New debate over New York terror suspect's legal rights

This is a rush transcript from "Your World," December 11, 2017. This copy may not be in its final form and may be updated.

NEIL CAVUTO, HOST: All right, the rush hour is on.

New York beefing up security at airports and bridges and tunnels and mass transit systems in the wake of today's terror attack in the New York City subway system. Now, it is not just a concern for the Big Apple, but pretty much across the country, Any major transit hub, whether at a big locale or not, all this are we are learning a lot more about the suspected bomber. He darn near pulled it off.

Eric Shawn in New York with the very, very latest -- Eric.

ERIC SHAWN, FOX NEWS SENIOR CORRESPONDENT: Yes, Neil, the suspect, reports say, was inspired by the ISIS call to commit terrorist attacks during the Christmas holidays, that he was walking in that subway corridor when he saw a holiday poster and that set him off, they say, to explode his device.

The suspect is identified as a 25-year-old former licensed delivery cab driver from Brooklyn, who originally came to this country from Bangladesh. His name is Akayed Ullah. He arrived in the United States seven years ago on a so-called chain immigration visa. That is the type of visa that President Trump wants to end because it allows family members to enter this country.

A photo of Ullah shows him curled up and crumpled right after the bomb went off. He had suffered burns on his arms and stomach from the pipe bomb that was attached to his body through velcro and zip ties. Three passerbys also wounded. The brother of one woman say she was left temporarily deaf and dizzy.

Take a look at the shocking video of the moment of the explosion. It shows the smoke and the haze. Police call the device unsophisticated and small. They say Ullah made it in the electronics score shop that he works at.

New York City Police Commissioner James O'Neill:

(BEGIN VIDEO CLIP)

JAMES O'NEILL, NEW YORK POLICE COMMISSIONER: He had burns and wounds to his body. Preliminary investigation at the scene indicates this male was wearing an improvised low-tech explosive device attached to his body.

He intentionally detonated that device.

(END VIDEO CLIP)

SHAWN: The police and the FBI later searched his neighborhood in the Flatlands neighborhood of Brooklyn and that of his parents' nearby.

There are reports that Ullah admitted making the bomb, that he followed ISIS videos on the Internet and tutorials on bomb-making from radical Islamic sites in order to pull this off.

New York City Mayor Bill de Blasio said the New York City subway is the lifeblood of the city, and it strikes at the very heart of New York.

(BEGIN VIDEO CLIP)

MAYOR BILL DE BLASIO, D-N.Y.: Let us be clear. As New Yorkers, our lives revolve around the subways. When we hear of an attack in the subway, it is incredibly unsettling.

And let's be also clear. This was an attempted terrorist attack. Thank God the perpetrator did not achieve his ultimate goals.

(END VIDEO CLIP)

SHAWN: Well, in 2010, just blocks from here in Times Square, there was another attempted terrorist attack that also fizzled, thankfully.

By the way, Ullah is expected to face terrorism charges in federal court, ironically, the very same federal courthouse which just six weeks ago terror suspect Sayfullo Saipov appeared. Saipov, as you may recall, is charged with carrying out that ISIS -- also ISIS-inspired terrorist attack on the bike lane by driving that Home Depot pickup truck, killing eight people -- Neil, back to you.

CAVUTO: Eric Shawn, thank you very much, my friend.

What are investigators going to be focusing on right now?

Let's ask former FBI Assistant Director Ron Hosko.

Ron, what do you think?

RON HOSKO, LAW ENFORCEMENT LEGAL DEFENSE FUND: Well, Neil, I think they will be starting with people in the links of that chain migration that Eric mentioned.

That is a starting point. They certainly will be conducting a detailed search of his house, of his social media, of his social network, phone contacts, of our holdings, our intelligence community's holdings of contacts overseas, to see what the other three-letter agencies may have about this person.

Very disturbing and very concerning that someone of this nature, even this low-tech of a device, gets into the heart of Manhattan and then is able to explode it.

CAVUTO: You know what is interesting? He just bungled it.

But he didn't -- he could have done a lot of damage. I know authorities are -- rightfully breathe a sigh of relief and pass along that this is been stopped, but there but by the grace of God and just a couple of turns of advents, it would have been a very different outcome.

HOSKO: Yes, Very true.

Even a crudely crafted device that may have not detonated as he intended -- typically, terrorists are looking to load these things up with shrapnel. And when you're talking about detonating something that has significant power in a confined space with a lot of people present, really, in ways, the ideal target, and certainly ideal for as a terrorist target in New York City.

The notion that just he came out principally injured and not too much for everybody else is really almost miraculous.

CAVUTO: What do you think in terms of help that he might have had?

HOSKO: Neil, there's no telling.

But, here, it looks like he was not a particularly good craftsman at design. And it could be this was the first device that he built. Certainly, law enforcement will be looking for evidence that he built others and may have taken them someplace, a range or out into the woods somewhere, to detonate them.

But it looks he was not a particularly good craftsman. And as I said, these devices can turn deadly on the builder. We saw that with a skilled bomb builder, Ramzi Yousef, a few decades ago, who had a fire and a detonation prematurely and injured him.

These things can go off. If it's black powder as the explosive, those things are sensitive to pressure and friction. And so it looks like he was not very rehearsed. Probably did not have a lot of help. It sounds like radicalized or learned on the Internet. That is a good thing for other people that were in this subway tunnel today.

CAVUTO: When they talk about radicalized on the Internet, and I know I hear that a great deal, Ron, I have pestered you with this same theme when, sadly, we do get together to talk about these attacks, does that mean that he is radicalized on his own?

And who is radicalizing him? Is he reading stuff on the Internet and he just become more and more aggressive? What?

HOSKO: It could be a combination of things, Neil.

There are certainly videos that are available, although some of the tech firms are doing better and better at pulling those sorts of graphic terror- inspired videos down as soon as they are identified.

But there are online magazines that are terror magazines that you can locate pieces or potentially the whole magazine. You can learn and read about hate, read about the destruction, read about the ideology. And it can be a combination of that.

It can certainly be people in the neighborhood, people that are associated with him. And certainly the Internet is a feeder and a driver of these things today.

CAVUTO: Ron, thank you, as always. Your expertise comes in handy.

Ron Hosko, the former FBI assistant director.

Now, this is the second time in as many months that we have seen targeting the Big Apple. The attack in a subway passage near Times Square today and of course the truck attack in Lower Manhattan on Halloween.

New York Governor Andrew Cuomo saying this morning that the reality is New York is indeed a target, always will be.

(BEGIN VIDEO CLIP)

GOV. ANDREW CUOMO, D-N.Y.: This is New York. The reality is that we are a target by many who would like to make a statement against democracy, against freedom. We have the Statue of Liberty in our harbor, and that makes us an international target.

(END VIDEO CLIP)

CAVUTO: Last time I had the pleasure of speaking with Tara Maller, she was echoing that theme, that, like it or not, cities like this one and many others are targets for those who wish us ill.

Former CIA analyst Tara Maller.

Here we go again, Tara. This could have been a whole lot worse, but it is a reminder that bad guys sort of like going after big cities, the Big Apple chief among them, huh?

TARA MALLER, NEW AMERICA FOUNDATION: Absolutely. This is concerning, but it is not surprising. This attack shouldn't be surprising for a number reasons.

Number one, New York City, that has always been on the terrorist watch list in terms of targets. Number two, transportation hubs. We saw this happen sort of in the crosswords of the Times Square area and Port Authority, underground, a known type of target for terrorists.

Number three, ISIS has lost territory and has been calling for these types of attacks. And we have seen this over the past year. And I guess also, number four, the fact that there was an online, what seems to be at least from the initial reports, an online element to this, that the individual probably was not -- at least no evidence yet -- part of a larger coordinated team, or with really high-level training, but probably came across a material online in some way or contacted with terrorists or their materials online.

So, all four of those show why this is again concerning, but not surprising.

CAVUTO: Tara, obviously, we had enough intelligence to determine that there was chatter, noise about something in New York, something at Christmastime, something during the holidays.

We knew enough about an intention. But it is hard to go from there, right, because, A, it is a big city, B, there's a lot of chatter, right?

MALLER: Right.

So, obviously, around the holiday time, we always see these sort of general strategic warnings. I believe the State Department before its current worldwide travel alert had a holiday alert out about a month or so ago.

And they traditionally do this. We saw last year in Germany the Christmas market bombing. You have seen more increased perimeters down here in Washington. I just drove past the Christmas market barricaded outside, because these are areas of concern.

But, again, that is a strategic warning. That's not a tactical warning in terms of specific intelligence on a specific time or a place. You have millions of people in the morning commuting in New York City.

It is very difficult, unless an individual is on a watch list or unless there are signs to authorities can pick up on and lead up to an attack.

But I will say that the previous guest mentioned a lot of this content, while the tech companies have taken down some of it, a lot of it remains online. And that's the next battlefield here.

Our organization, Counter Extremism Project, has been trying to pressure companies to get this radicalization material off the Internet. YouTube recently took down Anwar al-Awlaki videos which have been instrumental in many of these radicalization cases.

But there is still a wide range of materials out there for actors to latch on to and to instruct them and radicalize them from the comfort of their own home or on their iPhone.

CAVUTO: Scary. Very, very scary.

Tara Maller, thank you very much, a former CIA analyst.

MALLER: Thank you.

CAVUTO: Would Donald Trump's immigration plan, where he was going to call for what some said extreme vetting, have changed any of this?

After this.

(BEGIN VIDEO CLIP)

SARAH SANDERS, WHITE HOUSE PRESS SECRETARY: If his policy had been in place, then that attacker would not have been allowed to come in the country.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

CAVUTO: Well, the White House not wasting any time calling for immigration reform in the wake of today's New York terror attack.

Could anything it would have done in those prior crackdowns on illegal immigrants and regular immigrants being sort of siphoned through the system here have changed what happened?

FOX News Channel's Kevin Corke from the White House right now.

Hey, Kev.

KEVIN CORKE, FOX NEWS WHITE HOUSE CORRESPONDENT: Hey there, Neil.

You're right about this. Listen, the White House once again renewing its call for an end to chain migration, this in the wake of the news that the alleged perpetrator of today's bombing in the city benefited from exactly that.

Now, let me just sort of explain this for the folks at home who do not sort of follow the inside baseball terminology. Chain migration, it is a process that allows immigrants to sponsor the migration of extended family members, you know, a mom, a dad, a grandparent, cousins, et cetera.

The 27-year-old in custody following today's attack is from Bangladesh, has lived in the U.S. since 2011, and according to Department of Homeland Security, you got it, benefited from the precisely type of chain migration that President Trump and several key Republican lawmakers hope to end.

(BEGIN VIDEO CLIP)

QUESTION: Is the president concerned that there is a growing threat against people inspired by ISIS who have been radicalized online?

HUCKABEE SANDERS: I think the president is certainly concerned that Congress, particularly Democrats, have failed to take action in some places where we feel we could have prevented this.

Specifically, the president's policy has called for an end to chain migration. And if that had been in place, that would have prevented this individual from coming to the United States.

So, the president is aggressively going to continue to push forward responsible immigration reform. And any chain migration would certainly be a part of that process.

(END VIDEO CLIP)

CORKE: Wasting no time in getting right to ti.

By the way, a recent FOX News report found that more than 70 percent of immigrants from 2005 to 2015 benefited from chain migration, thus the push by the White House to curb the practice.

I should also point this out. I think you will find this interesting, Neil, for context. About 140,000 nationals from Bangladesh have immigrated to this country between 2005 and 2015. And for perspective, that is almost equal to the entire population of the city of Syracuse, New York.

A lot of people, and thus a great deal of intention from the White House moving forward -- Neil.

CAVUTO: All right, that's amazing stuff. All right, thanks, buddy, very, very much.

Well, the suspect was, as Kevin pointed out here, technically legally, so does he legal rights?

Former D.C. police detective and defense attorney Ted Williams.

Ted, what do you think?

TED WILLIAMS, FORMER D.C. POLICE DETECTIVE: Well, good afternoon, Neil.

The problem is, yes, he does have legal rights. He's enclosed in the Constitution by just -- by the virtue of being here in the United States.

I heard Senator Lindsey Graham earlier this morning asking that this guy be treated as an enemy combatant. And I have got to tell you, I agree with Senator Graham. And my rationale for that agreement is simply this.

When someone commits a terrorist act, where they are trying to kill us in this country, I think that the intelligence community should have the first dibs at that person to try to get all of the information that they can prior to them lawyering up and having constitutional safeguards.

CAVUTO: You know, I do worry about the lawyering up part, because they're quiet after that point, right? There's a brief period in which you might have a shot at getting something from them. Do you suspect, Ted, that authorities have, or no?

WILLIAMS: Right.

In this instance here, it seems as though that this guy was very talkative and is giving the authority quite a bit of information. But, again, that is probably on his -- voluntarily and prior to him speaking to a lawyer, because if he came to me, and they advised him of his Miranda rights, I would tell him to shut up and not say anything, if I was going to be his lawyer.

So, again, that is a catch-22 in this country right now.

CAVUTO: Ted, switching gears a little bit, do you think he had helped?

WILLIAMS: You know, it is hard to say at this time, because he was such an amateur about the manner in which he made this bomb, the way he carried this bomb, and the manner in which it appeared to have exploded.

But I can tell you, Neil, that that is certainly something that the authorities are clearly following up on at this stage in the investigation.

CAVUTO: What happens when these sort of things happen?

I often say it's more than coincidental that, every time we get a report that ISIS is on the run or in trouble in Iraq, it's getting shoved out of Iraq, getting shoved out of Syria, getting shoved out of all these other countries, that, lo and behold, a lone wolf, inspired by ISIS, or radicalized by and to ISIS, pulls off something like this.

That can't be accidental.

WILLIAMS: It can't be accidental and it is not accidental.

These guys are able to use social media sites. And ISIS and these other groups are able to know how to influence individuals who are here already in the United States and how to radicalize them here to do the harm that they do.

So, Neil, it is sort of like a needle in the haystack. We can't get at all of these guys. The intelligence communities clearly have some of these guys on the radar screen, but it's very difficult to get at somebody who is radicalized and who wakes up some morning and says, I'm going to make a bomb, and I'm going to go out and kill Americans.

CAVUTO: Yes, amazing. Amazing. Amazing.

Ted Williams, thank you very, very much.

By the way, back to politics now, we're just getting word that basketball great Charles Barkley, an Auburn basketball legend in his own right as well, will be campaigning for Doug Jones, the Democratic candidate, in Alabama tonight.

So, obviously, the pressure and the big names are on, as they make the closing argument to Alabama voters with the big election tomorrow.

More after this.

(COMMERCIAL BREAK)

CAVUTO: All right, down to the final hours right now in that Alabama Senate campaign.

Republican Roy Moore, Democrat Doug Jones trying to get a last big boost from some big names in their respective parties.

Fox Business Network's Hillary Vaughn in the Midland City, Alabama, with the latest.

Hey, Hillary.

HILLARY VAUGHN, FOX NEWS CORRESPONDENT: Hey, Neil.

Well, the secretary of state of Alabama tells me they have never seen an election like this before, but they expect about 20 percent of voters to hit the polls tomorrow. So, phones across Alabama are ringing in big names in both parties sending out robo-calls, former President Barack Obama, former Vice President Joe Biden, President Donald Trump all getting calls out to rally their support for both parties.

So, the latest Fox News poll, though, shows Jones 10 points ahead of Moore. So, stakes are really high for Moore tonight, as he faces his conservative base for a final time before polls open tomorrow.

He is holding a drain the swamp rally at the barn behind me here in Midland city. He is going to have a full bench of conservative firebrands behind him, including Steve Bannon.

A source tells Fox News that one of the surprise guests here tonight will be Sheriff David Clarke.

And a source close to Bannon tells me what their strategy is here tonight, writing -- quote -- "Steve and the gang will lay out the case of why Doug Jones is a radical leftist Democrat trying to take down President Trump. Democrat Jones and his pack of lunatic leftists, like Cory Booker, are trying to desperately invade Alabama to push Trump out of office."

Now, Jones today jumping on unconfirmed reports that Moore was out of the state over the weekend attending the Army-Navy game. Of course, that has not been confirmed, but Jones nevertheless taking the opportunity to attack his opponent.

(BEGIN VIDEO CLIP)

DOUG JONES, D-ALABAMA SENATORIAL CANDIDATE: Roy Moore was not even in the state of Alabama over this weekend. You all have covered politics for a long time. When is the last time you have heard of a candidate for statewide office leave the state?

(END VIDEO CLIP)

VAUGHN: Now, Moore did not have any public campaign events over the weekend.

But while Jones is getting more face time with voters, Moore is saying that Jones is pretending to be a candidate that he is not.

(BEGIN VIDEO CLIP)

ROY MOORE, R-ALABAMA SENATORIAL CANDIDATE: I think he is viciously attacking me because he knows his values, his -- his standards are not what the Alabama people find dear to them.

He is basically painting himself as a moderate, when, in fact, he is a very liberal Democrat.

(END VIDEO CLIP)

VAUGHN: Now, Neil, there is still a chance that some conservative voters here could choose to write in a candidate, instead of backing Moore, if they are still not sold that he is the right guy for the job.

We talked to many Republican voters throughout the state as we went on our road trip around town over the weekend. And a lot of people said, they still have not made their mind up yet, Neil.

CAVUTO: All right, Hillary Vaughn, thank you very, very much.

All right, that's why these polls can be all over the map, but one stood out, a FOX News poll today that has Doug Jones leading Republican Roy Moore by 10 points.

To pollster Frank Luntz.

Frank, always good to have you.

These polls, I don't think I have ever seen such disparity in polls, sometimes coming out the very same day. What is going on?

FRANK LUNTZ, POLLSTER: I have told people, don't pay attention to them because you do not know what is going to happen.

At a 20 -- let's say that you are right, that there's a 20 percent turnout. Who turns out determines who wins. I do not see the same kind of excitement in the African-American community, will be somewhere between 95 percent and 97 percent for Doug Jones.

I do see tremendous excitement with conservatives trying to state a message in favor of Moore and against the Democrats and the elitists in Washington, D.C.

That said, I can't call it -- and I have never been afraid to call an election up to this point -- because I do not know the makeup of that actual electric tomorrow.

CAVUTO: Wow.

It is about jazzing your base, I guess. Hence, you get reports that Charles Barkley, the basketball great, will be there on Jones' behalf tonight. We know the president has been robo-calling on behalf of Roy Moore.

Do these sort of outside players, big and as important as they are, all the way up to the president of the United States, and Barkley, of course, in the case of Jones, do they move the needle? Can they bring out the vote?

LUNTZ: I do not believe that Barkley will, although he's very well respected in the state for his commentary and for his athletic prowess.

I think -- and I had a chance to talk to Moore voters done there. And you can see it on YouTube if you type in my name. In listening to what the voters had to say, their priority was sending someone who would not undermine the Trump agenda. Alabama is one of Donald Trump's strongest states.

And the objective also was to send someone who they believed was a true conservative who is prepared to fight for conservative values. There is a tremendous amount of aggression. Neil, it is outright passion and there's anger against both sides.

And I have got to wonder how long it is going to take for the state to heal itself after this election, because it really has torn itself apart.

CAVUTO: The big issue for Democrats is that they quietly hope that Moore wins, because that would always be an albatross around the neck of Republicans. What you make of that?

LUNTZ: Nobody -- I mean, nobody ever hopes to lose an election, no matter what they say. That is just political posturing.

The Democrats want to send a message across the bow. And let's face it. If you elect a Democratic Alabama in senator, that's going to scare the heck out of people in Washington, D.C.

Conversely, if you elect Judge Moore, you are going to have weeks and even months of controversy right here in Washington. Does he get seated? What kind of investigations happen?

And it's one of the reasons why voters are paying more attention to this election than any off-year special election that I can remember in modern times. Everybody has an opinion. Everybody is emotional about it.

Nobody wants to hear from the other side. And so that division that I speak of in Alabama, it is taking place all across America.

CAVUTO: Yes, a microcosm of what we have seen already.

Thank you very much, my friend, Frank Luntz, pollster extraordinaire.

Type in his name, you see a lot of smarty-pants stuff.

(LAUGHTER)

CAVUTO: All right, by the way, that election is so important, it could move markets as well. It has a lot to do with the makeup of the United States state, which is why, on FOX Business, beginning at 8:00 p.m. Eastern time, we are on it, as long as it takes.

When the polls close, and when we have the final results, we are there.

But here is the added bennie that we have. We have instant market and financial reaction around the globe. So, that is like getting the best of general news and the best of business news, all combined, all for you.

More after this.

(COMMERCIAL BREAK)

CAVUTO: We are closing in on the got-to-get-home rush hour in New York City and a lot of other Eastern cities now, and the big concern after today's just-missed attack, what does it mean?

Back in 60.

(COMMERCIAL BREAK)

CAVUTO: They say timing is everything, so when -- in light of the terror attack or planned one in New York City, Iraqi Prime Minister Haider al-Abadi declaring victory against ISIS in his territory over the weekend.

And no one really disputes the fact that ISIS nationally is losing ground as fast as it's losing influence. The thing is, it doesn't stop attacks or lone attacks. In fact, they accelerate. That is not just a coincidence.

Hudson Institute Middle East analyst Michael Pregent with us now.

Michael, what you make of that? That's an uncanny thing I have noticed, at least, that no sooner are we high-fiving having ISIS on the run, which we should -- it's a great victory, as it is for Iraqi soldiers -- but then they try to prove that they are still of merit and danger by orchestrating or at least galvanizing these attacks, right?

MICHAEL PREGENT, HUDSON INSTITUTE: Exactly. We have seen from the onset that any time ISIS lost territory, they compensated with a spectacular attack, spectacular attack, or some sort of a Quentin Tarantino execution video.

And now we are seeing them taking credit for people like Ullah here, who used an -- uses an unsophisticated weapon and has a failed attack in regards to actually producing casualties. And they are looking to take credit for anything. They have built a brand to take credit for anybody.

CAVUTO: How influential are they at radicalizing, though?

Let's say in the case of the assailant in New York today, if he had no help, or it looked clumsily executed, as it clearly did, that he might have stumbled out the gate, but there are plenty of others waiting at the gate to do the same, right?

PREGENT: Well, they're hoping there are plenty of others waiting to do the same.

What they do is, they inundate the Web, they inundate these jihadist sites with recommendations on how to conduct an attack or actual training on how to conduct an attack, and then hope somebody bites.

CAVUTO: So, they actually spell it out, right?

PREGENT: Right.

CAVUTO: Like, in a city, in a train, say how you go about doing it. I have seen it spelled almost out to the T.

PREGENT: Right. And they hope somebody bites.

CAVUTO: Yes.

PREGENT: Now, this is a case where ISIS is grasping at straws, claiming responsibility for this attack, again, a failed attack when it comes to a terrorist attack, an improvised explosive device.

There was no shrapnel. It was a premature detonation. And he is still alive. So, we should able to get valuable information out of him as well.

CAVUTO: With ISIS on the run, a lot of times, they morph into a new entity. It's just like after Al Qaeda, you had these splintering groups, Boko Haram, this rising ISIS and all.

Who now? What happens now, as these various terror groups, whether you deem them on the run or not, merge, change, morph into something more sinister? What?

PREGENT: Well, we don't have top ISIS leadership. We have not killed or captured top ISIS leadership. We have simply taken territory away.

I recently returned from Mosul. And I'll tell you, the situation there is ripe for security backslide, meaning that ISIS will morph into the Al Qaeda model, where they recruit, intimidate, assassinate, conduct, attacks, and try to destabilize -- re-stabilize Northern Iraq and Syria.

You are still seeing ISIS being able to conduct these attacks, but, again, they morph into a ISIS 2.0, where they can actually shoot down American aircraft in the future, or they go into the Al Qaeda model, which is the easiest model to survive in, where you simply have cells, you have conduct attacks, you recruit, and you plan and you become very strategic in your operations.

CAVUTO: All right, Michael, very good seeing you again.

PREGENT: Hey, thanks, Neil, for having me.

CAVUTO: Michael Pregent.

All right, stocks were up today. Now, a lot of that had to do with the fact that it was relief that this wasn't a whole lot worse, but a lot of it has to do with tax cuts. They're looking like more and more of a sure thing, and that the key Senate and House conferees meeting right now can bridge their differences.

This as the president of the United States is planning an address, we're told, on Wednesday to outline what he would like to see and when he would like to see it, his final stand, his final call -- after this.

(COMMERCIAL BREAK)

CAVUTO: All right, the president is planning to address the nation about these tax cuts, his closing argument, we're told, on Wednesday, sometime Wednesday afternoon.

That is the same time this conference committee, made up of House members and Senate members, hashes out their differences, tries to merge a final report, and the hope is get it to the president's desk before Christmas.

Senate Finance Committee member, also a member on this august panel, Pennsylvania Republican Pat Toomey.

Senator, very good to have you.

SEN. PAT TOOMEY, R-PA.: Good to be back, Neil.

CAVUTO: What do you think it looks like for getting it to the president by Christmas?

TOOMEY: I think it looks pretty good.

We have got some work to be done yet, but we are working hard on it, on the phone all weekend long, and back here in Washington obviously to try to get this wrapped up. I am optimistic.

CAVUTO: Are you worried about this Alabama race, Senator, that with a Democratic pickup, potentially, your margin shrinks all the more, 51-49?

TOOMEY: Well, that would be true, if that's the way it turned out.

But, look, I think we have a very, very good shot of getting it to the present desk before a new senator is sworn in any case.

CAVUTO: Is that the goal?

TOOMEY: Look, the goal is to get it the president's desk as soon as we can do it properly.

And we think we can do that sometime next week. And so I hope we will.

CAVUTO: I do not want to do get too far afield from this tax discussion, but if Roy Moore wins this race, do you think he should be seated in the United States Senate?

TOOMEY: I don't think we have any choice in that matter, Neil. I think the Constitution is very clear.

If he is seated, and that is properly authenticated and certified by the officials in Alabama, then I think we're obligated to seat him. And I think, at that point, it is probably going to be a matter for the Ethics Committee to investigate the charges against him.

CAVUTO: All right, even though they would be decades-old charges, whether you agree with them or not?

TOOMEY: That's right.

CAVUTO: Right. OK.

On the tax thing, the latest wrinkle seems to be when to implement the corporate tax cuts, Senator, and whether you are open, in your case, to hiking it a little bit.

I think the Senate has an implementation date of 2019, the House 2018. There is talk of raising the 20 percent maybe to 22 percent to win over some of your maybe anxious colleagues in the House and the Senate. Where do you stand?

TOOMEY: Well, let's go back.

Both the House and the Senate have a 20 percent C-corp rate. The difference, as you correctly pointed out, is whether that takes effect on January 1 of 2018 or 12 months later.

At the end of the day, we're not that far apart. And both House and Senate conferees share the goal of being at 20 percent if we can possibly do that. And we might be able to do that.

So, I am not -- I do not think it is a matter handed down to Moses to what the correct date is. I am open to that discussion. We're having that discussion. But I would point out that, in any case, the expensing provision, the provision that allows full deduction for capital expenditures, that definitely kicks in on January 1, 2018, under any scenario.

So, the fact is, you might get a bigger boost of economic activity if you delayed the lower corporate rate, because then capital expenditure could be deducted against the 35 percent rate, rather than a 20 percent rate.

Either way, the economy is going to respond very positively to what we are doing.

CAVUTO: There had been talk as well about increasing the deduction for state and local taxes beyond the $10,000 threshold. How do you feel about that?

TOOMEY: Well, my own preference is, I think it is a bad idea to force low- tax jurisdictions to subsidize people who live in high-tax jurisdictions.

And that's what happens when you allow the deductibility of state and local taxes. Having said that, we understand that there are a number of Republicans in high-tax jurisdictions that are concerned about this.

So, that's an ongoing discussion about where we land on that.

CAVUTO: All of this, with maybe the more time people have to examine things, you seen this Wall Street Journal report of a 100-plus percent for some entities.

TOOMEY: Yes.

CAVUTO: And then you have individuals in some of these aforementioned high-tax states who could end up paying more, making significantly more, that when people get a wind of this, that they are going to have a little case of sticker shock, and it is one of those, be careful what you wish for, you just might get it.

What do you say?

TOOMEY: Yes, there's very, very few people that are going to have a tax increase.

The story about the 100 percent marginal rate, it's a very, very selective, unusual circumstance and it would only apply to a small amount of income.

And, by the way, I hope we can fix that, because that is not a desirable feature.

But, look, the basic takeaway is the vast majority of American taxpayers are going to pay less in federal taxes, and we're going to encourage a tremendous wave of new investment and business expansion. Both of those things are really good for the people that I represent.

CAVUTO: Senator, thank you for taking the time. We appreciate it.

TOOMEY: Thanks for having me, Neil.

CAVUTO: All right, an attempted terror attack near Times Square, how security is getting stepped up ahead of the holiday season, just in case.

(COMMERCIAL BREAK)

CAVUTO: All right, 'tis the season, and they want to keep extra security across the Big Apple on this day.

Right now, Manny Gomez, the former FBI special agent, on how they do that.

You know, Manny Gomez, I was thinking of you, because knowing what is going on now and the concern everywhere about any problems that might pop up, people get leery. Right? They get very, very leery and they get very, very nervous.

MANNY GOMEZ, FORMER FBI SPECIAL AGENT: Absolutely, especially on the eve of Christmas and the holiday season, as it is, to have an attack on New York City, which is one of the most tourist-driven settings during the holidays, is obviously unnerving.

But the NYPD and the New York office of the FBI have it well in hand. The tree lighting ceremony went off without a hitch, as did the Thanksgiving parade. And I'm sure Christmas and the holidays and the end-of-year ceremonies in Times Square will go on without a hitch as well. CAVUTO: But after this event, Manny, people get nervous. They figure, gee, I do not know if I want to go in if this sort of stuff is going on or could go on.

What do you tell them?

GOMEZ: Well, I tell them, listen, they want us to change our way of life. We need to continue our way of life.

If we're going shopping, if we're going to see a show, if we're going to visit New York or just go about our everyday lives and go to work, do what you have to do.

CAVUTO: No, I know that. And it is very good advice. I understand what you're saying.

But help us out, Manny. You're very good at this stuff. You have eyes in the back your head.

(LAUGHTER)

CAVUTO: So, what do you look for? When you're just walking, whether you're with your family or loved ones or friends, what do you look for?

GOMEZ: Sure.

Well, the order of the day is to be alert and be vigilant. Look for things that are out of the ordinary. Look for things that you know -- we all have a sixth sense. You do not have to have some superior training to realize that something is awkward or out of the way.

If you see somebody that is walking down the street with an oily jacket or wires sticking out from under his coat, then you know that that is not supposed to be the way things are. Go to your nearest police officer. Advise them of what is going on. And let them conduct a proper investigation.

Unfortunately, this is the new norm. This is going to continue to happen in different ways. Last month, we saw we had a terror attack with a rented vehicle. This month, we see something within an improvised explosive device.

But what we all know is that they're out to get us. New York is the capital of the world and, as such, is the capital of terrorism for any wannabe terrorist. So, we need to be vigilant, we need to be alert, and we need to help the police and act as a force multiplier, be their extra eyes and ears on the street, at our jobs, at our school, and even amongst our family.

We have a responsibility to report to them anybody that is acting suspiciously that could perhaps have been radicalized, that is acting about violence, or hurting people overall, and let them do an investigation and perhaps stop the next attack.

CAVUTO: You know, truth be told, this guy just bungled it. He wasn't the sharpest tool in the shed.

GOMEZ: Absolutely.

CAVUTO: He could have done a great deal of harm.

GOMEZ: Sure. We were very lucky.

CAVUTO: We got lucky, didn't we?

GOMEZ: We were very lucky this time around.

Obviously, this person is not sophisticated. But the issue is that these materials are -- you can find them everywhere, over the counter, and information to build a bomb similar to this one is available online.

That should be banned. There should be a law in place to take down these Web sites, to take down these forms of Internet information and Internet propaganda, where young people are being inspired internationally and obviously here in the United States as well to become radicalized and to go out on the street and do these horrible attacks.

There has got to be a better way that a country such of our own, which is so technically savvy, could find a way to take this propaganda off the hands of potential recruitees.

CAVUTO: All right, Manny, thank you very, very much, Manny Gomez.

As Manny was wrapping up there, we did get a statement and just have gotten a statement from President Trump that: "Today's attempted mass murder attack in New York City, the second terror attack in New York in the last two months, once again highlights the urgent need for Congress to enact legislative reforms to protect the American people."

Going on here: "Those convicted of engaging in acts of terror deserve the strongest penalty allowed by law, including the death penalty in appropriate cases. America should always stand firm against terrorism and extremism, ensuring our great institutions can address all evil acts of terror."

We will have more after this.

(COMMERCIAL BREAK)

CAVUTO: All right, the commute is on.

And he was ready when it started this morning. Connell McShane back with us right now.

Connell, what are you seeing?

CONNELL MCSHANE, FOX NEWS CORRESPONDENT: Well, you know, it is interesting, Neil.

This area where I am, just outside of the busy Port Authority bus terminal, was an active, bustling crime scene early this morning. Flashing lights everywhere. Emergency vehicles everywhere. Subway service disrupted. Bus service disrupted.

But, by this afternoon, into the evening commute, it's really amazing how quickly New York City has returned to normal. The streets are open. The traffic, albeit slowly, is moving as it usually would be. The subways and the buses are moving as well.

There is an enhanced police presence, as there always is this time of year, but the police commissioner in this city said that the old saying, see something, say something, that really still applies.

(BEGIN VIDEO CLIP)

O'NEILL: There are six million people that ride the train everyday. It's going to take everybody to have their eyes open. Pay attention to what is going on. If you don't see -- if you see something that makes you uncomfortable, make that phone call or talk to a cop. Give us a chance to investigate.

(END VIDEO CLIP)

MCSHANE: Now, on the state level, Neil, after this morning's attempted terror attack, the governor of New York, Andrew Cuomo, did put out a statement saying that we should look for enhanced security at certain locations.

He mentioned bridges and tunnels, airports, as well as transit hubs, just like this one, the Port Authority, the busiest bus terminal in the entire country -- back to you.

CAVUTO: You just realize how lucky people were in New York today. If this guy had had more of his act together, more ready, it could've been a very different story, you know?

MCSHANE: Oh, yes.

I think everybody realizes that. There is no doubt about it. Just three injuries, and they are all very, very minor.

CAVUTO: All right, thank you, buddy, very, very much, a long day for Connell McShane, from when this first opened up, technically before rush hour to now.

MCSHANE: All right.

CAVUTO: Bottom line here, markets have a funny way of sort of taking grasp of the situation and in this case dismissing it, records for the Dow today, as markets seem to be focused on tax cuts.

But, again, it was just sort of the luck of events, events that did not go nearly as catastrophically as they could have, a lucky day, but one we just breathe a sigh of relief and hope it stays that way.

Again, we will be monitoring this and the Alabama election tomorrow on FBN, the political and financial fallout from all of the above.

Now "The Five."


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