There still may be bumps in the road, but as Israel inches forward toward what has been called an effective ban on releases of terrorist-prisoners to achieve unrelated diplomatic goals (like promoting the peace process), the US just completed one of the more controversial American prisoner exchanges in recent memory.
What will happen if the Israeli bill passes, but down-the-road a government wants to release prisoners anyway? First, it is important to understand exactly what the proposed legislation would do.
The bill does not ban the president from pardoning and releasing terrorist prisoners who have been sentenced to life in prison.
It empowers individual judges or a panel of judges on a given case with the discretion to include within their life sentence decree an addition paragraph that would ban the president from pardoning and releasing the specific prisoner before them.
Based on arguments from Attorney-General Yehuda Weinstein about the importance of leaving future governments options and not 100 percent tying their hands from addressing unforeseeable developments, the final language could very likely contain a loophole on the ban.
If there is any loophole language at all, it will be easy for any government to exploit it.
Even if there is no loophole, Hebrew University Prof. Barak Medina says it is very likely that rather than completely banning any prisoner release, courts will choose to recommend against such a release.
This is because the entire idea of courts restraining what have until now been (and in most countries remain) the president’s exclusive powers, is anathema to how courts normally function, and even those called “activist” judges may be uncomfortable with such a political stance.
This cultural issue may have been missed by the bill’s proponents who correctly have identified that judges get angry when their life sentences to terrorists are breached by pardons.
But again, that anger may not translate into a desire to actively block pardons as much as judges would simply rather that the president not consider pardons in the first place.
Still, assuming somewhere in the court system there is a judge or three judges angry who are determined enough to maintain their life sentence to use the new power to ban releases, even then there is a strong chance that such releases will go forward if a government wants.
Put differently, where there is a political will, there is often a legal way.
Exhibit A would be US President Barack Obama’s recent prisoner exchange with the Taliban, in which he released five of the worst Taliban commanders from the now famous Guantanamo prison in exchange for Taliban prisoner US Army Sgt. Bowe Bergdahl.
There has already been for some time an unambiguous law in place requiring US congressional approval of such deals before they are implemented.
Such a restriction, while not called a ban, is in some ways much stronger than the Israeli bill, because it empowers the much more powerful legislative branch to block a release, instead of leaving the responsibility with the much weaker (since it has no political constituency) judicial branch.
Obama made the deal anyway and did not even give Congress advance notice.
How did he explain what some congressman have already said was a clear legal violation? A small alteration in the routine fiscal year 2014 National Defense Authorization Act, passed by Congress in December, swapped requiring that Congress sign off on any Guantanamo releases with notifying Congress at least 30 days before a release.
On top of that change, when Obama signed the bill he included a “signing statement” (a hotly debated presidential act for modifying legislation) basically reserving the right to ignore the notification duty in exigent circumstances where a delay could undermine an exchange deal.
Obama’s rationale was that if no opening was left for acting quickly, the president’s inherent foreign policy powers would be undermined.
That is probably the crux of the matter.
Even if the Israeli bill passes and a judge bans the president from issuing a pardon, not only can any government change any law by a mere 61-vote majority vote of its own coalition, but it can probably sidestep a major public debate and the 61-vote requirement, and possibly even any Knesset vote, by making a small modification in a budget bill to which no one pays attention.
Or, using the Obama’s signing statement rationale, an Israeli prime minister and president working in tandem can decide that a sudden dynamic situation requires them to protect their inherent executive powers by taking exception “just once” to the rule, without saying they are broadly changing the rule.
In light of the above, the current bill may score political points in some sectors and may deter a prisoner release where a prime minister is sitting on the fence, but if another Gilad Schalit deal comes along with around 80 percent public support – don’t hold your breath.
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