Feinberg’s challenge: to determine the value of the lives lost on September 11th. Here family members show photos of loved ones who died at Ground Zero.
Photo by Mario Tama / Getty Images
In the new Netflix Film Worth, the main character Ken Feinberg, played by Michael Keaton, leads the fight for fair compensation for the victims of September 11th and their families. The real Kenneth Feinberg, the first “Special Master” of the federal government’s 9/11 Victims Compensation Fund, has an even more dramatic story to tell – of his efforts to value lost lives and convince loved ones of those who died to do so Taking money, as well as the lingering effects of the tragedy on his own life.
Feinberg, 75, a lawyer specializing in mediation and dispute resolution, oversaw the VCF for 33 months after the attacks, personally reviewing claims and determining the level of compensation, and helping shape the fund’s administrative structure. He worked entirely on a volunteer basis, hearing nearly 1,000 cases in person, and working hand in hand with the bereaved to settle their claims.
Feinberg spoke to Newsweek senior reporter David Brennan about the effort he describes as an “unqualified success” – albeit not without controversy. Below you will find excerpts from their conversation, which have been processed for reasons of space and clarity.
Q: Was the first iteration of the 9/11 Victim Compensation Fund a success?
The 9/11 Victim Compensation Fund – the original fund – was, I believe, an unconditional success. 97 percent of all families that have a loved one on airplanes, in the World Trade Center or in the Pentagon, volunteered, got paid, and signed a waiver promising not to go to court against the airlines or anyone else in the United States.
In dollars and cents, in statistics, in relation to the achievement of the desired goal congress, I think the fund was an unqualified success.
I don’t think you’ll ever see a fund like the 9/11 fund in America again. It was a one-off program designed to respond to an unprecedented American tragedy, a unique response to a uniquely American disaster.
Q. How do you rate the efforts over the years to expand and expand the Fund to include people with 9/11 related diseases, both first responders and civilians?
The fact that the fund has been extended over the long term is evidence of elementary fairness. If you compensated the 9/11 victims in 2001-2003 and there are still first responders showing physical injuries in 2021 – cancer and other diseases that did not occur in 2001 – then I can understand why the fund is extending it was to grant first aiders compensation for health services. So it’s really a tag-along program.
But compensation for victims of the 9/11 attacks is not a precedent. And in the past 20 years, there hasn’t been another 9/11 fund for another tragedy – the BP Deepwater Horizon oil rig explosion, Hurricane Katrina, which killed over 1,000 Louisiana residents in the floods. There was no 9/11 fund. There was no 9/11 fund following the terrorist attacks in the Boston Marathon bombings or the terrorist attacks at the Pulse nightclub in Orlando, Florida. It was not even thought of creating such a fund.
So I feel it appropriate to pause on the 20th anniversary to review the history and success of the 9/11 Fund while recognizing that in some ways it is a very un-American program. And a divergence in some ways, and I think the program is unlikely to be replicated.
Q: Why wasn’t a 9/11 Fund replicated for these other tragic events that struck many Americans?
Bad things happen to good people in America every day.
The 9/11 Fund, Right Public Order, Right At This Time, contradicts the political science of the American system. The American political philosophy of equal redress weighs against the idea that there should be special public – not private – taxpayer compensation for specific victims only. Everyone else is taking care of themselves. Get your lawyer, go to court with a judge and jury.
So I think this is a unique experiment that probably cannot be repeated.
Kenneth Feinberg, the first special master of the 9/11 Victims Compensation Fund
Tom Williams / CQ Call / Getty
Q: Did you expect that the drawdown of the original fund would be this high and that this first iteration of the VCF would be so successful?
I was not sure. The program was financially generous. Individual plaintiffs were paid as if they had gone to court and succeeded in a trial. We wanted to avoid such complaints. And we wanted to encourage all of these people to volunteer to get compensation much faster, with fewer delays and less inefficiency [than if they had gone to trial].
And it worked. Within 60 days of completing an application, people were paid millions of dollars; no lawyers, no trials, no judges and juries, no jury, no uncertainty about the verdict. Instead, they went into the program, filed an application, and were compensated with public money. It was very unique.
Q: Why did some families decline VCF compensation?
94 families who lost relatives to the terrorist attacks on September 11th decided to go to trial. You didn’t litigate to get more money.
You gave two reasons.
First: They believed their dead family member would want them to have a lawsuit to find out what really happened on September 11th who was sleeping at the counter of the government bureaucracy. I said to these lawyers and their clients, “This is ridiculous. You will not find out in a lawsuit. There will be privileges.” [invoked], Government delays. If you want answers, there is a special commission investigating the attacks. There is senate and house committees. This is where you will get answers, not in the adversarial environment of the courtroom.
Second, they said, our late family member would want to make airlines safer by filing a lawsuit to deter negligence. I said the airlines are already put off. Lawsuit won’t make airlines any safer.
They all settled their lawsuits about five years later. There has never been a trial for negligence or responsibility for the attacks in the United States. There was never an apology from the United States government for admitting wrongdoing in the events prior to the 9/11 attacks. To date there has never been an apology.
Q: How many people were denied their claims?
Around 7,300 applications were submitted to the fund. We paid about 5,300. The reason nearly all of the 2,000 were turned down is because they filed a lawsuit alleging mental harm, not physical harm. The law expressly forbade compensation for purely mental anguish, pain and suffering.
I didn’t have any problems with that because Congress couldn’t have been clearer. Second, you open the floodgates: “Mr. Feinberg, I live in Omaha, Nebraska CNN, and saw the planes hit. I can’t get out of bed. “
The moment you start compensating mental claims, you need all kinds of delays, written medical records, psychiatric records slowing down the program. [It] would have been a big challenge that I didn’t have to face.
Q: There have been some disputes from families who thought they should have been awarded more. Are you satisfied with the way these were handled?
I wouldn’t say happy. It had to be ensured, as Senator Ted Kennedy warned me, that 10 percent of applicants did not get 90 percent of the taxpayers’ money. Because of this, the law allowed me, at my discretion, to lower the highest honors and increase the lower honors.
The average payout in the 9/11 fund for one death was approximately $ 2 million, with the median being $ 1.6 million. I’ve tried to narrow the difference between the stockbroker or the banker versus the waiter or the firefighter. And I have largely succeeded.
Now the people at the top have filed a lawsuit. They sued me, saying I had no authority to arbitrarily cut their prices. The federal courts have reviewed the law and confirmed my discretion in compensating and adjusting death claim calculations. And it worked pretty well.
Q: Do you regret the way the process was handled?
Given the legal mandate that Congress has established, I am satisfied. If Congress had asked whether the Statute should be worded differently, I would have said yes.
I would have said if you want to help applicants, you should start cherishing life right away. Give the same amount of money to each family who has lost a loved one. The moment you legally require that each applicant receive a different amount of money, you will be promoting the very division among applicants that you want to avoid.
“Mr. Feinberg, you gave me $ 3 million tax free. But wait a minute, you gave my neighbor $ 4 million. What do you have against my dead wife? has declined in value by $ 1 million compared to my neighbor. “
I’m trying to explain, “Mr. Jones, that’s because your late neighbor made more money than your wife. That’s why, just as the American legal system takes it into account.”
Well, that didn’t get me anywhere. Nobody wanted to hear that, it’s a technical-legal explanation. I got to know a fascinating aspect of human nature. People who complained to me didn’t complain because their compensation was too low, they very rarely did. They complained because the neighbor’s compensation was higher.
Everyone counts other people’s money. I learned that.
And at a very emotional time as the full effects of the 9/11 attacks were gradually becoming known, people were very emotional and very, very vulnerable. It made a huge difference.
Q: How heavy has the responsibility burdened you?
When you compute a dollar grant for 5,300 dead and injured victims and invite any victim who asks to attend a conference privately and you listen to family member after family member, injured victim after injured victim explain the horror of what they went through … if you can get three hours of sleep, consider yourself lucky. It was all exhausting just trying to get through the day.
I never remembered these experiences. Not a day goes by – it doesn’t have to be an anniversary – that you remember some of the horror stories at some point while working on a case. You try to carry on as best you can.