The question is not whether Spain spies. Obviously spying takes place. As in all surrounding European countries. As so often in Spain, the real question is the impunity with which people act against each other. That is to say, what democratic cost is paid when the law is transgressed and violated and what democratic control is exercised over power. It is clear that the overreach of the secret services and deep state activity will be as intense as the consequences of violating citizens' rights such as the secrecy of communications or the defence and expression of dissident ideas will be superficial.
Pegasus could have directly interfered, for example, in the preparation of Jordi Cuixart's defence or in president Aragonès's negotiation to invest the Spanish president. Mass surveillance using Israeli Pegasus programme is worrying because of the act itself but also its political and judicial consequences. But even more worrying is the naturalness with which a large part of political parties, the public opinion and the Minister of Defence herself, Margarita Robles, consider that overreach of the powerful is an anecdote, a lesser evil to preserve the greater general principle, the one that justifies everything: the unity of Spain. It would be a naivety worthy of 2017 to think that the overreach of espionage is exclusive to the Spanish State, but it is absolutely necessary that those responsible pay when illegal activity is discovered and parliamentary control measures are used to avoid impunity.
Neither checks nor balances
The mechanisms of democratic checks and balances are in this case left out in the open. The Spanish intelligence services are accountable to the executive in the Government's delegated committee for intelligence matters, where the Ministries of Home Affairs, Defence, Economy and Foreign Affairs take part. The intelligence directive that sets the CNI's goals depends on it. And in matters of reserved funds, the minister and the president are responsible, and the former must report to the latter in accordance with a 1995 law.
But outside the government? In Belgium, Canada and the USA independent committee are set up. In Spain the CNI would have to submit to parliamentary control through the reserved funs committee. But the official secrets committee has not met for years and does not have the right to demand all the information, nor in any case to make it available to the public. Thus, even by asking the right questions, one cannot be sure that the CNI provides the necessary information to exercise democratic oversight.
We are facing a case that Citizen Lab points out would be that of a massive intervention of communications at the heart of the pro-independence movement, yet minister Robles strives, with more determination than success, to consider it isolated cases. As it is hardly credible that the judge responsible accepted a massive violation of fundamental rights, we have started hearing suggestions that there might be rogue elements within the Police or the Civil Guard.
It is now criminal judges' responsibility to investigate and make clear whether there is a space of impunity in Spain. Where it acts and by whom. At the moment, the complaint by former Catalan Speaker Roger Torrent and the Barcelona councillor Ernest Maragall has been stuck in the 32nd examining court of Barcelona for a year and a half, awaiting requests for information sent to Israel (NSO) and Ireland (WhatAapp).
Spring in Sanxenxo
The storm that the PSOE government hoped would pass has only worsened with Margarita Robles embodying the role of captain general justifying spying on the independentistas. But Sánchez will not sack her a few months before the elections in Andalusia, especially when she says what a large part of his party thinks. For the moment, Bildu has saved the parliamentary majority and Sánchez trusts that time and courtesy visits will calm down ERC, who have a good opportunity to claim it was they who decided to put on hold a negotiating table that hadn't met for months.
The scandal is most inconvenient at a time when the monarchy has attempted to renew its image with a bill that seeks to give it more transparency. The parliamentary groups of ERC, JxCat, Bildu, the CUP and the BNG were not informed by the Royal House of the news. Perhaps because their voters do not pay taxes that finance the Crown, nor are they the citizens to whom the institutions answer to.
Felipe VI has made his patrimony public, which will be audited by the Court of Auditors, but not by Parliament. The highlight of the operation is what will not be done. It avoids approving a law of the Crown that would address a possible curtailment of the immunity of the head of state, limiting it to acts carried out in the exercise of his office. The make-up operation lays the foundations for the former king to appear any spring day in Sanxenxo as if nothing had happened.