How a Misleading Story Is Changing Immigration Policy

On Sunday, The New York Times published a scorching story alleging that one of the killers in the San Bernardino attack had previously “talked openly on social media about her views on violent jihad.”

But by Thursday, the Times admitted it had gotten parts of the story wrong. Tashfeen Malik had not posted publicly about violent jihad before moving to the U.S. Instead, according to the FBI, she had written about violent jihad only in private messages—not public posts. The Times changed its story, issued a correction, and endured a par­tic­u­larly bru­tal pub­lic flog­ging at the hands of its public editor.

That correction, however, came far too late to put the genie back in the bottle. News of the so-called “public” posts had already rocketed around the Internet, been cited repeatedly in the Republican presidential debate, and, apparently, made quite an impression on Capitol Hill.

On Tuesday, Senator John McCain pointed to the Times report in an­noun­cing legislation to require the Department of Homeland Security to “search all public records, including Internet sites and social media profiles” when vetting applicants to enter the U.S.

The same day, nearly two dozen Democrats wrote to Homeland Security Secretary Jeh Johnson calling  for “more robust social media background check process for all visitors and immigrants to the United States.” The let­ter references press ac­counts in­dic­at­ing that such work had been done inconsistently. And it says Ma­lik “may have ex­pressed rad­ic­al ji­hadist sentiments on so­cial me­dia platforms.”

(That night, Ted Cruz took on the topic during the GOP presidential debate: “We didn’t monitor the Facebook posting of the female San Bernardino terrorist because the Obama DHS thought it would be inappropriate. She made a public call to jihad, and they didn’t target it.”)

Representative Vern Buchanan has introduced a House companion to McCain’s bill, and a pair of sen­at­ors—Demo­crat Mar­tin Hein­rich and Re­pub­lic­an Jeff Flake—have also rolled out a bill to en­sure that DHS can re­view “open source” information, including social-media posts, of visa applicants.

To be clear, the Times story was one of sev­er­al about Ma­lik’s In­ter­net activ­ity and re­views of visa ap­plic­a­tions. And it came at a time of broad re­view of the na­tion’s screen­ing pro­cess for people en­ter­ing the coun­try. So the Times story is not the only thing that spurred the le­gis­lat­ive rush. But giv­en that it was cited, either expli­citly or im­pli­citly, in a host of press re­leases sur­round­ing the new bills, it appears clear the story was a key driver of the new le­gis­la­tion.

But on Wed­nes­day, FBI Dir­ect­or James Comey knocked down claims of pub­lic post­ings by Ma­lik, telling re­port­ers that Ma­lik and fu­ture hus­band Syed Rizwan Farook com­mu­nic­ated on­line in late 2013 about their “joint commitment to jihad and to mar­tyr­dom.” But then, cru­cially, he ad­ded, “Those com­mu­nic­a­tions are dir­ect private mes­sages,” and he said there was “no evid­ence of post­ing on so­cial me­dia by either of them at that peri­od of time and there­after re­flect­ing their com­mit­ment to ji­had or to mar­tyr­dom.”

The key mis­take in the Times story was re­port­ing that Ma­lik’s pro-ji­had statements had been pub­licly avail­able. Giv­en the private nature of those messages, it’s un­clear how the new slew of new bills this week, which deal largely with pub­lic post­ings, would have helped DHS bet­ter screen Ma­lik or as­sess the threat she posed to na­tion­al se­cur­ity.

But while the spe­cif­ic story was wrong, it has shined a light on what even administration of­fi­cials say could be a real prob­lem with the coun­try’s counterterrorism ef­forts.

John­son said Wed­nes­day that his agency has been re­view­ing social me­dia in im­mig­ra­tion ap­plic­a­tions in cer­tain in­stances since early this year, ac­know­ledging that pri­or policies were “too re­strict­ive,” Re­u­ters re­ports.

Buchanan said in a state­ment that it “doesn’t change a thing” that the Times story, which helped set off the fur­or, was in­ac­cur­ate. “We should be screen­ing the so­cial me­dia of for­eign­ers re­gard­less of wheth­er these two terrorists used pub­lic or private Face­book ac­counts. IS­IS uses the In­ter­net to recruit and rad­ic­al­ize ter­ror­ists. They have 40,000 Twit­ter ac­counts. We need to fight fire with fire,” he said.

A Mc­Cain aide ex­pressed a sim­il­ar view. “The fact re­mains that the Obama admin­is­tra­tion has clearly de­clined to re­view so­cial me­dia when con­duct­ing back­ground checks of for­eign­ers seek­ing to enter the United States—a policy that leaves us with a dan­ger­ous gap in in­tel­li­gence that could make us vulnerable to an­oth­er at­tack,” the aide said.

Pres­id­ent Obama pushed back Fri­day on claims that of­fi­cials do not re­view social-me­dia post­ings. “Our law-en­force­ment and in­tel­li­gence pro­fes­sion­als are con­stantly mon­it­or­ing pub­lic posts, and that is part of the visa-re­view process, that people are in­vest­ig­at­ing what in­di­vidu­als have said pub­licly and ques­tioned about any state­ments that [they] maybe made,” he said.

Still, policy changes ap­pear in the works—with or without Cap­it­ol Hill.

Ma­lik entered the U.S. on what’s known as a K-1 visa, which en­ables for­eign­ers who are the fi­ancees of U.S. cit­izens to enter the coun­try.

DHS pos­ted a “fact sheet” Thursday about the K-1 visa pro­gram and its screening ef­forts more broadly, not­ing that in the wake of San Bern­ardino, a feder­al working group has formed to re­view the K-1 pro­gram. But DHS says that review could lead to broad­er re­views of so­cial me­dia across a wider suite of programs that enable for­eign­ers to enter the U.S.

“The U.S. gov­ern­ment already em­ploys so­cial me­dia vet­ting in cer­tain immigration be­ne­fits pro­grams,” DHS said. “The work­ing group is com­mit­ted to expanding use of so­cial me­dia vet­ting and is ex­amin­ing ap­pro­pri­ate opportunities, in con­junc­tion with in­ter­agency screen­ing part­ners, to do so across the range of visa pro­grams, in­clud­ing the K-1 pro­gram.”