The National Intelligence Center (CNI) has never requested authorization to carry out “mass interceptions” of communications such as those that would have been carried out through the Pegasus program. This is stated by different magistrates of the Supreme Court who have been in charge of prior control of secret service requests to intervene in communications or enter homes.
The dissemination by Citizen Lab, a group of cybersecurity experts from the University of Toronto (Canada), that 63 Catalan separatists and two Basque separatists have been spied on with Pegasus has caused a serious crisis between the Executive of Pedro Sánchez and the Catalan Government chaired by republican Pere Aragones.
This would have been one of the victims of Pegasus, a cyber espionage program developed by the Israeli company NOS Group, which, in principle, is only sold to governments or public security agencies. Together with Aragonès, his predecessors would have been spied on Artur Mas, Carles Puigdemont and Quim Torrain addition to the leader of Bildu and convicted of terrorism Arnaldo Otegi and the deputy of this formation Jon Inarrituamong others.
“The CNI has never asked us for authorization to intercept the communications of more than three or four people in the same request. There has been no mass request“says one of the so-called CNI judges who has been in this role the longest. “And if he had asked for it, we would not have authorized it,” she adds.
The permit would not have been granted because “the requirements established by the CNI Regulatory Law and the Organic Law on Prior Judicial Control of the CNI would not be met,” he explains.
the spanish model
For 20 years, Spain has had a unique regulations to control the espionage of communications and homes by the secret service. After the conviction of General Alonso Manglano for wiretapping by the CESID (a body prior to the CNI) in 1999 and the legal battle that broke out in 1997 to have secret service documents declassified on the war dirty against ETA through the GAL, the Aznar government promoted a legal modification so that there would be a judicial control of the CNI.
The new law entered into force in May 2020. Since then, the director or secretary general of the CNI -only they, no other command or official of home– They are in charge of addressing the magistrate of the Supreme Court whom the General Council of the Judiciary chooses every five years as controller of petitions related to the execution of measures that affect the inviolability of homes or the secrecy of communications.
The request must be made always in writing -it is not valid verbally- and must explain the facts, purposes and reasons that justify the intervention, its duration -no more than three months in the case of the interception of communications- and the people affected by the measures.
“They have to be individualized and concrete people, no generic ID or group“explains another CNI judgewhich coincides with the previous one in ruling out that massive interceptions have been authorized.
Prior control of secret service activities by a judge of the highest court is a Rare avis at the European level. The countries around us supervise their intelligence services through parliamentary or administrative commissions. And they have broader powers. For example, the G10 commission of the German Parliament has the power to give generic wiretapping authorizations.
In Spain, a stricter model was chosen, but one that put an end to the fact that secret service agents worked “without a network”. “I knew that, if a problem arose or they were discovered by the Police or the Civil Guard, as it sometimes happened, my resolution provided them with a defense,” recalls one of the first CNI judges.
this is how they act
The magistrates never talk about the authorizations they grant. Neither of the requests they receive. They do not even reveal the number of requests. “It is not a regular number and there are not manybecause they are controlled by a single person and it would not be enough if it were a large quantity,” says one of the magistrates.
The CGPJ appoints a regular judge to control the CNI and another magistrate as a substitute, who intervenes in the absence of the former. Only one of them acts, they never solve together. The prosecutor does not participate.
The so-called security investigations of the CNI they are not intended to investigate crimes and have no procedural value. In fact, when a matter is judicialized, the CNI control judge cannot grant permission to intercept communications or enter homes.
The intelligence service does not realize to the magistrate of the result of the permitted interventions, unless an extension is requested for another three months.
The CNI must communicate the cessation of the interception, but information obtained is not provided to the judge of the Supreme Court, but rather provided to the government.
The CNI judges they have granted authorizations to obtain information related to ETA, jihadism or the development of nuclear weapons by Iraq, for example. And about the ‘process’? There’s no answer. But the magistrates consulted do explain the decision criteria.
In the first place, the request from the CNI must justify that it is a matter relating to a “danger, threat or aggression against the independence or territorial integrity of Spain, national interests and the stability of the rule of law and its institutions” (article 1 of Law 11/2002, regulating the National Intelligence Center).
Second, the secret service has to justify that the investigation it carries out falls within its functions of obtaining information “to protect and promote the political, economic, industrial, commercial and strategic interests of Spain” (article 4).
Third, the object of the investigation must be included in the Intelligence Directivea document classified as secret approved by the Council of Ministers.
In four terms, the CNI must argue the link between the facts under investigation and the person affected by the measures.
Finally, the secret service has to provide the reasons why the interception of communications or entry into a home is a measure essential (there is no other means to obtain the information), proportionate (in relation to the fundamental rights that are sacrificed) and suitable to achieve the specific purpose pursued.
The resolutions issued by the CNI judge they have no recourse and no other body reviews them. The law establishes that this magistrate must safeguard the confidentiality of his actions, which have the secret classification.
However, these resolutions can be declassified if the Government so decides.
There has been some precedent for it. An authorization from the CNI judge related to a terrorism matter that later ended up in the National High Court was partially declassified at the request of the court.
The consulted judges assure that they have not resolved thinking that their cars may end up being declassified, “but we would not mind if the competent body so decides.”