This past week, the US Army cleared four top-ranking officers, including Lt. General Ricardo A. Sanchez, of any wrongdoing in the Abu Ghraib prisoner abuse/torture case. This, despite the memo that Sanchez, Iraq’s senior commander at the time, authorized 29 interrogation techniques, 12 of which exceeded the Army’s own Field Manual. The same 12 techniques are also clear violations of the Geneva Conventions, to which the US is signatory.

     This concludes the tenth investigation into the Abu Ghraib crimes, in which no one but individual, low level soldiers has been held accountable. This despite the infamous Pentagon document, signed by Secretary of Defense Donald Rumsfeld and leaked last year, which outlined techniques Rumsfeld acknowledged could be “interpreted” as violations of the Geneva Conventions. As reported by Seymour Hersh last May, the Pentagon’s secret “Copper Green” operation “encouraged physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence”.

     Also this week, a US military investigation found that the soldiers who shot and killed Italy’s high-ranking intelligence officer Nicola Calipari last month were not guilty. Calipari had negotiated the release of Italian journalist Giuliana Sgrena, who had been held captive in Iraq. The two were traveling to the Baghdad airport on a special road used by US military, with their authorization. The US military maintains the car was driving too fast and did not respond to hand signals, both of which are disputed by Sgrena’s eyewitness account. Even the Italian government, one of Bush’s few remaining allies from the Coalition of the Willing, has refused to accept the findings.

     These are but the latest in a pattern of flagrant disregard for the rule of law by the Bush administration when the law does not suit its purpose. There is a name for this and it is one with which Americans ought to familiarize themselves.

     In 1941, German jurist Ernst Fraenkel used “prerogative state” to describe the emergence of Nazi Germany during the 1930s. He describes this system as one in which a dual state is set up: one that operates not under the rule of law, but under the rule of prerogative, and the other, which he calls the “normative state”.

     He writes, “By prerogative state, we mean that governmental system which exercises unlimited arbitrariness and violence unchecked by legal guarantees, and by the normative state an administrative body endowed with elaborate powers for safeguarding the legal order as expressed in statues, decisions of the courts and activities of administrative agencies.”

     Fraenkel’s brilliant analysis goes much deeper, examining the complex relationship between authoritarianism and capitalism, and the struggle between the normative and prerogative state. Although he is speaking of Germany in the 30s, he could be speaking of the United States today.

     The prerogative state is not new under Mr. Bush, though he is perhaps the most honest in his open disdain for the rule of law.

     For example, when 120 nations signed on to the 1998 Rome Statute, better known as the International Criminal Court (ICC), the US, under Clinton, opposed the idea of trying US nationals in an international court, yet supported the extradition of others for the same purpose. To illustrate, while the US supported the extradition and trial of Slobodan Milosevic, Yugoslavia’s former “tyrant,” it refused Kissinger’s extradition for his alleged role in the murderous government of Chile’s Augusto Pinochet.

     Since Mr. Bush took office, this dual state perspective has taken firm root, particularly in the international realm and most blatantly with the illegal, pre-emptive invasion of Iraq. Mr. Bush surrounds himself with those who show a contempt for legal compliance, such as Attorney General Alberto Gonzales with his now infamous opinion that the Geneva Conventions are archaic. (Mr. Gonzales made this comment while he served as legal counsel to Mr. Bush, prior to his nomination as attorney general, making Congress’s confirmation that much more egregious.)

     The US prerogative state has conducted illegal roundups and detainment of Arab-American citizens, atrocities at Guantanamo Bay and in the prisons of Afghanistan and Iraq, the wanton destruction of Falljuah, and numerous war crimes against civilians in this same city.

     The US has now threatened military action if any US national is held at the Hague. Have they perhaps accurately read the mood of the international community who, according to opinion polls, are more frightened by Mr. Bush than they are of Mr. bin-Laden?

     Small wonder the US is seeking bilateral agreements with other countries to exempt American officials from prosecution by the ICC and threatening to cut financial aid if they don’t sign. 

     The worst nightmare for a prerogative state would be forced compliance to the same legal standards to which others are forced to adhere.