PREVIOUSLY ON ERNIE’S SECRET:
ANDREW YOUNG: Martin appreciated him for what his pictures were doing to help publicize what we were doing.
ROSALIND WITHERS: The fact that he had a tool that exposed the injustice and he put it in front of the media the way he did, gave them life or let them keep their lives.
COBY SMITH: Every time I go to a movement activity, he'd be there. Every time we had a church rally or something, he'd be there.
MARC PERRUSQUIA: And this is a quote. “Oh, yeah. He's been an informant.”
[funeral music plays]
WES: The funeral procession moved slowly down Beale Street, led by a brass band. It felt like all of Memphis had come out that day in October 2007. They were going to usher their homegrown hero to glory.
ROSALIND WITHERS: Oh, wow. That's when I realized who my father was. I was like, wow.
WES: The outpouring of admiration for Ernest Withers was so great, that even his daughter was taken aback.
ROSALIND: They did a big celebration down Beale Street, and they did a motorcade throughout Memphis, places where my father had been.
WES: Ernest was a staple in Black Memphis, having worked decades as a photographer. He documented birthdays and weddings, the ins and outs of daily life. but his most vivid, his most intimate images– those were from the campaigns across the south for voting rights and desegregation. They had made him a civil rights icon.
ROSALIND: And the mayor of Memphis gave us police escorts like I've never seen at any funeral before or since, not here in Memphis.
WES: But that iconic reputation would soon come under intense scrutiny– because there was another story about Ernest, another story about his photos, and that story was about to emerge.
[funeral music fades out]
WES: This is Unfinished: Ernie’s Secret– I’m Wesley Lowery.
WES: A few months later, across town in the newsroom of The Commercial Appeal, Ernest's death had jogged the memory of reporter Marc Perrusquia.
More than a decade earlier, a confidential source -- an FBI agent who had worked in Memphis during the civil rights era -- had handed Marc a stunning tip. The agent claimed Ernest Withers, the legendary photographer, had been among the paid informants who helped the FBI monitor civil rights activists.
But in the years since, it had remained just that, an unconfirmed tip. Marc had never pursued the story.
MARC: I just let the whole thing drop. I never did anything with it. And it was only until after ernest died in 2007 at age 85, that I thought about this again.
WES: Marc realized that he might now have a way to figure out the details of Ernest’s time as an informant. Privacy rights are a lot weaker once someone has died– and that makes it harder for the government to shield information from reporters.
So Marc wrote up a public records request. He asked for any documents that the FBI had on Ernest. To the request, he attached a copy of Ernest's obituary, and he put it all in the mail, and then he waited.
MARC:I filed it and I didn't hear a thing back for months on it. As a matter of fact, I think the first thing that came back was that we have nothing.
WES: It had taken the fbi more than five months just to write Marc back and tell him and tell him “we've got nothing.”
Nothing– no documents, no records, not anything on Ernest Withers. But Marc knew that what the FBI was telling him could not be true. Because he knew that Ernest had an FBI papertrail.
Until now, I've told you primarily about Ernest's work– his role as the neighborhood photographer, his years on the front lines of the civil rights movement. But Ernest also had a series of run-ins with the police over the course of his life.
NEWS REEL: For two years, charges of political favoritism, and more recently of bribery, have plagued the Blanton administration's handling of executive clemency…
WES: In the late 1970s, aides to Tennessee governor Roy Blanton were accused of selling pardons, basically they were taking wads of money from people in exchange for a promise that the governor would free someone from prison.
NEWS REEL: ...the FBI has arrested three close Blanton aides in connection with an alleged clemency for cash scheme.
WES: Among those caught up in the scheme was Ernest Withers.
MARC: Ernest was involved in it as a, as kind of a street level broker, who’d go out and find these deals and run them back up to Nashville
The FBI opened an investigation and they put Ernest under surveillance - they took pictures of him and they taped his phone calls.
WES: The audio was hard to understand but Ernest is heard asking someone for 12 to 15 thousand dollars. In exchange somebody will get out of prison.
ERNEST, ON WIRETAP: I ain't never walked nobody. But I have the contacts to do so.
WES: “I ain’t never walked nobody,” Ernest says, “but I have the contacts to do so.”
MARC: He was a bag man, essentially, and he was delivering suitcases full of cash.
WES: Ernest pled guilty to extortion, and served five months in prison for his role in the so called “clemency for cash” scheme. All of this happened decades before Marc Perrusquia began looking into Ernest. But it was important to him now. Because this case was how Marc knew the FBI was lying when they said they had no files about Ernest Withers.
MARC: They had to have at least a sheet of paper on him. There was not– it wasn't the case where there was nothing because he was investigated in that criminal investigation in 1977-78.
WES: I've heard Marc tell this story probably a dozen times -- how he first got the tip, how he didn’t do anything with it, how after Ernest's death he filed his records requests. As a reporter myself, I've always found the whole thing a little perplexing. There’d been a relatively easy way to figure out if Ernest Withers had been a snitch.
WES: Did you ever call ernest?
MARC: I didn't, I didn't call him about this. No, I didn't. I interviewed him late in life, because I was doing a series of stories about the corruption in Memphis, and I went down to his photo studio and I interviewed him about that. And I wanted, I really wanted to ask him if he'd ever been an informant. I didn't, because there was someone else sitting right there with him. I mean, again, I wasn't going to write about it and I just didn't want to embarrass him. Now, in retrospect, that was a mistake and I should have asked him about it, if nothing else, for the record. I mean, he could have just denied it or whatever, but I didn't do it.
WES: Yeah. Do you ever think now, “I wish I would just call Ernest like, ‘hey, man, I heard maybe you were an informant.’”
MARC: Yes. Yes, I do. I do. So I mean, yeah, I mean, there was a real opportunity missed there.
WES: Eight months after he sent in his second request, Marc walked into the office and found a thick, letter-sized envelope sitting on his chair– the return address: the FBI.
Inside there were 115 pages of documents-- a portion of the FBI’s investigation into the clemency for cash scandal. Page by page, Ernest’s role in the scheme unfolds.
MARC: Withers would not tell another– redaction– exactly how much it would cost to get the– redacted– inmate out of prison, but indicated it would be at least 12000 to sixteen thousand dollars.
WES: These documents were redacted– meaning that there were Black lines covering up details the FBI didn’t want to release. So Marc went through them, line by line. He was searching for any clues, anything he could find out about Ernest and his time as an informant. And then he spotted something.
WES: At first it looked like just another report-- rehashing the details of a potential bribe to get somebody’s boyfriend released from a prison. But on the bottom of the page, there was a reference to Ernest.
MARC: A code number in the sense, and what it says at the bottom of the report is “Ernest Columbus Withers,” formally designated as M E 338 R.
WES: Ernest Columbus Withers was formally designated M E 338 R.
MARC: The whole unraveling of Ernest's secret life as an informant turns on this one phrase in this one code number in the sentence.
WES: Six letters and numbers in the official FBI documents. And Marc knew exactly what they meant.
MARC: M E stands for Memphis. 338 is a sequential number. He was the 338th informant in the office. The R, the back of that was a suffix, it stood for racial informant. And these were individuals who were investigating what the FBI called racial matters. So subversion, unrest issues, well, that crossed over racial lines. And so Ernest had been recruited as a racial informant.
WES: Those words were supposed to have been redacted– Ernest’s identity as an informant was supposed to remain an FBI secret, forever. But the FBI’s mistake, the inclusion of these letters and numbers, they handed Marc some of the official confirmation he had been seeking.
WES: So what do you think when you read that for the first time?
MARC: This was my first confirmation that the, what the agent told me years earlier was true. That yes, he was an informant. This isn’t a waste of time. It's going somewhere and I think I can prove this now.
WES: It was a start-- but it was just a start. The document raised just as many questions as it answered. All that it proved was that the FBI considered Ernest an informant.
MARC: Because so what? I mean, you know, he's an informant, but what did he do? You know? And so, I've got that puzzle. I mean, it wasn't like I could go rifle off a story.
WES: You needed to figure out not just that he was an informant, but you had to figure out what the substance was.
MARC: That’s right.
WES: While the documents lacked details, they’d given Marc the key to finding them out. It was that code number: M E 338 R. Any information in any FBI file that was connected to that number, it came from Ernest. So by searching for other references to the number, Marc could decode which leaked information had come from this informant. So, Marc had to get his hands on some more FBI files.
[sanitation strike sound]
NEWS REEL: Later today as the march moves up towards city hall, Dr. Martin Luther King will speak to the striking workers and their supervisors…..
WES: Remember that sanitation workers strike in Memphis back in 1968– the one where Ernest took that iconic photo of the “I Am a Man” signs? Well, it wasn’t just protestors on the street that day. The FBI had been running extensive surveillance on the strike and on the people who were supporting it.
The important thing to know now is that the records about that FBI surveillance had already been released to a researcher. And so Marc reached out to him. He wanted to see if he could get his hands on the files as well.
MARC: So I got like 10 mail in boxes with all these, you know, reports.
WES: And these, are these are the FBI investigations into the sanitation workers strike and the invaders, the local Black power group?
MARC: That's right. That's right. And it was several feet of paper, and so what I did was I just set through page by page, going through it, looking for that number.
WES: He didn’t have to look hard. That number kept showing up, Ernest’s number.
MARC: Over and over and over again. They failed to redact M E 338 R at least 5 to 10 times when I was going through these papers.
WES: And so now, you know, because you have the documents saying that Withers was known by this number, you know, that every time you see that number show up, that unique identifier, that's a reference to Ernest Withers.
MARC: That's right. Because it is a unique identifier, it's assigned to him and only him.
WES: And that unique identifier lets Marc figure out for the first time what Ernest was telling the FBI.
MARC: He was passing on intel, passing on bits of information about activists, about their personal lives or about, you know, things that they were doing about meetings that they were going to and how they were planning to do sit-ins and whatnot. Just the whole thing is built and built and built and built.
WES: This wasn’t just gossip. According to these records, Ernest had spent years passing along real information and photos about the inner workings of the civil rights movement. Marc had what he needed to hit publish.
PBS NEWS: Finally tonight, a famed civil rights photographer who appears to have also done duty, double duty for the FBI…
WES: In September 2010, Marc broke the story. Ernest Withers, one of the most respected and beloved civil rights photographers, had been an FBI informant.
CBS NEWS: The Memphis Commercial Appeal has unearthed secret FBI files…Withers was also a paid snitch…
NPR: Now we learn that he was more than a man behind a camera. He was also an FBI informant.
WES: It was major news. It was picked up by outlets across the country– PBS, NPR, CBS. It was splashed on the front page of the New York Times.
ROSALIND WITHERS: Had ABC, NBS, CNN– every network was at my doorstep with mics in my face asking me, “was Mr. Withers an FBI informant? Was your father an FBI–” like, what are yall talking about?
WES: Roz Withers says she was blindsided by the story. And she was skeptical that Marc's reporting could be accurate.
ROZ:I knew nothing about it. Nothing at all. And that was the first I heard about it in that article, that my father was an FBI informant.
WES: There's some dispute between Marc and the Withers family about how much of a heads up he’d given them before he hit publish. More than a decade later, the feelings
remain pretty raw.
ROZ: I was confused, completely baffled, had no clue.
WES: You were caught off guard.
ROZ: Didn’t know.
WES: And members of the Withers family weren’t the only ones in Black Memphis skeptical of Marc and his reporting. Ernest had been a bonafide civil rights hero, and now here comes some reporter with some stash of secret FBI documents. If you’re one of Ernest’s family members or one of their friends, how much are you going to trust this outsider, this reporter who is not Black, who comes along decades later and calls ernest a snitch?
MARC: Well first of all, I know I look generally white. My ethnic background is– I'm half Mexican-American, half German. I don't,I don't like to be pigeonholed as a white guy. Just my personal thing. I mean, I do know that, you know, people tend to see me that way. So.
WES: Yeah, that they perceive you that way.
MARC: That's right. they perceive me that way.
WES: But you have personal experience that matters that's relevant to how you think about these things.
MARC: Oh, absolutely. Yeah. You know, I was attacked when I was a kid in my small town. There's a deep history. My dad had been a migrant worker and it was just a lot of abuse, a lot of ill will, and so it was something that followed me around for a long time.
WES: How does that color the way you think about your job and stories like this?
MARC: I mean, I'm very much wedded to the ethic of afflict the comfortable, comfort the afflicted. I think it's a true and tested value that we should embrace. And I, you know, I tend to identify it because my own personal experience is so sure. The ten thousand foot look of the Ernest Withers story as it relates to race to me– I never saw this as a race story. What I wanted to do from the time I got into this, you know, when this thing morphed from a conspiracy assasination story into something else, a surveillance story. It was, it was a civil liberties story. We got kinda the big picture that our government was spying on its own citizens in very intrusive, corrosive ways that were anti-democratic.
And so, you know, race is a component of this, obviously. But it wasn't the– I mean, to me, this is American history. And the, and the importance of it is the abuse of power.
WES: The way that Marc saw it, telling Ernest's story was a way of aiming at a much larger target-- the government’s unchecked power to spy on its citizens, to decide whose ideas were dangerous and whose needed to be destroyed. But just because marc saw it that way, as a story of unchecked government power, that didn't mean that everybody did.
ANDREW YOUNG: I was really sorry that it leaked out the way it did, because I don't think he deserved it.
WES: Civil rights leader Andrew Young said he didn’t think Dr. King would have minded that Ernest was making some money on the side.
YOUNG: However he could get paid, whether it be jet, or the FBI, he should be encouraged to make a good living and tell a good story.
WES: But others veterans of the movement were a lot less forgiving. Dick Gregory, the activist and comedian who in the 60s had been partially targeted by the FBI, didn’t mince his words. “Judas” is what he called Ernest. Earl Caldwell, a journalist who had covered the movement alongside Ernest, told the PBS Newshour that he was stunned.
EARL CALDWELL: Well, because he was a journalist, and the Black journalists had made this commitment to the Black community that we weren't going to be spies. We weren't going to be eavesdropping for law enforcement, that we were going to be true to what we said.
WES: Others, felt understandably incensed.
COBY SMITH: I never thought that anybody would sell their own community out, and Ernest of all people.
WES: Coby Smith had been a young activist in Memphis when he first met Ernest -- and over the years, he grew to think of him as a father.
COBY: We did not know that he was keeping up with us. We thought that he was just a person who was out there, taking the pictures of course.
WES: The responses all made sense. Of course some people would be incensed. Of course other people would be skeptical. But maybe the most surprising response came from the FBI itself. After all, it was their documents that labeled Ernest an informant. It’s their files that contained his pictures and all the information that he’d shared with their agents. Marc had even gotten hold of the personal notes of the FBI agent who ran Ernest. Those notes confirmed that he was paid, that he took assignments, that he was an important source in Memphis.
But nothing that the newspaper put out in public seemed to matter to the FBI. The agency was standing its ground.
MARC: They don't know what the hell we're talking about. That ernest had never been an informant. And it caused a lot of heartburn for me.
WES: Because this is after you've written in the newspaper that he was an informant who had–
MARC: Written on the front page and provided what I thought was tons of evidence that he'd been an informant. And they're basically saying, no, you're wrong, he's not an informant.
WES: But Marc still wanted to know for sure whether his reporting had been right-- he wanted that final confirmation that Ernest had been an informant. So he only had one option left: he sued the FBI.
That’s after the break.
CHUCK TOBIN: I was stepping off a train in Manhattan from Washington to do some work in New York city. And the telephone rang.
WES: Chuck Tobin is a first amendment lawyer-- and it was Marc's newspaper that was calling. They wanted him to take on their case.
TOBIN: I knew it would be a historic moment because we were trying to add to the story of the civil rights movement. There were going to be a lot of people who wouldn't want that story told.
WES: Chuck has handled some pretty major cases helping journalists get government files.
TOBIN: The Comey memos case, the Mueller reports, the January 6 insurrection…
WES: Even compared to all of those, the fight to get ahold of the FBI’s file on Ernest Withers still stands out to him.
TOBIN: I would say that the Withers case was the most intricate, interesting and important in terms of the historical reckoning of the civil rights movement and the uniqueness of cracking the government's right to lie under the exception to the freedom of information act. I've never dealt with that issue before or since.
WES: The stakes were really high. This was 2012-- newspapers across the country were hemorrhaging staff, or shutting down altogether. The Commercial Appeal, Marc’s paper, had recently laid off half of its news staff and more cuts were coming. Suing the FBI– that was going to cost thousands of dollars. And what if they lost? It would forever stain the paper’s reputation. Maybe some readers would believe that maybe the paper had twisted, misunderstood, or exaggerated what Ernest had done.
They were in for a tough fight.
TOBIN: This was not only a single instance with Ernest Withers that we were challenging here, we were challenging, in their view, their entire system, their entire way of doing business. And in their view, the way protecting the public through the system of confidential informants, and in the FBI’s view, when they have somebody under confidence and as an informant, that's a deal that they make for life, for for the life of the country, for the life of the FBI, not just for the life of the informant.
WES: What's the first amendment, the public's right to know argument for why we should have access to Ernest Withers’ confidential informant file?
TOBIN: That's true. Our federal government did make a deal with this man that he could be confidential. And now we are asking the federal government to break that deal and give us records.
We're talking about the government surveillance of lawful activity of citizens of The United States in protesting the acts of their government. The civil rights movement was not a criminal enterprise. It was a legitimate protest movement. And so when we're talking about government spying on American citizens, exercising their first amendment rights, there's a lot of public interest in that information.
WES: It turns out that the government has an arsenal of laws allowing them to hide these types of records. In cases involving confidential informants, the government is allowed to outright lie-- they can deny that the records even exist.
TOBIN: Under the exception the government has a license to lie and to tell the public that it has no such records. And so the FBI invoked their license to lie and told us that it had no records on Ernest Withers.
WES: So essentially, to paraphrase this right, they don't even have to tell you whether or not they have any records if they do exist, and in fact, they can tell you they don't exist even if they do.
TOBIN: And that's exactly right.
WES: But Chuck had ammunition of his own-- the FBI's own documents, the one that had exposed Ernest's FBIi informant number. The FBI said including the number was an accident. They never meant to send it to Mark. But what Chuck argued was that it amounted to an official confirmation.
TOBIN: And we made the argument to the judge, “how many times do they get to make a mistake before you're going to tell them that you've officially confirmed?”
WES: Yes. That each time you release in the public a document that contains this information, what more official confirmation could there be than this FBI document with the information?
TOBIN: Absolutely. I argue to the judge that just because they now realize they made a mistake and regret it does not mean that it wasn't official. And she agreed with us. She said it strained credulity to argue that the FBI did not officially release the information when they did it not once, not twice, but three times.
WES: Months into the lawsuit, Marc was handed his first major victory-- Judge Amy Berman Jackson told the FBI that it had to acknowledge that Ernest had been an informant, and she ordered them to turn over an index of every file they had on him-- a list, showing which records were sitting in the FBI vault.
The FBI finally admitted that Ernest worked as a confidential informant. But the agency still wouldn’t surrender.
TOBIN: The government still fought, fought with motions for reconsideration, with appeals. it continued to dig its heels in again.
WES: The FBI battled back for months-- until August 2012, when Judge Jackson called both parties to a hearing.
TOBIN: It happened to be the anniversary of the March on Washington and “I Have a Dream” speech. And she said to the government, “look, I am not comfortable with your argument that this was a legitimate law enforcement investigation, that Ernest Withers was participating in. And I'm not really sure that's the argument that you want to make here.”
She was shaming the government and saying to the Department of Justice, in this day and age, does this president really want to say that the investigation of the civil rights movement was a legitimate law enforcement investigation?
WES: The judge is saying, here we are in the Obama administration. We've got the first Black attorney general. And is the DOJ really going to walk into my courtroom and say, no, our spying all those decades ago on Martin Luther King and the civil rights movement, that was legitimate and we can't release any information about it even now. In 2012.
TOBIN: She was definitely holding up a mirror to the government and saying, seriously? Is this the look that you want to put on in this courtroom in this day and age?
WES: The judge suggested mediation-- basically a negotiation between the two sides to see if there was any way they could come up with a compromise. And so Chuck began haggling with the FBI. Ultimately they struck a deal-- the bureau would release 70 of the 135 files that it had on Ernest. And as part of the deal, the FBI agreed to pay the newspaper for all its legal fees-- one hundred and eighty six thousand dollars.
TOBIN: We put that nose under the tent and now have precedent for the release of historic confidential informant information. And the public benefited. The surveillance of the civil rights movement was a deep and dark period in American history. It's capable of repetition. Right after 9/11, we drew a lot of parallels for the infiltration of the Muslim community here in Northern Virginia. Mosques were under surveillance and undercover agents were being sent in and raids were being performed by the FBI on child care centers and the like. And so there's a lot for the American public to learn about its past so that it doesn't repeat its failures in the future.
WES: Were you surprised that you were able to get Marc these documents?
TOBIN: Yes, because it was such an uphill battle and we were clear up front that it is really, really hard to crack that nut of confidential informant information, confidential informants, grand juries. Those are two of the big totems, the big areas that the government really will go to the mat on every time. And so, yes, we were very surprised.
WES: Just a few years later, Chuck Tobin was in Memphis for a conference– and during a break, he decided to take a walk down Beale Street.
TOBIN: And I found myself standing in front of a storefront with some beautiful Black and white photographs. And I just, you know, was just caught in the moment dreaming about what I was looking at. And I looked up and it was the Ernest Withers museum. And I thought fate brought me here. I need to go inside.
Ernest withers was an enormously talented man, beautiful art work up and down that gallery. And I have to tell you, I felt a little bit like an undercover agent myself. And at some point I was just staring at one of the pictures and a young man came up and introduced himself as the grandson of Ernest Withers, one of the family members.
WES: What are you thinking?
TOBIN: I'm thinking, I hope he doesn't ask me, you know, anything too specific about what I do! So, you know, I just, I told him the truth, that I was really captivated by the artwork.
WES: Chuck ended up buying two photos that day, the “I Am a Man” picture and another one of a Black girl sitting in a stroller being wheeled by her father. She’s holding a sign that reads “Daddy, I want to be free”
TOBIN: They're being stared down by a bunch of white cops sitting in a patrol car, intimidating. I chatted it up with the Withers family member and he told me that the little girl is now a doctor, a pediatrician in the Memphis area. Well, my heart be still.
WES: So here you are among the people who did as much as anyone to complicate Ernest Withers legacy, in that we now know that even as he was taking these types of photos, he was providing information to the FBI. And there's plenty of debate about how damning that information was or how much it should complicate his legacy. But just the disclosure itself certainly complicates it. And even as you're in the midst of this fight, find yourself so moved by his work that you're purchasing it off the wall and bringing it home.
WES: What do you think that says about Ernest?
TOBIN: I think he was a complicated profile, a complicated man. He had the respect and trust of Martin Luther King Jr. and others in the civil rights movement. And you can't get that, you can't fake your way into that. And so there was a sincerity, I'm sure, in the man and in his sympathy for the civil rights movement, but at the end of the day he did make a choice. He made a choice to inject himself into a period of American history. He made a choice to betray the confidence of a number of people who trusted him, whatever his motive, whatever his reason. And at the end of the day, we need to understand those choices that people make and the government that takes advantage of them.
WES: [echoing] The choices people make and the government that takes advantage of them. That's exactly what we’ve set out to understand. How much did the government take advantage of Ernest-- just how much choice did Ernest really have?
BETTY: The FBI was not seen as the enemy per se, the FBI was the federal law enforcement that could protect Black people in the face of white police or state troopers or sheriffs that weren't going to protect them.
ROZ: They were the best of the evils.
WES: The FBI was.
ROZ: Yeah, they were the best of the evils.
WES: That’s next time on Unfinished: Ernie’s Secret.
This season of Unfinished is a co-production of Stitcher and Scripps. Our senior producer is Roy Hurst. The editor is Tracy Samuelson. Our show was written by Ellen Weiss. Executive producers are Kameel Stanley and Ellen Weiss. Our music is composed by Edward “Tex” Miller. Mixing is by Casey Holford. Special thanks to reporter and author Marc Perrusquia for sharing documents, sources, and his years of work on this story. Marc is the author of the book A Spy in Canaan: How the FBI Used a Famous Photographer to Infiltrate the Civil Rights Movement. He’s currently the director at the Institute for Public Service Reporting at the University of Memphis.
Thanks also to the WGBH archives. We had production help from Mckenna Smith and Suzanne Reburn. Our FBI documents were brought to life by actor Corey Landis. Fact checking was by Kelvin Bias. Stitcher’s Vice President of Content is Peter Clowney. If you like the show and believe in this kind of storytelling, please give us a five star review on Apple Podcasts. It’ll help more people discover Unfinished. I’m Wesley Lowery, thanks for listening.