Resistance Is Futile

The White House says Osama Bin Laden “resisted” capture. What does that mean?

Elsewhere in Slate, William Saletan explains why the human-shield myth was a bad idea, David Weigel talks about how Osama’s death proved everyone right, John Dickerson looks at  Obama’s secret meetings, Dahlia Lithwick says it’s time to  end the war on terror, Christopher Beam explains the  mood in Pakistan, Heather Murphy compiles a slideshow of the elite Navy SEALS, and Maura O’Connor looks at how the war still continues in Afghanistan. For the most up-to-date-coverage, visit the  Slatest. Slate’s complete coverage is rounded up  here. 

Exactly what does someone have to do to be considered “resisting”?

As the White House revised its initial account on Tuesday of the killing of Osama Bin Laden, one detail stood out: Bin Laden was not armed when the team of Navy SEALs found him in his Abbottabad compound. And yet he “resisted,” according to White House spokesman Jay Carney. “Resistance does not require a firearm,” Carney said.

How, then, did Bin Laden resist? The White House isn’t saying. (One plausible theory is that he was captured, then killed.) But the definition of resistance is broad enough that just about any attempt to evade his captors—with or without a weapon—could justify the use of deadly force, according to lawyers and tactical experts.

Reports have conflicted on whether the intent was to kill or capture Bin Laden. The White House says capture. Others say kill. The rules of engagement for ground troops say that if someone is trying to kill you, it’s OK to kill them. If it’s less clear-cut—say, someone suspicious is walking toward you—the short-hand rule for escalation of force is “Shout, Shove, Show (display your weapon), Shoot (to disable), Shoot (to kill).” Rules of engagement for special operations differ from mission to mission, and the rules for Operation Neptune’s Spear are classified, says Pentagon spokesman Lt. Col. James Gregory: “If we put that out there, it gives our adversaries an opportunity to alter the ways they interact with us, or come after us.” But, he added, “the inherent right to self-defense is always a portion of that.”

It’s not hard to imagine, though, that the SEALs were given broad license to use force. The uncertainty of the mission left no room for error. “It was a nighttime mission, you don’t know what lighting conditions would be, you don’t know what you could see in his hands, you don’t know how he might have been dressed, you don’t know if he was set up to push a button and blow himself up, or whoever else was in the room,” says Greg Meyer, a retired LAPD police tactics expert and Army veteran. “You get into all these potential variables and you don’t take a chance.” At that point, anything short of Osama standing still in his underwear with his hands up could qualify as “resistance.”

In some cases, fighters can make difficult ethical decisions in the heat of battle. “Let’s say a guy’s coming at you with a knife, but women and children are behind him,” says Dick Couch, former Navy SEAL and author of Down Range: Navy SEALs in the War on Terrorism. “If I’m a skilled special operator, I’ll let him come in close and take him down with a barrel strike.” But that would be risky. The fact that one of the women in Bin Laden’s house was shot in the leg shows the SEALs team distinguished between combatants and noncombatants, says Couch. “These guys are good, they know how to kill somebody.”

A more familiar concept is “resisting arrest” by the cops. Naturally, the rules for escalation of force are different for domestic police departments than in the military. They generally look like this: Verbal resistance, such as saying “I’m not going to jail,” justifies a minimal amount of force, such as twisting the suspect’s arm in order to cuff him. Physical resistance, such as refusing handcuffs or pushing an officer, justifies forcing someone to the ground or Tasering him. If the suspect produces a deadly weapon, the officer can shoot him. But even then, the rule is shoot to stop, not to kill.

Those guidelines can vary depending on the situation. If someone resists arrest in the middle of a hostile crowd, a police officer may use more force than usual, since the priority is to arrest the person as quickly as possible and get out of there. It also depends on the suspect. If a suspect accused of grand theft runs away from the cops, police can’t shoot him. But if he’s a suspected serial rapist—or anyone else who poses a danger to others if he escapes—they can.

It’s possible to be charged with “resisting arrest” even if you’re not guilty of another crime. If a police officer has probable cause to bring you in—say, you match the description of someone seen robbing a bank—you have to comply, regardless of whether you actually robbed the bank. The charge of “resisting arrest” is often overapplied, partly because it can mean as little as mouthing off to a cop, but also because it’s a good cover story if police beat someone up. “It’s one of the more elastic, fungible charges that exist under the criminal law,” says Abbe Smith, a professor at Georgetown University Law School and a criminal defense lawyer. Or, as Florida defense attorney Jon Gutmacher puts it, “It means the cop’s pissed off at you.”

We may never know if Bin Laden “resisted” in the strict legal sense. But consider the larger context. Bin Laden was the United States’ most wanted criminal for a decade. He killed thousands of Americans. He had evaded manhunts for years—itself a form of resisting capture. U.S. forces finally found him in a heavily armed compound, surrounded by bodyguards. Were they really going to err on the side of restraint? “It’s like Tudor England,” says Smith. “Once you come over the moat and you’re in the castle of your enemy, I think it’s shoot or be shot.”