The Defense of Espionage Cases In the Military

For anyone who enlists in the U.S military or who serves as a commissioned officer or a warrant officer, the defense of the United States becomes their primary job. To defend this country, it is often necessary for military members to have access to classified information. This information is frequently interesting, and it is often of extreme importance not only to the government of the United States but also to this nation’s enemies and adversaries. The wrongful use of this information, even if lawfully obtained, can be a disaster not only to the government of the United States but also to the service member or members who mishandled the information. In serious cases, like when classified information is shared with an agent of a foreign government, espionage charges are possible.

On April 19, 2024, Navy Chief Petty Officer Bryce Pedicini was convicted of attempted espionage, failure to obey a lawful general order, and attempted violation of a lawful general order, following a seven-day general court martial before a military judge without members. He was sentenced to 18 years in military prison, on May 29, 2024. Although public details are few, it was alleged that between November of 2022 and May of 2023, he met with an agent and employee of a foreign government. In May of 2023, he was alleged to have transported classified information to the foreign agent when he was arrested by agents of NCIS. Although initially charged with fourteen offenses, he was ultimately convicted of three.

This conviction follows the previous indictments in federal court of Jinchao Wei and Wengcheng Zhao, both Navy petty officers accused of passing information to the Chinese government. Zhao has been sentenced to 27 months in prison, and Wei is currently scheduled to begin trial on December 3^rd. Another service member, Jack Teixeira, an air national guardsman from Massachusetts has pled guilty to wrongfully disclosing classified information in federal court and has an agreed upon sentencing range with an upper limit of 200 months.

All four of these cases point to the seriousness of espionage for members of the U.S. military, even if not all cases are tried before military courts-martial. The conduct involved was relatively straightforward, passing information to someone not entitled to receive it, under Article 103a of the Uniform Code of Military Justice (UCMJ).[1]

hunting knife.[1]

[1] Note that Article 103a, Espionage, is in the same part of the UCMJ as Spies, Article 103 and 103b, Aiding the Enemy.

For anyone to be convicted of espionage under Article 103a of the UCMJ, he or she must pass information to a foreign power with an intent or reason to believe that the information will be used to injure the United States. In the cases involving “nuclear weaponry, military spacecraft or satellites, early warnings systems or other means of defense or retaliation against large attacks, war plans, communications intelligence or cryptologic information, or other major weapons systems of major elements of defense strategy”, the maximum punishment is death.[2]

hunting knife.[1]

[2] We have represented people accused by the government of a variety of acts of domestic terrorism. People who share these beliefs exist is all segments of society, including the military. The utmost care must be used to avoid sharing information even with these people.

In this article, our focus is on the defense or mitigation of these charges. There are a couple preliminary points to consider.

First, we recommend a “reality check” for anyone working with classified information. This information is serious, and it should be guarded from disclosure no matter what. If the person possessing the information should not have received it, they should report the matter to their superiors through appropriate means. There is never a need to discuss classified information with anyone except when required to do so as part of military duties. This means no sharing classified information with parents, siblings, friends, or significant others, no matter how interesting it may seem. It is best to avoid obtaining knowledge or information about matters that are classified. It is simply too important, and too dangerous to the person who possesses it to let it slip.

Second, we live in a politically challenging age where not every American agrees on who this nation’s enemies are. There are people who view the President of the United States as the primary enemy this nation faces. There are radio talk show personalities and religious leaders who rail against one political party or another. The are those who are adherents to the Q Anon conspiracy or other conspiracy theories who may truly believe they are the inherent defenders of American values. Regardless of who these people are or how sincere they may seem, no service member should ever share classified information with them. Classified information is secret, and anyone possessing that information is not free to share that information with anyone. There is no ideological belief that overcomes that simple truth.

The Defense of a Potential Espionage Case.

It should be noted at the outset that espionage cases, and any case involving classified information for that matter, is different from a normal criminal case. Often, these cases are investigated by agents possessing specialized knowledge of national security law. They may not be seeking to charge anyone with a crime and will often be looking for information and connections. The standard advice in most criminal cases to stay silent and request a lawyer can escalate a case to the detriment of the accused.

This is not to suggest that anyone should waive their right to counsel and just talk to whomever the investigating agent is. To the contrary, it is often best to review the case with an attorney and then arrange for an interview with the agent with the attorney present. In many instances, this approach can result in the accused avoiding a court-martial, but every case is different. Only a knowledgeable attorney can suggest the proper course of action and then only after the attorney has an understanding of the facts from the service member.

An interaction between a service member and a foreign agent may begin innocently. In the 1980s, for example, Sergeant Clayton Lonetree, USMC, was working as a Marine Corps Security Guard at the U.S. Embassy in Moscow. While there, he met and fell in love with a woman named “Violetta Seina”, who turned out to be a KGB agent. Lonetree was subsequently blackmailed into handing information over to the KGB. In 1987, he was convicted of espionage by a general court-martial and sentenced to thirty years in prison, although his sentence was reduced to fifteen years by the Secretary of the Navy. He eventually served nine years.

Could the sentence have been lower? It is impossible to know, but if Sgt. Lonetree had approached the government prior to disclosing classified information to the KGB, it may well have been. In terms of trial, however, there was never a valid defense that was going to work with a panel of Marine officers serving as a jury. Sometimes a defense at trial is the only option an accused has, but, particularly in national security cases, there may be other ways out. Even if a trial becomes necessary, the accused may have some information they could use to bargain for a lower sentence.

Of course, not everyone charged with espionage is guilty of espionage, and if the government cannot prove an accused’s guilt beyond a reasonable doubt, then a defense before a military court-martial is appropriate. Too often, charges may be based upon suspicion and innuendo. The accused may have casually met a Russian or Chinese agent; they may even have had a discussion with a foreign agent. This does not mean, however, that they disclosed any classified information to that foreign agent.

Cases may also involve a variety of virtual encounters, artificial intelligence, or some other technologically sophisticated way of hiding the identity of the spy or causing the sharing of classified information to seem legitimate. The issues become: what did the accused know; when did the accused know it; and what was the accused’s intent? If the accused shared classified information with someone, they thought was an FBI agent to further a U.S. government investigation when, in reality, the FBI agent was actually a foreign intelligence officer, is the accused guilty of espionage? The answer is “no”.

But, in this area of the law, things may not be as they seem.

Conclusion.

Cases of espionage, alleged espionage, and the wrongful disclosure of classified information are likely to proliferate in an era where domestic disagreements run deep, and foreign adversaries seek every advantage they can find. The best thing anyone in this world can do is contact a lawyer if they think they might be suspected of a crime, they are under investigation for a crime, or they have been charged with a crime. We represent service members before courts-martial, and we often become involved in national security matters. Contact us if you have any questions.