Buying the silence of 9/11 witnesses and victims’ relatives
Shortly after 9/11, the Congress established the September 11 Victim Compensation Fund for victims’ families, as a part of the Air Transportation Safety and System Stabilization Act (ATSA).1 The fund was administered by Kenneth Feinberg, appointed as “Special Master” by Attorney General John Ashcroft.2 In order to apply for compensation, families had to waive their “right to file a civil action…in any Federal or State court for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001.”3 Feinberg confirmed that this provision was intended to deter victims’ families from suing the airlines4, although ATSA demands that they waive their right to sue anyone, including security firms, the New York Port Authority, the U.S. Government, or any other domestic entity.5
Ninety-six families opted not to apply to the government compensation fund. Their motives varied. Some were seeking larger settlements than the compensation fund was likely to offer them. Others hoped to use the litigation process to compel disclosure of a fuller picture of what the airlines did – and left undone – on 9/11 and before: “For some, it’s blood money, a repugnant payoff they feel they have no choice but to accept.”6 Monica Gabrielle was amongst those who rejected the government compensation offer. She told Tim Harper of the Toronto Star: “This is about mass murder. I want to know who was responsible. No one has been fired. No one has been demoted. The same people who are guarding us today on an elevated security alert are the same people who were working that day.”7
Those who chose not to apply for this compensation brought a cause of action against the airlines and security firms. But they did not count with the hurdles the government had placed in front of them. ATSA limited their forum choice to the U.S. District Court for the Southern District of New York,8 where they had to contend with Judge Alvin Hellerstein. Hellerstein, as evidenced throughout these cases, was determined to protect defendants from disclosure. He also decided to reverse the traditional judicial procedure where liability is determined before damages are discussed, in the hope that more cases might settle out of court “once families get a sense of how much money they are likely to get from a jury”, as he explained to the media.9 And indeed, 95 of the families who initially refused to apply to the Compensation Fund and wanted to know “who was responsible” for 9/11, gave in to Hellerstein’s pressure, by settling out of court. They received far more than what they would have received from the Fund.10 Collectively they received $500 million, making the average pay-out slightly greater than $5 million. The court prohibited the families to reveal how much money they received.11 These secret settlements were made at the expense of the public’s right to know the truth.
By their conduct, “Special Master” Feinberg and Judge Hellerstein, representing respectively the executive and the judicial branches of the U.S. government, intentionally and successfully thwarted the quest by families of 9/11 victims to establish the truth on the mass killings of 9/11.
1 Air Transportation Safety and System Stabilization Act (ATSA), 107th Congress (2001-2002), H.R.2926. At <thomas.loc.gov/cgi-bin/query/z?c107:H.R.2926:>.
2 R. L. Rabin, ‘September 11 through the prism of victim compensation’ (Abstract), Columbia Law Review, March 2006, Vol. 106, No. 2, p. 464. At <connection.ebscohost.com/c/articles/20396636/september-11-through-prism-victim-compensation>.
3 ATSA, supra note 261. Title IV, Section 405 (c) (3)
4 ‘Who gets what: Putting A Price On Human Tragedy’, Interview with Kenneth Feinberg, NPR Talk of the Nation, 27 June 2012, at <www.npr.org/2012/06/27/155850506/who-gets-what-putting-a-price-on-human-tragedy>.
5 J. Taglieri, ‘9-11 Lawsuits: Saudis, Airlines, Bush Face Litigation’, From the Wilderness, 27 August 2002. Available at <www.fromthewilderness.com/free/ww3/082702_lawsuits.html>; also W. Gilberti, ‘Bush administration moves to stifle discovery in 9/11 lawsuits’, World Socialist Web Site, 2 August 2002. Available at <www.wsws.org/articles/2002/aug2002/bush-a02.shtml>.
6 T. Harper, “Families Sue U.S., Reject 9/11 ‘Bribe’”, Toronto Star, 23 December 2003, at <www.commondreams.org/headlines03/1223-02.htm>.
8 ATSA, supra note 261, Section 408, para. (3) (Jurisdiction).
9 ‘Jury Can Hear Part of Flight 93 Tape’, CBS News, February 11, 2009. At <www.cbsnews.com/8301-500249_162-3254501.html>.
10 B. Weiser, ‘Family and United Settle Last 9/11 Wrongful-Death Lawsuit’, New York Times, 19 September 2011, at <www.nytimes.com/2011/09/20/nyregion/last-911-wrongful-death-suit-is-settled.html?_r=0>.
11 A. Harocollis, ‘More 9/11 Lawsuits Are Settled’, The New York Times, 18 September 2007. At <www.nytimes.com/2007/09/18/nyregion/18cnd-settle.html?hp&_r=0>, last visited 30 September 2012.