Written by: Vicens Valentin, , Barcelona y Camp d’Eix
When the Twilight of the Gods comes, the serpent will devour the earth, and the wolf the sun. (Jorge Luis Borges)
The Möebius ring, discovered in 1858 by the German mathematicians A.F. Möebius and J.B. Listing, consists of a one-sided geometric surface. The ring has very interesting mathematical characteristics: its properties do not change when subjected to certain types of continuous transformations. These properties of inalterability are called homeomorphisms. The alchemists in antiquity represented it with the Uróborothe snake that bites its own tail. It is therefore used to symbolise the cyclical nature of many processes.
We can build a model of the ring by taking a strip of paper, the ends of which have been joined together, and twisting them to form a loop. If we draw with a pencil a line along the strip of paper starting at the point where the two ends meet, this line will reach the starting point, but on the opposite side. Nothing new.
Policies, models and bodies
The formal analysis of security policies, police models and security forces is, in itself, complex. In the same way, the interrelation of the norms and laws on (in)security (the basic foundation of these policies, models and bodies) is very complex due to the priority between one and the other powers of the state with respect to their competences (fight against crime, maintenance of public order and guarantee of national security).
There are authors who approach this analysis as if they were watertight and differentiated spaces and those who treat it as if the three were a single reality. But neither formula gives us the clue to homeomorphism, one of the main properties that determine the genesis of models, systems and security bodies, since their formal analysis does not provide the answer to their objectives and strategies.
Let us see. Formally, security policies are due to the will and political action of the rulers who develop them through the decisions they take with the aim of transforming reality according to their own interests (Recasens 2007).
Police models, on the other hand, are defined by the laws that regulate them and are linked to the structure of the state and the model of administration in which they are developed (from Hobbes to Weber). It is possible to establish two main models of state, those of continental influence and those of Anglo-Saxon influence. And depending on this legal framework and the model of the state, there will be a specific police model.
Law enforcement agencies respond to other parameters. Some classifications relate them to their structure and hierarchy: professional, militarised or community models. Authors such as Monjardet o Reinerhave established a very effective definition for their classification based on the analysis of their main functions: investigation, criminal, public order and citizen security, etc., which relates them to the political characteristics of the states in which they operate. Other authors, such as Recasens, place them in an organisational guild stage, which has not yet been overcome, with all the anachronisms that this implies when it comes to analysing them.
Durkheim argued that the fight against common criminality, which often gives police forces their social legitimation, has a functional purpose (Durkheim1999) and it is sufficient to keep it at levels that are sustainable in the perception of the citizenry (especially to secure private property, not the common good).
Major crimes (organised crime, drug, human, arms and currency trafficking, which never form part of the basket of criminal acts that make up the surveys and statistics on insecurity), the control of public order and, of course, national security (Valentín, 2021), are therefore excluded from the eyes of the citizen (and from this functionality).
Ensuring national security, which could be defined as an indeterminate legal concept or a catch-all, is a mandate shared by all forces in the service of the state: police, military and intelligence services as well as the judiciary and governments, and can refer to any issue that the state considers endangering it. For example, the Spanish state considers Catalan (and Basque) independence to be such a danger and therefore pursues it.
At least two of the three branches of the state inherited from the Enlightenment are directly involved in guaranteeing national security: the executive (and its operational bodies: police, army, secret services) and the judiciary (judges and courts). Because the third branch (the legislature) has hardly any formal control over the activities of the other two branches with regard to national security. And that is a serious political imbalance.
Here appears the main problem regarding the aforementioned priority between state powers, since the modification, reform or improvement to regulate the instruments for guaranteeing national security and the fundamental rights of citizens (for example) require not to collide with the legal framework of other state powers, such as the activities of the police or the intelligence services by judicial mandate, since they affect all state services, regardless of their territorial rank, because they are under the functional dependence of courts, magistrates, judges and prosecutors.
And then I arrive Pegasus
That states have always spied on us, we already suspected: telephone tapping, the interception of communications that may or may not have the appearance of legality or police infiltration of any group considered potentially dangerous to national security.
But technological advances have their limits and they leave traces. And so the old suspicion that we were being spied on has been conclusively proven by the discovery of Pegasus, spyware created by former Israeli military spying specialists, who sell the product to governments to ensure the national security of their respective countries, or so they say in parliament.
Its use has been known since 2016 and its technology represents a qualitative leap compared to traditional state spying models, as it has a characteristic that differentiates it from previous systems (technological advancement issues), as it can carry out actions, such as holding conversations or sending messages impersonating the person being spied on, through remote control of their computer or phone, invading their privacy and affecting almost all of their fundamental rights.
To give a significant (and recent) example. There is evidence that the Spanish state has spied with Pegasus on Catalan political and social leaders and leaders for the fact that they are pro-independence, i.e. for holding a position that the powers of the state considered endangered Spain’s national security.
With this evidence, we can affirm that the powers of the state and its operational instruments monitor and criminally punish political and social dissent in the name of national security.
Guaranteeing citizens’ rights
The extrajudicial methods of persecution of political dissidents (disappearances during the time of the GAL), the unfair trials (Bateragune, Altsasu In short, the dirty war as a defence of the status quo and the use of warfare as a form of state struggle against political dissidence by force of laws designed to stifle protest (Maqueda Abreu, 2015).
But the advent of spyware systems (Pegasus, and other similar programmes) and their use by the deep-state, leads to the dissolution, like tears in the rain, of legal certainty, procedural guarantees, the objectivity of the judiciary, confidence in the rule of law and the social pact. In a word, the functioning of the system itself and the democratic balance.
These cases have been the subject of court reviews (the Catalan process) and/or condemnatory court rulings by the TSJUE (the Beteragune case) and reports by European bodies on the poor democratic quality of the Spanish state. All of them prior to the discovery of the use of spyware systems (such as Pegasus).
Right to protest and dissent
More than a decade ago, in March 2011, the citizen disaffection towards the functioning of the system filled the squares of the Spanish state with indignation; four years ago, in October 2017, two million Catalans confronted the State and police violence in the most important act of mass paceful disobedience in the history of the country. Because people have the right to protest and to dissent from the policies of any state. And solutions to conflicts must have political solutions (Vitale2021) and not security or police solutions.
We are not questioning the honesty and impartiality of judges and police, we are questioning the Criminal Justice System as a whole, the corrupt Deep-state and the political forces that feed it. A system that allows spying, accusing, arresting, detaining, judging and convicting anyone considered a danger to the state, sometimes under the protection of the law and other times using public resources and/or invasive electronic systems (spyware) at their convenience to legitimise themselves in power, frighten citizens and modify the will of the people under the defence of national security.
With Pegasus, it has been revealed (and certified) that the Uroboros, the snake that bites its own tail, acts unchecked from the margins of the system, and with it, all state actions and activities in the area of insecurity have been delegitimised.
This article was published in IurisCrimPol: Blog of the Faculty of Law and Political Science. Open University of Catalonia