Attorney Alan Dershowitz voiced serious concerns about President Donald Trump’s plan to send American inmates to foreign prisons during his appearance on Newsmax’s The Record with Greta Van Susteren. The Trump administration is evaluating the possibility of transferring American prisoners to El Salvador following discussions with President Nayib Bukele.
Trump’s plan to address U.S. prison overcrowding through transferring inmates to foreign facilities has triggered instant legal and ethical alarms. As a constitutional expert, Dershowitz claimed that the practice would breach the Eighth Amendment’s ban on cruel and unusual punishment because El Salvador’s prison system is notorious for torture and gang-related killings.
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The Constitution of the United States guarantees the right to the writ of habeas corpus. Dershowitz explained that the writ of habeas corpus can only be suspended under specific conditions.
“My prediction is the courts will not permit American citizens who are convicted of crimes to be sent to foreign countries where they could be exposed to cruel and unusual punishment,” said Dershowitz.
Dershowitz added that sending inmates to nations like Italy, which have reputable legal systems, would raise distinct legal questions.
He pointed out that this situation would create a distinct challenge by referencing how the U.S. maintains detainees in Guantanamo Bay, which remains an American-controlled leased territory from Cuba.
However, he estimated a “90 percent” likelihood that the Supreme Court would strike down transfers to nations like El Salvador, where prison conditions are notoriously harsh. El Salvador’s government has faced international criticism for its treatment of inmates, particularly in facilities housing gang members like MS-13, with reports of systemic abuse and violence.
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The dialogue occurred after Trump met with Bukele, who addressed the detention of deported illegal migrants in El Salvador, including MS-13 suspect Kilmar Armando Abrego Garcia.
ICE took Garcia into custody in March 2025 following his 2019 arrest in Maryland that connected him to MS-13 and subsequently deported him to an El Salvadoran prison that houses gang members.
The Trump administration has maintained in court documents that federal courts cannot challenge foreign policy decisions while claiming no responsibility exists to return Garcia to American soil. The administration’s position has sparked discussions about the wider consequences of sending prisoners abroad for incarceration.
Dershowitz, who has extensively worked on Eighth Amendment cases, recalled his contribution to creating the original opinion that found the death penalty unconstitutional during his clerkship with Justice Arthur Goldberg in the 1960s.
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The Supreme Court eventually validated the death penalty under specific conditions. Still, Dershowitz pointed out that what counts as “cruel and unusual” punishment depends on subjective interpretations linked to the level of inflicted harm. The Supreme Court would struggle to endorse the idea of sending prisoners to El Salvador because evidence shows torture exists there alongside gang killings.
Legal experts echo Dershowitz’s concerns. The American Civil Liberties Union (ACLU) has declared its intent to oppose any policy that would send U.S. citizens to foreign prisons because it breaches both due process protections and international human rights standards.
Trump’s proposal has received varied responses from members of Congress. Senator Ted Cruz (R-TX) and other Republican lawmakers show tentative support for investigating new methods to address prison overcrowding. At the same time, Senator Elizabeth Warren (D-MA) and Democratic members criticize the plan as putting American citizens’ rights at severe risk.
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