Over the weeks, the deal got sweeter. We convinced the government to let us tap 70 of the 150 files.*7 All material related to Withers in those files would be released in intervals over two years. Best of all, as far as my ailing newspaper was concerned, the government would reimburse most of our legal costs. The FBI agreed to pay The Commercial Appeal “the amount of $185,943.90 for attorney’s fees, costs, and litigation expenses.” It was unbelievable.21
* * *
—
WE WOULD NEVER have all the answers. Because we couldn’t tap his informant file, we’d never know specifically why Withers agreed to work with the FBI. We’d never know the many specific instructions he’d received or how much he was paid for specific assignments; we’d never get any reports he wrote in his own hand.
But we would know much, much more than before. As part of the deal, we secured a written statement from the FBI indicating the agency paid him nearly $20,100*8 over the years. It wasn’t a huge amount, but for the tight-fisted FBI it was considerable. Most informants never got a dime. Considering inflation, Withers’s payments from the FBI were equal to about $140,000 or $150,000 today, depending on when he received them.
What did the FBI get out of the deal? First and foremost, there was no court ruling. No legal precedent was set for future litigants to build on. And, as Shapiro said, the arrangement allowed the FBI “to save face.” The agency would not have to reach into a confidential informant file.
A huge wave of satisfaction filled me as I rode the train from Washington to Baltimore, on my way to catch my plane back to Memphis. As the countryside whizzed by to the lulling clickety-clack of the tracks, I thought again of Jim, of those grand early days at The Commercial Appeal, of my lingering belief that despite the many troubles plaguing journalism we could still deliver important public-service investigations.
*1 Although their credentials were questioned, Burnham and Forman both worked as journalists. Before joining The National Guardian, Burnham edited Freedom, the Harlem-based monthly newspaper founded by the actor, singer, and social activist Paul Robeson. Forman freelanced for the Chicago Defender while in Little Rock.
*2 The author attempted in 2015 to interview Booker, then ninety-six, but his wife, Carol McCabe Booker, said he didn’t recall the incident. Nonetheless, the Little Rock report raises the possibility that Withers’s introduction to the FBI might not have come through the Memphis office at all but rather through Booker. Starting in 1957, Jet’s Washington bureau chief forged a relationship with Cartha “Deke” DeLoach, who later became number-three in power at the Bureau. Booker was quoted in The Washington Post in 2007 as saying the FBI “maybe…looked at me as some kind of informer,” and some have speculated on the nature of his FBI relationship. However, there is no credible evidence to date that he was coded as an informant or that he was paid. Booker wrote in his 2013 book, Shocking the Conscience: A Reporter’s Account of the Civil Rights Movement, that DeLoach never asked him to inform on anyone “or share any information that I wouldn’t publish.” As his FBI press contact, DeLoach advised Booker about potential dangers when reporting in the South and once helped arrange a jailhouse interview in Mississippi.
*3 Records suggest the FBI first attempted to make Withers an informant in January 1958. The Memphis field office sent a memo that month titled “Ernest C. Withers, PCI,” the designation for a Potential Confidential Informant, to the identification bureau at headquarters seeking a background check, an early step in clearing an individual as an informant. The outcome of that effort is unclear.
*4 In an article published after the Withers litigation closed, the author’s attorneys, Christine N. Walz and Charles D. Tobin, called the exclusions the government’s “license to lie” because they allow it to essentially deny the existence of certain records even when they in fact exist. For a further discussion of this, see endnote 13 in this chapter.
*5 The exclusions differ from the nine exemptions to the FOIA statute. The exemptions, which allow the government to withhold information for reasons ranging from national security to the protection of trade secrets and individual privacy, can be challenged in court. An agency invoking an exemption must indicate the volume of information withheld, such as the number of pages, and must cite a category under which the redaction was made. Courts can conduct a document-by-document review if necessary to determine if the agency acted properly. Exclusions, on the other hand, are not acknowledged. When an agency has information it claims falls under an exclusion, the law permits officials to simply deny they have those records. As Tobin and Walz write, they are used “to completely hide even the existence of certain information.”
*6 In FOIA litigation a government agency produces a Vaughn index to allow a judge to make a document-by-document review to determine what information may be properly withheld. In her ruling, Jackson said, “The Court does not hold that the informant file must be produced—only that if the FBI has relied on the (c)(2) exclusion to treat the records as outside the scope of FOIA, that exclusion is no longer available in this case.” She ordered the agency to review Withers’s file and “either produce the responsive documents or provide a Vaughn index identifying the specific exemptions under which any responsive documents have been withheld.”
*7 During mediation, the government revealed that some files containing Withers’s reports are retained by the FBI and have not been accessioned to NARA. Some are the files of other informants. One involved the Memphis field office’s file on the Nation of Islam. The existence of this file came to light when the author spotted a reference in unrelated reports. Under the agreement, the FBI agreed to release this file. The identity of other files in the FBI’s possession may never be determined.
*8 The statement, attached as an appendix to the settlement, says, “As reflected in the confidential informant records, the FBI was authorized to pay Ernest Withers a total of $20,088 from the period of April 1958 to April 1976, which may have included compensation, reimbursement for expenses, or costs. The FBI is unable to confirm the amount of payment actually received by Withers.”
13.
ASSIGNMENT: TENT CITY
ERNEST WITHERS AIMED HIS CAMERA across the cold, brown stubble of a harvested cornfield. In his viewfinder he saw a row of large canvas tents rising like a battlefront bivouac above the hardened earth outside Brownsville, Tennessee. Men in winter coats trudged in and out. Some wore work gloves. Others carried tools. They paused here and there, driving wooden stakes into the turf with axe butts or running wires to electrical outlets mounted inside on makeshift walls.
This was no campout. It was the last resort for a group of impoverished African American tenant farmers who had been kicked off their land for trying to vote—a political refugee camp in the heart of Dixie.
For them, a hard life was about to get even harder.
A refugee already had been shot in a sister camp in neighboring Fayette County, wounded in the arm as he slept when hooligans fired indiscriminately from a roadway into the tents. These sharecroppers knew harassment well. Insurance policies they carried suddenly were canceled; bank loans dried up. Merchants wouldn’t sell to them—all because they wanted to vote.
Ostensibly, Withers came here sniffing out a news story. But the photographer from the Defender newspapers and Jet magazine had a different agenda today.
He was hunting Reds—Communists, Socialists, and their associates.
Withers ventured on this chilly winter morning in 1962 into the “Tent City” camp in rural Haywood County, an hour’s drive northeast of Memphis, on a scouting mission for the FBI. Special agent William H. Lawrence had been grooming the shutterbug for over a year now as a PCI—a Potential Confidential Informant—handing him a variety of assignments. This one involved snooping on civil rights workers affiliated with the New York–based Socialist Workers Party—four men Lawrence had been tracking across West Tennessee. He believed they’d infiltrated this makeshift settlement.
Withers never found them.
But the photos he took on this overcast morning of February 1, 1962—eight black-and-white pictures depicting the camp’s bleak conditions and the undefeatable, upbeat faces of its denizens—landed in a file labeled, “Racial Situation In Tennessee, Fayette and Haywood Counties—Racial Matters,” along with the transcript of an account Withers gave updating reports of outsiders recently seen in the area.
“Withers is a commercial photographer, self-employed,” Lawrence wrote in a report on the assignment. “He has news credentials for ‘Jet’ magazine, a Johnson Publishing Company publication. He has previously done news-picture stories for ‘Jet’ in both Fayette and Haywood Counties and was the first newsman to do a story re the Fayette County ‘Tent City’ one year ago…Thus he would have a logical entrée and pretext to make inquiries around the current ‘Tent City’, where it is understood…suspected Socialist Workers Party supporters and advocates, are living and where they are infiltrating the Negro community in Civil District No. 9, Haywood County.”1
Ever the Communist hunter, Lawrence found Withers a godsend, a potent tool for what would become one of the most inflammatory inquisitions in American history: COMINFIL, code name for the FBI’s secret war on Communist infiltration of the civil rights movement.
To many, it was the great witch hunt of the 1960s.
Like the Red Scare of the late ’40s and ’50s before it, this was a political purge. Communists again were targeted. But this time the FBI set its sights on an ever-expanding range of “subversives,” investigating, as the attorney general reported, “the entire spectrum of the social and labor movement in the country.” On its face, COMINFIL targeted Communist Party attempts to infiltrate domestic civil rights groups, but “in practice the target often became the domestic groups themselves,” according to the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. Better known as the Church Committee, after its chairman, Frank Church of Idaho, it uncovered wide abuse in hearings in 1975 and 1976. Among the findings, it reported that director J. Edgar Hoover had greatly exaggerated the extent of communist influence in the movement. By 1964, it reported, the FBI had opened nearly a half-million subversion files—it would open thousands more through the end of the ’60s—undertaking “massive” data collection “on lawful political activity and law-abiding Americans.”2
This is the thing my original FBI source, Jim, didn’t seem to get. In the name of national security, the FBI retarded the movement. It expended enormous resources investigating constitutionally protected dissent, abusing individuals whose politics were unpopular or because they made the government nervous. The best-known case of this is Hoover’s infamous bid to destroy Martin Luther King. Yet for every well-known figure like King there were thousands of faceless others who labored in the movement’s trenches, fighting for equality, only to be kept under the suspicious watch of their own government: their mail tracked, their associations inventoried, their attendance at meetings and rallies transcribed in covert files.3
The FBI helped create a hostile environment in which crimes against civil rights workers often went unprosecuted. Activists were left to battle on two fronts, against violent racists and the deleterious inquiries of their own government.
But Jim had his points, too. Much of the history of the FBI’s treatment of the movement has been written by the Left. Often overlooked or underemphasized in these histories is the very palpable Cold War fear shared by millions of Americans that the enemy—the communist insurrection—was at the doorstep. Fear grew following devastating race riots in Watts, Newark, and Detroit. Violence and disorder in the mid- to late-’60s intensified the FBI’s incentive to monitor the movement as well as larger black America. As Hoover’s agents kept watch on that “entire spectrum” of the movement, Withers assisted, providing personal and political details on a range of activists, from reformers and idealists to moderates and true extremists, including members of a militant street gang that reportedly committed acts of arson, extortion—even a sniper attack on a policeman—toward the end of the decade.
His work produced a voluminous record.
Over time, as the FBI kept a suspicious eye on leftist “agitators” pouring into rural West Tennessee to assist the nascent civil rights struggle there, the affable newsman became a prolific source. He provided agents with scores of photographs.*1 Intelligence he gathered, either through photographic prints and negatives or through spoken or written information he passed to agents, appears in 102 separate reports the FBI produced on the unrest in Fayette and Haywood counties between 1961 and 1969—from political plans and mundane gossip to handwritten letters he received or intercepted from activists.
Whether he betrayed the movement, as some insist, or acted out of a sense of patriotic duty or some profound lust for adventure, or he simply needed the extra money, this much, too, is clear: records released through the 2013 settlement of The Commercial Appeal’s lawsuit establish Withers as a valued, long-term asset for the FBI inside the civil rights movement. His work in Fayette and Haywood counties comprises just a corner of an eighteen-year relationship that started in 1958 and contributed more than 1,400 photos and written reports to the files of the FBI’s massive domestic intelligence vault.4
As anticommunists beat the drum of dogmatism and civil rights activists stepped from the margins to challenge decades of rigid social order, the movement came under intense, even jaundiced, scrutiny. Who is loyal? Who is an enemy? Who would sow seeds of subversion? Promote violence? Or insurrection? These were the questions the FBI sought to answer as Withers aimed his camera at the movement.
Though he reported on some of the big names of the movement, most of Withers’s work for the FBI focused on its unsung foot soldiers, little-known activists like Danny Beagle, a wavy-haired twenty-one-year-old Columbia University graduate of Jewish descent who came to Fayette County in 1964 to help lead a series of marches, boycotts, and voter registration drives. Withers befriended Beagle and his comrades in the West Tennessee Voters Project, shooting numbers of pictures, including one depicting Beagle, smoking a cigarette, holding a teenage African American girl in his lap.
It was innocent enough.
Shot outdoors, Beagle and the young lady are surrounded by colleagues, sharing a laugh. But the FBI seemed intent on twisting its meaning. Lawrence found it intriguing enough to send a copy to Washington along with two other pictures. He directed them to the personal attention of William C. Sullivan, the FBI’s head of domestic intelligence operations—the same man who mailed the audio sex tape to Dr. King along with an anonymous letter suggesting he kill himself. “I thought these photographs might be of personal interest to you,” Lawrence wrote, noting they were shot by Withers, “who has gained the confidence” of the civil rights workers.5
“It’s creepy to be honest with you,” Beagle said years later of Withers’s snooping. “It’s creepy. I mean, you want to tell him, Ernie, get a life. I’m sure you have other things to do besides watch me. I’m not that interesting. You know, I’m not a threat to anybody. I’m just an idealistic young kid trying to do the right thing.
“And what are you doing?”6
* * *
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IT’S STILL UNCERTAIN when Lawrence and Withers met. Yet it’s clear their relationship blossomed during the racial unrest that gripped West Tennessee’s Fayette and Haywood counties.
Ringing Greater Memphis on the east, this rural sliver of the Deep South shared more in common with Mississippi than its relatively progressive neighbors in Tennessee. On a map, the two counties rise from North Mississippi like a virtual appendage jutting north from the twenty-five-mile border Fayette County shares with that southernmost state. The politics and culture were the same on either side of the state line.
Cotton was king. Jim Crow ruled.
No black resident had voted in either county for more than fifty years until the Department of Justice filed suit in 1959 accusing local officials of excluding African A
mericans from voting in local primary elections.*2 A consent agreement the following spring opened widespread voter registration. Yet the trouble only deepened. White merchants blacklisted African Americans, refusing them groceries, farming tools, and other necessities. Landlords forced longtime tenant farmers off their land.
By the end of 1960, as evicted sharecroppers heaped children, tools, beds, wood stoves, and other meager possessions onto open trucks, teetering into tent camps like so many Okies fleeing the Dust Bowl, the Justice Department filed two additional lawsuits. The government charged scores of whites in both counties with violations of federal election law.7
Withers jumped on the story. With his news cameras, he shot gritty pictures of the squatters in “Freedom Village,” the first of the Tent City camps. It rose from a twenty-acre field just south of Somerville, the Fayette County seat, days before Christmas. There, snake-bitten men like wiry Wyatt Williams, sixty, huddled against the 15-degree chill in military surplus tents, blanketed with children, grandchildren, and family dogs.
“We’s a fighting family,” Jet’s Simeon Booker quoted Williams as saying. “We ain’t scared and we ain’t begging. We want to be citizens.”8
Tensions had mounted over the previous summer as hundreds of African Americans registered. They stood for hours in lines that spilled out the doors of the brick courthouse in Somerville, winding across the sun-scorched lawn. Ladies shielded themselves with parasols; others fended off insults from passing motorists or dodged hot coffee poured from second-story windows. As many as 1,200 blacks voted that November in the presidential election—said to be the first votes cast by any person of color in Fayette County since Reconstruction. By December, hundreds were evicted.9
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