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What Price Suffering--or Silence?

BY RUSS WELLEN
10.12.2005 | BOOKS

What is Life Worth?
The Unprecedented Effort to Compensate the Victims of 9/11

by Kenneth R. Feinberg
Public Affairs, 2005
217 pages, $24.00

As a title, How Much is Life Worth? resounds. However, the subtitle, The Unprecedented Effort to Compensate the Victims of 9/11, confounds. Obviously the effort was unprecedented: There had never been victims of 9/11 before. Meanwhile, aside from the injured, how can the victims be compensated if they're dead? Or are family members the victims in question here? It might seem trivial, but this give-with-one-hand, take-away-with-the-other approach characterizes the entire book.

Shortly after 9/11, Congress signed into law the Air Transportation Safety and System Stabilization Act to help keep airlines from going bankrupt by limiting their liability in the attacks. With their high-powered legal teams, it wasn't losing lawsuits that they feared. Their concern was that lingering cases would keep the specter of terror in the forefront of passenger's minds, hurt business, and deflate stocks. The September 11th Victim Compensation Fund of 2001 was then created, in part because of pressure by the Association of Trial Lawyers of America, to fill the gap left by the lack of recourse to lawsuits.

For Kenneth Feinberg, all roads led to the fund. A former counsel to Senator Kennedy, he also worked in the Ford administration and helped draft the Foreign Intelligence Surveillance Act. He was a protege of federal judge Jack Weinstein, who appointed Feinberg to his first mediation case, the 1984 Agent Orange trial. But when Feinberg glosses over subsequent cases on which he worked, like asbestos, Dalkon Shield, heart valve, and breast implant, one wonders if he fears that their controversial nature might undermine the place in history he's seeking to cement.

Another perspective on Kenneth Feinberg is provided by Sander Hicks in his new book, The Big Wedding: 9/11, the Whistle-Blowers, and the Cover-Up. Respected investigative journalist Greg Palast described an investigation of his into the construction of Long Island's Shoreham Nuclear Plant, which convinced Judge Weinstein that LILCO had defrauded the public. Just as the judge was about to sentence the utility to a $4.8 million fine, Feinberg, acting as a liaison to Governor Cuomo, intervened to slash the fine.

As we can see, on the one hand Feinberg doesn't always work in the public interest. On the other, he petitions an old friend, Senator Chuck Hagel, for help securing the job of special master to the September 11th Victim Compensation Fund. Excited by the chance to be part of history and serve as judge and jury unto himself, he didn't foresee that would also make him the target of 9/11 families' anger and frustration.

Congress, meanwhile, was only too happy to pass the buck to Feinberg, who was left to explain why only this particular group of claimants was due compensation. The families of victims of the Oklahoma City and Nairobi bombings, as well as the first World Trade Center, USS Cole, and anthrax attacks asked, "What about us?" 9/11 was ultimately deemed unique because, when it comes to the "scarring of the American character," in Feinberg's words, it ranks with Pearl Harbor and the Kennedy assassination.

A second dilemma was created by the Social Security formula that the fund followed. In other words, the economic circumstances of each 9/11 victim determined the compensation paid to that victim's family. It's not hard to imagine the outcry from the families of firefighters and policemen when they discovered the compensation for stockbrokers might quadruple theirs.

In anticipation of a sky's-the-limit settlement, the traumatized widow of a trader actually said to Feinberg: "So we went to an architectural firm and came up with the plans that basically was our self-contained oasis." But when the families of the rich learned of Feinberg's commitment to balance out the low- and high-end payments, they set up a hue and a cry as well.

As a future model, Feinberg suggests workers' compensation statutes. They provide uniform payments, thus minimizing envy among claimants and eliminating the need for an army of accountants and statisticians.

A third problem confronting Feinberg was calculating noneconomic loss: the pain and suffering of both the victim and his or her family. This resulted in appeals such as one by a widow whose husband had called numerous times while trapped. "I am entitled to more noneconomic loss than a wife whose husband was killed instantly," she maintained. Feinberg mandated the same payment for all: $250,000.

The fourth volatile issue was exactly which family member should be designated to apply to the fund: spouse, parent -- what about those engaged to a victim? Claiming he had neither the time nor wisdom to referee battles between family members, Feinberg relied instead on the law in the victim's state.

At first, as portrayed on Sixty Minutes, he used his usual businesslike approach and came off as callous to the families in group meetings. "Whatever award we receive," Feinberg was told by one family member, "will obviously never come close to the worth of our son... victim's compensation is ghoulish and repulsive." Adjusting his tone at individual hearings, many of which he personally conducted, softened "the perception that anonymous fund functionaries merely crunched numbers without taking into account individual family circumstances."

Informing families' demands, Feinberg writes, were the refrains: Why did it happen? Why us? They not only brought memorabilia from the victim's life to the hearings, they played him recordings of those awful final phone calls. Feinberg was struck by the number of claimants who expressed a determination to prevail against the terrorists.

On the other hand were those suspicious that the true purpose of the fund was to provide hush money to keep families from investigating the causes of 9/11. Feinberg referred them to the upcoming 9/11 Commission, failing, in hindsight, to note that it would have availed them nothing.

Though Feinberg doesn't mention her, one widow, Ellen Mariani, is one of only three percent of victim's family members to refuse the fund. In fact, she's suing the administration under the RICO Act. According to Sander Hicks, Feinberg wrote a letter to Mariani's previous lawyer, a colleague of his, and urged him to bring Mariani into the fund.

No matter what Feinberg's motivation was, Mariani included him as a defendant in her suit. She charged that he urged 9/11 families to join the fund to "prevent any questions of liability, gross or criminal negligence on the part of Defendant Bush and his administration for failing to act and prevent the '9/11' attacks."

Whatever the truth of that, any small part Feinberg played in stifling inquiries -- especially compared to the 9/11 Commission's effectiveness in that regard -- can, in all fairness, be overlooked in view of the monumental service he provided.

Making a virtue of transparency, Feinberg includes records of statistics and expenses in the book's appendix. If you can see your way clear to finding a financial table dramatic, scroll down to the last line of "Costs Associated with the Administration of [the fund]": Pro bono attorneys and hearing officers -- 0.00. That he and his staff sought no compensation for compensating others goes a long way to fending off criticism.

Ultimately, ninety-seven percent of the victim's families applied to the fund and 2,880 individuals received an average of two million dollars. And, unlike unemployment compensation and Social Security, it was completely tax-free.

Would that his book were the same "stunning success" Steinberg deems the fund. His breezy, shallow approach to the workings of the government undermines his credibility. When he expresses concern that Ashcroft might not pick a Kennedy associate like him as special master, Senator Hagel replied, "The last thing you want is a buddy of the president's in that job."

If that convinced Feinberg the administration had qualms about hiring a crony of the president, he's naive. And when he remarks about Ashcroft, "I developed a genuine fondness and respect for him," he's either foolish or genuinely doesn't care that it makes him look like one of those cronies.

Another flaw is frequent repetition, especially of the premises on which the fund was founded. One can't help but wonder how a powerful mind like Feinberg's, which not only renders complex legal questions understandable but invites the reader to grapple with them, could have missed this. Why wasn't a historic record like this book given more than a light copy-edit?

Still, while What is Life Worth? may be hastily written and in a voice that fails to inspire trust, the author has certainly earned a nation's thanks.

About the Author
Russ Wellen is an editor at Freezerbox who specializes in foreign affairs and nuclear deproliferation.
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