Foreign Relations of the United States, 1969–1976, Volume VI, Vietnam, January 1969–July 1970

155. Memorandum From the President’s Assistant for National Security Affairs (Kissinger) to President Nixon ¹

Washington, December 6, 1969.

SUBJECT

• My Lai Atrocities

At Tab A is a memorandum from Bryce Harlow through me to you conveying information on a proposal made by Senators Stennis and Margaret Chase Smith.² The proposal would ask you to constitute a Presidential commission to assemble all the facts of the My Lai incident. While the suggestion was apparently made in an effort to be helpful and to deflect other Congressional activity, I am not convinced that it would accomplish its purpose. Rather, I suspect it would tend to prolong public interest in the incident which has hopefully already reached its peak. As you know, there is some evidence that public pressures are now building which could discourage further press speculation on the incident.

If you were to establish a Presidential commission at a time when court martial proceedings are already underway, it would be difficult to see how meaningful testimony could be assembled without some conflict with the juridical proceedings and perhaps³ claims by the defense counsels that the Executive Branch had instituted duplicatory proceedings which jeopardized the rights of their clients. The establishment of a commission might also be interpreted as a lack of confidence by you in the military’s ability to police its problem and thereby contribute to suspicions that we are dealing with an even more fundamental breakdown in military standards and discipline. Furthermore, once the commission report is publicized a new rash of controversy could develop over its findings no matter what they might turn out to be. Conversely, the legal proceedings now underway would more than likely result in severe punishment that would have a conclusive character which would tend to limit public speculation. The court martial also tends to reinforce the isolated character of the incident.

Notwithstanding, there is a trend which may build in the wake of the My Lai incident which might further influence your judgment on how to proceed.

If other incidents continue to crop-up because My Lai has resurrected real or imagined recollections of atrocities by other veterans, then you will no longer be dealing with a single phenomenon. Should this situation develop, then I believe you should convene a commission since we will be dealing with an even more fundamental problem for which a military court would not be appropriate.

Finally, it is possible that regardless of your decision, the Congress might proceed on its own and confront you with a resolution calling for a Presidential commission to investigate My Lai. In this event, it might be propitious to preempt them by promptly appointing a commission of your choice.

Recommendation:⁴

1. That you not appoint a commission to assemble facts on My Lai until we have had an opportunity to assess the phenomena a little longer.

2. That if the Congress moves on its own or if additional atrocities appear to be surfacing, you proceed with the appointment of a commission.

3. That a contingency plan be prepared now which will enable you to move promptly in the event you decide to appoint a commission.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Box 334, Subject Files, Items to Discuss with the President, 8/31/69–12/30/69. Secret; Sensitive. A handwritten notation by Kissinger reads, “Let’s get list of names for commission”; a handwritten notation by Nixon reads, “To K.” On November 21 Kissinger and Laird discussed the Mai Lai atrocity. (Notes of a telephone conversation, November 21, 3:50 p.m.; Library of Congress, Manuscript Division, Kissinger Papers, Telephone Conversations, Chronological File)
2. Dated December 3, attached but not printed. In this memorandum, Harlow informed Kissinger that he had discussed the proposition of a commission with Haig and David Packard and they both thought “poorly of the idea, principally on the grounds that the Commission’s report would extend the atrocity story into the future.”
3. Nixon underlined the rest of this sentence beginning with “claims”; he also underlined the last half of the following sentence.
4. Nixon initialed the approve option. In a December 8 memorandum to the President, Kissinger responded to Nixon’s request to suggestions from Moynihan that the President empanel a group of “wise men” to judge what went wrong at My Lai and declare a national day of prayer for the victims. Kissinger responded: “For you to follow either of these suggestions would be tantamount to a Presidential declaration of the guilt of the accused, without benefit of trial. The last thing we want is defense counsel citing a Presidential statement or action when making a plea that the accused’s right to a fair trial has been prejudiced.” Although Kissinger thought it was a “close decision,” he suggested as long as the atrocity was “confined to My Lai, there should be no commission. If another incident surfaces, then a commission was called for.” Nixon wrote “I agree” at the end of that memorandum. (Library of Congress, Manuscript Division, Kissinger Papers, Box CL 287, Memoranda to the President, December 1969, I) Moynihan’s memorandum to the President, November 25, is in the National Archives, Nixon Presidential Materials, NSC Files, Box 118, Vietnam Subject Files, Vietnam—Lt. Calley Case (Mai Lai Atrocity).