The Mosaic Theory in Individual Rights Litigation: On the Genealogy and Expansion of a Concept

This article explores the use of the concept of "mosaics" in individual rights litigation, a topic that has received virtually no scholarly attention. Originally a construct used in analysis of intelligence data, the mosaic theory has been transposed to the litigation context and applied in a range of recent case law. Here, the article examines the theory's use in two settings that have important implications for individual liberties: to support the state secrets privilege as a form of information control, and to defeat habeas petitions filed by "war on terror" detainees. In these areas, the mosaic concept is used in two distinct ways: restrictively, to inhibit information development by the public, and expansively, to enhance information development by the government. These uses of the "mosaic theory" threaten civil liberties and thwart processes of ensuring executive accountability. Within the discussed contexts, courts can and should limit the use of the mosaic theory. Mosaics will likely remain part of the narrative structure of legal claims and defenses, but the absorption of "mosaic" into the grammar of executive power should be resisted. *** Juris doctor, University of Michigan Law School; Ph.D., The New School for Social Research. Associate Professor of Political Science and Public Affairs, Seton Hall University