Americans and Israelis are having two very different versions of the same debate about state power and the rule of law.

The American version is straightforward: Yesterday began with Joe Biden pardoning his family and granting clemency to the convicted perpetrator of an infamous act of left-wing political violence, and the day ended with Donald Trump mass-pardoning all those, including violent offenders, sentenced for activities related to the January 6, 2021, Capitol riot.

The problem: How can the legal system be trusted to maintain law and order if it becomes common practice for presidents to set inmates free whenever it’s politically convenient?

It was interesting that joining President Trump onstage last night were families of Israeli hostages as well as rescued hostage Noa Argamani. And while no one on this week’s American pardon lists compares to the organized, demonic evil of Hamas, Hamas is the reason Israelis are asking the same question about the rule of law.

The policy of freeing thousands of terrorist inmates in Israeli jails, often who have blood on their hands, in return for a few Israeli captives is seen as a painful but necessary choice. The debate then usually shifts to: What can be done to deter future hostage-taking so we don’t have to keep making this painful choice?

One answer is capital punishment, but Israel has informally abolished the death penalty since its lone execution in 1962, that of Adolf Eichmann. So Defense Minister Israel Katz came up with an alternative and linked it specifically to the current Israel-Hamas hostage deal under way.

“In light of the expected release of terrorists from Judea and Samaria as part of the hostage release deal, I have decided to release the settlers held in administrative detention,” Katz said on Friday. He added: “It is better for the families of Jewish settlers to be happy than the families of released terrorists.”

Administrative detention is the practice of holding terror suspects apprehended in the West Bank for extended periods without trial while military prosecutors build their case. In November, Katz announced the policy would no longer apply to Israeli settlers.

Though Katz’s policy is new, the sentiment behind it has been building for a long time. Suspicion that politically convenient deals always favor Palestinians at the expense of Israelis has fueled many attempts over the years to find ways to constrict Israeli leaders’ range of movement on hostage deals. That activity increased after the 2011 deal for Gilad Shalit’s freedom—which included the release of Yahya Sinwar, the mastermind of the October 7, 2023 attacks.

In 2013, the Israeli High Court of Justice rejected a petition by family members of terror victims seeking to halt a Palestinian prisoner release. The families also argued that, just as in criminal clemency cases, the victims should have an opportunity to register their opposition before the court. In probably the most significant part of the decision, the court said that families of victims don’t retain the same rights if the clemency being granted is through a political deal and not through the normal legal process.

It is crucial to understand how much this concept—that political decisions override the government’s legal obligations—irritates the public. Some of that sentiment seems to be building in the U.S. as well in the wake of bipartisan misuse of the pardon power.

There is one other consideration in Israel’s case that helps explain why Katz might have tied his administrative-detention change to the ceasefire deal. As one Israeli academic warned in 2018: “there is a correlation between people who demonstrated their desire to punish terrorist Palestinians more harshly in [a recent public opinion] survey and the people who showed mistrust in Israeli institutions and their capability to deal with terrorism. It is possible that Israelis do not trust their justice system and government to keep perpetrators behind bars.”

Repeated attempts to severely limit the government’s power to make such deals have failed, and the death penalty is not coming back into use. Similarly, in the U.S. the pardon power is constitutionally explicit and broad, and therefore difficult to limit. But mistrust of the legal system in a democracy will have its own corrosive effect if politicians neglect to maintain the political legitimacy they need to make these decisions.

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