ARMY & NAVY: Court Martial

“The biggest court martial in U. S. military history,” exclaimed the effusive spokesmen of quantity and magnitude last week with reference to the trial of Colonel William Mitchell about to begin. There was much in what they said. The court martial of Benedict Arnold in 1779-80, which resulted in a mild reprimand from General Washington, was not so sensational as the treason which followed it. The trial of Aaron Burr for treason was perhaps of equal national interest, but it was not a military trial but a trial before the U. S. Circuit Court at Richmond. The nearest parallel to the Mitchell trial is probably the Court of Inquiry in 1901 into the conduct of Commodore Winfield Scott Schley in the Spanish-American War.

The Schley “trial” was not a court martial, but only a Court of Inquiry, and it was called at Schley’s request, but in other respects it resembled the Mitchell trial: it drew a number of prominent officers as participants (Schley, Sampson and Admiral Dewey, President of the Court) and the personality of Schley was not dissimilar to that of Colonel Mitchell. Schley was in command of the Flying Squadron from March to June 1898. Then Sampson was placed over him. But at the battle of Santiago when Cervera’s fleet was sunk, Sampson was absent and Schley was in active command. After the war a move was made to promote Sampson over the head of Schley, who had ranked him for 42 years. That started a controversy in which Schley’s adherents asserted that he had been responsible for the success of the campaign, and Sampson’s adherents charged that Schley had been negligent, had mismanaged his part of the campaign, had disobeyed orders. In 1901 Schley demanded a Court of Inquiry which was held. Sampson was too ill to appear. But Schley, who was an aggressive type of man, was on hand, quick of eye and springy of step, hearty and good natured in spite of being a grizzled veteran past 60. He was personally attractive, impulsive, brave and sure of himself. The Court found him guilty of “vacillation, dilatoriness and lack of enterprise,” and declared that he had been slow in obeying orders, remiss in securing naval intelligence, had blundered tactically in the battle of Santiago, and had various minor faults. The Court however recommended no action be taken, and indeed the time had expired in which a court martial could be held. Shortly after the trial he was retired on reaching the age limit.

The arrangements for Colonel Mitchell’s trial promise an equally interesting entertainment, if no more. The meetings of the Court, it was announced, would be open, the place a large hall in the Emory Building, a War Department repository for records, on the Capitol grounds.

The Court will be as impressive as any ever assembled, consisting of six Major Generals and six Brigadiers :

President, Major General Charles P. Summerall, Commandant of the Second Corps Area (New York Harbor), the senior officer of the Army on active duty.

Major General F. W. Sladen, Superintendent of West Point.

Major General Douglas Mac Arthur, commanding the Third Corps Area (Baltimore).

Major General W. S. Graves, commanding the Sixth Corps Area (Chicago).

Major General B. A. Poore, commanding the Seventh Corps Area (Omaha).

Major General R. L. Howze, commanding the Fifth Corps Area (Columbus).

And six Brigadiers, commandants of Forts Bragg, Leavenworth, Sam Houston, Clark, Sill, Riley.

Colonel Mitchell’s attorneys will be Colonel Herbert A. White, Judge Advocate of the Eighth Corps Area (Texas), where Colonel Mitchell is stationed, and Representative Frank R. Reid of Illinois. The prosecuting attorneys are three: Colonel Blanton Winship, Colonel Sherman Moreland, Lieutenant Colonel Joseph McMullen.

Notice of eight charges was served on Colonel Mitchell last week, accusing him of “conduct to the prejudice of good order and military discipline,” making “a statement insubordinate to the administration of the War Department,” making a “statement highly contemptuous and disrespectful” to the War Department and to the Navy Department “with intent to discredit the same.”

The matter at stake is two of his statements made on Sept. 5 and 9 and principally the declaration regarding the loss of the Shenandoah and near-loss of the PN9 No. 1:

“These accidents are the direct result of the incompetence, criminal negligence and almost treasonable administration of the national defense by the Navy and War Departments. In their attempts to keep down the development of aviation to an independent department, separate from the Army and Navy and handled by aeronautical experts, and to maintain the existing systems, they have gone to the utmost lengths to carry their points.”

The charges are made under the 96th Article of War, which reads: “Though not mentioned in these articles, all disorders and neglect; to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service and all crimes or offenses not capital, of which persons subject to military law may be guilty, shall be taken cognizance of by a general or special or summary court martial, according to the nature and degree of the offense, and punished at the discretion of the court.”

Colonel Mitchell complained that the charges were framed so as not to bring up the question whether what he said was true but merely whether he “called the War and Navy Departments into disrepute.” The War Department admits this, saying that the President’s Air Inquiry Board is investigating whether or not the Mitchell charges are true, and that the court martial is to handle the separate question of whether Colonel Mitchell erred in his manner of making them.

Congressman Reid, Mr. Mitchell’s lawyer, announced in advance that he would argue that the 96th Article of War was unconstitutional so far as it forbids free speech:

“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 its passing any law abridging that freedom. The right of freedom of speech is undoubtedly guaranteed by the Constitution, and if the 96th 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.”

Under the 96th Article of War, Colonel Mitchell can be sentenced to anything from reprimand to dismissal (but not imprisonment). The findings of the Court will bs reviewed by a Board of three, by the Secretary of War, and by the President. The reviewing authority has the power to reduce or modify any sentence imposed, but not to change the verdict. If there is an acquittal, the reviewing authorities may disapprove it but cannot impose sentence.