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(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”

Elements.

(1) Aiding the enemy.

(a) That the accused aided the enemy; and

(b) That the accused did so with certain arms, ammunition, supplies, money, or other things.

(2) Attempting to aid the enemy.

(a) That the accused did a certain overt act;

(b) That the act was done with the intent to aid the enemy with certain arms, ammunition, supplies, money, or other things;

(c) That the act amounted to more than mere preparation; and

(d) That the act apparently tended to bring about the offense of aiding the enemy with certain arms, ammunition, supplies, money, or other things.

(3) Harboring or protecting the enemy.

(a) That the accused, without proper authority, harbored or protected a person;

(b) That the person so harbored or protected was the enemy; and

(c) That the accused knew that the person so harbored or protected was an enemy.

(4) Giving intelligence to the enemy.

(a) That the accused, without proper authority, knowingly gave intelligence information to the enemy; and

(b) That the intelligence information was true, or implied the truth, at least in part.

(5) Communicating with the enemy.

(a) That the accused, without proper authority, communicated, corresponded, or held intercourse with the enemy, and;

(b) That the accused knew that the accused was communicating, corresponding, or holding intercourse with the enemy.

Explanation.

(1) Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court-martial or by military commission.

(2) Enemy. For a discussion of “enemy,” see paragraph 23c(1)(b) in the Manual Of Courts Martials (linked to a 3.5M PDF).

(3) Aiding or attempting to aid the enemy. It is not a violation of this article to furnish prisoners of war subsistence, quarters, and other comforts or aid to which they are lawfully entitled.

(4) Harboring or protecting the enemy.

(a) Nature of offense. An enemy is harbored or protected when, without proper authority, that enemy is shielded, either physically or by use of any artifice, aid, or representation from any injury or misfortune which in the chance of war may occur.

(b) Knowledge. Actual knowledge is required, but may be proved by circumstantial evidence.

(5) Giving intelligence to the enemy.

(a) Nature of offense. Giving intelligence to the enemy is a particular case of corresponding with the enemy made more serious by the fact that the communication contains intelligence that may be useful to the enemy for any of the many reasons that make information valuable to belligerents. This intelligence may be conveyed by direct or indirect means.

(b) Intelligence. “Intelligence” imports that the information conveyed is true or implies the truth, at least in part.

(c) Knowledge. Actual knowledge is required but may be proved by circumstantial evidence.

(6) Communicating with the enemy.

(a) Nature of the offense. No unauthorized communication, correspondence, or intercourse with the enemy is permissible. The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused. The communication, correspondence, or intercourse may be conveyed directly or indirectly. A prisoner of war may violate this Article by engaging in unauthorized communications with the enemy. See also paragraph 29c(3).

(b) Knowledge. Actual knowledge is required but may be proved by circumstantial evidence.

(c) Citizens of neutral powers. Citizens of neutral powers resident in or visiting invaded or occupied territory can claim no immunity from the customary laws of war relating to communication with the enemy.

Lesser included offense. For harboring or protecting the enemy, giving intelligence to the enemy, or communicating with the enemy. Article 80—attempts

Maximum punishment. Death or such other punishment as a court-martial or military commission may direct