Flight Watch Volume 114, October 2001

THE SEPTEMBER 11 VICTIM COMPENSATION FUND OF 2001

As part of an airline bailout package signed by President Bush on September 22, 2001, the September 11 Victim Compensation Fund of 2001 (the "Fund") has been established. This Fund creates a two-track system of claims on behalf of the dead or injured. Victims and/or their families can choose to have their claims heard by a special master (a lawyer) appointed by Attorney General John Ashcroft. On the other hand, the victims or their families can sue in the United States District Court for the Southern District of New York which is headquartered only a few blocks from the ruins of the World Trade Center.

For those who elect the option of the special master process, they are not required to prove that either American Airlines or United Airlines was negligent. The claimants only have to prove their damages which may include future lost income, medical bills, funeral expenses, and pain and suffering. The Federal Government will pay the claims approved by the special master. It is anticipated that a major benefit of the special master process is that financially-strapped families can look forward to getting an award less than five months after filing their claims. On the other hand, persons electing to go to court may have to wait years to collect compensation.

For those who elect the special master (administrative) process, punitive (exemplary) damages are not allowed, and there are no appeals. The award of the special master is final. Also, the awards of the special master will be reduced by any amount of insurance, worker's compensation benefits, or death benefits.

The Fund has the support of the Association of Trial Lawyers of America (ATLA) which has called for a moratorium on filing suits. Also, at ATLA has offered lawyers to work on a pro bono basis for claimants who elect to employ the administrative process.

For those families or victims who elect to go to court, it appears that there are limitations on their ability to recover damages which relate to the limits of liability insurance carried by American or United, this reportedly being about $6 billion. The feeling is that the passengers and crew of the hijacked airplanes have the strongest claims against the airlines. Also, once a person elects a procedure, pursuit of the other procedure is barred. There is no turning back once the election is made to proceed either administratively or in court.

There are many unknowns about the Fund, and many lawyers are waiting to see how this process works before recommending a course of action to their clients.


TERRORISTS COULD BE TRIED AS WAR CRIMINALS

In the wake of the bombings of September 11, the President has said we are at war. The Secretary of Defense has authorized the award of the Purple Heart to those who died or were injured in the line of combat duty. If the terrorists who have acted on our shores and abroad are war criminals, they can be tried before administrative tribunals.

In June of 1942, a German submarine landed eight Nazi saboteurs on our shores, four men each landing on the beaches in Long Island, New York and in Florida. Although dressed in German Marine Infantry uniforms, they quickly buried those uniforms along with their explosives and infiltrated New York, Jacksonville, Washington and Chicago in civilian clothing. One of the saboteurs turned himself into the F.B.I., and President Roosevelt directed that a military commission composed entirely of military officers try the men. One of the saboteurs was an American citizen who had returned to Germany before the outbreak of hostilities. The Germans attempted to avoid a military tribunal, turning to the Federal Court for protection. In Ex Parte Quirin (1942), the Supreme Court of the United States quickly determined that the President had the authority as Commander in Chief to order “unlawful belligerents” tried before a military commission for violation of laws of war. The German saboteurs had no right to a trial in the American courts or to a trial by jury. It made no difference that the men were arrested in the United States.

The Geneva Convention does not protect belligerents who conceal themselves and who act in a military capacity while not in uniform. The Geneva Convention only protects combatants if they are properly identified with "a fixed sign recognizable at a distance" and if they carry their weapons "openly."

The terrorist who attacked America on September 11 were arguable military combatants acting in violation of the Geneva Convention. The terrorist and any one who added or assisted them may be tried under Articles 104 and 106 of the Uniform Code of Military Justice.

What about Osama bin Laden and his confederates? The law is well settled that a military tribunal may try a military commander who is not on American shores but who commits military atrocities. In Re: Yamashita (1946) involved a Japanese general who was held personally accountable for violations of the laws of war committed by his subordinates. Under the doctrine of "command responsibility," General Yamashita was held accountable for outrages committed by his troops. General Yamashita was tried before an American military tribunal and sentenced to death.

If America is at war with terrorists, both in America and abroad, the law is clear that the President may direct that these combatants be tried by military tribunals, since they are not entitled to receive "due process" in an American court system.

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©2001, Alan Armstrong. All rights reserved