Neither Confirm Nor Deny

Intro

0:00Hey, this is Radiolab. I'm Latif Nasser, and I happen to be allergic to peanuts, like even tiny traces of them. And when you have an allergy like this, you just go around every day paranoid that there are peanuts in everything, so you always check the ingredients. And at a certain point during my childhood, there started to be written on the back of basically everything in the grocery store. This phrase may contain peanuts. And that phrase drives me up the

0:32wall because it's like, yeah, duh, it may contain peanuts. That's why I'm looking at the ingredient list in the first place. You are not giving me any more information than I had before I read this, and it is your job to give me that information. The story we have for you today is about an equally meaningless phrase that arguably has even higher stakes for democracy as a whole. We made this episode over 10 years ago, but the phrase that it's about continues to flourish and be used at the highest levels of the American government,

1:06including for cases like Jeffrey Epstein and the war in Iran. I can neither confirm nor deny that you will enjoy it. Yeah. Wait, you're listening. Okay. All right. Okay. All right. You're listening to Radiolab. Radiolab. From WNYC.

1:31Rewind.

1:34Hey, I'm Jad Abumrad. And I'm Robert Krilwich. And today on the podcast... Hey, Robert, can you scoot back a little bit from the mic? I think I won't worry. We have a cloak-and-dagger maritime adventure in secrecy and truth from reporter Julia Barton. So, Jeff, maybe first you could start off just by introducing yourself. Yeah, so the story for me begins with this guy. Yeah, my name is Jeff Larson. I'm the data editor at ProPublica. ProPublica is this investigative journalism outfit, and Jeff does a lot of their... Data-based reporting. So, in any case, it was summer of 2013. You know that big story about how the NSA had just

2:04been monitoring millions of Verizon customers? Mm-hmm. That just came out. Jeff's watching the story like all of us are, and then the thought occurred to him, geez, they're monitoring all of these people. Hey, does that include me?

2:18So, he goes over to the NSA's website. He was surprised to find it right there on the site.

Jeff Larson Introduction

2:24You could file a Privacy Act request for your metadata. They have a little online form right there. This is a service that they offer to everybody. And so I went ahead and did that. And this is yourself you're requesting? You're saying, what do you know about who I called and who I heard from? Yes, exactly. What were you expecting? The best case scenario would be just a, you know, a page of all of the communications actually to my wife. My wife's a Verizon customer, and I'm an AT&T customer, so all my phone calls

2:55to my wife, I guess. I didn't think that I would ever get any response back. So, we hit submit, expecting nothing to happen. But it was actually really, really quick. I think it was on the order of 10 or 12 days. You know, it came to my home address, sort of a manila envelope. You know, my wife called me immediately when she picked up the mail and said, hey, you know, you got a letter from the National Security Agency. And there was complete panic in her voice.

3:29So, now she's looking in the cabinets for small little beeping objects. Yeah, right, exactly. And when he opened up the letter, could you read it? Yeah, I actually have it up right now. The letter said, we cannot acknowledge the existence or non-existence of such metadata or call detail records pertaining to the telephone numbers you provided.

3:51Exactly. What does one know when one hears that response? I don't know. I mean, when you're a reporter and you hear that, it's sort of, it puts you in this weird place. So, Jeff takes the letter into work the next day, and he shows it to a colleague. Who had been doing a lot of reporting on drone strikes in Guantanamo. And he's like, what the hell is this? Does it mean something? And she said that was a glomer response. How do you spell, how do you say, how do you spell glomer or glomar? Glomar is G-L-O-M-A-R.

4:26Glomar. What did you think, just of the word? I thought it was, I thought it was some lawyer named Glomar who had argued, successfully argued the case because it sounded like a bit of legalese. I didn't know the fascinating story behind it. So, I started looking into it, and right away found this nutty story involving a nuke, a claw, a billionaire, some manganese, and this classic tension between secrets being really necessary and really harmful.

4:56Some manganese. But to get there, you have to start with this guy. Okay. Let's just start out by getting your name and how we should identify you. Well, my name is David Sharp. That's my real name.

5:09That's what you were wondering. This makes it all much more mysterious. What have been some of your other names? During the mission, my name was David Scholz. So, in the late 60s, David was working at the CIA. He'd been there for a while, and he got called onto this new thing called Project Azorian. Ah, yes. I started the program in 1969. Here's what you need to know.

5:33In the late 60s, the U.S. and the USSR were playing this high-stakes chess game with their nuclear submarines, cruising around international waters. There was a lot of harassment that went on. Inching on each other's territories. In fact, in January of 1968, a U.S. naval ship was captured after leaving Japan, and everyone was worried that the Soviets had our codebooks. And there was an interest in getting even. Well, two months later, in March of 1968, a Soviet sub called the K-129 just vanished.

6:05We don't know exactly why it sunk. There's all kinds of conspiracy theories about what might have happened. It just sank to the bottom of the ocean. And once the Soviets sent their search crews out trying to locate it and failed, we came in, and somehow through our sensor technology, or whatever reason your conspiracy theory of choice might tell you, we found the boat. So then the thought was, if we could get inside that thing, such a bonanza.

6:36There was a lot to be learned, whether it would be the codebooks, the cryptographic equipment. Or, and this is the big one, of the nuclear missiles. It had nuclear missiles on board? Yep. The chief of naval operations, he really wanted to see if we couldn't recover that submarine, the whole thing. The problem was that the sub was three miles below the surface of the ocean, and the pressures at that depth, according to David, are roughly 7,500 pounds per square inch. Which meant to get the whole thing up, they were looking at scenarios where they'd have

7:06to lift something like... 14 million pounds. Oh, that's all. Oh my God. No big one. So their solution is to get a room full of top secret engineers together and just start spitballing ideas. Like, what if we just went down there and attached rockets to it? And, uh, blast the target up to the surface. Uh, well, but how do we catch it when it comes back down? It's heavy. What if we, okay, we could, we could put these, um... Pontoons, or gas-filled bags, and float the target up.

7:36Except that we can't get the gas in there because of the pressure. Boy, these must have been amazing meetings where you could say anything. You could say that. So, in the end, they settled on... A claw. A claw. The idea was to build this gargantuan eight-fingered claw and, and a boat, and then you would put the claw in the boat, bring it out on the high seas, and then you would lower the claw on a three-mile-long piece of pipe string.

8:07And then, like, one of those carnival games, you know, where you, you have to grab the toy by remote control. Yeah. You would position the claw over the submarine, and exactly so, and then you would yank it off the bottom of the ocean, pull it back into the boat, gates would open on the bottom of the boat, and the claw and the submarine would come into a chamber, and you would have it. And you're not making any of this up. I am totally not making it up. The CIA made it up. Because it just sounds weird. But they did it. They got the money, they got the approval from the president, but they still needed

8:39a cover story. So, they called up... Howard Hughes, the billionaire? Yep. And they asked him, or probably his people, do you guys think you could just pretend to have this sudden interest in manganese mining from the bottom of the ocean? That was the cover story? Yes. Partly because Howard Hughes was a known inventor. Wasn't Howard Hughes at this point living in isolation in Las Vegas, his fingernails growing inches long and being pretty bizarre? You know, I don't know if he was living in Las Vegas, but the rest of that I think is

9:10probably pretty accurate. Anyway, so they end up building this massive ship. The Hughes Glomar Explorer. The ship was called Glomar? That's where the word comes from? Yeah. It was built by this company called Global Marine. Global Marine. Glomar. Oh. And in July of 1974, they get the boat out there, and they lower the claw. The claw descends three miles to the bottom of the ocean where the sub is, and the claw had lights and cameras on it so they could see what was happening.

9:44Do you remember when you first saw it? Yeah, I do. It was a very badly mangled hull, and we could see it very well. They actually could watch as the claw wrapped its massive claw hand around this sub and began to pull it back up. 14,000 feet, 12,000 feet. About 9,000 feet from the surface, we were beginning to feel some cautious optimism that we might just pull this thing off after all. And then? I felt just a little bump in the ship, and we went to the control center, and everything

10:23looked normal on the television screens. But then it suddenly occurred to the operators that these television images had not been refreshed. In other words, they were television images taken maybe 15 minutes ago. And when they refreshed those images and got the real-time picture of what was going on, it showed that we had lost. We had lost most of the submarine. Basically, the part of the sub with the nukes, with the missiles, maybe with the code books,

10:55and all the stuff they wanted, that part broke off. And years of work, millions of dollars, just slowly sank to the bottom of the ocean. Did your heart go, ugh? Yeah. Yeah, it did. It was intensely emotional. And in the end, did they find anything? We still don't really know. They've never actually disclosed what they found in that piece.

11:26From David's description, it sounds like they didn't get a lot, but here's the whole reason I'm telling you this, it's because not long after that, like, intense moment of disappointment, the story starts to break in the press. Journalists are starting to call up the CIA. They're asking all these intense questions. They're onto it. And the CIA has to figure out what to say. And what not to say. What the CIA comes up with after the break.

11:58Latif, Radiolab, we're jumping back in where we left off. A U.S. mission during the Cold War goes awry, and the CIA has to figure out what to say and what not to say. It's a dilemma. There's no question about that. Which brings us to Walt. Walt Logan. Which is, just to be clear, not your actual name. It's a pseudonym. Okay. So, in 1975, Walt was a lawyer at the CIA. At that time, I was the associate general counsel. And as the story was breaking, and all these journalists were asking questions, it became

12:29his job. To develop the response. Simple. Except not so simple. Yes. There's a diplomatic element of what's going on in here that isn't so obvious. And that is that you have the Soviet Union and the United States at odds. And the problem was that we didn't want the Soviets to know either what we had found out or what we hadn't found out. Either way would have been bad, says David Sharp. If we said that we didn't recover any information on Soviet missiles.

13:02Which was the truth. Then that would tell the Soviets that they don't have to worry about the security regarding their warheads. David says we wanted them to worry. This is the Cold War. We might as well make them think we found something. On the other hand... If we said that we did recover information on the missiles, but we're not going to tell you, that would be lying. And they couldn't do that. Wait, don't governments lie all the time? Why couldn't they lie? Well, because this is 1974. This is the year of Watergate.

13:33This is the year that Congress rakes the entire federal security apparatus over the coals. This is also the year they revisit something called the Freedom of Information Act.

13:47FOIA. Actually, FOIA had been around for a while, but that's when FOIA finally got some teeth. The law says anybody, any American, should be able to ask the government for documents, and the government has to respond. It has to. Fork over that information. Well, let me put it this way. Walt's not a huge fan of this law. The Globe Armor is a tremendous investment of time and resources, and to willy-nilly give it over to somebody who writes a letter to the agency is preposterous.

14:19The way Walt sees it, the CIA's job is to keep secrets, and keeping secrets keeps America safe. Yes. In fact, every CIA employee is legally bound to protect something called Intelligent sources and methods. It's not an option, it's a law. Hence his Dilemma.

14:38So there he was. Between a rock and a hard spot. Under the FOIA law, the public has a right to know. On the other hand, under Walt's oath, he has a legal obligation to not tell. It's like the classic tension of our times. Exactly. Walt has to say something, he has to be truthful when he says it, but he also cannot reveal anything. That's correct. And people at the agency had been trying to figure this out for months, which is why they brought in Walt. And how long did it take you to come up with this kind of response?

15:10I would say probably a half an hour. Wow.

15:14That half an hour of work has tortured journalists and lawyers for almost four decades. Here's what he came up with. The Glomar response was basically the following. We can neither confirm nor deny the existence of the information requested. But, hypothetically, if such data were to exist, the subject matter would be classified and could not be disclosed. Very straightforward.

15:45Now, think about that. That addresses what you were just trying to put your finger on. You can't confirm it. Which would be giving up secrets. Nor deny it. Which would be a lie. But, if it was classified, it couldn't be revealed anyway. Suckers. As you can imagine, people who filed these FOIA requests, when they got a response like that, they were like, that's not going to stand. You are the sucker. They fought it in court, and the fight went on for years, knock down, drag out. But, eventually, the government wins.

16:16The judge ruled in their favor? Well, the judge agreed to their logic, that sometimes revealing even the existence of documents, endangers national security. I was like, hey, Barack, man, hey, listen, Jaden. And, to make a long story short, use of this kind of response exploded to the point where now you hear actors like Will Smith using it. I can neither confirm nor deny. I can neither confirm nor deny the person. You hear Pixar characters using it, Hollywood publicists. I can neither confirm nor deny the rumors.

16:47Ex-Congressman Anthony Weiner. Congressman Weiner told John Carl that he could neither confirm nor deny that the photo was him. It's become this total boilerplate phrase of our time. I'm going to ask you guys directly if you had personal experience with Viagra. You can't confirm or deny that. That was Zac Efron on Conan. But, on a much more serious note. Since that initial Glomar response in 1975, more and more government agencies have begun

17:17to use it. Surprisingly. And not the obvious ones. We found some from the Department of Commerce, Department of the Treasury, Department of Energy. It makes you wonder how they got along before then. Centers for Disease Control. I was amazed that this thing has legs. And it makes you wonder, why does this thing have legs? Why now?

17:36Yeah, it is weird. Like, that guy, that ProPublica guy you started with. Jeff Larson. Yeah, that guy. If all he's asking is, what do you know about who I call? And the only answer he's expecting to get is like, we know you call your wife. Why would they Glomar that? Well, they told him in that letter that if they confirm or deny the existence or non-existence of those records. It would help the adversaries of the United States. And just so that I can empathize with the United States of America for a moment, why would

18:08that be right? Like, if they said, you called your wife on Monday at 3 o'clock, Thursday at 4.30, she called you back at 6.15. What would an enemy then learn, do you suppose? I guess that they would learn that they have records of me calling my wife. So the statutory reason why I've read that your sort of FOIAs are denied with a Glomar request is that if you say someone is under surveillance by acknowledging records or you say they're not under surveillance by acknowledging no records, either way, it outlines the contour

18:44of the program. It's a tiny crack through which people can sort of puncture the wall and get information about the larger program. There you go. You've just given us the government's position. That makes perfect sense to me. I mean, look, if a thief were to come up and say to me, I'm a cop, are you investigating me? If I say yes, then he can hide. If I say no, then he will go rob another bank. Right. Or the other robbers will know that I missed a really good bank robber and I'm terrible at it. In any way, I seem like I feel suddenly dangerously exposed. I don't know. It's all very, very confusing.

19:15And you could wrap your brain around it and never get to sleep for the rest of your life if you thought about it really hard. And by the way, there is a, we should say, a very good argument against that argument from the government. That transparency is a good thing. If you have an agency that doesn't have any sort of constraints on it or doesn't have the proper oversight, it oversteps. That's Dina Temple-Rastin, counterterrorism correspondent for NPR. As Julia was reporting her story, we ended up calling Dina just to sound her out because

19:48she has been glomared on drones. She's been glomared on terrorism investigations. I've never actually heard it as being glomared, I have to say. And she told us something interesting, that this whole non-denial, denial state of weirdness has created some very unique situations for her as a reporter. Like, say, on any given Monday, she sits down, writes a FOIA request about the drone program, which will get glomared. Then on Tuesday, the government will turn around, organize a meeting for reporters about

20:20the drone program. Let's say a story about a drone target is out and it seems incorrect to the White House in a big enough way that they feel they need to correct the record. So they will often conduct a conference call on background with a number of reporters from a number of different organizations and basically say to those reporters, OK, here are the following people who are talking to you, but you are not allowed to say who they are. And they're going to put this in context for you. And you can quote them as, and they usually set the ground rules, you know, senior administration

20:51official or administration official familiar with the program or something like that. And what then happens is they get to correct the record without officially confirming that something is going on. I mean, there's an interesting thing about the White House and government that they believe that they still have deniability if a high-ranking official who is unnamed says something is going on. And as soon as a name is attached to that, then the information in their view fundamentally changes. It suddenly becomes concrete.

21:22And actually, that's kind of what happened with the Project Azorian, that Glomar mission from the 70s. Even now, the only reason that we know half of what we know about this whole thing is because some historians were really dogged with their FOIA requests. And they found out about this whole series of internal CIA newsletters. And in one of those newsletters, there was an article with a title that clued them in that this was about the Glomar mission. They FOIAed that specific article. Oh, and that's what ultimately sprung it loose?

21:54Yeah. When they have a name of an article, then they can FOIA that. And then it's really hard for them to say. No documents exist because they have the actual title of it. I see. So when it gets specific. Yes. So the CIA released this article. But I mean, by now, decades have passed. And that's what people now say about the Glomar response, is that it's just a delaying tactic. Because Congress in 2006. I talked to this one guy, Jameel Jaffer. He's the deputy legal director of the ACLU. And they get Glomar'd all the time. We've come to expect them now, unfortunately.

22:26He says, you know, I mean, when they get a Glomar, they don't get upset. They just think, OK, well, we've got another two years in court. That's what it means. It means you have two years of litigation before you even get to the point of arguing over whether the government has a right to withhold the information. What's happening over those two years? Well, they're trying to strategize. So if they really want to know about a program and they really want to get those documents, they will look for any sort of mention of those documents by public officials in the same agency.

22:56So say you have a pen and you love this pen, but you don't want anyone to know about it. Someone asks you if it exists and you say, hell no. Can't confirm or deny. Right. And then you're at a party and you just mention it in passing. You can't help yourself. Love this pen. You should check out this pen. Right. Well, I was nearby. Now I take it to a judge and I say, look, he's talking about this pen at a party. He's bragging about it. He can't refuse to confirm or deny its existence anymore. So they're looking for cracks in the Glomar.

23:27Yeah. Over those two years. Yeah. And it's this really expensive legal strategy that most people can't even get to. Only big outfits like the ACLU can even challenge them. And the government may ultimately lose in all of these cases, but it will lose at a time when the public debate will have moved on to something else. And that's one of the real dangers here, he says. It's that by the time the truth finally comes out, we don't actually care anymore. It's ancient history. But not for everyone.

23:58Well, the divers who were specially trained. Going back to that Glomar mission, the original Glomar mission for a second, David Sharp says after they were able to pull that last fragment of the sub out of the water, they were able ultimately to look inside. And were there people in there? There were three crew members that were basically whole and recognizable.

24:30And there were major parts of another three crew members. But they were given the full respect that I think the Soviet Navy would have conferred upon their own people under those conditions. So the problem was we were keeping the whole thing secret, and that allowed the Soviet government to do the same thing. They probably didn't want the embarrassment of acknowledging that they'd lost this really important submarine. They also didn't want to derail arms talks that we were having with them.

25:05And for a bunch of other reasons, they just pretended it never happened. But they had to say something to the families of the sailors who died on that submarine.

25:18Here's a widow of the second-in-command on the K-129. Her name is Irina Zhuravina. And a while ago, she was interviewed on Russian television. She's showing the death certificate for her husband, and then she reads it.

25:33I'll translate it as best as I can.

25:37Death certificate.

25:41Cause of death. Presumed dead. What? This... Horrible, inhumane death certificate. I don't know who is the author. I've wanted to know for 30 years who is the author of this horrible, inhumane document. This is what we've been living with for 30 years. They wrote cause of death presumed dead on the death certificate?

26:15Yeah. Doesn't even make any sense. And that's cruel. Yeah. In this context, it's cruelty.

26:22That's what she's saying.

26:25Giving an answer that says nothing can be worse than just silence. Big thanks to reporter Julia Barton, who has since gone on to become a legend in the nonfiction podcast world. Also, you might remember that our story started with an editor at the investigative journalism outfit, ProPublica.

27:04And I wanted to shout out ProPublica's newest podcast, Paper Trail. If you like well-told stories about people trying to expose high-stakes secrets and lies, I think you'll enjoy it. The host herself, Jessica Lussenhopp, is a longtime investigative reporter. And the executive producer, Catherine Wells, used to work with us here on our Supreme Court show, More Perfect. Paper Trail from ProPublica. That is it for us. I cannot confirm or deny that I will catch you next week.

27:38Hi, I'm Gabby. I'm from the Bay Area, California, and here are the staff credits. Radiolab is hosted by Lulu Miller and Latif Nasser. Soren Wheeler is our executive editor. Sarah Sandback is our executive director. Our managing editor is Pat Walters. Dylan Keefe is our director of sound design. Our staff includes Jeremy Bloom, W. Harry Fortuna, David Gable, Maria Paz Gutierrez, Sindhu Nainasambandan, Matt Kielty, Mona Modgauker, Alex Neeson, Sarah Kari, Natalia Ramirez, Joanna Strogatz, Anissa Vitsa, Arian Wack, Molly Webster, and Jessica Young.

28:25With help from Gabby Santis and Maya Appleby-Milamed. Our fact checkers are Diane Kelly, Emily Krieger, Natalie Middleton, Anjali Mercado, and Sophie Semayi.

28:43Hey, Radiolab. Michael, Tacoma, Washington. Leadership support for Radiolab science programming is provided by the Simons Foundation and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation.