On the November 16 edition of MSNBC Live, NBC News chief Pentagon correspondent Jim Miklaszewski suggested that a House bill contained a prohibition on the interrogation technique known as waterboarding, “even though ... [the U.S. military's] own Army field manual prohibits” the technique. “Congress,” he claimed, “wants to throw that in, well, pretty much to ensure that it doesn't happen, but also ... [as] a poke in the eye of the administration, clearly.” In fact, the Army field manual's prohibition on the use of waterboarding currently applies only to the Department of Defense; the "waterboarding clause" in the House bill would expand that prohibition to cover “the United States Government.” As Media Matters for America has noted, the CIA -- which is not a part of the Defense Department -- has reportedly used waterboarding as an interrogation method on several detainees since September 11, 2001, and although the U.S. government has, according to The New York Times, stopped using waterboarding, the administration has reportedly asserted its authority to use the technique.

Miklaszewski made his assertion at the end of his report on the House's passage of a bill appropriating $50 billion for war operations in Iraq and Afghanistan, when host Mika Brzezinski asked him about the “waterboarding clause in that bill.” Miklaszewski replied that the provision was included in the bill, even though the U.S. military's own Army field manual prohibits the use of waterboarding, and concluded that the clause was “clearly” “a poke in the eye of the administration.” Brzezinski then said, “Yeah, yeah, little politics at play.”

However, under current law, only the Defense Department must obey the Army field manual's rule on waterboarding. Section 1002 of the Detainee Treatment Act of 2005 (DTA) states that "[n]o person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation." The current version of that field manual, released in September 2006, and now titled the Army Field Manual on Human Intelligence Collector Operations, explicitly states that "[i]f used in conjunction with intelligence interrogations, prohibited actions include, but are not limited to ... 'Waterboarding.' "

The DTA applies a different standard to the rest of the U.S. government, requiring, per Section 1003, that "[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." However, as Media Matters has noted, the Bush administration has reportedly claimed that the use of waterboarding was still permissible under that standard. According to an October 4 New York Times article, “Relying on a Supreme Court finding that only conduct that 'shocks the conscience' was unconstitutional,” a 2005 Justice Department opinion “found that in some circumstances not even waterboarding was necessarily cruel, inhuman or degrading, if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack, the officials familiar with the legal finding said.” Another Justice Department opinion, from February 2005, reportedly authorized the administration's use of the “harshest interrogation techniques ever used by the [CIA]” and provided “explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.”

By contrast, section 102(a) of the just-passed Iraq war funding bill -- the one Miklaszewski was discussing with Brzezinski -- would require the entire U.S. government to obey the Army Field Manual's more-specific requirements on interrogation techniques, stating that "[n]o person in the custody or under the effective control of the United States Government shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual FM2-22.3 Human Intelligence Collector Operations" [emphasis added].

From the 9 a.m. ET hour of the November 16 edition of MSNBC Live:

BRZEZINSKI: And Jim, there's also a waterboarding clause in that bill, is there not?

MIKLASZEWSKI: Yes, there is, even though the U.S. military, according -- their own Army field manual prohibits the use of such techniques as waterboarding, Congress wants to throw that in, well, pretty much to ensure that it doesn't happen, but also, you know, a poke in the eye of the administration, clearly.

BRZEZINSKI: Yeah, yeah, little politics at play. Jim Miklaszewski at the Pentagon, thank you very much.

MIKLASZEWSKI: OK, Mika.