The mosaic theory, national security, and the Freedom of Information Act.

• Author: Pozen, David E.

INTRODUCTION I. THE MOSAIC THEORY IN FOIA LAW, 1972-2001 A. FOIA and National Security: A Brief Overview 1. The Framework of FOIA 2. Judicial Review in FOIA National Security Cases B. 1972-1980: Marchetti, Halkin, and Halperin C. 1981-2001: Statutory Recognition, Judicial Deference II. THE MOSAIC THEORY AFTER 9/11 A. The Narrowing of FOIA B. Mosaic-Making and Informational Paranoia C. Deference, Delegation, Abdication, and the Unraveling of Mosaic Theory Jurisprudence D. Opposing Modalities of Judicial Review: Two Case Studies 1. Center for National Security Studies 2. North Jersey Media and Detroit Free Press III. EVALUATING MOSAIC CLAIMS: THEORY AND APPLICATION A. "Mosaic" Claims and "Ordinary" Exemption Claims B. Advantages of Delegation C. Problems with Delegation (and Deference) 1. Legal Problems 2. Policy Problems D. Practical Solutions CONCLUSION It requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than it is to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate. (1) [G]iven judges' relative lack of expertise regarding national security and their inability to see the mosaic, we should not entrust to them the decision whether an isolated fact is sensitive enough to warrant closure. (2) 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 "It]he 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 with greater vehemence, across a greater range of records. Courts, in turn, have grappled with the theory more frequently and more explicitly than ever before. Facing a post-9/11 national security environment of informational anxiety and terrorist threat, the Administration has designated FOIA a critical liability and narrowed its openness-forcing capacity accordingly; the aggrandizement of the mosaic theory, this Note will demonstrate, has been both a cause and consequence of the Act's diminishment. Although not all courts have sanctioned this expanded role for the theory, judges in several high-profile cases have relied on it to sustain unprecedented acts of secrecy. In Center for National Security Studies v. U.S. Department of Justice, (4) for example, the D.C. Circuit applied the mosaic theory to uphold the Justice Department's categorical denial of FOIA requests for information about more than seven hundred people detained in the wake of the 9/11 attacks. In North Jersey Media Group v. Ashcroft, (5) the Third Circuit likewise applied the theory to uphold the government's decision to close 9/11-related "special interest" deportation hearings to the public and the press. In neither case did the government proffer substantive evidence of likely harms from disclosure.

Taken along with other recent cases, Center for National Security Studies and North Jersey Media suggest the scope of official activity now being shielded by the mosaic theory, as well as the degree of judicial deference routinely granted to agencies making mosaic claims. For courts and agencies alike, since 9/11 the mosaic theory has at the same time manifested, justified, and exacerbated a new reticence to publicize government-controlled information. In the process, the theory has insinuated itself into the fundamental post-9/11 debates: how to balance civil liberties with national security and how to structure intelligence policy in an age of terrorism. Despite scant attention from the media or from scholars, (6) the mosaic theory has developed into a doctrinal tool of great force in national security law.

This Note, the first work to analyze the mosaic theory in systematic (or even sustained) fashion, attempts to document this development and assess its implications. In synthesizing the case history, I consider several interrelated areas of national security information law, but I focus on FOIA, where the mosaic theory has had greatest effect, and on the courts, where the theory's boundaries are ultimately delimited. In particular, I examine the difficulties the theory poses for courts hearing national security cases. New terrorists and new technologies have increased the risks from mosaic-making in recent years, and the trauma of 9/11 has increased the salience of such risks. Yet while the mosaic theory provides an accurate description of how adversaries might capitalize on information disclosure, courts have--in deference to agencies' perceived superiority at evaluating mosaic threats--applied it in ways that are unfalsifiable and deeply susceptible to abuse and overbreadth; they have created in the mosaic theory a latently subversive basis for withholding information. When courts accord heightened deference to agencies' mosaic claims, moreover, they contravene the text and purpose of FOIA. As a result, I argue that mosaic claims deserve additional judicial scrutiny, not additional deference.

The Note proceeds in three parts. Part I provides an overview of FOIA's relationship to national security and traces the mosaic theory's trajectory in national security information law from its advent in 1972 through September 11, 2001. Part II discusses the recent transformation of FOIA and the mosaic theory. Evaluating the major post-9/11 cases, I argue that the Bush Administration's bolder use of the theory has unsettled mosaic theory jurisprudence. At issue in this emerging doctrinal division is the extent to which the Administration's War on terror will be insulated from judicial scrutiny, as well as the future of FOIA's national security exemption. Moving from positive to normative examination of judicial review of mosaic cases, Part III challenges the longstanding assumption that these cases make up a special class of FOIA appeal and critiques the delegatory tradition in mosaic theory review. A concluding Section sketches proposals for invigorating judicial oversight without endangering national security.

1. THE MOSAIC THEORY IN FOIA LAW, 1972-2001

   The mosaic theory is, essentially, a theory of informational synergy. It describes a process through which adversaries collect, combine, and compile items of information, some or even all of which are harmless in their own right. And it suggests an outcome whereby this process, in a feat of analytic alchemy, converts the harmless information into something useful. "[A]ll intelligence agencies," one FOIA opinion recently noted, "collect seemingly disparate pieces of information [in the hope of] assembl[ing] them into a coherent picture." (7) That is, they all make mosaics, constantly. It would be illogical, therefore, to make classification decisions on an item-by-item basis; instead, "[p]rotection through classification is required if the combination of unclassified items of information provides an added factor that warrants protection of the information taken as a whole." (8) To determine the security risk of disclosing a given document, the mosaic theory stipulates, one must consider the possible mosaics to which the document might contribute. The mosaic, not the document, becomes the appropriate unit of risk assessment.

   In the decades that courts have applied it to national security information law, this Part will show, the mosaic theory has hardly evolved past this sketch. Several early opinions set out a framework for the theory and a framework for applying it. For these courts, and for those that followed, the theory appeared to make risk assessment more complicated--and hence to make judicial deference to government agencies more apposite. Beyond these principles, the mosaic theory has not been undertheorized in the case law or its derivative literature so much as it has not been theorized at all.

   To elucidate the theory's development, this Part begins with an explanatory note on FOIA. (9) Although the text and legislative history of the Act contemplate judicial deference to federal agencies, as Section A explains, Congress aimed to circumscribe this deference through a number of mechanisms. Nevertheless, the history of FOIA national security adjudication makes plain that structural and psychological biases give the government a great advantage, in mosaic and non-mosaic cases alike. Sections B and C describe how, after a triad of early opinions...