A Spy in Canaan

by Marc Perrusquia

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  THE STORY OF this revelation runs through the inner office of a federal magistrate judge in Washington, D.C., the eclectic Alan Kay. It was autumn 2012. I sat in Kay’s chamber gazing at his bookshelves. Beside a large collection of law books is a mannequin head. It stares lifelessly from behind a pair of bushy-eyebrow Groucho Marx glasses. But it was the string of colorful beads dangling from its neck that caught my eye. Nervously, I focused on them as we waited for Kay to join us. It was odd, even absurd, that it had come to this. But finally, after so many years, the details of Withers’s secret work for the FBI seemed about to unfold.

  I sat with my attorney, Chuck Tobin, a brainy former news reporter, who now practiced media law at the Washington office of Holland & Knight, a firm that expertly represents journalists around the country. At my other side sat Dave Giles, corporate counsel for Scripps, the Cincinnati company that owned The Commercial Appeal, and also a former newspaper reporter. I couldn’t help but chuckle as I recalled what John Ford said when he’d threatened me all those years earlier, “I’ve got five damn attorneys!” Well, I had two, anyway. And another back at Holland & Knight’s offices. We were ready for this.

  We had assembled here for court-sanctioned mediation, a most unusual step for a FOIA lawsuit. It followed an astonishing series of decisions we’d won in U.S. District Court. We kept winning—but the FBI kept fighting.

  Its lawyers filed repeated motions for reconsideration. They threatened an appeal. Just when it appeared hopeless, a breakthrough came.

  Judge Amy Berman Jackson, the Obama appointee who presided over our suit, suggested mediation—and the FBI jumped at it. To oversee our deliberations, she appointed Magistrate Judge Kay, a graying veteran jurist who’d gained attention for some fiercely independent rulings against the Bush administration that gave Guantanamo Bay terrorism detainees speedier access to attorney representation.

  Things definitely were looking up.

  We blinked across the mahogany table at four government lawyers: Two from the FBI. Two from the Department of Justice.

  I’ve often thought that if they knew how desperate we were they never would have agreed to this. Two years after filing the lawsuit, we’d shelled out hundreds of thousands of dollars in legal fees. The math didn’t add up on this one: Amid a nationwide crisis in the newspaper industry, The Commercial Appeal had laid off half its news staff over the previous eight years, and the cutbacks kept coming. An appeal could add years of litigation and thousands of dollars more in costs.

  If this were a game of strip poker, then we on the news side were sitting at Kay’s table in our underwear.

  But the government was naked.

  * * *

  —

  AS WE’D DISCOVER, the FBI was extremely distressed over the state of the Withers litigation. If Judge Jackson’s rulings held up on appeal, the integrity of its confidential informant program could be jeopardized. Future litigants might build on our precedent to penetrate confidentiality the FBI had promised its informants.

  Ironically, the case turned against the FBI as it employed a powerful yet little-known hammer in its government-secrets tool chest, the so-called exclusions to the Freedom of Information Act. These exclusions allow officials to hide certain records and even mislead a FOIA requester seeking information involving confidential informants.*4

  This tactic gave us fits at first.

  From the very start, they hid records using one of the exclusions—we just had no clue what they were doing.

  When I first filed a FOIA request in 2008 seeking details about Withers’s activities as an informant, the FBI responded saying, “no records responsive to your…request were located.” “Responsive” was the critical word. It has special meaning in FBI parlance. We just didn’t know it at the time. When we later filed suit in November 2010 seeking his informant file, we got more shaded answers. We contended in our suit that Withers served as an informant and that the FBI held documents concerning his involvement in domestic surveillance. The Bureau’s lawyers replied that this was our “subjective characterization” and that “the FBI is without knowledge or information sufficient to form a belief as to the truth of the…allegations.”

  “The allegations are therefore denied,” they responded.

  Again, when we asserted that released documents already confirmed Withers was an informant—specifically the one bearing Withers’s informant number, ME 338-R, and another listing him as a “Conf. Infor.,” FBI shorthand for confidential informant—the Bureau gave a flat denial.

  “The FBI denies the allegations…,” its lawyers wrote.11

  It seemed they were saying our front-page assertions simply weren’t true: Ernest Withers had never been an FBI informant.

  * * *

  —

  MY BOSS, CHRIS Peck, was greatly disturbed. He’d stuck his neck out on this. Way out. Not only did he publish a story picked up by The New York Times and network news—a story that some readers took as proof that Withers betrayed the civil rights movement—he’d persuaded his bosses at Scripps headquarters to finance a lawsuit. I’ll never forget the day we met in Peck’s office in early December of 2010, days after the FBI’s response. I’d never seen him like this. He shot me a look of skepticism as he spoke with Tobin, our Washington counsel, on speaker phone.

  “The concern I have is they seem to flat-out deny this,” Peck complained. “Is that a legal tactic, or are they saying in truth he wasn’t a confidential informant?”

  Tobin wasn’t sure.

  “I don’t have the answer for you on that because of the way it’s worded,” he said. “I can’t answer the murkiness.”

  These were rocky days. As our litigation dragged on, Withers’s family grew increasingly antagonistic.

  They were threatening a suit of their own.

  “The sons of famed civil rights photographer Ernest Withers are ‘lawyered up.’ They’re prepared to defend their father’s legacy in a courtroom, if necessary,” the local NBC affiliate, WMC-TV Channel 5, reported. The news station’s story featured Withers’s two surviving sons, Joshua “Billy” Withers and Andrew “Rome” Withers, who came to the Channel 5 studio, a lawyer at their side.

  “What is being portrayed is a 180-degree difference than what we actually know,” Billy Withers said. His father’s photography work, he said, included periodically interacting with law enforcement—with police and the FBI—as newsmen often do when working stories. But that journalistic routine was made to look as though Ernest Withers was “just an informant,” he said. The brothers’ lawyer, J. Stephen Toland, offered a stern warning: if this distorted portrayal continues, it could interfere with the Witherses’ efforts “to carry on good works in the community” through a foundation they’d started, he said. In that case, “we will address all those grievances in court and seek those remedies we’re entitled to.”12

  All this increased the pressure. If our lawsuit failed—if we never got another record out of the FBI—the question about Withers’s involvement with the agency would be forever muddled. Despite the many details the newspaper had already laid out, critics would always contend we’d misinterpreted what Withers did. We’d overplayed it, twisted it.

  We had no formal admission from the FBI, no record that directly stated, “Ernest Withers worked as an informant.” In fact, what we had were a lot of statements from the agency that collectively seemed to deny any connection to the photographer.

  Then, suddenly, it all began to change.

  * * *

  —

  THE FIRST BIG break in our litigation came in June 2011, seven months after we sued. It resulted from a cunning move. Our lawyer, Chuck Tobin, had filed a motion for summary judgment back in January, before the government got a chance to file one of its own. Typically, the government goes first. The move forced the FBI into a defensive stance. And when their attorneys finally responded, on June 15, it paid off. We finally figured out what they were doing.
<
br />   The government revealed it was relying on an obscure provision in the law, one of the so-called FOIA exclusions that allows it to completely obscure certain information involving ongoing investigations as well as details involving confidential informants and foreign intelligence.

  “Plaintiffs are not entitled to Withers’ alleged informant file, even if such a file exists,” the FBI’s lawyers wrote, citing a statute, 5 U.S.C. 552 (c) 2). Passed in 1986, it maintains that information about an informant is not subject to FOIA if the FBI has not first “officially confirmed” that individual as an informant. Essentially, this powerful law allows the government to treat these records as if they don’t exist—they are excluded from the requirements of FOIA.*5

  Even Tobin, a veteran media-law litigator, hadn’t heard of this before. He went to work to learn about it. Spreading the government’s papers across his spacious office overlooking the Washington skyline, he and his young associate, Christine Walz, discovered the (c)(2) provision was passed as part of the Reagan-era Anti-Drug Abuse Act. They quickly formed an opinion that the government was abusing this provision in regard to Withers, a deceased political informant whose work for the FBI had ceased forty years earlier. Reviewing the congressional record, the lawyers found the provision was crafted for extraordinary circumstances involving sophisticated drug cartels that might use FOIA to uncover ongoing investigations and informants snitching on them. In 1987, a year after the provision passed, then–attorney general Edwin Meese issued guidance to invoke the exclusions in “certain specified” and “especially sensitive” circumstances—a limitation we believed the FBI overstepped.13

  As Tobin and Walz looked for holes in the FBI’s case, they focused on those two peculiar words in the (c)(2) exclusion, “officially confirmed.”

  What did it mean?

  “Whenever informant records maintained by a criminal law enforcement agency under an informant’s name…are requested by a third party,” the statute says, “…the agency may treat the records as not subject to the requirements of (FOIA) unless the informant’s status as an informant has been officially confirmed.”

  Images come to mind of the FBI formally revealing an informant’s identity at a news conference—or on a gold-embossed press release. But it would never do such a thing. The FBI does, in effect, “officially confirm” an informant who is compelled to testify in court. But short of a courtroom admission, which is rare, there is little to rely on in defining “officially confirmed.”

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  —

  TOBIN AND WALZ came to focus on the document I’d discovered linking Withers to his informant number, ME 338-R. They argued that in releasing this, the FBI had officially confirmed Withers as an informant.

  The FBI zealously pushed back.

  The release of the informant number was a mistake, the government’s attorneys said, not official confirmation: “To the extent plaintiff Perrusquia claims that the FBI’s release of Withers’ public corruption files disclosed information from which he could deduce Withers’ alleged status as a confidential informant, any such disclosure would have been inadvertent.” In their pleading, they also added this classic line: “Logical deductions are not…official acknowledgements.”14

  It certainly was a mistake.

  But then the FBI made another—and it cost them the case.

  Attached as an exhibit to an official court pleading, the agency rereleased the document listing ME 338-R. Once again it redacted the words that followed that number. We always believed the missing words identified Withers’s informant file. This is how the passage appears:

  Ernest Columbus Withers was formerly designated as ME 338-R (white-out redaction here of about six to eight words) captioned ‘Ernest Columbus Withers; CI.’

  As before, the FBI again cited FOIA exemption 7D, which protects identities of confidential sources. This time, though, the Bureau added additional detail: the subcategory of 7D it relied on protects “confidential source file numbers.”15 It was another eureka moment. In essence, the FBI had “officially confirmed” the existence of Withers’s informant file—in a court pleading, no less. Tobin was ecstatic over the phone. He was beginning to rout the government’s lawyers, and I could tell the former newsman was thoroughly enjoying it.

  * * *

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  BY THE FOLLOWING January, Judge Jackson had seen enough.

  “The FBI persists in its position that the informant’s status has not been confirmed,” she wrote in January 2012, ruling that Withers’s status as a confidential informant, in fact, had been officially confirmed. “This argument is not worthy of serious consideration and it insults the common sense of anyone who reads the documents.”

  Citing the reference to ME 338-R in the FBI document and two others listing Withers as a “CI,” and a “Conf. Info.,” she ordered the FBI to produce a Vaughn index*6 that would lead to the public release of at least a portion of his informant file.16

  Finally, that July, after all its many denials, the FBI admitted in court papers that Withers had worked for the agency as a confidential informant.

  “The FBI…located records relating to Withers’ service as an informant at both FBI Headquarters and the Memphis Field Office,” the agency said. “The FBI did not initially identify these records to plaintiff Perrusquia as responsive because, in its view, those records are not subject to the FOIA.”17

  Still, despite its admission, the FBI wasn’t quitting. In filing a Vaughn index, the agency didn’t itemize documents in Withers’s informant file. Instead, the agency merely listed categories of FOIA exemptions it said shielded the records from disclosure. The fight continued.18

  The FBI fired back with a series of filings: It asked Judge Jackson to vacate her order. It filed an affidavit—ex parte, for the judge’s eyes only—by FBI in-house historian Dr. John F. Fox, Jr., hoping to persuade Jackson to reverse her ruling. When none of that worked, it filed a motion for reconsideration. Finally, it filed a notice of appeal to the District of Columbia Circuit Court.19

  In the meantime, a final star aligned: Judge Jackson suggested mediation. On August 28, 2012, with attorneys from both sides gathered before her, she noted this “is the 49th anniversary of the ‘I Have a Dream’ speech on the steps of Lincoln Memorial just down the street.” She acknowledged the government’s desire to protect the privacy of what it characterized as lawful criminal investigations and national security investigations Withers took part in. She noted, too, with an obvious tone of skepticism, no one believes anymore that the FBI’s harassment of Dr. King amounted to a lawful investigation.

  “The reason I scheduled the status hearing today is it seems to me that this case cries out for some sort of solution that is structured by the parties rather than a litigated result,” she said.20

  Much to our surprise, the FBI agreed. Following a joint motion to stay the proceedings, we were on our way to the negotiation table.

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  BETSY SHAPIRO WORE a bright red Washington Nationals baseball jersey and held a pair of tennis shoes in her hand. As the celebrated lead attorney for the Department of Justice’s government information section, she came to Judge Kay’s chamber for our much-anticipated mediation session. But clearly her heart was elsewhere on this warm October afternoon. A long-suffering baseball fan, she was heading after the meeting to Nationals Park to watch the first home playoff game in Washington since 1933. But first she had some business to conduct.

  Looking back now, I realize the Ernest Withers settlement wouldn’t have happened without Betsy Shapiro representing the FBI. She stepped into a bad predicament and made the most of it. Tough, charming (as an icebreaker at one session she presented me with a black-and-white coffee mug from the Newseum bearing the inscription, “Trust me…I’m a reporter”), and capable, she took charge. She did her best to protect the government’s interests, simultaneously working, in the spirit of compromise, to unfold this hidden history from one of America’s most trouble
d periods.

  Minutes into our first session, Shapiro indicated that the government was ready to negotiate. First, she had a word of caution.

  “We’re not afraid to appeal,” she advised sternly. The FBI isn’t going to produce Withers’s informant file, she said flatly. There were just too many sensitive details there: such files can contain records detailing pay and recruitment and assignments received from agents, even reports written by the informant himself.

  But she offered a compromise: The FBI had identified reports in Withers’s informant file that were copied to about one hundred and fifty separate investigative files—cases starting in the late 1950s and running into the ’70s in which Withers had provided anything from small tidbits to large swaths of information. Over the years, these files had been transferred to the National Archives and Records Administration (NARA). The FBI would produce a list of these files. From that list I could pick thirty-five files.

  NARA would then release all materials related to Withers in these thirty-five files. Shapiro and her colleagues agreed they would not redact any reference to the photographer, including his name or his informant number, ME 338-R. As Shapiro talked, I masked my enthusiasm. This was nearly as good as reaching into Withers’s informant file.

  “There’s a bonus,” Shapiro explained. Few if any photographs were retained in Withers’s file. The FBI routinely routed photos he took to the individual case files. An FBI attorney with a security clearance had reviewed a sample of the files at NARA—the pictures indeed are there, she said.

  At our request, Shapiro personally reviewed one of the largest case files Withers had worked on, the FBI Memphis field office’s 1968 to 1970 investigation of Dr. King’s Southern Christian Leadership Conference. “There are photos in there,” she advised.