extent the most popular online dictionary’s translation of the phrase “moshi kari ni” as “hypothetically” has affected the word choice here. As there is a comma in between moshi and kari ni these are separate clauses, the moshi indicating the introducation of a hypothetical and kari ni indicating the idea of “temporarily” or “tentatively” -- this rather than a repetition of the hypothetical established by moshi.

Introducing these ideas, the sentences read something more like:

"Hence, although the discussions were held under the previous Cabinet, it is my understanding that, in the course of exchanges between our countries, including the deliberations of the above mentioned Commission, it was never the case that views were expressed as being those of our government concerning whether or not your government should possess particular [weapons] systems such as TLAM/N and RNEP. If, in some tentative way such a view was expressed, it would clearly be at variance with my views, which are in favor of nuclear disarmament."

I think that this clears up the problem of attribution Dr. Lewis identifies.

I of course invite readers to show me I am talking out of my hat.

Later - The FAS Strategic Security blog has more on the Okada letters.

Later still - Fixed the broken link to the original MOFA document.