This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
In June 1942, eight German saboteurs landed on U.S. shores by submarine, four on Long Island, four in Florida. They carried explosives, fake identification, and plans to attack American industrial infrastructure. President Roosevelt issued Proclamation 2561, directing that enemy agents entering the United States to commit hostile acts be tried by military tribunal under the law of war. Six were executed. Legal authority for those proceedings, the power to try persons found “lurking as a spy or acting as a spy”. is now codified in Article 103 of the UCMJ.
What makes Article 103 unusual isn’t just the severity of its punishment. It’s the scope of who it reaches.
“Any Person”. Not Just Service Members
Most UCMJ punitive articles begin with “any person subject to this chapter”. limiting their reach to service members and others under UCMJ jurisdiction. Article 103 begins with “any person.” Period. This language extends the article’s reach beyond the military to include enemy combatants, enemy agents, and potentially any individual found spying within areas under U.S. military control during wartime.
The jurisdictional breadth reflects the offense’s origin in the law of war rather than purely military discipline. Spying has been punishable by death under the customs of war for centuries, predating the UCMJ, predating the Articles of War, predating the United States itself. Article 103 codifies that customary law into statutory form. The article also permits trial by military commission, not just general court-martial, recognizing that enemy spies may not fall under standard court-martial jurisdiction but remain subject to the law of war.
One limitation: the 2006 Military Commissions Act added language specifying that Article 103 does not apply to military commissions established under Chapter 47A of Title 10. Those commissions, created for alien unlawful enemy combatants, operate under a separate statutory framework with their own set of offenses.
What Makes Someone a “Spy”
The statute requires three overlapping conditions, all during time of war.
First, the person must be found “lurking as a spy or acting as a spy.” The MCM clarifies what this means: acting clandestinely or under false pretenses. A uniformed enemy soldier who openly observes American positions is a lawful combatant conducting reconnaissance, not a spy. The same soldier in civilian clothing, with false identification, gathering the same information is a spy. The disguise or false pretense is what transforms observation into espionage under the law of war.
Second, the spying must occur “in or about” a qualifying location. The statute lists several: any place, vessel, or aircraft within the control or jurisdiction of the armed forces; any shipyard; any manufacturing or industrial plant; any other place or institution engaged in work aiding the prosecution of the war; or “elsewhere.” That final word. “elsewhere”. effectively eliminates geographic limitation. The statute covers spying anywhere, provided the other conditions are met.
Third, “time of war” must exist. Unlike Article 103a (Espionage), which applies at all times, Article 103 is explicitly a wartime provision. The same conduct during peacetime would be charged under Article 103a or federal civilian espionage statutes rather than Article 103.
Article 103 vs. Article 103a: The Critical Distinction
The overlap between these two articles creates confusion that matters for charging decisions and punishment.
Article 103 (10 U.S.C. § 903) (Spies) is the wartime provision. It reaches “any person”. not just those subject to the UCMJ. It covers lurking or acting as a spy during time of war. It permits trial by military commission as well as general court-martial. Its origin is the law of war.
Article 103a (Espionage) is the peacetime-and-wartime provision. It applies only to persons “subject to this chapter”. meaning those under UCMJ jurisdiction. It covers communicating, delivering, or transmitting national defense information with intent to injure the United States or advantage a foreign nation. Court-martial is the only available forum. Its origin is federal espionage law adapted for the military context.
The punishment distinction is significant. Under Article 103a, espionage is death-eligible only when it “directly concerns” specific categories: nuclear weaponry, military spacecraft or satellites, early warning systems, war plans, communications intelligence, cryptographic information, or other major weapons systems or defense strategy. The MCM 2024 (Part IV, Paragraph 54a) specifies these categories. Espionage involving less sensitive information carries a maximum of any punishment other than death. Article 103 has no such gradation, all spying during wartime carries the death penalty as a maximum, regardless of what information was sought.
A service member spying for a foreign power during peacetime faces Article 103a charges. The same service member spying during a declared war could face either Article 103 or 103a, depending on the specific circumstances and prosecutorial strategy. An enemy agent caught spying during wartime faces Article 103, the only article that can reach non-UCMJ personnel through the law of war.
Procedural Safeguards and the Death Penalty
Despite the wartime urgency that typically accompanies Article 103 cases, procedural requirements constrain the process. Trial must be by general court-martial or military commission, no summary or special court-martial. The evidentiary standard remains proof beyond a reasonable doubt. The accused retains the right to counsel.
MJA 2016 amended the punishment clause to read “punished by death or such other punishment as a court-martial or a military commission may direct.” Prior to this amendment, Article 103 provided only the death penalty as the authorized punishment, making it the only UCMJ article without a lesser alternative. The amendment reflects modern constitutional requirements: even for wartime spying, courts require sentencing discretion to avoid mandatory death sentences.
What makes Article 103 unusual is not its severity but its reach. The “any person” jurisdiction, the military commission authorization, and the wartime limitation all point to a single principle: spying in wartime is a violation of the customs of war, not just a military offense. The statute codifies an international norm that hostile nations have recognized for centuries, and it does so without limiting its application to the people who wear the uniform.
Joseph L. Jordan, Attorney at Law: Article 103 reaches any person, not just service members, found lurking as a spy or acting as a spy in or around military installations, camps, or forces in time of war. It is one of the few UCMJ provisions with universal personal jurisdiction, and the sole mandatory penalty is death.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.