ACS Blog: Reclaiming Whistleblowing as Part of the Founders’ Vision

President Obama acknowledged as much in 2009, stating that, “[o]ften the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and speaking out.” Such was the case for FBI whistleblower Fred Whitehurst who, while serving as head of the FBI crime labs, alerted the public to widespread evidence contamination that contributed to the wrongful conviction of an untold amount of people and the complete perversion of justice. The case of Fred Whitehurst reveals that for a society based upon the rule of law and public accountability, nothing is nobler than lawfully reporting violations of the public trust. This is and has always been a fundamental precept of our national ethos.

Yet, with due respect to fellow ACSBlog contributor Sam Kleiner, whistleblower protections were not created in the name of national security, nor was the first whistleblower protection statute passed during the Civil War. Rather, the genesis of whistleblower protections in the United States goes back to the midst of the American Revolution and was due to our Founding Fathers’ unwavering dedication to the principle of democratic accountability.

As documented in Stephen M. Kohn’s The Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself, 10 sailors secretly met aboard theUSS Warren on February 19, 1777 to discuss the incompetence and moral failings of Commodore Esek Hopkins, Commander in Chief of the Continental Navy. Citing love of country, the ten sailors signed a petition and collected affidavits documenting specific instances of abuse, which Captain John Grannis smuggled ashore and presented to the Marine Committee of the Continental Congress. In doing so, the crew of the USS Warrendirectly challenged the authority of one of the armed force’s most powerful figures and became the first whistleblowers in American history.

It would have been easy for the Continental Congress to reprimand and imprison the sailors in the name of national security. Indeed, this may have been the safer choice for an assembly that was itself comprised of a band of insurrectionists who faced certain death were they to lose the Revolution. Yet, instead of punishing the sailors for insubordination or treason, the Continental Congress suspended and eventually terminated Commodore Hopkins from his service.

Seeking revenge, Hopkins moved to court-martial Third Lieutenant Richard Marvin. In his defense, Marvin stated that the accusations brought forth against Commodore Hopkins “were of such a nature that we thought it was our duty to lay them before Congress.” Yet, despite his eloquent defense, the first whistleblower in American history was fired. However, even this was not enough for Hopkins, who also sought to gain vindication by suing the 10 sailors in court.

The sailors were largely men of modest means who lacked funds to mount a legal defense. They therefore turned again to the graces of the Continental Congress, who yet again demonstrated, by word and deed, their commitment to public accountability by authorizing funds for the sailors’ defense, releasing the sailors’ petition and affidavits for use in court, and on July 30, 1778, passing the first whistleblower protection law in American, and possibly world history, stating:

That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any persons in the service of these states, which may come to their knowledge.

Despite this nation’s noble history of protecting truth in the face of power, whistleblowers have gained a negative reputation for reporting government abuses. It is therefore most fitting that the U.S. Senate, led by Sen. Chuck Grassley (R-IA), Ranking Member of the Judiciary Committee, and Carl Levin (D-MI), Chairman of the Armed Services Committee, worked jointly to ensure that the Senate unanimously designated July 30, 2013 as National Whistleblower Appreciation Day. This action, taken on the 235^thanniversary of the first whistleblower protection statute being passed, and based upon the research conducted for the Whistleblowers Handbook, finally grants official recognition to the role of whistleblowers in helping maintain democratic accountability within our political system.