Since They are not Secrets, Why Doesn't Ma Declassify Them?

Since They are not Secrets, Why Doesn't Ma Declassify Them?
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
June 4, 2008

Ma Ying-jeou has decided not to declassify Chen Shui-bian's "top secret" State Confidential Expenses case files. He has instead authorized their use by justice system officials. His decision may allow the investigation and prosecution of the scandal to go forward, but the sacrificial victim is the cause of justice.

Chen Shui-bian's classification of incriminating evidence as "top secret," to be "sealed in perpetuity," was fundamentally illegal. We will return to this point later. To begin with, government secrecy is fundamentally at odds with the cause of justice. Even assuming we are dealing with bona fide state secrets, does that automatically mean they may not be made public? Other values also require protection. If conflicts arise, is maintaining secrecy really our only option? Take for example the State Special Expenses scandal. If the president can classify incriminating evidence as "top secret," the people have no way of knowing what crimes the president may have committed. It is highly doubtful whether Ma's decision accords with the overarching principles of constitutionalism and the rule of law.

In 1971, the New York Times published a classified U.S. Defense Department report on the Vietnam War, known as the "Pentagon Papers." The U.S. government filed suit against the Times. It demanded a restraining order prohibiting its publication, on the grounds that it "leaked state secrets and endangered national security." The U.S. Supreme Court ruled against the government, on the grounds that the government may not use such methods to cover up the truth. At the time the United States was mired in the Vietnam War. The Defense Department policy paper on the war was undeniably a "state secret." Nevertheless the media felt the people had a right to know, and the courts agreed. As we can see, even wartime secrets, and by extension controversial issues of national security, must yield to higher demands for justice and the people's right to know. Prosecutors have already investigated Chen Shui-bian's so-called "diplomatic secrets" and exposed them as pure fiction. Chen is already guilty of a crime. Yet the public is being denied its right to know the inside story. Clearly this is not the correct decision.

Chen Shui-bian's classification of incriminating evidence as "top secret," to be "sealed in perpetuity," is nothing more than deceit. The public is perfectly aware it is a charade, but they are denied access to the whole truth and the larger picture. This seriously undermines the cause of justice. The public is well aware that among the incriminating evidence Chen Shui-bian classified as "top secret" is the so-called "Southern Front Project." But according to information released by President Ma after taking office, the documents Chen Shui-bian has turned over to the Ma administration do not include any "Southern Front Project." No file with that name can be found. Had Chen Shui-bian classified documents in accordance with the State Secrets Protection Act, then turned them over to prosecutors or the court, records would show a document number and a chain of custody. But no record of any such document transfers exists. In fact, no record of any such document exist. Do these so-called "top secret documents" even exist? Were they classified in accordance with the law? Clearly everyone has serious doubts. If Chen Shui-bian failed to follow even the most basic procedures in handling these documents, where is the secrecy he speaks of? Obviously no secret documents exist. Therefore how can President Ma allow the justice system to make use of them? The entire affair is a transparent hoax concocted by Chen Shui-bian. What reason can Ma Ying-jeou have for not coming right out and exposing Chen Shui-bian's hoax for what it is?

Even if some "Southern Front Project" actually existed, it is doubtful Chen has the right to withhold knowledge of it from the public on grounds of "national security." The State Secrets Protection Act expressly states that government officials may not conceal incriminating evidence by making it secret. This is the letter and spirit of the law. Chen Shui-bian exhausted every means at his disposal to prevent the State Confidential Expenses scandal from going to trial. After he surrendered the evidence, he suddenly classified it as secret and demanded that the court return it. His intent to conceal evidence of criminal wrongdoing is clear for all to see. His act of classifying them as secret is itself illegal, hence invalid. Therefore even assuming Chen actually classified some documents, the Ma administration ought to declassify them. The Ma administration must do the right thing. It must obey the law. No documents can be found. No document numbers can be found. They cannot be found because they do not exist. Thefore what precisely are these alleged "state secrets" that Chen Shui-bian, Ma Ying-jeou, and the [院檢所] keep referring to?

The "Southern Front Project" is not a state secret. It was not legally classified as such. President Ma, by treating it as if it were, is effectively abetting Chen Shui-bian's crime. Is the one billion NT Papua New Guinea (PNG) scandal a "diplomatic secret?" Taiwan attempted to establish diplomatic relations by buying foreign politicians. Did the exposure of this scandal harm the nation's interests? Of course it did. But if we fail to expose such scandals, how will the public ever learn the truth? How will we ever punish corruption? By the same token, the State Confidential Expenses scandal is a test of our constitution and the rule of law. It is a test of the government's legitimacy, its legal mandate. What excuse does Ma have to stop people from understanding the situation and learning the truth?

The government has an obligation to pursue justice in accordance with the constitution and the nation's laws. The essence of democratic elections is right of the people to replace the nation's ruling authorities. If the "Southern Front Project" and other "top secret" documents are mere fiction, yet President Ma helps Chen maintain the pretense that they are real by refusing to declassify them, he is not merely engaging in moral posturing, he is trampling over justice.

既無機密，馬總統緣何「不解密」？
【聯合報╱社論】
2008.06.04 02:57 am

馬英九總統決定：陳水扁所「核定」的國務機要費弊案的「絕對機密」罪證不解密，但授權司法機關使用。這個做法，弊案的偵審或可進行，但社會正義卻被犧牲了。

陳水扁將弊案的罪證「核定」為「絕對機密」且稱「永久保密」，本來就不合法；此點稍後再作申論。先談「國家機密」和「社會正義」價值衝突的問題；倘若真有國家機密存在，是否即為絕對不可公開？若有其他價值亦必須保護，而產生價值衝突時，難道只能選擇保密一途？例如國務機要費弊案，若總統以國家機密掩飾犯罪，人民即無法知悉總統的罪行；這樣的選擇是否符合民主法治的法理以及憲法的立國原則，恐怕大有商榷餘地。

一九七一年，美國紐約時報刊登了國防部關於越戰的機密報告，美國政府告上法院，以「洩漏國家機密、危害國家安全」為由要求禁止刊登，但美國最高法院判決政府敗訴，認為政府不能用這種手段達到掩蓋真相的目的。當時美國正深陷越戰，國防部探討戰爭政策的文件，應當不折不扣就是「國家機密」；然而，不僅媒體認為人民有權知悉真相，法院也表支持。由此可見，連戰爭機密這樣的課題，以及引伸的國家安全爭議，在更高層次的司法正義及人民的「知之權利」之前亦應退讓；那麼，一項由陳水扁自導自演，又經檢察官調查純屬子虛的所謂「外交機密」，既已涉及犯罪，國人竟然無權知悉內情，兩相比較，這當然絕非正確的選擇！

何況，陳水扁「核定」的所謂「絕對機密、永久保密」根本就是騙局；國人皆知其詐偽，卻無權知悉此一詐偽的真相和全貌，此種結果不啻嚴重傷害了政治正義。眾所皆知，在陳水扁就國務機要費弊案罪證核定的「機密」中，有所謂「南線專案」；但據馬總統上任後發布的消息指出，陳水扁移交清單中並無該「南線專案」，連檔案名稱皆無。倘若陳水扁確曾依國家機密保護法而核定該件機密，則即使檔案內容已交檢察官或法院，但移交清冊中至少應有一個文號，並加註目前置於法院；如今移交清冊連文號名稱皆無，則所謂機密也者，究竟是否存在？是否確實依法完成核定？顯皆大有疑問。倘若根本未完成法定程序，則何來機密可言？既無機密，馬總統又如何「同意」院檢使用？且又「同意」使用什麼「機密」？這不但是陳水扁炮製的騙局，馬政府更有何理由不直接拆穿陳水扁的騙局？

退一步說，即使真有南線專案的話，如同前述，是否即可以國家安全為由，不讓社會大眾知悉，本即大有疑問；而國家機密保護法明文規定，不得以「隱匿違法」為核定機密的目的，正是這種精神的體現。陳水扁用盡各方法阻撓國務機要費弊案的審理，在交出所有罪證之後，又忽而宣稱已「補核定」為機密、要求法院返還云云；其以隱匿罪證為目的至為明顯，則其核定就是違法，當然無效。因而，縱使有核定的形式，馬政府亦應加以解除，方為依法行政的正道。何況，如今卻連文號都沒有，則陳水扁、馬英九及院檢所稱的「機密」，究竟是什麼碗糕？

涉案的「南線專案」既非依法核定的機密，但馬總統如今卻以「機密」視之，恐已形同包庇陳水扁犯罪。試問，巴紐十億元醜聞案不是外交「機密」嗎？揭發之後，台灣企圖以金錢收買外國政治人物，達到建交目的的作為全部曝光，這難道沒有傷害國家利益嗎？但事件倘不曝光，國人如何能知真相，又如何能懲治貪腐？同理，國務機要費弊案的總統貪汙犯罪，這是民主憲政法治國理念的大考驗，也是統治正當性的大課題，有什麼理由可以阻擋人民知悉內情真相？

依憲、依法追求社會正義，乃是政府的憲法義務、政治道德，亦是民主選舉更換政權的精義所在。如果根本沒有「南線專案」這個「機密」，馬總統卻宣稱「不解密」，這不僅是鄉愿，簡直是踐踏正義！