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The Angel in Ashcroft

by debra brown steinberg '79

Ashcroft illustration

(Illustration by Marcia Klioze Hughes)

A lawyer’s decision to look beyond “conservative” and “liberal” stereotypes in seeking help for 9/11 victims reveals a surprising ally.

From the start, the human rights symposium convened by Boston College Law School last March had all the makings of a serious discussion on the balance between individual rights and homeland security in the post-9/11 era. The conference papers grappled with this thorny issue from the particular perspectives of their authors. However, as each speaker’s thesis unfolded, I was struck by the rote derision heaped upon the Bush Administration, and especially upon Attorney General John Ashcroft, that was larded into the presentations. The presenters and their audience seemed perfectly willing to accept as universal truth that a “conservative” Republican administration could never understand, much less respect, their “liberal” perspective.

From my experience, the speakers got it wrong. This somewhat controversial viewpoint informed my own remarks at the conference.
I was invited to address the symposium in recognition of my work representing, pro bono, families of undocumented immigrants and foreign nationals killed in the World Trade Center terrorist attacks. In the course of these representations, I have advocated against the disparate treatment of victims and their families based upon their place of birth, immigration status, race, or ethnicity. These efforts have brought me into contact with decision-makers labeled as “conservatives” and with those who sport “liberal” credentials. My experience has taught me the importance of looking beyond such two-dimensional stereotypes, which can blind us to potential allies as often as they conceal resilient adversaries.

A case in point is the September 11th Victim Compensation Fund of 2001, which offers federal financial assistance to surviving terrorist attack victims and to the families of deceased victims. At the outset of this program, it was by no means a foregone conclusion that undocumented immigrant victims would be eligible. The Department of Justice received strongly worded comment letters opposing compensation for the “illegal alien” victims’ families. Sensationalized media stories fueled the opposition. Despite this charged environment, the Bush administration honored the memory of all September 11 victims by opening the program to everyone who suffered compensable loss, regardless of their citizenship, place of birth, or immigration status. The regulations implementing the fund “heeded the instruction of the attorney general to help the neediest of victims as quickly as possible,” according to a statement by the special master.

On May 21, 2002, the Department of Justice, Immigration, and Naturalization Service, issued a written statement “assur[ing] potential claimants that their eligibility to recover under the fund will not be affected by their nationality or immigration status.” The department pledged that the “victims and family members who entered the US illegally, failed to maintain their status, or overstayed their admission, can come forward without fear that the information they provide to the department or to the special master’s office will be used to initiate removal proceedings….” This policy, issued under the auspices of Attorney General Ashcroft, enabled undocumented victims and their families to participate in the Victim Compensation Fund without compromising their dream of remaining in America.

Special Master Kenneth Feinberg, who the attorney general appointed to administer the Victim Compensation Fund, has used every means at his disposal to bring the immigrant and foreign national victims’ families into the fund. In April 2003, Feinberg presided over six test cases involving the Windows on the World victims. I presented four of those cases. As each family spoke, Feinberg reached out and gently touched the hand of the bereaved mother, the widow, or the child testifying before him. This simple gesture powerfully communicated to these families that America has honored their sacrifice.

Several weeks after attending the BC Law conference, I was reminded of my speech and its message: The real adversary is not always the obvious one. I was asked by the office of a “liberal” congressman whether the families of the World Trade Center restaurant workers needed any assistance. I responded that these and other victims’ families living outside the United States routinely encounter lengthy delays and bureaucratic roadblocks in applying for US tourist visas to attend memorial services, visit family, or manage their affairs in connection with the Victim Compensation Fund. I suggested that the congressman might investigate ways in which the visa process could be expedited or streamlined for these applicants. The initial reaction from the congressman’s office was overwhelmingly positive. But, that changed a couple of days later, when I received a telephone call from a member of his staff informing me that the congressman would not assist the family members of any undocumented victims.

Who would have thought that a congressman with impeccable “liberal” credentials would fall so far short of the standard that John Ashcroft set in administering the inclusive, non-discriminatory federal recovery program?

Debra Brown Steinberg is a securities litigator and partner at Cadwalader, Wickersham & Taft in New York. She is head of her firm’s pro bono efforts on behalf of 9/11 victims.