UCMJ Article 98: Misconduct as a Prisoner

Misconduct as a prisoner is the military offense committed by a captured service member who betrays fellow captives, either by trading on the enemy for personal advantage at their expense or by abusing a position of authority over them. It is codified at Article 98 of the Uniform Code of Military Justice, 10 U.S.C. 898. The article applies in a narrow and extreme setting: a member who is in the hands of the enemy in time of war. Its purpose is to preserve loyalty, discipline, and basic decency among prisoners at the moment those values are under the greatest strain. The current numbering is a frequent point of confusion. Before the Military Justice Act of 2016 took effect on 1 January 2019, this conduct was addressed at Article 105, and Article 98 covered noncompliance with procedural rules. The 2019 reorganization moved misconduct as a prisoner to Article 98 and relocated the procedural-rules offense to Article 131f. References to “Article 105 misconduct as a prisoner” describe the pre-2019 framework and are no longer the correct citation.

The setting the article addresses

Article 98 governs conduct in captivity, not on the battlefield or in garrison. It assumes a service member who has fallen into enemy hands during wartime and who, in that condition, harms other prisoners. Captivity creates its own social order, with senior prisoners often taking charge of the group, and it creates its own temptations, because captors can offer food, shelter, medical care, or protection in exchange for cooperation. The article targets two ways that order can break down: a prisoner who buys favor from the captors at the expense of others, and a prisoner who, given authority over fellow captives, mistreats them. Both undermine the cohesion that helps a group of prisoners survive and resist, which is the interest the article protects.

The two forms of the offense

The statute describes two distinct ways to commit the offense, and a charge may rest on either.

The first is collaboration for personal gain to the detriment of others. A prisoner commits this form when, for the purpose of securing favorable treatment by the captors, the prisoner acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others. The conduct must be unauthorized, it must be aimed at obtaining better treatment from the enemy, and it must harm fellow prisoners. The harm contemplated is concrete: bringing about closer confinement, reduced rations, physical punishment, or other deprivation for other captives as a consequence of the accused’s bid for favor. A prisoner who informs on others to gain extra food, or who takes on a role for the captors that results in punishment of the group, illustrates the form. The defining features are the self-interested motive, the lack of proper authority, and the resulting detriment to others.

The second is maltreatment from a position of authority. A prisoner commits this form when, while in a position of authority over other prisoners, the prisoner maltreats them without justifiable cause. Authority in captivity can arise from holding a senior rank among the prisoners, from designation by the captors, or from selection by the prisoners themselves. The article does not punish the legitimate exercise of that authority, such as maintaining order or enforcing reasonable discipline within the group. It punishes maltreatment that lacks justifiable cause, where a prisoner uses a leadership role to abuse the very people he or she is positioned to lead.

What the government must prove

For the collaboration form, the prosecution must establish beyond a reasonable doubt that the accused was a prisoner in the hands of the enemy in time of war; that the accused, for the purpose of securing favorable treatment by the captors, acted without proper authority in a manner contrary to law, custom, or regulation; and that the conduct operated to the detriment of other prisoners. The motive element is central. The act must be done to secure favorable treatment, which distinguishes a calculated betrayal from conduct compelled or coerced.

For the maltreatment form, the prosecution must establish that the accused was a prisoner in the hands of the enemy in time of war; that the accused occupied a position of authority over other prisoners; and that the accused maltreated those prisoners without justifiable cause. Here the position of authority and the absence of justification carry the case. Treatment that would be justified to preserve order or protect the group is not maltreatment, while abuse that serves no legitimate purpose is.

The maximum punishment

Article 98 is one of a small group of grave wartime offenses for which the Manual for Courts-Martial does not set a fixed ceiling of confinement. The maximum punishment is any punishment, other than death, that a court-martial may direct. This open-ended authorization reflects the seriousness with which military law treats betrayal of fellow prisoners and abuse of authority over them. In practical terms it leaves the upper bound to the court-martial within the statutory limits that exclude death for this offense, rather than capping confinement at a set number of years as most punitive articles do.

Sentencing procedure is affected by the broader 2023 reforms. For offenses committed on or after 27 December 2023, a military judge imposes the sentence in non-capital general and special courts-martial under the segmented-sentencing scheme, working from the applicable sentencing criteria rather than a single fixed figure applied at the panel’s discretion. Because Article 98 carries an unusual open maximum rather than a numeric ceiling, the way the current sentencing framework treats it should be confirmed against the controlling Manual for Courts-Martial for the date of the offense.

Misconduct as a prisoner sits within a cluster of wartime-conduct articles that govern behavior in the face of, or in the custody of, the enemy. It is distinct from misbehavior before the enemy under Article 99, which concerns conduct such as running away, cowardice, or shameful surrender on the battlefield rather than conduct within captivity. It is distinct from aiding the enemy under Article 103b, which reaches giving the enemy arms, supplies, money, intelligence, or other aid, and which can apply to prisoners and non-prisoners alike. A prisoner’s conduct can implicate more than one of these articles depending on the facts. The feature that marks Article 98 is its focus on the internal relations among prisoners: the harm runs to fellow captives, whether through collaboration that brings detriment on them or through abuse of authority over them.

Defenses

The defenses to an Article 98 charge follow from its elements. For the collaboration form, the absence of the required purpose is a complete answer; conduct not undertaken to secure favorable treatment from the captors does not satisfy the article. Coercion and duress are particularly significant in the captivity setting, because captors routinely apply pressure, and an act compelled by a well-grounded fear of immediate death or serious bodily harm, with no reasonable opportunity to avoid it, may not be culpable. The requirement that the conduct be without proper authority and to the detriment of others supplies further limits, since authorized conduct, or conduct that does not in fact harm other prisoners, falls outside the form. For the maltreatment form, the existence of justifiable cause is the key defense, because the article reaches only maltreatment that lacks a legitimate basis; measures genuinely necessary to maintain order or protect the group are not maltreatment, and a lawful position of authority exercised within proper bounds is not abuse.

Sources

10 U.S.C. 898 (Article 98, Misconduct as prisoner), Legal Information Institute, Cornell Law School: https://www.law.cornell.edu/uscode/text/10/898
10 U.S.C. 898, Office of the Law Revision Counsel, United States Code: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section898
Manual for Courts-Martial, United States (2024 edition), Part IV (Punitive Articles), Joint Service Committee on Military Justice: https://jsc.defense.gov/Military-Law/Current-Publications-and-Updates/

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.