§903a — Title 10 Armed Forces | U.S. Code

Summary

It makes it a crime for anyone under military law to give, send, or try to give or send information about national defense to a foreign government, a foreign group or force, or their agents if the person intends or has reason to think the information will hurt the United States or help a foreign country. The rule covers many kinds of items and information, like documents, maps, plans, codes, photographs, models, or other defense-related information. A court-martial can punish people who do this. If the information directly involves things like nuclear weapons, military spacecraft or satellites, early warning systems, war plans, communications intelligence or cryptography, or other major weapons or defense strategy, the punishment may include death. The court can only impose death if all members unanimously find, beyond a reasonable doubt, at least one listed aggravating factor and also unanimously decide that those bad factors outweigh any excuses or mercy. Those factors are: (1) a prior conviction of espionage or treason punishable by death or life; (2) knowingly creating a grave risk of serious damage to national security; (3) knowingly creating a grave risk of someone’s death; or (4) any other factor the President sets by regulation under section 836. The members may base their decision on evidence from the guilt phase, the sentencing phase, or both, and the accused may present broad arguments for mercy.

Title 10, §903a

Armed Forces — Source: USLM XML via OLRC

(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).

Notes & Related Subsidiaries

Editorial Notes

Amendments

2016—Pub. L. 114–328 renumbered section 906a of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date

of 2016 AmendmentAmendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing

Regulations

and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§903a Art. 103a. Espionage