In the aftermath of the attacks on the World Trade Center, attorney Kenneth Feinberg was handed an unimaginable task: deciding the value of the victims’ lives.
On 11 September 2001, Feinberg “was in Philadelphia teaching a law school class on mediating class-action lawsuits”, The Washington Post said. But as he left, he spotted “students huddled around a TV in a hallway”, watching the events playing out in New York.
“An accident, Feinberg thought.” But just 17 minutes later “the second plane hit the towers” and “another slammed into the Pentagon”, the paper added. Within two months, he was heading the government’s September 11th Victim Compensation Fund. It had, as the Post explained, an “unlimited budget to repay families what could never be repaid”.
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‘Old-school DC insider’
Feinberg was born in Massachusetts and graduated with a Juris Doctor degree from the New York University School of Law in 1970. He worked for five years as an administrative assistant and chief of staff for US Senator Ted Kennedy, before acting as a prosecutor for the US attorney general and later founding his own law firm, the Feinberg Group.
Described by The Washington Post as an “old-school DC insider”, he worked on prosecutions “involving the use of Agent Orange in Vietnam and asbestos poisoning that sickened thousands”. He was also one of three arbitrators who determined the fair value of the Abraham Zapruder film of the assassination of John F. Kennedy in 1963.
The September 11th Victim Compensation Fund was created 11 days after the attacks and Feinberg was appointed by Attorney General John Ashcroft to be “special master” of the fund. Thus began 33 months of unpaid work during which he developed “the formula that calculated how much each family should receive in benefits”, HITC said.
In his book, titled What is Life Worth?, Feinberg, now aged 75, laid out the eight-part plan that was applied to approaching the compensation fund. However, early in the process he was described as “arrogant” by victims’ families, HITC said, a demeanour “soon dissolved by the emotional stories told by families involved in the fund”.
While The Washington Post said “few people were happy with Feinberg”, he met many of the surviving victims and their families, personally presiding “over 961 separate sessions himself out of the nearly 6,000 applicants to the fund”, according to The Jewish Chronicle.
Charles Wolf, a New York man whose wife was killed in the 9/11 attacks, originally wrote of Feinberg on his blog Fix The Fund that he was “everything the Founding Fathers of this country were striving to avoid when they wrote the Constitution.
“With a sparsely written law, Feinberg was forced to write most of the details himself in the form of regulations. Then, he has to implement what he just wrote, pointing back to those same regulations as unbendable rules,” Wolf said.
“Finally, he is the final adjudicator as the law prohibits judicial review by the courts. Feinberg has the power of King George III; he is lawmaker, administrator, judge and jury.”
Many of the families’ issues with the process came down to the fact that “the fund was inspired by a desire to get victims to accept the payments and waive the right to sue the airlines, sparing the airline industry from collapsing under thousands of lawsuits”, reported The Washington Post.
But throughout the process, the paper said Wolf “noticed a change in Feinberg” with “empathy” becoming a hallmark of his engagement with the families. “It was like God came down and talked to Ken,” Wolf said.
Speaking to The Jewish Chronicle, Feinberg said: “The problem with the 9/11 fund 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 emotional overhang of dealing with individual survivors, family members, physically injured victims of a random terrorist attack.”
The task handed to Feinberg was “unthinkable”, The Washington Post said, noting that the compensation committee was responsible for “assigning dollar values to the 3,000 lives lost that day, as well as the thousands injured”.
As depicted in the film Worth, Feinberg and his office administrator Camille Biros eventually distributed “more than $7 billion [£5m] to 5,562 people”, having devised “a formula for compensation based on current and future income with the goal of making sure that 85% of the funds weren’t paid to the highest income-earners”, the paper added. The highest payout was $8.1m (£5.8m) to a woman with third degree burns to 80% of her body.
Despite first impressions, Feinberg told The Jewish Chronicle that he would go home and “sob in front of a mirror” during the process of handing out the funds. “You sob in private, never in public,” he said. “The families want you as a rock, providing certainty, where there is very little certainty.”
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