§ Article 103a : Espionage

Article 103a of the UCMJ (10 U.S.C. § 903a) punishes communicating, delivering, or transmitting national defense information — or attempting to — to a foreign government, a foreign faction, party, or military force, or their representatives, with intent or reason to believe it will be used to the injury of the United States or to the advantage of a foreign nation.

Who It Applies To

Any person subject to the UCMJ who commits the offense. Unlike Article 103 (spies), Article 103a does not require a time of war.

What It Covers

Espionage

1. The accused communicated, delivered, or transmitted 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.
2. The matter was communicated, delivered, or transmitted, directly or indirectly, to a foreign government; to a faction, party, or military or naval force within a foreign country, whether or not recognized by the United States; or to a representative, officer, agent, employee, subject, or citizen of any of them.
3. The accused did so with intent or reason to believe that the matter would be used to the injury of the United States or to the advantage of a foreign nation.

Attempted espionage

1. The accused did a certain overt act.
2. The act was done with intent to commit espionage.
3. The act amounted to more than mere preparation.
4. The act apparently tended to bring about the offense of espionage.

Espionage as a capital offense

1. The accused committed espionage or attempted espionage.
2. 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.

Key rules

• “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.
• National defense information includes the full range of modern technology, including chemical or biological agents, computer technology, and matter that may be developed in the future.
• Under the statute, death may be adjudged only if the members unanimously find, beyond a reasonable doubt, at least one listed aggravating factor — a prior conviction for an espionage or treason offense punishable by death or life imprisonment; 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 unanimously determine that any extenuating or mitigating circumstances are substantially outweighed by the aggravating circumstances.

Maximum Punishment

Maximum authorized punishment.

• Espionage as a capital offense: death or such other punishment as a court-martial may direct.
• Espionage or attempted espionage, other cases: any punishment other than death that a court-martial may direct.

Sentencing parameters. Both forms are 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 103 addresses spying in time of war — lurking or acting clandestinely to collect information for the enemy. Article 103b addresses aiding, harboring, giving intelligence to, or communicating with the enemy, and does not require national defense information. An agreement to commit espionage is addressed by the conspiracy provision of Article 81, and soliciting espionage by Article 82.

What the Provision Does

Article 103a applies in peacetime as well as in war, without the wartime and lurking requirements of Article 103. It authorizes death only when the offense concerns the subject matter specified in the statute, and otherwise any punishment other than death.

History

Espionage was added to the UCMJ in 1985 as Article 106a (Pub. L. 99-145, § 534), codified at 10 U.S.C. § 906a. The Military Justice Act of 2016 (Pub. L. 114-328) renumbered it as Article 103a, effective January 1, 2019.

Sources

• 10 U.S.C. § 903a (Article 103a, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 32
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Manual for Courts-Martial, United States (2024 ed.), R.C.M. 1004