August 25, 2005 | New York Post

Paying for 9/11: Book Review of Kenneth R. Feinberg’s, What Is Life Worth?

Kenneth R. Feinberg is, by his own telling, America's top “guru” of mediation. The skill has made him a hot property at a time when relativism, mass media, pathos and litigation-frenzy create a perfect storm of moral vacuousness.

With victimhood running amok, endless news cycles incessantly beaming powerful images of human suffering into our living rooms and trial lawyers ever hovering, the question is no longer, “why?” It is, instead, “how much?” Thus the pre-eminence of the mediator, whose presence at center stage says justice is often about extortionate compromise rather than the knotty business assessing actual fault.

“What Is Life Worth?” is Feinberg's absorbing (and at times distractingly self-absorbed) account of what may be the worst excess of this trend, the government's transparently political determination to compensate victims of the 9/11 attacks.

The brutal murder of nearly 3,000 innocents coupled with other incalculable casualties and financial loss is often understandably described as a “tragedy.” But while they had tragic consequences for those directly affected, just as all evil acts do, the suicide hijackings were not a tragedy but a war crime.

American taxpayers were not at fault. Nor were the airlines, the architects of the World Trade Center and the Pentagon or the government itself. The fault lay squarely on the shoulders of Islamic militants. Was it “compassionate,” as Feinberg maintains, to pretend otherwise? On a gut level, who can say no?

But this is a matter for the brain, not the gut. The government does not compensate the victims of other heinous crimes. For restitution, victims must look to their (frequently judgment-proof) predators. Neither has there been an exception for the victims of terrorism. No public funds were created for those ravaged by, say, the 1993 WTC bombing or the 1995 Oklahoma City bombing. Profound suffering is tragic precisely because no penalty to the villain or dollar amount to the victim can cure the pain.

Nonetheless, we've long been breeding a sense that it is proper for tort lawyers to concoct extravagant theories targeting blameless deep pockets. And mediators like Feinberg contribute to this situation. Indeed, the author brags about settlements struck by warning institutional defendants facing dubious claims of the dangers of runaway juries and the ready availability of insurance to pass exorbitant costs along to other faultless parties.

This perilous trend met its promiscuous match in 9/11, as elected officials desperately tapped into the swell of rage and sympathy. Government was gripped by anxiety over the airline industry's potential collapse, but feared more the potential political fallout of saving it without exhibiting equal concern about the victims of terrorism.

Feinberg sees this as an understandable dilemma rather than an occasion for arguing that the air industry is not merely a bunch of rich capitalists for whom government protection after a ruinous attack was cold political calculation, but a public good without which the economy would tank.

Contrary to Feinberg's intimation, there was nothing heroic about Congress' politically calculated compassion, which loudly trumpeted a victim fund while quietly tweaking it to discourage bank-breaking claims.

In the wake of 9/11, real heroism would have been to stand up and say, “The fault here lies with al Qaeda alone.” Real heroism would have foreclosed lawsuits pitting Americans against Americans during a time of war.

Congress would have resisted the creation of unjust inequities, which compensate the victims of one barbarity but not others, while forcing innocent American taxpayers and businesses to ante up — while the very same government, on international-relations grounds, makes foreign governments immune for their atrocities.

It is a terrible precedent.

Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies and a National Review Online contributor.