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MADELEINE BRAND, host:

This is DAY TO DAY. I'm Madeleine Brand.

MIKE PESCA, host:

And I'm Mike Pesca.

Coming up, the Supreme Court hears arguments on affirmative action in public schools, and a high court in Kansas considers the parental rights of sperm donors.

BRAND: First, the rights of terror suspects. For three and a half years, Jose Padilla was held without being formally charged as an enemy combatant at a Navy brig in South Carolina. During that time, he was in solitary confinement - so solitary that on the rare times that when he was removed from his cell, he was forced to wear noise-canceling headphones and blacked-out goggles.

Padilla is now being held as a criminal defendant, but his lawyers say because of his treatment in the brig, he is mentally and physically damaged and therefore cannot help prepare his defense.

New York Times reporter Deborah Sontag has a story on Padilla's military confinement in today's paper. Welcome to the program.

Ms. DEBORAH SONTAG (Reporter, New York Times): Thank you for having me.

BRAND: You received a videotape of Padilla in the brig. What did it show?

Ms. SONTAG: I viewed a videotape. I did not receive it. And it is a videotape that shows sort of a mundane event. He was in the brig in South Carolina being taken for a root canal. Several guards approached the door of the cell in full riot gear. They unlock a rectangular panel at the bottom, and you see these feet - kind of pale feet - slide out through the hole. He's shackled. They then unlock a panel on the top. His hands come out and are cuffed.

They unlock the door and they all push into the cell, turn him around, tie his cuffed hands to a metal belt at his waist so that he's completely chained, swivel him around and lead him out the door, at which point - very, very briefly - he gives the appearance of being somewhat catatonic. And he raises his head briefly. His eyes meet the camera completely blankly.

His head goes back down, and they put sort of a blackened ski mask over his eyes and very large noise-blocking headphones over his ears. And then the guards put their leather black-gloved hands on his shoulders and they all -they walk this masked, clanking prisoner down the hall to the dentist, and then he has a two-hour root canal procedure.

BRAND: His lawyers say that this evidence of torture.

Ms. SONTAG: They don't say that the videotape is evidence of torture. They say the videotape demonstrates the way in which Mr. Padilla was treated in the brig, which was dehumanizing and had an effect on him.

BRAND: But they are saying that he was tortured?

Ms. SONTAG: They are saying that he was tortured during interrogations, yes.

BRAND: And that is one reason why they want the charges thrown out?

Ms. SONTAG: Yeah. They have made several motions to try and get the charges thrown out. They would like to have the judge convene a hearing on the issue of how he was treated in the brig. And they say, basically, that the government has forfeited its right to prosecute by the way that they treated him for the three and a half years before he was actually indicted.

BRAND: What does the Pentagon say about this?

Ms. SONTAG: They just deny the allegations. They don't go into specifications. The government in its responses, in its court papers, just say in strongest terms we deny the allegations that he was tortured. And they say that he was treated humanely while in the brig. And they say it does not behoove us to address the actual specific allegations of mistreatment and torture because there's no evidence provided.

And Mr. Padilla's lawyers say there's no evidence because we haven't had an evidentiary hearing yet. And when they filed a motion and stills from this videotape on Friday in the court, they were attempting to demonstrate that they did have some backup for what they were claiming.

BRAND: If the judge does agree with them - with Padilla's attorneys - what will that mean for his upcoming trial? It's scheduled in criminal court for next month.

Ms. SONTAG: Well, if they were - if she were to agree with them, which would be quite interesting, that would mean that the charges would be dropped. But the federal judge in this case has had a lot of issues to deal with. There are two other active defendants in the trial, and it's a very complicated case.

And pretrial, leading up to this trial, there's been an enormous amount of litigation between the lawyers on the government side and the defense lawyers on almost every issue that's going to be coming into the trial. It's just extremely, extremely complicated.

So if she were to agree to a hearing, it would mean that there would be a public back-and-forth on the issue of how an American citizen held without charges was treated by his own government, and that would be most interesting. If they were to push forward on the issue of whether or not he were competent to stand trial, the judge would have to order an independent psychiatric evaluation to see if that were true. and if she were to determine that I suppose he would be sent to some sort of therapeutic setting.

BRAND: New York Times reporter Deborah Sontag. Thank you.

Ms. SONTAG: Thank you very much for having me.

(Soundbite of music)

BRAND: More coming up on DAY TO DAY from NPR News.

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