Renowned attorney Alan Dershowitz voiced his skepticism on Newsmax regarding the likelihood of the Supreme Court supporting President Donald Trump's proposed plan to transfer American inmates to foreign prisons.
The President's administration is currently contemplating the idea of sending U.S. citizens to prisons in El Salvador, a notion that was discussed prior to a press briefing with El Salvadoran President Nayib Bukele.
According to the Daily Caller, Dershowitz, during his appearance on The Record with Greta Van Susteren, expressed his belief that such a move would likely contravene the Constitutions prohibition against cruel and unusual punishment.
This is especially true given the persistent reports of torture and gang killings in countries like El Salvador. Dershowitz explained, The writ of habeas corpus is constitutionally guaranteed. It can be only suspended under certain circumstances. So I dont think this is going to end up the way President Trump wants it to end up.
Dershowitz further elaborated on the President's exploration of the law, stating, But he said, look, hes going to explore the law. And if he calls me, Ill tell him I think its unconstitutional. Maybe others would tell him its constitutional. And he tests the limits all the time."
The attorney did not completely dismiss the idea of transferring inmates to foreign countries. He suggested that sending prisoners to countries with reputable legal systems, such as Italy, might present different legal challenges. However, he remained doubtful about the courts allowing transfers to nations notorious for harsh prison conditions. He stated, Well 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."
Dershowitz also touched on the subject of the death penalty, recalling his role in drafting the first opinion that declared it unconstitutional under the Eighth Amendment while he was a law clerk for Justice Arthur Goldberg. He noted that the Supreme Court later reversed this ruling, but the definition of cruel and unusual punishment remains subjective and dependent on the degree of harm involved. He stated, 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.
This conversation comes in the wake of President Trump's meeting with President Bukele, during which they discussed the detention of illegal migrants sent to El Salvador, including MS-13 suspect Kilmar Armando Abrego Garcia. The Trump administration has argued that it is under no obligation to repatriate Garcia to the United States.
In recent court filings, the Justice Department has asserted that federal courts do not have the authority to meddle in foreign policy matters, including decisions about Garcias deportation and imprisonment. Garcia was apprehended by ICE in March and deported to El Salvador, where he was incarcerated in a prison designed for gang members. His affiliation with MS-13 was established following a 2019 arrest in Maryland and information from a confidential informant.
While the Trump administration continues to explore the legal boundaries of its policies, it remains to be seen how the courts will respond to these controversial proposals. The debate over the constitutionality of transferring American inmates to foreign prisons, particularly those with harsh conditions, is far from over. As Dershowitz noted, the Supreme Court's acceptance of such a move would be highly challenging, given the potential for cruel and unusual punishment.
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