[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Pages 12118-12119]
[From the U.S. Government Publishing Office, www.gpo.gov]




                FAMILIES OF SEPTEMBER 11'S FINAL REPORT

  Mr. LEAHY. Mr. President, less than 2 weeks after the horrific events 
of September 11, Congress passed a law to establish the September 11 
Victim Compensation Fund, providing assistance to victims and their 
families during an unimaginably difficult time. I was pleased to work 
with my colleagues to create this needed resource for the families of 
this national tragedy. The families of victims that died in the 
September 11 attacks also came together and created their own nonprofit 
organization, Families of September 11.
  Although no amount of compensation can replace a lost loved one, 
Families of September 11 and Ken Feinberg, the Special Master in charge 
of overseeing the Fund, worked diligently to improve the rules 
governing the September 11 Victim Compensation Fund, to give the 
victims and their families more flexibility and to provide information 
to victims and their families about how and where they could find 
support. Working together, Mr. Feinberg and Families of September 11 
reached out to the victims and their families to make sure they 
understood their rights and to assist them in filing their claims. This 
task was made all the more difficult because many victims and survivors 
of those terrorist attacks had to confront the logistical burden and 
emotional pain of filing a death or injury claim.
  Last October, Mr. Feinberg submitted to the Department of Justice a 
final report summarizing the accomplishments and work of the September 
11 Victim Compensation Fund. While the September 11 Victim Compensation 
Fund has reached its final deadline, Families of September 11 continues 
its mission, including supporting legislation on security and 
intelligence reform. This week, Families of September 11 also submitted 
a final report to the Department of Justice, sharing the experiences of 
the victims and their families, including those who chose not to 
participate in the September 11 Victim Compensation Fund. The report in 
its entirety may be read at http://www.familiesofseptember11.org.
  Mr. President, I ask that a copy of the Executive Summary of this 
report be in the Record for lawmakers and the public to review.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Executive Summary: Final Report of Families of September 11 on the 
            September 11th Victim Compensation Fund of 2001

       Families of September 11 is a nonprofit organization 
     founded in October 2001 by families of those who died in the 
     September 11 terrorist attacks. We gather and disseminate 
     helpful information, refer victims' families, survivors, and 
     others affected by the events of 9/11 to assistance 
     providers, offer online chat sessions, and address such 
     issues as victims' assistance, methods of response to trauma 
     from terrorist attacks, and the effects of terrorism on 
     children. We support public policies that effectively respond 
     to the threat of terrorism, including support for the 9/11 
     Commission Recommendations, development of appropriate agency 
     procedures, legislation related to aviation, border, port and 
     transportation security, and intelligence reform.
       Our Final Report on the September 11th Victim Compensation 
     Fund follows the format of ``Final Report of the Special 
     Master for the September 11th Victim Compensation Fund of 
     2001.'' Just as the Special Master's Final Report provides 
     the perspective of the administrator of the Fund, our Report 
     gives voice to those victims and family members who 
     participated in the Fund as well as those who elected not to. 
     Although much of our report serves as counterpoint to the 
     Special Master's observations and conclusions, we agree with 
     much of what is said in his report and our Report should be 
     read with an acknowledgement that the Special Master was 
     asked to and did construct a program in extremely difficult 
     circumstances. The enabling legislation that created the Fund 
     was hastily crafted, imprecise in significant ways, and 
     sometimes internally inconsistent. The Special Master was 
     faced not only with the uncertain nature of the legislation, 
     but with a host of other competing influences: e.g., the 
     enormity of the losses, emotionally overwhelmed victims and 
     families, a stunned public, and conflicting compensation 
     policy ideologies. The Special Master and those who worked 
     with him deserve great credit for their tireless and devoted 
     work under these daunting circumstances, particularly in the 
     administration of the Fund after promulgation by the 
     Department of Justice of the Final Rules.
       In many respects, the Fund was a success. Much of this 
     success was due to the efforts of the Special Master and his 
     staff in meeting with individual family members, 
     demonstrating flexibility where possible in making 
     determinations of awards, and expressing compassion for 
     family members in the process. But, the Special Master's 
     view, expressed in the introduction to his Final Report, that 
     ``the Fund was an unqualified success'' is not shared by many 
     who participated in the Fund and most of those who did not. 
     The options available to the victims and families of 
     September 11 were substantially impaired by the Victim 
     Compensation Act and subsequent legislation. Lawsuits were 
     confined to a narrow population of potentially responsible 
     parties whose liability exposure was limited to available and 
     inadequate insurance (e.g., the airlines). Evidence for use 
     in litigation was sure to be (has been) compromised by 
     government intervention (e.g., assertions of national 
     security and criminal prosecution grounds for non-
     disclosure). Families were, thus, faced with a Hobson's 
     choice and for most the Fund was the better one.
       In December 2004, Families of September 11 conducted a Web-
     based survey of its members consisting of fourteen questions 
     and an opportunity to make narrative comments designed to 
     elicit information that might be helpful in assessing whether 
     there should be a compensation mechanism in place before 
     another terrorist attack occurs. One hundred forty-four (144) 
     members responded. Though not designed to conform with 
     scientifically reliable protocols, the results are of 
     interest and are included in our Report.
       Much of the Special Master's report is devoted to efforts 
     made by him and his staff to assure that families could 
     obtain detailed information about their likely recovery from 
     the Fund and assist families in the process. Although our 
     Report applauds him for these efforts, it points out that had 
     there been pre-existing comprehensive legislation in place, 
     the Special Master's extraordinary efforts to

[[Page 12119]]

     educate potential participants about and assist them with the 
     Fund would not have been necessary and the enormous anxiety 
     created by the uncertainties surrounding the Fund would have 
     been avoided.
       The regulations promulgated by the Department of Justice 
     established ``grid'' awards with ``extraordinary 
     circumstances'' thresholds of proof to overcome them and no 
     review process. Claimants were accustomed to the very 
     different and more substantial notions of ``hearings'' and 
     ``due process'' embedded in our legal culture and were left 
     disappointed and uncomfortable by the Fund design. Mr. 
     Feinberg and his staff should, however, receive high marks 
     for the way they played the cards dealt them.
       The victims and their families were faced with enormous 
     uncertainty in the weeks and months following September 11, 
     2001, during which the Department of Justice promulgated 
     regulations and the Special Master developed claims handling 
     procedures. It is this uncertainty that Families of September 
     11 believes must be eliminated by enactment of forward-
     looking legislation. The victims of future terrorist attacks 
     will need to go on living, as have the victims of the 
     September 11 attacks and should have the comfort of knowing 
     immediately after a terrorist event occurs that they have 
     rights to compensation sufficient to allow them to do so and 
     a clear and certain path to obtaining those rights.
       Issues of accountability and responsibility by those in the 
     chain of causation linked to the injuries and deaths on 
     September 11, 2001, and the suffering that followed are of 
     great importance to the survivors of the attacks. The Fund, 
     its enabling legislation, and related congressional and 
     administrative actions had the effect of limiting that 
     accountability and responsibility. Our Report expresses 
     concern that this model tends to increase the risk of future 
     terrorist attacks and needs to be reassessed and remedied.
       The Special Master made determinations on 7,403 claims 
     completing its work by the statutory deadline in June 2004. 
     Congress now has the benefit of more than 11,000 comments 
     made to the Justice Department during the rule-making 
     process; the comments of the Special Master; the opinions of 
     lawyers, economists, academics, mental heath professionals, 
     victims and survivors of the attacks; and the developing 
     history of terrorism and its effects on our society. In its 
     report, Families of September 11 encourages Congress and the 
     Administration to:
       a. Use the perspectives of time and experience in 
     implementation of the Victim Compensation Fund to consider 
     carefully issues it was forced to address hastily in the 
     immediate aftermath of the terrorist attacks of September 11, 
     2001;
       b. assess how well the rules adopted in 2002 to implement 
     the legislation met Congressional intent;
       c. consider the incentives and disincentives to reducing 
     the risks of terrorist attacks implicit in the legislation; 
     and
       d. fashion legislation that will reduce those risks and 
     ensure that victims of future terrorist attacks and their 
     families are made whole.
       Copies of the ``Final Report of Families of September 11 on 
     the September 11th Victim Compensation Fund of 2001'' may be 
     obtained by contacting Families of September 11 at the 
     address below or by going to its website at 
     www.familiesofseptember11.org.

         Families of September 11, Inc., 1560 Broadway, Suite 305, 
           New York, NY 10036, 212-575-1878.

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