Spying in Violoation of Article 106, UCMJ. the Offense and the Canstitutionalitv of its Mandatory Death Penalty

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by Major David A. Anderson"In my opinion the spv is the motest of soldiers' if he is the most delesled by the enemy it is only because he is the mast feared."'

-King George V

"Orw spy in the *ght place is uwth 20,000 men in the field.'l -Napaleon

1. INTRODUCTION

   In t@day's society, would Captain Nathan Hale, Amencan officer and revolutionary patriot, or Major John Andre, Bntish officer and revolutionary patriot, be sentenced to hang In 1776, st the bemnning of Amenca's Revolutionary War, Captain Hale volunteered to go behind British lines to spy on the enemy; he was captured in the dlsguise of a Dutch school teacher, and the fallowing day he was hanged.3 General Henry W.

   Halleck, General-in-Chief of the Union h i e s from 1862 to 18W4described Captam Hale's mission and fate in these terms:

   After the retreat of Washington from Long Island, Captain Nathan Hale recrossed to that island, entered the British Imes,

   ' United Stales Manne Corps Currently assigned a~ Vllifary Judge. Camp Lejevne North Carohna. Previously mngned a~ Trial and Defense Couniel. Naval Legal Ser-_e Office Detachment London. 1886 88, Officer Performance Adwar, Headquarten, US MmneCoM 1883-85.SfaffJudgeMu~ate.

   24and34ManneAmphlblowUnir.

   Medltemnean Sea. 1981-83,and a~ mal and Defense Counsel. Zd Marine Dwidon, CampLeleune, YonhCaroUna. 1879-81 BA., Amhenf College, 1076, J D., 1878 and LL M , 1886, George Wmhmgton Km~emlfy

   Law School. LL M ,The Judge Advocate

   General's School. 1880 Mdlfed to the ban of the Dlnnef af Columbia, the Caun Of MLllLaN Appeals, and rhe E S. Supreme Caun Thlr amde IS baed upon a thesis submitted m panla1 ~~~islsdionof the iequirements af the 35th Judge Mvocate of freer Graduate Caune

   IB. Sewman, Epics of Ebplonage 7 (19511

   I ,A*&e1 Sturn, Llfeof CapmnNathanHde TheMan~-S~offheAmencanRevolu-fion (Hartford 1856). H. Halleck, International Law; or, Rules ReBylatiw the Infer-coyme af Srales in Peace and War 407 (hew York 18611, H Johnston. Uathan Hale,1776 Blagaphymd\lemo~a(1001),

   J Root. SathanHale(l815): J D m w , Nathan Hale. A Story af Loyalties (18321. M PennypackeI, George Washmgton'a Spies on Longbland and In New York il8301. 2 L Oppenhem. Intematlond law 425 (7th ed 1852)

   *nLeBBglnnzws. Hal!Aah onMililory Tnb"&, Mil L Rev Blcenl Wue 13 (1875)

   tn disguise, and obtaned the best possible intelligence of the enemy's forces, and their intended operations; but. in his at-tempt to return, he was apprehended. and brought before Sir William Howe, who gave immediate orden for his execution (IS

   a spy; and these orden were carried into execution the very next mornmg, under circumstances of unnecessary rigor, the prisoner not bemg allowed to see a clergyman, nor even the useof a bible, although he respectfully asked for both

   During that same war four years later, Ma~ar John Andre was captured behind American lines m civ11u.n clothes and hanged as a spy.6 His story has been summarized as follows.

   John Andre joined the British army m Canada and became aide-de-camp to Gen SIT H e w Clinton. [General] Benedict Arnold, an Amencan commandant, [undertook] to surrender a certain fortress, [West Point], to the British farces[.] Andre was sent by Clinton to make the necessary arrangements for carrying out this engagement. Andre met Arnold near the Hudson on the night of September 20.1780; then Andre put on civilian clothes, and by means of B passport given to him by Arnold inthe name of John Andenon he was to pass through the Amencan hnes Approaching the Bntish lines, he was captured and handed over to the American mihcary authorities. A [Board af General Officen] summoned by [General George] Wahingmn convicted him of [spying] and declared that 'agreeably to the laws and usages of nations he ought to suffer death.' He was hanged October 2, 1780: but in [England] he was considered a martyr

   According to tradition, just pnor to his death. Captain Hale declared, "I only regret that I have but one life to lose far my country."' In a a m h i vein, when MaJor Andre was on the gallons, he

   IH Halleck, sum note 3 at 407'See Proceedings of B Board of General Officers Held by Order of His Excellencp Gen WishmBton, Commander I" Chief of the Am) of the United States of America Respecting Malm John hndre Aqlurant General of the British Am) [Phrladelphia 1780). E Benson i'indicsfim of the Caplon of klqor Andre (Pen Yark 1817) H H d k k s u p note 3 at 10849 W Sargent The LIfe of Mqor Andre Adjutant General of the Bnfmh Amy I" America (18il) Halleck .?4tlziary Espianoga 6 Am J Int I L 600. 594-603 (1911) 2 H Wheaton, Whearonslntemational Law 218-2017th ed 1944) (1st ed 1836) 2 L Oppenhelm, s u p note 3 at 423-24. R Hatch M q m John Andre A Gallant in Spy s Clothing 11986)

   7 H Whealon supra note 6 at 210%rH Johnron mmanore 3 sf 126 J Roof mma note3 at86 J Darrau E U D ~ note 3 BL 211, I sruan supra ""fe 3 at 1342

   19901 SPYIKG AND THE DEATH PENALTY

   observed, "I die for the honour of my king and country."g Despite the fact that both Captain Hale and Mqor Andre were considered fearless officers, fine gentlemen, and noble patnots,LD they both suffered the standard punishment prescribed by law at the time for the offense of spying, death!! Confinement and a later exchange of captured spies was not an option; the common law would not permit It 12 Once confirmed as a spy, a man's death warrant was virtually seaied.13

   Ram the Revolutionary War to the present, Americans have had little tolerance for spies" During World War 11, for instance, eighteen German soldiers were captured during the Battle of the Bulge, attempting to disrupt American operations whle wearing American uniforms behind enemy hnes; all were tried before military commis. SLOLIS, convicted of spying, sentenced to death, and executed?s Currently, article 106 of the Uniform Code of Military Justice (UCMJ)mandates that anyone convicted of spying shall suffer death.la The offense of spyingis unique among the punitive articles in the UCMJ,it is the only offense for which death IS the mandatory punishment I'

   Over time, civilization in Amenca has progessed and traditions have changed, but the punishment for spying has remained the same. This article will examine the offense of spying and determine whether, under the judicial scrutiny of the U.S.

   Supreme Court and

   Court of Military Appeals and the dictates of modern international law, the mandatory death penalty for the offense is still required. To resolve this issue, three major areas will be discussed. the historical backsound of the offense of spying and its punishment; judicial precedents from the Supreme Court and the Court of Military Appeals concerning the death penalty and mandatory punishments; and the status of spying under current international law and opm- '1 H Halleck. Halleekr lolernafionsl Law 630 14th ed 1808) (1st ed 18611

   I0J Root. suyro note 3, at 152 60

   "H Halleck, mp~nnote 3, nf 407-09, W Wlnlhmp, Military Law and Precedents 766.66. 770.71 1Zd ed 1920 repnnt1

   >"Gen Olden Yo 100. War Dep t(24 Apr. 18631

   ISH Halleck. suyronore3. at 407-09 W Wmlhmp, supranote 11, ~1766-66 770-71 "See H Halleck. supra note 6,at 590. Erparlo Qumn. 317 U S I. 42 n 14 (19421 Deo'r of Arm" Pam 27 161 2 International Law Volume I1 at 58 123 Oct 19621 fhhkmfter

   T MacDonald, A Time far Trurnpeti 226 (1955) Koessler In(ernotion01

   La= on

   Use @Enemy L'nnlfm as a SL7ofwm and Iha Acyuzffal zn Lhr Shoruns Case, 24

   Mo L Re% 16, 29 30 (18581

   I*LTmfom Code of MihW Jusfice zzt 100, 10 E S C 5 906 (18521 [heremafter UCMJI'?See Manual for Courts Martial United States, 1984, Rule for Courts-Martial

   92lIeX2XA1 discusion [hereinafter R C M 92UcXZX.41 dmcusslonl

   the U.S.

   ion. In the end, the fate that would befall Captain Hale and Mqar John Andre in today's world for their Crime of spymg wdl have a defmmve answer

   11. HISTORY OF THE OFFENSE AND ITS PUNISHMENT

   1. AMERICAN STATUTORY PRECEDENT

      Spying first became an offense in the United States during the Reiolutionary Warla On August 21, 1778. the Continental Congress enacted the following resolution

      That all persons. not members of, nor awing any allegiance to. any of the United Stater of America, who shall be found lurking as spies in or about the fortifications or encampments of the armies of the United States, or any of them, shall suffer death, according to the lam and usage of nations, by sentence of a court martial. or such other punishment as such coun-martial shall direct I*

      This lepslation diffen from the statutory pro~l~ioncurrently in force

      in two mqor respects. Rmt, under this resolution. the offense of spy-ing could only be committed by aliens In other words, U.S.citizens

      did not fall within the scope of the offense.20 Second, and more Importantly, the punishment far spying was not a mandator1 death sentence." To the contrq a court-martial had the discretion to award death or "such other punishment" as it directed Thus, the earhest US lepslatwe provmon to deal with spymg, the one adopted by America's founding fathers, did not require the imposition of the death penalty for the offense, but rather delegated the determination of an appropriate sentence to the members of the court

      The next statutory promsmn to delineate the offense of spying did provide for a mandatory death sentence That p~orismn enacted by the U S Congress on April 10, 1806, was included as part of "An 4ct

      'SW Wmthrop "pa note 11 er i65, El poi* Qumn, 317 L S 1 41 11842) 'sResaluIlan quoted m \V Xlnthrop supra note I1 at 766 and cited at 765 11 88 '"W Winthrap mpmnote I1 at 766, seeel80 I Yabbi. ATreariae onCourtr-Martlal and klililan Law 35-36 IBolron 1613). Gen Orders KO 38. HQ, Dep I of the hlo (23 hlay 1863)4

      1 Jour Cong 460

      ''5%' Winthrop supra note 11 ar 766

      19901 SPYIYG AND THE DEATH PENALTY

      For establishing Rules and Articles for the government of the Armies of the United States;' and it wm inserted directly after the "AI-tides of War.''z2 It read as follows:

      That in time of war. ail penons not citizens of, or awing allegiance...