Part IV · Punitive Articles

Article 103a. Espionage · MCM ¶ 32

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes
(a) Text of statute. (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, except that if the accused is found guilty of an offense that directly concerns (A) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack, (B) war plans, (C) communications intelligence or cryptographic information, or (D) any other major weapons system or major element of defense strategy, the accused shall be punished by death or such other punishment as a court-martial may direct. (2) An entity referred to in paragraph (1) is—
(A) a foreign government;
(B) a faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States; or
(C) a representative, officer, agent, employee, subject, or citizen of such a government, faction, party, or force. (3) A thing referred to in paragraph (1) is a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense. (b)(1) No person may be sentenced by court-martial to suffer death for an offense under this section (article) unless—
(A) the members of the court-martial unanimously find at least one of the aggravating factors set out in subsection (c); and
(B) the members unanimously determine that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including the aggravating factors set out in subsection (c). (2) Findings under this subsection may be based on—
(A) evidence introduced on the issue of guilt or innocence;
(B) evidence introduced during the sentencing proceeding; or
(C) all such evidence. (3) The accused shall be given broad latitude to present matters in extenuation and mitigation. (c) A sentence of death may be adjudged by a court-martial for an offense under this section (article) only if the members unanimously find, beyond a reasonable doubt, one or more of the following aggravating factors:
(1) The accused has been convicted of another offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute.
(2) In the commission of the offense, the accused knowingly created a grave risk of substantial damage to the national security.
(3) In the commission of the offense, the accused knowingly created a grave risk of death to another person.
(4) Any other factor that may be prescribed by the President by regulations under section 836 of this title (article 36).
(b) Elements.
(1) Espionage.
(a) That the accused communicated, delivered, or transmitted 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;
(b) That this matter was communicated, delivered, or transmitted to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject or citizen thereof, either directly or indirectly; and
(c) That the accused did so with 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.
(2) Attempted espionage.
(a) That the accused did a certain overt act;
(b) That the act was done with the intent to commit the offense of espionage;
(c) That the act amounted to more than mere preparation; and
(d) That the act apparently tended to bring about the offense of espionage.
(3) Espionage as a capital offense.
(a) That the accused committed espionage or attempted espionage; and
(b) That the offense directly concerned (1) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack, (2) war plans, (3) communications intelligence or cryptographic information, or (4) any other major weapons system or major element of defense strategy.
(c) Explanation.
(1) Intent. “Intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of a foreign nation” means that the accused acted in bad faith and without lawful authority with respect to information that is not lawfully accessible to the public.
(2) National defense information. “Instrument, appliance, or information relating to the national defense” includes the full range of modern technology and matter that may be developed in the future, including chemical or biological agents, computer technology, and other matter related to the national defense.
(3) Espionage as a capital offense. Capital punishment is authorized if the government alleges and proves that the offense directly concerned (1) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack, (2) war plans, (3) communications intelligence or cryptographic information, or (4) any other major weapons system or major element of defense strategy. See R.C.M. 1004 concerning presentencing proceedings in capital cases.
(d) Maximum punishment.
(1) Espionage as a capital offense. Death or such other punishment as a court-martial may direct.
(2) Espionage or attempted espionage. Any punishment, other than death, that a court-martial may direct.
(e) Sample specification. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, with intent or reason to believe it would be used to the injury of the United States or to the advantage of __________, a foreign nation, (attempt to) (communicate) (deliver) (transmit) __________ (description of item), (a document) (a writing) (a code book) (a sketch) (a photograph) (a photographic negative) (a blueprint) (a plan) (a map) (a model) (a note) (an instrument) (an appliance) (information) relating to the national defense, [(which directly concerned (nuclear weaponry) (military spacecraft) (military satellites) (early warning systems) (__________, a means of defense or retaliation against a large scale attack) (war plans) (communications intelligence) (cryptographic information) (_____, a major weapons system) (_____, a major element of defense strategy)] to __________ ((a representative of) (an officer of) (an agent of) (an employee of) (a subject of) (a citizen of)) ((a foreign government) (a faction within a foreign country) (a party within a foreign country) (a military force within a foreign country) (a naval force within a foreign country)) (indirectly by __________).
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or other lawful punishment. (Category 5)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, with intent or reason to believe it would be used to the injury of the United States or to the advantage of __________, a foreign nation, (communicate) (deliver) (transmit) __________ (description of item), (a document) (a writing) (a Code book) (a sketch) (a photograph) (a photographic negative) (a blueprint) (a plan) (a map) (a model) (a note) (an instrument) (an appliance) (information) relating to the national defense, [(which directly concerned (nuclear weaponry) (military spacecraft) (military satellites) (early warning systems) (__________, a means of defense or retaliation against a large scale attack) (war plans) (communications intelligence) (cryptographic information) (__________, a major weapons system) (__________, a major element of defense strategy)] to __________, ((a representative of) (an officer of) (an agent of) (an employee of) (a subject of) (a citizen of)) ((a foreign government) (a faction within a foreign country) (a party within a foreign country) (a military force within a foreign country) (a naval force within a foreign country)) (indirectly by __________).

Elements

(1) That (state the time and place alleged), the accused communicated, delivered, or transmitted 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;

(2) That this matter was communicated, delivered, or transmitted to (state the party allegedly communicated with), any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly; and

(3) That the accused did so with 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.

Definitions & other instructions
NOTE 2. If attempted espionage raised. Use Instruction 3a-27a-2 for attempted espionage; do not use the Article 80 attempts instruction.

“Intent or reason to believe” that the information “is to be used to the injury of the United States or to the advantage of a foreign nation” means that the accused acted in bad faith and without lawful authority with respect to information that is not lawfully accessible to the public.

“Instrument, appliance, or information relating to the national defense” includes the full range of modern technology and matter that may be developed in the future, including chemical or biological agents, computer technology, and other matter related to the national defense.

“Foreign country” includes those countries that have and have not been recognized by the United States.

NOTE 3. Capital Instructions and Procedures in Espionage Cases. See RCM 1004, Article 103a, UCMJ, paragraphs (b) and (c), and paragraph 32, MCM. See also Chapter 8.
References

US v. Richardson, 33 MJ 127 (CMA 1991) Earlier versions of this instruction pertaining to the intent element contained the words “bad faith OR without authority.” Instructing as to “without authority” in the alternative to “bad faith” was expressly rejected in US v. Richardson.

Source: Instruction 3a-32-1 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

DD, TF, life without eligibility for parole, E-1. (Category 5)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about _________, with intent or reason to believe it would be used to the injury of the United States or to the advantage of __________, a foreign nation, attempt to (communicate) (deliver) (transmit) (__________) (description of item) (a document) (a writing) (a Code book) (a sketch) (a photograph) (a photographic negative) (a blueprint) (a plan) (a map) (a model) (a note) (an instrument) (an appliance) (information) relating to the national defense, [(which directly concerned (nuclear weaponry) (military spacecraft) (military satellites) (early warnings systems) (__________, a means of defense or retaliation against a large scale attack) (war plans) (communications intelligence) (cryptographic information) (__________, a major weapons system) (__________, a major element of defense strategy)] to __________ ((a representative of) (an officer of) (an agent of) (an employee of) (a subject of) (a citizen of)) ((a foreign government) (a faction within a foreign country) (a party within a foreign country) (a military force within a foreign country) (a naval force within a foreign country)) (indirectly by _________).

Elements

(1) That (state the time and place alleged), the accused committed a certain overt act, to wit: ___________;

(2) That the act was done with intent to commit espionage against the United States;

(3) That the act amounted to more than mere preparation; and

(4) That the act apparently tended to bring about the offense of espionage.

Definitions & other instructions

To constitute an attempt, there must be an act which amounts to more than mere preparation; that is, an act which is a substantial step and a direct movement toward the commission of the prohibited (communication) (delivery) (transmittal). Moreover, the act must apparently tend to bring about the prohibited (communication) (delivery) (transmittal) and be done with the specific intent to bring about the (communication) (delivery) (transmission) of the matter to the (person(s)) (or) (entity) (entities) with the intent, or reason to believe, that the matter would be used to the injury of the United States or to the advantage of a foreign nation. For an act to apparently tend to bring about the commission of an offense means that the actual offense of espionage would have occurred except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) (__________) which prevented completion of the offense.

“Intent or reason to believe” that the information is “to be used to the injury of the United States or to the advantage of a foreign nation” means that the accused acted in bad faith and without lawful authority with respect to information that is not lawfully accessible to the public.

“Instrument, appliance, or information relating to the national defense” includes the full range of modern technology and matter that may be developed in the future, including chemical or biological agents, computer technology, and other matter related to the national defense.

“Foreign country” includes those countries that have and have not been recognized by the United States.

NOTE 2. Other instructions. Instruction 7-3, Circumstantial Evidence, is normally applicable.
References

US v. Richardson, 33 MJ 127 (CMA 1991) Earlier versions of this instruction pertaining to the intent element contained the words “bad faith OR without authority.” Instructing as to “without authority” in the alternative to “bad faith” was expressly rejected in US v. Richardson.

Source: Instruction 3a-32-2 · view original on jagcnet.army.mil