WHISTLEBLOWERS
By Dr. Maria Rivero & Dr. Derek Kerr
The First American Whistleblowers
On July 30, 1778, while at war against imperial Tyranny, the Continental Congress empowered whistleblowers to protect the new Republic; “Resolved, That it is the duty of all persons in the service of the United States, as well as all other the inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.”
The genesis of our first Whistleblower Protection Act was a Revolutionary War battle in Rhode Island, aboard the US Navy warship Warren. There, ten whistleblowers – Navy and Marine officers – planned to expose the incompetence, misconduct and war crimes of Navy Commander-in-Chief Commodore Esek Hopkins. Their mission was as perilous as Hopkins was formidable. Suffocating under British occupation, the Continental Congress had recruited Hopkins to relieve General George Washington from the “plague, trouble and vexation” of unruly naval crews. Owner of a large merchant fleet, Hopkins had reaped a fortune privateering during the French and Indian War. His brother Stephen governed Rhode Island, and signed the Declaration of Independence. His son John was captain of the Warren. His flagship flew his personal standard - a rattlesnake coiled to strike, with the motto, Don’t Tread on Me.
…thirsting for revenge, upon his removal from office in January 1778, Hopkins sued all ten whistleblowers for “criminal libel,” demanding 10,000 pounds in damages. Lt. Marven and midshipman Shaw were jailed without means for legal representation.”
The imperious Commodore was both brash and indolent. Instructed by Congress to sail “directly to Chesapeak Bay in Virginia” and attack the British fleet, he sailed to the Bahamas instead. There, he successfully raided a British arms depot, but later allowed enemy frigates to escape unchallenged from U.S. waters. Raring to fight, his officers protested being anchored “in a total state of inactivity for Several Months…therein they could not Serve their Country in its defence”. Hopkins struggled to recruit sailors, who made better money with privateers than the Navy. So he enslaved British prisoners, giving them a choice to man his fleet - or be “placed in irons” and starved. His officers deplored that he “treated prisoners in the most inhuman & barbarous manner.”
On February 19, 1777, just seven months after the Declaration of Independence, the ten dissidents signed a Whistleblower Complaint: “We are ready to hazard everything that is dearest, and if necessary sacrifice our lives for the welfare of our country…We are personally well acquainted with the real character and conduct of our commander commodore Hopkins…we (are)… sincerely and humbly petitioning the honorable Marine committee that they would enquire into his character and conduct for we suppose…he has been guilty of such crimes as render him quite unfit for the publick department he now occupies...” Marine Captain John Grannis was picked to go AWOL and carry their petition from Rhode Island to Congress in Philadelphia.
At the time, there was no First Amendment to uphold freedom of speech. Whistleblower protections didn’t exist. For a country at war, insubordination was threatening. Yet, complainant Grannis was treated respectfully. He was interviewed, not arrested. A Congressional investigation was conducted without secrecy, and published:
“Have you a personal Acquaintance with Esek Hopkins, Esq?”
A:“Yes, I have had a personal Acquaintance with him since I came on board the Ship.”
Q: “Did you ever hear him say any Thing disrespectful of the Congress of the United States…?”
A:“I have heard him at different Times…speak disrespectfully of the Congress…that they were a Sett or Parcel of Men who did not understand their Business…that they were a Parcel of Lawyers Clerks, that if their Measures were followed the Country would be ruined…”
Q:“Do you know any Thing about his Treatment of Prisoners?”
A:“I was on board the Frigate Providence when…Twenty Prisoners…were…asked…whether they would do Ships Duty? They answered No….Orders from the Commodore (were) to put them in Irons, to keep them on Two Thirds Allowance…some prisoners…were forced to do Ship’s Duty by Commodore Hopkins Orders, and he refused to exchange them when a Cartel was settled and other prisoners were exchanged, but don’t know that it was their Turn. The Reason he assigned for not exchanging them was, that he wanted to have them enlist on board the Frigate.”
Q:“Commodore Hopkins is charged with being a Hindrance to the proper Manning of the Fleet. What Circumstances do you know relative to this Charge?”
A:“I think him unfit for command…his Conversation is at Times so wild and orders so unsteady that I have sometimes thought he was not in his senses…it is generally feared that his Commands would be so imprudent that Ships would be foolishly lost…The Character that Commodore Hopkins bore was a great Hindrance to me in getting Recruits.”
Q: “Had you Liberty from Commodore Hopkins or Captain Hopkins to leave the Frigate…?”
A:“No. I came to Philadelphia at the Request of the Officers who signed the Petition against Commodore Hopkins, and from a Zeal for the American Cause.”
Although notables like John Adams supported Hopkins, the whistleblowers were not demonized as disloyal or arrogant. Accordingly, on March 26, 1777, “Congress took into consideration the paper containing charges and complaints against Commodore Hopkins; Whereupon, Resolved, That Esek Hopkins be immediately, and he hereby is suspended from his command in the American Navy.”
Outraged by the “unjust and false complaints” filed by his subordinates, Hopkins retaliated. He court-martialed the petition’s “prime mover,” a Lieutenant Marven, an associate of Thomas Paine, who himself fell afoul of Congress for leaking that France was supporting the Revolution. Interrogated by both Hopkins, father and son, Marven was found guilty of signing “scurrilous papers against his Commander-in-Chief.” Expelled from the Navy, Lt. Marven became the first casualty in a 235-year epidemic of retaliatory firings. Still thirsting for revenge, upon his removal from office in January 1778, Hopkins sued all ten whistleblowers for “criminal libel,” demanding 10,000 pounds in damages. Lt. Marven and midshipman Shaw were jailed without means for legal representation. They wrote “to humbly implore the intervention of Congress” after being “arrested for doing what they then believed and still believe was nothing but their duty.” Their appeal was read before Congress on July 23rd and another investigation ensued.
On July 30, 1778, the Continental Congress passed America’s first Whistleblower Protection Act, cited above. The Founding Fathers in Congress understood the dangers of retaliation, and criminalizing whistleblowers. Despite a wartime budget crisis, and National Security concerns, they noted that the whistleblowers had protested “while in the service of the United States.” Therefore, Congress “Resolved, That the reasonable expences of defending the said suit be defrayed by the United States.” Further, the whistleblowers were furnished, without having to ask, the Commodore’s personnel file, and all records of “the proceedings of Congress upon the complaint of the petitioners against Esek Hopkins, Esq.” Armed with funds for attorneys and depositions, plus investigative files including “letters from President John Hancock and others,” they were vindicated by a Jury. Hopkins was ordered to pay Court costs. In May 1779, Congress disbursed $1,418 for the whistleblowers’ legal fees, “to be paid to Mr. Sam. Adams.” Lt. Marven was granted his Navy pension, despite his court-martial for being a detractor. A decade later, trusting that “Freedom of Speech” and the “Right to Petition” would protect the people, the Founders enshrined these principles in the First Amendment of our Constitution.
Acknowledgement: Research by Stephen M. Kohn, Esq., Director of the National Whistleblower Center (www.whistleblowers.org) inspired this article. see: whistleblowers.org/index.php?option=com_content&task=view&id=1251
Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com
July-August 2013