§ Article 103 : Spies

Article 103 of the UCMJ (10 U.S.C. § 903) punishes any person who, in time of war, is found lurking as a spy or acting as a spy in or about a place, vessel, or aircraft under the control or jurisdiction of the armed forces, a shipyard, manufacturing or industrial plant, or other place engaged in work in aid of the war, or elsewhere.

Who It Applies To

Any person, whether or not otherwise subject to the UCMJ, who commits the offense. Under the statute, the offense is tried by general court-martial or by military commission; the article does not apply to a military commission established under chapter 47A of title 10.

What It Covers

1. The accused was found in, about, or in and about a certain place, vessel, or aircraft within the control or jurisdiction of U.S. armed forces, or a shipyard, manufacturing or industrial plant, or other place or institution engaged in work in aid of the prosecution of the war, or elsewhere.
2. The accused was lurking, or acting clandestinely or under false pretenses.
3. The accused was collecting or attempting to collect certain information.
4. The accused did so with intent to convey the information to the enemy.
5. This was done in time of war.

Key rules

• The offense is complete with lurking, or acting clandestinely or under false pretenses, with the required intent. The information need not actually be obtained or communicated.
• Intent to convey information to the enemy must be proved. It may be inferred from a deceptive insinuation among U.S. forces, and evidence of a comparatively innocent purpose may be offered to rebut that inference.
• Under the Manual, military personnel not wearing a disguise, dispatch drivers, and people in ships or aircraft who carry out their missions openly are not spies, even if they used concealment.
• A spy who rejoins their own forces and is later captured incurs no responsibility for earlier spying.
• A person in occupied territory who, without lurking or acting under false pretenses, merely reports to the enemy what is seen or heard is not a spy under this article, although the conduct may be charged as giving intelligence to or communicating with the enemy under Article 103b.

Maximum Punishment

Maximum authorized punishment. Death or such other punishment as a court-martial or military commission may direct.

Sentencing parameters. Category 5 (240–480 months). Sentencing parameters and criteria do not apply to the decision whether to impose death.

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Article 103a addresses espionage — communicating national defense information to a foreign government or its agents — and applies in peacetime as well as in war. Article 103b addresses aiding, harboring, giving intelligence to, or communicating with the enemy.

What the Provision Does

Article 103 applies to any person, not only to persons otherwise subject to the UCMJ, and only in time of war. It provides for trial by general court-martial or military commission and authorizes death or such other punishment as the court-martial or commission may direct.

History

Spying appeared as Article 106 of the original 1950 UCMJ, codified at 10 U.S.C. § 906 in 1956, and originally carried a mandatory death sentence. In 2006, the Military Commissions Act (Pub. L. 109-366) added the exception for military commissions established under chapter 47A. The Military Justice Act of 2016 (Pub. L. 114-328, §§ 5401, 5414) renumbered the article as Article 103 and added “or such other punishment as a court-martial or a military commission may direct,” effective January 1, 2019.

Sources

• 10 U.S.C. § 903 (Article 103, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 31
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C