Edward Snowden: Congress Has Immunity from Spying, But You Don’t

I’ll admit from the start that the Snowden chat at the Guardian was a brilliant journalistic and technical feat. At the same time, it’s clear that Snowden is still closely following the news, and presumably shaping his answers for maximal political effect.

So I take this comment, the last words he spoke on the chat, with a grain of salt.

This is the precise reason that NSA provides Congress with a special immunity to its surveillance.

Certainly, it would seem technically feasible to block all Verizon numbers associated with official Congressional communications devices. It would be far harder to block the abundant communications devices tied to campaign activity.

From this, shall we assume the White House and Courts are also immune?

Contrast that with Snowden’s claims about we peons’ communications.

NSA likes to use “domestic” as a weasel word here for a number of reasons. The reality is that due to the FISA Amendments Act and its section 702 authorities, Americans’ communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. They excuse this as “incidental” collection, but at the end of the day, someone at NSA still has the content of your communications. Even in the event of “warranted” intercept, it’s important to understand the intelligence community doesn’t always deal with what you would consider a “real” warrant like a Police department would have to, the “warrant” is more of a templated form they fill out and send to a reliable judge with a rubber stamp.


US Persons do enjoy limited policy protections (and again, it’s important to understand that policy protection is no protection – policy is a one-way ratchet that only loosens) and one very weak technical protection – a near-the-front-end filter at our ingestion points. The filter is constantly out of date, is set at what is euphemistically referred to as the “widest allowable aperture,” and can be stripped out at any time. Even with the filter, US comms get ingested, and even more so as soon as they leave the border. Your protected communications shouldn’t stop being protected communications just because of the IP they’re tagged with.

I do believe I pointed out James Clapper using “domestic” as just on such weasel word (I prefer to call it Orwellian turd-splat) this morning!

Clearly, Snowden is trying to make it clear that our Congressional overseers aren’t protecting our interests as well as the NSA has protected theirs (for good reasons under the Constitution, I would add).

So this claim may just be an effort to make us more pissed.

Remember, however, the day after the first leak on this, Eric Holder testified before the Senate Appropriations Committee. Barbara Milulski, who (as a tremendously powerful Senator representing NSA) had not previously publicly ever met NSA surveillance she didn’t like, was up in arms about the possibility the government was surveilling her communications.

Those concerns had been placated by the time Keith Alexander testified a day or so later.

So while Snowden is clearly trying to push the debate, it is also quite likely that the immunity comment is true.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

21 replies
  1. eh says:

    This seems like a pretty incredible event on the face of it, one which I have had to avoid reading most of, lest I lose the rest of my day.

  2. Casual Observer says:

    He had previously stated that as system admin he had ability to wiretap a fed. judge or a sitting president while sitting in his office, as long as he had the right identifier. He reaffirmed that today.

    Doesn’t sound like ‘immunity’ to me.

  3. bmaz says:

    Say, it almost looks like you were making a separation of powers comment there towards the end. When and how the “separation” is viewed is always fascinating, as is noting when, and when not, Congress gives a rat’s ass.

  4. bsbafflesbrains says:

    If the info gathered is misused immunity won’t be needed. “The threat from the sword of Damocles is not that it will fall it is that it hangs”. …..Hi Senator (fill in the blank) I’m from the NSA and here is how I want you to vote.

  5. William Ockham says:

    I figure that what he’s trying to communicate is that the NSA tells Congress they have immunity, but that it’s a polite fiction, enforced through “policy that can change at any time” in his words.

  6. orionATL says:

    ew wrote:

    “… our Congressional overseers aren’t protecting our interests as well as the NSA has protected theirs (for good reasons under the Constitution, I would add)…”

    what might those good reasons be, other than protecting their money supply?

    the doj/fbi certainly doesn’t worry about investigating congressmen –

    abscam, bribery, sexual “misconduct”…

    i would expect any carve-out from surveillance nsa makes would be strictly ad hoc and opportunistic.

    would the nsa like to see congressional critics impaled on classifications “violations” and work to that end? of course.

    would they record senators wayden or udall? of course.

    i can’t believe “seperation of powers” would protect a specific congresscritter from these vampires.

    maybe nsa “collects” but doesn’t “access” – cross my heart and hope to die – congressional phone and e-mail comms. :))

  7. HotFlash says:

    I think that should read, “I’m from the NSA and here is how our
    corporate partners want you to vote.” Govt is pretty clearly a puppet here, military is busy being paranoid (ie, easy to manipulate), the ‘brains’ of this outfit is Big Corporations.

    This oracle predicts the words Goldman Sachs to turn up pretty soon…

    Love Greenwald and Snowden, they promise many more shoes to be dropped. Move over, Imelda! Perhaps we should be taking these shoes and throwing them at someone?

  8. greengiant says:

    My guess is that the “foreign” has meant anything piped off of the US, or that could be piped off of the US. Therefore everything on facebook is “foreign”, all communications that could be monitored by non US are foreign, going all the way back to the days of microwave relay towers and soviet trawler listening stations. Not that this definition has anything to do with the FISA law. More likely the secret executive orders that are probably one big blank check to be filled in by the masters and the contractors.
    A little news on the Poitras involvement with Snowden.
    The border seizures made of Poitras, and Wiki and Manning interested people combined with FBI false flag operations and no-fly restrictions or worse confinement and torture for anyone who does not agree to snitch, or agree to the FBI line paints quite a picture.

  9. lefty665 says:

    The phrase “Weasel words” has been in use in the intelligence community for more than 50 years. Might not hurt to use the phrase to describe what they do the same way they do. But, it is not as emotionally satisfying “turd splat”. I presume the “turd” part refers to the “splatter”, not the rest of us what have been “splat” upon.

    Does anyone really believe that while NSA is mirroring the switches or getting daily dumps of meta data that it is dropping a specific identified list of records on the fly? That does not meet the smell test for several reasons.

    Perhaps it is only another policy, as in Congressional “immunity” exists as long as NSA does not access the records it has collected (if that is the right parse of the weasel words for today). They have to have phone numbers, urls, etc to exempt records during searches.

    Inverting the selection, especially should they need to help a reluctant politician see the effectiveness of universal collection, is trivial.

    It goes from: if not {immune list} then search
    to: if {list formerly known as immune} then search.

    It’s just a click away, a mouse click away. The Stones had it back during COINTELPRO days.

  10. HotFlash says:

    Thank you, OrionATl. Went snooping and found more on Ms Poitras —

    I assume most of you are up to speed, but if not, then try this:

    1.) Jacob Appelbaum 29C3 Keynote: Not My Department https://www.youtube.com/watch?v=QNsePZj_Yks

    2.) Jesselyn Radack, Thomas Drake, William Binney on whistleblowing https://www.youtube.com/watch?v=XDM3MqHln8U

    Lots of info, going back to 60’s, which could take a while to absorb, so make sure you have enough beer and order in pizza as required.

    Note: home-made pizza? waiting for dough to rise? This will keep you company:

  11. Ben Franklin says:

    I am in the process of determining the relevance of a Ben Bishop and Snowden connection wrt the possibility of a ‘honeytrap’ and ongoing turf wars between CIA and NSA. NTITYGAS.

  12. C says:

    J. Edgar Hoover was always careful to frame his dragnets in a similar fashion. With each president he “served under” he made sure to provide them with the information they wanted (e.g. domestic Nazis for FDR, the KKK for LBJ) and to assure them that they were not targeted. That was not entirely true but this political protection allowed him to cover his work.

  13. Ben Franklin says:


    Add to that; J, Edgar surveilled with impunity and didn’t worry about nonsense like ‘poisoned fruit’ because he didn’t intend to go to court. He could access it any time he wanted to extort those he had dirt on. So when NSA protests too much that they don’t listen to everything, they mean they won’t listen until they need it.

  14. sOLbus says:

    I don’t understand why this isn’t framed for what it is:

    This is the MILITARY spying on Domestic Citizens. Forget “NSA”

    Too many people have the erronls perception this is merely cvilian v. cvilian,
    and frankfurter more, don’t don’t get the implications for or of sybilian loss of control of the mil-indsrl complex. This ain’t no pidgeon coup

  15. Everythings Jake says:

    Snowden seems to have found a way to break through the noise machine and drive the news cycle with, my god, truth. They can’t seem to ignore him, they’re forced to pay attention. A 17 point drop in Obama’s favorability rating with under 30 year olds. That is astonishing. I suspect every time we see derision by O’Donnell, Tapper, Schieffer, Scarbourough, it’s because he has truly made them afraid. He presents extremely well, he doesn’t ruffle. I’ve long thought Obama to be Bernay’s Frankenstein, an abominably evil perfect synthesis of legal and PR bullshit. Snowden, thus far, is as close to the opposite of that as I’ve seen grab the public eye.

  16. GKJames says:

    That the national security apparatus would resist sucking up Congress traffic is unimaginable. How else would elected representatives be co-opted (held hostage) into accepting what the apparatus is doing?

  17. Duane Lee says:

    kinda like the IRS again w/o court order to levy … Like an Elephant I won’t forget the lack of “due process” too creepy and ghestapo like … FOIA etc to no avail! Ad infinitum!

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