Religion & Ethics NewsWeekly . INTERVIEW . Kenneth Feinberg . September 2

Read more of Bob Abernethy's August 29, 2005 interview with lawyer Kenneth Feinberg about the 9/11 Victim Compensation Fund:

Q: Let's start with what Congress intended and why they did what they did. What were they trying to accomplish?

Photo of KENNETH FEINBERG

A: I think there were two objectives. One was to divert families who lost loved ones, people who were injured on 9/11, from suing the airlines, the World Trade Center, Mass port, Port Authority, Boeing, the aircraft manufacturers. That was one goal and objective. And the other objective, I think, was to express community solidarity on the part of the nation for these victims of the historically unprecedented disaster.

Q: They left much up to whoever was going to be administering the fund.

A: Time was of the essence. Congress created this unique program 11 days after 9/11, in a groundswell of emotion and determination to react in a positive, cohesive way on the part of the American people.

Q: Tell me what they left up to you -- important decisions about what would be right, what would be fair.

A: That's correct. There were two major areas they delegated to one-person authority. One [was] calculating individual loss. Congress delegated to me that requirement to design the program that would result in individual calculations for over 5,000 people. And the second area where they were totally absent of any direction: Who's eligible? If a family lost a loved one on 9/11, who files the claim? The surviving husband, children, the fiancée, the same-sex partner? Congress did not mention or give one indication how that would get resolved.

Q: Briefly, what was the formula that you settled on?

A: The formula for calculating awards, the generic formula was laid out in a statute, and it was very controversial. It required that I consider for each individual family the lost income suffered by the family as the result of the death of the wage earner. That automatically guaranteed a divisive emotional fight over the stockbroker or the bond trader and his or her family receiving more than the fireman, the policeman, the military sergeant. But that's what the statute said.

Q: There was something on top of that for emotional suffering?

A: That's right. Economic loss plus noneconomic loss or suffering minus collateral source of income like life insurance. Then finally, after all that is done, "the special master shall exercise discretion to see that justice is done." Well, thank you very much, Congress, for that wise delegation of authority to one person.

Q: What did you think was just?

A: Well, "justice" is a very difficult word to use in the context of compensating people who suffered as a result of the 9/11 attacks. There is no justice as far as the families were concerned. What we tried to do was implement the congressional directive. Let's calculate what the person would have likely earned -- a very difficult thing to do. Juries do it, but it's very difficult to do. Add an amount, the same for everybody, [for] pain and suffering. I wasn't going to get into that and exercise my discretion at the end of the day that would try and resemble some type of fair allocation.

Q: But you had very much in mind not to let the gap be too great between the richest award and the least.

A: I think that's right, and I think that's what Congress intended. Although Congress required me to consider economic loss, I did feel that, as Senator Kennedy put it, 15 percent of the claimants should not receive 85 percent of the taxpayers' money. So I tried to bring down huge awards by the calculations and exercising discretion, and bring up the bottom awards so that there would be some limited difference in the size of the awards.

Q: How many people? How much money? What was the average? What was the richest, what was the least of those numbers?

A: Fifty-three hundred people were compensated. The average death claim was about $2 million tax free. The average physical injury claim was about $400,000 tax free. The largest award we entered was about $8.6 million, to a burn victim who survived the World Trade Center with third-degree burns over 85 percent of his body. The least amount we gave out was about $500 to a [person who suffered a] broken finger at the World Trade Center.

Q: And the total amount of money that was paid out?

A: Over $70 billion [of] taxpayers' money. This had nothing to do with private charity. This was all taxpayer[s'] money from the U.S. Treasury.

Q: You held a lot of public hearings, and you also saw a lot of people individually. Talk about how the process quickly became a venue for emotional expressions, many of them addressed directly to you.

A: Well, that's right. Anytime you pass a law like this - 11 days after a horror like 9/11 -- you can anticipate an emotional response. I would meet with families and start discussing this very generous program and occasionally I would get a response like, "Mr. Feinberg, you're here talking about money. They haven't even returned my wife's body yet." "Mr. Feinberg, you're here telling me that I'm going to receive $2 million. Yesterday the medical examiner provided me a left arm of my wife. That's all that's left." The emotional grief and frustration about life's unfairness at the very beginning of the program overwhelmed me and everybody else. Over time, over the 33 months of the program, that emotional heat dissipated, and 97 percent of the families ultimately entered the program.

Q: But at the beginning, were you surprised at the accusations of your being callous?

A: I was. I miscalculated, yes. I didn't fully appreciate the degree of the emotions that would accompany a very generous, unprecedented program. Seven billion dollars is extremely unique in the history of this country. I didn't anticipate the degree of anger, invective, frustration at life's unfairness: "I've lost my wife; I've lost my son." Frustration: "Why me, Mr. Feinberg? My wife was a saint. She was a wonderful woman. Why did God take her? Why? Why? Explain it to me." Then there was anger directed at me as the visible representative of the United States: "Mr. Feinberg, you're here to give me a check. That's hush money. The fact is that your government is responsible for that. It could have been prevented, and now you're here to quiet me and prevent me from suing." There was a good deal of that at the outset.

Q: You've spoken about love, too.

A: Family after family would come to me sobbing to express to me the love that they felt for the lost or the injured, and [there was] a groundswell of that during the course of the hearings, yes.

Q: When somebody came to you and said, "Why me? Why my family? Why did this happen? Why did God permit this to happen?" -- what [did] you say?

A: Very hollow responses to questions like that from a stranger. Very hollow: "Mrs. Jones, who can explain this horror? It can't be explained. It will never be fully understood. Who knows why this occurred? But at least I'm here to demonstrate the support of the American people towards your plight and hope that by taking this money you will have one less thing to worry about." And I constantly reminded the families that I could never stand in their shoes. I could empathize, but I could never fully appreciate what it was that they were going through.

Q: What did they tell you and what did you observe about the effects of what happened on their faith, on their belief in God?

A: [It was] very interesting. I would say half the families reacted to 9/11 with a reaffirmation of their religion -- Catholic, Protestant, Jew, Muslim, it didn't matter. I'd say half the families would explain to me how this reinforced their belief. The other half came to me and in various ways articulated how they would never set foot in a church again, that there is no God -- [that] no deity would ever allow some horror like this to happen, and that they turned away from religion as a source of help.

Q: Do they keep in touch with you? Do you have any sense of whether those same feelings continued?

A: I don't know. I don't keep in touch with them. I don't think that I will see them again. I hope I won't see them again. I believe this program was designed in part, at least, to close the door on this chapter. I'm not a believer in this term "psychological closure," but I do think that it's ill advised for me to reach out to these people again or to suggest a meeting. I don't think that would be useful.

Q: One of the toughest things must have been the victims' remains that were not produced. People had to live with the idea that their loved ones were in a landfill somewhere.

A: I was stunned by this. In my book [WHAT IS LIFE WORTH? THE UNPRECEDENTED EFFORT TO COMPENSATE THE VICTIMS OF 9/11] I mention that the single greatest source of grief among survivors' families occurred in situations where the family came to me sobbing that there was no body, there were no remains to be buried -- that the absence of the victim to be placed in a formal burial proceeding was the most egregious outrage of all the 9/11 events. I was surprised at the pathos associated with the absence of remains.

Q: The process went on, as you said, for 33 months. How did all that affect you, change your attitude, change your priorities?

A: Well, it did. You'd like to think of yourself as a lawyer and as a professional, but I must say, this is unique over 33 months. As soon as it was over, I downsized my law firm substantially. I don't practice law the way I used to. I'm a much better listener; I'm much more fatalistic. I must say, one thing I learned about 9/11 when these families came to see me -- be careful about planning too far in the future. Life has a way of throwing curve balls at everybody -- the unanticipated, the unforeseen, the unknown -- and I don't think I'll plan much beyond two weeks going forward, because you never know. [September 11] was a beautiful day -- perfunctory good-byes, breakfast, saying good-bye to your wife, your children, your husband -- [and] they never [came] home.

Q: You also said that you hoped it made you more compassionate.

A: I think that's right. I think I'm a better listener, and I think that you become much more empathetic to the downtrodden, the victims of an unforeseen misfortune. Yes, I think that's true.

Q: Was the process over which you presided and the process Congress had intended, in your judgment, a pretty complete success?

A: I think in everybody's judgment. I must say that the statistics alone really say that the program was a success. Ninety-seven percent of all eligible families took advantage of the program. Somewhat to my surprise, [there was] hardly a ripple of criticism from the American people who, to the contrary, were extremely supportive of the program. No, I think, much to the surprise of Congress and some of the members of the administration, the program turned out to be an unqualified success.

Q: Yet you have said that in another tragedy like that, if there were consideration of another program like this to compensate victims, you would be against it.

A: Yeah, I think it's not a good idea to replicate it. This program must be viewed, I think, with a historical lens. The program was a unique response to an unprecedented tragedy. The only rival for 9/11 in U.S. history is the Civil War and Pearl Harbor. I think that this program was a success. It was a good idea, and it was a unique response to a very unique event. Next time, as I say in the book, I wouldn't do this. And if Congress decides to do something next time, I think a better way would be simply to give every eligible claimant a flat, same amount and not ask one person to play Solomon and try to figure out different amounts for different victims.

Q: And why is that? To avoid the jealousy and division that came because I'm getting one thing and you're getting more?

A: Primarily that. To avoid divisiveness among the very people you're trying to help. But also, it's inefficient. It takes a lot of time, looking in a murky crystal ball. Juries do it every day in every village and city in the country. They do it collectively, out of the public eye, based on local mores and norms. Asking one person to try to calculate lost income, I think, is not a good idea. It's not sound.

Q: Is there a concern about taking away the right to sue?

A: I think there is. I must say there is a concern. I told approximately 85 people who decided not to come into the program and instead decided to sue that I thought that was ill advised. I still think, to this day, that they won't win those lawsuits. They can't win those lawsuits. There is no liability that lies with the airlines or the World Trade Center. At least I don't think so. But taking away that right to sue, which is such an inherent part of American culture, heritage, is not an easy thing to do.

Q: There are some philosophical reasons I found interesting, too. You don't want the government to become the insurer of last resort. You don't want to take away personal responsibility that everybody has to look after his own life in good times and bad.

A: I mean, where does it stop? If the government suddenly becomes an insurer, why limit it to 9/11? How about Oklahoma City? Those victims are certainly as worthy. What about the U.S.S. COLE or the first World Trade Center [bombing] in 1993? Why aren't they eligible? And why stop with terrorism? The victim of a hit-and-run accident, the fireman's widow who laments the fact that her husband died a hero trying to save a toddler from a burning building, an individual who died after saving three little girls from drowning in the Mississippi River. Why aren't all of those people entitled to public compensation? I just think it runs counter to the American philosophy, the American character, and I'm very dubious that Congress would replicate this program in another context.

Q: But more than just these special events you talk about, there's an underlying idea about responsibility, you say.

A: I think that part of the American character is the independence of each individual to make choices -- the road not taken. Sometimes the choices work; sometimes they don't work. Self-reliance is a very important asset of the American character -- individual dignity. Now, people may be not at all to blame for life's tragedies, but I don't think that part of the American heritage is [that] when a person is a victim, through no fault of her own, that limited government should somehow step in and provide that person not the bare essentials -- a mortgage payment, a car payment, health care -- [but] $2 million tax free. I think there's no explanation for that other than it's an aberration from the way Americans generally think.

Q: You said in the process that you learned something about what you called the soul of America.

A: This was the Marshall Plan of America. Just as Americans stepped up in 1945 to bring help to the European victims of World War II, this was the best of America -- the American character, generosity, compassion, fatalism. The American people, I think, there but for fortune -- it could have been Mrs. Jones or Mr. Smith as well as those who died. And I just think the American people are always willing to step up as a society to come to the rescue of those less fortunate. It's part of the American way, and I think it proof positive, the 9/11 fund.

Q: Yet you don't want it repeated.

A: I don't think it should be repeated because I think that the response that the American people made here was a rather unique response to the circumstances. And if it becomes an expectation, an entitlement, something guaranteed -- I just think that the American people think otherwise. That's my view, but that's a layman's view. I have no hard data other than my history major that that leads me to that conclusion.

Q: Would you do it again?

A: Of course I'd do it again, God forbid. I would do it again. I think millions of American people -- I think you would do it if asked, and I'm hard pressed to think that what I did was something unique to me. After 9/11, it's an interesting fact the American people sometimes don't appreciate $2.7 billion in private, unsolicited charity was given by the American people -- checks, dollar bills sent to various charities like the Red Cross. Unprecedented. To me there are millions of Americans who would do what I did pro bono, without compensation, in the interest of serving the people of the United States.

Q: You have used the phrase "vengeful philanthropy." Would you tell me what it means?

A: That phrase was coined by Jack Rosenthal of The NEW YORK TIMES Foundation, and Jack [was pointing out] following 9/11 the $2.7 billion in private charitable giving, unsolicited, provided by the American people for the victims of 9/11. The "vengeful philanthropy," I think, can be found in the fact that the American people "voluntarily," in effect, were saying to the terrorists, "If you think this will divide America, if you think this will bring America to its knees, you are wrong. We'll show you." Over $2.5 billion -- unprecedented.

Q: This was on top of your awards.

A: [It had] nothing to do with my awards. That's absolutely right. That's on top of my awards given to fireman widows, police widows, victims of all different classes, stations, and this was, in effect, the way the American people expressed their solidarity [with] the victims.

Q: But the situation of the firefighter's wife and somebody else getting different amounts?

A: Very divisive. One fireman's widow would say, "I'm getting $825,000. My next door neighbor, a widow of a fireman, is getting $1.2 million. You're denigrating the memory of my husband. Why?" I tried to explain that under the statute I was required to deduct from an award life insurance, pension, 401(k)s, workman's compensation, other sources of death income. But it didn't sit well with the victims.

Q: And the people who, despite everything you said, would not come into the program?

A: There were two groups. There were about 85 people who, despite my urging, decided, as was their right under the statue, to litigate against the airlines, the World Trade Center, etc. That's their right. There were 85. That's all. And that didn't trouble me so much because they made a calculated decision to sue. Then there were seven families that did nothing. They didn't come into my program. They didn't sue. They sat. The statute expired. They never lifted a finger and made any decision. Now I went and saw those families and learned a lot about clinical depression -- people [who] were in such grief they were paralyzed: "Mr. Feinberg, you're here to give me $2 million. Those are just numbers. Leave the application on the kitchen table. I lost my son. He was my life. He's gone, and you're here to give me dollars and cents and calculations and numbers. Thank you for coming. Leave the application." There were seven people who never filed anything with the fund, and to this day they haven't sued either.

Q: In some cases, ugly situations developed.

A: That's right. If there was a will that survived the victim, we followed the will. But only about 20 percent of those who died on 9/11 had wills. So we basically had to apply the law of each victim's state. In the event that somebody dies in an automobile crash or falls off a ladder with no will, there's a priority, a hierarchy of who takes. Fiancée's don't take; they're ineligible. I worked out most of the decisions [with] the different parents and the fiancées. There are about two dozen. The tension is so great, the animosity so pronounced that I simply deposited the fund's award into the court, and they are now litigating in different state courts over who's going to get that money. Most of them I worked out. Congress was silent on the issue. I had to resolve who constituted an eligible claimant.

Q: What was the worst of the disagreements of that kind?

A: In my book I mention that there was one disagreement I remember. The following people all made a claim on behalf of the dead victim: the current wife, the former wife, a girlfriend, children by the first marriage, children by the second marriage, an illegitimate child from the girlfriend, two parents of the victim. All of them in one hearing came to see me saying that they all should [have] priority on the $2.5 million. I listened to them and allocated the money as I saw appropriate.

Q: Did you consult any formal religious teachings?

A: I looked everywhere and didn't find very much. I'm not sure it was very helpful. I did consult; I spoke to priests, rabbis. I even asked experts where in the Old Testament, the New Testament, or the Talmud, Jewish books of learning -- where can I get some compass, some map to allocate the money in the fairest way possible? There was a good friend of mind, Rabbi Bill Hamilton, at a synagogue in Brookline, Massachusetts, who gave me the best advice. He said, "Ken, a horror like 9/11 -- you're not going to find the parallel, a religious analogy, the symbol. Some human events are so horrific, so unfair, so traumatic that religious, doctrinal teachings just are not going to be that helpful." And I stopped looking after that.

Q: Was your own faith tested?

A: No, I didn't find that my faith was sorely tested in this. I found that my faith was useful. My Jewish faith proved useful in trying to come to grips with the tragedy. I think I was ultimately sensitive and empathetic to victims and their families. But I didn't have a crisis of faith. And I think I was fairly well prepared. I was as prepared as anybody can be, but it's not easy being asked to do Solomon's work, and that was what this was about.

Q: Did it come as a surprise to you the extent to which you were put in the role of the rabbi -- or the psychiatrist?

A: Oh, I think so. I had a layman's view that if you're giving somebody $2 million tax free, they'll appreciate it. What a mistake that was. I should have realized there's no appreciation here. There are no thanks. There's no joy in receiving this money. There's no sense of justice. These were people who had their lives torn asunder, and I was a little bit lax in fully understanding the reaction, especially the reaction so soon after the event. Gradually that emotional anger dissipated and gave way to a sort of resignation that the program was worthwhile.

Q: In the general public, right after 9/11 people went to church in numbers that stayed high for about a month, and then they went right back to doing whatever they had done before. What about the claimants?

A: There are literally cases of families that will never go back to a normal lifestyle. For many of these families, this was a permanent trauma that will not easily dissipate.

Q: Was it better or worse because of their shared experience?

A: Oh, I don't know. That's mixed. That's a very difficult question that's never been asked me before. On the one hand, having company reinforces solidarity and empathy: "We know what you're going through." On the other hand, this public expression of support among the families counting each other's money -- very problematic. And placing all firemen's widows in one basket was not an easy task, I assure you.