The Complex

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 with 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 .


The Complex

Team Obama Changes Course, Appears to Accept China Air Defense Zone

Top Obama administration and Pentagon officials signaled a willingness to temporarily accept China's new, controversial air defense identification zone on Wednesday. Those officials expressed disapproval for the way in which the Asian power has flexed its muscles, and cautioned China not to implement the zone. But they also carved out wiggle room in which the United States and China ultimately could find common ground on the issue, indicating that they may be willing to live with the zone for now -- as long as China backs off its demand that all aircraft traveling through it check in first.

"It wasn't the declaration of the ADIZ that actually was destabilizing," said Army Gen. Martin Dempsey, America's highest-ranking military officer. "It was their assertion that they would cause all aircraft entering the ADIZ to report regardless of whether they were intending to enter into the sovereign airspace of China. And that is destabilizing."

That's a change from just a few days ago, when U.S. Vice President Joe Biden demanded that China take back its declaration of the zone. And it's another demonstration that China's recent decisions have forced the United States to tread carefully. On Wednesday, Biden met with Chinese President Xi Jinping in Beijing for more than five hours, according to a senior administration official. In brief public remarks midway through the marathon session, Biden didn't mention the air defense zone at all.

Japan, a vital American ally, has expressed fury over the Chinese move and ordered its commercial airliners not to provide information about their flight paths to the Chinese military. By contrast, the United States made a point of flying a pair of B-52s through it last week, but seems to have accepted that China will keep the zone in place indefinitely. U.S. officials have shifted their focus instead on preventing a potential military clash between Japan and China.

In meetings in Beijing on Wednesday, Biden laid out the U.S. position in detail, reiterating that the United States does not recognize the new zone and has deep concerns about it, a senior administration official said. Biden told Xi that the United States wants China to take steps to lower tensions in the region, avoid enforcement actions that could lead to crisis, and to establish communication with Japan and other countries in the region to avoid altercations, the administration official added. Privately, Biden did not call for the air defense identification zone it to be rolled back -- something administration officials had done Monday while Biden was visiting Japan. Instead, the vice president asked the Chinese leader to be careful about how his country operated the zone going forward.

"He indicated to Xi that we are looking to China to take steps as we move forward to lower tensions, to avoid enforcement actions that could lead to crisis, and to establish channels of communication with Japan, but also with their other neighbors to avoid the risk of mistake, miscalculation, accident or escalation," the official told reporters in Beijing.

Marie Harf, a State Department spokeswoman, said Wednesday that the United States does not recognize the zone and China "should not implement it." Administration officials said Biden's message reflects the White House's growing concerns that China's establishment of the air defense identification zone risks sparking a regional crisis. In the long term, the officials said, the United States wants China to eliminate the air defense entirely. With China already patrolling the zone with fighter jets, the officials said the White House was focused on preventing the growing tensions between Japan and China from getting worse. That includes temporary measures like pushing the two countries to establish a hotline designed to ensure that a miscommunication doesn't lead a clash between the two countries.

At the Pentagon, Defense Secretary Chuck Hagel and Dempsey, chairman of the Joint Chiefs, took a measured approach. They said the major issue isn't the creation of the zone itself, but the way China has handled it and the country's demand that aircraft entering the zone share their flight plans.

"It's not that the ADIZ itself is new or unique," Hagel said. "Our biggest concern is how it was done so unilaterally and so immediately without any consultation, or international consultation. That's not a wise course of action to take for any country."

Dempsey expanded on that, saying that the ADIZ the Chinese established isn't their sovereign airspace, but international airspace adjacent to it. The international norm for such an area, Dempsey said, is for aircraft to check in with the country declaring an ADIZ only if it intends to enter sovereign airspace afterward. Many other countries, including the United States, also have ADIZ areas established.

The remarks open the possibility that if China backs off its demand that all aircraft in the ADIZ share their flight plans, the United States could lighten up on China establishing a zone. That's unlikely to please Japan, however.

Hagel indirectly addressed that Wednesday. Despite calling China's rollout of the air-defense zone unwise, he also stressed the United States' growing relationship with the Chinese military. He advocated for the preservation of security and free shipping lanes for all players in the region, and sent a message to other U.S. allies in the region -- including Japan.

"It's important for China, Japan, South Korea, all the nations in this area to stay calm and responsible," he said. "These are combustible issues."