§ Article 103b : Aiding the Enemy

Article 103b of the UCMJ (10 U.S.C. § 903b) punishes any person who aids or attempts to aid the enemy with arms, ammunition, supplies, money, or other things, or who, without proper authority, knowingly harbors or protects, gives intelligence to, provides military education, military training, or tactical advice to, or communicates, corresponds, or holds intercourse with the enemy.

Who It Applies To

Any person, whether or not otherwise subject to the UCMJ. The Manual states that offenders may be tried by 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

Aiding the enemy

1. The accused aided the enemy.
2. The accused did so with certain arms, ammunition, supplies, money, or other things.

Attempting to aid the enemy

1. The accused did a certain overt act.
2. The act was done with intent to aid the enemy with certain arms, ammunition, supplies, money, or other things.
3. The act amounted to more than mere preparation.
4. The act apparently tended to bring about that offense.

Harboring or protecting the enemy

1. The accused, without proper authority, harbored or protected a person.
2. That person was the enemy.
3. The accused knew the person was an enemy.

Giving intelligence to the enemy

1. The accused, without proper authority, knowingly gave intelligence information to the enemy.
2. The information was true, or implied the truth, at least in part.

Communicating with the enemy

1. The accused, without proper authority, communicated, corresponded, or held intercourse with the enemy.
2. The accused knew that they were communicating, corresponding, or holding intercourse with the enemy.

Providing military education, training, or tactical advice. Since December 23, 2024, the statute also expressly covers knowingly providing military education, military training, or tactical advice to the enemy without proper authority (Pub. L. 118-159, § 564). The elements above are those in the 2024 edition of the Manual, which predates that amendment.

Key rules

• Furnishing prisoners of war the subsistence, quarters, and other comforts or aid to which they are lawfully entitled does not violate this article.
• Harboring or giving intelligence requires actual knowledge, which may be proved by circumstantial evidence.
• For communicating with the enemy, the intent, content, and method of the communication are immaterial, no response from the enemy is required, and the offense is complete when the communication leaves the accused. A prisoner of war may commit this offense.
• Citizens of neutral powers in invaded or occupied territory have no immunity from the laws of war on communicating with the enemy.

Maximum Punishment

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

Sentencing parameters. Article 103b is a sentencing-criteria offense (no numbered category). 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 requires national defense information delivered to a foreign government or its agents; Article 103b does not, and its communication provision reaches any unauthorized contact with the enemy. Article 103 addresses clandestine intelligence-gathering in time of war, and Article 98 addresses misconduct by a prisoner held by the enemy.

What the Provision Does

Article 103b reaches any person, not only persons otherwise subject to the UCMJ, and it does not require national defense information. Its communication provision covers any unauthorized communication, correspondence, or intercourse with the enemy, and the article authorizes death or such other punishment as a court-martial or military commission may direct.

History

Aiding the enemy appeared as Article 104 of the original 1950 UCMJ, codified at 10 U.S.C. § 904 in 1956. 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) renumbered it as Article 103b, effective January 1, 2019. In 2024, Pub. L. 118-159 added providing military education, military training, or tactical advice to the enemy.

Sources

• 10 U.S.C. § 903b (Article 103b, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 33
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12D
• Pub. L. 118-159, div. A, title V, § 564 (Dec. 23, 2024)
• United States v. Anderson, 68 M.J. 378 (C.A.A.F. 2010) (charges under this article, then numbered Article 104, and under Articles 80 and 134, all based on a single transmission of information, were held not multiplicious, not an unreasonable multiplication of charges, and not preempted)