NEWSWEEK's disclosure that attorney General Eric Holder Jr. may appoint a prosecutor to investigate detainee abuse has revived tensions in the Obama administration about how to deal with Bush-era controversies. CIA Director Leon Panetta and other agency officials were blindsided, and say Holder is spinning his wheels: they argue that the CIA inspector general's report, which the A.G. told associates "shocked" him, was delivered to the Justice Department more than five years ago. "This has all been reviewed and dealt with before," says Paul Gimigliano, a CIA spokesman.
After the IG report reached Justice, a task force was set up in the U.S. Attorney's Office in Alexandria, Va., that reviewed about 20 criminal referrals of detainee abuse sent over by the CIA and military criminal investigators. Officials familiar with the referrals have said they were horrific: one involves allegations that a naked prisoner in CIA custody in Afghanistan froze to death after being left in a prison known as the "salt pit."
But task-force prosecutors say they ran into a host of problems, including a lack of witnesses and forensic evidence, and declined to prosecute in all but one case. "We wanted to make these cases, but they just weren't there," says Rob Spencer, the former career Justice prosecutor who headed the task force until 2006. Ken Melson, who oversaw Spencer's work and was appointed by Holder as acting Alcohol, Tobacco, Firearms and Explosives director, says the cases were "looked at aggressively" and without political pressure. "I think we made the right decision on these cases," he says.
But a Holder aide, who didn't want to be named until the A.G. makes his decision, says the task force's work took place under the "Bush Justice Department" and merits a fresh "review" by a new prosecutor. (The aide hints that there may be new information that has influenced Holder's view on the subject.) Still, Justice officials say any review will not involve investigating senior Bush officials who ordered enhanced interrogation techniques. Such restrictions will infuriate human-rights groups. If that's what Holder orders, says Tom Malinowski of Human Rights Watch, he'll do "just what Bush did at Abu Ghraib"—go after a few "bad apples" and leave the policymakers ultimately responsible untouched.