Clip of Hillary Clinton: If you have a declaration of war and really you're supposed to put the country on a war footing, I'm not sure that makes the most sense in fighting a threat that is as diffuse and networked as this threat is.

Hayworth: Democratic presidential candidate Hillary Clinton saying she is not inclined to support a formal declaration of war against ISIS. But that terror group continues on the march committing atrocities, targeting Christians throughout the Middle East. The group has even claimed responsibility for the crash of that Russian jet liner over Egypt's Sinai Peninsula that killed all 2224 aboard. So why is Hillary hesitant? To talk about this we welcome in our panel. First up Andy McCarthy, policy fellow at the National Review Institute. He's skyping in from New York City. We should point out Andy is also the author of Faithless Execution: Building the Political Case for Obama's Impeachment. And joining us from Newsmax Washington, my old House colleague, former chairman of the Intelligence Committee, Pete Hoekstra. Pete, currently a Shillman Senior Fellow for the Investigative Project on Terrorism, and he's also the author of Architects of Disaster: The Destruction of Libya. Pete first to you. Hillary is hesitant about fighting ISIS, asking for a declaration of war. She says it would put a big strain on our budget. Do you agree, is she offering legitimate reasoning and argument?

Hoekstra: Well declaring war and the implications on the budget, those two are not related. The bottom line here is I think it actually would make some sense to bring some clarity to this, have a declaration of war, clearly define the enemy for what they are and who they are – ISIS, al Qaeda and radical Islamist groups – so that they have a parameter as to who we are going after. I think the second thing here is that we haven't had a strategy for going after these radical jihadist groups. Having a declaration of war identifying who they are and also clearly identifying the rules of engagement for our military would be very, very helpful.

Hayworth: On another matter, Andy, we seldom get a declaration of investigation from the FBI on key public officials, and yet we understand the FBI is stepping up its investigation into Hillary Clinton's emails. Is it now more than just preliminary fact finding in your opinion?

Andy McCarthy: J.D., I think it's been more than that for some time now. The FBI doesn't dedicate the number of agents that have reportedly been dedicated to this investigation unless it has ripened into something of a more mature stage than just their preliminary inquiry. They've reportedly not only done that but they're casting a pretty broad net. They've evidently asked the State Department for some pretty interesting evidence. They're obviously not going through the motions here. And I'd be quite surprised if that were the case for two reasons. Number one, I happen to know Jim Comey. We both started in the US Attorney's office at the same time under Rudy Giuliani. He's a straight shooter, he's a guy with integrity, and I expect he's gonna do a real investigation here. And that gets me to the second point which is a real investigation ought to make Mrs. Clinton, give her a lot of anxiety I would think because if you look at the statutes that are involved here – and I don't think we're talking just about the statutes that relate to classified information – but if you simply stick with those it looks to me from here in the peanut gallery where it's always easier like there's some pretty clear violations of very serious felony statutes here.

Hayworth: We will continue to keep an eye n that. But gentlemen in the time remaining we would be remiss if we did not talk about Gitmo. The President insistent that he's taking a look at possible executive action to close the prison there. Former Defense Department spokesman J.D. Gordon, on this very program last night, and he discussed the consequences of closing Gitmo. Here's what he had to say.

Clip of J.D. Gordon: If President Obama brings these detainees to the United States, if there's not enough evidence to convict them, and since we do not have battlefield detectives running after them in Pakistan and Afghanistan, those guys could be set free on Main Street USA and even if they don't get set free right away, Colorado, Kansas, South Carolina, they'll become bull's eyes for terror attacks.

Hayworth: Pete, new House Speaker Paul Ryan issued a strong warning to President Obama against attempting to sue that executive order. In fact, legislation has been passed expressly forbidding it. Do you think the President will go ahead with an executive order to close Gitmo?

Hoekstra: I think this President will do just about anything to close Gitmo. And he may issue an executive order which really will potentially create a constitutional crisis between the Congress and the Executive branch. In the latest Defense Authorization Bill, which passed the Senate 91-3, it prohibits the Gitmo folks from being transferred to the United States. The President ought to move away from this issue, admit he made a mistake by promising to close Gitmo, and focus on the real threats that are out there and the things that would keep America safe. This has been nothing but shadow boxing now for seven years. It's a political gimmick. Keep Gitmo open and focus on the real issues.

Hayworth: Andy McCarthy, thirty seconds to you. Legally where will this thing go?

McCarthy: It's a disaster for the reasons that J.D. Gordon explained to you and others. The people who are at Gitmo are there because they can't be repatriated. Obama has actually already tried to clear out the place by returning people to other countries. If they had countries willing to take these guys they'd already be gone. So you have a situation where we're going to bring them into the United States if Obama has his way. You have a lot of judges who don't believe in law of war detention, and where are you going to put them other than out on the street in the United States?

Hayworth: Andy McCarthy and Pete Hoekstra, gentlemen you have our thanks.