Well that seems to be the nub of the question. I can’t see how this can be true. If there were a universal prohibition on surrender, then perhaps no order to surrender could be lawful and thus illegitimate. But the assertion that there is no real legitimacy in any order to surrender seems to be an extraordinary assertion.
In the extreme, what prevents the POTUS from issuing such an order?
Presidential authority would be an interesting question. In theory the President cannot issue orders to the military that violate the laws Congress has passed, and the UCMJ is part of those laws. I.e. it’s illegal for a military trainer to strike a trainee, if the President felt that was “soft” and ordered an instructor to slap recalcitrant trainees, the instructor would actually be obligated to refuse–that is an illegal order. In practice the President has engaged in some uses of the military over the past 150 years, many times, that are fairly clearly outside the bounds of the law. The Presidency is going to be a weird case when discussing any law because there’s no easy precedent for stopping a President from doing something illegal save by impeachment, and impeachment only occurs with broad political support.
Not to mention the president is the Commander-in-Chief so, literally, the highest ranking person in the military.
We’ve had discussions here in the past on when a soldier can refuse an order and the bottom line always seems to be you have to be really, REALLY confident about the law to do that. You are risking a lot by disobeying and, even if you are right, the process to prove it will suck for you.
Individual soldiers may be captured. Organized military groups may be surrendered by proper authorities. They are then under control of the receiving authority. In 1942 the Dutch surrendered control of ~80,000 troops of various nations to the Japanese. “The Bridge Over the River Kwai” was a superficial handling of the event.
At the end of the war control of Japanese forces was transferred to the Allies. A surrendered Japanese battalion fought under British command against the Vichy French in Viet Nam. Japanese soldiers throughout Indonesia were utilized by the Allies to maintain order until an occupation could take place.
"I of course knew that we had been forced to keep Japanese troops under arms to protect our lines of communication and vital areas…but it was nevertheless a great shock to me to find over a thousand Japanese troops guarding the nine miles of road from the airport to the town.
— [Lord Mountbatten of Burma]"
From the link above
All of your examples are outside the bounds of the OP who was asking about U.S. soldiers. Your examples concern the surrender of Dutch forces and Japanese forces.
The examples I gave illustrate the actions of the US military toward surrendered soldiers. The Dutch surrendered thousands of American troops to the Japanese.
The point is the individual soldier does not surrender. His chain of command is surrendered to a foreign political system.
That can’t always be true.
Surely some poor guy in a foxhole has raised his arms in surrender with no command from above when all hope was lost.
And vice versa.
Suppose the Commander-in-Chief wanted to surrender, but Congress had not yet addressed the issue. So the Commander-in-Chief orders his generals to surrender. Being a civilian, he can ignore the UCMJ and issue such an order. But from the generals’ perspective, wouldn’t the UCMJ require them to disobey that order? I can’t help but wonder if the only way to legally surrender is for Congress to amend the UCMJ.
While the government system in Japan was very different we saw something like this in WWII.
When the Emperor of Japan decided to surrender a coup was attempted. The military came really, really close to stopping the Emperor. Fortunately they failed but they came within a whisker of succeeding.
I think when you get to this point you are basically at the breakdown of the government. What happens next is a huge question mark.
See @ASL_v2.0’s cite upthread:
The UCMJ does not directly prohibit a member of the U.S. Armed Forces from surrendering under all circumstances. If the President issues an order to surrender, by definition, service members receiving such an order would not be “charged by orders or circumstance to” continue fighting. And they would definitely have justification for surrendering.
As discussed extensively upthread, there is a blanket prohibition on surrender in the Code of the U.S. Fighting Force. But that was contained in an Executive Order, which by definition does not bind the President and which the President can override, and which doesn’t prohibit military personnel from obeying an order to surrender, anyway.
So…can US soldiers surrender without fear of prosecution from the US military? (really asking…what you wrote seems to go both ways)
What’s the bottom line here?
If the President orders a member of the U.S. military to surrender, and they obey that order from the Commander-in-Chief, they’re pretty safe legally.
If they decide to surrender on their own, they’re in a legally precarious position. Realistically, they probably wouldn’t be prosecuted under Article 92 for disobeying the Code of Conduct. But they technically could be. If they actually violate Article 99, they probably would be prosecuted.
The Japanese government didn’t break down at all. In fact, because of Japanese culture, the military did not surrender. A deal was negotiated where the military remained in tact and functioned in parallel with the US forces under US command.
The coup was less than Trumps’. They never got inside the building, so they just sat down and committed suicide.
Nothing in this is factual and it’s outside the scope of this thread.
Right. Also, and this IS going beyond strict GQ, I admit, let’s notice once again phrasing in the Code:
I will never surrender of my own free will. If in command, I will never surrender the members of my command while they still have the means to resist.
I parse:
Part 1: as an individual combatant, I will not make the move to surrender;
Part 2: as a commander, I could surrender the unit/post;
Part 3: but not while they still have the means to resist
And here’s where I see how it works and it goes along with the UCMJ provisions on “shameful surrender”: As the commander under fire, it is my judgement call whether the members of the command still have “means to resist”. When I take on this job I am taking upon me, and relieving them from, the burden of making that call, and if we live to see the shores of America in a later day, I will stand before a board of inquiry or court martial to determine if that was truly so. Thus it can be right both for General King to expect to stand before a court martial for it, and for the Army to say “we’re not going to go after him for that”.
In the 1960s intelligence-ship Pueblo incident, after repatriation the crew faced boards of inquiry, and courts martial were recommended for the CO and the Communications Officer for surrendering with minimal resistance, and failing to destroy classified material. The Navy Secretary decided within his authority and discretion to not do so, and the CO stayed in the Navy until retirement.
I have the same sense/parsing as above. The idea that US servicemembers do not surrender, never mind “culture” or how the Code of Conduct gets pitched at annual training seminars via PowerPoint, is ahistorical. Not only ahistorical, but potentially dangerous.
At the extreme, that may lead to something like what the Japanese forces did during WWII, throwing their lives away for minimal gain in obvious no-win scenarios. In more mundane circumstances, it has the potential to be psychologically damaging to those who do actually find themselves in the position of having no realistic choice but to surrender, then being racked with guilt before they even have the chance to return home and have it explained to them that no, actually, what you did was more like being captured with extra steps, not a surrender. Which may in turn make it more difficult to endure captivity, and to reintegrate with US forces when repatriated. I am told (no cite, it was just part of the training I received) that something along these lines happened to the ranking NCO (among those captured) with the 507th maintenance company who, trapped under a vehicle with a couple of companions, surrounded, and having only one barely functional weapon between them (they couldn’t even fire it semi-auto: they had to manually load one round at a time, fire, and then load another round), chose to surrender. Supposedly, because he and his companions still had the means to offer some nominal resistance at the time he gave himself up, he became convinced over the course of just a few days in captivity that he had failed to live up to the expectations of the Code of Conduct.
While it maybe a reasonable parsing to say that the individual servicemember, as a subordinate, does not get to make the call to surrender on their own, this cannot possibly be interpreted as a prohibition against the senior officer, NCO, or servicemember in charge of a group of soldiers (or just themself, if alone and without means of evasion or escape) making a deliberate decision to weigh the means of resistance remaining, the odds of achieving anything significant if resistance is offered or maintained, and then concluding that the nation’s interests are best served by preserving the lives of those under their command through surrender, if surrender is an option at all. And understand that, yes, if they make a bad call, then they stand to be court-martialed for their poor decision making, not unlike someone claiming to exercise self-defense in a situation where they were not justified to do so.
So… my personal sense would be that if the senior person judges that the appropriate thing to do is to surrender, then they are legally permitted to order such a surrender. That makes it a legal order. Refusal to obey a legal order would make one subject to court-martial. And why not? If the senior person person correctly assesses that the nation’s interests are best served by preserving the lives of those under their command through surrendering to the enemy, and one of their subordinates threatens to get them all summarily executed by, say, firing on the enemy even as their fellows seek to surrender in good faith, then that’s something I’d imagine we’d want to be able to take punitive action against (assuming anyone survived to tell of it, much less face a court-martial).
I always wonder why, in situations like this, they cannot manage to destroy classified material in time?
Probably something for another thread.
I think the problem is there is a continuum where a surrender happens.
There is the lone soldier left who is surrounded that decides to surrender…to a general (or highest ranking officer on the scene) surrendering his whole army.
We can come up with loads of in-between cases but I think think these are the edge cases. Soldiers between these (probably) won’t be busted. But maybe so if you (general “you”) want to make that case.
Which is pretty much true for almost any complex question in life. This is why we have humans involved. Any sort of black and white reading of such issues is going to be, at best, a waste of time. Expecting the world to operate in a simple easy manner is just naive.
There are experienced humans that make the call on whether to prosecute and we assume the guys at the pointy end of the problem are smart enough to realise that the best interests of their country are not well served by not thinking.
Legally a soldier must obey any order, including surrender, if so ordered by their chain of command so long as that order is not unlawful. I don’t think any court is going to go after an officer who is following orders to surrender. However, the commanding officer who makes such and order is very much in danger of being charged with article 99 of the UCMJ (Misbehavior before the enemy - shameful surrender) which is a very serious crime that would likely result in a long jail sentence and a dishonorable discharge. A soldier who does disregard an order to surrender may find himself in an article 92 court marshal (failure to obey orders or regulations). As far as I know no military member has ever been charged for following orders legal or otherwise in the United States.