2008 edition - Fort Sam Houston - U.S. Army

30.a.
commission and on conviction shall be punished
by death.
b. Elements.
(1) That the accused was found in, about, or in
and about a certain place, vessel, or aircraft within
the control or jurisdiction of an armed force of the
United States, or a shipyard, manufacturing or industrial
plant, or other place or institution engaged in
work in aid of the prosecution of the war by the
United States, or elsewhere;
(2) That the accused was lurking, acting clandestinely
or under false pretenses;
(3) That the accused was collecting or attempting
to collect certain information;
(4) That the accused did so with the intent to
convey this information to the enemy; and
(5) That this was done in time of war.
c. Explanation.
(1) In time of war. See R.C.M. 103(19).
(2) Enemy. For a discussion of “enemy,”see paragraph
23c(1)(b).
( 3 ) S c o p e o f o f f e n s e . T h e w o r d s “ a n y p e r s o n ”
bring within the jurisdiction of general courts-martial
and military commissions all persons of whatever
nationality or status who commit spying.
(4) Nature of offense. A person can be a spy only
when, acting clandestinely or under false pretenses,
that person obtains or seeks to obtain information
with the intent to convey it to a hostile party. It is
not essential that the accused obtain the information
sought or that it be communicated. The offense is
c o m p l e t e w i t h l u r k i n g o r a c t i n g c l a n d e s t i n e l y o r
under false pretenses with intent to accomplish these
objects.
(5) Intent. It is necessary to prove an intent to
convey information to the enemy. This intent may
be inferred from evidence of a deceptive insinuation
of the accused among our forces, but evidence that
the person had come within the lines for a comparatively
innocent purpose, as to visit family or to reach
friendly lines by assuming a disguise, is admissible
to rebut this inference.
(6) Persons not included under “spying”.
( a ) M e m b e r s o f a m i l i t a r y o r g a n i z a t i o n n o t
wearing a disguise, dispatch drivers, whether members
of a military organization or civilians, and persons
in ships or aircraft who carry out their missions
openly and who have penetrated enemy lines are not
IV-44
spies because, while they may have resorted to concealment,
they have not acted under false pretenses.
(b) A spy who, after rejoining the armed forces
to which the spy belongs, is later captured by the
enemy incurs no responsibility for previous acts of
espionage.
(c) A person living in occupied territory who,
w i t h o u t l u r k i n g , o r a c t i n g c l a n d e s t i n e l y o r u n d e r
false pretenses, merely reports what is seen or heard
through agents to the enemy may be charged under
Article 104 with giving intelligence to or communic
a t i n g w i t h t h e e n e m y , b u t m a y n o t b e c h a r g e d
under this article as being a spy.
d. Lesser included offenses. None.
e. Mandatory punishment. Death
f. Sample specification. In that (personal
jurisdiction data), was, (at/on board—location),
on or about 20 ,
a time of war, found (lurking) (acting) as a spy (in)
(about) (in and about) , (a (fortification)
(port) (base) (vessel) (aircraft) ( ) within
the (control)(jurisdiction) (control and jurisdiction)
o f a n a r m e d f o r c e o f t h e U n i t e d S t a t e s , t o
wit: ) (a (shipyard) (manufacturing
p l a n t ) ( i n d u s t r i a l p l a n t ) ( ) e n g a g e d i n
work in aid of the prosecution of the war by the
United States) ( ), for the purpose of (collecting)
(attempting to collect) information in regard
to the ((numbers) (resources) (operations)
( ) o f t h e a r m e d f o r c e s o f t h e U n i t e d
States) ((military production) ( ) of the
United States) ( ), with intent to impart
the same to the enemy.
30a. Article 106a—Espionage
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
a d v a n t a g e o f a f o r e i g n n a t i o n , c o m m u n i c a t e s ,
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
o t h e r m e a n s o f d e f e n s e o r r e t a l i a t i o n a g a i n s t