Following Comey’s statements, the New York Times published an article acknowledging the inconsistencies:
The New York Times reported on Sunday that Ms. Malik had talked openly about jihad on social media before she applied for a visa to come to the United States. While those remarks were made online, Mr. Comey said, they were “direct private messages” and not easily accessed. Nevertheless, the F.B.I. was able to obtain them in the days since the attacks.
This is a gigantic deal. The New York Times, after all, didn’t merely report that Malik had made public Facebook postings about her feelings about jihad; it wrapped that contention into what reads as a condemnation of the U.S. anti-terrorism apparatus. The thrust of the story comes through with trademarked New York Times precision in its lede: “Tashfeen Malik, who with her husband carried out the massacre in San Bernardino, Calif., passed three background checks by American immigration officials as she moved to the United States from Pakistan. None uncovered what Ms. Malik had made little effort to hide — that she talked openly on social media about her views on violent jihad. She said she supported it. And she said she wanted to be a part of it.” The balanced investigative piece discusses the “shortcomings” in how the Department of Homeland Security (DHS) screens foreigners coming into the United States, as Malik did in July 2014 through a K-1 visa, which allows a foreign national fiance(e) to move to the United States to marry. President Obama has ordered a review of K-1 visas.
Consider this statement in the New York Times article, in light of Comey’s contentions about private exchanges: “In an era when technology has given intelligence agencies seemingly limitless ability to collect information on people, it may seem surprising that a Facebook or Twitter post could go unnoticed in a background screening.”
Not surprising, of course, if the post was sent via private channels. “You can’t hit what you can’t see,” says David Gomez, a former FBI senior assistant special agent-in-charge in Seattle. “You can’t investigate what you didn’t know about.” Scooping up such private messages — even on social media platforms — requires a search warrant. That’s a process freighted with evidentiary hurdles and paperwork — as opposed to the DHS social-media searches addressed in the New York Times story. “There may be some criticism about the FBI’s ability to proactively penetrate some of these people but you really run into roadblocks when that person is a U.S. person and you don’t have reasonable suspicion or probable cause,” said Gomez.
That the New York Times appears to have botched this story isn’t a shocker. “American law enforcement officials” — upon whom the paper relied for its scoop — are famous for feeding contradictory and unfounded information to the media. “Social media,” too, is a confusing term, in that a great many such platforms mix public-facing messages with private correspondence capabilities. “Precision in language in these stories is very important,” said Gomez.
Yet the paper’s explanation is indeed a shocker, especially these two sentences, which we’ll repeat for emphasis:
While those remarks were made online, Mr. Comey said, they were “direct private messages” and not easily accessed. Nevertheless, the F.B.I. was able to obtain them in the days since the attacks.
Is the New York Times saying that if the FBI managed to obtain these private communications after the fact, then surely the feds should have been able to vacuum them up before the fact? If so, it’s an absurd formulation. The authorities swept up the messages after the massacre because they knew exactly whose communications they were seeking. They had no such certainty beforehand.
Absent the scoop about Facebook postings, what’s left of the New York Times story? Mainly the discussion of how DHS is approaching the overhaul of screening procedures, though the urgency of the effort tamps down a notch or two in light of Comey’s revelations. This is a story that needs a large correction, if not a retraction.
Competing news organizations published different takes on Malik’s online activities. CNN’s Evan Perez and Dana Ford reported on Monday that Malik’s postings were “obscured” and sent under “strict privacy settings” that would have thwarted screening. That report appears bulletproof at this point, though it raises one question: If CNN itself had reported that authorities couldn’t access these messages, why didn’t Tuesday night’s GOP debate moderator, CNN’s Wolf Blitzer, correct candidates Sen. Ted Cruz and Carly Fiorina when they criticized the government for having failed to uncover the postings before the attack? “For heaven’s sakes, every parent in America is checking social media and every employer is as well, but our government can’t do it,” said Fiorina, in a remark that appears to have derived straight from the New York Times.
The Los Angeles Times earlier this week also wrote about Malik’s Internet activities in an article sourced to “two top federal law enforcement officials.” Written by Richard A. Serrano, the piece carefully noted that the messages were private. Even so, the paper still appeared to hold the feds accountable for having failed to dig them up prior to the attacks: “The new details indicate U.S. law enforcement and intelligence agencies missed warnings on social media that Malik was a potential threat before she entered the United States on a K-1 fiancee visa in July 2014.”
An inquiry to the Los Angeles Times asking whether it’s fair to accuse the government of “missing” private messages has gone unanswered.
Asked how the Los Angeles Times could accuse the government of “missing” these private messages, a rep for the newspaper sent the following statement, which shouldn’t be confused with a response: “As our reporting uncovered, and as FBI Director Comey acknowledged, Tashfeen Malik sent private messages about her support for jihad through social media prior to obtaining a K-1 visa and moving to the United States. Our role as a news organization is to find out what happened when and report it. We will continue to follow this story to learn more about how U.S. officials conduct surveillance in their anti-terrorism efforts, report it out and share it with our readers.”
Updated to incorporate the statement from the Los Angeles Times.