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 caselaw. Here, I examine its 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. We can see the mosaic concept used in two distinct ways here: 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. I argue that courts can and should limit the use of the mosaic theory in the contexts I discuss. Mosaics will likely remain part of the narrative structure of legal claims and defenses, but we should resist the absorption of “mosaic” into the grammar of executive power.
Available at: http://works.bepress.com/robert_pallitto/4/