AJR  Features
From AJR,   October/November 2007

Lying to Get the Truth   

A powerful article in Harper’s about lobbying in Washington reignites a long-standing debate over the ethics of undercover journalism.

By Mark Lisheron
Senior Contributing Writer Mark Lisheron (mark@texaswatchdog.org) is Austin bureau chief for Texas Watchdog, a government accountability news Web site.      

Kenneth Case and Ricardo, a fellow consultant for The Maldon Group, sat at a brightly polished conference table for 20, a pitcher of water zested with lemon nearby, and waited for the pitch.

Among the bipartisan suits doing the selling were a former aide to Rep. Roy Blunt, the second-ranking Republican in the U.S. House, and Chuck Dolan, a top public relations consultant for the 2004 Kerry-Edwards campaign. There were specialists with serious domestic and political connections and experts in dealing with the nation's top news organizations.

Case had come to Cassidy & Associates with a problem. It seems The Maldon Group had considerable interests in Turkmenistan, on the northern borders of Iran and Afghanistan, a country with the fifth-largest reserve of natural gas in the world and a wealth of oil. Investors, however, were having nothing to do with this backward former Soviet republic because, until his death in December 2006, the country had been under the heel of Stalinist despot Saparmurat Niyazov. That Niyazov had been succeeded by his personal dentist, Kurbanguly Berdymukhamedov, did not exactly kindle confidence. Was it possible, given this climate, that Cassidy & Associates could make the U.S. government see that Berdymukhamedov had reforms planned for Turkmenistan, that things were looking up? Case asked.

Cassidy, one of the most powerful lobbying firms in Washington, was eager to help. In fact, the company knew from State Department sources that President Bush himself was eager to improve relations with Turkmenistan. This, however, would be no easy task. Rather than a blitz, Cassidy & Associates proposed a protracted public relations war conducted at the highest levels of government and the media over three years – at a cost of as much as $1.5 million. More, one of the company's salesmen warned, if a human rights organization made the job tougher by harping on the poverty and the dearth of freedom in Turkmenistan.

The Maldon Group never signed up because there was no $1.5 million. There was no Maldon Group. There was no Kenneth Case. Case was Ken Silverstein, Washington editor of Harper's Magazine, who has over his career written extensively about lobbying in Washington. Ricardo was a friend who agreed to help Silverstein.

The result of Silverstein's ruse merited a wraparound cover of the July issue of Harper's: "Foreign agents.. What U.S. Lobbyists Do For Dictators.. An Undercover Report by Ken Silverstein." Had Washington Post media writer Howard Kurtz written the copy, the wrap might have read "Liars..What Some Reporters Do for Stories."

Kurtz helped reignite a long-standing and unresolved debate about the ethics of undercover journalism (see "The Lying Game," May 1997). Lying, deceiving and fabricating are hardly legitimate journalistic methods, he concluded in a column he wrote not long after Silverstein's article appeared. "No matter how good the story," Kurtz wrote, "lying to get it raises as many questions about journalists as their subjects."

Lying, a defiant Silverstein says, gave readers a rare glimpse into an institutionalized amorality throttling U.S. policy, a view they most certainly wouldn't have gotten any other way. If questions are to be raised, he says, they ought to center on why mainstream newspapers like the Washington Post lack the courage to use more aggressive reporting methods, to be advocates for a point of view rather than hiding behind artificial neutrality.

"There is a certain smugness on the high end of the Washington press corps, indecently close personal and professional relationships between reporters and the people they are supposed to cover," Silverstein says. "What is lost here in the interest of phony balance is any sense of right and wrong."

Silverstein's use of deception to get inside an important story makes it no simpler to decide whether he was right or wrong. Editors and reporters are all too aware of the reputation of the mainstream media as part of the problem with the American political process. It is a simple conclusion for Silverstein to draw that because the press so rarely goes undercover, it is too soft, too cozy, too jaded to root out corruption.

But isn't it difficult to make the case that journalists lying or misrepresenting themselves is the way to restore public faith in the newsgathering process? Silverstein's simple answer is that readers who doubt his story are free to dismiss his findings. He suggests readers are better off placing their trust in the journalist or the publication, rather than a fusty set of rules. But how much trust should one place in a journalist who lies or the publication that endorses such behavior? If a journalist would lie to a subject, what's to say he or she wouldn't lie to readers? If lying is a superior tool in some instances, what is to stop reporters from using it indiscriminately? In Silverstein's world, it is left to the reader to determine whether the lying is being done in the service of the truth or self-interest.

For agonizing ethicists, the Turkmenistan story comes down to weighing the wrongs committed by the Washington lobby and Silverstein. One could almost feel and hear the moral wrenching in the column Edward Wasserman, the Knight Professor of Journalism Ethics at Washington and Lee University, wrote in July for the Miami Herald. Was Silverstein wrong? You bet. Was Kurtz right to take him to task? It would seem so. But what about the end result? By the end of the column, Wasserman isn't so sure. "What Silverstein uncovered was disgusting," Wasserman wrote. He added, "Deception is a nasty business, and I respect those who say it's never justified. But was Silverstein the trickster we should be worried about in this affair?"

Beltway reporters walk a rutted beat all the way around the inner sanctum of the Washington lobby. The idea that public relations firms would do virtually anything for money long ago passed into cliché. Everyone knows what's going on, but rarely, if ever, is it reported until after the fact.

The trade publication O'Dwyer's Public Relations has for several years tracked the business being done by Washington firms with countries thought to be undemocratic, greedy and brutal. Just two months before the Harper's piece, Joshua Kurlantzick took off in Mother Jones after Cassidy & Associates for drawing $120,000 a month for the last three years to gussy up the image of Equatorial Guinea, a repressive dictatorship that is also, perhaps not coincidentally, swimming in oil.

To Silverstein, it seemed nothing much had changed in the lobbying culture in the year since high level wheeler-dealer Jack Abramoff had been convicted after a scandal-studded federal investigation. Kurlantzick's article was an example of chronicling the problems after the fact, with intelligence gathering and public reports by the Department of Justice. Silverstein imagined what he might find if he got his story from the inside.

"I could have written about sleazy lobbyists. I've written that story before," Silverstein says. "It was in the way that they behave, the presentation, that gives the story its impact. I think it's in the public interest to present that story."

In the months since his article was published, Silverstein has rarely turned down an opportunity to explain his motives and his methods. It is clear in interviews with Silverstein and Harper's Editor Roger D. Hodge that, from the start, the reporter and the magazine had two goals. The first was to give readers a firsthand look at the deals public relations firms make at the nether reaches of domestic and foreign policy. The other was to provoke the journalism establishment.

"I knew going in that there would be people in the mainstream press disapproving of the tactic," Silverstein says. "And I thought that Kurtz, who is the sort-of arbiter of accepted journalism practices, would criticize the piece."

"There was this meta level in the planning that asked, 'How will the journalism establishment react?'" Hodge says. "The fact that undercover journalism has fallen out of fashion seems to be a problem with the profession."

Silverstein came to Hodge with an idea that originally involved leasing office space and other amenities that Hodge dismissed as too expensive. The backup plan at first was to try to find public relations assistance for North Korea, but Silverstein thought it too notorious a dictatorship to be taken seriously, even by an industry he considered beyond morality.

What Harper's settled on seems almost comical in hindsight. Silverstein invented the names Kenneth Case and The Maldon Group and had them put on business cards. He set up a Web site consisting of little more than the company name, an e-mail address and the address of a London office building. He bought a cell phone with a London number to go with it.

While The Maldon Group had suitors aplenty, Silverstein says he and Ricardo (whose real identity Silverstein has chosen not to reveal) had meetings with two companies. As outlined in the story, their first, with APCO Associates, was pitch-perfect, as droll as anything in the D.C. movie satire "Wag the Dog." APCO promised help from heavy hitters including former Sen. Don Riegle and ex-Rep. Don Bonker. They could arrange a congressional junket to Turkmenistan. Favorable stories or op-ed pieces could be placed in newspapers. The package would feature high-level access, the utmost discretion and a $600,000 bill for the first year of service.

"This really is an opportunity to define the new government of Turkmenistan," Barry Schumacher, a senior vice president of APCO, told Case and Ricardo, according to the article.

The sell, Silverstein reported, was even harder when he sat down with Cassidy & Associates, which, he points out, received more than $235 million in lobbying fees, more than any other firm in Washington, between 1998 and 2006. Gerald Warburg, a company vice president, shared with his would-be clients that he had learned that just a week before a meeting on Turkmenistan had taken place at the highest levels of the U.S. government. "We'd like to make sure you're on the agenda for the next such meeting," Silverstein says Warburg told them.

Silverstein points out several times in his piece how little checking these companies did on Case and The Maldon Group. In the weeks that followed, the companies peppered Silverstein with e-mails pushing their respective Turkmenistan campaigns. For obvious reasons, he fended them off.

Silverstein got what he was looking for, on both counts. "We do a fair amount of undercover journalism, at least at some level, but this was something that struck at the very heart of the establishment," Hodge says. "From the response we've gotten, it's clear that lobbyists were all talking about the piece, and that what we had done was accurate."

Harper's helped on the second count, pitching the story's deception and lurid findings to press critics. Kurtz says he likes and respects Harper's and knew Silverstein from his past work as a journalist. (Writer Nina J. Easton listed Silverstein as one of the unsung heroes of Washington journalism in an article in the May 2002 issue of AJR.) Kurtz thought the way the story was gathered was worth exploring.

What Kurtz found particularly distressing was that while Silverstein spelled out the details of his deception to his readers, he did not reveal himself to the companies he duped before publication. In his column, Kurtz did what Silverstein did not do. He gave both sides their say.

Rather than focus on the lying, Silverstein told Kurtz, readers ought to "weigh my ethics in making up a firm against the ethics of agreeing to represent and whitewash the record of a Stalinist dictatorship. I'm pretty comfortable with that comparison."

Cassidy & Associates has decided to say nothing about the story other than to issue a terse statement. "We are surprised that a reporter would go to such extraordinary lengths to gather information in such a deceptive way that really isn't all that new or interesting."

APCO responded with a much more vehement pronouncement. "Silverstein's charade is a comment on his ethics, not ours," the statement said. "Silverstein's claim that he was working in the 'public interest' as the only way he could get information is as false as his story." APCO complained in writing to Harper's, and the magazine has agreed to publish at least some of the letter in an upcoming issue. And APCO talked to Kurtz.

For someone who says his company got "punked" by Silverstein and Harper's, B. Jay Cooper, a department managing director for APCO, is relatively broad-minded about undercover journalism. While he might not have been pleased that Silverstein picked this time and place to practice it, Cooper says he might have been better prepared to accept it had Silverstein at any time come back to the company asking for a response.

"To this minute he has never called to ask us to comment on this story," Cooper said in an interview. "It goes against everything that's taught in journalism school. It's a matter of fairness to be contacted for comment."

Kurtz is less forgiving than Cooper. He takes the position of the great Ben Bradlee, a vice president and former executive editor of the Post, who believes that reporters should never misrepresent themselves to get a story. By not revealing himself at some point in the process, Silverstein failed in two important ways, Kurtz says.

"I'm still having a hard time understanding why [Silverstein] didn't have the decency to go back to them for comment. It seems a matter of fundamental fairness," Kurtz says. "I stand by what I said about impersonation being wrong. I just think Harper's compounded the problem by not giving the firms involved a chance to comment after the sting."

This Silverstein refused to do. He did not want to give companies in the business of massaging information weeks to formulate responses that would have tried to discredit his work. Silverstein is contemptuous of Kurtz's notion of fairness.

"You know what? I don't work for a mainstream publication," Silverstein says. "That's what I resent about Kurtz's critique. We're not the same. We're not the Washington Post."

What Silverstein is suggesting is that there are two sets of standards, one governed by rules that newspapers generally abide by and one determined by the journalist, whose trust is conferred not by the publication but by the reader.

Response to his story would seem, on the surface, to bear him out. Silverstein says 90 percent of the hundreds of e-mails he received, almost all of them from average readers, were laudatory. Some took shots at Kurtz.

Left-leaning Web sites like Dissident Voice, which bills itself as "a radical newsletter in the struggle for peace and social justice," gave Silverstein a forum to editorialize on his story without challenge. CommonDreams.org, which describes itself as a news service for the progressive community, linked to the Harper's story and ran an accompanying piece by Silverstein explaining what he had done and why. A sampling of the overwhelmingly uniform feedback shows others share Silverstein's keen impatience with rules-bound journalism.

"Howard Kurtz is a hypocrite and a fool," one person responded.

"I agree with your motives, your methods, and your results. If all 'ethical' and polite avenues of investigation into these cynical power-mongers continue to let their actions be hidden, what other recourse is there?" another wrote.

Those who side with the rules came quickly and faithfully to Kurtz's defense. Matthew Felling, a former media director at the Center for Media and Public Affairs who now writes an online column for CBS' Public Eye, thought what Silverstein had bagged was small and common game.

"When you're going to take the risky step into 'Gotcha Journalism,' you need to 'Get' something," Felling wrote on June 28. "You need to uncover something that either can't be found out in any other way, expose hidden political corruption or a potential health threat. When you indulge in subterfuge to merely provide the conventional wisdom with a concrete example, that's when the cost -- to the journalist, to the media outlet, to the media at large -- isn't worth the benefit."

Felling followed with a column in August, inviting Silverstein to give a full airing of his views on his undercover methods. While the exchange had the tone of rapprochement between friends, neither yielded on his core contentions.

Bill Buzenberg, executive director of the Center for Public Integrity in Washington, D.C., says there is room for much more investigative journalism everywhere, "but misrepresenting yourself is not a good idea. We're with Howard Kurtz on this one," Buzenberg says.

Bob Steele sides with the rules, too. In fact, Steele, the Nelson Poynter Scholar for Journalism Values at the Poynter Institute, wrote the rules 12 years ago to help reporters decide when it might be all right to lie or to use a hidden camera to get a story.

Steele read the Harper's piece and wrote a rather open-ended column about it for the Poynter Web site that gave Silverstein his say. Two months after writing the column Steele, like Wasserman and other prominent ethicists in the field, is carefully reviewing the steps Silverstein took in his newsgathering rather than issuing a blanket condemnation.

Some, like Mark Feldstein, a former investigative reporter who has written extensively on journalism ethics as a professor of media and public affairs at George Washington University, have applauded Silverstein's product while questioning his methods. Feldstein was impressed by the heft of what Silverstein presented, an unsettling look at deal-making and political compromising. Still, Feldstein is disapproving of the misrepresentation and found it unforgivable for him to withhold the opportunity for some comment from APCO and Cassidy.

Steele has not said whether he thinks Silverstein acted improperly. "I wanted to leave it open-ended," he says. "I know there are absolutists out there who say you don't ever use this method to get a story. I've never been absolutist on deception. The beauty and bane of ethics is that there are exceptions. I'm not one who believes in universal codes of ethics."

To understand why Steele and others resist the absolutes, walk Silverstein's Turkmenistan story through the six guidelines or thresholds Steele says a journalist must satisfy to deceive or to misrepresent. According to Steele, it's OK to be deceptive only:

• When the information obtained is of profound importance. It must be of vital public interest, such as revealing great system failure at the top levels, or it must prevent profound harm to individuals.

Silverstein contends that the thorough rot of democracy caused by the overweening power of the Washington lobby is of profound importance. Felling believes amplifying common knowledge is less than profound. "I thought Silverstein's piece told us something that was not commonly known," Wasserman says. "How the top of the line representation in Washington works, just how business is done. It's awful. It's terrible."

• When all other alternatives for obtaining the same information have been exhausted.

Some, like Felling, have made a blanket statement that this particular story could have been done in another way, but it is difficult to see how. "Silverstein can make one incontrovertible argument," Lou Gelfand, a media critic with Minneapolis' Star Tribune, wrote, "He'd never have gotten into the lobbying offices if he had identified his real purpose."

• When the journalists involved are willing to disclose the nature of the deception and the reason for it.

Silverstein gladly shared the nature and the reason with readers, not so much the targets of his investigation. As reprehensible as most critics found the behavior of the two lobbying firms, they managed to elicit pity. "I do think the targets were made to feel a much greater sense of betrayal by not being offered the opportunity to respond," Feldstein says. Even Steele, who has behaved rather like a moderator throughout, says, "The magazine left itself vulnerable by not going back for comment." "I do think these people got screwed," Wasserman says.

Cooper inferred from the precise and accurate retelling of the APCO meeting that either Silverstein or the mysterious Ricardo might have surreptitiously recorded the session. This would be another ethical black mark against the story if it were true. When asked directly if he recorded the exchange with APCO, Silverstein says, "I'll be telling the full story of what I did in preparing for the story in the book [he is writing on the affair], and I feel that I've blabbed a bit too much already, but I can answer broadly by telling you that I never broke the law."

• When the harm prevented by the information revealed through deception outweighs any harm caused by the act of deception.

Cooper says that APCO's reputation took a hit, but he says that the company's client base stayed loyal. How much harm the story prevented is almost impossible to say.

• When the individuals involved and their news organization apply excellence, through outstanding craftsmanship as well as the commitment of time and funding needed to pursue the story fully.

• When the journalists involved have conducted a meaningful, collaborative and deliberative decision-making process on the ethical and legal issues.

Readers are left to take Silverstein and Hodge's word for what are, essentially, internal concerns.

Coming as close to a pronouncement as he has on the situation, Steele says he thinks serious journalists must satisfy each of the guidelines, independent of one another. "This is not à la carte," he says. "You have to fulfill all of them."

Raising the bar as Steele has done is another symptom of the gentrification of journalism, Silverstein contends. Silverstein has worked for the Associated Press and the Los Angeles Times, two jobs he enjoyed. He found their rules, however, unnecessarily confining. He has come to think of the new generation of reporter and editor as a facilitator rather than a check on powerful institutions. "The high-end press class is very comfortable with the high-end political class," he says.

It is through this particular interpretation of history that Silverstein would like to lead the reclamation of the muckraking tradition in journalism.

The muckrakers, as President Theodore Roosevelt dubbed them disapprovingly, were very much a product of the early 20th century. As Feldstein has pointed out in an academic paper on investigative reporting, muckrakers were as much tools in the circulation wars between publishing giants William Randolph Hearst and Joseph Pulitzer as they were advocates and activists for the public good. Their audiences were immigrants and the working class. Their coin of the realm was scandal and the more lurid, the more popular. The kind of neutrality prized by professionals today would not have been recognized by these reporters.

Nellie Bly, whom Silverstein has referred to in past months almost as often as APCO, was an undercover reporter who got herself committed to a mental institution to write about the horrible conditions there. Many of the others whose names live on – Lincoln Steffens, Ida Tarbell, Ida B. Wells – did not misrepresent themselves or try to infiltrate the businesses or governmental bodies they wrote about. Upton Sinclair, who did, ended up writing about the Chicago meatpacking industry in fiction, albeit fiction powerfully informed by what he experienced.

Readers and their newspapers changed as the population became more affluent and better educated. Rather than squelch investigative journalism, newspapers imposed more professional standards to serve as a guarantee for the quality of the journalism.

This change was vividly reflected in the reaction to stories run in early 1978 by the Chicago Sun-Times. The paper had put up $5,000 to buy a rundown bar on the city's North Side, aptly naming it the Mirage. For four months in late 1977, reporters ran the tavern, documenting a staggering parade of municipal graft and regulatory corner-cutting.

The series of 25 stories was a sensation and a finalist for the Pulitzer Prize. In his 1996 book, "News Values," longtime Chicago Tribune and Tribune Co. editor and executive Jack Fuller recalled that titans Ben Bradlee and Eugene Patterson of the St. Petersburg Times teamed up to make sure the series did not win.

"The Pulitzer Prize Board decided not to award the Sun-Times the prize because the series was based on deception," Fuller told the Chicago Reader. "The board concluded that truth-telling enterprises should not engage in such tactics."

"We would not allow reporters to misrepresent themselves in any way, and I don't think we would be the hidden owners of anything," Fuller said Bradlee told him. Patterson compared the Sun-Times to an undercover policewoman enticing a john, he said.

What Silverstein considers a modern landmark Feldstein sees as a warning from two highly respected journalists to the rest of the business.

Undercover journalism took another pop when a jury was asked to consider the methods used by ABC News reporters in 1992 in an effort to show that a supermarket chain was selling spoiled meat. After the "Primetime Live" report aired, the Food Lion chain sued ABC, not to challenge the truth of what the network reported, but to allege that members of the undercover crew falsified their applications for jobs they failed to do. (See "The Lion's Share," March 1997.)

After the case dragged on for five years, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, overturned the award of damages from a lower court jury. In its ruling the court castigated ABC for its actions, but said that Food Lion had failed to demonstrate that it had been significantly hurt by the "PrimeTime Live" report.

"I'm a defender of ABC on that one," Feldstein says. "They proved they were right. There was a significant public health issue. But the protracted litigation and the legal costs for ABC sent an utter chill throughout the networks."

The "Dateline NBC" series "To Catch a Predator" is no blanket for the chill. In ways that Silverstein might be reluctant to admit, "To Catch a Predator" has much in common with the scandal-mongering of the muckraking days.

Its producers have claimed a high ground of public service by working undercover with law enforcement to round up people who might use the Internet to arrange to have sex with children. More than 200 people have been caught by the program, and some of them have been convicted.

Among those who did not have a trial was Bill Conradt, a county prosecutor in North Texas, who put a pistol to his head and fired it in front of a SWAT team sent to arrest him a day after Conradt fell into the "Predator" trap. Esquire magazine contends that the program put pressure on law enforcement to make the arrest. Conradt's sister has filed a $105 million lawsuit against NBC in federal court.

Marsha Bartel, a former producer of the show, is also suing NBC, alleging that the network fired her for raising ethical concerns about "To Catch a Predator."

The myriad problems of the series were outlined by columnist Deborah Potter in the August/September issue of AJR. Those interviewed for this story were uniform in their condemnation of "Predator" and its questionable ethics. Each was quick to point out the vast differences in approach and intent between "To Catch a Predator" and Silverstein's Turkmenistan story.

The prurient sex sting program and the Turkmenistan program do have at least one thing in common: Their creators have eschewed or at the very least cannot meet Steele's six thresholds for undercover journalism. Without at least some standard, the 8 million to 9 million viewers of "To Catch a Predator" and the 230,000 subscribers to Harper's are on their own, trusting that liars and deceivers are telling them the truth.

Senior contributing writer Mark Lisheron (mlisheron@statesman.com) wrote about Minneapolis' Star Tribune in AJR's August/September issue.