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THE 9/11 VICTIM COMPENSATION FUND: cui bono?

By Jerry Mazza  Posted by Auveline Robinson (about the submitter)     Permalink       (Page 1 of 3 pages)
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Thursday, June 14 -- I'm taking notes in Judge Alvin K. Hellerstein's spacious courtroom atop the Daniel Patrick Moynihan United States Courthouse at 500 Pearl Street in New York. This as lawyers from United Air Lines, American Airlines, Boeing Corporation, the Port Authority of New York and New Jersey, World Trade Center Properties, et al, make a motion for a determination of applicable law and for dismissal of all punitive damage claims as well as certain government discovery in the 9/11 damage suits.

 

The fleet of high-priced lawyers fills half the paneled courtroom. A packed gallery fills the other half. Among the corporate legal fleet are a smaller number of lawyers for the remaining plaintiffs who did not take the 9/11 Victim Compensation money. One of plaintiffs' lawyers, Greg Joseph, is noted to say, "Any trial is a good trial."

The corporate lawyers parry and thrust in legalese with Judge Hellerstein. They seem to admire their own wit, deferring to his, his quips, assertions of power, interruptions and anecdotes. A certain sense of gravity seems lacking as the sad gray sky fills the huge windows, just a handful of blocks from the perished towers and their lost lives, which is what this is supposed to be about if I'm not mistaken.

Eligibility for the Victim Compensation Fund required victims' "physical harm or death" as a result of one of the crashes, or being the personal representative of a deceased victim. But the hook, the big quid pro quo is the waiver of a claimant's right to file suit if he or she filed for fund money. The moment he or she submitted an application for fund money, he or she could forget about a suit against the airlines or the government.

Also, the September 11th Victim Compensation Fund of 2001 was the last part of the three-part Air Transportation Safety and System Stabilization Act of 2001 [ATSA) issued at President Bush's order. It was issued only 12 days after the tragedy and most probably not closely read by most members of Congress who passed it.

Part one was a $10 billion dollar handout in federal credit instruments to air carriers. Part two was an additional $5 billion boost to compensate air carriers for direct losses, either from being grounded and/or incremental losses beginning September 11, 2001, ending December 31, 2001, as a direct result of the attacks.

Thus the airlines received a $15 billion subsidy to keep them from going under. There was just one stipulation calling for limiting pay raises to employees or officers whose total compensation exceeds $300,000.

If victims or survivors decided not to take the money, the law said they could "bring in U.S. District Court for the Southern District of New York an exclusive cause of action for damages based upon the substantive law, including choice of law principles, of the State in which the crash occurred unless such law was inconsistent with or preempted by Federal law." In plain English, it meant they could file a lawsuit for damages right in this courthouse.

The man to evaluate all appeals was the fund's special master, Kenneth R. Feinberg. He was appointed by then Attorney General John Ashcroft on November 26, 2001. In his Final Report of Fund activities, Feinberg said with no due modesty, "In my view, the Fund was an unqualified success: 97 percent of the families of deceased victims who might otherwise have pursued lawsuits for years have received compensation through the Fund. . . .

"In total, the Fund distributed over $7.049 billion to survivors of 2,880 persons killed in the September 11 attacks and to 2,680 individuals who were injured in the attacks or in the rescue efforts conducted thereafter. The average award for families of victims killed in the attacks exceeded $2 million. The average award for injured victims was nearly $400,000. . . ."

Bottom line: the airlines received over twice as much as 9/11 victims and their families.

As Truthout.org reported on December 23, 2003, the actual cut-off date of the two-year application period, "as many as 73 families see the process of U.S. government compensation as an attempt to protect those who should be held accountable for what they believe was mass murder. They ignored a midnight deadline last night, their last chance to apply for government cash. And today, they begin a new stage in an arduous odyssey and will sue their government, airlines and state and local authorities."

Think of the consequences of an open trial of plaintiffs against the airlines and/or government. Think of the discovery, of all the facts which could used to prove those thousands of 9/11 deaths were murders, conceivably by home bodies with foreign allies. The cost would be the heads of the big kahunas of our government and their associates. Thus the $7.049 billion in Victim Fund's payout was a small price to pay for the silence it produced.

Amazingly, after five and a half years, not one single victim's case from 9/11 has even been heard in a court of law -- in spite of the fact that the US is known as a litigious society with an abundance of aggressive lawyers. Many thought the relatives of the 9/11 victims would go for justice and compensation in the courts. Not so, particularly under the pressure of the VCF.

As of March 20, Christopher Bollyn reported that Judge Alvin K. Hellerstein, who has overseen and handled all 9/11 victim lawsuits, said "that he wants the 58 or so remaining cases resolved as quickly as possible." Bollyn added, "What this means is that he wants weary plaintiffs to negotiate with Sheila L. Birnbaum, the 'special mediator' for the court, and accept the money offered to them. This way, nearly all of the cases were resolved through out of court settlements."

In fact, the most notable would-be litigant, Ellen Mariani, was harassed from the date of filing her original RICO suit on December 20, 2001, (via her then attorney, Phil Berg) against the Bush administration. For speaking out tirelessly about the need for a trial, for an investigation and discovery of the real facts, Mrs. Mariani was harassed until she was eventually replaced as administrator of her husband's estate.

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