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Tuesday, May 24, 2005

THE ZEIT GIST

Here comes the fear

Antiterrorist law creates legal conundrums for foreign residents


Japan is following other developed countries in drafting antiterrorism laws.

However, Japan's proposals and probable implementation may present profound difficulties for its foreign communities.

The "Action Plan for Pre-empting of Terrorism" ("Tero no Mizen Boshi ni Kansuru Kodo Kikaku," available at www.kantei.go.jp/jp/singi/sosikihanzai/kettei/041210kettei.pdf ) was issued in December 2004 and has already received approval by the Prime Minister's Cabinet.

Its proposals will be submitted to the Diet piecemeal over the next year or two.

Its very title is indicative. Though the Action Plan addresses "terrorism" in general, its drafter is the "Bureau for Promoting Policy Against International Terrorism and International Organized Crime," as if terrorism is international and imported, something to man the barricades against.

The fifth paragraph of its introduction reinforces this tone:

"(T)he menace of international terrorism toward our country remains as severe as ever, and cannot on any account ever be underestimated. Moreover, as international terrorism is changing every single moment, our country's policies to pre-empt terrorism must be unremittingly revised to accommodate these changes."

Likewise, the Action Plan depicts "kokumin" (i.e. nationals, not "juumin," residents, which would have included registered taxpaying foreigners) getting protected by "our country" ("wagakuni" -- the word "Japan" does not appear).

This could be merely a matter of semantics and policywriting style, but it does little to allay one's worries about how Japan's international residents will be treated.

Citing British, French, and American post-9/11 security measures, the plan's 19 pages outline how to:
* keep terrorists out (through screening at the border, advance notice of vessel passenger and crew lists, sharing of international police records, and tracking lost and stolen passports);
* find terrorists within (by tracking foreigners at hotels, unifying interministerial databases, and deputizing the public);
* control their means of destruction (by securing or banning dangerous chemicals and biological agents, freezing or confiscating financial accounts, and monitoring underground activities), and;
* increase public security (by installing sky marshals on airplanes, relaxing civil liberties at transportation arteries and major public events, further securing public facilities, and keeping airport security at the highest state of alert -- "Phase E" -- permanently).

Many recommendations are sensible: Stronger cockpit doors, stricter controls over offensive weapons in airports, more sophisticated measures against money laundering, increased security around nuclear power plants, and tightened border controls.

However, some proposals border on the paranoid. On the drawing board are airport X-ray machines customized for shoes, more security around water sources and travel arteries (which may explain the presence of "under surveillance" signs at remote river beds and mountain passes), security marshals on trains, riot police on standby in busy airports, and police cars guarding railroad tracks.

Moreover, professionals such as bankers, financial advisers, money handlers, even goldsmiths and jewelers, will be legally bound to report any "suspicious dealings" by their clients. Also deputized will be accountants, realtors, insurers, notary publics, even lawyers. Bang goes client confidentiality.

Although the plan only occasionally mentions "foreigners" in specific, some proposals will clearly affect them in application.

For example, a fingerprinting system for foreign entrants will be reinstated -- despite the decades spent by activists getting it abolished in 1998. When contacted, the International Terrorism Bureau stated they will probably not require fingerprints from re-entrants or visa renewers, nor need periodical print updates.

But that remains at the "probably" level, unreassuringly, as exact plans are still under consideration.

Preternaturally ambitious is the proposal to control all dangerous chemicals. Since one can make explosives with everyday materials, the police will have their work cut out keeping track of it all.

This is why administrative shortcuts are likely to be made. You might not be able to keep tabs on everybody who, say, buys hydrogen peroxide. But it's much easier to do so if the buyer is foreign. This is because foreigners can be kept track of -- through Japan's only pervasive ID system, "gaijin cards" (created in 1952 precisely to register and monitor all "foreigners" who stayed on after WWII). Hence the huge potential for "gaijin targeting."

It's already happening. As the Community Page reported on March 8, the National Police Agency is misinterpreting recent hotel law revisions to target foreign guests.

Local bureaus are asking hotels to demand passport numbers and photocopies for reporting to police. Even though the actual legal revision ("Shourei 4018") asks that this be done for foreign tourists only, i.e. unregistered foreigners without addresses in Japan.

The Action Plan also includes this misinterpretation -- expressly applied to "foreign lodgers" ("gaikokujin shukuhaku kyaku"), not tourists -- in a bill to be submitted to the Diet next year. When questioned, the Bureau indicated that policy will follow the Shourei's guidelines, so take a few trust pills.

Not to be outdone, however, two ministries (Health, Labour and Welfare, and Foreign Affairs) announced the same legal misinterpretation to foreign governments on March 30. Eagle-eyed, Community Page reading U.S. Embassy staff contacted them for clarification, and on April 27 related the correct information to U.S. citizens (the MOFA Web site, regardless, remains erroneous).

MHLW's justification for this legal twist? For "effective prevention of infectious diseases and terrorism."

There are clear triangulations for how antiterrorism measures will be enforced, with a trend toward racial profiling and foreigner targeting.

Thanks to the permanent high-alert status in airports, this writer (a Japanese citizen), has on several occasions been stopped without cause in nonsecurity zones for random ID checks, even though for citizens this is illegal.

Of course, the Action Plan proposes to remove those legal protections to allow smoother instant checkpointing.

Thanks to all the money-laundering alerts, banks have been screening foreigners for receiving wired money in amounts as little as 5,000 yen, or for changing $400 into yen (even though, legally, alarms are supposed to sound at 2 million yen and 5 million yen respectively).

Doubtless that will now be amended accordingly to reflect the "ever-changing" international situation.

And of course don't forget the granddaddy of all "gaijin targeting" proposals: Tokyo Governor Ishihara's April 9, 2000 speech asking the Nerima Ground Self Defense Forces to round up "bad" (later clarified as "illegal") foreigners, just in case they unprecedentedly riot during a natural disaster.

At no time then, or since, has there been any clarification to make public policy more sophisticated toward the international community -- separating the "criminal" from the "normally law-abiding" (not to mention healthy) foreigner.

Moreover, antiterrorist laws can become politically motivated, violating domestic legal protections (most notably civil liberties) in implementation.

Furthermore, any law specifically aiming for pre-emption, given the impossibility of covering all possible scenarios, easily leads to a slippery slope of policy overreach.

The Action Plan is no exception. Its very rubric is, among other things, unsophisticatedly separating the world into "Japanese" and "gaijin."

If people don't soon realize that targeting and racial profiling are hardly means for efficacious public policy, violations of human rights are well-nigh inevitable.

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