Did The Washington Post's “Top Secret America” series reveal any top secrets? Not many, literally speaking.
The Post’s two-year investigation into the nation’s massive post-9/11 security buildup was constructed almost entirely from public records, according to the paper. But in a larger sense the project may have produced an overall picture that the US government would consider classified, had it produced such a report itself.
In recent years the US has consistently pushed a “mosaic theory” of intelligence gathering. This holds that individually harmless pieces of information, when combined with other pieces, can produce a composite picture that reveals national security vulnerabilities.
“Under the mosaic theory, even if the individual pieces are part of the public domain, a particular aggregation of data, or method by which the data was compiled, could in fact be classified,” says Stephen Vladeck, a professor and expert in national security law at American University’s Washington College of Law.
In “Top Secret America,” Washington Post reporters Dana Priest and William Arkin revealed that since the terrorist attacks of 9/11 the US has built up a top-secret infrastructure so large and secretive that, according to the paper, “no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work."
Today some 854,000 people, more than 1-1/2 times the population of D.C., have top-secret security clearances, according to the Post. Nearly a third of these workers are employed by private contractors, not the government itself. In a large, interactive online database, the Post lists all the 1,271 government organizations and 1,931 private firms across the US that work on programs related to counterterrorism, including their locations, number of employees, and other specific information.
Due to the sensitive nature of the series, the Post showed the database to US officials several months ago and asked if they had concerns, according to an editors' note that accompanies the series. Some pieces of information were removed after a US agency objected.
“Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments,” said the editors’ note.
Asked about the issue Monday, White House press secretary Robert Gibbs said that he would not go into detail about the administration’s discussions with the Post but that “obviously there were some concerns."
It’s highly unlikely that the US will pursue this matter in the courts. Invoking the mosaic theory to prosecute a media organization for something it has already published would constitute a novel expansion of national security law. And news outlets – especially those as large and prominent as the Post – are often dogged defendants.
But if a government organization had used the same declassified information to produce the same database as “Top Secret America," that database could be classified and withheld from the public, under the mosaic theory.
“Despite scant attention from the media or from scholars, the mosaic theory has developed into a doctrinal tool of great force in national security law,” wrote David Pozen, then a law student at Yale, in a 2005 article on the subject in the Yale Law Journal.
After 9/11, the US invoked the mosaic theory to withhold the names of suspects arrested in the investigation into the attacks. Releasing the names would allow terrorist organizations to deduce US counterterrorism sources and methods, the government argued. The D.C. Circuit Court of Appeals agreed with the US after public-interest law groups sued to overturn the policy.
The mosaic theory has been heavily contested in the courts, notes Stephen Vladeck of American University, and the US Supreme Court has yet to fully consider it. “There are times when it makes a whole lot of sense, and times when it seems to strain credulity,” he says.