[Code of Federal Regulations]

[Title 32, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 32CFR11.6]



[Page 34-43]

 

                       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



[[Page 35]]



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



[[Page 36]]



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 37]]



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 38]]



    (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 39]]



    (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;

    (B) Such testimony or information was material;



[[Page 40]]



    (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.

    (B) Solicitation may be by means other than speech or writing. Any 

act or conduct that reasonably may be



[[Page 41]]



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.

    (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;



[[Page 42]]



    (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 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-



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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.