Military Espionage and Classified Information Defense

An accusation involving classified information can put a service member’s freedom, security clearance, and military career at risk.

An espionage charge under the UCMJ can carry the death penalty. Even a “mishandling” case can bring a federal felony conviction, confinement, a punitive discharge, and the suspension or revocation of a security clearance, with lasting career consequences.

These cases are also tried differently. Evidence is often classified. Some sessions may be closed to the public. Defense counsel must fight for access to the very documents the government says prove guilt.

Cave & Freeburg has litigated in that environment—including nationally reported Air Force court-martial in which much of the evidence was classified and the client was acquitted of every charge tried. See our high-profile cases →

Charges Covered on This Page

National security prosecutions can involve charges under several articles and federal statutes. Charges may include:

• Espionage—Article 103a, UCMJ. Communicating or attempting to communicate national defense information to a foreign recipient specified in the statute, with the required intent or reason to believe.
• Spying—Article 103, UCMJ. A wartime offense.
• Aiding the enemy—Article 103b, UCMJ.
• Espionage Act violations (18 U.S.C. § 793) charged through Article 134, including certain unauthorized disclosures, retention, and mishandling of national defense information.
• Violating classified-information regulations—Article 92, UCMJ.
• Unauthorized access to government computer systems.
• Conduct unbecoming an officer—Article 133, UCMJ.

Article 103a: Military Espionage

Article 103a prohibits communicating, delivering, or transmitting—or attempting to do so—national defense information to the foreign recipients specified in the statute. Those recipients include foreign governments; factions, parties, and military or naval forces within foreign countries; and their representatives, officers, agents, employees, subjects, or citizens. The government must prove the accused acted with intent or reason to believe the information would be used to injure the United States or to benefit a foreign nation.

Death is on the table. The statute authorizes a death sentence for offenses directly concerning specified categories, including nuclear weaponry, military spacecraft or satellites, early warning systems, war plans, communications intelligence or cryptographic information, or another major weapons system or major element of defense strategy.

Before death can be adjudged, the members must unanimously find at least one statutory aggravating factor beyond a reasonable doubt—for example, that the accused knowingly created a grave risk of substantial damage to national security, or a grave risk of death to another person. They must also unanimously find that aggravating circumstances substantially outweigh extenuating or mitigating circumstances. The accused is given broad latitude to present extenuation and mitigation.

Article 103 (Spies) is a separate, wartime-only offense. It must be tried by general court-martial or military commission and is punishable by death or other punishment the court directs.

The Espionage Act, Charged Under Article 134

A service member does not have to be accused of working for a foreign government to face an Espionage Act prosecution. Violations of 18 U.S.C. § 793 may be charged at a court-martial through Article 134. Section 793(e) carries up to ten years of confinement per offense.

The charged subsection matters. Sections 793(d) and (e) address certain willful disclosures or retention of national defense information, with different requirements depending on whether possession or access was authorized. Section 793(f) addresses specified conduct involving gross negligence or failure to report a known loss or unlawful removal or disclosure.

Military appellate courts have made § 793(e) a powerful tool for prosecutors:

• No bad faith required. In United States v. McGuinness, 35 M.J. 149 (C.M.A. 1992), the court held that § 793(e) does not require proof of a sinister purpose to injure the United States. Willfulness still matters: the court approved an instruction defining it as an intentional violation of a known legal duty. Gross negligence is addressed separately under § 793(f).
• Good motives alone do not excuse a violation. In United States v. Diaz, 69 M.J. 127 (C.A.A.F. 2010), a Navy judge advocate at Guantanamo mailed a printout of detainee information to a civil-rights attorney—cut into pieces and hidden in a Valentine’s Day card. The Court of Appeals for the Armed Forces (CAAF) held that his claimed good motives did not negate the required mental state on those facts. The court also recognized that motive evidence can be relevant when it bears on intent. The government must still prove the applicable knowledge and willfulness requirements.
• Courts have rejected constitutional challenges. In United States v. Manning, 78 M.J. 501 (A. Ct. Crim. App. 2018), the Army Court affirmed Espionage Act convictions and rejected arguments that § 793(e) is unconstitutionally vague or overbroad, and that the disclosures were protected by the First Amendment.

These decisions make careful factual analysis essential: what the information was, what the accused knew, and who actually committed the alleged act.

Where These Cases Are Won

1. “Classified” Is Not the Same as “National Defense Information”

The government will lean on classification markings. The law does not let them stop there.

In Diaz, CAAF stated plainly that classification alone does not satisfy the mental-state element of § 793(e). The court recognized that not everything on a classified system relates to the national defense, and not everything marked classified actually meets the criteria for classification.

In United States v. Fleming, 38 M.J. 126 (C.M.A. 1993), members were instructed that information “relates to the national defense” only if it is potentially damaging to the United States or useful to an enemy and not available to the general public.

That opens real lines of attack:

• Was the information already public?
• Was it over-classified, or classified at all at the relevant time?
• Can the government’s classification witness withstand cross-examination about potential harm from disclosure and whether the information was closely held?

The flip side matters too: Diaz also held that unmarked information can still qualify. A missing banner is not, by itself, a defense.

2. What Did the Accused Actually Know?

Knowledge is often the whole case. In Fleming, a submarine periscope photographer kept classified slides at home; his defense was that he did not know most of the material was classified. The government must prove the mental state required by each charged offense. The required showing varies: actual knowledge of every classification marking or handling rule is not a universal element.

3. Who Actually Did It?

Attribution can be circumstantial: shared workspaces, shared accounts, shared devices, and logs that show a user rather than the user. A disciplined defense tests every link between the accused and the act.

4. Getting the Evidence—Military Rule of Evidence 505

Classified information is privileged under Military Rule of Evidence 505 when disclosure would be detrimental to national security. The government can invoke that privilege to restrict what the defense sees.

However, the rule also protects the accused. Any information admitted into evidence must be provided to the accused. The military judge can review access disputes and approve summaries, substitutions, or other alternatives when the rule’s requirements are met. Those alternatives must preserve substantially the same ability to make a defense as access to the specified information. Withholding necessary information can lead to remedies, including dismissal of the charges in appropriate circumstances.

A security clearance alone does not guarantee access to every document, and the judge cannot order disclosure to someone unauthorized to receive the information. The defense must also comply with notice requirements before disclosing classified information in trial or pretrial proceedings.

These disputes can arise early and involve closed proceedings. Counsel’s experience with MRE 505 can be critical to obtaining usable evidence and protecting the ability to present a defense.

5. Keeping the Trial Fair When the Doors Close

The Sixth Amendment right to a public trial applies at courts-martial. In United States v. Grunden, 2 M.J. 116 (C.M.A. 1977)—an attempted espionage case—the court rejected sweeping closure without an adequate showing of necessity. A case’s connection to classified information does not, by itself, justify closing the proceedings.

Under Rule for Courts-Martial 806, closure requires a substantial probability of prejudice to an overriding interest, must be no broader than necessary, and requires findings that reasonable alternatives are inadequate, supported by case-specific reasons. Protecting classified information is one possible basis for closure.

Grunden also recognized the danger that security procedures could influence the members’ assessment of the evidence. The judge must explain those procedures at the outset and in final instructions: classification markings and the presentation of testimony in closed sessions do not, by themselves, establish guilt. In Fleming, the failure to give the required final instruction was error, but the court found it did not warrant reversal on the facts of that case. Defense counsel should insist on the instruction rather than leave the issue for appeal.

6. Pushing Back Before Referral

Access disputes can arise before trial, including at the Article 32 preliminary hearing. In the Dezwaan case, the defense argued at the Article 32 hearing that proceeding without access to key documents left the defense with both hands tied behind its back. Ultimately, charges involving classified information were dismissed before the case was referred to trial.

The Investigation Stage

National security cases can begin quietly—a “security interview,” a “debrief,” a polygraph request, or a counterintelligence inquiry that later becomes a criminal investigation.

A service member may not realize they are a suspect until after answering questions.

Before you answer questions, talk to a lawyer. Early counsel can shape what is said, what is preserved, and whether charges are ever preferred.

Consequences Beyond the Courtroom

• Security clearance. Clearance decisions are committed to Executive Branch discretion. In Department of the Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court held that the Merit Systems Protection Board lacked authority to review the merits of the underlying clearance determination in an adverse-action appeal. An acquittal does not automatically restore a clearance, but a denial or revocation is not necessarily permanent. Security clearance defense →
• Career. A clearance loss can end a career even without a conviction. Administrative separation defense →
• Appeals. If convicted, the appellate record, including any classified portions, must be built correctly at trial. Military appeals →

Case Result: Acquittal in Classified Insider-Attack Court-Martial

United States v. Dezwaan (Hill Air Force Base, 2023). An Air Force Technical Sergeant was accused of setting off explosives at a U.S. base in Syria in April 2022. He was held in pretrial confinement. The government initially charged him with failure to protect classified information and unauthorized access to a government computer; those charges were dismissed before referral. At an eight-day general court-martial in which much of the evidence was classified Secret and several sessions were closed, the defense argued that someone else was responsible. The panel acquitted him of all charges tried—aggravated assault, reckless endangerment, and destruction of military property. The classified-information and computer-access charges had already been dismissed.

Read the contemporaneous trial coverage.

More high-profile results →

Prior results do not guarantee a similar outcome.

Why Service Members Choose Cave & Freeburg

• Over 65 years of combined experience in military justice.
• Cleared attorneys. Our lead attorneys hold security clearances.
• Trial experience with classified evidence, closed sessions, and MRE 505 litigation.
• Former active-duty judge advocates
• Appellate depth. Partner Philip Cave, with more than 40 years of experience, handles the firm’s appeals.
• Worldwide representation. Clients in 47 states and at U.S. installations overseas.
• Recognized in the national press. High-profile cases →

Explore all practice areas →

Frequently Asked Questions

Can a service member be sentenced to death for espionage?

Yes, in limited circumstances. Article 103a authorizes death for offenses directly concerning specified categories, such as nuclear weaponry, war plans, or cryptographic information. The members must unanimously find a qualifying aggravating factor beyond a reasonable doubt and unanimously determine that aggravating circumstances substantially outweigh extenuating or mitigating circumstances. Wartime spying under Article 103 is also death-eligible.

I didn’t mean any harm. Is that a defense?

Not by itself. A good motive does not excuse an otherwise proven § 793(e) violation, but the government must still prove the required knowledge and willfulness. Motive evidence can sometimes bear on intent and may also matter to an Article 133 charge or at sentencing. Article 103a requires intent or reason to believe the information would be used to injure the United States or benefit a foreign nation.

The document wasn’t marked classified. Can I still be charged?

Yes. Unmarked information can qualify as national defense information. Likewise, a classification marking alone does not establish every element of a § 793 charge, including the required mental state (mens rea).

Will my court-martial be closed to the public?

Possibly in part. Courts-martial are presumptively public. Protecting classified information can justify limited closure, but the judge must find reasonable alternatives inadequate, make case-specific findings, and limit closure to what is necessary to protect an overriding interest. Classification markings and closed sessions do not, by themselves, establish guilt.

Can my defense lawyer see the classified evidence?

Access depends on Military Rule of Evidence 505, protective orders, and applicable security procedures. A security clearance alone does not guarantee access to every document. Any information admitted into evidence must be provided to the accused, and approved substitutions must preserve substantially the same ability to make a defense. Counsel can litigate access disputes and seek remedies when necessary information is withheld.

If I’m acquitted, do I get my clearance back?

Not automatically. The criminal case and the clearance process are separate. Clearance decisions are made by the Executive Branch and receive limited outside review. An acquittal does not itself restore a clearance, but applicable administrative procedures may provide a way to challenge a denial or revocation.

Facing an investigation or charges involving classified information? Contact Cave & Freeburg for a confidential consultation.

By Philip Cave and Nathan Freeburg at www.court-martial.com. (Last reviewed November 11, 2026.)