UCMJ Article 103a: Espionage
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Espionage under Article 103a is communicating, delivering, or transmitting national defense information to a foreign government, faction, or force, or their agents, with intent or reason to believe it will injure the United States or help a foreign nation. Non-capital espionage, and attempted espionage, carry any punishment other than death, which includes confinement for life. Death is authorized only when the offense directly concerns one of four categories of information listed in the statute and the members unanimously find an aggravating factor.
Delivering defense information to a foreign power
10 U.S.C. § 903a(a) punishes a person subject to the UCMJ who, “with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation,” communicates, delivers, or transmits, or attempts to, directly or indirectly:
- What: “a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense.”
- To whom: a foreign government; a faction, party, or military or naval force within a foreign country, recognized or not; or a representative, officer, agent, employee, subject, or citizen of any of them.
Unlike Article 103, spies, espionage applies only to persons subject to the UCMJ and does not require a time of war. Before January 1, 2019, it was Article 106a; the Military Justice Act of 2016 renumbered it (Pub. L. 114-328, § 5401(7)). Article 106a is now wearing unauthorized insignia.
What the intent element means
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 32.c(1), explains that “intent or reason to believe” means the accused “acted in bad faith and without lawful authority with respect to information that is not lawfully accessible to the public.” Information lawfully available to the public falls outside the element.
“Information relating to the national defense” is read broadly: it “includes the full range of modern technology and matter that may be developed in the future, including chemical or biological agents, computer technology, and other matter related to the national defense” (¶ 32.c(2)).
When espionage is capital
The Manual lists espionage as a capital offense (¶ 32.b(3)) only if the government alleges and proves that the offense directly concerned:
- nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack;
- war plans;
- communications intelligence or cryptographic information; or
- any other major weapons system or major element of defense strategy.
Even then, § 903a(b)-(c) adds two gates. The members must unanimously find, beyond a reasonable doubt, at least one aggravating factor: a prior conviction for espionage or treason carrying death or life; knowingly creating a grave risk of substantial damage to national security; knowingly creating a grave risk of death to another person; or another factor prescribed by the President. And they must unanimously determine that extenuating or mitigating circumstances are substantially outweighed by aggravating circumstances. The accused “shall be given broad latitude to present matters in extenuation and mitigation.”
Death only for the capital form
From ¶ 32.d:
| Offense | Maximum |
|---|---|
| Espionage as a capital offense | Death or such other punishment as a court-martial may direct |
| Espionage or attempted espionage | Any punishment, other than death, that a court-martial may direct |
Attempted espionage is charged under Article 103a itself rather than under Article 80, and it requires an overt act beyond mere preparation done with intent to commit espionage (¶ 32.b(2)).
Related offense
Aiding the enemy, including giving intelligence to or communicating with the enemy, is Article 103b; it reaches “any person” and requires an enemy rather than any foreign government. Soliciting another person to commit espionage carries any punishment except death under Article 82 (¶ 6.d(1)).
Sources
- 10 U.S.C. § 903a, Article 103a, Espionage (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 6.d and ¶ 32; Appendix 17, analysis of ¶ 32
General information about military law, not legal advice for any individual case.