PAUL KIRK: Let me extend a warm welcome to all in the audience, to the first of the Fall Forums here at the John F. Kennedy Library. And I extend that welcome on behalf of our Board of Directors, on behalf of John Shattuck, the CEO of the Library Foundation, and on behalf of Debra Leff who is the Director of the Kennedy Library.
The first and most important thing I want to do is recognize the members of the Feinberg family who are here. Ken’s wife, DeDe -- DeDe where are you, dear? [applause] Ken’s brother David and his wife Sheila, and Ken’s sister Ruth and her husband Chuck Connor. [applause] And known to everybody in this audience and one who graces this hall with her presence often, we’re delighted that Vicky Kennedy is with us this afternoon.[applause]
This first forum, like all the forums that we’ve had here at the Library, are made possible by several generous sponsors.
They are the Bank of America and Fleet Boston, Boston Capital, The Lowell Institute. And we also have media sponsors as well including WBUR,
Boston.com and The Boston Globe. And finally we’re grateful to Raytheon Company and the firm of Nixon Peabody for their sponsorship of our Library Foundation’s Distinguished Visitors series. Tomorrow, as we all know, we as a nation and most of the people in the civilized world will remember the anniversary of September 11th.
Everything about that day and the things that followed, at least in my view, remain to be almost unimaginable. The hatred against The United States that was displayed on that day, the breach of our homeland security, the ability to simultaneously hijack and convert planes into suicide bombs, the unimaginable physical destruction, the unimaginable loss of human life and the sorrow and grief that followed, and the unimaginable courage of public servants – the police, the fire, the EMTs -- who were honored here by this Library as profiles in courage after their display.
Finally, the unimaginable responsibility of one individual as Special Master of the Compensation Victim’s Fund -- with a finite amount of money, to have to wrestle and decide the questions, the moral questions, the ethical questions, the legal questions, the economic questions that relate to the value of a lost human life and be able to explain that decision to the survivors -- an unimaginable responsibility.
We’ll be able to hear from that individual, a special friend of ours and of this library, Ken Feinberg, momentarily as he engages in a conversation with one of the world’s leading journalists, Jack Rosenthal. Jack had been with The New York Times for many years and presently is president of The New York Times Company Foundation.
He served for 27 years as senior editor of The Times newspaper. His foundation has administered college and matching grants, and in the case of 9/11, conducted an extraordinary 9/11 media fund which has raised and distributed more than $60 million dollars. Jack joined The Times in 1969 as chief national urban affairs correspondent, subsequently edited The Times editorial page where he won a Pulitzer Prize for editorial writing, and also edited The New York Times Magazine.
Born in Tel Aviv, grew up in Portland, Oregon, educated here in Massachusetts at Harvard. And from 1961 to 1967, he served in The U.S. Department of Justice where he was chosen by the Washington press corps as the outstanding press officer in the government. And he served in The Department of State as well. He was the principal editor of The Kerner Report on the educational issues. And we’re delighted that Jack will be helping to lead the discussion this evening.
Our country is most proud of Ken Feinberg as is The John F. Kennedy Library and its Foundation. This is a bit of a reunion of sorts because I can see others who had the privilege of serving with Senator Kennedy at various periods in his career and in our lives.
So we … and those folks are here, men and women alike to tell Ken, as I do, how proud we are of him. I think those of us who had the privilege and have had the privilege to continue to in some ways be within the Edward Kennedy orbit have a certain bond between us, a band of brothers and sisters.
Each of us came to the Senator’s office in different ways. Some of us applied and some of us were recruited. But we all came because we wanted to be with the very best. History has proven that to be the case. Every historian who’s written currently has said that Senator Kennedy is the best United States Senator in our lifetime. [applause] Someday we will not be here to read the ultimate chronicle of the United States Senator. But I daresay that when that history is written, Senator Kennedy will be the giant among those who have performed enormous public service through their role in The United States Senate.
To talk about his legislative accomplishments would take me 42 years, so I’m not going to do that. This man has been blessed with a gift of years his brothers were denied and he clearly has made the most of each of them. And I know how proud they must be as we all are of what he’s done for us as a public servant.
But I would say this on Ken’s behalf and on behalf of a lot of good friends out there who are alums of the Senator Kennedy office. Perhaps along with his family, we know things about Senator Kennedy better than the average audience here.
And the reason we love Ken and love each other is because of the magnet that brought us together and the values we share. And perhaps we know better than others of the human qualities, the generosity of spirit, the demanding, sometimes demanding but always inspirational leadership, the fierce sense of loyalty, the unwavering adherence to principle and the natural regaling sense of humor.
At the end of the day, all of the other public-written accomplishments aside, I would say that it is the strength of his character and the values that he carries in his gigantic heart that make all of us proud to cherish the friendship of Ted Kennedy. And we thank you Senator for that and we thank you for being here this afternoon. And I know you do know what Ken Feinberg deserves and will give him a warm introduction. [applause]
EDWARD KENNEDY: Thank you so much. One of the factors in our family is none of the Kennedys were ever terribly good at accepting compliments. This summer when my granddaughter Grace was named ‘sailor of the week’ … And when they announced she was ‘sailor of the week,’ she just sort of all got into a bundle and she just couldn’t even look up or look out or do anything at all. And so Vicky was trying to tell her, “You know in life, there’ll be people that will say something that will be nice about you. And you have to learn how to accept it.” And so Vicky was there and she said, “When they say you’re the ‘sailor of the week,’ you should say ‘Thank you very much. I appreciate that.’” As much as she tried, she could never get little Gracie to say, “Thank you very much.” She would just shy away.
I feel a little like that this evening after listening to Paul. I thank Paul so much. We’re all friends here this evening but I think as Paul and John and so many of you know, this institution means so much to me personally and to the Kennedy family.
It isn’t just the collection of the memorabilia of President Kennedy. He always thought that if he could create an atmosphere and a climate where people would feel that they could inspire individuals to give something back to the community in return for everything that this country has given to each and every one of us, it would have really served a very, very important purpose.
And there are so many aspects of this Library to reach out and to try and find the opportunities to inspire people to do just that, give something back to our country. That was something that was very important to him and to all of our family because that is something when we do that, The Kennedy Library is really the fitting memorial to my brother Jack. And tonight, he would consider the function of The Library and the reason for The Library to be very much alive and well.
When Attorney General John Ashcroft appointed Ken Feinberg, my former counsel and chief of staff, as the Special Master for the September 11th Victim’s Compensation Fund, many people wondered why a Republican attorney general would appoint a Democrat to be the administer of that fund.
The best guess was that it was mission impossible and better to let someone like Ken be on it.
Well, not too many Administration appointees can say, “Mission accomplished,” but Ken certainly can. [applause] And what a brilliant job he did. His experience and his extraordinary ability to reach out to the 9/11 families and to treat them fairly and with great compassion made his mission a huge success.
Over 7,000 9/11 family members, 98% of all those who lost loved ones on that tragic day, decided to participate in the Fund and were able to receive some compensation for the losses they suffered and that could never, never ever really be compensated for. In its own unique way, the Fund became a way for the nation itself to reach out to those who had suffered so profoundly from an attack that devastated all of us.
All of us who know Ken already had immense respect for his outstanding service to others and his great skill and dedication. All of these qualities have been demonstrated in abundance throughout his career. But now in his extraordinary service as the Special Master for 9/11 Fund, he has earned a place in history as a distinguished American.
And we’re proud to be able to honor you in this way for your genius in carrying out this immense responsibility so well. Your brilliant achievement showed you at your best, and showed government and the legal profession at their very best as well. On behalf of The Kennedy Library and the entire Kennedy family, I’m sure Jack would be proud of you too.
At a time when so many are asking what the country can do for them, it’s hard to think of a more perfect example of someone who asked what he can do for our country. When the 9/11 Fund was created, you said Ken, “I can do that,” and you did. And the whole country is very grateful for what this son of Brockton accomplished. Magnificent job Ken Feinberg. [applause]
KEN FEINBERG: Thanks, I appreciate that. [laughter] It’s an overwhelming honor to get this award. And it’s an overwhelming honor to get it from the man who’s meant more to me in public life than anybody, my boss Senator Kennedy.
Now let me just say, I say ‘my boss Senator Kennedy’. I haven’t worked technically for Senator Kennedy for over 20 years, almost 25 years. But as many of you know, once you work for Senator Kennedy he is always your boss. And woe be unto you when you leave his employ if you think he’s no longer your boss. [laughter]
So it’s particularly gratifying for me in accepting this award. First, to thank Senator Kennedy for actually presenting the award to me. It is a tremendous honor for me to receive this award from him. Secondly, the second reason I’m overwhelmed by this award is because in the audience, as Paul said a few minutes ago, are my former colleagues, my friends, my family led by DeDe and my brother and sister, their spouses, my son Michael, who I think is here somewhere.
And I must say, to accept an award like this in the presence of my mentors, Paul Kirk, Eddie Martin, Barbara Souliotis, people whose friendships I’ve cherished and who’ve taught me over the years what it is to work for Senator Kennedy and to work at his side and to accomplish so much. I’m grateful that they could be here today to join in this honor.
And finally and most important, it’s hard to articulate what it means to get an award from this institution. This institution is a very, very special place. It is far from just bricks and mortar. There are thousands of libraries in this country. To get a public service award from the beacon, the spirit of public service in this country, this Library, I can’t begin to tell you what it means.
I hope that by accepting this award, I fulfill in some small way the mandate of this institution, and that I’ve tried to be guided by this institution and what it stands for beyond just walls and hallways. And for that reason, of the awards that I’ve received for my work, getting an award from Senator Kennedy with Paul and Eddie and others in this audience from this institution, I am incredibly touched. I will cherish this day and this award forever. And I thank all of you for being here. [applause]
JACK ROSENTHAL: Ken and I are going to engage in a little conversation. It may or may not get heated. If it doesn’t, would you help us? [laughter] We’ll talk for a bit and then we welcome questions from the audience. The only condition is, don’t ask from your seat. Please go to one of the microphones so that when this evening is recorded, people will be able to hear you.
Ken, could I begin by asking a couple of personal kinds of questions. Looking back at what you did with the September 11th Victim’s Compensation Fund, I was struck first of all by the fact you were appointed on November 27, 2001.
The first interim final rules for the Fund were published three weeks later. It’s an astonishing act of professionalism and speed. And the final rules were published in January. This says something about the kind of intense involvement you must have had, first with the legalities and the formalities and the procedures.
A second fact that interested me to re-learn was that you personally talked to thousands of families. And when you occasionally would refer to this as ‘my Fund,’ it really was. Could you talk for a minute about what was so personally motivating?
I mean, it’s perfectly easy to imagine somebody doing a professional job of this, getting the rules set straight, having the program go off. But a year later, only 60% of the families had enrolled. You were out everywhere in the country, speaking to get people to enroll. Would you talk a little bit about the personal part of this?
FEINBERG: Speed was essential. These families were in desperate emotional straits, not so much financial straits. Most of them had received an overwhelming amount of private charity from different foundations, including Jack’s.
But the desire to get out there right away with the program and meet with families directly and walk into the lion’s den and explain to them, “Look this is what we can do and what we can’t do.” I felt that it was critical not to let things linger.
And so I began that process of going to Boston and Staten Island and New York City and New Jersey and Connecticut and California and Philadelphia, meeting with families one-on-one in small groups, in large groups, explaining to them what the program was about. I was the only one that … I was the visible symbol of the program. I didn’t expect the Attorney General or the Administration or members of Congress or anybody really to join me in this effort because I thought really I was responsible for reaching out to the families and convincing them of the wisdom of the program.
The program was just unbelievable. It’s unprecedented. There was no appropriation for this program. It wasn’t as if Congress said, “Here’s five billion. Spend it wisely.” Congress said, “Whatever it takes, spend it. Spend it wisely.” But there’s no carving up of an appropriated amount. All this money came out of petty cash from the U.S. Treasury tax free.
So it couldn’t help but have an impact on you when you would meet with these families, and one of whom would say, “Ten million won’t bring back my daughter. Twenty million won’t bring back my son. How dare you offer me hush money!” Over time you would meet with the families two, three, four, five times. And slowly but surely, gradually everybody came around and realized that there were no tricks, no secret agenda, just the generosity and compassion of the American people.
ROSENTHAL: Well, let’s talk about generosity for a minute. The original impulse for this Fund had nothing to do with generosity to the people. It had to do with protecting staggering airlines.
FEINBERG: No, that’s not true. The original impulse of the statute was to protect the airlines. The statute was drafted and enacted within a couple of weeks after 9/11 because the airlines said that if you don’t give us some protection from lawsuits, we’ll all go belly-up. They went belly-up anyway, but put that aside. But that they needed this protection.
Well there was nothing written in this statute that said, “Oh, and we must also pass a victim’s compensation law.” You could have bailed out the airlines without having this statute, this section, this Fund. I’ve never been convinced that this Fund is merely consideration for bailing out the airlines.
I think the Fund … True, the Fund was part of that legislation. But it took a certain part of the American character I think to come to the rescue and aid and help of fellow citizens. And that’s beyond airlines and no airline protection.
ROSENTHAL: Let me ask you a hard philosophical question about that point. 3,000 people died that day. Hundreds of people have died and thousands have suffered grieved losses in, say, this third round of hurricanes in Florida. Those people are no more to blame for their fate than the people who were on the 101st floor of the South Tower. Would you advocate similar federal relief for blameless victims of other disasters?
FEINBERG: No. That’s a very very difficult question. The question that Jack poses is one I get in letters: “Dear Mr. Feinberg, my son died at Oklahoma City. Where’s my check?” “Dear Mr. Feinberg, my daughter died in the African embassy bombings in 1997 in Kenya. How come I’m not eligible?” “Dear Mr. Feinberg, my son died on the U.S.S. Cole in Yemen defending our nation. Where’s my check?” “Dear Mr. Feinberg, my wife died in the first World Trade Center attack in 1993, committed by the very same people. How come I’m not getting a check?”
And you’re right. I even got a letter from somebody who said, “Mr. Feinberg, my husband last year saved three little girls from drowning in the Mississippi River and then he went under and drowned a hero. Where’s my check?” I think that this Fund can only be explained to those people, not very satisfactorily I might add, but I’ve tried to explain it, as you say, philosophically.
You can’t look at a program like this from the perspective of the victims. The only way you justify in a democracy carving out a program like this with very generous compensation for a very few people is that the nation felt that 9/11 was like Pearl Harbor, the American Civil War and the assassination of President Kennedy.
And that the nation, not the victims, the nation believed the psychic scars on the nation arising out of this required some degree of cohesiveness, community response. And that distinguishes this program. Congress felt that a foreign attack on domestic shores of this magnitude -- 3,000 dead, 2,500 or more injured, physically injured -- needed some type of political response from the community. That’s the only way I can explain this program and explain it to people who lose loved ones in floods or hurricanes or fires or Oklahoma City or whatever.
9/11 was different. It was a unique historical event that’s different from anything else. And I think that’s how Congress decided and how after the fact I justify carving out 9/11.
ROSENTHAL: You know, it wasn’t just Congress.
FEINBERG: No, that’s the lead in for Jack to explain that there was an unprecedented amount of private giving. People don’t understand this. My wife does. DeDe understands it because she’s constantly raising money for private charity. But as Jack maybe can explain, the amount of charitable giving, private giving, arising out of 9/11 was so great they still don’t know what to do with the money. They haven’t given it all away yet. They can’t give it all away. There’s just too much money available. And maybe you can explain Jack. I think it would be useful to tie in this phenomenon of private charity that supplemented this fund.
ROSENTHAL: Before we get to that, there’s something that both the congressional and the public response I think have in common, the same psychic impulse that led Congress to respond in the way that it did.
We started a fund on September 12th, thinking we might raise three or four million dollars. We had that much by the end of the first week. Our little fund ended up 62 million dollars. And the part that I’m proudest of is we spent it all by March of 2002. There’s no shortage of ways to spend it.
What was this impulse? Something like two billion dollars came flooding in to The Red Cross and to The Salvation Army and The September 11th Fund. Only 150 million came from the TV spectaculars that all the networks broadcast. You couldn’t imagine that kind of generosity on the part of the public. The San Francisco earthquake in ’89 I guess brought in 150 million. This brought in two billion dollars in a very short order. Why?
FEINBERG: Well, some of the answer is obvious. We are all goodhearted people and we were shocked. And we wanted to help the victims.
ROSENTHAL: I wonder though if there wasn’t more to it than that. I went home the night of September 11th, and many of you must have done the same thing. And we all asked ourselves the same question: “What can I do?” And there were lines for people to give blood until they had all the blood they needed. What everybody could finally do was send money, write a check.
And I think part of the motive might be called vengeful philanthropy. “We’re going to show the sons of bitches any way we can.” And I think that motive, the desire to strike back in the only way you could, in the only constructive way that you could helps to explain why there is so much hostility to the private philanthropies later, The Red Cross notably. But that’s a different subject.
FEINBERG: No, but I agree with that. Do you know, I’ve received very few letters, very few letters from American citizens complaining about the program. You would think that an award averaging two million dollars tax free, that’s the average award, two million dollars tax free. You would think that I would get a fair amount of letters from citizens all over the country, “Gee, you know this is just … Life is unfair and this is just ridiculous.”
To the contrary. Very few letters. Very few letters complaining about the generosity of the statute and the program. And I think that’s the reason why. I think people were glad to see through this compensation program, “We’ll teach the villains, the murderers a lesson in democracy and compassion.” I really do believe that.
ROSENTHAL: Ken, there are lessons to be learned from the national response to 9/11 at several different levels. I wonder if we could talk for a minute about the lessons in Washington both congressional and executive branch, the lessons for the big national charities and relief agencies, and the lessons for local communities.
Could we start with Congress? Having gone through this amazing experience, this intensely complicated emotionally as well as legally complicated experience, what would you say to Congress? How would you write this law if you were to do it from scratch now?
FEINBERG: Well, I’m not sure this law will ever be written again. It would take … People ask me all the time, “Is this a precedent? The next time, God forbid, there’s an attack, do we do this again?” I’m very dubious about that.
As I said earlier, it was a response to a very unique historical event. Next time, maybe Congress will decide to do the same thing. If Congress decides that it wants to pass or enact another compensation program, I doubt that they’ll do it this way where everybody who was eligible received a different amount of money.
It’s very American to do that, you know. It’s very American. Juries in Boston every day give more to the automobile accident victim who’s the banker than who’s the busboy or the waiter. Social Security is based on what you earn. But telling the fireman’s widow she’s going to get a million dollars and the banker’s widow is going to get two million dollars doesn’t sit well with the fireman’s widow. It fuels divisiveness among members who are getting this money. It raises all sorts of inefficiency questions.
“Ken, will you please calculate an award that will take into account what that banker would have earned over his lifetime?” I mean, that was what
The Congress asked me to do. But juries can do it in local communities. They get together and they go in the jury room and they figure these things out. Asking one person to do what I think is very, very difficult.
So will Congress do it again? I doubt it. I think this is a one-off piece of legislation unique in American history. If Congress decides to do it again, I would urge Congress to think about changing the law so that basically everybody gets a flat amount and you avoid the divisiveness that got everybody emotionally involved and screaming at me.
ROSENTHAL: What about the Executive Branch?
FEINBERG: The Executive Branch really …
ROSENTHAL: What have they learned or should they have learned?
FEINBERG: The Executive Branch learned what they should learn every day: listen to Senator Kennedy. [laughter][applause] In this legislation, the Executive Branch, I must say, took a chapter out of Senator Kennedy’s book. And this was extremely bipartisan.
The Administration couldn’t have been more supportive. It’s a lesson in bipartisanship for whatever the reasons, very, very supportive and very, very helpful. So I think this is a good example, maybe a rare example, of where polarization gave way to sort of a bipartisan consensus. They all felt so bad for me, I think that everybody was very supportive.
ROSENTHAL: From my experience, there’re several very big lessons for the Executive Branch to have learned. I’m not sure they’ve learned it, but I’d be interested to know what your own experience told you and what people in the audience know about this.
There’s a huge misconception at the beginning of this that could be summarized in the words ‘blankets and flashlights.’ That is, the traditional relief response to an earthquake or a tornado or a flood is for The Red Cross or other agencies to come pouring in with animal crackers and orange juice and responding to what they take … what they describe as short-term needs, leaving long-term needs to be dealt with by whomever later.
September 11th demolished the distinction between short-term and longterm. Yes, 3,000 people died. Yes, 15- or 20,000 people made their way out of the buildings. Yes, and on and on. You can count 200-, 300,000 victims without straining at all.
And it’s terrible tragedy to lose one’s life or somebody in your family to lose one’s life. But there were also 50,000 people who watched their jobs evaporate on screen that day. That The Red Cross and FEMA and other major national agencies … Economic losses are long-term.
I don’t understand what’s long-term, especially for somebody who works in a shoe repair shop or a pizza parlor. And there were 50,000 of those jobs in The World Trade Center. And the small businesses themselves who can barely make the rent and the ConEd bill from one month to the next, they’re out of business unless they get some help.
Well the Federal answer -- FEMA’s or SBA’s answer -- was, “Well we have loan programs for that.” Right, loan programs with a 34-page application you have to have an accountant fill out, you have to have collateral. Even if you had the accountant and filled out the 34-page application, and you had the collateral, which very few of these small businesses did, it was March before the first SBA loan came through, by which time …
On September 10th, 2001 there were 2,500 small businesses in Ground Zero. The next day, there were 1,500 and they were dying because either they’d been damaged or destroyed or paralyzed by no traffic. We all forget that for weeks you couldn’t move around downtown. And even if you could, you’d just stir up more deadly dust.
SBA or FEMA coming around six months later with a difficult loan was no answer, would lost another ‘x’ thousand jobs. One of the reasons I’m so proud of the work that private philanthropy did was we were flexible. We didn’t have huge due-diligence requirements. We didn’t have to worry about due-diligence because it’s due.
We got a job rescue fund started on October 7th . Bill Grinker and Carl Weisbrod have managed in downtown New York. And they so far have saved something like 7,000 jobs and raised $20 million dollars. I say this in some detail because I want to respond to something you’d said earlier about not being able to spend the money.
There’s another misconception about this kind of tragedy. We all tend to think of it in the noble terms that Ken has described about individuals and families. It’s also possible, and I think we’ve learned essentially to think about victims in categories. That is, people who’ve lost their jobs. They are maybe not victims in the same personally wounded sense that people who have lost a breadwinner, but their lives have dramatically altered.
Schoolchildren, there were 10,000 of them, all of whom, many of whom saw people jumping out of windows, whose days were lifetime scarred. I heard yesterday from the principal of a school in Chinatown. She said, “On election day last fall,” her school was the school that was inside of the twin towers.
When the kids came to school, they came running to her crying, wanting to be hugged. Why? Because outside the school there were these diagonal blue signs that said, “No electioneering beyond this point.” As we now remember, September 11th, 2001 was election day, and that was the last day these kids had seen those signs. And they made the association.
So that’s another category of people. Rather than just think about individuals, thinking about categories of need. Another category of need was legal service. The Legal Aid Society and Legal Services in New York both came to our fund asking for grants. And they both had terrific applications and I told them I wasn’t going to read them. I didn’t want to have to choose between them. But if they would submit a joint application, I’d be pleased to read it.
Well, they grumbled and they sent it in finally a day later, and it was terrific. What they decided to do was in effect create a private civil law firm for all victims of 9/11, whether they needed a death certificate, whether they needed to deal with a landlord who was determined to get the rent, whether they were illegal immigrants who had trouble with the immigration service. In all their 34 local offices there was going to be somebody, a paralegal or a lawyer, devoted to their needs. They did a sensational job.
I don’t know if any of you know about something called ‘Disaster Medicare.’ There were something like … there were thousands of people in Brooklyn and Queens who were deeply affected by 9/11 even though they had nobody there. They lived far away, they had no personal connection until they went to the doctor and couldn’t get their doctor bills paid by New York Medicare. Why not? Because all the Medicare records were at 7
World Trade Center which, as you know, disappeared. And the State said, “We can’t pay without paperwork because the Feds won’t reimburse us.” So the young lawyers in this program went to the State and said, “How about if you let us invent an interim program called Disaster Medicare?” And they provided a five-question questionnaire: name, address, age. “And do this until we can get the proper records reconstituted.”
And the State mulled this over for several days and finally said, “Well, okay.” The State ended up extremely unhappy because by the following March when the program expired, 170,000 more people had enrolled than had been on the rolls before September 11th. The bureaucracy was so simple. The point is these young lawyers did a sensationally good job.
FEINBERG: The lawyers, I’ve never been prouder of my profession. 1,400 families were represented by Leo Boyle and the trial lawyers pro bono, for free. Another 800 were represented by …
ROSENTHAL: By TLC?
FEINBERG: TLC, Tender Loving Care, TLC, Trial Lawyers Care. Trial Lawyers Care. Another 800 were represented at contingency fees of eight to ten percent. And then the rest didn’t want any representation. They came in by themselves or with their brothers or uncles or aunts or rabbis, priests, accountants, whatever. And the legal profession? Fabulous what they did here. Did it for free offering help to these people.
ROSENTHAL: There’s one other category that I’d be really interested in. You saw this up close. It’s something we all learned a lot about since September 11th. We called it ‘shock trauma’ or ‘9/11 shock’ or ‘posttraumatic stress disorder.’
It’s a subject that has had a bad name for most of human history. People thought of it as malingering. People suffering supposed shell-shock were just trying to get out of service. We now know a lot more about how the deep psychic wounds that an event like this can create. It’s easy to both over- and underestimate, that is, for a lot of people, even in New York, there’s natural resilience. You stop thinking about it after a while. You get over it, and you wonder why can’t everybody get over it. But the fact is that for maybe six or eight percent of the population, and that’s true whether it’s in Northern Ireland or it’s in places like Jerusalem, bus bombings, or in New York City where there is long-lasting serious effect.
One of the areas in which we were able to spend a lot of money constructively was addressing this with respect to uniformed-services. If you were a policeman in New York, anywhere, and you acknowledged that you are having some kind of mental difficulty, they would declare you a wacko and take your badge and gun away. So naturally whatever macho instincts you had anyway are reinforced.
Because of what Pam Delaney and The New York City Police Foundation did, they persuaded the Police Commissioner to create a program in which every one of the 55,000 uniform and civilian people in the department, including the Commissioner, all had to go at least once.
FEINBERG: See, that’s an example of something where there’s an overlay or inter-relationship between private charity and the Fund. We didn’t compensate post-traumatic stress disorder. We declared it ineligible for compensation.
We felt we didn’t have the time or the resources to evaluate each and every PTSD claim. So we took advantage of the fact that there were private institutions available to compensate. We wanted to streamline the process and require as much objective verification of injury as we could. There had to be a death or a physical injury for us to compensate.
I should say I’m asked all the time, “What was the single aspect of the program that was the most emotionally difficult and trying, aside from of course just listening day in and day out to these families who suffered so?” But I must say, and you folks can appreciate this, nowhere in this statute that was passed by Congress was there one word about who gets the money in the family or who can apply for the Fund.
So you would get situations like this: “Mr. Feinberg, I’m the brother of the victim. Don’t let my sister get a nickel. [laughter] The victim hated his sister, trust me.” Then the sister comes in. “Is my brother spreading rumors about the victim? My brother and I loved each other.”
Or, “Mr. Feinberg, I’m the biological parent of my son who was killed. Don’t you dare give the fiancée any money. That marriage was never going to take place.” Then the fiancée comes in. “We were going to be married October 11th.” And you go back to the biological parent. “They were going to be married October 11th. You threw a shower for them. You said you were gaining a daughter, not losing a son.” “Yeah, but on September 10th my son told me it’s off.” [laughter]
So these problems of how you deal with family squabbling. “Mr. Feinberg, I’m the gay partner of the victim. We lived together for 11 years. You should treat me as a spouse.” Biological parent: “That’s ridiculous. That relationship was coming to an end. And you shouldn’t treat a gay partner as a spouse.” “Gay partner, what do you say to that?” “When I moved in with the victim, the biological parents disowned him. And now 11 years later -- they didn’t speak to him for 11 years -- you’re going to give them a check? That doesn’t seem very fair.”
So we had these problems that we had to overcome as to how to treat these squabbles. How do I know what’s the truth? I have no idea what’s gone on with that family. So what we did, we came up, I think, with a very, very creative way, ingenious way to solve these problems.
First, I would try and work them out. I’d get the parents and the fiancée together. “Well, I don’t know.” I said, “Give her 30% of the award.” “Well, I don’t know. I don’t know about that.” “What if I add 15%?” “Oh well!” Sometimes they would say, “You could add 100%. Still it’s no.”
So we’d work out most of them. But if we couldn’t, we’d have to follow state law. I can’t get in the middle of that. We’d say, “Look, whatever state law says, that’s what we’ve got to follow.” Only 20% of these people had wills. 80% of the people that died on 9/11 had no wills. It’s a great lesson to have a will.
Well, what happens in the Commonwealth of Massachusetts if somebody gets killed in an automobile accident without a will, half to the spouse and half to the children in equal installments. That’s what we had to do. So at the end of the day, fiancées and gays, we worked out 98% of the problems.
But occasionally, they’re fighting now in the surrogate court in Suffolk County over who should get the money. But we deposited it in the court and had to move on. But that issue of family, I mean when you really look at all the problems you confront with a program like this, you have to ask yourself a fair question whether any of this is a good idea.
I’m convinced it was a good idea for 9/11, notwithstanding these issues. But I don’t think people should simply assume that this is a precedent that we’re going to repeat over and over again. I just think it’s very, very difficult to think that way. Too many problems open up in a democratic society if you’re going to have a program like this for a certain group of people.
ROSENTHAL: Ken, let me raise one other subject before we go to the audience. It’s a subject that had real resonance both in your public sector and in our private. It can be summarized in a dull word called ‘coordination.’ In your context, should insurance benefits and other kinds of charity have been subtracted from the contributions made by the government?
In our context, why didn’t the private charities do a better job of getting together, coordinating with Federal and State charities? And didn’t we end up making a lot of people richer than they should have been?
FEINBERG: Well, look, in hindsight, hindsight’s 20/20. Why didn’t the private charities do a better job when they got two and a half billion dollars? I mean, they did I think a fabulous job under the circumstances. This is unprecedented. Nobody could have ever anticipated this.
But you know, you mention coordination. We didn’t offset from our awards any charitable contributions. Now if you read the statute, maybe we should have. But I went and met with 50 charities in New York. I got all the charities in a room. Jack sent some representative.
And I said to the charities, “You know I read this statute that was enacted by Congress that we’re supposed to offset from these awards other sources of income like life insurance. Think it’s a mistake?” I think it’s a mistake, but that’s what the statute says. Now it doesn’t say charity, but it says, ‘You should offset all other sources of income like life insurance.’
So I said to the 50 charities, “We’re getting ready with our final rules. I think I should offset charity.” One guy stands up from the Robin Hood Foundation and he says, “Mr. Feinberg, if you offset charity you know what we’re going to do? We’re going to hold back the money. We won’t give the money out until you cut your awards. That way, you won’t be able to offset charity. We’re going to freeze the money that goes to these people.”
That was it, I blinked. I said, “Oh, we’re not going to offset charity. That’s all I need. [laughter] That’s all I need, two and a half billion dollars in charity sitting in the bank because they don’t want to give it out because I have to offset it.”
So we set up the rule, we didn’t offset charity. We did offset life insurance and it was an enormous problem. It’s an enormous problem. “Mr. Feinberg, let me make sure I understand this. Let me make sure I understand this. My wife and I bought life insurance to plan for our financial future. And because I collected two million dollars in life insurance, you’re deducting it from the U.S. Treasury check. My next door neighbor, instead of buying life insurance, they went to Las Vegas and piddled the money away so there is no life insurance. You’re giving them three million and you’re only giving me one million because of our … Am I missing something here?”
I had the perfect answer: “Go see Senator Kennedy. That’s Congress. I have no control over that. That’s the statute.” [laughter] But I mean when Jack says was it a mistake for Congress to put in this micro-managed … You know, you have to offset life insurance. And you have to offset 401Ks. And you’ve got to offset stock options and bonuses.
I mean, a) it fuels incredible divisiveness among the very people you’re trying to help. Secondly, I had a staff of 250 people from Price Waterhouse trying to figure this stuff out. Having said all of that, I don’t want to leave a misimpression. Those problems, spouses and fiancées and collateral offsets of income and a check for you and a less check for you and a different check, all of that stuff is minor compared to my view that the program was incredible sound public policy in light of the context.
And for all of the headaches we had, we worked it through. I think the American people point with pride to the program. I think it was a fabulous program. I’m not saying it will be repeated. But this historical moment, to do this for all of these families despite all of the problems, fabulous, just fabulous. Only in America. Only in America.
You know you go to foreign claimants. I go to London and meet with the foreign claimants from England, France, China, 75 countries all eligible, all eligible. “Mr. Feinberg, let me make sure I understand this. You’re going to give me here in Paris two million dollars for the death of my daughter. Is that right?” “Yeah, that’s right.” “Do I have to give up my passport?” [laughter] “No.” “Do I have to give up my citizenship?” “No.” “Do I have to come to America to get the money?” “No.” “What’s the catch? What’s the catch?” “There is no catch. This is the American people providing compensation.” People were just, “Well, we’ll get back to you. We’ll get back to you, we’ve got to go check with our … We’ll get back to you.”
Undocumented workers, 60 undocumented workers died in the World Trade Center, all eligible. Mrs. Jones, Mrs. Dominguez, Mrs. Koreans, Hispanics working The World Trade Center illegally. I have the order from the Attorney General in Spanish: “You’re eligible.” “Wait a minute. Are you going to put me in prison?” “No. You have immunity.” “Are you going to sanction me?” “No. No sanction.” “Are you going to fine me?” “No. There’re no fines. This is yours.” “Are you going to deport me?” “No. You stay right here.”
I almost lost it a few times. I almost did. One lady came -- and this is very unprofessional, but I’ll close before the questions. Senator Kennedy would not be proud of me on this one. One lady came to me and said, “You’re going to give me two million dollars, but you’re going to send me back to the Dominican Republic.”
I said to her, I said, “We’re not sending you back. You are safe.” “I don’t believe you. You’re going to send me back.” Finally, I said to her, “Mrs. Dominguez, go back to the Dominican Republic. You’ll be the richest person in the Dominican Republic.” [laughter] She took the money. But we paid everybody.
And all of the undocumented workers, I think, all came in. And the way we got them in is not anything I said. It was when we paid an undocumented worker, and they went back into the community and told their friends, “This is legit.” That’s the way we managed over the last 60 days to get most of the undocumented workers in because they realized it was above board and there were no hidden tricks to this.
ROSENTHAL: It’s time for questions. And while people are making their way to the microphones, something Ken said reminds me of a little story. When Robert Briscoe, the Jewish lord mayor of Dublin, came to San Francisco they had a parade for him.
And a little old lady saw this commotion and she ran down to the line of the march and she asked what was going on. And they told her it was a parade for the Jewish lord mayor of Dublin. She said, “Only in America.”
[laughter]
AUDIENCE: My name is Joan Kurmusk. I’m a member here at the Library and have gone to many forums here. I was just wondering if 2,900 people died that day and their families were compensated in this Fund, how many people were injured that day that were compensated from this Fund?
FEINBERG: How many physically injured were compensated? We compensated about 2,200 physically injured victims ranging from a broken finger, $500 dollars, to a man who we compensated who was burned with third-degree burns over 85% of his body, $8.7 million dollars.
A couple of very interesting things about physical injuries at The World Trade Center and The Pentagon and the airplane. There weren’t many. There weren’t that many. You know, 2,500 physically injured, those buildings could have fallen sideways. There could have been … When Congress passed this law, they still thought, the Budget Office, there might be 20-, 30-, 40,000 physical injuries.
One thing we learned very quickly in administering this Fund, you either got out of those buildings and planes or you didn’t. All these ambulances that were lined up, red-light triage at all these hospitals, nobody came. So the number of physical injuries, a couple of thousand. Relatively speaking, that’s all.
Most of the physical injuries were respiratory injuries. People, rescue workers, civilians breathing the guck from the collapse of The World Trade Center. The number of very, very serious physical injuries, everything’s relative, but the burn victims, two dozen. Two dozen. So the physical injury side of this, thank goodness was nowhere near as some had thought it might be.
ROSENTHAL: That raises another coordination issue. In thinking about next time or somewhere else, what should people in America do to prepare? The common assumption is there should be closer coordination of government and private charitable agencies, and we all ought to have a detailed plan.
Well, the truth is you can’t. If that needle had changed five degrees and there had been only a few deaths and thousands and thousands of injuries, our view of 9/11 and our responses to it would have been entirely different.
But what can be done? And what some of us have been working to try to accomplish is to get communities around the country to establish, not tightly coordinated, uptight structures, but to create loose councils of public and private agencies so they know each other, have a LISTSERV or a website, and be able to respond to the facts of the new event.
AUDIENCE: First of all, I wanted to congratulate both of you for the work that you’ve done. Ken, I think you’ve taken on a monumental challenge, especially with the emotional, obviously, issues involved with the families. What I wanted to ask of both of you, but particularly I’m interested in Ken’s response since you were carrying on a government program is what is the long-term impact on you personally? And how do you feel that the victims, the people that have been compensated, how has it shaped how they feel about the American government having received this money in the program?
FEINBERG: I don’t think that the people who received this compensation have a wonderful gratitude or a view that government came to their rescue. I wouldn’t expect that from these families who suffered such loss. Maybe some do, but I think these families are grateful that they received the money, but I don’t … I wouldn’t think much more than that, at least my experience in that.
My own personal view, I mean, just fate. Life throws curveballs at everybody. These people went out that day to go to work on a beautiful sunny day. Who would have thought as they went to work that this horror would occur?
I’m sort of reluctant to plan too much into the future. That’s one bit of fallout from this program. And the other thing is, I don’t think I’ll ever go back just to the old, my old practice of law. I think I’ll be very more selective in what cases I take and what challenges there are. Rewarding beyond belief, but most people would have done what I did too, I think.
Jack put it very well. People all over this country were looking for ways to help. And I think that there are millions of people that would have done just what I did if given the chance.
AUDIENCE: I take it from what you said that the awards did not include anything for the pain and suffering of family members who had deceased victims? When you said there was no PTSD, is that what you were saying?
FEINBERG: No. We did have an award for pain and suffering.
AUDIENCE: Then my question is if you did, how did you determine that?
FEINBERG: Here’s what we did. Very good question. Here’s what we did on pain and suffering. We decided very quickly everybody has to get the same. I’m not going to tell some family, “Because your husband lived five minutes and called you on a cellphone to say goodbye, you should get more emotional distress than somebody else who was killed instantly when the planes hit the buildings.”
That would have been the most divisive thing imaginable. We decided everybody will get $250,000 dollars for the non-economic pain and suffering, emotional distress, $250,000 dollars for the loss of the victim and $100,000 for each surviving spouse and dependent. And that’s it. Everybody gets the same on the non-economic side. And that worked wonderfully.
And where did we get the number $250,000? And this is the truth. We got the number from Senator Kennedy’s law, his legislation that gives $250,000 to the family of a firefighter or a policeman killed in the line of duty. And we said, “There’s the precedent for that.” That’s how we found that number because people would come and say, “It should be two million.” “No, no. This is where we got that number.” And it worked. And I think that was one of the great benefits of this, that we didn’t get into calculations of pain and suffering and emotional distress. It would have been a disaster.
AUDIENCE: My name’s Bob Grodberg. I had a very unique opportunity to observe Ken’s most magnificent contribution to the victim’s families, to this country and to, I would say, the world as well. My unique opportunity was first to sit in a group of five or six individuals some five days after he was appointed and listen to him speak of this.
My unique opportunity arose because my step-daughter, my wife’s daughter -- my wife is here -- was on American Airlines 11. My unique opportunity arose when I, not primarily a trial lawyer, had the opportunity to represent a family. That was an incredibly rewarding experience.
Nobody has mentioned the fact that Ken Feinberg has served all these several years on a pro bono basis. I think it’s known, but I think it has not been expressed. Ken Feinberg, I had the opportunity to listen to Ken very early in the program talk about the fact that $250,000 dollars would be the reward for pain and suffering.
And a grieving husband got up into the audience and said, “How dare you! How dare you value my wife’s life at $250,000 dollars!” I was irate. I was prepared to go over to that man and say, “You’re grieving. We’re grieving as well. But this gentleman is doing what he’s doing.” Ken Feinberg gave me an example of brilliance that I quote constantly.
He said to that man -- and he had flown in from California I believe it was that night. He looked exhausted, he had been running around the country. He was being berated generally by the grieving of surviving groups very early in this program as he was that night. And Ken said, “Sir, I’m terribly sorry. I misspoke.”
It was an incredible demonstration of wisdom. I should tell you also that as a representative, as a lawyer for a family -- and I did it on a pro bono basis, of course. I was honored to present my case before Ken Feinberg. His kindness, his generosity, his inventiveness was extraordinary. He’s my hero. [applause]
FEINBERG: Bob, you should remind everybody your last name is not ‘Feinberg.’ I would expect my sister or brother maybe to (inaudible)
[laughter]
AUDIENCE: Very close though, Grodberg.
FEINBERG: Thank you very much, thank you sir.
AUDIENCE: But I do want to also just thank the Senator who also has been a tremendous support for all of the families. [applause] We so much appreciate it. And thank you for the opportunity to (inaudible)
AUDIENCE: I haven’t kept up with it, and I’m curious. How many of the surviving families have not accepted mediation and are continuing with their lawsuit? And secondly, you said you had a staff of 250. I don’t think they all work pro bono. Who compensated those people?
FEINBERG: Good questions. 97% of the families came into the fund. There are about 80 families who decided to sue the airlines, to sue the airlines. They have to sue in New York City no matter where the accident occurred, Virginia or Pennsylvania. They have to sue in New York by Federal law.
And there are 80 now that have decided “Thank you Mr. Feinberg. We don’t want the money. We’re going to litigate and we’re going to go that route.” None of them claimed to be suing for the money, none. They all claimed to be suing either to make the airlines safer or because they say that only by litigating will we find out what really happened on that day and who was responsible.
I’ve tried to talk them out of suing. I think that it is … They won’t get answers, and it will take years and years and years. Under the statute, that’s their prerogative. I don’t worry about those 80 people. That’s their choice. What I do worry about to this day, there are about 30 people who have done nothing, nothing. They haven’t sued, they missed the deadline for the Fund. They’ve done nothing.
I’ve gone to those families and said, “Mrs. Jones, get out of bed. I will help you fill out the forms. You will get about two million dollars. You are compounding the tragedy. Set up a foundation in your son’s memory.” “Mr. Feinberg, leave the application. I’ll never get out of bed again. I can’t do it. Don’t make me do it. I’m glad you came, but would you please go now.” Nothing I could do. There are about 30 people that just … clinically depressed or they just couldn’t do it. But that’s it, and the rest did finally come into the Fund.
My staff, about 12 lawyers, worked pro bono. There are about another ten lawyers that worked on detail to us from The Department of Justice or other agencies who worked for their government salary. And then we contracted out with Price Waterhouse Coopers. And Price Waterhouse Coopers entered into a contract with The Department of Justice to do the calculations, to open the envelopes, to process the claims, to get the paperwork out. And for three years, they had a contract, a paying contract of course, with The Department. I think at the end it was about 90 million dollars which, considering that we spent -- we paid out about seven billion dollars -- was money well-spent, I think.
AUDIENCE: Did you or the people that you were close to in your deliberations over the months ever think that the result might have been the same or materially different if the results had been accomplished by two suitcase bombs?
FEINBERG: I’m not sure I understand the question.
AUDIENCE: Instead of flying an airplane into a building, you carried a nuclear bomb to the 92nd floor and set it off.
FEINBERG: That’s hypothetical. I think that had the impact of the disaster, whether it be planes, bombs, car bombs, whatever. Had the impact of the disaster been the same or worse, I think the program would have been established by Congress. What was the uniqueness of the impact of the tragedy, the magnitude of the tragedy and its impact on the people of the United States I think that made it possible to enact legislation like this.
[applause]
KIRK: At the end of this very informative hour, I’ll tell you, I am where the hour began. I still conceive of Ken’s responsibilities as unimaginable but incredibly well-performed. And that Jack, for your continuing good work and your presence here tonight, we’re most grateful. And once again Ken, our salute from The Kennedy Library, the Foundation and all your friends here. You’re a real hero in all our eyes. [applause]