Neither Confirm Nor Deny

Intro

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Peanut Allergy

0:35hey this is radio lab i'm latif nasir 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 and 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 wall because it's like yeah

1:12duh 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

Episode Introduction

1:30has 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 including 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

2:01radio lab radio from wnyc rewind hey i'm jad abumrad and i'm robert krillwich 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 and secrecy and truth from reporter julia barton so jeff maybe first you

Jeff Larson Introduction

2:24could start off just by introducing yourself yeah so the story for me begins with this guy yeah my name is uh 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 that just came out jeff's watching the story like all of us are and then the thought occurred to him jeez they're monitoring all of these people hey does that include me so he goes over to the nsa's website he was surprised to find that right there on the site

3:01you could file a privacy act request for your metadata they have a little online form right there this 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 what do you know about who i called and who i heard from yes exactly what were you expecting uh 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 to my wife i guess i didn't think that i would ever get um any response

3:39back 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 um you know it came to my home uh 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 you got a letter from the national security agency and there was complete panic in her voice so now she's like looking in the cabinets for small little

4:09beeping objects yeah right exactly and when he opened up the letter could you read it yeah i have 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 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

4:40next 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 is it how do you spell glomer or glomar glomar is a g-l-o-m-a-r glomar what did you think just of the word i thought it was i thought it was a some lawyer named glomar who had uh argued successfully argued the case because it sounded like a bit of legalese i didn't

5:17know 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

Project Azorian

5:36with this guy okay let's just start out by um 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 this makes it all much more mysterious what have been some of your other names during the mission my name was david shoals 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 uh yes i started the program in 1969 here's what you

6:08need 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 code books 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

6:41we 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

7:16whether it would be the code books the cryptographic equipment or and this is the big one of the nuclear missiles it had 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 7500 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

7:50is to get a room full of top secret engineers together and just start spitballing ideas like what if we just went down there and attach rockets to it and uh blast the target up to the surface uh well 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 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

8:29gargantuan 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 and 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

9:02claw 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 ask him or probably his people do you guys think you could just um 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 it wasn't

9:37howard 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 that's where the word comes from yeah it was built by this company called global marine global marine glow mar oh and in july of 1974

10:07they 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 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 fourteen thousand feet twelve thousand feet about nine thousand feet from

10:42the surface we were beginning to feel some cautious optimism that we might just pull this thing off after all and then i felt a just a little a little bump in the ship and uh we went to the control center and uh everything looked normal on the television screens but then it suddenly occurred to the operators that these uh television images had not been refreshed in other words they were television images taken maybe 15 minutes ago and uh when they refreshed those images and got the real

11:18time 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 did your heart go oh yeah yeah it did it uh it was it was intensely

11:51uh 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 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

12:26and what not to say what the cia comes up with after the break radio lab is supported by capital one with no fees or minimums on checking accounts it's no wonder the capital one bank guy is so passionate about banking with capital one if he were here he wouldn't just tell you about no fees or minimums he'd also talk about how capital one cafes are open seven days a week to assist with your banking needs even on weekends it's pretty much all he talks about in a good way what's in your wallet terms apply see capital one.com slash bank guy capital one n a

12:57member fdic this episode is supported by better help hey there lulu here so apparently every year better help does a survey called the state of the stigma report where they survey over 2 000 americans trying to figure out how people feel about seeking mental health support good news first 85 percent of the people surveyed said that seeking mental health support is a good thing which is significantly up from last year's result uh which okay small study but still fabulous refreshing take that stigma boom

13:28uh the only bummer is that 74 percent of those same people said society discourages people from seeking the mental health support that they need why is that society i say let's all do what we can to destigmatize seeking professional help for mental health i mean i seek professional help for my teeth for my hair why not get professional help for what's going on on the inside of the head you know i don't have some worries get a little support but seriously if a friend or loved one comes to you seeming a little more overwhelmed or blue or scared than usual why not encourage them to seek help praise

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15:07where you want it plus they're airy sweat wicking so your feet will feel as good at the end of your workout as they did at the start head on over to bombas.com slash radio lab and use code radio lab for 20 off your first purchase that's b-o-m-b-a-s dot com slash radio lab code radio lab at checkout simone sanders townsend and i have known each other for more than a decade tussling over politics and policy when she worked in the white house and i reported on it and now we're friends and colleagues

15:38and on our podcast clock it we are positioning ourselves at the intersection of culture and politics clock it is where we talk about what we see and hear in the news so you can start to clock it too clock it with simone and eugene all episodes available now latif radio lab 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 it's a dilemma there's no question

CIA Response

16:12about 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

16:46states 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 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

17:22that would be lying and they couldn't do that we 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 americans should be able to ask

17:57the government for documents and the government has to respond it has to fork over that information well now you put it this way waltz not a huge fan of this law the gloom 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 is preposterous the way waltz 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

18:32intelligent sources and methods it's not an option it's a law hence his dilemma so 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 waltz 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

19:04this 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 either 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

19:42disclosed very straightforward now think about that that's that addresses what we were 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

20:15but 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 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 you hear pixar characters using it hollywood publicists i can neither confirm nor deny the rumors ex-congressman anthony weiner congressman

20:50weiner told john carl that that he could neither confirm nor deny that the photo was him it's become this total boilerplate phrase of our time i'm gonna i'm gonna ask you guys directly if you had personal experience with with viagra have you can't confirm or deny that that was zach efron on conan but 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

21:24department 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 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

22:01help our the adversaries of the united states and just 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 three o'clock thursday at four thirty she called you back at six fifteen what would an enemy then learn do you suppose i guess that they they would learn that um they have records of me calling my wife so so the um statutory reason why um i've read that your sort of foias are denied with a glomar

22:32request is that um 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 if i say yes then he can hide if i say no then he'll go rob another bank right or the other robbers will

23:07know 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 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 uh 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 uh doesn't have any sort of constraints on it or doesn't have the proper oversight it oversteps and i think that's dina

23:41temple 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 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 on any given monday she sits down writes a foyer

24:12request about the drone program which will get glomared then on tuesday the government will turn around organize a meeting for reporters about the drone program let's say a story about a drone target is out and it seems incorrect to the white house in 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 okay here are the following people who are talking to you but you are not allowed to say who they are and they're

24:46going 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 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 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

25:21changes 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 and they found out about this whole series of internal cia newsletters and in one of those newsletters there was a an article with a title that clued them in that this was about the glomar mission they foia'd

25:51that specific article 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 because congress in 2000 i talked to this one guy jameel jaffer he's deputy legal director of the aclu and they get glomar all the time we've come to expect them now

26:26unfortunately he says you know i mean when they get a glomar they don't get upset they just think okay well we've got another two years in court that's what it means 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 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

26:56agency so 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 yeah over those two years yeah and it's this really expensive legal

27:32strategy 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 well the divers uh who were specially trained going back to that glomar mission

28:05the 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 there were there were there were three crew members that were basically uh whole and recognizable and there were major parts of another three crew members but they were they were given the full full respect that i think the soviet navy would have

28:43conferred upon their own people under those conditions 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 and for a bunch of other reasons they just pretended it never happened but they had to say something to the families

29:13of the sailors who died on that submarine here's the widow of the second in command on the k-129 her name is irina zharovina and a while ago she was interviewed on russian television she's showing the death certificate for her husband and then she reads it i'll translate it as best as i can death certificate cause of death presumed dead what this horrible inhumane death certificate

29:54i 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 yeah it doesn't even make any sense and that that's cruel yeah in this context it's cruelty that's what she's saying giving an answer

30:27that 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 non-fiction podcast world also you might remember that our story started with an editor at the investigative journalism outfit propublica

31:05and 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 lussenhop is a long-time investigative reporter and the executive producer katherine 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

Conclusion

31:38next week hi i'm gabby i'm from the bay area california and here are the staff credits radio lab is hosted by lulu miller and latif nasir soren wheeler is our executive editor sarah sandback is our executive director our managing editor is pat walters dylan keith is our director of sound design our staff includes jeremy bloom w harry fortuna david gable

32:08maria paz gutierrez sindhu nainasambandan matt keelty mona modgauker alex neeson sarah kari natalia ramirez joanna strogatz anissa vitsa arian whack molly webster and jessica young with help from gabby santis and maya appleby milamed our fact checkers are diane kelly emily krieger natalie middleton angeli mercato and sophie semay hey radio lab

32:46michael tacoma washington leadership support for radio lab science programming is provided by the simons foundation and the john templeton foundation foundational support for radio lab was provided by the alfred t sloan foundation in the and more on the and but the and but the

33:16and i