[Code of Federal Regulations]
[Title 32, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR11.6]

[Page 33-42]
 
                       TITLE 32--NATIONAL DEFENSE
 
              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE
 
PART 11--CRIMES AND ELEMENTS FOR TRIALS BY MILITARY COMMISSION--Table of 
Contents
 
Sec. 11.6  Crimes and elements.

    (a) Substantive offenses--war crimes. The following enumerated 
offenses, if applicable, should be charged in separate counts. Elements 
are drafted to

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reflect conduct of the perpetrator. Each element need not be 
specifically charged.
    (1) Willful killing of protected persons--(i) Elements. (A) The 
accused killed one or more persons;
    (B) The accused intended to kill such person or persons;
    (C) Such person or persons were protected under the law of war;
    (D) The accused knew or should have known of the factual 
circumstances that established that protected status; and
    (E) The killing took place in the context of and was associated with 
armed conflict.
    (ii) Comments. The intent required for this offense precludes its 
applicability with regard to collateral damage or injury incident to a 
lawful attack.
    (2) Attacking civilians.--(i) Elements. (A) The accused engaged in 
an attack;
    (B) The object of the attack was a civilian population as such or 
individual civilians not taking direct or active part in hostilities;
    (C) The accused intended the civilian population as such or 
individual civilians not taking direct or active part in hostilities to 
be an object of the attack; and
    (D) The attack took place in the context of and was associated with 
armed conflict.
    (ii) Comments. The intent required for this offense precludes its 
applicability with regard to collateral damage or injury incident to a 
lawful attack.
    (3) Attacking civilian objects.--(i) Elements. (A) The accused 
engaged in an attack;
    (B) The object of the attack was civilian property, that is, 
property that was not a military objective;
    (C) The accused intended such property to be an object of the 
attack;
    (D) The accused knew or should have known that such property was not 
a military objective; and
    (E) The attack took place in the context of and was associated with 
armed conflict.
    (ii) Comments. The intent required for this offense precludes its 
applicability with regard to collateral damage or injury incident to a 
lawful attack.
    (4) Attacking Protected Property--(i) Elements. (A) The accused 
engaged in an attack;
    (B) The object of the attack was protected property;
    (C) The accused intended such property to be an object of the 
attack;
    (D) The accused knew or should have known of the factual 
circumstances that established that protected status; and
    (E) The attack took place in the context of and was associated with 
armed conflict.
    (ii) Comments. The intent required for this offense precludes its 
applicability with regard to collateral damage or injury incident to a 
lawful attack.
    (5) Pillaging--(i) Elements. (A) The accused appropriated or seized 
certain property;
    (B) The accused intended to appropriate or seize such property for 
private or personal use;
    (C) The appropriation or seizure was without the consent of the 
owner of the property or other person with authority to permit such 
appropriation or seizure; and
    (D) The appropriation or seizure took place in the context of and 
was associated with armed conflict.
    (ii) Comments. As indicated by the use of the term ``private or 
personal use,'' legitimate captures or appropriations, or seizures 
justified by military necessity, cannot constitute the crime of 
pillaging.
    (6) Denying quarter--(i) Elements. (A) The accused declared, 
ordered, or otherwise indicated that there shall be no survivors or 
surrender accepted;
    (B) The accused thereby intended to threaten an adversary or to 
conduct hostilities such that there would be no survivors or surrender 
accepted;
    (C) It was foreseeable that circumstances would be such that a 
practicable and reasonable ability to accept surrender would exist;
    (D) The accused was in a position of effective command or control 
over the subordinate forces to which the declaration or order was 
directed; and
    (E) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) Comments. Paragraph (a)(6)(i)(C) of this section precludes this 
offense

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from being interpreted as limiting the application of lawful means or 
methods of warfare against enemy combatants. For example, a remotely 
delivered attack cannot give rise to this offense.
    (7) Taking Hostages--(i) Elements. (A) The accused seized, detained, 
or otherwise held hostage one or more persons;
    (B) The accused threatened to kill, injure, or continue to detain 
such person or persons;
    (C) The accused intended to compel a State, an international 
organization, a natural or legal person, or a group of persons to act or 
refrain from acting as an explicit or implicit condition for the safety 
or release of such person or persons; and
    (D) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) Comments. Consistent with Sec. 11.4(b), this offense cannot be 
committed by lawfully detaining enemy combatants or other individuals as 
authorized by the law of armed conflict.
    (8) Employing poison or analogous weapons--(i) Elements. (A) The 
accused employed a substance or a weapon that releases a substance as a 
result of its employment;
    (B) The substance was such that exposure thereto causes death or 
serious damage to health in the ordinary course of events, through its 
asphyxiating, poisonous, or bacteriological properties;
    (C) The accused employed the substance or weapon with the intent of 
utilizing such asphyxiating, poisonous, or bacteriological properties as 
a method of warfare;
    (D) The accused knew or should have known of the nature of the 
substance or weapon; and
    (E) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) Comments. (A) The ``death or serious damage to health'' 
required by paragraph (a)(8)(i)(B) of this section must be a direct 
result of the substance's effect or effects on the human body (e.g., 
asphyxiation caused by the depletion of atmospheric oxygen secondary to 
a chemical or other reaction would not give rise to this offense).
    (B) The clause ``serious damage to health'' does not include 
temporary incapacitation or sensory irritation.
    (C) The use of the ``substance or weapon'' at issue must be 
proscribed under the law of armed conflict. It may include chemical or 
biological agents.
    (D) The specific intent element for this offense precludes liability 
for mere knowledge of potential collateral consequences (e.g., mere 
knowledge of a secondary asphyxiating or toxic effect would be 
insufficient to complete the offense).
    (9) Using protected persons as shields--(i) Elements. (A) The 
accused positioned, or took advantage of the location of, one or more 
civilians or persons protected under the law of war;
    (B) The accused intended to use the civilian or protected nature of 
the person or persons to shield a military objective from attack or to 
shield, favor, or impede military operations; and
    (C) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) [Reserved]
    (10) Using protected property as shields--(i) Elements. (A) The 
accused positioned, or took advantage of the location of, civilian 
property or property protected under the law of war;
    (B) The accused intended to shield a military objective from attack 
or to shield, favor, or impede military operations; and
    (C) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) [Reserved]
    (11) Torture--(i) Elements. (A) The accused inflicted severe 
physical or mental pain or suffering upon one or more persons;
    (B) The accused intended to inflict such severe physical or mental 
pain or suffering;
    (C) Such person or persons were in the custody or under the control 
of the accused; and
    (D) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) Comments. (A) Consistent with Sec. 11.4(b), this offense does 
not include pain or suffering arising only from, inherent in, or 
incidental to, lawfully imposed punishments. This offense does

[[Page 36]]

not include the incidental infliction of pain or suffering associated 
with the legitimate conduct of hostilities.
    (B) Severe ``mental pain or suffering'' is the prolonged mental harm 
caused by or resulting from:
    (1) The intentional infliction or threatened infliction of severe 
physical pain or suffering;
    (2) The administration or application, or threatened administration 
or application, of mind-altering substances or other procedures 
calculated to disrupt profoundly the senses or the personality;
    (3) The threat of imminent death; or
    (4) The threat that another person will imminently be subjected to 
death, severe physical pain or suffering, or the administration or 
application of mind-altering substances or other procedures calculated 
to disrupt profoundly the senses or personality.
    (C) ``Prolonged mental harm'' is a harm of some sustained duration, 
though not necessarily permanent in nature, such as a clinically 
identifiable mental disorder.
    (D) Paragraph (a)(11)(i)(C) of this section does not require a 
particular formal relationship between the accused and the victim. 
Rather, it precludes prosecution for pain or suffering consequent to a 
lawful military attack.
    (12) Causing serious injury--(i) Elements. (A) The accused caused 
serious injury to the body or health of one or more persons;
    (B) The accused intended to inflict such serious injury;
    (C) Such person or persons were in the custody or under the control 
of the accused; and
    (D) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) Comments. ``Serious injury'' includes fractured or dislocated 
bones, deep cuts, torn members of the body, and serious damage to 
internal organs.
    (13) Mutilation or maiming--(i) Elements. (A) The accused subjected 
one or more persons to mutilation, in particular by permanently 
disfiguring the person or persons, or by permanently disabling or 
removing an organ or appendage;
    (B) The accused intended to subject such person or persons to such 
mutilation;
    (C) The conduct caused death or seriously damaged or endangered the 
physical or mental health or appearance of such person or persons.
    (D) The conduct was neither justified by the medical treatment of 
the person or persons concerned nor carried out in the interest of such 
person or persons;
    (E) Such person or persons were in the custody or control of the 
accused; and
    (F) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) [Reserved]
    (14) Use of treachery or perfidy--(i) Elements. (A) The accused 
invited the confidence or belief of one or more persons that they were 
entitled to, or were obliged to accord, protection under the law of war;
    (B) The accused intended to betray that confidence or belief;
    (C) The accused killed, injured, or captured one or more persons;
    (D) The accused made use of that confidence or belief in killing, 
injuring, or capturing such person or persons; and
    (E) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) [Reserved]
    (15) Improper use of flag of truce--(i) Elements. (A) The accused 
used a flag of truce;
    (B) The accused made such use in order to feign an intention to 
negotiate, surrender, or otherwise to suspend hostilities when there was 
no such intention on the part of the accused; and
    (C) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) [Reserved]
    (16) Improper use of protective emblems--(i) Elements. (A) The 
accused used a protective emblem recognized by the law of armed 
conflict;
    (B) The accused undertook such use for combatant purposes in a 
manner prohibited by the law of armed conflict;

[[Page 37]]

    (C) The accused knew or should have known of the prohibited nature 
of such use; and
    (D) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) Comments. ``Combatant purposes,'' as used in paragraph 
(a)(16)(i)(B) of this section, means purposes directly related to 
hostilities and does not include medical, religious, or similar 
activities.
    (17) Degrading treatment of a dead body.--(i) Elements. (A) The 
accused degraded or otherwise violated the dignity of the body of a dead 
person;
    (B) The accused intended to degrade or otherwise violate the dignity 
of such body;
    (C) The severity of the degradation or other violation was of such 
degree as to be generally recognized as an outrage upon personal 
dignity; and
    (D) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) Comments. Paragraph (a)(17)(i)(B) of this section precludes 
prosecution for actions justified by military necessity.
    (18) Rape--(i) Elements. (A) The accused invaded the body of a 
person by conduct resulting in penetration, however slight, of any part 
of the body of the victim or of the accused with a sexual organ, or of 
the anal or genital opening of the victim with any object or any other 
part of the body;
    (B) The invasion was committed by force, threat of force or 
coercion, or was committed against a person incapable of giving consent; 
and
    (C) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) Comments. (A) Paragraph (a)(18)(i)(B) of this section 
recognizes that consensual conduct does not give rise to this offense.
    (B) It is understood that a person may be incapable of giving 
consent if affected by natural, induced, or age-related incapacity.
    (C) The concept of ``invasion'' is linked to the inherent 
wrongfulness requirement for all offenses. In this case, for example, a 
legitimate body cavity search could not give rise to this offense.
    (D) The concept of ``invasion'' is gender neutral.
    (b) Substantive offenses--other offenses triable by military 
commission. The following enumerated offenses, if applicable, should be 
charged in separate counts. Elements are drafted to reflect conduct of 
the perpetrator. Each element need not be specifically charged.
    (1) Hijacking or hazarding a vessel or aircraft--(i) Elements. (A) 
The accused seized, exercised control over, or endangered the safe 
navigation of a vessel or aircraft;
    (B) The accused intended to so seize, exercise control over, or 
endanger such vessel or aircraft; and
    (C) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) Comments. A seizure, exercise of control, or endangerment 
required by military necessity, or against a lawful military objective 
undertaken by military forces of a State in the exercise of their 
official duties, would not satisfy the wrongfulness requirement for this 
crime.
    (2) Terrorism--(i) Elements. (A) The accused killed or inflicted 
bodily harm on one or more persons or destroyed property;
    (B) The accused:
    (1) Intended to kill or inflict bodily harm on one or more persons; 
or
    (2) Intentionally engaged in an act that is inherently dangerous to 
another and evinces a wanton disregard of human life;
    (C) The killing, harm or destruction was intended to intimidate or 
coerce a civilian population, or to influence the policy of a government 
by intimidation or coercion; and
    (D) The killing, harm or destruction took place in the context of 
and was associated with armed conflict.
    (ii) Comments. (A) Paragraph (b)(2)(i)(A) of this section includes 
the concept of causing death or bodily harm, even if indirectly.
    (B) The requirement that the conduct be wrongful for this crime 
necessitates that the conduct establishing this offense not constitute 
an attack against a lawful military objective undertaken by military 
forces of a State in the exercise of their official duties.

[[Page 38]]

    (3) Murder by an unprivileged belligerent--(i) Elements. (A) The 
accused killed one or more persons;
    (B) The accused:
    (1) Intended to kill or inflict great bodily harm on such person or 
persons; or
    (2) Intentionally engaged in an act that is inherently dangerous to 
another and evinces a wanton disregard of human life;
    (C) The accused did not enjoy combatant immunity; and
    (D) The killing took place in the context of and was associated with 
armed conflict.
    (ii) Comments. (A) The term ``kill'' includes intentionally causing 
death, whether directly or indirectly.
    (B) Unlike the crimes of willful killing or attacking civilians, in 
which the victim's status is a prerequisite to criminality, for this 
offense the victim's status is immaterial. Even an attack on a soldier 
would be a crime if the attacker did not enjoy ``belligerent privilege'' 
or ``combatant immunity.''
    (4) Destruction of property by an unprivileged belligerent--(i) 
Elements. (A) The accused destroyed property;
    (B) The property belonged to another person, and the destruction was 
without that person's consent;
    (C) The accused intended to destroy such property;
    (D) The accused did not enjoy combatant immunity; and
    (E) The destruction took place in the context of and was associated 
with armed conflict.
    (ii) [Reserved]
    (5) Aiding the enemy--(i) Elements. (A) The accused aided the enemy;
    (B) The accused intended to aid the enemy; and
    (C) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) Comments. (A) Means of accomplishing paragraph (b)(5)(i)(A) of 
this section include, but are not limited to: providing arms, 
ammunition, supplies, money, other items or services to the enemy; 
harboring or protecting the enemy; or giving intelligence or other 
information to the enemy.
    (B) The requirement that conduct be wrongful for this crime 
necessitates that the accused act without proper authority. For example, 
furnishing enemy combatants detained during hostilities with subsistence 
or quarters in accordance with applicable orders or policy is not aiding 
the enemy.
    (C) The requirement that conduct be wrongful for this crime may 
necessitate that, in the case of a lawful belligerent, the accused owe 
allegiance or some duty to the United States of America or to an ally or 
coalition partner. For example, citizenship, resident alien status, or a 
contractual relationship in or with the United States or an ally or 
coalition partner is sufficient to satisfy this requirement so long as 
the relationship existed at a time relevant to the offense alleged.
    (6) Spying--(i) Elements. (A) The accused collected or attempted to 
collect certain information;
    (B) The accused intended to convey such information to the enemy;
    (C) The accused, in collecting or attempting to collect the 
information, was lurking or acting clandestinely, while acting under 
false pretenses; and
    (D) The conduct took place in the context of and was associated with 
armed conflict.
    (ii) Comments. (A) Members of a military organization not wearing a 
disguise and others who carry out their missions openly are not spies, 
if, though they may have resorted to concealment, they have not acted 
under false pretenses.
    (B) Related to the requirement that conduct be wrongful or without 
justification or excuse in this case is the fact that, consistent with 
the law of war, a lawful combatant who, after rejoining the armed force 
to which that combatant belongs, is subsequently captured, can not be 
punished for previous acts of espionage. His successful rejoining of his 
armed force constitutes a defense.
    (7) Perjury or false testimony--(i) Elements.
    (A) The accused testified at a military commission, in proceedings 
ancillary to a military commission, or provided information in a writing 
executed under an oath to tell the truth or a declaration acknowledging 
the applicability of penalties of perjury in connection with such 
proceedings;

[[Page 39]]

    (B) Such testimony or information was material;
    (C) Such testimony or information was false; and
    (D) The accused knew such testimony or information to be false.
    (ii) [Reserved]
    (8) Obstruction of justice related to military commissions--(i) 
Elements. (A) The accused did an act;
    (B) The accused intended to influence, impede, or otherwise obstruct 
the due administration of justice; and
    (C) The accused did such act in the case of a certain person against 
whom the accused had reason to believe:
    (1) There were or would be proceedings before a military commission; 
or
    (2) There was an ongoing investigation of offenses triable by 
military commission.
    (ii) [Reserved]
    (c) Other forms of liability and related offenses. A person is 
criminally liable as a principal for a completed substantive offense if 
that person commits the offense (perpetrator), aids or abets the 
commission of the offense, solicits commission of the offense, or is 
otherwise responsible due to command responsibility. Such a person would 
be charged as a principal even if another individual more directly 
perpetrated the offense. In proving culpability, however, the below 
listed definitions and elements are applicable. Additionally, if a 
substantive offense was completed, a person may be criminally liable for 
the separate offense of accessory after the fact. If the substantive 
offense was not completed, a person may be criminally liable of the 
lesser-included offense of attempt or the separate offense of 
solicitation. Finally, regardless of whether the substantive offense was 
completed, a person may be criminally liable of the separate offense of 
conspiracy in addition to the substantive offense. Each element need not 
be specifically charged.
    (1) Aiding or abetting--(i) Elements. (A) The accused committed an 
act that aided or abetted another person or entity in the commission of 
a substantive offense triable by military commission;
    (B) Such other person or entity committed or attempted to commit the 
substantive offense; and
    (C) The accused intended to or knew that the act would aid or abet 
such other person or entity in the commission of the substantive offense 
or an associated criminal purpose or enterprise.
    (ii) Comments. (A) The term ``aided or abetted'' in paragraph 
(c)(1)(i)(A) of this section includes: assisting, encouraging, advising, 
instigating, counseling, ordering, or procuring another to commit a 
substantive offense; assisting, encouraging, advising, counseling, or 
ordering another in the commission of a substantive offense; and in any 
other way facilitating the commission of a substantive offense.
    (B) In some circumstances, inaction may render one liable as an 
aider or abettor. If a person has a legal duty to prevent or thwart the 
commission of a substantive offense, but does not do so, that person may 
be considered to have aided or abetted the commission of the offense if 
such noninterference is intended to and does operate as an aid or 
encouragement to the actual perpetrator.
    (C) An accused charged with aiding or abetting should be charged 
with the related substantive offense as a principal.
    (2) Solicitation--(i) Elements. (A) The accused solicited, ordered, 
induced, or advised a certain person or persons to commit one or more 
substantive offenses triable by military commission; and
    (B) The accused intended that the offense actually be committed.
    (ii) Comments. (A) The offense is complete when a solicitation is 
made or advice is given with the specific wrongful intent to induce a 
person or persons to commit any offense triable by military commission. 
It is not necessary that the person or persons solicited, ordered, 
induced, advised, or assisted agree to or act upon the solicitation or 
advice. If the offense solicited is actually committed, however, the 
accused is liable under the law of armed conflict for the substantive 
offense. An accused should not be convicted of both solicitation and the 
substantive offense solicited if criminal liability for the substantive 
offense is based upon the solicitation.

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    (B) Solicitation may be by means other than speech or writing. Any 
act or conduct that reasonably may be construed as a serious request, 
order, inducement, advice, or offer of assistance to commit any offense 
triable by military commission may constitute solicitation. It is not 
necessary that the accused act alone in the solicitation, order, 
inducement, advising, or assistance. The accused may act through other 
persons in committing this offense.
    (C) An accused charged with solicitation of a completed substantive 
offense should be charged for the substantive offense as a principal. An 
accused charged with solicitation of an uncompleted offense should be 
charged for the separate offense of solicitation. Solicitation is not a 
lesser-included offense of the related substantive offense.
    (3) Command/superior responsibility--perpetrating--(i) Elements. (A) 
The accused had command and control, or effective authority and control, 
over one or more subordinates;
    (B) One or more of the accused's subordinates committed, attempted 
to commit, conspired to commit, solicited to commit, or aided or abetted 
the commission of one or more substantive offenses triable by military 
commission;
    (C) The accused either knew or should have known that the 
subordinate or subordinates were committing, attempting to commit, 
conspiring to commit, soliciting, or aiding or abetting such offense or 
offenses; and
    (D) The accused failed to take all necessary and reasonable measures 
within his power to prevent or repress the commission of the offense or 
offenses.
    (ii) Comments.
    (A) The phrase ``effective authority and control'' in paragraph 
(c)(3)(i)(A) of this section includes the concept of relative authority 
over the subject matter or activities associated with the perpetrator's 
conduct. This may be relevant to a civilian superior who should not be 
held responsible for the behavior of subordinates involved in activities 
that have no relationship to such superior's sphere of authority. 
Subject matter authority need not be demonstrated for command 
responsibility as it applies to a military commander.
    (B) A commander or other military or civilian superior, not in 
command, charged with failing adequately to prevent or repress a 
substantive offense triable by military commission should be charged for 
the related substantive offense as a principal.
    (4) Command/superior responsibility--misprision--(i) Elements. (A) 
The accused had command and control, or effective authority and control, 
over one or more subordinates;
    (B) One or more of the accused's subordinates had committed, 
attempted to commit, conspired to commit, solicited to commit, or aided 
or abetted the commission of one or more substantive offenses triable by 
military commission;
    (C) The accused knew or should have known that the subordinate or 
subordinates had committed, attempted to commit, conspired to commit, 
solicited, or aided or abetted such offense or offenses; and
    (D) The accused failed to submit the matter to competent authorities 
for investigation or prosecution as appropriate.
    (ii) Comments.
    (A) The phrase, ``effective authority and control'' in paragraph 
(c)(4)(i)(A) of this section includes the concept of relative authority 
over the subject matter or activities associated with the perpetrator's 
conduct. This may be relevant to a civilian superior who cannot be held 
responsible under this offense for the behavior of subordinates involved 
in activities that have nothing to do with such superior's sphere of 
authority.
    (B) A commander or superior charged with failing to take appropriate 
punitive or investigative action subsequent to the perpetration of a 
substantive offense triable by military commission should not be charged 
for the substantive offense as a principal. Such commander or superior 
should be charged for the separate offense of failing to submit the 
matter for investigation and/or prosecution as detailed in these 
elements. This offense is not a lesser-included offense of the related 
substantive offense.

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    (5) Accessory after the fact--(i) Elements. (A) The accused 
received, comforted, or assisted a certain person;
    (B) Such person had committed an offense triable by military 
commission;
    (C) The accused knew that such person had committed such offense or 
believed such person had committed a similar or closely related offense; 
and
    (D) The accused intended to hinder or prevent the apprehension, 
trial, or punishment of such person.
    (ii) Comments. Accessory after the fact should be charged separately 
from the related substantive offense. It is not a lesser-included 
offense of the related substantive offense.
    (6) Conspiracy--(i) Elements. (A) The accused entered into an 
agreement with one or more persons to commit one or more substantive 
offenses triable by military commission or otherwise joined an 
enterprise of persons who shared a common criminal purpose that 
involved, at least in part, the commission or intended commission of one 
or more substantive offenses triable by military commission;
    (B) The accused knew the unlawful purpose of the agreement or the 
common criminal purpose of the enterprise and joined in it willfully, 
that is, with the intent to further the unlawful purpose; and
    (C) One of the conspirators or enterprise members, during the 
existence of the agreement or enterprise, knowingly committed an overt 
act in order to accomplish some objective or purpose of the agreement or 
enterprise.
    (ii) Comments. (A) Two or more persons are required in order to have 
a conspiracy. Knowledge of the identity of co-conspirators and their 
particular connection with the agreement or enterprise need not be 
established. A person may be guilty of conspiracy although incapable of 
committing the intended offense. The joining of another conspirator 
after the conspiracy has been established does not create a new 
conspiracy or affect the status of the other conspirators. The agreement 
or common criminal purpose in a conspiracy need not be in any particular 
form or manifested in any formal words.
    (B) The agreement or enterprise must, at least in part, involve the 
commission or intended commission of one or more substantive offenses 
triable by military commission. A single conspiracy may embrace multiple 
criminal objectives. The agreement need not include knowledge that any 
relevant offense is in fact ``triable by military commission.''
    (C) The overt act must be done by one or more of the conspirators, 
but not necessarily the accused, and it must be done to effectuate the 
object of the conspiracy or in furtherance of the common criminal 
purpose. The accused need not have entered the agreement or criminal 
enterprise at the time of the overt act.
    (D) The overt act need not be in itself criminal, but it must 
advance the purpose of the conspiracy. It is not essential that any 
substantive offense be committed.
    (E) Each conspirator is liable for all offenses committed pursuant 
to or in furtherance of the conspiracy by any of the co-conspirators, 
after such conspirator has joined the conspiracy and while the 
conspiracy continues and such conspirator remains a party to it.
    (F) A party to the conspiracy who withdraws from or abandons the 
agreement or enterprise before the commission of an overt act by any 
conspirator is not guilty of conspiracy. An effective withdrawal or 
abandonment must consist of affirmative conduct that is wholly 
inconsistent with adherence to the unlawful agreement or common criminal 
purpose and that shows that the party has severed all connection with 
the conspiracy. A conspirator who effectively withdraws from or abandons 
the conspiracy after the performance of an overt act by one of the 
conspirators remains guilty of conspiracy and of any offenses committed 
pursuant to the conspiracy up to the time of the withdrawal or 
abandonment. The withdrawal of a conspirator from the conspiracy does 
not affect the status of the remaining members.
    (G) That the object of the conspiracy was impossible to effect is 
not a defense to this offense.
    (H) Conspiracy to commit an offense is a separate and distinct 
offense from any offense committed pursuant to or in furtherance of the 
conspiracy, and

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both the conspiracy and any related offense may be charged, tried, and 
punished separately. Conspiracy should be charged separately from the 
related substantive offense. It is not a lesser-included offense of the 
substantive offense.
    (7) Attempt--(i) Elements. (A) The accused committed an act;
    (B) The accused intended to commit one or more substantive offenses 
triable by military commission;
    (C) The act amounted to more than mere preparation; and
    (D) The act apparently tended to effect the commission of the 
intended offense.
    (ii) Comments. (A) To constitute an attempt there must be a specific 
intent to commit the offense accompanied by an act that tends to 
accomplish the unlawful purpose. This intent need not involve knowledge 
that the offense is in fact ``triable by military commission.''
    (B) Preparation consists of devising or arranging means or measures 
apparently necessary for the commission of the offense. The act need not 
be the last act essential to the consummation of the offense. The 
combination of specific intent to commit an offense, plus the commission 
of an act apparently tending to further its accomplishment, constitutes 
the offense of attempt. Failure to complete the offense, whatever the 
cause, is not a defense.
    (C) A person who purposely engages in conduct that would constitute 
the offense if the attendant circumstances were as that person believed 
them to be is guilty of an attempt.
    (D) It is a defense to an attempt offense that the person 
voluntarily and completely abandoned the intended offense, solely 
because of the person's own sense that it was wrong, prior to the 
completion of the substantive offense. The voluntary abandonment defense 
is not allowed if the abandonment results, in whole or in part, from 
other reasons, for example, the person feared detection or apprehension, 
decided to await a better opportunity for success, was unable to 
complete the crime, or encountered unanticipated difficulties or 
unexpected resistance.
    (E) Attempt is a lesser-included offense of any substantive offense 
triable by military commission and need not be charged separately. An 
accused may be charged with attempt without being charged with the 
substantive offense.