updated 10/19/2004 10:31:33 AM ET 2004-10-19T14:31:33

Guest: Rick Shealey, Amanda Gordon, Teresa Hill, David Chasteen, Jeffrey McCausland, Nancy Lessin, John Higgins, Trevor Weigle, Bernadine Healy

ANNOUNCER:  DEBORAH NORVILLE TONIGHT.

DEBORAH NORVILLE, HOST:  A cry for help from a reservist in Iraq to her mother here at home.

(BEGIN AUDIO CLIP)

AMBER MCCLENNY, U.S. ARMY:  This is a real, real big emergency.

(END AUDIO CLIP)

NORVILLE:  Now 18 members of the unit are feeling the heat for refusing direct orders, and their loved ones are standing by their decision.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  It‘s a suicide mission they basically were sending them on.

(END VIDEO CLIP)

NORVILLE:  Tonight, soldiers are taking a stand against the most dangerous job in Iraq.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  And I am very proud of our soldiers for standing up for what‘s right.

(END VIDEO CLIP)

NORVILLE:  Facing the axe.  She claims Bill O‘Reilly sexually harassed her.  Now Fox News wants to fire her.

(BEGIN VIDEO CLIP)

ANDREA MACKRIS, FOX NEWS PRODUCER:  No, I don‘t accept it.

(END VIDEO CLIP)

NORVILLE:  Tonight, the latest in this “He said, she said” controversy.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Yes, I‘m rattled, but I‘m really (UNINTELLIGIBLE)

NORVILLE:  Flu shot frenzy—long lines...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  114.  114.

(END VIDEO CLIP)

NORVILLE:  ... even price gouging.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  And why are we standing here?

(END VIDEO CLIP)

NORVILLE:  Tonight, one community‘s surprising solution to the vaccine shortage.

ANNOUNCER:  From studio 3K in Rockefeller Center, Deborah Norville.

NORVILLE:  And good evening.  Have some of the troops in Iraq reached their breaking point?  Tonight, an investigation is in full gear as to why 18 members of an Army reserve unit refused to go on a convoy delivering fuel.  They said their unarmored trucks were unsafe, lacked a proper military escort and that the assignment was a virtual suicide mission.  One reservist who refused the mission made a frantic phone call to her mother.

(BEGIN AUDIO CLIP)

AMBER MCCLENNY, U.S. ARMY:  Hi, Mom.  This is Amber.  This is a real, real big emergency.  I need you to contact someone, I mean raise pure hell.  We—yesterday, we refused to go on a convoy to Taji, which is above Baghdad.  We had broken-down trucks, non-armored vehicles, and we were carrying contaminated fuel.

(END AUDIO CLIP)

NORVILLE:  Another platoon later completed the mission.  Now the Army has launched a probe, and the reservists could face charges, even court-martial.

Joining me now are some family members of two of the soldiers.  Amanda Gordon is in San Antonio.  Her brother is 20-year-old Specialist Aaron Gordon.  And with me tonight from Quinton, Alabama, is Rick Shealey.  He‘s the father of 29-year-old Specialist Scott Shealey—two of the 18 who were involved in this situation last week.

Rick, I know you spoke with your son this morning.  Can you tell me exactly what he said about what happened in Iraq?

RICK SHEALEY, FATHER OF RESERVIST WHO REFUSED MISSION:  My son stated that the—they had went out on a mission with the same fuel to a place called Camp Duke.  And when they got to Camp Duke, the fuel was contaminated, and it was refused.  And they stayed at Camp Duke for two days, trying to figure out the disposition of this fuel, and they ended up taking it back to their home base, which is Tallil.  And they got back at Tallil at 10:30 -- now, this was a five-day mission.  They got back to Tallil at 10:30, and at 4:00 o‘clock, they was being woken up to go out on the—on another mission at 7:00 o‘clock with the same fuel, the same contaminated fuel, the same trucks, which was not serviceable, and...

NORVILLE:  Let me find out why—first of all, the fuel.  Why was the fuel contaminated?  I understand that the trucks had been used for another purpose previous to putting the fuel in?

SHEALEY:  These are multi-purpose fuel—these are multi-fuel trucks.  And you can haul jet fuel, but before you put any more fuel in these trucks, you have—the trucks have to be purged.  And they didn‘t purge these vehicles...

NORVILLE:  And what happens to...

SHEALEY:  ... and that contaminated the fuel.

NORVILLE:  ... the fuel if it‘s not purged?  What happens if it‘s not purged?

SHEALEY:  It‘s contaminated.  The fuel is contaminated.

NORVILLE:  And so when it came time for the convoy to push out, your son was among those who dug their heels in and said, We refuse to go on this mission.  Did he explain to you why they took such a drastic stand or refused orders to go forward?

SHEALEY:  These 18 -- these 20 soldiers tried to utilize their—tried to convince the commander for three hours prior to going on this mission that this mission was unsafe because they was hauling the contaminated fuel.  What should have happened with the contaminated fuel, it should have been taken to a place that is appropriate to set fire or burn the fuel, and then the vehicles to be purged, brought back to a state of readiness, refueled, and then went—should have went on the mission to Taji.

NORVILLE:  Amanda, have you had a chance to speak to your brother yet about the situation?  He, too, is involved in this.

AMANDA GORDON, SISTER OF RESERVIST WHO REFUSED MISSION:  We actually haven‘t spoken to him.  He did e-mail me probably about 30 minutes before I left work this afternoon, but all he said was that he was OK and that he couldn‘t talk about anything.  So that‘s all we know.

NORVILLE:  But you know that he‘s definitely one of the 18 involved in this.

GORDON:  Oh, yes.  Yes.  We do know that.

NORVILLE:  Your brother was concerned, I gather, about being in Iraq? 

How had he ever expressed any concerns to you?

GORDON:  He wasn‘t really concerned.  There were things going on that upset him, and he didn‘t want to talk about them while he was here on leave.  He actually did enjoy being in Iraq, though.  He knew he was there for a purpose, and that‘s what he loved about it.  And he, in fact, talked about going back to Iraq once he was done with his reservist—with his term in the reserves.

NORVILLE:  And Mr. Shealey, when you spoke to your son, did he talk to you about the severity of the action that he‘s taken?  It is punishable by general court-martial in some instances to refuse a direct order from a superior, and that‘s what has happened here.

SHEALEY:  My son told me this morning he don‘t care what happens to him, as long as he knows he saved lives.

NORVILLE:  And he believes he saved lives by that contaminated fuel not being taken on to another location.

SHEALEY:  Absolutely.

NORVILLE:  As you know, on the “TODAY” show this morning, Teresa Hill, who‘s the mother of the woman whose telephone call we heard just a few moments ago, was on.  And she had this to say about the situation that‘s going on with your son and Amanda‘s brother and the others involved.

(BEGIN VIDEO CLIP)

TERESA HILL, MOTHER OF RESERVIST IN IRAQ:  It‘s never happened before.  It probably won‘t happen again.  But she‘s a smart girl.  And if she says that, Mom, this was too dangerous, or you know, tells anybody this is too dangerous, whether it‘s just her or the 18 others, you know, I‘ll stand behind her 100 percent.

(END VIDEO CLIP)

NORVILLE:  Mr. Shealey, what do you think happens next to your son?

SHEALEY:  I really don‘t know.  I believe this is a command—I believe this is a command problem and not a soldier problem.  I think these soldiers deserve a pat on the back and sent back to do their jobs.

NORVILLE:  I have to tell you, from where I sit, being safe here in New York, not exposed to the kinds of stresses that your son and Amanda‘s brother and all the other men and women in uniform are facing, I can only imagine what the situation must be like for anyone to feel so strongly that they have to stand up to a direct order and say, No, I don‘t believe this is right.  Because from the get-go, that‘s what a soldier is trained to do, you obey orders.  Can you help us understand why the situation seemed so critical and potentially life-threatening, as you put it, to your son and the others, sir.

SHEALEY:  Well, I‘d like to say one thing, because this is a an isolated incident, and I tell you why.  I just don‘t believe there‘s another commander in Iraq that would give an order to send out a mission with contaminated fuel.

NORVILLE:  So you really think this is a direct chain-of-command situation.

SHEALEY:  This is a command problem.

NORVILLE:  Yesterday, there was a news conference held in Iraq, and the brigadier general who‘s ultimately in command of this unit had this to say about the condition of the trucks, which was one of the complaints raised by the 18 involved in this.

(BEGIN VIDEO CLIP)

BRIG. GEN. JAMES CHAMBERS, 13TH CORPS SUPPORT COMMAND:  Not all of their POL trucks are completely armored.  And I‘m not sure—I‘ll have to go back and check, but I do know that in their particular case, they have not had their chance to get armored.

(END VIDEO CLIP)

NORVILLE:  Eighty percent of the trucks in the 343rd, which is the unit we‘re talking about, have had their trucks armored.  The trucks involved in this convoy were among those that weren‘t.  Amanda, what has your brother said about just the way they‘ve been outfitted as they go about their duties?  When he was back home, did he feel like he had the proper equipment, that he had the right kind of body armor, that the trucks were as safe as could be, given the dangerous territory in which they‘re working?

GORDON:  To be honest, he didn‘t talk much to us about Iraq.  He‘s one boy of five children, so he didn‘t want to worry about all the girls.  And he did—you know, sometimes, he would talk about Iraq, and you‘d see worry and concern in his face.  But even when we asked and we probed, he wouldn‘t tell us anything.

NORVILLE:  Well, we will keep following this to find out what happens to your loved ones.  Amanda Gordon, Rick Shealey, we thank you.

And as Mr. Shealey mentioned, in his opinion, it‘s a command problem.  When we come back, we‘re going to talk about command and also about the Army‘s preparedness.  When 18 soldiers refuse an assignment as too dangerous, what‘s really going on?  We‘ll talk to someone who is back from Iraq in a moment.

ANNOUNCER:  Still to come: She hit Fox News with a sexual harassment suit.  Now the network is hitting back hard.

(BEGIN VIDEO CLIP)

ANDREA MACKRIS, SUING BILL O‘REILLY:  Physically hit me in the chest with papers and said, You‘ve been served.

(END VIDEO CLIP)

ANNOUNCER:  And later: one town‘s answer to the flu vaccine shortage -

·         take a number—when DEBORAH NORVILLE TONIGHT returns.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

CHAMBERS:  I‘ve directed that the 343rd conduct a maintenance and safety stand-down, during which time vehicles will be thoroughly inspected.  Then the unit will retrain and certify for their mission.

(END VIDEO CLIP)

NORVILLE:  That‘s Brigadier General James Chambers.  He‘s in charge of the 343rd Quartermaster Company.  That‘s the Army reserve unit that defied orders to go on a fuel convoy last, week saying the mission was too dangerous.  Do they have the right to disobey orders when they think their lives are on the line?

Joining me now are Nancy Lessin from the group Military Families Speak Out.  It opposes the war.  David Chasteen is with Operationtruth.org.  Its mission is to educate the public about the wars in Iraq and Afghanistan from the perspective of troops who‘ve served there.  Mr. Chasteen served in the early stages of Operation Iraqi Freedom as a weapons of mass destruction expert for the Army.  And also with us tonight is retired Army colonel Jeffrey McCausland.  He was a battalion commander during the first Gulf war and dealt with the issue of troops disobeying orders.  He‘s now the director of the Leadership and Conflict Initiative.  That‘s at Dickinson College in Pennsylvania.  I thank you all for being with us.

Mr. Chasteen, I want to start with you first because you were in Iraq.  You got back last fall.  One of the issues these folks are complaining about is they‘re being sent into harm‘s way in vehicles that are not adequately equipped to keep them safe.  When you got to Iraq, what kind of personal protections did you have—body armor, armored cars, et cetera?.

DAVID CHASTEEN, OPERATIONTRUTH.ORG:  Well, we did get issued new body armor when we went in.  It‘s called Interceptor body armor, manufactured by PointBlank.  It‘s actually a bulletproof vest.  This is a big improvement on the old Vietnam-era flack vests, which a lot of National Guard units went into.  But still, this will stop, like, a 9-millimeter bullet, like, from a handgun, but nobody‘s shooting at you with a pistol.  They‘re shooting at you with an AK-47.  And that 762 round will go through even that new high-tech body armor like a hot knife through butter if you don‘t have the ceramic plates, which very few soldiers had.  I mean, you know, there were very limited amounts, and they went to the infantry guys, as they should have.

NORVILLE:  And you were regular Army.  I mean, you had...

CHASTEEN:  We were...

NORVILLE:  ... among the better...

CHASTEEN:  That‘s right.

NORVILLE:  ... equipped units out there.

CHASTEEN:  We were one of the best equipped units out there. 

Definitely.

NORVILLE:  So if you‘re a reservist and you‘re being sent out there, as many reservists charge they have been, with older equipment that hasn‘t been adequately serviced, that isn‘t used to the kind of day in, day out transport tat the 343rd is doing, is it not reasonable to assume that they‘re concerned about the caliber of equipment they‘re being asked to use?

CHASTEEN:  Absolutely.  And even as late as, you know, this past winter, you know, General Sanchez, as you‘re aware, was writing letters up the chain of command and basically sending up the flare and saying, you know, We don‘t have the equipment we need to do the job safely.  And we owe it to our soldiers to send them in with right equipment.

NORVILLE:  Indeed, part of his letter, which was dated December 4, from General Sanchez—and this was to the folks back in Washington—was that Army units in Iraq were, quote, “struggling just to maintain relatively low readiness rates on the M1 Abrams tank, the Bradley fighting vehicles and Black Hawk helicopters.”

Colonel McCausland, you had occasion when you were in Iraq to actually be on the receiving end of soldiers who were defying orders.  Can you explain how that can happen in the field?

COL. JEFFREY MCCAUSLAND, U.S. ARMY (RET.):  Well, in my particular case, it was one individual soldier who was assigned to our unit prior to us deploying.  And on several occasions, he did refuse to accomplish the mission at hand, and we had to take action to take care of him, while at the same time accomplishing the mission.

NORVILLE:  But it‘s different, one individual.  This is 18 people who‘ve banded together and sort of en masse said, “We don‘t think this is safe.”  You heard the father a moment ago of one of these young men involved in this situation saying it‘s a chain-of-command situation.  Would you agree with that, sir?

MCCAUSLAND:  At this juncture, I don‘t think we really know, Deborah, until these investigations are completed.  But certainly, it‘s worrisome that you had a portion of a unit—and I might quickly add, this unit did accomplish the mission because other soldiers actually conducted the convoy.  But to have 18 soldiers, some of whom are noncommissioned officers, refuse to do a mission is worrisome.

NORVILLE:  And one of those officers is someone who‘s got a 24-year career with the Guard and reserve.  For someone with that kind of experience to stand up, it seems to me, a civilian who doesn‘t know any of the intricacies of military life, that that‘s a pretty bold statement that the highest ranks of the military would have to take seriously.  Do they not, sir?

MCCAUSLAND:  I would think that‘s absolutely correct.  I think we‘re seeing that happening already.  Command general, General chambers, has ordered these two investigations, one about the safety of equipment, and second of all, about what actually occurred during this incident.  So I think it has got command attention, and these investigations are ongoing.

NORVILLE:  And Mr. Chasteen, one Army lawyer was quoted as saying that this situation bears all the indications, quote, “of a unit that has some discipline or morale or leadership problems.”  Which would you think it is?

CHASTEEN:  I think it‘s probably—and I‘m sure the colonel would back me up on this.  It‘s probably a combination of all three.  You know, it sounds like there are probably deficiencies at all levels.  If this wasn‘t addressed before now, to the point where the soldiers felt that they had to do something this drastic to raise command attention on this issue, it‘s pretty clear that they‘re concerned for it being addressed in a responsible manner.

It‘s important to draw the distinction here between this—and I think I‘ve heard a lot of other folks talk about Abu Ghraib, you know, where soldiers, you know, were told do things that they knew were wrong.  You know, you have a right and a responsibility to disobey an order if it‘s illegal, but you don‘t have the option of disobeying an order that you think is stupid.

NORVILLE:  But like the Abu Ghraib thing—in Abu Ghraib, they say, We‘ve got overworked, undertrained, stressed-out soldiers who may have made some bad decisions and done some things that have reflected horribly on the American military.  Here we‘ve got perhaps some overworked, undertrained, stressed-out soldiers who may not be embarrassing the entire U.S. military but certainly, the chain of command is feeling the heat right now.

CHASTEEN:  Certainly.  Absolutely.

NORVILLE:  Have they reached a breaking point?  Have we asked our troops to do too much with too little for too long?

CHASTEEN:  Well, I mean, you‘re right on target in terms of what we owe our soldiers.  You know, it‘s clear that in this unit, it‘s clear that we didn‘t meet our responsibility either as an Army or as a country.  And I think, you know, any officer can tell you that there are four things that we owe our soldiers—you know, the right equipment, a clear mission, the right training, you know, and a reasonable deployment timeline.  And these guys obviously have been failed on all four points.

NORVILLE:  And Nancy Lessin, if soldiers are talking to their superiors, they‘re certainly speaking very candidly with family members.  What kinds of stories are you hearing from the family members who‘ve got loved ones over there on active duty?

NANCY LESSIN, “MILITARY FAMILIES SPEAK OUT”:  What we know is that this is not an isolated incident, that all of our soldiers have been sent off into what we think is a very reckless military misadventure to begin with.  And within that, what we have been hearing for a year-and-a-half from troops is about the lack of equipment, the lack of supplies, the sandbags that they have to hold when they go in their Humvees, the scrap that they‘re trying to fix their Humvees to go out in.  This is a story that has been going on for a year-and-a-half that military families have been trying to bring to the attention of the military and to the people of this country because the command isn‘t listening.  And we are extremely proud of these soldiers...

NORVILLE:  But why isn‘t the story getting out?  I mean, why does it take 18 people digging their heels in and saying, Hell no, I won‘t go, and defying an order for anybody to pay attention to what, as you said, evidently, for a year-and-a-half has been the story coming back?

LESSIN:  Well, that‘s a really good question because we finally—one of our member families was written about last September, a year ago, about not having the right protective vests, and that finally made the paper.  It was a story that we had known about for six months.  And we know that today there are troops over there that don‘t have the right protective vests.  We know that the story about Humvees that aren‘t protected, and artillery that isn‘t there is an every single day story in Iraq.  It is not just this unit.

NORVILLE:  Of course, this unit, the story has to end with some kind

of punishment, perhaps.  Colonel, what do you predict will be the action

taken by the government?  Because there are really some competing interests

here.  They‘ve raised attention to an issue that‘s important.  Trucks

aren‘t armored.  The entire unit‘s been asked to stand down while they‘re

re-armored, while they‘re being retrained.  And the yet the military code

of justice is pretty clear.  You defy a direct order, there is a punishment to be paid.

MCCAUSLAND:  Yes, but there‘s a lot of latitude in what punishment is meted out.  If, for example, it‘s discovered that there were issues in the command climate in the unit, then a lot of leniency might be applied to these particular soldiers.  However, on the converse, if, in fact, this was a clear mission that needed to be accomplished, other soldiers needed this particular fuel, then clearly, this could go the other direction to the extreme of a court-martial.  We‘ll just have to see, along those lines from very little to a court-martial, what actually occurs.

NORVILLE:  Well, I know with this situation, at least, there are a lot of eyes watching to see what the end result is going to be.  Nancy Lessin, David Chasteen, Colonel Jeffrey McCausland, we thank you very much for being with us.  I appreciate your time.

LESSIN:  Thank you.

CHASTEEN:  Thank you.

MCCAUSLAND:  Thank you.

NORVILLE:  When we come back, the Bill O‘Reilly harassment allegation scandal is getting deeper.  Now Fox News reportedly trying to fire the woman who made the allegations.  Can they do that?  Stick around.

(COMMERCIAL BREAK)

(NEWS BREAK)

NORVILLE:  New developments today in the Bill O‘Reilly sexual harassment lawsuit and countersuit.  Fox News Channel is asking a judge for permission to fire Andrea Mackris.  She‘s the associate producer who claims O‘Reilly harassed her by making lewd phone calls.  Fox wants the judge to rule that her firing is not retribution for filing the lawsuit.  It‘s not clear what official reason Fox would give for firing Mackris.  On Friday, Mackris told CNN that a man was lying in wait for her inside her New York City apartment building to serve her with legal papers about her termination from Fox.

(BEGIN VIDEO CLIP)

ANDREA MACKRIS, SUING BILL O‘REILLY:  Physically hit me in the chest with papers and said, You‘ve been served.  I let them fall to the ground, I said, No, I don‘t accept this.

(END VIDEO CLIP)

NORVILLE:  O‘Reilly is suing Mackris and her attorney, claiming they tried to extort $60 million from him and Fox.  Uncomfortable as this case may be for the principals, it seems to be good for business.  Ratings for O‘Reilly‘s show are way up since the lawsuits were filed.

And joining me now to talk about the O‘Reilly case is attorney Debra Opri, who successfully defended James Brown from sexual harassment charges back in 2002.  Also with us, attorney Gloria Allred, whose firm has handled a number of cases involving sexual harassment and employment discrimination.  And I thank you both for being with us.

First off, Fox wants to fire Ms. Mackris.  And here‘s a statement that the network put out.  It says, quote, “We have asked the court to advise Fox News about the possible termination of Ms. Mackris‘s employment.  Ms.  Mackris is still employed by and on the payroll of Fox News.”

Ms. Opri, let‘s let you be the representative for Fox here and the

O‘Reilly

DEBRA OPRI, SEXUAL HARASSMENT ATTORNEY:  With pleasure.

NORVILLE:  On what grounds would they be, in your opinion, well-advised and in their legal rights to fire this young woman?

OPRI:  First, they‘re seeking guidance from the court.  Second, this woman, Ms. Mackris, is showing herself to be a possible character for oncoming “Saturday Night Live” shows.  She‘s abandoned her position, one.  Two, I don‘t think she should be in the environment of people who may be witnesses.  Three, what purpose does it serve for her to stay on the payroll?  She‘s more or less abandoned her position and quit.  Four, what purpose does it serve Fox having the enemy in their camp?  It just doesn‘t serve any purpose.  And when you‘re weighing and balancing her rights, as an alleged victim, to Bill O‘Reilly‘s and Fox News Corps, you know, they‘re defendants here—they have to protect themselves.  And I think they properly and most wonderfully, in a strategic way, are going for the guidance of the court.  And I think the court may give them the guidance they‘re seeking.

NORVILLE:  All right, well...

OPRI:  Maybe a prolonged absence, you know, leave of absence.

NORVILLE:  Gloria Allred, you wear the other hat, then.  You represent Ms. Mackris and tell us why you think that Fox would not be justified and she is justified in saying that if an action like this were taken, it‘s simply retaliation.

GLORIA ALLRED, VICTIMS‘ RIGHTS ATTORNEY:  Well, the law protects individuals who complain of sexual harassment.  And if they are terminated or demoted or in any way—in any way have their employment status changed because they protested unlawful sexual harassment, then they are protected from retaliation.

And, in fact there have been cases in which individuals have won a retaliation case, even though they have lost their initial sexual harassment case.  So here, obviously, Fox thinks there really is a question as to whether, if they terminated her, it might be considered retaliation.  That is why they are asking guidance of the court.  And they are well-advised to do that, rather than just terminate her, because it may be the court will say, no, you cannot terminate her. 

(CROSSTALK)

NORVILLE:  ... judge to give blessing on the fact before they take it and end up with maybe even a third lawsuit in this whole can of worms. 

ALLRED:  Exactly. 

(CROSSTALK)

NORVILLE:  Let Debra speak.

OPRI:  Deborah, we need to understand, first of all, Fox did not fire her.  She walked out of the company.  She got a lawyer and she filed a lawsuit. 

(CROSSTALK)

NORVILLE:  Hold on a second, Ms. Opri.  It‘s my understanding that she was asked in the initial days when discussions were going on to stay home and take a sick day.

(CROSSTALK)

OPRI:  I was getting to that. 

She was asked to stay home, take a sick day.  Now, what I‘m suggesting is that they don‘t fire her, but put her on prolonged leave of absence.  Nobody is saying that Fox wants to fire her, but they certainly don‘t want her in their environment.  And I think they are well-served to ask for that guidance from the court.  If she does come back, where is she going to relegate—where is she going to be, in a closed office somewhere?  Is she going to be isolated from the rest of the employees and co-workers? 

It‘s a very uncomfortable position right now.  And as Gloria stated...

(CROSSTALK)

OPRI:  Gloria, let me finish. 

(CROSSTALK)

OPRI:  There are actions where if they say, you‘re fired, get out of here, it‘s one thing.  And that would support your position.  But this is not what happened in this instance, not at all, not even close to it.

(CROSSTALK)

NORVILLE:  Let me take it out of this specific case.  And let‘s talk about sexual harassment cases in general. 

Typically, Gloria, when a woman is alleging that she has been adversely impacted on the job because of some sort of form of sexual harassment, is it possible, is it feasible to remain on the job while you are pressing that in court?  It just seems to me in human terms, it would be horribly uncomfortable for the woman making the allegation and awfully easy for the people around her to make her life miserable. 

(CROSSTALK)

ALLRED:  Well, the answer is that she has the right—has the legal right to stay on the job.  Many women workers fear that if they do protest sexual harassment, then they are going to lose their job. 

And the law, as a matter of public policy, wants them to know that they are protected in their jobs and they should not fear losing their jobs if they protest sexual harassment.  And if that were not the public policy, who then would be foolish enough to protest sexual harassment, because no one wants to choose between losing their job and protesting sexual harassment?  Here, she may very well have feared protesting it, feared that Mr. O‘Reilly would be the one who had the power, and she wouldn‘t, feared that if in fact he did tell her, that she would be destroyed, that Fox would stand with Mr. O‘Reilly who, of course, is a major asset to Fox, that she, you know, might have been afraid to protest sexual harassment.

That might have been the reason that she didn‘t do so, thinking that it would be futile to do so.  And so, ordinarily, yes, those who protest can stay on their job.  And that is the law. 

(CROSSTALK)

NORVILLE:  Here is the thing that I don‘t understand.  When you look at this case, and one of the things that Mr. O‘Reilly raises in his defense is that she thanked him for dinner.  She continued to take his phone calls.  She ended up coming back and working at the Fox channel after she left for a brief period, and as recently as September 7 sent an e-mail to a friend describing her job as wonderful, amazing, fun, creative, invigorating—quote—“I‘m home and I‘ll never leave again.”

Ms. Opri, it seems like that would be just exactly the sort of thing you would want to put in front of a judge if you‘re defending yourself in this kind of action. 

OPRI:  Well, Debra, everything that Gloria says is slanted for the employee who says, get out, we don‘t want you.  This never occurred. 

Fox very responsibly said, we‘ve got a problem.  And they are going to a court.  I‘ll make a prediction.  I‘ll tell you what the court is probably going to do.  They are going to say, keep her out of your environment, but keep her out of the payroll.

(CROSSTALK) 

NORVILLE:  You mean keep her on the payroll? 

OPRI:  Keep her on the payroll, and let‘s revisit this issue down the road. 

Now, speaking directly to your statement about her sending the e-mails, this whole case is going to be about credibility, first of all, her credibility where she most recently got on TV and he pushed this thing into my chest and I told him I didn‘t accept it, that actually is comical to me, because when you are served, you‘re served.  No. 2, when this woman is sending e-mails and telling people how happy is she is and when she is taking calls and making calls to Bill O‘Reilly and going out to dinner with him, for whatever reason, let‘s think. 

Let‘s put two and two together.  She is not 18 years old. 

(CROSSTALK)

NORVILLE:  I want to jump on the credibility question, but we are going to jump to a break real fast. 

When we come back, not only are we going to the credibility of the two parties involved.  We‘re going to talk about the whole impact that it is having on the television show itself.  More with our guests in just a moment.

(COMMERCIAL BREAK)

NORVILLE:  The lawsuit against Bill O‘Reilly calls it harassment, but O‘Reilly calls it extortion.  Can either side come out a winner?

Stay with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

ANDREA MACKRIS, ACCUSER:  It is frightening.  They are threatening me.

They are trying to intimidate me.  Yes, I‘m rattled, but I‘m really strong. 

(END VIDEO CLIP)

NORVILLE:  That was Fox News associate producer Andrea Mackris talking about termination papers that she says Fox served on her inside her New York apartment building. 

We‘re back with attorneys Debra Opri and Gloria Allred.  And also joining us is John Higgins.  He‘s the business editor of “Broadcasting and Cable” magazine, the industry bible. 

Mr. Higgins, we were talking a moment ago about credibility.  And, certainly, Mr. O‘Reilly has plenty of it, a very successful program on the Fox network.  And yet, with these kinds of charges, everybody goes back and looks at previous statements he‘s made.  And this could be problematic for him.  The Associated Press ran a story where—I believe it was the AP—he was quoted in talking about a newswoman who had been fired because she had done some dirty dancing at a wet T-shirt contest. 

Bill O‘Reilly said: “Politicians, news people, clergy all have images and all depend on the trust of the public to succeed.  You do something like this young woman in the T-shirt contest, though it is not illegal, it embarrasses your employer because your employer operates on credibility.” 

Has Mr. O‘Reilly been damaged by this allegation? 

JOHN HIGGINS, BUSINESS EDITOR, “BROADCASTING AND CABLE”:  He has been damaged to a certain degree, but people aren‘t turning to him for so much the moral, you know, religious advice of how a great Christian should lead their lives. 

He‘s just loud.  And he‘s shouting, and he‘s got a very strong political viewpoint on a lot of issues.  And people are turning to him for that.  I‘m not sure how much this will turn off his core audience. 

NORVILLE:  The fact is, when the case hit the papers and the wires on Thursday, his ratings were up 30 percent. 

HIGGINS:  Well, yes, but that‘s...

NORVILLE:  Is that, you know, like people looking at a train crash to see if they see blood on the highway or something? 

HIGGINS:  Yes.  That was people like me tuning in for the first time in about a month.  That‘s what that was all about. 

NORVILLE:  So just curiosity factor. 

HIGGINS:  Everybody wanted to see how he was going to react. 

NORVILLE:  But when you look at other high-profile media figures who have been involved in stories that probably they would prefer not to see in papers, Rush Limbaugh with the allegation of the prescription drug abuse, with Marv Albert, a sportscaster who had a sex issue that he had to deal with in a very public way, their careers continued on.  Is there any reason to believe that this man‘s won‘t as well? 

HIGGINS:  No. 

If this escalates, and you see more women come out with the same kind of allegations, and—boy, if you see a tape come out—I mean, this woman apparently has an audio recording of his comments.  You know, if that ever gets on Howard Stern before he hits satellite radio and 15 million people a day can—there is going to be an awful lot of Bill O‘Reilly critics having a field day. 

But, that said, O‘Reilly thrives when critics slam him.  His audience loves that.  I mean, the “Outfoxed.”

(CROSSTALK)

OPRI:  He does.

Let me tell something to Bill O‘Reilly.  I would say to Bill directly, Bill, you have got it coming.  You‘re going to be on “Saturday Night Live” with Ms. Mackris.  They are going to have a field day with you.  And you know what?  It is going to make your career bigger and better than ever.  The most important thing here is, Bill is human.  Bill is a human being.  And if Bill comes across and says, I got a big mouth, I said things I shouldn‘t have said, you know, people are going to forgive him. 

NORVILLE:  Gloria.

(CROSSTALK)

ALLRED:  Deborah, may I say something? 

NORVILLE:  Yes.  Go ahead.

ALLRED:  Yes. 

Yes.  First of all, I‘m very concerned about how this is playing itself out.  You know, Fox, as the employer, I think should have been neutral, and I‘m very concerned that Bill O‘Reilly was permitted to use Fox‘s airwaves to attack this young woman, who protested sexual harassment. 

(CROSSTALK)

ALLRED:  I don‘t think that should have occurred.  It may very well have been her worst fear.

OPRI:  But that‘s what he does, Gloria.

ALLRED:  That they would try to destroy her.  There is an allegation that he said that Fox would try to destroy her if she said anything.  And if then he was able to use Fox‘s airwaves to do a preemptive attack on her, then it‘s her worst fear coming true. 

I hope that they didn‘t know about it before he said it.  But it is very troubling, and my guess is that she can use that then in her lawsuit later to use that as a reason why she was afraid to even tell Fox about what was going on, for fear that they would side with him, rather than side with her. 

(CROSSTALK)

NORVILLE:  On the other hand, sometimes, a celebrity‘s worst nightmare, to become the butt of the jokes.  You mentioned “Saturday Night Live.”  Jay Leno is already having some fun at Mr. O‘Reilly‘s expense.  Here‘s something from the other night on the show.

(BEGIN VIDEO CLIP, “THE TONIGHT SHOW WITH JAY LENO”)

JAY LENO, HOST:  Do you know he‘s got a children‘s book out now, Bill O‘Reilly?  Do we have a copy of it?  Here it is right here?  It‘s called, “Mommy, Why is Daddy on the Phone So Much?”

(LAUGHTER)

(END VIDEO CLIP)

OPRI:  Can I comment on that? 

(CROSSTALK)

NORVILLE:  And, indeed, in your own newspapers, Mr. Higgins, you guys in your column today, you pulled an excerpt from his book which regrettably was published at the same time that these allegations came forward, “The O‘Reilly Factor For Kids,” talking about sex.

And he says—quote—“Guys, if you exploit a girl, it will come back to get you.  That‘s called karma.”

They are going to be looking at everything he ever said, aren‘t they, Mr. Higgins? 

HIGGINS:  They are going to be pulling apart transcripts of “THE O‘REILLY FACTOR” the way the Bushies and the Kerry folks pull each other‘s statements apart, word by word, focusing on little phrases and sentences. 

NORVILLE:  Gloria, finally, give us a little sense of what the timetable on a case like this would be. 

ALLRED:  Well, my sense of it is, it is going to move along pretty quickly. 

It is, by the way, Deborah, very interesting, that with everything Bill O‘Reilly had said about this matter, at no time has he denied that he has said what she alleges that he has said.  Now, maybe he hasn‘t said it.  Maybe he has.  Maybe she has tapes.  She‘s not saying.  Maybe she doesn‘t.  But the fact that he said many things, but never denied what she alleges he said is very interesting. 

NORVILLE:  Well, it will all come out in court.  And I guess, the weeks to come, we‘ll see that process beginning.

OPRI:  Stay tuned.

NORVILLE:  Stay tuned, as Debra Opri says. 

Debra, thank you for being with us. 

OPRI:  My pleasure.

NORVILLE:  Gloria Allred from California, good to see you again.

ALLRED:  Thank you. 

NORVILLE:  And, John Higgins, we thank you as well. 

We‘ll be right back.

(BEGIN VIDEOTAPE)

ANNOUNCER:  Up next, desperate measures for desperate times. 

UNIDENTIFIED MALE:  One-fourteen, 114. 

ANNOUNCER:  You won‘t believe how one town is trying to beat the flu shot frenzy. 

DEBORAH NORVILLE TONIGHT is coming right back. 

(END VIDEOTAPE)

(COMMERCIAL BREAK)

NORVILLE:  You‘re looking at proof that a lot of people don‘t want to get the flu, people waiting in line for hours, price gouging, desperation.  It‘s a scene that‘s taking place in many communities across America, all because of the shortage of the flu vaccine. 

In many places, the elderly have been forced to wait outside, in the cold, to get vaccinated.  The Centers for Disease Control is telling people that help is on the way, that supplies will be coming.  And today, U.S.  Health and Human Services Secretary Tommy Thompson said there will be enough vaccine for most of the people who need it.  And he told seniors to get inside and stop standing in those lines. 

Tonight, the story of Bloomfield, New Jersey, a town that got only a third of its flu vaccine allotment.  And with its way of dealing with the demand, it is holding a lottery. 

Joining me now is Trevor Weigle.  He‘s the director of health and human services for the Bloomfield Township.  Also with us, Dr. Bernadine Healy.  She‘s a medical and health correspondent for “U.S. News & World Report” magazine, also the former head of the American Red Cross and the National Institutes for Health. 

Ms. Weigle, I got to tell you, this is about the dumbest thing I ever heard.  People got to draw straws to see if they get the flu vaccine?  What‘s going on?

TREVOR WEIGLE, BLOOMFIELD HEALTH AND HUMAN SERVICES DIRECTOR:  That‘s correct.  That is how we are doing it here in Bloomfield.  And that is based on what we‘ve seen happening in other towns and those long lines that you‘re talking about.  And we wanted to eliminate those long lines and the threat to public safety. 

So we figured this would be the fairest method of doing it. 

NORVILLE:  Well, I understand wanting people to get inside and not stand outside, because chances are, you‘ll get a cold, and that will turn into the flu and then you‘ve just increased the problem and made it worse.  But what are you going to tell the other 699 people whose number doesn‘t get picked?  If you expected 1,000 people to want the vaccine and only 300 get it, what are you going to tell these people, tough luck? 

WEIGLE:  No.  We think the word is out there now, that they know of this lottery, and, unfortunately, we are going to have to ask them to see their health care provider or talk to their health care provider and we‘re going to encourage them to practice universal respiratory precautions. 

NORVILLE:  What kind of calls have you been getting today since this was announced? 

WEIGLE:  Well, we‘ve been getting a lot of calls, well over 100 calls today, and most of them just asking us to clarify the lottery process. 

NORVILLE:  Yes, and the lottery process is this.  First, you have got to prove that you live in Bloomfield, so that‘s probably not that hard to do.  You either need to be an adult who is 65 or over or a person 18 to 64 with some underlying medical conditions or a woman who is pregnant—got to have proof of that from your doctor.—the resident of a nursing home or a long-term care facility or a health worker who works directly with patients.  These are the people who will be eligible for the lottery. 

And then if your number gets picked, you‘re one of the lucky ones that get the flu vaccine. 

Dr. Healy, I gather that you sort of agree with me that this is malarkey. 

DR. BERNADINE HEALY, FORMER DIRECTOR, NATIONAL INSTITUTES OF HEALTH: 

Well, I do. 

And I must say, I‘m very sympathetic with Mr. Weigle.  And he is trying to do something novel and different, instead of having old folks stand in those lines.  So my sympathy is with him.  However, I do not believe that medicine should be handed out through a lottery process. 

A lottery implies that everybody is equal when they get into the pool, and that‘s just not the case.  The fact is, of that group of people that are on that CDC list that you just laid out who are in the high priority group, it is the elderly, 90 percent of the group that dies with the flu are in the over-65 group.  So there are some people more needy than others.  So I would like to shift from the L word, to the R word, which is not as appealing either. 

And that is rationing.  And rationing in health care is done, and it‘s usually done based on need, not on luck. 

NORVILLE:  But we shouldn‘t even be in that situation.  For heaven‘s sakes, there was notice well before the big announcement a couple of weeks ago that this plant Chiron in Liverpool, England, that had the contamination problems, where so much of the vaccine came from, the CDC knew about these problems, and yet America missed the boat in finding alternative sources of flu vaccine. 

Consequently, England is covered.  They have got plenty vaccine and we are scrambling like a bunch of chickens without heads over here.  How did that happen, Dr. Healy? 

HEALY:  Oh.

Well, I think you have to recognize that we have two vaccine manufacturers, and basically we lost half of our supply because one of them had this problem with the Liverpool plant.  It is not as easy to make up 50 million units of vaccine.  England had to come up with maybe one or two million.  So I think part of it is the magnitude of our need because of the size of our country. 

But I think that we have to realize, we have a problem that is system-wide in vaccines.  This isn‘t the first time we‘ve had a problem with vaccines.  We‘ve had them year after year after year that also we‘re seeing with childhood vaccines.  We‘ve got to identify the bigger problem.  It‘s not just Bloomfield.  It is a problem that is a fragile system for making vaccines.  It is a system that is 60 years old, does not use modern technology, modern biology that we have been investing in for years.

And it‘s a system which is financially strapped.  It has litigation problems, and we don‘t have enough corporations that have facilities to produce vaccines.  We have taken our vaccines for granted and maybe this is the wakeup call, Deborah.  If anything good that comes out of this, maybe every American will say, wow, we are going to change things.  This is not going to happen again. 

NORVILLE:  Well, we say that every time there is one of these snafus. 

Oh, it‘s going to be different this time. 

What‘s it going to take?  Who needs to call whom to say: “You know what?  This is nuts.  My grandmother shouldn‘t have to worry about her flu shot.  You, Mr. Congressman, Ms. Congressman, whatever, do something, so poor Mr. Weigle doesn‘t have to have a lottery in Bloomfield Township”?

HEALY:  I think this is an issue of homeland security.  I think this is every bit as—this is something which is the public health of the country.  The individual doctor in his or her office can‘t handle this. 

We need to have a national strategy.  This has to be a top-priority issue.  And, Deborah, I can tell you the biologics, things like vaccines, or blood, they have never been treated as high-priority issues.  People complain.  They get by.  They call an emergency problem.  But the fact is, we have not taken this seriously from a scientific point of view, a financial point of view, and a federal investment point of view. 

There is no one person you should pick on.  This is not a partisan issue.  This is a national issue. 

NORVILLE:  Call everybody.

HEALY:  And we better get it straightened out now before the big pandemic hits. 

NORVILLE:  All right, that‘s really scary to hear. 

Trevor Weigle, we hope your lottery goes well and we hope somebody sends you more than 300 vaccinations, so you can help those folks down there.

HEALY:  Yes. 

NORVILLE:  Dr. Healy, thank you for your time as well. 

HEALY:  Thank you, Deborah.

NORVILLE:  And be sure to tune into MSNBC tomorrow at 2:00 p.m.  MSNBC takes a whole hour to take a look at this problem, fighting the flu.  What kind of effect is this flu shot shortage going to have on your health?  You can find out when you tune into this network tomorrow at 2:00 Eastern on MSNBC. 

When we come back, we will take a look at one celebrity‘s unique way to get young people to vote. 

(COMMERCIAL BREAK)

NORVILLE:  We love to hear from you, so e-mail us at

NORVILLE@MSNBC.com.  Some of your messages are posted on our Web page at NORVILLE.MSNBC.com, which is where you can sign up for our newsletter.

And that is our program for tonight.  I‘m Deborah Norville.  Thanks for watching.

Tomorrow night, Sean “P. Diddy” Combs is one busy guy, music, movies, fashion, and now he‘s working to get young people to participate in the voting process.  It‘s called Vote or Die.  It sounds extreme, but he says the election is that important. 

Also, Mississippian Thomas Hamill, who escaped being hostage in Iraq, he joins me tomorrow.

We‘ll see you then.  Good night.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

END   

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