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The Evening Star.
WITH SUNDAY MORNING EDITION 
WASHINGTON D.C. WEDNESDAY. OCTOBER 28, 1925-FORTY-FOUR PAGES.

MITCHELL ATTACKS POWERS OF COURT AFTER HE FORCES THREE TO RETIRE

Reid Denies Right of Army to Try Accused Officer for Statements - Cities “Constitutional Guarantee.”

SUMMERALL, BOWLEYNAND SLADEN EXCUSED

First Two Accused of Preaching Hostility to Colonel—“Untrue, Unjust and Ignorant,” Summerall Says of Criticism Him Before Congress. 

After firing his opening broadside, which resulted in the elimination of three members of the court-martial appointed to try him, Col. William Mitchell late this afternoon challenged the jurisdiction of the court when Representative Frank R. Reid of Illinois, his chief counsel, declared published statements by the accused on which the charges against him are based “constitute no offense under the law of military discipline, Articles of War, Constitution or laws of the United States, and are not cognizable by this court.”
   Col. Mitchell’s counsel emphasized that his client had committed no offense over high the court-martial has jurisdiction, and the offense in the charges and specifications are not named, and that under the Constitution Col. Mitchell has the right of freedom of speech, which he exercised on public questions and public welfare. 
   Col. Mitchell’s plea came at the close of the reading of the charges by Lieut, Col. Joseph I. Mc.Mullen, assistant trail judge advocate, who spent the greater part of the day reading the September 5 statement of Col. Mitchell issued at San Antonio and one issued at San Antonio and one issued four days later at the same place. 
   Claims Constitutional Right.
   The first statement was read five times, as it constituted five specifications under the general charges, and the second, which invited the War Department to take disciplinary action, was read three times. When Col. McMullen concluded, Col. Sherman Moreland, trail judge advocate, asked the defense if he had any special pleas to enter. Talking a position in front of the court rata le, Representative Reid challenged the jurisdiction of the court.
   Representative Reid stressed his point that a solider is guaranteed the same rights under the Constitution as a citizen except as specified in certain other parts of the Constitution, such as in the fifth amendment. 
   “A solider has certain constitutional rights,” declared Mitchell’s counsel. “No one has ever questioned that he had the right to vote, freedom of relation, protection against self-incrimination, the right to trial by due process of law, the right to be informed of law, the right to be informed of charges against him, the right to witnesses and counsel.
   “Can it be contended for a moment that freedom of speech can be denied a solider when all these other rights under the Constitution are guaranteed? Are soldiers people in the eyes of the law of the land? No. They are not deprived of the liberties of a citizen.
   
        Upholds Free Speech.
   “Of course there are limits to freedom of speech; we all know that. The usual limitations are that statements must not be false, slanderous, libelous, blasphemous, obscene, immoral, inimicable to the public welfare or tend to create warfare or incite to sedition.  They must not corrupt the public morals, incite to crime, disturb the peace, create anarchy, teach soldiers disobedience of their command, impede or hinder the Government in its functioning.
   "It is not charged, alleged or contended that the statements of the defendant are false, slanderous, libellous, blasphemous, obscene, immoral, or any of the other things. The statements are not aimed against any individual. This table before the court, or this chair, certainly could not be slandered. Any one who read Col. Mitchell's statement would recognize that it is a fine play of words that really means nothing."
   Col. Mitchell's challenging members of the court this morning came at the opening of the trial.
   When the storm had blown over and the remnant of the court-martial counted its casualties. Maj. Gen. Charles P. Summerall, president of the court; Maj. Gen. Fred W. Sladen and Brig. Gen. Albert J. Bowley had been excused from further duty on the ground that they had preached hostility toward the defendant. Never before in the history of the American Army had dignified court-martial been handled with such ruthless indiscrimination. Col. Mitchel, through his counsel, fired volley after volley of criticism at the accused members, held up their own words for scrutiny and bluntly demanded that their right to sit in trial over him should be rescinded. The defense was as bitter in its denunciation as it was indiscriminate in its selection.
   And it finally drew from Gen. Sumerall before he retired a parting shot at the man who has become a target from both the Army and the Navy in the last few months. Visibly surprised and with angry emphasis, the deposed president of the court told the judges and spectators that he regarded the statements made by Col. Mitchell as "untrue, unjust and ignorant."
   It was an attack that spared nothing in its vitrolic strength and gained for the defense the ends it sought.
   It was a little after 10 o'clock, the appointed hour for the trial of the doughty flying colonel to begin, that Col. Sherman Moreland, the judge advocate, raised his hand and requested all persons in the room to rise while the court entered.
   In single file the generals whom the War Department had appointed to try Col. Mitchell on charges that he had made statements prejudicial to good discipline and the better interests of the Army, filed in, bowed to the judge advocate and the counsel for the defense and seated themselves in the following order on either side of Maj. Gen. Summerall, the president of the court: Maj. Gen. Robert L. Howze, Col. Blanton Winship, law member of the court: Maj. Gen. Douglass MacArthur, Maj. Gen Fred W. Sladen, Maj. Gen. Benjamin A. Poore, Maj. Gen. William S. Graves, Brig. Gen. Edward L. King, Brig. Gen. Albert J. Bowley, Brig. Gen Edwin Winans, Brig. Gen. George LeR. Irwin, Brig. Gen. Ewing E. Booth and Brig. Gen. Frank R. McCoy.
   Col. Moreland informed the members of the court that they would find at their places printed copies of the charges against Col. Mitchell. As a matter of form, he observed that all of the members of the court were present and officially announced that the prosecution was ready to proceed "with the case of the United States versus William Mitchell, Air Service." A few purely formal preliminaries occupied the next five minutes of the court's time.
        Attorneys Introduced.
   Col. Moreland then begged leave to present Lieut. Col. Joseph I. McMullen as the assistant judge advocate, and upon receiving notice from Gen. Mitchell that he was prepared to face the charges, the attorneys for the defense were introduced as follows: Frank R. Reid, Representative in Congress from Illinois, chief counsel: Judge Frank G. Plain, also of Illinois, and Col. H. A. White, judge advocate of the 8th Corps Area with headquarters at Fort Sam Houston, Tex., where Col. Mitchell was stationed at the time he committed the alleged offenses, assistant counsels for the defense.
   The court reporters, three in number, were introduced, and swore that they would " well and faithfully perform their duties as such." Gen. Summerall then read the orders by which President Coolidge directed the court-martial faithfully and well to try the accused officer for specified offenses against the articles of war. 
   Carrying out necessary routine, the judge advocate asked the members of the court pertinent questions as to their attitude toward the defendant, pointing out that the failure of any member to answer any question should be marked down as a reply in the negative. The court was asked among other things if any of its members had sat on the court of inquiry that investigated the charges against Col. Mitchell, whether any members had formed any opinion as to his guilt or innocence, whether any member would be promoted in the event of Col. Mitchell's dismissal from the Army as a result of this trial, and finally whether any member at any time had declared or implied enmity toward the accused. Only silence answered "No" in each instance, and Col. Moreland turned to the counsel for the defense with the observation: "The accused may challenge any member of the court."
        Challenges Bowley.
   Slowly Mr. Reid rose from his chair. His hand held a few typewritten sheets of paper, and even the fact that it seemed to tremble a bit as he cleared his throat and prepared to address the court failed to serve notice of the whirlwind that was about to be let loose. Turning to Gen. Summerall, Mr. Reid said: "We wish to challenge the right of Gen. Bowley to sit in this court on the grounds that he had uttered bias, hostility and malice against the accused."
   While the audience audibly caught its breath, Mr. Reid continued by declaring that on October 20 last, during an address before the American Legion at Greenville, N. C., Gen. Bowley had said that the public "must not be drawn into a controversy that it knew nothing about"; that the public was "Prone to be carried away by exaggerated statements," and that there was "no more reason for a single air service that for a single medical corps."
   In reply to a question from the president of the court as to whether he would like to explain his side of the charges, Gen. Bowley admitted that the statement was "approximately correct." He denied, however, that he entertained prejudice or hostility against Col. Mitchell, and said in addition that no views he might hold regarding the establishment and organization of the air service could possibly influence his desire to see justice done of the accused.
   " In view of this statement," Col. Moreland asked, "does the chief counsel for the defense desire to withdraw the challenge?"
   "We wish to reiterate the charges, and request that Gen. Bowley be removed from this court," Mr. Reid replied with emphasis.
   The court was declared closed at 10:20, its members retired to an ante-chamber and Gen. Bowley was left to face a merciless battery of cameras that had already surrounded him. Twelve minutes later the court returned and Gen. Summerall quietly announced "the challenge is sustained and Gen/ Bowley is relieved from further duty in this court." 
   With that same slow, determined motion, Mr. Reid again rose, and looking squarely at the president of the court, announced in measured tones:
   "We wish to challenge the right of Gen. Summerall to sit as a member of this court."
   If the first challenge had staggered the spectators, this attack on the president of the court that was to try Col. Mitchell all but precipitated a riot. Gen. Summerall alone seemed to maintain his composure and waited for Col. Mitchell's chief of counsel to proceed.
   Mr. Reid began by saying that last September Gen. Summerall had declared in a speech that it was unfair for any one to intimate or declare that the Army Air Service was improperly trained and inefficient. He was further quoted as saying: "There is nothing to support the extravagant claim for a single aviation unit. The public is being misled." This statement was read from The Evening Star of September 25.
   In further explanation of Col. Mitchell's desire to see Gen. Summerall removed from jurisdiction in the court, Mr. Reid read part of the report of the air officers' investigation of aviation forces in the Hawaiian Islands in 1923. At that time Gen. Summerall was commanding officer at Honolulu. In his report Col. Mitchell declared the Hawaiian air forces to be inefficient and inadequate: he said there were plans at headquarters for their use in the event of war and recommended complete reorganization of the air forces at Honolulu. To this Gen. Summerall sharply replied through Gen. Patrick, chief of the Air Service, taking issue with Col. Mitchell, who was then assistant chief of the Air Service.
        Summerall Gets Out.
   Mr. Reid continued that Col. Mitchell further wished to recall testimony given before the congressional investigating committee last Spring, in which he declared that there was so much animosity between the Army and Navy staffs in the Hawaiian Islands that the two would not even attend the same social functions. In view of these verbal controversies, the defense held that Gen. Summerall cold not possibly participate in the trial of Gen. Mitchell. without bias.
   "The statements made by the defense are probably correct," Gen Summerall replied. "I do not recall the words used by Col. Mitchell at the time, but I assume they are all right. I learn here for the first time of Col. Mitchell's enmity toward me. I had never before thought there was hostility in the report he mentioned and therefore entertained no enmity toward the accused.
 "The report was untrue, unfair")- here Gen. Summerall hesitated for almost a full minute, but his lip vexatiously and replied with frank anger - "and ignorant. This is not the place, however, to prove the efficiency of the Hawaiian Air Service, but in view of Col. Mitchell's person bitter hostility toward me I cannot consent to sit longer as a member of this court, and I ask that I be excused. The court is declared. closed.
   Again the generals comprising the court-martial retired to their antechamber, but this time they returned in less than four minutes. 
   Gen. Howze, next in seniority to Gen. Summerall, announced upon returning. "The challenge is sustained