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(06/25/98)

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_________BY BRUCE SHAPIRO | It seems just the latest of the season's media scandals: A Cincinnati Enquirer reporter allegedly broke into the Chiquita banana company's executive voice mail system. Yet amid the summer's epidemic of hand wringing over fabricated quotes and questionable stories, the fate of Cincinnati Enquirer reporter Mike Gallagher is the one journalistic controversy that really matters.

For one thing, there's the substance of the investigative reporting at issue. Not a single major story on Gallagher's firing has bothered to examine the paper's original allegations about Chiquita, a company whose brutal and autocratic operations once inspired the term "banana republic." Even more disturbing, a reporter may soon go to jail as a consequence of investigative stories that seem 100 percent accurate.

The background has been widely reported. On May 3, the Gannett-owned Enquirer published a massive package of stories on Cincinnati-based Chiquita Brands International, a firm headed by Republican mega-donor Carl Lindner. The series, by reporters Mike Gallagher and Cameron McWhirter, was based in part on hundreds of hours of corporate voice mail message tapes acquired by Gallagher. Gallagher and McWhirter are seasoned and respected investigative journalists, not New Republic whiz kids blowing smoke about the sexual fantasies of UPS drivers. Gallagher had told his editors -- and his editors said in print -- that he obtained the tapes from a high-ranking Chiquita executive with supervisory access to the voice mail system. However, according to a suit filed last week by Chiquita, it was Gallagher himself, with help from still-unnamed Chiquita insiders, who broke into the company's voice mail system. And if this wasn't bad enough, Gallagher committed the unpardonable sin of stupidity: He allegedly called into Chiquita's voice mail system over and over again from his home phone, as if Caller ID hadn't been invented. Chiquita CEO Steven Warshaw called it "an old-fashioned burglary, no different from breaking and entering." The corporation exercised its considerable political influence in Cincinnati to secure the appointment of a special prosecutor and grand jury for a criminal investigation. And the Enquirer's editors, publisher and corporate bosses at Gannett, angry at Gallagher's deception and worried about their own legal liability, fired the reporter and paid Chiquita $10 million. For three consecutive days last week the Enquirer ran a stunning front-page retraction, denouncing Gallagher's "theft" of "privileged, confidential and proprietary information" and apologizing for creating a "false and misleading picture of Chiquita's business practices."

A "false and misleading picture"? The Enquirer's lawyers may have found it necessary to bend over fast and far. But in fact the "Chiquita Secrets Revealed" series presents a damning, carefully documented array of charges, most of them "untainted" by those purloined executive voice mails. Gallagher's and McWhirter's allegations are largely based on old-fashioned reportorial legwork: land records in Central America, interviews with environmental scientists and trade unions, lawsuit records, leaked corporate memoranda and the reporters' own visits to workers' villages and camps.

Consider:

• In Honduras, Guatemala and Colombia, Chiquita "secretly controls dozens of supposedly independent banana companies," the articles charge, evading laws limiting foreign companies' ownership of farms by setting up local fronts for the corporation's under-the-table investments. One Honduran lawyer who works for Chiquita openly told the reporters that the corporation was trying to "hide its assets" to evade ownership restrictions, to "get rid of its Honduran labor union" and protect itself from "lawsuits and child labor law violations."
• Throughout much of Latin America, McWhirter and Gallagher charge, Chiquita subsidiaries spray plantations with highly toxic pesticides banned in the United States and Europe, in direct violation of an agreement with environmentalists. They uncovered the autopsy report of an 18-year-old agricultural worker at a Chiquita subsidiary in Costa Rica who died after working in a recently sprayed field. "He didn't have any experience in this kind of job and he wasn't using any protective gear like gloves and mask either," one of the young man's co-workers had told Costa Rican authorities. The company refuses to allow independent scientific researchers to study the impact of pesticides on its plantations; workers are exposed to pesticides without protective clothing, and runoff from Chiquita pesticides contaminates workers' drinking water.
• Chiquita security guards, according to the Enquirer series, are widely accused of using "brute force to enforce their authority on plantations operated or controlled by Chiquita. In an internationally controversial case, Chiquita called in the Honduran military to enforce a court order to evict residents of a farm village; the village was bulldozed and villagers run out at gunpoint."
• McWhirter and Gallagher also detailed the precarious economic condition of workers on Chiquita plantations.

To repeat, none of these charges -- none -- depend on Chiquita's hacked voice mails. The series does present one allegation to which the voice mails are central: that company executives bribed Colombian officials to gain use of a government warehouse. And there, the voice mail messages Gallagher recorded, legally or not, were deeply revealing of Chiquita's mind-set. "We can only fire him with cause because of his involvement in the Colombian problem if we file a criminal charge against him with Colombian authorities," the series quoted company lawyer David Hills saying of another executive. "Clearly we would not want to do that because we would be implicating ourselves." Another message caught company Vice Chairman Keith Lindner suggesting the company muscle Panama's foreign minister out of a European Union trade mission deemed not in Chiquita's best interests.

Chiquita's top officials, as the reporters note over and over again, declined numerous offers to respond or to be interviewed. Since the "Secrets Revealed" packaged appeared, Chiquita CEO Warshaw has claimed "very little is accurate," but he has yet to challenge a single specific fact or quotation -- including his own executives' incriminating voices.

Amid all these serious charges of lawbreaking and exploitation on a transnational scale, it is Mike Gallagher -- fired, sued and awaiting a grand jury subpoena -- who is being written about as a criminal. Certainly his mistake gave Chiquita all the ammunition it needed to torpedo the whole exhaustive series -- and possibly to halt a Securities and Exchange Commission investigation, which the Enquirer reported had commenced based on the tapes.

But while it's easy to consign Gallagher to the journalistic pillory, it also might be worth asking why an experienced, idealistic investigative journalist might have illegally broken into a corporate voice mail system and then lied to his editors about it. In fact there are plausible professional explanations for both. It's possible he misled his editors about the tapes not just to hide his own hack work, but to protect his real sources at Chiquita, the individual or individuals who escorted him into the voice mail system in the first place; mistrust between editors and reporters is a common enough feature of newsroom life.

And while the electronic equivalent of pilfering incriminating documents may run afoul of the Scout's Code of Honor, corporate criminals are not notably cooperative with aboveboard journalistic inquiry. Covert leaking of proprietary information from inside corporate sources is basic to investigative reporting going all the way back to Ida Tarbell's muckraking classic "History of the Standard Oil Company." If Edward R. Murrow was unwilling to trespass on private property, his classic documentary "Factories in the Field" could not have been filmed. If a young Geraldo Rivera had been unwilling to invade the privacy of a psychiatric ward, patients at Willowbrook State Hospital in New York would still be living in filth and degradation. Mike Gallagher is hardly the first reporter to decide that the larger stakes in confirming a story -- in this case a story alleging bribery of foreign officials, the poisoning and exploitation of workers and the subversion of countries' laws -- dictated some comparatively modest legal transgression of his own.

There's far more at stake in Cincinnati than one reporter's lousy judgment or blitzed career. Civil liberties types and journalism advocacy organizations, not wanting to be seen as condoning voice mail hacking, have kept largely silent about Gallagher's impending criminal prosecution. Yet if Gallagher goes to jail for theft or Chiquita wins its trespass-defamation-conspiracy suit, corporations all over the country will be emboldened to use notions of intellectual property as a club against aggressive investigative reporting. What's the practical difference between one reporter's convincing an executive to provide voice mail and another to provide a ream of documents? Both involve what the Enquirer's apology called "privileged, confidential and proprietary information." Both involve reporters' treading a very blurry line between leak and theft.

Sure, Mike Gallagher's tactics raise thorny ethical questions for information-age reporters. But Gallagher's crime -- if a crime it was -- pales by comparison with Chiquita's documented rap sheet. Meanwhile Chiquita's heavy-handed suppression of the Enquirer story poses a serious threat to all investigative reporting on corporations -- and by extension, to the values of the First Amendment.
SALON | July 8, 1998

Bruce Shapiro, who writes the column Law and Order for The Nation, teaches investigative journalism at Yale University. He is a frequent contributor to Salon.

Discuss the "Chiquita coverup" in the Media area of Table Talk.