By Margo Shea

On September 11, 2008, Chancellor Robert C. Holub welcomed Kenneth Feinberg to campus and introduced his keynote address, a talk that kicked off a year-long series of events and lectures centered around the theme Measuring the Value of Human Life? Holub lauded Feinberg as “the country’s best known mediator,” and said that the 1967 UMass graduate is an example of “how far someone with a degree” from the university could go.

Feinberg opened his remarks by reflecting that the seventh anniversary of 9/11 was a somber day, but also a glorious one, because it gave him an opportunity to give one day back to UMass, an institution that has meant so much to his personal and professional growth. He thanked UMass faculty, including Milton Cantor, Mario DePillis and Shelly Goldman, who taught him to think as an historian and to grapple with some of the most problematic and thorny issues facing a democracy by looking through an historical lens.

His talk, “The September 11th Victim Compensation Fund: Private Pain and Public Compensation,” explored the question of how to treat innocent victims of life’s misfortunes and posited that the events of 9/11 were an historical anomaly. Thus, the compensation arrangements that were made amounted to a unique national response to an unprecedented national tragedy. More than an effort to assuage and compensate individuals, the compensation fund, paid for with taxpayer dollars, demonstrated American empathy to those affected by the terrorist attacks.

Feinberg explained that eleven days after 9/11, Congress passed a law that said that anyone who lost a loved one or anyone who was physically injured could voluntarily opt out of the legal system and instead enter a no-fault administrative scheme to immediately get compensated for their loss. Over 22 months, 97% of all eligible families and victims voluntarily entered. Ultimately only 94 sued; of those, 90 settled. Four claimants are still litigating. A small number did nothing, never entered the fund, never filed a claim. $7 billion taxpayer dollars were spent compensating 5300 people, the families of those who died and those who were physically injured. He said that the average reward for a death was $2 million (tax free.) Those injured received on average $400,000. The awards ranged from $500 for a broken finger to $7.1 million, given to a survivor who lives with 3rd degree burns over 85% of her body.

Statistics don’t tell the story

Feinberg emphasized that the numbers conceal as much as they reveal. He discussed the purpose of the funds, the mechanics of the compensation process and the larger questions that remain unanswered. It was a staggeringly quick national decision; the statute was passed by Congress in one day with no hearings. Feinberg himself was granted an enormous amount of authority with no confirmation process and those involved in the compensation scheme had no legal recourse if dissatisfied with his findings. He suggested that the aims of the program were two-fold; it was designed both to divert people from the legal system by offering an alternative to suing and to demonstrate to the world how the United States protects “its own.” The complex motivations behind the fund led to a dizzying experience for those charged with meting out compensation. Everyone needed to get a different award because the received wisdom dictated that wealthier people would want more money not to sue; thus Feinberg and his staff had to take into account what they would have earned but for 9/11. This led to a level of speculation that he described as looking into a “murky crystal ball.” What is the value of a life lost when who knows what the future holds?

While some families pressed him to recognize the long term financial potential of their loved ones, others were skeptical, even terrified, that the United States government would use the process as a means of weakening their already precarious positions. The families of undocumented workers, for example, didn’t want to file because their previous experiences with the government had led to fear and distrust. “You will put me in jail. You will take my children away. You will deport me or make me pay a fine.” These are some of the responses he received when he tried to offer them compensation.

Before discussing the historical significance of the fund, Feinberg took some time to describe how the compensation allocations intersected with the grieving process for those who lost loved ones. Any family could meet with Feinberg personally, privately and confidentially. Saying, “do not underestimate the value of confidential hearing to have the opportunity to vent to a government official about life’s unfairness,” Feinberg told stories of those who came to talk with him, to tell how their lives were disrupted by 9/11. Artifacts of loss filled his office as mourning loved ones attempted to place value on the memories of those they’d lost. There were wedding videos, sports trophies, and photographs. Mostly, there were stories. Reflecting that perhaps a rabbi or priest might have been a better choice for the task he’d taken on, Feinberg offered his audience a glimpse of the depths and ripples of individual and community grief following the events of September 11th. His comments underscored the extent to which this national trauma constituted one event and at the same time amounted to hundreds of thousands of experiences of loss.

Laying some fundamental issues on the table

Was the 9/11 fund sound public policy? Was it a good idea? While Feinberg believes that “the program exhibited the best in our heritage and American character,” he said that the fund remains something of a philosophical conundrum. What about other tragic and violent losses – Oklahoma City, the 1993 World Trade Center attacks, the Virginia Tech shootings, the attack on the USS Cole? Families of those who died in these events never received financial compensation. He concluded that one cannot evaluate victimhood and suggested that while the financial compensation for those affected directly by 9/11 was the right thing to do from a national perspective, it set a troubling precedent. Likening the attacks of 9/11 to the Civil War, Pearl Harbor and the assassination of President Kennedy, he said he doesn’t believe the program should be replicated; it was a “historical one-off.”

If Congress did decide under specific circumstances to replicate the program, Feinberg recommended that it not be tied to other opportunities for litigation. Every family should receive the same amount of money. Asking one person to start calculating value is by definition an invitation for arbitrariness of actions. His conclusion followed from these broad questions as he explained why he helped UMass to set up an institute to explore how cultures and societies value human life and decide issues of “compensation” from a multidisciplinary perspective.

Reflections
The talk offered the audience a closer look at the motivations behind the Compensation Fund and allowed us to experience vicariously some of the emotional and administrative challenges associated with working with the victims of 9/11. Feinberg left his audience with an array of things to consider as well as with a host of questions still to be explored. Although he emphasized the importance of thinking historically, Feinberg didn’t address the events, policies and decisions that led to the terrorist attacks on the United States or those that followed in the wake of September 11th. He left unexamined the issue of how the culture of redress for the attacks played a part in justifications for entering into war against Iraq. In his discussion, the narrative of blameless innocence encompassed not only the individuals affected but the nation as a whole. He didn’t talk about the innocent victims of the US government’s crusade against terrorism or explore how our current military engagements in Iraq and Afghanistan force us all to confront broader questions of relative value of human life. To Feinberg’s credit, the talks, art exhibits, films and discussions that will take place over the course of this academic year will enable us to explore these and many other questions.