UCMJ Article 106 Spies vs Article 103a Espionage: Enemy Agents vs Information Betrayal
On this page: 5 sections
A spy must act clandestinely or under false pretenses, in time of war, to gather information for the enemy; espionage needs no war, no disguise, and no enemy, only national defense information delivered or attempted to be delivered to a foreign entity with intent or reason to believe it will injure the United States or advantage a foreign nation. Spying has been Article 103, not Article 106, since January 1, 2019; Article 106 now covers impersonation.
Spying is always a capital offense. Espionage is capital only when it directly concerns certain categories of defense information, and only with unanimous findings by the members.
Article 103: spies
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).
The Manual for Courts-Martial requires lurking or acting clandestinely or under false pretenses, collecting or attempting to collect information, intent to convey it to the enemy, and time of war (MCM, Part IV, ¶ 31.b). The offense is complete once the accused lurks or acts clandestinely with that intent; the information need not be obtained or passed on. “Any person” reaches persons “of whatever nationality or status” (¶ 31.c(3)-(4)). A uniformed soldier who penetrates enemy lines openly is not a spy, because concealment is not the same as false pretenses (¶ 31.c(6)(a)).
Article 103a: espionage
(a)(1) Any person subject to this chapter who, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any entity described in paragraph (2), either directly or indirectly, anything described in paragraph (3) shall be punished as a court-martial may direct
Source: 10 U.S.C. § 903a(a)(1) (Article 103a).
The statute defines each term:
- Recipients are a foreign government; a faction, party, or military or naval force within a foreign country, recognized or not; or a representative, officer, agent, employee, subject, or citizen of any of them (§ 903a(a)(2)).
- What is protected is any “document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense” (§ 903a(a)(3)). The Manual reads this to include “the full range of modern technology,” including computer technology (¶ 32.c(2)).
- 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” (¶ 32.c(1)).
The statute punishes communicating, delivering, or transmitting, and attempts to do so. Gathering the information, without more, is not one of the listed acts.
When espionage is capital
Death is authorized only if the offense “directly concerns” nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy (§ 903a(a)(1)). Even then, no death sentence may be adjudged unless the members unanimously find at least one statutory aggravating factor beyond a reasonable doubt, and unanimously determine that extenuating and mitigating circumstances are substantially outweighed by aggravating circumstances (§ 903a(b)-(c)).
Where the line falls
| Spying (Article 103) | Espionage (Article 103a) | |
|---|---|---|
| Who can commit it | Any person, of any nationality or status | Any person subject to the UCMJ |
| Time of war | Required | Not required |
| Deception | Lurking, clandestine conduct, or false pretenses required | Not required |
| Recipient | The enemy | A foreign government, faction, force, or their agents or citizens |
| Core act | Collecting information with intent to convey it | Communicating, delivering, or transmitting, or attempting to |
| Forum | General court-martial or military commission | Court-martial |
| Death penalty | Always available | Only for listed categories, with unanimous findings |
For example, a service member with a security clearance who emails classified drawings of a missile early-warning system to an agent of a foreign government, in peacetime, fits the elements of espionage, and the subject matter falls within the capital category. In wartime, a person who poses as a contractor at a U.S. shipyard to record which ships are under repair and pass the list to the enemy fits the other article: the false pretense, the place, the purpose, and the time of war fit spying, whether or not the list is ever delivered. Whether information related to the national defense, and whether a particular period was a time of war, are decided on the evidence; the Manual points to R.C.M. 103 for the meaning of time of war (¶ 31.c(1)).
Maximum punishments
| Offense | Maximum (MCM, Part IV, ¶ 31.d and ¶ 32.d) |
|---|---|
| Spying | Death or such other punishment as a court-martial or military commission may direct |
| 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 |
In a capital case, the members decide whether a death-eligible conviction results in death or life without eligibility for parole, or return the matter to the military judge (10 U.S.C. § 853(c)(1)). In a case not tried as capital, where every finding of guilty is for an offense committed after December 27, 2023, the military judge determines the sentence in a general or special court-martial (§ 853(b)(1)).
Sources
- 10 U.S.C. § 903, spies (Article 103)
- 10 U.S.C. § 903a, espionage (Article 103a)
- 10 U.S.C. § 906, impersonation of officer, noncommissioned or petty officer, or agent or official (Article 106)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 31 and ¶ 32.
This outline of Articles 103 and 103a is legal information; it does not assess any clearance, disclosure, or person. 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.