‘Divisive’ calculus after 9/11

Feinberg orchestrated payouts following terror attacks.

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It was the deadliest, most catastrophic terrorist attack in history — three of four hijacked jetliners used as missiles against prominent buildings in New York City and the nation’s capital, Washington, D.C. On the morning of September 11, 2001, the planes took off from Massachusetts, New Jersey, and Virginia airports, fully laden with fuel for transcontinental flights. Terrorists seized control shortly after each takeoff. Two planes would slam into the towers of the World Trade Center and implode them. A third plane would target and penetrate the Pentagon. A fourth plane would auger into the Pennsylvania countryside after brave passengers and crew attacked the hijackers and thwarted what was believed to be an attack on the U.S. Capitol.

The lives lost in and around the towers, at the Pentagon, and inside the planes amounted to 2,751 at the time of attacks. The number has since grown by over 200 because people have succumbed to illnesses related to the attacks. 

Shortly after the terror attacks, seasonal Vineyard resident Ken Feinberg, a Brockton native, was tapped by Attorney General John Ashcroft to put together special congressional compensation packages for about 5,500 families whose loved ones had been killed or injured. Between 2001 and 2003, Feinberg and his legal team gave out $7.1 billion to those families through the September 11 Victim Compensation Fund. Feinberg told The Times that two motivations were at play — aside from a general desire to help people, there was fear at the time that widespread litigation by the victim’s families would exacerbate the damage wrought by the terrorists.

“I think there would have been hundreds, maybe thousands of lawsuits that might have driven the airlines into bankruptcy, maybe injured the entire economy,” Feinberg said during a telephone interview. “So there was a real motivation on the part of Congress to prevent an economic cataclysm by setting up an alternative mechanism. At the same time, I must say, Congress could have done that without providing such generosity. I mean, there was certainly a patriotic element here with the creation of the 9/11 Fund. It was not just dollars and cents.”

Feinberg made it clear that doling out money wasn’t as easy as it might appear, especially selling the idea to some of the victims’ families. There was no uniform payout for death or injury, and to join the compensation fund, people had to limit their rights.

“The 9/11 Fund was all public taxpayer money, and if you entered the fund voluntarily, you had to agree, in writing, not to sue the airlines, or the World Trade Center, or MassPort, or the security guard companies,” Feinberg said. “It was a tradeoff. And that tradeoff meant that every single individual would receive a different amount of money. Because you have to convince bankers and stockbrokers to enter the fund by incentivizing them with generosity. Waiters, busboys, firemen, cops, soldiers, you had to incentivize them, but at dollars much less, so you got into this very divisive issue — who gets what?”

What that worked out to was about $2 million (tax-free) per claim for a death, and about $400,000 per claim for an injury. The actual amounts people got were confidential, he said. If you had life insurance, that changed the calculus. 

“If you were going to get an average of $2 million from me, from the fund, but you had $1 million life insurance, that would net you a $1 million award,” he said. “Of course I had discretion, and in some cases I diminished the value of that life insurance and raised the award in order to incentivize people to come into the program voluntarily.”

Feinberg said it was irrelevant whether a victim was an American citizen or not. “We paid 13 families of undocumented illegal workers who died in the World Trade Center,” he said. “We paid compensation to families of physically injured victims from 65 foreign countries who were mostly at the Pentagon, who were killed or injured.”

Feinberg described the fund as a positive achievement. “It was a success,” he said. “Ninety-seven percent of all the families that lost a loved one on 9/11 entered the fund voluntarily. Only 94 people opted out to litigate, and they all settled their cases five years later. There was never a trial.”

Feinberg tipped his hat to former Defense Secretary Chuck Hagel, a senator during 9/11, Ashcroft, and Sen. Edward Kennedy (whom Feinberg used to work for). “Senator Kennedy was one of the senators who promoted the idea of the fund,” he said. 

Kennedy, along with Hagel, “a Republican from Nebraska,” lobbied the Bush Administration to have Feinberg run the fund under the title of “special master,” he said. Feinberg made note of the bipartisan nature of the efforts by Hagel and Kennedy, a Democrat. 

Feinberg reserved the most praise for Ashcroft. “I will always, forever, be in the attorney general’s debt, because John Ashcroft was my greatest supporter,” he said. “He hired me to do this job and backed me up during my tenure. And without his support, the program would have never been as successful as it turned out to be.”

Feinberg went on to administer a number of other compensation funds, including a fund for the Sandy Hook Elementary School shootings and a fund for the Boston Marathon bombing. 

“I designed and administered the Boston Marathon Bombing Fund … at the request of Mayor Menino and Governor Patrick,” he said. 

The Marathon Bombing fund, he said, contrasted significantly with the September 11 Victim Compensation Fund.

“The Boston Marathon was private[ly] donated money — nothing to do with the federal government,” he said. “It did not require that you waive your right to sue. It was a gift. You could take the money and hire a lawyer, if you wanted to.”

Another difference was uniformness in payout. The Boston Marathon and funds for Sandy Hook and the Pulse nightclub shootings, he said, treated “all lives as equal,” and weren’t based on economic dynamics.

“These were gift funds that allowed me to draft a program that treated everyone the same. And that’s much less divisive,” he said. 

The legislation for the 9/11 fund Feinberg steered had a 2003 end date. However, more congressional funding arose years later to address ailments caused by post-attack conditions like pollution at Ground Zero, the vast ruins of the World Trade Center buildings, where firefighters and other search and recovery workers toiled. Though originally declared as a place where the air was safe to breathe by former Environmental Protection Agency (EPA) Administrator Christine Todd Whitman, Ground Zero was later found to harbor a litany of toxins from asbestos to PCBs. A 2011 Scientific American article noted the EPA would eventually find levels of dioxin from smoldering debris at Ground Zero “’were the highest ambient measurements of dioxin ever recorded anywhere in the world,’ levels at least 100 times higher than those found downwind of a garbage incinerator …” 

“The original fund expired by statute in December of 2003,” Feinberg said. “The Zadroga Act, focusing on long-term latent health defects, was enacted in 2011, and was reauthorized.” Feinberg’s struggles and eventual triumph at the helm of the September 11 Victim Compensation Fund has been captured in the recent Netflix movie “Worth,” starring Michael Keaton.

In a text message, Feinberg said, “despite some dramatic license,” the portrayal in “Worth” is accurate.

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