Indeed. During the opening days of the Ardennes Offensive in December 1944, two regiments of the 106th Infantry Division were quickly cut off by the advancing Germans. The commander of the 422nd Infantry Regiment, Col. Descheneaux, orchestrated the surrender of both his and Col. Cavender’s 423rd Infantry Regiment to the Germans:
After an abortive attempt to break out of their encirclement at the village of Schoenberg, both Descheneaux and Cavender had decided that further resistance was futile.
“I’m going to save as many men as I can, and I don’t give a damn if I’m court-martialed,” Descheneaux said. It was agreed that Lt. Col. Frederick W. Nagel, the wounded executive officer of the 423rd, would negotiate for both regiments, since he spoke German. The German lieutenant whom Nagel brought back to the American lines with him could not speak English but did speak French, a language Descheneaux understood, so the commander of the 422nd himself worked out the details. By the afternoon of December 19, Descheneaux and Cavender had surrendered their regiments- the largest mass surrender of US troops in the ETO.
I’ve never heard that the US Army actually considered court-martialing Descheneaux.
The surrender is negotiated by those in command, not the troops. It is a contract between those in authority that is binding on their organizations. So, the troops may not disobey the order.
The American military units that were surrendered to the Japanese by the Dutch authorities were legally bound not to resist.
The soldiers are bound by the contracts of those in command.:
Can we actually get a cite for there being large numbers of U.S. troops under “Dutch command” that were surrendered to the Japanese? That’s an area of the war I’m not super familiar with, but I’d like to see more evidence for it than just your word–the movie Bridge Over the River Kwai that you referenced for example was a fictionalized portrayal of the building of the Burma Railway, which as I understand it was primarily done by POWs surrendered to the Japanese by the British as part of the British surrender to Japan in Burma, which was a British controlled territory–the Dutch East Indies were primarily in modern day Indonesia and a few other countries in that general archipelago.
Also your general premise is simply not correct as per U.S. law. There is no support in law that U.S. commanders can enter into “contracts that bind the soldiers under their command”, if those contracts are not approved by the political leadership of the country and are not inherently legal. In the case of the U.S. surrender in the Philippines for example it was explicitly disallowed by General King’s commanding officer, General MacArthur. There would be no sanction for soldiers disobeying an order that was not valid legally.
That article is not very specific and counters some of what you’ve said. For example it points out that the soldiers there were under a unified allied command structure lead by the British, so it would not have been a Dutch commander who made the ultimate decision–that was one thing that threw up a red flag for me since most theaters were under the command of a General of one of the “major” Allied powers (i.e. U.S., U.K., U.S.S.R–countries like The Netherlands not so much.)
“On 12 Mar 1942, at Bandung, the British, Australian, and American commanders joined the Dutch government in the official surrender ceremony; Lieutenant General Masao Maruyama accepted the Allied instrument of surrender.”
This official history of the event suggests that only one battalion of Field Artillery had made it to the Dutch East Indies, and that the ultimate decision to surrender them fell to their U.S. Commander–Lt. Col. Blucher S. Tharp. While what you have said in this thread may be true for the Dutch and British soldiers, it is not accurate that members of that battalion under Tharp would be acting illegally had they continued to fight in contravention of his orders. American prisoners also only numbered 550 or so from this incident, an extremely small % of the 60,000+, for point of reference.
It’s a movie mostly about British soldiers and with British actors. You seem to have repeatedly missed the point the OP was asking about the U.S. military, the British military, and in fact the entire country of the United Kingdom have laws entirely different and independent of U.S. laws. So what may be true for them, cannot be assumed a universal maxim that applies in the United States.
Perhaps you could clarify that. The allies each leant their authority to the surrender document. The Dutch surrendered Java to the Japanese. 550 American troops were bound by that contract and ended up as prisoners of the Japanese. I believe that is in keeping with my post.
That random Yahoo page you linked which isn’t backed up by any easily sourced alternative data that I could find lacks significant clarifying details. The official U.S. military history says Tharp surrendered because without the Dutch he had no ability to continue fighting with only 500 or so men versus basically an entire Japanese army. If, while he was a POW, he signed some document, it has no particular legal value under U.S. law. Basically unless Tharp was ordered through the chain of command going up to the civilian leadership of the United States to surrender, nothing about that surrender was a “legal order” to his troops, and they would have been entirely within both the rights and the code of conduct to continue fighting on their own.
So sans evidence FDR ordered Tharp to surrender, the surrender was not strictly a legal order.
As a matter of praticality, most individual soldiers are not going to question Tharp’s judgement to allow themselves to be captured, due to the impossibility of the situation. It would more be seen as Tharp put forth that they should surrender, and his men agreed. But under written U.S. law they had no legal obligation to obey. The more practical obligation they had to obey the order is they would be killed if they didn’t, by the Japanese.
And you seem to not be aware–under the U.S. military’s legal system an order that isn’t legal, has no legal authority. It is really that simple. You can choose to follow it, but you can’t be punished for not following it. If you’re asking for a link to it not being a legal order–you need to read the thread, it has already been provided and clearly shown that the UCMJ prohibits surrendering a command.
I’d need to know what “link” you want about Tharp, beyond the official U.S. Army history of the East Indies campaign, which has already been provided.
And you are now saying something else that is factually incorrect–you do not obey an illegal order and “contest it later.” That is not the standard of behavior in the U.S. military.
The OP’s question is a factual one: Legally when can a U.S. soldier disobey an order to surrender?
The answer isn’t actually that complicated–U.S. soldiers can only disobey orders in a few circumstances, the circumstance that would apply here would be to the legality of the order. As per the UCMJ, a surrender order issued under the personal judgement of a commander, is not a legal order under the UCMJ. While we’re not familiar with anyone being punished for it (largely because such incidents have always happened in untenable situations I doubt anyone would want to punish soldiers for), technically officers like Tharp, King etc could have faced court martial for their surrender decisions.
So the only time it would be illegal to disobey a surrender order is when the surrender order is legal. The only clear case for a legal surrender order would likely be one set down by the civilian side of the military leadership (i.e. POTUS down through his SecDef) as a matter of U.S. policy, which would via virtue of the POTUS being Commander-in-Chief likely trump other legalities.