UCMJ Article 104 Aiding the Enemy vs Article 106 Spies: Betrayal From Within vs Infiltration From Without
On this page: 7 sections
Aiding the enemy has been Article 103b, and spying Article 103, since January 1, 2019. Article 104 now covers public records offenses, and Article 106 covers impersonating an officer or official. Both articles reach “any person,” so what separates them is the conduct: a spy clandestinely gathers information for the enemy in time of war, while aiding the enemy covers giving the enemy material help, shelter, intelligence, training, or any unauthorized communication.
The statutory text
Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death or such other punishment as a court-martial or a military commission may direct.
Source: 10 U.S.C. § 903 (Article 103), renumbered from § 906 by Pub. L. 114-328, § 5401(7).
Article 103b applies to any person who:
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) 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;
Source: 10 U.S.C. § 903b (Article 103b), renumbered from § 904 by Pub. L. 114-328, § 5401(5); the words on military education, training, and tactical advice were added by Pub. L. 118-159, § 564 (December 23, 2024).
Who can commit each offense
A contrast between betrayal from within and infiltration from without does not match the statutes. For spying, the Manual for Courts-Martial says the words “any person” bring “all persons of whatever nationality or status who commit spying” within the jurisdiction of general courts-martial and military commissions (MCM, Part IV, ¶ 31.c(3)). For aiding the enemy, the article “denounces offenses by all persons whether or not otherwise subject to military law” (¶ 33.c(1)). A service member can commit either offense, and so can a civilian.
What makes someone a spy
The elements of spying are (¶ 31.b):
- the accused was found in or about a place, vessel, or aircraft under the control or jurisdiction of a U.S. armed force, or a shipyard, plant, or other place engaged in work aiding the war effort, or elsewhere;
- the accused was lurking, acting clandestinely, or under false pretenses;
- the accused was collecting or attempting to collect certain information;
- the accused intended to convey that information to the enemy; and
- this was done in time of war (the Manual refers to R.C.M. 103 for that term).
The offense is complete with the clandestine conduct and the intent; the information need not be obtained or passed on (¶ 31.c(4)). Deception is the defining feature. Soldiers not wearing a disguise, dispatch drivers, and crews who carry out missions openly are not spies even if they use concealment, “because … they have not acted under false pretenses” (¶ 31.c(6)(a)). A person in occupied territory who, without lurking or false pretenses, merely reports to the enemy what is seen or heard may not be charged as a spy (¶ 31.c(6)(c)). The intent to convey information to the enemy may be inferred from a deceptive insinuation among U.S. forces, and evidence of an innocent purpose, such as visiting family, is admissible to rebut that inference (¶ 31.c(5)).
What aiding the enemy covers
Article 103b has several distinct offenses (¶ 33.b-c):
- Aiding or attempting to aid the enemy with arms, ammunition, supplies, money, or other things. Furnishing prisoners of war the subsistence, quarters, and other comforts to which they are lawfully entitled is not a violation.
- Harboring or protecting a person the accused actually knew was an enemy.
- Giving intelligence to the enemy, which the Manual treats as a more serious form of communicating with the enemy; the information must be true or imply the truth, at least in part.
- Providing military education, military training, or tactical advice to the enemy, added in December 2024.
- Communicating with the enemy without proper authority. “The intent, content, and method of the communication … are immaterial,” no response is required, and the offense “is complete the moment the communication … issues from the accused” (¶ 33.c(6)(a)).
The Manual’s definition of “enemy” is broad: it includes organized enemy forces in time of war and “any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades,” and it includes civilians (¶ 27.c(1)(b)).
How the facts sort
| Spying (Article 103) | Aiding the enemy (Article 103b) | |
|---|---|---|
| Core conduct | Collecting information clandestinely or under false pretenses | Helping, sheltering, informing, training, or communicating with the enemy |
| Deception required | Yes | No |
| Time of war | An element | Not a statutory element; the offense turns on the existence of an "enemy" |
| Information must reach the enemy | No | For giving intelligence, the accused must have given it; for communicating, the message need only issue from the accused |
| Maximum punishment | Death or such other punishment as a court-martial or military commission may direct | The same |
For example, a person who enters a U.S. base in wartime wearing a stolen uniform to photograph aircraft for an enemy force fits the spying elements whether or not a single photo is sent. A service member who, without any disguise, emails an enemy group the unit’s patrol schedule uses no false pretenses, so the spying elements are not met, but the email fits giving intelligence to the enemy under Article 103b(2) if the schedule is true and the accused acted knowingly and without proper authority. Which facts establish a “time of war” or an “enemy” in a particular conflict is decided case by case.
Punishment and forum
Both are capital offenses. Article 103 requires trial “by a general court-martial or by a military commission,” and on conviction the punishment is “death or such other punishment as a court-martial or a military commission may direct.” Article 103b carries the same range (MCM, Part IV, ¶ 31.d and ¶ 33.d). Neither article applies to a military commission established under chapter 47A of title 10.
In a capital case, if the accused is convicted of an offense for which death may be adjudged, the members determine whether the sentence is death or life without eligibility for parole, or whether the matter returns to the military judge for a lesser punishment (10 U.S.C. § 853(c)(1)). When the case is not capital, the military judge determines the sentence in a general or special court-martial where every finding of guilty is for an offense committed after December 27, 2023 (§ 853(b)(1)).
Sources
- 10 U.S.C. § 903, spies (Article 103)
- 10 U.S.C. § 903b, aiding the enemy (Article 103b)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 27, ¶ 31, and ¶ 33.
- Pub. L. 118-159, § 564 (December 23, 2024).
General information about Articles 103 and 103b; no real person’s conduct or any conflict is assessed. This page reflects the UCMJ as amended through Public Law 119-60 (December 18, 2025) and the Manual for Courts-Martial (2024 edition) as amended by Executive Order 14130.