|Punitive Articles of the UCMJ|
“(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.
(1) No person may be sentenced by court-martial to suffer death for an offense under this section (article) unless—
(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.
(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;
(2) Attempted espionage.
(a) That the accused did a certain overt act;
(3) Espionage as a capital offense.
(a) That the accused committed espionage or attempted espionage; and
(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 with-out 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 in-formation, or (4) any other major weapons system or major element of defense strategy. See R.C.M. 1004 concerning sentencing proceedings in capital cases.
Lesser included offense. Although no lesser included offenses are set forth in the Code, federal civilian offenses on this matter may be incorporated through the third clause of Article 134.
(1) Espionage as a capital offense. Death or such other punishment as a court-martial may direct. See R.C.M. 1003.
(2) Espionage or attempted espionage. Any punishment, other than death, that a court-martial may direct. See R.C.M. 1003.
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Above Information from Manual for Court Martial, 2002, Chapter 4, Paragraph 30a