UCMJ Article 103b: Aiding the Enemy

Article 103b reaches any person, whether or not otherwise subject to military law, who aids the enemy with arms, money, supplies, or other things, or who without authority knowingly harbors, protects, gives intelligence to, trains, advises, or communicates with the enemy. Every form is punishable by death or such other punishment as a court-martial or military commission may direct. Communicating with the enemy is complete the moment the message leaves the accused, whatever it says.

Material aid and unauthorized contact with the enemy

Under 10 U.S.C. § 903b, any person who:

“aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things”; or
“without proper authority, knowingly harbors or protects or gives intelligence to, provides military education, military training, or tactical advice to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly”;

“shall suffer death or such other punishment as a court-martial or military commission may direct.” The section does not apply to a military commission established under chapter 47A of title 10.

The words “provides military education, military training, or tactical advice to” were added by Pub. L. 118-159, § 564, enacted December 23, 2024. Before January 1, 2019, aiding the enemy was Article 104; the Military Justice Act of 2016 moved it to Article 103b (MCM 2024, Appendix 17, analysis of ¶ 33). Article 104 is now public records offenses.

Five offenses in the Manual

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 33.b, separates aiding the enemy, attempting to aid the enemy, harboring or protecting the enemy, giving intelligence to the enemy, and communicating with the enemy. Neither the 2024 Manual nor Executive Order 14130, which amended Part IV in December 2024, adds separate elements for the military-training language added to the statute that month.

Points from the Manual

Any person. The article “denounces offenses by all persons whether or not otherwise subject to military law,” and offenders may be tried by court-martial or military commission (¶ 33.c(1)).
Prisoners of war. Furnishing prisoners of war with subsistence, quarters, and other comforts or aid they are lawfully entitled to is not a violation (¶ 33.c(3)).
Harboring. An enemy is harbored or protected when, without authority, the enemy is shielded, physically or by any artifice, aid, or representation, from injury or misfortune that may occur in war (¶ 33.c(4)).
Intelligence must be true. “Intelligence imports that the information conveyed is true or implies the truth, at least in part” (¶ 33.c(5)(b)). Deliberately false information is not giving intelligence, though the contact can still be communicating with the enemy.
Communicating. “No unauthorized communication, correspondence, or intercourse with the enemy is permissible. The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused” (¶ 33.c(6)(a)). A prisoner of war can commit this offense.
Knowledge. For harboring, giving intelligence, and communicating, actual knowledge is required and may be proved by circumstantial evidence.

“Enemy” includes organized forces of the enemy in time of war and any hostile body U.S. forces may be opposing, such as a rebellious mob or band of renegades, and includes civilians as well as military members (¶ 27.c(1)(b)).

No fixed maximum short of death

Under ¶ 33.d, the punishment for every form is “death or such other punishment as a court-martial or military commission may direct.” There is no lower fixed maximum.

Spying, espionage, and aid compared

Spying in time of war is Article 103. Delivering national defense information to any foreign government, enemy or not, is espionage under Article 103a. Cowardly or other misconduct in the presence of the enemy is misbehavior before the enemy under Article 99.

Sources

10 U.S.C. § 903b, Article 103b, Aiding the enemy (Cornell LII)
Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 27.c(1)(b) and ¶ 33; Appendix 17, analysis of ¶ 33

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