The Unprecedented Effort to Compensate the Victims of 9/11

By Kenneth R. Feinberg

PublicAffairs. 213 pp. $24

Immediately after the Sept. 11, 2001, terrorist attacks, in a fit of compassion for (of all things) the airline industry, Congress created the September 11th Victim Compensation Fund. Its euphemistic title notwithstanding, the fund was not intended to serve as a vehicle for healing or to promote solidarity among the victims' families; rather, it was designed as a vehicle to keep the airline industry solvent.

The compensation fund might have brought the victims' families together had it offered uniform awards, valuing each life equally. But Congress's compensation scheme was designed to persuade even the wealthiest families not to sue; to do this, the fund's "awards" had to reflect the victims' widely differing income levels. This choice served to divide, rather than unite, the victims' families.

Not surprisingly, given the genesis of the statute and its underlying rationale, the person chosen by then Attorney General John Ashcroft to administer the fund was not someone experienced in working with crime victims -- or even someone who'd served on one of the many state compensation boards for such victims. Instead, Ashcroft chose Kenneth R. Feinberg, a distinguished Washington attorney noted for his experience as a mediator and settlement administrator in complex mass-tort cases involving Agent Orange, silicone breast implants, heart valves and the Dalkon Shield IUD (which was pulled off the market in 1974 after causing infections that killed more than a dozen women). Feinberg was known for his analytical ability and doggedness, not for his bedside manner.

What followed, over the nearly three years that Feinberg administered the fund, was a process -- determining the "value" of the lives lost or damaged by Sept. 11 -- that transformed the fund and everyone involved with it. Many of the victims' families moved through stages: first, mistrust of the fund; then anger at its limitations and its chilly administrator; then resigned acceptance of it and grudging respect for Feinberg. The "special master" himself went from emotional isolation and cold calculation to engagement and deeply felt empathy.

"What Is Life Worth?" is Feinberg's account -- at some times eloquent, at others oddly detached, at all times painfully honest -- of that transformation. It is a rewarding read but not an easy one. The book suffers from a communication style that Feinberg himself identifies as a shortcoming: "I tend to be straightforward and businesslike. . . . I should have realized that this kind of neutral, authoritative, purely factual presentation would strike the 9/11 families as brusque and callous. Instead, it took me a while to realize the effect I was having and adjust my approach." The book never makes a similar adjustment. It tells, in effect, two vastly different stories: the analytical story of how Feinberg decided how the fund would operate and the emotional story of how the victims' families and Feinberg interacted.

Feinberg's "neutral, authoritative" approach is suited perfectly to his analytical story. He clearly lays out the rules he had to follow; Congress required him to calculate economic loss based on a victim's projected income, establish a value for pain and suffering, add those two values, reduce that sum by any collateral sources of income the victim's family may have received, and then -- and here's the hard part -- adjust the amount of the award based on considerations of fairness. Feinberg "would oversee the program and exercise broad discretion in individual cases to make sure that justice was done."

In these pages, he makes a convincing case for the soundness of the decisions he made as a special master -- even those that seem arbitrary. To his credit, he used his discretion to soften the impact of the fund's divisive compensation formula. He refused, for instance, to make individual pain-and-suffering determinations -- how do you distinguish among heart-wrenching stories? -- or to increase individual awards based on heroism. Doing so, he argued, would frustrate his goal of trying "to minimize distinctions among claimants, not maximize them. Heroism by all was presumed." Perhaps most important, he made the critical decision to decrease awards to some wealthy families that would have run to the tens of millions of dollars, while increasing awards to those who were less well-off.

But Feinberg's strengths in discussing his decision-making processes -- his objective, analytical voice -- don't serve him as well when he turns to the public meetings and private hearings in which he interacted with the victims' families. Don't get me wrong: His quotations of others' words from the hearings make up the book's most moving passages. There is, for instance, the relative lamenting someone who is "gone forever. I can't believe it. I won't believe it. How does one go on from here? Every waking day you're hit with a sledgehammer to the heart." Or this, from a devastated mother: "I think of him when we see his friends getting married and having children. I miss him when I see mothers, fathers and children together, and then I think our family has one child missing. . . . He'll always be my little boy. I miss him more than words can ever say."

What's missing from all of this, however, is Feinberg's reaction. Although we know that the experience of presiding over 931 award hearings was deeply affecting for Feinberg, we know this primarily because he tells us so and because we feel the heartbreak ourselves in the excerpted testimony. He never makes us feel what he felt; instead he retains to the end a measure of the clinical objectivity that served him so well as a special master: "I went home at night and hugged my wife and children with a new intensity, ready to conduct more hearings the next day."

Did the fund set a good precedent? For Feinberg, the short answer is no, and again he is persuasive. The fund's compensation scheme, tied to the victims' incomes, "fueled resentment and paranoia" among the families. "It also made my job harder, promoting the perception that I was denigrating the lives of victims who received smaller sums." Ultimately, he defends the fund because it became what it was never intended to be: a vehicle for healing. It was, he says, "a unique response to an unprecedented event. . . . That response should not be viewed as a precedent for compensation programs yet to come." Insofar as the fund succeeded, it did so largely because of Feinberg's decision to mitigate the fund's basic unfairness and his doggedness in presiding over hundreds of heartbreaking hearings.

What is life worth? Feinberg found the answer not in actuarial tables or projected incomes but in the almost limitless capacity of people to love: "Love was often all that survivors could cling to -- a life preserver -- in their effort to get through each day. They had been left behind, but they had been left behind with powerful reserves of love." The Sept. 11 fund began as an airline bailout, but it ended as a vehicle for expressing love. That transfiguration was Feinberg's great professional and, we suspect, personal achievement; we come away feeling that the process of determining what life is worth transformed not just the fund but its special master, too.