Election 2016 and the Growing Global Nuclear Threat

By Michael T. Klare, TomDispatch

06 November 16

 

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I was born on July 20, 1944, the day of the failed officers’ plot against Adolf Hitler. That means I preceded the official dawning of the nuclear age by exactly 361 days, which makes me part of the last generation to do so. I’m speaking not of the obliteration of two Japanese cities by America’s new “wonder weapon” on August 6th and 9th, 1945, but of the Trinity test of the first atomic bomb in the New Mexican desert near Alamogordo on July 16th of that year. When physicist Robert Oppenheimer, the “father of the atomic bomb,” witnessed that explosion, the line from the Hindu holy book, the Bhagavad Gita, that famously came into his head was: "I am become Death, the destroyer of worlds.”

How apt it still remains more than seven decades later, at a moment when nine countries possess such weapons -- more than 15,000 of them -- in their arsenals, most of which are now staggeringly more destructive than that first devastating bomb, and as TomDispatch regular Michael Klare points out today, some of which are closer to possible use than at any point in at least a couple of decades.  For those of us who lived through the years of bomb shelters, atomic movie monsters, the Cuban Missile Crisis (which left me, age 18, fearing I might be toast in the morning), the rise and fall of antinuclear movements, and nuclear nightmares of a sort I still remember vividly from my youth in a way I no longer recall the dreams of last night, it’s a horror to imagine that nuclear war is still with us; even more so, because, in Election 2016, we have a presidential candidate who is not only ignorant about those weapons in hard-to-believe ways, but who wonders why “we can’t use them,” and who might months from now have his finger on that “nuclear button” (or rather command of the nuclear codes that could launch such a war). Don’t tell me that this isn’t a living nightmare of the first order.

I find it eerie in the extreme and unnervingly apt that the Clinton campaign has brought back a living icon of our nuclear fears, the little girl from the 1964 election who appeared in the famous (or infamous) "Daisy" ad President Lyndon Johnson ran against Republican contender Barry Goldwater (who, in retrospect, seems like the soul of stability compared with you know whom).  She was then seen counting to 10 as she plucked petals off a daisy just before an ominous, echoing male voice began the countdown to an atomic explosion that filled the screen.  Now, that girl, Monique Luiz, a grown woman, is shown saying, “The fear of nuclear war we had as children, I never thought our children would ever have to deal with that again. And to see that coming forward in this election is really scary.”

She's now 55 years old and, however the Clinton campaign may be using her, there’s still something deeply unnerving for those of us who had hoped to outlast the nuclear age simply to see her there more than five decades later. And if you think that’s unnerving on the eve of the most bizarre presidential election in memory, then read today’s piece by Michael Klare and imagine just how unsettling, in nuclear terms, the years ahead may prove to be. Tom

-Tom Engelhardt, TomDispatch

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Election 2016 and the Growing Global Nuclear Threat
Playing a Game of Chicken with Nuclear Strategy

nce upon a time, when choosing a new president, a factor for many voters was the perennial question: “Whose finger do you want on the nuclear button?” Of all the responsibilities of America’s top executive, none may be more momentous than deciding whether, and under what circumstances, to activate the “nuclear codes” -- the secret alphanumeric messages that would inform missile officers in silos and submarines that the fearful moment had finally arrived to launch their intercontinental ballistic missiles (ICBMs) toward a foreign adversary, igniting a thermonuclear war.

Until recently in the post-Cold War world, however, nuclear weapons seemed to drop from sight, and that question along with it. Not any longer. In 2016, the nuclear issue is back big time, thanks both to the rise of Donald Trump (including various unsettling comments he’s made about nuclear weapons) and actual changes in the global nuclear landscape.

With passions running high on both sides in this year’s election and rising fears about Donald Trump’s impulsive nature and Hillary Clinton’s hawkish one, it’s hardly surprising that the “nuclear button” question has surfaced repeatedly throughout the campaign.  In one of the more pointed exchanges of the first presidential debate, Hillary Clinton declared that Donald Trump lacked the mental composure for the job.  “A man who can be provoked by a tweet,” she commented, “should not have his fingers anywhere near the nuclear codes.”  Donald Trump has reciprocated by charging that Clinton is too prone to intervene abroad. “You’re going to end up in World War III over Syria,” he told reporters in Florida last month.

For most election observers, however, the matter of personal character and temperament has dominated discussions of the nuclear issue, with partisans on each side insisting that the other candidate is temperamentally unfit to exercise control over the nuclear codes.  There is, however, a more important reason to worry about whose finger will be on that button this time around: at this very moment, for a variety of reasons, the “nuclear threshold” -- the point at which some party to a “conventional” (non-nuclear) conflict chooses to employ atomic weapons -- seems to be moving dangerously lower.

Not so long ago, it was implausible that a major nuclear power -- the United States, Russia, or China -- would consider using atomic weapons in any imaginable conflict scenario.  No longer.  Worse yet, this is likely to be our reality for years to come, which means that the next president will face a world in which a nuclear decision-making point might arrive far sooner than anyone would have thought possible just a year or two ago -- with potentially catastrophic consequences for us all.

No less worrisome, the major nuclear powers (and some smaller ones) are all in the process of acquiring new nuclear arms, which could, in theory, push that threshold lower still.  These include a variety of cruise missiles and other delivery systems capable of being used in “limited” nuclear wars -- atomic conflicts that, in theory at least, could be confined to just a single country or one area of the world (say, Eastern Europe) and so might be even easier for decision-makers to initiate.  The next president will have to decide whether the U.S. should actually produce weapons of this type and also what measures should be taken in response to similar decisions by Washington’s likely adversaries.

Lowering the Nuclear Threshold

During the dark days of the Cold War, nuclear strategists in the United States and the Soviet Union conjured up elaborate conflict scenarios in which military actions by the two superpowers and their allies might lead from, say, minor skirmishing along the Iron Curtain to full-scale tank combat to, in the end, the use of “battlefield” nuclear weapons, and then city-busting versions of the same to avert defeat.  In some of these scenarios, strategists hypothesized about wielding “tactical” or battlefield weaponry -- nukes powerful enough to wipe out a major tank formation, but not Paris or Moscow -- and claimed that it would be possible to contain atomic warfare at such a devastating but still sub-apocalyptic level.  (Henry Kissinger, for instance, made his reputation by preaching this lunatic doctrine in his first book, Nuclear Weapons and Foreign Policy.)  Eventually, leaders on both sides concluded that the only feasible role for their atomic arsenals was to act as deterrents to the use of such weaponry by the other side.  This was, of course, the concept of “mutually assured destruction,” or -- in one of the most classically apt acronyms of all times: MAD.  It would, in the end, form the basis for all subsequent arms control agreements between the two superpowers.

Anxiety over the escalatory potential of tactical nuclear weapons peaked in the 1970s when the Soviet Union began deploying the SS-20 intermediate-range ballistic missile (capable of striking cities in Europe, but not the U.S.) and Washington responded with plans to deploy nuclear-armed, ground-launched cruise missiles and the Pershing-II ballistic missile in Europe.  The announcement of such plans provoked massive antinuclear demonstrations across Europe and the United States.  On December 8, 1987, at a time when worries had been growing about how a nuclear conflagration in Europe might trigger an all-out nuclear exchange between the superpowers, President Ronald Reagan and Soviet leader Mikhail Gorbachev signed the Intermediate-Range Nuclear Forces (INF) Treaty.

That historic agreement -- the first to eliminate an entire class of nuclear delivery systems -- banned the deployment of ground-based cruise or ballistic missiles with a range of 500 and 5,500 kilometers and required the destruction of all those then in existence.  After the collapse of the Soviet Union, the Russian Federation inherited the USSR’s treaty obligations and pledged to uphold the INF along with other U.S.-Soviet arms control agreements.  In the view of most observers, the prospect of a nuclear war between the two countries practically vanished as both sides made deep cuts in their atomic stockpiles in accordance with already existing accords and then signed others, including the New START, the Strategic Arms Reduction Treaty of 2010.

Today, however, this picture has changed dramatically.  The Obama administration has concluded that Russia has violated the INF treaty by testing a ground-launched cruise missile of prohibited range, and there is reason to believe that, in the not-too-distant future, Moscow might abandon that treaty altogether.  Even more troubling, Russia has adopted a military doctrine that favors the early use of nuclear weapons if it faces defeat in a conventional war, and NATO is considering comparable measures in response.  The nuclear threshold, in other words, is dropping rapidly.

Much of this is due, it seems, to Russian fears about its military inferiority vis-à-vis the West.  In the chaotic years following the collapse of the USSR, Russian military spending plummeted and the size and quality of its forces diminished accordingly.  In an effort to restore Russia's combat capabilities, President Vladimir Putin launched a multi-year, multi-billion-dollar expansion and modernization program.  The fruits of this effort were apparent in the Crimea and Ukraine in 2014, when Russian forces, however disguised, demonstrated better fighting skills and wielded better weaponry than in the Chechnya wars a decade earlier.  Even Russian analysts acknowledge, however, that their military in its current state would be no match for American and NATO forces in a head-on encounter, given the West’s superior array of conventional weaponry.  To fill the breach, Russian strategic doctrine now calls for the early use of nuclear weapons to offset an enemy’s superior conventional forces.

To put this in perspective, Russian leaders ardently believe that they are the victims of a U.S.-led drive by NATO to encircle their country and diminish its international influence.  They point, in particular, to the build-up of NATO forces in the Baltic countries, involving the semi-permanent deployment of combat battalions in what was once the territory of the Soviet Union, and in apparent violation of promises made to Gorbachev in 1990 that NATO would not do so.  As a result, Russia has been bolstering its defenses in areas bordering Ukraine and the Baltic states, and training its troops for a possible clash with the NATO forces stationed there.

This is where the nuclear threshold enters the picture.  Fearing that it might be defeated in a future clash, its military strategists have called for the early use of tactical nuclear weapons, some of which no doubt would violate the INF Treaty, in order to decimate NATO forces and compel them to quit fighting.  Paradoxically, in Russia, this is labeled a “de-escalation” strategy, as resorting to strategic nuclear attacks on the U.S. under such circumstances would inevitably result in Russia’s annihilation.  On the other hand, a limited nuclear strike (so the reasoning goes) could potentially achieve success on the battlefield without igniting all-out atomic war.  As Eugene Rumer of the Carnegie Endowment of International Peace explains, this strategy assumes that such supposedly “limited” nuclear strikes “will have a sobering effect on the enemy, which will then cease and desist.”

To what degree tactical nuclear weapons have been incorporated into Moscow’s official military doctrine remains unknown, given the degree of secrecy surrounding such matters.  It is apparent, however, that the Russians have been developing the means with which to conduct such “limited” strikes.  Of greatest concern to Western analysts in this regard is their deployment of the Iskander-M short-range ballistic missile, a modern version of the infamous Soviet-era “Scud” missile (used by Saddam Hussein’s forces during the Iran-Iraq war of 1980-1988 and the Persian Gulf War of 1990-1991).  Said to have a range of 500 kilometers (just within the INF limit), the Iskander can carry either a conventional or a nuclear warhead.  As a result, a targeted country or a targeted military could never be sure which type it might be facing (and might simply assume the worst).  Adding to such worries, the Russians have deployed the Iskander in Kaliningrad, a tiny chunk of Russian territory wedged between Poland and Lithuania that just happens to put it within range of many western European cities.

In response, NATO strategists have discussed lowering the nuclear threshold themselves, arguing -- ominously enough -- that the Russians will only be fully dissuaded from employing their limited-nuclear-war strategy if they know that NATO has a robust capacity to do the same.  At the very least, what’s needed, some of them claim, is a more frequent inclusion of nuclear-capable or dual-use aircraft in exercises on Russia’s frontiers to “signal” NATO’s willingness to resort to limited nuclear strikes, too.  Again, such moves are not yet official NATO strategy, but it’s clear that senior officials are weighing them seriously.

Just how all of this might play out in a European crisis is, of course, unknown, but both sides in an increasingly edgy standoff are coming to accept that nuclear weapons might have a future military role, which is, of course, a recipe for almost unimaginable escalation and disaster of an apocalyptic sort.  This danger is likely to become more pronounced in the years ahead because both Washington and Moscow seem remarkably intent on developing and deploying new nuclear weapons designed with just such needs in mind.

The New Nuclear Armaments

Both countries are already in the midst of ambitious and extremely costly efforts to “modernize” their nuclear arsenals.  Of all the weapons now being developed, the two generating the most anxiety in terms of that nuclear threshold are a new Russian ground-launched cruise missile (GLCM) and an advanced U.S. air-launched cruise missile (ALCM).  Unlike ballistic missiles, which exit the Earth’s atmosphere before returning to strike their targets, such cruise missiles remain within the atmosphere throughout their flight.

American officials claim that the Russian GLCM, reportedly now being deployed, is of a type outlawed by the INF Treaty.  Without providing specifics, the State Department indicated in a 2014 memo that it had “a range capability of 500 km [kilometers] to 5,500 km,” which would indeed put it in violation of that treaty by allowing Russian combat forces to launch nuclear warheads against cities throughout Europe and the Middle East in a “limited” nuclear war.

The GLCM is likely to prove one of the most vexing foreign policy issues the next president will face.  So far, the White House has been reluctant to press Moscow too hard, fearing that the Russians might respond by exiting the INF Treaty altogether and so eliminate remaining constraints on its missile program.  But many in Congress and among Washington’s foreign policy elite are eager to see the next occupant of the Oval Office take a tougher stance if the Russians don’t halt deployment of the missile, threatening Moscow with more severe economic sanctions or moving toward countermeasures like the deployment of enhanced anti-missile systems in Europe.  The Russians would, in turn, undoubtedly perceive such moves as threats to their strategic deterrent forces and so an invitation for further weapons acquisitions, setting off a fresh round in the long-dormant Cold War nuclear arms race.

On the American side, the weapon of immediate concern is a new version of the AGM-86B air-launched cruise missile, usually carried by B-52 bombers.  Also known as the Long-Range Standoff Weapon (LRSO), it is, like the Iskander-M, expected to be deployed in both nuclear and conventional versions, leaving those on the potential receiving end unsure what might be heading their way.  In other words, as with the Iskander-M, the intended target might assume the worst in a crisis, leading to the early use of nuclear weapons.  Put another way, such missiles make for twitchy trigger fingers and are likely to lead to a heightened risk of nuclear war, which, once started, might in turn take Washington and Moscow right up the escalatory ladder to a planetary holocaust.

No wonder former Secretary of Defense William J. Perry called on President Obama to cancel the ALCM program in a recent Washington Post op-ed piece. “Because they... come in both nuclear and conventional variants,” he wrote, “cruise missiles are a uniquely destabilizing type of weapon.” And this issue is going to fall directly into the lap of the next president.

The New Nuclear Era

Whoever is elected on November 8th, we are evidently all headed into a world in which Trumpian-style itchy trigger fingers could be the norm. It already looks like both Moscow and Washington will contribute significantly to this development -- and they may not be alone. In response to Russian and American moves in the nuclear arena, China is reported to be developing a “hypersonic glide vehicle,” a new type of nuclear warhead better able to evade anti-missile defenses -- something that, at a moment of heightened crisis, might make a nuclear first strike seem more attractive to Washington. And don’t forget Pakistan, which is developing its own short-range “tactical” nuclear missiles, increasing the risk of the quick escalation of any future Indo-Pakistani confrontation to a nuclear exchange. (To put such “regional” dangers in perspective, a local nuclear war in South Asia could cause a global nuclear winter and, according to one study, possibly kill a billion people worldwide, thanks to crop failures and the like.)

And don’t forget North Korea, which is now testing a nuclear-armed ICBM, the Musudan, intended to strike the Western United States.  That prompted a controversial decision in Washington to deploy THAAD (Terminal High Altitude Area Defense) anti-missile batteries in South Korea (something China bitterly opposes), as well as the consideration of other countermeasures, including undoubtedly scenarios involving first strikes against the North Koreans.

It’s clear that we’re on the threshold of a new nuclear era: a time when the actual use of atomic weapons is being accorded greater plausibility by military and political leaders globally, while war plans are being revised to allow the use of such weapons at an earlier stage in future armed clashes.

As a result, the next president will have to grapple with nuclear weapons issues -- and possible nuclear crises -- in a way unknown since the Cold War era.  Above all else, this will require both a cool head and a sufficient command of nuclear matters to navigate competing pressures from allies, the military, politicians, pundits, and the foreign policy establishment without precipitating a nuclear conflagration.  On the face of it, that should disqualify Donald Trump.  When questioned on nuclear issues in the first debate, he exhibited a striking ignorance of the most basic aspects of nuclear policy.  But even Hillary Clinton, for all her experience as secretary of state, is likely to have a hard time grappling with the pressures and dangers that are likely to arise in the years ahead, especially given that her inclination is to toughen U.S. policy toward Russia.

In other words, whoever enters the Oval Office, it may be time for the rest of us to take up those antinuclear signs long left to molder in closets and memories, and put some political pressure on leaders globally to avoid strategies and weapons that would make human life on this planet so much more precarious than it already is.

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Michael T. Klare, a TomDispatch regular, is a professor of peace and world security studies at Hampshire College and the author, most recently, of The Race for What’s Left. A documentary movie version of his book Blood and Oil is available from the Media Education Foundation. Follow him on Twitter at @mklare1.

Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Book, Nick Turse’s Next Time They’ll Come to Count the Dead, and Tom Engelhardt's latest book, Shadow Government: Surveillance, Secret Wars, and a Global Security State in a Single-Superpower World.

The Real Clinton Email Scandal Is That a Bullshit Story Has Dominated the Campaign

By Matthew Yglesias, Vox

06 November 16

 

If you agree with her on policy, vote with a clear conscience about the server.

ome time ago, Hillary Clinton and her advisers decided that the best course of action was to apologize for having used a personal email address to conduct government business while serving as secretary of state. Clinton herself was, clearly, not really all that remorseful about this, and it showed in her early efforts to address it. Eventually aides prevailed upon her to express a greater degree of regret, which they hoped would lay the issue to rest.

It did not. Instead, email-related talk has dogged Clinton throughout the election and it has influenced public perceptions of her in an overwhelmingly negative way. July polling showed 56 percent of Americans believed Clinton broke the law by relying on a personal email address with another 36 percent piling on to say the episode showed “bad judgments” albeit not criminality.

Because Clinton herself apologized for it and because it does not appear to be in any way important, Clinton allies, surrogates, and co-partisans have largely not familiarized themselves with the details of the matter, instead saying vaguely that it was an error of judgment and she apologized and America has bigger fish to fry.

This has had the effect of further inscribing and reinscribing the notion that Clinton did something wrong, meaning that every bit of micro-news that puts the scandal back on cable amounts to reminding people of something bad that Clinton did. In total, network newscasts have, remarkably, dedicated more airtime to coverage of Clinton’s emails than to all policy issues combined.

This is unfortunate because emailgate, like so many Clinton pseudo-scandals before it, is bullshit. The real scandal here is the way a story that was at best of modest significance came to dominate the US presidential election — overwhelming stories of much more importance, giving the American people a completely skewed impression of one of the two nominees, and creating space for the FBI to intervene in the election in favor of its apparently preferred candidate in a dangerous way.

Why Hillary Clinton used a personal email account

When Hillary Clinton took office as secretary of state, she, like most people, already had a personal email account. Like most people who started a federal job in 2009, she was also disheartened to learn that the then-current state of federal IT departments was such that she could not connect her personal smartphone to a State Department email address. If she wanted ready access to both her email accounts, she would need to carry two smartphones.

As any reporter in Washington knows, this indignity was in fact visited upon a huge number of DC denizens for many years. Everyone working in government felt that this was kinda bullshit, but nobody could really do anything about it. (Meanwhile, Chief Justice John Roberts has opined that carrying two phones could be reasonable grounds to suspect someone is a drug dealer.)

Clinton decided to do something about it. Namely, she told her top aides to just email her at her personal address so she could keep using whichever devices she wanted. This violated an internal State Department policy directive, known as a Foreign Affairs Manual, which stated that while it was okay to use personal digital devices to do work occasionally, “normal day-to-day operations” should be conducted on standard State Department equipment. Clinton chose to ignore this guideline and because she was the boss nobody could stop her. Career foreign service officers and other State personnel have every right to be peeved that Clinton opted out of an annoying policy rather than fixing the underlying issue, but it’s hardly a matter of overwhelming public concern.

And, indeed, it turns out Colin Powell also used a private email address for routine work. Condoleezza Rice and Madeleine Albright didn’t use email, and back before Albright only weird nerds even knew what email was. So at the time Clinton took office, only one previous secretary of state had ever faced the question of what email account to use, and he reached the exact same conclusion Clinton did — just use your personal email address.

Why Hillary used a private email server

When Hillary tried the eminently sensible “I was following precedent” defense, Politifact dinged her answer as “mostly false” on the grounds that while Powell did use a personal email account, he didn’t use a private email server.

This distinction has attracted a lot of attention. And it’s proven politically damaging — because while lots of people maintain two email addresses and sometimes do work stuff on their personal email, very few Americans use a private email server as opposed to relying on a commercial email service. But legally speaking, this is completely irrelevant. As the State Department inspector general concluded in its report on Clinton’s conduct, the guideline Clinton violated was a principle that “normal day-to-day operations should be conducted on an authorized Automated Information System.”

Using a private server violates that rule, but so would using a Gmail address or simply checking your State.gov email address from your personal laptop rather than a Department-issue one.

But while the use of a private server is legally irrelevant, it’s certainly unusual. And it leaves people wondering: Why did Clinton go out of her way to set up a private server?

Clinton, as you may have heard, is married to former president Bill Clinton, who stepped down from office in January of 2001. Clinton was in the White House throughout the 1990s when the rest of us were being bombarded with AOL signup CD-ROMs, so he didn’t have a personal email when he left. Gmail didn’t exist back then, and his new job was, in effect, running a Bill Clinton startup. He launched a charitable foundation, he established his presidential library, and he made big bucks on speaking tours. He had a staff and he needed IT infrastructure and support. So he paid a guy to set up an email server that he could use.

Hillary Clinton — who is, again, his wife — also set herself up with an account on the same server. This is a bit unusual, but a lot about being married to a former president is unusual. What it’s not is suspicious.

The private server was not a transparency dodge

It’s become a bit of an article of faith among journalists frustrated with public officials’ constant FOIA-dodging that this is all obviously dissimulation and Clinton was really trying to evade the Freedom of Information Act.

Many people, for example, point to the fact that Clinton would routinely travel with multiple digital devices as debunking her supposed convenience argument. But this is silly. I’ve been known to travel with an iPhone, an iPad, a Kindle, and a laptop all at once. That doesn’t mean needing to carry two separate iPhones (one to check my work email and one to check my personal email) wouldn’t be inconvenient. After all, what if I was replying to a work email while a text came in to my personal phone and I wanted to check it.

I’d be left juggling phones and looking like an idiot, exactly how federal employees tended to look in the heyday of the double-fisting phones era.

I would not want to do that. Colin Powell did not want to do that. Hillary Clinton did not want to do that. Because that would be terrible.

By contrast, it’s a terrible solution to a desire to avoid having your emails disclosed to the public via FOIA. One way you can tell it’s a terrible solution is that Hillary Clinton’s work emails have been disclosed to the public. You can read them right here.

The specific timeline is that the House Select Committee on Benghazi requested Clinton’s emails in the summer of 2014, at which point the relevant State Department personnel realized they did not have the emails because Clinton had been using her personal address. State asked Clinton for the emails, and she handed them over later that year. It was only in March of 2015 that the New York Times broke the story of Clinton’s private server in a scoop by Michael Schmidt, which reported that the emails had been handed over to the State Department “two months ago.”

This is fairly clearly not an optimal approach to government record-keeping, as Thomas Blanton of the National Security Archive at George Washington University told Schmidt at the time:

It’s a shame it didn’t take place automatically when she was secretary of state as it should have. Someone in the State Department deserves credit for taking the initiative to ask for the records back. Most of the time it takes the threat of litigation and embarrassment.

According to the Inspector General’s report, Clinton “should have preserved any Federal records she created and received on her personal account by printing and filing those records with the related files in the Office of the Secretary.”

There are two possible interpretations here. One is that Clinton hatched the private email account plan as an elaborate dodge of federal record-keeping laws, but then months before the public became aware of the server’s existence complied with requests to turn them over. The other is that the federal records rule on the book was antiquated and a bit absurd, requiring officials to turn over paper copies of emails for no good reason, and simply got ignored out of sloppiness.

But she deleted 33,000 emails!

Suspicion at this point is then supposed to focus on the fact that she had her lawyers delete more than 30,000 emails from her server.

After Hillary left office, the State Department told her she had to turn all her work-related emails over to them, so she tasked a legal team with determining which emails were work emails and which were not. She turned the work emails over because that’s what she was legally required to do. She deleted the others, presumably because she did not want Trey Gowdy and Jason Chaffetz to rummage through her inbox leaking whatever they happened to find amusing to area journalists.

Now, is it possible that Clinton’s legal team simply decided to entirely disregard the law and delete work-related emails?

In some sense, sure. But there’s no evidence that this happened. Generally speaking, in life we assume it would be moderately difficult to hire a well-known law firm to destroy evidence for you without someone deciding to do the right thing and squeal.

Besides which, it would be almost comically easy to catch Clinton in the act of systematically destroying relevant emails. The vast majority of the work-related email correspondence of an incumbent secretary of state, after all, is going to be correspondence with other government employees. Maybe she shoots a note to the Pentagon about Benghazi, or circulates ideas for a speech draft with her communications team. Any message like that, by definition, would exist on a government server as well as on her private one. This means it would be fully accessible via FOIA and also means that if Clinton’s copy were found to not be in the pile of emails she turned over, she’d be caught red handed.

The available FOIA workarounds are available to everyone

Now what’s true is that Clinton could, in theory, have conducted work-related email conversations using another person’s personal email address.

She could, for instance, have emailed Jake Sullivan on his Gmail address then deleted the email from her private server. We’d be in the dark and she’d get away with it.

The key thing to note here, however, is that the availability of this option has nothing to do with Clinton’s decision to use a personal account as her exclusive account and also has nothing to do with her decision to host her personal email on a private server.

At any given time, any federal employee can use her personal account to email any other federal employee at his personal account. If they receive a Freedom of Information Act request, they are legally obligated to hand that correspondence over. But in a practical sense, if they want to break the law they can probably get away with it. And as Ezra Klein has noted, there are a lot of workarounds here:

As every reporter knows, when official sources want to tell you something particularly delicate, they email you from a personal account — or, much more often, they call.

A lot of my reporting happens by email. But virtually none of my reporting with the White House happens by email. There, emails for clarification, or comment, quickly lead to phone calls. The reason — unsaid but obvious — is that phone calls don't leave an official record. White House officials can talk freely on the phone in a way they can't over email.

Similarly, the White House keeps a visitor's log. If you make an appointment to meet with someone, your entrance and point of contact are recorded for posterity and searchable online. When someone who shouldn't be meeting with you wants to meet with you, they tend to suggest an off-site location: a restaurant downtown, or a nearby coffee shop. Peet's Coffee doesn't keep a list of everyone who walks in or out.

We do not, however, generally treat all federal employees as having a massive ethical cloud over their heads just because they could probably use this workaround to break the law. There is zero reason to apply heightened scrutiny to Clinton just because she also could break the law.

Besides which, when you are secretary of state there is a much simpler and easier way to mask your correspondence: classification.

Here, for example, is an email Sullivan sent to Clinton on June 4, 2011, that was duly handed over to the State Department and made available by the FOIA office:

I’m not saying the contents of that message don’t deserve to be redacted for security purposes. The fact is that I have no idea. But the reality is the American national security state is really, really good at using official channels to avoid disclosure of information. Nobody needs a private email server to pull that off.

Indeed, the allegation that the server setup was an elaborate con to evade transparency law is doubly ridiculous. On the one hand, a private server would not be necessary to carry it out. (All you need is to have a private email address on the side, which everyone does.) While on the other hand, the exclusive use of a personal email account means that Clinton’s personal account has come under an exceptional level of security.

The classification thing is a red herring

It’s precisely because nothing about the basic setup of the email account was in any way wrong that the investigation ended up focusing on the question of mishandling classified information.

The key point here is that using a State.gov email account would not have changed anything. When US government officials have conversations about classified matters, they are not supposed to use email. They are supposed to use special secure channels.

Nonetheless, mistakes happen in part because classification standards are vague and ever-changing. Technically speaking, forwarding a Washington Post article detailing things revealed by Edward Snowden could constitute an improper discussion of classified matters.

As FBI Director James Comey concluded, “no reasonable prosecutor” would bring a case against Clinton over this matter. Almost all of the relevant statutes require an intent to mishandle classified information in order to bring a prosecution, a standard that Clinton’s conduct clearly does not meet. Critics have thus chosen to focus on 18 USC § 793, a statute that sets a lower “gross negligence” standard.

However, as Jack Goldsmith, one of the top lawyers in George W. Bush’s administration explains, such a prosecution “would be entirely novel, and would turn in part on very tricky questions about how email exchanges fit into language written with physical removal of classified information in mind.”

Ben Wittes, a veteran legal journalist and Brookings fellow who has spent the past several years specializing in national security law, wrote that Comey’s characterization was clearly correct:

For the last several months, people have been asking me what I thought the chances of an indictment were. I have said each time that there is no chance without evidence of bad faith action of some kind. People simply don't get indicted for accidental, non-malicious mishandling of classified material. I have followed leak cases for a very long time, both at the Washington Post and since starting Lawfare. I have never seen a criminal matter proceed without even an allegation of something more than mere mishandling of sensitive information. Hillary Clinton is not above the law, but to indict her on these facts, she'd have to be significantly below the law.

It’s true that to a layman the Espionage Act’s reference to “gross negligence” sounds similar to Comey’s characterization of Clinton’s actions as “extremely careless.” But as Philip Zelikow, a counselor to Condoleezza Rice during the Bush administration and currently the Director of the Miller Center at the University of Virginia explains, they only sound alike “unless you do a tiny bit of homework” on the history and caselaw of the Statute.

Did Hillary Clinton do something criminal with her emails? Philip Zelikow walks you through. #election2016 @AnnCompton @pastpunditry pic.twitter.com/kS8Z4dq9Qf

— Miller Center (@Miller_Center) November 3, 2016

As the Cato Institute’s Julian Sanchez writes, attempting a prosecution for non-malicious mishandling would likely result in the statute being held unconstitutional: “the Supreme Court’s opinion in Gorin v. United States (1941), which suggests that the Espionage Act’s intent requirements are an important feature that save it from unconstitutional vagueness.”

This legal analysis is important because it makes it clear that even if the Weiner laptop emails aren’t simply client-side copies of the exact emails the FBI already has, there is essentially no chance it will change the ultimate verdict. The reason Clinton isn’t getting locked up is that there was no malign intent. Finding another email with classified information on it won’t change that conclusion.

A bullshit scandal amidst a serious election

Network newscasts have, remarkably, dedicated more airtime to coverage of Clinton’s emails than to all policy issues combined.

Cable news has been, if anything, worse, and many prestige outlets have joined the pileup. One malign result of obsessive email coverage is that the public is left totally unaware of the policy stakes in the election. Another is that the constant vague recitations of the phrase ‘‘Clinton email scandal’’ have firmly implanted the notion that there is something scandalous about anything involving Hillary Clinton and email, including her campaign manager getting hacked or the revelation that one of her aides sometimes checked mail on her husband’s computer.

But none of this is true. Clinton broke no laws according to the FBI itself. Her setup gave her no power to evade federal transparency laws beyond what anyone who has a personal email account of any kind has. Her stated explanation for her conduct is entirely believable, fits the facts perfectly, and is entirely plausible to anyone who doesn't simply start with the assumption that she's guilty of something.

Given Powell’s conduct, Clinton wasn't even breaking with an informal precedent. The very worst you can say is that, faced with an annoying government IT policy, she used her stature to find a personal workaround rather than a systemic fix that would work for everyone. To spend so much time on such a trivial matter would be absurd in a city council race, much less a presidential election. To do so in circumstances when it advances the electoral prospects of a rival who has shattered all precedents in terms of lacking transparency or basic honesty is infinitely more scandalous than anything related to the server itself.