WASHINGTON — Atty. Gen. John Ashcroft on Monday named veteran mediator Kenneth R. Feinberg as special master of the government's Sept. 11 compensation fund, making him the sole arbiter of how much money thousands of victims of the terrorist attacks will receive.
Feinberg, a Washington attorney specializing in mediation, arbitration and negotiation, has held similar roles before, including that of special master in a multibillion-dollar Agent Orange lawsuit.
But by accepting his current unpaid position, Feinberg is entering uncharted legal terrain that is full of potential political pitfalls, legal and political experts said Monday.
Feinberg must decide, for instance, whether the life of a janitor killed in the attack on the Pentagon is worth any less than that of a president of a billion-dollar bond trading firm who died in the collapse of the World Trade Center, and by how much.
He must decide whether the partners of gays and lesbians are entitled to compensation, and whether life insurance payments and charitable contributions should be subtracted from the aid a victim receives from the federal government.
And Feinberg will be the one to make good on Ashcroft's pledge Monday to deliver "advance payments" to those victims deemed most in need of immediate help. Ashcroft did not say who, out of thousands of victims, will be eligible to receive such payments, how much they deserve and when the money will be available.
All of those decisions will rest with Feinberg. They will not be open to legal appeal or congressional or administrative second-guessing. And when the veteran litigator gives the bill to the U.S. Treasury Department, the government must pay it in its entirety, no questions asked.
"Frankly, I think he has become, instantly, the most important human being on the planet to 5,000 devastated families," said Leo Boyle, the Boston-based president of the Assn. of Trial Lawyers of America, which has set up a bank of volunteer lawyers for those seeking redress through the Sept. 11 Victim Compensation Fund. "He has an extraordinary resume. He has all the tools and all the experience he needs to do a superb job."
The program, signed into law by President Bush on Sept. 24, will provide funds for the families of almost 4,000 people killed in the Sept. 11 terrorist attacks, as well as an estimated 7,000 who were injured. While the total amount of compensation is unknown, it is expected to be in the billions of dollars. This money is entirely separate from the many private fund-raising efforts under way.
As special master, or independent legal overseer, Feinberg will act on behalf of Ashcroft in developing regulations governing the administration of the fund. With a staff culled from the Justice Department and his law firm, Feinberg will then administer the fund and be responsible for everything from disseminating public information about it to developing application forms and overseeing personnel.
"I know that under his leadership, the program will be administered in a manner that is sensitive and fair to the needs of those who have suffered as a result of the events of Sept. 11," Ashcroft said at a news conference. He described Feinberg as an "experienced legal counselor, prosecutor, manager and arbitrator."
Feinberg said he took the job to make sure the process is fair and that the victims get just compensation despite what will surely be an unwieldy, emotional and unscientific process.
"The problem that we confront is very, very complex," Feinberg said. "I have wide discretion . . . to [make] the tough decisions, which I am prepared to make. That's what happens when you take on this assignment."
A former top aide to Sen. Edward M. Kennedy (D-Mass.), the blunt-talking Feinberg has served as special counsel to the Senate Judiciary Committee, assistant U.S. attorney in New York City and as a member of several presidential advisory commissions.
Currently a law professor at three universities, Feinberg also gained national attention and respect for his role in helping achieve settlements in giant class-action lawsuits over the adverse health effects of breast implants, asbestos and the Agent Orange case.
He also has been known to engage in high-stakes settlement talks in hot tubs, hotel bars and negotiation rooms at 2 a.m., lawyers familiar with those cases say.
After the Sept. 11 attacks, Congress voted to compensate victims in much the same way that airlines pay damages after a plane crash. But those cases often take years; under the terms of the statute, Feinberg has four months to complete each claim.
Victims have two years from Sept. 11 to submit claims; Feinberg's group must be ready to begin processing them by Dec. 24.
It will be an almost Solomon-like task. Intangibles such as physical pain, loss of a partner's companionship, loss of wages, suffering and embarrassment all will be quantified and given a price tag.
"Sept. 11 is one of the defining events in the history of the world," said Henry O. Miller, a trial lawyer who has faced Feinberg as a mediator. "And Mr. Feinberg is going to get to write one of the closing chapters in that event. These families need to heal. And Ken Feinberg is going to be part of that."