Neither Confirm Nor Deny

0:00Robert Krulwich:Radio Lab is supported by Progressive Insurance. Do you ever think about switching insurance companies to see if you could save some cash? Progressive makes it easy to see if you could save when you bundle your home and auto policies. Try it at Progressive.com. Progressive Casualty Insurance Company and Affiliates. Potential savings will vary. Not available in all states. Hey, 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.

0:33Robert Krulwich: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 wall 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.

1:15Robert Krulwich: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, including for cases like Jeffrey Epstein and the war in Iran. I can neither confirm nor deny that you will enjoy it. Wait, you're listening. Okay. All right. Okay. All right. You're listening to Radiolab. Radio from WNYC.

1:50Robert Krulwich:Rewind. Hey, I'm Jad Abumrad. And I'm Robert Krillewich. And today on the podcast... Hey, Robert, can you scoot back a little bit from the mic? I think I'm worried. We have a Cloak & 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 has 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 been monitoring millions of Verizon customers?

2:26That 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.

2:33Robert Krulwich:Hey, does that include me? So he goes over to the NSA's website. He was surprised to find it right there on the site. You 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 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 to my wife, I guess.

3:16Robert Krulwich: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. So, 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. So 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.

3:57The letter said, We cannot acknowledge the existence or non-existence of such metadata or call detail records pertaining to the telephone numbers you provided.

4:10Robert Krulwich:Exactly. 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 Glomar or Glomar? Glomar is G-L-O-M-A-R. Glomar. What did you think just of the word? I thought it was some lawyer named Glomar who had successfully argued the case because it sounded like a bit of legalese.

4:58Robert Krulwich: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. Some 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. That's what you're wondering. This makes it all much more mysterious. What have been some of your other names? During the mission, my name was David Scholes.

5:37So 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. Uh, yes. I started the program in 1969. Here's what you need to know. In 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.

6:15Well, two months later, in March of 1968, a Soviet sub called the K-129 just vanished. We 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. There was a lot to be learned. Whether it would be the codebooks, the cryptographic equipment.

7:02Or, 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 to lift something like... 14 million pounds. Oh, that's all. No big one. So their solution is to get a room full of top-secret engineers together and just start spitballing ideas.

7:38Like, what if we just went down there and attached rockets to it? And blast the target up to the surface. How do we catch it when it comes back down? It's heavy. What if we, okay, we could put these... Pontoons or gas-filled bags and float the target up. Except 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 a boat. And then you would put the claw in the boat, bring it out on the high seas.

8:20And then you would lower the claw on a three-mile-long piece of pipe string. And then like one of those carnival games, you know, where you have to grab the toy by remote control.

8:32Robert Krulwich: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 a 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?

9:12Robert Krulwich: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 probably 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.

9:55The 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. Do 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 looked normal on the television screens.

10:45But 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, and 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.

11:24Robert Krulwich: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. From 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 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 on to 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.

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12:44Robert Krulwich:Latif, 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 his 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.

13:32And 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. Which 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.

14:08And they couldn't do that.

14:10Robert Krulwich:Wait, don't governments lie all the time? Why couldn't they lie? Well, because this is 1974. This is the year of Watergate. This 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. FOIA. 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.

14:53Robert Krulwich:The Glowmarmor 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. The 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 It's not an option, it's a law. Hence his So there he was. 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.

15:38He has to be truthful when he says it. but he also cannot reveal anything.

15:44Robert Krulwich: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? I would say probably a half an hour. Wow. That 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.

16:30Robert Krulwich:Now 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. The judge ruled in their favor? Well, the judge agreed to their logic that sometimes revealing even the existence of documents endangers national security.

17:12Robert Krulwich:I was like, hey, Barack, man, 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. You hear Pixar characters using it, Hollywood publicists. I can neither confirm nor deny the rumors. Ex-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.

17:49Robert Krulwich: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 to 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? Yeah, it is weird. Like, that guy, that ProPublica guy you started with. Jeff Larson.

18:27Robert Krulwich: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 that 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?

19:04Robert Krulwich: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 of 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?

19:46Robert Krulwich: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. So it's all very, very confusing and 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.

20:24Robert Krulwich: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 she 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 Glomar'd. Then on Tuesday, the government will turn around, organize a meeting for reporters about the drone program.

21:06Robert Krulwich: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 official or administration official familiar with the program or something like that.

21:41Robert Krulwich: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. And 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.

22:23And 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.

22:37Robert Krulwich:Oh, and that's what ultimately sprung it loose? Yeah. 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. 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. I talked to this one guy, Jamil Jaffer. He's the deputy legal director of the ACLU, and they get Glomar'd all the time. He says, you know, I mean, when they get a Glomar, they don't get upset.