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Do You Have Legal Right to Decline Airport Body Scan?

This is a RUSH transcript from "The O'Reilly Factor," November 9, 2010. This copy may not be in its final form and may be updated.

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BILL O'REILLY, HOST: In the "Is it Legal?" segment tonight: We've got three hot topics, so let's get right to attorneys and Fox News analysts Kimberly Guilfoyle and Lis Wiehl. So Wiehl, full-body scan at the airport.

LIS WIEHL, FOX NEWS LEGAL ANALYST: Yes.

O'REILLY: I have a bunch of very simple questions because I am a simple man, as you both know.

WIEHL: Yes.

O'REILLY: No. 1, say you don't want to go through that machine.

WIEHL: Right.

O'REILLY: Do you have a Plan B? Will they give you an option?

WIEHL: In most airports you can say, "I don't want to have those X-rays." You can see there where they can see every little last thing of you. Any broken bones, they'll see that. You can have a pat down by a person of the same sex, so a woman patted down by another woman.

O'REILLY: You can opt -- you can opt out for the pat down.

WIEHL: Right.

O'REILLY: Now, they also, I understand, when they're looking at the full-body scan machine, it's the same sex looking at it.

WIEHL: Right, right. That's what it's supposed to be anyway.

O'REILLY: OK. All right. So they're trying to take that out.

WIEHL: Right.

O'REILLY: And I also understand that immediately after you pass through the machine it's deleted. Is that true?

WIEHL: That's supposedly true. Both of those things.

O'REILLY: But all of those things are subject to...

WIEHL: Of course, mistake, human error.

O'REILLY: Mistakes or somebody...

WIEHL: Maybe a woman calls in sick, a guy calls in sick, and so they've got to have somebody else there.

O'REILLY: So legally then, Guilfoyle if you say, "Look, I don't want either of these two options," you can't fly?

KIMBERLY GUILFOYLE, FOX NEWS LEGAL ANALYST: Well, yes. And really stop complaining. People should understand that this is a threat to our national security.

O'REILLY: We all know why it's instituted. But you -- but the airline and the federal government has a right to say if you're not going to do either/or, you're not going.

GUILFOYLE: Absolutely, because they have provided a less intrusive means for you to go through, and you do the pat down.

O'REILLY: What's -- the pat down is pretty intrusive though. A pilot punched out some guy because the guy was grabbing him someplace, I guess. I would rather have the machine than the pat down. I don't want to be patted down by Lenny. I'm sorry.

GUILFOYLE: I agree. And at a certain point…

O'REILLY: Vinny or Lenny patting me down.

GUILFOYLE: Why not? Let them see it.

O'REILLY: I'd rather hitchhike.

GUILFOYLE: Come on.

O'REILLY: I don't want them patting me down.

GUILFOYLE: Then go through the machine.

O'REILLY: I will. I don't have any problem with the machine.

WIEHL: There's no Fourth Amendment right here. The Fourth Amendment is the right against unreasonable search and seizure. The Supreme Court has ruled on this. Take the pat down or the X-ray.

O'REILLY: It's either you go through the body scan, you get patted down or you hitchhike where you want to go.

GUILFOYLE: Right. It's a small sacrifice to make. Let them see you rather than having a plane get blown up.

O'REILLY: It's easy for you to say, Guilfoyle.

GUILFOYLE: I have nothing to hide. Scan me.

O'REILLY: All right. I don't want to get into that. All right. Now in Oklahoma, Guilfoyle...

GUILFOYLE: Yes.

O'REILLY: ...there's a judge, this Muslim guy sued because the Oklahoma voters said no to Sharia law and international law, as far as its impact in the state of Oklahoma. They voted. It was a proposition. And they said no, and this judge said, "You know, this Muslim guy may have a point, so I'm going to stay it." This is all theater to me. It doesn't mean anything. But what was her rationale?

GUILFOYLE: Well, ultimately she's saying, "Look, we have to look into whether or not this is violating their rights or it persecutes a certain religion, so I'm going to issue a temporary restraining order. And it's going to be stayed until November 22, when I will decide if a permanent injunction should be issued banning this amendment."

O'REILLY: So one judge can, once again, overturn the will of the whole state?

GUILFOYLE: Absolutely. So it's legislating from the bench.

WIEHL: Wait. Overturning it. Overturning it till -- all she's saying is...

O'REILLY: She's going to decide.

WIEHL: ..."I am going to wait until November 22." All she has said so far is "I'm going to wait till November 22..."

O'REILLY: Yes.

WIEHL: "...and I'm going to have a hearing on whether international law can apply." And let me tell you, Justice Roberts at his confirmation hearings talked about...

O'REILLY: Well, you've already said that there are some problems with the proposition the way it was written because of the international law thing.

WIEHL: That's right.

O'REILLY: OK. All right. I just don't like the one judge overturning the rule of the people.

GUILFOYLE: Absolutely. It's legislating from the bench.

(CROSSTALK)

GUILFOYLE: It's inappropriate. We shouldn't have Sharia law in effect.

O'REILLY: A few years ago, a guy, a hacker tried to bring down BillOReilly.com. Cost us a lot of money and did a lot of damage. And he was caught by the FBI after an extensive investigation, Wiehl. And in federal court he was sentenced to what?

WIEHL: Two and a half years. Thirty months of federal time...

O'REILLY: Federal time.

WIEHL: ...which is hard time. And then three years of supervised release after that. It's a very strict punishment, in my estimation, for hacking into BillOReilly.com.

O'REILLY: Now why did he get such a strict punishment?

WIEHL: Well, the guidelines were 10 to 16 months, and I could see that. But what he did, his fatal flaw, is he lied to the pre-sentence report officer, the person that's writing down everything that he's telling him to write to put this report together for the judge. He said, you know, "I was working at Stanley Steemer cleaner."

O'REILLY: He put himself off as a pillar of the community. And it was actually a University of Akron guy, right?

WIEHL: It's a sad case. Twenty-three-year-old guy. Got a baby.

O'REILLY: Not sad. He's a pinhead. But he lied. How did he lie?

WIEHL: He lied in the pre-sentence investigation report. He said he was working at this cleaner place. He was actually online...

GUILFOYLE: Operating a business and making money.

O'REILLY: What was he doing?

GUILFOYLE: He was afraid to tell the probation officer, yes.

WIEHL: Pot.

GUILFOYLE: Pot.

O'REILLY: He was a pot dealer. He was a drug dealer.

GUILFOYLE: He wasn't sympathetic about this at all.

O'REILLY: But I would have given him 10 years.

GUILFOYLE: Put him behind bars.

WIEHL: Guidelines were 10 to 16.

GUILFOYLE: Have some personal responsibility and...

O'REILLY: And you didn't even want to say that, Wiehl. I think you should be ashamed of yourself. So the guy -- not only was the guy a hacker trying to bring down BillOReilly.com, he's selling drugs at the same time. So, good, he's going away for 30 months, right?

GUILFOYLE: You know what he said? "I was afraid my probation officer..."

O'REILLY: Afraid? All right. And he's got to pay us 40 grand.

GUILFOYLE: Forty thousand dollars.

WIEHL: We all get a share of that?

O'REILLY: No, because I give -- I give everything I get to charity. So charity is going to get a large portion of that 40 grand.

WIEHL: That $40,000...

O'REILLY: Yes.

WIEHL: ...don't be waiting for that check in the mail.

GUILFOYLE: Let me tell you something. He shut down your site, which doesn't allow people to get the charitable money that they want.

O'REILLY: Why shouldn't I wait? Isn't that check in the mail?

WIEHL: No. That check is not going to be in the mail for a long time.

GUILFOYLE: It might bounce.

O'REILLY: Because he doesn't have any money.

GUILFOYLE: We're dealing with a criminal here.

O'REILLY: Where did he bury all the pot money? We've got to find it.

WIEHL: Maybe he smoked it.

GUILFOYLE: In the backyard. Get a warrant.

O'REILLY: All right, ladies. Thanks very much.

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