387. Memorandum From the Associate Justice of the Supreme Court (Fortas) to President Johnson1


The analysis and recommendations2 are based, almost entirely, upon an assessment of U.S. public opinion and an unspoken assumption as to the effect that should be given to it. I am in total disagreement.
We should not assume that the American public are unwilling to sustain an indefinitely prolonged war. If we should so assume, we should not agree that it is either honorable or sensible for the administration to acquiesce in this and to base military decisions upon that assumption unless and until the people through Congress or the polls make it impossible for this administration to do what it considers to be right in the national interest.
Our duty is to do what we consider right—not what we consider (on a highly dubious basis with which I do not agree) the “American people” want. (I repeat that I believe they do not want us to achieve less than our objectives—namely, to prevent North Vietnamese domination of South Vietnam by military force or subversion; and to continue to exert such influence as we reasonably can in Asia to prevent an ultimate Communist take-over.)
Our strategy should be to exert increasing and continuing pressure on the North Vietnamese; and to increase our destruction of the Viet Cong by increased and more diversified military effectiveness and civil conversion in the South. Our target should be a cessation of organized military operations against us and the South Vietnamese, coupled as soon as possible with a South Vietnamese program designed, perhaps, to eliminate the NLF as an operating force either by viable coalition or by destroying its structure. “Negotiation” is not an objective or a target. It is a propaganda symbol that we should keep alive. It is a possible (but not probable) stage toward achieving our objective; and it is a probable (but not certain) tactic that the enemy will adopt.
I can think of nothing worse than the suggested program—stating that we are going to “stabilize” our level of military effort and halting the bombing. This is an invitation to slaughter. It will, indeed, produce demands in this country to withdraw—and, in fact, it must be appraised for what it is: a step in the process of withdrawal. And, in my opinion, it means not domestic appeasement, but domestic repudiation [Page 992] (which it would deserve); a powerful tonic to Chinese Communist effectiveness in the world; and a profound retreat to the Asian dominoes.

Again, I can only repeat that the proposal to halt the bombing makes no sense. Its domestic good-effects would be illusory. It’s not what the “doves” really want: the leaders want us to quit seeking our objective in Vietnam and Asia; the ordinary doves—the masses on that side—want us to achieve our objectives, to halt Communism, to defend Asia, but to do it without inflicting or receiving the wounds of battle. If we halt bombing, our armed forces are exposed; our pressure on North Vietnam is at an end; we will have given the Communists victory which they will exploit and escalate.

On the other hand, if Hanoi wishes to talk or to de-escalate, it is preposterous, I submit, to suppose that they are waiting for a signal—and that the only signal acceptable is a halt in bombing!

I must frankly state again that I am not convinced that our military program in South Vietnam is as flexible or ingenious as it could be. I know that new proposals have been sought from our military. But perhaps a new and fresh look, including new people—civilians as well as military—might be warranted.
Abe Fortas3
  1. Source: Johnson Library, National Security File, Country File, Vietnam, March 19, 1970 Memo to the President. Top Secret.
  2. A reference to Document 375.
  3. Printed from a copy that bears this typed signature.