please remember the spin always stops here because we're looking out pr you. . . here with the loser in today's supreme court ruling. how big this could get. breaking news on benghazi. as fox gets some brand new e-mails just breaking that show the white house spin control in full action. >> we want to confirm a report by a former white house staffer that the president did not monitor the events going down. >> plus why the president's whereabouts during the terror attack in libya matters so much. and then --

>> we are from fox news. can we please speak with you? >> see what happens when we showed up at the house of the va hospital administrator over the daelts of dozens of veterans. plus why would anyone see fit to mock the injuries of a wounded navy we'll investigate kelly file, right now. breaking tonight, just hours after a new committee for benghazi, a stunning e-mail exchange reaching the top levels of the white house. an exchange the obama administration does not want the american public to see. i'm megyn kelly. an internal debate at the white house. these e-mails involve some of the president's top advisers and

the question of whether or not the administration knew this was terror and not some spontaneous demonstration gone wrong from day one. our chief intelligence correspondent reports from washington. >> reñorter: we are learning tonight that a seven-page e-mail circulated at the high eest levels of the white house to come up with a media strategy to deal with the fox news report is being withheld citing executive branch deliberations. the fox news report from september 27th, 201 concluded the intelligence community knew benghazi was terrorism within 24 hours. on that e-mail chain, dennis mcdonough, the national security adviser, john brennan and presidential adviser ben rhodes, whose e e-mail linked benghazi to the video to shape public discussion. >> the seven-page dialogue concerning one fox news report, to me, demonstrates an alarm bell situation where they are

react i reacting to and trying to shape a response. >> these documents reviewed by fox news show there may be other problems, some unclassified e-mails were classified by the state department and other e-mails sent to the hill are more heavily redacted than the same e-mails released by order of a federal court. a spokeswoman dismissing the dmpb dmpbss. >> there are a bunch of documents. i focused on this one because you're so focused on it. >> the obama administration says they are undecided but boycotting the panel will limit their ability to respond to the new republican allegations. >> katherine, thank you. my next guest argues that president obama could put the benghazi debate to rest once and for all by doing one overdue thing, releasing the intelligence briefings. mark teesen makes the argument

saying the president's daily brief would reveal exactly what president obama was told and when. so why hasn't he done it? a former speech writer for george bush, mark, the democrats are saying that everything we need to know has been told. jay carney said the administration has been forthcoming and yet you argue there's one thing they have not produced that your former boss george w. bush did produce and there's precedent for releasing this to the public. >> absolutely. president obama says he was only repeating what the intelligence community told him when he said there was a protest that went awry and led to the benghazi attack. if it's true, there's a simple way to prove it. release his intelligence briefing that he got in the days after the attacks which will show exactly what the intelligence community told him. we will learn whether they said there was an internet-inspired video, what they told him, what level of confidence, all that is

in those briefings. there's a precedent for it. in 2004 at the request of the 9/11 commission, president bush released his intelligence brief, which said bin laden preparing to attack the united states. people said we had been warned about 9/11 and that document showed there was just vague intelligence that could have been used to stop the attack. he was vindicated. so if obama is right, if he was told this was an internet-inspired video, all he has to do is put out the press briefing. >> most of us have never seen a daily brief. you say it assesses the level of confidence they would be giving him. let's say in the white house's version, okay, mr. president, this is a spontaneous protest inspired by an anti-muslim video. they would have a level of confidence attached to that. >> the intelligence community when it mkes a judgment for the president, it does two things. it adds a level of confidence,

low, medium, or high, that's attached to that judgment. they include views. so we know that the station sheep on the ground dissented from the judgment there was a protest. >> and we just heard katherine report there's a seven-page document saying this is all about a video. not a failure of policy. he, too, was there. if he knew, how did president obama not know? >> he knew. so what happens is, one, the views would have been included in his intelligence briefings. he would have been told that they descended from that judgment. and two, over a course of a new days from the day of the attack to when susan rice went out, there would be a differing level of confidence as the intelligence started to question the initial judgment. you might have started with a medium level of judgment and would have dropped down to low. were they still going out and saying to americans, it was an internet video when the judgment

that it was, if there was such a judgment ever, was going down? so this is how we can know it is a knowable fact what the president of the united states was told. so is he willing to come forward and tell us what the community told him. >> they have been saying there's nothing there. this is all invented by republicans. yet this document would answer those questions definitively one way or another. katherine reported they knew it was terror. now it's in print. they knew it was terror within a day. ben rhodes knew it was terror. at the same time ben rhodes is preparing susan rice to tell her to tell everybody it's all about an internet video. we need something more. the administration claims it it told us everything. clearly it has not. mark, we'll bif you the last word. >> why is this important? because we know since benghazi that the president of the united states lied to us about

obamacare. in the context of that, 61% of americans say that the president lies most of the time or some of the time in important matters. in that context it's reasonable for americans to want to know did the president lie about benghazi? if he has nothing to hide, he has nothing to fear. let them go. >> e we mentioned this newly formed select committee that they want to push on benghazi. but before this committee can possibly e get to work, democrats have been suggesting today they will not be participating. and the white house is indicating it may not either. our fox news analyst joins us. boehner now says they are going to go forward with it. but the democrats are saying, you may be counting us out. and george will and others were say i saying if they do that, it will make this partisan. can they be forced to participate? >> in my opinion, they cannot be forced to participate.

speaker boehner and the rest of the house will probably designate which democrats they want to be on the committee. if they choose not to serve, they will be undermining themselves by cutting out a forum that they would have to challenge the evidence that chairman gouty and his investigators dig up. they will be waiving the right and undermining their own credibility. >> what can the select committee do? >> the select committee cannot prosecute, cannot charge, cannot indict. but it has extraordinary subpoena power. i'll tell you what it can be. it can find out where the president of the united states was during those eight crucial hours. >> how? >> they can serve a subpoena, which if it is not honored, they can go to the district court and under a famous case that you and i know called united states vs. nixon, they have a very good chance of getting that subpoena answered before the judge. and the judge will then look at

the documents and decide which o ones to be turned o every and which ones to send back to the white house. this white house has never done that. they have never been forced to do that because they don't want us to know whatever the truth is. >> can they subpoena president obama? >> yes, they can subpoena president obama. if he resists, we have a constitutional crisis and the third branch. a judge would hear it. it may even go to the supreme court of the united states. but if this committee gets the broad subpoena power that speaker boehner has indicated they will get by a majority vote of the house, they can subpoena anybody as to whom they believe has information that they have the right to know about. >> you heard mark talking about the daily brief. i assume that would not be among the documents to which they could gain access? >> i don't think they could gain access, but i agree with mark and i think it could go to a judge and the judge would look at it and selectively say this part can come in, this part can stay subject to.

>> you think we could get to a place where the presidential daily briefs in the hands of a judge to review it by him or himself and he could say this piece needs to be released? >> absolutely. that's what happened with watergate with the judge and he was upheld by the supreme court of the united states. >> wow. that would make some headlines. >> and it might get us to the truth once and for all. >> good to see you. the u.s. supreme court makes what may become an historic ruling on prayer. we'll speak with both sides on what this means for all sorts of americans. neither side is backing down. plus an investigation into a v.a. hospital and details surrounding the deaths of dozens of veterans. see why this administration is now on defense. plus watch what happened when the kelly file went directly to the woman who now finds herself under the microscope in this case.

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blessing upon this gathering. >> that prayer at a small town meeting in new york helped spark a legal fight that went all the way to the supreme court where today we got an important ruling that could change the shape of public prayer. the court sided with the town of greece. deciding it is okay for these prayers to continue. that's a decision that could touch a lot more than the meetings many greece, new york. tonight in a "kelly file" exclusive, both sides are here. barry lynn, aek executive director of citizens for separation of church and state. thank you for being here. barry, as the person who did not prevail today, let me ask you if you think this case as implications of the decent warned in objecting to the opinion. >> i certainly think this is a

very bad decision and a bad decision because five members of the court seem to be running count tore the entire culture of the united states. where we try to be all over the united states more sensitive to diversity of religion, diversity of belief. we try to be thoughtful when we construct any process that's related to government to be inclusive as possible. >> when you talk about the culture of the united states, the supreme court back in 1983 had recognized that public prayer has long been and has clearly become a part of the fabric of our society. that was a key point that was ewed against you today. >> it was, but 200 years ago they cite a lot of things that happen, prayers that were given, and the principles of history are important. but every precise practice is n not. a couple weeks ago the united states supreme court started to talk about the first amendment rights that could affect cloud computing. 200 years ago the only clouds we

heard about were rain clouds. now we know using common sense and rationality that things have changed. this country -- >> public prayer hasn't really changed. hold on. i want to get your competitor in here. >> there's a big difference between applying first amendment principles to new free speech technologies and saying something that was okay when the framers did it is now not okay. this is a good day that the supreme court upheld this time-honored practice of citizens praying at government meetings just as the authors of the constitution did. i think it's a wonderful decision. >> let me change you because the other side says for nine years all you had were christian people standing up before the town and that made others feel excluded and like government was telling me, only christians get to speak here. >> that's true. what the flexibility of the

government people showed there in greece was to expand it. they went with a list of local houses of worship. they expanded it it when this was pointed o out to them. there was no way they were trying to convert people to christianity. and plus there's a lot of difference between a catholic priest and a pentecost l preacher and to dump them all into one pot and say they are all christian just glosses over centuries of theological diversity. >> they even had a priest that got up and prayed to apollo. >> there were three people who suspiciously at the time we threatened to sue them all of a sudden they found a leader and although they couldn't find arab buy. they found a jewish person who could give a jewish prayer. if this town can't locate a single rabbi, a single emom, i

would say i'm worried about how they are fixing the potholes because it doesn't sound that they are serious. because if you can't do something as simple as findsing the people -- >> they could but no one wanted to speak. the point is did they invite them and they say they did. >> they did not invite them. the only invitations came when we threatened to sue them. >> let me ask you this. you say this case -- let me get jordan in on this. this has implications for every level of government across the countr>> i think that it does. it's a practice that was done at local units of government and state legislatures, at congress and i think it's going to help many people see that the establishment clause is not sort of command by the constitution for the government to go on search and destroy missions.

>> let me ask you this. we cover so many cases as practical matter. how big a win do you view this for those who believe that public prayer is still okay? >> i think this is really big. we're kbeting the same kind of arguments in new york city to exclude churches and other religious groups from meeting in the public schools. you have to treat religious groups worse than everybody else. this brings balance back. >> guys, thank you both for being here. i have to run. barry's side was represented. thank you. >> thank you. speaking of free speech, we will hear the story of how students at one college campus were told there was one thing they could not mention in their graduation speeches. plus in a few minutes see why the obama administration was rushing to defend against the latest twist in the probe into a v.a. hospital and the death of dozens of veterans.

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if you have a terminal illness, should you have the right to try treatments that might save your life but are not yet officially approved by the fed's? that debate is now playing out across this country as lawmakers get behind the right to try act. we have the details from los angeles. >> reporter: imagine a disease

that takes 15,000 victims a year, yet just 20 patients are selected for a clinical trial u. a year later the drug shows dramatic results, but fda approval remains years away. should others have the right to try the drug? you decide. >> people die from not being able to access these drugs. i don't want to be one of them. >> reporter: but she was. after fighting the fda, mckayla died two weeks ago. >> the amount of effort you have to put into doing this is just far too much at this time in our life when you really just want to be able to slow things down and just enjoy being together. >> reporter: he lobbied members of congress and the media to save his wife but ran out of time. >> this is one area in which policy does not match what the american people would want. >> reporter: around the country terminally ill patients want access to experimental drugs not yet fully approved by the fda.

>> my brother has been on this drug for two years. >> reporter: max got into a clinical trial and is getting better. austin did not and continues to get worse. >> my brother can run and walk and i can only sit in my chair and watch him. >> we know with 100% certainty he will die. >> reporter: just 3% of patients get selected for a clinical trial. those who miss the cutoff are out of luck for the next seven years. >> every day thousands of americans are dying when there are potentially life u-saving drugs that they could be taking. >> reporter: this missouri lawmaker is losing his daughter. they sponsored right to try bills, which allow terminal patients to deal directly with manufacturers for drugs still undergoing trial. >> all this bill is is to allow investigational medications to

be available. >> reporter: not everyone is on board. statistically only 10% of drugs under fda study ever make it to market. >> you don't know this is any better than nothing. you don't know that this won't reduce your life expectancy rather than increase your life expectancy. >> reporter: unproven drugs offer a false hope and companies shouldn't sell medications until they are proven safe and e effective. but the terminally ill say some hope is better than none at all. up next, a new whistleblower in the investigation into a v.a. hospital and the deaths o of roughly 40 veterans. the evidence continues to mount. plus what happened when we found the woman at the center of this controversy. >> this is fox news, "the kelly file," can we please speak with you? >> why would anyone see fit to mock the injuries of a wounded

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breaking tonight, one of the largest veterans groups is calling on president obama to fire the secretary. it's time for v.a. secretary to go. for what they are calling incompetence. as the head of a department that's reached a point of crisis nationwide. it's the first time in decades they have done such a thing. the most recent allegations of kbros misconduct come from the phoenix medical v.a. where whistleblowers are coming forward saying executives in phoenix left veterans at risk and may have contributed to dozens of deaths.

we have the latest. >> the latest whistleblower tonight telling "the kelly file" there was a secret list and that management even showed e employees how to use that list. the iraq veteran says he was let go to treat his ptsd. when vets came into an appointment he would print the information that they needed to see their doctor and place it in a separate folder. those names didn't make it on to the electronic list that showed vets were being treated. instead those in the secret list often waited months, sometimes more than a year. he concurs with the original whistleblower and says this to anyone who denies there is that list. listen. >> absolutely. they are flat out lying. that's why dr. foot came out. that's why i'm here to support dr. foot because i know firsthand. i have seen it, i used it. we did it every day. they are absolutely lying.

>> pedro went into the v.a. hospital with breathing problems. he got an appointment 13 months later but died of respiratory failure during the wait. listen now to his daughter. >> god has the final word on when it's time for somebody to go, but i i'm saying what gives this hospital the right to make my dad suffer the way he did for a whole year. my dad was a really strong man. very brave man. >> the phoenix v.a. hospital director has been placed on administrative leave. she denies there was a secret list and has now stopped answering questions so today we paid her a visit. watch. >> this is fox news, "the kelly file," can we please speak with you? >> she did not answer the door.

we also went to the door of the associate director. again, there was no answer there either. congress ordered the v.a. to maintain their records, but that order was delayed for eight days unclear exactly what was maintained. >> this is unbelievable. thank you. my next guest is another phoenix v.a. doctor adding her name to the list of those stunning misconduct at her hospital. she says she rescued some evidence that will help prove it. dr. katherine mitchell has worked there 16 years and is now medical director of a transitional program. thank you for being here. this is stunning. you heard that witness that we tracked down in phoenix saying there was a secret list. the veterans were being placed on it because they wanted to show the wait times were shorter than they were. in fact, if veterans were waiting five and six months to get seen and the secret list helped the v.a. keep a record of who they were. the official list showed the

wait list was only two weeks. do you confirm that was happening? >> well, i knew that there was a delay between the time the patient requested an appointment and the time they were put on the electronic waiting list. even when i first transfer ared over to the clinic where i work in now, we went. back through to see if we could schedule some patients with me and we found some waiting as long as a year to get in for an appointment. >> now you have dr. foot and others coming forward to say, i'm telling you, it's because there was a secret list. that basically that the employees were told to keep the veterans off the official list until they could get on within two weeks. now the evidence has come out that we can't find the secret list. the testimonials have been that we were ordered to destroy it. you say, not so fast, because there's additional evidence that the secret list existed. tell us. >> correct.

the computer every time a veteran requests a new patient appointment the computer generated a fingerprint or a record of that. what the health administration service didn't realize is that you could print a list of every patient that's requested a new patient appointment. when they found that out the week of april 24th, then there was a move made by administration to bring in eligibility staff to essentially go into the computer and electronically e erase that list. >> this is incredible. so they were told to preserve documents, which they didn't. that would have happened after they knew that they were being ordered to preserve documents that there was an inspector general looking into the matter, correct? >> correct. in the history that i have been there in general, the staff have warnings of an inspector general investigation. so things are usually covered up. it wouldn't be unusual.

>> it it might not be unusual, but it's unethical. so someone is ordering them to destroy the secret list and once they begin the investigation to go in and destroy this additional record that would prove that there was a secret list. do you know who gave that order? >> yes, i do, but that's part of the o.i.g. investigation. >> can you tell me whether that person has been placed on leave yet? >> possibly. >> can you tell me whether it was sharon heldman? >> to my knowledge, she was not involved. i have no knowledge one way or the other. the information i have comes directly from the eligibility staff that we're working with the list administrators that force them into mandatory overtime. >> what were these fellow employees saying to you when

they had been given the order destroy the evidence? >> when they were brought in on that saturday, they weren't told they were destroying evidence. they were just making appoi appointments with a new set of computer keys. essentially they were told they were working off a different list, but it was nothing out of the ordinary. the goal was to facilitate new appointments pr veterans who were waiting pr some time. the employees who asked for my assistance weren't aware of what was going on. the employee who asked for my help found out fairly quickly and found a way to keep that from happening. >> that's all that matters. the inspector general has the record and we expect o get to the bottom of this and we expect that record to outline all of this in great detail so we can all know the truth. haung for helping them and for coming on. all the best to you, doctor.

>> thank you. you need a few brave souls like that doctor who are coming forward to be honest about this. now the congressman who helped spark the investigation, how needed was that, join mess now. jeff miller is the chairman of the house veterans affairs committee. this is an outrage, sir. >> most definitely. >> what's going to be done about it? who should get fired? >> right now we need to wait for the inspector general to have their report made public, hopefully in the next 30 to 45 days. but i right now believe the whistle blows. i do not believe what the v.a. is saying. the evidence that we have got sboon our committee and passed on to the inspector general fully corroborates the whistleblowers' ideas that they put forward and i think that some of the calls for resignations are probably going to get stronger over the next few days. >> the american legion wants the secretary to step down.

do you join them in that call? >> i don't right now. i think we need to wait and make sure that the inspector general looks at all the information that we provided and what they are able to get. but if in fact what we suspect is true, i think the secretary will have no other option but to step down. right now, we know for a fact there have been 23 preventable deaths within the united states and we suspect there's more. we know that there's been manipulation of numbers, both at phoenix and at fort collins, colorado. we do not trust the numbers that v.a. gives us in any way, shape or form. >> it boggles the mind that this could be going on. is this now well beyond as the former secretary of veterans affairs told me on this program, is this well beyond an ethical investigation and crossed into a criminal investigation into your view? >> i believe it has.

and the unfortunate thing the department of veterans affairs it's easier to get a promotion than it is to get some type of disciplinary u action. fort collins, colorado, where there was manipulation of the numbers again and all v.a. said, there was just a little misunderstanding and we'll have some retraining. we have veterans that have died waiting for care in this country in both georgia and south carolina. nine states had preventable deaths. . they need to start telling the truth about what's going on. >> you wrote the president himself a letter and demanded accountability. the president back in 2009, because let's face it, the problems at the v.a. is not new. but the presidential back in 2009 promised things would be very different. here's a bit of that. standby. >> we're going to challenge each of our 57 regional v.a. offices to come up with the best ways of doing business, of harassing the

best technologies, of cutting red tape and breaking through the bureaucracy and then we're going to fund the best ideas and put them into action. all with a simple mission, cut those backlogs, slash those wait times, deliver your benefits sooner. i know you have heard this for years, but the leadership and resources we are providing this time means that we're going to be able to do it. that's our mission and we're going to make it happen. >> this time it's different, he said. i know you have written him asking for his direct involvement. what more could the president do? >> i asked the president a year ago. actually it was may of last year that i wrote him a letter and asked him to get involved personally. what we have seen is a scandal brewing within the department. i have yet to receive an answer. i don't get anything out of the department of veterans affairs.

i ask every friday afternoon for an update. we have over 90 requests in, some dating back two years. and i don't see any transparency. the president will say anything to get elected, get reelected and to stay elected. >> this is so distressing when you see one after the other, these whistleblowers coming forward and go on record of what was happening there. congressman, thank you so much for being here. >> thank you. >> that's incredible. give us your thoughts. if you have any information to share, do that as well. go to our facebook page and let us know your views on the matter. up next, an exclusive, a student at one american university are told to leave one thing out of their graduation. can you guess what it is? that's next. plus an update on a marine locked up in mexico after apparently taking a wrong turn that led him straight to a

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a kelly file exclusive after a group of graduating students are reportedly told to leave god

of their graduation speeches. their own speeches. a may 1st e-mail from an assistant professor reads "i have had some submissions that needed to be edited so here are some guidelines. one, you can't thank god. i'm sorry about this and i don't want to have to outline the reasons why." the man who broke the story is with us. the reason why is because he was controverting the constitution. >> exactly. the professor instituted a don't ask don't tell policy when it comes to religion in the classroom. students came to campusreform.org really upset that the professor was not allowing them to acknowledge and thank people and a god, for instance, during this time of celebration. >> when it crosses over, the supreme court decision about ten years ago, that talks about how when it can cross over into

university sanctioned speech, it if it's the university saying god, you could be in the trouble zone. but when it's a student on his own without any prompting by the school, that's a different story. we have had precedent on that as well. >> exactly. it was the students that wanted to initiate this. it goes to a deeper issue. the issue that the professors don't understand what the students were trying to do. we hear about this all the time at campusreform.org. he were not looking at this as an opportunity to broadcast to an audience. they wanted to deflect the attention from themselves on to a higher power. they wanted to thank god and the professor wanted to instead force his own agenda on to the students and not allow them to do so. >> what was he a professor of? >> chemistry. >> naturally. that makes him qualified. he follows on twitter the likes

of bill mahr. he said it's a document l thing. we have a diverse student body. it's purely educational. the university did not stand behind the professor, did they? >> no, they did not. they denounced his claims. >> they only did that because the law was not on his side. caleb, thanks for bringing the story to us. thanks for bringing the story to us. >> thank you, megyn. coming up, a "the kelly file" investigation, why would anyone harass a navy s.e.a.l. vet? we'll take this on next. are your joints ready for action? osteo bi-flex® nurtures and helps defend your joints with joint shield™♪ so you can keep doing what you love.

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"the kelly file" investigation now, after surveillance camera video captures a navy s.e.a.l. veteran being berated by his neighbors on his own porch while he tries to put away the stars and stripes. trace gallagher live with more. trace? >> david hall, megyn, was a navy s.e.a.l. for 21 years. he tried to avoid a grenade, jumped off a roof and busted his knee so badly he almost lost his leg. now he's fighting a different battle with his neighbor. he admits he and the neighbor have been at odds since a dispute about the home owners' association a few years ago, but now he says the verbal abuse has been relentless. the latest tirade was captured on his home surveillance system. he was taking down his flag at sunset. you'll see david and hear the neighbor. listen. >> laying around and do nothing.

david hall then posted the video on youtube and has since been taken down. hall says he believes his neighbor had been drinking at the time, but he was still stunned to hear what he said. listen. >> it really offended me, and i feel like a strong advocate for veterans. i thought, if he has the guts to do that to me, then there's other people in other places in the country that are experiencing the same thing and may be worse. i thought i'd just illuminate it. >> we should note the neighbor posted his own response on youtube saying it was david hall who was the actual bully in this whole thing. the halls have now decided to put their home up for sale and to leave the neighborhood. megyn? >> trace, thank you. let us know what you think, send me a tweet or go to facebook.com/thekellyfile. coming up on "hannity" at the top of the hour. >> some big mistakes were made under hillary clinton's watch. the first mistake was i think in

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(announcer) love. it's what makes a subaru, a subaru. earlier tonight, judge napolitano mentioned what a special prosecutor might mean for the benghazi investigation and some are suggesting "kelly file" favorite andy mccarthy for the job. the former prosecutor joins us tomorrow night on that.

don't forget to set your dvrs. get a season pass of us. every night at 9:00 p.m. eastern time, 6:00 p.m. pacific. thank you for watching. see you tomorrow at 9:00 with andy. here's "hannity." this is a fox news alert. house speaker john boehner has chosen south carolina congressman trey gowdy to head the benghazi select committee. thank you for joining us on a very, very busy night on "hannity." i'm eric bowen in tonight for sean. >> short time ago, fox news learning three leading republicans will circulate a letter as early as tomorrow calling for harry reid to form a joint benghazi select committee with the house. today, the speaker publicly confirming what had been said privately, that south carolina congressman trey gowdy will lead the select committee, vetting his experience