Tuesday, May 28, 2013

The Profile and Why Federalist Expansionism is Alarming

“My dad fought a war so this can never happen in America. I will not dishonor my father’s memory by giving up what he fought for. No, sir. With all due respect, I will not consent to a search without a proper warrant.” - Larry Gaines, private pilot to a Customs and Border Protection (CBP) agent seeking an unlawful, warrantless search of Gaines' aircraft because his flight fit a "profile" of “from west to east, from California.”

Coming off the Memorial Day holiday weekend, where the nation pays tribute to those who have fallen in the name of our country, I'm struck by the perversity of our collective sentiments versus an incongruous police state that has been evolving since terrorism was declared a national threat.

If you follow any sort of politics at all outside the workers' compensation arena you might have noticed an alarming trend over the past decade - expansion of the federal government's willingness to disregard individual Constitutional rights and the use of its mighty resources to quell individual dissent.

This started with the creation, funding and expansion of the Department of Homeland Security (DHS) and its more familiar agency, the Transportation Security Agency (TSA). Despite billions of dollars in funding for personnel and fancy machines, there has not been a single case of terrorism that has been thwarted by this massive bureaucracy.

We get a false sense of security as backscatter machines prob our bodies with electrons and we take our shoes and belts off and remove lap top computers from brief cases - while questionable TSA employees rifle through our bags committing theft (and we all know that the few that were actually caught are only representative of a much bigger problem).

But we all accept TSA like apathetic sheep because the federal government said we have to in order to ensure orderly travel, despite the fact that there is not one scintilla of evidence that TSA has ever made travel safer. None.

Then we get to Larry Gaines. His plight is not unique at all now in the general aviation community. It seems that a couple times per month some completely law abiding private pilot is detained and essentially searched, without warrant, and without legal authority, in the name of terrorism, despite the fact that general aviation has never been identified as a credible terrorism threat - it's simply much, much easier to plant a bomb at the Boston Marathon than it is to learn how to fly a plane and rig it as an explosive device.

And, by the way, these reports of aircraft and pilot interceptions do not involve the ONLY governmental agency that has ANY authority whatsoever over an aircraft and its pilot - the Federal Aviation Administration (FAA). The FAA, from what I have read thus far, disassociates itself completely from the police activity of these rogue federal agencies.

The fact is that neither DHS, TSA, CBP or any local police agency has any authority WHATSOEVER to detain, search, investigate, confiscate, prosecute, etc. any violation of any aviation law or regulation - NONE. They can not conduct "ramp checks" (inspecting an aircraft on the ground as a matter of course); they can not confiscate pilot certificates; they can not search an aircraft or detain a pilot for anything that occurs in the air, or at an airport once past security fencing.

And yet that does not keep these entities from using their police authority to engage in these unlawful activities because they have money, ergo power, and will use that ostensible authority because they have the resources and know that in order for YOU to muster sufficient resources to protect your rights you need to spend a lot of money in a short period of time, and by then these autocrats have had their way - they've made their point.

Other recent, glaring, and despicable examples of the federal government's disdain for the People's Constitutional Rights are the Justice Department's recent actions against journalists - unprecedented, and unfounded activities that are designed for no purpose other than to stifle the ability of The Media to keep a check on government.

There is the warrant against Fox News reporter James Rosen where the Justice Department with the blessing of the Attorney General of the United States, Eric Holder, obtained his Google account emails in which he corresponded with a State Department analyst suspected of leaking classified information about North Korea. Rosen was doing his job - he did not violate any laws, he did not engage in illegal activity, he did not create a security threat or a breach of safety for the public.

Investigators routinely search the e-mails of suspected leakers, but Congress has forbidden search warrants for journalists’ work product materials unless the reporter committed a crime - and Rosen committed no crime. His activity is Constitutionally protected and this very same issue has come before the United States Supreme Court many times in the past and on each occasion the government has lost.

But because the government deemed Rosen's activity against its own interests - SECRECY - they have engaged in a tactic designed to quell his First Amendment right of freedom of the press and have used him as an example to make sure that other journalists don't start investigating things the government doesn't want you to know. 

The federal government knows that they have resources, and that it takes lots of money to fight them.

And of course there is also the FBI's seizure of Associated Press reporter's phone records in the name of ferreting out who leaked information about a potential terrorist plot.

The issue isn't a direct threat to The Press - but the result has been to chill sources, and without sources news can not be responsibly reported. 

So while The Press experiences some legal challenges, the practical effect is that people are no longer willing to talk to The Press for fear that the federal government is going to come after them by the flagrant disregard of the Constitutional rights of journalists.

What does this have to do with workers' compensation?

Maybe nothing. And, maybe - everything.

We're in our own little cocoon of the workers' compensation world. We fight about benefit rates, about reimbursement to vendors, about waiting periods and presumptions. We alter standards for causation, carve out separate rules for psychiatric issues, develop formulas for indemnity, research risk rates and actuarially determine which business classes deserve our underwriting attention.

But once the federal government encroaches on the rights of the people, and the rights of states to govern as they please, none of what we do in work comp will matter. States won't need to distinguish themselves, or build systems to fit their unique cultures, because the Feds will take over for us.

The increasing power of the federal government in all respects of our lives should be alarming to you. If you recall there have been attempts to expand the powers of the federal government in insurance regulation, there have been attempts to create a federal net for workers' compensation, and perhaps the most invasive federal involvement to present is the aggressiveness of the Centers for Medicare and Medicaid Services to go after Medicare funding from awards.

And don't forget that we now have federally mandated health insurance...

Is the federal government going to interfere with workers' compensation trends because they might fit the "profile" - going from west to east from California? It's been proposed before and if we don't keep a check on federal power then we may one day wake up to a rude, new, reality.

postscript: see this article on targeting general aviation and the growing police state by The Atlantic writer James Fallows: http://www.theatlantic.com/national/archive/2013/05/annals-of-the-security-state-even-more-airplane-stories/276239/.

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