Blankenship defends controversial remarks, addresses critics

This is a rush transcript from "The Story," May 2, 2018. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, FOX NEWS CHANNEL HOST: Back from West Virginia. Good to see you, Bret. Thank you. So, we have lots of late-breaking news tonight at this hour. Plus, several big story exclusives for you. The lawyers for the 9/11 mastermind held at Gitmo are now arguing that he suffered brain damage at the hands of the CIA, and so therefore, he cannot be sentenced to death when he ever gets his trial. In moments, one of the few people who really knows the man who interrogated him, KSM, himself with his opinion on all of this is here live tonight. And there's also breaking news this evening at the border where some say the president is not getting what he wants.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: And if we don't get border security, we have no choice, we'll close down the country. Because we need border security.


MACCALLUM: And late tonight, continuing word that a slow but steady stream of asylum-seekers are quietly being let into the country, which has some of the president's supporters lashing out. But first, the brash CEO and ex- convict from coal country is now the center of attention in the hot races to watch as he hopes to unseat Joe Manchin in West Virginia. Don Blankenship has drawn fire from both sides of the aisle tonight over what he said at last night's Fox News debate, doubling down on comments that some have called racist about the family of Senate Majority Leader Mitch McConnell.


BAIER: You're talking about the father of the current Secretary of Transportation, President Trump's Secretary Transportation, Elaine Chao. The father who you called a China person.

DON BLANKENSHIP, WEST VIRGINIA U.S. SENATE CANDIDATE: Some people are Korean persons, and some of them are African persons. It's not any slander there. He has conflicts of interest with China.


MACCALLUM: So, that was just a beginning. Mr. Blankenship joins me live in moments to explain his strategy that some are calling Trumpian. But first, Peter Doocy live on the ground of how this is all playing out with the folks in West Virginia. Good evening, Peter.

PETER DOOCY, FOX NEWS CHANNEL CORRESPONDENT: Good evening, Martha. We've long known that Don Blankenship would be getting good news next Wednesday because that's when his probation ends. But now, he may be in a better position to get good news the day before the West Virginia primary day because our politics editor, Chris Stirewalt, believes Blankenship, the former coal baron, may get as much as an eight-point boost from the nationally televised debate last night, which basically featured Blankenship standing stage right and watching while the two office holders sharing the debate stage with him, chipped away at each other by trading brutal attack lines and accusations with one another and largely leaving Blankenship out of it. But, when the former coal baron did speak, he won applause and laughter from the constituents in the room with one-liners about his conviction and his residency in Nevada. He apparently did well enough to have the conservative Weekly Standard now looking ahead to a possible match up with Joe Manchin.

David Bieler over there, skeptically writes this: "Blankenship seems like he might be much worse than your run-of-the-mill bad candidate. There's a difference between the performance of somebody like Sharon Angle and somebody like Roy Moore or Joe Arpaio. If Blankenship wins the nomination, he could easily end up in the latter group. But if Republicans nominate Jenkins or Morrisey, West Virginia could be one of the most interesting competitive races in the country." And Blankenship is succeeding even though conservative-linked Super PACs are spending money against him and liberal outlets such as The Huffington Post are continuing to publish stories that call him out for his defensive words like China person. Over at The Huffington Post, they write this: "West Virginia Republican Senate Candidate Don Blankenship on Tuesday said he saw nothing wrong with his use of a racial slur to describe the father-in-law of Senate Majority Leader Mitch McConnell." So, this state now has a candidate who is unapologetic about controversial comments and unpredictable on a national debate stage. Sound familiar, Martha?

MACCALLUM: It does. Peter, thank you very much. So, here now exclusively, Don Blankenship, West Virginia Republican Senate, candidate for the U.S. Senate, and former Massey Energy Company CEO. Mr. Blankenship, thank you. It's good to see you here tonight again. Good news, if it's true that you might have picked up as much as eight points in the polls last night in West Virginia, but you hear what is coming at you from The Weekly Standard. They say that you are another Sharon Angle, another Roy Moore and that you present a disaster for your party in the general election in West Virginia.

BLANKENSHIP: I think they're just wrong. They've been wrong a lot. They've been wrong so far in this campaign. I'm a little bit miffed that a China person is discriminatory. I thought that if you refer to someone as an Asian or whatever you might try to throw it in that category but somebody from China is from China, somebody from the U.S. is from the U.S. But to the extent that anybody thinks that that's a racial slur, I'm sorry, but I don't see it.

MACCALLUM: OK. Understood. What about "Cocaine Mitch"? Some people are -- I think a lot of people would say that that's a big reach and that it suggests something that is simply not true, and that it's such a, you know, sort of tangential association with a ship that had drugs on it ostensibly that is somehow related to his wife's father. You have been the subject of -- you've been so maligned for things that you say you didn't do and that people don't fully understand. So, why would you take that tact with somebody else?

BLANKENSHIP: Maybe it's to make the points that you just made. That I've been maligned for things I didn't do. So, but -- the bottom line is that, you know --

MACCALLUM: So, an eye for an eye I guess?

BLANKENSHIP: No, it's more or less that, you know, there are things that don't go the way you want them to go. And you know, having cocaine on a family-owned ship certainly should be of interest because cocaine deaths in this country keep going up, and even though that ship -- I think headed to Europe. We still need to be aware that there are cocaine and other drugs moving on the high seas on commercial ships. And if nothing else, it should make us aware that we need to be careful when these commercial ships are docking when your country needs to see what's on them. And certainly, the family of Elaine Chao and McConnell should be no exception to that.

MACCALLUM: All right. You know, as I said, people would find that to be a bit of a reach to call them "Cocaine Mitch," but you have said that and that your explanation for it. Let me ask you about this, because if you do win in the primary next Tuesday night, Democrats, you know, are pretty much already preparing ads, no doubt. You've already seen the kind of ads that will be leveled against you. One of them will go after you on environmental issues that they'll say that the method that you used for mining in West Virginia cause cancer in some people, and that you diverted the water source to your own home while you let the water in the rest of your neighborhood, that had a coal slurry in it, be contaminated. So, those will be asked of you, sir. So, what would you say to those charges?

BLANKENSHIP: First of all, the house that's in the area is not even my house. So, that's a good place to start.

MACCALLUM: Did you provide your own water source in your neighborhood from a different while?

BLANKENSHIP: No. No. It's a longer story than you probably got time for, but the city, which is a small town nearby had run water down close to my home on their own, and they gave me a chance to pick up that water. But at that point, no one even knew there was this concern about any wells. And I'm still not sure what the facts are arounds those wells. But it's easy to make up stories, and as you said, they're already running those ads and they're probably going to get beat in the primary. And Joe Manchin has so much baggage that he'll be much easier to beat, so I'm not concerned about being able to beat Joe Manchin. I've beat him two or three times before on issues, and the media slant on these issues with, you know, a water spill or with an accident or whatever are totally different than the behavior of Joe Manchin, which is intentional.

MACCALLUM: So, in terms of the fact that -- you know, we brought this up last night -- with regards to your time in prison, which -- and your probation is scheduled to end the day after the primary, is that correct?


MACCALLUM: OK. Last night, was interesting actually, that neither one of your opponents really went after you about that at all. But here again, if you do win the primary it will be front and center, and I know that you believe that you were falsely imprisoned, but do you think that will be a liability for you if you get into a head-to-head matchup with Senator Manchin?

BLANKENSHIP: First of all, I don't believe that I was falsely imprisoned, I know that I was falsely imprisoned. And the reason they don't attack me is they're both attorneys and they know what and 302s are and they know from the filing they made that ten of the 12, to 302s that should have been provided to my defense from the lead witnesses were not, and they know that there was in fact 61, for your legal community out there, 302s that were turned over and they know there were dozens of e-mails that had extremely exculpatory information. So, the case, more likely, or if there's any justice, will be invalidated before the general election anyway.

MACCALLUM: All right. Sir, thank you very much for answering questions here again tonight. And good to have you with us.


MACCALLUM: Don Blankenship in West Virginia. So, here with reaction tonight, co-Host of the brand-new Fox Radio show -- we're all excited about this -- "Benson and Harf", set to debut on May 7th, on SiriusXM channel 450. They already have a Web site, Marie Harf is a Fox News Analyst and former State Department and CIA Spokesperson, and Guy Benson, Fox News Contributor and Political Editor at Congratulations, first of all.


MACCALLUM: And that's really exciting, and we're a little upset because I think it's going to conflict with our show in some markets, but that's all right. So, we won't be able to see you as much as we have in the past. But we really do wish you guys good luck. What do you think about the whole thing, Guy? Let me start with you.

BENSON: Well, look, I think Chris Stirewalt has a better read on West Virginia than I ever possibly could. But, I can understand given the popularity of Donald Trump in that state why a lot of Republican voters would say here's a nonpolitician watching these other two politicians squabbling. He cracked some joke, doesn't apologize for anything, and he's much more understated in his delivery than Donald Trump, but there's some affinity there. In terms of his confidence that he can get past some of these issues in the general election with the Manchin machine and the Democratic machine attacking him, maybe, but there's that old aphorism in politics when you're explaining you're losing, and he was explaining a lot about his wrongful convictions on the wells, and where the water went, where it didn't. I think that's something that Democrats, we know, are actually trying to boost him, because I think he'd be easier to beat. We will see.

MACCALLUM: I want to play one more sound bite from last night -- when I asked him about whether or not he had empathy for the opioid addicts in West Virginia. Watch this.


MACCALLUM: Do you have empathy for addicts?

BLANKENSHIP: I don't think empathy is going to fix the problem. I think if we stop the drug abuse, we don't need to have empathy and that's more important.


MACCALLUM: The reason I asked him that is because he has, you know, a reputation for being very tough. He wants to drug test everybody who works for the government, including teachers, and it's a very emotional subject in West Virginia. But you know, you heard his answer. He said no, they need a solution; they don't need empathy. They need a solution and it got a very good response from the audience, Marie.

MARIE HARF, FOX NEWS CHANNEL ANALYST AND FORMER STATE DEPARTMENT SPOKESPERSON: Well, they need both. And I was interested when the audience did respond last night, including when he said, you know, I have some -- he made a joke about going to jail, basically. And he said I have some experience with the Justice Department. I'm not sure that will translate to Republican primary voters in the same way. Guy is right, though, Democratic roots are supporting Don Blankenship because they believe he's the weakest candidate. He is no Donald Trump, right? He may say some of the same things, but the delivery, the retail politics -- Don Blankenship does not have that. And yes, Joe Manchin is a Democrat, but he's a moderate one. He has voted with Donald Trump for some nominees, and he's a fairly popular former governor in the state. From a Democratic perspective, we would love to have Don Blankenship as the candidate because we think --

MACCALLUM: That's why they're supporting him and running ads, absolutely. You guys are going to be bouncing from topic to topic with your new show, so we're going to do that here for a moment.

HARF: Great.

MACCALLUM: Obviously, a lot of attention being paid to Rudy Giuliani, who is going to be -- you'll hear the whole interview tonight on Sean Hannity, but President Trump's new attorney. And here's what he had to say about the changing of the guard on their team. Listen.


RUDY GIULIANI, ATTORNEY TO DONALD TRUMP: There was the leak of the 49 questions, so that leaves you with, gee, somebody is poisoning the atmosphere here. Unless we have assurances that wasn't going to be a leak, there wasn't going to be a lot of self-serving statements about the interview, then we would do it.


MACCALLUM: All right. So, this is interesting, because The Washington Post reported today, and there are sort of different versions of this, but I want to read this to you: "In the wake of a testy March 5th meeting, Mueller's team agreed to provide the president's lawyers with more specific information about the subject that the prosecutors wish to discuss with the president. With those details in hand, Trump lawyer, Jay Sekulow, compiled a list of 49 questions that the team believed the president would be asked." According to three of the four people who spoke on the condition of anonymity, because they were not authorized to talk publicly. Now, Guy, if that is true, the questions themselves were based on -- here's all the subjects we want to talk to president about, and according to this, and we are putting calls out to Jay Sekulow to see if he will confirm or deny this. He wrote the questions, that's not what we've been hearing.

BENSON: So, I would love some clarity on this. There's a big difference here. If these are actual questions sent over from the special counsel's office versus an extrapolation from a Trump lawyer based on broader conversations about the topics that might be covered. Because we've spent a lot of time in the chattering class going through question by question and the wording. And if the wording was Sekulow's, and not Mueller's, that sort of makes a lot of the conversation moot. Also, if the wording is Sekulow's and not Mueller's, that tells you who leaked this stuff. It was definitely Team Trump and not the special counsel's office. And then, the question becomes what would the motivation be to leak these questions? Could it be to have us talking about it? So, the president says, forget it I'm not sitting down with Mueller -- which I think is frankly probably the strategic good decision. Might've been a little chicanery going on, strategic placement here.

MACCALLUM: Yes. I mean, we just want to know, you know, if that's accurate or not, because to thinks that you say --

BENSON: Who wrote the questions?

MACCALLUM: -- are very relevant in terms of who leaked this information. You think about Alan Dershowitz saying these are so broad, they're designed to entrap him. So, if they were written by Sekulow or compiled by him based on bigger information, that's a different story, Marie.

HARF: It's a completely different story and it means that they weren't designed to trap him. It doesn't -- no, they weren't designed to scare him. Jay Sekulow, like a good attorney, was trying to cover all of the issues that they might want to ask Donald Trump about. And so, that's how -- if these questions were written by him, that's how they were written. It's also disturbing, though, that Rudy Giuliani may not have known that, because when he said, oh, gee, well, this seems to have been leaked from someone near Mueller, let's make sure all the presidents attorneys on the same page.

MACCALLUM: Well, you know what, I would love for Jay Sekulow to call in tonight and talk to us and clarify this. Honestly, because it does make a difference.

HARF: It does.

MACCALLUM: Or anyone else on the team who wants to set it straight if that's not the case, if The Washington Post is wrong about this. We will see. Great to see you guys. Good luck with your new project and your new show. We're looking forward. It's going to be a huge hit.

BENSON: Thank you.

MACCALLUM: So, more breaking news this evening, new body camera footage just released showing the SWAT teams as they storm the hotel room of the Las Vegas shooter. The bigger story might be what the police do not want the public to see. And breaking news on the border, you remember the caravan of migrants. Word tonight that are slow but steady stream of them are being let into the United States. This is not what the president wants to see here, so what will the response be from the White House?


UNIDENTIFIED MALE: The total number of asylum-seekers from the refugee caravan who have been processed up to this point is 47. The fact that they can't move this group of 150 refugees isn't a lack of capacity, it's a lack of political will.



TRUMP: Are you watching that mess that's going on right now with the caravan coming up? Are you watching this? And our laws are so weak, they're so pathetic --


MACCALLUM: President Trump and his team ramping up pressure at the border as more than 100 Central American caravan migrants push for asylum in the United States. Attorney General Jeff Sessions announcing today that 35 more attorneys are headed there to prosecute illegal entries along with 18 more immigration judges to decide these cases.


JEFF SESSIONS, U.S. ATTORNEY GENERAL: We're not going to let this country be overwhelmed. People are not going to caravan or otherwise stampede our border. We're sending a message worldwide: don't come illegally. Make your claim to enter America in the lawful way and wait your turn.


MACCALLUM: So, we're receiving word late tonight that slowly but surely, many of those migrants are being allowed to cross the border. So far, immigration officials have processed 28 of the 150 who are requesting asylum in that process is expected to continue. David Wohl, Attorney and Conservative Commentator; Enrique Acevedo is a Univision News Anchor. Gentlemen, thank you for being here, both of you.


MACCALLUM: Hi! You know, David, the administration seems like they don't want to let this happen at all and yet it's pretty clear that some people are being allowed to cross. So, what are they going to do about that?

WOHL: Well, to start with, Martha, that video will make great campaign commercials in November for GOP candidates running for office. I mean, it is exhibit A for the case for the wall. But yes, there -- as Jeff Sessions said, there's an appropriate way to apply for asylum. The U.S. embassy in your country of origin, you apply, submit your documentation there. You don't crash our border with no paperwork, no documentation, only a script that has been handed to you by immigration lawyers on what to say and what not to say.

When that happens, the appropriate resolution is arrest and beginning the deportation process. And I think that's what Jeff Sessions has just put into action right now. Now, with a handful of people as you indicated, 28, they may feel that it's easier just to simply give them an initial review rather than returning them to Central America because they can't just return them to Mexico -- that's not their country of origin, apparently. So, giving them the initial review does not mean they'll get final asylum and it may just be the lesser of two evils right now.

MACCALLUM: Enrique, there are, you know, there's a lot of bars that you have to cross and things that you have to prove in order to substantiate your claims that you request asylum. So, there will be a lot of these people, I would assume, who will not meet the criteria, correct?

ENRIQUE ACEVEDO, UNIVISION ANCHOR: Exactly. Requesting asylum is perfectly legal. It's a challenging and long process. Actually, 75 percent of Central American asylum-seekers have their petitions rejected. And we're on track, the U.S. is on track to admitting the fewest refugees since 1980. I've been hearing for years, I've hearing people like David said, that immigrants have to get in line and respect our laws. And now that they're doing exactly that, they find another way to discredit their intentions.

MACCALLUM: You know, David, in a piece that I read today, I believe this was in The New York Times, they spoke to someone at the border who's requesting asylum who said of the president, he has no right to deny us asylum. Is that true?

WOHL: Well, he has no right to deny an application made in a lawful manner, i.e. at the embassy in their country of origin. He does have the right to stop someone who crashes the border, climbs over the fence with no documentation, no proof that they are who they say they are, no proof of where they come from, no proof that they're actually being oppressed or threatened by gangs in their country. Nothing. Simply a scripted statement given to them by immigration attorneys. Those people are rightfully arrested and processed for deportation. That is what Trump is saying. That was his campaign promise two years ago and that's what he's going to follow through with, Martha.

MACCALLUM: So, Enrique, how much of this is a political ploy? You know, not these individual people or the circumstances that they're in, but the caravan itself and the way, as David puts it, sort of, you know, crashing up against this border wall that is there, and negate that everyone is hanging out on. Is it more to make a statement and has it been organized by people who want to make that statement because they know that the president has promised to get tougher on immigration and this will put him in a tough spot?

ACEVEDO: Well, as we saw on the package that you showed before our interview, people are getting in line. They are in an orderly process getting in line, waiting for their turn, claiming the requests for asylum. There's no one crashing the border or trying to come across. Like I said, last week --

MACCALLUM: David, what do you say to that, David? I mean, they do look orderly, David.

WOHL: They're climbing over fences.

ACEVEDO: But that's not against the law. To climb a fence is not against the law. You can just climb a fence. It's not against the law. That's not crashing aborted. You can climb a fence. It's not illegal to climb a fence.

WOHL: Enrique, you got here, you came to America in a legal way. Whatever papers you had, you submitted them at the border, you came through a legal port of entry --

ACEVEDO: Just like these people are trying to do, David.

WOHL: You're a brilliant and smart guy. Those are the


MACCALLUM: We'll continue the conversation but thank you both for being at here this evening. This story straight ahead, the mastermind of 9/11, Khalid Sheikh Mohammed, could be spared the death penalty because he is claiming that his CIA interrogators left him with brain damage. This idea has come all these years later; they've just decided that this is what happened? The man who interrogated and water boarded him is now breaking his silence because he wants you to understand what happened in that room. He's here next.

And new report that North Korea has released three American prisoners. Is it another sign that Kim Jong-un is caving to President Trump's demands, or is the U.S. walking into a trap? General Jack Keane with his theory next.


TRUMP: The fact is that they do have three prisoners. We are likewise fighting very diligently to get the three American citizens back. I think there's a good chance of doing it.




MIKE POMPEO, U.S. SECRETARY OF STATE: Right now, we have an unprecedented opportunity to change the course of history on the Korean peninsula. This administration will not repeat the administrations of the past. Our eyes are wide open. It's time to solve this once and for all.


MARTHA MACCALLUM, THE STORY HOST: Mike Pompeo pulling no punches on North Korea during his swearing-in today as the 70th secretary of state. The rogue regime reportedly agreeing to release these three Americans who have been held captive in a North Korean labor camp, Kim Dong-chul, Kim Sang- duk, who's also known as Tony Kim, and the third gentlemen who is known as Kim Hak-song. What is behind North Korean leader Kim Jong Un's sudden change in tune and is this genuine? Here now, General Jack Keane, Fox News senior strategic analyst, chairman of the Institute for the Study of War. General, good to see you.


MACCALLUM: This is something the president wanted as a precursor to this, to release these men.

KEANE: No doubt about it. Pompeo mentioned it when he met with Kim Jong Un. And just recently, our national security advisor, Ambassador Bolton, mentioned it publicly as a sign of good faith that Kim Jong-un is serious about these talks and about denuclearizing, so let's release these hostages before the talks, and he's doing it.

MACCALLUM: What do you make of his concessions? What's different now for Kim Jong Un? Is it that the world is different? Are there different pressures on him within North Korea than existed in the prior generation?

KEANE: I think -- well, two things have happened. One is, certainly, his acceleration of his nuclear program and weaponising them on ICBM's. And the speed at which he did that drew the world's attention. And, of course, we transition from strategic patience in the Obama administration, which was actually a concession to him, to the Trump administration. They saw the imminent danger of all that and said this is unacceptable to the security of the American people, and just moved right on it. Maximum pressure, economically, and also putting a military option on the table. And I think the president, the fact that he would never let up on discussing the military option, something his predecessor avoided doing painstakingly, you know, kept this pressure on him. And my sources told me they shut down a revenue about 80 percent before we started blocking the North Korean ports with our Navy ships. So, there is some impact, but they've let their people suffer in the past, and just sort of gutted up and went on anyway and still manipulated us.

MACCALLUM: It feels like for some reason that's not working for him anymore. That maybe there is some internal pressure that hasn't existed before. You know, obviously, if they're so much that we don't know about. I find it really interesting that you have the Chinese, and the South Koreans, the Japanese, all scrambling to have meetings. They all want to be part of what they see happening.

KEANE: Yeah. And I think what's so different for me is just the sense of urgency that Kim Jong Un -- he's done all of this in 90 days.


KEANE: You know from the Olympics on, and he's made major concessions. Some people, you know, who are always anti-North Korea are flipping about it. But the speed at which he's done it is remarkable. He wants to end the Korean War with an armistice -- and then an armistice by the end of the year. He's taken off the table for the first time, the 28,000 troops we have as a condition for having negotiations.

MACCALLUM: This is amazing.

KEANE: He's frozen his test programs, which is easy to do. That's to be sure. But he's willing to let inspectors come in and take a look at his nuclear test sites.

MACCALLUM: Do you think we'll also get ballistic missile reduction or something else out of this? At some point, does it become untenable to keep pushing for more and more and more in this negotiation?

KEANE: Oh, yeah. There's a lot of issues, Martha, and I'm just glad you brought that up. The president has committed to Abe, the head of Japan, to bring up the Japanese abductees, which they've believed they have thousands of. We also will discuss with Kim Jong Un chemical and biological weapons, which are not on the top tier, but they're there, and they're dangerous and we suspect he has them. We're also going to discuss, as you suggest, ballistic missiles. The development of those ballistic missiles and what are we going to do about those missiles. So, we have a lot to talk about. But, central, for sure, is denuclearization.

MACCALLUM: General Jack Keane, always good to see you. Thank you very much.

KEANE: Good talking to you, Martha.

MACCALLUM: So, the Boy Scouts of America just dropping the word, boy. Not really that important part of a title, is it? Moving on to a mission that would include more girls. Governor Mike Huckabee joins us with his thoughts on that. And also this, lawyers for the alleged 9/11 mastermind, Khalid Sheikh Mohammed, have now come up with a new way to keep him alive. They say that he suffered brain damage at the hands of the CIA. We will talk to the man who interrogated Khalid Sheikh Mohammed, and he will explain to us what happened in there. Vegas police have just released brand-new body cam footage from that night of the harrowing attack that killed 58 and left hundreds more injured. We're going to bring you inside that hotel room of the Vegas shooter, Stephen Paddock, next.


MACCALLUM: Las Vegas police releasing this brand-new body cam footage which depicts the moment that a SWAT team breached the door of Stephen Paddock's 32nd floor hotel suite, after he opened fire on a concert back in October killing 58 people. And what is now the deadliest mass shooting in modern U.S. history. Watch some of this.


UNINDENTIFIED MALE: I'm going to breach. We're breaching. Move up, move up. Canine coming out. Canine coming out. Clear.


MACCALLUM: The release of this video comes after police failed to convince the Nevada Supreme Court to let them withhold key evidence from the public, including dozens of hours of video, 911 calls, and other internal documents detailing what they found. We are told that we can expect more video, the audio, the documents, all of that, to be released on a rolling basis, and we'll be watching that over the coming weeks.

Also, this evening, Khalid Sheikh Mohammed, the alleged mastermind behind the 9/11 terror attacks may have his life spared. His attorneys are now claiming that he suffered brain damage while he was interrogated by the CIA, meaning that the death penalty could be taken off the table. Dr. James Mitchell, the man who carried out that interrogation does not buy it, and he's here in a moment. But first, Trace Gallagher with the back story tonight. Trace.

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Martha, the brain scan information involving Khalid Sheikh Mohammed was in a memo written by Mohammed's attorneys and attained by the McClatchy Newspaper Company. The memo states that Khalid Sheikh Mohammed had an MRI at Guantanamo on January 31st, and that the scan showed evidence of head injuries consistent with the physical trauma that was documented in the so-called torture report. That's the executive summary produced by the senate intelligence committee in 2014 that condemned the CIA's black site program, saying that Khalid Sheikh Mohammed was water boarded 183 times and subjected to walling, where his head was bashed against walls between interrogations.

But Khalid's lawyers also fully acknowledge the MRI scans were badly flawed, and that 75 percent or more of the data was unusable. So, defense lawyers want the Pentagon to pay for another, more complete series of MRI's. The Pentagon has refused saying the lease on the portable MRI machine at Guantanamo expired. The machine was originally brought in to the holding facility to study the brain of the captive in the October 2000 bombing of the USS Cole that killed 17 U.S. sailors. The MRI of the accused 9/11 mastermind would have to be done at Guantanamo, because congress has forbidden the transfer of detainees to the U.S. for any reason, even medical treatment.

For now, the portable MRI machine is still physically at Guantanamo, but a judge told the defense, yesterday, they must justify the need for more scans. It's notable that no information has been released on exactly which experts looked at and concluded that Khalid Sheikh Mohammed is suffering brain damage. The Pentagon also won't comment on whether proof of KSM having brain damage would cause the government to drop the death penalty. In a military decision to abandon a capital case, it can be made by the prosecutor, the judge or a jury made up of U.S. military officers. Martha.

MACCALLUM: Great. Fascinating background, Trace. Thank you very much. So, my next guest, Dr. James Mitchell, interrogated KSM for the CIA, and detailed all of those encounters in his book, Enhanced Interrogation, which is a fascinating read, and he joins me now. Dr. Mitchell, good to have you back on the program tonight. When I read this report I was stunned. After all of these years, they are now going to claim that he has brain damage at the hands of the CIA?

DR. JAMES MITCHELL, INTERROGATED 9/11 MASTERMIND: Well, nothing his attorneys do surprises me. Basically, it's obvious that he's guilty. Everybody knows that he's guilty. And I know it's flippant to say that, but it's true. And now, they're just looking for some way to save his life. So, we have to step back and ask ourselves what is their motivation? Well, their motivation, obviously, is to prep the battlefield to make this -- legal battlefield, to make him appear a victim, to make it appear like he's more human, and to set the grounds for some kind of plea agreement that doesn't involve the death penalty.

MACCALLUM: All right. So, you interrogated him. You water boarded him with others in the room, and you walled him, which is that process of slamming him against the wall. Do you.

MITCHELL: Stop that. Stop that. Don't even say that. We did not.

MACCALLUM: Please correct me. Correct me. Explain walling.

MITCHELL: We did not slam his head against the wall. You know, and that's the thing that gets repeatedly said. And, in fact, he was walled no harder than we wall our own soldiers. And there were specifically things that were put in place by the CIA to ensure that the kind of head damage that he's alleging couldn't have occurred. Let me just kind of go through it. There was a special collar that was wrapped around his neck to specifically prevent his head from hitting the wall and to stop whiplash. In addition to that, he was evaluated by physicians when he arrived at the site before the interrogations, during the interrogations. I mean, immediately after interrogations if they looked particularly harsh, routinely, during his stay there, when he was prepared to leave to go to another site and immediately on arrival to the new site.

So, there was plenty of opportunity -- and I would point out to your viewers that Khalid Sheikh Mohammed and the other people who destroyed 3,000 Americans and many, many others around the country, including dismembering Daniel Pearl, just because he was Jewish, we see better medical care than our veterans with less wait time, by the way, and better medical care than the average American. I just don't buy this idea that he's suffering from some kind of a brain damage.

MACCALLUM: And as you point out, you all painstakingly documented and did scans, and took measures to make sure that this didn't happen to him. Do you have -- is there.

MITCHELL: I don't know if they did MRI's. But the point is, that they had physicians observe -- in addition to the evaluations, they had physicians observing the interrogations whose primary task was to prevent that kind of damage from happening as a result -- they could stop the interrogations at any point. And, at one time, stopped an interrogation because the detainee's feet were swollen.

MACCALLUM: Yeah. You know, as you point out, this is not a person who cared when he killed thousands of American citizens, and now they're fighting to save his life. And I'm sure you're right that they are just trying to sort of pepper the ground and humanize him in some way, but you make it very clear -- you say that if there's any brain damage in his brain, it didn't come from anything that you folks did.

MITCHELL: Well, what we have to keep in mind is that he was a jihadist who fought in jihadi battles for years before he was detained by the CIA. His interrogations took place in two months, March and April of 2003. It's been 15 years. We have no idea what kind of activities he's been involved in since he left CIA custody and went to Guantanamo, or what sort of toxins he was exposed to when he was running around Afghanistan, and Sudan, and Pakistan, and other places. I find it amazing that anyone would think that an MRI could specify that a combatant who had been involved in military received it specifically in some period of months.

MACCALLUM: Dr. James Mitchell, fascinating, thank you so much, sir. Good to have you with us tonight.

MITCHELL: Thank you.

MACCALLUM: So, coming up next on The Story, the Boy Scouts of America dropping the word, boy, from their title as they vow to include more girls. Former Boy Scout, Mike Huckabee, has some thoughts on this and he's joining us next.


TRUMP: Boy Scout values are American values, and great Boy Scouts become great, great Americans.



MACCALLUM: After 108 years, the Boy Scouts of America are changing their name. They'll now be known simply as Scouts BSA, which means Boy Scouts of America, so why? According to the chief scout executive, Mark Surbaugh, we're trying to find the right way to say we're here for both young men and women. In fact, over 3,000 girls have already joined the Boy Scouts. There is, of course, the Girl Scouts as well, and they're still the Girl Scouts, they're not too happy about this. Here to react is Governor Mike Huckabee, former Arkansas governor, Fox News contributor, and former Boy Scout. No doubt, I'm sure you were an excellent Boy Scout, Governor Huckabee, what do you think about this?

MIKE HUCKABEE, FOX NEWS CONTRIBUTOR: I think the Boy Scouts are effectively dead. Look, I don't think a lot of people care whether girls have the opportunity to do some of the same things boys do, but there's always been a reason that these activities were conducted separately by the genders, because it gave them an identity, it gave them something to grow into and camaraderie and fellowship. The same reason you have fraternities and sororities and they're not necessarily mixed in a college campuses. I know this will come as a real shock to a lot of modern people, but there really is a difference between boys and girls in the way they think, and the way they grow up, and the interests that they have.

MACCALLUM: I've got to say, I don't have any problem with this, you know. I think the Boy Scouts -- why not be scouts? Why can't the girls and the boys be scouts together? And, actually, when they get into high school they do divide them up by gender again in this organization. I think it's toughest for the Girl Scouts because they feel betrayed by this, and they feel like it's going to hurt their organization.

HUCKABEE: And I think it will hurt their organization. But when you say they're going to go back to gender separation when they're older, that seems to me the most logical time that there wouldn't be gender separation. The time to enjoy that camp out with the guys, and for the girls to do the things that the girls would rather do.

MACCALLUM: Well, maybe that is what they're trying to avoid. They don't want the camp out with the boys and the girls, that's the problem. So, they have to separate -- it's pretty obvious why they have to separate them when they get into high school, I would say.

HUCKABEE: Yeah. But, I mean, Boy Scouts do the campouts. Look, I don't think it's going to cause the membership to go up. I think it's going to cause the membership to go down. They've lost more than half their members over the past ten years. Girl Scouts are struggling. I don't think this is going to cause a lot of parents to say, gee, that's just what I was hoping for. And I'm not sure what their rationale in doing this was. But, you know, this is their decision. They've made it, here we go.

MACCALLUM: You know who was a good girl scout the other night, was your daughter Sarah up on that stage. And she was confronted with a mean.

HUCKABEE: She was.

MACCALLUM: We don't need to replay. I think everybody has seen enough of what happened there. From a dad's perspective, I'm sure that was not easy for you to watch. What was your take away from it, and how did you think your daughter held up there?

HUCKABEE: Well, I think she was absolutely, you know, just calm and collected, and she showed real class. I think the tough part was that she was an invited guest, it was one thing. She knew it was going to be tough, but to put her at the head table and then subject her to that kind of ambush and bullying, I thought was inappropriate. But she handled it well and I'm not surprised. She's a tough kid.

MACCALLUM: She is. And I think she, you know, she was so stand up herself. She was a better stand up that night than the comedian. Governor Huckabee, it's always a pleasure to chat with you. Thanks for being on The Story tonight. Quick break, more after this.


MACCALLUM: So, we've showed you some of what Rudy Giuliani had to say. You can watch the rest of it tonight with Sean as he sits down with the former mayor of New York. That's our story for tonight. Send us an email with your thoughts at The Story at We will see you back here tomorrow night at 7. Let's go to Tucker, my friend in D.C.

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