ARTICLE 106 SPIES
Article 106 covers the act of spying during wartime. It is important to note that espionage and attempted espionage are also serious offenses under UCMJ and these are covered under Article 106a. While complete details of these articles are contained in the Manual for Court Martial, the critical components of these Articles are listed below:
a) Article 106 Spies:
Elements:
- That at a specific time and place, the accused was present in and/ or about:
- a specific post/ base/ fortification/ vessel or aircraft which was under control of the United States armed forces
- any manufacturing unit/ plant/ shipyard where work related to the warfare was being carried out
- any other location
- That the accused's behavior indicated that he was spying.
- That he was gathering/ trying to gather critical information pertaining to:
- resources/ numbers/ operations / or other information about the U.S. armed forces
- military production/ other information about the nation
- any other sensitive information
- That he did so with the objective of passing on to the enemy this sensitive information.
- That this act was done during wartime.
Note: a) The accused shall be found guilty even if he failed to obtain the information he sought or failed to communicate it to the enemy.
Maximum Punishment: The accused faces death as the mandatory maximum punishment. Unanimous verdict is required for conviction of the accused.
Article 106 deals with spying carried out during wartime. UCMJ also takes a serious view of espionage activities carried out during peace time. These are covered by Article 106a.
b) Article 106a Espionage
Elements:
- That at a specific time and place, the accused communicated in a specific manner some information (whether document, code book, signal, sketch, blue print, photograph) pertaining to national defense.
- That this information was communicated to a foreign government or its representative.
- That the accused intended for this information to be used to the detriment of the U.S. and/ or to the benefit of a foreign country.
Maximum Punishment: Death or any other lawful punishment as decided through a court martial.
c) Article 106a Espionage Attempt
Elements:
- That the accused tried to communicate some information (either in form of document code book, signal) relating to national defense.
- That the intended recipient was a foreign government or its representative and the communication was to be delivered in a specific manner.
- That the accused intended for the information to be used to the detriment of the U.S. or to the benefit of a foreign country.
Maximum Punishment: Dishonorable discharge, forfeiture of all pay and allowances, life sentence without parole eligibility.
An important point to note with Article 106/ 106a offenses is that the actual sensitivity of the information that is intended to be delivered is not relevant. If the accused intended for the information to be used by the enemy to harm the United States in any way or to gain advantage against the United States, then he is guilty of violating this article.
ESPIONAGE AS A CAPITAL OFFENSE
When the offense of espionage concerns military spacecrafts, nuclear weapons, satellites, early warning systems or other defensive systems against attacks on a large scale, the accused is guilty of committing a capital offense. Communicating war plans, cryptographic information or intelligence is also deemed a capital offense.
This charge also applies on the accused if he has collected information on major weapons systems or critical elements of defense strategies with a view to passing on the data to enemy factions. For more information on this article, please refer to the Manual for Courts Martial.
EXAMPLE OF ARTICLE 106A VIOLATION
In United States v. Wilmouth, 34 M.J. 739 (N.M.C.M.R. 1991), the accused carried classified radio messages intending to deliver them to a Soviet agent. It was deemed that taking the message to Tokyo showed a clear attempt to fulfill the act and the accused was deemed guilty of violating Article 106a.