Harvard Law professor emeritus Alan Dershowitz warned Thursday on Newsmax that President Donald Trump's recent suggestion to send convicted criminals to foreign prisons such as one in El Salvador is likely unconstitutional and would not survive a court challenge.
Dershowitz added that Trump's reported plan to outsource U.S. prisoners to foreign countries, including El Salvador, "will not work."
Appearing on "The Record With Greta Van Susteren," Dershowitz said the Eighth Amendment of the Constitution would block such efforts because it prohibits cruel and unusual punishment.
"The United States cannot send its convicted prisoners to a country that will impose cruel and unusual punishment," Dershowitz said. "It has to send them to a country where the United States maintains jurisdiction over them so that they can file writs of habeas corpus. In the end, it's a nonstarter."
In a meeting Monday with Salvadoran President Nayib Bukele, Trump floated the idea of sending violent American criminals to foreign prisons, including El Salvador's Terrorism Confinement Center.
According to ABC News, the Trump administration has already deported hundreds of suspected MS-13 gang members to the maximum security prison, which human rights groups have criticized for alleged abuses.
"If it's a homegrown criminal, I have no problem," Trump said. "And I'm talking about violent people. I'm talking about really bad people, really bad people. Every bit as bad as the ones coming in."
When asked how the Supreme Court defines cruel and unusual punishment, Dershowitz criticized its inconsistent rulings, citing his role in an early legal challenge to the death penalty.
"I wrote the first draft of the first opinion declaring the death penalty unconstitutional on cruel and unusual punishment grounds," he said, recalling his time clerking for Justice Arthur Goldberg. "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."
He said that sending prisoners to a lockup like the one in El Salvador, where "we know torture occurs and gang killings occur," would likely fail constitutional muster.
"Also, how do you bring a writ of habeas corpus if you're out of the country?" Dershowitz asked. "The writ of habeas corpus is constitutionally guaranteed. It can be only suspended under certain circumstances."
While Dershowitz acknowledged Trump's tendency to test legal limits, he predicted the courts would reject the plan.
"My prediction is the courts will not permit American citizens who are convicted of a crime to be sent to foreign countries where they could be exposed to cruel and unusual punishment," he said.
He added that sending inmates to countries with humane prison systems, such as Italy, might pose a different legal question.
"We've already sent prisoners to Guantanamo, which is American territory rented from Cuba but not really American territory," he said. "So it's not 100% certain, but I would say it's 90% certain that the courts will not uphold" the policy.
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