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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.

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.

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.