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?

Answer 1

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)).

Answer 2

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).

1. 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;

15. 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.

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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.

Answer 3

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.

Answer 4

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.