Potential Jiu-jitsu: Offer Barghouti for Shalit

Make Hamas decide whether it is more interested in the Palestinian cause or its own political power.

Israel maintains an intense — at times too intense — focus on recovering its captured soldiers. So it’s not surprise that the fate of Corporal Gilad Shalit, kidnapped by Hamas more than a year ago, has captivated Israel’s attention. Every time it seems as if a deal has been struck, someone pulls back. Hamas wants dozens (if not hundreds) of prisoners in Israeli jails, some of whom, it must be emphasized, are elected Hamas members of the Palestinian legislature and pose no security risk. But Hamas also wants many of its most hardened fighters/terrorists.

What to do?

Here’s an idea: Israel should offer publicly a one-for-one deal — Shalit in exchange for Marwan Barghouti.

Barghouti is an interesting case. There’s little doubt that he supported and was behind many of the worst terrorist attacks during the 2001-2002 period. There’s also little doubt that he has genuine support on the Palestinian street, and has in the past engaged in serious, constructive negotiations with Israeli leaders.

Now, one might well ask: why in the world would Hamas agree to such a proposal? Barghouti used to be a Fatah member, although he has now formed his own political party. He’s a secular militant and has no truck with Islamism.

In my view, however, this is a feature, not a bug. Think about it from Hamas’ perspective.

If they say yes, then they have arranged for the release of a potentially formidable political opponent, who — unlike PA Presient Mahmoud Abbas — has maintained a large amount of personal popularity.

If they say no, then they reveal that they are really not interested in Barghouti’s release, and will willingly keep him in jail because they prefer their own supporters, making them seem like traitors to the Palestinian cause (which they are, but that’s another story.).

Make it public. Make it loud. Ask Hamas: which side are you on?

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.