Sailors & Marines First Whistleblowers

Review by Bill Doughty

Even as Americans fought to become a nation, some of the first Sailors and Marines stood up for honor, courage and commitment by reporting to Congress the unethical corruption and abusive misconduct of their commodore, Capt. Esek Hopkins.

And Congress stood up for them.

Two hundred and forty-two years ago – January 2, 1778 – Congress voted to fully terminate Hopkins's service and have him removed from the Navy.

America's first whistleblowers included Captain of the Marines John Grannis, Third Lieutenant Richard Marven (or Marvin) and Midshipman Samuel Shaw along with seven other Marines and Sailors, according to Stephen Martin Kohn, distinguished attorney and author of the comprehensive "The New Whistleblower's Handbook: A Step-by-Step Guide to Doing What's Right and Protecting Yourself" (Lyons Press, 2017). Their bravery came before a U.S. Constitution or First Amendment was created to protect them.

"These sailors [and Marines] were devoted to fighting and winning the War for Independence. They were revolutionaries, risking their lives to build a free and independent America; they wanted nothing more than to fight and defeat their British foes. However, they feared that their commander could not successfully lead any such effort, for his tactics foreshadowed doom for the new American Navy. They blew the whistle on the mistreatment of prisoners almost 250 years before other whistleblowers exposed mistreatment of prisoners in the modern 'war on terror.'"

The Sailors' commander, Esek Hopkins, was commander-in-chief of the young Continental Navy. He came from a powerful family; his brother was governor of Rhode Island and a signer of the Declaration.

The Marines and Sailors, including the ship's carpenter and chaplain, petitioned Congress and reported allegations in letters that Hopkins "treated prisoners in the most inhuman & barbarous manner." He also failed to attack a British frigate that ran aground, and he disobeyed, disregarded and dismissed the U.S. Congress.

In "The New Whistleblower's Handbook" author Kohn publishes some of the testimony presented to Congress's Marine Committee, which conducted an investigation into the allegations and suspended the highest-ranking naval officer.

"John Hancock, the president of the Continental Congress, and the most famous signer of the Declaration of Independence, certified the resolution and ordered that it be served on Hopkins," Kohn writes. "Hopkins remained under suspension for over nine months. He never appeared before Congress to refute the allegations."

In a typical response to whistleblower complaints, Hopkins retaliated against his accusers, holding a sham court-martial and even jailing two of the men, who again petitioned Congress for help.

"On July 30, 1778, the Continental Congress came to the defense of Marvin (Marven) and Shaw. The Congress, without any recorded dissent, passed a resolution that encouraged all citizens to blow the whistle on official misconduct. Perhaps for the first time in world history – and unquestionably for the first time in the history of the United States – a government recognized the importance of whistleblowers in exposing official misconduct of high-ranking officials working for the government itself. The act of Congress could have been written today: 

'That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the 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.'"

The Founders authorized the government to pay the attorney fees for the jailed whistleblowers who Hopkins charged with libel. Congress also prevented obstruction by authorizing the release of all pertinent government records.

The whistleblowers were vindicated, and Congress ordered Hopkins to pay their court costs. Kohn contends that the case connects directly to the adoption of the First Amendment more than a decade later. The Navy whistleblower case influenced other acts in the 19th and 20th centuries and was recognized in a unanimous resolution by the U.S. Senate on July 7, 2016, honoring the Sailors and Marines and recommitting to support and protection of whistleblowers.

A Revolutionary Civil War Issue

The need for protecting whistleblowers seems to re-arise about during times of national division and increased defense spending. During the Civil War, Congress investigated frauds by government contractors such as selling sawdust as gunpowder, overcharging taxpayers, and otherwise "profiting from the terrible costs of war."

"When Congress investigated the frauds, it discovered that insider employees had blown the whistle and were subjected to retaliation. In one case the employee architect of the Benton barracks in Missouri reported that he was 'cursed and abused,' 'terrified,' and threatened with imprisonment for blowing the whistle on bribes paid to obtain construction contracts for the barracks."

This led to President Lincoln signing the False Claims Act, March 2, 1863, as protection for taxpayers and the treasury. The FCA became important two generations later in the lead-up to World War II to identify companies using deceptive contracting means to sell defective equipment, including "substandard' steel to the Navy."

Government contractors with powerful lobbying nearly defeated the FCA, and another generation went by before it became revitalized under the False Claims Reform Act and amendments. This was during the time of the $435 hammer, $640 toilet seat and $7,622 coffee pot.

"At the height of the 'Reagan Revolution,' and its gargantuan increases in defense spending, a freshman senator from Iowa, Senator Chuck Grassley, led the charge to increase oversight and accountability for federal spending by resurrecting the False Claims Act ... On October 27, 1986, the False Claims Reform Act was overwhelmingly passed by Congress and signed into law by President Ronald Reagan."

Sen. Chuck Grassley (Republican, Iowa) and Maj. Gen. Laura Richardson participate in a Senate Veterans Affairs Committee and Joint Services reception held at the Russell Senate Office Building, Wednesday, Nov. 4, 2015. (U.S. Coast Guard photo by Petty Officer 2nd Class David Marin)

The reinvigorated act restored the rights of whistleblowers to report fraud, waste and abuse, and demonstrated the federal government's protection of whistleblowers.

The explosion of the Space Shuttle Challenger in 1986 led to an investigation that showed employees within Morton-Thiokol, a private contractor, had tried to blow the whistle over safety concerns. Nuclear power safety concerns, Enron's devastating scandal, Bernie Madoff's Ponzi scheme, a company knowingly selling salmonella-contaminated peanut butter – all these cases involved whistleblowers, and each is discussed in the handbook.

But this book is not just about history.

"The New Whistleblower's Handbook" is also a practical, comprehensive (550 pages) guide for federal workers, private industry employees and the general public. It outlines hundreds of strategies and regulations related to whistleblowing in and out of government, acknowledging, "There is no single comprehensive national whistleblower protection law."

What are the pitfalls of using a company hotline? What if a complaint is with one's supervisor and manager? What are deadlines and statutes affecting different types of whistleblower rights? What about military service members?

"The Military Whistleblower Protection Act permits members of the armed services to lawfully communicate with Congress, their chain of command, and military inspectors general. The Act also permits members of the armed services to raise allegations of violations of law, discriminatory conduct and 'gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety."

Kohn provides information about deadlines, appeal rights, and relief entitlements.

Federal employees can get information about the Office of Special Counsel (https://osc.gov) and Merit Systems Protection Board (www.mspb.gov).

Capt. Mark P. O'Malley, the commanding officer of Coast Guard Sector Baltimore, gives his remarks during a press conference regarding a case between the United States of America and Irika Shipping S.A., a ship management corporation sentenced to pay $4 million for deliberately discharging oil and waste into the ocean, Sept. 21. A Coast Guard inspection crew discovered that the motor vessel Iorana, a Greek flagged cargo ship managed by Irika Shipping S.A., used a "magic hose" to bypass a oily water separator in order to discharge what was later revealed to be approximately 6,000 gallons of oil contaminated sludge and bilge waste. (Photo by: Petty Officer 3rd Class Robert Brazzell)

There's an APPS for That

Kohn explains various laws, regulations and specific acts like FCA, Dodd-Frank, Sarbanes-Oxley, Lacey, Atomic Energy, Airline Safety, OSHA, HIPAA, and environmental protection initiatives, including the Act to Prevent Pollution from ships. The latter incentivizes reporting with rewards and is having a positive affect on cleaning the oceans and protecting wildlife.

"Currently, most, if not all Act to Prevent Pollution from Ships (APPS) ocean pollution cases are brought to the government's attention by whistleblowers, and these sources are now the key to the successful prosecution of ocean polluters. APPS includes a whistleblower reward provision that, over time, has proved vital to enforcing laws preventing pollution on the high seas.How can the United States obtain jurisdiction over pollution that is dumped into the high seas, outside U.S. territorial waters? Jurisdiction is based on how the United States implements the International Convention for Prevention of Pollution from Ships, as modified by the protocol of 1978, better known simply as the MARPOL Protocol, the leading international treaty protecting the oceans from pollution."

Kohn notes that in the past ten years the U.S. government, in cooperation with whistleblowers, collected about $279 million in fines and penalties from polluters who violated the APPS. Reports are made through the U.S. Coast Guard National Response Center, 800-424-8802; www.nrc.uscg.mil.

Tim Todaro, deputy inspector general, Regional Health Command-Pacific, leads his team through a practical exercise Jan. 12 during a Department of Defense Office of the Inspector General whistleblower reprisal investigations course, Jan. 12, 2017, at Joint Base Lewis-McChord, Wa. (Photo by Flavia Hulsey)

Risks and Rewards

Whistleblowers in and out of government in various industries and activities have saved taxpayers billions of dollars. In one IRS case, whistleblower Bradley Birkenfeld helped U.S. taxpayers recover more than 13.7 billion from wealthy tax evaders. He was awarded $104 million as part of a successful whistleblower claim.

But the serious act of whistleblowing carries risks. Employers and people in power are apt to "circle the wagons and shoot the messenger."

"One of the biggest mistakes shared by most whistleblowers at the onset of a case is the belief that somehow doing the 'right thing' will be rewarded and that the system will naturally work. Although a nice thought, that is the exception, not the rule. Regardless of the reputation of one's boss, it is simply not possible to predict how a company will respond to a report of wrongdoing by one of its own employees."

For whistleblowers who find the courage to stand up and report crimes, "there is no choice but to prepare a defense for his or her career and reputation," Kohn advises.

He presents hundreds of resources and points of contact for further research. The national framework of federal and state laws, including ongoing refinement of anti-retaliation laws, "is extremely complex and consists of numerous federal and state laws, but it is also plagued by loopholes and technicalities that cause unnecessary hardship to many employees."

Thomas Jefferson Memorial (Photo by TSgt. Eric Miller)

Kohn concludes with this reason for patriotic Americans to stand up for the First Amendment  and against corruption and – like the early Sailors and Marines and the nation's founders – denounce malfeasance:

"Corruption is a cancer on all democratic institutions. It converts the 'rule of law' to the 'rule of backdoor influence.' Greed trumps justice."