A/HRC/33/43 were originally defined as activities that “are so intimately related to the public interest as to require performance by Federal Government employees”.69 60. Subsequent regulations and guidance documents 70 incorporate this language and further elaborate on the use of the term. For example, in its policy letter 11-01 the Office of Federal Procurement Policy establishes two tests for identifying inherently governmental functions: (a) the nature of the function, i.e., the exercise of sovereign powers of the United States that are governmental by their very nature, for example, arresting a person; and (b) the exercise of discretion.71 According to the policy letter, inherently governmental functions involve, for example, the interpretation and execution of the laws of the United States so as “to significantly affect the life, liberty, or property of private persons”.72 The policy letter provides a detailed list of examples of such functions.73 The list includes combat,74 security operations performed in direct support of combat as part of a larger integrated armed force,75 security operations performed in environments where, in the judgment of the responsible federal official, there is significant potential for the security operations to evolve into combat76 and security that entails augmenting or reinforcing others (whether private security contractors, civilians or military units) that have become engaged in combat.77 61. According to both the federal law and the policy regulation, contractors providing special non-law enforcement security activities that do not directly involve criminal investigations, such as prisoner detention78 and gathering information for or providing advice, opinions, recommendations or ideas to federal government officials79 are not inherently government functions. Department of Defense Instruction No. 3020.41 states that contracted services may be utilized in applicable contingency operations for all functions not inherently governmental;80 that inherently governmental functions and duties are barred from private sector performance;81 and that contractors authorized to accompany the force can be utilized in such operations in a non-combat role.82 62. The United States Government appears to draw a line between permitted and prohibited activities of private military and security companies with reference to combat and combat-related activities, but does not specifically address “high-risk activities”, which would include quite a number of functions even outside combat. Additionally, there is no clear enforcement mechanism for ensuring that agencies comply with the policy guidance on “inherently governmental functions”, which is particularly worrying considering the dramatic expansion of the government contractor industry and the massive increase in the role and involvement of contractors in intelligence analysis and targeting decisions. 69 70 71 72 73 74 75 76 77 78 79 80 81 82 14 Federal Activities Inventory Reform Act of 1998, section 5.2 and Office of Management and Budget Circular A-76, Inventory process, B (1) (a). Federal Acquisition Regulation and Office of Federal Procurement Policy, policy letter 11-01. Office of Federal Procurement Policy, policy letter 11-01, section 5-1 (a) (1) (i) and (ii). Ibid., section 3, Definitions, (a) (3). Ibid., appendix A. Ibid., appendix A (4). Ibid., appendix A (5) (a). Ibid., appendix A (5) (b). Ibid., appendix A (5) (c). Federal Acquisition Regulation, section (d) (19) and Office of Federal Procurement Policy, policy letter 11-01, appendix B (9). Office of Federal Procurement Policy, policy letter 11-01, section 3 (b) (1). Department of Defense Instruction No. 3020.41, enclosure 2, section (1) (a) (1). Ibid., section (2) (e). Ibid.