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The Washington Post

WASHINGTON: THURSDAY, OCTOBER 29, 1925,-TWENTY-SIX PAGES

MITCHELL DEFENSE QUOTES PRESIDENT FOR JUSTIFICATION
Cites Annapolis Address as Giving Officers Free Speech.
TRIAL OF AIR CRITIC HAS DRAMATIC START
Three Members of Court Ousted on Allegations They Are Prejudiced.
ARMY'S RIGHT TO TRY COLONEL CHALLENGED
Counsel Ringingly Asserts He Committed No Crime by Speaking Out. 
By JOHN EDWIN NEVIN.
Upon a public utterance by Calvin Coolidge, President of the United States, hinges the defense of William Mitchell, colonel in the air service, who went on trial before a general court-martial here yesterday.
Mitchell is on trial for assailing the War and Navy departments. He is charged with having issued statements which were prejudicial to good order and military discipline. They were made immediately following the loss of the dirigible Shenandoah.
The trial began before the strongest military court-in point of rank and importance-ever assembled in the United States.
Mitchell won the initial skirmishes. Through his chief counsel, Representative Frank S. Reid, he eliminated, by allegations of prejudice, Maj. Gen. Charles Summerall, president of the court, and Brig. Gen. Albert Bowley. Then he peremptorily challenged Maj. Gen. Fred W. Sladen, commander of the Military Academy at West Point.

Sladen's Challenging.

Gen. Sladen went out because of the post he occupies. It is possible he would have remained if "for cause" challenges had not been sustained in the case of the other two officers. He was eliminated because, as commandant at the Point, where officers are taught their duties and instilled with the doctrine of discipline above all else, he of necessity would have to have a positive leaning toward discipline above all else.
In the entire history of the war services of the United States there never has been a succession of dramatic events such as yesterday marked the opening of the Mitchell court-martial. In the first place the court was unique in itself. It was composed entirely of officers of general rank, with the single exception of the law member, Col. Blanton Winship, who sits to explain legal procedure, but has no voice in the verdict. In its ranks were the most-decorated-for-war-service officers that have ever been convened. They are the men who made the history of the United States from the days of '98 through the world war. Their services have retained America's integrity and their worth can not be gainsaid, whatever their verdict in the present trial.

Triumph for Counsel.

The elimination of the three officers by the tactics of the defense was a triumph for Representative Reid and the lawyers associated with him. The prospective action had been exclusively forecast in The Post, but it was simply the capture of the pawn in the initial movement on the chessboard of a court-martial which promises to develop a new attack and possibly a new defense. But it was only he entering wedge in the campaign.
Throughout the day, after the cutting down of the court to nine voting members and the substitution of one of the most distinguished soldiers now in active service for Gen. Summerall as president-Maj. Gen. Robert L. Howze, Congressional medal holder and with enough additional foreign and domestic bars to cover his tunic-there was a monotonous reading of the two statements of Col. Mitchell, made at Fort Sam Houston, Texas, in which the proceedings are based.
The offense alleged against Col. Mitchell is of a criminal nature. In consequence it was necessary that the utterances on which the court-martial is predicated be made a part of the record on each of the eight allegations in the complaint. It was up to Lieut. Col. Joseph I. McMullen, a Virginia officer who came up from the ranks to his present post as assistant judge advocate of this court, to read the "red tape" necessities. He did a good job, although his voice was near, to the breaking point before he finished.

Defense Shows Hand.

Then came the actual revelation of the Mitchell defense. Representative Reid, angular and with a voice that rasps because of its very intensity, but with an attitude of absolute conviction that his position was "clothed in righteousness" and with probably the most convincing manner ever assumed by a "mere civilian" addressing a uniformed court, took the floor.
The gray afternoon was clothing the nondescript courtroom in the Emery building with shadows which emphasized the ravages of the elements on the walls of the hastily renovated structure. Almost as he started his argument audibility was interfered with. There was the almost forgotten clank of iron hoofs on asphalt and the sounding of bugle signals reminiscent of actual war. A smile passed from uniformed member of the court to uniformed member as they curiously gazed down onto the street along which was passing the crack artillery from Fort Myer, which had been at a function in Washington. The rhythmic hoofbeats drowned out the challenged of the attorney for the one man who believed the day of the artillery has passed.
Representative Reid was in no way dismayed. He stepped a trifle closer to the semicircular table about which the court was convened and persisted in his argument. 

Jurisdiction Challenged.

 He denied the jurisdiction of the court. It had no right to try his client, he asserted, on the charges before it. What had he done? Nothing! He had accepted his right as a citizen to criticize--what?--not a living personage of flesh and blood but impersonal organizations, the War and Navy Departments.
 "This is no crime," fairly shouted Reid, while Col. Mitchell and his wife smiled at him from the nearby counsel table. "Has the time come when any American can not criticize the waste of public money and the breaking down of our national defense?
 "This is the question for this court to settle--are soldiers people within the meaning of the Constitution and laws of our land or are they an outlaw tribe?
 "There has been no crime committed by Col. Mitchell. He has, standing squarely on his rights as a citizen and following the suggestion by no less a personage than the President of the United States, given his own views about the national defense.
 "Let me read into the record what President Coolidge said at the graduation exercises at Annapolis last June:

Words of the President.

  " "The officers of the Navy are given the fullest latitude in expressing their views before their fellow citizens, subject, of course, to the requirements of not betraying those confidential affairs which would ne detrimental to the service. It seems to me perfectly proper for anyone upon any suitable occasion to advocate the maintenance of a navy in keeping with the greatness and dignity of our country'." 
 Reading out of the record the word "Navy" and substituting therefor the word "Air Service," Mr. Reid proceeded to justify the utterances of Col. Mitchell at San Antonio. He insisted that there was no crime in what he said; that he was in the right and following the suggestion of the President in his open criticism of the manner in which air defense was being dealt with by the War and Navy Departments. He cited precedent after precedent which he asserted would prove his contention and wound up by insisting that the court rule the charges out of order.
 Mr. Reid also insisted that "when Congress in the past has abridged the acts it has done so specifically either through constitutional amendment or legislative action." Nothing that could be construed to suggest this has happened, he held, in changing the guarantee of free speech to all Americans--whether civilians or members of the armed services. The only crimes possible to be charged--"even under the articles of war"--are "making false, slanderous, libelous, blasphemous, obscene, immoral statements, or statements inimical to public welfare which could be construed as inciting to mutiny or sedition." Nothin of the sort is alleged in the present charges in the opinion of the Mitchell defense.
 "Col. Mitchell's statements," continued Mr. Reid, "are merely his own opinions. He has commented on the national defense and has made no charge against any single individual. The War Department is an intangible thing. So is the Navy Department. His charges were not made as a cloture to slander any individual. This was an attack upon a system which he feels is detrimental to our national welfare.
  "Two members of this court made statements which, if these charges are sustained, ought to make them amenable to action of the present character. Their statements are on a par with those of thousands of others, including members of the Senate and the House. This is a time for free speaking and to suggest that in doing so Col. Mitchell is subject to trial by an army court is without the slightest warrant in law or fact."
 Representative Reid also emphasized that the court proceedings were instituted here in Washington and that there was not the slightest allegation that the Mitchell statements had created any disrespect within his command--the Eighth corps area--or interfered with discipline there.
 In closing he insisted:
  "This is not a question of military order or discipline, but comes within the realm of public questions and public duty."
 After Representative Reid had concluded Col. Sherman Moreland, judge advocate of the court, suggested a recess until tomorrow so that he could examine the authorities cited, but more especially the statement by President Coolidge which had been quoted.
 The morning session of the court was a curtain-raiser on the pyrotechnics which have been promised to feature this trial. An immense crowd besieged the old structure in which the trial is being held, but only a privileged few were able to get in. Col. Mitchell, with Mrs. Mitchell, his father-in-law and his counsel, were early arrivals. After the court had been sworn Mr. Reid challenged Gen. Albert J. Bowley for caused, citing his speech in which he had attacked the critics of the air service.

Surprise Is Sprung.

Gen. Bowley admitted that he had been correctly quoted, but insisted he could render a fair verdict. The court then retired, voted secretly and returned to announce that the challenge had been sustained. Gen. Bowley, who evidently had anticipated this result and had sat waiting in his seat with a smile on his lips, left the courtroom at once.
 Then came the big surprise of the day. It had been expected that Gen. Summerall, named by the War Department as president of the court, would be left unmolested. Instead, Mr. Reid challenged him for cause and dragged from the mystic realms of the past serious allegations made by Col. Mitchell following an inspection of the Hawaiian Islands when Gen. Summerall was in command there. The criticism was bitter and the reply of the general equally so.
 The senior major general of the army listened to the reading of the charges with palpably growing indignation. When Reid concluded he sharply declared:
  "I had accepted that the inspection made was by a friendly officer, made in a friendly way. I had no idea that the criticism was based as it has been suggested, and it is untrue, unfair"--here the general's voice rose to almost a burst of passion--"and ignorant. In view of the bitter personal hostility shown by Col. Mitchell I will ask the court to excuse me."