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Persons who act openly, such as by wearing the uniform of the armed forces to whichthey belong, do not meet this element. 338 For example, members of a ground reconnaissanceteam or couriers who wear their normal uniforms would not meet this element. 339 In addition,observers on military reconnaissance aircraft have not been regarded as acting clandestinely orunder false pretenses. 3404.17.2.2 In the Zone of Operations of a Belligerent. A person must engage in actsof espionage in the zone of operations of a belligerent to be considered a spy. 341 “Zone ofoperations” has been construed broadly to include areas supporting the war effort. 342 However, aperson who engages in surveillance or information gathering from outside territory controlled bya hostile party would not meet this element, and would not be considered a spy.4.17.2.3 Obtains, or Endeavors to Obtain, Information. A person may bepunished as a spy regardless of whether that person succeeds in obtaining information or intransmitting it to the enemy. 343 A person, however, must obtain or attempt to obtain informationto be considered a spy.4.17.2.4 With the Intention of Communicating It to the Hostile Party. A personmust act with the intention of communicating the sought-after information to a hostile party tothe conflict to be considered a spy within the meaning of this rule.338 See HAGUE IV REG. art. 29 (“[S]oldiers not wearing a disguise who have penetrated into the zone of operations ofthe hostile army, for the purpose of obtaining information, are not considered spies.”). Consider AP I art. 46(2) (“Amember of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by anadverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while soacting, he is in the uniform of his armed forces.”).339 See HAGUE IV REG. art. 29 (“Soldiers and civilians, carrying out their mission openly, intrusted with the deliveryof despatches intended either for their own army or for the enemy’s army” are not considered spies).340 See HAGUE IV REG. art. 29 (“Persons sent in balloons for the purpose of carrying despatches and, generally, ofmaintaining communications between the different parts of an army or a territory” are not considered spies.);WINTHROP, MILITARY LAW & PRECEDENTS 768-69 (“[T]he mere observing of the enemy, with a view to gainintelligence of his movements, does not constitute [spying], for this may be done, and in active service is constantlydone, as a legitimate act of war … . Observing the enemy from a balloon is no more criminal than any other form ofreconnaissance.”).341 See, e.g., Ex Parte Quirin, 317 U.S. 1, 31 (1942) (characterizing a spy as one “who secretly and without uniformpasses the military lines of a belligerent in time of war, seeking to gather military information and communicate it tothe enemy”) (emphasis added).342 See United States ex rel. Wessels v. McDonald, 265 F. 754, 763-64 (E.D.N.Y. 1920) (“In this great World Warthrough which we have just passed, the field of operations which existed after the United States entered the war,and, especially in regard to naval operations, brought the port of New York within the field of active operations.”).Cf. Ex parte Quirin, 317 U.S. 1, 37 (1942) (“The law of war cannot rightly treat those agents of enemy armies whoenter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the lessbelligerent enemies than are agents similarly entering for the purpose of destroying fortified places or our ArmedForces.”).343See LIEBER CODE art. 88 (“The spy is punishable … whether or not he succeed in obtaining the information or inconveying it to the enemy.”); WINTHROP, MILITARY LAW & PRECEDENTS 768 (“The fact that [one] was ‘lurking’ or‘acting’ with intent to obtain material information, to be communicated by himself or another to the enemy, is allthat is required to complete the offence.”).152