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    (2)         On whether the Information Gathering Activities violate the plaintiffs’ freedom of religion under the Constitution (Article 20, Clause 1)

    A)          In light of the fact that the essence of the freedom of religion guaranteed under Article 20, Clause 1 of the Constitution is to preclude coercion by the State against sentiments and actions of believing in the existence of supernatural or superhuman beings and worshipping them in awe, it can be understood that prejudicial treatment in a legal or practical sense, or the existence of restrictive elements such as coercion, impediments or limitations, must be present in order to be able to say that one’s freedom of religion was violated by the State. The Information Gathering Activities in the manner of above (1)iii were ultimately voluntary information gathering activities, not in themselves subjecting individuals to prejudicial treatment by reason of religious convictions, or imposing coercion, impediments or limitations in a religious way.

    On this point, the plaintiffs allege to the effect that as the names of the plaintiffs’ membership organisations and mosque of attendance etc. were particularised on the Résumé-like Pages, and as the objective substance of the Information Gathering Activities was to conjecture and identify individuals’ faith, it thereby violated the freedom of religion. However, setting aside the fact that the State and public entities are banned from forcing individuals to profess their faith or demand proof of their faith, such as which religious organisation they are affiliated with, the information-gathering activities conducted to assess the plaintiffs’ comings and goings at mosques merely involved agents going to the mosques themselves and recording the plaintiffs’ access from plainly observable external acts. In light of this mode taken by the Information Gathering Activities, it in itself did not possess an effect of coercion etc. against religion, as explained earlier. Therefore, it cannot be said that such activities come under the prohibition in relation to religious liberties. As a premise of the above allegation, the plaintiffs argue that the very attempt of State apparatuses to covertly conjecture individuals’ faith is precluded in relation to the freedom of religion, but as explained below, the Information Gathering Activities were not conducted with the aim to conjecture individuals’ faith. Therefore, it must be said that the plaintiffs’ argument is unfounded.

    The plaintiffs further allege that the Information Gathering Activities run the risk of labeling Islam as a religion that is not tolerated by society, thereby greatly prejudicing those who practice it. It is true that some of the plaintiffs, because of the information leak, were forced to resign from their occupation, or suffered economic loss by reasons such as a dramatic drop in sales at the stores they manage (6, 9, 10, 13 and 16 of Exhibit A-34). However, as these disadvantages were not due to the Information Gathering Activities themselves but the information in question leaking through the Incident, violations or restrictions on religious liberties by the Information Gathering Activities cannot be recognised based on the above disadvantages.

    The plaintiffs further argue that it is understandable to hesitate from convening at the religious institutions in question under the circumstances of complete surveillance by the police, and that in reality, as seen in documents created by the police (51 of Exhibit A-1), the realisation that they were surveillance targets in the security measures etc. related to the Summit, which was implemented as a part of the surveillance of religious institutions, caused many Muslims to decline from attending mosques, with the effect of suppressing the prayers at the end of Ramadan, an important religious duty in Islam.

    However, the above police document indicated by the plaintiffs (51 of Exhibit A-1) merely reports that worshippers during the 2008 Ramadan period increased drastically in comparison to the previous year, and that the cause may be attributed to Muslims in Japan, who had pulled back because of increased security in Tokyo incidental to the series of security measures related to the Hokkaido Toya Lake Summit, newly participating in religious services, in relief that no acts of terrorism in the name of Islam occurred in Japan during the Summit period. It does not note that worshippers during the 2007 Ramadan period decreased due to police surveillance activities at religious institutions. Furthermore, the plaintiffs, at least in their arguments, have not articulated the degree to which they were aware of the Information Gathering Activities, particularly the Mosque Monitoring Activities. Moreover, their testimonies do not adequately support their cognisance of the Mosque Monitoring Activities. Plaintiffs 3, 5, 8, 11, 15 and 17 have testified that they saw police officers near the mosque they attended, with some testifying that they observed police officers entering the mosque. However, with the exception of one plaintiff who specified this as occurring after the Incident, the timing is unclear, and it cannot be determined whether they had noticed police officers before the Incident (24 (3), (5), (8), (11), (15), (17) of Exhibit A-3). While plaintiff 1 testifies of sensing on numerous occasions an atmosphere of surveillance at the S Institution, he has not testified to knowledge of the fact that the surveyors were police officers (34(1) of Exhibit A-1). What is more, none of these plaintiffs have testified of an actual chilling effect such as being effectively forced to cancel their participation in religious ceremonies at the mosques. As such, the plaintiffs’ above arguments cannot be accepted.

    B)           

    a)           The plaintiffs allege that the Metropolitan Police Department, by a comprehensive surveillance of mosques targeting important religious ceremonies such as Friday prayers and Ramadan, discouraged Muslims from religious activities and suppressed attendance at mosques, violating the purpose of the Religious Corporations Act Article 84, which reflects Article 20 of the Constitution, and amounting to oppression and interference against the freedom of religion. However, there are inadequate grounds to hold that the plaintiffs were discouraged from religious activities or that attendance at the mosques were suppressed due to the Mosque Monitoring Activities, as recognised in Part i above, so this argument by the plaintiffs cannot be accepted either.

    b)           It cannot be denied that the timing of some plaintiffs’ witnessing police officers around or inside the mosques they attend may have preceded the Incident. However, the plaintiffs are alleging to the effect that because the Metropolitan Police Department and the National Police Agency, under the name of counterterrorism, collected information exclusively on ordinary Muslims, the Information Gathering Activities were not a necessary gathering of information to prevent terrorist acts, instead amounting to oppression and interference against religious liberties. In view of the significance of the freedom of religion as one of the constitutionally guaranteed freedoms of spirit, the court will also rule on this point for confirmation.

    c)           The Data contains expressions at various points suggesting that it was created as a countermeasure against international terrorism, such as entry to the effect that the assessment of the current situation surrounding persons from Muslim countries and Muslims in Japan is promoted as “countermeasures against international terrorism (4 of Exhibit A-1), and according to the attached evidence as well as the pleadings in their entirety, the following facts can be found in relation to international terrorism.

                                                                                                              i.                In general, ‘terrorism’ refers to acts such as the killing and harming of humans with the aim to coerce states etc. to accept etc. the specific cause or claim that forms its basis, or to intimidate etc. society (Exhibit B-3), and as of 31 July 2012, 49 organisations including so-called radical Islamic groups such as Al Qaeda, Hezbollah, Jemaah Islamiyah, and Lashkar-e Taiba, were designated by the United States government as foreign terrorist organisations that threaten the security of the American people or American national security (defence, foreign relations or economic interests) (1 and 2 of Exhibit B-38, and the totality of the pleadings).

                                                                                                            ii.                The following incidents of international terrorism had occurred before November 2008, when the Information Gathering Activities took place, just to raise some major recent examples.   

    (i) On 11 September 2001, simultaneous multiple terrorist attacks took place when 4 passenger aircrafts for US domestic flights were hijacked by 19 young Arab men acting under the orders of radical Islamists, of which 2 crashed into the World Trade Center buildings in New York, USA and 1 into the Department of Defence headquarters in Washington DC, killing about 300 individuals including 24 Japanese nationals and wounding many, leading to the arrest of senior Al Qaeda members. Some of the perpetrators had been residing in the United States for over a year amongst the ordinary public.

    (ii) On 22 December 2001, a British national was apprehended on board an American Airlines flight (197 passengers and crew) from Paris to Miami, found in an attempt to detonate a bomb set inside a shoe. He was a convert to Islam born in London to a British mother and a Jamaican father, and had attended a London mosque in after converting. It was found that suspected perpetrators of the September 11thattacks had been attending the same mosque.

    (iii) On 12 October 2002, simultaneous multiple terrorist attacks happened at a bar and disco in Bali, Indonesia, killing 202 including 2 Japanese nationals, and wounding more than 300, including 14 Japanese. Jemaah Islamiyah members were arrested and 11 more were searched for as named suspects. Those who were arrested made statements such as: “I assisted in the manufacturing of bombs in order to kill as many Americans as possible”.

    (iv) On 12 May 2003, successive explosive terrorist attacks were carried out at 3 foreign compounds in Riyadh, Saudi Arabia by 15 perpetrators with automobile explosives, killing 34 including the perpetrators and wounding 194 including 3 Japanese nationals. The Saudi authorities had just exposed an Al-Qaeda arsenal, seized large amounts of weaponry and issued warrants for 19 suspects including perpetrators of the terrorist plot, 3 of which died implementing the attack.

    (v) On 20 November 2003, successive explosive terrorist attacks occurred at the British Consulate General and British bank HSBC in Istanbul, Turkey, in the form of suicide bombings that involved setting explosives in the bed of a truck, killing 30 including the British Consulate General and wounding about 450, with Al Qaeda and like organisations issuing a statement to the effect that they were jointly responsible.

    (iv) On 11 March 2004, 10 dynamite explosions happened almost simultaneously in a terrorist attack on a commuter train in Madrid, Spain, killing 191 and wounding about 1900, the victims belonging to 14 different nationalities. 3 organisations issued statements to the effect of “this is in retaliation for your actions in Iraq and Afghanistan” etc., and 7 detonation devices as well as a tape of verses from the Qur’an recorded in Arabic were seized from the van thought to have been used by the perpetrators.

    (iiv) On 9 September 2004, an automobile bomb attempted to drive into the Australian Embassy in Jakarta, Indonesia, killing 12 including 1 perpetrator, and wounding more than 180. The same day, an Arabic statement in the name of the East Asian Jemaah Islamiyah was posted on an Islamic website: “Australia joined the invading forces in the war in Iraq. This attack is retaliation against Australia, which is the greatest enemy of God and Islam,” etc. It referred to the attack and demanded the withdrawal of Australian forces from Iraq, to the effect of: “More harm will be inflicted if the demand is not met. The automobile bombs will never cease”.

    (viii) On 7 July 2005, simultaneous multiple terrorist attacks (hereinafter referred to as the ‘UK Simultaneous Multiple Terrorist Attacks’) were carried out in 3 locations on the Underground in central London and a moving bus, by 4 suicide bombers of British nationality with hand made explosives stuffed in backpacks, killing 56 including the perpetrators and wounding about 700. Al Qaeda etc. issued statements, and a British account indicated that 2 of the perpetrators had possibly been in contact with Al Qaeda, and that the motive for the attack was hostility against unfair treatment toward typical Muslims. The threat of homegrown terrorists and the necessity of understanding British nationals radicalised to the point of carrying out a suicide bombing were cited as lessons to be learned from the incident. ‘Homegrown terrorist’ refers to an individual who had led an ordinary life in a non-Muslim developed nation but radicalises by one influence or another, and engages in an act of international terrorism in their country of residence or aimed at interests of a country targeted by radical Islamists, and is recently the focus of attention in many countries due to incidents such as this one.

     On 1 October 2005, successive terrorist attacks occurred at 3 restaurants in busy downtown etc. areas full of Western and other tourists in Bali, Indonesia, killing 23 including 3 perpetrators and 1 Japanese national, and wounding 146.

     On 11 July 2006, a series of multiple terrorist attacks were carried out by setting bombs on 7 crowded trains during rush hour in Mumbai, India, killing 186 and wounding 890. The Mumbai police announced that the Islamic terrorist organisation Lashkar-e Taiba, with the assistance of the Students Islamic Movement of India, was responsible.

     

    In addition to the above, terrorist attacks using explosives have been carried out by radical Islamists in Argentina, the Philippines, Russia, Morocco etc. Incidents of terrorist attacks using nuclear, biological and chemical substances (NBC terrorism) have taken place as well: in 2001, anthrax attacks happened in the United States; in 2002, an American member of Al Qaeda was found to have been plotting an attack on the United States using a ‘dirty bomb’ that spreads radioactive substances; in 2003, a radical Islamist group in London was found to have possessed substances related to the highly virulent ricin; and in February 2004, ricin was discovered in a Senate Office Building in Washington DC (Exhibits B-10, (1) and (2) of B-14, B-15, B-34-36, (1) and (2) of B-37, (1) and (2) of B-41).

                                                                                                          iii.                Japan is an ally of the United States, and carry many US related facilities that radical Islamists have made terrorist targets. (i) On 6 May 2004, Osama bin Laden’s audio statement on an Islamic website said, “The US military has promised handsome rewards to those who kill Mujahedeen. We too, offer the following return to those who kill Americans, allies, UN staff etc.”, and “500 grams of gold (roughly 700,000 yen) for allies like Japan and Italy”; (ii) On 1 October of the same year, an audio statement of (Al-Qaeda leader) Zawahiri on Al Jazeera said, “We must not silently wait to be invaded by military forces of the US, UK etc. We should wage resistance right away. The interests of the US, UK, Australia, France, Poland, Norway, Korea and Japan are everywhere. These countries are involved in the occupation of Afghanistan, Iraq and Chechnya, and support the existence of Israel’; (iii) On 22 April 2008, Zawahiri’s video statement on a Islamic website answered a question from the Associated Press on whether Japan is still an Al-Qaeda target in the following terms: “Japan insists it is cooperating with the West in their activities in Iraq, but are they not also participating in the military crusade against Muslims”, and “Japan has become an ally of the US, which has occupied and plundered our land; and which has attacked Japan with conventional and nuclear weapons” (Exhibits B-16, 36 and 39).

    Furthermore, in December 2003, the French national Lionel Dumont, an internationally wanted senior member of an Al-Qaeda related organisation, was arrested in Germany, which led to the revelation that he had illegally entered Japan with a counterfeit passport in July 2002 and was hiding in Niigata City. During his stay in Japan, he was known as a serious Frenchman who worked steadily and silently, but suspicions had arisen that he was fulfilling the role of an intermediary linking terrorist organisations in Europe and Southeast Asia, keeping in frequent touch with members of Islamic terrorist organisations headquartered in the UK and France, and visiting Malaysia, where there is a branch of the radical Islamist group Jemaah Islamiyah. It became clear that another member of a radical Islamic organisation had been temporarily staying in Japan by residing with Dumont, as well as the fact that he was a devout Muslim, never failing to pray five times a day and frequenting mosques at Niigata East Port and Isesaki city in Gunma prefecture. It was found that the account he opened under a false name at the Japan Post Bank had received a few dozen transfers of several thousand to one million yen, and he is suspected to have been raising finances for terrorism and procuring supporters during his time in Japan (Exhibits B-36, C-9).  

    What is more, in March 2007, it was confirmed that Khalid Sheikh Mohammed, a senior Al Qaeda official in US custody, made a statement that he had been involved in plots, among others, to destroy the American Embassy in Japan. He made a statement to the effect that he had pledged allegiance etc. to Osama bin Laden in order to carry out a Jihad, and served as operations commander to plot, prepare and execute the September 11th attacks, as well as military commander for worldwide operations, directly undertaking the administration and direction of the biological weaponry manufacturing department and management of the ‘dirty bomb’ operations in the US (Exhibit B-19, (1) and (2) of B-37).

                                                                                                           iv.                Not only do mosques have a religious function of providing for confessions and prayers at the core of Islamic religious activities, but they are also a place for teachings― of instruction on the meaning of the Qur’an, the central religious text, and theHadith― as well as a space of social interaction for Muslims to relax, eat, discourse and enforce communal bonds (from the pleadings in their entirety).

    At the same time, the existence of ‘home-grown terrorists’ has recently caught the attention of many countries as found above in ii (viii), indicating that exposure to radical ideas and recruitment etc. from radical Islamic groups in prisons or religious institutions possibly contribute to the process of radicalisation. In reality, the perpetrators of the UK Simultaneous Multiple Terrorist Attacks became close to each other through youth activities at mosques etc., and although the crucial factor in their radicalisation is unclear, the possibility has been indicated that they attended lectures, watched videos, and had the opportunity to read literature on radical ideas at local mosques etc. In addition, from 2 June 2006 to the 3rd of that month, the Canadian police arrested 17 individuals and seized 3 tonnes of ammonium nitrate related to, among others, suspected terrorist plots targeting the Canadian Security Intelligence Service headquarters, Canadian Association of Broadcasters, bases of the Canadian Forces, the Toronto Stock Exchange, and the Canadian Federal Parliament Building etc., and including the assassination of the Canadian prime minister. Of the suspects etc., who were all male Canadian residents, six attended the same mosque, engaging in prayers, sporting activities and discussions on Islam with an individual who held a leadership role at said mosque (the eldest of the suspect group), expressing dissatisfaction at the deployment of the Canadian Forces to Afghanistan, and receiving sermons on radical content, which point to the possibility that these were factors in their radicalisation, and the other three had reportedly been attending the same mosque as an Al Qaeda financial supporter in the 1990s (Exhibit C-10 (1)).

    It has also been discovered that radical Muslim leaders have engaged in recruitment efforts for suicide bombers at London mosques (Exhibit C-10 (2)).

    d)           According to the facts found above in (c), numerous cases of international terrorism had occurred before around 1 January 2008, when the Information Gathering Activities took place, and the substance of the cases demonstrate that foreign terrorist organisations designated by the US government, particularly radical Islamist groups, are responsible for a high percentage of them. As for the tactics, explosives and chemical substances etc. are used to affect an extremely large number of ordinary citizens regardless of nationality, with fatalities and the wounded reaching up to several hundred to the thousands per incident. In terms of their backgrounds, it can be said that factors such as retaliation for the Iraq War etc. or hostility toward the unfair treatment of Muslims have played a part. Moreover, these incidents of international terrorism have taken place in various regions and countries, extending to Southeast Asia, which is geographically close to Japan.

    Further, Japan has been identified by multiple leaders of radical Islamic organisations as a target that is a US ally, participant in the occupation of Iraq etc., and supporter of the existence of the Israeli state. Given the revelation that a senior member of a radical Islamic organisation had been staying in the country without authorisation, and the statement by a senior member of a radical Islamic organisation to the effect that he was involved in a plot to destroy the American Embassy in Japan etc., it can be said that there had been a sufficient danger of an act of international terrorism being carried out in Japan by radical Islamist groups, with even the possibility of several hundred to thousands of civilian deaths.

    Even more, considering that the terrorist incidents found in above (c) ii had all been carried out with the involvement of multiple individuals, preparing explosives etc. in advance, and targeting crowded areas with simultaneous or successive blasts, and particularly that several of the September 11thattackers had been residing in the US for over a year amongst the general public until execution of the terrorist plot, it is clear that these attacks were put into action by multiple terrorists, covertly and with a substantial preparatory period, deliberately concealing themselves within society, and pretending to lead ordinary everyday lives, all the while plotting their operation secretly and meticulously. Yet the reality is that terrorist incidents are frequently occurring around the world. Adding to this the fact that recently, there are indications of ‘home-grown terrorists’ undergoing transformation through contact with radical groups over the Internet or at prisons and religious institutions (above (c) ii(viii), iv), it should be said that it is not an easy task to prevent in advance acts of international terrorism by obtaining information about terrorist incidents before the fact, or detecting terrorists hiding amongst the general public.

    Finally, as in the above (iv), for Muslims mosques have a significance not only in a religious sense but also as a space for communal interaction, and there are indications that recruitment etc. by radical Muslims at religious institutions is one of the possibilities contributing to the process of radicalisation, and in reality, it is suggested that the perpetrators of terrorist incidents in the UK and Canada were recruited while attending mosques. Therefore, the early detection, for the prevention of international terrorism, of terrorists under the guise of ordinary citizens, necessitates an assessment of how Muslims constitute and run their communities. And it follows that there is no other way to discern whether one is a peaceful Muslim or a terrorist belonging to a radical Islamic group other than to make presumptions from various circumstances observable from external manifestations such as their participation, if any, in religious ceremonies or educational activities, and the position they hold in the religious community, which requires the monitoring― continuously to a certain degree― of the state of their activities, through approaching or in some cases entering mosques.

                                                                                                             v.                Thus, given the real risks of international terrorist attacks taking place in Japan, the seriousness of the damage once such an act of international terrorism happens, and the complications in early detection and prevention due to its covert nature, assessing the current circumstances of mosque attendees through the Mosque Monitoring Activities and other Information Gathering Activities should be regarded as necessary activities for the police, whose duty is to maintain public safety and order, including the deterrence of crime, to prevent the occurrence of international terrorism.

    Lastly, adding to this a consideration of the courses that past incidents of international terrorism have taken, the fact that the Information Gathering Activities primarily target Muslims and that the collected information encompass matters with a religious aspect, namely, comings and goings at mosques, does not take issue with the content of followers’ religious faith in Islam in and out of itself, but is instead due to the objective of preventing harm to the general public by detecting and guarding against international terrorism by radical Muslims, by directing attention to the historic realities such as that radical Islamists, an extremely small subset of Muslims, have perpetrated acts of international terrorism, and that recruitment etc. has been conducted at religious institutions by radical Islamic groups, and not with the intention of meddling in the spiritual and religious aspects of Muslims.

    The Mosque Monitoring Activities, as elaborated above, merely recorded external acts― the plaintiffs’ comings and goings at mosques― through personal visits by agents, and as explained in above (1)C, there were no acts amounting to coercion regarding the said records, and moreover, effects on the freedom of religion, if any, did nothing more than invite a sense of repulsion toward the presence of police officers in and around the mosques.

    To summarise, the Information Gathering Activities, even if they partially affected some of the plaintiffs’ religious activities, were necessary and inevitable measures for the prevention of international terrorism, and did not violate Article 20 of the Constitution or its derivative, Article 84 of the Religious Corporations Act.


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