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Reflections on Victim Compensation Ten Years After 9/11

September 15th, 2011 No comments

The tenth anniversary of September 11 has been covered from an astonishing array of angles. There are mainstream pieces inviting us to reconsider our response to terrorist threats, dissections of the mindsets of conspiracy theorists, explorations of how to talk to children about tragedies, a photographic tribute to the World Trade Towers, and, perhaps most oddly, a look at the market for Ground Zero memorabilia.

But one scans the web in vain for an exploration of this question, which 9/11 chillingly raises:

What do we owe the victims of misfortune?

Perhaps this occasion for (mostly) solemn reflection can trigger a discussion of the choices we make in compensating those afflicted by all kinds of personal and collective disasters – because the machine we created to compensate the victims of September 11 bears little resemblance to the way we usually assist those in need.

Shortly after 9/11, Congress rushed into law the Victim Compensation Fund. Born of a combination of generosity and a desire to protect the airlines from lawsuits for their negligent security procedures, the Fund expended more than $7 billion in tax dollars, and payouts to individuals were as high as $8.6 million Why such hefty pay-outs? Because the Fund is largely based on a tort model of full compensation for those injured by wrongful conduct.

This is almost unprecedented, and it isn’t even over. Last December, Congress breathed life back into the Fund, making payments available to those able to prove injuries from their exposure to the toxins present around Ground Zero in the months following that tragic day. While the newly available $4.3 billion will mostly compensate first responders, others who can prove injury that occurred at the broadly defined “crash site” can also file a claim under the Fund.

Criticisms of the Fund mostly come from those claiming it’s not doing enough. Jon Stewart famously let slip his comic mask on behalf of first responders,  railing against Congressional dawdling on reopening the Fund to compensate them. He’s even been credited with having helped embarrass and jolt lawmakers into ponying up the $4.3 billion. And just a few days ago, he and Daily Show guest Sanjay Gupta commiserated on the decision not to treat cancer as a compensable, 9/11-related injury – even though the science isn’t yet there to substantiate causation.

Stewart’s reaction is hard to criticize only if we look at the Fund in isolation. But it’s not unassailable if we take a broader focus. What if we had a serious discussion of the larger questions that the Fund raises: Whom do we choose to compensate for disasters, and for how much? And how do we define “disaster”?

I discussed these matters with a law school classmate, Harry Waizer. He was head of the tax department at Cantor Fitzgerald on that clear September day, and was in an elevator heading for his 104th floor office when the plane struck. Badly burned and given just a five-percent chance of survival, Harry is now flourishing despite the emotional and physical scars of that day. He’s back at Cantor (part-time), and has a happy marriage and three great kids.

Harry realized what he called a “substantial” payout from the Victim Compensation Fund. Although he understandably won’t share the precise amount, the payment included a big chunk for lost income, and another hefty recovery for his pain and suffering.

Is this fair? Harry doesn’t think so.  “I don’t find the argument for having this Fund particularly compelling,” he told me. “I’m a very grateful beneficiary, but if you ask me in an objective way whether this kind of compensation system for victims of this kind of event is appropriate, I’d have to say ‘no’.”

He’s right. Since the source of the Fund is general taxpayer revenue, some of the taxes paid by a low-income worker – for example, a manual laborer with no health benefits – went to pay Harry and the thousands of others who received compensation.

The Fund stands almost alone as an exercise in taxpayer-funded largesse. And its one close precedent only invites further, disturbing questions about our national response to disaster. In response to the 1976 collapse of the Teton Dam in Idaho, which resulted in eleven deaths and thousands of cases of homelessness, the federal government created a compensation program that paid out some $200 million to victims.

It’s true that the government itself had been responsible for that disaster. But government ineptitude (in the design and construction of the levee system) also played a crucial role in the vast human suffering from Hurricane Katrina – and there’s no similar compensation fund for those victims. They’ve had to make do with much less generous federal disaster relief funds.

The Teton Dam case is enough to show that the difference in our national responses to Katrina and 9/11 reflects a distinction between natural disasters and terrorism. If further evidence of our national inconsistency were needed, consider the victims of the 1995 Oklahoma City bombing. After the Victim Compensation Fund was established, legislation to compensate them was introduced in Congress – but died there.

There’s no principled way to reconcile any of this. Yet there’s a lesson to be extracted from our inconsistent responses to disasters. I turn again to Harry Waizer.

“My brother-in-law was jogging by the side of the road when he was hit by an uninsured drive. He has suffered terribly, no less severely injured than I. And there’s no fund for him.”

But Harry’s brother-in-law, and so many others, deserve more than our sympathy. Where’s the justice in compensating some generously, while ignoring others? Crime victims, those displaced by natural disasters, and even those who lack health care are no less deserving of a helping hand than the victims of September 11. Recovery shouldn’t be made to depend on whether a given tragedy sparks our national imagination, as that tragic day did to an unprecedented extent.

In a society with limited resources, we have to think hard about the choices we make, and it’s too much to expect a perfectly consistent approach. But we should see the consequences of misfortune and tragedy as more important than their origin, and design compensation systems that provide a basic floor for all victims – medical care, basic housing, and help in rebuilding their jobs and communities would be a good start. That’s basically the model that the Federal Emergency Management Agency follows, and would be a good place to start.

As recent natural disasters – and Eric Cantor’s tone-deaf posturing about whether to help their victims – have reminded us, the time to discuss these issues is always ripe. Let’s use the tenth anniversary of that terrible September day to reinvigorate that important discussion.

There’s No Such Thing as a Natural Disaster

March 13th, 2011 No comments

That’s not completely true, of course, and in the aftermath of the triple-barreled horrors in Japan — earthquake, tsunami, nuclear meltdown — it might even seem callous to suggest otherwise, as the title of this post does. Surely the first two of these are natural disasters in the purest sense.

But calling something a “natural disaster,” while a humbling reminder of the fact that, as one seismologist said, “nature always bats last,” sometimes gets in the way of looking into the deep questions that make such disasters more or less catastrophic. Indeed, Andrew Sullivan wrote:

Readers have asked why we haven’t covered this event exhaustively. My answer is that this is a natural disaster, unlike, say, a revolution or a war, which requires little added comment.

I couldn’t disagree more. Consider:

Hurricane Katrina was barely one when it reached New Orleans — the big story there was the ineptitude of the Army Corps of Engineers, local, state, and federal politicians and bureaucrats, and the ham-handed efforts by the Department of Homeland Security (forced into a public health role for which it had little appetite and less competence, as dramatized so chillingly in Zeitoun).

The earthquake that decimated Haiti was, in its effect, far worse than the one that hit Japan, even though the magnitude of the first — 7.0 — was far less than the 8.9 (or is it 9.0?) of the more recent one.What’s the difference between 7.0 and 9.0? Here’s a quick Richter scale refresher:

[E]ach step on the Richter scale is 10 times greater than the one before it. An earthquake that measures 8.0 is ten times stronger than one that measures 7.0, and an earthquake that measures 9.0 is one hundred times stronger than one that measures 7.0. So Friday’s earthquake in Japan was almost 100 times stronger than the one in Haiti in 2010.

So why was the less powerful natural disaster more consequential than the much stronger one? Largely because of the vast differences in infrastructure and public health preparedness between the two island nations. It’s by now a commonplace of public health doctrine that any naturally occurring, negative incident — say, infectious disease or (let’s use the term here) natural disaster — will have far worse consequences for the poor than for the rich. And while Haiti is the poorest country in the Western Hemisphere, Japan remains one of the wealthiest nations on the planet. So the Haitian government estimated 230,000 dead (others guessed fewer, but all agree that the number exceeded 100,000), while the Japanese devastation, though too early to quantify yet, will almost surely be much lower. (As I write this, 20,000 is the new “best guess.”) So the earthquake about 100 times stronger (in Japan) will likely end up causing the deaths of about one-tenth as many people as the weaker one (in Haiti). Please don’t think I mean to minimize any of this. I’m trying to make a point, and I can barely stand to watch these images.

There’s plenty more to do, and to say, than to simply gawk at the horror and tally the dead. There are questions of constructing buildings to withstand earthquakes (and boy, did Japan do a good job there — not even one of the strongest quakes in recorded history caused a single skyscraper to topple; again, compare Haiti), personal preparedness for disaster (and the interesting psychological questions relating to why we don’t prepare for low-frequency, but high-impact events), and, inevitably, the safety of the nuclear power industry.

In its way, a natural disaster causes us to think about, report on, and try to fix just as many things as does a revolution; just in a different way. And it’s a mistake to think that one raises more complex questions that the other.  There are simply two very different kinds of entropy to be dealt with.

9/11, Katrina, and the BP Oil Spill: The Inconsistency of Compensation

May 29th, 2010 2 comments

The by-now predictable, tedious, and irresponsible Republican bulwark against raising or eliminating the criminally low liability cap that would leave claimant against BP out in the cold really has me frosted. And it’s gotten me thinking about how we compensate people for loss in front-page cases: September 11; Katrina; and this BP oil “spill.”

Let’s talk about who was responsible for these tragedies, and how the victims have (or haven’t been) compensated for their losses.

September 11 was, of course, a terrorist act, but under established principles of tort law, other actors could be liable: airport security, airlines, and — further down the chain — the federal government, for missing the warning signs. But the government, to bail out the struggling airline industry, and in an effort to pile sandbags full of money at the border, created the Victim Compensation Fund. At taxpayer expense, the Fund (not really a “fund” at all) paid out more than seven billion dollars, mostly to surviving family members of those killed when the Towers fell. Some received millions, because payment was largely based on a tort model. I’ve criticized this approach, noting that government should not be compensating people as though they’re tort victims, and that doing so reflects a confusion between the principles of corrective justice (righting an imbalance between two parties caused by one party’s negligence) and distributive justice (deciding how best to allocate the resources across society).

To call what happened in New Orleans “Katrina” is really a misnomer, because the hurricane isn’t what caused the widespread and continuing destruction of large sections of the city: the government did so, through the negligence of the Army Corps of Engineers in connection with the building and maintenance of the levee system, and of untold bureaucrats in designing the Mississippi River-Gulf Outlet (“MR-GO”). The government is immune from suit for the levee failure (but not for MR-GO related negligence), so those injured, financially wrecked, or rendered homeless in the wake of Katrina had to content themselves with the meager assistance afforded by the Federal Emergency Management Agency. (Criticisms of FEMA’s response are legion and some, like this one from Kevin Drum in Mother Jones, are devastating; but they miss the more central issue.) I’ve criticized this approach in several places, including the documentary film “America Betrayed,” and this article.

Now comes the BP disaster, which threatens to swamp the rest. Yet because of an ill-considered federal law that I discussed here, BP will be liable for clean-up, but for only a relative pittance ($75 million) for liability to those economically or otherwise ruined. Unless this cap is lifted — and the legal change is made to apply retroactively — or unless there’s a government “fund” created, many of those destroyed by BP’s probable criminal acts will be entitled to…nothing.

How can our different responses to these tragedies be explained? Only by thinking about politics and power, not by looking at justice. But there might be a limit: Expect the law to change, and for BP to be held accountable. (Please!) If not, President Obama has suggested that the taxpayers will be on the hook. If we are (and I wouldn’t object), let’s spend more time thinking about a better model of compensation when we’re all left holding the bag.

And we must demand more comprehensive regulation: As Rachel Maddow pointed out this week (with her outrage well-justified by the facts), a similar spill went on for months about thirty years ago, and the same useless efforts were made then, as now, to stop it. She concludes, correctly, that Big Oil has gotten much better about drilling deeper and deeper (200 feet v. 5,000 feet), with correspondingly higher risks, but not any better at all about stopping it once it happens. Enough.

Katrina Invades my Post-Christmas Funk

December 26th, 2009 No comments

The weather couldn’t be worse here in North New Jersey, where we’re staying. Pelting rain has melted most of the snow, and the remaining stuff is the worse kind of mushy slush. We have to drive back to Philly in few hours, and only (1) a nap; (2) liters of coffee; and (3) two dormant children will allow this to work.

I was too cold and lazy even to go out the car to drag in the Agassi biography I’ve received for Christmas. It would have been a perfectly no-brain read for a no-brain day, but…

Instead I picked up the book David had gotten (The Best American Short Stories 2009), and thought I could make at least this much of an investment in fiction. For whatever reason, I don’t read much fiction any more, and when I do I almost always read novels, not short stories. It take something to get me started, so once I’ve expended whatever energy I need to dig in, it might as well last for a few hundred pages. It’s like swimming: I’d rather do a set of four times 500 yards than, say, sixteen times 100 yards. The latter is too many “things.”

But there it was, and the kids were watching something only they could love, so I went in search of a story. Steve De Jarnatt’s “Rubiaux Rising” tells a strange, claustrophobic story of an Iraqi vet whose mutilation has led him to pain-killing addiction, and thence to apparent immurement in an attic, unless the waters from Katrina rose up to claim or free him.1 It’s one of the most sensual stories you’ll ever read, with a ripe tomato taking on a quality that will draw you in.       

Like Dave Eggers’s Zeitoun,  “Rubiaux Rising” uses the misery of one person’s struggle to captures something primal about both nature (Katrina) and the coarseness of humanity. I was reminded, a little, of Poe.

  1. You don’t think I’m going to tell you which, do you?

Is Mary Landrieu Defensive, or Right?

November 21st, 2009 No comments

Probably both.

Today, in advance of the Senate’s strictly partisan vote to proceed to debate on the health care reform bill, 1 Louisiana Sen. Mary Landrieu attempted to do what might have seemed impossible: She not only defended the $100 million in earmarks gifted to her state, but actually called herself “proud” of having asked for an amount she then, audaciously, put at about $300 million.

In her remarks today during the debate leading up to tonight’s historic vote, Landrieu made the point that federal money going to her state had been reduced because of a formula that counted one-time, Katrina-based relief as income. That accounting move cruelly inflated what the residents, and the state, really had to work with, and thereby deprived it of money it needed to rebuild. If she’s recounting the problem accurately, then the media attack she’s endured is just another example of our collective failure to do right by the survivors of Katrina.

  1. Will someone please reform this dysfunctional body before the U.S. Government becomes California?
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U.S. Government: Compensate Katrina Victims

November 21st, 2009 1 comment

The recent news that a federal judge has ruled the U.S. Army Corps of Engineers, and by extension, the U.S. Government, liable for at least some of the preventable disasters associated with Hurricane Katrina should lead the government to do what it should have done long ago: Provide generous, long-tail assistance to help the residents of New Orleans get back on their feet.

To see why, just take a moment to compare what “we’ve” done for victims of another disaster: September 11. In that case, the Victim Compensation Fund was created to pay not even the survivors of that horrific event, but their families — in some cases, to the tune of millions of dollars. In all, the Fund spent just under seven billion dollars in taxpayer money for an event that the government was not responsible for.

With respect for the victims of that tragedy, I argued against such lavish compensation here and here. Part of the motivation was to avoid potentially crushing liability against  the airlines for their dismal security procedures,1 but that would have better been done through a direct bailout of those industries. Wait! We’d never bail out a failing company.

By contrast, the government awarded only the minimal payments available under federal disaster relief to Katrina’s victims, despite documented negligence (or worse) on the part of state, local, and federal government. And  the federal government, rather than defend the suits against them on the merits, has raised every possible procedural argument. First, they argued that they couldn’t be responsible for the flood-induced breaches of levees that the Corps had built or maintained, because of the Flood Control Act of 1928. That Act does clearly provide governmental immunity in connection with flood control projects, so the court held that the statute barred some of the claims.

Other claims, though, were based on acts of shocking negligence in connection with the maintenance of the White Elephant known as the Mississippi  River-Gulf Outlet (MR-GO), a navigation short-cut from New Orleans to the Gulf of Mexico. Here is a good summary of the allegations of negligence,  which were accepted by the court after a long trial:

The claimants alleged the government failed to properly design, construct, operate and maintain the MRGO, a 76-mile man-made ship navigation channel that connects the Gulf of Mexico to the Port of New Orleans Inner Harbor Navigation Canal. The claimants further alleged that the design of the MRGO (with the surface width being wider than the bottom width), along with the inevitable widening that would occur from waves in the channel, allowed the MRGO to act as a “funnel” for the Hurricane Katrina storm surge. Additionally, the salt water that was allowed to enter the MRGO from the Gulf allegedly killed off the storm-slowing plants and vegetation, further contributing to the “funnel” effect for the storm surge.

Since MR-GO isn’t a flood control project, the immunity probably doesn’t apply. But because of where MR-GO is situated relative to the damaged and destroyed neighborhoods, only residents in the Lower Ninth Ward and St. Bernard Parish were able to recover. Others are out of luck.

The government is considering an appeal. If one is filed, the brief would likely argue that the more general immunity under the Federal Tort Claims Act protects them. Interpreting and applying that immunity is challenging (for reasons that would numb any and all non-lawyers, and many lawyers as well), but my guess is that the judge’s opinion on that issue would stand.

The Government is likely afraid of the many millions of dollars it might have to pay out once others join the suit. But anyone who hasn’t already filed is barred by the statute of limitations. So the total payout that would be required isn’t clear; and in any event almost surely wouldn’t approach the amount paid out for 9/11.

Here’s a radical idea, government lawyers (Obama Administration): Settle the case! Offer structured payments. Set up enterprise zones and incentives for loans to start-up businesses. Build homes for people.  Rebuild the private medical and public health infrastructure. Such initiatives are long overdue. I have mixed feelings about tort liability against the government in any case, but surely some kind of considered, carefully designed compensation has by now become a national imperative. It won’t erase this national disgrace from our history — nothing can, or should — but it would be a compelling show of compassion.

  1. So now we have to divide our personal hygiene products into small bottles in order to board a plane.

Court Rules Army Corps Committed “MR. GO” No-No

November 19th, 2009 2 comments

This just in: Federal district court judge Stanwood Duval Jr. has awarded hundreds of thousands of dollars to Katrina victims, payable by the U.S. Government because of the negligence of the Army Corps of Engineers.

The government — the same government, by the way, that awarded billions of dollars to the surviving family members of those killed by the September 11 attacks — had tried to stand on immunity for flood-control-related projects, but the court didn’t buy it. The Mississippi River Gulf Outlet (“MR.GO,” to locals) is a shipping channel — not a flood control project — that created a shortcut from New Orleans to the Gulf of Mexico. Now seen as ill-advised, it was also, according to Duval, dismally maintained:

“It is the court’s opinion that the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and short-sightedness.”

Unless the decision is reversed on appeal, expect many thousands of displaced and injured Katrina victims to get in line for recovery. As I’ll explain in a fuller post tomorrow, they have a strong case.

Zeitoun — One Katrina Family’s Story

July 21st, 2009 2 comments

In the compelling Zeitoun, Dave Eggers (best known for “A Heartbreaking Work of Staggering Genius”) has created a piece of advocacy journalism that deserves to be read and discussed. I plowed straight through the first 200+ pages on Sunday night, stopping only when I simply couldn’t stay awake. Then I finished it last night, after impatiently putting the kids to bed. Positive reviews and summaries are starting to come in, and there’s a nice interview with Eggers over at Salon.

This non-fiction work chronicles the lives of Abdulrahman and Kathy (nee Delphine) Zeitoun, a Muslim couple living in New Orleans in 2005, when the city was brought down by Hurricane Katrina.

Eggers masterfully sketches out the successful but somewhat plain lives of the couple in sympathetic detail, using the lead-up to Katrina for descriptions of and digressions into:  their successful contracting business; Abdulrahman’s ancestry and childhood in Syria (including a lavish description of his aquaphobic father and his late brother, who became arguably the greatest ocean swimmer in the world); Kathy’s Christian upbringing and her conversion to Islam; and, most significantly, the couple’s loving relationship and their warm family (including Kathy’s son from a brief, early marriage and the couple’s three daughters).

Like any good documentary work, Zeitoun ties the joys, stress, travails and humiliations of the Zeitoun family to the larger issues of our collective national failure during and after Katrina. (The story doesn’t dwell on the failures that allowed Katrina to devastate the city; for that, see this and this.)  As was typical when severe hurricane warnings were posted, Kathy and the kids evacuated the city while Abdul remained behind to protect their home and the many rental properties the Zeitouns owned and managed. The book effectively cross-cuts between Kathy’s odyssey (involving nasty relatives, interminable traffic, and — finally — escape to her best friend’s home in Phoenix) and Abdulrahman’s heroism and subsequent incarceration.

After the flood, Zeitoun (as he’s mostly called) used his canoe — which he’d bought for no real reason some time ago, but now saw as providential — to rescue people who might otherwise have drowned, and to feed dogs who would otherwise have starved. Eggers effectively reflects Zeitoun’s own sense that he was meant by God to stay, and that his actions were heroic (although Zeitoun would never have used that word himself). Yet from the start, Zeitoun and other residents are treated as annoyances by the very government rescuers who were supposed to be helping them.  At one point, two government speed boats zoom past the canoe, almost capsizing it and ignoring his plea to stop. In another inexplicable incident, Zeitoun is unable convince government workers to do anything to rescue an elderly couple that will surely otherwise drown. (Zeitoun and a friend are forced to return and improvise a risky strategy of their own.) Yet for the first two-thirds of the book, the reader is somehow buoyed (sorry!) by the can-doism of Zeitoun and his fellow residents (especially Todd Gambino, who might have rescued as many as 200 people).

Then the book turns dark. Kathy can no longer contact her husband, and, assuming him dead, falls apart by degree (It can’t get worse than this, she thinks.). But Zeitoun isn’t dead; he’s been imprisoned. Zeitoun and others (including Gambino) captured in a house that Zeitoun owned were arrested, placed in a makeshift prison at the New Orleans Greyhound station, and then transferred to a maximum security prison. For almost three weeks, Zeitoun was given no reason for the arrest (there were unofficial statements that he and one of his fellow prisoners “were al Qaeda”), not arraigned, and not even allowed to make a phone call to his wife. The conditions in the prisons made sleep or comfort almost impossible. Despite severe and disabling pain, he was never granted access to a doctor. He was given food (pork) that he couldn’t eat. This is the man Kathy found after those three weeks:

“He looked like a different man, a smaller man, with longer hair, almost all of it white….He’s so small, she thought….She could feel his shoulder blades, his ribs. His neck seemd so thin and fragile, his arms skeletal. She pulled back, and his eyes were the same — but they were tired, defeated. She had never seen this in him. He had been broken.”

Why, though?

The reasons for the treatment of Zeitoun and thousands of others (Gambino spent five months in prison, and after charges were dropped, never recovered over $2,000 that had been taken from him) are complex, but a few realities emerge:

Once FEMA was made subordinate to Homeland Security, the focus — even in a situation that was clearly a natural disaster and not a terrorist strike — changed from public health and emergency management to law enforcement. Homeland Security had thought through how terrorists might exploit the aftermath of a natural calamity and then, doubtless fueled by hysterical media reports about looting, rape and murder, worried less about rescue and provision of basic services than crime prevention. Consider the construction of the emergency prison and the vast amount of time and money that went into it; this isn’t what one does in regard to a public health catastrophe. (See pages 236-237 for a vivid account of this issue.) As Professors Wendy Mariner, George Annas and Wendy Parmet state in a recent article: “Since September 11, 2001, emergency preparedness policies have shifted their focus from public health to national security….[T]his shift is both contradictory and ineffective.” Zeitoun makes this point graphically.

Further, once the issue moves away from emergency management and public health to law enforcement, the potential for abuse soars. Law enforcement will avail itself of all available tools, and, given the opportunity, will come to reflect the worst prejudices of the society. Thus, it’s never entirely clear what impact Zeitoun’s Middle Eastern appearance had on his treatment (was it really all about looting? but then why no chance to explain, no chance to make a phone call?), but it is plain that his African-American cellmates were there at least in part because of their skin color and racial profiling.  This story is the worst:

“One man said he was a sanitation worker from Houston. His company had been contracted shortly after the storm to come in and begin the cleanup. One morning he was walking from the hotel to his truck when a National Guard truck pulled up. He was arrested on the spot, handcuffed, and brought to Camp Greyhound….He was in uniform, and had identification, the keys to his truck, everything. But nothing worked. He was charged with looting and put in the cages….” (pp. 258-59)

Don’t even get me started on the FEMA trailer debacle that forms a kind of slapstick sideshow to this extraordinary work. (It’s detailed on pages 308-310. Preview: a trailer is pretty much useless if you can’t get into it.)

The book concludes with a chapter about the Zeitouns’ life now. Abdulrahman is more of a workaholic than ever, seemingly trying to forget by rebuilding. And “Kathy has lost her memory. It’s shredded, unreliable.” Because of what happened to her husband, she’s become a fretting mother, afraid to allow her kids the freedom they need to develop.

The Zeitouns (especially Abdulrahman) emerge as particularly resilient, emblematic of the American optimism and capacity for reinvention that may have led this Syrian national here. Not even the Department of Homeland Security was able to crush that spirit.

By all means, buy this book. Eggers is getting none of the royalties, having committed them to various relief organizations that are spelled out at the end of the work. And it will keep you up late.

America Betrayed

March 20th, 2009 1 comment

Hurricane Katrina was a bit player in the disaster that befell New Orleans; a Category 1 hurricane (there, although stronger elsewhere), it was able to swamp the city only because of an egregious, decades-long failure on the part of the Army Corps of Engineers to ensure that the levee system protecting New Orleans was sound.

This failure, which received considerably less attention than the horrific failure of government at all levels to respond to the disaster, is the subject of Leslie Carde’s searing documentary, “America Betrayed.”  The film, about to come out in limited release (so far, only to Portland, Oregon and New Orleans), features prominent scientists, award-winning journalists, and some of the many residents whose lives were tragically and needlessly upended by a combination of neglect and corruption.

I’m in it. Leslie Carde contacted me  because of this article I had written on the generous compensation that had been awarded the families of 9/11 victims.  The compensation, running to millions of dollars of taxpayer money in some cases, represented a dramatic and unprecedented departure from our usual response to disasters, which is to provide just enough government funding for people to struggle back to their feet. Leaning into a strong headwind, I argued that the 9/11 Victim Compensation Fund had to be justified by principles of distributional fairness on a society-wide level, and that it could not be so justified.

Based on this article, Carde thought that I might have something to say about the comparatively poor treatment that the victims of Katrina had received from the government. She was on the beam. I had just written another article expressly comparing these two cases. (You can find and download it here, under the title: “What Does Justice Owe the Victims of Katrina and September 11?”)  In polite academic terms that I can cast aside here, I strongly criticized what I saw as disparate treatment in the government’s financial response to the two disasters. While the horrors of 9/11 engendered the Victim Compensation Fund, New Orleans residents received meager FEMA relief, including those now-infamous, formaldehyde-riddled trailers. This appalling disparity was heightened by the fact that the government was in large part to blame in the case of Katrina, but not so much with regard to the events  of September 11.

So in my brief — yet career-making — appearance in “America Betrayed” I call into question this disparity, and invite us to wonder at the reason for it. This comes towards the end of the film, when Carde expands her lens beyond Katrina to talk about deeper problems of infrastructure, readiness, and — ta da! — justice. For most of the film, prepare to be awed (not in a good way) by the horrific failures of your federal government to protect its citizenry. Can we please devote some of the stimulus money to infrastructural improvements that might reduce the chances of another needless catastrophe?

Oh, wait: Louisiana Governor Bobby Jindal — more concerned about his own future star within the out-of-touch Republican Party than with (for example) the citizens of his state, has turned down some of the stimulus the money. In his career-destroying response to Obama’s speech to a Joint Session of Congress, he also criticized money in the stimulus package for monitoring volcanoes for possible eruptions — you know, eruptions that could spell disaster for those in the path of the lava.

Quick study, that Gov. Jindal.

The Limits of Marriage Equality

January 7th, 2009 No comments

What is marriage equality for, anyway?

Is it for gays and lesbians to gain access to the many benefits of marriage?

Is it for us to be recognized as full and equal citizens, with the benefits best seen as a welcome “side effect”?

Maybe it can stand for something much broader – equality not as an excuse for the complacency that assimilation too-often creates, but as the impetus for broader engagement on the most fundamental issues of social and political justice.

Huh? Let me be less abstract.

Begin by imagining a time, likely in the not-too-terribly-distant future, when full marriage equality is achieved. This achievement will be vital and inspiring, because it will represent a crucial step in the recognition of our citizenship and – equally – our common humanity. Nothing that I’m about to add should be read as detracting from the importance of that step. Unless and until our relationships are accorded the full respect that only legal recognition can create, we’ll remain outlaws in many senses of that freighted word.

Was marriage (of all things!) the right place to stand? I think so, but at this point, it doesn’t matter. This is where we are standing, so we have to win. It’s that simple. We can’t allow our fellow citizens, often by simple majority vote, to deprive us of rights that under any reasonable legal analysis are fundamental. I won’t even bother discussing civil unions here, because their inability to deliver equality is too apparent for further discussion. (But in case you want such discussion, here’s what the New Jersey and Vermont commissions studying civil unions had to say; here, too, are the views of the California and Connecticut Supreme Courts.)

But marriage equality should do more than legally empower us: It should inspire us to look more broadly at issues of basic fairness, justice, and consistency. As Nancy Polikoff, a law professor at American University has pointed out in her excellent book “Beyond (Straight and Gay) Marriage,” sometimes marriage-lite alternatives such as domestic partnership have not only enabled the forging of broader coalitions, but have also created greater access to simple fairness in the process. For example, why shouldn’t any two adult household members be able to gain health benefits from the employer of one of them, if such benefits are afforded to married couples? Domestic partnerships can permit same- or opposite-sex couples who can’t or won’t marry (and why should they have to?) to achieve parity with married couples in specific areas where tying benefits to marriage is questionable, at best.

This recognition, in turn, invites broader questions, not only about the connection between marriage and benefits, but about the broader distributional choices involved in shoveling cash and prizes towards married couples while we ignore many deep social inequalities. To be pointed: Is it obviously more important to provide spousal social security death benefits that are not at all means-tested than it is to make a greater national commitment to the still-invisible victims of Hurricane Katrina? Are the tax benefits to joint filers of greater importance than a national commitment to health care? If so, make the case – let’s not just continue to assume that marriage should be as thoroughly subsidized as it is.

I hope that, once the marriage battle has been won, we can use our new confidence and freshly minted, full-class citizenship, to take up the battle for equality – not “just” marriage equality.