Elisa de la Nuez, 29 April 2020
In the midst of the storm over the so-called Pegasus case, the alleged spying by the CNI on various pro-independence politicians, and beyond its self-interested political use by the pro-independence parties, who are not exactly champions of the rule of law – let us remember that day in and day out, in line with national populism, they claim that the will of the people, which they embody, is above laws and sentences – it is worth reflecting on the role of the intelligence centres, or if you prefer, spies, and the rule of law.
It seems unquestionable that the actions of national intelligence centres, in Spain and in any other democracy, move within the limits of the rule of law. The justification is that they carry out preventive tasks of enormous importance in the face of threats as serious as terrorism and possible attacks on the territorial unity of a state, which are at odds with transparency and publicity.
Even so, all democratic states governed by the rule of law, unlike authoritarian states, have made an effort to establish a regulatory framework and guarantees to control the actions of their spies, which is obviously not easy and involves a certain contradiction with the secrecy and reserve with which the functions performed by these intelligence centres must be carried out.
In accordance with the regulations of other countries and Spain, these functions include obtaining and interpreting information to protect and promote the political, economic, industrial, commercial and strategic interests of each country, inside or outside the national territory, or, as far as we are concerned here, to prevent, detect and enable the neutralisation of those activities of foreign services, groups or individuals that put at risk, threaten or threaten the constitutional order, the rights and freedoms of Spanish citizens, the sovereignty, integrity and security of the State, the stability of its institutions, national economic interests and the welfare of the population, among others.
In Spain, after the scandal of the Cesid papers (predecessor of the CNI), whose activities were still carried out under the protection of regulations without legal status and within a legal framework inherited from the dictatorship, a new law was passed, Law 11/2002, of 6 May, regulating the National Intelligence Centre, which is complemented by Organic Law 2/2002, of 7 May, regulating the prior judicial control of the National Intelligence Centre.
With respect to the former, its explanatory memorandum states: “Spanish society demands efficient, specialised and modern intelligence services, capable of facing the new challenges of the current national and international scenario, governed by the principles of control and full submission to the legal system“. Therefore, in addition to modernisation, one of the objectives of the law was precisely the principle of control and submission to the legal system. The CNI’s mission, according to the explanatory memorandum, is to “provide the government with the necessary information and intelligence to prevent and avoid any risk or threat affecting the independence and integrity of Spain, national interests and the stability of the rule of law and its institutions”.
From a simple reading of the law’s explanatory memorandum and also of the provisions of its article 4, it is clear, without the need for any very clever legal interpretation, that precisely risks or threats such as those that the actions of the pro-independence parties pose or may pose (and even more so with the precedents of autumn 2017) fall within this mission, regardless of how much they are partners in the current government’s investiture. Another thing is how it should be carried out and with what controls and guarantees.
Firstly, there is parliamentary control, although it does not seem to have been very effective to date. This control is carried out through the committee that controls the appropriations earmarked for reserved expenses, which is responsible for controlling the activities of the CNI, knowing the objectives that have been approved by the government and an annual report on the degree of fulfilment of these objectives and the activities carried out. Moreover, in accordance with parliamentary regulations, the members of this commission are also the ones who are privy to official secrets. According to Article 11 of the law, this committee is, logically, obliged to keep secret the information and documents it receives, and the content of its meetings and deliberations will be secret.
This commission also has access to classified matters. That is why it is so surprising that, in order to reassure its investiture partners, the government is proposing that the alleged spies should sit in on what the spies are doing. Of course, the contradiction stems from the fact that the partners chosen by the government are susceptible, as we have seen, to being the object of CNI activities, which does not mean, of course, that they should not be subject to the established guarantees. These are those of prior judicial authorisation, to which I will refer below.
Indeed, in addition to parliamentary control, there is judicial control, which is the specific purpose of Organic Law 2/2002, of 7 May, regulating prior judicial control of the National Intelligence Centre. As its name indicates, this is a prior judicial control. This law has a single article and stipulates that the director of the National Intelligence Centre must request authorisation from the competent Supreme Court magistrate for the adoption of measures affecting the inviolability of the home and the secrecy of communications, provided that such measures are necessary for the fulfilment of the functions assigned to the Centre.
In other words, for the alleged espionage to be in accordance with current legislation and the rules of the rule of law, there must be prior judicial authorisation, irrespective of who is being spied on. It is also important that the magistrate’s actions are also secret. In addition, the director of the CNI is expected to order the immediate destruction of the material relating to all information obtained by means of judicial authorisation that is not related to the object or purpose of the authorisation.
What we do not know, or at least I do not know at the time of writing, is whether these guarantees have been respected in this case, assuming that the espionage has taken place. But what we can point out is that the regulation is very similar to that which exists in other countries around us. Of course, what does not exist in other countries around us are such extraordinary circumstances as the fact that a government’s investiture partners can be legally spied on (if there has been judicial authorisation, I insist, because otherwise the spying would be illegal) for carrying out actions that “endanger, threaten or threaten the constitutional order, the rights and freedoms of Spanish citizens, the sovereignty, integrity and security of the State, the stability of its institutions, national economic interests and the welfare of the population, among others”.
And there is no doubt that the pro-independence partners of the government have carried out these actions, indeed, they consider it a legitimate and desirable political objective. In short, these are people who, whether politicians or ordinary citizens, belong to groups whose actions, according to the aforementioned regulations, must be prevented or neutralised by an intelligence service because they go against the basic principles of coexistence as set out in a democratic constitution. And that is an anomaly, let’s not kid ourselves.
The Catalan CNI