05/22/2009 05:12 am ET Updated May 25, 2011

Feingold Sought Bybee's Torture Memo Back In '03, Suggests Impeachment Now

Criticism of Judge Jay Bybee and calls for his impeachment continue to grow, with two leading progressives airing serious concerns about the infamous torture memo author's position on the ninth circuit court of appeals.

On Tuesday, Sen. Russ Feingold expressed his firm disagreement with the White House's previous suggestions that prosecution of former Bush administration lawyers should be off the table (Obama has since left the door open for prosecution). As for Bybee, the Senator's staff sent out a floor statement Feingold made in March 13, 2003, in which he expressed opposition to the Bush administration lawyer's judicial appointment and questioned why his OLC opinions -- so controversial today -- were being kept secret.

"The administration should be able to agree to an acceptable procedure to allow the Judiciary Committee to review Mr. Bybee's OLC opinions. Given the recent history of many OLC opinions being made public, it is hard to believe that there are no opinions authored by Mr. Bybee that could be disclosed without damaging the deliberative process. Indeed, it is very hard to give credence to the idea that OLC's independence would be compromised by the release of some selection of the opinions of interest to members of the Judiciary Committee or the Senate.

Without the OLC memos, important questions about the nominee's views on how far the Government can go in the war on terrorism..."

Meanwhile, speaking before the Religious Action Committee in Washington D.C., Sen. Sheldon Whitehouse said that Bybee's role in crafting the memos that outlined the legal limits of torture caused "grave concerns" and created a "serious whiff of impropriety and impeachability." As he did on the Rachel Maddow Show Monday night, the Rhode Island Democrat said he would reserve judgment on the correct course of action until the Department of Justice put out its report on the Office of Legal Council activities during the Bush years.

"When that report comes out we will look very closely at this office of legal council mess and we will then have a better idea of what went wrong, what went right, where it came from and what we should do about it," said Whitehouse. "So I would defer any firm feelings on that question... until the issuances of that report. Certainly, there is enough in the air to raise a very serious whiff of suspicion."

UPDATE: Feingold's office sends over a statement saying that the seeds Bybee's impeachment have been planted.

The just released OLC memos, including the 2002 memo authored by Jay Bybee, are a disgrace. The idea that one of the architects of this perversion of the law is now sitting on the federal bench is very troubling. The memos offer some of the most explicit evidence yet that Mr. Bybee and others authorized torture and they suggest that grounds for impeachment can be made. Clearly, the Justice Department has the responsibility to investigate this matter further. As a Senator, I would be a juror in any impeachment trial so I don't want to reach a conclusion until all the evidence is before me.

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