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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle D Provisions Relating to Acquisition Workforce and Inherently Governmental Functions

DHNDAA Section

Senate Armed Services Report 110-335

SEC. 832. SENSE OF CONGRESS ON PERFORMANCE BY PRIVATE SECURITY CONTRACTORS OF CERTAIN FUNCTIONS IN AN AREA OF COMBAT OPERATIONS.

It is the sense of Congress that--

(1) security operations for the protection of resources (including people, information, equipment, and supplies) in uncontrolled or unpredictable high-threat environments should ordinarily be performed by members of the Armed Forces if they will be performed in highly hazardous public areas where the risks are uncertain and could reasonably be expected to require deadly force that is more likely to be initiated by personnel performing such security operations than to occur in self-defense;

(2) it should be in the sole discretion of the commander of the relevant combatant command to determine whether or not the performance by a private security contractor under a contract awarded by any Federal agency of a particular activity, a series of activities, or activities in a particular location, within a designated area of combat operations is appropriate and such a determination should not be delegated to any person who is not in the military chain of command;

(3) the Secretaries of the military departments and the Chiefs of Staff of the Armed Forces should ensure that the United States Armed Forces have appropriate numbers of trained personnel to perform the functions described in paragraph (1) without the need to rely upon private security contractors; and

(4) the regulations issued by the Secretary of Defense pursuant to section 862(a) of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; 122 Stat. 254; 10 U.S.C. 2302 note) should ensure that private security contractors are not authorized to perform inherently governmental functions in an area of combat operations.

Performance by private security contractors of inherently governmental functions in an area of combat operations (sec. 841)

The committee recommends a provision that would require the Secretary of Defense to revise the regulations issued pursuant to section 862 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181) to ensure that private security contractors are not authorized to perform inherently governmental functions in an area of combat operations.

`Inherently governmental functions' are defined in Office of Management and Budget Circular A-76 and in the Federal Acquisition Regulation to include those functions that are `so intimately related to the public interest as to mandate performance by government personnel.' Such functions include activities that `significantly affect the life, liberty, and property of private persons.'

Paragraph E2.1.4 of Department of Defense (DOD) Instruction 1100.22 provides that security provided for the protection of people and property in uncontrolled or unpredictable high threat areas outside the United States entails a wide range of capabilities, some of which are inherently governmental and others of which may be provided by contractors. In particular, paragraph E2.1.4.1.4 states:

Security operations that involve more than a response to hostile attacks typically entail substantial discretion and are inherently governmental. For example, security operations that are performed in highly hazardous public areas where the risks are uncertain, could require deadly force that is more likely to be initiated by U.S. forces than occur in self defense. Security operations that require immediate decisions on the appropriate course of action or the acceptable level of risk typically require substantial discretion and are inherently governmental particularly when the outcome could significantly affect the life, liberty, or property of private persons or international relations. Such operations typically require on-the-spot judgments on the appropriate level of force, acceptable level of collateral damage, and whether the target is `friend or foe.' They also require protocols on the use of force that permit discretion for `preemptive' attacks. Such high risk operations require military training and discipline . . . and are designated for military performance.

Despite this guidance, it appears that private security contractors in Iraq have frequently engaged in activities that `are performed in highly hazardous public areas where risks are uncertain,' `could require deadly force that is more likely to be initiated by U.S. forces than occur in self defense,' `require immediate decisions on the appropriate course of action or the acceptable level of risk,' and `require on-the-spot judgments on the appropriate level of force, acceptable level of collateral damage, and whether the target is `friend or foe.'

The provision recommended by the committee would address these problems by codifying the standards in DOD Instruction 1100.22, making these standards uniformly applicable to all private security contractors operating in an area of combat operations, and requiring contracting agencies to put appropriate mechanisms in place to ensure compliance with these standards.

 

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