Victim Compensation

INSCT’s Victim Compensation project develops a national policy for compensating victims of terrorism through research and dialogue with an interdisciplinary team of practitioners and academics.

Background

Following the Sept. 11, 2001 attacks on the US, the US Congress promptly passed victim compensation legislation to address the social, political, and economic needs of the nation. One consequence of Congress’s expeditious provision of a compensation fund was that important policy decisions regarding victim compensation were made without much public participation or careful debate and in the context of the federal government’s effort to save the airline industry.

The fund that was established to supplant traditional tort actions was administered by a special master who was given wide discretion in determining the administrative procedures and compensation awards. Whatever the success of the 9/11 Fund, few argue that an after-the-fact scheme is the best way to address the important issues related to compensating victims of terrorism.

At the same time, the compensation funding scheme has gained some traction as a policy option for compensating victims of mass torts. Variations on the funding scheme were established after the 2007 I-35T Minnesota bridge collapse, the 2007 Virginia Tech shooting, and the 2010 BP oil spill in the Gulf of Mexico.

This project addresses questions of how and to what extent to provide compensation for victims of terrorism—whether through the generosity of charitable organizations, a publicly-funded compensation scheme, private insurance, tort suits, or some combination. In the case of programmatic funding schemes like the 9/11 Fund, experts are analyzing the best administrative models for allocating and distributing funds.

Victim Compensation Events

Compensating Victims of Terrorism Workshop

On Oct. 15-16, 2010, INSCT convened a workshop with experts to discuss what should be the principal components of future national efforts to compensate the victims of terrorist attacks.

Participants

  • Peter Bell
  • Deborah Greenspan
  • Betsy Grey
  • Stephan Landsman
  • Don Migliori
  • Marshall Shapo
  • Peter Szendro

Key 9/11 Fund Documents

Fall 2010 Workshop Report Workshop Bibliography

9/11 Litigation: Aviation Security and Anti-Terrorism from the Victim’s Perspective

Sept. 29, 2011 | Don Migliori, Motley Rice

Don Migliori is a multifaceted litigator. He represents victims of terrorism, aviation disasters, environmental contamination, defective medical devices and drugs, and occupational diseases in cutting-edge litigation that spans the country. As co-leader of Motley Rice’s aviation team, Don has represented terrorism victims through extensive discovery, mediations and settlements of 9/11 aviation liability and damages by the families of the victims of September 11, 2001. He is also a lead attorney of the 9/11 Families United to Bankrupt Terrorism groundbreaking litigation designed to bankrupt the financiers of al Qaeda.


9/11 from the Inside: Compensating the Victims

Nov. 3, 2008 | Edie Lutnick, Cantor Fitzgerald Relief Fund

On Sept. 11th, 2001, Cantor Fitzgerald lost more employees than any other company. Among them was the brother of CEO Howard Lutnick. Lutnick vowed to take care of the victims’ families and asked his sister, Edie Lutnick, to help. The Cantor Fitzgerald Relief Fund was established on Sept. 14, 2001 to provide financial assistance to the families of the 658 Cantor Fitzgerald employees who died on 9/11.

Since its establishment, Cantor Fitzgerald and the Cantor Fitzgerald Relief Fund have raised approximately $175 million dollars in financial support for the families and loved ones of the 658 victims. The Fund assists more than 800 families and 950 children from 12 companies.

An unpaid executive with the Cantor Fitzgerald Relief Fund, Edie Lutnick is a former labor law attorney whose law firm, Lutnick & Swomley, was also housed at the World Trade Center. A strong advocate for the victims’ families and loved ones, Edie Lutnick also coordinates an annual memorial service.


Pan Am 103: Lessons Since Lockerbie

23 Oct., 2008 | Moderator William C. Banks, INSCT Director

Panelists

  • Jonathan Deinst: “Pan Am 103 Victims’ Families and the Media: A case study in how to use the press as an ally to effect change”
  • James Kreindler: “Private Lawyers Handing what is Ordinarily a Government Function”
  • Bob Monetti: “Organizing and Lobbying for Airline Security”
  • Steve Perles: “Changes in the Legal Framework: FSIA and the Flatow Amendment”
  • Mark Zaid: “Current Trends in the Law: FSIA and ATA Litigation”

The collective efforts of those affected by the bombing of Pan Am 103 drastically changed the way our nation handles victim compensation. It should be well understood that seeking compensation is not about recouping financial loss, but about the larger issues of accountability and how to prevent a tragedy from happening again. This is clearly demonstrated by the passion and commitment of those who worked for change in the aftermath of the tragedy.

Following the instinctive cry after any terrorist attack—‘”Somebody has to do something about this”—the usual somebody and the something changed after the Pan Am 103 attack.

Terrorism would no longer be a matter just between perpetrators and the governments that tracked and prosecuted them. It became a matter between victims’ families and the perpetrators. It became a matter between the victims’ families and the terrorists’ state-sponsors, charting new territory for citizen participation in foreign affairs. At the same time, the families and their advocates re-shaped airline security. The lessons learned in tort litigation, foreign relations, government regulation, and media coverage are all part of the legacy of the Lockerbie Tragedy.

Co-Sponsors

  • Pan Am 103 20th Anniversary Committee
  • The Institute for the Study of the Judiciary, Politics and the Media
  • The Moynihan Institute of Global Affairs
  • The Campbell Public Affairs Institute
  • The Student Association on Terrorism and Security Analysis (SATSA)

Litigation Against Terrorists & their Sponsors

Victims of terrorism often have additional legal remedies in litigation against terrorists and their state and private supporters. A brief overview of this legal landscape and the policy issues that arise is provided below. The bombing of Pan Am Flight 103 in 1988, the attack on the World Trade Center in 1993, and numerous attacks on US citizens abroad convinced Congress that existing civil remedies were inadequate for compensating victims of international terrorism.

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In the 1990s, the US Congress expanded federal jurisdiction by adding new causes of action and new defendants—including state-sponsors of terrorism.  In providing for civil suits against terrorist supporters, Congress incorporated victims into the government’s effort to curtail terrorism by eliminating its funding.

Now these policy changes are ripe for analysis. Victims, defendants, and federal courts continue to struggle with the scope of the expanded jurisdiction and the effects of the lawsuits are triggering other policy concerns regarding First Amendment protections, equitable compensation for victims and charitable giving.

In 1992, Congress passed The Antiterrorism Act (ATA), providing a civil remedy for US nationals who are injured by reason of an act of international terrorism.  The Act provides scant and vague prescriptions and thus interpretation of the Act requires the incorporation of several other antiterrorism provisions and traditional tort principals.  Suits may be brought against a variety of defendants including individuals, foreign non-governmental organizations, and domestic organizations.

The cases litigated under the ATA have ironed out most of basic jurisdictional questions, but considerable uncertainty remains about how to apply tort principles to the numerous and varied actors along the chain of terrorism financing.  The Seventh Circuit decision in Boim v. Quranic Literacy Institute outlines the range of issues involved.

The majority, concurring and dissenting opinions debate the theory of liability as primary or secondary including, whether and to what extent plaintiffs must demonstrate a defendant’s intention, and the standards for proving causation.

  • Did the Seventh Circuit get it right?
  • If not, should Congress amend the ATA to clarify the scope of liability?
  • What is the appropriate scope of liability?

Of course, this determination has serious implications beyond financial compensation for victims.  Many argue that while constitutional, the ATA infringes too heavily on the First Amendment protections of those who donate to charitable organizations and that the threat of liability has decreased global charitable giving to the world’s most needy. Moreover, this expansion of federal jurisdiction is not only new to the US, but to the international community. Some fear reciprocal suits in foreign courts, placing the international business community at risk.

In the Antiterrorism and Effective Death Penalty Act of 1996, Congress opened the federal courts to civil actions against states that sponsored terrorism. With rare exception, these cases end in default judgments and the real battle is collecting these judgments from the limited state assets within the US.

To complicate matters, the executive branch has generally frozen the assets for diplomatic reasons, and Congress has on some occasions found it necessary to pay the judgments from federal funds.

These developments raise important questions about the deterrent effects of such suits and fairness in compensating some victims and not others. Considering the resources invested in litigating these suits, the implications for diplomatic efforts, and the unlikely satisfaction of judgments, are suits against state sponsors appropriate tools for compensating victims or for deterring attacks? Are there better, more cost-effective alternatives?

Lockerbie Air Disaster Archives

The Syracuse University established these special archives in 1990 to bring together in one place materials regarding the Lockerbie Air Disaster, to make these materials available for research, and to provide a place to memorialize SU students whose lives were lost and where families can donate materials by or about them.

Visit the Archives

 

Contact Contact
Keli Perrin
300 Dineen Hall | 950 Irving Avenue
SU College of Law, Syracuse NY 13244
kaperrin@law.syr.edu | 315.443.2284
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