In Japan’s State Secrets Law, Shades of Red, White and Blue

There used to be a saying among Washington bureaucrats: A great way to leak information is to pass it along to Tokyo. Once hailed as a "spy’s paradise" because of its weak state secrecy laws, Japan is trying to reform its reputation as an information sieve with a hotly contested new measure that brings Japanese law more in line with U.S. national security policy — perhaps with troubling implications.

The new law, which passed Japan’s upper house Friday, will give agency heads discretionary power to classify 23 types of information in four categories — defense, diplomacy, counter-terrorism, and counter-intelligence — and stiffens penalties for leaking state secrets, even in cases of journalists exposing wrongdoing. Prime Minister Shinzo Abe has insisted that the law is necessary if Japan is to maintain effective diplomatic partnerships with the United States and other allies.

Washington, for its part, has long supported stronger secrecy laws in Japan, if only to make it easier for the two nations to share information. In 2011, when the NSA asked Japan’s government to help wiretap fiber-optic cables to gather information about Beijing, Japan refused the request, citing legal restrictions and a lack of infrastructure. "It’s clear that the United States has for a long time been unimpressed with Japan’s capability to protect classified information," Richard Samuels, the director of MIT’s Center for International Studies, told Foreign Policy.

An embarrassing string of leaks in recent years has raised concerns over Japan’s ability to protect state secrets. In 2007, its Defense Ministry announced that 38 people had leaked information on the U.S.-developed Aegis naval weapons system, two of whom were Japanese military officers. In 2008, Japan’s chief cabinet secretary revealed that an intelligence official was under investigation for providing foreign policy information to the Russian embassy in Tokyo. And in 2010, 114 documents related to counter-terrorism operations — including the identities of informants — were leaked online; Tokyo police never determined the source of the leaks.

Since 2007, the United States and Japan have entered into two agreements aimed at improving security measures for shared secrets. Together, they provide for the protection of U.S. information designated "confidential," "secret," and "top secret" but don’t address intelligence secrets deemed even more sensitive than those. Steven Aftergood, the director of the Project on Government Secrecy told FP that the omission could have been a policy decision based on Japan’s lack of legal safeguards for highly sensitive information. The new state secrets law could open up the possibility of sharing more sensitive intelligence information than what is accomplished through the two existing agreements.

The measure is part of a larger effort by Prime Minister Shinzo Abe to move away from Japan’s pacifist past and establish a stronger military posture that is congenial to, or in line with U.S. preferences, according to Samuels. Among other initiatives, Abe plans to create Japan’s version of the U.S. National Security Council, the coordinating body of American foreign policy, and is pushing to reinterpret Japan’s constitution to expand its military’s limited self-defense role — giving it the authority to aid the United States and other allies, if they’re attacked.

The state secrets law similarly seems to resemble U.S. policy. American officials and agency heads enjoy wide leeway when it comes to what information can be withheld from the public. Classification of sensitive information is based on executive order, rather than on law, meaning that the executive branch can more or less classify anything officials feel is justified by national security needs. While the Freedom of Information Act allows for the disclosure of most government records, matters of national security are exempt from FOIA disclosure. The Obama administration, moreover, has taken a hard line on leaks, attempting to prosecute an unprecedented number of suspected leakers.

Under Japan’s new law, penalties for leaking state secrets are comparable to those mandated by U.S. law and are more severe than those imposed by other U.S. allies like Britain, Germany, and France.

Despite the similarities, policy changes under Abe, though derided by many as authoritarian, aren’t new — and they aren’t exclusively at the behest of the United States, either. Samuels argues that Abe’s administration has been moving away from a strict interpretation of its pacifist constitution and easing restraints on its military for decades. "China’s rise and the U.S.’s decline has accelerated this," he said, "but it is just a continuation of a trend." Lawrence Repeta, a law professor at Meiji University in Tokyo, echoed that point, telling FP that Abe’s party has been pushing for tighter secrecy laws since the 1980s. And while the secrecy law isn’t an explicit attempt to "harmonize" with U.S. policy, he said, Japan’s frame of reference nevertheless remains the American model: "A vast information bureaucracy … with severe criminal punishment for the leakers who get caught."

The law’s treatment of journalists, however, far exceeds what would be deemed acceptable in the United States, where freedom of the press is constitutionally protected. Under the measure, state employees who share classified information with journalists face up to 10 years in prison, and reporters can be prosecuted for encouraging the leaking of information, with no protection for whistleblowers whose leaks serve the public good. Repeta argues that the law would discourage state employees from disclosing all manner of information to reporters, causing sources to dry up. "A news reporter who is aggressive in reporting a story, and who comes into contact with a designated secret is potentially subject to a five year prison term," he said. "It will potentially be much more difficult for reporters to investigate areas related to national security."

As it is, Japanese law isn’t particularly friendly towards journalists. Its 2001 public records law includes such broad disclosure exemptions that it has been called the "information non-disclosure act." Repeta notes, for example, that between 2006 and 2011, the Defense Ministry destroyed 35,000 classified documents rather than release them once their secrecy designation expired. Secrets designated under the proposed measure would also be exempt from the public records law.

But critics argue that virtually any matter of national importance could be deemed a state secret — including those with serious public health and safety implications, such as the government’s handling of disasters like Fukushima. An independent investigation of the Fukushima disaster, for example, found that the catastrophe was in part the result of government lack of oversight and collusion w
ith the plant’s operator, the Tokyo Electric Power Co. That’s something the government has never formally owned up to. Journalists, of course, were pivotal in exposing the government’s role in the disaster. As a result, the secrecy law has touched a raw nerve in Japanese society.

The law is disliked by most opposition parties and drew street protests when it was being considered in the lower house late last month. It passed the upper house amid fierce opposition. As a result, the approval rating for Abe’s cabinet has dropped below 50 percent for the first time in his term. Journalists, civil society groups, and human rights watchdogs have all decried the law as an erosion of democracy.

Despite this apparent conflict with America’s democratic commitment to press freedom, US officials are apparently A-OK with the law. "From Washington’s perspective, [the law] seems to be a development that will allow allies to work together more closely," Samuels said. Whether the trade-off is worth it, is up for debate. Denny Roy, a security expert with the East West Center, put it this way: "Would you rather have Japan as a friendly dictator able to go to war with you — even if it doesn’t live up to your democratic values — or would you rather have a pacifistic Japan that has limitations in terms of military ability?

This article was updated 12/06/13 .