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18.23.5 Conspiracy. The essence of conspiracy is the combination of minds in anunlawful purpose. 349The United States has taken the position that conspiracy to violate the law of war ispunishable. 350 The United States has used military tribunals to punish unprivileged belligerentsfor the offense of conspiracy to violate the law of war. 351Conspiracy is an offense under the Uniform Code of Military Justice. 352Conspiracy is ansupport to terrorists”); 18 U.S.C. § 2339B (making punishable “[p]roviding material support or resources todesignated foreign terrorist organizations”).349 Smith v. United States, 133 S. Ct. 714, 719 (2013) (“The essence of conspiracy is ‘the combination of minds inan unlawful purpose.’”) (quoting United States v. Hirsch, 100 U.S. 33, 34 (1879)).350 See, e.g., 1956 FM 27-10 (Change No. 1 1976) 500 (“Conspiracy, direct incitement, and attempts to commit, aswell as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes arepunishable.”); Memorandum of Law from Tom C. Clark, Assistant Attorney General, to Major General Myron C.Kramer, Judge Advocate General, 6 (Mar. 12, 1945) (“In view of the statements of the authorities on military law setforth above, and the precedents established in the proceedings referred to above, it may be said to be wellestablished that a conspiracy to commit an offense against the laws of war is itself an offense cognizable by acommission administering military judgment.”).351 See, e.g., Hamdan v. Rumsfeld, 548 U.S. 1, 23 (2006) (Thomas, J., dissenting) (“The Civil War experienceprovides further support for the President’s conclusion that conspiracy to violate the laws of war is an offensecognizable before law-of-war military commissions. Indeed, in the highest profile case to be tried before a militarycommission relating to that war, namely, the trial of the men involved in the assassination of President Lincoln, thecharge provided that those men had ‘combin[ed], confederat[ed], and conspir[ed]…to kill and murder’ PresidentLincoln.”); Colepaugh v. Looney, 235 F.2d 429, 431 (10th Cir. 1956) (“January 11, 1945, by executive order, thePresident charged the petitioner with violation of the law of war and…to convene a military commission for trial ofsuch offenses. The first charge specified: (1) … the petitioner and one Gimpel, acting for the German Reich,secretly passed through, in civilian dress, contrary to the law of war, the military and naval lines of the United Statesfor the purpose of committing espionage, sabotage and other hostile acts; and (2) that the accused … appeared andremained in civil dress, contrary to the law of war behind the military lines of the United States for the purpose ofcommitting espionage, sabotage and other hostile acts. The second charge alleged … the petitioner and one Gimpel,acting for the German Reich, were, in time of war, found lurking and acting as spies in and about the fortifications,posts and encampments … of the United States …, for the purpose of obtaining intelligence and communicating it tothe German Reich. The third charge alleged a conspiracy to commit the above substantive offenses.”); Ex ParteQuirin, 317 U.S. 1, 23 (1942) (“On July 3, 1942, the Judge Advocate General’s Department of the Army preparedand lodged with the Commission the following charges against petitioners, supported by specifications: 1. Violationof the law of war. 2. Violation of Article 81 of the Articles of War, defining the offense of relieving or attempting torelieve, or corresponding with or giving intelligence to, the enemy. 3. Violation of Article 82, defining the offense ofspying. 4. Conspiracy to commit the offenses alleged in charges 1, 2 and 3.”); but see Hamdan v. Rumsfeld, 548U.S., 40-41 (2006) (Stevens, J., plurality) (“The crime of ‘conspiracy’ has rarely if ever been tried as such in thiscountry by any law-of-war military commission not exercising some other form of jurisdiction, and does not appearin either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war.”).352 See 10 U.S.C. § 881 (“(a) Any person subject to this chapter who conspires with any other person to commit anoffense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy,be punished as a court-martial may direct. (b) Any person subject to this chapter who conspires with any otherperson to commit an offense under the law of war, and who knowingly does an overt act to effect the object of theconspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as acourt-martial or military commission may direct, and, if death does not result to any of the victims, by suchpunishment, other than death, as a court-martial or military commission may direct.”).1126