August 07, 2003

The Nation and Perle Richard

The Nation and Perle

Richard Perle tells the Nation, more or less, to bugger off:

"Perle heatedly denied suggestions of impropriety regarding the broadcast payments. "There is no law, regulation or ethics guideline that would preclude my being compensated for articles, speeches or interviews," he said. "When I agreed to serve on the Defense Policy Board I agreed to its rules and I abide by them. I couldn't care less how many of your left wing friends you can quote, by name or anonymously, in support of standards of conduct that would be far more restrictive than anything in the current rules and regulations."

Later:

"The suggestion that being paid for work I do is somehow an abuse of my role as a member of a government advisory board is the sort of slander I expect from The Nation which, since the collapse of regard for the vision of its founders, and the paucity of ideas to replace it, has been reduced to impugning the character of those whose ideas have prevailed over yours."

Hey, tell us what you really think!

For the record, I agree with Perle that he is in full compliance with government regulations on this issue. Permit me to don my lawyer hat for a second.

Take a look at the U.S. government's Standards of Ethical Conduct, 5 CFR Part 2635.807 (applicable to Special Government Employees ("SGE's) like Perle) that are relevant here.

The regulations say that:

"....an employee, including a special Government employee [ie., Perle's status], shall not receive compensation from any source other than the Government for teaching, speaking or writing that relates to the employee's official duties."

So what is the standard regarding what "relates to the employee's official duties"?

The rules, again:

(i) Teaching, speaking or writing relates to the employee's official
duties if:
(A) The activity is undertaken as part of the employee's official
duties;
(B) The circumstances indicate that the invitation to engage in the
activity was extended to the employee primarily because of his official
position rather than his expertise on the particular subject matter;
(C) The invitation to engage in the activity or the offer of
compensation for the activity was extended to the employee, directly or
indirectly, by a person who has interests that may be affected
substantially by performance or nonperformance of the employee's
official duties;
(D) The information conveyed through the activity draws
substantially on ideas or official data that are nonpublic information
as defined in Sec. 2635.703(b); or
(E) Except as provided in paragraph (a)(2)(i)(E)(4) of this section,
the subject of the activity deals in significant part with:
(1) Any matter to which the employee presently is assigned or to
which the employee had been assigned during the previous one-year
period;
(2) Any ongoing or announced policy, program or operation of the
agency; or
(3) In the case of a noncareer employee as defined in
Sec. 2636.303(a) of this chapter, the general subject matter area,
industry, or economic sector primarily affected by the programs and
operations of his agency.

Let's take each one in turn. (A) doesn't apply as Perle's T.V. appearances were not undertaken as per his official duties. (C) is out as the journalists paying Perle his fees have no financial interest in the performance of his advisory duties. Regarding (D), no one has alleged Perle ever disclosed non-public information. A lawyer might aggressively argue that Perle could potentially run afoul of (E) as his paid media appearances arguably dealt with, for instance, an "ongoing policy, program or operation of the agency."

Put differently, the argument would be that granting a paid interview about, say, prospects for war in Iraq while serving on a Pentagon advisory board whilst said "agency" is involved in war planning might be in violation of the standard.

A stretch. And regardless, SGEs are specifically exempted from the requirement:

(4) The restrictions in paragraphs (a)(2)(i)(E) (2) and (3) of this
section do not apply to a special Government employee. The restriction
in paragraph (a)(2)(i)(E)(1) of this section applies only during the
current appointment of a special Government employee; except that if the
special Government employee has not served or is not expected to serve
for more than 60 days during the first year or any subsequent one year
period of that appointment, the restriction applies only to particular
matters involving specific parties in which the special Government
employee has participated or is participating personally and
substantially.

That leaves (B): "The circumstances indicate that the invitation to engage in the activity was extended to the employee primarily because of his official position rather than his expertise on the particular subject matter."

But media outlets are paying him to appear not because of some Pentagon advisory position he has--but because he is a prominent neo-conservative well known in the Beltway since his days working for Scoop Jackson.

Of course, the gotcha-style tone of the Nation's piece tries to portray all the media outlets panting at Perle's door solely because of his former position as Chairman of the Defense Advisory Board. But merely quoting an anonymous declaration by an European correspondent that his channel paid Perle because of his advisory role to the Pentagon doesn't make the case.

Particularly when you take a look at this further clarification in the code:

Section 2635.807(a)(2)(i)(E) does not preclude an employee,
other than a covered noncareer employee, from receiving compensation for
teaching, speaking or writing on a subject within the employee's
discipline or inherent area of expertise based on his educational
background or experience even though the teaching, speaking or writing
deals generally with a subject within the agency's areas of
responsibility.

U.S. foreign policy in Iraq is definitively within Richard Perle's "inherent area of expertise." Whatever you make of Perle's decision to charge for some of his airtime--this story doesn't really have legs.

Full disclosure: I worked for Perle in Washington in the late 90's.

UPDATE: Check out this PBS Ben Wattenberg interview of Perle:

Ben Wattenberg: Richard, you are Chairman of the Defense Policy Board. What is that?
Richard Perle: ItÕs a group of volunteer civilians who advise the Secretary of Defense. It now includes a pretty illustrious list of people, Henry Kissinger, James Schlesinger, Harold Brown, Tom Foley and Newt Gingrich, two former Speakers. These are wise men with deep experience who come together half a dozen times a year for extensive briefings, discussions, meetings, and advice for the Secretary of Defense.
Ben Wattenberg: And does the Board itself put out dicta? I mean, does it say, this is what we believe?
Richard Perle: No, no. But the term ŌboardĶ is a little misleading. It sounds like a zoning board that either gives you or doesnÕt give you a permit. The Board doesnÕt take corporate views. ItÕs simply a means by which the Secretary of Defense can come together with a group of people who have interesting things to say and they, in turn, can look into whatÕs going on in the Defense Department and give him advice, but there are no votes or anything like that.
Ben: And in your case because you are the Chairman and because you are well-known in this whole argument, people impute to that role that you are a part of the Bush Administration. That is not correct?
Richard: No. IÕm completely independent of the Administration. I think that prefer it that way.
Ben Wattenberg: Does Secretary Rumsfeld sometimes get a little agitated that you say things that they arenÕt necessarily ready to say and it says Chairman of the Defense Policy Board and it sounds as if itÕs linked?
Richard Perle: Yes. I go to great lengths to discourage people from identifying me as Chairman of the Defense Policy Board, because it does confuse people and from time to time I say something that people wish I hadnÕt said. In fact, I sometimes say things that I wish I didnÕt say. [my emphasis].

With that Perle statement in mind, now look at this part of Berman's Nation article: "Federal laws place restrictions on the behavior of SGEs like Perle. Regulations Code 5 CFR 2635.702--barring the use of public office for private gain--also warns of the "appearance of government sanction," and cautions against using public standing "in a manner that could be reasonably construed to imply that his agency or the Government sanctions or endorses his personal activities."

Hmmm. So Perle would go to "great lengths to discourage people from identifying" him as Chairman of the Defense Advisory Board. Hardly running afoul of CFR code prohibiting the appearance by an individual that the government is endorsing his personal activities, wouldn't you say?

Posted by Gregory at August 7, 2003 05:01 PM
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