leisure activities. is that fair? crowley and colmes will debate. caution, you are about to enter the no spin zone. the factor begins right now. >> bill: hi, i'm bill o'reilly, thanks for watching us tonight. the chaos factor and president obama. that is the subject of this evening's talking points memo. stunning development general stanley mcchrystal commander in afghanistan being called back to washington because of an article in rolling stone magazine. in the piece, an unnamed aide to mcchrystal briefly disparages president obama. another aide mocks vice president biden who publicly disagrees with mcchrystal's strategy. in my the article is tepid not explosive at all. nevertheless the president is angry. >> i gay him the article last night, and he was angry. >> how so? >> angry. you would know it if you saw it. [ laughter ] >> is mcchrystal's job safe? >> uh, we have more to say after that meeting. >> does the president still have confidence that general mcchrystal can run this war? >> we should wait and see what the outcome of that meeting is. >> bill: we have full coverage tomorrow on that. there is only one time general mcchrystal is quoted bad mouthing someone in the article. evidence mocks richard holbrook, a presidential advisor. all the other stuff is allegedly from his aides. i say allegedly because rolling stone magazine did a piece on me a few years agoened and it was total hatchet job. the writer john colapinto was dishonest. the writer of this article michael hastings has a long left wing history. however general mcchrystal has not denied anything in the article. so zeal to wait to see what the general says tomorrow when he meets with president obama. of course, the situation is just awful. we have americans dying in afghanistan and now the commander there is on the carpet because of rolling stone? are you kidding me? our military in the field can't afford that kind of chaos but as bad as the afghan situation is becoming, the overall picture for the united states is getting worse by the day. oil spill? chaos. border with mexico, chaos. economy? shaky. and now this mess in afghanistan. this is the low point for the obama administration. right now, today. the low point on almost every front things are going badly. is it all the president's fault? no. but plenty of it is. the afghan war is a complicated and brutal undertaking. the u.s.a. and nato are basically trying to convince a primitive country to act in a humane way to reject terrorism and corruption and the brutality of women. and we can't even fight the war aggressively for fear of civilian casualties. remember, the taliban wear no, sir uniform. they hide behind women and children. if the president thinks mcchrystal is not doing a good job, get him out of there. but if he thinks he is doing a good job, scold him and send him back to the theater. all right? you can't be sacking a general in the middle of a war for a stupid article. that's the memo. now for the top story tonight, reaction. joining us from boston, fox news military analyst considerable david hunt and from st. louis lt. colonel tony shaffer who won a bronze star in afghanistan and has worked directly with general mcchrystal. you read the article, does it sound like mcchrystal? >> it's mcchrystal unplugged. i think you have a warrior and what you get, a great deal of in the article, is warrior joking with other warriors. so, when you look at those issues and you actually have to work and designate what is true and not true, it's very true. everything in there is true. the problem is the context is what becomes the issue here. >> bill: well, you know, there is a hint in the article and, again, i will say that this article is not explosive by any means. they are pay paris gathering, okay? mcchrystal is trying to convince the french to maintain commitment in afghanistan. then they go drinking in an irish bar afterward. i can tell you rolling stone did the same thing to me. they followed me around for a bunch of days and then they took a quote from thursday and then a quote from monday and they welded them together in totally unrealistic picture. i'm not accusing rolling stone of doing that not in this case. they did it to me. but, in this case, you are right. there is no context. this could be jokes, this, that, and the other thing. remember, the sources are unnamed, colonel hunt. they are unnamed. with all of that being said, mcchrystal now gets pulled out of kabul. he has got to go all the way back to washington to discuss rolling stone magazine. is this absurd or what? >> >> no. i mean they are not bringing mcchrystal back to pin a star or award on him. mcchrystal had a run-in before in october. he is a four star general. if anything in your chain, bill, if anybody working for you said something even close to that, that building would implode you are sitting in. if anyone in mcchrystal's chain of command below him said anything close to this he would be fired. he cannot do this in the chain of command. he he can't do it. >> bill: i got it military discipline dictates the commander and chief and all the generals have to have loyalty up and down. we understand that. >> yeah. >> bill: what about the article you read, colonel? was something that disciplinary action would have to be taken. give me a specific. >> the article concept of mcchrystal and his staff, these are not done in vacuums, these kind of comments are not done in vacuums. these are officers with a great deal of experience. tony and i both served for a long time. there is never a time that you could say anything like this about your military boss, certainly not your civilian leadership, with a rolling stone guy in the room. >> bill: okay. it sounds to me -- >> death by reporter. >> bill: you are assuming that he did it. i'm not assuming that yet. >> he been apologizing all night. >> bill: i know he is apologizing keep it this in mind he has been told to apologize and shut up about what happened. we know that and he is obeying orders. >> he can't do what he did, bill. >> bill: ordered by the military department and secretary gates to shut his mouth. that's what's happened. we have to keep all of this and be fair to the general. i don't know. i wasn't there. but the overall arch that you are portraying, colonel hunt, is just the fact that this kind of thing was going on in his circle, these jokes about biden, these jokes about holbrook, they are a bunch of anyone anies and ninnies, that's enough to get them out of there, is that what you are saying? >> also mcchrystal comments. >> bill: there was only one direct mcchrystal comment. only one on holbrook. don't get his email on your leg. that was the only one. >> the issue is very, very clear. >> bill: go ahead. >> if i could add to that look, i have heard the same thing from other senior sources in the pentagon about ambassador holbrook. >> me too. >> frankly, it's been. bill, the thing about all of this is that this is not new. this is not extraordinary it is essentially a rehashing of the same issues that have been going on forever. this is a metaphor for what's really going on. >> bill: that's true. but what makes it deadly is that the commander now has pulled out our soldiers and marines are there getting fired on and it's chaos. that's the line line of conversation. >> no. it's not chaos. >> bill: it's not? >> mcchrystal is one of the few exceptional general great fire at tony has worked for him. he is a good man. he made a big mistake. we have very capable leaders underneath him finally. we have had very bad generals in afghanistan and iraq. mcchrystal is one of the best. it's not because mcchrystal come back is not chaos. very good leaders under him. >> bill: you are saying this pull back now of mcchrystal isn't going to effect the troops that much. is that what you are saying colonel? >> not at the firing level we don't have another one like him there are already issues in afghanistan. >> bill: would you keep him in the field based on this article? >>, you can't. and nobody working for me would work the next day. >> bill: would you pull him? would you pull him colonel shaffer? >> can't do it? >> well, i -- general patton survived two slapping incidents and he went on to do great things. have you got to put it in context is he the best man for the job. you know bill, you and i have talked about this. we don't agree with the strategy. we believe that joe biden -- biden strategy is the more workable one. but with that said, if the president has decided on a strategy regarding counter insurgency, then general mcchrystal may be the best guy to do it. i have heard rumor that centcom is considering replacements, they gave me a number of names today. i mentioned them earlier today on fox. there is rumors already ramping about who is going to take his place. >> bill: so he is gone? >> yeah. i think he has to be, unfortunately. >> bill: all right. gentlemen, thanks very much. we will find out tomorrow. >> thank you. >> bill: next on the rundown, white house correspondent major garrett will weigh in on the mcchrystal controversy. is the president goofing off too much? >> and has you can see, just a few precincts are reporting so far. incumbent senator was ousted at the state party convention in may. in the republican runnoff for governor of south carolina, state representative nicky -- nikki haley was an easy winner, beating congressman greshham barett. and in north carolina, secretary of state elaine marshal won big over cal cunningham who had the backing of the democratic party. marshal is getting 60% of the vote. i'm chris wallace in washington. more election news later. ♪ ♪ ♪ do u gonna be there? ♪ are u sure u gonna call back? ♪ ♪ when am calling up and all that? ♪ ♪ ♪ can't u hear i'm sick? ♪ i'm lovesick ♪ can't u hear it explode? ♪ all down, all down [ but aleve can last 12 hours. tylenol 8 hour lasts 8 hours. ♪ can't u hear it explode? 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[ male announcer ] aleve. proven better on pain. >> bill: stanley mcchrystal being recalled to washington because he embarrassed the president and other top officials. joining us is senior white house correspondent major garrett. major, you are standing right in front of the white house. is there a vibe coming out of there? is it like ooh. we are mad tonight is that coming out of there. >> the vibe is that the president is very unhappy with general mcchrystal. the back drop for this is particularly concerning to the president and his top advisors for two reasons. number one, general mcchrystal won all the internal strategic debates over the afghanistan strategy. for him now to disparage the president early on, disparage his vice president, be critical of the overall other members of the team ambassador eicken berry, the envoy richard holbrook strikes the white house. robert gibbs would not use the terminology betrayal but completely unbecoming of the commanding general who is not only in charge of the war effort but has won and seen his side prevail on all the most important debates in this white house about what to do in afghanistan. the president sided with general mcchrystal in the afghanistan strategy. frustration with implementation can be accepted. what cannot be accepted here at the white house and what i don't think will be tolerated, bill, is this act of either rank insubordination or right to the edge of rank insubordination and about that strategy and how it's being implemented by other members of the president's team. >> bill: did you read the article? have you read the whole thing. >> absolutely. i did. >> bill: if you read it closely and did i. there isn't any direct disparagement of the about the by the general. it comes from unnamed aide. all it is is one line initial meeting in afghan strategy the president seemed unprepared. didn't know about mcchrystal's background. that's it. >> and intimidated by the military establishment that he was meeting for the first time. and there was also a line about vice president, who is that? >> that is directly attributed to mcchrystal. >> bill: it's attributed to him but they are joshing around and it's set up like mcchrystal has one view of afghanistan and biden has another. we'll understand that. that's on the record. when biden name is mention mcchrystal just who is that? come on. >> bill, the important thing here is from the white house perspective is not only the facts on the ground, which are less than encouraging for the white house. remember, the marjah operation deemed a success in february that was to take a taliban strong hold, rout them and then hold it general mcchrystal has described that now as a bleeding ulcer. taken much longer and harder than the u.s. and nato allies thought. we were supposed to be at this time in this month working on a similar operation, a much more difficult one in kandahar. that operation has been put off. why? because we cannot get and obtain the afghan buy-in to participate with the u.s. and the nato forces to carry out that operation. things are falling behind schedule. >> bill: no doubt about that. >> the other thing is this, bill. right now congress, the democratically led congress still has not okayed the $33 billion president obama wants in war funding supplemental. this kind of article, this kind of discord does not improve the optics or the atmospheres in congress for democrats to back up the president on the war. these articles don't happen in a vacuum. the white house believes the rolling stone reporter was brought in. whatever mcchrystal staff did they did with mcchrystal's knowledge. and this was a piece that did not have to happen in this context at this time and the white house feels legitimately aggrieved by all of those sets of facts. >> bill: all right. it is amazing that rolling stone magazine may alter the course of the afghan war. it just boggles my mind. but it absolutely could happen. >> and defense secretary gates would say the reason that's happened is not because of something the president has done or the secretary gates has done but because of something that general mcchrystal, who has won most of these internal debates decide to do. >> bill: i hate to lose an agood general just as american a guy who has a handle torntion i would hate to lose a general like that because of this nonsense. but you're correct. the theater in afghanistan is deteriorating right now. so, that may be big-time in the meeting tomorrow. major, thanks very much. we appreciate it directly ahead, charges the president is having too much fun. golf, concerts, baseball games, crowley and colmes have some comments right after these messages. ♪ ♪ when you have a different perspective on things you don't end up with just another car. you end up with a saab. we get double miles with every purchase. so we earned a tropical vacation in half the time. we earn double miles every time we use our card. 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( gasps ) what's in your wallet? wait up! built will back iraq and a hard place tonight. we heard the same thing about push during the iraq war. critics site his golf outings and hobnobbings with paul mccartney and even attending a baseball game washington nationals. not paying attention to complicated problems. his presidential spokesman bill burton replied. >> i don't think there is a northwestern this country that don't think the president ought to have a little time to clear his mind. a little time to himself on father's day weekend probably does us all good as american citizens that our president is taking that time. with us now fox news analyst alan colmes and monica crowley. but you, mean monday canchts yes. >> bill: have been laying wood to obama because he is golfing, right? >> yeah, is he shoe horning the job of the presidency of going on busy schedule of going on vacation listening to george lopez, swaying to paul mccartney, playing golf, shooting hoops, taking smokes. what else is this guy doing? is he ever working is the question, bill. >> bill: same charge, monica, was made of bush that bush is running down to crawford. he is riding his mountain bike. is he all over. is he cutting brush. you heard that now, were you as adamant about against bush taking the leisure time as you are obama. >> we all want the president to clear his mind as bill burton said. we want him to have down time. we want a president with a brain. however, obama is taking a vacation every five minutes. blowing off steam every day. kerry bradshaw at the white house. partying going on. washington nationals game. bush took two vacation as year in august and at christmas time. that was it you know what, bill, when you look at the state of the world. commanding general in afghanistan near mutiny. you have iran going around the clock to a nuclear weapon. you have violence sticking up in iraq. you have a border out of control. have you got 10% unemployment and a stagnant economy and an oil gusher. >> bill: i want you to think about, this all right? i want you to tell me exactly what you object to. when you say he takes vacations every two minutes. the only vacation i'm aware of is march that's vineyard last summer. >> two vacations since the oil well blew up. >> bill: tell me where he went and what he did. >> bill: not now because colmes is lonely over there. >> got to get our facts straight. >> bill: we may not have to go to you at all in this segment because i know you are going to say it doesn't matter, this, and that. let's face it the perception is from even your far left cronies like david letterman. >> i don't have any far left cronies. >> bill: here is the perception, roll the tape. >> when president obama found out that tony hayward was relaxing on his yacht, he was so angry he missed a putt. [ laughter ] >> letterman is very funny. >> bill: perception that is growing that obama is just, you know, not that upset. >> i would like to ask dr. crowley to answer mr. o'reilly's question adamant about this when bush. >> bill: do you think is he overdoing it with the short pants and stuff? >> i don't think that's short pants. is it a fashion poo paw? -- faux pas, that's another story. unless the far right can come up with something other than this and come up with substance, come on, this is silly. >> come on, if this were bush doing all of this, you would have a change of life moment. >> bill: did you criticize bush for the mountain biking and brush clearing. >> after he said he wouldn't be playing any golf during the war he did it anyway. >> bill: was that miniature golf anyway. >> he was a miniature president. >> bill: ooh, colmes. >> either four days in crawford, texas or camp david. you have a double standard about it. >> bill: let's get specific. you objected to obama playing golf on the weekend. >> since the oil rig exploded in the gulf of mexico the president has taken two vacations. one a very long weekend to north carolina. and the second one was memorial day, a long weekend back to chicago. in between, he has done all of these parties at the white house with george lopez and paul mccartney. >> jealous. >> been to baseball games. the point is everybody wants a president to have down time. he is just taking so much of it. >> bill: say he doesn't go to see george lopez and doesn't go to these things. what would you have him do then? what should he be doing instead. >> the state of the world is in total chaos. >> bill: give me specifics? what should he do instead. >> i want him focused. look at the bp oil -- look at his mismanagement of the bp oil spill. >> bill: that's a different situation. >> this is about a perception that he is just not into the job. i don't think he likes the presidency. >> bill: see now, crowley, i agree with you. that's a serious deal. i said in my talking points memo today is the low point in the obama administration because there is chaos on every front. i don't think that ties in with leisure. this job may be too much for the man. >> oh. >> bill: colmes, when you see the job approval after this mcchrystal debacle, it's going to be below 40. it's going below 40. >> mcchrystal is off the charts in saying things he shouldn't be saying and being disrespectful as commander in chief. in f. obama takes charges. >> bill: shows he is in charge but shows most brilliant general may think is he a nit whit and that judgment will get out. >> reflects poorly on mcchrystal not on obama. and obama reacting and taking proactive that's a good thing. >> rather than focus on the actual interpersonal confrontation between mcchrystal and obama, we should be focused on the content of what mcchrystal was saying about the afghan war strategy and the leadership coming out of this administration. >> bill: i will say this, if afghanistan falls apart, then obama is going to go down into the 20's approval rating. >> that's a different issue. >> bill: it's tottering now. plenty more ahead as the factor moves along this evening. we continue our coverage of the oil spill with john stossel and his take on bp. is the company being treated unfairly? then is it legal on the supreme court saying you cannot help terrorists even verbally. big defeat for the aclu and ruth ah, auto! sir? finding everything okay? i work for a different insurance company. my auto policy's just getting a little too expensive. with progressive, you get the "name your price" option, so we build a policy to fit your budget. wow! the price gun. ♪ ah! wish we had this. we'd just tell people what to pay. yeah, we're the only ones that do. i love your insurance! bill? tom? hey! it's an office party! the freedom to name your price. only from progressive. call or click today. >> bill: stossel segment tonight paul john has been watching the bp oil spill like everyone else. he does it with a libertarian eye which is kind of scary. here he is john stossel. >> scary? >> bill: don't tell me you are going to be sympathizing with the british petroleum corporation and tony hayward. don't tell me that. >> no. bp is despicable. >> bill: i like that word. >> safety -- record. we are beyond petroleum. we believe in global warming. we are into solar, wind, all kinds of nonsense p.r. gimmicks. no, i'm not on their side. i disagree with you when you say that obama was right to say or you said you would go in there with a machine gun. we have rules in america. >> bill: wait a minute now, they voluntarily, bp, offered to put 20 billion in the til, okay? so there weren't any rules involved. they had a negotiation. they came out of the negotiation and bp said, you know, the swedish guy, remember the swedish guy who called everybody the small people. remember him, to help the pelicans, here the pelicans are there they go. after the negotiation, they come out. there is karl, our best friend. is he going to put 20 billion in the til. are you unhappy with that. >> i am glad about the 20 billion. i object with the president of the company to say i will meet with the chairman and inform him that he is to set aside this money. that is a shakedown. >> bill: wait a minute now. maybe he informed him it was the right thing to do. he persuaded him on a moral level. >> i don't know what went on. >> bill: compensate the poor pelicans, turtles and all the human beings getting hammered out there this is the right thing to do. i didn't see carl come out of there with his jacket tattered. a black eye? >> president obama said to the american people i'm going continue to form him. this is chuggish chicago shakedown. vladimir obama. >> bill: if it were me i would have been in there have you ever seen the movie intouchables and baseball bat? that would have been me. i would have brought the baseball bat. >> that's wrong. >> bill: i would have used every coercive measure to get these guys to pony up as much money as possible. >> we don't need to. they are going to pay much more than $20 billion. >> bill: they will be sued but it takes years and years and years. this money under feinberg can get to these folks and these pelicans quickly. when i say pelicans, i mean we need money for cleaning up this whole disaster to in every way, shape, and form. now we don't have to litigate it, stossel. the money is going to be there without litigation that ties it up for four or five years. come on, wise up? >> what if next time the president says fox news is evil. >> bill: then we will deal with the next time. >> put up this money now. >> bill: i have been hearing this for 1 years irwill be off the air and working in afghanistan. whatever it may be. it never happened. i want to deal with the problem as it's there. i think obama got the 20 billion. that's fine with me. if he was a little mean to carl, okay. i don't care. i will give you the last word. >> i think this is disrespect for rule of law. this is like venezuela. it's thuggish. it's not democracy. >> bill: john stossel, everybody. wrong again. but we love him. do you have something coming up on thursday? >> you are in the tank with obama here. you and the liberal media. >> bill: me and the liberals, i know. we are out there with the white wine. >> thursday my show is about gun control, how more guns means less crime. >> bill: all right. john stossel, gun control on thursday. fox business channel. when we come right back, is it legal will update us on a cop that got in trouble using a cell phone to call his mistress. also, the supreme court says you can't help terrorists even verbally. this is an election update. here are the results of the top primary races n south carolina state representative nikki heally clinches of republican nomination for governor and could become the state's first female chief executive n south carolina voters nominated a black republican state lawmakers for an open congressional seat, tim scott. beat paul thurman, the son of late senator strom thurmond. scott is now a heavy favorite in a district electing a republican congressman for three decades and elaine marshal wins the nomination and we'll return to o'reilly factor right after the break. thanks for watching fox news, we'll have more updates throughout the night. ♪ [ male announcer ] imagination. it's the mo powerful resource on earth. and at ge, we're using it, right now, to create innovative technology that will improve the health of our economy... the health of the earth... ♪ ...and the health of its people. ♪ ♪ are the things we make. this has always been a nation of builders, craftsmen. men and women for whom straight stitches and clean welds were matters of personal pride. they made the skyscrapers and the cotton gins. colt revolvers, jeep 4 x 4's these things make us who we are. as a people, we do well when we makeood things and not so well when we don't. the good new is, this can be put right. we just have to do it. and so we did. ♪ this, our newest son, was imagined, drawn, carved, stamped, hewn and forged here in america. it is well made and it is designed to work. this was once a country where people made things, beautiful things, and so it is again. the new jeep grand cherokee. ♪ brings your child's fever down faster and keeps it down longer than children's tylenol®. not even children's motrin® is proven better. for relief you can trust, look for children's advil® in the cough/cold aisle now. i'm a typical teenage girl. [ cellphone dings ] [ tires screech ] ♪ [ cellphone dings ] [ tires screech ] ♪ >> bill: thanks for staying with us. i'm bill o'reilly in the is it legal segment tonight three hot topics. supreme court says the can't help terrorists even verbally. loons were arguing freedom of speech. with us now fox news analyst kimberly guilfoyle and lis wiehl. six supreme court justices who are sane said that americans cannot do, what? >> right, they cannot give moral support or any kind of material support, actually, to known terrorist groups. that includes legal advice and what happened here was humanitarian group -- >> bill: they can't give anything verbally. >> verbally. >> bill: you can't call up osama. >> and say here is what you should do on this legal issue. >> bill: you can't do that verbally or in written form. >> exactly. >> bill: any text or email. >> material support means advice, not just money. >> bill: if you do so and they pick up on a tap. >> you can get 15 years. >> bill: like lynn stewart, this idiot attorney in new york. >> exactly. >> bill: three justices who dissented of course my favorite ruth bader ginsburg, sotomayor, which makes me nervous. >> new to the court. >> bill: breyer they said what? >> not even the most serious and deadly problem of international terrorism will allow you to have a forfeiture of first amendment rights. >> bill: even if you were saying to osama you are going to kill 3,000 people but here is how you can get away from the police surveillance, even if you said that, these three supreme court justices say that is not breaking the law? >> that is correct. because they said it would be infringement on first amendment rights that would not qualify. >> bill: makes me ill. brilliant, you guys laid it out. >> we were brilliant? we were brilliant. >> bill: you were. i have to give props. 6 to 3 supreme court did the right thing. note the three justices that would allow to you lose your life for some principle of freedom of speech. it's just nuts. now we go to this police chief. explain this to me, guilfoyle. this is a follow-up. this guy sued his own department because he was using a department telephone, right? >> pager. >> bill: pager to text his mistress while he was working and he thought it was infringement. they checked up on him. >> in 2008, the ninth circuit said no, no, no, no, police department, you can't do that. >> bill: where was this, again? >> this was in ontario, california. >> bill: outside of l.a. >> supreme court takes it up 9-0. everybody agrees and says incorrect. >> bill: even ruth bader ginsburg. >> they were all kinging together consume kum ba yah. >> if you use a device given to you by your corporation. >> right. >> bill: is this public or private. >> the decision just effects public employees. >> bill: police, firefighter, teacher. >> there was a sentence in the report or in the opinion that said, look, this only applies legally to public employees. but, it could, you know, potentially private employees should be looking around. >> bill: if you are a police officer and you are texting your mistress on the job. >> and your wife. >> bill: whatever it is you are doing, the police department also a a right to read those texts. >> yes. >> bill: and if you are doing something wrong, as this man was. >> yeah, he was. >> bill: they can discipline you and take action against you. >> exactly. if there is some kind of work-related thing. any employer can say well, look, we had to perform an audit because we want to know whether our police officers. >> bill: we don't want lenny running around with a mistress on our time. >> 1,000 texts to the mistress and another officer. >> bill: 1,000. >> give or take a few. honestly that's what it is. it's not unreasonable. not a violation of the fourth amendment. >> bill: this guy is hosed but the ninth circuit of appeals in california could have -- he could have sued if it was up to them. a thousand calls to your mistress on the job. great. finally in maryland, we have another police situation where an officer approaches a man in a traffic violation and the man has a little camera on his head. this is how crazy we live. in all right? roll the tape. >> get off the motorcycle. get off the motorcycle. state police. >> excuse me. put your hands up. >> bill: all right. the guy got in trouble for taping the police officer, why? >> violation of wiretapping laws in maryland. i mean, think linda tripp and monica lewenski she was taping those private conversations. maryland says you have to have two-party consent. anybody that's videotaped. >> bill: what happens to this motorcycle guy who taped the police officers. >> he went home and put this on youtube obviously and they officers came to his home. they arrested him. they ransacked his house pretty much. >> bill: charged him. >> he reported and is looking at serious federal charges. >> bill: how many states in the union have these laws where you have to have two party consent to tape anything? >> the exact number. >> 12. >> approximately 12. nevertheless, what's interesting in this case is this is is an unmarked police officer, right? not in uniform, not in the car. you see the helmet on his head. he doesn't say to the guy hey, turn that off, don't record. and the key. >> bill: because he doesn't know. why would he know? >> key to this case is also it cannot be. it's against audio. if they had done this as a silent movie it's okay. wiretapping violation, 16 years, felony offense, looking at prison time. >> bill: wait a minute. so in 12 states you cannot record sound of another individual without their consent. >> right. wiretapping laws. >> bill: in 3 states you. >> in 3 states it's one-party consent. >> bill: record anybody at any time for anything. >> second step is the reasonable expectation of privacy. i don't think the cop had an expectation of privacy. >> bill: probably get probation but interesting case. ladies, thanks very much. we appreciate it in a moment charles krauthammer on the afghan situation. county u.s.a. recover in the field from the mcchrystal debacle. it looks like the guy is going to get fired. kevin costner in the pinhead and patriot cue. right back. boss:hey, glad i caught you. i was on my way to present ideas about all the discounts we're offering. i've got some catchphrases that'll make these savings even more memorable. gecko: all right... gecko: good driver discounts. now that's the stuff...? boss: how 'bout this? gecko: ...they're the bee's knees? boss: or this? gecko: sir, how 'bout just "fifteen minutes could save you fifteen percent or more on car insurance." boss: ha, yeah, good luck with that catching on! anncr: geico. fifteen minutes could save you fifteen percent or more on car insurance. that's why we're investing one million dollars every hour... to improve our technology and your safety. it's an investment that's helped toyota earn multiple top safety pick awards for 2010 by the insurance institute for highway safety. no other brand has won more. these top safety picks, and all our new safety innovations are available at toyota.com/safety. >> bill: back of the book segment tonight, as rereported top of the broadcast general stanley mcchrystal being called back to washington from afghanistan because he disparaged president obama. that throws the entire threert into chaos and article hard to believe. joining us is charles krauthammer. president had a pool availability where he said he is not going to make any decision until he sees mcchrystal eye to eye and face to face. the smart money is on mcchrystal getting sacked. i'm not sure that's good for the country. what do you think? >> i think it's very bad for the country. i think it may be in some way necessary because it's sort of transcends obama. i think he has been a poor commander and chief, particularly in afghanistan. i think mcchrystal has been a terrific general. but there is something about -- it's not about obama the person. it isn't about mcchrystal. there is something about the civilian chain of command, the fact that we have civilian control that if obama were to fire him i think he would be standing on good ground. none the less, i think it would be a mistake simply because we are an absolute critical point in the war right now. right now we are preparing for the kandahar offensive in the fall. and mcchrystal is the guy. i think the best possible outcome is mcchrystal arrives at the white house with resignation in hand, hands it to the president. he gets scolded in private, and the president magnanimously rises above it and says even though this is a der election of what an officer ought to do, none the less, given the exso he genesees of the war. the national interests and our troops on the ground i'm going to stay with him. that would be, i think, the best possible move he could make. i'm not sure he is capable of it. >> bill: well, i don't know. even if he does it, the rupture between the commander in the field and the commander in chief is apparent to the public. this is what i said in the talking points memo tonight that this is the low point today for the obama administration because every front is in chaos. is it obama's fault that the oil leaked? no. is it obama's fault that mcchrystal may have said insubordinate things to rolling stone? i didn't think the article was that bad myself. it's not obama's fault did he it. it doesn't matter there are enough thing obama done wrong that the confidence of the president is eroding on every front. every front is in chaos. i don't know how he can govern much longer. >> look, this is what happens when you elect a professor, a community organizer were no executive president to the presidency. he saw the office as a rhetorical office. he won the presidency on rhetoric, on promises on vision. he was the man who would make the earth heal and the oceans recede. and now he is elected and, yes, he has a legislative agenda, a very ambitious one. he gets some of it through and some of it not through. and he thinks that's the essence of the presidency. in fact, the essence of the presidency is managing what you don't expect. is managing the crises that arise. is managing the things you never thought would happen. margaret thatcher in the falklands war came out of nowhere. it made her a hero in her country, it strengthened her and she could then enact her agenda over the 1980s. that was most improbable event over the decade. obama has been handed all these things. he doesn't know how to do. this he knows how to talk. he knows how to give speeches. he doesn't know how to govern. that's why things are in chaos. >> bill: isn't it amazing that a magazine like rolling stone could alter the course of the afghan war and the presidency? >> well, you have got to ask yourself how mcchrystal could possibly have been sucked into this. and i think the most generous explanation is here's a guy who did five years of the blackest of the black op.s in secret in the middle of the night and he wasn't prepared to be a public general and didn't understand the risk. i think any elementary public relations guy would have told him he wasn't told. >> bill: i let him follow me around too, charles. i can't be too harsh there. i got mine. i got it right between the eyes. charles, pinheads and patriots on deck. tonight kevin costner, james carol, kevin king right on his own. ♪ [ male announcer ] this is our beach. ♪ this is our pool. ♪ our fireworks. ♪ and our slip and slide. you have your idea of summer fun, and we have ours. now durinhe summer event get an exceptionally engineed mercedes-benz for an exception price. but hurry, this offer ends soon. >> bill: pinheads and patriots in a moment. kevin costner watch out. first a new poll question. what concerns you the most? the oil spill, economy, afghanistan or illegal immigration? please select one on billoreilly.com. after that please become a premium member. you get the no-spin news stories i don't get to talk about on tv but i have opinions on. back stage interviews antons of other stuff. to the mail. >> bp screwed up when it drilled with a substandard well. congress screwed up when it failed oversight. obama screwed up when it failed assistant in the cleanup. >> o'reilly you are right the president should use whatever pressure necessary to get bp to pay for the people getting hurt. >> i am sick of all the bp bashing. let's wait and see before deciding who is at fault. if bp goes under millions of stockholders will be hurt. ron it is not going under and it is their fault we don't have to wait. >> you are by -- your by is tainting your reportage on bp. we have been accurate in our reporting on the situation. if we haven't please let us know. >> o'reilly tell byrne they goldberg we are angry in new england over the spill. he's wrong when he says congress should not have grilled hayward. >> i'm with bernie tkhoepbgs res people were not looking for information they wanted to humiliate hayward. >> as a teacher i've seen damage drug use cause children seems their rights should trump someone wanting to get intoxicated. >> bill, i am a far left loon who doesn't much agree with you. but i will say you are the fairest man in the commentary business. i appreciate that you can't be a line if you come to that conclusion -- be a line if you come that to that conclusion. do you use amont blay this c pen? this is the spin stops here pen i've been using them for years. it looks leak amont blanc but it is 85 -- bill, just finished bold fresh you made me laugh out loud. shirley as i always say, just as long as you're laughing with me: . finally, pinheads and patriots. baby boomer favorites james taylor annika roll king are on tour this summer and they are packing 'em in. ♪ ♪ ♪ ♪ ♪ >> bill: she 67 she can still rock it. some of the money helps the environment. so far the pair has donated a million and a half to green causes they are patriots. kevin costner says he could cleanup the oil slick or help. we've been trying to get him on the factor to explain what he's got, some kind of machine that successes up the -- that sucks up the oil. we can't get him on the factor. he's dodging us, he's getting publicity about what a concerned guy he is. right now i'm saying that kevin costner is a pinhead if he comes on and explains to me it is not sour grapes, come on we have 300 times of the viewership of the show you go on. explain that to me you want people to cleanup the environment? let us hear. costner pinhead tonight that is it for us today. please check out the factor website, talking points memo good one tonight if you came in late. e-mail us from anywhere in the world. o'reilly atlanta foxnews.com. name a -- oreilly@foxnews.com. when writing to the factor do not ab