The Taipei District Prosecutors’ Office on Feb. 10 decided not to indict former Mainland Affairs Council (MAC) deputy minister Chang Hsien-yao (張顯耀) on charges of disclosing classified information, saying that the information “disclosed” by Chang was “not classified.” Following the decision, former Mainland Affairs Council minister Wang Yu-chi (王郁琦), who forced Chang to resign, stepped down.
Accusations of “disclosing classified information” is one of the main political tools that the administration of President Ma Ying-jeou (馬英九) has used to settle scores with officials of the previous Democratic Progressive Party (DPP) administration. Many have been investigated for insignificant invitations to dinners, notes, speeches, bills and internal reports, and those investigated often say they will never touch politics again. The Ma administration has successfully eliminated many of the talented officials and bureaucrats that the DPP trained during its eight years in power.
Still, if you play with fire, you are likely to get burned, and the Chang affair is one example of that. Furthermore, if the one who plays with fire is afraid of getting burned, the officials and aides in the sitting administration will start to shred official documents.
The reason that the “disclosing classified information” accusation has become a tool for settling political scores is that the current domestic legal system for protecting classified information, apart from not being properly thought through, provides insufficient deterrence and punishment for Communist spies and leaves room for political manipulation.
Wang believed that Chang was disclosing classified information, but prosecutors did not. One of the reasons for this was that the information disclosed by Chang had not passed through the procedures prescribed by the Classified National Security Information Protection Act (國家機密保護法) and been labeled as “Absolutely confidential,” “Extremely confidential” or “Confidential” by Wang, nor had an application for such classification been filed. In other words, Chang was indeed talkative, and he said some things that Wang thought should have been kept under the lid. When the two were still on friendly terms with each other, Wang could ignore it, but once their relationship turned sour, the information was classified as confidential and became sufficient reason to force Chang to step down.
Staff at the national security agencies — the National Security Council, the National Security Bureau, the Ministry of National Defense, the Ministry of Economic Affairs and the Mainland Affairs Council — are in contact with classified documents almost on a daily basis, and they all routinely mark documents as classified. The problem is that the more relaxed the process for approving classification, the more classified documents there will be. Which in its turn means that it will be increasingly difficult to protect all that classified information.
From an implementation perspective, classification of information should be cautiously applied, and it should be done by the official charged with that responsibility alone. If Chang really did go beyond the gray area of what could be talked about, and disclosed classified information that should have been kept under the lid, Wang is also guilty of oversight, since he did not live up to his responsibility of protecting classified information.
The value of information lies in its use. If it is not used, it is just cold data, dead figures on pieces of paper. Classified information must be protected, but, in addition, its use must be regulated. If it is not, external communications and negotiations would involve disclosure of such information, and that could be later used as a weapon by political enemies.
In addition, the main laws regulating Taiwan’s system for protecting national security are the Classified National Security Information Protection Act, the Criminal Code and the Criminal Code of the Armed Forces (陸海空軍刑法). The problem — and it is quite serious — is that since these laws were all established at different points in time, they are competing with each other and there is a lack of integration between them. The priority of protection, however, remains in the 1950s, and revealing the bottom line for negotiations with China — classified information apart from national defense secrets — may well be considered just as damaging as revealing weapons capabilities.
Furthermore, inconsistent terminology creates application problems. For example, terminology such as “foreign state” and “the enemy” are a crucial part of the definition of treason in the Criminal Code, and this is often used as an excuse to get people accused of spying for China off the hook. In addition, part of the text requires amendments and additions due to changes in the international security situation.
For example, classified information could be disclosed to a terrorist organization, and this is not currently regulated by law. All these examples make it clear that the national system for protecting classified information is insufficient, contradictory and outdated, but when DPP legislators last year proposed minor changes to this legislation, the Chinese Nationalist Party (KMT) insisted on blocking the proposal.
We are all fed up with the factional struggles within the pan-blue camp. Political score settling is destroying our political culture, as history will show. However, the problems in the legal system for the protection of national security and its implementation is a problem that our politicians must not ignore.
York Chen is an assistant professor in the Graduate Institute of International Affairs and Strategic Studies at Tamkang University.
Translated by Perry Svensson
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