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June 18, 2004
By CLYDE HABERMAN
New York Times

It's shop-closing time at the federal agency that was cobbled together to funnel taxpayer money to relatives of the dead and the wounded of Sept. 11. Checks have been cut, or will be soon enough. People who ran the agency, called the Sept. 11 Victim Compensation Fund, are about to pick up life where they left off nearly three years ago. They have won applause for a tough job well done.

But questions linger, none graced with easy answers. One would seem to head the list: what do we do after the next terrorist attack, and the one after that, and then the one after that?

Is the genie out of the bottle, requiring us to compensate the unfortunate each time the monsters strike? Or may we pick and choose among victims? We have already done that, loosening federal purse strings for some (as with 9/11) but not for others (as with Oklahoma City, the 1993 World Trade Center bombing, the destroyer Cole, the embassies in Kenya and Tanzania).

Inevitably, another question follows: whatever Congress's intention, whether to be generous to grieving families or to spare the airlines potentially ruinous lawsuits, was its hasty creation of the compensation fund a mistake?

Daniel Kramer believes so. He worked without a fee on more compensation cases than any other lawyer - roughly two dozen from start to finish. There were too many levels of unfairness, he said, not the least of them being the way some lives, measured in dollars, were deemed worth more than others.

"I thought government should not be in the business of giving checks to the families of people who died in terrorist attacks," Mr. Kramer said. "If you start compensating people for this attack, where does it stop? Why this one? Why not the others? I think the precedent was horrible."

But some experts say the 9/11 fund does not necessarily foreshadow the future. They include its special master, Kenneth R. Feinberg.

"If a car bomb goes off next week, I'm not sure the country will respond the same way," Mr. Feinberg said. "Some say you do this once, and equality requires that it be done again. We'll see. I'm dubious."

Connie Blaser Rubin, a lawyer who recruited people like Mr. Kramer for a pro bono group called Trial Lawyers Care, said, "You talk about precedents, but what happens the next time will be driven not only by precedents but by the realities that exist."

Some possible realities are easy to imagine, all terrible.

What if "only" 40 Americans die in a new Qaeda attack? Is it reasonable to expect the nation to react as it did in 2001 after nearly 3,000 perished?

Or to be coldly budget-minded, what if the death toll is not 3,000 but 30,000, a figure that did not seem outlandish in the first hours of Sept. 11? Mr. Feinberg's fund is costing taxpayers nearly $7 billion. Would they be so generous if the bill came to $70 billion?

Had it been up to Kenneth S. Abraham, who teaches tort law at the University of Virginia law school, the fund would not have been created. But then, he acknowledged, he has the benefit of hindsight.

In September 2001, "we did feel like these were people who, in a certain sense, had made a sacrifice for the country," Professor Abraham said. "I think the next time it happens, we may realize that sometimes you're just unlucky and that being unlucky is not making a sacrifice."

SO, on balance, is Mr. Kramer right about the fund having been a bad idea? Mr. Feinberg thought not.

"I think it was a fabulous idea, but it can only be understood from the perspective of the nation, not the victims," he said. "The country didn't view those other terrorist attacks in quite the same way that they viewed 9/11. This was at the pinnacle of national tragedy, and we decided that we, as a nation, wanted to do something."

To Paul C. Light, a professor of public service at New York University, the question of what happens after the fire next time should be dealt with now, by "preparing for it with an integrated relief effort of some kind, a network of charitable organizations and government agencies."

"Human nature being what it is," he said, we seem destined to wait until disaster comes calling.

If nothing else, the 9/11 fund has entered the annals of tort law. The issues that it raises are already being debated, said John Witt, a law professor at Columbia University - vital questions "should, God forbid, we have to do this in the future."

Two of those words, at least, had no one disagreeing: God forbid.