Politics

The Cigarette Smoking Man

I filmed inside the Capitol riot. When I heard from the FBI, I faced a vexing dilemma.

The photo of the "cigarette smoking man" from the Jan. 6 Capitol riot, as if seen through a viewfinder.
Photo illustration by Slate. Photo by Aymann Ismail/Slate.

I don’t know much about the guy smoking the cigarette. All I know is that in the middle of the Capitol building on Jan. 6, as the Trump-loyal mob raged around him, he stood off to the side for a cigarette break. I approached him. I quickly identified myself as a journalist and asked to take his picture. “Hell ya,” he replied, and posed for me, pulling his jacket apart to reveal a bright, MAGA-red shirt emblazoned with “Trump Is My President.”

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I took his photo in between documenting rioters smashing through doors and windows, threatening journalists, and eventually clashing with police. I didn’t think of it as particularly remarkable. It was one of a handful of photos I published as part of a written account of what I saw that day.

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I hadn’t seen the image again until someone sent me a link to the FBI’s Most Wanted website recently. There, marked Photograph #390, I was a little startled to find the guy smoking the cigarette, in the smirking pose he struck for me that day. I had no idea how my photo got there.

After I wrote my original story on Jan. 6 and published more photos and videos that week, hundreds of replies flowed in on Twitter and elsewhere. Some mocked the people I documented. Others threatened me. But by far the most common response was that I must turn over all my materials from that day to the authorities immediately. The requests arrived by the dozens, from anonymous accounts and celebrities alike. “Please give all photos to @FBIWFO,” the actress Patricia Arquette implored me.

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This all made me uneasy. I have more than 1,000 unpublished photos and videos that I shot at the Capitol riot, archived on a backup hard drive. They’re collecting dust in a closet at home, and I often wonder if I could be making better use of them. Camera misfires and awkward in-between frames felt too sacred to delete given the momentousness of what happened, but I’m not sure what else to do with them.

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The FBI can read my work like anyone else—and, I would later learn, it did—but I was very reluctant to turn over my unpublished data to the government. Frankly, a lot of my work leading up to that day and afterward has been devoted to how law enforcement failed to prevent what happened, even as the rioters marauded around the Capitol and destroyed much of it. I was in D.C. as a journalist to show what these systemic failures, and many before them, had wrought. I was certainly not there to help the agencies that had failed in the first place.

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In the months since, though, plenty of people have done exactly that. Ronan Farrow and other journalists have used their platforms to direct readers to the FBI tips line. There are the “sedition hunters” made up of out-of-work actors and business consultants and stay-at-home moms who comb through hours of video and photos to try to track down and name individual rioters. From my own trove, I think it’s pretty likely the internet would find a clue that I’ve missed. I only noticed the guy with Nancy Pelosi’s nameplate in a corner of one of my frames after sorting through photos dozens of times. The hunters have made some headway: An Air Force veteran was unmasked by a crowdsourced effort on Twitter after he was photographed on the Senate floor wearing tactical gear and carrying zip ties. He was among the first to be arrested and charged in connection with the riot. But this can be perilous too. These self-styled detectives have wrongly identified Capitol rioters, like a retired firefighter who was 700 miles away.

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I know my published work has been used in similar online ID expeditions, and I accepted that, even if it’s not what I intended. And I felt confident in my position that that was not my role to do more. Then I saw my photo on the FBI Most Wanted site, and I wasn’t sure what to do. So I called the FBI and asked where it got my photo.

I reached the FBI through a public channel. After initially speaking off the record, one FBI employee told me I could recount the basics of our conversation.

“We’re told it came to us from an online tip, on our digital tips line,” the employee told me of my photo. I’d posted it and others to the internet, so it’s likely someone saw it and submitted it themselves.

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I asked if the FBI was pursuing the work of journalists to help with their Jan. 6 investigations. The answer here was cagier, and I was asked not to quote it directly. The employee said that if agents saw an image or video and wanted to know more, there’s a rigorous process for approval required before they can make any initial contact with a journalist like me. They might ask if I was willing to talk to them about it. And if I wasn’t, they might consider subpoenaing the news organization. I was reassured this is highly unlikely, but I know well this story can end a lot differently.

The employee asked if I wanted the photo removed. In the moment, I declined. I didn’t put it there, but it made its way to the agency from my published work, so I decided to let it be.

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Then, weeks later, I was contacted by someone else at the FBI. “Good afternoon Mr. Ismail,” the new email read. “I’m contacting you regarding your video footage it appears you took during the Capitol riot.” He included a link to a video I posted to Twitter months ago of a paramilitary right-wing extremist group violently accosting a camera crew on the Capitol grounds. “I’m interested in several of the individuals shown in your footage,” he wrote.

I agreed to discuss it more. But over the phone, the FBI agent, who asked not to be named, sensed my discomfort with speaking with him at all.

“It’s a little tense, right? Because you guys have your job and we have ours,” he said. “We want to be very careful when we talk to journalists like yourself and respect your ability to collect information. I just want to let you know that. Because of that relationship, we’re constrained on what we can and can’t ask you for. So, if it seems like I’m being kind of weird, just know that I have my own limitations, and I can’t ask you questions I otherwise would without getting significant additional approval.”

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He assured me I was under no obligation to cooperate. “This is not us demanding or ordering anything. That’s not what this call is. This is a request for you as someone who has footage in this case,” he said.

The conversation turned to me. “You were physically there, correct?” he asked. I’ve already conceded as much in my reporting, but I don’t care to say as much to an FBI agent over the phone. I asked if he’d read my account of what I saw at the riot that published in Slate. “I did,” he said. “I’ll stop myself from saying more. I’m not trying to get you on anything. Don’t worry.”

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We didn’t talk much more than that. I wasn’t under any legal pressure. But it was clear the offer was on the table to share what I had.

As I thought about what to do, I spoke to Mickey Osterreicher, a longtime photojournalist and now the general counsel for the National Press Photographers Association. He told me my dilemma reminded him of a case last year in Seattle: In a 90-minute window when George Floyd protests had turned violent there, rioters set fire to police cars and stole several weapons. The accessible security footage was too blurry to help the Seattle Police Department, so it subpoenaed several news outlets that were reporting nearby for their raw media.

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“They fought tooth and nail to not turn those images over,” Osterreicher told me. “They had that same dilemma, like, ‘If we don’t cooperate, maybe something bad is going to happen with these people and the guns.’ But there is a bigger principle that is involved here. It’s not the job of journalists to do the work of police. Because if we give them images that weren’t published, how about when they come and say, ‘Hey, we know you wrote this story; we want your notes.’ ”

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The news organizations had argued they were protected by the “shield laws” that safeguard some journalists from law enforcement subpoenas. But the case dissipated after the Seattle police arrested a suspect without the journalists’ unpublished work.

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Osterreicher said the answer in these cases is often what I had already done.

“The solution is kind of an elegant one. And it’s very simple: The story is about these images and videos. So just use them with the story and say, ‘Here they are. They’re published. Knock yourselves out,’ ” he said. “That’s why you were out there. You were out there to photograph and record and gather and disseminate news and information and images to the public. If you’re doing a public service by publishing those, then I would think you would be comfortable doing that, then directing the FBI or whoever to those images. If you’re not, then don’t,” he said.

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In his experience, that’s usually enough for law enforcement anyway. “They seem to have gotten what they need from the published images, just because most of the time, the strongest images got published. That’s pretty much the best way to approach this.”

In my case, the FBI clearly wanted more than what I had published. I have more shots of the cigarette guy, but I have no interest in helping prosecute him or other sideline faces from the crowd; that, to me, is simply not the value of my journalism from that day.

But then there was the video of the paramilitary group viciously beating on a crew of journalists. Another member of that same gang threatened me for recording her that day, demanding I delete the clip or face the consequences. (I walked away unharmed.) I am aware of the long history of violence from this group, some of it truly horrific hate crimes. I weighed it for several days, and I still don’t know if I did the right thing, but I reached back out to the agent and sent the full video of the attack.

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