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Can U.S. Legally Kill Iranian Leaders With Predator Drones?

This is a RUSH transcript from "The O'Reilly Factor," October 13, 2011. This copy may not be in its final form and may be updated.

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BILL O'REILLY, HOST: In the "Kelly File" segment tonight: Attorney General Eric Holder gets subpoenaed, Amnesty International wants President Bush arrested, and a very compelling question: Would it be constitutional for the Obama administration to attack Iranian leaders using predator drone missiles?

Here now, attorney and Fox News anchor Megyn Kelly. All right. This is obviously off the alleged terror plot, and just today Hillary Clinton saber-rattling, saying, "Hey, we're convinced top echelons of the Iranian government knew about this. They paid money to make sure it happened." What do we do?

MEGYN KELLY, FOX NEWS ANCHOR: It's a political question for President Obama and a military question for him, but it's not really much of a legal question because legally he can do it.

O'REILLY: OK.

KELLY: If he wants to do it…

O'REILLY: Let me stop you there. So there's no difference between killing bin Laden, al-Awlaki with a drone, OK? Just today they killed another big terrorist guy in Pakistan with a drone. We could drop a drone right down Ahmadinejad's nose legally?

KELLY: We can go after Iran. We can start a military conflict with Iran. President Obama can do that tomorrow.

O'REILLY: With the drones. Boom.

KELLY: Just the same way...

O'REILLY: Ahmadinejad, ah.

KELLY: Look what we did in Libya. It was a lot -- it's a lot more than what you are talking about right now. And he didn't seek congressional authority, although he should have technically under the law. But even if he didn't, which he didn't, no one has ever gone after a president for doing this.

O'REILLY: OK. So legally, he could take the mullahs out. He could take Ahmadinejad out. He could send them a message, saying, "Look, you try to do this on our soil, here's what happens to you."

KELLY: The law is technically he's supposed to have an imminent threat against the homeland, or...

O'REILLY: I think blowing up an embassy in Washington is an imminent threat, don't you?

KELLY: But that threat's been stopped, so technically you can make the argument.

O'REILLY: But -- but the fact that it's been stopped doesn't really matter because the threat is still there. What's to say they wouldn't do it again, if you could prove they did it the first time?

KELLY: You can make that argument. I was going to say, the definition of imminent threat is pretty broad.

O'REILLY: Right.

KELLY: So he can make that argument. And if he can't make that argument, he needs congressional statutory authority, which he doesn't have...

O'REILLY: So you, in your opinion...

KELLY: But presidents have been blowing that off for 40 years.

O'REILLY: But your opinion, if President Obama wanted to, he could drone these guys?

KELLY: Yes.

O'REILLY: All right.

KELLY: Legally.

O'REILLY: Eric Holder, the attorney general, received a subpoena today. Tell me about that.

KELLY: So Issa, who heads up the House Oversight Committee, which is controlled by the Republicans now that they control the House, is subpoenaing the attorney general and other top Justice officials. And he wants in particular all communications that Eric Holder and others have had about Operation Fast and Furious internally with the White House, etc. He wants it all. He wants it to be unredacted, because so far everything they've given, you know, from the government has been heavily redacted.

O'REILLY: Is he entitled to get that?

KELLY: I think so. Yes, I mean, he is. And Eric Holder says that he will comply with the subpoena.

O'REILLY: All right. So they're going to get every memo. They're going to get all the conversations.

KELLY: I didn't say they're going to get it.

O'REILLY: But that's what they've asked him?

KELLY: He's entitled to it.

O'REILLY: But you just said that Holder says he's going to comply.

KELLY: Yes, but trust me. It's going to be heavily redacted, and they're going to make assertions of privilege and other reasons not to produce at all.

O'REILLY: So they -- say they do that. Then goes into this never-ending legal thing for years until the Supreme Court has to say, "This is what you give me. This is what you don't." That's what you think is going to happen?

KELLY: You need -- well, they have to produce enough -- they might produce enough that the true story will come out about who knew what and when when it comes to Operation Fast and Furious. In the absence of that, there's going to have to be a leaker who tells us that there is something there that they're not producing.

O'REILLY: This is like...

KELLY: They're lawyers at the Department of Justice.

O'REILLY: This is the same thing that happened to the Bush administration about waterboarding and the CIA activities, that they wanted it...

KELLY: It's not the crime; it's the cover-up. This operation has been in place for years. The problem for Eric Holder is the Department of Justice has been withholding the full story on this from the beginning.

First they told Congress the operation didn't exist. Not true. Then they said DOJ had nothing to do with it. Not true. Then they said Eric Holder only learned -- Eric Holder said he only learned about the operation in April or March of 2011. Well, then they produced documents that show...

O'REILLY: Yes, the memos came out.

KELLY: But let me finish. This is an important point. Ten months earlier he had been receiving briefings or information on it. Then the DOJ came out and told Fox News there's a difference between knowing about an operation and knowing about the controversial aspects of the operation. So he said OK, that's the explanation.

No, it wasn't. Eric Holder comes out in a statement a couple of days after that and says, no, I'm sticking to my original statement that I didn't know even about the operation. They can't even get their story straight within the Department of Justice.

O'REILLY: So, all right. This is a very big story.

Now, the "Is It Legal?" ladies, you know them, right?

KELLY: I know them.

O'REILLY: You guys sit at the same hairdressers.

KELLY: I used to be an "Is It Legal?" lady.

O'REILLY: Now you, they say Holder is done; he's going to have to resign.

KELLY: I don't know about that.

O'REILLY: So you don't...

KELLY: I don't know about that. But I do -- I do think they have an obligation to be fully forthcoming about...

O'REILLY: They could probably stonewall it for a year until the next election.

KELLY: And President Obama loves Eric Holder and says he has his full confidence.

O'REILLY: Absolutely. Very strong bond between the two men.

All right. President Bush going to Canada to give a little speech, and Amnesty International wants the Mounties to grab him, Dudley Dooright, put the cuffs on him, for what?

KELLY: Because they say he committed war crimes when he authorized, in their words, torture, enhanced interrogation.

O'REILLY: So it's the same old stuff?

KELLY: Yes.

O'REILLY: And they figure the Canadian government may be sympathetic to this?

KELLY: They feel that President Obama has been derelict in his duties in not arresting our former president.

O'REILLY: Right.

KELLY: And now they are looking to Canada to step in where the United States would not to arrest our former president so he can go be tried.

O'REILLY: What are the odds that the Mounties surround Bush's hotel and kick the door in?

KELLY: I would say between slim and none, and slim is on vacation?

O'REILLY: That would be war. Then we'd have to invade Canada.

KELLY: It's so ridiculous.

O'REILLY: Which we probably should have done right after the Revolutionary War.

KELLY: This was once a legitimate group, Amnesty International. You know? I mean, this kind of stuff does not help their cause.

O'REILLY: Amnesty International?

KELLY: Yes.

O'REILLY: You've got to understand, it's like the ACLU.

KELLY: They want it, too.

O'REILLY: Yes. They got their hardcore far-left people giving them money. They're not going to convince anybody else. I mean, they're just far out there.

KELLY: And you know, you -- they stand for some legitimate issues. Human rights, which are being abused in many places. But did they go to Canada and say when Fidel Castro went there, that they wanted him arrested?

O'REILLY: No, of course not.

KELLY: No problem.

O'REILLY: How about Ahmadinejad? Did they want him arrested?

KELLY: "Welcome to Canada. Enjoy Toronto."

O'REILLY: That's right. All right. Megyn Kelly, everybody. There she is.

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