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http://www.commercialappeal.com/news/20 ... id=1208560FBI file is key to 'full picture' of Ernest Withers' work as a paid civil rights informant
Lawsuit seeks confidential government documents
By Marc Perrusquia
Posted August 7, 2011
WASHINGTON -- The billy club sailed down and landed on Ernest Withers’ head with a thud.
It was June 15, 1963, and Withers, the celebrated news photographer whose work routinely put him in the front lines of the civil rights struggle, lay bloodied on the ground.
Beaten and arrested by police in Jackson, Miss., while covering the funeral of assassinated NAACP field secretary Medgar Evers, Withers returned home to Tennessee determined to stand up for himself. He filed a police brutality report with Memphis’ FBI office.
The report is among several newly released documents that add new insight to revelations by this newspaper last year that Withers, a trusted civil rights insider, had secretly worked as a paid informant to spy on the movement.
The reports, some dating to the 1940s, draw new connections between Withers and William H. Lawrence, the shadowy, resolute counterintelligence agent who chased Communists and militants for the FBI’s Memphis domestic spy unit over parts of four decades.
Those reports take on new urgency this fall as a federal judge here considers unsealing records that could finally spell out the full story of Withers’ clandestine work for the FBI.
A lawsuit filed last November by The Commercial Appeal in U.S. District Court for the District of Columbia seeks to force the FBI to provide complete details about Withers’ secret work for the bureau and to release his confidential informant file.
Despite a wide range of evidence published by the newspaper, including agent Lawrence’s handwritten notes discussing Withers’ work as an FBI informant in the late 1960s, Justice Department lawyers contend they’re not legally required to confirm or deny that Withers, who died in 2007, was an informant.
Holding to decades-old doctrine protecting confidential sources, the government argues that exposing any informant, even a dead one, would have a chilling effect when recruiting new informants needed to help battle crime and protect national security.
“If potential informants knew that the FBI would reveal their identities — either before or after their death — they may not be willing to assist the FBI with its investigations,’’ Justice Department attorneys Wendy M. Doty and Lesley R. Farby say in a brief before U.S. District Judge Amy Berman Jackson.
The newspaper’s attorneys emphasize that Withers’ informant work affects no ongoing investigations — it involves no sensitive details that, if revealed, might have life-and-death consequences.
Arguing the FBI is hiding behind laws designed to protect living informants, the paper’s lawyers say the public needs ways to unravel historical puzzles like the FBI’s still-murky investigation of the civil rights movement.
“This is a 40-year-old investigation with a deceased informant,’’ Charles D. Tobin, a Washington attorney representing The Commercial Appeal, said in a hearing Wednesday before Judge Jackson. “...There’s an issue of transparency. There’s the public interest in knowing these records exist.’’
The immediate issue before the court involves a motion by the newspaper asking Judge Jackson to order the FBI to produce a so-called Vaughn index, or an inventory, of all documents contained in Withers’ informant file. The newspaper wants the judge to then review those documents in camera, or in chambers outside public view, to make an informed decision as to whether some or all of the records in the file should be made public.
A limited set of records published by the newspaper last year shows Withers served as an informant from at least 1968 to 1970, supplying the FBI with details on matters ranging from Dr. Martin Luther King Jr.’s visits to Memphis to the leadership and planning of the 1968 sanitation workers strike. Those records also indicate Withers gave agents photographs of Catholic priests who sympathized with the sanitation strike as well as personal details on a U.S. Civil Rights Commission field worker said to be one who will “give aid and comfort to the black power groups.’’ Withers identified suspected militants seeking positions on the Shelby County Democratic Party’s executive committee and monitored the Memphis speeches of King’s aides.
The revelations were startling to many who previously knew Withers simply as America’s “original civil rights photographer,’’ who shot intimate and up-close photos of the movement from its dawn in 1955 with the racially motivated murder of Emmett Till in Mississippi all the way through King’s 1968 assassination in Memphis and beyond.
The newspaper pieced together elements of Withers’ undercover work after the FBI released a 1977 report from a public corruption probe that stated Withers had previously worked as a bureau informant under the code number ME 338-R. The newspaper then tracked that number through thousands of pages in FBI files assembled in Memphis between 1968 and 1970.
In trying to suppress the release of additional details on Withers’ informant work, the FBI is taking a novel stand. Informant identities are already exempted from public release under the Freedom of Information Act and remain among the most closely guarded government secrets. But the FBI is taking an additional step on Withers, invoking a seldom-used law from the Reagan administration era.
That law states no records on an informant are releasable under FOIA unless the FBI first “officially confirms’’ an individual as an informant. Justice Department lawyers contend the release of Withers’ informant number was inadvertent and does not constitute an official confirmation.
As the lawsuit grinds on, additional reports are emerging that are helping flesh out the relationship between Withers and agent Lawrence, his FBI handler. Although Withers’ known period of informant work is from 1968 to 1970, survivors of Lawrence and a second agent said they believe the relationship between the photographer and the G-man goes back much further, and emerging reports back that up.
A 36-page FBI report on Withers’ 1963 arrest at Medgar Evers’ funeral, obtained by the newspaper from the National Archives through FOIA this spring, shows when the photographer filed a complaint against Jackson police, the report was taken by agent Lawrence. Archives staff redacted details in the report’s administrative section, justifying the deletion with a FOIA provision that protects the identities of informants.
Was Withers working as an FBI informant under Lawrence’s control in 1963?
That’s a question that could be answered only by his informant file, which would list his start and end dates, along with his pay and all information and photographs he passed to the FBI.
During the 1940s and ’50s, Lawrence’s focus was Communism, and that pursuit often took him into Memphis’ black community. Records released this year show Withers landed on the FBI’s radar as early as 1946, when he showed up on membership rolls of the United Negro and Allied Veterans of America, a suspected Communist front group. In 1948, Withers was interviewed by the FBI as it investigated the loyalty of a government employee — an investigation Lawrence participated in.
Did the two meet then? Did Lawrence recruit Withers as an informant then? What all did Withers do for Lawrence? These are questions Withers’ informant file might help resolve.
Marc Perrusquia is a reporter for The Commercial Appeal. Contact him at 529-2545.
