How We Value Life: The 9/11 Victim Fund (with Ken Feinberg)

0:00Are you a pet owner? Every six seconds, a pet owner in the US gets hit with a vet bill over $1,000. Always an unwelcome surprise. That's where Fetch comes in. Fetch is the most complete pet insurance for dogs and cats. According to ConsumerAdvocate.org, you get paid back up to 90% of vet bills at any vet in the US and Canada, with claims paid back in as little as two days. Go to fetchpet.com-slave right now for your free quote. That's fetchpet.com-slave. From Cafe and the Vox Media Podcast Network, welcome to stay tuned. I'm Pete Barara. Calculating dollars isn't the tough part. The tough part is the emotion and the stories you hear about life-sun fairness.

1:02Welcome to stay tuned. I'm Pete Barara. My guest this week is Ken Feinberg. He's one of the nation's foremost mediators, having led various victim compensation funds. Most famously, most relevantly for this week, he was special master of the federal 9-11 victim compensation fund. He joins me to discuss the new edition of his book, What Is Life Worth? Reflections 25 years after 9-11. That's coming up. Stay tuned. Ken Feinberg, welcome back to the show. Non-an-up privilege, thank you. So we are recording this on August 31st, the longest summer in history, the week before Labor Day, and we're having this discussion in part because I love to talk to you about all sorts of things. But also because the 25th anniversary of 9-11 is coming up. And you obviously played a central role in the aftermath of that worst tragedy in our nation's history, I think it's fair to say. And you have, I guess it's not a new book, but there's new material in a prior book with

2:06a very daunting title, What Is Life Worth? That's a hard question, or I guess a hard question to answer, with new reflections 25 years after 9-11. My first question for you is, how can it be 25 years? Does it feel like 25 years, sir? It feels like 100 years in terms of the different climate, political climate, the different reaction of the Congress working with the President, different parties. And it feels, and on the one sense, you're right, 25 years could be viewed as, you know, last week. But in terms of the gap and the contrast between how America handled that horror and what we confront today, it's quite a historic difference. The second paragraph of your reflections in the new issuance of the book, you write, I want to address the question whether the nation could again deal with a catastrophe so

3:11effectively. That's a very profound question before we answer it. And I know you have some pessimism or a lot of pessimism about that answer. How surprised are you that that's the question? I am surprised. Of course, there's never been thank goodness in the last 25 years, a tragedy like 9-11, which you correctly point out is historically unprecedented, maybe the civil war. It is a profound question as to whether or not the America then has one thing. Could it be today when we handled it the same way? And I'm quite skeptical, unfortunately. In the recent period, there have literally been discussions about whether or not the current administration is playing games with FEMA money as between red states and blue states. As you and I both know and as everyone listening knows, obviously the attacks of 9-11 were

4:15an act of war on the United States of America, but the losses, the deaths that occurred on that day were in, you know, not in DC, but in the Pentagon, which is in Virginia, but right outside of DC, which is very blue these days and we're starting to become very blue back then and not just in New York City, but the island of Manhattan, which is very blue. We had a Republican mayor, Rudy Giuliani, in his old version of himself back in 2001. But I didn't hear anybody say, I don't think this happened, but you tell me because you're enmeshed in this. Well, maybe we shouldn't give all this money to New York and to the District of Columbia and its environs because they don't vote Republican and the president was Republican. Am I correct about that? Well, to some extent, I guess I didn't hear much talk that way back then, but remember, remember, even though the 9-11 attacks were a New York City in Washington, DC, there

5:20were four planes, one crashed in Pennsylvania. It turned out that the victims, those physically injured and those killed were from, I don't know, 40 states and 35 foreign countries. There were many, many foreign officials working up the Pentagon or in the World Trade Center. Even though the location was parochial, I think it had an international impact on the world in terms of coming home to roost with local victims. And we paid them all. We paid undocumented workers. Could you do that today? No, no. But those undocumented workers were paid pursuant to a brave decision of Attorney General John Ashcroft, Republican Attorney General for President Bush. He said, the law makes no distinction as to whether it was undocumented, foreign

6:23nationals, American citizens pay everybody. And we even paid foreign citizens who just happened by accident to be in the United States that day. So we should orient people who have forgotten and didn't listen to the last couple of podcasts that you were on or may not be familiar with your work. I sometimes think I can't call you can. I should call you special master as you can see. Is that right? I think your multiple roles often at the same time. The 9-11 fund, the victim compensation fund, largest of its kind ever. Ever. Largest of its kind ever. And it's important as we have discussed previously to distinguish two kinds of funds. Maybe they're more than two kinds. But one is sometimes established either with taxpayer money or donor money and they are gifts. So everybody who can show that they were a victim of a particular horrific tragedy gets a certain amount and typically in fairness, they get an equal amount.

7:28And another kind of fund, which is the nature of the victim compensation fund for 9-11, is sort of an alternative to regular civil litigation that people can engage in, sue their government, sue the airlines. So it's an alternative dispute resolution. And then that's different because then the metric is geared a little bit more to what you might be able to get in a court and it's not a gift. Could you do a better job than I just did of explaining how those are different and what the challenges are for the thing that you did? Sure. So the 11th fund by statute created by Congress signed by President Bush into law said, the fund being run by Ken Feinberg is absolutely voluntary. Nobody has to enter the fund. You can go to court, as you say, pretty soon. But if you come into the fund and if you accept the money that is offered taxpayer public

8:33compensation from the US Treasury, you sign a document surrendering your right to litigate against the airlines, the World Trade Center, the Pentagon, the security, the private security guard companies, mass port, the port authority, the city of New York, you surrender without litigation option at your choice. And instead, you'll take tax-free compensation from the federal government, which is unprecedented. And more quickly, usually, 90 days in stead of the years of litigation, uncertain litigation. All right. We were all united. There was the issue of Islamophobia. My recollection is that the leaders of the country in the aftermath of an attack by the people who did the attack, that they tried to tamp down those temptations.

9:36And by the way, this is 25 years earlier than today. And if you assume that there's greater diversity of Muslim Americans in this country today, then that feelings of familiarity and assimilation might be better today than they were then, my recollection is George W. Bush and others tried to get people not to go down that path. Is that your recollection as well? And how do you compare that to either the exploitation and or tamping down of Islamophobia today? Let me give you three examples from 2001. The Bush administration, my hero, John Ashcroff, the attorney general, pay the families of the victims who were in the United States from Saudi Arabia, where the terrorists generated from or evolved, pay them, pay undocumented workers on the World Trade Center, windows on the world, 13 of them. They shouldn't, they had no license to work there.

10:38It doesn't matter. They died, pay their widows, pay same sex partners, which wasn't legal then. Pay same sex partners in those cases, only those cases we have to follow the law. We are the will of the victim. Said, if I die before my same sex partner, all of my estate goes to my same sex partner, John Ashcroff, conservative Republican from Missouri, pay him. We abide by the victims' will. Three examples where the country led by the Bush administration with support from Congress can death deflects everybody, pay all the victims equally and treat them failing, which we did. Do you think the Iraq war and the revelations about whether or not that was a good idea or not in the consensus that it was not now?

11:42Do you think that played a role on the way to this point that we're at now that you're talking about in your book? I, you know, that's one factor in coming to qualities and other factor. You can, you can historically use, well, as anybody can point a list of bill of particulars as to how the country evolved in a relatively short period of time from the consensus in 2001 to what we confront, the divisiveness we confront today. Well, what would you have said in 2011? Ten years in. I mean, how much of this is recent? How much of this? I'm not as as young as the historian. You're not either, but you live this and you've written about it. Tell us why are we where we are, Ken? You know, the historians will talk about that. I will say in 2011 and 2012, we had a, another major disaster in this country.

12:42I was heavily involved in the deep water horizon oil explosion. Once again, this time it was President Obama and President Obama and the Republicans agreed setting up an alternative scheme to compensate all the victims not only on the grid, there were only only 15 deaths, but millions of applicants saying business interruption. I can't fish. I can't oyster harvest. I can't shrimp in the Gulf. The Gulf is closed. President Obama, just like President Bush, this time he told BP, I want to set up a program. I want you to commit 20 billion dollars of your money to set up the program. And again, in 16 months, we basically support from all in 2011 and 2012, we were able to

13:43resolve 92% of all the claims voluntarily. And again, that was really a, there was some, you know, political posturing by elected officials in the Gulf, you know, I've given enough. It takes too long, blah, blah. One generally great support and great leadership from President Obama who forged this alternative program. When COVID began, different kind of tragedy, but a huge catastrophe for millions of people in this country and around the world, had you already begun to think or did you think, well, in 2001, we handled a sort of nonpartisan, not largely non-political disaster in a certain way. Did you have foreboding in March of 2020 about how it would go? Not really, because COVID raised very important operational questions about a fund.

14:45COVID was so impactful nationwide. I had trouble thinking how it would be possible. Who's eligible? Where's the money going to come from? What are the criteria and the proof requirements? It never, it never convinced me that you would have the type of encapsulated, promatic number of deaths and injuries that you could run a successful program without bankrupting the U.S. treasury and the insurance industry. So some came to me, the insurance industry certainly did. And what about a plan? Can you start designing a plan for COVID compensation? We looked at it for a week or two and it became apparent to me that it wouldn't work. Let me ask now a broader question.

15:48We did not handle the COVID crisis in this country with the same unity of purpose and harmony that we did 9-11. Did that surprise you then? No. No. Different time, different president, different issues, different divisiveness by COVID. COVID felt, for me, at least, COVID seemed to fan the flames of what was already out there. And that was the reason why a COVID program never got to add in here anybody in Congress thinking about a COVID compensation program. And it was dead on arrival in terms of thinking about it. So what, so if today to ask very explicitly the question that you ask, but do sort of a tabletop exercise, there's that, um, satirical film that I never saw. And I'm forgetting what it's called about an asteroid approaching Earth and does it bring

16:48everyone together and it does the opposite. I haven't seen it so I can't opine on it. If whether it's that or another pandemic or another massive terrorist attack, could you sketch out what it's going to look like? Not in terms of compensation, but in terms of unity versus divisiveness. Well, there's two problems with, um, anticipating another 9-11 type fund in America in 2027. First is a political problem. In 2001, the Congress was united in advancing very quickly this program. And it worked in 2001. But I must say, um, even in 2001, if you think about it, the idea that we would do this, the idea that the government would step up and compensate some victims of a terrible attack. Everybody else fenced for yourself.

17:49Hyrule oil, go to court. It's problematic quite a pop from political divisiveness as to whether or not the 9-11 fund is a precedent for anything. I'm skeptical about that. Bad things happen to good people as you know. Every day in this country, innocent victims every day. There's no 9-11 fund. Yeah. No, we should talk about that. That's right. We've been funds for, and boy, we talk about them on the show and they are devastating and they break your heart. Mass shootings. You've administered one or more of those funds. A half a dozen. And that's great. And I support that. But then you can't help but wonder what about the people who die in the Bronx or in Chicago from shootings that are just not clustered all at the same place at the same time. They don't get compensated. How do you explain that as a moral? When you introduce the subject, how do you explain that as a moral matter, as opposed

18:54to a legal matter? Oh, I think it's easy to explain as a moral matter. They're all entitled to compensation. But if the government's not going to step up and query whether the government should, you just mention that, most of those gun crimes, you find that the American people, voluntarily, sent in checks, $100, $50, $10, private, charitable donations, the Boston Marathon bombings. No government money there. And 2015 on Patriots Day in Boston, $62 million came in in 90 days from people all over the United States. We want to help these people never underestimate the charitable impulse of the American people. It's astounding to me. And morally, morally, if people want to send in money, they send in money.

19:58The American government is not coming to the rescue again. It did in 9-11. But the American government is not coming to the rescue. If you want to contribute privately to the Chicago shootings or the Virginia Tech shootings or the Boston Marathon bombings or the Pulse Night Club, the gay bar in Florida, and you want to contribute $35 million in private money, the fine. But that's not a government obligation. It's not even a obligation of the American people speaking to the congressional representatives. What would you think of someone about someone setting up a fund, voluntary non-government money, and raising funds to compensate the people who are killed in one-off shootings on the weekend in the cities of this country, North South, East West, Red States, Blue States? Because it is true that nothing focuses the mind and the charitable mind and the charitable

21:03wallet, more than a tsunami or an earthquake or a mass shooting. And again, that is all terrific and wonderful. And in those mass events can have a shocking amount of reverberation in the community because they're mass events. They're just different kinds of events. No one asking more about that in a moment. But then there are these things that happen every day. There's no one there for them. Do you think there have been any, is it not interesting enough for people to fund? I don't know how interesting enough. I have, my answer to you is you're right, implication of your question. I haven't seen such a fund set up by the billionaire who might decide to set up a special fund, draw from it, innocent victims of shootings. I haven't seen that. I wouldn't oppose it if somebody wants to volunteer. How would you, let's talk about that because this is an interesting idea. What would be the challenges to do something like that in terms of who gets what and what's

22:07the life worth? Well, now you say what are the challenges once you have the money? Yeah, let's assume we got the, it's like the old Steve Martin show because I had to be a millionaire and get everything you ever wanted. It's step number one, get a million dollars. So let's assume we have the money and we call Mr. Feinberg. How would you set that up? The simple solution before you get into any difficult allocation issues. The simple solution is you define in your program the eligibility criteria, innocent victim, unbushed, with a stray shot, you decide who's eligible. And then I've always thought that the easiest way to determine compensation is to give every victim roughly the same amount. Right. Because that's an alternative to the toward system. Very alternative, very different, very different. People like what we did in the Boston Marathon, bombings and the Virginia Tech shootings

23:13we've got X amount of dollars from the private sector divided by the number of people killed and the number of people physically injured and pay them. Simple and pay them within like 30 days, very important. It's all well and good for people to understand Ken Feinberg administered this and you know they probably understand there must be a lot of complexity they didn't understand because they're not in the weeds. But when you start thinking about it for a moment, the mind begins to real. So for example, someone passes from a tragedy like 9-11 and you're trying to figure out how much money the victim's family gets. Who's the family? Does that just follow normal state law of who we get the inheritance or is there some other mechanism? Well, that's a great question. In Congress of course, when it enacted the 9-11 fund didn't give one thought to that question, who gets the money? And what we decided was rather as you're already a 9-11 expert, there's two ways that

24:17you decide who gets the money. The victim had a will. And the victim said, when I die, my estate should go XYZ. We follow the will pursuant to state law. Most people on 9-11 didn't have a will. Mashed as in the universe and the world trade center, they didn't think they needed a will at the age of 32 or 35 years old. We did exactly what you suggested. If somebody dies without a will in New York, 100% of the money goes to the spouse. If the spouse has children, 50% to the spouse, 50% divided grow rata among the children. The estate law made pretty clear how you divide up the money, even though Congress was totally silent on that critically important issue. How much did it cost taxpayers or the government for the huge enormous team that you must have

25:20had to put together to do the 9-11 fund? The 9-11 fund team wasn't that enormous because you know. I know that's why I'm asking the question. It was a gimmick. First, the very efficient. I decided, as you would, you would have done exactly what I did. I've been appointed to this position. It's a patriotic duty. I'm not accepting anything. I'm working for 33 months pro bono. I don't want to get paid. Now, it's not all high flying patriotism. You can imagine as you've been in the public sector. If people in grief apply to the fund knowing that fine works making money off the dead victims of 9-11, Pluto would have been too close a planet to Earth for me to survive that criticism. By telling the victims, I'm not getting anything out of this. I'm just trying to dispense taxway of money that was tremendously strategically effective.

26:21I found you had credibility. Did you get your expenses paid? No, no expenses. I did have a staff of Pricewaterhouse accountants. They got paid. They bid on a contract with the Department of Justice public knowledge. They received something for 33 months. I think they received a total, something like $92 million or something out of $7.1 billion that was spent. This is one of the cheapest overhead claims programs in American history. But I couldn't get paid for that. That would have been a public relations disaster. Do you like this work? No. I don't like it in the sense that you pick up a newspaper. Oh my God, what's today? Are you like Godfather's Three? They keep bringing you back, Ken? I think they bring me back one of these days.

27:23I'll flop and then that'll be the end of bringing me back. You're only as effective as your last program. I'll tell you that. I'll be right back with Ken Feinberg after this. Support for the show comes from Upwork. The most successful business owners don't do it all themselves. They delegate. Upwork lets you build a team of highly skilled specialists for every function your business needs. So you can focus on what you do best and let experts handle the rest. Upwork gives your business fast access to highly skilled specialists with deep expertise. So you can fill critical skill gaps, launch projects faster, and scale support up or down without committing to full-time headcount. You can browse profiles, review past work, and get help scoping the role so you can hire with confidence and get started quickly. Upwork also has business plus, which lets you access the top 1% of talent on Upwork.

28:26With AI powered shortlisting, you can get matched to the right freelancer in under six hours. And when it comes to things like contracts and payments, Upwork can help there too. Plus it's free to sign up and posting a job is easy. Visit Upwork.com right now and post your job for free. That's Upwork.com to connect with top talent ready to help your business grow. That's UPWORK.com. Upwork.com. Are you a pet owner? Every six seconds. A pet owner in the US gets hit with a vet bill over $1,000. Always an unwelcome surprise. That's where Fetch comes in. Fetch is the most complete pet insurance for dogs and cats. According to ConsumerAdvocate.org, you get paid back up to 90% of vet bills. At any vet in the US and Canada, with claims paid back in as little as two days, go to fetchpet.com slash save right now for your free quote.

29:27That's fetchpet.com slash save. Hi, I'm Bella Freud. Each week on Fashion Neurosus, I invite guests from the world of fashion, art, film, music, sport and literature to lie on my couch and explore the connection between identity and fashion. This week on Fashion Neurosus, I welcome Charlie XCX. To be childlike as an adult, I think, takes a lot of bravery. Because there's always this fear of being embarrassed, I suppose. You also have to kind of like be willing to completely fall on your face all the time, pursuing that child likeness can sometimes really open you up to ideas that maybe you would feel too embarrassed to have if you weren't doing that. And I think that's quite scary. I think that's a very beautiful thing.

30:28Find fashion neurosis on YouTube or wherever you get your podcasts. How do people feel in the moment? You know, when you lose someone close to you, that's a loss that can never be compensated. And I figure you're the best person in the United States of America to ask these kinds of questions too. Because as people may not appreciate, you meet with everyone. You talk to them. You don't hide from them. You don't sit in a bureaucratic office and decide over a calculator who gets what's a life worth to coin, phrase, and then send them a check or do a direct deposit. You meet with them and you hear their stories. They talk about the person that they lost. How are people thinking in the immediate aftermath of a priceless loss? How are they thinking about the money? That is the number one question of this podcast.

31:31And that is the most difficult part of what I do in 9-11 and in all of these cases. You better brace yourself for the emotional turmoil that you're going to hear from individual families who lost loved ones or physically injured people who escaped with burns over 90% of their body. And if you think a calculator is going to save you, you are wrong. We've talked about some of the people who came to see me. Very few people are eye-conducted 950 separate confidential hearings behind closed doors. Very, very few people came to talk to me about money. They were angry about life's misfortune. They blamed the government and on the face of the government in this program. They blamed the government for what happened.

32:32Or some of them come not to be angry. Some came to see me to validate the memory of a lost loved one. One man came to me and said, Mr. Fiber, I lost my wife who were married for 25 years. I want to take this opportunity to show you a whole movie of our wedding 25 years ago. Didn't have anything to do with compensation. He wanted to validate his wife's memories. One woman. I ask you how you would have dealt with this. One woman came to see me, sobbing. Mr. Fiber, I lost my husband. He was a fireman at the World Trade Center. And he left me with our three children, six, four, and two. Now you're going to provide me $2.8 million in tax-free compensation. I wanted in 30 days. I said to a Mrs. Jones, this is the US Treasury. It's going to take 60, maybe 90 days.

33:35You'll get every dime. No, 30 days. Why do you need the money in 30 days? Why? I'll tell you why, Mr. Fiber. I have terminal cancer. I have 10 weeks to live. My husband was going to survive me and take care of our three children. They are now going to be orphans. I have got to get a guardian. I've got to make sure about the schooling. I've got to make sure that the the the the the estate is protected. I don't have a lot of time. Please, Mr. Fiber, help me. We ran down to the Treasury. We processed the check. We're office to office. We got her the money eight weeks later she died. Now, when you get 950 stories like this, it's debilitating. That, for your question, was the toughest part of all of these programs.

34:35Calculating dollars isn't the tough part. The tough part is the emotion and the stories you hear about life-sun fairness. But was it also may I ask the best part? Because you got to save this woman's family. You got to the money. Maybe not other people wouldn't have been able to do that. Is that not a cause of gratification and pride as well? Yes. It is a cause of gratification, but I understand I just gave you one story. When you have 950, a woman comes to me. Her husband was a fireman. He rescued, rescued 40 people from the lobby of the World Trade Center. While he was running across the World Trade Center Plaza, who escaped, he was killed when somebody jumped from the 103rd floor of the World Trade Center and hit him. Like a missile killing them both. She says to me, don't tell me there's a god, Mr. Feinberry.

35:38No way, no god can allow my husband to die that way. When you hear story after story, it's gratifying. It's also debilitating and it was very debilitating. Of course. How did you handle it personally? Did you do things in law enforcement? And you may know this, people who deal in certain kinds of issues. This is true. I'm sure medicine and other professions as well are required to take certain precautions. They're required to get counseling, they're required to get therapy. They have check-ins with folks. I'm not trying to cause a hip avialation, but did you do anything for self-protection and preserving your mental health during this period that you can share? Not with professional mental health. What I had going for me was a very loving family, first of all, who backed me up every day. Also, I had, don't forget, you know this. I had the support of the Department of Justice, the Office of Management and Buzzard,

36:42and President Bush himself, who calls me into the Oval Office. That reinforces you resolve, I must say. But, you know, you had cases I read in the Times and in the Wall Street Journal. Some of the cases you dealt with were, you know, brilliant, brilliant leadership. But now it's time to sentence a man or a woman. What you must go through personally when it comes to what you're recommending to a court, with that power, it's similar in some respects to what I had to go through. Well, you know, that's very interesting you mentioned because there are two categories of reasons I've never aspired to be a judge. You and I both have friends who will become judges. I know a lot of members of the bench, I'm going to listen to the program. But when you decide your career path and decide the things you want to do, you have to know yourself. And, you know, every judge that I've ever spoken who says the hardest thing that they do is sentence.

37:45You know, prosecutors just recommend. Prosecutors become de facto sentiners if they use mandatory minimums and they make that choice and they have discretion to make that choice. They have basically imposed the sentence. So I understand that. But the category one reason that I never wanted to be a judge is I don't, I don't want to spend my life sentencing people. I don't know that that I have the constitution for that, although I'm pretty tough in a lot of other ways because how do you do that? And I feel like prosecutors, when I was a prosecutor, I didn't think so much about the sentence. I thought my job was to get the conviction. And then I never jumped up and down and screamed about a sentence being longer than the judge was contemplating or the other way around. I'm not sure if that was an application or not. But it's not that different from the philosophical question that's raised by your book, what is a life worth? Who gets what? Well, who gets what in your world was about who gets what compensation?

38:47In the context we're talking about now, who gets what? That's in terms of how many hours, days, weeks, months, years of deprivation of liberty is is necessary, but is sufficient, but not more than not, but not what the phrase in the statute is, sufficient, but not more than necessary. You tell me with a calculator, if I should send this person who's responsible for a push in robbery, to prison without liberty for eight years and two months or for nine years and four months, not for me, very difficult. Very difficult. Very difficult. Deciding how much compensation is not the issue in 9-11 or any of these programs. In fact, people say she value in a life. You and I and others have took torts in law school and it tells you exactly how to calculate what would the victim of earn. Add something for pain and suffering. There it is. There's the formula. It's the emotional part

39:53of this that is absolutely debilitating and when people say, can, who can do it after you? They're, I'm sure plenty of people that could do what I do if they have the ability to take the emotional heat and people screaming at you about about life's unfaneless. It's life's unfaneless and the other problem you're uninduced, you know this. Vertical inequity in compensation is not a problem in these cases, whether you get 3 million or 4 million or 5 million. No one's going to complain to you about that. It's horizontal inequity. Mr. Feinberg, I lost my husband and you're giving me 3 million tax-free. But you're giving my next-door neighbor 4 million tax-free. What do you have against my husband? You never even met him.

40:53And already my next-door neighbor's getting 4 million to my 3 million. Now you can try and explain the law of torts. Well, your husband didn't make as much as the guy next door so he gets, you get nowhere with that one. No way. Because it's not intuitive. Torch is not intuitive. It's right. That's right. We talked about this. Last time I was a lot of years ago. So, let's have it again because it's confusing. On the one hand, it's an easy metric. So, hedge fund trader dies from some cause. And whether he goes through quarter, it goes through a fund if it's applicable. The metric he uses is lost earnings. That person is worth. And so, let's say that person was making $3 million a year, which is probably a low estimate. That's a lot of money. A lot of, especially if she's 32 years old. If she's 32, if she had a work life. Yeah, but the tort phaser has to pay. And then you have someone who is a housekeeper,

41:59perhaps, and the survivor, the surviving family member, 65 years old. There's not so much money. Or the surviving member is the same age as the hedge fund example. People might ask, well, presumably, the guy who was making $3 million a year has a nest egg. And there's an ability for that family to survive and get past that. Whereas in the other example, maybe there's no money at all. And so, why does, why does tort law, and I spent a while since I've studied it, and I don't practice it really? Why isn't it taking to account, or does it take into account wealth as opposed to future income? You're absolutely right. They do that for financial aid. Yeah, right? They do. They're like, okay, you know, your parent, your household income is only 80 grand, but you got $12 million in the bank. You're not getting any financial aid. Why do we do torts a different way? Well, that's capitalism, and that's the system for

42:59250 years. But you're right. It's not the hedge fund manager in 9-11 versus the the woman who works in the house. It's the hedge fund manager in the world trade center, making $11 million a year. And when you calculate what is the life worth, even with my discretion reducing the amount, he's going to get $8 million tax-free. And a lady comes to see me, Rita says, my husband died a fireman. A fireman. He died saving the hedge fund manager's people. He died a hero with courage. You're giving me $800,000, and you're giving the hedge fund manager, how is that possible? Torts and the statute, that was another thing I'd say to people, well, they wrote the statute. Everybody gets a different amount of money. Yeah, that gets you very far, too. That got you nowhere. But you're pointing your finger on a problem. I wrote after in the book.

44:02I wrote at the end, you know, you probably shouldn't do this again with taxpayer money. But if you're going to do it again, give everybody the same amount of money. If they want to so let them so let them so let them so let's talk about that for a moment. So if you've done that a you have a figure in mind of what the appropriate amount for everybody might have been and then be what percentage short of 97% of participation do you think you would have gotten? It would have been a disaster. You know, if all those people in the world trade center have to get the same as a cop, a policeman. Well, what's that number? You're going to give the policeman five million? That would break the bank and US Treasury and people would be all over me and Congress saying, geez, you went way overboard paying these people. But if you give the investment manager a cops compensation, a policeman is going to reject it and go to court. I'm not signing that release for 800,000. I get a slam dunk to get eight million. So when Congress decided in its

45:08infinite wisdom, everybody gets a different amount of money. You had to confront this emotional gap with people coming to see me. My husband was a fireman and he's getting one tenth of my guy around the neighborhood that was a investment fund. How is that fair, Mr. Fine? There's nothing fair about these programs. I mean, look, I've been reading this book by late scholar Judith Sklar about the difference between misfortune and injustice. That sounds like interesting bedtime. It's already interesting. We spent a lot of time talking about what justice is. We don't spend as wonderful points. We don't spend a lot of time defining, explaining, and talking about and having discourse about what injustice is. That's corollary. Then more specifically, is there such a thing as misfortune? You might think so. Yeah, it's my misfortune to be at the

46:10World Trade Center that day. It's my misfortune to be on that bridge. It's my misfortune to be at that hotel when the flood hit Nepal. You think about it a little bit longer. Well, was the building constructed properly? Did the allowance have proper safety? Then you start to realize she explains and explores. You've done this incidentally also. Is there such a thing as pure misfortune? Probably not as often as we think. There's a lot of injustice in misfortune. I don't want to sound radical here. When argument can be made, to the extent bureaucratic rhetoric and the strictures of tort law and the strictures of budget have us talking in terms of misfortune as opposed to injustice and therefore money is owed to you. Not as a gift, but because you were wrong because people who had responsibility didn't do the right thing because we had a wall

47:14between intelligence and law enforcement because we didn't have the proper screening at airport. You know, hold, you know, there are people to blame for 9-11. I don't know. I'm just a roommate. I don't know if you have any reaction to any of that. Do you think about these moral dilemmas all the time or did you find that you put them out of your mind? No, no. You can't put them out of your mind. And I tell people this, don't ever talk about the 9-11 fund in terms of fairness. What's fair about giving anybody a check for a lost loved one or somebody so incapacitated they'll be lucky to live another three-day years with their burns? Don't talk about fairness. It's the wrong word. To me, the correct word in most of these programs that I design is mercy. It's not justice. It's mercy. It's people for whatever their reason coming to the financial aid of others.

48:16And it's not based on a justice principle or a misfortune principle. It's based on we don't care about that. What we care about is showing some mercy to our fellow citizens and then you get around a lot of the problems posed in that book. Although I will just cynically point out as some listeners might be thinking that one thing you mentioned at the beginning of our conversation was one of the motivations was economic. You know macroeconomic that the airlines might have been in big trouble and that might have had an effect on the economy. So mercy, but with an economic component, correct? Absolutely correct. People are very accurate when they say Mr. Framie, do you think this 9-11 fund would have ever seen the light of day had it not been for the airlines lobbying for legal help in the courtroom? No, I don't think it would have, but it's not all

49:17bad because as we talked earlier, Congress could have held the airlines without giving everybody $2 million each and tax-free and that was a signal from Congress. We had caught up in this patriotism too, to a certain extent. One nation, the communitarian ethic, very important here. You don't have that today. My interview will continue after a short break. Hi, I'm Bella Freud. Each week on Fashion Neurosus, I invite guests from the world of fashion, art, film, music, sport and literature to allow my couch and explore the connection between identity and fashion. This week on Fashion Neurosus, I welcome Shenaya Twain. I did really want to flaunt it. I just wanted to be myself and be natural. Like, you know, this is my body and so why shouldn't I wear things that flatter it and that I enjoy wearing that make me enjoy my body instead of not wanting my

50:23body? I resisted it until I started making videos and then man, I feel like a woman was that was, oh, now I'm like, oh, you know, this is way too much fun. Like, this was blowing my mind. Find fashion neurosis on YouTube or wherever you get your podcasts. So like any good millennial, I have a love hate relationship with Gen Z. It's the phenomenon rattling millennials. They just look at you. They want something bigger themselves, lifestyles, a priority. Motivation is being inspired. But regardless of how you feel about Gen Z, it's undeniable that they're changing national politics. Generation Z is increasingly showing less loyalty to traditional political parties. Many now more likely to identify as independent. So what is going on with the kids? I think the biggest misconception about Gen Z's politics right now is that all of a sudden they're all socialists. That is just not the case. Yeah, yeah, they are embracing candidates who are offering new bold ideas in the absence of those ideas from

51:28establishment Democrats. This week on America, actually, Gen Z researcher Rachel Jem Faza joins us to separate Gen Z fact versus fiction. It's not rocket science. And this is, you know, I keep saying like, young voters aren't that complicated after all. It's pretty simple. Catch us every Saturday on YouTube or wherever you get your podcasts. I'm going to re-ask the basic question of this interview in a slightly different form. And that is, are the days gone when we could assume that a common enemy, whether it's a nation or an asteroid or a pandemic or a terrorist attack, are the days gone when we can expect that to unite us? No. If you're right about that, if we have to get... Well, I'm not. I'm asking. No, you're the one who wrote, sir. I wonder if we could deal again with a catastrophe so effectively. So it's an offshoot of that point. I still would like to believe,

52:30and I do believe that brighter days ahead will return. Right now, I don't think you'd get much in the way of unified political support in this country for coming to the rescue. But I'd like to think that our common history, our ethic, our principles that founded the country. I'd like to think that if there was another disaster, whatever the solution might be, there'd be a common rush to try and join hands. I'd like to think that like we did in 9-11. Where are we failing? You worked in the Senate, your chief of staff to Ted Kennedy at one point. Is it fair to blame one of the branches of government more than the other, the executive or the Congress for the state, the people we're in? At different times, I mean, right now, you can point fingers at the executive branch, but you can also point fingers at the Congress for sort of rolling over and not asserting its

53:36constitutional, full constitutional powers. So in that sense, the 9-11 fund came right out of Congress. I don't know if President Bush welcomed it, but he signed it and he supported it. And John Ashcroft was just terrific in implementing the law. I don't know about finger pointing right now except that Congress doesn't seem to be willing to be an independent voice in a lot of this. I this past week spoke at orientation to the entire first-year class of Columbia law students. I've done it for a few years. It's my alma mater. And already on day one, they're having resume workshops or talking about jobs. Some people reach out. They look at your career, they look at your career, they look at my career and other people who've had the good fortune of having interesting successful careers and they want to engineer their own. They want to figure out the way on that path. And the only non-accident of my career was and the thing that I tried,

54:44every machination I could to get was to be an assistant, you was attorney in the Southern Treasury of New York. That I knew I wanted, and everything after that, and that's been some years, right? It's been 26 years. Everything after that sort of was a little bit happenstance because there was an interesting opportunity and I fell into it. I'm doing this podcast nine years. That's nuts. That's because President Trump fired me and I didn't have another game plan. And my brother happened to have a brand and a media property. And this is now the longest thing that I've ever done in my life. I tell you off first year law students and I tell everybody who asks young people especially, don't plan too far ahead. You know, you're a first year at Columbia. Wow, that's an achievement. You may think you know what you're going to do at post graduation. You may think you've got it all plotted out. Well, a lot of those people in the world

55:48trade center thought they had it all plotted out. Don't plan too far ahead. That's one thing I tell them. And that's my career and yours in the sense that Judge Weinstein got me involved in this whole business with the Agent R in the 1980s. In the 1980s, right? In 1984. I was a lawyer trying you know, develop a law practice and along comes Judge Weinstein. No, you're going to be the special master in Agent Orange with the Vietnam veterans and you're going to settle that case. Well, the minute we settle that case, my whole career changed. Will you, you're a perfect example of how you know you want somehow you want a public service. You really want to be involved in public service and you know, prosecution side, etc. When you have that as a goal, but it takes a lot of luck. And a lot of as you say happenstance, you're a picture perfect example that luck

56:53is the residue of design. You know, really where you want to go and you go with the flow and you take advantage of your opportunities and you know, the rest takes care of itself. Talent will out. That's for sure in your case. And you're not through. You see, the funny. Wow. I'm getting there very tired. Can you listen? You say nine years. You're in a placeholder right now. Things are going to change. You're too valuable. A public servant to think that nine years from now, you still have an 18 year old podcast. You watch, um, talent will out. And I'm just making the prediction. But what I'm a whole lot to make a prediction. We have a couple of minutes. I want to talk about luck and misfortune because those seem to seem to be the kinds of things that one associates with you given your your job. Someone was told me I think it was Santa who said that luck is where opportunity. Luck is where preparation to meet's opportunity.

57:55Something like that. It is very fashionable and also humble to attribute success to luck. That's one reason people of humility, which I think you are and I like to think I am. Attribute things to happen, stance and luck. And that there's something true about that. But there are opportunities that that that fall lots of people all the time. They don't know it. They don't take advantage of it. They haven't done the preparation for it. They're not unlucky. See if you agree with this harsh assessment. They haven't they haven't prepared to take advantage of the happenstance that happens in their lives. Is that fair? Very fair. They lack in quote because it's not battlefield courage. They lack courage who assume the risks of going down a path and you, me, other some welcome that risk and exhibit that courage and we'll take our

59:01chances. But some people most people won't do it. It's so interesting you say that. I never talk about this. You have a lot of experience talking to people in much worse circumstances. I'm laying bare my soul to you, Ken Feinberg. I left being an assistant newest attorney to go work in the Senate. Never thought I would leave. It was an interesting opportunity when it looked like there were going to be some Supreme Court vacancies in 2005 and there were two, O'Connor and Renquist. And in the years later, I became United States Attorney and I got to do that for two terms and in retrospect, people attribute to me much more strategic than I ever had, which was, oh, that was a brilliant move. Pre left the US Attorney's office went to go work for United States Senator. Then several years later, after killing himself, his plan was always to become the US Attorney because Schumer would recommend him to the first black president to be the US Attorney.

1:00:02That's not how it worked. That's not how it went. Right. Nothing was engineered. And the funny thing I remember thinking, and I mean, just disparagement to people who don't take risk, but there are a lot of people who would like to be the US Attorney or would like to be a point of a judge and other things. And I didn't see them running to these opportunities to engineer themselves into these jobs because they understood by not voting with their feet to leave the jobs that they had, that there is some luck in that. And you should just take jobs that stretch you and that challenge you and that are interesting in the moment. And I'm still of the view, very naive view, if you do a great job. I mean, the advice I give everyone is, and I've got high school students, especially, who are already asking me, like, how do I become a prosecutor? How do I become a judge? Well, like, first you got to survive a lot of shit before you get that far. And you know, you know, better than I, the answers to

1:01:06these questions. I say, just do as good a job as you can and every job you get. And do a job in such a way that if anybody ever calls anybody you worked with, they'd say, oh, that can find brick kid, greatest kid. And that's how you should prioritize your work and your attitude and your effort. Did I leave something out? No, you left out one thing because we completely agree as we have for the last hour, but you left the US Attorney's Office to go to work for Senator Kennedy. And look at us. And in 1978, I became Senator Kennedy's Chief of Staff. And as far as I was concerned, up to that point, working for Senator Kennedy, like working for Senator Shoma,

1:02:09brilliant move. Personally, I loved it. I loved it. And then you'd go on to the next thing and the next thing. And before you know it, 9-11 or Agent Orange, you know what judge, it's, happens, stands. It's locked to a certain extent. But your position yourself through your own individual origin, willingness to take risk. And look at what happens. That's why, you know, I can bet my house that you're not destined for nine more years of a podcast. You wait and see. I'll be proven right now. Be at your swearing in somewhere. I do a couple of other things too. Final words on, on hope. And I just want to point out for the record before I let you go. I didn't ask you about this specifically. But when you were on this podcast, seven or eight years ago, I asked you the question. Do you think that we are on track to become even more embittered and more polarized in Congress? And you said, well, it's a murky crystal ball.

1:03:15Well, hindsight is 2020, my friend. And I guess we are more embittered and more polarized, aren't we? That's right. But the murky crystal ball never stops rolling. And I just believe, and I'm sure you do too. A better days ahead. This is a very difficult time in American history. To a certain extent, it's disbelief in American history. But this too shall pass. And I think our in our governmental, our political, our social institutions are strong enough at the end of the day to withstand a lot of these current pressures that we come from. So what is life worth? It's out in a few days. Thank you, sir. Thank you for your time, for your insight, and for all of your service, whether it was happenstance or not. Thank you. Thank you for the opportunity.

1:04:16My conversation with Ken Feinberg continues for members of the insider community. Let's not just divert people out of the litigation system. Let's provide them enough to demonstrate that the American people have the support of the entire nation. To try out the membership, head to stay tuned dot substac.com. Again, that's stay tuned dot substac.com. Well, that's it for this episode of Stay Tuned. Thanks again to my guest, Ken Feinberg. If you like what we do, rate and review the show on Apple podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. You can reach me on Twitter or Blue Sky at Preet Barara with the hashtag AskPreet. You can also call and leave me a message at 833-997-7338. That's 833-99Preet. Or you can send an email to letters at cafe.com. Stay tuned is now on substac.

1:05:21Head to stay tuned dot substac.com to watch live streams, get updates about new podcast episodes, and more. That's stay tuned dot substac.com. Stay tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Semper. The supervising producer is Jake Kaplan. The lead editorial producer is Gloria Teal. The editorial producer is Claudia Hernandez. The audio and video producer is Nat Weiner. The senior audio producer is Matthew Billy, and the marketing manager is Leana Greenway. Our music is by Andrew Dost. I'm your host, Preet Barara. As always, stay tuned.