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ARTICLE INDICTING MITCHELL ILLEGAL, COUNSEL CHARGES

Unconstitutional If It Denies Right of Free Speech, Reid Asserts.

TRUTH OF STATEMENTS NOT QUESTIONED. HE SAYS

Department Defends Separation of Military Authority as Legal and Necessary.

[[strikethrough]] [[?]] [[/strikethrough]] 10/25/25
By the Associated Press.
 The 96th Article of War, under which Col. William Mitchell of the Army Air Service has been indicted for court-martial by the War Department, may itself be brought to trial.
 This possibility developed last night when Representative Reid of Illinois, counsel for the air officer, made public two statements challenging the constitutionality of the article, although he failed to reveal any indication of the procedure he would follow when the trial begins Wednesday. 

Free Speech Issue.

 "The right of freedom of speech is undoubtedly guaranteed by the Constitution," Mr. Reid said, "and if the 96th Article of War abridges that right it is unconstitutional and void."
 In the second statement, Mr. Reid invited attention to the fact that although his client had been charged with conduct prejudicial to good order and military discipline by issuing certain statements in violation of the 96th Article of War, the truth of such statements were not questioned in the charge.
 "If the construction attempted to be put upon that article by the War Department is allowed to prevail," he added, "it will set at naught the Constitution of the United States, and the Army and the War Department will become a law unto themselves, which will never be permitted under our form of government."

Calls Statements "Mild."

 Mr. Reid asserted further that the War and Navy Departments had previously been subjected to vigorous criticism from within and that the statements made by Col. Mitchell "are mild compared to those of Gen. Hooker, Gen. McClellan, Col. Theodore Roosevelt and Admiral Sims, which were published broadcast, yet no disciplinary action was ever taken against them.
 "Rome endured as long as there were Romans; America will endure as long as there are Mitchells," the Illinois member said.
 War Department legal officers declined to argue the question of constitutionality, but their conviction that no court would agree with the Illinois representative was clearly indicated. It was pointed out in this connection that freedom of speech, even though secured by the Constitution, is not an absolute license to speak anything a person pleases, free from legal liability, either civil or criminal. Precedent for this position by the courts could be cited, it was intimated, if the necessity arose.  

Separate Military Case.

 In a general way the opinion was obvious that Federal court decisions dealing with questions raised under military law tend to show conclusions that a separate military code to deal with military offenses is not only essential but legal. In drafting the articles of war it was pointed out, Congress saw fit specifically to denounce certain crimes and to group others under such a provision of law as the 96th article, described by Mr. Reid as a "catch-all."
 Discussing Col. Mitchell's attitude on the question of free speech, Mr. Reid said the officer "stands for the belief that in time of peace soldiers and sailors have the right to offer constructive criticism which they believe wil work for the best interests of their services."
 The officer's civilian counsel referred also to the "appalling condition in our Air Service," and asserted that "the many fatalities and accidents are practically attributable to maladministration."

NAME OF PAPER NY TIMES
OCT 25 1925
MITCHELL DEFENSE TO BE FREE SPEECH

Counsel Indicated Colonel Will Plead Constitutional Guarantee in Court-Martial.

DENIES INTENT TO RIDICULE

And Says Criticism of Air Serviced Was Constructive- Wants to Prove Accusations.

 Special to The New York Times.
 WASHINGTON, Oct. 24.-That Colonel William Mitchell only exercised his constitutional right of free speech when he declared that the Shenandoah and other accidents were due to "incompetency, criminal negligence and almost treasonable administration" by the War and Navy Departments will be the contention of the defense when Colonel Mitchell faces the court-martial next Wednesday morning. This is the interpretation placed on remarks made today by Representative Frank R. Reid of Illinois, the chief counsel for Colonel Mitchell. 
 It is understood that when General Summerall, the president of the court-martial, calls it to order Wednesday morning Mr. Reid will promptly enter a plea of constitutional privilege. It will be something new in court martial history if such a plea is taken, and will have to be decided by a vote of the court, which would consider the question in a secret executive session. Colonel Blanton Winship and the other legal officers in charge of the Government's case are expected to combat to the limit any such move by counsel for the defense. 
 Representative Reid said that in addition to the "freedom of speech" phase of the defense he also expected to demand that Colonel Mitchell be permitted to introduce evidence to prove the truth of his charges against the administration of the air services. He pointed out that the specifications cited by the Government allege that Colonel Mitchell made his criticisms "with intent to discredit" the service. 
 Colonel Mitchell will deny that he entertained any such intent, but will contend that he sought only to bring the truth of the situation, which he says exist, before the country, and this being so, Mr. Reid says he should be given the opportunity to prove his utterances were based on fact.
 "In other words," said Mr. Reid, "we will demand the right to prove the accuracy of what Colonel Mitchell said. 
 "There is nothing in the Articles of War enacted by Congress which prohibits freedom of speech, and the same Constitution which gives Congress power to enact those articles forbids it passing any law abridging that freedom. The right of freedom of speech is undoubtedly guaranteed by the Constitution, and if the Ninety-sixth Article of War abridges that right it is unconstitutional and void. It becomes a question, then, whether the army and the War Department are governed by the Constitution, or whether they are at liberty to ignore its provisions.
 "Colonel Mitchell stands for the belief that in time of peace soldiers and sailors have the right to offer constructive criticism which they believe will work for the best interests of their services. The inadequacy of our national defense is a matter of public policy, which has caused wide discussion for the last ten years by the press, members of Congress, and every one interested in the welfare of the nation.
 "Any one familiar with the subject knows the appalling condition of our Air Service, and that the many fatalities and accidents are practically attribute to maladministration. It was repeatedly stated by witnesses before the Aircraft Committee of Congress that the equipment of the Air Service was not only obsolete but dangerous. 
 "The War and Navy Departments have heretofore been subjected to vigorous criticism from within. The statements of Colonel Mitchell are mild compared with those with those of General Hooker, General McClellan, Colonel Theodore Roosevelt and Admiral Sims, which were published broadcast, yet no disciplinary action was ever taken against them. A few sticklers for military etiquette profess to be astonished that any officer should be guilty of such conduct. Could there be a greater contrast that is afforded by the wisdom of Presidents Lincoln, McKinley and Roosevelt, and the actions of martinets in time of peace who would punish a faithful officer for timely and judicious advice an public matters of great importance, however energetically and forcibly that advice may be expressed?
 "Rome endured as long as there were Romans; America will endure as long as there are Mitchells."