but it's actually people who are getting very sick from this. why? we have all of this coming up for you on "happening now". we're going to kick it off with our top story, the cia disrupts an al-qaeda plot to baum a u.s.-bound airliner with a sophisticated new device, or so we hear. we're glad you're with us, everybody, i'm jenna lee. jon: i'm jon scott. right now investigators are working to determine whether an updated underwear bomb could have gotten past airport security. u.s. officials say the device was seized before it posed a threat to any airliner. we're toldets an upgraded version of the bomb used in that failed attack on a detroit-bound plane back in 2009 on christmas day and it contains no metal parts, making it difficult to detect. >> it probably would mean that an individual carrying such a device could easily walk through the metal

detector and not set off any alarms, which means we would be depending on the individual being screened with a full body screener, and there, it's not certain whether the device would be detected. >> this is a very clever guy, very good at making bombs. he is probably al-qaeda in the arabian peninsula's number one threat to the united states directly. jon: wur chief intelligence correspondent catherine herridge is live with more. >> reporter: thank you jon and good morning. fox news is told that at least three other countries are involved in this ongoing operation, a law enforcement source told fox that there is reason to believe more bombs may be out there, and this morning, the chairman of the house homeland security committee confirmed that the killing of this operative who met with the first under quarter bomberrer in 2009 before leaving for yemen is tied with though organization, al-qaeda in the arabian peninsula.

>> the killing of the aq leader over the weekend, that was tied to this operation. so this is more than just one person, one bomb. this is a larger scale operation, and that's why the security on this has been so tight. >> reporter: this morning, fbi investigators are working on the device similar to the underwear bomb shown here. they're looking for hairs or dna that will tie it to the bomb maker. the device is described to fox as an improvement over this one, it does not contain any metal, as you mentioned jon, and the detonator has been modified. the device bears all the hallmarks of ibrahim al asiri, the bomb maker in yemen, he was behind the under bare bomb, the printer cartridge bombs and plot to assas national a saudi prince in 2009. the device was not tied to the one-year anniversary of the seal raid. >> a statement was that there was no specific credible plot tied to the anniversary of bin laden's death. so -- and that was and is an accurate statement.

>> reporter: but in a briefing to coincide with the anniversary, fox news, as a senior counterterrorism official, if another device -- says another twice was picked up and, quote, i'm not familiar with the report you cited of another bomb in the last six months so nothing has been inter corrected -- intercepted or picked up, not that i know of. this morning law enforcement told fox that they believe the credibility at homeland security and fbi has been undercut because on the eve of the anniversary, they issued a bulletin saying there was no plot, when the administration knew a device had been intercepted. this source questioned whether politics had been put ahead of national security in this case, jon: jon: interesting developments there, thank you. jen peter brooks is joining us, former cia officer and fellow for national security affairs at hurtarg foundation. your thoughts with what catherine finished there, with maybe there were politics going on and mixed messages from different agencies. what do you think? >> we have to be very careful of that, we can't

let politics get in the way of national security policy and our national security, regardless of what's going on in the political sphere around the world. we clearly, jenna, are living in dangerous times. people who suggest we're in a post 9/11 era are mistaken. we're still in the crosshairs of terrorist groups associated with al-qaeda, even though usama bin laden is gone, the al-qaeda in the arabian peninsula is probably the most dangerous al-qaeda affiliate out there. they not only had this plot going along, they also holdter tore in yemen and in fact the day before or about the same time this bomb was picked up they raided a yemeni army base and killed soldiers and stole weapons. this is a formidable threat to the united states and to others around the world. jenna: peter, let's bring up that map, guys. we had a map that showed where yemen is. it's always nice to remind ourselves about the geography of yemen. peter, it's reported this device was found outside

yemen. three other countries are involved. what countries? >> well, i would imagine that it's probably somebody like saudi arabia, i would think that they probably are very concerned about what's going on in yemen. remember, jenna, a number of years ago, saudi arabia had a significant al-qaeda problem. they really cracked down on a lot of those people in saudi arabia, fled to yemen. so saudi arabia is obviously very concerned. i'm not clear on who the other countries might be. you know, these al-qaeda operate ofs move around quite a bit, you know, it could be pakistan. we've had that -- we have that problem there, it could be egypt, could be jordan, could be iraq. i mean, al-qaeda -- could be boco, could be on the african republic, it would be shabab. al-qaeda is dangerous and it's transnational, because as you mentioned, they said it went beyond yemen itself. jenna: there's certainly

been a lot of focus on yemen. we've talked about it numerous times as well as it being an epicenter for al-qaeda but when you look at yemen we have to remind our viewers that it's an impoverished country, 45 percent of the country lives on less than $2 day. so if the bad guys are there, they have to have money from elsewhere to fund their operations. they just have to. so where is that money coming from, who is supporting them? >> well, they're getting it from a number of different ways. the same way -- we've -- it could be through individuals, you know, hopefully not through governments but that's always a possibility, they do fundraising. i mean, you see terrorist groups like hezbollah and hamas operating in south america and raising funds to be sent back to places like the gaza strip and lebanon, so this is a global challenge, and dealing with terrorism finance is important. while it doesn't take a lot of money to pull off a terrorist operation, it usually does take some, and then if you have an organization like al-qaeda

in the arabian peninsula which is planning, training and operating, they have training camps in yemen. it does take some money. so one of the ways to get at them is obviously to not only what we did the other day with drone strikes, as well as seizing the bomb, but also, it's to cut off funding. so critically important we do that. it's a multi-vectored approach to terrorism. like i said once again, complacency for us is a huge mistake. jenna: you mentioned the funding. i'm going back to that again, the issue of the saudis because you mentioned that potentially they could be involved, we don't have information of that at this time but just because of the proximity of these countries, the saudis have been helpful in certain areas to go after some of these terrorists, but we also have to remember that a lot of the 9/11 hijackers were also saudis and this issue of saudi arabia has never been truly reconciled in the last ten years of our war on terror. so is it possible that some of the funding for al-qaeda in the arabian pen lanes is coming from saudi arabia?

>> it certainly is a possibility. i don't have any particular knowledge of that. there could be individuals who are funding them. you know, this is something we have to get at, and this is where international cooperation is so critically important. i think the saudis had a wake-up call in the last six, # years about what was going on in their own country and the threat from al-qaeda. they cracked down ton, and as you mentioned, they tried to kill the counterterrorism chief in saudi arabia, this particular group, al-qaeda in the arabian peninsula. so international cooperation is critically important, that if there are sources of funding for groups like al-qaeda in the arabian peninsula or al-shabaab or boco haram or al-qaeda in iraq or the taliban or other places, that they crack down ton and that comes down to not only terrorism counter -- counterterrorism operation but diplomatic efforts on the part of the united states to ensure the folks are not just partners sometimes but allies all the time in fighting terror. jenna: peter brooks at the

heritage foundation, nice to have you, thank you very much. jon: new developments to tell you about in the race for the white house as governor mitt romney gets ready to hold a rally in michigan next hour. this comes after the presumptive gop presidential nominee took credit for the recent turnaround in the auto industry. a major economic force, obviously, in michigan. this is mr. romney's first visit to the state he once called home hins racking up a primary win there back in february. but he could face some challenges in michigan come november in taking on president obama. the real clear politics average poll shows the president with an 11 percentage point lead in that state. president obama, with 50 percent, governor romney has 39. the president won michigan quite handily back in 2008, getting 57 percent of the vote. right now, big changes in how america patrols her borders. today, the u.s. border patrol is launching a new strategy that it says will rely on more intelligence to identify repeat crossers. it will also impose more

serious consequences on illegals. steve centanni, live from washington with more on that. what's this new border strategy, steve? >> reporter: jon, it puts a new focus on intelligence gathering, instead of blanket coverage of border hot spots. the old strategy was to crack down on border checkpoints in the more populated areas, which then drove immigrants to remote locations where it was easier for them to be apprehended. the new approach, according to this new report, uses intelligence to identify repeat border crossers, to find out why they keep coming across and determine what risk they pose to the national security. border patrol chief mike fisher testifying about the new approach today. hears what he said a while ago: >> the principal theme of our strategy is to use information, integration and rapid response to meet all threats. these pillars are essential as we continue to build upon on approach that puts the border patrol's greater capabilities in place to combat the greatest risks. >> reporter: a hearing

underway on the house homeland security subcommittee that deals with border issues, jon. jon: exactly what is the situation on the border, how is it changing now? >> it's changed quite a bit. there's more enforcement fewer aphedges. here are the figures from the border patrol itself. they made 327,000 apprehensions along the border last year, more than that, actually. but that's down substantially from 1.6 million in 2000. at the same time, there's been a border patrol hiring boom. there are now 21,000 agents, more than dull the number working in 2004. and there's been increased spending on fencing, cameras, and high tech sensors to de tent those illegal border crossings, jon. jon: steve centanni, live in washington, thank you. yuen jen the desperate search for two missing tennessee girls after their mother and their older sister are found dead. we're going to have the latest on that investigation coming up. jon: also, rick santorum endoris his one-time rival, governor mitt romney. but it's what santorum says in his e-mail to supporters

that's getting all the attention today. jenna: plus, pet owner, listen up to this: a major recall and some serious illnesses to tell you about, straight ahead.

jon: former senator rick santorum, making a big announcement, throwing his support behind presumptive republican nominee, his one-time competitor, governor mitt romney. in an e-mail to supporters late last night, senator santorum had this to say about his former rival: the primary campaign certainly made it clear that governor romney and i have some differences but there are many significant areas in which we agree. one of those areas they both agree, president obama must be defeated.

aaron mak fike is national political reporter for real clear politics, and joins us now. you, we should mention, were embedded with the romney campaign the last time around, 2007-2008, his is a campaign you know well. why an e-mail? normally these things are done with pageantry and podiums and hand shakes and a lot of back slapping. why an e-mail? >> the first line you read had santorum saying there are areas where he and romney disagree. -- agree. i think that's important for trying to lay out what he is doing in the future, because already some are saying if mitt romney does not win this year, rick santorum might be interested in a presidential campaign again in 2016 and he is energize social conservatives by saying look, governor romney and i have differences. jon: and republicans have a tradition of doing that, of taking the guy who finished second last time around and making him the nominee next time. >> they certainly do and i think rick santorum is well aware of that. jon: i guess it also allows

or prevents maybe some of those negative television ads from being run, you know, of an endorsement speech, because santorum has said some very negative things about governor romney, for instance, he called him uniquely disqualified to run against president obama. that kind of thing. if he were to make a big podium announcement and say all kinds of positives, then that's automatic fodder for the democrats to pull for a tv commercial. >> that's right, and just recently michele bachmann endorsed mitt romney at a big event in virginia and just that day we saw all these clips of some of the negative things that michele bachmann said about governor romney, so you're exactly right in suggesting that. but i would also point out to you this: mitt romney doesn't necessarily want to appear with rick santorum who is so socially conservative because right now mitt romney is trying to appeal to independents. he's going to have republicans with him in the fall in the election against

president obama but right now the independents are key. jon: you say this is sort of a win/win for both gentlemen. >> absolutely, yes. jon: all right. when you look at the states, the way things stand in the swing states, this is a gallup, usa today poll, that came out yesterday, these two are very close, mitt romney and president obama. anything can happen, obviously, between now and november. but are you surprised it's as tight as it is? >> no. i've been surprised that the independents have been swinging so wildly from president obama to mitt romney. it's been going back and forth a lot, just a month or so, president obama was well above mitt romney and now they're so close again, and mitt romney is starting to -- >> jon: but after the pound thank romney has taken at the hands of people like santorum, his new best friend, that's interesting. >> that's true but in the last two or three weeks, it's not been that way and so many republicans have come out in support of mitt romney, tepid or not, no one is beating him up the way they are before. jon onand if you're running

the romney campaign, that's what you wanted and expected, gleel and the other thing is, now that we're seeing that the economy is recovering more slowly, that also helps mitt romney because it helps underscore his message and also with the news that has come out of europe in the last couple of days, there's more upheaval in the european economy, which that's what democrats are really worried about, that that's going to cause more vee reshrations in our economy which helps mitt romney and his message. jon: it will be interesting to watch. sharon mcfike, thank you. jenna: a great point to end on. erin was just talking about what's happening in europe and some are suggesting today that concerns over the european economy are rattling our markets at home. you see the dow down more than 170 points, big companies like mcdonald's and caterpillar and ibm are down today on the dow. and when you see widespread weakness like that across different companies and different sectors, it does suggest concerns about the overall economy. so we'll keep an eye on what's happening with the dow today. the economy of course is the top issue in the race for the white house, both

president obama and governor romney already trading punches on things like high unemployment. so which candidate will voters decide can do a better job boosting the economy? a fair and balanced debate, just ahead. and a major recall to tell you about. some important news for pet owners around this country, when we come back. more and more. the world needs more energy. where's it going to come from ♪ that's why right here, in australia, chevron is building one of the biggest natural gas projects in the world. enough power for a city the size of singapore for 50 years. what's it going to do to the planet? natural gas is the cleanest conventional fuel there is. we've got to be smart about this. it's a smart way to go. ♪

jenna: right now we have an important alert for pet owners across this country, a dog and cat food recall is expanding after several brands are linked to a rare strain of salmonella. rick folbaum joins us from the new york city newsroom and it's not just the pets getting sick. >> reporter: let me say right off the top we are going to put the brands and products affected by this on our website. we want to make sure you can check the food that you have in your house against the full list. it's a long list.

so again, it will be online. these are dry foods that are made by diamond pet foods. it's out of gaston, south carolina. the plant that they have there is the plant in question. and the biggest brand that probably affects the most people is the kirkland signature brand, which is the private label for costco. fourteen people, in at least nine different states, have now gotten sick from salmonella after handling these dog foods and as a precaution the recall is expanding now to include a total of 16 different states, up and down the east coast, as you can see, as well as canada and puerto rico. the products are contaminated with a toxic mold. it's also killed dozens of dogs, though the federal government doesn't track animal illnesses so that number may not tell the whole story. as for the people who have gotten sick, though, the cdc says they all either came in conduct with the dog food or with dogs that had eaten the dog food. these people then didn't wash their hands and contracted the illness that way.

we should also mention that more than a dozen people who work at that plant in south carolina have also gotten sick. diamond makes a number of food brands at this plant. we mentioned kirkland signature, there's also canaday, natural balance, apex, chicken soup for the pet lover's soul. the list is long. we're going to put it on fox foxnews.com/happening now and you can check it for yourself to make sure that you're keeping your animals and your family safe. back to you. jenna: we'll definitely check it out there, rick, thank you very much. >> jon: well, the economy, center stage in the battle for the white house, from the auto industry bailout to the unemployment rate across the country, with both president obama and governor romney taking credit for what's gone right and blaming the other guy for what's gone wrong. >> president obama is employing polices that have not worked. you know that by virtue of looking at the results.

we don't have enough people that have got good jobs, incomes have dropped, you know the median income in america has dropped by 10 percent over the last four years, median household income is down $4000. this is at the same time that the costs have gone up. health care costs, up. gasoline costs, up. food prices have gone up. it's harder. americans and the middle class are feeling squeezed. jon: joining us now, chris cofinas, former chief of staff to senator joe manchin, also with us, rick tyler, former spokesman for newt gingrich. gentlemen, welcome, thank you for being here. >> thank you. jon: are these the same issues that we're going to be hearing over and over again until election day? it seems like both men are blaming each other for the state of this economy, and president obama's case, he's blaming republicans generally and saying the economy was so bad when he came in from the bush administration that he couldn't possibly get it better until now. chris, to you first. >> well, i mean, this

election is going to be about the economy. i mean, it is the fundamental issue that's going to define these two candidates and what are the positions they take. i think the problem the romney campaign has, and you've seen it with his kind of convoluted new position on the auto bailouts, is no one really knows what governor romney would do as president, other than basically repeat the mistakes of the past and that's not going to be a real powerful vision or attraction for independents. so i think romney has got a problem in terms of selling a new vision, because he doesn't seem to have it. jon: well, but i guess he does have a record as a fixer. i mean, he did that with the olympic games. >> well, i'm not sure the olympic games qualifies you to be president of the united states, and i think the challenge that i think the romney campaign has is they've got to basically discredit what the president has done. the president inherited a mess, we know that, it's been a difficult few years. but if you look at where we

started and where we are, that gives the president i think a good, strong argument. more needs to be done. the challenge i think for romney is to kind of question that. and you have to do that not just by question or criticizing what the other side did, but you have to offer an alternative in saying i ran the olympics, i'm not sure that's going to cut it. jon: rick, the a.p. described the way these two men have been battling each other in this way, said he's a smug harvard-trained elitist who doesn't get how regularly americans are struggling these days, more extreme than he lets on, these keeping his true agenda hidden until after election day, he's clueless about fixing the economy, over his head on foreign policy, who he is -- who is he, and the description is this is what the candidates are leveling at each other. >> i saw that story and it was intriguing. i think chris is right in one sense, that this will be about jobs and the economy

and romney needs to prove to the american people that he can fix the economy. i also agree with what chris said about vision. without a vision, people perish and romney needs to lay out a vision. it's not good enough just to criticize the other side. that goes for obama, too. what you have in the end, with either candidate, is you end up with no political capital. when you have no political capital, it's impossible to govern. this was the case in the second term of george w. bush, with john kerry. you have both men had assembled people who hated one guy more than the other. this doesn't leave you with a mandate to govern. it's very difficult. i been one of these candidates would really break out and i hope it's mitt romney that if you lay out a vision, something positive that the american people can understand, why your vision leads to better job creation, lower gas prices, and i do think energy is central to that, central -- energy -- and energy is central to that. it not only involves jobs, national patriotism, self

sufficiency, and is related to foreign policy as related to iran and israel. you can talk about energy all day long and we do not have today a national energy strategy. jon: chris he says the candidates should stay positive. we've been told to expect the most negative campaign in history. >> this is going to be the most negative campaign in history. it is going to be a brutal fight to the gutter. that's the unfortunate reality. but i don't think that that's necessarily a smart strategy. i mean, if you look at where i think the electorate, the electorate i think is angry and frustrated with politics, both republicans and democrats, and i think if these two campaigns focus simply on the negative, and that is kind of the tendency in our business to do that, i think it's kind of both cut off the nose to spite their face. i do think there is a path here not to completely forsake the negative because you have to do that to some extent but kind of lay out a positive vision, and i'm not sure romney has done that. until he does i'm not sure he's going to be able to exploit whatever advantage he has. jon: i haven't heard a lot of positives from the

president, but we'll talk about that another day. chris, thank you. jenna: the battle to keep student loans low, the republicans and democrats have different ideas on how to pay for it. but should we be getting into this at all, should either side? we'll talk live with senator john thune, moments from now. >> a little boy wanted a gum ball really, really bad so he took matters into his own hands, literally. how he got out of a very sticky situation, next. careful, pringles are bursting with more flavor.

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jenna: we have breaking news next hour, court action for joran van der sloot, the prime suspect in the disappearance of alabama teen natalee holloway, what a judge is set to decide now. plan to bail out the postoffice. who gets stuck footing the bill? that's the big quevment we're live with that story. >> and phillies pitcher cole hammill learns his punishment for a very controversial play. plus what hammill had to say about beating a batter. we're live -- about beaning a batter. we're live at the news desk. jon: we're awaiting a vote on the hot topic of student loan rates. both sides say they have ways to keep rates low. they just can't agree on how to pay for it. mike emanuel, fox news chief congressional correspondent has the latest from capitol hill. so what are the top republicans saying about this upcoming vote in the senate, mike? >> reporter: jon, they don't like the democratic plan that's going to come up

for a vote at noon. bottom line, they say you can do the student loan plan without raising tax and without diverting money from medicare. senate republican leader mitch mcconnell says this upcoming vote is all about election year politics. >> what matters now for democrats is that they find a way to drive a wedge between republicans and a constituency that they're looking to court ahead of the november elections. >> that's what today's vote is all about for them. >> reporter: the procedural vote at noon eastern time, about 30 minutes or so from now, is not expected to meet the 60-vote threshold, and then after that, perhaps negotiations move forward. jon. jon: so is either side actually going to risk letting those interest rates rise on the student loans? >> no, although observers of this congress will tell you that not much gets done until they get to the brink, so to speak, and a lot of republicans say that

democrats want headlines saying republicans vote against student loans plan in it this connection near. so for now, leading democrats are going to continue to hammer away. >> they have a much different pay-for than taking it away from cervical cancer and breast screenings, away from the affordable health care act. and so we'll see what happens with that in terms of the screening. what we're going to continue to do is beat the drum beat with respect to that july 1st deadline. >> reporter: and july 1st is that critical deadline, bottom line, in this election year. nobody wants to alienate young voters with those student loans. jon: mike emanuel in the capitol building, thank you. jenna: as mike just showed us, both sides are amping up the political rhetoric on the issue, senate majority leader harry reid taking a swipe at the republican plan just a few moments ago. let's take a listen. >> while we do not support the republicans plan to

support programs that combat diabetes, cancer, are happy -- we're happy if they want a vet on an alternative but let us get on this bill. if republicans would stop filibustering our legislation, and in this instance, to keep student loan interest rates low, they want some other way to pay for it, let's take a look at it. let them offer that. the stakes in this debate with too high to let partisanship get in the way. jenna: for more, we're joined by john thune, chair of the senate republican conference. nice to have you with us. >> good morning, -- good morning, jenna. jenna: senator reid says he's open to an alternative. let's be -- why not be open to that? >> we would like an opportunity to get a vote on a proposal that would keep the interest rate at 3.4%. what we're not going to be for is raising taxes and doing harm to the economy. this is the vote we're going to have at noon today, is a

cynical proposal put forward by the democrats which is an extension of the presidential campaign on the floor of the united states senate. we would like to have an open debate about this, where we get an opportunity to put up our proposal. we think it's a much better approach. but the fact of the matter is that the real issue here is the obama economy and the damage that it's done to young people who are out there looking for jobs. that's what we ought to be focused on. and get away from these things that are designed to do nothing more than score political points in an election year. jenna: senator theum -- thune, some would suggest that both parties are wrong here, that the government is debt, here talking about interest rates from 3-6 percent, that's nothing to be dismissive about but the government guarantees these loans already. we have a lot of important issues and this is not the place to spend energy. what do you think about that? >> my own view on that is that we ought to be focusing on the real issue, and that is creating jobs and growing the economy. if you look at associated press report from a couple of weeks ago, one out of two

college students in this country today, recent graduates, are either jobless or underemployed, and those that are getting jobs are making 9 percent less than they would a few years ago. so the real economic issue here is the broader economy and what we're doing to create jobs out there. frankly, i think there is a real concern about spending and debt and making sure that we do things in a responsible way here, and the reason we are where we are today is because a couple of years ago, when obamacare was passed, the federal government, the democrats at the time, who were the majority, and the president took over the student loan program. it used to be run through private banks, where they originated and serviced those loans and the government guaranteed it. now that the government is in this business, we're having all these problems that are created by that takeover. jenna: let's focus on what lies ahead and how to maybe fix some of these issues. some suggest providing loans and backing them actually makes colleges less affordable. in fact the secretary of education for reagan had this to say, william bennett, he says if we keep interest rates low, will

colleges reciprocate by keeping tuition low, and he goes on to say there's been a four -- 400 percent increase in the last 20 years for college tuition. do you have a game plan to deal with the rising cost of education especially in a bad economy, would you consider tapping the cost of education, for example? >> i'm sorry, consider which? jenna: maybe tapping the cost of education? >> well, i think the cost of education is always a big issue, if you're somebody who's going to school. there are programs available to help team who -- people who need it and that's what the stafford loan program does, it affects one third of all government loans out there and of course there are a lot of students who get loans -- continue to get loans through private lenders. but the cost of college education continues to go up, and what we're seeing, i think, is a result of a lot of the polices coming out of washington, d.c. is states are now having to pay more to cover the medicaid costs that are being handed to them by the federal government, and, therefore, they have less to put into higher ed, so we're seeing a real shift going on in this country, because of some of

the polices that are -- that have been created in washington, d.c., and largely because of more government takeovers. i think the real issue here goes back to the omabacare bill that was passed in 2009, where $9 billion was raided on the student aid fund to pay for parts of omabacare and where the government took over the student loan program. they can do a lot better job of this and i think keep interest rates and college tuition more affordable for students if we had a program that was administered in the private economy rather than run through the government. gen jen we'll see what the health care law as well with the supreme court. that could add an interesting twist in our conversations about where our money is going as well and that's something we don't know at this time. senator thune, always nice so have -- to have you, thank you for stopping by. >> thank you jenna. jon: surprising news about your cell phone. why critics are saying they are becoming like surveillance, and new evidence in the john edwards trial, explosive testimony

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and save up to thousands of dollars. call this toll-free number now. jenna: if you have a cell foarntion you really have to listen up to this. alarming new findings about using your cell phone, after hundreds of law enforcement agencies admit to tracking americans through their phones without their consent. that is not legal by the waivment is the government violating your fourth amendment right? i have a feeling what judge andrew napolitano is going to say. >> the answer is if the government does this without a search warrant, yes it is violation. >> jenna: how would i know? >> you wouldn't know, because this device, and we all carry it, especially in this business, so we can be in touch with our producers and colleagues, as a gps device in it and the government has software which would allow it to access this gps device and follow this wherever it goes so if it's in my pocket t. can follow me.

the government admits it is doing this but it is reluctant to use evidence obtained from this in a courtroom because that will place the constitutionality of its practice in front of a judge, and then a series of appellate judges and maybe the supreme court, which will say you can't do it. why do i say the supreme court will say you can't do it? because in the past year, the supreme court came down with two rulings. one said the police can't plant a gps device in a car where the driver does not have his cell phone with him without a search warrant. the other said the police can't stand outside of your house with some sort of a sophisticated surveillance or monitoring device that would enable them to find out what you're doing inside the house without a search warrant. so it is clear they can't use this to follow you without a search warrant and it is clear they know that. jenna: is it a little bit of a slippery slope in that we all carry cell phones, we know that in most cases that they can be tracked when they're on, and so it's kind of out there, all this information in the universe, and quite frankly, very few

of us know what's out there and who's taking a look at it. >> it's a great question, jenna, because privacy, the right to be left alone, the right protected by the fourth amendment, is one of those things that changes as time changes. the linchpin of privacy, what is private, is what you expect to be private. jenna: let me -- >> well, if we expect that these things will enable police to follow us, does that mean we no longer expect privacy when we have them in our pocket? >> jenna: you have to think about the annoying people at the grocery store, having a full-on personal conversation in the fruit aisle and they're not really expecting privacy there, judge, so why are there conversations -- >> they're certainly not expecting privacy in the end of the conversation that we have, but they probably don't think that the government is listening to them. but look, the government has better things to do than to listen to a person in the fruit aisle. jenna: we hope so. >> but do we really want to live in a society where the government knows everywhere we've been and can almost anticipate where we're going to go and where the government can use this to

listen to a conversation that you and i are having, even when it's turned off? the only way to disable this from becoming a listening device is to disable the battery. do we want to live in a society where the government does that, no matter how well intended the government might be or are we so afraid of what's happening in the world we want the government to know everything about us. jenna: those are big questions. we're going to have you come back. >> for the answers! jenna: we'lling watching that cell phone of yours! nice to have you as always. jon: i won't take this into the grocery store anymore, just to make you happy. jenna: not in the fruit aisle, of all places! jon: no, maybe ice cream! day 12 of the corruption trial of former presidential candidate john edwards. we are live at the courthouse with some of the testimony coming out of the sal atious case. sex and money at the heart of it all. the dow, it was down nearly 200 points earlier in the morning. we are keeping an eye on it for you, down about 148 right now.

the dow, not very happy.

jon aircraft manufacturer boeing is dreaming big, building its dreamliner outside of washington state by nonunionize dollars workers in more than 40 years, the company banking on a plane becoming our nation's biggest export item, hope to go create tens of thousands of jobs. fox business network's peter barnes, live at reagan national airport now. peter. >> reporter: well hey jon. this plane behind me is the rock star of airplanes right now. it's been on a five-month global tour. this is stop number 32 on that tour here at washington reagan national airport. this is the next generation of a high-tech jetliner,

totally reengineered, made of superlight, superhard plastic. >> what makes this one so different and such a big leap is its 20 percent more efficient, 20 percent less fuel, weighs 20 percent less, environmental footprint, 20-30 percent less. so it's a big leap. and it's because it's built out of composites. it's not out of aluminum. >> reporter: we got the tour of the plane yesterday, and finally, finally, more overhead storage space! bigger overhead storage space bins for carry-on luggage. planes cost $200 million apiece, there are 850 on order right now. jim mcenerny of boeing says this will be a $400 billion business for the company over the next 20 years. they're being built in washington state and in south carolina, after that contentious labor battle last year, the first one rolled off the assembly line

in charleston, two weeks ago. jon. jon: love that overhead space. love that airplane! peter barnes, thank you. jenna: sometimes you just need a piece of gum, you know? i hope jon doesn't think that because i'm sitting next to him for another hour! we're pretty close quarters! check out this little guy, torrell parks, jr., texarcana, arkansas, who wanted a gum ball so badly he couldn't wait for it to make its way out of the machine and reached in there to get it himself and got stuck! his father explains what happened next: >> i turn for one minute, they were trying to get gum out of the gum machine, and it's hand was stuck up in there, completely, man! >> wanted a gum ball. had to do a lot to get that one! jenna: fire and rescue crews managed to man offer the -- maneuver dollars two-year-old's hand ut oft -- out of the machine. he was exploring, he's two years old and thought he could -- >> jon onand i bet he won't

do that again! poor kid! the cia, stops an al-qaeda terror plot, very similar to the failed christmas day bombing in detroit. former homeland security michael chertoff will join us. plus, new information on when the president knew about this plot. plus, mourning the loss of a literary legend, the beloved author of children's books, including where the wild things are, has passed away, a look back at maurice syndak's life, just ahead. the next generation of investing technology is now within your grasp with the all-new e-trade 360 investing dashboard. e-trade 360 is the world's first investing homepage that shows you where all your investments are and what they're doing with free streaming quotes, news, analysis and even your trade ticket. everything exactly the way you want it, all on one page. transform your investing

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