Posts Tagged ‘September 11’

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.

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.

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.