# Legally when can US soldiers disobey an order to surrender **URL:** \ **Category:** Factual Questions\ **Created:** [August 25, 2021, 3:57pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506 "2021-08-25T15:57:16Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![Dissonance](https://avatars.discourse-cdn.com/v4/letter/d/85f322/32.png) [@Dissonance](https://boards.straightdope.com/u/Dissonance)\ **Post date:** [August 27, 2021, 3:14pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/103 "2021-08-27T15:14:38Z")
> [@Martin\_Hyde](#): > > The fact that he would say “I don’t give a damn if I’m court-martialed” shows that as an officer he was aware of the law though. Which is precisely the point **JRDelirious** was making and which **ASL\_v2.0** and myself were agreeing to his parsing of. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [August 27, 2021, 3:15pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/104 "2021-08-27T15:15:09Z")
> [@Crane](#): > > What do you find factually incorrect? Your claim that U.S. soldiers can never disobey orders. The UCMJ, military doctrine, years of precedent, make it quite clear that U.S. soldiers can and have an **obligation** to disobey unlawful orders. They additionally do not have an obligation to follow the order “in the moment” and then “contest” it later, as you suggested here: > [@Crane](#): > > I well understand the UCMJ, but the rules are that you obey the orders as issued. You can argue the UCMJ later. A recentish high profile incident is when a U.S. General was asked a hypothetical about Trump ordering him to randomly nuke some city, he explained that that would be an unlawful order, and he would disobey it. That obeying an unlawful order can result in you being convicted of a crime. This is from a General extremely versed in military law, and his interpretation was widely backed at the time. It’s also known as a general precept. [The Duty to Disobey a Nuclear Launch Order (truthout.org)](https://truthout.org/articles/the-duty-to-disobey-a-nuclear-launch-order/) FWIW the law that makes it illegal to disobey orders is quite particular in that it only applies to **lawful orders** [10 USC 891: Art. 91. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer (house.gov)](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section891&num=0&edition=prelim) ---
**Author:** ![Crane](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crane/32/3495_2.png) [@Crane](https://boards.straightdope.com/u/Crane)\ **Post date:** [August 27, 2021, 3:17pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/105 "2021-08-27T15:17:51Z")
> [@Dissonance](#): > > Which is precisely the point Are you saying the US military has a fight to the death policy? ---
**Author:** ![Dissonance](https://avatars.discourse-cdn.com/v4/letter/d/85f322/32.png) [@Dissonance](https://boards.straightdope.com/u/Dissonance)\ **Post date:** [August 27, 2021, 3:20pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/106 "2021-08-27T15:20:49Z")
I have absolutely no idea at all how you draw that conclusion from what I’ve written. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [August 27, 2021, 3:21pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/107 "2021-08-27T15:21:07Z")
> [@Crane](#): > > > [@Dissonance](#): > > > > Which is precisely the point > > Are you saying the US military has a fight to the death policy? Is this a serious question? Every military has a presumed stance of it being your duty to fight to the death. What would the alternative standard be? “Fight until you don’t feel like it?” The bigger question is, when continued resistance can serve no greater function, and will just get many men killed, is it okay to surrender? For various reasons that we’ve offered up opinions on already, the U.S. military takes a “stance” that no, it is not okay and you should keep fighting. Now in some ways that’s comparable to the phrase in our constitution about “promoting the general welfare” and “the pursuit of happiness.” Those are somewhat aspirational statements. However, the prohibition on surrender is a step further in that it is codified in the UCMJ. But in most circumstances, in fact in every circumstance I’m familiar with, if you surrender for good reasons you likely won’t be prosecuted, but that doesn’t mean you didn’t technically violate the law. This is a case of the military promoting an ideal, but not inflexibly punishing people for violating that ideal in extremis. ---
**Author:** ![Crane](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crane/32/3495_2.png) [@Crane](https://boards.straightdope.com/u/Crane)\ **Post date:** [August 27, 2021, 3:31pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/108 "2021-08-27T15:31:48Z")
> [@Martin\_Hyde](#): > > Your claim that U.S. soldiers can never disobey orders During my stay in the military I noticed that the most common item in the daily orders was article 15s for ‘failure to go’. These were usually small matters of judgement by individual troops. They were immediately punished. Individual soldiers do not make decisions to unleash world holocaust. A group order to surrender would be binding on the individuals. As it was on the example you posted of the 550 US soldiers in Java. I have read complaints of soldiers who were surrendered but I have never seen an account of a group who refused the order. I am sure they exist but assume the decision was at some level of command (at least squad or platoon) not with the individual soldier. ---
**Author:** ![Crane](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crane/32/3495_2.png) [@Crane](https://boards.straightdope.com/u/Crane)\ **Post date:** [August 27, 2021, 3:33pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/109 "2021-08-27T15:33:45Z")
> [@Martin\_Hyde](#): > > U.S. military takes a “stance” that no, it is not okay and you should keep fighting. Looks like fight to the death to me ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [August 27, 2021, 3:39pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/110 "2021-08-27T15:39:37Z")
If you were in the U.S. military and were not trained about the duty to disobey unlawful orders your training was deficient. This has been a standard element of training new members of the military for many decades. As to you continually repeating that a soldier is bound to obey an unlawful surrender order, your posts are out of line with the plain language in the UCMJ and are, and remain, incorrect regardless of how many times you repost them. This time you’ve suggested a “group order” like a surrender would obligate obedience. What is a “group order” and how does it obligate obedience to an unlawful order? ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [August 27, 2021, 3:41pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/111 "2021-08-27T15:41:42Z")
> [@Martin\_Hyde](#): > > The bigger question is, when continued resistance can serve no greater function, and will just get many men killed, is it okay to surrender? For various reasons that we’ve offered up opinions on already, the U.S. military takes a “stance” that no, it is not okay and you should keep fighting. This is simply not true. Even the Code of Conduct doesn’t require that, and the UCMJ article on surrender explicitly allows for surrender with appropriate justification. If “continued resistance” will only get many men killed, that’s not “resistance,” that’s suicide in large numbers. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [August 27, 2021, 3:43pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/112 "2021-08-27T15:43:46Z")
That’s actually not accurate. All the UCMJ has is a general prohibition on surrender. The interpretation that the phrase “shamefully surrender” means there are cases where it is legally okay to surrender, AFAIK has never been litigated. It could just as easily be saying that since surrender is inherently shameful, you can never surrender. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [August 27, 2021, 3:46pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/113 "2021-08-27T15:46:31Z")
> [@Martin\_Hyde](#): > > All the UCMJ has is a general prohibition on surrender. The interpretation that the phrase “shamefully surrender” means there are cases where it is legally okay to surrender, AFAIK has never been litigated. It could just as easily be saying that since surrender is inherently shameful, you can never surrender. Seriously? The text is quite explicit that appropriate justification is a defense, as I previously posted: > [@ASL\_v2.0](#): > > More importantly, the UCMJ, which does actually have the force of law, is far from silent on the matter. Specifically, **Article 99, misbehavior before the enemy,** may be applicable to: > > > Any member of the armed forces who before or in the presence of the enemy… shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend… > > With “[s]hamefully abandoning, surrendering, or delivering up command” requiring: > > > (a) That the accused was charged by orders or circumstances with the duty to defend a certain command, unit, place, ship, or military property; (b) That, without justification, the accused shamefully abandoned, surrendered, or delivered up that command, unit, place, ship, or military property; and (c) That this act occurred while the accused was before or in the presence of the enemy. To run afoul of the article in a surrender, one must surrender _without justification_. No doubt that is implicitly to be read as _appropriate_ justification, but the point is quite clear: that surrender can be lawfully made with (appropriate) justification. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [August 27, 2021, 3:48pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/114 "2021-08-27T15:48:49Z")
This is just your interpretation and not factual. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [August 27, 2021, 3:49pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/115 "2021-08-27T15:49:27Z")
You are denying the explicit text of the UCMJ? ETA: And, again, the history of the US military, which is replete with surrenders of individuals and whole units numbering in the thousands, so often without court-martial, much less without conviction? And you’re arguing that the fact this _hasn’t_ been litigated (almost as if it’s not a crime to surrender with appropriate justification) is evidence in support of your position? ETA2: I mean, really, you’re basically arguing that what the Japanese did in WWII, so often fighting to the death without surrender, was not at all anomalous by US military standards, and that in fact the UCMJ and the Code of Conduct demand similar levels of resistance, even to the point of wasteful futility, from the US military? ---
**Author:** ![Crane](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crane/32/3495_2.png) [@Crane](https://boards.straightdope.com/u/Crane)\ **Post date:** [August 27, 2021, 3:52pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/116 "2021-08-27T15:52:28Z")
> [@Martin\_Hyde](#): > > If you were in the U.S. military and were not trained about the duty to disobey unlawful orders I was in USAF officer training in 1954. The unlawful orders discussion referred to mutiny and rebellion against the government. It was a very narrow subject. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [August 27, 2021, 3:56pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/117 "2021-08-27T15:56:40Z")
The text of 10 U.S. Code § 899 - Art. 99. Misbehavior before the enemy (relevant passage) reads: > (2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property The text you are quoting about justification is not part of the UCMJ (the UCMJ being defined as the statutes found in Title 10, Subtitle A, Part II, Chapter 47 of the U.S. Code.) That is text from the “Manual for Courts-Martial” which specifies guidelines for conducting military trials and etc. Legally speaking “justification” is a broad defense that can be raised as a legal defense for almost any crime, saying that the defense of justification must be overcome to convict on the charge of misbehavior before the enemy is not saying that the underlying behavior would constitute a lawful order. It is simply specifying a legal scenario where a person might be acquitted for the activity. Taking it further, a commander who might be acquitted of misbehavior before the enemy for a surrender order, on the basis of justification, that would not mean that the order itself would be found lawful in a trial of an individual soldier who disobeyed it–in fact I don’t believe it would be so found. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [August 27, 2021, 3:59pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/118 "2021-08-27T15:59:45Z")
> [@ASL\_v2.0](#): > > You are denying the explicit text of the UCMJ? > > ETA: And, again, the history of the US military, which is replete with surrenders of individuals and whole units numbering in the thousands, so often without court-martial, much less without conviction? And you’re arguing that the fact this _hasn’t_ been litigated (almost as if it’s not a crime to surrender with appropriate justification) is evidence in support of your position? > > ETA2: I mean, really, you’re basically arguing that what the Japanese did in WWII, so often fighting to the death without surrender, was not at all anomalous by US military standards, and that in fact the UCMJ and the Code of Conduct demand similar levels of resistance, even to the point of wasteful futility, from the US military? And no–I believe I’ve said that I think the prohibition on surrender is basically a codification of an aspirational value. Due to the practicalities involved I am unsurprised that I personally have found no cases in which someone was prosecuted under that law, and that no one else has brought forth details of such a case either. I haven’t said that I think it is a practical or regularly utilized law, but the OP asked about when a U.S. soldier can disobey a surrender order. The factual answer is that probably “in any case where the surrender didn’t come from the President”, since the soldier would always be able to raise the fact that there is Code of Conduct and UCMJ passages indicating he has an obligation to not surrender, and that his commanding officer had an obligation to not surrender his command. You guys are focusing a lot on the theory of someone being convicted of a crime **for surrendering** , the OP is actually asking about the inverse of that. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [August 27, 2021, 4:03pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/119 "2021-08-27T16:03:04Z")
So, by your logic, a solider could refuse an order to open fire on the enemy because the UCMJ article against murder says that it must be committed “without justification or excuse” and that, heck, just because the commanding officer has a “justification,” that only means it’s _not illegal_ to shoot at the enemy in combat, but that doesn’t mean it’s a “legal order” to shoot at the enemy in combat? ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [August 27, 2021, 4:05pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/120 "2021-08-27T16:05:32Z")
> [@Martin\_Hyde](#): > > The factual answer is that probably “in any case where the surrender didn’t come from the President”, since the soldier would always be able to raise the fact that there is Code of Conduct and UCMJ passages indicating he has an obligation to not surrender, and that his commanding officer had an obligation to not surrender his command. That’s not a factual answer, it’s your opinion. History and the law tells us otherwise. The factual answer is that if I give an order to a subordinate that is _not illegal_, then it is a lawful order, backed by the UCMJ, and they must follow it or face charges. That includes the order to open fire where justified, such as in co bat against the enemy. That includes the order to surrender where justified. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [August 27, 2021, 4:05pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/121 "2021-08-27T16:05:40Z")
> [@Crane](#): > > > [@Martin\_Hyde](#): > > > > If you were in the U.S. military and were not trained about the duty to disobey unlawful orders > > I was in USAF officer training in 1954. The unlawful orders discussion referred to mutiny and rebellion against the government. It was a very narrow subject. That’s extremely long ago so you are well out of date. The U.S. military started incorporating international agreements and standards into the UCMJ and its training after WWII, some in specific response to principles established at the Nuremberg trials, others due various conventions of later rounds of Geneva treaties we signed etc. 1954 is well before my time in the military so I can’t speak to what training you would have received, but that is also so long ago to have little bearing on modern times, the military at least in the last 40 years has made it abundantly clear you have an obligation to disobey illegal orders. If that is contrary to your experience from 70 years ago I would simply say you are very out of date. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [August 27, 2021, 4:06pm UTC](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506/122 "2021-08-27T16:06:24Z")
Cite supporting that acquittal of a crime for issuing an unlawful order is proof that the order was lawful. [Previous page](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506.md?page=5) [Next page](https://boards.straightdope.com/t/legally-when-can-us-soldiers-disobey-an-order-to-surrender/949506.md?page=7)