As the Talking Dog says, it’s a rare day when Michael Moore and John Yoo agree with each other.

I agree with Michael Moore that the interests of history, the rule of law, truth, justice, and what used to be the American Way (I understand even Superman has given up on that) would have been far better served by taking Osama bin Laden into custody and putting him on trial. I do not entirely agree with Moore’s apparent implication (I don’t have a direct link to what he said; just the Newsbusters version of it) that killing OBL rather than capturing him was the plan all along, however.

I imagine that taking OBL out of the compound alive would have been trickier, and more dangerous to the SEALs, than just shooting him. And soldiers are not policemen, who are required to make shoot/don’t shoot judgments in ambiguous situations. As I understand it, with soldiers, unless the subject clearly and unambiguously surrenders, they’re going to kill him. That’s what they’re trained to do.

On the other hand, it wouldn’t surprise me even a little bit if we learn someday that President Obama ordered the SEALs to kill OBL rather than arrest him. A dead OBL is an achievement; a living one would soon turn into the Mother of All Bones of Political Contention. America is no longer a country that can sensibly discuss anything and come to rational decisions. If OBL were alive and in custody now, any decisions the President might make about what to do with him would be relentlessly attacked by the Right and used against him in the 2012 election. The President is a politician, after all.

Even as it is, many on the Right are doing their best to stir up animosity about killing OBL. They’re calling him a wimp for not releasing the bleeping photographs of OBL’s corpse; they’re attacking him for daring to accept credit for the raid. Note yesterday’s flap du jour, in which the Right persuaded itself that the President had ordered the removal of a flag at Ground Zero (not true) and spent much of the day worked up into a snit about it. I doubt much of this is getting traction outside of teabag world, but again, there aren’t a lot of ambiguities to exploit about a corpse. The righties certainly are being creative with what little they’ve got to exploit, though.

I can also imagine that a live OBL would have prompted the usual lunatics to publicly burn multiple effigies of him and demand a public hanging, providing lots of inflammatory videos to be aired on Middle Eastern television. There is concern that killing OBL will inspire retaliation by jihadists — like they weren’t after us, anyway — but a live one in custody might be just as inflammatory. Possibly more inflammatory, over the long run.

Yoo said that OBL should have been captured alive and used as a source of intelligence (i.e., taken to Gitmo and waterboarded; see what Krugman says about that). For a whole lot of reasons I would have turned him over to an international court for a public Nuremberg-type trial; trials and intelligence are not mutually exclusive.

Frankly, as a nation, I don’t think we would have been capable of giving OBL a fair and honest trial without tearing each other to shreds in the process. We may not even be capable of giving him a fair trial as a species. We’re not civilized enough yet, apparently.