What I've Learned: Kenneth Feinberg

A DC lawyer was asked to put a price on each of the thousands of lives lost in two of America’s greatest tragedies. Here’s how he did it—and the lessons he came away with.

By: Lee Michael Katz

Kenneth Feinberg didn’t know any of the victims of the 9/11 terrorist attacks, but they changed his life. And now so too have the victims of the mass shooting at Virginia Tech.

When the Twin Towers fell and the Pentagon burned on September 11, 2001, then–attorney general John Ashcroft asked Feinberg, a Washington lawyer and compensation expert, to set up and head a congressionally mandated victim’s-compensation fund. Working pro bono, Feinberg and his law-firm staff devoted 33 months to investigating claims and deciding benefits. Feinberg personally conducted most of the 1,500 hearings with survivors and victims’ families.

When the job was done, Feinberg presented his report to President Bush. Bush and Ashcroft sent him a photo inscribed “Thanks from a grateful nation.” Feinberg wrote a book, What Is Life Worth?, describing the experience. He thought his dealings with mass tragedy were over.

Then last April, a young gunman from Centreville killed 32 people at Virginia Tech in Blacksburg. Feinberg got a call asking him to lead the university’s effort to compensate victims. “My wife, Dede, said, ‘You want to do this—do it,’ ” he recalls. Once again Feinberg took an unpaid position placing him in the center of an emotional storm.

This kind of work was not what Feinberg envisioned growing up in working-class Brockton, Massachusetts. Now 62, Feinberg wanted to be an actor when he was young. But his tire-merchant father worried that his son would end up a New York waiter instead of a Broadway star. “Why not use your acting skills in the courtroom?” he suggested.

Feinberg began his legal career as an assistant US attorney in New York, where his colleagues included young lawyers Rudy Giuliani and Michael Mukasey. Feinberg then made his way to Capitol Hill, where he wound up as a special counsel to the Judiciary Committee and chief of staff for Democratic senator Ted Kennedy. Later, as a court-appointed mediator in private practice, Feinberg helped resolve some of the nation’s biggest damage cases involving asbestos, the Dalkon Shield, and Agent Orange.

When he got the call after 9/11, Feinberg says, he assumed the Bush administration figured that his longstanding Hill connections provided the bipartisan political traction needed to satisfy Congress. “It helped absolutely that I knew Washington and had allies,” he says. But nothing could have prepared him for what lay ahead.

It’s been more than six years since 9/11. What have you learned?

I doubt Congress will ever use a 9/11-type fund to provide such generous compensation to people. It certainly wasn’t replicated after Hurricane Katrina. The public-policy response to the 9/11 tragedy is unique to an unprecedented historical event. And people should not read into it that when there is another disaster, tragedy, or terrorist attack, Congress will respond the same way.

Why not?

Because it runs counter to the way the American system works. People should read some e-mails I received during the 9/11-fund work. “Dear Mr. Feinberg: My son died in Oklahoma City. Where’s my check?” “Dear Mr. Feinberg: My son died on the USS Cole in Yemen fighting terrorism. How come I’m not eligible?”

How do you carve out the very special, generous use of public taxpayer money for just a small group of victims of life’s misfortune? You know, misfortune befalls us all the time. But you don’t see that type of public generosity when others suffer similar loss; you don’t receive an average of $2 million.

What is there about a big terrorist attack that makes it different?

I don’t think there is a valid distinction between terrorism victims at the Pentagon and hurricane victims in New Orleans. But there’s a big distinction between the way the American people rallied around the victims of 9/11, a foreign attack unprecedented in scope, and the way the public failed to act similarly with Katrina or any other disaster. The 9/11 fund, I believe, was the right thing to do because it was a patriotic act by the American people to come to the rescue of these people in need.

Should it be repeated if there is another major terrorist attack?

If Congress had asked me, “Well, what do you think of this program?” I would say don’t do it again. Here in Washington, if a car bomb goes off, do not set up a victim-compensation program. Or if you’re going to do it again, next time make it much simpler. Have a person with the authority simply dole out the same amount to families of all of the dead. Don’t ask one person to act like Solomon and try to calculate the value of lives. To be judge, jury, accountant, lawyer, rabbi, et cetera is very, very difficult.

You described painful e-mails from other victims. Has anyone confronted you in person?

Not confrontation. But I had a few people from Oklahoma City meet with me and inquire. And I said I found it very, very difficult not to compensate them. But the statute limited my authority to 9/11, and their complaint would be better addressed to Congress than to me.

How did you feel about saying that?

Very stressed. You’re trying to explain to people basically how life is unfair. It’s not just a question of some people getting compensated and not others. It’s also a question of why some people died but not others.

People were in the Pentagon for the first time in their lives that day and died. Other people would have been in the offices that were incinerated—only that day they were ill or they had to take their kid to school.

The people on 9/11 who said perfunctory goodbyes after breakfast—and you never saw them again. Vaporized, not even a body to bury. It’s just unbelievable the serendipitous nature of life and death, which can paralyze you if you think about it too much.

And the same at Virginia Tech?

In sending their child to college in Blacksburg, far from any urban area, who in their wildest dreams would have anticipated that they would lose a loved one because of a deranged killer? I mean, one thing I’ve learned is when your number is up, there’s not much you can do.

What can you say to the families and students at Virginia Tech?

Sometimes what you don’t say is as important as what you do say. Yes, I could say to families at Virginia Tech when I met with them, “I cannot explain this tragedy, Mrs. Jones. Life is unfair.” But here’s another lesson from 9/11: Do not say to grieving families, “I know how you feel.” I learned a good lesson there.

In Crystal City, the father of a servicewoman came up to ask me questions about compensation and discuss how difficult for the family the death of their daughter and sister was. And I said, “I know how you must feel.” His face dropped. He looked at me and said, “Mr. Feinberg, believe me, you don’t know how I feel. Please don’t say that.” I never, ever said it again to these families. Because he was right.

How has the experience affected you?

In doing what I did, you become a bit more fatalistic about planning your future. When my Georgetown law students come to me and say, “If I go to this law firm, can I become a partner in seven years?” I tell them that seven years is an awful long time. Don’t plan more than two years out. And even there, you’re stretching it.

How has it affected your plans?

You don’t plan trips too far into the future. Simply procrastinate and delay in making decisions about your personal life. You don’t plan retirement too far into the future.

As soon as the 9/11 compensation was over, I downsized my firm. I had 30 people. Now I have seven. I just didn’t want to practice the same law anymore.

I teach a lot more as a result of 9/11. I thought it was therapeutic. I just thought explaining to young law students the 9/11 fund and what we learned from it, how we went about making decisions and designing the program, was a more valuable use of my time than simply representing clients, mediating and arbitrating commercial cases. It was a decision I made—that life’s too short and you want to do other things.

Do you ever think, “This could have happened to my family”?

I had a daughter at Georgetown and a son at NYU about a mile from the World Trade Center on 9/11. We were extremely concerned. My wife called them within minutes when the plane hit the World Trade Center. We heard quickly that they were both okay.

I think a tragedy like 9/11 tells all Americans, including me, how lucky we are. I had been in the World Trade Center hundreds of times. And that’s a day I could have been there. You never know. Like those poor kids at Virginia Tech.

You can’t help but realize there’s a lot of uncertainty in life and that you’re calculating awards for individuals who were in the wrong place at the wrong time. To me, it’s a lot about fatalism. It doesn’t matter if you’re in the World Trade Center in a city with 10 million people or the town of Blacksburg. You cannot immunize yourself from tragedy.

You worked very closely with the 9/11 families. Do you stay in touch with any?

Out of 5,300 people that received 9/11 compensation, I hear from one family each anniversary. One. And that’s the way it should be. I am not interested in hearing from these families. I don’t think they should be interested in maintaining contact with me. The program is over. A congressman once wrote me before the anniversary date of 9/11 suggesting that he would host a reunion of the families in his district with me. And I disabused him of that notion.

That sounds harsh. Why?

Because no purpose would be served. The families—I respect their privacy and effort to move on. This compensation fund was a surrogate for a horrible personal tragedy, and they should put it behind them as best they can and try and get on with their lives. I don’t think a reunion or maintaining contact with me would serve any useful purpose. It’s not harsh.

Do you go to commemorations, or are they too painful?

I’ve respectfully refused. It is painful. But I view 9/11 now through a historical lens. Every year that goes by, it’s becoming more a part of history books, not current affairs. And I think it’s time to treat it as such. I, like many of the families, commemorate 9/11 in my personal way. But it’s not through public expressions.

I commemorate 9/11 by reflecting on what happened, what I was asked to do by the Attorney General, the President, and Congress—and what we accomplished. I just think about how many thousands of people the fund was able to help. And I’m very proud of that.

Because military pay is much lower, how did you value the life of a high-powered DC lawyer in comparison to a young Pentagon victim?

For all of the military dead and injured, we calculated awards based on military pay and assumptions about compensation. We had a separate calculation—battle pay, travel allowances. Families said, “I lost my son. He was 34, an officer in the Army. At the age of 42, he would have left the Army and gone into the private sector as a consultant at a defense contractor and made more money. You should calculate based on those assumptions.”

It’s safe to say the military claimants did not receive as much as the stockbroker or the bond trader because we looked at annual earnings past, present, and future.

You must have seen how the prospect of money can affect people’s lives.

One of the things I’ve learned from the 9/11 fund and Virginia Tech is that when people complain to me, argue, or demand more money, I don’t believe it has anything to do with greed. It has to do with grief. Valuing a lost loved one—a life that won’t be fulfilled, a future that will never be realized.

Some of the 9/11 widows and widowers were seen as very attractive catches. Did you include any cautions while disbursing the money?

Absolutely. Every person who received money from the fund, before we gave them the money, was told they could receive free financial consulting, investment advice. Only a handful of claimants accepted that offer. It concerned me that vulnerable families in grief would not wisely invest the money they received.

Some people didn’t file by the deadline because they were so troubled by their loss that they couldn’t deal with money.

There were about 11 families so clinically depressed about 9/11 that they never filed a claim to the fund. Never filed a lawsuit. They did nothing. I met with some of those families and begged them not to miss the deadline: “Mrs. Jones, I’ll help you fill out the form. Sign it. You can set up a foundation in your son’s memory.” She looked at me: “Go away, Mr. Feinberg. Leave the application on the kitchen table. I can’t even get out of bed.”

That was my biggest disappointment in administering the fund: my inability to convince people in grief not to miss the statutory deadline.

Does it still weigh on you?

You feel powerless in the face of overwhelming grief. It still does weigh on me that these 11 families, who would have received on average $2 million each tax-free, never could even sign the application—even though I was willing to sit with them, fill it out for them with their help. I realized that grief can paralyze people.

Did you conduct things differently at Virginia Tech than after 9/11?

With Virginia Tech I was not constrained by a statute, so I was able to give every family—32 who lost a loved one—the exact same amount of money, a little over $200,000 each; the injured received a graduated range based on days of hospitalization. I didn’t have to calculate, like Solomon, different awards for each student and faculty member who died.

Having to value different individual claims in the 9/11 fund was guaranteed to fuel divisiveness from family to family, whereas at Virginia Tech I didn’t have to worry about that.

Is it hard to shed the role of lawyer?

I think being a lawyer and administering the 9/11 fund was at best a wash—and actually may have been a hindrance. It’s been said that perhaps a better qualification to do what I did with 9/11 and Virginia Tech is divinity school rather than law school. You certainly become more of a psychologist and a rabbi or a priest than a lawyer. It has made me a better listener.

Do people, not knowing that you volunteered your services, ever accuse you of making money off of tragedy?

Not with Virginia Tech. We made that clear. At the beginning with 9/11, some families accused me of making money off the dead. But once they learned otherwise, that ended.

Was part of your job in these tragedies to serve as a lightning rod? Did people take out their emotions on you?

I think that’s human nature. With 9/11, I was the representative of the US government. With Virginia Tech, I was the representative of the university. And in both cases at the beginning, there was a fair amount of anger directed at me as a surrogate.

When I would have these town-hall meetings, people would say, “Mr. Feinberg, we know you’re not responsible for the 9/11 tragedy, but you’re the only one we can direct our invective at.” “Mr. Feinberg, Virginia Tech—you weren’t there, we know. But the Virginia Tech administration was negligent in allowing this to happen, and we can only vent at you.”

Is it tough to take, people blaming you for the tragedies?

No. You expect it, understand whence it comes. You can’t get angry at these people. They lost loved ones. You’re pleased when you have a meeting where it doesn’t occur, but you fully expect it when you walk into the room.

What were your impressions from the Virginia Tech town-hall meetings?

I learned a lot about the community reinforcement of these people. There really is something to the “Hokie spirit.” It was much less combative than 9/11.

Is that togetherness something we usually don’t think of in Washington?

The closest example I can tell you about community cohesiveness in Washington was exhibited at the Pentagon following 9/11. The reinforcement of how the soldiers and military families supported me, the 9/11 fund, and supported each other is very similar to the Hokie spirit. I found it very uplifting.

What have you learned about what life is worth?

I’ve learned the reaction to tragedy is almost unlimited, limited only by the vagaries of human nature. It is unbelievable. Families would meet me and express anger, frustration, sadness, joy that somebody would listen. Families met with me expressing newfound belief in religion. Others would express the view that there is no God that could allow this to happen. The mosaic of human emotion is incredible.

You’ve now faced this emotion twice in horrific, world-gripping tragedies. We hope nothing will happen, but are you ready to do this work again if called on?

Of course. You don’t say no to the Attorney General of the United States or the president of Virginia Tech.

Despite the personal impact on me emotionally, I’d do it again. So would millions of Americans. If you can make some small contribution to the healing process, that justifies your involvement in coping with tragedies.