Reflections on Victim Compensation Ten Years After 9/11
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.