The Metzger Defense

Amid the furor over the Bergdahl exchange, General Martin Dempsey, Chairman of the Joint Chiefs of Staff, took to Facebook and noted that the circumstances behind the soldier's 2009 "disappearance" (read: desertion) in Afghanistan will be investigated.  He also reminded readers that even if Sergeant Bergdahl is brought up on charges, he is "innocent until proven guilty." 

While that certainly is true, it looks like Bergdahl's lawyers might have a hard time convincing a military jury.  Soldiers who served with him are near-unanimous in their verdict on his actions, describing him as a deserter and a traitor.  And with more members of Bergdahl's unit coming forward with similar accusations, Army Secretary John McHugh released a statement similar to Dempsey's Facebook posting, promising a "comprehensive, coordinated review" of the case. 

Still, Sergeant Bergdahl may not be without legal options.  As we noted in our most recent post, the military has been surprisingly soft on deserters in the past, particularly when the nation is anxious to move on after a long war.  At worst, Bergdahl might spend a little time in the brig and get a bad conduct discharge, a far cry from the maximum punishment for troops who flee in the face of the enemy. 

And, if all else fails, Bergdahl's legal team might try some variation of the Metzger defense, named for the Air Force officer who disappeared after claiming she was kidnapped from a shopping mall while deployed to Kyrgyzstan in 2006.  Major Metzger resurfaced a few days later, with an incredible tale of overpowering her kidnappers, then running 30 miles to freedom (she is a champion marathoner).  When she returned to American custody, her blonde hair was brown and dye was still on her hands, one of many facts that didn't exactly comport with a kidnapping saga. 

Militarycorruption.com, the one outlet that refused to accept the spin on Metzger's disappearance, cataloged a long list of inconsistencies:

-- Metzger showed no signs of having run 30 miles barefoot through the Kyrgyz countryside in her "bid for freedom." In fact, her feet appeared to be in remarkably good shape, with no indications of cuts, bruises or blood.
 

-- The Air Force officer, who is a natural blond, was a brunette at the time of her repatriation. Dye on her hands indicated that Metzger did the job herself. Would a woman fleeing her kidnappers take the time to change her hair color? Or was the makeover aimed at covering up other activities that were the real reason for his disappearance.
 

-- Kyrgyz authorities doubted her story from the start, and even interviewed a local abortion doctor who claimed he performed that procedure on Major Metzger during the time she was missing. However, local cops were never allowed to follow-up on their initial interview with Metzger; she was flown out of the country less than three days after her return.
 

-- A source inside the Air Force Office of Special Investigations (AFOSI), which probed Metzger's disappearance, told Militarycoruption.com that the USAF personnel officer flunked at least two polygraphs after her escape. One exam, administered at her home station of Moody AFB, GA, showed clear signs of deception.
 

-- No rape kit or pregnancy test was ever administered to Metzger, despite her alleged abduction by male suspects.
 

-- AFOSI agents investigating the case were told to "lay off" Metzger because she had "someone big by the         b---s."
 

But it worked.  Despite the gaping holes in her account, Major Metzger never faced any charges related to her disappearance in Kyrgyzstan.  Claiming she was suffering post-traumatic stress from her ordeal, Metzger was placed on the temporarily retired list for three years--with full disability pay--before returning to active duty status.  At last report, she was stationed at Travis AFB in northern California, and eligible for promotion to Lieutenant Colonel. 

Admittedly, Metzger had friends in high places.  As a two-time winner of the women's division of the Air Force marathon, Major Metzger was well-known in military sports circles and a frequent jogging companion for senior officers.  A now-retired Air Force personnel officer (who served with Metzger at Davis-Monthan AFB, AZ) remembers that she "ran with virtually every three and four-star who visited the installation."

One of those officers, General Garry North (now retired) was present when Metzger returned from captivity in 2006.  According to Militarycorruption.com, the general pressed his personal coin into the hands of security forces personnel on the flightline and told them "you didn't see a thing."

Obviously, the circumstances surrounding Bowe Bergdahl's disappearance and repatriation are quite different.  But the Metzger case illustrates an important point: political exigencies and the preferences of military "leaders" can easily trump the mechanics of the UCMJ.   

Put another way: it's hard to envision the Army court-martialing Bergdahl after his "return" was announced in a photo op featuring his family and the commander-in-chief.  What was supposed to be an attention-diverting public relations and diplomatic triumph has (instead) become the latest debacle for an imploding administration.  There will be enormous pressure on military leaders to "tidy up" the Bergdahl case and dispose of it as quickly as possible.  And let's just say the military brass doesn't have an impressive record in resisting such pressure.

You don't need to be a military defense counsel to understand that Sergeant Bergdahl is going to need some legal assistance in the very near future.  And that's why a smart civilian attorney might well invoke the name of Jill Metzger in defending Bowe Bergdahl against possible charges.  If the military is willing to accept Metzger's (demonstrably) false claims of kidnapping and a 30-mile, barefoot dash to freedom, why shouldn't they go along with any tall tale that Bergdahl cooks up to explain his actions.

One more thing: if the Pentagon brass is serious about a full inquiry into Sergeant Bergdahl's disappearance (and they should be), then the Metzger case should be re-opened as well.  Eight years after the Air Force officer vanished and re-appeared in Kyrgyzstan, there are still more questions than answers.