A new report alleges the Army's 82nd Airborne Division abused Iraqi prisoners in 2003 and 2004. Two experts assess the allegations and discuss where the Army should go from here.

MARGARET WARNER: Last weekend, Human Rights Watch issued a report saying U.S. soldiers in the Army's elite 82nd Airborne Division routinely abused Iraqi prisoners from 2003 into 2004. The report was based on interviews with an Army captain and two unnamed sergeants in the division's first battalion. They'd been stationed at a base called mercury, near Fallujah.

The report faulted what it called a "failure of leadership" by top military and administration officials for not issuing clear standards about allowable interrogation techniques. Today, the Washington Post published a letter from the Army captain, West Point graduate Ian Fishback, that he had written on Sept. 16 to Senator John McCain.

In the letter, Fishback said he tried and failed over 17 months to get clear, consistent interrogation standards from his chain of command. "I am certain that this confusion contributed to a wide range of abuses," Fishback wrote, "including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation, and degrading treatment."

Fishback urged the senator to "Do justice to your men and women in uniform. Give them clear standards of conduct that reflect the ideals they risk their lives for." The Army said the allegations are under investigation.

For more we go to: John Sifton, a lawyer and a military researcher at Human Rights Watch. He conducted and sat in on many of the interviews in the report; and retired Lt. Col. Robert Maginnis, who had a 20-year Army career. His last assignment was as an Army inspector general and he remains a consultant to the Pentagon.

Welcome to you both.

John Sifton, what exactly did this captain and these two sergeants tell you and your researchers they actually witnessed that the camp near Fallujah?

JOHN SIFTON: Well the two sergeants we spoke with had very clear allegations about the things that they saw at Camp Mercury even some of the things they participated in. The abuse can broadly be divided to two types: one sort of a wanton abuse. A lot of soldiers beat detainees as part of an effort to relieve stress.

But other incidents involved case where's military intelligence officers told the guards to loosen up the people, soften them up before interrogations. The allegations that Ian Fishback -- Captain Fishback has raised concern the latter: the use of military intelligence officers telling guards to soften people up by using physical exertion, sleep deprivation other abuses like that to soften people up but he also reported abuse that was far more serious.

MARGARET WARNER: Were these things he actually witnessed?

JOHN SIFTON: Ian Fishback witnessed softening up, with something they called "smoking detainees;" he witnessed that at both FOB Mercury and other places he was deployed earlier in Afghanistan. At the time he thought those things had been approved by the administration.

He later realized that that was erroneous, especially in Iraq where the Geneva Conventions were applying; he was under the impression they didn't apply.

MARGARET WARNER: First I need to say Col. Maginnis and to our viewers that we invited officials of the Pentagon to actually send a representative and they declined, and you are not here as a representative of the Pentagon; nonetheless, you had a long career in the Army; you were the inspector general. What is your reaction to this and to these reports of abuse by, you know, by an elite unit of the regular Army?

LT. COL. ROBERT MAGINNIS (Ret.): Well, Margaret, reading the report, as I did from all the way through, on face value, it's very disturbing, as John indicated, they're all sorts of allegations in there; but my question is: Can I believe it? As an inspector general I always asked the question: How credible are these witnesses? Two are anonymous and so I'm suspect initially.

You know, the second sergeant is mostly hearsay. The first sergeant has some pretty strong allegations of crimes that can be prosecuted under the Uniform Code of Military Justice, especially as we hold detainees.

The captain's tend to be more hearsay. Yeah, as pointed out he saw perhaps some roughing up but I'm not clear at this point that there were actual crimes. But the overall philosophy of what Ian Fishback said, I'd endorse. I think we need to make sure our officer corps is accountable, but at the same time I took the advantage of having contacts. I talked to a peer of Ian Fishback's that was at the same fire base exactly the same time that knew him, was in the same type of unit. Ian didn't say anything to him over there and in fact, some of the evidence that is cited as evidence he refuted.

So I think that the criminal investigation division of the Army, which is going continue to investigate this, needs look at all of the evidence but in fact, the Army has conducted 500 investigations; more than 200 people are in jail right now because of that.

MARGARET WARNER: John Sifton, go back to Ian Fishback if you would, when did -- does it surprise you that he wouldn't have said something to this other captain, or did he become concerned only after he left? Explain the circumstances there.

JOHN SIFTON: Let me explain two things: One is that Ian Fishback was under the assumption that a lot of these lesser types of abuse, the physical exertions, the stress positions, were authorized. He didn't even know that they were illegal.

MARGARET WARNER: And let me just ask you: Is that what you meant smoking a detainee?

JOHN SIFTON: Yes.

MARGARET WARNER: Okay. Go ahead.

JOHN SIFTON: And the second thing I would say is it would be a mistake to view these allegations in a vacuum. There have been hundreds of allegations made in Iraq, Afghanistan, and Guantanamo Bay; a lot of them are still being investigated, but a lot of them are more serious, a lot of them are the same.

It would be a mistake to say, oh, this is just another allegation by itself. What this is, is the first time that soldiers, including officers, have come forward on their own volition to report abuse.

But if you want to talk about allegations brought by detainees themselves and reporters and other witnesses, they run into the hundreds.

MARGARET WARNER: Okay. But if we could just stay on this one case because it's complicated enough as it is, Captain Fishback, as I read the report, said that -- as you said -- while he was there he actually thought that these were allowed by U.S. policy, some of these techniques. What was the basis of that confusion?

JOHN SIFTON: Well this very much goes back to the initial February 2002 designation, the executive order from President Bush saying that the Taliban and al-Qaida combatants in Afghanistan were not going to be guaranteed Geneva Conventions protection as detainees. Now we believe that's a mistake. But we don't need to discuss that --

MARGARET WARNER: He went on to say they should be treated humanely but didn't define it.

JOHN SIFTON: But didn't define it. As the nominee for the deputy attorney general just said in a congressional hearing the other day, Mr. Flanagan, who's the number two post at Justice, said, I don't even know how it define it. It's not susceptible to succinct definition, humane treatment.

MARGARET WARNER: Could that -- excuse me -- I didn't mean to cut you off.

Col. Maginnis, could that apparent change in policy have caused confusion down at the operational level?

LT. COL. ROBERT MAGINNIS (Ret.): It's possible that a policy change at the top could have a negative impact at the very bottom of the organization but, once again, Margaret, you have a chain of command. You have young officers that are watching these privates and sergeants, and they understand the uniform code that says, Article 93, you don't maltreat a detainee, any prisoner, whether it's a U.S. or a foreigner.

So some of the things that are alleged by especially "Sgt. A" in this report are crimes and they are crimes you would prosecute under any circumstance, so any person in the military that observes a crime must report that crime and those people must be prosecuted.

MARGARET WARNER: And what does it tell you, though, that someone like this Captain Fishback, who apparently came forward of his own volition and really tried to figure this out after the fact when he got back to the states, says there was confusion? Is that his fault, or does that tell you that there is a failure of some sort through the chain of command?

LT. COL. ROBERT MAGINNIS (Ret.): Well, it's quite possible that in the 82nd Airborne -- that unit which happened to have left a rotation at West Point in the summer -- training the plebes -- went back to Fort Bragg, and then went off to Iraq with no real transitional period of time.

So it could be that they didn't get it a refresher training on what they should be doing in treating detainees, much less the Geneva Convention. But keep in mind, you know, the Geneva Convention is important but one of the reasons this administration didn't go, you know, reward Geneva Convention to all these detainees is because a detainee or POW gets, you know, pay; they get access to stores; they get a lot of privileges that we didn't want to give these al-Qaida killers.

MARGARET WARNER: Let me see if I can get you all to agree on one thing. And I'll ask you, John Sifton first, Captain Fishback ends his letter, and we quoted from it, by urging Senator McCain, and I think he sent a similar letter to Senator Warner, chairman of the Armed Services Committee, pleading with Congress to come up with the standards; and he said something like these aren't just military decisions; these are values decisions; and it really shouldn't be left to the Army to make those decisions.

Do you agree that Congress at this point should step in and write clear guidelines?

JOHN SIFTON: Yeah, I don't there can be any disagreement at this point that people are confused. If Bush's nominee for the deputy secretary -- I mean of Justice doesn't know what humane treatment does, if an Army officer doesn't know what it means, if there is court-martials going on where lawyers are arguing about what it means, then clearly you have some problems and it needs to be legislated, made very clear about what's legal and what's not legal.

This isn't about going after troops and punishing low-level people; it's about preventing future abuse; and to do that you need new legislation that clears a lot of this stuff up.

MARGARET WARNER: Do you think this is something Congress should do?

LT. COL. ROBERT MAGINNIS (Ret.): No, I think we have field manuals that already state what needs to be stated. The chain of command needs to emphasize what is already there.

You know, maybe they neglected in that particular unit. You know, the military has gone through 12 major reviews. What I'm concerned about, Margaret, is that what is the end result of this? It's being used as a recruiting mechanism for al-Qaida, for Osama bin Laden in Afghanistan for Zarqawi in Iraq, and that's wrong --

MARGARET WARNER: You're talking about allegations --

LT. COL. ROBERT MAGINNIS (Ret.): -- this entire report --

MARGARET WARNER: But do you think that Congress could put an end to that by being very clear about what humane treatment means, if that's going to be standard?

LT. COL. ROBERT MAGINNIS (Ret.): I think the standard is already clear in the military's regulations but if Congress wants to provide more clarity fine; I just don't see that it's necessary.

MARGARET WARNER: All right, Col. Maginnis, John Sifton, thank you both.