FP Explainer

What's the Difference Between Combat and Noncombat Troops?

Not much.

On Monday, U.S. President Barack Obama announced that the United States is on schedule to end combat operations in Iraq by Aug. 31. However, a residual force of at least 50,000 "noncombat" troops will remain in Iraq for the next year. So what exactly are noncombat troops?

Whatever you want them to be. The distinction is more political than military. The White House says the remaining troops will "train and advise Iraqi Security Forces; conduct partnered and targeted counter-terrorism operations; and protect ongoing U.S. civilian and military efforts." All of this has the potential to involve quite a bit of combat.

When asked about the distinction, Defense Secretary Robert Gates said last year that thought the units in Iraq will still have combat capability, "the notion of being engaged in combat in the way we have been up until now will be completely different."

It's true that the majority of U.S. troops left in Iraq will rarely leave base, but that's already the case. However, the units involved are certainly prepared for combat should the need arise. For instance, the first division deployed in support of the new noncombat mission -- which the Obama administration decided in February to rechristen Operation New Dawn -- is the 4th Brigade Combat Team, 1st Division, and armored cavalry unit. 

The remaining U.S. troops will participate in combat patrols with Iraqi forces. (This isn't new. According to the U.S. military, independent operations have not been carried out for several months, and the Iraqi government's approval of any combat mission has been required since the 2008 Status of Forces Agreement.) U.S. special operations troops will continue, in partnership with Iraqi forces, to conduct counterterrorism raids against insurgent groups. Additionally, Iraqi forces are still largely dependent on the United States for air support, artillery and medical assistance.

And of course, as Gen. Ray Odierno, the outgoing U.S. commander in Iraq, recently pointed out, "as we moved away from combat operations, the enemy has not." Even if the U.S. combat role has been reduced, U.S. facilities and patrols will still come under attack and need to be defended. The threat of insurgent attack certainly distinguishes the "noncombat" garrisons in Iraq from those in South Korea and Germany. (Thankfully, U.S. troop fatalities are now down to below 10 per month from a high of nearly 70 in 2007.)

So while the next stage of the Iraq war may be, as Obama described it, a transformation from "a military effort led by our troops to a civilian effort led by our diplomats," the actual mission of the remaining troops will stay largely the same: building the capabilities of the Iraqi military and rooting out the extremists.

The scope of that mission will certainly change as troop levels continue to decline, though of course this isn't the first time a president has declared an end to "combat" in Iraq.

Thanks to Mike Few, Iraq combat veteran and assistant editor at Small Wars Journal, and the U.S. Army public affairs office.

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FP Explainer

Could Julian Assange Be Prosecuted for the Afghan War Logs?

It depends on how he got the documents.

The U.S. government has accused Julian Assange, of the self-styled whistleblower website WikiLeaks, of endangering the lives of U.S. troops and their Afghan allies by publishing more than 75,000 classified documents related to the war in Afghanistan. "The battlefield consequences of the release of these documents are potentially severe and dangerous for our troops, our allies and Afghan partners, and may well damage our relationships and reputation in that key part of the world," Defense Secretary Robert Gates said Thursday. The New York Times  also reported that "Justice Department lawyers are exploring whether Assange and WikiLeaks could be charged with inducing, or conspiring in, violations of the Espionage Act." Do they have a case?

It depends on how Assange got his information. U.S. law defines espionage as transmitting classified national security information "with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation." The person who leaked the documents can almost certainly be prosecuted -- attention is currently focused on Army Pfc. Bradley Manning, who is also alleged to have leaked a video of a U.S. helicopter attack earlier this year.

If WikiLeaks was actively involved in removing the documents from the Pentagon -- hacking into a computer, for instance -- there would likely be a clear cut criminal case against the organization. But if WikiLeaks merely received the documents from someone who broke the law in leaking them, the law is much less clear.

In 2006, a Federal Court ruled that employees of the American Israel Public Affairs Committee could be prosecuted for receiving and transmitting classified U.S. information to Israel, even though they did not themselves leak the information. But WikiLeaks is not a foreign lobbyist and courts have generally given media organizations -- though it's not clear whether the group qualifies -- much more leeway.

In the most famous court case on this issue, 1971's New York Times co. vs. United States
-- better known as the Pentagon Papers case -- the Supreme Court ruled that the U.S. government could not show a sufficient national-security interest to prevent the publication of documents illegally leaked to the newspaper by defense analyst Daniel Ellsberg. But the court left open whether publication could be blocked if a significant national-security interest could be demonstrated.

Gates believes that the leaks could harm U.S. relations with Pakistan and put Afghans who have worked with the U.S. in danger, but according to First Amendment expert Jack Balkin of Yale University, blocking publication "is justified only where absolutely necessary to prevent almost immediate and imminent disaster."This would be a much tougher case to make.
Assange has also argued that the importance of the documents outweighs the potential danger and would likely deny in court that he intended injury toward the United States. Which narrative is more convincing would be for a jury to decide.

Whether or not the government can make a case, it would be extremely difficult in practice to prosecute Assange in the United States. An Australian citizen, he has no fixed address and his servers are spread throughout the world -- though there's also some discussion of charging him in his home country.

In any case, any attempt to prosecute Assange would inevitably turn what is now a national-security issue into a free-speech battle, an argument that the publicity-hungry Assange is likely more than happy to have.

Thanks to Michael C. Dorf, professor of law at Cornell University, and Laura Handman, co-chair of the appellate practice at the law firm of Davis, Wright, Tremaine.

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