Can a soldier be court-martialed for revealing intelligence while in duress?

Question

Can a soldier be court-martialed for revealing intelligence while in duress? Let's say a soldier is captured and then tortured by Russian agents to reveal critical top-secret intelligence to the Russian government. Can the soldier be then court-martialed in the U.S. for treason or some other crime?

Court-Martial is done by Military tribunal, treason is done by a public trial although it could be done by closed doors as to not divulge further intelligence. Either way, these are two separate and distinct matters. IDK if you got be tried for both, there should still be a double jeopardy rule that precludes it. — Neil Meyer, Jul 19 '21 at 14:25
You may find the following article interesting - https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1309&context=faculty_scholarship — Neil Meyer, Jul 19 '21 at 14:34
'duress' - "In law, coercion is codified as a duress crime". And duress (uncountable) " - (law) Restraint in which a person is influenced, whether by lawful or unlawful forceful compulsion of their liberty by monition or implementation of physical enforcement; legally for the incurring of civil liability, of a citizen's arrest, or of subrogation, or illegally for the committing of an offense, of forcing a contract, or of using threats" — Peter Mortensen, Jul 20 '21 at 05:54
Are you asking if they can be tried, or if they can be found guilty? Technically, a soldier can be court-martialled and then found not-guilty, just like a civilian can be tried and then found not guilty. — MikeB, Jul 20 '21 at 13:46

score 53 · Accepted Answer · answered Jul 18 '21 at 06:48

53

2019 Manual for Courts-Martial, Rule 916(h):

(h) Coercion or duress. It is a defense to any offense except killing an innocent person that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply.

So, if your hypothetical soldier asserts they had a reasonable apprehension that they would have immediately suffered serious bodily injury if they didn't reveal the intelligence, then they should not be convicted by a court-martial, unless the prosecution can prove beyond a reasonable doubt that this was not the case (Rule 916 (b)(1)).

answered Jul 18 '21 at 06:48

Nate Eldredge

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Immediate death or immediate serious bodily injury is a high bar; most of us have a wayyy broader definition of "duress". – CCTO Jul 18 '21 at 18:23
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This looks like an affirmative defence so the prosecution doesn’t have to prove it, the defence does but only on the balance of probabilities, not beyond reasonable doubt. – Dale M Jul 18 '21 at 21:58
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@DaleM: That was my first assumption too, but Rule 916(b)(1) says pretty explicitly that the burden of proof is on the prosecution, and beyond a reasonable doubt. – Nate Eldredge Jul 18 '21 at 22:00
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@CCTO: Perhaps so, but "immediately suffer serious bodily injury" seems to at least cover OP's torture example. – Nate Eldredge Jul 18 '21 at 22:02
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@CCTO in particular the bodily injury would appear to mean psychological torture in some forms s no defence [refrains from political speculation]. Even techniques that inflict pain would seem to have to also cause apprehension of serious injury, unless it's clear that pain itself can be treated as injury – Chris H Jul 19 '21 at 08:16
So if a solider was threatened with certain death unless they killed an innocent person, the only way to avoid a court-martial would be to die? – Crazymoomin Jul 19 '21 at 12:01
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@Crazymoomin Seems so. I think it's fair that saving one's own life at the expense of someone else's would be punishable - it's like intentionally crashing your car into people to avoid hitting a brick wall. – Dmitry Grigoryev Jul 19 '21 at 12:31
@DmitryGrigoryev I can imagine, apart from perhaps the most selfless people, a prison term is preferable to death in that situation. At least with the brick wall example, death isn't (usually) guaranteed. – Crazymoomin Jul 19 '21 at 13:15
@Crazymoomin Of course. Heck, I don't exclude I'd steer away from the brick wall even if death wasn't guaranteed. I wouldn't be surprised if I'm sent to jail afterwards though. – Dmitry Grigoryev Jul 19 '21 at 14:16
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Well, I'm not a lawyer, nor a follower of Courts Martials, nor an expert on torture techniques, but it's not obvious to me that pain would count as bodily injury. I'd presume that if they wanted to include psychological effects or torture, they'd have made it explicit. I rather picture Courts Martial as pretty strict and erring on the side of supporting the many service personnel who kept mum under severe duress. I very much doubt they'd count waterboarding or sleep deprivation as severe bodily injury, for example. But perhaps I'm being ungenerous of military justice? – CCTO Jul 19 '21 at 15:19
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@CCTO that was rather my thinking, especially as this is modern (or at least reviewed recently). The speculation I avoided started from assuming that the military wouldn't want their own "enhanced interrogation" techniques to be seen in the same light as traditional torture. Waterboarding is interesting though, in that it could lead to a reasonable apprehension in imminent death – Chris H Jul 20 '21 at 07:41

score 8 · Answer 2 · answered Jul 18 '21 at 21:00

uk

As I understand it, in the UK, there is no specific defence of 'duress' under law against the charge of Assisting the Enemy (e.g. in contravention of the Armed Forces Act 2006).

Assisting an enemy
(1) A person subject to service law commits an offence if, without lawful excuse, he intentionally
...
(b) gives an enemy information that would or might be useful to the enemy;

Various defences to lesser charges are raised in the supporting documents which do include duress;

Duress.
Duress may form a defence to all offences which may be heard summarily. However, the exact scope of this defence is not clearly defined in law and staff legal advice should be sought if it is raised. This defence covers the situation where a person is threatened by another with death or grievous bodily harm if they do not undertake a criminal act. For example, where an accused claims that another person threatened to seriously harm them unless they stole a digital camera for them.

But since the charge of Assisting an enemy is not one that can be dealt with at a summary hearing, this defence could only be raised in mitigation, not as a lawful defence against the charge itself.

That all being said, the Attorney General and DPP have a wide latitude to determine whether a prosecution would be in the public's interest. If the individual could demonstrate (to a reasonable extent) that they were genuinely fearful of their life when giving up vital information, then it's highly unlikely that a prosecution would be called for.

score 2 · Answer 3 · answered Jul 20 '21 at 05:49

While the basic answer has already been given it's worth noting the Constitution says the following about treason:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

It seems pretty clear based on the various articles I've read that SCOTUS would probably read that provision as not including aid given under duress (wouldn't be surprised if it's even in an opinion somewhere) so not only can you not now but Congress likely couldn't even change the law to make giving info under duress treason.

Of course, someone could always argue that the duress was merely for show or the like.

Which isn't to say that duress wouldn't need to be raised as an affirmative defense (meaning burden might be on the accused to prove they were under duress) rather than non-duress being an element the prosecution would need to prove. — Peter Gerdes, Jul 20 '21 at 17:34

score 0 · Answer 4 · answered Jul 21 '21 at 21:18

Convictions are automatic if intelligence is shared, but courts-martial tend to take a dim view of soldiers who succumb to duress. The case of Bowe Bergdahl, a U.S. soldiers captured and tortured by the Taliban, and then convicted in a court martial after he was returned to U.S. forces, is a case in point.

Can a soldier be court-martialed for revealing intelligence while in duress?

4 Answers4