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Two States, No Solution

Ken Feinberg oversaw funds for victims of Sept. 11 and the BP Spill. But he can’t fix the Middle East crisis.

Allison Hoffman
June 12, 2012
Ken Feinberg answers questions during a public meeting about claims related to the BP oil spill on Aug. 18, 2010, in Houma, La.(Win McNamee/Getty Images)
Ken Feinberg answers questions during a public meeting about claims related to the BP oil spill on Aug. 18, 2010, in Houma, La.(Win McNamee/Getty Images)

Ken Feinberg, one of America’s most famous lawyers, has made his career out of being America’s go-to master of disaster. We’re in his Washington office, right around the corner from the White House, and it’s wallpapered with framed mementos of the human suffering he has been called on to redress: Agent Orange, Dalkon Shield, 9/11, Virginia Tech, the BP oil spill. Feinberg’s success at converting raw misery into hard dollars shows in the repeat business. He estimates he’s disbursed more than $20 billion in the course of the past three decades. ”It’s not rocket science,” he told me, then gestured magnanimously at the window. “I think you, or millions of people, could do it.”

But he’s just written a book, titled Who Gets What, arguing that the model he’s developed shouldn’t, or couldn’t, be widely replicated. It’s not because he thinks his talents are unique, though he clearly relishes his reputation as a modern Solomon. (So much so that he keeps a framed letter to the editor of the New York Times anointing him as such positioned on his coffee table so that visitors will notice it.) The issue is that he insists his system only works in very particular circumstances—which is why, when I asked Feinberg whether he’d ever be willing to try his hand at resolving the Israeli-Palestinian conflict, he shook his head no.

“You can only mediate and resolve disputes when, one, both parties want a mediated solution, and two, both parties at the mediation table have the authority to resolve the dispute,” Feinberg told me. “I think George Mitchell”—President Obama’s former special peace envoy—“found, as I would have found, as anybody would have found, either the parties aren’t interested in really talking because they have other agendas and at least on the Arab side, it’s very unclear whether even if they reached a mediated resolution it would stick with the people you purport to represent.” Make that on the Jewish side, too: As we spoke, the Israeli government was deliberating how to move settlers from an illegal outpost known as Ulpana with a minimum of outrage and, clearly, without provoking retributive violence in the form of so-called “price tag”attacks, or worse.

Not that he hasn’t tried. In 2005, more than a year after wrapping up the September 11th Victim Compensation Fund—under which more than $7 billion was paid out to survivors and to families of the dead—he went to Israel to consult with Ariel Sharon’s government on the impending pullout from Gaza. (Feinberg’s wife, Dede, is a board member of the Jewish Agency for Israel.) At the time, it seemed to many involved that the 9/11 model could be replicated and applied to the more than 8,000 settlers about to be displaced to entice them to leave quietly. “I do not think that the settlers’ emotion or frustration is any more than what I encountered among bereaved family members and victims in America following the terror attacks of 9/11,” Feinberg told the Jerusalem Post in February 2005, six months before the withdrawal. The key, Feinberg told the paper, was for Israeli officials to adopt his practice of meeting with each family, one by one, to sell them on the terms of the relocation benefits program. It’s a grueling process, but one that he thought would defuse the opposition from supporters of the settlements, some of whom were at the time sending death threats to the head of the Disengagement Authority, Yonatan Bassey. According to a State Department cable included in last year’s WikiLeaks dump, Bassey told American diplomats after meeting with Feinberg that he agreed. “In the end,” the cable said, “they ‘got their checks and went home,’ and Bassey predicted this would be the case with disengagement in Israel.”

That was in large part true: All the settlers did eventually leave Gaza, and most wound up taking government cash. (On average, each family received more than $1 million in compensation and assistance.) But to Feinberg’s mind, the program wasn’t a success. “There was not a consensus in Israel about paying people to be compelled to leave Gaza,” Feinberg told me. “That was, to some people, too generous—they shouldn’t have been there in the first place—or they felt that money wasn’t the answer.”

The experience doesn’t augur well, Feinberg argued, for trying something similar in the West Bank, where hundreds of thousands of people, both Jews and Arabs, might need to be moved under a final peace deal. The zealots among them, Feinberg believes, could be dealt with—“I think you can isolate those people,” he told me—but in order to get a meaningful number of people to voluntarily accept cash payments in exchange for relocation, he said, the government would have to rally the general population, on both sides, to the cause.

“In 9/11, in BP, there was a general view, nationally, in this country that a generous compensation program was a good idea,” Feinberg said. “I’m not sure it would be a good idea in the minds of the body politic in Israel.” Feinberg’s eyebrows went up behind his rimless glasses as he channeled an imaginary Greek chorus of complaint: “I’d like to relocate! I don’t like my apartment! You’re paying them? Why aren’t you paying me?”

Feinberg settled back into his tan-leather armchair. “You’ve got to have the political will,” he repeated. Feinberg, who is 66, started his Washington career in the 1970s as chief of staff to Sen. Edward M. Kennedy and grew up in working-class Brockton, Mass., where his father owned a tire store and his mother kept the books for the local Jewish Federation. He still seems to operate according to a political code that might be described as “What Would Ted Do?” “You’ve got to buy people into the communitarian ethic,” he told me—the idea that individuals should trade away their particular rights to pursue their own personal justice in the interest of the greater social good.

But, he added, that responsibility lies with the politicians and the diplomats. “What I’m doing is a rather ministerial, objective function,” he said. And Feinberg isn’t interested in risking failure. “I’m only as in demand as my last success,” Feinberg told me. “Once I fail, I’m out to pasture. They’ll find someone else to do these things, and I know that.”


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Allison Hoffman is a senior editor at Tablet Magazine. Her Twitter feed is @allisont_dc.

Allison Hoffman is the executive editor of CNN Politics.

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