COMPLICATING THE already chaotic situation is yet another fund set up by Congress for the attack victims. Pushed through as part of the billion-dollar airline bailout, which was enacted just 11 days after the hijackings, the September 11 Victim Compensation Fund raises more questions than it answers. Under the legislation, US attorney general John Ashcroft has 90 days to appoint someone to oversee the fund — a "special master" — and to draft regulations for its administration. Until then, says Stephan Landsman, a DePaul University law professor who advises lawyers on the fund, "it’s hard to know anything yet."
The legislation does set broad guidelines for the fund. Only families of those who suffered death or physical harm — rather than mental trauma — are entitled to compensation, determined in the same way that airlines pay damages when a plane crashes. That means claimants will receive payment for economic losses — lost wages, hospital bills, and funeral costs — as well as for emotional pain and suffering. Lawsuits can take years to settle, but under the fund’s rules the special master must determine a compensation award within four months of a claim’s filing.
What that means in real dollars is anyone’s guess. Questions about how much each family should expect — and how money received from insurance policies, pensions, and charities will affect that sum — remain unanswered. Privately, some lawyers say the fund could cost taxpayers as much as $15 billion; for an estimated 15,000 victims, that works out to $1 million per family. But no one wants to venture a guess publicly. As US Justice Department spokesperson Charles Miller puts it, "I wouldn’t care to estimate."
Already, the uncertainty surrounding the fund has sparked debate. New York attorney Aaron Broder, who handles airline-litigation cases, purchased front-page ads in the New York Times urging September 11 victims to stay clear of the money. Broder believes it violates basic constitutional rights because the special master’s decision regarding compensation, as the legislation states, "shall be final and not subject to judicial review." In short, victims who participate can neither appeal nor sue. "This is not a kingdom," Broder says. "This is a democracy. Yet this fund reposes a special master with an autonomy that no king has had since the Magna Carta."
Broder doubts that a Bush-administration appointee will award damages to victims’ families in the same way that a jury would — without caring about the cost. In airline litigation, juries have awarded victims millions of dollars for the loss of their spouses — for the loss of their companionship, affection, love. But the special master, he argues, "is a bureaucrat. He’s not going to give out millions to every widow who lost her husband. So why should people commit themselves to a fund that makes them waive their legal rights and gives them a mere pittance compared to what a jury would give?"
Other lawyers counter that such conclusions are premature. Chicago attorney Robert Clifford, who also handles airline lawsuits, heads the American Bar Association’s newly created task force on terrorism and the law, which is advising the Justice Department on proposed regulations for the fund. He insists it’s too early to question either the fund’s legality or its legitimacy. Rules might be written to favor victims — by allowing for an appeals process, for example. They might be written to favor the government. Or they may favor both. Says Clifford, "The point is we don’t know yet."
Some issues are sure to be resolved December 21. That’s when the deadline for drafting the regulations expires, and the soon-to-be-named special master must open the federal fund for business. If all goes well, victims and their families could find their awards in the mail by next April.
As for the charities, chances are they’ll still be sorting through the mess. It took the Oklahoma City relief effort six years to address the needs of Timothy McVeigh’s victims. Sometimes physical injuries don’t appear for years. One Oklahoma City woman walked away seemingly unscathed from the bombed-out Murrah building. Only recently did she reach out to relief agencies for help: last year, glass shards embedded in her skin finally rose to the surface. For others, the mental trauma of witnessing a horrible event — like, say, human beings jumping to their deaths from 100-story buildings — doesn’t immediately register. In Oklahoma City, some people who saw the Ryder truck that Timothy McVeigh abandoned outside the Murrah building were so traumatized by its image that they couldn’t return to work.
And then there are the rescue workers, whose jobs sifting through rubble and human remains may affect their mental health. There are the proprietors whose businesses have suffered crippling economic losses — especially in New York, where entire city blocks have been cordoned off from the public. There are the employees in the airline and hotel industries who have been laid off since September 11. Even those Muslim families who have had their homes vandalized because of misguided attempts at retaliation may count as "victims" with needs, observers say. In this disaster, says McCarthy, "it will be a long time before we know the extent of the need."
Quite right. These days, we don’t even know what tomorrow will bring in the war against terrorism abroad and the anthrax scare at home. If life in the post–September 11 world has forever changed, as people so often point out, perhaps philanthropy must change too. Says Cohen, "If September 11 were a snapshot, we could all hold our breath, donate money, and work our way back to normalcy." But it isn’t.
Kristen Lombardi can be reached at klombardi[a]phx.com
