The Response to the Disaster In New Orleans: Will There Be a Compensation Program Similar to the 9/11 Victims' Fund?

This is one in a special series of columns on legal issues arising in the aftermath of Hurricane Katrina. - Ed.

The media is now full of comparisons between the attacks of 9/11 and Hurricane Katrina. In particular, people want to know why the response of the President and the federal government, directly after 9/11, seemed so much better than after the hurricane.

But in this column, I want to take a longer-term perspective, looking beyond last week and asking whether, in the near future, we can expect the Bush Administration to provide a compensation program - perhaps one like the 9/11 Victims Compensation Fund -- for the victims of the hurricane.

Background: The Unprecedented 9/11 Victims Compensation Fund

The 9/11 Victims Compensation Fund (which I will simply call "the Fund") was an unprecedented program in the history of the United States.

The Fund offered the victims sums of money that were designed to compensate for not only the pain and suffering suffered by those who were killed or injured, but also for the loss of a substantial portion of the income they would otherwise have earned, and that would have benefited their families, over the rest of their lives. Of course, since 93% of the 3226 victims on that day were killed, the compensation ultimately went to the victims' heirs, and was used to help them get on with their lives.

In the end, the Fund gave out almost $7 billion to the victims and their families, and the sums were extraordinarily high, as compared to the sums that would have been granted under either a public or private insurance program. Victims and their families received an average of $2.08 million.

The Fund's unusually high compensation levels resulted from the confluence of two separate factors. First, and most importantly, the Fund was part of a deal made between the White House and Congressional Democrats. The White House wanted to substantially limit the liability of the airlines to the victims of those killed on that day, in order to keep the airplane industry afloat in the wake of 9/11. The Democrats allowed this, but also demanded that the Government step in and pay the victims (and their families) something like the same sort of damages they would have received in a lawsuit; if the airlines were to escape any liability, the Democrats argued, then someone would have to step in to compensate the victims, and it ought to be the federal government.

Second, the public's perception that the victims of 9/11 were heroes was, I think, critical to sustaining the high levels of compensation promised by Congress in the days after the attack.

In the United States, typically, the families of victims of crimes and fires do not receive full compensation for the lost wages of their loved ones, unless can win a lawsuit in court against the rare wealthy perpetrator, or by pinning responsibility on a corporation with deep pockets. In America, for the uninsured, losses typically lie where they fall: on the shoulders of those who suffer them, and of their families.

But Americans came to view the victims who died and were injured on 9/11 as more than the victims of a tragic accident -- or even the victims, arguably, of the negligence of the airlines in not reinforcing cockpits or taking other anti-hijacking approaches. We came to see them as heroes who had borne the brunt of an attack that had been meant to target our whole nation; they were either firefighters or police officers who had bravely tried to rescue the direct victims, or they were ordinary people who could have been any one of us - and who were attacked because they shared a characteristic with all of us: They were Americans.

In sum, the extraordinary payments by our government were thought to be justified because the victims of 9/11 died under extraordinary circumstances. Katrina, too, is extraordinary - but in a different way.

Contrasting Katrina with 9/11, For the Purposes of Considering Victim Compensation

Both of these factors are absent from the Katrina story, and that is why I do not expect the White House to propose a "Katrina Victims Compensation Fund" in the near future.

First, while there will be a lot of litigation following on the heels of the hurricane--there always is--none of it will threaten a single, well-connected industry like that of the airlines. If things go according to the script, there will be a lot of claims and cross-claims between insureds, insurers, and excess insurers. Already, the insurance industry is estimating the cost of Katrina at around $25 billion.

The reason the airline industry was able to get protection from liability, and a compensation program, out of Congress within weeks of the 9/11 attack was that it feared a large class-action alleging negligence against the airlines that allowed the hijackers on board. There is no risk of a similar suit here, as far as I can tell.

That's because if anyone "screwed up" the response to Katrina, it was the government. Maybe the City of New Orleans should not have sent its citizens to the Superdome and the Convention Center without adequate protection, or should have had better evacuation plans in place, or should have better followed the evacuation plans it did have. Maybe the federal government should have spent more money on flood control on the Mississippi. Maybe FEMA should have responded sooner, and better.

It doesn't matter--because of the legal doctrine of sovereign immunity, the families of the thousands who died, and the tens of thousands who lost all they had, face a much harder road to a jury than the 9/11 families did.

Sovereign immunity means that you can't sue the government unless it has specifically waived immunity to suit - and those waivers are typically quite limited. For private entities, there is no such immunity. And that means that, without the 9/11 Victims Compensation Fund, those who sought to sue the airlines, Boeing, the owner of the World Trade Center, and the operators of the various airports connected to the hijackings, would have just gone to court, filed their complaint, and, probably, fought out the matter on the facts - without confronting legal barriers like the broad immunity the government enjoys. Without the threat of a major lawsuit against an entity that can actually be made to pay, there is little reason for the White House to agree to a compensation program.

Second, it is obvious that the public does not think of the victims of Katrina as heroes--and there is little reason to think that the public point of view will change as time passes.

There are few, if any, heroic rescue workers among the dead or injured. And the blow was struck not by an enemy of America, for ideological reasons, but by Nature, for reasons only meteorologists can truly understand.

Of course, there is likely to be a large amount of aid money coming out of Washington to help the Gulf Coast--Bush has already promised $10 billion. But in comparison with New York after 9/11, the response will be, I predict, different in both scale and kind. Bush not only promised the City of New York $20 billion in aid after the attack, he promised the families of the victims individual compensation--and that, it seems, is not going to happen in New Orleans.

The Moral Argument For Compensation Is Similar, But the Law and Politics Are Not

Someone trying to distinguish the thousands of dead in New Orleans, and the thousands of dead in New York, would have trouble distinguishing the victims' moral argument for redress - at least, insofar as the New Orleans victims are compared with the 9/11 civilian victims, rather than those who were firefighters or police officers.

From what we've seen so far in the media, the allegations of government negligence concerning the events before and after Katrina seem, at a minimum, no less serious than the allegations of airline and airport negligence which led to the 9/11 Fund.

Indeed, it's possible that facts supporting allegations of the government's pre- and post-Katrina negligence are much stronger than those supporting the airlines' pre-9/11 negligence. After all, the operative model of a hijacking, pre-9/11, involved hostages, not planes-as-bombs. In contrast, Katrina's advent and strength were predicted accurately in advance, yet preparations and response fell short. No one who'd heard the coverage woke up the morning Katrina hit, to be surprised by the devastation. The main surprise, with Katrina, has been the seeming inadequacy of both the evacuation, and the post-hurricane response.

Thus, while the convenient legal excuse of sovereign immunity might explain why a court cannot force Congress to pay the families of the victims, it does not answer why, as a moral matter, Congress should not treat those families the same as the 9/11 families.

In the end, the ultimate reason for treating the families differently has to be the moral status of the 9/11 victims. This is a touchy subject, since 9/11 has loomed in the public imagination so much in the past four years. But it is one that has to be raised now that we have a national tragedy of equal scale.

Four hundred and twenty-five of the of 3226 victims on 9/11 were emergency responders, and countless others--such as the passengers on Flight 93 who overwhelmed the hijackers on their plane--actively rescued others that day. But it is no dishonor to any of the victims to say that most of them were civilians who acted as civilians, and who were killed for no other reason than they were in the wrong place at the wrong time. They died because they simply chose to go to work, or to take an airplane.

That is most likely true of the thousands who died in New Orleans and its environs too. Is the fact that people in New Orleans were warned to leave, and didn't, a difference worth noting? Maybe, but I am not so sure. Many people stayed for a variety of innocent reasons. Some were too poor to leave. Others wanted to stay with people who couldn't leave. And in any case, many who stayed had been led to believe that they would not be abandoned by their country if the levees broke--was it their fault that they believed that their fellow citizens would give a damn about them?

Should Every Natural Disaster and Enemy Attack Give Rise to a Compensation Fund?

Does this mean that I think that, after 9/11, we should treat the innocent victims of every disaster with something like a 9/11 Victims Compensation Fund? No. I think, instead, we should rethink why the 9/11 Fund was created.

It cannot be denied that it suited the national mood in 2001 and 2002 to elevate the victims of terror to a new level of honor and status. Because of the sheer scale and novelty of the terrorists' attack, we didn't think about the men and women who were trapped on that day as unlucky, passive victims; we remade them into heroes, not because of anything they had done, but because of the identity of who had done it to them. Because they were killed by Osama bin Laden, they seemed to be more than victims, and seemed, thus, to deserved to receive more compensation than "mere" victims.

The disaster wrought by Katrina should make us reconsider the wisdom of what we did after 9/11, and of how we made sense of the tragic deaths of thousands on that day. If we treat one group of American victims differently than others for no other than political reasons, can our actions be taken seriously?

Innocent civilian victims come in many shapes and sizes, and out of a diverse range of tragedies. Yet, as far as I can tell, the only reason we have for making distinctions between those (at least, those other than the rescue workers) who died on 9/11, and those who died last week, is political expediency--our government wanted to fight a war on terror then, but does not want to fight a war on poverty now.

It is possible that I will be proven wrong, and our government will be as generous with the victims of Katrina as it was with the victims of 9/11. But I doubt it, since I know that the government cannot afford, over time, to give anything close to full compensation to the victims of negligence, nature's wrath, or human evil.

If the government indeed won't give full compensation to everyone, as I predict it won't, then we should ask hard questions about why it decides to give full compensation to some people and not others. Reasonable citizens cannot expect the government to have limitless generosity--but they can demand that the government use its limited resources fairly and transparently.