UCMJ Article 103: Spies

Article 103 punishes anyone, of any nationality or status, who in time of war is found lurking or acting as a spy in or about U.S. military places, war-industry sites, “or elsewhere,” collecting information with intent to convey it to the enemy. The punishment is death or such other punishment as a court-martial or military commission may direct. Before 2019 the death penalty was mandatory; the Military Justice Act of 2016 removed that.

Lurking or acting as a spy in time of war

Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death or such other punishment as a court-martial or a military commission may direct.

Source: 10 U.S.C. § 903. The section does not apply to a military commission established under chapter 47A of title 10.

Before January 1, 2019, spying was Article 106 and required death on conviction. The Military Justice Act of 2016 moved it to Article 103 and “amended [it] to remove the mandatory death penalty” (MCM 2024, Appendix 17, analysis of ¶ 31). Article 106 is now impersonation.

What the government must prove about a spy

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 31.b:

1. The accused was found in or about a place, vessel, or aircraft under U.S. armed forces control, or a shipyard, plant, or other place working in aid of the war, “or elsewhere.”
2. The accused was lurking, acting clandestinely, or acting under false pretenses.
3. The accused was collecting or attempting to collect certain information.
4. The accused intended to convey the information to the enemy.
5. This was done in time of war.

The words “or elsewhere” mean the location element does not confine the offense to military sites.

What makes someone a spy

Under ¶ 31.c(4), a person can be a spy “only when, acting clandestinely or under false pretenses, that person obtains or seeks to obtain information with the intent to convey it to a hostile party.” It is not necessary that the information be obtained or communicated; the offense is complete with the lurking or clandestine conduct and the intent.

The intent to convey information to the enemy must be proved. It may be inferred from a deceptive insinuation among U.S. forces, but evidence that the person came within the lines for an innocent purpose, such as visiting family or reaching friendly lines in disguise, is admissible to rebut the inference (¶ 31.c(5)).

Who is not a spy

Paragraph 31.c(6) excludes three groups:

• Members of a military organization not wearing a disguise, dispatch drivers, and crews of ships or aircraft who carry out their missions openly, even after penetrating enemy lines. They may use concealment, but they have not acted under false pretenses.
• A spy who rejoins his or her own forces and is later captured. That person incurs no responsibility for the earlier spying.
• A person living in occupied territory who, without lurking or acting clandestinely, merely reports what is seen or heard to the enemy. The Manual says such a person may be charged with giving intelligence to or communicating with the enemy, offenses defined in Article 103b, but not as a spy.

“Any person” and “time of war”

“The words ‘any person’ bring within the jurisdiction of general courts-martial and military commissions all persons of whatever nationality or status who commit spying” (¶ 31.c(3)). The offense is not limited to people otherwise subject to the UCMJ.

“Time of war” is defined in R.C.M. 103, and “enemy” includes any hostile body opposing U.S. forces, civilians as well as military members (¶ 27.c(1)(b)). Without a time of war, the offense cannot be committed.

Death for spying, with the members deciding

Under ¶ 31.d, the punishment is “death or such other punishment as a court-martial or military commission may direct.” In a capital case, the members determine whether death is imposed under 10 U.S.C. § 853(c).

The neighboring articles

In peacetime, or where the conduct is delivering national defense information to a foreign government rather than lurking as a spy, the charge is espionage under Article 103a, which applies only to persons subject to the UCMJ and requires no state of war.

Sources

• 10 U.S.C. § 903, Article 103, Spies (Cornell LII)
• 10 U.S.C. § 853, Article 53, Findings and sentencing (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 27.c(1)(b) and ¶ 31; Appendix 17, analysis of ¶ 31

General information about military law, not legal advice for any individual case.