Espionage Article 103a UCMJ – Court Martial Lawyers

Nature of the Offense of Espionage

Article 103a establishes a peace time espionage offense which is different from spying, another wartime offense, under Article 106, UCMJ.

Three Theories for Espionage Cases

  1. Violation of general regulations;
  2. Assimilation of federal statutes under Article 134, clause 3;
  3. Violation of Article 106 or 106a. See United States v. Baba , 21 M.J. 76 (C.M.A.1985).

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Elements of Art 106a

  1. The accused communicated, delivered, or transmitted information relating to the national defense;
  2. Information was communicated and delivered to a foreign government;
  3. That the accused did so with the intent or reason to believe that such matter would be used to the injury of the United States or to the advantage of a foreign nation. MCM, pt. IV, 30b(1).

Attempted Espionage

Unlike most UCMJ offenses, Article 106a covers both espionage and any attempted espionage.

  1. Accused’s actions in enlisting aid of fellow sailor en route to delivering material to foreign embassy, removing classified documents from ship’s storage facility and converting them to his own personal possession, and traveling halfway to embassy to deliver went beyond “mere preparation” and guilty plea to charge of attempted espionage was provident. United States v. Schoof , 37 M.J. 96 (C.M.A. 1993).
  2. Where accused took several classified radio messages to Tokyo in order to deliver them to a Soviet agent named “Alex,” his conduct was more than mere preparation and constituted attempted espionage in violation of article 106a, UCMJ. United States v. Wilmouth , 34 M.J. 739 (N.M.C.M.R. 1991).

Espionage as a Capital Offense

  1. Accused must commit offense of espionage or attempted espionage; and
  2. The offense must concern:
    1. Nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense retaliation against large scale attack;
    2. War plans;
    3. Communications intelligence or cryptographic information; or
    4. Major weapons system or major elements of defense strategy. MCM, pt. IV, 30b(3).

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Applications

  1. United States v. Richardson , 33 M.J. 127 (C.M.A. 1991) (case reversed because MJerred in instructing panel that intent requirement for offense of attempted espionage would be satisfied if accused acted in bad faith “or otherwise without authority” in disseminating information).
  2. United States v. Peri , 33 M.J. 927 (A.C.M.R. 1993) (accused’s conscious, voluntary act of conveying defense information across the East German border and then intentionally delivering himself and the information into custody and control of East German authorities constituted “delivery,” as required to prove espionage).
  3. United States v. Wilmoth , 34 M.J. 739 (N.M.C.M.R. 1991) (Art. 106a includes both espionage and attempted espionage and an essential element of attempted espionage is an act that amounts to more than mere preparation).
  4. United States v. Schoof , 37 M.J. 96 (C.M.A. 1993) (accused’s actions in enlisting aid of fellow sailor en route to delivering material to foreign embassy, removing classified documents from ship’s storage facility and converting them to his own personal possession, and traveling halfway to embassy to deliver went beyond “mere preparation” and guilty plea to charge of attempted espionage was provident).
  5. United States v. Sombolay , 37 M.J. 647 (A.C.M.R. 1993) (to be convicted of espionage, information or documents passed by accused need not be of the type requiring a security classification, but gravamen of offense is the mens rea with which accused has acted, not impact or effect of act itself, i.e. , did accused intend to harm the United States or have reason to believe that his conduct would harm the United States).

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