TOP SECRET

Office of the Attorney General

Washington, D.C. 20530
August 3, 1945

MEMORANDUM FOR THE PRESIDENT

FROM: THE ATTORNEY GENERAL

SUBJECT: Legal Opinion Concerning a Proposed Atomic Strike in

Hiroshima, Japan

I have been asked by the Interim Committee to render a

legal opinion on the proposed use of an atomic bomb against
Japan. Secretary Stimson and I have discussed the alternative
military options under consideration to include upholding our
naval blockade, bolstering conventional aerial bombardment of
Japan’s critical infrastructure, and potentially, an Allied
invasion of Kyushu as soon as November. Yet, as this brutal war
mercifully nears its end, there appears no sure path toward
securing unconditional surrender without great cost to humanity.

In the throes of inevitable defeat, Japan remains a

formidable threat, ostensibly bent on fighting through to the
bitter end. Our Navy is a frequent target of kamikaze attacks
while operating under perpetual risk of destruction by submarine
torpedo; a fate that tragically befell the USS INDIANAPOLIS and
nearly 900 of her crew last week. Meanwhile, more than 3,000
U.S. Army soldiers died last month in the Pacific theater.

Undoubtedly, the longer we remain at war with Japan, the

more American boys will die. This much is clear. We are less
clear, however, on whether the political will of Hirohito and
his advisors will endure and if so, for how long. Several
senior U.S. officials including General Lemay believe that the
Red Army’s imminent declaration of war against Japan coupled
with the crippling effects of our blockade and conventional air
strikesi may be enough to secure victory. The Japanese economy
and populace are already under “tremendous strain”.ii Perhaps in
short order, Hirohito’s desire to preserve a semblance of
national polity will overwhelm hardliners in his orbit who are
fixed on a more dire course, impervious to the suffering of the
Japanese people.

But such capitulation cannot be presumed with any degree of

certainty, let alone within a reasonably short and predictable
timeframe. Indeed, Japan’s non-response to the Potsdam
Declaration suggests that she is not yet ready to surrender on
acceptable terms. It stands then to reason that without the use
of atomic weapons, the war will continue for an indeterminate –
albeit not insignificant – period of time. This in turn could
lead to thousands of additional American deaths, even if an
Allied invasion of Kyushu ultimately proves unnecessary. Of
course, if the allies must invade Kyushu, many more thousands of
American deaths would be likely during combat with a ground
component recently described by the Chiefs as “Japan’s greatest
military asset.”iii

Although the widescale devastation, death, and misery

portended by an atomic strike is morally troubling, the balance
of information presented suggests it is the course of action
most likely to force a swift and politically favorable
conclusion to the war while at the same time preserving American
lives. Of course, the sheer power and destructive capability of
an atomic strike must not be glossed over or understated. The
plutonium weapon tested at Alamogordo on 16 July produced a
yield equivalent to 15,000 to 20,000 tons of TNT.iv General
Groves described the effects of the so-called Trinity test as
“unprecedented, magnificent . . . and terrifying”.v Although not
yet tested, a uranium fission bomb is expected to generate a
similarly destructive yield. But no matter the atomic fuel, the
projected force and blast radius of an atomic strike would
utterly obliterate the Target Committee’s list of proposed
targets including Hiroshima, Yokohama, Kokura, and Nagasaki.vi

The principal target – Hiroshima – is a densely populated

communications hub, shipping port, and military industrial
center of approximately 350,000 people.vii According to
intelligence reports, thousands of Japanese military personnel
are stationed in Hiroshima on assignment to Field Marshal
Shunroku Hata's Second General Army, the 59th Army, the 5th
Division, and the 224th Division. As with most Japanese cities
and military concentration areas, Hiroshima is reportedly
defended robustly by anti-aircraft guns. Notwithstanding
Hiroshima’s military importance, the city is also home to
thousands – perhaps hundreds of thousands - of civilians
including women and children, many of whom would perish in an
atomic strike. Indeed, the novelty of atomic warfare renders
casualty estimates largely unpredictable and unreliable, but
suffice to say, if Hiroshima is struck with a weapon of similar
power to the one tested at Alamogordo, the demise of a sizeable
portion of Hiroshima’s 350,000 inhabitants would be highly
probable.

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 As a nation obliged by the rule of law, the notion of an
atomic strike and its foreseeable effects demand scrutiny under
the international laws of war. But alas, the nature of warfare
has changed drastically since the international community last
codified the laws of war at The Hague Convention of 1907. To be
sure, there is presently no international treaty in effect that
specifically addresses air warfare, much less atomic warfare. I
am not proposing that the international laws of war are now
moot. Rather, to the contrary, they remain vital guideposts in
modern warfare. But to draw legal conclusions from such an
antiquated legal regime is an inherently imprecise endeavor
destined to be colored by opinion and conjecture.

Nonetheless, it is an endeavor that must be undertaken,

particularly given the gravity of the stakes. As such, I am
obliged to examine the international laws of war as governed by
a series of seminal agreements: The Hague Convention of 1907 and
its forerunners of 1899 and 1864. Despite the passage of time
since The Hague Conventions entered into force, no major party
has withdrawn or refuted the Conventions’ applicability to the
current war. Both the U.S and Japan are parties to The Hague
Conventions. Thus, as a threshold matter, The Hague Conventions
must be presumed as good law.

Turning now to the legal text, a question of central

importance is the applicability of Article 25 of the 1907
Convention’s provisions on “Laws and Customs of War on Land”
(Hague IV) to aerial attacks in population centers.
Specifically, Article 25 prohibits “artillery attack . . .
against undefended towns, villages, dwellings, or buildings.”
As noted, air warfare was not considered at The Hague
Conventions, but the similarities between artillery strikes and
air strikes are nonetheless undeniable. Both methods of attack
typically involve heavy munitions fired from a distance,
resulting in a higher risk of civilian casualties in comparison
to conventional means of ground warfare. Ultimately, however,
the underlying purpose of Article 25 seems less about regulating
modes of attack than it is about the protection of “undefended”
civilians from indiscriminate bombing. This humanitarian
principle translates equally between both artillery strikes and
air strikes.

Indeed, legal developments over the last three decades

reinforce the proposition that Article 25 applies to air
strikes. The Hague Draft Rules of Air Warfare of 1923
transposed to air strikes language which is virtually identical
to Article 25. While not ratified nor widely accepted as
customary international law, The Hague Draft Rules of Air
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Warfare of 1923 may nevertheless reflect the mindset of the
international community vis-à-vis the protection of undefended
civilians during air strikes. Also of note, the Greco-German
arbitration tribunal of 1927–30 condemned German air strikes on
neutral cities during the Great War on the basis that the
attacks violated Hague IV. Likewise, indiscriminate air strikes
by Germany during the Spanish Civil War and by Japan during the
Second Sino-Japanese War were denounced as illegal by the League
of Nations in a 1938 resolutionviii calling for the protection of
civilians from aerial bombardment.

In light of the above, it is my belief that Article 25 is

germane to air attacks generally and therefore deserving of
examination in the present context. Of course, by admitting
Article 25 as applicable to air attacks, there nonetheless
remains the requirement for a target to be "undefended" in order
for an air attack to be prohibited. Neither The Hague
Conventions nor any subsequent legal instrument restricts
attacks on defended targets.

State custom and practice suggests that for the purposes of

aerial attack, an objective need only be minimally defended to
qualify as a lawful military target. To be sure, cities like
Chongqing, Warsaw, Rotterdam, London, Coventry, Hamburg,
Dresden, and Tokyo have been bombed extensively throughout the
war, despite having relatively light defenses and large civilian
populations. Perhaps to some degree, air strikes in population
centers during the war have contributed to a legal context which
has eroded protections that may once upon a time have been
presumed as customary for civilians. In any case, Article 2 of
Hague IV seems to support liberal bombing in lightly defended
urban areas by explicitly allowing targeting of “workshops or
plants . . . utilized for the needs of the hostile fleet or
army.”

The Allied and Axis air attacks on population centers

throughout the war merits comprehensive post-war review and an
international Convention to define the rules of air warfare in a
manner that mitigates indiscriminate targeting in future
conflict. But nevertheless, as the international laws of war
presently stand, States own a great deal of discretion to
conduct air strikes on targets that are at least nominally
defended.

Accordingly, Article 25 does not, in my opinion, restrict

the targeting of Hiroshima insofar as it is a city defended both
by enemy military personnel and anti-aircraft guns. The
prevalence throughout Hiroshima of military headquarters,
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military personnel, and industrial centers mass-mobilized to
support the war effort lends further weight to its legitimacy as
a military target. The Target Committee’s secondary targets
(Yokohama, Kokura, and Nagasaki) may also be unencumbered by
Article 25, albeit not as convincingly as Hiroshima.
Regardless, each secondary target proposal should be separately
reviewed for legal compliance prior to attack.

Article 25 is not the only provision of Hague IV worthy of

review. Article 26, for instance, requires “. . . the person in
command of an attacking force to do all in his power to warn
opposition authorities of a pending attack”, ostensibly for the
purpose of protecting civilians in harm’s way. There is,
however, no explicit requirement to provide warning as to the
location or form of an impending attack. I submit, therefore,
that Article 26 is satisfied by the Potsdam Declaration combined
with extensive leaflet drops warning of impending air attacks in
cities across Japan. Although neither the Potsdam Declaration
nor the leaflet drops specifically warned of an attack on
Hiroshima, the dire implications of forthcoming U.S. actions are
readily discernible, and yet have nonetheless been ignored by
Japan.

Furthermore, Article 27 requires an attacking force to take

“all necessary steps . . . to spare, as far as possible,
buildings dedicated to religion, art, science, or charitable
purposes, historic monuments, hospitals, and places where the
sick and wounded are collected.” It could reasonably be argued
that the Potsdam Declaration again constitutes the “necessary
steps” to spare such places from destruction in an atomic
strike. Article 2’s explicit authorization to target “workshops
or plants . . . utilized for the needs of the hostile fleet or
army” likewise foreshadows the inevitability that buildings
listed under Article 27 will be collaterally impacted in an
attack on a population center. But regardless, Article 27 also
imposes a burden on the besieged to “. . . indicate the presence
of such buildings or places by distinctive and visible signs,
which shall be notified to the enemy beforehand.” Japan has
taken no such action to notify the U.S. of buildings that
qualify for protection and has thus forfeited any protections
that may otherwise have existed under Article 27.

Additionally, it bears noting that Article 23 prohibits the

employment of "arms, projectiles, or material calculated to
cause unnecessary suffering". This prohibition, however,
applies specifically to expanding ammunition and excludes
explosives contained in artillery, mines, torpedoes, and hand
grenades. While an atomic strike is undoubtedly intended to
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produce mass death and destruction, its’ purpose is not to cause
superfluous pain and injury. An atomic strike is factually more
akin to an attack with explosives carried by torpedo or
artillery, but on a much grander scale. In contrast, certain
forms of small ammunition may be designed to fragment in the
human body for the sole purpose of inflicting gratuitous pain on
a targeted individual – these are the types of munitions covered
by Article 23. As such, Article 23’s prohibitions do not, in my
opinion, translate to an atomic strike.

An especially worrisome side effect of atomic warfare is

radioactive fallout. Dr. Oppenheimer has previously opined on
the potential for deadly and injurious radioactivity following
an atomic strike, but the extent of that risk remains largely
uncorroborated.ix The international laws of war do not address
radioactive fallout. Notably, however, The Hague Convention of
1899 includes a “Declaration on the Use of Projectiles the
Object of Which is the Diffusion of Asphyxiating or Deleterious
Gases”, which requires the parties to abstain from using weapons
". . . the sole object of which is the diffusion of asphyxiating
or deleterious gases." Some may equate radiation to an
“asphyxiating or deleterious gas”, but even so, the “sole
object” of an atomic strike is most certainly not for the
purpose of introducing radioactive effects on survivors. Thus,
the 1899 Declaration bears no applicability here, in my
estimation. Nevertheless, as we enter a new atomic age, the
effects of radioactivity indeed merit further scientific study
and appropriate post-war legal regulation.

In view of the foregoing, an atomic strike on Hiroshima

does not, in my opinion, violate the international laws of war.
Accordingly, I have no legal objection to the Interim
Committee’s proposal to strike Hiroshima. I will, however, note
that international legal scholars may reasonably disagree with
the legal conclusions reached in this memorandum. Indeed, the
first-ever use of an atomic weapon will undoubtedly attract ex
post facto scrutiny from across the political spectrum, American
populace, and international community. It is, therefore,
advisable to consider strike execution in a manner that
preserves space on the moral high ground and a stronger position
under international law. Toward that end, I offer several
recommendations below.

First, I recommend due attention to General Marshall’s

proposal to strike an exclusively military target such as a
“large naval installation.”x A first-strike on a military base
would prove the atomic bomb’s overwhelming power; inflict heavy
belligerent casualties; degrade enemy warfighting capability;
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and abate legal and moral criticisms that will inevitably follow
an atomic strike in a civilian population center. If General
Marshall’s proposal is deemed insufficient, I recommend choosing
a precise point of attack with a clear-cut military nexus as
opposed to one that affords maximum destruction and
psychological effect. In Hiroshima, for instance, the Second
General Army Headquarters may be ideally suited to serve as a
point of attack. Of course, no matter the exact location of the
drop, an atomic strike in Hiroshima will have a devastating
effect – phsycally and psychologically – on the entire city.
But nevertheless, pinpointing release on a military site would
lend credence to our legal and moral bases for attack.

Second, I recommend retaining weapons release authority at

the Presidential level until the last possible moment in order
to preserve the ability to abort or postpone attack if it
becomes necessary based on dynamic political and military
conditions. Likewise, to the extent weapons release authority
must ultimately be delegated before an attack, I recommend that
delegation extend only to a single attack on a pre-determined
target. Approval authority for subsequent attacks would revert
to the Presidential level, thereby affording ample opportunity
for post-strike political engagement, battle damage assessment,
and a deliberate, fully-informed decision regarding the need for
a follow-on attack. To be sure on the necessity for a
subsequent strike, I urge advance preparation of a sequel to the
Potsdam Declaration to be immediately released following an
initial atomic strike wherein Japan is dually warned to
surrender unconditionally within a specified timeframe or face
further attacks.

Finally, as referenced throughout this memorandum, it is

past time the international community revisit and update the
laws of war in a Convention that both reflects the realities of
modern warfare and affords greater protections to non-
combatants. Peace may soon be upon us, but so too is an atomic
age rife with new and complicated legal challenges. Some have
suggested that a U.S. atomic monopoly is unfeasible and that an
atomic strike on Japan will set off a nuclear arms race to
Armageddon.xi Indeed, this is a valid concern, but I remain
hopeful that properly regulated nuclear power will deter
aggression and preserve peace. As the world’s preeminent
superpower, U.S. leadership in the atomic age must necessarily

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be underpinned by the rule of law. Indeed, we are the stewards
of our ultimate destiny and history will be our judge.

Timothy G. Boyle
Attorney General
i Headquarters XXI Bomber Command, “Tactical Mission Report” of 10 March 1945,
Curtis LeMay Papers. In General LeMay’s report on the firebombing of Tokyo
(“the most destructive air raid in history”), he states that sustained
firebombing will ultimately defeat Japan. Interestingly, he also claims that
the the purpose of the Tokyo raid was to destroy industrial and strategic
targets and “not to bomb indiscriminately civilian populations.”

iiCombined Joint Chiefs of Staff, “Estimate of the Enemy Situation (as of 6

July 1945)”, 8 July 1945. This review of Japanese capabilities and intentions
depicts an economy and society under “tremendous strain”; nevertheless, “the
ground component of the Japanese armed forces remains Japan’s “greatest
military asset.”

iii Id.

iv Report on the Trinity Test by General Groves of 18 July 1945

v Id.

viMemorandum from Major J. A. Derry and Dr. N.F. Ramsey to General L.R.
Groves, “Summary of Target Committee Meetings on 10 and 11 May 1945,” 12 May
1945. This memorandum describes discussions among Target Committee members
related to bombing mission requirements and target selection, including
priority cities (“a large urban area of more than three miles diameter”). As
for target cities, the committee identified Hiroshima, Yokohama, Kokura
Arsenal, and Kyoto. Japan’s cultural capital, Kyoto, has since been removed
from the list by recommendation of Secretary Stimson. Nagasaki has been added
to the list as a potential target.

vii Id.

viiiProtection of Civilian Populations Against Bombing From the Air in Case of

War, Unanimous resolution of the League of Nations Assembly, 30 September
1938.

ixMemorandum from J. R. Oppenheimer to Brigadier General Farrell, May 11,

1945. In this short memorandum to General Groves’ deputy, General Farrell,
Here, Dr. Oppenheimer explains the need for precautions because of the
radiological dangers of a nuclear detonation. Dr. Oppenheimer assesses that
the initial radiation from the detonation would be fatal within a radius of
about 6/10ths of a mile and “injurious” within a radius of a mile.

x Assistant Secretary of War John J. McCloy, “Memorandum of Conversation with

General Marshall May 29, 1945 – 11:45 p.m.,” 30 May 1945. General Marshall’s
proposal to strike against a military target such as a “large naval
installation” is documented here. If that did not work, Marshall proposes
targeting of manufacturing areas, but only after warning inhabitants.

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Marshall noted the “opprobrium which might follow from an ill considered
employment of such force.”

xiLetter, O. C. Brewster to President Truman, 24 May 1945, with note from

Stimson to Marshall, 30 May 1945, attached. O.C. Brewster’s letter analyzes
the danger and unfeasibility of a U.S. atomic monopoly. He raises the
prospect of “inevitable destruction of our present day civilization” and
assessed that once the U.S. uses the bomb in combat other powers would not
tolerate a monopoly. He claims the U.S. would “be the most hated and feared
nation on earth.” Even close allies would pursue the bomb because “how could
they know where our friendship might be five, ten, or twenty years hence.”
Arms races will be certain unless the U.S. works toward international
supervision and inspection. He writes that it would be better to take U.S.
casualties in “conquering Japan” than “to bring upon the world the tragedy of
unrestrained competitive production of this material.”