The Mosaic Theory, National Security, and the Freedom of Information Act

December, 2005

115 Yale L.J. 628  PDF

Author

DAVID E. POZEN

Excerpt


INTRODUCTION
 
The "mosaic theory" describes a basic precept of intelligence gathering: Disparate items of information, though individually of limited or no utility to their possessor, can take on added significance when combined with other items of information. Combining the items illuminates their interrelationships and breeds analytic synergies, so that the resulting mosaic of information is worth more than the sum of its parts. In the context of national security, the mosaic theory suggests the potential for an adversary to deduce from independently innocuous facts a strategic vulnerability, exploitable for malevolent ends. The Department of the Navy, in its Freedom of Information Act (FOIA) regulations, thus defines the theory as "the concept that apparently harmless pieces of information when assembled together could reveal a damaging picture." 3 The relevant pieces of information might come from the government, other public sources, the adversary's own sources, or any mixture thereof. For several decades, government agencies have invoked mosaic concerns to justify both classifying documents at higher levels of confidentiality and withholding documents requested through FOIA or through pretrial discovery. President Reagan drew attention to the mosaic theory, and prompted criticism from civil libertarians, by using it to promote new schemes for safeguarding information, but once he left office the theory quickly receded from public view.

Since the attacks of September 11, 2001, however, the mosaic theory has made a comeback. If the judicial record is any indication, government agencies under the Bush Administration have been asserting the mosaic theory ...

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