Article 106a UCMJ – Espionage – Military Defense Lawyers

UCMJ Military Defense Guide by Gonzalez & Waddington

Article 106a of the Uniform Code of Military Justice criminalizes espionage—the intentional gathering, transmitting, losing, delivering, or communicating of classified national defense information to a foreign power, foreign agent, or any unauthorized person with intent or reason to believe the information will harm the United States or benefit a foreign nation.

Espionage is one of the most severe offenses under military law and federal law. It carries punishments including life imprisonment, total forfeitures, dishonorable discharge, and in extreme cases, the death penalty. Even attempted espionage or negligent handling of classified materials that appears suspicious can trigger an Article 106a investigation.

Modern espionage cases often involve digital systems, cloud storage, unauthorized downloads, secure communication breaches, foreign contacts, improper device usage, encrypted messaging, and cyber vulnerabilities—not the Cold War-style spy scenarios many envision. As military systems modernize, so do the ways that investigators misinterpret digital behavior as espionage.

Florida is one of the most sensitive espionage environments in the United States. Bases like MacDill AFB (CENTCOM/SOCOM), Eglin, Hurlburt Field, Pensacola, Patrick Space Force Base, NAS Jacksonville, Mayport, NSA Panama City, and NAS Key West host some of the nation’s most critical cyber, intelligence, aviation, and special operations missions. Counterintelligence (CI) units in Florida aggressively investigate even minor anomalies.

Gonzalez & Waddington is internationally recognized for defending intelligence and national security cases involving espionage, classified systems, and counterintelligence investigations. Our firm works alongside top forensic experts, intelligence analysts, and clearance-law specialists to dismantle inflated or baseless espionage allegations.

➤ Request Confidential Defense for Espionage Allegations

What Article 106a Criminalizes

Under Article 106a, a service member commits espionage if they:

• Communicate, deliver, or transmit national defense information
• Attempt to do so
• Gather or collect information with intent to pass it to unauthorized persons
• Lose or fail to protect classified information in suspicious circumstances
• Deliver classified material to a foreign government or agent
• Aid or assist another person engaged in espionage

To qualify as espionage, the accused must act with:

• Intent to harm the United States, or
• Intent to benefit a foreign nation, or
• Reason to believe their actions could have such consequences.

Therefore, espionage requires a much higher level of intent than simple mishandling of classified materials.

Espionage vs. Spying vs. Mishandling

Article 106 (Spying) applies mostly to wartime, enemy-aid activities conducted clandestinely.

Article 106a (Espionage) applies in peace or war and includes passing or attempting to pass classified information to any foreign entity.

Mishandling or negligent storage of classified material is usually charged under Article 92 or 134—not espionage.

Many service members under investigation for “espionage” are actually accused of nothing more than:

• Using a personal phone in a secure facility
• Bringing work documents home accidentally
• Accessing systems above their clearance out of curiosity
• Misplacing classified notes
• Improperly marking emails
• Storing documents incorrectly
• Foreign travel without proper reporting

These are NOT espionage.

Elements the Government Must Prove

The prosecution must establish the following beyond a reasonable doubt:

1. The Information Was National Defense Information (NDI)

The material must relate to national security, military operations, intelligence, capabilities, or vulnerabilities.

2. The Accused Communicated or Attempted to Communicate the Information

Even unsuccessful attempts can lead to a charge.

3. The Accused Acted With Intent or Reason to Believe Harm Would Result

This is the most difficult element for prosecutors to prove.

4. The Accused Acted Knowingly and Wrongfully

Accidental mishandling or negligence is not espionage.

Examples of Modern Espionage Allegations

• Sending encrypted messages to foreign nationals
• Using foreign-based apps (e.g., Telegram, WeChat) for sensitive discussions
• Taking photos inside secure facilities
• Downloading classified files to unapproved devices
• Communicating with suspected foreign intelligence officers online
• Using VPNs or proxies to hide information access
• Sharing sensitive tactical data with foreign militaries
• Attempting to access classified systems without authorization
• Leaking classified material to journalists or activists

In many cases, none of these actions are proven—or intent is absent.

Why Espionage Allegations Are Common in Florida

Florida is one of the hottest intelligence environments in the world due to:

• CENTCOM & SOCOM HQ at MacDill AFB
• Major cyber and intelligence units at Eglin, Hurlburt, and multiple Navy bases
• Foreign military training programs in Pensacola and Jacksonville
• High number of foreign nationals living near bases
• Tourist and port cities (Miami, Tampa, Jacksonville) prone to foreign intelligence activity
• International students in DoD schools and flight programs

This increases the likelihood of misunderstandings, false reporting, and aggressive CI surveillance.

Real-World Florida Article 106a Scenarios

1. International Students at NAS Pensacola or NAS Jax

Routine interactions misinterpreted as “information sharing.”

2. Special Operations Personnel at Hurlburt/AFSOC

Unusual access patterns flagged during audits.

3. MacDill Officers Accused of Mishandling Sensitive CENTCOM Data

Often administrative, not espionage.

4. Coast Guard Personnel in Counter-Narcotics Ops

Miscommunication with foreign maritime officials.

5. Junior Sailors Using Foreign Apps

Routine chats misinterpreted by NCIS.

6. Social Media Posts in Foreign Languages

Misunderstood by investigators unfamiliar with cultural context.

7. Technical Errors in Secure Systems

Mistakenly opening or downloading classified files.

8. Lost or misplaced classified notes

Carelessness—not espionage.

How Espionage Investigations Work

These cases involve the full weight of the national security apparatus, including:

• NCIS / CID / OSI / CGIS
• FBI Counterintelligence Division
• NSA
• CIA (in certain cases)
• Special Access Program (SAP) investigators
• Secure Compartmented Information Facility (SCIF) interviews
• Cyber forensics teams
• Polygraphs
• Financial and travel audits

Common Government Errors We Expose

• Misclassification of documents
• Assuming foreign travel = espionage
• Over-reliance on metadata without context
• Misinterpreting cultural communications
• Improper CI interview techniques
• False positives in security audits
• Overlooking mental health factors

Many Article 106a cases begin with suspicion—not evidence.

Defense Strategies for Article 106a Espionage Cases

1. Attack the Intent Requirement

We show the accused had no intent to harm the U.S. or help a foreign nation.

2. Digital Forensic Reconstruction

We analyze device logs, access timestamps, and full metadata records.

3. Demonstrate Normal Operational Behavior

CI often misinterprets routine access patterns.

4. Florida-Specific Defense Factors

• Foreign language and cultural misunderstandings
• Erroneous labeling of foreign nationals as “intelligence agents”
• Tourist-heavy regions causing false suspicion

5. Motive and Benefit Analysis

No motive, no contacts, no payments = weak case.

6. Expert Witnesses

Cyber experts, intelligence analysts, linguists, and clearance specialists support defense.

7. Challenge SCIF Procedures and Chain of Custody

Improper handling of digital evidence is common in espionage investigations.

8. Constitutional & Due Process Defense

Improper CI interrogation tactics, unlawful searches, or classification errors can defeat charges.

Pro Tips for Anyone Under Espionage Investigation

• Do NOT talk to NCIS, CID, OSI, CGIS, or FBI without counsel—ever.
• Do NOT volunteer explanations—they can be twisted.
• Do NOT delete messages, files, apps, or contacts.
• Preserve all devices exactly as they are.
• Avoid foreign travel unless cleared by your lawyer.
• Document your actions and contacts in a privileged timeline.
• Cut off nonessential communication with foreign nationals until cleared.
• Hire an experienced national security defense lawyer immediately.

➤ Protect Your Freedom, Career & Clearance – Contact Gonzalez & Waddington

Article 106a – Frequently Asked Questions