For the JC July 2021 by Jenni Frazer
Few of us — and we should all be grateful for this — are called on to make moral choices in the public arena. There are judges, of course, put in place by society to make rulings over civil and criminal behaviour; and there is the apparatus that brings people to the courts.
But even the judges, except perhaps those in the family courts, are rarely asked to make decisions which have life-changing results. (Criminals, by and large, know what they have let themselves in for.)
But one man who knows all too well the meaning of the minefield of legal actions is Kenneth Feinberg, who was appointed Special Master by the American government, to compensate the families of the victims of 9/11.
In his extraordinary book, What Is Life Worth, and again in a rather Hollywood-ised version of what took place, a Netflix film, Worth, Feinberg lays out the appalling daily work of the 9/11 fund. Over a period of 33 months, and bearing in mind that there were 2,983 people killed in the tragedy, and a further 2,400 physically injured, Feinberg and his team gave out a staggering $7.1 billion.
It’s one of those snapshot moments that defines a generation: everyone who lived through it can remember where they were and what they were doing when the news came through about four simultaneous attacks which took place on September 11, 2001. On that day, 19 militants associated with the Islamic extremist group al Qaeda hijacked four planes and carried out suicide attacks against targets in the United States. Two of the planes were flown into the Twin Towers of the World Trade Centre in New York, a third plane hit the Pentagon in Washington, DC, and the fourth plane crashed in a field in Shanksville, Pennsylvania.
“The problem with the 9/11 fund”, says Feinberg, in his distinctive Massachusetts drawl, “is not really legal or calculating the value of lives. That’s done every day in America, in every court, every city, town, village, hamlet. The real problem with administering funds for the tragically dead and injured is the emotion, the emotional overhang of dealing with individual survivors, family members, physically injured victims of a random terrorist attack. That emotion is debilitating. You never get over it. You never forget it. One reason that I wrote the book was catharsis, to let everybody know that when you administer a fund such as this, you are not just dealing with statistics. You are dealing with real people — and the anger, the pathos, the frustration, the disappointment, the uncertainty, drives the emotional context of administering such a fund”.
Feinberg, as he makes clear in his book — which is being republished to mark the 20th anniversary of 9/11 (the film launch is also tied to the anniversary) — did not come out of nowhere to become the Special Master for the fund. He was already a successful Washington lawyer who had been chief of staff for Senator Edward Kennedy, and, returning to private practice, had begun an unlooked for, but rewarding career in mediation.
He started with the hottest of hot potatoes — the Agent Orange cases. Thousands of Vietnam veterans were, apparently fruitlessly, stuck in the legal system as they attempted action against a number of chemical companies. The companies were the manufacturers of a herbicide which had allegedly caused a variety of troubling injuries and medical conditions. Many of the cases had been dragging through the courts for six years by the time they were consolidated into one massive class action and handed over to Feinberg. He writes: “I spent the next six weeks working with the two doses seven days a week, threatening cajoling, explaining, enticing, promising”.
And eventually, a settlement was reached: modest by today’s standards, But it kickstarted Feinberg’s career in mediation; so by the time, on September 22, 2001, a compensation fund was announced for the victims of 9/11, he knew that he was the man for the job. He’d even opened his own law firm dedicated exclusively to the resolution of complex issues.
He applied for the role of Special Master, a post few others were keen on. Cleverly, he said he would do the work for free, because he anticipated recriminations from grieving families about being a fat-cat, well-compensated lawyer. What he does not voice is concern about being abused as a fat-cat Jewish lawyer, though he makes no secret of his Jewish identity in the book and even talks about consulting William Hamilton, the rabbi at Boston’s Temple Kehillat Israel, after Feinberg had come to the conclusion that when distributing the money, “being fair was more important than being fast”.
Perhaps — as is suggested in the film, in which Feinberg is played by Michael Keaton of Batman fame — he thought the 9/11 fund was going to follow a similar compensation arc to some of his other mediation projects. Hold a mass meeting with the claimants, explain the parameters of how the fund will work, express sympathy, and begin the distribution.
Not for 9/11. Not least of Feinberg’s problems was to make the Solomonic decision about compensation awarded to the family of a dishwasher or a janitor who had toiled at the foot of the Twin Towers, compared with money claimed by the families of those who worked in the topmost floors — the hedge-funders, the stockbrokers. He had limited discretion, given to him by Congress, to adjust upwards the compensation offered to the poorest families, but that meant adjusting downwards the money given to the high-earners.
Part of the thinking behind the establishment of the 9/11 fund was the massive pressure put on Congress that the victims’ families should give up their right to take the airlines, or the World Trade Centre, or the Pentagon, to court. Feinberg’s additional mission was to convince as many families as possible — including 52 families in Britain, and four in Israel — not to sue. The airlines argued that there would be a devastating effect on the economy if they were forced into court, and in the end Feinberg reports that “97 per cent of families who lost a loved one on 9/11 voluntarily signed up with the fund, and only 94 individuals opted out in order to litigate against the airlines”.
Congress, says Feinberg, said to him: “Pay whatever you have to pay. We do not want 9/11 victims flooding the courts with lawsuits”.
So he ploughed on, meeting every day, from early in the morning until late at night, the families or survivors of the attacks, listening to their stories about their losses, their hopes and dreams. And he learned, he says, never to utter phrases such as “I understand” or “I know what you are going through”, because he could not possibly; and always to have a box of tissues ready to hand for the inevitable tears in almost every case.
The highest award given to one person — a survivor, with third degree burns to 80 per cent of her body — was $8.1 million. Feinberg, who met this woman, has no idea whether she is still alive, as “I have studiously avoided any type of reunion with any of the families. Not my place:inappropriate.”
He’s frequently been asked what it was about his secular and Jewish upbringing that prepared him for “this unfathomable task”. On his secular side, Feinberg says, he was greatly influenced by President Kennedy, “who talked about public service and giving back to the community. I also benefited tremendously from my Jewish background. I grew up in Brockton, Massachusetts, after World War Two, where there was a coherent and strong Jewish community, with four different synagogues; a community that was very much of the belief, especially after the Holocaust, that there was a very optimistic time for Jews. You could go as far as you wanted, raise yourself up, with the support of your fellow Jews”.
The other things which helped him, he says, “were the Jewish rituals surrounding death, and the knowledge that no individual Jew grieves alone. The community, in the form of the shiva, guarding the body before burial, graveside service which is communal — your grief has the support and the encouragement of fellow Jews. You will be uplifted somewhat in your grief by the fact that other Jews rally round you, there to support you in your darkest hours. I took that and used it very effectively in 9/11, by encouraging families to come and see me. Let’s sit around the table and talk about your loved one, about the serendipitous nature of life and death, and provide you with one less thing to worry about — financial uncertainty”.
Feinberg presided over 961 separate sessions himself out of the nearly 6,000 applicants to the fund. When, inevitably there were days when he thought “I simply cannot face seeing anyone else”, he would take a break, go for a walk, watch children playing, eat an ice cream. In the evenings he became a passionate opera goer — very much reflected in the feature film — and relaxed with his warm and loving family — he and his wife have four adult children.
In private, Feinberg admits, after hearing some of the terrible stories of the last words of the 9/11 victims, “I would sob in front of a mirror. The randomness of death: there but for fortune. You sob in private, never in public. The families want you as a rock, providing certainty, where there is very little certainty”.
What Is Life Worth? a PublicAffairs publication, is out in paperback at £9.99 on September 9 2021. The Netflix film, Worth, starring Michael Keaton, Stanley Tucci and Talia Balsam, is also screening from that date.