(DCNF)—Attorney Alan Dershowitz said on Newsmax Thursday that the Supreme Court is unlikely to side with President Donald Trump if he pursues a plan to send American inmates to foreign prisons.
Trump said his administration is actively considering sending U.S. citizens to prisons in El Salvador during remarks ahead of a press briefing with El Salvadoran President Nayib Bukele. During an appearance on “The Record with Greta Van Susteren,” Dershowitz said the idea of transferring U.S. citizens to facilities in countries like El Salvador, where reports of torture and gang killings persist, would likely run afoul of the Constitution’s prohibition against cruel and unusual punishment.
“The writ of habeas corpus is constitutionally guaranteed. It can be only suspended under certain circumstances. So I don’t think this is going to end up the way President Trump wants it to end up,” Dershowitz said, explaining how habeas rights apply outside the U.S. “But he said, look, he’s going to explore the law. And if he calls me, I’ll tell him I think it’s unconstitutional. Maybe others would tell him it’s constitutional. And he tests the limits all the time.
While Dershowitz said that sending inmates to countries with reputable legal systems, like Italy, might pose different legal questions, he said the odds are overwhelmingly against courts allowing transfers to nations known for brutal prison conditions.
“We’ll see what the courts hold. My prediction is the courts will not permit American citizens who are convicted of crime to be sent to foreign countries where they could be exposed to cruel and unusual punishment. Now, what if he decides to send them to Italy, which has a decent legal system, or some other countries that have decent prisons and decent jails? That would pose a somewhat different problem,” Dershowitz said. “We’ve already sent prisoners to Guantanamo, which is American territory rented from Cuba, but not really American territory. So it’s not 100 percent certain, but I would say it’s 90 percent certain that the courts will not uphold sending American citizens to foreign countries in which they could be subject to cruel and unusual punishment.”
Dershowitz also discussed the death penalty being ruled unconstitutional, recalling how he drafted the first opinion striking it down under the Eighth Amendment while clerking for Justice Arthur Goldberg. Although the Supreme Court later reversed course, he said the definition of cruel and unusual punishment remains subjective and dependent on the degree of harm involved.
“I wrote the first draft of the first opinion declaring the death penalty unconstitutional on cruel and unusual punishment grounds. I did it when I was a law clerk for Justice Goldberg,” Dershowitz said. “And then a few years later, the Supreme Court resurrected it and said the death penalty, if administered in certain ways, is not cruel and unusual for certain crimes. But it’s a matter of degree. And I think the idea of sending them to prisons in El Salvador, where we know torture occurs and gang killings occur, would be very difficult for the Supreme Court to accept.”
This discussion follows Trump’s meeting with Bukele, where the two addressed the detention of illegal migrants sent to El Salvador, including MS-13 suspect Kilmar Armando Abrego Garcia. The Trump administration argued it has no obligation to bring Garcia back to the United States.
In recent court filings, the Justice Department said federal courts lack the authority to interfere in foreign policy matters, including decisions about Garcia’s deportation and imprisonment. ICE apprehended Garcia in March and deported him to El Salvador, where he was placed in a prison designed for gang members. Authorities linked him to MS-13 after a 2019 arrest in Maryland and information from a confidential informant.
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