 for coming out today. In the rain, as Liz said, it's especially an honor to be the inaugural speaker for this event. I'm really quite excited about it. And also a tremendous thanks to Liz and to Rob for inviting me here to speak to you today, especially in such auspicious surroundings. This, I think, is the nicest room I've ever lectured in. I want to introduce you to an idea that I've been working on now for over a decade. And it sounds simple. In some ways, it is very simple. But once you start to dig into it, it becomes much more layered and complex. And this is the idea of providing a definition to the crime of organized terrorism. And usually, when I get to talk like this, there's credulity in the room, because people assume that there must be, by now, a definition for belonging to an organized terrorist organization that has to be a crime. At least in the United States, the answer is no. You can be guilty of terrorist acts, but belonging to the organization itself has no legal precedent. And I'll get into the reasons for this in a little bit. But the legal hurdles that we face now in 2016 are, if anything, even more daunting than they were in the immediate aftermath of 9-11. We have been engaged in a state versus non-state war for well over a decade now. So as our military capabilities have advanced, and some would say advanced lightning speed in this previous 15-odd years, our legal response has lagged behind to a really quite shocking degree. So I think in order to get into this idea, I have to bring you back to where I was at the time of September 11, 2001. I was a law student, as Liz was saying, at Cornell University. And it was especially poignant to be there at that time, because a number of my colleagues were working at Cantor Fitzgerald in the tower when it was destroyed. So in the immediate aftermath of 9-11, all of us in the law school class experienced sorrow, of course, rage, certainly, but also this tremendous sense that we wanted to do something. And none of us really knew what that something was. And it was only a couple of months later that I was sitting in my first international law class. And the professor said that the first international crime ever in use gentium, which is the law of nations, is the crime of piracy. And he introduced this idea of pirates as hostess of human eugenery, enemies of the human race, not of one state, but all states, every single person on earth. And the corollary to that, he said, is that as enemies of the human race, there's something called universal jurisdiction extended against them, which means that you don't have to have an extradition treaty with a nation to capture a pirate. They can be captured wherever they are by anyone that finds them. So I came up to him after the class and I said, you know, they're extraterritorial bands. You know, they're outside of the jurisdiction of any one state. They form this kind of cellular structure. They present themselves as at war against the world entire in some fashion. Can you say that the terrorist organizations, like Al-Qaeda, are legally analogous to pirate bands? And he said, Mr. Burgess, that's completely ridiculous. And being in my early 20s, I took him at his word. What happened after that, which changed my mind, and as a matter of fact, changed the entire trajectory of my career, was my best friend went to Jerusalem in the summer of 2002. So very shortly after the events of line 11, to take up a post there as a postdoctoral student. And he was in the cafeteria, the Frank Sinatra cafeteria on July 31st, 2002, when Hamas detonated a bomb, which killed him and about 30 other people. And the shock of that coming so soon after September 11th really jolted me out of practically all the plans that I had made at that time. I had just graduated from Cornell. I was sort of on track to becoming, of all things, if you could believe it, an admiralty lawyer. And I kept coming back to this idea. I wanted to do something. I was absolutely committed to doing something. And this was all I really had, was this crazy idea that the only person I had ever mentioned it to, aside from my father, who was a believer from the very first day, they were dismissive of it. So I flew to Vancouver, British Columbia and I met with a man by the name of Peter Burns. And he was, he had just finished a tenure there as the chair of the legal history department at UBC, at the law school. And he was, just so you get a sense of this moment, he was about six foot four, 300 odd pounds, had silver hair and this perfect Oxford accent. And he was the most terrifying man I've ever met in my entire life. And I presented this idea to him and he sat in his chair in this vast office for about 30 seconds, dead silence. And he said, well, Mr. Burgess, I don't know if you're right, but I can't conclusively prove that you're wrong. And that was good enough for me. So since that time, I have been developing this idea. And I've been developing it in tandem with what's been going on in the United States and abroad, which are other attempts to define international organized terrorism. The earliest of which, and a very significant one, the Bush administration in the early 2000s came up with this idea of, as they call it, unlawful enemy combat. Because the problem that they were dealing with, as many of you may know, is that the terrorist, especially someone belonging to an organization like Al Qaeda, has a hybrid legal status. We clearly don't want to say that a member of Al Qaeda or a planner or architect in 9-11 is on the same legal par with an ordinary fellow. There's clearly something distinct about this crime. On the other hand, if we move them over into military jurisdiction, we effectively declare that this person is a legitimate combat, a soldier. And for very obvious reasons, we don't want to do that either. So some poor, I could just imagine, some poor intern in the Bush administration digging through all the old cases. And he dug up something called ex parte querin, which was decided by the Supreme Court in 1941, where they introduced this idea of unlawful enemy combat for precisely the purpose of getting around this sila and corruptus of ordinary felon on the one hand and soldier on the other. And that was what the Bush administration defined every member of Al Qaeda. And they did this to sort of give them blanket protection for acts of rendition, even acts of capture and killing on the field of battle. It came before the Supreme Court and it was struck down, a case called Hamden versus Rumsfield, where the court said you can't deny a suspect or a defendant due process by doing an end run around the law. They have to be one or the other. They have to be either enemy combatants or ordinary felons. And amazingly enough, that case was decided, I think, in 2003 or 2004. And that's the last word that we have. So over a decade ago, that's the last word on the law. That's where things stand to this day. As a matter of fact, the Obama administration has taken the somewhat extraordinary step of no longer calling it a war on terror because that word war implies that this is some kind of state versus state conflict which would come under the laws of war, to give a conventional assumption. So what we've done, instead of grappling with the legal problem, is try and pretend if not there. And I would be the last person to say that it was in any way morally, ethically, or politically, or legally, or anything wrong to kill Osama bin Laden. As many of you were, as all of us were, I was delighted when I heard that he was gone. But there is that nagging part of me that wishes that he had been put on trial for the simple purpose of having that historical legal record, which at this point we don't have. And this was the problem, is how do you define the crime of organized terrorists? And it really came down to this idea of state versus non-state warfare. There are very few examples of this in world history. Even the United Nations, when it defines war, presumes that it's either between states or within a state, as in civil war and insurgency. But here's where the piracy idea has some validity because there is an example, there is a precedent of state versus non-state warfare and this is the war against the pirates, which has been going on almost uninterrupted since the time of the Roman Empire. If any of you have heard of Pompey the Great, Pompeus Magnus, he earned his spurs, so to speak, as a pirate hunter. And he was one of the first to define this idea of pirates as enemies of not only one individual or the wrong ship's captain, but of the whole Roman Republic. And Marcus Tullius Cicero takes that idea even further and says they're hostess human againer, enemies of the human race. If I can bore you with 10 more seconds of legal history, Edward Cook in the 17th century, an English jurist, takes Marcus Tullius Cicero's idea and codifies it in English law. And what does this war against the pirates mean? Well, fortunately, we have lots of language on that. My favorite comes from an Italian jurist writing in the 1570s, this is Alberto Belli. And this is a direct quote. He says, pirates are common enemies and they are attacked with impunity by all because they are without the pale of the law. They are scorners of the law nations, hence they can find no protection in that law. They ought to be crushed by us and by all men. This is warfare shared by all nations. And that's a critical idea as well. When we're talking about a war against the world entire, that means that when the world responds, it's not the responsibility, the obligation of one state or a group of states. Every single nation has an equal responsibility here. And I can tell you, when I found language like this, I was captivated because I thought, how different it would be if that was the global understanding of the war on territory. If we had that kind of global cooperation, what was standing in the way of reaching that admittedly utopian end? Well, there are many things standing in the way, but one of the issues and one of the critical issues was that we hadn't defined our terms ourselves. So it was very difficult for the United States to gain any kind of legitimacy on the world stage when we were not willing to act under the strictures of the law. And this has been the subject of countless articles, books, the legality of rendition, where you enter a sovereign state and you remove someone without that state's consent. This is a tremendous issue and remains so to this day. Again, the Obama administration's solution, if you can call it that, is to decline the number of renditions and raise the number of drunk strikes. So kill them all ground and then you're faced with the less messy problem of the body as opposed to a captured live individual. The more I got into this, the more it seemed like the parallels were right there in front of me. Daniel Defoe, who wrote The Defend the History of the Pirates in the early 18th century, talked about pirates engaging against the world entirely. This is in the 18th century and I thought that seems very similar to the kind of conceptual understanding of what a terrorist organization is. It's sort of virus, this anti-state. I really wanted to get to this idea of universal jurisdiction. So I started to put this idea out there. First as a graduate student and then eventually I wrote an article for a magazine that no longer exists, Legal Affairs, that led to an article in the New York Times and it was gaining a little bit of traction. But even as that was happening, I noticed a kind of reverse phenomenon, a blowback, if you will. The most passionate adherence to this idea that I was presenting were actually not interested in the idea at all. I should have been warned by this because you don't have a lot of editorial control over the articles that you write, the titles that are given. So the very first article that I published came out with the title Archaida. And I thought this could be a problem. And it was. The people that were the most enthusiastic about this idea were not interested in putting pirates on trial. They were only interested in giving the United States and other nations a kind of blanket legitimacy, sort of a blank check, if you will, to hunt terrorists around the world. And that was certainly one of my intentions but not the blank check. It was very important to me that they be subjected to due process of law because that, after all, is what this nation is founded on. That's what all civilized nations are founded on is due process of law. And then at the other end of the spectrum, there were many people that wouldn't even listen to the idea because they assumed wrongly that I was simply trying to give some kind of fig leaf, some kind of legal cover to what the United States was already doing in terms of rendition and the rest. So when I presented this case, as I am doing with you now, I had to make it clear that the only way it's going to work is if piracy and international organized terrorism are legally analogous. In order for a precedent to be viable, it has to actually share the same components. If there's any lawyers in the room, the same actus reis and mens rea, the actions and the mental state of these two crimes have to be comparable for them to be defined under the same law. And there are some issues with that and I'll raise them with you now and I may get a chance to answer some questions to deal with it even further. Terrorism, as we understand it today, involves acts of homicide, destruction of property, taking of property and taking of hostages and sundering other crimes related to those ends. And is defined as an act of violence to gain notice to a political cause. So the actions, the actus reis could be problematic when we apply it with piracy and the mental state, the mens rea, it could be problematic as well because do pirates act with a political motive? So let's deal with the first. And this is what I would hear most often. Piracy is just theft. Now, I can tell you as the historian of piracy, I know exactly where that idea comes from. It comes from a case that was decided in the old Bailey in 1696 where the crew of a pirate named Henry Avery were put on trial. And in the first iteration of this trial, the prosecutor, Sir John Newton, presented the case to the jury thus, that these men, the pirates and the doc, were guilty of treason. That they had so harmed the relationship between His Benevolent Majesty, King William III and the Great Magaul of India that they had in effect gone to war against England. The jury retired to consider its verdict. They came out about an hour later and they acquitted all six pirates. So this idea of treason didn't really work in 1696. So what they did was they let the pirates have a good night's sleep and then they brought them back again the next day, which oddly enough was Halloween 1696. And they put them on trial again for what they called new crimes. They suddenly added mutiny and conspiracy to the list. And then when Sir John Newton summed up the prosecution's case to a new jury, he didn't say a word about trees that are war against the world of tire. He said, these men are ordinary criminals. They're ordinary felons. They're sea robbers, just as if they had hit you on the head and stolen your purse. And that's how he got his conviction. And that's how this idea of sea robbery got introduced into lexicon. We still assume that piracy is just about theft, even though, as I'll speak about in a little bit, the evidence is incontrovertible, that it no longer is that in the world today. The interesting thing is it never was. If you go back to a case that was decided in the early 19th century by the US Supreme Court, there was something called In Ray Brig Melec Adel, lovely name, and on the Brig Melec Adel, the crew got drunk and went ballistic, if you will, in a confined cove and started attacking all the ships around them. So they didn't want to steal anything. They just wanted to cause trouble. And just a story writing for the court said, you don't have to have any actual taking or intent to take. All you have to have, as he put it, is a wish to gratify one's lawless appetite for mischief. That's pretty broad. And there's other cases. There was one decided by the Queen's bench that involved Confederate privateers. There's another really interesting case that was actually decided by Justice Marshall that said that if you could convince the world, this was the first Justice Marshall. If you could convince the world that slavery was against the law of nations, you could, you could, you know, against the law of nations, you could define slavery as piracy. And slavery looks almost nothing like piracy, but that's how broad this idea can be. At various times in its history, piracy, the term piracy, has been applied to unrestricted warfare, to, I'm sorry, unrestricted submarine warfare, to the use of merchant vessels for any other purpose besides being merchant vessels. It's a very broad definition. And this idea that only terrorists act with political motive is equally untrue. Just go back to Defoe's idea of a war against the world entire. The pirates of the 18th century, the so-called golden age of piracy, they weren't just about taking the gold. This was understood by themselves and by the English nation as a war against that nation, a war against the class strictures of that nation, against a nation which they thought had wronged them. And that political motive has almost always been present right up until the 20th and 21st centuries. There's two examples of this that I think you'll be very familiar with. One was the hijacking of the cruise ship Santa Maria in 1961, and the second, far more well-known, was the hijacking of the Italian cruise liner Achille Loro in 1985, which President Ronald Reagan turned an act of piracy. Even the term piracy, the actual word, if you look at all of the UN Convention on Statutes up until around about 1990 or so, whenever they were talking about aerial hijacking, it was termed aerial piracy. So there's been this connection between piracy and terrorism all the way back. We even have the term maritime terrorism to describe it. So it doesn't seem like that much of a jump to say that you could define the two as analogous under law. The second objection is, well, that's all very well, but piracy only takes place on sea. And that seems like an obvious truism. And this is probably the only time in my life when Harvard really helped me. I found a draft convention for the law of the sea dating all the way back to 1932. So predating the United Nations, this was actually done for the League of Nations, but which the United Nations had adopted without comments in the late 1940s. And this was the Harvard draft convention for the law of the sea. And it contained a provision called the Descent by Sea provision. It said, if a pirate arrives on the sea with the intent to commit piracy, it shouldn't matter whether he attacks another ship or a port city, as long as he arrives in that city with the intention to commit piracy, we term it piracy. And I would imagine they were thinking about things like Henry Morgan and Drake, certainly Morgan, the attacks on Maracaibo and Panama City and all the rest of it. But then they had this addendum to it. I remember it's 1932. They said, we would certainly extend this to the idea of someone descending via airplane to commit piracy. And that was magical to me. Because if it's only by ship, then the only cities that could be that could fall within that rubric are port cities, right? If it's by airplane, that means that anyone that descends by sea or air, anywhere in the world with the intent to commit something that could be defined as a piratical act which we've already said doesn't just have to be about theft, that person could be defined as a pirate. I had a lot of fun with that actually. So I had this model definition and I was, I had to confess to you a little proud of it. And then the next reaction that I got, which I thought was in some ways the most unexpected, was the nature of the third objection, which is who cares? Even if you're right, who cares? We have gotten, immeasurably better at weakening al-Qaeda. We are perceived to be winning this war, however we define the war as it is. So why bother with the law? You should never ask a lawyer why bother with the law. But I really had to think about this. And actually I have a better answer now than I did five or 10 years ago, because now I teach classes at the Cardozo Law School and I tend to get those students right before they're turned loose into corporate practice. So I may be the last person to try and indoctrinate them with some spirit of the law. So what I tell them is the law is a helix of obligation and right, which has been defined by John Locke as a social contract, it's been defined by Cicero as the benevolence of the magistrate, but basically it comes down to this idea that both parties give something up. You give up the ability to act with impunity, you receive due process of law. The state agrees not to just shoot you in the head and gains legitimacy for putting you on trial. Why should it be any different if we're dealing with the crime of organized terrorism than any other crime? This is how the law evolves and this is how the law has to evolve. And I think that there is some indication that it is evolving. I was amazed and delighted to find out that some of my work had been adopted by the State Department a few years ago and it's an internal memorandum. And then the most extraordinary thing happened just last year where I was of all places on vacation in Hawaii and I switched on my phone because we're never allowed to not have our phones even in Hawaii. And I saw an email from the lawyer at Arnold and Porter in New York and he wanted to talk to me because they wanted to use this as a basis of jurisdiction. So in a civil case, you had a bunch of plaintiffs suing the PLO and its offshoots for various acts of terrorism committed over a pretty long period. But the tricky part was how do we get this into a United States federal court? And I said, well, maybe if we define them as pirates and pirates are under universal jurisdiction we can get federal jurisdiction. And only when I talked to him on the phone did I realize that the case that he was talking about the case that he was bringing me in to advise on actually dealt with the murder of my best friend. I don't think I've known a happier moment than that or at least a more satisfying moment. And this last year I've actually been of some service to this firm, Arnold and Porter and they were successful in their suits, obviously up for appeal now. But they were among the first to pursue a successful claim against the PLO for damages in the civil court based on this nature of jurisdiction. But what I want to close with you is a very different idea. And I also tell this to my students. This idea of why the law, why is the law necessary? Why can't we pursue this purely as a military matter? There was a Broadway play that came out of the 1960s that was adapted as a movie of the mid 1960s. I hope many of you have seen it. It's called A Man for All Seasons. And there's a scene in this movie where Thomas Moore's son-in-law says, I would tear down every law in England to get at the devil. And Moore says, when the last law is down and the devil turns round on me, where will you hide the laws all being flat? This nation is planted thick with laws from coast to coast. Tear them down and do you really believe you could stand upright in the winds that would blow them? I give the devil the benefit of the law for my own safety's sake. And I feel in some that that's what I've been trying to do all along. I don't want to give terrorists the benefit of the law because I am in any way sympathetic to their aims or their actions. It's not about them, it never was about them. It's about us. It's about what it means to live in a civilized nation and how that civilized nation pursues its military and political goals and how it deals with those that wrong it, that harm it in the most fundamental of ways. And I do feel that as much as the military solution is working and continues to work, it must have a legal foundation to rest upon. So that's all I had to say to you. I'd be delighted to hear some questions if you have any. Let's say I'm the captain of the tanker and the person both come in international waters. But the car is boarded by ship, the captain of the...