What do the sinking of the Titanic and the collapse of the World Trade Center have in common? At first glance, not much. The Titanic’s sinking was due to a force of nature, whereas the World Trade Center collapsed due to the intentional actions of a group of evil men. The Titanic’s sinking didn’t do much in terms of international politics, military affairs or legal policy. The collapse of the World Trade Center and attack on the Pentagon had a much broader impact. And yet, in many ways, their stories are very similar.
In the aftermath of the Titanic major issues came to the forefront in newspapers throughout the world. Chief among these issues concerned negligence and arrogance: could the disaster have been prevented? Was sufficient regard given to the danger posed by icebergs and did White Star Line shipping company ignore this threat? Were proper procedures followed on the day of the incident, so as to have minimized unnecessary deaths? How did class impact the politics and economics of the disaster, as well as the aftermath? In this sense, aside from the terrorism factor, it seems, there are major similarities between the two disasters.
September 11th, 2001 was a day that will live in infamy. I was in New York City that day when the planes struck the towers, and I felt the same emotions of pain, shock, anger and horror that many of my fellow Americans experienced. While I understand the broad geopolitical and religious background within which such attacks took place, such academic understandings do not blind me to the sharply immediate, viscerally profound and most basic truths that came to the forefront of our consciousness that day: thousands of innocent Americans died and the hatred and conflict that has so often spread its tentacles around the globe had finally struck America. We were no longer alone. Our innocence and naivety were forever destroyed and we will never forget the consequences that such an awakening brought forth into the world, whether in terms of the War on Terror, increased Homeland Security Laws, increased interactions with the Islamic World, for good or for ill, and a greater and more urgent national discussion on the true nature and meaning of civil rights and civil liberties in a time of “national emergency.”
When all is said and done, however, my mind invariably comes to an issue that we often forget and try hard not to remember-the issue of legal compensation. This may sound harsh, cold, impersonal and inappropriate to many who are marking the day with solemn reminders of sacrifice and suffering. But I think we cannot do justice to the memories of all of those who perished unless we are honest---totally honest—with ourselves regarding this issue and what it says about ourselves as a nation: whether we can truly come together as a nation in the face of catastrophe—as our politicians keep saying—or whether we continue to be plagued by the ancient divisions of class not only during, but perhaps even more so, during times of crisis and despair.
The September 11th Victim Compensation Fund, 49 US 40101 (2001), was created by an Act of Congress shortly after the terrorist attacks of September 11th, 2001. It was pushed to the forefront of the legislative agenda by key lobbyists within the insurance, underwriting and aircraft/airline industry who feared massive civil litigation in the wake of the attacks as a result of an unprecedented onslaught of lawsuits against airline companies, airports and their governing/managing authorities, for their failure to adequately prevent terrorists from gaining entry to the doomed airline flights, and, once onboard, from gaining access to the cockpits within said airplanes. This, even though there was sufficient credible and reasonable warning by the government, that had been issued for a number of years, regarding the threats of Al Qaeda and Osama bin Laden, the threat of airline hijacking, which had existed as a credible and realistic threat since the 1970s, and the credible and realistic threat of suicide bombing, which had been used repeatedly by Al Qaeda, and of using airplanes as guided missiles—a tactic that was perfected by the Japanese in the 1940s and re-introduced as a tool of terrorism and guerilla warfare by the Sri Lanken Tamil Tigers during the latter half of the 20th century.
Even if such lawsuits had failed on some counts, they would have inevitably prevailed on other counts. Various other countries throughout the world, such as the United Kingdom, Germany, Ireland and Israel had instituted serious, modern anti-terrorism and anti-hijacking measures into their planes and airports decades earlier. The United States, plagued by bureaucratic ossification and conservative refusal to believe that “it could happen here,” not to mention ever-present corporate greed that manifested itself in a constant refusal to spend the minor funds that would be needed for the necessary security upgrades, failed to act. As such, an easily preventable terrorist attack was committed by a tiny group of men armed with nothing more than box-cutters, resulting in the largest single violent loss of civilian life in US history.
A class-action suit on the behalf of victims’ families, once brought, was thus guaranteed to prevail. This much was certain. And Congress acted with lightening speed to protect one of the most heavily subsidized and favored businesses in the country: the commercial airline industry.
The 9/11 Victim Compensation Fund was given $7 billion to distribute to victims and their families, but only if they promised to sign a waiver, promising to never sue the airline industry or any airline companies and/or airports for their lack of adequate security or proper safety measures.
In exchange for this promise, the Commission would distribute money to the victims’ families based on a calculation of their projected future earnings. If the victims’ families disputed the reward, they were denied the right to appeal the commission’s decision in Court. Instead, they would go through various rounds of arbitration with a special established commission, headed by Washington D.C. superlawyer, Kenneth Feinberg, who headed the fund (and who would also, subsequently, be appointed by British Petroleum to head-up the BP victims’ compensation fund, after the recent Gulf Coast oil spill; however, his service in this role has been controversial and has been questioned by a Federal Judge due to a lack of transparency and potential conflict of interest issues).
To date, the 9-11 Victim Compensation Fund stands as one of the biggest waivers of litigant rights in all of US legal history. Yet this side of the story is the one that often goes unreported. This is nothing new in law. For the past few decades, large US corporations have been preventing civil Plaintiffs from seeking access to the courts, by way of mandatory arbitration clauses which require them to forego a trial, in exchange for binding, confidential arbitration. Corporations argue that such arbitration is cheaper, but this really only tends to be the case from their own perspective. From the perspective of Plaintiffs, Arbitration often tends to be much more expensive, when you factor in their low incomes and inability to pay the mandatory up-front costs required for the proceedings. Contingency fees are usually disallowed in arbitration, although there are exceptions.
I have had many issues with the Victim Compensation Fund. For starters, I am amazed that US tax dollars have been used to give the families of incredibly wealthy financiers, stock brokers and investors multi-million dollar settlements. This is not meant to sound mean-spirited. I understand that many families, rich and poor alike, suffered in the aftermath of 9-11. That said, I would have preferred if the government had established a payout ceiling, above which such compensation payouts did not surpass. Many of these wealthy financial-sector victims of 9-11 had immense savings and fortunes prior to their deaths. Their families would have been well provided for, regardless of whether the government compensated them. The US government, it seems, by way of a tax code and legal system that favors the rich, looked after these people’s interests a great deal prior to 9-11. And after 9-11, it quickly came to their rescue and looked after their interests some more.
The Commission was so interested in looking out for the financial and personal interests of well-healed financiers, that there were many stories, many of them confirmed by Mr. Feinberg himself, that the US government actually had to compensate mistresses and illegitimate “love children” of philandering stock brokers, giving them hundreds of thousands of dollars, if not millions of dollars, due to the fact that said financiers were secretly supporting their mistresses and “love children” on the side. Mr. Feinberg discussed this fact during a speech at my law school. He also informed us that he was obligated, due to the rules laid down by Congress, to never disclose this woman’s name, the name of the person she was cheating with, especially to the man’s legal wife and children. I don’t know about you, but I have a major problem with US tax dollars being used to subsidize the mistresses and illegitimate love children of millionaires…
On the other hand, there were countless low-wage, non-union, recent immigrant and service sector victims of 9-11 who were frequently victimized by the system and by their employers prior to that horrible day of infamy. Janitors, food-workers, low-wage contract workers, per diem workers, data entry folks, secretaries. Folks who worked for next to nothing and had no benefits, no job security and may have worked two or three jobs, without vacation, just to provide for themselves and their families. The US government never looked out for their interests and frequently turned a blind eye when their employers exploited and abused them, just so that they could make a quick profit. Many of these people’s families are currently hurting a great deal as a result of the current recession. A recession caused, I remind you, by stockbrokers, financial advisors, speculators and financiers.
We never hear about the poor folks, though. These forgotten and nameless people who mopped the floors, cleaned the toilets, typed the letters and dealt with the giant egos and padded wallets of the Masters of the Universe who acted like Gods on Earth in Lower Manhattan. They died, too. They were victims, too. Nobody talks about them. We only talk about, we only commemorate the wealthy and the famous, or those who belonged to well-funded and politically powerful first-responder unions, like the Firefighters or the Police Department. These guys are great. I respect the cops and the firefighters a great deal and think that their professions are a hundred times more honorable than stockbrokers and financiers. I cried when I watched the police and fire department funerals on television, when I realized how many of them died running up the stairs trying to save other people’s lives. How different their life-ethic was from those financiers and stockbrokers, who made their living fleecing and robbing from others? The one profession is dedicated to giving, while the other is committed to taking.
All I want to say is that we should do more to commemorate those poor folks who didn’t have a union, who didn’t have a pension, who didn’t have insurance, and whose families are suffering horribly, because of the loss of their principal wage earner. The loss of a stockbroker dad who was worth $5 million may not force a family into homelessness. But the loss of a father or mother who made $24,000 and supported a family of 4, that could mean the difference between solvency and homelessness.
Ergo, I think it was totally wrong to compensate folks based on a projection of their total projected future earnings. I think they should have looked at “need” as well. And if the people didn’t “need” any more money, the government should have been less forthcoming with the payout. On the other hand, if the people were dirtpoor and needed the money a great deal, they shouldn’t have penalized the family for being poor. They needed that compensation a lot more.
A final issue I have with the Victims Fund is the fact that it has repeatedly made it very difficult for First Responders and Cleanup Workers to collect proper compensation for the various health related problems that they acquired on the day of infamy. Although the Victims Fund was closed some time ago, it was recently re-opened, due to the fact that countless first responders have continued to report serious pulmonary disorders, skin rashes, eye problems and the like, due to contamination with particulate matter, dust and hazardous chemical debris at Ground Zero during the actual collapse of the towers, and in the aftermath, during the cleanup.
When she was a Senator from New York, Hillary Clinton tried and failed to address this issue back in 2006. In January of 2011 the James Zadroga 9/11 Health and Compensation Act was passed. It is named after a 34 year old NYPD officer and 9-11 first responder who died of a mysterious pulmonary disease in 2006, despite his never having been a smoker and having had a lifetime of perfect pulmonary health. Although he was able to collect from the commission, it was a tough battle. The State of NY enacted legislation, named after him, making it easier for First Responders suffering from serious pulmonary disorders to collect money for their affliction, and the Federal Government followed suit.
That said, the government only provides compensation for any illness short of cancer. Similar to Insurance Defense Attorneys and countless asbestos manufacturers throughout the nation, the Victims Commission is refusing to acknowledge a link between the particulate matter present at Ground Zero and ANY form of cancer that a First Responder or Cleanup Worker may be suffering from. It would be one thing if the Commission would require these workers to prove the element of causation, on a case-by-case basis. That is logical and reasonable. Clearly, not all cancers are caused by exposure to the particulate matter present at Ground Zero. In my opinion, it seems improper, and a slap in the face to the working man, for the government to categorically deny ANY COMPENSATION for ANY CANCER RELATED ILLNESS. What are they going to do? Compensate you while you have severe bronchitis and newfound asthmatic symptoms, but preclude compensation once the symptoms become pulmonarily oncological in nature?
Once again, the Federal Government shows us that the Elite and Authorities in general tend to bend over backwards to help the wealthy and the well-healed, but they tend to try their hardest to ignore and hold back the pleas of the poor and the downtrodden. This is even more so during a time of crisis.
I can’t help but be reminded of those final scenes in James Cameron’s film, “Titanic.” When the ship was sinking, the officers and crew did their utmost to ensure that the wealthiest passengers had lifeboats and received everything that they needed. In the lawsuit that followed, their interests were the ones that were looked after.
But what about the poor on the Titanic? They were locked in steerage. The vast majority went down with the ship. And just like the impoverished and working class victims on the Titanic, so it is with the working class and impoverished victims of 9-11. They saw little justice before the day of infamy, and little justice after. The only justice our world provides, it seems, is for the rich and the well to do.
And if you don't believe me about the power of banks, the rich and brokerage firms and the priority they get in the government's concerns, then look no further than southern Manhattan, the site of Ground Zero itself. Its been ten years since the events of 9-11 and despite the agonizing pleas of the grieving families, wealthy and poor alike, that the City and State of New York, as well as the Federal Government, do something substantive in terms of a memorial and National Park at Ground Zero, nothing genuinely positive has come about as a result. The interests of the financial industry and real estate speculators have won-out and triumphed in the end. They will develop this area and with each new plan, the size of the proposed memorial and commemoration park gets smaller and smaller, with each passing year.
We're told that if we say this about 9-11, the Fund and the Memorial that we're unpatriotic. Well, too bad. Justice is Justice. And there's nothing more Patriotic than thumbing your nose to the unjust.