Special Master of the 9/11 Victim Compensation Fund Kenneth Feinberg opened the Aspen Ideas Festival with a vivid meditation on balancing compassion with reason, putting a price on invaluable life, and transforming tragedy into strength. Feinberg, who also served as the White House-appointed administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund and as chief administrator of the Hokie Spirit Memorial Fund for the victims of the Virginia Tech shooting, told NPR’s Talk of the Nation host Neal Conan about these and other elements of his ethical highwire act.

Neal Conan: You were instructed by Congress in the law that was passed right after 9/11 to employ the principles of tort law in deciding who got what.

Kenneth Feinberg: That’s right. Congress passed a law, 11 days after 9/11. The law said that if you don’t want to sue, if you don’t want to go to court against the World Trade Center, the airlines, the security guard companies, Boeing who made the cockpit door, if you don’t want to do any of that, go into this special fund completely funded by the taxpayer, public money, tax-free. You don’t have to. But if you want to, you will be paid very generously without needing to hire a lawyer and go to court and try and win. And over 33 months, virtually everybody came into the fund, 98 percent of the eligible claimants came into the fund for deaths or physical injuries, burns, broken bones, arising out of the attacks.

NC: If you got your lungs scarred at 42nd Street from the smoke and the terrible fumes from the collapse of the World Trade Center, were you eligible for compensation?

KF: No. Deaths were no problem in terms of the proof—World Trade, airplanes, Pentagon. Physical injuries? ‘Mr. Feinberg, I live in Jersey City. The World Trade Center plume, the fumes wafted over the Hudson. I now can’t breathe, pay me.’ A lady on 96th Street: ‘I was hanging up a painting. From 96th Street, I saw the plane hit the World Trade Center. I fell over and broke my leg, pay me.’ We said no.

We set up a geographic boundary in Lower Manhattan: West Street, South Ferry, Lower Broadway, Canal Street. If you were injured in that geographic location, we would consider payment. But for physical injuries outside of those parameters, we just figured it would take too long, would open up the fund to millions of claims, and Congress didn’t intend that.

NC: And the statute also made it clear that claims for mental suffering were not to be considered.

KF: Congress made express in the statute you cannot pay people who claim just mental damage. Now, that was harsh. There were people who escaped from the World Trade Center without a scratch—luck—with bodies jumping out of buildings falling all around them and glass and carnage. And they would come and say, ‘Mr. Feinberg, I didn’t get a scratch, God was on my side, but I can’t get out of bed.’ Ineligible by law. Nothing I could do about that.

NC: The only way that people could agree to this system was to understand that it was fair, and as I understand it, the only way you could convince them that it was fair was to speak with them.

KF: Yeah, but you could never convince them. Fairness, forget it. Nobody that comes to see you with one of these programs, no matter what you do for them, no matter how much money you give them—do not expect them to say it’s fair. They lost loved ones, or their loved ones have horribly disfiguring injuries. They get money. Money is a pretty poor substitute, and they are bitter. They are angry. They are frustrated and you don’t expect anybody who is a claimant to thank you or to consider it fair.

NC: Why do some cases and not others [have compensation funds]? What cases are appropriate, and what aren’t?

KF: The American people reach a tipping point, in some cases, and say that for this tragedy, we want to do something commensurate with the magnitude of the horror. Oklahoma City was horrible, but I don’t think it rises to the level of 9/11.
9/11 is like the Civil War, Pearl Harbor, and the assassination of President Kennedy. It’s special. It’s unprecedented. The only way to really appreciate the sound public policy that underlies the 9/11 fund is to appreciate it not from the perspective of the victim, but from the perspective of the country. You can’t justify a 9/11 fund based on the status of the victims. You should have seen some of my emails. ‘Mr. Feinberg, my husband died in Oklahoma City, where is my check?’ ‘Mr. Feinberg, my daughter died in the basement of the World Trade Center in the original 1993 attacks
committed by the very same people, how come I am not eligible?’

I don’t think the 9/11 fund can be understood and defended based on who died or who was injured. I think it was the right thing to do because the American people wanted to demonstrate to the world and to those nations harboring terrorism:
‘You won’t win. We will show you how we protect our own people. We will show you how generous we are as a community of one. You won’t divide us. We will get our revenge. And one way we will get our revenge is by showing you that when a tragedy like this happens, we come to the rescue of our own people.’

NC: There were allegations, though, of racial discrimination in the BP case, particularly institutional discrimination on the basis that poor people tended to have less documentation and tended to be unable to argue their case and have attorneys to do that for them.

KF: I think there’s something to that. We tried to minimize the document proof requirements for people who came to us who were just down-and-out. And we did what we could to help them with legal assistance freely. At the end of the day I faced a horrible dilemma in BP. The thousands and thousands of people in the Gulf who just didn’t have anything would come in and say, ‘Here’s my claim form, when can I get my check?’ And we turned them away. If these programs become an open-ended
run on the bank without principle, just a grab bag, if they lack the integrity of an appropriate program, you will be a failure. And it won’t be replicated. And it’ll be criticized. And it’ll be just one more example of an alternative to the litigation system which is worse than the litigation system.

NC: There are those who question the tort system, say that it is designed to help lawyers a lot, that it takes too long, and that it sets up this idea that we are compensated in dollars. Surely there is something more to making people whole than a check?

KF: I haven’t seen it. If you go back to the founding of our republic, money has always been part of the compensation mechanism. In our capitalist system from Jefferson and Hamilton right up to the present time, compensation is the mechanism and the courts are the vehicle.

NC: Have you ever been approached by those who seek reparations for slavery?

KF: No, I’ve never been approached. Remember, the United States government never paid a penny in 9/11 by claiming it was responsible for the attacks. To this day, there’s never been an apology from the United States for 9/11. Reparations are paid as an apology. German government payments to Holocaust victims reparations. President Reagan’s decision to sign a law and pay the families of those Japanese-American citizens interned after Pearl Harbor and removed to New Mexico and Arizona—reparations.

Reparations are as rare as these programs that I design. You don’t get governments apologizing very often. With slavery, it’s so diffuse, it’s so pervasive. Everybody was involved. It was part of the culture of 18th and 19th century America. The idea that today in 2012 you are going to set up a reparations program to pay for an admitted wrong—I think there’s not a chance that that will happen today.

From the Audience: What are your lessons from all of this relative to our values in this country?

KF: Be careful about drawing too many highfalutin conclusions about modified values in times of real personal tragedy. When people suffer as they did after 9/11—you say goodbye to your wife or your husband at breakfast with a perfunctory, ‘see you for lunch, be home early for dinner,’ and you never see him again, and there’s no body, they are incinerated, and it was traumatic, instant, death— the idea that people are going to come to me and vent about life’s unfairness and behave in a manner that some might call selfish—please, a little empathy here, a little soul. The biggest problem I have with all of these
assignments is you are not dealing with people who can easily evaluate the pros and cons of compensation. My legal degree is at best a wash. A divinity degree or a degree in psychiatry might be more valuable. How do these compensation programs reflect changing values in 2012? I want to pass on that. Because the problems that these people confront, as far as I can tell, are no different than those they would have in 1820 or 1920.