Annexation, legally speaking

President Donald Trump's recent musings about a U.S. purchase of Greenland have provoked mockery from Denmark to El Centro. I suppose the scorn is understandable. There is no willing seller. Last week, the Kingdom of Denmark, of which Greenland is an autonomous part, declared the island off the market. Buying Greenland seems like one more grandiose Trumpian scheme, like a Space Force or a 2,000-mile border wall.

Ironically, Denmark's refusal to sell has put another option in play: annexation. Behind the scenes, the lawyers of the U.S. Department of State's Office of the Legal Adviser are already laying the groundwork.

Greenland's natural attributes need little elaboration. It is the world's largest island. Its renewable energy sources, mostly hydropower, rank among the most abundant in the world. In Northeast Greenland National Park, the world's biggest national park, polar bear, reindeer, arctic hare, collared lemming, and ermine roam the landscape. Greenland's ample mineral deposits include platinum, titanium, copper and uranium. Greenland's waters teem with fish and shrimp, offering a rich supply of seafood, 90% of which Greenland exports. Its colossal sheet of ice, which covers 75% of the country's land mass, promises an evergreen supply of fresh water in an era when climate change and groundwater overdrafts threaten water shortages to Americans in at least 36 states.

Internally, some career diplomats have argued that U.S. annexation of nearly 900,000 square miles of foreign territory smacks of imperialist overreach. Their argument, however, seems political, not legal. There is ample precedent for the move.

One of State's senior lawyers, a former law school classmate, recently shared with me a confidential memorandum listing past American annexations. (Due to the sensitivity of the matter, he has asked me to use a pseudonym in lieu of his real name. I chose Rufus Grunion.) Grunion's memo is now circulating inside the White House, which has refused comment on it.

Grunion's list includes Texas (in 1845) and Hawai'i (in 1898), two states without whose people and resources it is impossible to imagine America today. Less well-known a series of Pacific islands annexed under the Guano Islands Act of 1856. The Supreme Court, the memo added, upheld the constitutionality of the statute in a case that is still good law after nearly 130 years. Jones v. United States, 137 U.S. 202 (1890).

"These acquisitions, though viewed today as part of a period of U.S. history that many would like to forget, were and are legally valid," wrote Grunion. "The federal courts rejected every constitutional and international challenge mounted in opposition to them. Moreover, the prosperity of Texas and Hawai'i offers an undeniable political reality: U.S. annexation is a boon to the territories acquired and those who live there today."

The U.S., wrote Grunion, is hardly alone in its annexation of territory. America's staunchest ally, Great Britain, claimed the 80-foot-wide, uninhabitable rock of Rockall by hoisting the Union Jack there in 1955. Grunion acknowledges the storms of criticism provoked by Israel's annexations of East Jerusalem and the Golan Heights, Indonesia's taking of East Timor, and Morocco's annexation of Western Sahara. But, wrote Grunion, "each of these territories remains solidly in the hands of the annexers today. In 2019, possession is still nine-tenths of the law. The indignant U.N. resolutions condemning these acquisitions have been and still are dead letters."

But, I asked, what about the governments of Greenland and Denmark? I am no student of military operations, but it seemed to me that forcible military resistance to an American taking of Greenland could not be ruled out of possibility.

Grunion, a former military intelligence officer, dismissed the concern during a telephone interview.

"Greenland has no military forces of its own," he told me. "They rely on the Danes." His memo appended a table which displayed the numbers. A laconic footnote mentioned that the Danish navy operates a "dog sled patrol called Sirius-patruljen, based in Daneborg."

I am no student of military science. But a skeleton military force, reinforced by a dog sled team, would be no match for American forces if things should come to that, I thought.

"Contingency plans prepared by DOD [the Department of Defense] would furnish detailed scenarios for any resistance by Danish military forces and local insurgents," Grunion wrote. "I anticipate that those plans would posit short timetables similar to those which prevailed in U.S. military operations in Grenada in 1983 and Panama in 1989."

As I read the words, I had to stop and breathe for a moment.

In 2019, American territorial predation seems like an anachronism, a relic of the ash can which holds the shards of Manifest Destiny. I asked Grunion whether American elected officials and candidates for office could be expected to support the forcible taking of a sovereign country. He offered an observation.

"The genesis of the U.S. was its declaration of independence from the British Crown," he told me. "Queen Margrethe II of Denmark is no George the Third. But there is romance to the notion that Greenland, and its freedom-loving, God-fearing people, should no longer be subjects of a European monarch. There is something deeply American about it."

Politics aside, it seemed to me that legal challenges to an annexation were a certainty. Could lawyers like Ted Olsen and David Boies not be expected to barge into federal court to defend Greenland and its people from being swallowed up and their land carpeted with housing developments, hydroelectric projects, Walmarts, and McDonalds?

"Legal pushback can and should be expected," Grunion told me. "But the weight of authority in this setting is heavily on the side of an annexation." His memo cited Hawai'i v. Mankichi, 190 U.S. 197 (1903), in which the U.S. Supreme Court recognized the federal government's plenary power to "acquire and annex foreign territories, and to provide for the government thereof, and ... to extend to the inhabitants of the territories annexed the privileges and protection of the Constitution of the United States."

The memo seemed to have an answer for everything. There was a section devoted to cultural issues which could arise after annexation. Culturally speaking, the memo said, Greenland was a kind of big Minnesota.

"English," wrote Grunion, "is taught in every primary school from the first year.... the dominant religion is Protestantism, practiced by adherents of the Church of Denmark, a Lutheran denomination.... The country offers excellent skiing, ice climbing, and snowboarding opportunities for outdoor sports enthusiasts."

Even cuisine did not escape Grunion's attention.

"Someday," Grunion wrote, "an America without suaasat (the national dish of Greenland) will be as unimaginable as an America without Tex-Mex cuisine and Hawai'ian suckling pig."

I had to look up suaasat. It is traditional Greenlandic soup made from seal, whale, reindeer and/or seabirds.

Then, of course, there is Greenland's military and strategic importance.

Since 1943, the U.S. has operated Thule Air Base, on the coast of northwest Greenland. Thule is home to a global satellite control network and 10,000-foot runway which handles more than 3,000 flights per year. Its deep water port is the northernmost in the world. As Putin's Russia continues to modernize its nuclear arsenal and assert itself in Europe, the island offers a key site for refueling and reconnaissance to the U.S. Strategic Air Command, Grunion's memo observed.

For a president whose relationship with Vladimir Putin seems part-bromance, part-competition, I thought, annexing Greenland would make Putin's annexation of the Crimean Peninsula in 2014 look puny by comparison.

As an American, I would take no pleasure in a U.S. annexation of Greenland. But, as a lawyer, I take solace in knowing that our colleagues in the bar are carefully examining its legality and counseling those in charge. It is a sign of America's adherence to the rule of law -- something which remains the envy of the world, even in 2019. 