When Attorney-General Yehuda Weinstein objected and slowed down the current bill to ban presidential pardons of certain terrorists so as not to shackle governments in future situations, he probably did not see the future coming so soon.
Weinstein’s legal objection was that presidential pardons by definition take into account later unexpected situations and the current bill appeared to ignore anything over the horizon.
If the bill under consideration, which was far down the path toward final passage even before the current kidnappings that have riled the nation occurred on Friday, is passed as is, there might be no way for the government to bargain (by releasing Palestinian prisoners in exchange for Israelis who are kidnapped) for the safe return of the three kidnapped teenagers.
The state has many options open to it for hoping to catch the kidnappers and to free the boys by force, but if that does not work, the state may have given up its only soft-power way to get them back alive and a tactic for buying time for action.
It is unclear whether the current situation will galvanize support for Weinstein’s idea of leaving a loophole in the legislation so it will not fully ban presidential pardons and leave some opening for pardoning Palestinians in certain exchange contexts.
Some politicians seem to be taking the opposite tack and assert that the current kidnapping operation proves that prisoner exchanges only encourage more kidnappings of Israelis as the best way to free Palestinian terrorists.
Also, even without a change to the bill’s language, there are some scenarios where both judges, who would be empowered to ban the president from pardoning particular prisoners, and the government could circumvent or ignore the ban.
For example, it is very likely that rather than completely banning any future prisoner release, courts will choose to recommend against such a release.
Even if the bill passes and a judge bans the president from issuing a pardon, a future government can change any new law by a mere 61 vote majority of its own coalition.
Or it can probably sidestep a major public debate, 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 (just as US President Barack Obama ignored limits on his prisoner exchange power by Congress to obtain the freedom of US Sgt. Bowe Bergdahl).
Finally, if security forces successfully free the kidnapped teenagers without having to make a trade, or if the families themselves do not advocate an exchange as loudly as Gilad Schalit’s family did (either ideologically or because they are not soldiers), the idea of prisoner exchanges could be further discredited.
But if security forces cannot obtain their release and either the boys are murdered or their kidnapping continues indefinitely and unimpeded, significant pressure could stop the bill in its tracks or at least create more support for Weinstein’s desire for a loophole.
It certainly would be a surprise for the nation’s tactically conservative prime minister, who likes to play for time and keep his options open, to give up one of his main tools for solving a crisis while the crisis is hot.
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