The ombudsman backs spying on 18 people linked to the independence movement

Gabilondo certifies CNI acted with judicial authorisation but refuses to enter into "critical analysis" of arguments

3 min
Angel Gabilondo in an archive image

MadridThe ombudsman has reached the same conclusions as the National Intelligence Centre (CNI) on Catalangate: the secret services obtained court authorisation to use Pegasus against 18 people linked to the independence movement. In the report made public on Tuesday, Angel Gabilondo stresses that the CNI's "main mission" to provide the Spanish government with "information and intelligence necessary to prevent and avoid any risk or threat that affects the independence and integrity of Spain, national interests and the stability of the rule of law and its institutions". Does the ombudsman back, therefore, the CNI's judgement that then Catalan vice-president Pere Aragonès, with whom the PSOE was negotiating the investiture of Pedro Sánchez, posed a risk? Gabilondo makes it clear that he cannot enter into a "critical analysis of the reasoning nor can he question the decisions taken by a court".

The published document does not provide any more information than what appeared in the media following former CNI director Paz Esteban's appearance in the Spanish parliament. In fact, it does not give any names of the 18 people spied on, but it does highlight that the judge who authorised the phone taps had many arguments to motivate the decision. "He found that he had a high degree of detail in the information," the report says, and that the court orders were extensive and "essentially based on concrete facts".

In the conclusions section Gabilondo refers to the fundamental reasons. He notes that Spain is not a "militant democracy" – that is, that the Constitution allows for dissent, as long as "acts of force" are not used – and stresses that the CNI cannot intercept people's communications for ideological reasons. "It is not about what one thinks, but about what one does in a non-democratic way, with violence and/or against the rights of many citizens, and of the State itself". After this reflection, the ombudsman recalls the functions attributed to the CNI, provided for in Article 4 of the law that regulates it: "Preventing, detecting and enabling the neutralisation of those activities by foreign services, groups or individuals who endanger or threaten the constitutional order, the rights and freedoms of Spanish citizens, sovereignty, integrity and security of the State ..."

Rethinking the use of Pegasus

As the ombudsman considers that he cannot assess the underlying motives, he sticks to the sufficiency of the CNI's control. On the officials secrets parliamentary committee, he says it was an "anomaly" that it was not constituted. "The political discrepancies or the composition of the chamber cannot be obstacles to guarantee the regular functioning of institutions", he notes. In relation to court control, Gabilondo proposes to open a "reflection" on the subject, given that the "interception of communications does not mean the same thing in 2022 as it did in 2002, nor will it mean the same thing a few years from now". In other words, he suggests that the intervention of apps such as WhatsApp or the possibility of activating a microphone or camera remotely is more invasive than tapping a call, which was all that could be done previously. In this line, Gabilondo backs taking into account the "concerns of some citizens and organisations, as well as the considerations the European Parliament may formulate on the Pegasus programme" in the framework of the commission it opened in Brussels.

In the report, the ombudsman also highlights the exercise of "transparency" made by the secret services in this specific case. Gabilondo made on-site visits to the CNI facilities on April 26 and 29 and on May 3, 5 and 6, during which he was able to consult classified documents, receive verbal information and ask officials questions. On May 10, he also received a written response from the former director of the centre, Paz Esteban, the same day that the council of ministers agreed to her dismissal