'Mr. Feinberg'

Dispensing The 9/11 Victims Fund Is A Thankless, Complicated Job

How do we as a nation deal with national tragedy? It is a question we're reminded of today, Sunday, Sept. 11, as we remember the almost 3,000 lives lost four years ago and contemplate the uncounted dead in the wake of Hurricane Katrina.

After 9/11, Kenneth Feinberg was the man who was given the awesome task by the government of placing a monetary value on each of the lives that were lost. Correspondent Morley Safer of 60 Minutes asked him recently to reflect on that assignment. But before we hear from him today, we want to go back to our first story.
We talked to him while he was still hearing those catalogues of heartbreak from victims' families.

It all could be reduced to a single word:

"Grief," said Feinberg. "There are many people who have been traumatized by Sept. 11 who, when you sit with them and say, 'I will help you fill out the forms; you may get $2 million tax-free. I will assist you, I'll fill it out for you,' and they say, 'Mr. Feinberg, leave the application. Thank you for trying. I cannot put numbers to my daughter's life, to my son's life, to my husband's life.' "

But as the sole person in charge of dispensing the fund, it is exactly what he must do: attach a price tag to suffering, to injury, and a specific amount to each of 2,976 lives.

"Juries every day evaluate economic loss, and non-economic pain and suffering," he says. "Juries do that in every village and hamlet in this country, but they do it quietly, out of the public eye, according to local community standards. Here, Congress said 'You do that. No appeals from your decisions. You will decide.' "

His job is even more complicated because Congress asked him to evaluate each life, instead of just dividing the total amount in the account by the number of deaths. He was given enormous discretion to interpret the hastily written legislation that created the fund, which was designed primarily to protect the airlines whose planes were used in the attacks from ruinous lawsuits.

"Congress was conflicted, frankly, when they created the fund," Feinberg says. "On the one hand, the purpose of the fund, clearly, is to provide an alternative to lawsuits against the airlines, the security guards." But also, "Congress decided that this unprecedented historical event in American history — we must come to the aid, to the rescue of those in need."

In order to qualify for compensation, families had to give up all rights to sue the airlines. Feinberg maintained that suing would be pointless.

Feinberg says he agreed to accept this job, which cut back on a good part of his lucrative private practice for two years, as an act of patriotism. In the past, he's settled huge class action lawsuits on Agent Orange and asbestos. That's why the attorney general appointed this liberal Democrat, who thrives on the toughest cases.

He begins each day before dawn. These moments of isolation surrounded by music may be the only respite from an 18-hour workday, often seven days a week. He receives very little thanks and, at his own request, no pay. He knows more about those who died on Sept. 11 and the lives they left behind than anyone has any right to.

"Banker dies on the 103rd Floor of the World Trade Center," he begins. "I have to try and compute, calculate, predict with a crystal ball, what that 35-year-old banker who died leaving three children and a wife, what would he have earned, if he had worked, survived and worked till he was 62 or 65."

There is no crystal ball, just pages of projections, victims' salaries, future earnings, educated guesswork on the value of an individual life. Feinberg admits he keeps the awards to the families of the highest earning victims down, to narrow the gap between rich and poor.

But he asks, "What should I do with the undocumented worker? The military? The banker? The stockbroker? The fireman? The policeman? I mean that's the, that's the challenge."

What's really unusual here is that Feinberg had the guts to publish a chart outlining the expectation of how much money you would get. And for the first time ever the government was in the position of doing comparative values of human lives.

Steven Brill, an attorney and author of a book on the aftermath of Sept. 11, says Feinberg's chart was certain to offend all families, regardless of income. "At the same time that some of the wealthy families are angry at him, the poor families are angry at him too," Brill says. "'How dare Ken Feinberg do that? How dare someone put a value on human life that says that my husband and the father of my children is worth one-tenth of what this other person is worth?'"

Safer asked Brill if there was any precedent in giving a single man, Ken Feinberg, the kind of power that Congress gave him.

"No," said Brill. "This is the only time in history of this country that we've ever passed a law that says one person literally has the ability to write a check on his say-so to an American citizen with no appeal, with no way to stop it."

The law was met with certain bitterness. For example, there was no compensation fund for families of victims of Oklahoma City and other terrorist attacks. In explaining his mission, Feinberg talks of their anguish and the letters these people send him.

Feinberg quoted a few of them:

"Dear Mr. Feinberg, my son died in Oklahoma City. Where's my check?"

"Dear Mr. Feinberg, my daughter died in the African Embassy bombings of the terrorists of '96. Where's my check?"

"Dear Mr. Feinberg, my son died in the first World Trade Center bombing in '93 committed by the very same people. Why aren't I eligible?"

No program would satisfy everyone, of course. Early on, Feinberg decided that in addition to his calculation of economic loss, he would give each family, regardless of income, a flat payment of $250,000 for pain and suffering. Grieving families complained this was not enough. And he takes a lot of heat over things he has no control over, like Congress' decision to deduct life insurance from the awards.

By law, families who challenge Feinberg's awards are entitled to a hearing, where they must prove to him that their financial circumstances are extraordinary and merit higher payments. But, still, people plead on the grounds of emotional circumstances.

"I've had many claims where a survivor," Feinberg says, "a surviving spouse will come to me and say 'I'm really entitled to more because my wife was trapped and called me on her cell phone to say goodbye. And I received calls from my wife for 10 minutes on her cell phone until the building collapsed. So I went through much more suffering than somebody killed instantly.' I will not recognize those distinctions, though, in my awards.

"They're powerful and they're very emotional but I've explained to all of the families that when it comes to pain and suffering and emotional distress, I cannot be Solomon. I cannot make fine distinctions between the pain of one claimant and the suffering of another."

There's little reprieve for him from the continuous flow of other people's agony.

"I've learned how, how dogged people will be to preserve a memory of a loved one," he says. "And when one way to preserve that memory is through a calculation of money, of dollars, one way, they will be dogged and committed to getting every last dollar. I don't think it's greed. I think it's an attempt to valuate a lost loved one."

Feinberg's tone has softened over the two years he's been at it, and he's learned something about the arc, the one that begins with anger, then grief and finally acceptance.

He heard it in the words of a wife, who had struggled with her decision to join the fund: "You put your kids to bed; you stay up at midnight. When you fill out the papers it hurts when you look up personal records. But when it's done you have made a finality to your family, where you can move on and you can help them. And although it is difficult, Mr. Feinberg, the fund has treated my family very reasonable and fairly. And I just want the families with children to know that."

When Safer suggested that this job surely will stay with him for the rest of his life, Feinberg agreed: "Yes, it will. It absolutely will."

In the end, Feinberg signed off on about $7 billion worth of compensation. Since then, he's written a book about that unique experience. It's called: "What Is Life Worth?" A question, of course, with no real answer.

When Safer talked to him again recently, he said it was a question he struggled with every day of that long ordeal.

Safer: "In those long months of listening to those horrible stories, dreadful stories, how did you get through that? I mean, how do you ever push that out of your mind?"

Feinberg: "Well, you never push it out of your mind. Never. It'll never be pushed out of my mind "

Safer: "Has it changed the way you look at the rest of your life?"

Feinberg: "Yes. It has. I'm much more fatalistic. I don't think I'll ever plan more than two weeks out. These people left that morning. It was a sunny day. They said perfunctory goodbyes after breakfast. And they never came back. They never found bodies. Vaporized, at the World Trade Center. The Pentagon. I'm much more fatalistic. And I also wanted, and am now doing, a lot more teaching."

Safer: "I'm just wondering whether going back to the mundane bread-and-butter stuff of legal work must be kind of boring, no?"

Feinberg: "Boring. Not particularly fulfilling. I've downsized my law firm substantially. I'm much more interested in the socially impacted disputes. I think that that's part of the fallout from all of this."

Safer: "It's made a better man of you."

Feinberg: "I'd like to think so. Other people will have to make that judgment. I'd like to think that's the case. But it was a unique chapter in my life, and in the country's life, too."
  • Tricia McDermott

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