Some 9/11 families reject federal fund and sue
The U.S. government made two promises to the families of those who died in the Sept. 11, 2001, terror attacks: A special Justice Department fund would compensate their financial losses and official investigations would uncover the security failures that enabled al-Qaeda to kill 3,027 people.
Uncle Sam asked only one thing of the families in return: Don’t drag the battered airlines and their affiliates into court. Many members of Congress wanted to avoid the sad spectacle of victims’ families suing another hard-hit group.
Nearly two years later, many families of 9/11 victims are rejecting that guidance.
With the Dec. 22 deadline to apply for government payments nearing, the relatives of 1,995 deceased victims have submitted claims. The families are lining up for settlement checks that are averaging nearly $1.5 million, and are agreeing not to sue airlines, airports, security companies or other U.S. entities that might be faulted in the fatal hijackings.
Meanwhile, with official findings of blame for the attacks slow in coming, hundreds of victims’ survivors are spurning the government cash and flocking to federal courts. Undeterred by the difficulty in proving that anyone was culpably negligent ? or by roadblocks set up by Congress and the Bush administration ? the determined survivors are seeking money and facts on their own.
“Someday, please God, I will see my son again,” says Kathleen Ashton, of Woodside, N.Y., whose son, Thomas Ashton, 21, died at the World Trade Center. “I need to be able to look at him and say, ‘Tommy, I did the right thing.’ The right thing is not to take the (government) money. The right thing is to try to get answers, to see what sort of lapses allowed the murderers to do what they were able to do.”
Nearly 100 individual and class-action lawsuits have been filed. More are likely by this Sept. 11, which under New York state law ? the guideline being used for claims related to the attacks? is the two-year deadline for filing personal-injury lawsuits. Behind some of the lawsuits are prominent lawyers who have won billions of dollars from tobacco and asbestos companies in verdicts and settlements.
The 9/11 families are suing not only United and American airlines and others in aviation, but also Osama bin Laden, Saudi royal princes, Arab banks, Muslim charities and the governments of Iraq, Iran, Sudan and Afghanistan. In a complaint filed in Miami by Judicial Watch, a government watchdog group, Venezuelan President Hugo Chavez is accused of sending “at least $1 million” to al-Qaeda and the Taliban, the deposed ruling group in Afghanistan that was aligned with bin Laden. (Venezuelan officials deny making any such donation.)
Slapping lawsuits on terrorists might amount to little more than psychically satisfying payback, because recovering money from a shadowy network is all but impossible. Alleged financiers of terrorism are more reasonable targets and have deeper pockets.
The search for evidence is barely underway, but the aggressive litigation already has shown signs of unraveling some of the mysteries shrouding the attacks.
One pretrial discovery debunks the widespread notion, endorsed briefly after the attacks by Transportation Secretary Norman Mineta, that the box cutters the hijackers carried had been allowed under federal security rules.
An anonymous whistleblower mailed a copy of the airlines’ pre-Sept. 11 list of banned items to Los Angeles litigation lawyer Mary Schiavo, whose firm is representing the families of 62 jet passengers. The list showed that box cutters were among the potential weapons that screeners were supposed to confiscate. Federal officials have not questioned the document’s authenticity.
Schiavo, a former Transportation Department inspector general, calls the document “the smoking gun” in suits against the checkpoint guards’ employers and the airlines that hired those private firms. But Jim May, president of the Air Transport Association of America, the major airlines’ lobbying group, says the walk-through metal detectors approved by U.S. authorities were unlikely to spot dangerous items smaller than a handgun.
Meanwhile, the litigation has lent some support to the Bush administration’s effort to cast Saddam Hussein’s Iraq as having been allied with al-Qaeda, a claim the White House made while trying to justify the war with Baghdad.
The administration’s claim that Saddam sheltered a bin Laden ally with ties to chemical weapons didn’t sway the United Nations Security Council.
But in May, a federal judge in New York found it convincing enough to order Iraq to pay a $64 million “default” judgment ? Iraq never showed up in court ? to the families of two businessmen who were killed at the Trade Center. It’s unclear whether the families will ever see any of the money.
Litigating families say they aren’t waiting any longer for official committees to establish the full story behind the attacks.
A House-Senate panel has finished an 800-page report that deals mostly with intelligence failures, but the White House has held up its release to review classified information in it. An independent national panel headed by former New Jersey governor Tom Kean recently held its first two public hearings. The commission’s leaders have complained that government agencies have been slow to answer their requests for information.
James Debeuneure, 58, a Washington, D.C., schoolteacher, died aboard American Flight 77 when it hit the Pentagon. His son, Jacques Debeuneure, 34, a Matthews, N.C., postal worker, says his lawsuit against the airline provides a separate avenue of investigation. He’s asking the court for access to flight recorder data and cockpit voice tapes from the doomed jet.
“If you go with the federal fund,” he says, “you’re out of the loop.”
Lawsuits ‘a real crapshoot’
One advantage of the unprecedented victims’ compensation fund: It works fast.
Administrator Kenneth Feinberg determines payments under formulas using a decedent’s age, income and dependents. Feinberg expects to pay out a total of $4 billion. So far he’s distributed $559 million to settle 380 claims.
The claims process usually takes about four months; there are 1,615 claims under consideration. The largest award so far, $6 million, went to the family of a victim who earned more than $200,000 a year.
But Debeuneure says he’s learned that the fund would pay him nothing. Congress requires payouts to be reduced by any amounts that survivors have gotten from life insurance and other death benefits. Debeuneure says his father was “well-prepared” for death because of insurance.
Nine other families sued Feinberg, saying his formulas shortchange victims who made more than $231,000 a year when compared with sums that juries regularly award such victims’ families in tort actions.
In May, a federal judge in New York upheld Feinberg’s rules. Many of those now filing civil suits, relatives of high-income and well-insured professionals, aren’t happy with what they’d get from Feinberg’s fund.
Most 9/11 cases are traditional tort lawsuits that accuse U.S.-based defendants of negligence. Complaints name airlines, Boeing (for allegedly “flimsy” cockpit doors), three security-checkpoint screening firms and the airports that the hijackers passed through ? Boston’s Logan International, Dulles International near Washington, D.C., Newark (N.J.) International, and Portland (Maine) International Jetport.
“It’s about people being responsible for their actions,” says Carole O’Hare, 51, of Danville, Calif. She’s suing United over the death of her mother, Hilda Marcin, 79, one of 37 passengers on the hijacked jet that crashed near Shanksville, Pa. “My mother had a contract with the airlines. They were supposed to get her from Point A to Point B.”
Some complaints on behalf of victims on the ground name the Trade Center, alleging that it had poor fireproofing and gave workers in the south tower tragically bad advice to stay at their desks after the north tower was struck.
Attorneys warn would-be litigants that they’ll have to relive the 9/11 tragedy for a long time; aviation-disaster trials and appeals often drag on for 10 years. And it’s far from certain that juries, despite sympathy for the families, will hold anyone legally liable.
Defendants say in pleadings that a plot to fly hijacked jets into buildings wasn’t “reasonably foreseeable.” Airlines, airports and security screeners say they followed U.S. regulations.
Plaintiffs’ attorneys grumble that the Bush administration is imposing additional obstacles.
The attorneys want United and American airlines to produce records of their security programs, government tests of those programs, hijacking warnings from the government, and pre-9/11 travel by the hijackers. The Justice Department, saying the records could reveal “sensitive security information,” intervened and was granted the authority to veto the release of such information.
For a year, the government’s move stalled the pretrial process of deposing witnesses under oath and subpoenaing documents. Now it’s edging back on track. Schiavo says she expects the wrongful-death suits to be consolidated into four trials, one for each hijacked jet, that would start in 2005.
If the plaintiffs can persuade juries and appeals courts to award damages, they will encounter a barrier Congress raised that could prevent the full collection of any judgments. The law that forces families to choose between the U.S. fund and the courts limits the potential liability of a company or airport authority to the amount of its insurance coverage.
Plaintiffs’ attorneys say the airlines, for example, carried about $1.5 billion insurance for each flight. Some of the insurance money will pay for damage on the ground, leaving less for any families that win in court.
“You have to figure out how to equitably distribute a limited pool of dollars among people with very, very diverging legal claims and theories,” says Stuart Newberger, a Washington, D.C., lawyer who has handled terrorism claims against Libya and Iran but who isn’t involved in 9/11 litigation. “You could have the very unseemly spectacle of people fighting with each other over limited funds.”
Newberger says a negligence suit is “a real crapshoot,” and says the federal fund is “a reasonable choice for victim families to make.” The fund offers compensation “far below what one could win in court if successful, but maybe more than one could get in the real world.”
New York lawyer Mitchell Baumeister, who specializes in aviation cases, predicts that about 85% of victims’ families eventually will choose the fund, while the others will risk going to court.
Targeting alleged conspirators
Families have another option that carries the longest odds of all.
Congress allowed them to sue “knowing participants in the hijacking conspiracy” without losing rights to government compensation. More than 4,000 victims’ survivors have joined 11 lawsuits against terrorists and their alleged supporters.
These complaints are a long international reach for justice, and for whatever assets of the defendants can be found in the USA.
Led by tobacco-wars veteran Ron Motley of Mount Pleasant, S.C., a consortium of law firms last August plunked a 406-page complaint into federal court in Washington, D.C. It targets rich Muslims who allegedly have helped to fund al-Qaeda.
Among the 225 defendants: the bin Laden family’s Saudi Arabia-based construction business; five Saudi princes, including the defense and interior ministers and the former chief of intelligence; Arab-owned banks, and Islamic foundations. Other attorneys have brought two similar suits.
Saudi officials have said the royal family considers the suit “culturally offensive and undignified.” Several Saudi defendants have asked a U.S. judge to dismiss the lawsuit.
Among those joining the massive international-terrorism lawsuits are some of the 2,337 people who were injured in the Sept. 11 attacks. Nearly 1,000 of the injured have filed claims for compensation from the federal fund, as well.
(Another 35 personal-injury lawsuits have been filed against New York and New Jersey agencies by workers involved in the cleanup at the Trade Center site after the attacks. The workers allege they have health problems because they were not given proper equipment to protect them from toxic fumes.)
In October 2001, Philadelphia lawyer James Beasley filed the first lawsuit on behalf of families whose relatives were killed in the Sept. 11 attacks. Long before President Bush threatened war against Iraq, the suit blamed Saddam, bin Laden, al-Qaeda, the Taliban and Afghanistan. None responded to the complaint, which was “served” on the defendants via Al Jazeera, the Arabic satellite TV channel.
U.S. District Judge Harold Baer Jr. held a hearing on damages in his New York court. He considered testimony implicating Iraq from ex-CIA director James Woolsey as well as Secretary of State Colin Powell’s Feb. 5 speech at the U.N. that advocated retaliatory force.
Baer ruled on May 7 that the evidence “barely” established an Iraqi connection to the Trade Center attacks, but that it was enough to convince a “reasonable jury” of that. He ordered Iraq to pay $57 million to widow Katherine Soulas and $7 million to heirs of business executive George Smith.
The victorious plaintiffs hoped to collect the judgment from the $1.7 billion in Iraqi assets that had been frozen in the USA by presidential order since 1990.
But on May 22, Bush ordered that Iraqi assets here not be used to pay court judgments. He reserved the money for postwar rebuilding of Iraq, except for $300 million that was set aside for Americans who were seized as human shields by Saddam at the start of the Persian Gulf War in 1990.
Soulas, a guest of Bush at the 2002 State of the Union address, is “just devastated,” says Beasley’s son, lawyer James Beasley Jr.
For most of those who have gone to court, suing over the 9/11 attacks is more than a way to collect money or answer lingering questions, says Larry Klayman, chairman and chief counsel of Judicial Watch. “It’s also a cathartic experience for the client.”
Ashton’s fervor is proof of that. Aside from suing United Airlines, she is the lead plaintiff in a suit that seeks $1 trillion in damages from international terrorists.
She says she signed on “because I want these bastards, these Iraqis and Iran and al-Qaeda and bin Laden, I want them to know my son’s name. My son would really think it was very cool.”