CIA v. Sims: Mosaic Theory & Government Attitude

Abstract:     
This article, part of a larger forum on underrated administrative law cases, discusses CIA v. Sims, and its relationship to the development of mosaic theory in FOIA cases and beyond.

Mosaic theory involves the idea that the government may withhold otherwise innocuous information because it might prove dangerous if combined with other information by a knowledgeable actor (especially a hostile intelligence agency). The theory thus allows non-disclosure of information that otherwise would have been disclosed.

While the core idea of mosaic theory is legitimate, as asserted by the government, mosaic theory has been a crude tool demanding extreme deference from judges when national security is involved. Beginning in the early 1970s, lower courts began to accept the government's assertions of mosaic theory, making little effort to question the government's evidence or rationale for secrecy. In CIA v. Sims, the Supreme Court finally accepted mosaic theory as a rationale for withholding information in certain FOIA cases involving national security and, like lower courts before it, deferred to government claims of necessity without question.

Numerous scholars have criticized the courts' extreme deference to government assertions of mosaic theory in the FOIA, and increasingly, the state secrets context. That deference, however, has had an impact far beyond those contexts. Emboldened by the utter lack of checks on government assertions of the theory, the government has proffered mosaic theory to justify surveillance programs in libraries, attempts to restrict public access to non-classified government information, and laws imposing secret gag orders on those who receive national security letters from the government, programs which pose serious problems for constitutional liberties. Mosaic theory, then, has become part of the government's mindset.

In order to change that mindset, we need to return to the FOIA cases where mosaic theory began. We need not jettison mosaic theory in order to rein in government abuse of it. Rather, this article proposes a more nuanced role for mosaic theory that requires government officials to identify more specifically the harms they seek to prevent and further proposes mechanisms that force courts into engaging in meaningful judicial review to ensure that government officials are accountable for their decisions.

Keywords: national security, mosaic theory, secrecy, FOIA, state secrets, civil liberties

JEL Classifications: K10, K23, K40

Accepted Paper Series