ARTICLE 104 AIDING THE ENEMY

This article covers the various situations where an enlisted member knowingly helps the enemy whether by giving them protection or providing arms/ ammunition/ money/ supplies or passing on critical intelligence information to them. Under this article, 'enemy' refers to any hostile forces that are opposing the United States armed forces whether they are military or civilian in nature. The important components of Article 104 sections are as follows:

a) Furnishing ammunition or arms to the enemy

Elements:

• That at a specific time and place, the accused gave aid to specific person(s).
• That the person receiving the aid was the enemy.
• That the accused aided this enemy by providing ammunition/ arms/ supplies/ cash.
• Note: a) The accused is guilty of violating this article even if the enemy had no need for the ammunition/ arms/ supplies/ cash furnished by him.
  • b) The fact that the accused gained or did not gain any monetary or other benefit from furnishing the ammunition/ arms/ supplies/ cash does not make a difference to his guilt.
  • b) Attempt to provide ammunition or arms

Elements:

• That the accused committed a specific act.
• That the act pertained to specific ammunition/ arms/ supplies/ cash that he proposed to deliver or have delivered to a specific person.
• That this act was carried out with the objective of helping the enemy.
• That the person who was to receive the ammunition/ arms/ supplies/ cash was the enemy.
• That the accused carried out the act as a direct movement towards fulfilling his purpose of helping the enemy and that it was not just preparation to do so.
• That the act of the accused would have resulted in aiding the enemy if unexpected circumstances had not intervened, preventing this from happening.

Note: a) It is not necessary to prove that the enemy actually received the aid

b) There need not be any gain for the accused from the act

c) There is no necessity to prove that the enemy actually needed the ammunition/ arms/ supplies/ cash that the accused meant to furnish

c) Protecting or harboring the enemy

Elements:

• That at a specific place and time the accused gave protection to or harbored a certain person despite lacking the authority to do so.
• That the accused did this in a specific manner.
• That the harbored or protected person was the enemy.
• That the accused was fully aware that the person was an enemy.

Note: a) Circumstantial evidence is usually admissible to establish that knowledge existed.

b) 'Harboring' or 'protecting' means that the accused shielded the enemy, by physical means or in any other way, from mishap or injury that may occur during wartime.

d) Passing on intelligence to enemy

Elements:

• That at a specific time and place, the accused deliberately passed on intelligence information to a specific person despite lacking authority to do so.
• That he did so in a specific manner.
• That the recipient of the intelligence information was the enemy.
• That this information was partially true, at the very least.

Note: a) Circumstantial evidence of knowledge is typically admissible.

b) Intelligence could encompass any information that is helpful to the enemy and that is at least partly true.

e) Communicating with enemy

Elements:

• That at a specific time and place, the accused communicated with a specific person(s) despite the lack of authority to do so.
• That the accused communicated, had intercourse or corresponded with him in a specific manner.
• That the person with whom the accused communicated/ corresponded/ had intercourse with was the enemy.
• That the accused was fully aware that he was communicating with the enemy.

Note: a) The accused is guilty of violating this article as soon as the communication leaves him, irrespective of whether the enemy actually receives it or not.

b) It is not necessary to establish that a mutual exchange of communication existed between the accused and the enemy.

Maximum Punishment: The accused faces maximum punishment of death or other lawful punishment as deemed appropriate through a court martial process for violating Article 104. For more information refer to the Manual for Courts Martial.