Information about cyber espionage on Catalan politicians, lawyers and activists related to the independence process has caused a logical alarm. It exposes the vulnerability of fundamental rights against possible illegitimate interference that seriously compromises democratic quality. For the rest, if this action was intended to neutralize the effects of the conflict in Catalonia, the results could not be more counterproductive because it has damaged -hopefully not irreparably- the institutional dialogue initiated to overcome it. In any case, this use of technological means with such an inordinate capacity for interference affects the hard core of the democratic system, because it violates individual privacy and violates the secrecy of communications. It puts at risk, therefore, the full exercise of ideological freedom and, with it, free political participation.
This alarm transcends the Catalan case and extends to the entire European Union, not only because the Spanish case affects MEPs, but also because -as several members of the European Parliament and Amnesty International have also denounced- several European States are suspected of using the Pegasus program to spy on politicians and journalists. A few days before the scandal broke out here, the European Parliament set up an investigation commission that, among other things, will ask for explanations from the Israeli company NSO Group, responsible for the spy program. Of course, the extension of the disease is no consolation to those affected in Spain, but supranational contextualization is necessary to address the problem in its worrying global dimension, when there are governments that invoke the reason of State to reinforce their political control over citizens , while neglecting the social policies that should favor it.
After hesitation and evasion, the Spanish government has finally admitted that the National Intelligence Center (CNI) has used the Pegasus program in individual cases and with judicial authorization. Otherwise, a crime provided for in our Penal Code would have been committed. The central argument of the Government to defend this action is that it has been carried out within the law, something difficult to verify in a space as opaque as that of the intelligence services, in which it is easy to fall into circular reasoning: it is said that the secret action has complied with the law, but this cannot be verified precisely because it is secret. In this way, it ends by asking the citizens for an act of faith to validate what has already been done.
In a democratic system, it must be possible to get out of such a vicious circle by finding a balance between the necessary reserve regarding certain actions and the political responsibility to inform, without having to demand blind trust. The judicial authorization of the interventions of the CNI could have eliminated the crime, but it does not automatically enshrine the correction of the facts nor does it close the way to possible political responsibilities. The CNI has more lax rules than other police interventions when it comes to obtaining said judicial authorization: it does not need to justify indications of specific crimes, but only the need for action to protect generic interests that range from the “territorial integrity of Spain” to the “stability of the rule of law or its institutions”.
They are such broad concepts that they can give rise to investigations, not so much for indications of criminal conduct, but for reasons of political ideology: hence the seriousness of this assumption. In any case, that lack of definition in the rules cannot become a blank check. The same law requires that the judicial authorization be individualized and limited in time, which would allow more information to be communicated from now on than has been presented to date.
All this makes a reform of the current legal framework in this matter more peremptory. The current and Francoist Law of Official Secrets (1968), nor its pre-constitutional reform of 1978, no longer works. The post-constitutional laws of 2002 that regulate the CNI and judicial authorization also need to be reformed, at least, in two aspects: on the one hand, The current lack of definition and insecurity regarding when an interception of communications can be authorized must be eliminated, since a fundamental right is limited for the benefit of an investigative need and, on the other hand, limits must be established on secrecy allowing controls a posteriori. Secrecy can only be based on the need to protect an investigation, so that – once concluded – its necessity loses force and the right to know the reasons that prompted it and the cases in which it was judicially approved gains space.
Actually, we are facing the old question: who watches those who watch us. Because any control should in turn be controlled without it being admissible to establish a chain of controls that tends to infinity. Democratic systems aspire to tackle the problem through checks and balances between powers and institutions, but to exercise them it is necessary to know the facts through the provision of clear and timely information. In the Spanish case, the external control of official secrets is entrusted to the Parliamentary Commission of Official Secrets, not constituted until now due to the Popular Party’s veto of the presence of Bildu and ERC, a legitimate presence according to current regulations. The exercise of this veto is further evidence of two repeated attitudes of poor democratic quality: the pretense of an à la carte legality that is only defended when its consequences are pleasing, and the irresistible temptation to take advantage of conflicts to wear down the adversary.
For the counterweights to act, the Government has now offered the constitution of the Parliamentary Commission, an internal investigation by the CNI and the autonomous investigation of the Ombudsman. We will see if such mechanisms can overcome the obstacles posed by existing laws. The facts have damaged the already low trust between institutions and give rise to questioning their possible effectiveness. But the investigation is essential to assess possible responsibilities, alleviate the damage caused and make it difficult to repeat it in the future. Hopefully their conclusions will come soon and go beyond a terse statement about compliance with the law. It would be insufficient and would frustrate the legitimate effort to improve the quality of our democratic system.
*The PROLEG GROUP was established in February 2018, with the aim of recovering spaces for democratic dialogue in Catalonia and with the other peoples of Spain. It is made up of people from the non-independence Catalan left. Its current members are Marc Andreu, Marga Arboix, Oriol Bartomeus, Joan Botella, Victoria Camps, Joan Coscubiela, Jordi Font, Mercedes García-Aran, Oriol Nel.lo, Raimon Obiols, Lluis Rabell, Marina Subirats and Josep M. Vallès.