bullpen. i am bill o'reilly. please always remember the spin stops here. we are definitely looking out for you. breaking tonight as we mark 13 years since the 9/11 attacks on america, the commander in chief announces we are unleashing an air campaign on syria designed to eviscerate the terror army isis. no sooner had that come then secretary of state kerry claimed america is not at war. why are we bombing syria, sir? welcome to "the kelly file," i'm megyn kelly. 13 years ago america was forever changed when a hijacked plane hit the world tower trade center in downtown manhattan. three more planes would be used as weapons that day. thousands of innocents would die and america would be dragged into the war on terror. first came afghanistan and later

the war on iraq. that one was arguable from the start. but believe in it or not we did it. though we needed to end it, we needed to end it right. our generals in the field urged president obama to keep nearly 30,000 troops in iraq to preserve the gains we had made. the president ultimately left not a single soldier there. and the terror group isis grew like a cancer. they have now established the equivalent of their own country. our defense secretary says they compare to nothing we have ever seen. weeks ago president obama said he had no strategy for defeating this group until his poll numbers plummeted. and then last night the man who says he was elected to end wars seemed to announce he was starting a new one. >> as commander in chief, my highest priority is the security of the american people. our objective is clear. we will degrade and ultimately destroy isil. first, we will conduct a systematic campaign of air strikes against these terrorists. second, we will increase our

support to forces fighting these terrorists on the ground. we will send an additional 475 service members to iraq. third, we will continue to draw on our substantial counterterrorism capabilities to prevent isil attacks. this counterterrorism campaign will be waged through a steady, relentless effort to take out isil wherever they exist. >> it sounded like a battle cry. but then today the secretary of state comes out with this. >> we're engaged in a major counterterrorism operation. >> not a war? >> it's going to be a long-term counterterrorism operation. i think war is the wrong terminology and analogy. i don't think people need to get into war fever on this. >> joining me now mark theiesse,

and pete hegsheth. mark, let me start with you. as the former chief speech writer for presin who wrote tha that we have now played and that has been seen by nearly 40 million americans where he predicted all of the things that are happening right now in iraq if we withdrew too soon, why does the language matter? >> well, the language matters a lot. by the way that came directly from president bush. i don't want to take credit for writing it. the president told us he wanted to lay out the consequences of what would happen if we left and we did. i took dictation. but the words matter a lot because, look, number one when secretary kerry goes out and says that we're not at war with isil, that doesn't send a message of resolve. and two, it sends a message to the world that we don't know what we're doing. i mean, we are operating under the laws of war. bombing into a foreign country is an act of war. you are either under the laws of war or you are not under the laws of war. you can't have it both ways. >> but what is the evidence of that? you know, to call it an act of war, i mean, we've gone over, we've bombed libya. we've unleashed air campaigns in other countries without

designating them wars. so why do we need to label this a war and why is it such a kerfuffle when secretary kerry says this isn't one? >> well, it's interesting because in that very same interview where secretary kerry said we are not at war, he also said president obama didn't need to go to congress because he already had an authorization for the use of military force. there are two. the 2001 authorization after the 9/11 attacks. and second, the 2002 authorization for the war in iraq. the first one mentions war four times. the second one mentions war nine times. so how can secretary kerry say we are not at war when the resolutions he is citing from congress say we are at war? >> these authorizations for the use of military force are the exact document that this president is now relying onto unleash this military campaign on syria. but here is the president in may of 2013, may of 2013 talking

about those very authorizations and what he thought should happen to them. listen. >> unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don't need to fight. so i look forward to engaging congress and the american people in efforts to refine and ultimately repeal the au mass mandate. >> he went another way. >> now he's relying on them. because he was the president. back then he was the president who was going to end wars and now he's starting the war that's not really a war. and, look, i think the fascinating thing here is that they seem to think that if you don't send ground troops that that means it's not a war. they're making a distinction with the bush administration we're not sending grounds troops spoo iraq so that makes it less of a war. 13 years ago today al qaeda attacked us with planes. was that not on act of war? war isn't defined by whether you have ground forces or not. our air force and navy pilots are combat forces that are

bombing a foreign country. it's an act of war. if you can't even say what you're doing, how are you going to prosecute it in a way that's going to win? we need resolve. we need to send a message of resolve to the enemy. and we need to carry out this war and defeat the enemy. >> raises a good point, pete, because congress hasn't officially declared war since june of 1942. but tell that to guys like you who actually risked your lives on the battlefield in iraq and afghanistan and these guys who are going to have to do this campaign 400 troops to iraq. >> that's the first thing i think about. i keep wanting to invest in my commander in chief. i keep wanting to think he's going to give a speech to rally the american people to tell it like it is to defeat this enemy. in some way he did, 450 troops not enough, i was disappointed in a few things, but it was a forceful speech. and today they do everything they can from secretary kerry and josh earnest to say, wait, this is not a war. >> don't need to get war fever.

>> war fever, megyn. so we've been suffering apparently from war fatigue and we're war weary as a nation. now we're worried about war fever. but i've got a fever for justice. i've got a fever for success. i've got a fever to defeat the enemy. no one who's seen it wants it. but those 475 going to iraq, they deserve a mission. they deserve clarity. and they deserve a president who will say what they're going to do clearly, which is they're going to war on behalf of the interests of the this nation to defeat a vicious terrorist army. not just a terrorist group, a terrorist army. >> is there some belief that if they label it as something else they will convert it into something else? this is not a war, the islamic state is not islamic nor are they astate, ft. hood was workplace violence and not terrorism. he claims he called benghazi a terror attack the day after, but he didn't. if you just say it's something else, you can make it something

else. >> yes, i've jostled between are they realists? are they idealist? they're fantasyists. if we tell it as is, that's what exists. >> however they label it, do you believe in what he set out last night militarily? do you believe he has the right plan right now? >> i don't think he has the right plan. he has the right rhetoric. we're going to need more boots. the question is, megyn, two or four weeks from now will he come out and rally the american people? will he really form a coalition of people who want to follow or a president who lays it out and declares it's not a war? how do you build a serious coalition around that. >> before i let you goe, marc thiessen, that's what president bush did when things were going as possibly they could in iraq and the american people want us out, that's when he talked about the damage we would be doing when things don't go the way we hope they will, what does the

commander in chief do then? give you the last word. >> it's interesting. when president bush announced the surge he stepped up and said i take responsibility for the fact that the strategy isn't working. and here's how it's going to change. here's what we've learned. here's what we were doing wrong and here's how we're going to fix it. he laid out specific steps. president obama never said the strategy wasn't working. he never took responsibility for the fact isis rose on his watch because he did nothing. he said we're not going to allow them a safe haven, but he did nothing for five years while they built the safe haven. he should have stepped up and said our sfrat ji wasn't working. here's how we're fixing it. >> marc, pete, thank you. there's also new fallout from the president's argument that the terror group calling itself the islamic state is neither islamic nor a state. discuss. i'm sorry, but did you see that. you know, right? grape nuts, neither grapes nor nuts. why did he say that? why does it matter? wait until you see who is here

next to answer that. plus, the pressure to take on this group really got started with the murder of journalist james foley. tonight, in a "the kelly file" exclusive, jim foley's brother weighs in on the president's speech and why the family is in his words appalled with how the administration has been handling that case. and see why senator ted cruz last night got booed off a stage and who was behind it. >> i will say this, if you will not stand with israel and the jews, then i will not stand with you. ave something for pain? i have bayer aspirin. i'm not having a heart attack, it's my back. i mean bayer back & body. it works great for pain. bayer back & body provides effective relief for your tough pain. better? yeah...thanks for the tip!

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for the most amazing parts of you. let's make two things clear. isil is not islamic. no religion condones the killing of innocents. and the vast majority of isil's victims have been muslim. and isil is certainly not a state. >> well, that was the line from the president's speech last night that drew some of the loudest reaction. the president arguing that a group calling itself the islamic state is in fact neither islamic nor a state. joining me now brooke goldstein, human rights attorney and director of the law fair project and the chief executive director of the florida branch for the council of american islamic relations. we are going to begin with hasan and get to brooke. hasan, thank you for being here tonight. so, it is true that isis -- that

islam is not isis. but it is also true that isis is islamic, is it not? >> well, isis is no more islamic than the westboro baptist church or anybody who commits violence in the name of faith. unfortunately every single faith has had crazy extremists to distort. the reality is moderate christians, muslims and jews have much more in common with each other. extremist muslims and extremist anti-muslims have a lot in common, that is that they both distort the islamic faith to promote their twisted agenda. which is rejected by the 1.7 billion muslims in the world. >> well, they may be rejecting, you know, moderate islam, but they are preaching a form of islam that is very popular in some corners of the world. and by those countries that follow strict sharia law, they're not that far away from

isis in their beliefs, in particular about women, are they? >> actually, the greatest muslim scholars and scholars of sharia have denounced isis. you can see on the record publicly and thousands of scholars like them who have said that the isis claim is illegitimate, followers are deviant. they have been rejected in the muslim community vocal in condemning isis. >> but not everyone in the muslim community. some muslims have. no one's trying to condemn all muslims. but to argue that the islamic state is not islamic and that there isn't this radical faction which is significant within islam is to deny reality. >> well, statistically there's no more criminals from within the muslim faith and terrorists within the muslim faith throughout history. let's not forget andrews -- slaughtered some 80 children. in the name of protecting

western christian identity. the crusaders said whoever kill in -- >> but it's not. you look at egypt, an ally to the united states or at least it was. the administration's been on the fence about that. but 84% there, 84% favor the death penalty for leaving islam. 82% favor stoning for adultery. it doesn't seem like the most moderate religion when sharia law comes into the picture. and this group takes that to an extra extreme. to an ult tra extreme. and they do it in the name of islam. >> and we publicly denounce them. i'm not familiar with those statistics. >> it's true. that's from the pugh polling center. >> i can't comment. yeah, yeah, i can't comment. >> you're talking about sharia being moderate and i'm telling you no it isn't. >> do you know what the goals of sharia are? >> i know if you're a woman and you commit adultery under sharia

law they want to stone you. all right. so i know that. >> that's actually found in the bible. again, you're taking things out of context. >> they want to kill you. >> that's actually found within the bible. those are the very same things that are found in the bible. >> yeah, but they're actually doing it there. are you familiar with the case -- they put her in jail for allegedly converting from christianity and wanted to give her a hundred lashes and hang her to death. >> megyn, we've spoken out against it and she was released. in africa some countries like uganda some christian groups that want to stone gays to death. there's extremists in every faith. how do you think i feel as a syrian-american and see the country i was born in, the country my grandparents, it's being destroyed right now between assad doing it in the name of fighting terrorism in the name of protecting syria and then isis killing thousands of civilians in the name of my faith. unfortunately both have high jacketed great ideals. >> i understand that. i understand. >> justify violence and terrorism. >> as a syrian it must be very

distressing. but let me challenge you, hassan. you purport to be moderate in your views and to want condemnation of isis' tactics yet when we look at your facebook page, calling the 9/11 commission all lies. you list yourself as a fan of this radical muslim cleric who says the military -- u.s. military invented aids and doesn't believe al qaeda was involved in 9/11. why would you call yourself a fan of that man? >> i never called myself a fan of that man. i think i saw one lecture that maybe i clicked like on facebook. >> you list him as a fan and interest. you had it up there years ago. you were challenged by it. you said you didn't know it was up there. that was four years ago -- no, four years ago. it's still up there. four years later. you know. >> my facebook friends, my thousands of facebook friends can judge my posts for themselves. >> you're telling me right now you don't know kalid is? >> no, i'm not intimately

familiar. >> intimately familiar or do you know who he is? >> i think he's a speaker. again, megyn, i thought i was here to talk about cair -- >> we are, hassan. you're talking about moderation within the faith and i'm trying to figure out who you are and what you believe. let me just do a few. do you believe al qaeda committed 9/11? >> yes. >> do you condemn hamas? >> we condemn any and every group including hamas that target and kill civilians. >> okay. and there's no doubt in your mind osama bin laden was behind 9/11? >> absolutely not. >> do you believe it was about his version of radical islam? >> look, i believe he distorted the islamic faith to justify the ends we all need to stay united against those promoting fear and hatred in this world today. >> would you shake hands with a woman? >> if she's related to me and my wife doesn't kill me. in the islamic tradition out of honor and respect for women a married man is taught not to touch another woman who is not

related to him and a married woman is taught not to touch -- >> you've been criticized for that. dr. kalil mohamed expressed concern about that and described your ideas as retrogressive. i appreciate you coming on with your thoughts. >> thank you for giving me the opportunity to make it clear we all need to stand against violence and work together for a better society. >> coming up in a moment, brooke goldstein is here. she's got some thoughts on hassan and his claims. you will see those next. plus, coming up in "the kelly file," an exclusive interview with the brother of murdered journalist james foley. don't go away.

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back now with a controversy

over president obama arguing that a group calling itself the islamic state is in fact not islamic. brooke goldstein joins me now. brooke, your thoughts. >> well, last time i checked anybody who called obama an islamist was called themselves a lunatic conspiracy theorist. but here we have the president of the united states preaching to the world what islam is and what islam isn't. and i find it quite prum shous for a non-muslim to be dictating who is a real muslim and who isn't. no matter how much obama would like us to believe that isis' version of islam doesn't exist or how much the council on american islamic relations likes to bend over backwards to convince us that there aren't people who are quoting the quran while murdering innocent civilians -- >> that didn't seem to be hassan's point. he said they didn't speak for all of islam and that they're perverting islam. like the westboro baptist church

perverting christianity. >> right. but no matter what islam is or what islam isn't or what his version of islam is or what i would like islam to be or you would like islam to be does not matter. it's all a distraction from the real issue. and that is you have terrorists who are quoting the quran while lobbying people's heads off. that is a strategic threat. it's that version of islam that is a national security threat to the united states. and it's that version of islam that we should be learning about and paying attention to. >> but the president seems to be speaking to the overwhelming number of muslim who is are peace loving and do not believe in jihad and don't want to see these isis crazies take the name of their faith in vain as they behe americans. >> right. but the president crossed a line when he started preaching to the world about what islam is. the president is not an authority on religion. and nor should he be.

and it is not his job to go into that black hole, that energy vampire of debating what islam is. that is a job for theology -- >> were you critical of president bush who did something that sounded very similar? here is the sound bite. >> the face of terror is not the true face of islam. that's not what islam is all about. islam is peace. these terrorists don't represent peace. they represent evil and war. >> go ahead. >> well, they certainly don't represent peace. a and, yes, my criticism is equally. any president defines what islam is or isn't is crossing the line. frankly, it doesn't matter because it has no authority over

isis. isis continues to use the quran to justify murder. we have hundreds of western muslims traveling to syria because they believe it is their duty as muslims to engage in a violent jihad. and no matter what former president bush's version of islam is or obama's version of islam is, i want doesn't matter. >> what did you make of hassan and his defense of himself and those he considers moderate? >> you pointed out who hassan is. this is a man who is an apolo apologyist. a group that has recruited 42,000 children as suicide bombers and child soldiers, refuse today call them a terrorist group. and the organization he works for, the council on american islamic relations, when they were asked why isis was created if it was theologically motivated, they came out with a statement saying isis was created because of the lack of freedom and justice in the region. what does that mean?

isis is an organization that's killing, engaging in a genocide of christians and nonmuslims. they're just freedom -- >> maliki there has been completely anti-sunni and has led to the sunnis allowing a group like isis to take advantage of that anger that they've had towards the government. i'm assuming that's what they meant. brooke, it's great to see you. i got to go. >> you too. >> just to point out, the thing about the handshaking was a criticism that came from a university professor who believed that that type of ideology shouldn't be allowed by people like hassan. this is what many muslims believe, that you should not if you're married touch another woman with whom you are not close. it's not a condemnation by mean what is this university professor suggested about hassan. follow me on twitte twitter @megynkelly. coming up next, "the kelly file" exclusive with the brother of murdered american journalist james foley. why his family says they are appalled with how the administration handled that case. and the country is safer now

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get healthier gums in two weeks guaranteed. philips sonicare discover the brush that's perfect for you. when people harm americans anywhere, we do what's necessary to see that justice is done. the people of syria whose story jim foley told did not deserve to live under the tyrant or terrorists. >> that was president obama on august 20th speaking during his vacation about the murder of american journalist james foley at the hands of isis terrorist. while hi promised justice, he did not offer any kind of plan. he then left that speech and drove straight to the golf course. over the next few weeks another american, steven sotloff, was beheaded. more atrocities were committed. and the president's poll numbers

began to plummet as support for a military intervention built right here in the united states. and last night we heard a very different message vowing to destroy and degrade these terrorists with a series of military actions. joining us now to react in a "the kelly file" exclusive, michael foley, the brother of jim foley. michael, thank you so much for being here with us tonight. and i appreciate it in particular on a day like this, 9/11, when you and your family have been directly affected by the war on terror that began 13 years ago today. i want to ask you. >> yeah, thanks for having me. >> your brother, jim, went to syria in an act of courage to cover the barbarism there and ultimately became a victim of it. the president last night vowed a military campaign. but my question to you is whether it came too late. >> yeah. well, it certainly came too late for jim.

i just hope it's not too late for others. >> when you sat and listened to the president last night, you know, talk about how a core principle of his presidency is if you threaten america you will find no safe haven and heard him outline his plan. what were your thoughts? >> it didn't sound like much of a plan to me. i mean, i understand why maybe certain details they don't go into. but i would have liked to have seen a little more involved strategy that includes a plan to institutionalize change there and stabilize the region. >> i know your family has been somewhat upset with how the administration handled jim's case, obviously, and your family over the course of it. >> absolutely. >> and i'm wondering whether you feel that you were well supported. because i know that when we made the prisoner swap or the five taliban generals for bowe bergdahl, the president came out and said the policy is no man

left behind, he expanded that even to civilians saying no americans unjustly detained should be left behind either. and wonder fg you feel he and the administration did all they could to get jim back. >> no, no. we're appalled by the situation. you know, it went past not doing everything they could. they were actually an impedance. they got in our way. that's what really bothers me to the core. you know, we were -- i was specifically threatened by the department of state about raising funds towards, you know, ransom demands for my brother. you know, we were smart enough to look past it. but it slowed us down. we lost a lot of time trying to regroup. >> wait, they didn't want you to do it privately? it's one thing that the american government won't do it. that's been our long standing policy. but they didn't want you to do anything privately? >> exactly. my parents believed strongly, family, friends, we started a

foundation. it's called the james w. foley legacy foundation. and it's aimed at assisting hostages and families of hostages with navigating this web. you know, fostering communication between nations. there was really no sharing of information. in fact, when we try to get information from other allies even, you know, we were stonewa stonewalled. so it's a huge gap. >> michael, you know, the whole country was so horrified by the video of what happened to jim. and, you know, obviously no one more so than your family. and it's actually played a major role in the president's announcement last night. i mean, the latest fox news poll showed 65% of the american public believe that the united states should take the lead in going after the killers of your brother. did you watch the video? >> i did. i watched an unedited version of

the video. i felt i had to. jim's death means so much more than, you know, a catalyst for some of the u.s. action. but at least there is some comfort in that. certainly with the kind of seminole moment. and clearly, you know, has pushed our administration to act. but the video just struck me to the core that the evil this group has, i just can't wrap my mind around that. jim was such a go ahead person. i wish i could even come close to his approach to life. he really, really cared about the disadvantage his entire career from teaching in inner city phoenix to working with mothers towards their geds in chicago and all his work in the middle east to bring light to the atrocities there. it was just a circumstance, an ending that i could have never imagined. >> you know, i know pope francis actually said that his death was

an act of martyrdom. and his legacy he leaves behind is that courage and that willingness to stand up in the face of barbarism and try to shine a light on it. which many journalists were too afraid to do. michael, all the best to you and your family. thank you so much for being here with us tonight. >> thanks, megyn. take care. >> he's such a sweet man. he described himself as a proud american. and said he didn't want to be negative. you know, he just wants the world to remember his brother. and he's obviously very concerned about our foreign policy today. again, the james w. foley foundation seeks to help the families of hostages. that is freejamesfoley.org. up next, a kelly investigation into the man suspected of four murders now telling police he did it for allah. and we are hours away from the final ruling in the oscar pistorius case as we learn tonight why the judge has ruled out a premeditated murder conviction. the new details just ahead. ophy?

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home grown terrorist or accuse him of launching jihad against americans even though that's exactly what brown says he's doing. investigators in essex county, new jersey, believe brown gunned down 19-year-old college student brendan tevlin firing ten shots into tevlin's jeep cherokee. brown was captured hiding in the woods and later confessed to killing tevlin and another new jersey man and two more men in seattle. he claims he's a muslim and angry at the u.s. role in iraq and iran and saying his mission is between him and his lord telling police "all these lives are taken every single day by america, by the government. so a life for a life." police then asked him "these four murders we're talking about were all done for the actions of the u.s. in the mideast?" brown's answer, yes, police then ask him "are you taking responsibility for that"? brown says just doing my small part. in 2004 mohamed brown was also

part of a ring of men in seattle suspected of funding terror groups accused of depositing fraudulent checks and sending the money overseas. brown was convicted of bank fraud. the leader of that bank fraud ring, a man named reuben shumpert is believed to have gone to somalia, joined al shabaab and killed fighting u.s.-backed forces. the feds won't comment on brown being involved in terror. but if he's not a terrorist himself, it appears he certainly likes to associate with them. megyn. >> trace, thank you. well, last night president obama touted his success at taking ut terrorists and said america is safer because of it. these were some of the scenes america was faced with 13 years ago today. >> welcome back to fox news. we have a very tragic alert for you right now. an incredible plane crash into the world trade center here at the lower tip of manhattan. >> it's believed a 737, speculation at this point, but crashed into the side of the

building. >> this has to be deliberate, folks. we just saw on live television as a second plane flew into the second tower of the world trade center. >> can you tell me what you saw? what you heard? are you all right? >> this poor woman. wow. >> we are hearing right now another explosion has taken place at the pentagon. >> i think this is one of these days where we can say that things will not again be the same in the united states of america. this is the kind of terrorist attack that is the nightmare that experts and others have warned about. >> bret hume. michael chertoff is executive chairman and co-founder of chert hof group. that's the question, are we safer tonight than we were? >> well, there's no doubt we're safer than we were prior to

9/11. we've spent over a decade building a very formidable set of capabilitiecapabilities. and we have taken out in one way or another most people responsible for 9/11. but we have to be careful not to be backtracking. there are two developments i think we have to watch. one is there's been some pushback against our intelligence capabilities, what nsa does. and i can tell you that our signals intelligence collection through nsa has been one of the most critical elements in our success over the last ten years. and we can't afford to lose that. and the second development is the rise of isis, which is a new battle-hardened group of extremists that does pose a threat to the united states. >> uh-huh. for all the terrible video of what we've seen they do in the middle east, how concerned should we be here in america that they may threaten us here at home? >> i don't think this is necessarily an imminent threat. but i would say first of all as they bring westerners into iraq and syria to be trained in

further radicalized, some of those westerners are going to come back. and we have to be careful to monitor them and make sure they don't become terrorist activists here in the united states. i also think frankly as we step up the pressure on isis in syria and in iraq, they're going to feel some impulse to try to even the score. and i think that we have to be prepared for the fact that they're going to try to strike at americans either overseas or in the united states. >> a lot of people hear that and then say what are we doing? why are we going over there then? >> because if we don't eliminate the problem now, it's only going to get worse. when we went into afghanistan after 9/11, we found laboratories where al qaeda was experimenting to try to come up with weapons of mass destruction. if we let isis build a state, build laboratories, sell oil in order to raise money, we're going to be facing an enemy that's more formidable than we faced on 9/11. we're much better off as the president said yesterday eliminating the problem now than waiting until it gets worse.

>> secretary michael chertoff, thank you so much for being here, sir. well, we are just hours away from the final ruling in the oscar pistorius case which took a stunning turn today. tonight now we're learning why the judge has ruled out a premeditated murder conviction. judge alex ferer is here next.

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well, reports about senator ted cruz getting a lot of attention after he was booed off stage last night. the texas senator was speaking at a conference for middle eastern christians when some of the crowd took issue with his support for israel. watch. >> let me say this, those who hate israel hate america.

[ audience booing ] and those who hate jews hate christians. if you will not stand with israel and the jews, then i will not stand with you. thank you and god bless you. >> with that senator cruz walked off the stage. later organizers blamed a few bad apples in the crowd for those boos. developing tonight we are just hours away from a final ruling now in the oscar pistorius murder trial where today the judge found the blade runner negligent but not guilty of the premeditated murder of his girlfriend reeva steenkamp. judge alex, host of the nationally syndicated show "judge alex." so what exactly happened today? >> something that doesn't happen in the u.s. because you know in south africa they don't have a jury system. the judge is the jury and the judge. so she decides credibility of witnesses, she decides all the facts and also renders the verdict. so rendering the verdict today she dealt with part of the

charges and then just suddenly adjourned. she decided that the prosecution had not proven first degree -- not first degree but premeditated or even murder that wasn't premeditated. >> here's what i don't get. when i read what she said, she doesn't think it was premeditated because witnesses saw him crying after she was dead. >> yeah. >> really? really, judge? >> remember now you're delving into the realm of the jury. you don't know what discussions the jury has in the jury room about whether they believe the crying defendant could have murdered her or not. those i am sure are very common discussions that they have. >> his defense made it preposterous. >> i believe he killed his girlfriend knowing he was in the bathroom. >> everyone thinks that except for this judge. >> the defense put on witnesses who said they heard a man screaming. and they were closer to the house. the prosecution put on witnesses who said they heard a woman screaming, and that was a key part of their case.

that he knew his girlfriend was in the bathroom before he shot because she was screaming and neighbors heard it. but they were a far distance away. so in a way in which witnesses believe, which is what the jury does, credibility, she decided she could not go with the prosecution witnesses when the defense witnesses were much closer. >> but she elaborated on that and said the testimonials about him crying after she was dead and he was holding her body that she believed was he acting -- that good an actor? >> no, i believe he was upset. >> i'm sure he was. >> i think he killed her and then realized what he did and couldn't undo it. >> right. got really upset he killed her. that doesn't mean he didn't kill her with premeditation. >> i agree. she also took shots at him found him to be credible in many respects but thought he was evasive. but only the prosecution bears the burden. >> so what happens tomorrow? >> that's the interesting part. that doesn't happen in the u.s. she ruled on murder and premeditated murder and then started to talk about how he was negligence. and then adjourned. she still hasn't ruled on manslaughter, which i suspect she's going to find him guilty

of manslaughter. >> how much time would he get for that? >> well, he faces up to 15 years but there's no minimum. the judge could give him anything. he's also facing charges, possession of illegal ammunition, if he was in miami could probably buy at 7-eleven. but also discharging two firearms in public. >> oh, yeah. >> possession of ammunition is up to 15 years as well. >> he's not going to get that. he'll get a slap on the wrist. >> i don't think he'll get the max, but i think he's doing prison. >> a lot of people think this is another o.j. simpson. >> he's not breaking into somebody's hotel room in vegas. he's going to prison. >> we did see him murder his lover. >> i agree. >> just ahead, a sneak peek into the final part of my interview with regard churchill. and this is the best stuff yet. plus, coming up on "hannity". >> what he said last night it was just weak. and it's not what we expect from our commander in chief, especially the person that's going to put military service members on the line. today her doctor has her on a bayer aspirin regimen

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we leave out corn,wheat and soy. and we own where our dry food is made-100 percent! can other brands say all that? for nutrition you can trust and your pet will enjoy... does your food go beyond? learn more at purinabeyond.com. my one-on-one interview with ward churchill is posted on facebook.com/kellyfile. here's a sneak peek. >> may i change the question? every year tens of millions of people try to come to the united states. >> yeah. >> they try to come. and if we lifted the curtains, more would come. half the world would come here. >> i'm sure. >> they're coming here, voting with their feet, leaving everything that matters to them behind. they're coming here because they think this place provides them with a better life. are they wrong? are they coming to an evil

empire? what do you know that they don't? >> that's tomorrow night. set your dvr. as we say good-bye to september 11th, please consider this, tunneltotowers.org. never forget. welcome to "hannity." this is a fox news alert. so when president obama addressed the nation last night and outlined his strategy to defeat and destroy the isis terror network, well, he made several major contradictions to his previous positions on foreign policy issues. fox's own ed henry is standing by at the white house to explain tonight. ed. >> reporter: good evening, sean. interesting, speaker john boehner did indicate today he's willing to push through the president's plan to arm the syrian rebels as well as $500 million for the early stages of battling isis. but there's skepticism on both parties because of some of those contradictions you mentioned in the policy, the new strategy announced by the president to a primetime audience.